Kahloo v Glenidle Pty Ltd
[2006] NSWWCCPD 221
•8 September 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Kahloo v Glenidle Pty Ltd [2006] NSWWCCPD 221
APPELLANT: Mohammed Kahloo
RESPONDENT: Glenidle Pty Ltd
INSURER:CGU Workers Compensation (NSW) Ltd
FILE NUMBER: WCC7670-05
DATE OF ARBITRATOR’S DECISION: 30 September 2005
DATE OF APPEAL DECISION: 8 September 2006
SUBJECT MATTER OF DECISION: Fresh evidence on appeal; admission of late documents at arbitration; Rule 40 Workers Compensation Commission Rules 2003; procedural fairness
PRESIDENTIAL MEMBER: Acting Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION: Appellant: Buttar Caldwell & Co
Respondent: Sparke Helmore
ORDERS MADE ON APPEAL: Time to appeal is extended until 3 November 2005.
Paragraphs 1 and 2 of the Arbitrator’s decision of 30 September 2005 are revoked and the following order made:
“The matter is remitted to a different Arbitrator pursuant to section 352 of the Workplace Injury Management and Workers Compensation Act 1998 for determination in accordance with this decision.”
The Respondent Employer is to pay the Appellant Worker’s costs of the appeal.
The costs of the first Arbitration hearing are to follow the result of the second Arbitration.
BACKGROUND TO THE APPEAL
On 3 November 2005 Mohammed Kahloo (‘the Appellant Worker/Mr Kahloo’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 30 September 2005.
The Respondent to the Appeal is Glenidle Pty Ltd (‘the Respondent Employer/Glenidle’).
Mr Kahloo was born in Pakistan on 10 October 1967 and came to Australia on 14 October 1995. In January 1996 he moved to Leeton where he started work as a farm labourer. He started work with Glenidle as a farm labourer at its vineyard at Yenda in New South Wales. His duties were heavy and physical and included post knocking, tractor driving, lifting poles weighing up to 60 kilograms, lifting and carrying bags weighing approximately 50 kilograms.
In 2001 he noticed neck pain. On 22 February 2002 he climbed onto the side of a truck to spread a sachet of sulphur onto the back of the truck when he sustained injury.
As a result of his injuries he ceased work and consulted his general practitioner, Dr Richards, on 25 February 2002. He filed an Application to Resolve a Dispute (‘the lump sum claim’) in the Commission on 29 September 2003 seeking lump sum compensation pursuant to section 66 of the Workers Compensation Act 1987 (‘the 1987’) in respect of an alleged whole person impairment of 35% as a result of injuries to his neck, back, left shoulder and lower limbs. He also claimed compensation in the sum of $33,000.00 under section 67 of the 1987 Act. This claim was settled on 15 February 2005 for 11% whole person impairment as assessed by Dr Beer, Approved Medical Specialist (‘AMS’), plus $14,000.00 for pain and suffering. The settlement was reached after an appeal to a Medical Appeal Panel was dismissed on 16 December 2004. In that appeal the Appellant Worker sought unsuccessfully to rely on ‘fresh evidence’ in the nature of medical reports alleging that he had developed type 2 diabetes (‘T2D’) as a consequence of his orthopaedic injuries. The most relevant of the medical evidence sought to be relied on was a report from Dr Garvey, general and endoscopic surgeon, dated 26 May 2004.
On 7 December 2004 the Appellant Worker’s solicitors wrote to CGU Workers Compensation (NSW) Ltd (‘CGU’) claiming lump sum compensation under section 66 of the 1987 Act in the sum of $6,250.00 in respect of a 5% whole person impairment as a result of having allegedly developed T2D as a direct result of his physical injuries. The claim was supported by the report from Dr Garvey of 26 May 2004 which was served with the letter of claim. The claim was denied but the date of the denial is not known.
A further Application to Resolve a Dispute (‘the Application’) was registered with the Commission on 24 May 2005 alleging injury to the neck, back, left shoulder, right shoulder, lower limbs, depression, loss of sexual function and “type 2 diabetes mellitus” said to have resulted from the injury at work on 22 February 2002. The Respondent Employer filed a Reply on 10 June 2005 disputing that Mr Kahloo’s diabetes was either caused or contributed to by the injury on 22 February 2002 and denying he suffered from any permanent impairment. The Reply did not attach any documents but stated that a medical appointment was “to be arranged”. The reason given for the delay in arranging a medical appointment was that enquiries were being made to ascertain if there were any WorkCover trained endocrinologists (Respondent Employer’s submissions, paragraph 10).
On 15 June 2005 the Respondent Employer notified the Appellant Worker of an appointment with Dr Steinbeck, consultant physician general medicine – endocrinologist and diabetes. The examination took place on 28 June 2005 and the doctor’s report is dated 6 July 2005 but has date stamp on it of 1 August 2005. I assume that the report was not received by Sparke Helmore until 1 August 2005. That delay was occasioned because the doctor required certain information in the material produced in answer to the various Directions for Production that had been issued (Respondent Employer’s submissions, paragraph 11). Access to documents produced was given to the Respondent Employer from 19 July 2005, access having first been given to the Appellant Worker. The report was filed in the Commission and served on the Appellant Worker under cover of letters dated 4 August 2005.
By letters dated 28 July 2005 the Respondent Employer filed and served certain documents that had been produced by Dr Richards in answer to a Direction for Production served on him.
A teleconference took place on 1 August 2005 but I do not know what, if any, orders or directions were issued as a result of that teleconference save that the matter was listed for hearing on 29 August 2005. At that hearing the Appellant Worker objected to Dr Steinbeck’s report and the reports served on 28 July 2005 being admitted into evidence. After hearing argument the Arbitrator admitted all documents into evidence and proceeded to hear submissions from the parties’ legal representatives.
In a reserved decision the Arbitrator made an award for the Respondent Employer in respect of the claim for permanent impairment as a result of Mr Kahloo’s T2D. The Appellant Worker seeks leave to appeal that decision and to introduce fresh evidence on appeal.
LEAVE TO APPEAL
Monetary Threshold
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
The quantum in issue on the appeal is in excess of $5,000.00 and therefore the threshold in section 352(2)(a) of the 1998 Act is satisfied. No award of compensation has been made in this case but the Arbitrator’s finding would result in the Respondent Worker receiving no compensation and therefore the second limb of section 352(2) does not apply (see Mawson v Fletchers International Exports Pty Ltd [2002] NSWWCCPD 5).
Time
The appeal was initially lodged on 25 October 2005, within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act. However, the appeal was rejected by the Registry because of a failure by the Appellant Worker to attach submissions dealing with certain threshold issues.
The rejected appeal documents were received by the Appellant Worker’s solicitor on 2 November 2005 and resubmitted on 3 November 2005, by which date they were outside the 28 days set in section 352(4). The Appellant Worker seeks an extension of the time to appeal stating that had he been informed earlier of the defects in the appeal documents they could have been corrected and the appeal would have been filed in time.
The Respondent Employer makes no submissions on the question of extending the time to appeal.
An extension of time in which to appeal can be granted in certain limited circumstances. Rule 77(8) of the Workers Compensation Commission 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 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.”
In the present case I am satisfied that refusing to extend the time to appeal will result in a demonstrable and substantial injustice to the Appellant Worker. I therefore extend the time to appeal until 3 November 2005.
I grant leave to appeal.
PRELIMINARY MATTERS
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.”
In Part 2.5 of the Appeal Against Decision of Arbitrator the Appellant Worker has indicated that the appeal can be decided solely on the basis of the written application. However, in his written submissions he states that he seeks “leave to be heard through his solicitor and/or counsel to present the grounds in person and rely on fresh evidence” (Appellant Worker’s submissions, paragraph 16). No reasons are advanced as to why the grounds need to be presented ‘in person’. The appeal papers and submissions were prepared and filed by the Appellant Worker’s legal advisers. Since filing the appeal on 3 November 2005, the Appellant Worker has, through his solicitor, filed further written submissions and evidence on 19 December 2005. These submissions are comprehensive and detailed and I do not believe there is any need for an oral hearing in this case.
The Respondent Employer filed detailed written submissions on 24 August 2006 and consents to the matter being dealt with without an oral hearing.
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the Respondent Employer 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.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 30 September 2005, records the Arbitrator’s orders as follows:
“1.An award for the Respondent in respect of the claim for permanent impairment in respect of type 2 diabetes mellitus.
2.No order as to costs.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a)not referring the matter to an Approved Medical Specialist (‘AMS’) for assessment of the Appellant Worker’s whole person impairment as a result of his T2D (‘failure to refer to AMS’);
(b)admitting Dr Steinbeck’s report into evidence (‘Dr Steinbeck’s report’);
(c)relying on Dr Steinbeck’s evidence (‘medical evidence’);
(d)rejecting the evidence of Dr Garvey, an AMS, (‘medical evidence’);
(e)finding that there needed to be specific evidence of the exact weight gained by the Appellant Worker (‘factual findings’);
(f)finding there was no evidence the Appellant Worker was relatively inactive (‘factual findings’);
(g)incorrectly applying Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 (‘Makita’) (‘use of expert evidence’), and
(h)denying the Appellant Worker procedural fairness by denying him permission to rely on a report from an endocrinologist in rebuttal (‘procedural fairness’).
There is also an issue as to whether the Appellant Worker may be permitted to rely on ‘fresh evidence’ on the appeal.
FRESH EVIDENCE
‘Fresh evidence’ on appeal is governed by section 352(6) of the 1998 Act, which provides as follows:
“(6) 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 sets out the process for seeking leave of the Commission to give ‘new evidence’ on appeal. It provides as follows:
“New Evidence
Where a party seeks leave to give new evidence in relation to the decision appealed against, that party must serve a copy of the new evidence on the other parties to the dispute when serving the Application or Opposition.
In general, the Commission will allow new evidence to be introduced only where it can be demonstrated that the new evidence could not reasonably have been obtained by the party and tendered in proceedings before the Arbitrator and that failure to allow the new evidence would cause a substantial injustice in the circumstances of the individual case.”
Practice Direction No.6 also provides that if new evidence is sought to be relied upon, the Application or Opposition to the Appeal must contain:
“ -a schedule of the new evidence,
-a copy of the new evidence,
-a brief outline of the new evidence and the reasons why it was not given in the
proceedings before the Arbitrator, and
-submissions why the new evidence should be admitted.”
At the conclusion of the Arbitration hearing on 29 August 2005 the Appellant Worker wrote to the Commission on 2 September 2005 advising that Dr Steinbeck was not a “WorkCover Approved doctor pursuant to section 322” of the 1998 Act and the WorkCover Guidelines. Therefore, Dr Steinbeck’s evidence was objected to and it was submitted that the doctor’s evidence should not be relied on for the purpose of the Arbitration. As a result of that letter the matter was listed for teleconference on 20 September 2005 when further submissions were made. No transcript of that teleconference is available but it is referred to in the Arbitrator’s Statement of Reasons for Decision (‘Reasons’) at paragraphs 21 to 27 inclusive.
On 22 September 2005 the Appellant Worker again wrote to the Commission stating:
“We advise we have obtained further materials on the issue of correlation between obesity and diabetes before the Arbitrator in the form of journal articles, advice from an endocrinologist and a further report from Dr Garvey, which he has offered to prepare in rebuttal. We have requested Dr Steinbeck’s Curriculum Vitreae [sic] from the Respondent to assist him in the preparation of his report.
We request the decision in issue be kept in abeyance until the further evidence is on hand.”
This letter is date stamped by the Commission ‘23 September 2005’ with a written notation “sent copy to [the Arbitrator] 23/9/05”. I do not know if the Arbitrator received this letter as there is no reference to it in her Reasons. It is not clear if the matters raised in the letter of 22 September 2005 were raised at the teleconference on 20 September 2005, or, if they were what the response was from the Arbitrator or the Respondent Employer.
Effectively the letter of 22 September 2005 was an application by the Appellant Worker to reopen his case though it has not been expressed in those terms. No phone call was made to the Commission after the letter of 22 September 2005. The Arbitrator delivered her decision on 30 September 2005.
On appeal the Appellant Worker seeks to rely on the following ‘fresh evidence’:
· the letter from Buttar Caldwell & Co to The Proper Officer, Delegate of the Registrar Workers Compensation Commission dated 22 September 2005;
· a copy of Dr Steinbeck’s curriculum vitae;
· an article entitled ‘Genetic Studies of the Etiology of Type 2 Diabetes in Pima Indians’ by Leslie J Baier and Rober L Hanson (‘the Baier article’);
· an extract from an article from the ‘Annals of Internal Medicine’;
· a supplementary report from Dr Garvey dated 6 October 2006, and
· a report from Dr Nadia Tejani, endocrinologist and general physician, dated 4 October 2005.
The submissions in support of the application to rely on this evidence are as follows:
1.the Appellant Worker’s appeal will be prejudiced if the additional evidence is not allowed to be read since the appeal “may be considered to be a continuation of [sic] applicant’s previous appeal against a medical assessment made by an Approved Medical Specialist (WCC15504-03)”;
2.there will be no prejudice to the Respondent Employer if the documents are included but there will be substantial prejudice to the Appellant Worker if they are excluded;
3.“the balance of convenience lies against the applicant [sic]”. Presumably it was intended to submit that the balance of convenience lies with the Appellant Worker in favour of admitting the material. It is also submitted that “the WCC is set up as the friendly jurisdiction assisting the worker rather than causing prejudice to the Applicant”;
4.the principles of natural justice will be violated if the fresh evidence is not allowed since the Applicant sought leave before the final decision to have it admitted. It was foreshadowed at the teleconference and in the letter of 22 September 2005;
5.for the “entire gamut of the matter to be decided together in this second attempt and in the interest of justice, the evidence should be allowed”;
6.it will be unjust, unfair and unreasonable to refuse the evidence sought to be relied upon, and
7.the evidence of Dr Garvey was not available at the Arbitration but it was anticipated it would be available and leave was sought to adduce such evidence but no opportunity by way of adjournment was given by the Arbitrator to allow the Appellant Worker to present the evidence.
Dr Tejani’s report was attached to an Application to Admit Late Documents (‘form 2C’) filed on 19 December 2005. That form is intended for use before Arbitrators, not on appeal. Nevertheless, I have considered the application as an application to rely on fresh evidence on appeal. The only submissions in support of the admission of Dr Tejani’s report are those attached to form 2C which read:
“1.The document was not in the Applicant solicitor’s possession at the time the Application to Resolve a Dispute was filed in the Workers Compensation Commission.
2.The Applicant submits that there is no prejudice to the Respondent’s case by allowing the attached document into evidence.
3.If the document is not admitted into evidence, instructions may compel discontinuance of the current claim and the commencement of a further Application. It is more cost and time efficient to admit the late document.”
These submissions are appropriate for an application to admit late documents before an Arbitrator, but are not appropriate on an application for leave to rely on fresh evidence on appeal.
The Respondent Employer submits that:
1.Dr Steinbeck’s report was served by letter dated 4 August 2005 and the Appellant Worker had sufficient time before the Arbitration hearing on 29 August 2005 to obtain a supplementary report from Dr Garvey or request Dr Steinbeck’s curriculum vitae;
2.the articles sought to be relied on were in existence prior to the Arbitration and no explanation is offered as to why they were not obtained before the conclusion of the hearing;
3.the Appellant Worker could have discontinued the proceedings before the Arbitrator and issued fresh proceedings when the evidence was available;
4.the report of Dr Tejani supports the Respondent Employer’s position in any event;
5.the failure to call evidence at a trial does not entitle a party to re-litigate the issues, and
6.the Commission’s procedures are a ‘front loading’ system and documents in support of a claim should be filed with the Application to Resolve a Dispute.
The principles governing the admission of fresh evidence on appeal in the Commission were discussed by Deputy President Fleming in McMahon v Anthony Lagana and Joseph Lavella t/as the vessel “Nimble II” [2003] NSWWCCPD 22 where she said at [11-12]:
“11. Principles relevant to the exercise of the discretion to admit new evidence in relation to proceedings before the Commission were discussed in the matters of Ross v Zurich Workers Compensation Insurance [2002] NSW WCC PD 7, and Shipman Pty Ltd v Matters [2003] NSW WCC PD 19. Factors weighing in favour of the exercise of discretion to admit fresh evidence in an appeal against the decision of an Arbitrator in the Commission include that: (i) if the request is refused, a substantial injustice will result to the party who seeks to have the evidence admitted, Radnedge v Government Insurance Office of NSW (1987) 9 NSWLR 235, (ii) the evidence could not have been discovered, with reasonable diligence, at the time of the original proceedings, Radnedge v Government Insurance Office of NSW (1987) 9 NSWLR 235; Glover v Australian Ultra Concrete Floors Pty Ltd [2003] NSWCA 80, and (iii) the evidence is of such probative value that there is a high degree of probability that it would lead to a different outcome in the case; Greater Wollongong City Council v Cowan (1955) 93 CLR 435, Warr v Santos [1973] 1 NSWLR 432, Harrison v Schipp (2002) 54 NSWLR 738; Akins v National Australia Bank (1994) 34 NSWLR 155. 12. Factors weighing against the exercise of the discretion to admit fresh evidence in the appeal include: (iv) The interest in the finality of litigation and the importance of the ability of the successful party to rely on the outcome of the proceedings, Litynski v Albion Steel Pty Ltd (1994) 10 NSWCCR 287, (v) The prejudice, if any, that may result to the other party, particularly if the fresh evidence raises new arguments in the appeal, and (vi) The intention of the legislative scheme in relation to the nature of the proceedings.”
Applying the above principles, I am prepared to allow into evidence the letter of 22 September 2005 as it is essential to understanding the steps taken by the Appellant Worker after the conclusion of the hearing and outlines the basis of the application to reopen his case. The letter itself raises no prejudice to the Respondent Employer.
In respect of the other documents sought to be relied on as fresh evidence it is not necessary, in view of the conclusion I have reached that the Arbitrator’s decision must be set aside and remitted for a redetermination before a different Arbitrator, to reach a concluded view on the application to admit these documents. But for that conclusion, it should be noted that the application to admit fresh evidence would most likely have been refused because all of the evidence sought to be tendered as ‘fresh evidence’ could, with reasonable diligence, have been obtained at the first hearing. In such circumstances the Commission will always be loath to allow additional evidence to be introduced on a review. A review is not a second hearing (McMahon v Anthony Lagana and Joseph Lavella t/as the Vessel “Nimble II” [2003] NSWWCCPD 22). Further, to have admitted the ‘fresh evidence’ on review would, in the circumstances of the present matter, have involved a substantial prejudice to the Respondent Employer which could only have been overcome if it too was allowed to introduce fresh evidence or been allowed to cross examine Dr Tejani. Matters should be properly prepared and presented at the hearing before the Arbitrator. The Arbitration is not a ‘practice run’ in the expectation that if things do not go well then additional evidence can be presented on appeal.
Further, the Appellant Worker’s submission that the current appeal “may be considered a continuation of” the appeal from the AMS in matter WCC15504-03 is incorrect and misguided. The current matter is a separate claim alleging a separate, albeit related condition.
SUBMISSIONS AND FINDINGS
Review
The role of a Presidential Member on review has been considered in numerous cases. In Mayne Group Limited v Roberts & Faulding Health Care Pty Ltd [2005] NSWWCCPD 15 Deputy President Byron said at [39]:
“39. A Presidential Member on appeal has a specific and limited role in the review of the decision of an Arbitrator. The review is not a rehearing, nor is the Presidential Member dealing with the matter de novo, nor is he or she arriving at a fresh decision based upon 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 the Presidential Member to revoke the decision pursuant to section 352(7) of the 1998 Act and to substitute a new decision in its place, are exercisable only where it is demonstrated that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172). Alternatively, the Presidential Member may remit the matter back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions made.”
Failure to Refer to AMS
It is submitted that the Arbitrator’s decision will affect the Appellant Worker’s potential common law rights arising out of the February 2002 accident because of the thresholds that must be met before a common law claim can be commenced. That may well be correct but the issue of whether the Appellant Worker’s diabetes has resulted from his work accident is an issue to be decided by the Commission before the matter is referred to an AMS (Connor v Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2006] NSWWCCPD 124). If the diabetes has not resulted from the work injury, then there is nothing for the AMS to assess. I therefore reject the Appellant Worker’s submissions on this point.
Dr Steinbeck’s Report
There are two attacks on Dr Steinbeck’s report. First, its admissibility in circumstances where it was not attached to the Respondent Employer’s Reply. Second, the weight to be attached to it, if it was properly admitted into evidence. As to the second point, see under ‘Medical Evidence’ below.
Dr Steinbeck’s report was not attached to the Respondent Employer’s Reply. However, Rule 40 provides:
“40 Material to be lodged by respondent
(1) For the purposes of section 290 of the 1998 Act, the respondent must lodge and serve with the reply all information and documents on which the respondent proposes to rely that have not been lodged with the application to resolve a dispute in the proceedings and that are in the possession or control of the respondent at that time.
(2) Subject to subrules (3) – (5), a respondent may not in proceedings introduce evidence that has not been lodged with the application to resolve a dispute, reply or response, or as required by rule 44, in the proceedings unless:
(a) the respondent has lodged and served with the reply a statement revealing:
(i) the specific nature of the evidence, and
(ii) the reliance the respondent intends to place on the evidence, and
(iii) the reasons why the evidence is not available at the time of service, and
(iv) the time it is expected to be available, and
(b) the evidence is served on all other parties and lodged as soon as practicable after the evidence becomes available.
(3) The Commission may, for the avoidance of injustice, allow a respondent to introduce evidence that the respondent would otherwise be prevented from introducing because of the operation of subrule (2).
(4) Where a respondent wishes to rely on a document produced as required by a direction issued under section 357 of the 1998 Act, and claims that the respondent was:
(a) unaware of the relevant information in the document, or
(b) unable to obtain possession of the document,
at the time the respondent lodged the reply in the proceedings, the respondent must, as soon as practicable after becoming aware of the information, lodge and serve on all other parties to the proceedings a statement revealing:
(c) the specific nature of the information, and
(d) the reliance the respondent intends to place on the information.
(5) Without limiting subrule (3), where a respondent complies with subrule (4) in respect of any information, the Commission may allow the respondent to introduce evidence of that information.”
It is submitted that the there were no arguments raised by the Respondent Employer regarding ‘injustice’ as mentioned in sub rule 40(3) of the Rules. I do not agreed. At page five line 24 of the transcript of proceedings before the Arbitrator counsel for the Respondent Employer, Ms Wood, submitted that to not admit the report would be prejudicial and a “denial of natural justice”. When the Arbitrator questioned counsel about the alleged denial of natural justice Ms Wood said:
“Well, if you exercise your discretion not to admit the report, then the respondent is prejudiced in that it cannot answer the applicant’s case.”
In my opinion the reference to ‘natural justice’ and to ‘prejudice’ quite properly raised the issue of ‘injustice’ so as to require the Arbitrator to exercise her discretion under Rule 40(3). That is what the Arbitrator did. Her ruling was set out at page 10 line six of the transcript:
“Having regard to the fact that the report is the only specialist medical report available or filed in these proceedings in relation to the relevant area of specialist expertise upon which the respondent relies, I will in those circumstances exercise my discretion to dispense with compliance with rule 16 pursuant to rule 6(2) and exercise my discretion to allow the introduction of that report to avoid a substantial injustice so that the matter may properly be determined on its merits. Right. So anything else before we go on to the substantive matter?” (emphasis added)
Neither counsel made any further submissions on this issue.
I do not agree that the Appellant Worker was ‘ambushed’ by the admission of Dr Steinbeck’s report (see Appellant Worker’s submissions 8 December 2005 paragraphs one and two). The Appellant Worker was advised of the appointment with Dr Steinbeck by letter dated 5 June 2005. The report was served by letter dated 4 August 2005. If the Appellant Worker was prejudiced, as is now claims, he could have either sought an adjournment or discontinued the Application. Neither step was taken by the Appellant Worker’s counsel.
The Appellant Worker’s reference to section 290 ignores the fact that the obligation under Rule 40(1) is to lodge and serve all documents “that are in the possession or control of the respondent at that time”. There can be no breach of section 290 if the document concerned was not in existence at the time the Reply was filed. Therefore, the Appellant Worker’s reliance on the maxim expressio unius persona est exclusio alterius (‘the mention of one is the exclusion of another’) is misplaced.
Next, it is submitted that in not relying on section 290 and Rule 40 the Arbitrator “subjected the Applicant to prejudice and denied him procedural fairness” (Appellant Worker’s submissions 8 December 2005, paragraph four). Reference is made to Practice Direction No. 9 which provides:
“In determining an application for leave to lodge late documents, the Arbitrator will take into consideration:
• the submissions of the parties, including, if any, oral or written objections to the grant of leave,
• the effect, if any, on the timely resolution of the dispute,
• the extent of the prejudice to the other parties, if any, that would result from granting leave,
• the requirements of the Act and the Rules, and
• the objectives of the Commission.”
In the present case the Arbitrator had regard to the above matters and, in particular, had regard to the need to avoid a substantial injustice as required by Rule 40(3). Counsel for the Appellant Worker did not submit that the admission of Dr Steinbeck’s report would cause his client any prejudice.
A further complaint is made that the Respondent Employer failed to file Dr Steinbeck’s report with form 2C. An Arbitrator has a discretion under Rule 6(2) to “on terms dispense with any of the requirements of these rules, either before or after the occasion for the compliance arises”. The Arbitrator used her discretion under this rule and gave the Appellant Worker every opportunity to be heard before doing so. Unless the proceedings are declared a nullity under Rule 6(4) a failure to comply with the Rules is to be treated as an irregularity only (Rule 6(5)).
I do not believe the Arbitrator misused her discretion to grant leave to the Respondent Employer to rely on the report of Dr Steinbeck.
Medical Evidence
The Appellant Worker relied on the evidence of Dr Garvey in a report dated 26 May 2004. He took a history of the work accident of 22 February 2002 and that in February 2004 Mr Kahloo noticed that his lips were dry, his skin was flaking and he was feeling dizzy. His weight had climbed from 96kg to 108kg and in February 2004 Dr Richards diagnosed him as having T2D. Dr Garvey also noted that Mr Kahloo’s pre injury work consisted of general farm duties which included knocking in posts, applying straining wire, driving a tractor, harvesting grapes and oranges.
Under ‘discussion’ Dr Garvey stated in bold type:
“Decreased physical activity has been shown to be an important risk factor for the development of diabetes. It is almost certain that the decline in physical activity following Mr Kahloo’s neck and back injury has resulted in weight gain, obesity, impaired glucose tolerance and diabetes mellitus.”
Under ‘opinion’ he concluded:
“Mr Kahloo’s history and examination are consistent with secondarily acquired onset (type 2) diabetes mellitus, the result of two years relative inactivity since his back injury.”
The Respondent Employer relies on the report of Dr Steinbeck dated 6 July 2005. He also had a history of the heavy work performed by Mr Kahloo prior to his injury in February 2002. Mr Kahloo told the doctor that he spent his time lying on the floor. For the purpose of preparing his report, Dr Steinbeck had access to some of Dr Richards’ notes (those covering the period 25 February 2002 to 4 August 2003), but, surprisingly, not all of them. He noted that Mr Kahloo’s weight was recorded by Dr Richards to be 103kg in February 2002 and 112kg in September 2003. The reference by Dr Steinbeck to ‘September 2003’ may be incorrect. The letter from Dr Richards to Mariette du Pereez, dietician, dated 1 March 2004 gives Mr Kahloo’s weight as 112kg.
Dr Steinbeck felt that Dr Garvey had given too simplistic an interpretation of the relationship between obesity and T2D. He noted that epidemiological studies showed that concurrently with increased population body weights and incidence of obesity there was an increased incidence of T2D. He stated that in respect of Mr Kahloo:
“There was a failure to adjust lifestyle to the decreased work activity and non work activity following the accident that led to the development of T2D to which he was predisposed no matter the lack of known family history.” (emphasis added)
He concluded his report:
“His employment led to an injury which has limited his activity and he has not countered lack of activity with reduced food intake. His activity is limited by claimed by [sic] back pain. His diabetes has a genetic component irrespective of lack of history as obesity alone does not cause diabetes.” (emphasis added)
It is not necessary for obesity to be the only cause of the diabetes for the Appellant Worker to succeed. The opinion by Dr Steinbeck that decreased work activity following the accident “led to the development of T2D” seems to me to be very similar to saying that the T2D has resulted from the work accident (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452). The question is whether there is a direct chain of causation between the injury (the fall) and the subsequent development of the T2D so that the latter can be said to have resulted from the former (Rootsey v Tiger Nominees Pty Ltd (2002) 23 NSWCCR 725 at 731). If there is a direct chain of causation then the Appellant Worker is entitled to succeed. This issue, and these authorities, appear not to have been fully considered by the Arbitrator, or the parties, and I therefore express no concluded opinion about them.
The Appellant Worker’s general attack on Dr Steinbeck’s report, given the passages I have quoted above, is surprising. Nevertheless I should deal with it. It is submitted at paragraphs five to eight inclusive of the Appellant Worker’s submissions dated 3 November 2005 that:
· Dr Steinbeck was not a “WorkCover Approved” doctor;
· he attempted to discredit Dr Garvey;
· he failed to rely on any substantive medical references to support his conclusions;
· his reference to ‘pima Indians’ and his “unscientific conclusions” showed his lack of respect “for cultural sensitivities for persons of the submission continent, bias and preconceived baseless notions”;
· relying on Dr Steinbeck’s report against that of Dr Garvey, an Approved Medical Specialist, was tantamount to “improper exercise of power” by the Arbitrator, and
· rejecting the evidence of an AMS in preference to Dr Steinbeck was “evidence of a lack of appreciation of how specialist evidence is weighed in law and suffers from errors of law”.
The above submissions are misguided, inappropriate and offensive to both the doctor and the Arbitrator. They also show a fundamental misunderstanding of the findings made by the Arbitrator. Dr Steinbeck is medical specialist who is well qualified to express an opinion on the issue the Commission has to decide. The Arbitrator correctly noted that the doctor’s lack of accreditation to assess permanent impairment did not disqualify him from providing an opinion on causation (Reasons, paragraph 25), a point conceded by the Appellant Worker. On matters of causation, being WorkCover accredited does not give a specialist’s opinion any greater weight. The reference to pima Indians is also made in the ‘fresh evidence’ the Appellant Worker has sought to rely on in this appeal. The doctor’s reference to them was relevant and appropriate. Finally, the Arbitrator did not prefer Dr Steinbeck’s evidence over Dr Garvey’s. She found that she was not satisfied, on the evidence before her, that the T2D was causally related to the February 2002 injury (Reasons, paragraph 62).
Factual Findings
The Arbitrator felt that the evidence before her was inadequate in that the Appellant Worker’s statement did not deal with his level of post accident activity. It is correct that Mr Kahloo’s statement does not deal with his level of post accident activity or his weight gain. However, the medical histories do provide evidence on this issue and that evidence is evidence of the fact (R v Welsh (1996 90 A Crim R 364 and Daw v Toyworld (NSW) PtyLtd [2001] NSWCA 25). Though it is not entirely clear, the Arbitrator appears to have incorrectly concluded that she was not permitted to consider the medical histories as evidence of the fact.
In addition, the Arbitrator stated that she had no evidence to make findings about weight gain (Reasons, paragraph 58). She states that the clinical notes of the treating practitioner would have enabled her to make such a finding. Exactly what notes from the treating general practitioner were before the Arbitrator is unclear. At paragraph 13 of her Reasons the Arbitrator states that “leave was granted to admit the documents produced under Direction by Dr Richards” and yet it seems the only documents that were actually tendered were those attached to the Respondent Employer’s letter of 28 July 2005. In any event, evidence from Dr Steinbeck and Dr Garvey confirmed that Mr Kahloo did put on weight after his accident. The only reasonable inference is that that weight gain resulted from the consequences of the work accident. Further, the Arbitrator seems to have thought that it was necessary to establish exactly how much weight the Appellant Worker gained after the accident. No evidence suggested that it was essential that the weight gain be a specific amount or percentage of total body weight before it became a factor in the development of T2D.
The Arbitrator stated that the evidence was unclear whether decreased physical activity was “of itself a risk factor for the onset of type 2 diabetes or whether it is only decreased physical activity resulting in weight gain which is the risk factor” (Reasons, paragraph 59). Dr Garvey stated that “decreased physical activity has been shown to be an important risk factor for the development of diabetes”. Given this evidence the Arbitrator’s concern on this issue was unwarranted.
Use of Expert Evidence
The Arbitrator referred to Makita at paragraph 60 of her Reasons and noted:
“Heydon JA specified that the basal principle is that what an expert gives is an opinion based on facts. Because of that the expert must either prove by admissible means the facts upon which the opinion is based, or state explicitly the assumptions as to fact upon which the opinion is based. If other admissible evidence establishes that the matters assumed are sufficiently like the matters established to render the opinion of the expert of any value even though they may not correspond with complete precision the opinion will be admissible and material.”
It is unclear how the Arbitrator applied this passage as she then states that she was unable to accept on the medical evidence before her that the injury on 22 February 2002 caused the diabetes. This seems to have been because of the lack of evidence in the Appellant Worker’s statement about his reduced activities after the accident and because of the lack of evidence about how much weight gain was necessary before it might be relevant to the development of T2D. There was other unchallenged evidence about the Appellant Worker’s reduced physical activities after the accident which might well have satisfied the Arbitrator’s concerns. The Appellant Worker submits, and I agree, that there was no need for the doctors to give evidence of a specific minimum weight gain before there could be a connection between obesity and diabetes.
As a result of the above matters the Arbitrator felt unable to accept the medical evidence before her because it was “inconsistent and lacking in detail” (Reasons, paragraph 61). In this regard the Arbitrator’s conclusion was based on an incorrect appreciation of the evidence and therefore involves an error of fact.
Procedural Fairness
This ground of appeal relates to the Arbitrator allegedly breaching the rules of natural justice in that “during the course of the proceedings the Applicant was denied permission to serve a medical report from an endocrinologist in rebuttal” (Appellant Worker’s submissions 3 November 2005, paragraph five). The Arbitration hearing concluded on 29 August 2005 and a further teleconference was held on 20 September 2005 to deal with a further objection to Dr Steinbeck’s report. It was not until the letter of 22 September 2005 that the issue of additional evidence was raised. This should properly have been raised at the hearing on 29 August 2005 or at the teleconference on 20 September 2005. The request that the “decision in issue be kept in abeyance” was inappropriate. If the Appellant Worker was seeking to reopen his case that should have been made clear in the letter and by way of a follow up phone call to request a teleconference. That was not done. None of the authorities dealing with ‘reopening’ have been cited on appeal and that omission makes it difficult to properly and fairly deal with this part of the appeal.
However, for whatever reason, the Arbitrator failed to deal with the request made in the letter of 22 September 2005. This failure is of great concern and raises a number of issues. First, the application to call evidence in rebuttal (effectively, now an application by the Appellant Worker to reopen his case) should have been made to the Arbitrator on 29 August 2005, but was not. That was a serious omission by the Appellant Worker. Second, whilst I agree that the Arbitrator was correct to use her discretion under Rule 40(3) to allow Dr Steinbeck’s report into evidence, had that report been obtained and served within the time frame envisaged by the Rules the Appellant Worker would have had more time to consider his position in what is obviously a difficult case on the issue of causation.
The Respondent Employer’s submissions on this issue state that the Appellant Worker had sufficient time between the date of service of Dr Steinbeck’s report (some time after 4 August 2005) and the Arbitration hearing on 29 August 2005 to obtain a supplementary report from Dr Garvey (Respondent Employer’s submissions, paragraph 25). That may well be correct but the time provided was limited, and it was limited because of the Respondent Employer’s default in serving Dr Steinbeck’s report late. It must be borne in mind that Dr Garvey’s report was first served, in the lump sum claim, on 8 May 2004 and served again, in the diabetes claim, on 7 December 2004. There is no evidence that CGU did anything about the diabetes claim until the Application was filed on 24 May 2005. This was a serious omission by the insurer which may well have contributed to the Appellant Worker being less prepared than he should have been at the Arbitrator hearing.
Had the Appellant Worker sought an adjournment or sought to reopen his case before the Arbitrator on 29 August 2005 that application would no doubt have been seriously considered.
CONCLUSION
In circumstances where there has been default by both parties and an incorrect appreciation of the evidence by the Arbitrator, the only proper course open is to revoke the orders made and remit the matter for a rehearing before a different Arbitrator. At the rehearing each party will be at liberty to introduce such additional evidence as may be appropriate.
DECISION
Time to appeal is extended until 3 November 2005.
Paragraphs 1 and 2 of the Arbitrator’s decision of 30 September 2005 are revoked and the following order made:
“The matter is remitted to a different Arbitrator pursuant to section 352 of the Workplace Injury Management and Workers Compensation Act 1998 for determination in accordance with this decision.”
COSTS
The Respondent Employer is to pay the Appellant Worker’s costs of the appeal.
The costs of the first Arbitration hearing are to follow the result of the second Arbitration.
Bill Roche
Acting Deputy President
8 September 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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