Long v Dragon Medics Pty Ltd T/A Cockburn Medical Centre
[2022] WADC 124
•23 DECEMBER 2022
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: LONG -v- DRAGON MEDICS PTY LTD T/A COCKBURN MEDICAL CENTRE [2022] WADC 124
CORAM: BLACK DCJ
HEARD: 3 NOVEMBER 2022
DELIVERED : 23 DECEMBER 2022
FILE NO/S: APP 42 of 2022
BETWEEN: LJILJANA LONG
Appellant
AND
DRAGON MEDICS PTY LTD T/A COCKBURN MEDICAL CENTRE
Respondent
ON APPEAL FROM:
Jurisdiction : WORKERS' COMPENSATION ARBITRATION SERVICE
Coram: ARBITRATOR FLETCHER
File Number : A102326
Catchwords:
Error of law - Consequence of wrong issues considered by arbitrator
Legislation:
Workers' Compensation and Injury Management Act 1981 (WA)
Result:
Leave to appeal granted on ground 1
Unnecessary to decide ground 2
Appeal allowed
Matter remitted for arbitration before a different arbitrator
Representation:
Counsel:
| Appellant | : | Mr M J Lourey |
| Respondent | : | Mr J J Dyson |
Solicitors:
| Appellant | : | Chapmans Barristers & Solicitors |
| Respondent | : | McCabes |
Cases referred to in decision:
BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250
Craig v South Australia [1995] HCA 58; 184 CLR 163
Marks v Coles Supermarkets [2021] WASCA 176
Napier v BHP Billiton (Worsley Alumina) Pty Ltd [2015] WASCA 230; 49 WAR 243
Pacific Industrial Co v Jakovljevic [2008] WASCA 60
BLACK DCJ:
Introduction
On 15 July 2020 the appellant, a registered nurse, sustained a low back injury while working at the respondent's business, namely the Cockburn Medical Centre.
The appellant suffered the injury in the course of conducting a health assessment interview with an elderly patient. It appears that she made a sudden movement to either stop or catch a patient from falling.
The injury was to the appellant's lower back in the form of a protrusion to her L5/S1 disc (the injury). The injury was described in the Form 150 application as 'back pain with right radiculopathy sudden movement to stop/catch a patient falling'.[1]
[1] Appellant's appeal book dated 10 October 2022, page 2.
At the time of sustaining the injury, the appellant suffered from a pre‑existing, long standing, lower back degenerative condition.
The appellant claimed statutory compensation benefits from the respondent on or about 29 July 2020 and the respondent, through its insurer, accepted liability in relation to the injury on 14 September 2020.[2]
[2] Appellant's appeal book dated 10 October 2022, page 108.
The appellant then began to receive weekly payments of compensation and payment of medical and other expenses pursuant to cl 18 sch 1 of the Workers' Compensation and Injury Management Act 1981 (WA) (the Act).
These payments continued up until around April 2021. In mid‑April 2021, the appellant's then treating specialist, Dr Miles, recommended that the respondent's insurer fund spinal surgery, namely an L5/S1 anterior lumbar interbody fusion/fixation.[3]
[3] Appellant's appeal book dated 10 October 2022, Exhibit A30, item 4.
By this time the payments made by the respondent had exhausted the prescribed amounts allowed for under cl 17(1) of the Act.
The appellant applied under cl 18, cl 18A(1AA), cl 18A(1) and cl 18A(1a) of sch 1 of the Act seeking an extension of the 'prescribed amount' under cl 17(1) for the 'reasonable expenses' incurred and likely to be incurred in relation to the injury.
The respondent declined to extend the prescribed amount and the matter was listed for conciliation.
The matter failed to resolve at conciliation and so the matter was remitted to an arbitrator.
The dispute proceeded to arbitration on 14 December 2021 and on 9 June 2022 the arbitrator delivered reasons in writing for dismissing the appellant's claim.
By notice of appeal dated 5 July 2022, the appellant seeks leave to appeal the decision of the arbitrator pursuant to s 247 of the Act in relation to two contended errors of law.
The respondent opposes the appeal.
Nature of appeal
Section 247 of the Act relevantly provides that where written reasons for an arbitrator's decision under part XI in respect of a dispute given to a party to the dispute, the party may, with the leave of the District Court, appeal to the District Court against the decision. The District Court is not to grant leave to appeal unless a question of law is involved.
Subject to the grant of leave to adduce additional evidence under s 247(6) of the Act, the appeal to the District Court must be resolved by reference to the material before the arbitrator.
The District Court's powers include the power to quash the arbitrator's decision either with or without substituting any decision that should have been made in the first instance.
There is no express power of the District Court to remit a matter to an arbitrator, or to a different arbitrator, for a further or substituted hearing. However, such an order might be made as a 'further or other decision as to costs or otherwise, as the District Court thinks fit', under s 247(7)(b) of the Act. It is in this context that s 247(5) of the Act provides that an 'appeal under this section is to be by way of review of the decision appealed against'.[4]
[4] Marks v Coles Supermarkets [2021] WASCA 176 (Marks) [100] - [104].
The 'review' required by s 247(5) of the Act is in the nature of an appeal by rehearing. It is not sufficient to satisfy the District Court judge that a decision other than that made by the arbitrator is correct and preferable. Some material error of fact or law, or some other miscarriage of justice, must be established.[5]
[5] Pacific Industrial Co v Jakovljevic [2008] WASCA 60; Marks.
Arbitration
The parties had identified the issues for consideration by the arbitrator to be:
(a)whether the injury sustained by the appellant on 15 July 2020 was causally linked to the surgery procedure performed by Dr Miles in May 2021; and
(b)whether the Dr Miles surgery, if causally linked to the injury, and the outstanding medical and travel expenses were 'reasonable expenses' within the meaning of that phrase in cl 17(1) of the Act as construed in Napier v BHP Billiton (Worsley Alumina) Pty Ltd.[6]
[6] Napier v BHP Billiton (Worsley Alumina) Pty Ltd [2015] WASCA 230; 49 WAR 243 (Napier).
What was not before the arbitrator was any claim for the earlier two surgical procedures performed by Dr Kern. No challenge to those procedures had been made by the respondent and, in particular, the causal link between those procedures and the injury was not in dispute. Those procedures had been paid for by the insurer by the time of the arbitration after the respondent had accepted liability.[7]
[7] Appellant's appeal book dated 10 October 2022, pages 77 - 79.
The issue that was said to be in dispute for which arbitration was clearly identified at page 2 of the application as follows:[8]
Payment of medical and other expenses -
1.Pursuant to subclause 1 and/or 1(a) of clause 18A of schedule 1 of the Act, continuing clause 17 expenses [any] in any event, an additional sum sufficient for recommended treatment that is related to the 15 July 2020 injury, including spinal fusion surgery on 4 May 2021 as recommended by the applicant's specialist and reasonable incidental treatment.
2.The cost of this application and C102326.
3. Details of medical/hospital/other expenses sought:
Including but not limited to surgery costs, medications, and rehabilitation.
[8] Appellant's appeal book dated 10 October 2022, page 136.
The arbitrator, however, identified the issues to be determined as being:
(a)the nature of the compensable injury sustained by Ms Long on 15 July 2020.
(b)whether the medical and travel expenses incurred in treatment of the injury sought by Ms Long under the extension were reasonable expenses within the meaning of that phrase in cl 17(1) of the Act as construed in Napier;[9] and
(c) described the claim for the extension as comprising of the expenses associated with the two surgeries performed by Dr Kern on 7 September 2020 and 6 October 2020 and the surgery performed by Dr Miles as well as various other expenses.[10]
[9] Napier.
[10] Arbitrator's decision AA102326 dated 9 June 2022 [5], [8].
The arbitrator summarised his findings on these issues as follows.[11]
1.The appellant failed to discharge her onus to establish that the expenses incurred for treatment of the injury under the first, second and third surgical procedures were causally connected or related to the compensable injury as required under the first limb of the Napier test.[12]
2.The application should therefore be dismissed.
[11] Arbitrator's decision AA102326 dated 9 June 2022 [9] - [12].
[12] Napier.
This finding plainly reveals the arbitrator's error. The first and second surgeries were not in issue at the arbitration. Accordingly, the arbitrator made findings about matters that were not before him.
Further, the finding of the arbitrator that the surgical procedures performed by Dr Kern and the associated treatment costs of those procedures 'related to her non‑compensable degenerative condition and/or L5/S1 disc protrusion' was a finding that was contrary to the position of the parties on that issue.
This resulted in the arbitrator:
(a)deciding issues that were not in fact before him;
(b)making findings that contradicted the position of both parties to the arbitration; and
(c)depriving the appellant of natural justice.[13]
[13] Section 188 of the Act: 'An arbitrator is bound by rules of natural justice'.
Error of law
In BHP Billiton Iron Ore Pty Ltd v Brady,[14] Pullin JA (with whom Wheeler JA agreed) held:
… To establish that there is a 'question of law' involved it is necessary to show that an error of law or an error of mixed law and fact has occurred.
[14] BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250 [3].
His Honour also held at [15] that a decision does not 'involve' an error of law 'unless the error is material to the decision in the sense that it contributes to it so that, but for the error, the decision would have been, or might have been, different.
Relevant to this case is whether the consideration of a wrong issue or asking the wrong question by the arbitrator amounts to an error of law.
In Craig,[15] Brennan, Deane, Toohey, Gaudron and McHugh JJ held that if an administrative tribunal falls into an error of law which causes it to identify a wrong issue or to ask itself a wrong question and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.
[15] Craig v South Australia [1995] HCA 58; 184 CLR 163 (Craig) [179].
Appeal notice
The appeal notice contains two proposed grounds of appeal.
Ground 1 asserts an error in law by failing to interpret and/or properly apply the relevant provisions of the Act. This was particularised as the arbitrator going behind the injury for which liability had already been accepted and determine the nature of that injury for himself. This was contended to be an error which was then compounded by the arbitrator misunderstanding and misapplying the decision of Napier and failing to apply the proper legal test.
Ground 1 shifted in focus during the course of the hearing to be primarily relating to the determination of an issue for which liability had already been accepted.
Ground 2 asserts an error in law by the arbitrator accepting the tender of the medical report of Dr Wong dated 6 December 2021 into evidence in circumstances where the appellant contended that she had objected to that tender given that the respondent had refused to make Dr Wong available at the hearing on 14 December 2021 for cross‑examination. Accordingly, it was said that the appellant had been denied procedural fairness and the document was in any event inadmissible and unreliable.
Ground 1
At [9] of the arbitrator's reasons for decision, the learned arbitrator found as follows:
For reasons set out further below I am of the view that Ms Long's application must be dismissed on the ground that the evidence upon which she relies is insufficient to discharge the onus upon her to establish to the requisite standard that the expenses incurred for treatment of an L5/S1 disc protrusion under the first, second and third surgical procedures bear the necessary causal 'connection or relationship' to the compensable injury sustained on 15 June 2020 as required under the first limb of the Napier Test.
The first and second surgical procedures were not the subject of the dispute before the arbitrator.
The statutory expenses were paid up to mid-April 2021[16] which was about the same time as the treating specialist, Dr Miles, requested the insurer's approval to proceed with the surgery that ultimately took place on 4 May 2021.
[16] Transcript of proceedings Long v Dragon Medics Pty Ltd T/A Cockburn Medical (District Court of Western Australia, APP 42/2022, Black DCJ, 3 November 2022), 17 (herein referred to as 'ts').
It was clear that the respondent through its insurer had continued to pay for all of the procedures up until this point.
To make findings in relation to matters that were not before him, particularly where those findings completely contradicted the position advanced both by the appellant and respondent at the arbitration, is an error of law.
As stated in Craig,[17] to identify the wrong issue or ask the wrong question amounts to an error of law in that such an error of law is a jurisdictional error which will invalidate any order or decision of the tribunal.
[17] Craig [179].
The respondent argued that a consideration of the wrong issues in these circumstances does not detract from the reasoning and decision with respect to the issues that were before him. It was contended in oral submissions that I should effectively excise the irrelevant aspects of the decision and uphold what remained.
I note that while the Act does entitle the arbitrator to consider matters including causation afresh, he is obliged to deal with the matters that have been put before him for resolution. In my view it is not possible to simply sever the findings made in error and somehow preserve the balance of the decision. This is particularly so in circumstances where he reached a finding as to causation for the issues not before him that was contrary to the agreed position of the parties.
The respondent conceded the following:
A finding of fact can't be overturned, but I appreciate that if the findings of fact are not relevant or shouldn't have been made, then that may give rise to an error.[18]
[18] ts 85.
The respondent's ultimate position on this point was:
I accept that the fact that those surgeries [namely the first and second surgical procedures] were paid for may have been relevant, but … it doesn't disturb the arbitrator's findings as to the nature of the injury, the work injury, and whether or not the symptoms had a required connection.[19] …
[19] ts 93 - 94.
My findings
The arbitrator misunderstood the issues for which he was required to decide. He made findings regarding two surgical procedures that were not in fact before him and reached a conclusion about them that was contrary to the position that had been taken by the parties.
This error was a jurisdictional error of law. It also gave rise to a denial of natural justice as the appellant had not understood that there were any issues to be determined regarding the Dr Kern surgeries.
The fact that the wrong issues were interspersed with the correct issues gives rise to findings made in error.
There was effectively a concession by the employer for the purposes of the arbitration that the two surgeries performed by Dr Kern were connected causally to the injury given they had been paid for after liability was accepted.
In all the circumstances I find that the arbitrator erred in law when he made findings about matters that were not before him and accordingly the appeal is allowed.
I order that the matter be remitted to a different arbitrator for determination.
It is unnecessary for me to reach any findings with respect to ground 2. If I had been required to consider this ground, I would be unlikely to have granted leave.
Orders
1.Leave is granted on ground 1.
2.The appeal is allowed.
3.This matter is remitted to Workcover WA for redetermination by a different arbitrator.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
MS
Judicial Support Officer
23 DECEMBER 2022
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