Mayne Group Limited v Mikhail
[2006] NSWWCCPD 249
•29 September 2006
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| STATUS: Reconsideration decision: Mayne Group Limited v Mikhail [2006] NSWWCCPD 249R immediately follows this decision. | |||||
| CITATION: | Mayne Group Limited v Mikhail [2006] NSWWCCPD 249 | ||||
| APPELLANT: | Mayne Group Limited | ||||
| RESPONDENT: | Magdy Mikhail | ||||
| INSURER: | Mayne Group Limited Workers Compensation Services | ||||
| FILE NUMBER: | WCC7905-04 | ||||
| DATE OF ARBITRATOR’S DECISION: | 7 June 2005 | ||||
| DATE OF APPEAL DECISION: | 29 September 2006 | ||||
| SUBJECT MATTER OF DECISION: | Jurisdiction; weight of evidence; inadequacy of reasons. | ||||
| PRESIDENTIAL MEMBER: | Dr Gabriel Fleming, Deputy President | ||||
| HEARING: | On the papers | ||||
| REPRESENTATION: | Appellant: | Leigh Virtue & Associates | |||
| Respondent: | Lyons & Lyons Solicitors | ||||
| ORDERS MADE ON APPEAL: | 1. Leave to Appeal is granted. | ||||
| 2. The decision of the Arbitrator is revoked and the matter is remitted to the Arbitrator for determination in accordance with these reasons. | |||||
| 3. No order as to the costs of the Appeal. | |||||
BACKGROUND TO THE APPEAL
On 23 June 2005 Mayne Group Limited (‘the Appellant Employer’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission against a decision, dated 7 June 2005. The Appellant Employer is a self-insurer for workers compensation purposes, the corporate insurer being Mayne Group Limited Workers Compensation Services (‘the Insurer’). The Insurer acted for and on behalf of the Appellant Employer in the Commission proceedings.
The Respondent to the appeal is Magdy Mikhail (‘the Respondent Worker’). Mr Mikhail claimed to have suffered an injury to his left wrist and left shoulder on 22 January 2003. At the time he was employed by the Appellant Employer as a security guard. He sought to recover weekly compensation benefits, lump sum compensation for permanent impairment and for medical expenses related to the injury. The part of the claim relating to weekly compensation benefits was later discontinued.
The Appellant Employer denies liability for the claim and the parties are therefore in dispute.
Mr Mikhail brought the dispute to the Commission on 18 May 2004. He was referred to an Approved Medical Specialist (‘AMS’) for assessment of the ‘medical dispute’. The AMS issued a Medical Assessment Certificate (‘MAC’) on 18 February 2005. He found that Mr Mikhail suffered a 5% whole person impairment as a result of the claimed injury.
THE DECISION UNDER REVIEW
A Commission Arbitrator determined the dispute between the parties on 7 June 2005 and the ‘Certificate of Determination’ of the same date records the Arbitrator’s orders as follows:
The determination of the Commission in this matter is as follows:
1.That the claim made on 15 April 2004 was duly made.
2.That the Respondent pay the Applicant as lump-sum compensation under s66 of the Workers Compensation Act 1987 as follows, $6,250.00 in respect of 5% whole person permanent impairment.
3.That the Respondent pay the Applicant’s section 60 of the Workers Compensation Act 1987 expenses on production of accounts or receipts.
4.That the Respondent pay the Applicant’s costs as agreed or assessed.
ISSUES IN DISPUTE
The Appellant Employer argues that the Arbitrator’s decision demonstrates a number of errors, which may be summarised as follows:
· The Arbitrator erred in finding that the Commission had jurisdiction to hear the dispute (‘Jurisdiction’).
· The Arbitrator erred in failing to consider and/or give proper weight to the evidence (‘Weight of Evidence’).
· The Arbitrator erred in failing to give adequate reasons for the decision (‘Adequacy of Reasons’).
The Respondent Worker has made submissions on the appeal and argues that the Arbitrator did not err and her decision should be confirmed.
A hearing of the appeal, by telephone, was held on 21 September 2006, at which both parties were legally represented and made further submissions.
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, which provides:
352 Appeal against decision of Commission constituted by Arbitrator
(1)A party to a dispute in connection with a claim for compensation may, with leave of the Commission constituted by a Presidential member, appeal to the Commission as so constituted against a decision in respect of the dispute by the Commission constituted by an Arbitrator.
(2)The Commission is not to grant leave to appeal unless the amount of compensation at issue on the appeal is both:
(a)at least $5,000 (or such other amount as may be prescribed by the regulations), and
(b) at least 20% of the amount awarded in the decision appealed against.
(3)If the Commission refuses to grant leave to appeal, the Commission must state reasons for the refusal in writing to the parties.
(4)An appeal can only be made within 28 days after the making of the decision appealed against.
(5)An appeal under this section is to be by way of review of the decision appealed against.
(6)Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.
(7)On appeal, the decision may be confirmed or may be revoked and a new decision made in its place. Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.
(8)In this section, decision includes an award, interim award, order, determination, ruling and direction.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
The amount of compensation at issue on the appeal is more than $5,000 and represents the entirety of the Arbitrator’s award. Section 352(2) is met and leave to appeal is granted.
CONSIDERATION OF THE ISSUES
Jurisdiction
The Arbitrator found that Mr Mikhail’s claim for compensation for injury to his left shoulder “had been duly made”. Her reasons state:
“The Respondent asserted at the hearing that the claim has not been duly made as no claim had been made for the left shoulder, but only in respect of the arm. I note that in the claim made on the Respondent on 15 April 2004 the description of injury is to the left upper extremity and back, based on a medical report of Dr. G. Mahony dated 19 March 2004, in which Dr. Mahony refers to a rotator cuff lesion of the left shoulder and a partial thickness tear of the supraspinatus tendon evidenced in an MRI Scan, the report of which is attached to the Application. Dr. Mahony assessed the Applicant as having an 18% Whole Person Impairment in respect of the left upper extremity. The Respondent’s insurer denied liability for shoulder problems on 29 April 2004 based on the assessment of Dr. Breit.”
The Arbitrator then gives a summary of the relevant evidence.
The Appellant Employer submits that no claim has been made in relation to an injury to Mr Mikhail’s left shoulder and that:
· The Commission had no jurisdiction because “no Notice of Injury and no claim for compensation benefits had been made in accordance with the requirements of the Act”.
· The correspondence of 15 April 2004 did not satisfy the statutory requirements for the making of a claim.
The Appellant Employer argued strongly before the Arbitrator that it was possible Mr Mikhail injured his left shoulder at some later time. This is particularly significant as the Appellant Employer and its self insurer are ‘on-risk’ only until 3 February 2003, following which, while the worker’s employment duties remained the same, his corporate employer changed to Linfox Armaguard Pty Limited, insured by Allianz Australia Workers Compensation (NSW) Limited.
In reply, on this issue, the Respondent Worker submits that:
· The Appellant Employer did not identify this issue as being in dispute in the Reply filed before the Arbitrator.
· The Appellant Employer did not raise this issue until after the close of submissions and evidence before the Arbitrator.
· Rule 39(3) of the Workers Compensation Commission Rules 2003 prohibits the raising of this issue in the absence of its inclusion in a section 74 (of the 1998 Act) Notice, which was not given.
· The ‘incident report’ “clearly evidences due notice to the appellant employer”. Whatever defects there may be in the report are attributable to Mr Mikhail’s lack of English language skills and are ‘defects’ that are covered by ‘special circumstances’ and therefore not fatal to the validity of the Notice (sections 61(2) and 254(2) of the 1998 Act).
· The “Notice and Claim form were received by the appellant on 28 February [2003]” (referred to, in obvious error, as 2005) i.e. “within the six month period”.
· The particulars of the injury were entered into the ‘register of injuries’ thereby being sufficient for the making of a claim for compensation in respect of that injury.
I note that, contrary to the Respondent Worker’s submissions, Part 4 (sections 61 to 66) of the 1998 Act does not apply to this injury as it occurred on 22 January 2003. Section 261 of the 1998 Act applies to claims made after 1 January 2002 and provides for the time in which a claim for compensation must be made.
The Respondent Worker argues that the Appellant Employer has waived the right to argue a failure to duly make the claim. In my view neither an employer nor a worker can waive compliance with a statutory requirement.
I accept the Appellant Employer’s submission on this issue, namely that the question of whether the claim was duly made leads directly to the issue of whether the Commission has jurisdiction to hear a dispute in relation to that claim (Kurrajong Holdingst/as the Gardners Inn v Carette [2004] NSWWCCPD 8).
Three documents in evidence are relevant to the issue of ‘notice of the injury’ and the making of a claim on the Appellant Employer in relation, specifically, to the injury to the left shoulder. They are:
1. ‘Incident Notification Report’ dated as 19 February 2003 and stamped “Received-Mayne” on 28 February 2003. This evidences the Notice of Injury.
2. ‘Claim under the Workers Compensation Act’ dated as signed on 25 February 2003 and “Received-Mayne” on 28 February 2003 (and referred to in Mr Mikhail’s submission as dated 24 February 2003). This evidences the making of the claim.
3. Letter from Lyons & Lyons Solicitors, dated 15 April 2004 purporting to be a “letter of claim” on the Insurer. This evidences the making of the claim.
Notice of Injury
The Arbitrator expressly considered the evidence in relation to the question of whether the ‘Incident Notification Report’ made on 19 February 2003 identified an injury to Mr Mikhail’s shoulder. In my view the report sufficiently identifies the injury. The reference to the “Arm/Hand” as the location of the injury is of necessity a general description, and I note the form itself does not provide space for much more to be added. A defect in a ‘Notice of Injury’, if the omission of a specific reference to the ‘shoulder’ is considered to be a defect, does not act as a bar to recovery of compensation if it is attributable to ‘special circumstances’ (section 254(2) of the 1998 Act). In my view Mr Mikhail’s English difficulties, as outlined in his oral evidence, is a factor that reasonably explains his failure to detail the injury to the shoulder, referring only to the “Arm/Hand” in the Incident Notification Report, and constitutes ‘special circumstances’.
Making of the Claim
Section 260 of the 1998 Act provides for ‘How a claim is made’. It must be read in conjunction with the ‘WorkCover Provisional Liability and Claims Guidelines’, in particular Part 2, Clause 6.11 of the Guidelines which requires an applicant to provide details of the claim “sufficient to enable the insurer, as far as practicable, to make a proper assessment of the claimant’s full entitlement on the claim”. Section 282 of the 1998 Act prescribes the “relevant particulars about a claim”, which include details of the injury.
Whether or not Mr Mikhail made a claim that sufficiently identified the injury to his left shoulder is a question of fact to be determined on the evidence. The acceptance of evidence and the weight to be given to the evidence is a matter for the Arbitrator. In this case she had the benefit of also hearing and observing Mr Mikhail give oral evidence. The Arbitrator, found Mr Mikhail to be a witness of truth. This is particularly significant in relation to the finding of whether the claim was duly made in relation to an injury to the left shoulder, occurring on 22 January 2003.
The ‘Claim under the Workers Compensation Act’, signed 25 February 2003 describes an injury to the “thumb to middle fingers” and “wrist”. Mr Mikhail stated that due to his limited English language ability, he allowed someone else to complete the Claim form dated 25 February 2003. He stated that the reference solely to the ‘wrist’ was incorrect and that he should have recorded “my hand and my shoulder” (Transcript page 37). The Arbitrator accepted Mr Mikhail’s evidence as to the mechanism of injury on 22 January 2003 and as to its effects on his left hand, arm and shoulder. She was entitled to exercise her discretion to accept this evidence as probative and persuasive. Unfortunately the Arbitrator does not refer to this claim in her reasons, referring only to the ‘Incident Notification Report’ dated 19 February 2003 and the ‘Claim’ of 15 April 2004. The Appellant Employer contends that the claim of 15 April 2004, like the notification of injury, does not sufficiently identify the injury to the shoulder.
Having regard to Mr Mikhail’s evidence of limitations in English, the general description of the injury on his claim form and the medical evidence I am of view that the claim, made on 25 February 2003 is ‘duly made’ for the purpose of the claim for compensation for an injury to Mr Mikhail’s shoulder on 22 January 2003. Even if the claim made on 25 February 2003 were considered to be defective as to the identification of the injury, then, on the evidence before the Arbitrator and before me, I would excuse that defect pursuant to section 260(5) of the 1998 Act. This claim of 25 February 2003 would have been made in time, namely within six months of the date of the injury (section 261 of the 1998 Act).
In my view the Arbitrator erred in finding that the claim was duly made on 15 April 2004. As set out above there was sufficient evidence to support the finding that the claim was made on 25 February 2003. The Arbitrator found the medical evidence to be supportive of Mr Mikhail’s claim to have injured his left shoulder in the manner he described in the incident on 22 January 2003. The clinical notes of Dr Nabarro describe the injury of 22 January 2003, as reported to him on 1 April 2003, as involving carrying a 20kg bag, which was dropped and caused pain extending from the left wrist to the shoulder. He found clinical signs of injury including tenderness over the shoulder joint. He recommended physiotherapy for the shoulder and referral to a ‘sh surgeon’, which appears to be shorthand for ‘shoulder surgeon’. The Arbitrator considered the medical evidence supported Mr Mikhail’s claim to have injured his shoulder as he described, and observed that:
“. . . the medical reports on which the Applicant relies refer to left shoulder injury as being consistent with the accident at work on 22 January 2003. The MAC of Dr Noll also reports that ‘based on the history given and the available documentation it would appear that the injury to the left shoulder was probably sustained at the time of the subject work injury’.”
It cannot be said that the Appellant Employer has been disadvantaged, or denied procedural fairness, by any alleged delay by Mr Mikhail in making a specific claim for injury to the left shoulder on 22 January 2003. Mr Mikhail expressly claimed for compensation, identifying the “left upper limb” as the locus of the injury, by way of a letter from his legal representative dated 15 April 2004. This letter annexed medical reports of Dr Mahony, which clearly detailed pathology of the left shoulder, and opined that Mr Mikhail’s injury to the shoulder was consistent with the mechanism of injury as he had described it, i.e. dropping a heavy bag of coins. The reports also detail injury to other parts of the body, not relevant to the grounds of this appeal. It must be said that the nature of the claim made by Mr Mikhail and the dispute between the parties was abundantly clear at this point, even if it had not been before. The parties have, quite properly, moved on to dealing with the substantive issues relating to the claim.
In summary, the Arbitrator erred in finding that Mr Mikhail’s claim was duly made on 15 April 2004 and, having made that finding, in failing to properly apply section 261 of the 1998 Act in relation to the time for the making of the claim. The Arbitrator did not err however, in her conclusion that she had jurisdiction to hear the dispute. On review of the evidence and submissions I am satisfied that the claim was duly made on 25 February 2003 and that the Arbitrator had jurisdiction to hear the dispute.
Weight of Evidence
The Appellant Employer submits that the Arbitrator’s decision is against the weight of the evidence because she erred in:
· Failing to give any, or insufficient, weight to the evidence that Mr Mikhail did not report the injury to his doctor when he consulted him on the date of the alleged injury, 22 January 2003.
· Giving weight to Mr Mikhail’s evidence, and less weight to the “contemporaneous medical records” of his treating doctor.
· Finding Mr Mikhail to be a truthful witness.
· Considering “. . . that the medical evidence of the Applicants treating doctors and specialists supported a connection between the Applicants alleged injury and the Applicants shoulder condition. . . .the clinical notes of Dr Lawendy [which] did not support the Applicants claim”.
· Giving weight to the MAC “as far as the question of the occurrence of any injury or the Application of S.9A of the Act is concerned noting that to the extent that the Certificate was relevant to those issues it supported of (sic) the Respondents case rather than that of the Applicant”.
The point has been made in many appeal decisions of this Commission that the weight to be given to the evidence is a matter for the discretion of the Arbitrator (see Knight v Eyles Nominees Pty Limited [2004] NSWWCCPD 73; Qantas Airways Limited v Campisi [2005] NSWWCCPD 13). Fact finding is a matter for the Arbitrator exercising her discretion as to the probative value of the evidence before her. As I said in Qantas Airways Limited v Campisi [2005] NSWWCCPD 13, at [20]:
“Findings relative to the credit of a witness and the relevance and weight of evidence are for the Arbitrator, who has heard or considered the whole of the evidence at first hand, to determine. It is only where the Arbitrator can be said to have failed to exercise his discretion fairly and according to law that his decision should be overturned. This occurs where the Arbitrator has acted upon a wrong 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, In the matter of National Roads and Motorists Association Ltd [2003] FCAFC 206 at [21] to [21]). Whether or not another decision-maker, or an appellate tribunal, would simply have come to a different view of the facts is irrelevant.”
As noted above, the weight to be given to the evidence is a matter for the Arbitrator and her acceptance of Mr Mikhail as a witness of truth was critical to the findings of fact the Arbitrator made on the issue of ‘injury’ (section 4 of the 1987 Act) and ‘substantial contributing factor’ (section 9A of the 1987 Act). The Appellant Employer submits that Mr Mikhail’s credibility as a witness in his own cause was seriously challenged under cross-examination at the arbitration. I have carefully considered the transcript and do not accept that assertion. It was, in any event, for the Arbitrator to weigh the whole of his evidence and to make an assessment of that evidence.
In particular, the Arbitrator did not err in failing to give any, or insufficient, weight to the evidence that Mr Mikhail did not report the injury to his doctor when he consulted him on the date of the alleged injury, 22 January 2003, or to the remainder of his evidence. The Arbitrator had the benefit of seeing and hearing Mr Mikhail give evidence, and then of reflection on the evidence prior to coming to a decision. She had a considerable forensic advantage in weighing that evidence, reflecting upon it and coming to an assessment of it (Abalos vAustralian Postal Commission (1990) 171 CLR 167). She expressly found him to be a truthful witness. The review of findings based on credit must always be approached with caution. In Department of Education & Training v Jeffrey Sinclair [2004] NSWWCCPD 90, the President of the Commission relevantly said (at paragraph 158):
“. . . Understandably, the Department rejects that credit finding [by the Arbitrator], but a Presidential Member of this Commission, reviewing an Arbitrator’s decision on appeal, should upset such a finding only if there is other “incontrovertible” evidence indicative of error, not adequately dealt by the Arbitrator at first instance. Fox v Percy (2003) 77 ALJR 989, c.f. Abalos v Australian Postal Commission (1990) 171 CLR 167. (See also the useful discussion in the judgments of the High Court in State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) & Ors (1999) 160 ALR 588, especially that of Kirby J at 508ff, and the decision of Deputy President Fleming in Mayne Health Group v Sandford [2002] NSW WCC PD6, pars 35-41).”
In the reasons the Arbitrator specifically addressed the issue raised by the Appellant Employer as to the fact that Mr Mikhail did not report his shoulder injury to his treating doctor on the alleged date of injury, i.e. 22 January 2003. She found, at [46] to [47]:
“The medical evidence of the Applicant’s treating doctors and specialists, when taken as a whole, consistently indicate that following the incident of 22 January 2003, the Applicant was receiving treatment for a variety of complaints, including problems with his left wrist and shoulder. I am of the view that any delay in seeing his treating doctor about his shoulder problems was reasonably attributable to the Applicant’s stated perception that at the time of its occurrence the Applicant thought the incident to be minor, but that his shoulder symptoms increased over time, together with his ongoing treatment for other complaints.
The Applicant appears to have commenced treatment for his shoulder as soon as he was able. There is MRI evidence that the Applicant has a partial tear of the supraspinatus tendon.”The Appellant Employer asserts that the clinical notes of Dr Lawendy did not support Mr Mikhail’s claim. Having reviewed the evidence, including Dr Lawendy’s clinical notes, it is my view that this is too broad an assertion to make. Dr Lawendy does not record Mr Mikhail complaining of a shoulder injury on 22 January 2003. However, on a visit on 18 February 2003 he records Mr Mikhail complaining of an injury to his left hand, notes a weak hand grip and notes that Mr Mikhail stated that the injury occurred on 22 January 2003, but thought “it will settle in a short time”. He notes referral to Dr Nabarro who, on 31 March 2003 diagnosed, among other things, clinical signs of injury in the left shoulder. Considering the whole of this evidence together, the Arbitrator did not err in finding that Mr Mikhail’s account of the injury to his left shoulder, his reporting of it, and the clinical investigations of it, supported his claim.
I reject the Respondent Worker’s submission that the Arbitrator “must accept, as prima facie evidence, the AMS opinion, which relevantly in the case to hand dealt with the issue of injury causation between the worker’s duties, the mechanism of injury and the pathology. The onus is then on the respondent to adduce evidence to rebut it”. The matters upon which a MAC is “conclusively presumed to be correct” are set out in section 326 of the 1998 Act. It is for the Arbitrator, not an AMS, to determine whether a worker has suffered an ‘injury’ pursuant to section 4 of the 1987 Act and whether employment was a ‘substantial contributing factor’ to that injury, pursuant to section 9A of the 1987 Act (see discussion of referral to the Approved Medical Specialist in Aircons Pty Limited v Registrar of the Workers Compensation Commission of NSW & Anor [2006] NSWSC 322). These issues involve questions of ‘causation’ which are to be determined on the application of common sense to a consideration of the whole of the relevant evidence on the facts of the case. In this matter the Arbitrator had the opinion of Dr Noll, as set out in the MAC, before her. A MAC is not binding on the Arbitrator on the issue of ‘causation’, ‘injury’ and ‘substantial contributing factor’. However this is not to say that the Arbitrator cannot take the opinion of the AMS into account on these matters. It may be relevant and probative as to the issues before her, and it was in this case.
The Arbitrator referred to the MAC and considered that it must be read as a whole. Dr Noll opined “[B]ased on the history given and the available documentation it would appear that the injury to the left shoulder was probably sustained at the time of the subject work injury”. This is not, as the Appellant Employer asserts, “supportive of the Respondent’s case rather than the Applicant’s”. The Arbitrator expressly considered the whole of the medical evidence. Her conclusion in relation to section 9A was not based only upon the MAC but, as she stated:
“On the balance of probabilities, and in the absence of any evidence of any other cause of the shoulder injury, I find that the Applicant’s employment was a substantial contributing factor to his injury in terms of section 9A of the 1987 Act.”
The Arbitrator did not err, as the Appellant Employer submits, in giving weight to the MAC “as far as the question of the occurrence of any injury or the Application of S.9A of the 1998 Act is concerned”. The MAC was relevant evidence before her. The Appellant Employer’s contention that “to the extent that the Certificate was relevant to those issues it supported of (sic) of the Respondents case rather than that of the Applicant” is not, in my view, borne out by a plain reading of the MAC.
Adequacy of Reasons
The Appellant Employer submits the Arbitrator failed to give adequate reasons for:
· Rejecting the evidence of Dr Hughes and Dr Edwards.
· Accepting Mr Mikhail’s “medical evidence and has failed to have any particular regard to that evidence at all and failed to consider whether that evidence supported a connection with any injury on 22nd January 2003 or rather supported the Respondent Submissions to the effect that any shoulder condition developed progressively and at a later date”.
The Arbitrator had a statutory duty to give reasons and issued a written statement of reasons, dated 23 June 2005. Rule 73 of the Workers Compensation Commission Rules 2003 provides that:
“(1)A statement of the Commission’s reasons referred to in section 294(2) of the 1998 Act is to include:
(a)the findings on material questions of fact, referring to the evidence or other material on which those findings were based, and
(b)the Commission’s understanding of the applicable law, and
(c) the reasoning processes that lead the Commission to the conclusions it made.
(2)Without limiting subrule (1), the reasons set out in a statement referred to in subrule (1) are to be stated sufficiently (in the opinion of the Commission) to make the parties award of the Commission’s view of the case made by each of them.”
The reasons should be read as a whole and without minutely combing them in search of error (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259). The matters required by Rule 73 must be addressed. Justice Kirby in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme[2003] HCA 56 at [64] described the duty to give reasons thus:
“The more significant the decision, the clearer the duty may be, the clearer the reasons should be and the clearer the consequences will be for the breach. Some decisions cry out for a clear explanation. . . . Especially is this so where the legislature has recognised the need and imposed a duty to give reasons and where the decision is very important for the person affected and for others close to that person.”
In giving reasons for the decision the Arbitrator must record the evidence, give reasons for the findings made, and, where there is disputed expert evidence, give a clear explanation of why some evidence is preferred over the other (Mifsud v Campbell (1991) 21 NSWLR 725 at 728; Bright v Joodie Holdings No 2 Pty Ltd [2005] NSWCA 134 at [33] Hume v Walton [2005] NSWCA 148 at [69]). However it is not necessary for the Arbitrator to refer to evidence of every fact in issue before her nor every step in the reasoning process (Yates Property Corporation Pty Limited (In Liq) v Darling Harbour Authority (1991) 24 NSWLR 156 Ainger v Coffs Harbour City Council [2005] NSWCA 424).
The Appellant Employer’s submissions in relation to the Arbitrator’s treatment, in her ‘Statement of Reasons’, of the medical evidence, have some merit. While the weight to be given to the evidence is a matter for the Arbitrator’s discretion, the reasons for preferring evidence and giving other evidence less weight should be articulated in the reasons. The Appellant asserts the Arbitrator erred in failing to give adequate reasons for rejecting the evidence of, Dr Hughes and Dr Edwards. The Arbitrator’s failure to consider Dr Hughes’ reports is discussed below. The Arbitrator does refer to the Appellant Employer’s medical evidence and considers in particular the reports of Dr Edwards and Dr Breit. She states (at [45]) that:
“Whilst Dr Edwards records details of the results of the MRI scan referred to earlier and subsequent treatment he does not discuss this in giving his opinion that he is not convinced that the right shoulder is related to the incident on 22 January 2003. Dr Breit indicates that the MRI of the left shoulder is recorded as showing a partial thickness tear of the anterior supraspinatus as well as degenerative changes in the humeral head, but states that he does not believe there is a partial thickness tear. He states that he believes there is some evidence of tendonitis both in the supraspinatus and the superior aspect of subcapularis. Dr Breit is the only doctor to question the MRI results.”
In my view this is sufficient to identify the reason why she found these reports not as persuasive as the reports of the AMS, Dr Noll and Dr Mahoney.
The Arbitrator lists the report of Dr Hughes, Orthopaedic Surgeon, dated 31 July 2004 as in evidence before her (at [18]). It is not clear to me why there are two reports from the same medical specialty (Orthopaedic Surgeon) in evidence for the Appellant Employer, however the application of the Regulations in relation to the limitations on medical reports is not raised as an issue in the appeal. The Arbitrator has not identified the basis upon which the plethora of medical evidence was admitted in the proceedings (for example there were reports from two ‘Hand Surgeons’ and three Orthopaedic Surgeons admitted for the Appellant Employer).
In relation to the medical evidence that was before the Arbitrator, I do not accept the Appellant Employer’s submission that the Arbitrator gave inadequate reasons for accepting Mr Mikhail’s medical evidence and finding it persuasive. She took notice of the consistency in the medical findings and the support for the injury in the clinical investigations. When considered as a whole I am satisfied that the Arbitrator’s reasons address the matters required by Rule 73, albeit not comprehensively in relation to her discussion of the relative probative value of the medical evidence. It is not necessary for an Arbitrator to recite every piece of evidence in the statement of reasons. In my view Mr Mikhail, the Appellant Employer and the Insurer would be in a position to understand, from the Arbitrator’s ‘Statement of Reasons’, the basis upon which she made the decision. However a critical issue arises in relation to the reports of Dr Hughes, for the Appellant Employer.
Report of Dr Hughes: 31 July 2004
At the hearing of the appeal I raised with the parties the fact that only one report of Dr Hughes, Consultant Orthopaedic Surgeon, dated 31 July 2004 was on the Commission file. This report was brief and not, because of its paucity of detail and opinion, apparently of much weight. This report was before the Arbitrator is, as referred to in [18] of the decision, dated 31 July 2004. This report says, in its entirety:
“IMPAIRMENT ASSESSMENT
I refer to my examination of the abovenamed on 28 July 2003.
The abovenamed does not suffer any permanent whole person impairment as a result of his work or any left upper limb injury.”
At the telephone conference of 30 September 2004 the Appellant Employer was given leave to file a fresh report of Dr Hughes. The ‘Referral For Assessment of Permanent Impairment Dispute’ identifies, among other documents, a “Further report of Dr Hughes (of 28/7/04)” as a document that is to be sent to the AMS for the purpose of the assessment.
At the hearing of the appeal the Appellant Employer provided a facsimile copy of a letter to the Commission dated 17 August 2004, which attached the report of Dr Hughes dated 31 July 2004. The report is much more comprehensive than the earlier one, set out above. Mr Mikhail confirmed that he received a copy of the 31 July report following the September telephone conference with the Arbitrator.
In her analysis of the evidence set out in the reasons, the Arbitrator makes no reference to the evidence of Dr Hughes, for the Employer. This is perhaps not surprising if the only report she had before her made only the brief comment on whole person impairment, as set out above.
The Commission file does not contain the three-page report of Dr Hughes, purportedly filed on 17 August 2004. Of more concern is that the AMS, Dr Noll does not, in the MAC, refer to any report of Dr Hughes.
I accept the Appellant Employer’s submission that the report of Dr Hughes was filed on 17 August 2004. The copy of the letter to the Commission of the same date is evidence of this. There is no evidence of what happened to the report and accompanying letter when it reached the Commission, or of why it was not 1) placed before the Arbitrator and 2) sent to the AMS. The Commission file in this matter has a number of documents placed on it that do not concern Mr Mikhail and the Appellant, and have clearly been wrongly filed. I can only assume that this has occurred with the report of Dr Hughes, and that it is on another file. Unfortunately, this is a very significant matter for the resolution of the appeal.
‘Referral’ of a ‘medical dispute’ to an AMS (section 321 of the 1998 Act) is a critical step in the assessment and final determination of a matter (Jopa Pty Limited t/as Tricia’s Clip-n-Snip v Edenden [2004] NSWWCCPD 50). The referral determines the matters upon which the AMS is asked to make an assessment and the evidence upon which that assessment will be based. The Workers Compensation Commission Regulations 2003 place significant restrictions on the medical evidence that is admissible in Commission proceedings and on the evidence that must be disclosed to an AMS. In my view the Act and the Regulations in regard to the assessment of a ‘medical dispute’ must be applied strictly, as the MAC is ‘conclusively presumed’ to be correct as to the matters referred for assessment.
It may be that Dr Noll (AMS) would not have come to a different view of the medical dispute if he had Dr Hughes’ full report of 31 July before him. Similarly the Arbitrator may not have found it persuasive. This is not the issue here. Dr Hughes is Consultant Orthopaedic Surgeon who has reported, for the Appellant Employer, on Mr Mikhail’s claimed injury. The report was admitted in the proceedings. The Arbitrator noted in the referral that it should be sent to the AMS. It was not sent and the MAC has been issued without reference to it. The parties assumed that the report was before the Arbitrator and the AMS and taken into consideration. The Appellant Employer was entitled to have the matter determined, by the Arbitrator and the AMS, in accordance with the relevant and admitted evidence.
The failure to consider the full report of Dr Hughes affects the validity of the MAC. It also affects the Arbitrator’s decision in that she has failed to take into account relevant evidence and has found herself bound to make an order in terms of the invalid MAC. Consequentially the Arbitrator’s decision should be revoked.
In my view there is no bar to this matter being returned to the same Arbitrator for determination in accordance with these reasons. The report of Dr Hughes can then be considered, in addition to the other evidence. The ‘medical dispute’ must be referred again to the AMS (with the additional report of Dr Hughes) and, similarly, I can see no reason not to return it to Dr Noll.
DECISION
The decision of the Arbitrator is revoked and the matter is remitted to the Arbitrator for determination in accordance with these reasons.
COSTS
Part 8 of Chapter 7 of the 1998 Act governs costs. In my view the appropriate order in this matter is ‘No order as to the costs of the appeal’.
Dr Gabriel Fleming
Deputy President
29 September 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DR GABRIEL FLEMING, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
WORKERS COMPENSATION COMMISSION
DETERMINATION OF AN APPLICATION FOR RECONSIDERATION OF A DECISION OF THE COMMISSION CONSTITUTED BY A PRESIDENTIAL MEMBER
CITATION:Mayne Group Limited v Mikhail [2006] NSWWCCPD 249R
APPELLANT: Mayne Group Limited
RESPONDENT: Magdy Mikhail
APPLICANT FOR RECONSIDERATION: Magdy Mikhail
INSURER:Mayne Group Limited Workers Compensation Services
FILE NUMBER: WCC7905-04
DATE OF ARBITRATOR’S DECISION: 7 June 2005
DATE OF APPEAL DECISION: 29 September 2006
DATE OF RECONSIDERATION DECISION: 17 January 2007
SUBJECT MATTER OF DECISION: Section 350(3) Workplace Injury Management and Workers Compensation Act 1998; reconsideration of costs order made on appeal.
PRESIDENTIAL MEMBER: Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION: Appellant: Leigh Virtue & Associates
Respondent: Lyons & Lyons
ORDERS MADE ON APPEAL: The application to reconsider the decision to make ‘no order as to costs’ is refused.
No order as to costs of the application for reconsideration.
RECONSIDERATION OF ORDER
A Certificate of Determination issued on 7 June 2005 made an order in favour of the Respondent Worker in the sum of $6,250.00 in respect of 5% whole person impairment as a result of an injury sustained by him in the course of his employment with the Appellant Employer on 22 January 2003. The Appellant Employer appealed that decision.
In an appeal determined on 29 September 2006 Dr Gabriel Fleming, Deputy President of the Workers Compensation Commission of NSW (‘the Commission’), made the following orders in the matter of Mayne Group Limited v Mikhail [2006] NSWWCCPD 249:
“1.Leave to Appeal is granted.
2.The decision of the Arbitrator is revoked and the matter is remitted to the Arbitrator for determination in accordance with these reasons.
3.No order as to costs of the appeal.”
By letter dated 20 October 2006 the Respondent Worker lodged an Application for Reconsideration of order number three above dealing with costs of the appeal. By letter dated 14 November 2006 the Appellant Employer lodged submissions in opposition to the reconsideration.
PRELIMINARY MATTERS
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 submissions by the parties, 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.
RESPONDENT WORKER’S SUBMISSIONS:
The Respondent Worker seeks a reconsideration of the costs order under section 350(2) of 1998 Act. This is clearly a typing error and the relevant provision is section 350(3). Section 350 provides:
“350 Decisions of Commission
(1)Except as otherwise provided by this Act, a decision of the Commission under the Workers Compensation Acts is final and binding on the parties and is not subject to appeal or review.
(2)A decision of or proceeding before the Commission is not:
(a) to be vitiated because of any informality or want of form, or
(b) liable to be challenged, appealed against, reviewed, quashed or called into question by any court.
(3)The Commission may reconsider any matter that has been dealt with by the Commission and rescind, alter or amend any decision previously made or given by the Commission.”
The Respondent Worker submits:
·the Deputy President did not hear submissions from the parties on costs;
·the Deputy President did not give any reasons for her decision as to costs;
·the Commission has an unfettered discretion in making costs orders, but that discretion must be exercised judicially (Laguillo v Haden [1978] 1 NSWLR 306);
·ordinarily, costs follow the event;
·support for his position is found in Waters v P C Henderson (Aust) Pty Limited (Court of Appeal, unreported 6 July 1994) where Mahony JA quoted the following passage from the commentary to the former Part 52 Rule 11 of the Supreme Court Rules:
“Where the proceedings involve multiple issues the application of the rule that costs follow the event may involve hardship where a party succeeds on some issues and yet fails on others. Particularly is this so where, for example, a defendant succeeds on issues that occupied the bulk of the time taken by the proceedings. Nevertheless unless a particular issue or group of issues is clearly dominant or separable it will ordinarily be appropriate to award the costs of the proceedings to the successful party without attempting to differentiate between those particular issues on which it was successful and those on which it failed.”
·Reliance is also placed on the following statement by Toohey J in Hughes v Weston Australia Cricket Association (1986) ATPR 40-748:
“1. Ordinarily, costs follow the event and a successful litigant receives his costs in the absence of special circumstances justifying some other order.
2. Where a litigant has succeeded only upon a portion of his claim, the circumstances may make it reasonable that he bear the expense of litigating that portion upon which he has failed.
3. A successful party who has failed on certain issues may not only be deprived of the costs of those issues but may be ordered as well to pay the party’s costs of them. In this sense, ‘issue’ does not mean a precise issue in the technical pleading sense but any disputed question of fact or of law.” (references omitted)·the Appellant Employer was successful on one of eight grounds of appeal and that ground was a separate and discrete ground that played a relatively minor part in the appeal;
·the costs order made by Deputy President Fleming does not differentiate between the different issues raised on appeal and denies the Respondent Worker of costs in respect of the seven grounds on which he succeeded;
·the Appellant Employer’s grounds of appeal were broad ranging and multifarious and the Respondent Worker was put to considerable time and effort to defend unsuccessful grounds of appeal;
·to deny the Respondent Worker’s legal representatives of costs on issues on which he succeeded would be unjust and against public policy in the sense that resource rich employers/insurers would be encouraged to lodge multitudinous appeals knowing they would not face any cost sanction even if unsuccessful on a substantial part of the appeal, and
·the Appellant Employer should be ordered to pay 80% of the Respondent Worker costs of the appeal.
APPELLANT EMPLOYER’S SUBMISSIONS
The Appellant Employer submits that:
·the Deputy President gave the Respondent Worker the opportunity to make any submissions considered necessary and the failure to avail himself of that opportunity is not a ground for reconsideration;
·the Deputy President’s failure to give reasons for the costs order made does not give rise to an entitlement to have the decision reconsidered favourably to the Respondent Worker;
·costs should follow the event except in exceptional circumstances;
·reliance is placed on the decision of Sydney Opera House Trust v Sykes [2006] NSWWCCPD 227 at [34] and [35] (‘Sykes’);
·the Appellant Employer succeeded before Deputy President Fleming and, therefore, the appropriate order is that the Respondent Worker should pay the Appellant Employer’s costs;
·to the extent that there needs to be a reconsideration of the decision, it is only an order in favour of the Appellant Employer that should be substituted;
·there is nothing exceptional that warrants an order departing from the normal rule that costs follow the event;
·it is inappropriate to revisit the extent to which the appeal was successful in circumstances where the appeal was successful and the Arbitrator’s decision revoked;
·it was open to the Respondent Worker to concede that the Appellant Employer was entitled to succeed on appeal;
·the application for reconsideration does not address the matters relevant to such an application as identified in Comensoli v NSW Department of Juvenile Justice [2006] NSWWCCPD 138 (‘Comensoli’);
·there are no highly unusual circumstances and no manifest injustice in this matter other than the unusual circumstance that costs have not followed the event;
·the public interest would be advanced by changing the order so that costs follow the event;
·there is no fresh evidence and no submissions are advanced now that could not properly have been advanced at the time of the appeal;
·there is no error of fact;
·the only error of law is in failing to order that costs follow the event;
·any inadvertence by the Appellant Worker’s legal representative in failing to address costs at the time of the appeal is not such that would permit a reconsideration, and
·if the costs order is to be reconsidered the order should be that the Respondent Worker pay the Appellant Employer’s costs.
DISCUSSION AND FINDINGS
The power of the Commission (and the Compensation Court of NSW before it) to reconsider its decisions has been considered in numerous authorities. It has been noted that the discretion set out in section 36 of the Workers Compensation Act 1926 is in “extremely wide terms” (Hardaker v Wright & Bruce Pty Ltd [1962] SR (NSW) 244 at 248 (‘Hardaker’). Section 36 of the 1926 Act is in similar terms to section 350(3) of the 1998 Act. However, the discretion has been held not to be so wide as to allow reconsideration of an award because counsel failed to refer to relevant authorities (Selfe v A Cook & Sons Pty Ltd [1965] WCR 88) or because of mistake or inadvertence by a party’s solicitor (Hurst v Goodyear Tyre & Rubber Co (Australia) Ltd [1953] WCR 29).
It is important to keep in mind the distinction between the existence of the power and the occasion of its exercise, and the Commission should not lose sight of the general rule that the public interest requires that litigation should not proceed interminably (Hilliger v Hilliger (1952) 52 (NSW) 105.
In CSR Ltd v Bouwhuis (1991) 7 NSWCCR 223 Kirby P noted at 234:
“Within the former Workers Compensation Commission it was usually required that some change of circumstances should be shown to warrant the exercise of the discretion to rescind or amend a decision previously made. See e.g. Humphreys v Shell Co of Australia Limited (1947) 21 WCR (NSW) 134. The discovery of fresh evidence was the most common ground for applications to reopen such decisions. Yet, from the start, the Workers Compensation Commission adopted an approach that, only if the new evidence was such that , if believed, it would probably have an important influence on the result, would it be admitted and an earlier decision rescinded or amended. See e.g. Gosper v Bulwinkle [1931] 5 CCR (NSW) 204: cf Meredith v Innes (1931) 31 SR (NSW) 104; Deigman v State Coal Mines [1956] 30 WCR (NSW) 169.”
In Maksoudian v J Robins & Sons Pty Ltd (1993) 9 NSWCCR 642 Judge Bishop considered a reconsideration application under section 17(4) of the Compensation Court Act 1984 which was in substantially the same terms as section 350(3). His Honour stated at 645:
“The legal basis for a reconsideration for an award of the Court as laid down in section 36 of the previous legislation and section 17 of the present is well settled. There is no doubt that the discretion of this Court to reconsider is wide and far reaching. The task of the Court is to balance the policy requirement of finality of litigation with the obligation to rectify any clear cut injustice. The cases do not comprehensively indicate how the Court is to approach this task, but it does seem that two broad requirements are laid down. The first of these is that the material leading to an application for reconsideration must be what can broadly be described as ‘fresh evidence’, namely material that with reasonable diligence could not have been put before the Court at the time of the original proceedings and the application for reconsideration has to move with appropriate speed and diligence to bring that matter to the Court’s attention. The second point is that the fresh evidence must be of such a nature that if it had been before the Court when the original proceedings were heard it would more likely than not have affected the outcome of the proceedings: Hardaker v. Wright & Bruce Pty Ltd (1962) 62 SR (NSW) 244 and Hilliger v. Hilliger (1952) 52 SR (NSW) 105.”
In Blackwell v North Broken Hill Ltd (1998) 17 NSWCCR 237 Curtis J said at [8]:
“The authorities upon s 36 generally restricted reconsideration to reopening awards upon the discovery of fresh evidence, it being necessary to show that with reasonable care and diligence, that evidence could not have been brought forward in the original proceedings.”
I note the Appellant Employer’s reliance on Comensoli as establishing that the Commission should only reconsider a previous order in exceptional circumstances so that the reconsideration is necessary to prevent a manifest injustice (Comensoli at [64]). Such a restriction on the reconsideration power is contrary to the long-standing authorities noted above. I do not agree that the reconsideration power should be so restricted. A more detailed discussion of the reconsideration power is set out in Samuel v Sebel Furniture Limited [2006] NSWWCCPD 141 at [39] to [59] which was followed in Nan v Country Road Freight Services Pty Limited [2006] NSWWCCPD 160 at [58].
However, in the present matter there is no fresh evidence that is relied on by the Respondent Worker. The submission that the Deputy President did not hear submissions on costs ignores the fact that the Respondent Worker had every opportunity to make written and oral submissions during the appeal proceedings. He failed to make any submissions on costs, presumably confidant that his submissions would prevail on all issues. The failure to make any submissions on costs was either a mistake or inadvertence by the Respondent Worker’s legal representatives and does not constitute a valid ground for reconsideration of the costs order made by Deputy President Fleming.
The Appellant Employer’s submission that a costs order should be made in its favour against the Respondent Worker ignores section 341 of the 1998 Act which provides:
“(4) The Commission may not order the payment of costs by a claimant unless the Commission is satisfied that the claim was frivolous or vexatious, fraudulent or made without proper justification.”
There is no evidence that any of the provisions of section 341(4) is applicable in the present case. In these circumstances it is quite inappropriate for the Appellant Employer to seek such an order.
It follows that neither party has made out a case for a reconsideration and that the application must fail.
However, it is important to note that the argument the Respondent Worker has sought to raise in the reconsideration is not without merit. The Appellant Employer’s reliance on my decision in Sykes fails to acknowledge the full import of the authorities quoted in that case. In Sykes I quoted from McHugh J in Oshlack v. Richmond River Council (1998) 193 CLR 72 at 97-98 (‘Oshlack’) where his Honour said:
“The traditional exceptions to the usual order as to costs focus on the conduct of the successful party which disentitles it to the beneficial exercise of the discretion. In Anglo-Cyprian Trade Agencies Ltd. v. Paphos Wine Industries Ltd, Devlin J formulated the relevant principle as follows:
‘No doubt, the ordinary rule is that, where a plaintiff has been successful, he ought not be deprived of his costs, or, at any rate, made to pay the costs of the other side, unless he has been guilty of some sort of misconduct.’
‘Misconduct’ in this context means misconduct relating to the litigation, or the circumstances leading up to the litigation. Thus, the court may properly depart from the usual order as to costs when the successful party by its lax conduct effectively invites the litigation; unnecessarily protracts the proceedings; succeeds on a point not argued before a lower court; prosecutes the matter solely for the purpose of increasing the costs recoverable; or obtains relief which the unsuccessful party had already offered in settlement of the dispute.” (emphasis added)
Oshlack does not support the Appellant Employer’s position. Oshlack and the authorities cited by the Respondent Worker in his submissions make it clear that if an employer unnecessarily protracts the appeal process by taking unreasonable and unnecessary points or it fails on points that take up a disproportionate period of time in the appeal process, then it may well find that it is ordered to pay part or all of the unsuccessful worker’s costs of the appeal. Appellant Employer’s have a duty to conduct appeals efficiently and expeditiously. A ‘scattergun’ approach to appeals where every imaginable point is raised regardless of merit is unhelpful and results in the review process taking longer than it should and may result in workers incurring costs that they should not have to incur.
DECISION
The application to reconsider the decision to make ‘no order as to costs’ is refused.
COSTS
No order as to costs of the application for reconsideration.
Bill Roche
Deputy President
17 January 2007
I 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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