Jokic v Primo Smallgoods Pty Ltd
[2017] NSWWCCPD 16
•28 April 2017
| WORKERS COMPENSATION COMMISSION | ||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||
| CITATION: | Jokic v Primo Smallgoods Pty Ltd [2017] NSWWCCPD 16 | |
| APPELLANT: | Mira Jokic | |
| RESPONDENT: | Primo Smallgoods Pty Ltd | |
| INSURER: | CGU Workers Compensation (NSW) Ltd | |
| FILE NUMBER: | A1-4129/16 | |
| ARBITRATOR: | Mr J Wynyard | |
| DATE OF ARBITRATOR’S DECISION: | 15 November 2016 | |
| DATE OF APPEAL DECISION: | 28 April 2017 | |
| SUBJECT MATTER OF DECISION: | Extension of time to appeal | |
| PRESIDENTIAL MEMBER: | Deputy President Michael Snell | |
| HEARING: | On the papers | |
| REPRESENTATION: | Appellant: | NSW Compensation Lawyers |
| Respondent: | BBW Lawyers | |
| ORDERS MADE ON APPEAL: | 1. The appellant’s application to extend time, pursuant to Part 16 r 16.2(12) of the Workers Compensation Commission Rules 2011 is refused. | |
INTRODUCTION
This appeal involves a challenge to factual findings by an Arbitrator, and the entry of an award in favour of the employer, on a claim for lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act). The appeal was made out of time. For reasons which appear below, an application by Mira Jokic (the appellant) for leave to extend time is refused.
BACKGROUND
The appellant worked with Primo Smallgoods Pty Ltd (the respondent) as a process worker. She was injured in an incident on 24 June 2014 (the occurrence of which is not challenged) when she was accidentally struck in the face by a metal pole, being used by a co-worker. She was off work for a few weeks, resumed on selected duties, and eventually ceased work from
1 September 2014. She was paid voluntary compensation benefits until 26 September 2014, when the respondent’s insurer issued a s 74 notice denying liability. The insurer accepted that the appellant suffered a laceration to her “lip/mouth” in the incident, but not injury to various other body parts which she claimed.The appellant was assessed by Dr Habib, an orthopaedic surgeon, at the request of her solicitors, and he reported on 13 August 2015. Dr Habib had previously treated the appellant in connection with her alleged injuries. Dr Habib assessed 16 per cent whole person impairment in respect of the cervical spine, lumbar spine and right upper extremity (shoulder). The appellant was also assessed by Dr Greenberg, a general and gastrointestinal surgeon, at her solicitors’ request, and he reported on 23 May 2016. He assessed 5 per cent whole person impairment in respect of the appellant’s upper and lower gastrointestinal symptoms. This was alleged as a secondary condition, resulting from medication the appellant had taken for her orthopaedic injuries. The appellant’s solicitors made a claim for lump sum compensation on her behalf, in respect 20 per cent whole person impairment, on 3 June 2016. The respondent disputed that claim on 20 June 2016, relying on the reasons in the s 74 notice it had previously issued.
The current proceedings, claiming the assessed lump sum compensation, were commenced by Application to Resolve a Dispute registered on 9 August 2016 (the Application). The respondent’s Reply relied on the reasons in its previous notice. An arbitration hearing was held on 11 November 2016. Mr G Young appeared for the appellant, and Mr Sommerville for the respondent. The appellant amended the Application, without objection, to withdraw that part of the claim which related to the condition of the lower gastrointestinal tract. Neither party sought to rely on oral evidence. The parties relied on the material in the Application and the Reply, and counsel addressed. The Arbitrator delivered an extempore decision.
THE ARBITRATOR’S DECISION
The Arbitrator set out the appellant’s description of how the accident occurred, from her statement. He noted that there was no evidence from the co-worker who accidentally struck the appellant with the pole. The Arbitrator said that the description of the accident was “totally inadequate to explain the basis of the injuries that are now claimed”.
The Arbitrator referred to the notes of Dr Tomasevic, the appellant’s general practitioner. At the initial consultation after the injury, on 24 June 2014, Dr Tomasevic recorded symptoms involving the lower lip, neck and upper back. At the next consultation, on 27 June 2014, there were complaints also of pain in the lower back. On 30 June 2014 Dr Tomasevic additionally recorded “pains in right upper limb”, which the Arbitrator said he assumed “meant the shoulder” (T28.24-29.33). The Arbitrator noted that “post-accident, the applicant was put on medication, which it is said is responsible for her upper gastric digestive tract problems” (T30.22-4). The Arbitrator discussed the reports of Dr Habib (T30.26-32.17). He referred to Dr Greenberg’s report “in relation to the claim for the gastric difficulties”, and the “past history of gastrointestinal pathology due to a ‘motor vehicle accident’” (T33.4-9).
The Arbitrator went on to say:
“An applicant is required to prove his/her case on the balance of probabilities. The progression of the complaints to the applicant’s lower back, digestive system and right shoulder, as recorded by the general practitioner are, on their face, unrelated to the mechanism of the injury and inconsistent with it, in as much as it has been described.
I am not satisfied that the applicant has put before me sufficient detail relating to that incident that would explain the later onset of these alleged injuries.
Whilst there was consistency in the complaint about the bleeding lip and the pain to the cervical spine, I am not satisfied that the evidence before me explains how the lower back and the right shoulder came to be involved, nor the involvement of the digestive system in such a short time.” (T33.11-28)
The Arbitrator referred to a “comment by Dr Habib” that the appellant “jarred her shoulder from trying to steady herself from falling over”. He described this as “totally unreliable”, noted it appeared in a part of Dr Habib’s report marked “Impression”, and said “I assume that Dr Habib was speculating on how the right shoulder might have become involved” (T33.30-34.4). The Arbitrator noted that there was an assessment of whole person impairment in respect of the cervical spine at six per cent, and continued:
“6 per cent is not sufficient to sustain a referral to the AMS. It is always dangerous in any event to rely on clinical notes as evidence for or against any given proposition, without some form of corroborative evidence. In relation to this case particularly, with the description of the mechanism from the applicant being inconsistent with the onset of these later alleged injuries, I have no basis upon which to accept those later claims because they have been described in such un‑illustrative terms. As I say, there was obviously a co-worker whom, one might have expected, would have been asked to put a statement on, he having caused the injury.
For those reasons, Mrs Jokic, I regret that I cannot support your claims and there will be an award for the respondent.” (T34.19-35.3)
ON THE PAPERS
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, 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.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to quantum as found in the provisions of s 352(3) of the 1998 Act have been met.
The Application to Extend Time
Section 352(4) provides “An appeal can only be made within 28 days after the making of the decision appealed against.” The Certificate of Determination was issued on
15 November 2016, the Appeal was lodged and registered on 19 December 2016. It is common ground that it is out of time. There is provision for the extension of time in the Workers Compensation Commission Rules 2011 (the Rules). Part 16 r 16.2(12) provides:“(12) The Commission constituted by a Presidential member may, if a party satisfies the Presidential member, in exceptional circumstances, that to lose the right to appeal would work demonstrable and substantial injustice, by order extend the time for making an appeal.”
In Bryce v Department of Corrective Services [2009] NSWCA 188 (Bryce) Allsop P (Beazley and Giles JJA agreeing) dealt with the then equivalent provision in Pt 16 r 16.2(11) of the Rules. His Honour at [8] said:
“In my view, the phrase ‘in exceptional circumstances’ finding its place in the middle of the rule is to be dealt with as a matter to be considered by the Presidential member as a matter within jurisdiction as opposed to a precondition to the operation of jurisdiction.”
In Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290 (Yacoub) Campbell JA (Tobias JA and Handley AJA agreeing) dealt with the phrase ‘exceptional circumstances’, in the Uniform Civil Procedure Rules 2005. His Honour at [66]-[67] said:
“66. In San v Rumble (No 2) (2007) NSWCA 259 at [59]- [69], I gave consideration to the expression ‘exceptional circumstances’ in a different statutory context to the present. Without repeating that discussion in full, I shall state such of the conclusions as seem to me applicable in the construction of rule 31.18(4).
(a) Exceptional circumstances are out of the ordinary course or unusual, or special, or uncommon. They need not be unique, or unprecedented, or very rare, but they cannot be circumstances that are regularly, routinely or normally encountered: R v Kelly (Edward) [1999] UKHL 4; [2000] 1 QB 198 (at 208).
(b) Exceptional circumstances can exist not only by reference to quantitative matters concerning relative frequency of occurrence, but also by reference to qualitative factors: R v Buckland [2000] EWCA Crim 1; [2000] 1 WLR 1262; [2000] 1 All ER 907 (at 1268; 912-913).
(c) Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional: Ho v Professional Services Review Committee No 295 [2007] FCA 388 (at [26]).
(d) In deciding whether circumstances are exceptional within the meaning of a particular statutory provision, one must keep in mind the rationale of that particular statutory provision: R v Buckland (at 1268; 912-913).
(e) Beyond these general guidelines, whether exceptional circumstances exist depends upon a careful consideration of the facts of the individual case: Awa v Independent News Auckland [1996] 2 NZLR 184 (at 186).
67. In the context of rule 31.18(4) UCP Rules, any decision about whether there are exceptional circumstances would need to bear in mind the explicit statement of objectives of a court in the management of litigation contained in sections 56-59 Civil Procedure Act 2005.”
I applied the above passage in Rockhard Products Pty Ltd v Economidis [2009] NSWWCCPD 159; 11 DDCR 310 subject to saying that, in the context of the Commission, it is appropriate to have regard to ss 3 and 354 of the 1998 Act, when considering the application of the provision.
The Commission, in dealing with applications to extend time for bringing Presidential appeals, has frequently applied the following passage from the judgment of McHugh J in Gallo v Dawson [1990] HCA 30; 93 ALR 479; 64 ALJR 458 (Gallo) at [2] (excluding references):
“The discretion to extend time is given for the sole purpose of enabling the Court or Justice to do justice between the parties. 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. 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. 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. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice.”
The appellant, in support of the application to extend time, refers to the above passage from Gallo. The appellant submits:
(a) Her solicitors received the decision on 16 November 2016. On 17 November 2016 her solicitor received an advice from counsel on the prospects of appeal, and made an “application to ILARS” for legal assistance. “A conditional ILARS grant was received on 30 November 2016.” Counsel was then “unavailable due to Court commitments” from 30 November 2016 to 15 December 2016. The appellant attributes the delay to the wait for an ILARS grant, and counsel’s unavailability.
(b) The period by which the appeal is out of time is minor.
(c) There would be “demonstrable and substantial injustice if the appellant could not bring the appeal. The interests of justice favour the extension of time. Any prejudice to the respondent, in losing the protection of the Arbitrator’s decision, is relatively minor, compared to the injustice to the appellant if an extension is not granted.
(d) As regards the prospects of success, the appellant simply refers to its submissions on the appeal.
The respondent opposes the extension of time. It submits:
(a) Having received an ILARS grant on 30 November 2016, the appellant had 13 days in which to lodge the appeal, within time. This was ample given the length of the submissions. It is unclear why counsel could not have “approved” the submissions in 13 days. In any event, other counsel could have been briefed for this purpose.
(b) The appeal does not have reasonable prospects of success. The submissions are “extremely brief and highlight no demonstrable error or incorrect criteria”.
Part 16 r 16.2(12) of the Rules requires that, in exercising this discretion, I consider whether ‘exceptional circumstances’ are present, although this is not a precondition to an extension of time. The appellant has not specifically addressed ‘exceptional circumstances’. On the appellant’s submissions, the only matters potentially suggested as comprising ‘exceptional circumstances’ are the delay in obtaining a grant of legal assistance from ILARS, and the temporary unavailability of counsel due to other commitments. This involved a period of about two weeks whilst an application to ILARS was considered and granted, and a period of about two weeks whilst counsel was unavailable due to other commitments. Neither of these matters, taken individually, could be regarded as other than “circumstances that are regularly, routinely or normally encountered”. Nor, in my view, can they be regarded as “ordinary factors” which, when taken together, become exceptional. Viewed together as a sequence, they remain “circumstances that are regularly, routinely or normally encountered”. They are not “out of the ordinary course or unusual, or special, or uncommon”.
The appellant’s submissions do not specify how these matters resulted in the appeal being lodged out of time. As the respondent submits, there was time to put on the brief submissions in support of the appeal, in the 13 days after the grant of legal assistance was made. The appellant’s submissions do not identify why some other counsel was not retained, if the original counsel was unavailable due to the pressure of other work. The appellant’s submissions dealing with ‘time’ do not say whether the appeal documents were ultimately drafted by counsel or the solicitors, nor when they were drafted. At the place on the appeal document where it should be executed (the foot of page 6), the “person preparing written submissions” is given as the appellant’s solicitor. The explanation for why the appeal was not brought in time is unsatisfactory.
In Land Enviro Corp Pty Ltd v HTT Huntley Heritage Pty Ltd[2014] NSWCA 34, Basten JA (Beazley P and Leeming JA agreeing) at [9] said:
“The primary considerations on an application for leave to extend time within which to appeal are:
(a) the extent of the delay and the reasons therefor;
(b) the prejudice to the applicant if the application were to be refused;
(c) the prejudice to the defendant from the delay if the application were to be granted;
(d) the prospects of success on the proposed appeal.”
The above passage was applied by Roche DP in Allen v Roads and Maritime Services [2015] NSWWCCPD 39. In the same decision at [35] the Deputy President said:
“However, if the explanation for the delay is less than satisfactory, or if the opponent suffers substantial prejudice, it may be relevant that the claimant shows that his or her case has more substantial merit than merely being fairly arguable (Hodgson JA in Tomko v Palasty (No 2)[2007] NSWCA 369 at [14]).”
It is necessary to consider the merits of the appeal. The appellant pleads a single ground of appeal:
“The Arbitrator erred in finding contrary to the evidence”.
The document then describes the Arbitrator’s findings on ‘injury’, that the Arbitrator was satisfied as regards injury to the neck, but that the appellant had not “discharged her onus to prove ‘injury’ to the lumbar spine, right shoulder or consequential upper gastro intestinal tract”. The document at [2.9.3] continues, setting out the submissions in support of the ground (these are quoted in their entirety):
“With respect the Arbitrator erred as:
1. The appellant’s version of events was not challenged by any contrary evidence and she was not cross-examined.
2. The employer did not tender a statement from the co-worker who struck the appellant. The Arbitrator erred finding the appellant should have obtained a statement from the co-worker to corroborate her unchallenged evidence. In effect, the Arbitrator imposed a higher onus of proof on the appellant.
3. Dr Tomasevic (GP) treated the appellant on the date of injury. As the chronology demonstrates, the doctor recorded lumbar complaints within three (3) days and right shoulder pain within six (6) days of the frank injury.”
The single ground relied on by the appellant is, to adopt the language employed by Roche DP in Challita v Assetlink Services Pty Ltd [2014] NSWWCCPD 9, “completely unsustainable” . It consists simply of an assertion that there was factual error. It does not comply with Practice Direction No 6, which provides that the grounds must state:
“…briefly, but specifically, the grounds relied on in support of the appeal. It is not acceptable merely to allege that the Arbitrator erred in law, fact or discretion, or that the decision is against the evidence or the weight of the evidence.”
There was an issue between the parties regarding whether the appellant suffered injuries beyond the injury to the face (see Dr Drummond’s report dated 16 September 2014, and the “Incident, Injury & Hazard Report Form” and the “Initial Notification of Injury”, both dated 24 June 2014). The occurrence of these other injuries was placed in issue (see the s 74 notice dated 26 September 2014). The appellant carried the onus of establishing she suffered the injuries other than the facial injury, on the probabilities, as the Arbitrator correctly observed (T33.11-2).
The Arbitrator’s extempore reasons are relatively brief. No issue is raised on the appeal regarding the adequacy of the reasons. The Arbitrator’s reasons specifically refer to when complaints of various symptoms were initially recorded by Dr Tomasevic. His reasons in this regard are consistent with the appellant’s chronology, and with the submission described at [24] above, numbered “3” (T32.27-30). He did not misstate or misapprehend that evidence.
The Arbitrator referred to the “progression of the complaints… as recorded by the general practitioner”. He said that the complaints involving the lower back, digestive system and right shoulder were “on their face, unrelated to the mechanism of the injury and inconsistent with it, in as much as it has been described” (T33.12-7). The Arbitrator had previously, in his reasons, referred to the mechanism of injury:
“There is no evidence from the co-worker. There is no evidence from any other worker who might have witnessed this event. The description is totally inadequate to explain the basis of the injuries that are now claimed.” (T27.28-31)
There was medical evidence before the Arbitrator, which was generally consistent with this. Dr Pierides, in his report dated 29 July 2014, said that it was possible that the appellant had “created some form of disc injury or aggravated underlying degenerative change” when she “jerked her neck suddenly”. He also thought that the appellant “displayed symptoms consistent with a vestibular problem, probably benign positional vertigo”. He said that the “mechanism of injury would have been reasonable” regarding these “two possible diagnoses” (the neck and the vestibular problem). He considered the “back injury seems to be inconsistent with the accident”.
The submission numbered “3” does not deal with how the Arbitrator allegedly erred, in his consideration of the evidence, dealing with the complaints to Dr Tomasevic. It does not provide a basis for finding error in how the Arbitrator dealt with that evidence.
The submission at [24] above numbered “2” asserts that the Arbitrator applied “a higher onus of proof”. The Arbitrator specifically and correctly said that the appellant bore the onus of proof “on the balance of probabilities” (T33.11-2).
In the passage quoted at [28] above, the Arbitrator referred to the absence of evidence from “the co-worker” or “any other worker who might have witnessed this event”. Later in his reasons, again when dealing with the mechanism of injury, the Arbitrator said:
“In relation to this case particularly, with the description of the mechanism from the applicant being inconsistent with the onset of these later alleged injuries, I have no basis upon which to accept those later claims because they have been described in such un‑illustrative terms. As I say, there was obviously a co-worker whom, one might have expected, would have been asked to put a statement on, he having caused the injury.” (T34.23-31)
The appellant has not sought to deal with these passages of the reasons, on the basis that the Arbitrator was drawing an inference pursuant to Jones v Dunkel [1959] HCA 8; 101 CLR 298 (Jones v Dunkel) (see also Manly Council v Byrne and Anor [2004] NSWCA 123 at [44]-[55] [Byrne]). The appropriate inference, if such an inference is properly available, “is that the evidence which was not called would not have helped the party who failed to call the witness” (Byrne at [50] per Campbell JA, Beazley JA and Pearlman AJA agreeing). The Arbitrator did not deal with any of the circumstances necessary to justify the drawing of such an inference (see Byrne at [53]). He did not say that he was drawing such an inference. He refers not only to evidence of the “co-worker”, but to the absence of “evidence from any other worker”. In the context of these passages of his reasons, the Arbitrator was dealing with the state of the evidence involving the mechanism of injury, and its adequacy as a cause of “the injuries that are now claimed”. The appellant has not sought to submit that the Arbitrator was drawing an inference pursuant to Jones v Dunkel.
The Arbitrator specifically said that the appellant was required to prove her case on the balance of probabilities. The reference to evidence of the co-worker or other workers was in the context of the adequacy of the evidence in the appellant’s case, in the absence of other lay evidence. There is no basis for the submission that the Arbitrator applied “a higher onus of proof”.
The submission at [24] numbered “1” simply asserts that the respondent did not adduce “contrary evidence” to challenge the appellant’s version of events, and she was not cross-examined. The appellant does not submit how this demonstrates error on the Arbitrator’s part. The Arbitrator’s decision did not turn on a challenge to the appellant’s evidence, but rather on whether the evidence overall supported the findings on ‘injury’, which the appellant sought. The Arbitrator did not reject the appellant’s version of how the occasion of injury occurred. What he did was describe the evidence of the appellant as being “totally inadequate to explain the basis of the injuries that are now claimed”.
Even if the Arbitrator had rejected the appellant’s evidence, this could appropriately be done in the context of the Commission, without cross-examination of the appellant, subject to the principles discussed in New South Wales Police Force v Winter [2011] NSWCA 330; 10 DDCR 69 at [77]-[85]. The respondent made submissions at the arbitration hearing challenging the relationship between the mechanism of injury and the injuries claimed (T14.9-16.19), and going to the initial failure to mention any injury to the lower back or the right shoulder, when consulting Dr Tomasevic (T16.19-17.25, 19.19-28). These issues were clearly raised between the parties, and were addressed by both parties’ counsel.
The appellant’s submissions, and the sole ground identified in the appeal, do not identify appealable error, within the meaning of s 352(5) of the 1998 Act: Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156 at [19]-[21]. It follows that the appeal does not have reasonable prospects of success.
Conclusion on the Application to Extend Time
The following matters favour the extension of time:
(a) if the application is refused, the appellant is deprived of her chance to bring the appeal;
(b) the period by which the appeal is out of time is slight, a matter of days, and
(c) the respondent does not assert any relevant prejudice.
The following matters go against the granting of an extension:
(a) there is not a satisfactory explanation of the reasons for the delay;
(b) ‘exceptional circumstances’ have not been established;
(c) for reasons given above, the prospects of success of the appeal are poor.
I am not satisfied, in the circumstances, that to refuse the application would constitute an injustice. The appellant’s application to extend time is refused.
DECISION
The appellant’s application to extend time, pursuant to Part 16 r 16.2(12) of the Rules is refused.
Michael Snell
Deputy President
28 April 2017
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