Maricic v Medina Serviced Apartments Pty Limited
[2007] NSWWCCPD 196
•17 September 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Maricic v Medina Serviced Apartments Pty Limited [2007] NSWWCCPD 196
APPELLANT: Jelena Maricic
RESPONDENT: Medina Serviced Apartments Pty Limited
INSURER:QBE Workers Compensation (NSW) Limited
FILE NUMBER: WCC17713-06
DATE OF ARBITRATOR’S DECISION: 21 March 2007
DATE OF APPEAL DECISION: 17 September 2007
SUBJECT MATTER OF DECISION: Section 352(8) of the 1998 Act – ‘interlocutory’; extension of time to appeal – ‘exceptional circumstances’; failure to consider relevant evidence.
PRESIDENTIAL MEMBER: Acting Deputy President Michael Snell
HEARING:On the papers
REPRESENTATION: Appellant: Petrovich Accident Lawyers
Respondent: QBE In House Legal
ORDERS MADE ON APPEAL: Time to appeal is extended to 27 April 2007.
The decision of the Arbitrator dated 21 March 2007 is revoked, and the matter is remitted to another Arbitrator for determination afresh in accordance with these reasons.
The Respondent Employer is to pay the Appellant Worker’s costs of the appeal.
BACKGROUND TO THE APPEAL
On 27 April 2007 Jelena Maricic (‘the Appellant Worker’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 21 March 2007.
The Respondent to the Appeal is Medina Serviced Apartments Pty Limited (‘the Respondent Employer’).
The Appellant Worker was born on 15 August 1960. She was schooled to an age of sixteen in Croatia, and then had limited employment as a casual worker in a fruit factory, to an age of twenty-three, when she married and commenced a family. She did not work thereafter, until coming to Australia, in August 1998. Her only employment in Australia was with the Respondent Employer, where she commenced as a casual cleaner in about 1999, working about thirty hours per week. On 30 June 2004 the Appellant Worker fell in a bathroom she was cleaning at the Respondent Employer’s Paddington Apartments. She ceased work from that day, and was paid voluntary compensation until 25 April 2005, when the Respondent Employer ceased such payments, on the basis the Appellant Worker’s symptoms were no longer the result of work injury (see letter from QBE dated 15 March 2005).
The Application to Resolve a Dispute (‘ARD’) pleaded the injury on 30 June 2004, when the Appellant Worker allegedly injured her neck, back and left shoulder. The claim was for lump sum compensation pursuant to section 66 of the Workers Compensation Act 1987 (‘the 1987 Act’) (in respect of 21% whole person impairment), together with $37,500 pursuant to section 67 (in respect of pain and suffering).
The matter proceeded to an arbitration hearing on 9 February 2007. Both parties were represented by counsel. The Appellant Worker gave some oral evidence, and was cross-examined.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 21 March 2007 records the Arbitrator’s orders as follows:
“1. Award Respondent in respect of an injury to the Applicant’s neck and left shoulder.
2. That the Registrar refer the matter to AMS for Whole Person Impairment assessment of section 66 entitlement, lumbar spine.
3. That the Respondent pay the Applicant’s costs as agreed or assessed.”
The Certificate of Determination is accompanied by Reasons for Decision. Those reasons record the Respondent Employer conceded the Appellant Worker suffered injury to her lumbar spine on 30 June 2004, but disputed she had injured her neck or left shoulder in the incident. The Arbitrator’s finding was based, in part, on a credit finding. At [63] of his Reasons, the Arbitrator noted the Appellant Worker’s evidence “in examination in chief that she broke the fall on her buttocks with her hands”, and an associated submission this was consistent with injuring the neck and left shoulder in the incident. The Arbitrator noted this version was “clearly inconsistent with the history given to Dr Stapleton”, that the Appellant Worker did not fall on her hands. The Arbitrator also referred to a delay in complaint by the worker of symptoms in her neck and left shoulder, saying “The worker did not report, as it is shown from the clinical notes, to Dr Todorovic that she has pain in her neck and left shoulder on 1 July 2004, one day after the injury. The pain in the worker’s neck and left shoulder was reported to Dr Todorovic on 27 July 2004.” (at [62]).
The Arbitrator concluded “I am not prepared to draw the inference sought by the Applicant” (at [63]). Notwithstanding how it is expressed, in context this is clearly a rejection of the Appellant Worker’s evidence regarding how she fell, and the existence of neck and left shoulder symptoms when the Appellant Worker says she first felt them.
ISSUES IN DISPUTE
The issues raised in the Application to Appeal encompass the following:
(i)The Arbitrator erred, in that he failed to consider, or properly consider, relevant evidence, being statements from the Appellant Worker’s husband (Jovo Maricic), daughter (Zorica Maricic), and work colleague (Dragica Citlak).
(ii)The Arbitrator failed to properly consider the medical evidence, in particular the notes of the general practitioner Dr Todorovic, which are said to support the contention the Appellant Worker injured her neck in the relevant incident.
(iii)The Arbitrator’s finding was against the weight of the evidence, in particular the medical evidence. Specific reference is made to the views of Drs Giblin and Todorovic. The submissions specifically refer to (and take issue with) the Arbitrator’s acceptance of a history on mechanism of injury, recorded by Dr Stapleton (qualified on the Respondent Employer’s behalf), when this conflicted with the Appellant Worker’s evidence.
The Notice of Opposition to the Appeal supports the findings made by the Arbitrator. It submits the Arbitrator had regard to all of the evidence, including the oral evidence of the Appellant Worker. It refers to conflicting versions of the mechanics of injury (particularly going to whether the Appellant Worker broke her fall with her hands), and submits the Arbitrator’s acceptance of the version recorded in Dr Stapleton’s history, was “a readily available conclusion on the evidence”.
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 both 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.
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.
An initial issue is whether an appeal can be brought at this point in time, having regard to section 352(8) of the 1998 Act. An appeal is available pursuant to sub-section 352(1) “against a decision in respect of the dispute by the Commission constituted by an Arbitrator” (emphasis added). Sub-section 352(8) was amended by the Workers Compensation Legislation Amendment (Miscellaneous Provisions) Act 2005, which commenced on 1 November 2006, and reads:
“(8) In this section, decision includes an award, interim award, order, determination, ruling and direction, but does not include any award, order, determination, ruling or direction of an interlocutory nature prescribed by the regulations.”
Clause 200B of the Workers Compensation Regulation 2003, as amended, provides “for the purposes of section 352(8) of the 1998 Act, all preliminary or interim orders, determinations, rulings and directions of an interlocutory nature are prescribed”.
The only compensation claimed in the ARD was for lump sums relating to permanent impairment and pain and suffering. The Arbitrator, in his decision, dealt solely with the question of ‘injury’, and more particularly whether the Appellant Worker injured her neck and left shoulder on 30 June 2004, in addition to the lumbar injury, which was conceded. As was noted by the Arbitrator at [9] to [10] of his Reasons, he was precluded from awarding “permanent impairment compensation or pain and suffering compensation unless the degree of permanent impairment has been assessed by an Approved Medical Specialist (‘AMS’).” He described the issue in dispute as “What parts of the body are to be included in the whole person assessment.” (at [6])
The meaning of “interlocutory” in sub-section 352(8) and Regulation 200B is undefined. In P & O Ports Limited v Hawkins [2007] NSWWCCPD 87 (‘Hawkins’) Roche DP dealt with the application of those provisions, where the issue decided by an Arbitrator, the subject of application for leave to appeal, was whether the deemed date of injury in a ‘disease’ case was before or after 31 December 2001. This dictated whether the worker’s lump sum entitlement was to be assessed on the basis of the Table of Disabilities, or whole person impairment. The Arbitrator’s finding on the point did not involve him actually awarding compensation, but affected the referral to an AMS.
I gratefully adopt the analysis by Roche DP, in Hawkins, of sub-section 352(8) and Regulation 200B. The Deputy President, at [44], concluded the arbitrator’s determination on this point was of an interlocutory nature, saying:
“The Arbitrator’s determination that the deemed date of injury was 20 July 2005 is more difficult. It amounts to a finding on a preliminary issue that is relevant to deciding if the Respondent Worker’s lump sum compensation is to be calculated under the Table of Disabilities or under the new WorkCover Guides for whole person impairment applicable to injuries sustained after 31 December 2001. The finding has not determined the parties’ rights or whether the Respondent Worker is entitled to compensation, as would be the case if a determination had been made on an issue such as injury, worker or substantial contributing factor.”
The Arbitrator’s decision in the current matter, like that in Hawkins, involved the resolution of a matter not actually involving the awarding of compensation, but affecting the nature of the referral to an AMS. On 3 August 2007 I issued a Direction to both parties, inviting them to make submissions on whether, having regard to section 352(8) of the 1998 Act, and the decision in Hawkins, leave to appeal could be granted. The time for making such submissions (after an extension granted at the request of the Appellant Worker) expired on 17 August 2007 for the Appellant Worker, and on 24 August 2007 for the Respondent Employer. The Appellant Worker lodged submissions dealing with the issue on 10 August 2007. The Respondent Employer did not lodge submissions on the topic.
The Appellant Worker submits the nature of the Arbitrator’s determination is that “the injuries determined to have been suffered as a result of the appellant’s workplace accident have been finally and bindingly determined”. Reference is made to both the decision in Hawkins, and the decision of the High Court in Licul v Corney (1976) 50 ALJR 439. I accept this submission. It is consistent with the reasoning in Hawkins. It is the nature of the Arbitrator’s decision that the Appellant Worker could no longer succeed in recovering compensation of any description, on the basis of symptoms in his neck and left shoulder, on the basis they resulted from the pleaded incident. This decision on ‘injury’ is final and binding, and should not be characterized as ‘interlocutory’. Thus section 352(8) and Regulation 200B are not an impediment to the granting of leave.
As no compensation was awarded in the Arbitrator’s decision, the amount of compensation at issue on the appeal is determined by the amount of the claim as particularized by the Appellant Worker. That sum exceeds $5.000.00, so sub-section 352(2)(a) of the 1998 Act is satisfied: Grimson v Integral Energy [2003] NSWWCCPD 29 at [30]. It is unnecessary that sub-section 352(2)(b) be satisfied, as no compensation has been awarded: Mawson v Fletchers International Exports Pty Ltd [2002] NSWWCCPD 5. Thus the requirements of section 352(2) are satisfied.
The sequence of events leading to the Application to Appeal being lodged outside the twenty-eight day period specified in section 352(4) of the 1998 Act is set out in the submissions accompanying the Appellant Worker’s application to extend time. The appeal was initially lodged on 18 April 2007, within 28 days of the Arbitrator’s decision. However it was rejected by the Registrar, due to failure to attach a copy of the Certificate of Determination, in contravention of Rule 16.2(4) of the Workers Compensation Commission Rules 2006 (‘the Rules’). It was then re-lodged, with this deficiency corrected, on 23 April 2007. Again it was rejected, this time on the basis “the certificate of reasonable prospects was unsigned”. It was ultimately lodged successfully, on 27 April 2007.
Provision for the extension of time to bring an appeal, is found in sub-rules 16.2(11) and 16.2(12) of the Rules, which provide:
“(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.”
The points made on the application to extend time are:
(i)the appeal was originally lodged within time;
(ii)the initial reason for its rejection, failure to attach a copy of the Certificate of Determination, “was an administrative oversight”;
(iii)the reason for its rejection on the second attempt to file it (failure to sign the certificate of reasonable prospects) had not been raised by the Registrar when it was rejected the first time;
(iv)the omissions that resulted in the appeal getting out of time were “of a technical nature only”, and
(v)failing to extend time would cause substantial injustice to the Appellant Worker, as she would be deprived of her appeal rights, which could be relevant to her ability to bring a claim for work injury damages.
Numerous Presidential decisions, dealing with extension of time to appeal, have applied the following passage from the judgment of McHugh J in Gallo v Dawson (1990) 93 ALR 479 (‘Gallo’):
“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)
“Exceptional circumstances” are required to enliven the discretion to extend time. The phrase is not defined. I have previously held that, where an appellant lodged its Application to Appeal out of time, due to administrative error in calculating the time in which an appeal could be brought, this was insufficient to constitute “exceptional circumstances”: Department of Corrective Services v Buxton [2007] NSWWCCPD 55. This was consistent with the approach taken by Handley ADP in Department of Education & Training v Mekhail [2006] NSWWCCPD 1. In that matter appeal documents went to the “filing section” of the Appellant’s solicitors, but were not filed immediately, resulting in the appeal being out of time by a matter of days. Handley ADP described this as “administrative error”, and held it did not constitute “exceptional circumstances”. However I found “exceptional circumstances” did exist, where an appeal was initially lodged out of time, due to misapprehension as regards the date of the Certificate of Determination: Silk v State Rail Authority of NSW [2006] NSWWCCPD 79. I recently found “exceptional circumstances” to exist, where an appeal (initially in time) was rejected due to failure to attach a copy of the Certificate of Determination, the Appellant having declined to attach an unsealed copy of that Certificate. The Commission had failed, inadvertently, to seal it: Forests NSW v Hancock No 2 [2007] NSWWCCPD 191. In Kaibau v Gillespie’s Produce & Packing Pty Ltd [2006] NSWWCCPD 168 Roche DP, extending time where an appeal, initially filed in time but rejected for procedural reasons, was then lodged out of time, said:
“In the present case the appeal was originally filed in time but was rejected because of a defect in the documentation. That defect was rectified within a few days and the appeal was filed again. The appeal raises important issues that are strongly arguable. In my opinion there will be a substantial injustice to the Appellant Worker if leave to appeal is refused.”
The Respondent Employer’s Notice of Opposition to the appeal disputes that “exceptional circumstances” are made out, disputes “demonstrable and substantive injustice” is established, and disputes the grounds of appeal demonstrate “error or unfairness”. It is not submitted there is any prejudice occasioned by the appeal being slightly out of time.
With some hesitancy, I have concluded the circumstances are sufficient to constitute “exceptional circumstances”. This is sufficient to enliven the discretion. There are factors favouring the extension of time. The appeal was only out of time by a matter of days, and the Respondent Employer does not raise prejudice as an issue. For reasons which appear below, in my view the appeal has good prospects of success, and the interests of justice require that I extend time. Time to appeal is extended to 27 April 2007 and leave to appeal is granted.
DISCUSSION AND FINDINGS
The Nature of the Review Process
In Westpac Banking Corporation v Kilby & Bananacoast Credit Union Limited [2005] NSWWCCPD 24 Byron DP said at [54]:
“As stated in South Western Sydney Area Health Service v Edmonds [2005] NSW WCC PD 18, the weight and relevance to be given to evidence before an Arbitrator is a matter in the discretion of that Arbitrator. The decision of the Arbitrator should not be overturned unless it can be demonstrated that the Arbitrator has failed to exercise that discretion fairly and according to law. This may occur when an Arbitrator has acted upon an incorrect 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, and In the Matter of National Roads and Motorists Association Ltd [2003] FCAFC 206 at [21]).
The above passage should be read subject to Aluminium Louvres & Ceilings Pty Limited v Zheng [2006] NSWCA 34, in which Bryson JA at [38] said:
“A review is a different process to an appeal and the matters which may be considered and the manner in which they may be considered are somewhat wider. See Boston Clothing Co Pty Ltd v. Margaronis (1992) 27 NSWLR 580 at 584 (Kirby P). An attack, on review or otherwise, on an Arbitrator's discretionary decision in controlling procedure may be based on the test stated in House v. R (1936) 55 CLR 499 at 504 - 505; but that is not the only basis on which the Presidential member may act. The powers of a Presidential member on review are somewhat wider and extend to power to reopen consideration of a matter of which an Arbitrator has disposed; the manner in which the powers of the Presidential member are to be exercised is itself the subject of discretion of the Presidential member.”
This passage was quoted with approval by McColl JA in South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16.
Roche DP in Combined Civil Pty Limited v Rikaloski [2007] NSWWCCPD 181 recently said:
“Before an Arbitrator’s decision will be revoked on review it must be demonstrated that it contains or has resulted from an error of fact, law or discretion. The error must be such that, but for it, a different decision should have been made (see Snow Confectionary Pty Ltd v Askin [2004] NSWWCCPD 56; Section 294 of the 1998 Act; YG & GG v Minister for Community Services [2002] NSWCA 247; Absolon v NSW TAFE [1999] NSWCA 311).” (at [21])
In The King Island Company Limited v Deery [2005] NSWWCCPD 1 Byron DP said:
“A Presidential Member on appeal has a specific and limited role in the review of a decision of an Arbitrator. The review is not a rehearing. The Presidential member is not dealing with the matter de novo and is not arriving at a fresh decision based on 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.”
The Lay Witnesses
There was no issue the Appellant Worker was involved in an incident on 30 June 2004, or that she injured the lumbar region of her back in the incident. In resisting her claim that she also injured her neck and left shoulder in the incident, the Respondent Employer raised two specific issues. It was said there was a delay in complaining of injury to these parts in the initial weeks after the incident. The Respondent Employer also challenged the mechanics of injury. The grounds of appeal, paraphrased at [9] above, take issue with the manner in which the Arbitrator dealt with these factual issues. It was after a consideration of these factual issues, the Arbitrator concluded he preferred the medical evidence adduced by the Respondent Employer, and made the finding appealed against.
Grounds of appeal (a) and (b) assert the Arbitrator failed to adequately consider evidence from the Appellant Worker’s husband Jovo Maricic, daughter Zorica Maricic, and work colleague Dragica Citlak.
The delay on the Appellant Worker’s part, in reporting symptoms in her neck and left shoulder, was part of the Arbitrator’s reasoning process, in deciding the question of injury to those parts against the Appellant Worker (see [62] of his Reasons). Implicit in this is the concept that if the Appellant Worker had injured the parts on 30 June 2004, she would have complained about them. There were various pieces of inconsistent evidence regarding when such symptoms commenced.
The Appellant Worker’s statement of 4 October 2006 says after falling she initially felt pain in her “lower back and backside” (at [20]). It goes on to describe seeing Dr Todorovic on the following day, 1 July 2004, and says “At this time I also had pain in my neck and left shoulder but I did not tell Dr Todorovic” (at [27]). She describes seeing Dr Todorovic thereafter on 8 July 2004, and then on a weekly basis, until she first mentioned her neck and left shoulder complaints to him on 27 July 2004 (at [32] to [33]). She explains this delay on the basis she was initially more concerned about her back, and thought the neck and left shoulder would settle down, but instead they gradually got worse (at [29] to [30]).
Notes from the practice of Dr Todorovic were annexed to the Respondent Employer’s Reply. The dates are partly cut off in the copy, however they do indicate the neck and left shoulder are not recorded as a source of complaint, until the last consultation which occurred in July 2004. This is the fourth or fifth consultation recorded after the date of accident. It records “Neck pain over the last three weeks”. The notes are not easily legible, and there is not a mention at that time, I can confidently detect, of the left shoulder. Certainly “both arms” are mentioned by the earliest consultation in August 2004. The notes are generally consistent with the Appellant Worker’s statement that she did not mention these matters until late July 2004.
The Appellant Worker says she first saw Dr Giblin, orthopaedic surgeon, on 2 August 2004. His report of that date, to Dr Todorovic, recorded a history of neck pain commencing “a week after” the accident. It does not mention shoulder pain. On 2 September 2004 Dr Giblin reported “She complains today particularly about an inability to lift up her arms because of shoulder pain much worse on the left than the right”. He noted “Clinically she has some early subdeltoid impingement.”
On 30 September 2004 Dr Teychenne, neurologist, reported a history “A week after the injury on the 30th June 2004 she noted neck pain.”
Dr Muratore, physician saw the Appellant Worker at the insurer’s request on 8 March 2005. He recorded a history of “left shoulder pain which, she at first stated, commenced two weeks post injury and later in the consultation she informed me that she has had bilateral shoulder pain for approximately two years.” He did not actually record a history of neck injury, although examined the neck, and noted some complaints. Dr Khan, surgeon examined the Appellant Worker at the insurer’s request on 31 July 2006, and recorded “she also developed pains in the left shoulder and neck after the fall”.
Although the Arbitrator did not refer to it, the Appellant Worker’s claim form dated 9 July 2004 was attached to the Reply, and described the “body parts” affected by the fall as “Lower back – bottom”.
Historical inconsistencies are apparent. Complaints of neck and left shoulder problems are not documented until about late July/early August 2004, approximately four weeks post accident. The histories at that stage suggest neck complaint commenced one week post accident. The Appellant Worker, in her statement, said such complaints were present from when she first consulted Dr Todorovic on 1 July 2004, the day following the accident. For whatever reason, the Appellant Worker is not a good historian. Language may be a factor. She sees doctors with interpreters sometimes described as Serbian (Drs Muratore and Khan), and sometimes Croatian (Dr Stapleton). Dr Giblin on 2 September 2004 described her as attending “with her interpreter friend again”. I do not wish to overstate this as a possible explanation. The Appellant Worker, in her statement, does not refer to difficulties with interpreters. Clearly any other reliable evidence, regarding the onset of these complaints, was highly relevant.
Attached to the ARD were statements of the Appellant Worker’s husband, daughter and mother-in-law, and a work colleague Ms Citlak. The mother-in-law’s statement is of little relevance to the issue, as she returned from overseas in September 2004. She says on her return the Appellant Worker described injuring “her back, neck and left shoulder”.
The husband and daughter both relate speaking with the Appellant Worker on the evening of her fall, and being told her neck and left shoulder were a source of complaint, in addition to her back.
Ms Citlak, like the Appellant Worker, was a cleaner with the Respondent Employer, and was working with the Appellant Worker on 30 June 2004. The relevant apartment had two bathrooms. Ms Citlak says she was cleaning one, and the Appellant Worker the other. Ms Citlak said she heard the Appellant Worker calling her, went to the bathroom in which the Appellant Worker was working, and found her on the floor, half inside the shower. She helped her up, left her in a chair, and went to tell the manager and his wife (Mr and Mrs McNicholl). She said the three of them returned to find the Appellant Worker still sitting in a chair. “Jelena complained that her back was very sore and she couldn’t stand up. She also said she had pain in her neck and shoulder.” (at [20]). The statement goes on to describe Mr McNicholl giving the Appellant Worker “an asprin or something”, and Mr and Mrs McNicholl then “helped her down to his car and he then drove her to Edgecliff Medical Centre”. (at [21]).
This statement of Ms Citlak formed part of the ARD, served on the Respondent Employer and its insurer (according to the Certificate of Service) on 24 November 2006. No material was adduced on the Respondent Employer’s behalf, to refute Ms Citlak’s statement. The statement not only says the Appellant Worker complained of neck and shoulder symptoms shortly after the fall, it infers such complaint occurred in the presence of the manager of the Respondent Employer’s Paddington Apartments, and his wife.
The Arbitrator described the various statements referred to above, as being taken into account in making his determination (at [14] of his Reasons). A submission on the Appellant Worker’s behalf, that Ms Citlak corroborated neck complaint on the date of accident, was noted by the Arbitrator at [52] of his Reasons.
The Arbitrator was not, of course, obliged to accept the evidence of the lay witnesses, including Ms Citlak. However the evidence of these witnesses, if accepted, would
necessarily lead to the conclusion the Appellant Worker was complaining of neck and
shoulder symptoms on the date of her fall. This clearly would render more plausible the Appellant Worker’s statement that such symptoms were present from when she first
consulted Dr Todorovic, and would render the gap in complaint, described at [62] of the Reasons, as being of little significance.
It may be the statements of the Appellant Worker’s relatives would not be regarded as overly persuasive, given their relationship to her. However this did not mean such evidence should be rejected as a matter of course.
The same comment could not be made about the statement of Ms Citlak, who was unrelated to the Appellant Worker, although she described having become friends through them working together ([6] of her statement). The only ongoing contact between Ms Citlak and the Appellant Worker, according to Ms Citlak’s statement, was seeing her “occasionally at the local shops” ([22] of her statement). Ms Citlak’s statement was apparently credible, and was not contradicted by any material from Mr and Mrs McNicholl. The failure to adduce any evidence from Mr and Mrs McNicholl was unexplained by the Respondent Employer.
The Arbitrator noted the existence of the statements, and a submission by the Appellant Worker going to the statement of Ms Citlak. The Arbitrator did not say that he rejected the evidence of any of these lay witnesses. However the Reasons are effectively silent as regards the significance (or lack of it) of this lay evidence. The Arbitrator’s Reasons suggest the gap in complaint of neck and shoulder symptoms, to Dr Todorovic, was a factor in his preference for the evidence (I infer medical evidence) of the Respondent Employer (at [62] to [65]). Acceptance or rejection of these lay witnesses was required, to determine whether there was in fact a significant delay in the onset of neck and left shoulder symptoms after the fall.
Accordingly, in my view the first two grounds of appeal are made out, that the Arbitrator failed to consider or properly consider the evidence of Ms Citlak, together with the Appellant Worker’s husband and daughter. This failure has the capacity to affect the result.
The grounds of appeal also challenged the Arbitrator’s decision regarding the mechanics of injury, and the extent of medical treatment undergone by the Appellant Worker in respect of her neck and left shoulder. In view of the decision I have reached regarding the first two grounds of appeal, it is unnecessary I deal with these other grounds.
DECISION
The Arbitrator made his decision after hearing short evidence from the Appellant Worker, both in chief and cross-examination. I have not had the benefit of hearing the Appellant Worker give evidence. In addition, there is a difficulty with the transcript from the arbitral hearing. Both the Appellant Worker’s evidence, and the submissions, are incompletely transcribed. Accordingly it would be inappropriate for me to re-determine the matter. The appropriate order is that I revoke the decision of the Arbitrator dated 21 March 2007, and remit the matter to another arbitrator for determination afresh in accordance with these reasons.
COSTS
The Respondent Employer is to pay the Appellant Worker’s costs of the appeal.
Michael Snell
Acting Deputy President
17 September 2007
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.
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