Mateus v Zodune Pty Ltd t/as Tempo Cleaning Services
[2007] NSWWCCPD 227
•21 November 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
Reported Decision: Mateus v Zodune Pty Ltd t/as Tempo Cleaning Services (2007) 6 DDCR 488
CITATION:Mateus v Zodune Pty Limited t/as Tempo Cleaning Services [2007] NSWWCCPD 227
APPELLANT: Evaristo Mateus
RESPONDENT: Zodune Pty Limited t/as Tempo Cleaning Services
INSURER:Allianz Australia Workers Compensation (NSW) Limited
FILE NUMBER: WCC1778-07
DATE OF ARBITRATOR’S DECISION: 17 July 2007
DATE OF APPEAL DECISION: 21 November 2007
SUBJECT MATTER OF DECISION: Sections 289A and 74 of the Workplace Injury Management and Workers Compensation Act 1998; circumstances in which previously unnotified matters may be heard or otherwise dealt with by the Commission; circumstances in which adverse credit findings may be overturned on appeal.
PRESIDENTIAL MEMBER: Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION: Appellant: Wyatt Attorneys
Respondent: Goldbergs
ORDERS MADE ON APPEAL: The Arbitrator’s determination dated 17 July 2007 is revoked and the following order made:
“1.Award for the Respondent Employer.
2.No order as to costs.”
No order as to costs of the appeal.
BACKGROUND TO THE APPEAL
Evaristo Mateus (‘the Appellant Worker/Mr Mateus’) was born in Columbia on 23 October 1943 and is currently 64 years old. He came to Australia in 1964 and started work with the Zodune Pty Limited t/as Tempo Cleaning Services, (‘the Respondent Employer/Tempo’), or its predecessor, as a cleaner in about 1992. From October 2002 Mr Mateus worked for Tempo as a full time cleaner at the Warringah Mall Shopping Centre.
Mr Mateus suffers from Beurger’s disease, a condition that predisposes him to develop thrombosis either with or without trauma. The thrombosis can develop into gangrene.
Mr Mateus alleges that on 1 March 2006 he was using a ‘pan and broom set’ in the course of his duties when he bruised the fingers on his left hand. The pan and broom set consisted of two parts: a broom about one metre in length and a pan attached to a rod of similar length with a plastic grip at right angles at the end of the rod (see photo seven in Exhibit R1). A right-handed person would hold the plastic grip with their left hand and use the broom to sweep pieces of paper into the pan with their right hand. When the equipment is not being used the broom attaches to the pan rod by means of a plastic clip attached to the pan rod near the grip. Mr Mateus states that the clip was “very hard” and when he clipped the broom to the pan rod on 1 March 2006 they “snapped into place like a guillotine” and his left fingers were caught between the broom and the pan rod and were bruised (Mr Mateus’ statement 10 May 2007, paragraph nine).
He alleges that as a result of his injury he developed gangrene in the tip of his left middle finger which required partial amputation on 28 March 2006.
Mr Mateus’ claim for compensation was initially accepted but was denied by letter from Allianz Australia Workers Compensation (NSW) Limited (‘Allianz’) dated 27 February 2007. The letter gave notice under section 74 (‘the section 74 notice’) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998’) that the “matter in dispute” was “your employment was not a substantial contributing factor to your injury within the meaning of section 9A of ‘the 1987 Act’”.
Mr Mateus’ Application to Resolve a Dispute (‘the Application’) was registered in the Commission on 9 March 2007. In it he claimed lump sum compensation of $7,500.00 in respect of 6% whole person impairment as a result of the amputation of the first joint of his left middle finger.
By its Reply filed on 5 April 2007 the Respondent Employer denied that Mr Mateus suffered any injury arising out of or in the course of his employment and denied that his employment was a substantial contributing factor to any injury.
The matter was listed before a Commission Arbitrator for teleconference on 19 April 2007 when the issue of injury was raised and the Arbitrator gave leave for the Respondent Employer to issue a Direction for Production on Warringah Mall Medical Centre in respect of Mr Mateus’ medical records. The Arbitrator also directed that:
“2.Within 21 days the applicant is to advise the Commission and the Respondent of which (if any) of the statements included in the Reply and/or the ARD he wishes to rely on. In the alternative the Applicant is to file and serve a statement setting out his account of the injury on 1.3.06.
3.It is noted the Respondent foreshadowed that it wishes to tender as an exhibit the broom handle the Applicant used at the time of the alleged injury.
4.It is noted the Respondent has foreshadowed that it wishes to tender originals [sic] photographs of the scanned images that form part of the investigation report prepared by Brian Ross & Associates and included in the Reply.
5. The Applicant is to advise the Respondent within 10 days of which, if any, of the Respondent’s witnesses it seeks to rely on.”
The matter was listed for conciliation and arbitration on 24 May 2007 but it did not proceed on that day. As a result the Arbitrator issued a Direction on that day (formally dated 25 May 2007) as follows:
“1.Conciliation/arbitration conference is adjourned to Thursday 28 June 2007 at 10am because of failure of Spanish interpreter to attend the proceedings.
2.Leave is granted for summons to be issued at the request of the Respondent on Idameneo (no 123).
3.The Applicant to advise the Respondent within 10 days of which, if any, of the Respondent’s witnesses he requires for cross-examination.”
The matter proceeded to arbitration on 28 June 2007 when counsel represented both parties and Mr Mateus was cross-examined at length about the circumstances of his alleged injury on 1 March 2006. Both parties were given leave to tender additional evidence. Mr Mateus tendered his statement of 10 May 2007 (exhibit A1) and WorkCover medical certificates dated 10 March 2006 and 14 March 2006 and documents produced under Direction by Idameneo Pty Ltd (the Warringah 24 Hour Medical Centre) (all marked exhibit A2) and the Respondent Employer tendered the original photographs from the investigator’s report from Brian Ross & Associates dated 6 April 2006 (‘the investigator’s report’) (exhibit R1).
At the conclusion of cross-examination the Arbitrator raised with the parties whether the insurer’s failure to raise the issue of injury in the section 74 notice issued on 27 February 2007 was a bar to that issue being argued at the arbitration (T26.8-12). The parties made lengthy submissions on this issue and the substantive liability issue. In a reserved decision delivered on 17 July 2007 the Arbitrator found in favour of the Respondent Employer and dismissed the Application.
By an appeal filed on 14 August 2007 the Appellant Worker seeks leave to appeal the Arbitrator’s decision.
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 1998 Act.
Before leave to appeal can be granted it is necessary that “the amount of compensation at issue on the appeal” is both “at least $5,000.00” and “at least 20% of the amount awarded in the decision appealed against” (section 352(2)). As no compensation has been awarded in the present matter the amount of compensation “at issue” on the appeal must be determined by reference to the amount of compensation claimed in the proceedings before the Arbitrator at first instance (Grimson v Integral Energy [2003] NSWWCCPD 29 at [30] (‘Mawson’)).
Mr Mateus claimed $7,500.00 in his Application and the $5,000.00 threshold in section 352(2)(a) is satisfied. As no amount of compensation has been awarded the second limb of section 352(2) has no application (Mawson).
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
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.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions by the 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.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 17 July 2007, records the Arbitrator’s orders as follows:
“1.The Application is dismissed.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a)the application of section 289A of the 1998 Act by allowing the Respondent Employer to put ‘injury’ in issue (‘section 289A’), and
(b)holding that Mr Mateus’ injury was not work related (‘injury’).
REVIEW
The nature of a review and the role and function of a Presidential member on appeal has been considered in many cases in the Commission. In The King Island Company Limited v Deery [2005] NSWWCCPD 1 it was held at [19]:
“19. 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 nature of a review was considered by the Court of Appeal in Aluminium Louvres & Ceilings Pty Limited v Zheng [2006] NSWCA 34 where Bryson JA said at [38]:
“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 recently quoted with approval by McColl JA in South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 at [134] (‘Edmonds’). To describe the relative weight and relevance of the expert evidence as “a discretionary decision which could only be disturbed on House v The King principles” was described by McColl JA as “an over-generalisation” (at [133]).
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).
I intend to apply the above principles in the matter before me.
SUBMISSIONS AND FINDINGS
Section 289A
This issue first requires consideration of section 74 of the 1998 Act. Section 74(1) and section 74(2)(a) provide:
“74 Insurers to give notice and reasons when liability disputed
(1) If an insurer disputes liability in respect of a claim or any aspect of a claim, the insurer must give notice of the dispute to the claimant.
(2) The notice must contain the following:(a) a statement of the reason the insurer disputes liability and of the issues relevant to the decision,”
The notice must also indicate the provision of the workers compensation legislation on which the insurer relies to dispute liability (section 74(2A) and must be expressed in plain language (section 74(2B)).
Section 289A of the 1998 Act provides:
“289A Further restrictions as to when a dispute can be referred to Commission
(1) A dispute cannot be referred for determination by the Commission unless it concerns only matters previously notified as disputed.
(2) A matter is taken to have been previously notified as disputed if:(a) it was notified in a notice of dispute under this Act or the 1987 Act after a claim was made or a claim was reviewed, or
(b) it concerns matters, raised in writing between the parties before the dispute is referred to the Registrar for determination by the Commission, concerning an offer of settlement of a claim for lump sum compensation.
(3) The Commission may not hear or otherwise deal with any dispute if this section provides that the dispute cannot be referred for determination by the Commission. However, the Commission may hear or otherwise deal with a matter subsequently arising out of such a dispute.
(4) Despite subsection (3), a dispute relating to previously unnotified matters may be heard or otherwise dealt with by the Commission if the Commission is of the opinion that it is in the interests of justice to do so.”
Section 289A is in Part 4 of the 1998 Act which is headed “COMPENSATION DISPUTE DETERMINATION”. Section 287(1) provides that Part 4 “applies to a dispute in connection with a claim for compensation”.
Allianz issued a section 74 notice on 27 February 2007. The notice stated, among other things:
“1. MATTERS IN DISPUTE
We refer to your claim for a finger dated 1 March 2006.
Your employment was not a substantial contributing factor to your injury within the meaning of section 9A of ‘the 1987 Act’.
2.DECISION
Your claim for your finger is denied.
This decision was made by Suzette Classen on 6 June 2006.
This decision was reviewed and confirmed by Tess Bruce Technical Injury Strategist on 1 June 2006 [sic].
3. REASON(S) FOR DECISION
Your claim for a finger injury has been denied for the following reasons:
Your employment was not a substantial contributing factor to your injury within the meaning of Section 9A of ‘the 1987 Act’.
4.ISSUE(S) RELEVANT TO THE DECISION
Dr Miller’s independent medical examination dated 16 May 2006.
Factual investigations by Brian Ross and Associates dated 6 April 2006.”
The notice then quotes a passage from Dr Miller’s report where the doctor stated that Buerger’s disease was not related to Mr Mateus’ employment and it was “highly likely irrespective of any injury, at some stage in the future Mr Mateus would have developed a necrotic area over the fingers that are involved on this occasion”. The notice added several important administrative matters that are not relevant to the appeal.
It is not disputed that the Respondent Employer raised the injury issue in its Reply and at the teleconference on 19 April 2007 and counsel for the Appellant Worker did not argue at the arbitration that he was taken by surprise. He stated, “we spoke about it last time” (T28.6). I assume that the reference to “last time” was a reference to the first conciliation and arbitration on 24 May 2007 when the matter was adjourned. He added at T29.7 that he was not “taking a procedural fairness point” but argued that the insurer was stuck with the issues identified in the section 74 notice.
Counsel for the Respondent Employer pointed out that injury had been raised as an issue in the Reply (filed on 5 April 2007) and at the teleconference on 19 April 2007 and asked the Arbitrator to exercise her discretion under section 289A(4) of the 1998 Act to allow the injury issue to be argued. He also argued that it was implicit in determining the substantial contributing factor issue that the Arbitrator first had to come to a conclusion as to whether or not there was an injury (T46.11).
The Arbitrator reserved her decision on whether the Respondent Employer was to be allowed to rely on the ‘injury’ issue (T29.20) and proceeded on the basis that both injury and substantial contributing factor were in issue.
In her Statement of Reasons for Decision (‘Reasons’) she determined that the section 74 notice “did not expressly state that its decision to refuse liability was based on its assertion that Mr Mateus had not injured his hand at work as alleged” (Reasons, paragraph 13). She added at paragraph 15 of her Reasons:
“In my view, the obligation imposed by s 74(2)(a) of 1998 Act will not be discharged unless the reason/s the insurer disputes liability are clearly stated and the issues relevant to the decision particularised. A citation in the notice to another document does not in my view constitute disclosure of all issues addressed in that document for the purpose of s 74(2)(a). Nor, in my opinion, will a passing reference to a legislative provision constitute ‘catch all’ disclosure of any legal or factual issue that might arguably be relevant to the application of the provision. The wording of s 74(2) requires the insurer to state why it disputed liability and the matters relevant to its decision. In my view, it also requires the insurer to particularise those matters in a manner comprehensible to a person unfamiliar with the workers compensation jurisdiction. That reading of the provision is consistent with s 74 (2B) which requires the notice to be expressed in plain language.”
At paragraph 16 she stated that the notice failed to “expressly identify whether the alleged frank injury of 1 March 2006, in fact occurred as a matter in dispute”. She noted that while the occurrence of the incident was addressed in the investigator’s report attached to the notice, it was her view that that did not satisfy the requirements of section 74(2)(a) (Reasons, paragraph 17). Therefore, she held that it was not open to her to deal with the injury issue unless it was “in the interests of justice” to do so as permitted under section 289A(4).
In exercising her discretion under section 289A(4) the Arbitrator considered the following factors at paragraph 18 of her Reasons:
(a)the degree of difficulty or complexity to which the unnotified issues give rise;
(b)when the insurer notified that it wished to contest any unnotified issue/s;
(c)the degree to which the insurer has otherwise fulfilled its statutory obligation to notify the worker of its decision disputing liability;
(d)any prejudice that may be occasioned to the worker, and
(e)any other relevant matters arising from the particular circumstances of the case.
The Arbitrator noted that the injury issue was raised at the teleconference, though no formal application was made at that conference for the Commission to exercise its discretion under section 289A(4). As a result of the content of the investigator’s report Mr Mateus had been on notice for some time that his account of the injury was in dispute. Whilst the Arbitrator felt that the matters relevant to the exercise of her discretion were “finely balanced”, she concluded that the interests of justice required its exercise in the present case and she permitted the Respondent Employer to argue the issue of injury.
The Appellant Worker challenges the Arbitrator’s decision on this issue and contends that there is “little content” in her Reasons for exercising the discretion in favour of the Respondent Employer. First, it is argued the fact that Mr Mateus was on some degree of notice prior to the filing of the Application is the case in most applications of this kind. Second, it is submitted that the Arbitrator did not balance the interests of the parties and did not refer to any prejudices suffered by Mr Mateus if the Respondent Employer was permitted to raise the injury issue.
On the question of prejudice it is argued that by allowing the injury issue to be determined adversely to Mr Mateus, it is now open to the insurer to pursue him to recover compensation already paid to him or on his behalf. That is not correct. The circumstances in which an employer can recover an overpayment of compensation are limited to the situations set out in section 58 of the Workers Compensation Act 1987 (‘the 1987 Act’), none of which have any relevance in the present matter. The Commission does not have a general power to order workers to repay overpayments of compensation (see Miller v CSR Timber Products Pty Ltd (1993) 29 NSWLR 611; New South Wales State Brickworks v Abri-Arraj (1995) 12 NSWCCR 391 and Carricks Ltd v Pizzaro (1995) 38 NSWLR 274). In addition, the Respondent Employer has stated, through its solicitor, that is does not intend to seek a refund (Respondent Employer’s submissions 27 September 2007, paragraph 19).
It is also argued that Mr Mateus was disadvantaged in the way he prepared his case because he did not require the Respondent Employer’s witnesses for cross-examination. I do not accept this submission. At paragraph three of the Direction dated 25 May 2007 Mr Mateus was to advise the Respondent Employer of any witnesses he required for cross-examination. He did not do so. I do not believe Mr Mateus was disadvantaged in the preparation of his case by the fact that the injury issue had not been included in the section 74 notice.
The Respondent Employer submits:
(a)the Arbitrator misapplied the test under section 289A of the 1998 Act;
(b)the section 74 notice did raise the issue of injury because it attached the investigator’s report which clearly indicated that the Respondent Employer disputed the occurrence of the alleged injury;
(c)the section 74 notice referred to section 9A of the 1987 Act and it was implicit in that reference that there was a need for the Arbitrator to establish the cause of injury and determine if employment was a substantial contributing factor to that injury;
(d)section 354(1) of the 1998 Act requires that proceedings in the Commission are to be conducted with as little formality and technicality as the proper consideration of the matter permits;
(e)under section 354(3) of the 1998 Act the Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms;
(f)the entire proceedings were conducted on the basis that injury was in dispute;
(g)the issue of injury was raised in the Reply and at the teleconference, and
(h)the Arbitrator correctly used her discretion under section 289A(4) to allow the issue of injury to be determined.
I do not accept that the section 74 notice put injury in issue. The notice stated that the issue relied on by the insurer was whether Mr Mateus’ employment was a substantial contributing factor to the injury. That is a separate and distinct issue from whether the injury occurred in the course of or arising out of the relevant employment. In MacMahon v Lagana & Anor [2004] NSWCA 164; (2007) 4 DDCR 348 Hodgson JA held at [33] that “it is clear that the question of substantial contributing factor is a distinct and additional question to that of the course of employment.” Therefore, an insurer who disputes liability on the basis that employment was not a substantial contributing factor to the injury does not put in issue the occurrence of the injury. By relying only on section 9A in the notice an insurer is effectively conceding that an injury occurred and merely denying that employment was a substantial contributing factor to that injury.
I agree with and endorse the Arbitrator’s general comments (reproduced at [36] above) about the obligations imposed on insurers by section 74. Attaching a document to the section 74 notice and leaving it to the worker to work out exactly which issues are disputed does not satisfy those obligations. A section 74 notice must state in plain language, in the body of the document, the reason the insurer disputes liability and the issues relevant to that decision. An obscure reference to a document attached to the notice, but dealing with a different issue to that identified in the notice, is not sufficient. The Arbitrator was therefore correct in determining that the issue of injury was a ‘previously unnotified’ matter and that leave was required before it could be disputed.
Having identified the matters set out at [38] above as being relevant to the exercise of the discretion, the Arbitrator only made reference to the fact that the Respondent Employer gave notice at the teleconference (Reasons, paragraph 19) and that Mr Mateus had been “on notice for some time through the investigator’s report that his account of the injury was in dispute” (Reasons, paragraph 20), before ruling in favour of the Respondent Employer. She rightly noted that the fact that the Respondent Employer gave notice in advance of the arbitration was relevant but not determinative. She then noted that the considerations relevant to whether the section 289A(4) discretion should be exercised were finely balanced and she concluded that the interests of justice required its exercise.
The Arbitrator’s Reasons do not articulate which considerations were finely balanced or the basis on which she considered it was appropriate to exercise her discretion in favour of the Respondent Employer. She has not identified the factor or factors that weighed in favour of exercising the discretion. For this reason the discretion must be exercised anew and this issue re-determined. In order to save time and costs I believe it is appropriate that I re-determine this issue (which raises no credit finding or other contentious factual findings) and that is the course I propose to adopt.
In determining whether it was “in the interests of justice” to allow the Respondent Employer to dispute injury, the Arbitrator correctly identified at paragraph 18 of her Reasons the matters relevant to the exercise of the discretion (see [38] above). To those matters I would add the following observations:
(a)a decision by an insurer to dispute a claim for compensation should not be made lightly or without proper and careful consideration of the factual and legal issues involved;
(b)any insurer seeking to dispute an unnotified matter is seeking to have a discretion exercised in its favour and, accordingly, must act promptly to bring the matter to the attention of the Commission and all other parties;
(c)any unreasonable or unexplained delay in giving notice of an unnotified matter will be relevant to the exercise of the discretion;
(d)in exercising its discretion the Commission may have regard to the merit and substance of the issue that is sought to be raised;
(e)in assessing prejudice to the worker it will be significant to consider when and in what circumstances the worker was first made aware of the unnotified issue that is sought to be raised;
(f)though it will be relevant to the exercise of the discretion to keep in mind that the Commission must act according to equity, good conscience and the substantial merits of the case, those matters will not be determinative, and
(g)the general conduct of the parties in the proceedings will also be relevant to the exercise of the discretion.
In re-determining this issue the following matters are against the exercise of the discretion:
(a)whilst the attachment of the investigator’s report to the section 74 notice may be seen as putting the worker on notice that his account of the injury was disputed, that fact on its own was not enough to justify the exercise of the discretion, especially where the notice itself only disputed substantial contributing factor and did not dispute injury. Mr Mateus would have been justified in concluding that the insurer had made a considered decision, armed as it was with all the relevant information about the alleged incident, not to dispute injury but only rely on substantial contributing factor, and
(b)the delay in notifying injury as being in dispute was never explained.
The following matters are in favour of the exercise of the discretion:
(a)that the insurer wished to dispute injury was raised in the Reply filed by the Respondent Employer on 5 April 2007 and at the teleconference on 19 April 2007, without objection by Mr Mateus;
(b)at the teleconference the Arbitrator made directions that, among other things, were designed to enable Mr Mateus to meet the injury issue. Mr Mateus did not argue (either on appeal or before the Arbitrator) that those directions were unreasonable, unfair or inadequate to protect his interests;
(c)the issue of injury was discussed by the parties’ legal representatives at the conciliation and arbitration on 24 May 2007 when the matter was adjourned because of the absence of an interpreter;
(d)a Direction was issued on 25 May 2007 which gave Mr Mateus a further opportunity to meet the injury issue;
(e)by the issue being raised at the teleconference the proceedings were not delayed;
(f)I have dealt with the issue of prejudice to Mr Mateus at paragraphs [41] and [42] above. No other prejudice to Mr Mateus has been identified;
(g)the issue of injury was not complex or difficult and did not require detailed expert or lay evidence for Mr Mateus to fairly meet it. To the extent that it required further evidence, Mr Mateus was given an opportunity to tender that evidence (which he did) and to require the Respondent Employer’s witnesses for cross-examination (which he did not do);
(h)the arbitration was conducted and Mr Mateus was cross-examined, without objection, on the basis that injury was in issue;
(i)based on the evidence in the investigation report, the injury issue was strongly arguable, and
(j)if the matter had been determined without the issue of injury being argued and decided, the dominant issue on liability would not have been considered and the Commission would not have acted according to equity, good conscience and the substantial merits of the case.
In my view the factors in favour of exercising the discretion far outweigh those against. The insurer was in error in issuing the section 74 notice in the form it did, but it acted with reasonable promptness to put Mr Mateus on notice of the injury issue. Whilst no single factor is determinative, where Mr Mateus was given every reasonable opportunity to meet the issue of injury, the determination of the case was not delayed, Mr Mateus pointed to no relevant prejudice and the issue sought to be raised was one of substance, the interests of justice required that the injury issue be heard and determined by the Commission. I therefore reject the Appellant Worker’s submission that the Arbitrator was in error in allowing the Respondent Employer to rely on the injury issue.
Injury
The Appellant Worker submits:
(a)despite accepting that Mr Mateus’ account of injury and the medical evidence was entirely consistent, the Arbitrator rejected the claim on credibility issues based on contradictory accounts of the reporting of the injury;
(b)credibility findings can be set aside in appropriate circumstances;
(c)at paragraph 51 of her Reasons the Arbitrator correctly noted that “It does not follow that because Mr Mateus’s evidence about reporting the incident is unreliable that his account about how the incident occurred is as well.” She added “…there are no material discrepancies between the account set out in his written statements and his account given under cross examination, nor are there any significant discrepancies between that evidence and the accounts recorded by the practitioners who have examined him.” However, the Arbitrator then ignored the internal consistency of his account and the support in the medical evidence when considering the issue of injury when she said at paragraph 52 “given that there is little else but self-serving evidence to support Mr Mateus’s account;… I cannot be satisfied on the balance of probabilities that he has established that the injury was work-related”;
(d)the Arbitrator was wrong to state that there was “little else but self serving evidence to support Mr Mateus’s account” because the objective records such as clinical notes and medical records of complaints were consistent with the injury as claimed;
(e)the Arbitrator found no fault with any of the medical or lay evidence on the fact or occurrence of the accident or its causative relevance to the injury and the need for partial amputation of the finger;
(f)the credibility findings were based on Mr Mateus’ inconsistent evidence on the issue of when and to whom he reported the accident;
(g)reliance is placed on Walden v Black [2006] NSWCA 170 (‘Walden’) where Tobias JA (with whom Beazley JA agreed) said at [85] that if an appellate court concludes “that error has clearly been demonstrated, it is obliged to discharge its appellate duties in accordance with the law”, and
(h)reliance is placed on the decision of Fox v Percy (2003) 214 CLR 118 (‘Fox’) where Gleeson CJ, Gummow and Kirby JJ said at [25] “the appellate court is obliged to conduct a real review of the trial”.
The Respondent Employer submits:
(a)the Arbitrator very carefully examined the worker’s evidence against other evidence that could be tested;
(b)the Arbitrator noted that Mr Mateus’ version of the reporting of the incident was inconsistent with the versions given by the Respondent Employer’s witnesses (Reasons, paragraph 46);
(c)Mr Mateus gave three different versions of reporting the incident (Reasons, paragraph 47);
(d)the Arbitrator stated at paragraph 50 “the disarray into which he fell when giving his various accounts of how he had reported the injury, when added to the evidence of his supervisors contradicting each of them, left a poor impression of his honesty and reliability on this score”;
(e)a finding of fact based on the credibility of a witness is not to be set aside because an appellate court thinks that the probabilities of the case are against that finding (Devries v Australia National Railways Commission (1993) 177 CLR 472 (‘Devries’));
(f)a credibility based finding must stand unless it can be shown that the Arbitrator has failed to use or has palpably misused his or her advantage or has acted on evidence which was inconsistent with the facts incontrovertibly established by the evidence or which was glaringly improbable;
(g)the Arbitrator has not made a finding that is glaringly improbable;
(h)a finding based on credit may only be set aside on appeal where incontrovertible facts or uncontested testimony demonstrate that the conclusions are erroneous or where it is concluded that the decision is glaringly improbable or contrary to compelling inferences in the case (see headnote in Fox);
(i)the Arbitrator’s decision does not fall into the category of a finding where there are incontrovertible facts or uncontested evidence demonstrating that the Arbitrator’s conclusions were erroneous or that the decision was glaringly improbable or contrary to compelling inferences in the case;
(j)the Appellant Worker’s reference to the Arbitrator’s statement at paragraph 51 of her Reasons is out of context;
(k)the Arbitrator said that the only matters supporting Mr Mateus’ account are self serving and where Mr Mateus was tested his version was unreliable;
(l)the Arbitrator did not accept Mr Mateus as a witness of truth;
(m)the Arbitrator’s finding was based on material that was properly before her;
(n)there was other evidence before the Arbitrator that was consistent with a finding that Mr Mateus’ evidence was not to be accepted, and
(o)the decision on credit is something that cannot be set aside.
In a logical and carefully prepared decision the Arbitrator considered the evidence in detail. She correctly identified the issue as being whether the evidence supported a finding that Mr Mateus injured his hand at work on or around 1 March 2006 (Reasons, paragraph 41). After referring to the relevant evidence the Arbitrator stated at paragraph 47:
“The difficulty of reconciling Mr Mateus’s evidence with that given by Messrs Peter and Torr, is compounded by the divergent accounts given by him under cross examination. Not only did he contradict what was set out in his written statement but he gave three different versions of what and when he told his supervisors.”
The Appellant Worker does not challenge this finding. The Arbitrator added at paragraph 48:
“There may well be an entirely plausible explanation for Mr Mateus’s departure under cross examination from the account set out in his statements. It may well be, as Counsel for Mr Mateus suggested, that the explanation lies in a combination of poor language skills, nerves and the passage of time. Equally, it may be that in cross examination his evidence on that point was not truthful.”
At paragraph 49 the Arbitrator noted that Mr Mateus bore the onus of proof, on the balance of probabilities, of proving that the injury was work related. She thought that his account of the manner in which he received the injury was “inherently consistent with the nature of the injury”, which supported a finding in his favour (Reasons, paragraph 49). She added:
“However, his evidence concerning when and how he reported the injury to his supervisors was so uncertain, so vague and so changeable that it undermined his credibility in very large measure. Given his condition, he may have received the injury and the sequellae [sic] at work or during his own time. The injury itself is neutral evidence. The fact that he gave a history of a work-related injury to his treating doctors does not greatly assist me in determining the matter one way or the other: That evidence may be truthful and self-serving or untruthful and self-serving. So, the evidence of reporting the injury was critical to the overall credibility of his story. This was one piece of the story that could be tested by comparing his evidence with that of his supervisors.” (emphasis added)
The above analysis was logical and reasonable. I agree that, whilst it will not always be the case, in the circumstances of the present matter, the evidence of when and how Mr Mateus reported his injury was of great significance in the resolution of the issue of injury.
The Arbitrator then stated that it would have been logical if Mr Mateus had stated that he had not reported the injury for a few days after the event because he had not realised its significance. However, his evidence was that he immediately reported the incident to his supervisors. The Arbitrator then added at paragraph 50:
“That being the case, the disarray into which he fell when giving his various accounts of how he had reported the injury, when added to the evidence of his supervisors contradicting each of them, left a poor impression of his honesty and reliability on this score. It is hard to understand how language difficulties or nervousness or even the passage of time really account for the fact that he presented so many different versions of his reporting. Had he had difficulty remembering and said so, that would have been plausible, given the passage of time.” (emphasis added)
The Arbitrator quite properly added that it did not follow that because Mr Mateus’ evidence about the reporting of the incident was unreliable that his account about how the incident occurred was also unreliable (Reasons, paragraph 51). She accepted that there were no material discrepancies between the account of the incident set out in his written statements and his oral evidence. Nor were there any significant discrepancies between that evidence and the accounts recorded in the medical evidence. The Arbitrator did not ignore these important consistencies in reaching her conclusion, as has been submitted by the Appellant Worker, but considered them in the context of all of the evidence. That evidence included Mr Mateus’ oral evidence, which, for good reasons, she found to be unreliable and which “left a poor impression of his honesty and reliability”.
The Arbitrator’s conclusion was expressed at paragraph 52, where she said:
“Nevertheless, given that there is little else but self-serving evidence to support Mr Mateus’s account; given that he has provided a self-evidently unreliable account of his reporting of the injury, and given that he bears the onus of proof, I cannot be satisfied on the balance of probabilities that he has established that the injury was work-related.” (emphasis added)
Mr Mateus’ submissions ignore the words emphasised in the quote at [60] above. Those words are of critical importance to the Arbitrator’s conclusion. They emphasise that the evidence in support of the claim depended on the reliability of Mr Mateus’ history of the occurrence of the injury. The Arbitrator felt unable to accept that history because of Mr Mateus’ unreliable account of his reporting of the injury. That being so the Arbitrator was not bound to accept opinions based on Mr Mateus’ account and she was justified in concluding that she was not satisfied that the injury occurred. That approach was open to her and indicates no error of fact, law or discretion.
It is correct, as the Appellant Worker submits, that credit-based findings are not immutable from challenge on appeal. Examples of the circumstances in which successful challenges may be made to credit based findings are set out in the decision of Kirby J in Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; (2003) 77 ALJR 1598; [2003] HCA 48 at [98] and [99]:
“They included cases (1) where the primary judge’s conclusion, although expressed in terms of credibility, was ‘plainly wrong’ as demonstrated by incontrovertible facts or uncontested testimony; (2) where the conclusion was based on evidence wrongly admitted, occasioning a substantial miscarriage of the trial; (3) where the reasons, going beyond credibility, indicated a consideration at trial of irrelevant matters or a failure to weigh all relevant issues; (4) where the circumstances in which evidence was given, relevant to credibility, was unsatisfactory; or (5) where the primary judge had made it plain that credibility considerations or impressions were not determinative for the judgment in question.
There were two further categories that I mentioned in SRA. They are relevant to the present appeal. They were: (6) where the credibility determination ‘leaves untouched other evidence which requires separate evaluation with no obstacle of a credibility finding’ and (7) where, notwithstanding the credibility finding, the ‘extreme and overwhelming pressure’ of the rest of the evidence at the trial is such as to render the conclusion expressed at first instance so ‘glaringly improbable’ or ‘contrary to compelling inferences’ of the case that it justifies and authorises appellate disturbance of the conclusion reached at trial and the judgment giving it effect.” (omitting footnotes)
In my view none of the examples listed by his Honour are applicable in the present matter. The Arbitrator’s conclusion was not “plainly wrong”. Nor was it so “contrary to [the] compelling inferences” of the case that it justifies and authorises appellate disturbance. The Arbitrator’s reasoning was sound and her conclusion was open to her on the evidence. Such a conclusion was to be expected, especially given her clear and unequivocal finding that Mr Mateus was an unreliable witness who left her with a poor impression of his honesty.
In addition to the above credit issues Mr Mateus faced other difficulties with his claim. His claimed mechanism of injury was highly improbable, given his experience with the equipment involved and the simple nature of the task. This view was strongly supported by evidence in the investigator’s report dated 6 April 2006 where at page 12 it was noted that Mr Mateus failed to demonstrate a plausible method of placing his fingers between the pan handle (rod) and the broom, which could possibly cause the injury described. Mr Mateus’ answers when cross-examined on this topic were evasive and unconvincing (see T12.9 to T14.12).
Further support for the Arbitrator’s conclusion is found in the evidence from Justin Torr, Tempo’s site manager. At paragraph 12 of his statement of 23 March 2006 he said:
“I have grave doubts about the authenticity of the current Workers Compensation claim lodged by Evaristo for the following reasons:
a)I was not aware of any injury to Evaristo’s finger until the 9th March 2006, as I believe, it allegedly occurred on the 1st March 2006.
b)At no time did Evaristo report any injury to me and he certainly did not attribute this injury to any event which occurred at work.
c)When Evaristo reported his injury to his Supervisor, Bobi Peter, on the 9th March 2006, he did not attribute his injury to any work related accident.
d)Evaristo was aware of the fact that any work related injury must be reported immediately.
e)The injury was not reported to any co-workers.”
Bobi Peter, Tempo’s site supervisor, in his statement of 29 March 2006, substantially corroborates Mr Torr’s evidence. This evidence is persuasive on its own but, when combined with the Arbitrator’s finding on Mr Mateus’ credit, it makes the Arbitrator’s conclusion compelling and inevitable.
Finally, this is not a case where there is no explanation for Mr Mateus’ condition, other than his alleged injury at work. Dr Millar’s opinion provided persuasive evidence that it was “highly likely that irrespective of any injury, at some stage in the future Mr Mateus would have developed a necrotic area over the fingers that are involved on this occasion” (Dr Millar’s report 16 May 2006, page five). Dr Endrey-Walder disputed that opinion, but in the circumstances it is not necessary to resolve that dispute.
CONCLUSION
For the above reasons I do not accept the Appellant Worker’s submissions and the appeal must fail. The Arbitrator’s conclusion means that Mr Mateus failed to establish his case and the Respondent Employer is entitled to an award in its favour. The formal order of the Commission should be consistent with the Arbitrator’s finding. Therefore, the order dismissing the Application should be revoked and an award for the Respondent Employer substituted and that is the order I make.
DECISION
The Arbitrator’s determination dated 17 July 2007 is revoked and the following order made:
“1.Award for the Respondent Employer.
2.No order as to costs.”
COSTS
No order as to costs of the appeal.
Bill Roche
Deputy President
21 November 2007
I, MELANIE CURTIN, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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