Mayne Group Ltd v Bright
[2007] NSWWCCPD 19
•19 January 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Mayne Group Ltd v Bright [2007] NSWWCCPD 19
APPELLANT: Mayne Group Ltd
RESPONDENT: Jennifer Bright
INSURER:Mayne Group Ltd
FILE NUMBER: WCC6275-05
DATE OF ARBITRATOR’S DECISION: 25 November 2005
DATE OF APPEAL DECISION: 19 January 2007
SUBJECT MATTER OF DECISION: Procedural fairness; treatment of evidence; adequacy of reasons
PRESIDENTIAL MEMBER: Acting Deputy President Robin Handley
HEARING:16 January 2007
REPRESENTATION: Appellant: P Macken, Solicitor; Leigh Virtue & Associates, Solicitors
Respondent: L Goodman, Counsel; Slater & Gordon, Lawyers
ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 25 November 2005 is confirmed.
The Appellant, Mayne Group Ltd, is to pay the costs of the Respondent, Ms Bright, in this appeal.
BACKGROUND TO THE APPEAL
On 12 December 2005, Mayne Group Ltd (‘Mayne Group’) sought leave in the Workers Compensation Commission (‘the Commission’) to bring an appeal against the decision of an arbitrator dated 25 November 2005. The Respondent to the appeal is Jennifer Bright (also referred to as ‘the Applicant’). Mayne Group is a workers compensation self-insurer.
Ms Bright was born on 14 May 1952 and is aged 54. She is separated from her husband and has no dependants. Ms Bright was employed by Mayne Group as an assembler from October 1997 and was previously employed in the same position by API Ltd for approximately 13 years. She worked five hours a day on five days a week. In about May 2004, she began to experience stiffness and pain in her thumbs, the right being worse than the left. She also began to experience pins and needles in her fingers and pain travelling to her right wrist. Ms Bright consulted her family doctor, Dr P Sarian, who referred her to a specialist, Dr Vijay Maniam, Orthopaedic Surgeon. Dr Maniam recommended carpal tunnel surgery but Ms Bright has not had this because Mayne Group has denied liability. Dr Sarian placed her on light duties and, in about December 2004, Ms Bright was transferred to an office job dealing with stock control. She finds this more manageable but states her thumbs have not improved.
Ms Bright gave notice of her injury to her employer on 8 June 2004 when she also lodged a claim for workers compensation. On 2 May 2005, the Commission registered Ms Bright’s ‘Application to Resolve a Dispute’ in respect of her claim for weekly compensation and for medical, hospital or related expenses. In the Application, her injury was described as (1) tenosynovitis in both thumbs, (2) trigger finger in the right thumb, and (3) bilateral carpal tunnel syndrome.
On 11 July 2005, the Arbitrator conducted a teleconference with the parties. On 18 July 2005, Mayne Group filed a ‘Reply’. On 7 September 2005, the Arbitrator conducted a conciliation conference with the parties and, this having proved unsuccessful, commenced an arbitration hearing, which continued on 19 October 2005 and concluded on 25 October 2005. (There is no recording of the proceedings on the first day of the arbitration hearing and, therefore, a transcript is only available for the second and third days.) On 15 November 2005, Mayne Group sought leave in the Commission to bring an appeal against what it described as “various interlocutory decisions made by the Arbitrator” in the course of the arbitration hearing. On 25 November 2005, the Arbitrator issued his decision in the terms set out below.
On 12 December 2005, Mayne Group sought leave to bring an appeal against the substantive decision of the Arbitrator. In its accompanying submissions, Mayne Group stated it had been unable to finalise its submissions and grounds of appeal because information sought from the Commission, including the transcript of the proceedings, had not yet been provided. The Commission provided the transcript of proceedings on 19 and 25 October 2005 with a covering letter dated 16 January 2006.
By letter dated 23 January 2006, Mayne Group’s solicitors acknowledged receipt of the transcript and stated: “As indicated we will address this matter at the hearing and we await notification of a hearing in due course.” I note this is contrary to the Commission’s Practice Direction No 6, in effect at the time, which required that “submissions detailing the arguments in favour of review of the decision sought to be appealed against and the appealing party’s view as to the correct decision” should be included with the ‘Application – Appeal Against a Decision of an Arbitrator’. Even allowing for the need to review the transcript, any further submissions should have been provided within a reasonable period of the transcript being provided. This did not happen.
Ms Bright’s solicitors lodged a ‘Notice of Opposition’ to the substantive appeal on 25 January 2006 and to the appeal in respect of the interlocutory decisions on 8 February 2006.
In light of Mayne Group’s solicitors’ letter dated 23 January 2006 indicating that Mayne Group wished to make further submissions, on 27 October 2006, the Commission issued Directions requiring further written submissions from the parties. Mayne Group lodged 20 pages of further submissions on 13 November 2006. These submissions included 12 pages comprising 67 paragraphs of further submissions in respect of the transcript. Ms Bright’s solicitors lodged a one page reply on 27 November 2006. They stated:
“It is not clear to which of the earlier ‘Grounds of Appeal’ these submissions relate.
The Worker submits that it is not appropriate for the Worker to respond to these further submissions in the form in which they are filed. The Worker submits that it is not appropriate to guess which ‘grounds’ they relate to ...
The Worker does wish to respond to properly made submissions, but submits that it cannot do so in the current form of the Appellant’s Further Submissions.”
The Commission decided that, in the circumstances, it was appropriate to hear oral submissions from the parties, and conducted a hearing on 16 January 2007.
THE DECISION UNDER REVIEW
The Certificate of Determination, dated 25 November 2005, records the Arbitrator’s orders as follows:
“(i) The Respondent to pay the Applicant weekly benefits pursuant to Section 267 of the 1998 Act for the period from the 7th July, 2004 to the 20th July, 2004, and amounting to $1,129.32.
(ii) The Respondent to pay the Applicant weekly benefits of $169.56 per week pursuant to Section 40 of the Act from the 21st July, 2004, and ongoing in accordance with her statutory entitlements.
(iii) Respondent to pay the Applicant’s reasonable medical expenses, pursuant to Section 60 of the Act upon production of accounts or receipts.
(iv) Respondent to pay the Applicant’s costs as agreed or assessed on an indemnity basis.”
In his ‘Statement of Reasons for Decision’, at paragraph 16, the Arbitrator summarised his findings as follows:
“In summary, the Applicant:
(i) Has suffered an injury by way of aggravation, acceleration, exacerbation or deterioration of a disease, as contemplated by Section 16 of the 1987 Act;
(ii) The injury was related to the Applicant’s employment (Section 4) which was a substantial contributing factor (Section 9A);
(iii) The proper Respondent is Mayne Group Limited (ABN 56.004.073.410) as clearly nominated at least as early as the execution of the Respondent’s Application for Late Lodgement (to which the Reply was annexed) on the 16th July, 2005.
(iv) The Respondent was a self-insurer and was the Applicant’s employer.
(v) The Applicant suffers an incapacity (which is partial only) which entitles her to recover weekly benefits pursuant to Section 40 of the Act.
(vi) There was a two (2) week period during which the Applicant was entitled to recover the totality of her weekly earnings at the rate of $564.64 per week.
(vii) The Applicant is entitled to her reasonable medical expenses pursuant to Section 60 of the Act.”
ISSUES IN DISPUTE
At the hearing, the parties agreed that both appeals could be dealt with as one on the basis that the interlocutory matters appealed against have been subsumed in the grounds of the appeal against the substantive decision. Mayne Group’s solicitor, Mr Macken, was asked to clarify the grounds of appeal. He stated that the grounds fell under four main headings: procedural fairness, evidentiary issues, adequacy of reasons, and errors of law and fact in the Arbitrator’s decision. These grounds and the parties’ submissions are discussed below.
LEAVE
Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’). The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act. With regard to section 352(2), I am satisfied that the compensation at issue exceeds $5,000 and constitutes 100% of the amount awarded in the decision appealed against. I therefore grant leave to appeal.
FRESH EVIDENCE
Fresh evidence on appeal is governed by section 352(6) of the 1998 Act, which provides as follows:
“(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.”
Practice Direction No 6 sets out the process for seeking leave of the Commission to give ‘new evidence’ on appeal. It provides as follows:
“New Evidence
Where a party seeks leave to give new evidence in relation to the decision appealed against, that party must serve a copy of the new evidence on the other parties to the dispute when serving the Application or Opposition.
In general, the Commission will allow new evidence to be introduced only where it can be demonstrated that the new evidence could not reasonably have been obtained by the party and tendered in proceedings before the Arbitrator and that failure to allow the new evidence would cause a substantial injustice in the circumstances of the individual case.”
Practice Direction No 6 also provides that if new evidence is sought to be relied upon, the Application or Opposition to the Appeal must contain:
“ -a schedule of the new evidence,
-a copy of the new evidence,
-a brief outline of the new evidence and the reasons why it was not given in the
proceedings before the Arbitrator, and
-submissions why the new evidence should be admitted.”
Mayne Group seeks to introduce as new evidence additional evidence that was the subject of an ‘Application to Admit Late Evidence’, which was rejected by the Arbitrator at the adjourned arbitration hearing on Tuesday 25 October 2005. On that day, Mayne Group sought leave to introduce late video evidence recorded on 24 September 2005. Mr Macken said the video had been foreshadowed in the ‘Reply’ and had important probative value to the resolution of the issues between the parties (transcript page 115). At paragraph 4.2 of the ‘Reply’, under the heading “Documents and information you intend to use but do not yet have”, reference was made to “CD rom/VHS ... For these proceedings ... Not yet obtained ... [Date of expected availability] September 2005”.
The only explanation Mr Macken gave as to why, when the video was recorded on 24 September 2005, no application to admit the video as late evidence was filed until Friday 21 October 2005, was that he had only received the video that Friday. Ms Bright’s counsel, Ms Goodman, who had previously been unaware of the video, had not seen it, and who confirmed that a copy of the ‘Application to Admit Late Documents’ had not yet been served on the Applicant, opposed the application on the ground that to introduce such evidence during the course of submissions was highly prejudicial (transcript pages 117 – 118).
The Arbitrator noted that in deciding whether the Application to admit the video as late evidence should be granted, he was required to weigh up issues of procedural fairness. He noted there had been no adequate explanation for the lateness of the Application, nor why the video recording was not undertaken until after the first day of the arbitration hearing on 7 September 2005. Apart from reference to a video in the Reply, no other warning of it was given to the Applicant who was therefore taken by surprise when an Application was made more than three months after the Reply was filed. Moreover, the Application was made when oral submissions were well advanced and could well have been concluded on 19 October 2005 had it not been for the ill health of Ms Bright and the lateness of the hour (7pm). The Arbitrator therefore refused the Application to admit the video as late evidence (transcript page 121).
I note Rule 40(2)(b) of the Workers Compensation Commission Rules 2003 (‘2003 Rules’), in effect at the time, required that a respondent may not introduce late evidence unless “(b) the evidence is served on all parties and lodged as soon as practicable after the evidence becomes available”. In my view, this did not occur here and no adequate explanation was given for the lateness of the Application. I am not therefore satisfied the Arbitrator breached the requirement for procedural fairness or otherwise made any error of law by refusing to admit the video as late evidence.
As to the admission of the video as new evidence in the appeal, Mayne Group submits the video should be admitted because it is relevant to the determination of the issues. In the light of the above discussion, I am not satisfied there has been an adequate explanation as to why failure to allow the new evidence would cause a substantial injustice in the circumstances of this case. Leave to admit the video as fresh evidence is refused.
SUBMISSIONS, DISCUSSION AND FINDINGS
The role of the Presidential Member on appeal is to review the Arbitrator’s decision as a whole. The review is not a rehearing. In this case, Mayne Group must demonstrate that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172; The King Island Company Limited v Deery [2005] NSWWCCPD 1) in order to enliven the Presidential Member’s power to interfere with the Arbitrator’s decision pursuant to section 352(7) of the 1998 Act. Where the discretion exercised by the Arbitrator is challenged, interference with the exercise of that discretion will require evidence of an obvious miscarriage such that the discretion has not been exercised fairly and lawfully: see Deputy President Fleming’s comment in Knight v Eyles Nominees Pty Ltd [2004] NSWWCCPD 73, at paragraph 40.
Mayne Group made a large number of written submissions concerning the Arbitrator’s conduct of the proceedings and his determination. The Further Submissions lodged on 13 November 2006 adopted what might be described as a scattergun approach to the transcript, and it was difficult to relate the criticisms of the Arbitrator’s conduct of the proceedings to the grounds of appeal set out in the original submissions on the appeal. In my view, it was understandable that Ms Bright’s solicitors found it difficult to respond. At my request, at the hearing, Mayne Group’s solicitor, Mr Macken, clarified the main grounds of appeal, but I acknowledge that this left Ms Bright’s counsel, Ms Goodman, in the unenviable situation of having to respond to matters that were not clear from the written submissions and in respect of which she submitted Ms Bright’s position was prejudiced by reason of her not having had the opportunity to fully prepare her case prior to the hearing. Whilst I am not unsympathetic to that submission, in my view, Ms Goodman’s oral submissions, when considered in conjunction with her written submissions, adequately addressed the relevant issues such that I am in a position to properly undertake a review of the Arbitrator’s decision.
I have had difficulty understanding Mr Macken’s written submissions, as it seems did Ms Goodman, and this has made my review of the Arbitrator’s decision a difficult one. I have addressed Mayne Group’s grounds of review below under the main headings identified by Mr Macken at the hearing. In doing so, I have attempted to address the principal issues raised with reference, where appropriate, to the relevant written submissions.
Procedural Fairness
The Identity of the Respondent
Mayne Group submits the Arbitrator erred in allowing the Applicant to amend the ‘Application to Resolve a Dispute’ to substitute Mayne Group Ltd for Mayne Health Ltd and in not affording Mayne Group procedural fairness in relation thereto. A significant amount of time was spent during the course of the arbitration dealing with this issue. I do not propose to canvass the submissions made by the parties at the hearing nor those on the appeal at any length. In my view, the pertinent facts are these. The ‘Application to Resolve a Dispute’, registered by the Commission on 2 May 2005, named Mayne Health Ltd, of 55 Kirby St, Rydalmere, NSW 2116, as the Respondent employer, and Mayne Group Ltd of PO Box 1996, Toowong, QLD 4066, as the insurer. I accept the evidence of the Certificate of Service filed by Ms Bright’s solicitors with the Commission on 22 June 2005 that copies of the Application were served by post on both Mayne Health Ltd and Mayne Group Ltd at the nominated addresses on 3 May 2005.
A ‘Direction for Production’ of documents was also served on Mayne Health Ltd on the same date, and Mary-Lynn Stuart, Workplace Development Coordinator, under the letterhead “Mayne” of 55 Kirby St, Rydalmere, responded to that Direction by letter to the Commission dated 14 June 2005. The ‘Reply’ to the Application, filed on 18 July 2005, named Mayne Group Ltd of PO Box 1996, Toowong, QLD 4066 as the respondent, with the insurer details being marked as “N/A”.
At the appeal hearing, Mayne Group submitted that it never received the ‘Application to Resolve a Dispute’ and, therefore, at the hearing on 19 October 2005, when the Arbitrator allowed an amendment of the ‘Application to Resolve a Dispute’, it was asked to meet a case without notice and thereby denied procedural fairness. Mr Macken contended the ‘Application to Resolve a Dispute’ was not served on Mayne Group’s registered office as required by Rule 21(2) of the 2003 Rules. Ms Goodman stated that she was not aware that the identity of the employer and, therefore, of the correct respondent was in issue until 19 October 2005. In Fishburn v Integral Energy Australia [2005] NSWWCCPD 53, Deputy President Fleming said, at paragraph 77: “Procedural fairness requires that a party be appraised of the case against him or her and be given the opportunity to meet that case.”
The ‘Application to Resolve a Dispute’ was served on both Mayne Health Ltd and Mayne Group Ltd. It appears that Mayne Health is one of a number of business names under which Mayne Group Ltd trades, but that Mayne Health is not a separate legal entity. Ms Goodman noted that Mayne Group’s letter to Ms Bright dated 15 July 2004 concerning her claim lodged on 8 June 2004, on the left hand side of the letterhead, bears the Mayne logo and Mayne Group Ltd and its ABN, and, on the right hand side, states the address as Group Workers Compensation, PO Box 1996, Toowong. Ms Goodman submitted that the most important matter was that the correct legal entity, Mayne Group, was aware of the proceedings. She submitted that, clearly, it was. The 2003 Rules allowed for relief from strict adherence to the Rules, and she noted the decision in Mayne Group Ltd v Roberts & Faulding Health Care Pty Ltd [2005] NSWWCCPD 15, where Deputy President Byron decided that the use of the wrong word in the Applicant’s dealings with Mayne Group was not fatal to her claim because the information provided to Mayne Group was sufficient to enable it to make a proper assessment of the Applicant’s entitlements.
Ms Goodman also noted that the First Aid Record of Treatment completed in respect of Ms Bright on 8 June 2004 refers at the top of the form to Rydalmere and at the bottom to Mayne Group trading as Mayne Logistics. The “Incident & Investigation Notification Report”, apparently completed on 8 June 2004 although it also bears the date 8 May 2004, refers to Mayne Health being the business name, and the address at which the incident occurred as 55 Kirby St, Rydalmere.
In my view, if the identity of the Respondent was to be put in issue, this should have been specifically raised in the ‘Reply’ so that the correct identity of the Respondent could be ascertained and the Applicant could address any further procedural requirements at this early stage in the proceedings. The fact that the ‘Reply’ nominated Mayne Group Ltd as the respondent and its representative as Leigh Virtue & Associates, who undertook carriage of the proceedings for Mayne Group, was a matter that it was reasonable for Ms Bright’s solicitors to rely on in their pursuit of the proceedings. The Reply stated merely: “It should be noted that employment, insurance, and all other issues are disputed and that the Application has not been served, so that an amended Reply may need to be filed.” In my view, this was inadequate, and failed to put either the Applicant or the Commission on notice that the identity of the employer was at issue. Moreover, it appears that no issue was raised as to whether the correct respondent was identified in the ‘Application to Resolve a Dispute’ until the second day of the arbitration hearing on 19 October 2005.
I am not satisfied that the Arbitrator made any error at the hearing on 19 October 2005 in allowing the Applicant to amend the ‘Application to Resolve a Dispute’ to include as the respondent Mayne Group Ltd rather than Mayne Health Ltd and by refusing Mayne Group’s application to strike out the application for non-service of the ‘Application to Resolve a Dispute’ in accordance with the 2003 Rules then in effect. The Arbitrator was entitled to exercise the discretion to waive strict compliance under Rule 6 if he thought fit. The Arbitrator pointed to a course of conduct from which Mayne Group Ltd’s identity as the Respondent could be implied and he was satisfied from the documents produced by Ms Bright’s solicitors that there had been effective service. He commented (Statement of Reasons, page 9):
“Even if there was any doubt on the issue it would be inconsistent with the objectives of the Commission ... and a greater procedural unfairness to the Applicant to rule against service, than any suggested procedural unfairness to the Respondent in finding that the same had been effected.”
I am also not satisfied by Mayne Group’s submissions that the Arbitrator denied it procedural fairness in allowing the amendment of the ‘Application to Resolve a Dispute’. My review of the transcript suggests the Arbitrator listened patiently to the arguments made by Mr Macken, and there appears to be no substance to the contention that Mayne Group’s position was prejudiced.
Arbitrator’s refusal to accede to Mayne Group’s request to issue Directions for Production
Mayne Group applied to the Registrar for the issue of Directions for Production on 28 September 2005, 4 October 2005 and 13 October 2005, outside the normal period for such applications to be made, in respect of five medical practitioners, Mount Druitt Hospital and Credit Union Australia Ltd (to whom there was reference in documents produced under direction by Dr Sarian and QBE). The Arbitrator refused to exercise his discretion to permit the issue of these Directions on the ground of relevance, with the benefit of sworn oral evidence from Ms Bright that she had not consulted any of the doctors with regard to any injury which is the subject of her claim. The Arbitrator sets out his reasons at pages 15 to 18 of his Statement of Reasons, noting that to have granted these applications would have further delayed the arbitration and caused Ms Bright procedural unfairness.
I have reviewed the relevant pages of the transcript and the Arbitrator’s Statement of Reasons. I am satisfied that the Arbitrator exercised his discretion with proper regard to issues of procedural fairness and gave proper consideration to balancing the rights of the parties.
Arbitrator’s refusal to allow the respondent to cross-examine
Mr Macken pointed to the Arbitrator’s refusal to allow him to ask Ms Bright a question in cross-examination concerning what was stated on her claim for compensation about the hours she worked per week (transcript pages 34 to 35). Ms Goodman objected to the question and the Arbitrator ruled that what was stated on the form was a matter for him to decide. Mr Macken also pointed to the Arbitrator’s refusal to allow him to cross-examine Ms Cassidy, Ms Bright’s solicitor, on her evidence, in answer to questions from the Arbitrator, that she had obtained certain documents on an inspection of documents produced under direction by the Respondent to the Commission (transcript pages 45 and 49).
I note the decision of the NSW Court of Appeal in Aluminium Louvres & Ceilings Pty Ltd v Zheng [2006] NSWCA 34 where the Court held, at paragraph 37:
“There is no legal right to cross-examine an applicant or other witness in the Workers Compensation Commission, and decisions whether to allow cross-examination or to limit it are discretionary decisions which must be made in the context of the legislation and practices which the Commission follows, and, at least as importantly, in the context of the facts and circumstances of the case under consideration.”
Ms Goodman noted that, in relation to Ms Bright, there was other evidence as to the number of hours per week she worked which indicated that Ms Bright had made a mistake on the claim form. Secondly, in relation to Ms Cassidy, the Arbitrator’s reason for calling her to give evidence was merely to confirm the source of the documents the admission of which was sought by the Applicant.
Having reviewed the transcript, I am not satisfied that there was any lack of procedural fairness by the Arbitrator. In my view, he was entitled to exercise his discretion to disallow Mr Macken’s questions in the particular circumstances arising.
Admission of evidence by Arbitrator over objections by the Respondent
Early on in the arbitration hearing on 19 October 2005, Mr Macken objected to the admission of documents tendered by the Applicant comprising all the documents produced in response to the Direction to Produce served on Mayne Health Ltd. These documents included those that had been the subject of an Application to Admit Late Documents filed on 11 July 2005 (transcript page 45). In his Statement of Reasons (at page 21), the Arbitrator acknowledged that he had agreed to allow the Respondent seven days in which to examine the originals at the Commission and to make written submissions. However, at the end of that day’s hearing, the arbitration was adjourned until 25 October 2005, but the documents in issue were not inspected in the interim before 25 October 2005 nor were any further submissions made on behalf of the Respondent at the hearing on that day.
In his submissions, Mr Macken did not provide any adequate explanation as to why I should consider this a breach of procedural fairness and, in the circumstances, I am not satisfied that it was.
Alleged bias/lack of impartiality by the Arbitrator
Mr Macken submits the Arbitrator’s behaviour during the course of the arbitration hearing was such as to convey a reasonable apprehension of bias and that the Arbitrator erred in failing to disqualify himself at Mr Macken’s request. In his Further Submissions, Mr Macken referred to various instances where the Arbitrator ruled against him in relation to the admission of evidence, in not allowing him to pursue a particular line, and in not allowing him to ask certain questions in cross-examination. The transcript (at page 53 and following) shows that Mr Macken asked the Arbitrator to disqualify himself on the grounds, first, that rulings indicated the possibility of pre-judgement of issues to be determined, second, that the Arbitrator had indicated that extraordinary circumstances would be required to ground any interlocutory orders sought, and third, bias towards Dr Edwards about whom the Arbitrator made an adverse comment during the course of the (unrecorded) conciliation proceedings, although Mr Macken acknowledged that the Arbitrator immediately resiled from that comment.
In his Statement of Reasons (at page 22), the Arbitrator said he declined to disqualify himself, first, because he had immediately withdrawn the casual remark about Dr Edwards made during the conciliation phase, second, there would need to be extraordinary circumstances to justify the issue of Directions to Produce during a part-heard arbitration, and third, he took the view that documents produced by the Respondents spoke for themselves and further submissions on this from Mr Macken would be of no assistance and would merely serve to prolong proceedings. The Arbitrator emphasised that he believed he had been to considerable lengths to guarantee procedural fairness.
Ms Goodman noted that “there was a good deal of frustration” because very technical points were being taken by Mr Macken which had not been previously raised.
I have reviewed relevant parts of the transcript. I am not persuaded that the Arbitrator’s conduct during the course of the hearing was such as to give rise to a reasonable apprehension of bias. I do not accept Mr Macken’s submission that the Arbitrator was “stepping into the arena” and, on occasion, acting as an advocate for the Applicant. As I mentioned above, in my view, the Arbitrator showed considerable patience in dealing with Mr Macken’s approach in putting his client’s case. These were not court proceedings. This was an arbitration conducted pursuant to a legislative scheme for the expeditious handling of workers compensation claims. I am not satisfied that the Arbitrator displayed bias or otherwise denied procedural fairness to Mayne Group.
Evidentiary Issues
Mr Macken submits the allegations of injury and the question of disease were not properly considered or addressed by the Arbitrator, that the Arbitrator erred in attributing evidentiary significance to correspondence in the proceedings on the issue of service and the identity of the Respondent. Mr Macken also contends the Arbitrator’s approach to the evidence amounted in some instances to a reversal of the onus of proof. For example, the Arbitrator asked Mr Macken, who contended that there was no evidence that the Respondent had produced certain documents, whether he was in a position to say that certain documents produced by Mayne Health Ltd under direction to the Commission were not those of his client (for example, transcript pages 32, 40).
The Arbitrator’s consideration of the issue of injury and disease are considered below. On the issue of the alleged reversal of the onus of proof, Ms Goodman submits the Arbitrator was merely asking for information from Mr Macken as to the source of the documents which had been produced under direction. Having reviewed the transcript, I agree. There was obviously frustration over objections from Mr Macken as to the source of the documents when it was clear these had been produced under direction. I am not satisfied the Arbitrator made any error in handling what appears from the transcript to have been a difficult situation.
Adequacy of Reasons
Pursuant to section 294(2) of the 1998 Act and Rule 73 of the 2003 Rules in effect at the time of the decision (now Rule 15.6 of the Workers Compensation Commission Rules 2006), the Arbitrator had an obligation to provide a brief statement of reasons for his decision setting out, first, findings on material questions of fact and the evidence or other material on which those findings were based, second, the applicable law, and third, the reasoning process that led to his determination. As Deputy President Fleming noted in Mayne Health Group t/as Nepean Private Hospital v Sarah Sandford [2002] NSWWCCPD 6:
“46. The standard by which the ‘adequacy’ of reasons my be determined is relative to the nature and context of the decision made and the decision-maker ...
47. The Commission is not a court and its objectives are to provide a dispute resolution process that is fair and cost effective for the parties to a workers compensation dispute. Proceedings are conducted with as little formality and technicality as the proper consideration of the matter permits. The contents of statements of reasons reflects this process and should not on review, be ‘construed minutely and finely with an eye keenly attuned to the perception of error’ ...
48. To succeed on the ground of ‘inadequate reasons’ it will be necessary for the Appellant to demonstrate not only that the reasons are inadequate but that the inadequacy sufficiently demonstrates that the Arbitrator has failed to exercise his or her statutory duty to fairly and lawfully determine the application.”
Mr Macken submitted, first, that the Arbitrator failed to give adequate reasons for his decision not to disqualify himself: he failed to discuss the application of the test of reasonable apprehension of bias – the view of the reasonable bystander. In my view, the Arbitrator gave adequate reasons, referred to above, both at the arbitration hearing and in his Statement of Reasons.
Second, Mr Macken submits the Arbitrator failed to give adequate reasons for his findings in relation to the date of injury. The injury was alleged to have occurred on one day - 8 June 2004. The WorkCover certificates of Dr Sarian nominate 21 May 2004 as the date of injury. Ms Goodman submits the evidence shows Ms Bright reported the injury to her employer on 8 June 2004, as is clear from the Incident and Investigation Notification Report referred to by the Arbitrator on page 13 of his Statement of Reasons.
I note that at pages 18 to 20, the Arbitrator discussed the date of injury and the application of section 16 of the 1987 Act. Although recognising that a wrong date had been inserted in Part 3 of the ‘Application to Resolve a Dispute’, he reasoned that “to deny the Applicant a remedy because a wrong date was typed in Part 3 would, on any balance of procedural fairness, be unfair to the Applicant”. I am not satisfied that the Arbitrator’s reasons on this issue were inadequate.
Third, Mr Macken submits the Arbitrator failed to give adequate reasons for his findings in relation to the injury constituting a disease, whether that disease was caused or aggravated by Ms Bright’s employment, and as to whether employment was a substantial contributing factor to the injury. Mr Macken contends that in paragraph 16 of the Statement of Reasons, the Arbitrator’s findings are imprecise and not supported by reasons. However, I note this paragraph was a summary of his previous discussion. Mr Macken also points to page 30, paragraph (iii) of the Arbitrator’s Statement of Reasons and submits the Arbitrator failed to discuss whether employment was a substantial contributing factor to the injury and failed to take into account the kind of matters set out in section 9A(2) such as previous conditions, injuries etc.
Ms Goodman submits these matters were dealt with quite extensively by the Arbitrator but in the context of other issues, for example, as to the identity of the Respondent.
I note the Arbitrator discusses the medical evidence as to tenosynovitis in both thumbs, trigger finger in the right thumb and carpal tunnel syndrome at pages 25 to 30 of his Statement of Reasons. While there appears to be a difference of medical opinion as to the exact diagnosis of Ms Bright’s condition, the Applicant relied on Dr Maniam’s diagnosis of tenosynovitis in both thumbs, trigger finger, and bilateral carpal tunnel syndrome, and the Arbitrator expressed the view (page 29): “Dr Maniam appears to have conducted the most searching clinical tests and diagnosis.” Dr Maniam found a causal connection with her employment with Mayne Group, which he said was a substantial contributing factor to her injury. The Arbitrator preferred Dr Maniam’s opinion to those of Drs Hughes, Edwards and Stapleton (page 30). The Arbitrator found it likely that Ms Bright suffers from a degenerative disease as suggested by Mayne Group’s medical evidence, but concluded that this was aggravated by her employment, namely by the repetitive nature of her normal duties, which was a substantial contributing factor to her injury.
In my view, the Arbitrator clearly considered the possibility of a pre-existing condition. Whilst he did not spell out the terms of section 9A and what constitutes a substantial contributing factor, I am satisfied that his discussion was, in the circumstances, adequate, and there is no indication that he failed to fairly and lawfully determine the issues. I therefore reject this ground of appeal.
Errors of law and fact
Mr Macken submits the Arbitrator made errors of fact and law in his findings as to injury, the claim for workers compensation, and notification of injury in relation to three different conditions: tenosynovitis, trigger thumb and carpal tunnel syndrome. Mr Macken submitted the WorkCover certificates refer to an injury in May 2004. The Arbitrator should have excluded these documents since such an alleged injury was not before him, the alleged injury in issue having taken place on 8 June 2004. I reject this submission. These issues were considered by the Arbitrator, as discussed above.
Mr Macken also submits the Arbitrator failed to satisfy the statutory requirement of section 355 of the 1998 Act in that he failed to use his best endeavours to bring the parties to the dispute – namely Ms Bright and Mayne Group – to a settlement acceptable to them. He contends that because Mayne Group only became a party to the proceedings after the Arbitrator allowed an amendment to the ‘Application to Resolve a Dispute’ during the course of the arbitration hearing on 19 October 2005, the Arbitrator could not possibly have satisfied the requirements of section 355. Ms Goodman submitted that the Arbitrator did attempt conciliation between the parties at the conciliation conference on 7 September 2005. She said the issue raised goes once again to the issue of the identity of the Respondent.
In my view, the issue of the identity of the Respondent not properly being in issue at the time of the conciliation conference on 7 September 2005, and bearing in mind that Mayne Health appears to be one of a number of business names under which Mayne Group conducts its business, and that Mr Macken, who has represented Mayne Group throughout these proceedings, participated in that conference, there is no substance to this ground which I therefore reject as being specious.
DECISION
I am not satisfied by what I understand to be Mayne Group’s submissions that the Arbitrator made any error of law or fact in his decision warranting my interference with that decision. The Arbitrator’s decision dated 25 November 2005 is therefore confirmed.
COSTS
The Appellant, Mayne Group Ltd, is to pay the costs of the Respondent, Ms Bright, in this appeal.
Robin Handley
Acting Deputy President
19 January 2007
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ROBIN HANDLEY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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