Jones v Continential Ace Conveyors Pty Ltd - [2006] NSWWCCPD 339

WORKERS COMPENSATION COMMISSION

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

CITATION:Jones v Continental Ace Conveyors Pty Ltd [2006] NSWWCCPD 339
APPELLANT:  David John Jones
RESPONDENT:  Continental Ace Conveyors Pty Ltd
INSURER:Cambridge Integrated Services Australia Pty Ltd
FILE NUMBER:  WCC18557-05
DATE OF ARBITRATOR’S DECISION:          19 May 2006
DATE OF APPEAL DECISION:  7 December 2006
SUBJECT MATTER OF DECISION:                Leave to appeal; extension of time
PRESIDENTIAL MEMBER:  Acting Deputy President Michael Snell
HEARING:On the papers
REPRESENTATION:  Appellant: Self represented
`Respondent: Moray & Agnew

ORDERS MADE ON APPEAL: Leave to appeal is refused.
No order as to costs of the appeal.

BACKGROUND TO THE APPEAL

On 26 June 2006 David John Jones (‘the Appellant’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’)

The Respondent to the appeal is Continental Ace Conveyors Pty Ltd (‘the Respondent’)

The Appellant’s undated and unsigned statement, attached to the Application to Admit Late Documents dated 9 May 2006, indicates he commenced working as a welder for the Respondent on 24 July 2000. He was born on 23 May 1958. The Application to Resolve a Dispute (‘ARD’) relies upon injury to both arms resulting from “pushing/lifting”, from December 2000 to 2 April 2001. It also pleads “burn to lower left arm” in an incident on 11 August 2000. In addition there is a reference to pain in both knees in the allegations. The ARD claims weekly compensation from 1 November 2005 to date and continuing, together with an order for the payment of medical and related expenses pursuant to section 60 of the Workers Compensation Act 1987 (‘the 1987 Act’).

The Appellant ceased work with the Respondent from 1 June 2001, when he was retrenched (according to the unsigned statement). His only work thereafter was two months as a handyman in 2002. The Respondent paid the Appellant voluntary weekly compensation prior to 1 November 2005. A claim for permanent loss compensation, for loss of both arms at or above the elbow, was made in earlier proceedings in the Commission, number WCC14963-04. The Appellant was assessed in connection with that claim, by an approved medical specialist, Dr Higgs, on 7 March 2005. In a medical assessment certificate dated 25 March 2005, he certified 5% permanent loss of use of both arms at or above the elbow. The ARD indicates that claim was settled for a sum of $7,750.00, a figure consistent with Dr Higgs’ assessment.

The medical evidence does not overall support the proposition the burn of 11 August 2000 caused incapacity for work. The evidence does not support the contention the Appellant had an injury to his knees caused by his work. The medical evidence is generally supportive of the proposition the Appellant suffered from bilateral epicondylitis caused by his employment duties with the Respondent. This was the diagnosis of Dr Higgs, amongst others.

The Arbitrator’s Reasons for Decision record the parties, by agreement at a teleconference on 15 March 2006, referred the dispute in the current proceedings to Dr Higgs, to answer two agreed questions. Firstly, whether there had been any deterioration in the Appellant’s condition since his earlier assessment of 25 March 2005. Secondly, whether the Appellant suffered any incapacity for work arising from the work injuries, and if so, to what degree. The resulting medical assessment certificate (‘MAC’) of Dr Higgs is dated 15 March 2006. It was not binding on the parties. His conclusion is set out at page 6 of the certificate, and I shall not reproduce it in full. He said the Appellant was not fit to work in his pre-injury work as a welder. Dr Higgs placed certain restrictions on the Appellant’s ability to work. He said he should not lift weights exceeding ten kilograms, should not pull or push objects weighing more than fifteen kilograms, and “should avoid any repetitive arduous working activity that is known by the Worker to aggravate his symptoms”. He thought the Appellant fit for full-time work. He said the Appellant would be fit for work as a driving instructor without restrictions. This certificate of Dr Higgs, dated 15 March 2006, was relied upon by the Appellant, it being annexed to his Application to Admit Late Documents dated 9 May 2006.

There was a varied body of medical evidence in addition to Dr Higgs. At one end of the spectrum, Professor Oakeshott (qualified by the Respondent) thought the Appellant had made “a complete and permanent recovery from bilateral epicondylitis”. He found no objective evidence of any problem in the elbows which would cause any difficulties in the Appellant returning to work. In the Appellant’s case, Professor Ghabriel in a report dated 12 December 2005 thought him unfit for employment involving lifting over five kilograms, excessive use of the upper limbs, and any use of the hands involving powerful gripping. I shall not attempt to refer to all of the medical evidence, which is referred to in summary form at paragraphs [24] to [38] of the Arbitrator’s Reasons.

The arbitration hearing was held on 16 May 2006. Both parties were legally represented. No oral evidence was adduced. The legal representatives of both parties made submissions.

THE DECISION UNDER REVIEW

The ‘Certificate of Determination’, dated 19 May 2006 records the Arbitrator’s orders as follows:

“1. That the Respondent pay the Applicant weekly compensation at the rate of $187.00 from 1 November 2005 under s40 of the Workers Compensation Act 1987. Such payments to continue in accordance with the Act.

2. That the Respondent pay the Applicant’s medical expenses on production of accounts or receipts under s60 of the Workers Compensation Act 1987.
3. That the Respondent pay the Applicant’s costs as agreed or assessed.”

ON THE PAPERS REVIEW

Section 354(6) of the Workplace Injury Management and Workers Compensation Act, 1998 (‘the 1998 Act) provides:

“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”

Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the Appellant 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.

LEAVE

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 appeal was lodged on 26 June 2006, outside the period of 28 days from the date of the Arbitrator’s decision, stipulated in section 352(4) of the 1998 Act.

There is provision to extend the time in which an appeal may be brought, contained in Part 16 rule 2 of the Workers Compensation Rules 2006, which relevantly provides:

“(11) 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.

(12) A party who seeks an extension of time as referred to in subrule (11) must:
(a) as soon as practicable give notice to the other parties of the intention to
seek the extension, and

(b) lodge and serve with the application for leave to appeal an application
for the extension of time, including full details of the arguments to be
put in favour of granting the extension.”

Sub-rules in identical form were contained in the Workers Compensation Rules 2003, which had application at the time the Appellant lodged his Application to Appeal.

Accordingly, the Appellant requires an extension of time pursuant to Part 16 rule 2 of the Rules, if he is to bring the appeal. He seeks such an extension, and makes submissions in support of that application, in his Application to Appeal. He also makes further submissions in a document dated 24 July 2006, which responds to the submissions made by the Respondent in its Notice of Opposition to the Appeal.

The principles governing an extension of time in which to lodge an appeal are dealt with by McHugh J, in a passage of Gallo v Dawson (1990) 93 ALR 479 (‘Gallo’) which has frequently been applied in Presidential decisions of the Commission, dealing with such applications:

“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.” (at 480)

The submissions attached to the Appellant’s Application to Appeal assert he “was about to lodge my appeal within the 28 day period on the 13^th of June but was telephone (sic) by the insurer’s legal representative”. It is asserted that legal representative “left a recorded message on my answering machine at 10.38 am on the 13^th of June 06 that stated that if I send to the insurer the Rehab providers statement that I was told to retrain myself into another field that his instructions were that his client the insurer would consider this but he did not know how long this would take.” The Appellant goes on to say that, as he thought he was going to be retrained, he thought it best not to appeal, as retraining was what he wanted from the insurer. The Appellant then asserts that on 19 June 2006 he received two letters from the Respondent’s solicitors, stating their client had “now decided not to pay for any further retraining now that the Certificate of Determination has been finalised.” He says had he not received “this misleading information” from the Respondent’s solicitors he would have lodged his appeal “within the required time frame”. He accuses the Respondent of deception in this regard.
The Respondent, in its submissions on the appeal, submits an extension of time should not be granted. It is stated “any allegations directed at the Respondent’s insurer or solicitor are denied”. The Respondent disputes the existence of ‘exceptional circumstances’, and also submits refusal of the extension would not cause ‘demonstrable and substantial injustice’, as the Appellant’s “prospects of succeeding in his appeal would be remote” (at [8]).
The circumstances relied upon by the Appellant, to constitute ‘exceptional circumstances’, are clearly the subject of factual dispute. For the purposes of dealing with the Appellant’s application to extend time pursuant to Part 16 rule 2 (11), I am prepared to assume the Appellant can establish the matters on which he relies in this regard. I have heard no evidence to either support or contradict those allegations, and this assumption is made purely for the purposes of dealing with the application to extend time.
If the matters asserted by the Appellant could be made out, that the Respondent had, through its solicitors, acted deceptively towards the Appellant, so as to induce him not to lodge the appeal within time, in my view this would amount to exceptional circumstances, potentially enlivening the discretion in sub-rule (11). It would be conduct of the parties tending to favour the extension of time (Gallo). I note also the appeal is out of time by something less than two weeks.
However it is also necessary, applying the above passage of Gallo, that I consider the prospects of success of the appeal. It would not be appropriate that I exercise my discretion to extend the time for appeal, if the appeal does not have reasonable prospects of success.
The Appellant’s proceedings claimed two forms of relief, weekly payments from 1 November 2005 on a continuing basis, and a general order for the payment of ongoing medical and related expenses pursuant to section 60 of the 1987 Act. The Appellant succeeded in obtaining the order pursuant to section 60 which he sought. He also succeeded in obtaining an ongoing award of weekly payments from 1 November 2005, on a continuing basis, pursuant to section 40 of the 1987 Act.
The preponderance of the medical evidence favoured the proposition that, if the Appellant was incapacitated, that incapacity was partial. There was no evidence to support an award of weekly compensation pursuant to section 38, as if his incapacity were total. The Appellant’s legal representative did not address the Arbitrator on the basis section 38 had application. Accordingly, assuming the Appellant succeeded in his claim for weekly compensation, his entitlement was going to require assessment under section 40 of the 1987 Act. Thus, the only topic on which the Appellant could realistically seek to challenge the Arbitrator’s award, is quantification of the award pursuant to section 40.
The Arbitrator referred to the decision of the Court of Appeal in Mitchell v Central West Area Health Service (1997) 14 NSWCCR 527. He then noted the weekly sum the Appellant would have been earning but for injury was agreed at $868.00. This represented the upper limb of the section 40 equation, applying section 40(2)(a) (at [51]). It was then necessary that he assess the lower limb of the section 40 equation, pursuant to section 40(2)(b). As the Appellant was not actually earning during the period in issue, this involved an assessment of his ability to earn in some suitable employment. He referred to a report of Mr David Brown, in the Respondent’s case, which set out a number of occupations which arguably would represent suitable employment. The Arbitrator stated that, having regard to all of the evidence in the matter, he did not accept the duties of a welder were suitable. He regarded jobs such as delivery driver, taxi driver, driving instructor and sales assistant as representing suitable employment. He noted the Appellant would have difficulties in working as a driving instructor, as that occupation required him to have a motor vehicle less than two years old, which he could not afford. He then found the work of a delivery driver would be suitable. He accepted evidence in the report of Mr Brown, that the average weekly full-time income of a delivery driver was $681.00.
Having found the Appellant’s ability to earn in some suitable employment, the Arbitrator calculated the difference between the upper and lower limbs of the section 40 equation as $187.00, concluded there was no need to reduce that figure for discretionary factors, and made an award in the sum of $187.00 pursuant to section 40.
There was no error in how the Arbitrator went about the function required of him, in calculating the Appellant’s entitlement pursuant to section 40.
The Appellant seeks to challenge the finding of fact by the Arbitrator that work as a delivery driver represented ‘suitable employment’ within the meaning of section 40(2)(b). In his submissions he makes factual assertions that such work would involve loading and unloading of goods, which would “aggravate my injury”. He says the work of a driving instructor would be more suitable. He also asserts he is not capable of working full-time. He also seeks to rely upon fresh evidence, being a report of his general practitioner Dr Young, dated 20 June 2006, which says in that doctor’s opinion the Appellant “is not suitable to work as delivery driver which requires lifting objects and loading goods in and out of the van”. The Appellant also asserts the Arbitrator erred in finding the Appellant had no dependants, when in fact there were three dependant children.
Having regard to the quantum of the section 40 award assessed by the Arbitrator, the point about dependency would not affect the result.
As regards the new evidence, its use would require leave pursuant to section 352(6) of the 1998 Act. Practice Direction No 6 provides that in general, this will only occur where the person seeking to introduce such evidence can demonstrate that it could not reasonably have been obtained and used in the proceedings before the Arbitrator, and that failure to permit its use would cause substantial injustice. The report of Mr Brown, setting out pay rates for occupations which were asserted by the Respondent to be suitable, was attached to an Application to Admit Late Documents lodged 21 March 2006. It is difficult to conceive of a reason why medical evidence dealing with the suitability (or otherwise) of occupations described in that report, could not have been obtained for use in the proceedings before the Arbitrator. Furthermore, failure to permit the use of the report of Dr Young dated 20 June 2006 would not cause substantial injustice. The Arbitrator had the benefit of a considerable body of medical evidence, on both sides of the record, and the finding he made, regarding the Appellant’s ability to earn in some suitable employment, was supported by the medical evidence overall. The use of a further short report from the Appellant’s general practitioner would not much add to the picture presented by the medical evidence overall.
The submissions by the Appellant, that the work found by the Arbitrator to represent his ability to earn in some suitable employment is not suitable, as it would aggravate his condition, do not add significantly to the overall evidence. The function of a Presidential member on review is described by Fleming DP in Babylon Property and Cleaning Services Pty Ltd v Hormoz [2005] NSWWCCPD 21:
“14. The consideration of the evidence and the weight to be attached to the evidence is entirely a matter for the Arbitrator. In the absence of demonstrable error by the Arbitrator in arriving at the decision it should not be disturbed. Presidential review (pursuant to section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’)) is not a rehearing where a matter is heard de novo based on all of the evidence available at a later time (Coal & Allied Operations Pty Limited v Australian Industrial Relations Commission (2000) 203 CLR 194; Builders Licensing Board v Sperway Constructions (Syd.) Pty Ltd (1976) 135 CLR 616).

15. The errors alleged by the Employer are largely matters of discretionary judgement by the Arbitrator, on the basis of his view of the evidence before him. As with any exercise of discretion by an administrative decision maker, this discretion must be exercised lawfully and fairly, taking into account the scope of the discretion and the objects of purpose for which it is conferred. It is only where the Arbitrator can be said to have failed to exercise his discretion fairly and according to law that his decision should be overturned. This occurs where the Arbitrator has: acted upon a wrong legal principle; allowed irrelevant considerations to influence the decision; made a material mistake as to the facts or 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, National Roads and Motorists’ Association Ltd [2003] FCAFC 206 at [21] to [21]).”

In my view the reasoning and fact finding by the Arbitrator does not disclose error which would be subject to correction on review. The finding he made regarding the Appellant’s ability to earn was amply supported by the medical evidence; the finding is within the restrictions placed upon the Appellant by Dr Higgs in his medical assessment certificate of 15 March 2006, which was utilised in the Appellant’s case.
The balance of the Appellant’s submissions go to his alleged deception by the Respondent and its solicitors, regarding the offer of retraining, and to his desire for retraining. Whilst these may be matters of concern to the Appellant, they are not relevant to the question of whether the appeal has reasonable prospects of success.
For the foregoing reasons, I am of the view the Appellant’s appeal does not have any reasonable prospects of success. Accordingly, even if the Appellant’s assertions regarding the events which led to the appeal being out of time are accepted, it would not be in the interests of justice that I extend the time in which the appeal can be made, pursuant to Part 16 rule 2 (11). I decline to make the extension of time sought by the Appellant.

DECISION

Leave to appeal is refused.

COSTS

I make no order as to costs of the appeal.

Michael Snell
Acting Deputy President
7 December 2006

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

ASSOCIATE