Marks v Ricegrowers' Co-operative Ltd - [2006] NSWWCCPD 46

WORKERS COMPENSATION COMMISSION

APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Marks v Ricegrowers’ Co-operative Ltd [2006] NSW WCC PD 46
APPELLANT:  Daniel Thomas Marks
RESPONDENT:  Ricegrowers’ Co-operative Ltd
INSURER:CGU Workers Compensation (NSW) Ltd
FILE NUMBER:  WCC15027-04
DATE OF ARBITRATOR’S DECISION:          8 February 2005
DATE OF APPEAL DECISION:  17 March 2006
SUBJECT MATTER OF DECISION:                Fresh evidence not evidence in reply nor evidence to address weaknesses in the case before the arbitrator; two stage process for assessing contribution of employment to “injury” under sections 4(b)(ii) and section 9A Workers Compensation Act 1987 where the “injury” consists in the aggravation of disease; onset of or increase in pain in osteoarthritis sufficient to constitute “aggravation” of disease
PRESIDENTIAL MEMBER:  Acting Deputy President Lansdowne
HEARING:On the papers
REPRESENTATION:  Appellant: Robb & Associates Solicitors Pty Ltd
Respondent: Moray & Agnew

ORDERS MADE ON APPEAL: 1.The decision of the Arbitrator, dated 8 February 2005, is revoked and the following decision is made in its place:

(1) The Respondent to pay the Appellant’s medical, hospital and related expenses pursuant to section 60 of the Workers Compensation Act 1987.
(2) The Respondent to pay the Appellant’s costs of the original proceedings.
2.The Respondent to pay the Appellant’s costs of the appeal.

BACKGROUND TO THE APPEAL

This appeal is filed in the Workers Compensation Commission (‘the Commission’) by Daniel Marks (‘the Appellant’). The respondent to the original application, and to this appeal, is Mr Marks’ employer, the Ricegrowers’ Co-operative Ltd (‘the Respondent’). The Respondent’s insurer (‘the Insurer’) is CGU Workers Compensation (NSW) Ltd. The Appellant filed his original application in the Commission on 10 September 2004. The application sought an order that the Respondent pay medical, hospital and related expenses under section 60 of the Workers Compensation Act 1987 (‘the 1987 Act’). The application alleged an injury to the Appellant’s left hip in July 2001, notice of which was given on 19 July 2004. The medical expenses sought are for hip replacement surgery.

There is no dispute between the parties that the Appellant has advanced osteoarthritis of the left hip and requires hip replacement surgery. The issues before the arbitrator who determined the application (‘the Arbitrator’) were whether the Appellant had suffered a relevant injury arising out of or in the course of his employment and, if so, whether the employment was a substantial contributing factor to the injury. The application was determined on the papers by consent after two teleconferences, on 3 December 2004 and 19 January 2005. The Arbitrator made an award for the Respondent on the basis that the Appellant did not receive an injury arising out of or in the course of his employment with the Respondent. In reaching this conclusion the Arbitrator considered the claim in three possible ways- based on a fall the Appellant suffered at work in about 1996 as the initiating cause of the osteoarthritis in his left hip; based on the nature and conditions of the Appellant’s work (which involves the packing of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2006] NSWWCCPD 46
Decision Date: 17 March 2006

CaseChat Overview and Summary

In the case of Marks v Ricegrowers' Co-operative Ltd, the Appellant sought to introduce new evidence in the form of a report from Dr Kirwan in an appeal against an arbitrator's decision. The primary issue before the court was whether the Appellant could introduce this new evidence under the provisions of Practice Direction No.6. The Appellant argued that the report was not reasonably available to them at the time of the arbitration due to the late response from Dr Kirwan, despite their efforts to obtain it.

The court considered the Appellant's assertion that they could not reasonably have obtained the report earlier, despite numerous requests and attempts to secure it, including prepayment and multiple phone calls. The court accepted that the Appellant's solicitors had done all reasonably possible to obtain the report by the required deadline. However, the court also noted that the Appellant had the option to seek an extension from the arbitrator, which they did not pursue. The court found that the Appellant's failure to seek an extension, despite having the opportunity to do so, might have been a calculated decision to proceed without the report. This decision ultimately did not succeed, and therefore, the court concluded that the report was not reasonably available during the primary proceedings.

The court determined that the report of Dr Kirwan was not reasonably available during the primary arbitration and thus could be considered as new evidence in the appeal. The court did not find any fault with the Appellant's efforts to obtain the report but highlighted the missed opportunity to request an extension as a potential alternative. Ultimately, the court ruled that the report could be admitted as new evidence in the appeal proceedings.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Practice Direction No.6 issued in its current form on 1 November 2004 sets out the process for seeking leave of the Commission to give ‘new evidence’ on appeal. It provides as follows:“New EvidenceWhere 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.” The Appellant seeks to rely on a report from Dr Kirwan dated 25 February 2005. The Appellant asserts that the report was not reasonably available before the Arbitrator because Dr Kirwan had failed to provide it in time, despite numerous requests made by the Appellant’s solicitors commencing 17 August 2004, including pre-payment, and culminating in numerous telephone calls in early December 2004. The Appellant asserts that “it is through no fault of the applicant that the report of Dr Kirwan which is now available, was not available for the arbitrator”. Assuming the chronology to be correct, I accept this submission. It is indeed difficult to see what further the Appellant’s solicitors could have done as far as Dr Kirwan is concerned to obtain the report by the adjourned date of 15 December 2004. It may have been possible, however, for the Appellant to seek a further extension from the Arbitrator for the filing of the report, on the basis that the failure to file the report in time was not due to lack of diligence on the part of the Appellant or his solicitors, particularly as the proceedings were not concluded until after the adjourned telephone conference on 19 January 2005. A further extension does not appear to have been sought. The Appellant’s solicitors advised the Commission by letter dated 15 December 2004 that they had been unable to obtain the report, but did not give any details nor seek any extension. There is no indication in the records of the teleconference on 19 January 2005 as to whether the issue was raised. One explanation for the absence of a request for a further extension of time, could be that the Appellant simply made a calculated choice to proceed in the absence of the report, particularly given that he did have a specialist report supporting his case. If so, the fact that this approach proved unsuccessful is not grounds for seeking the admission of the further report as new evidence on appeal. Neither party refers to the possibility of seeking a further extension in their submissions, and it may be that, for reasons which are not clear on the file, it was not a practicable alternative. Accordingly, on balance, I find that the report of Dr Kirwan was not reasonably available in the primary proceedings.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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