Mayne Health Group t/as Nepean Private Hospital v Sandford
[2002] NSWWCCPD 6
•30 October 2002
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Mayne Health Group t/as Nepean Private Hospital v Sarah Sandford [2002] NSW WCC PD 6
APPELLANT: Mayne Group Limited t/as Nepean Private Hospital
RESPONDENT: Sarah Sandford
INSURER:Mayne Health Medicentre (Mayne Nickless Ltd)
FILE NO: WCC154-2002
DATE OF DECISION: 30 October 2002
PRESIDENTIAL MEMBER: Dr Gabriel Fleming
Deputy President
DECISION UNDER APPEAL: Mayne Group Ltd t/as Nepean Private Hospital is liable to pay Sarah Sandford weekly compensation and medical expenses as claimed.
DATE OF DECISION UNDER APPEAL: 19 July 2002
HEARING: 8 October 2002
REPRESENTATION: Appellant:
Mr Trainor of Counsel instructed by RL Whyburn and Associates, Solicitors
Respondent:
Mr Bensen of Counsel instructed by Dexter Healey Solicitors
ORDERS MADE ON APPEAL: The appeal is not allowed. The decision appealed against is confirmed.
INTRODUCTION
On 8 May 2002 Sarah Emma Sandford (‘Ms Sandford’ or ‘the Respondent’) lodged an ‘Application to Resolve a Dispute’ with the Workers Compensation Commission (‘the Commission’). The application sought an order that she be paid weekly compensation by way of income support for the period 8 April 2002 – 17 June 2002 plus medical expenses, consequent upon an injury to her back. Ms Sandford is, and was at all relevant times, a nurse in the employ of Nepean Private Hospital which is operated by Mayne Group Limited (‘Mayne’ or ‘the Appellant’).
The parties attended a conciliation conference and arbitration hearing at the Commission on 28 June 2002. As they were unable to come to an agreement in the dispute the Arbitrator proceeded to hear oral evidence. On 25 July 2002 a Certificate of Determination, with attached statement of reasons was issued in the following terms;
1. That the Respondent pay the Applicant pursuant to section 36 of the Workers Compensation Act the amount of $896.62 per week for the period 8th April 2002 to 17th June 2002.
2. That the Respondent pay the Applicant’s medical and other expenses of treatment in accordance with section 60 of the Workers Compensation Act, referable to 17th June 2002.
3. The Respondent pay the Applicant’s costs.
Mayne lodged an appeal against this decision on 21 August 2002. The ‘Applicant’ in the original proceedings, Ms Sandford, is thus ‘the Respondent’ in the appeal.
JURISDICTION TO HEAR THE APPEAL
Section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the Act’) provides for ‘Appeal Against Decision of Commission Constituted by Arbitrator’. The Commission, constituted by a Presidential Member, is not to grant leave to a party to appeal against a decision unless the amount of compensation at issue on the appeal is at least $5000 and at least 20% of the amount awarded in the decision appealed against. An appeal must be made within 28 days of the date of the decision appealed against.
The decision that is the subject of the appeal concerns the whole of the award which is in excess of $5000.
Leave to appeal the Arbitrators decision was granted on 19 September 2002. At the hearing of the matter on 8 October 2002 the Respondent asked the Commission to review the decision to grant leave on the basis that the appeal was filed out of time. I declined to review that decision on two alternate bases, namely that the appeal was in time or, if I am wrong on that matter, that discretion should be exercised in favour of granting leave. The reasons for that decision are set out in the transcript.
THE NATURE OF THE APPEAL
Section 352(5) of the Act provides that ‘fresh’ or ‘additional’ evidence may only be given on appeal with leave of the Commission. The Commission may confirm or revoke the original decision and make a new decision in its place (s 352(7)).
The precise nature of the appeal against a decision of an Arbitrator is not set out in the Act other than to say that it is to be by way of a ‘review of the decision appealed against’ (this failure is common to many statutory schemes, see comments of Callinan J in Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 174 ALR 585) There may be different ways in which the Commission ‘reviews’ the decision of an Arbitrator. When given its ordinary meaning the task of ‘review’ includes an examination of the correctness of a decision in terms of its validity or effectiveness (Bignell v NSW Casino Control Authority [2001] NSWSC 940 (27 September 2001)).
The nature of the Commission’s power to ‘review’ a decision pursuant to section 352(5) must be understood in the context of the nature of the powers exercised by Arbitrators at first instance. Arbitrators have generally heard from the parties personally. Where a matter has not been determined ‘on the papers’ the parties have had the opportunity of attending a meeting where the Arbitrator has used his or her best endeavours ‘to bring the parties to a settlement of their dispute’ acceptable to them (s 355). If this is not successful the matter proceeds to arbitration with all parties having the opportunity to present oral evidence and submissions. Arbitration proceedings are recorded. While the Commission is not bound by the rules of evidence, evidence may be given under oath or affirmation (s354(2)). When informing itself on any matter, an Arbitrator is required by the Workers Compensation Commission Interim Rules 2001 (Rule 38) ‘to bear in mind the following principles;
(a)evidence should be logical and probative,
(b)evidence should be relevant to the facts in issue and the issues in dispute,
(c)evidence based on speculation or aunsubstantiated assumptions is unacceptable,
(d)unqualified opinions are unacceptable.
10. Upon determination of the dispute the Commission issues a ‘certificate as to the determination’ (s 294 (1)). The Arbitrator is required to give a brief statement setting out the reasons for the determination (Rule 41) including;
(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 process that lead the Commission to the conclusions it made.
11. A consideration of the nature of the hearing before the Arbitrator at first instance, of the broad powers, functions and discretions exercisable by the Arbitrator and of the express limitations on evidence before the ‘review’ under section 352, lend support to the view that the Commission has a specific and limited role on appeal (Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47 31 August 2000). It is not an ‘appeal’ in the strict sense, as the Commission can receive further evidence. Similarly it is not a ‘rehearing’ of the matter where the Commission is re-exercising the power of the Arbitrator at first instance by hearing the matter ‘de novo’ and coming to a fresh decision based on all the evidence available at that later time (Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47 31 August 2000; Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616). The ‘review’ is by way of rehearing where the powers of the Commission to confirm, revoke or substitute a new decision are exercisable only where it can be demonstrated that the original decision of the Arbitrator is affected by ‘. . some legal, factual or discretionary error’ (Allesh v Maunz [2000] HCA 40 (3 August 2000)).
BACKGROUND FACTS
12. Ms Sandford is a 46 year old trained nurse. She has worked in hospitals in Australia and overseas for a number of years. She commenced work with Nepean Private Hospital, owned and operated by the Appellant, in about May 2001. She also worked at that time on a casual basis for a nursing agency called ‘ASEPS’. She reported no signifcant back injury prior to her employment with the Appellant. In 1997 she underwent x-ray investigation of both hips with the result that her lumbosacral spine had no abnormalities detected (Exhibit A-Report of Dr Sesel, 17 January, 1997).
13. Ms Sandford’s evidence is that she first noticed low back discomfort during early December 2001 and specifically on or about 18 December 2001. She attributed this to the large number of obese patients whom she had been required to lift when assisting with surgical procedures at work at Nepean Private Hospital. She did not complain and continued to work over the Christmas period.
14. A critical point in this case is Ms Sandford’s claim that on 22 January 2002 when at work she noted the onset of severe pain in the back of her right thigh. Thereafter this pain became more regular. In her evidence she stated she mentioned this pain to her anaestheitist, Dr Sandhu, when undergoing a non-related urology procedure on 25 January 2002. On 28 January 2002 she went kayaking and noted low back pain without exacerbation of the right sided pain, which she had self-diagnosed as sciatica.
15. On 29 January 2002 Ms Sandford experienced severe sciatica and rang Nepean Private Hospital to advise that she could not come to work. Due to the shortage of staff she agreed to work and subsequently completed her shift.
16. From 1 February to 9 February 2002 Ms Sandford had physiotherapy for low back pain and right-side sciatic pain. On 9 February 2002, Dr Stevens, General Practitioner, certified that Ms Sandford was generally restricted to lifting of 5 kgs only with no pushing or pulling. She returned to light duties work at Nepean on 11 February however on 15 February, after again consulting Dr Stevens, she was certified as unfit for work. She completed a workers compensation claim form and lodged it with the hospital on the same day.
17. Thereafter Ms Sanford had investigations and physiotherapy for her back and right sided pain. She returned to work on the basis of light duties for three days per week from 25 February 2002. She continued with physiotherapy treatment for ongoing pain. Her symptoms continued and on 6 March 2002 Dr Seex, consultant neurological and spinal surgeon, recommended that she undergo a lumbar microdiscectomy. Dr Seex performed this operation on 1 May 2002. Dr Seex has since reported that the surgery was successful with complete resolution of back and leg pain. His report of 13 June 2002 sets out the clinical history and states, inter alia, that he does not consider Ms Sandford’s other health issues, including a congenital shortening of her right leg and other surgical procedures, have had a bearing on her back and leg pain. He found long-term degenerative changes in her spine, consistent with her age and occupation but concluded that the ‘disc injury was a new and acute one primarily relating to her work’.
18. Following the lodgement of her workers compensation claim on 15 February 2002 the Appellant referred Ms Sandford to Dr Khan for medical assessment. Dr Khan provided two medico-legal reports which are in evidence. The first dated 11 March 2002 concludes that Ms Sandford’s employment at ‘. . .Nepean Private Hospital is a substantial contributing factor to her back injury and aggravation of and the present diagnosis of lumbar disc lesion’(sic).
19. The second report of Dr Khan, dated 29 March 2002 was provided after the Appellant provided him with Ms Sandford’s statement including details of kayaking activities she undertook on 28 January 2002. The kayaking activity was said to involve prolonged sitting and lifting of the kayak, weighing 28 kilos onto a car. In this second report Dr Khan concluded that he found it,
‘. . . difficult to consider her employment with Nepean Private Hospital, expecially the work-related activities during December 2001, to be substantial contributing factors to the development of her disc prolapse at L5-S1 level which appears to have occurred spontaneously or due to non-work-related factors’.
20. On 5 April 2002 Mayne wrote to Ms Sandford denying liability for her claim ‘. . on the basis of medical and factual evidence that suggests that employment is not a significant contributing factor to your current condition’. Mayne relied upon the medical report of Dr Khan dated 29 March 2002.
21. Ms Sandford returned to work on 17 June 2002, with a lifting restriction of 20 kilos. Her claim before the commission for weekly compensation relates to the ‘closed’ period of 8 April 2002 to 17 June 2002.
22. Ms Sandford and Dr Khan gave oral evidence before the Commission constituted by the Arbitrator on 28 June 2002. It was put to Ms Sandford, and she agreed, that she had episodes of back pain in her life prior to working with the Appellant. Ms Sandford gave evidence that she had never consulted a doctor about back pain (Transcript (‘T’) p44) prior to the episode when she was working for the Appellant. She also agreed that following an operation to her leg at age 15 she had an improvement in back pain (T p44) associated with that condition. Ms Sandford stated that she experienced a ‘tired back’ from time to time as a result of working up to 15 hour days as a nurse (T p45).
23. Dr Khan told the Arbitrator that he considered the radiological evidence of degenerative changes and of a small disc lesion at L5-S1 were the cause of Ms Sandford’s back pain and right-side sciatica (T p2). His oral evidence was that he considered the degenerative changes ‘would have been [present] for many years’ (T p36).
24. There is no argument between the parties as to the fact that Ms Sandford suffered, at some time, a disc prolapse at L5-S1. The central argument concerns when this disc prolapse occurred and consequently whether Ms Sandford’s employment was a substantial contributing factor to it.
25. At the hearing the Applicant urged the Arbitrator to accept Ms Sandford’s evidence that she did not have any significant episode of back pain prior to lifting heavy patients at work on 18 December 2001. The Applicant argued that she had back pain and right leg pain from this time, caused by an injury arising out of or in the course of her employment as a nurse with Nepean Private Hospital. She denied any contribution to her injury from other activities such as kayaking, or by any other aspect of her medical history.
26. A report of Dr Sesel, Radiologist, dated 17 January 1997 was tendered. This report was in response to a referral of Ms Sandford from her General Practitioner, Dr Kidd. The report was of the X-Ray of the lumbosacral spine and both hips. Dr Sesel concluded that ‘both hip joints and the lumbo-sacral spine series appeared entirely normal’. The reason for Ms Sandford’s referral to Dr Sesel was in issue at the hearing. Ms Sandford denied that syptoms of back pain were present at the time. Mayne submitted that it was likely Ms Sandford was suffering symptoms of back pain in 1997.
27. Mayne urged the Arbitrator to adopt a different view of the evidence. It submitted that the ‘case really does stand or fall upon what [the Arbitrator] finds to be the correct history with respect to the onset of the right leg symptoms’ (T (part 2) p14). The Appellant challenged the Applicant’s account of the onset of right leg pain on 22 January 2002. It argued that in the absence of reporting of symptoms by Ms Sandford and the likelihood of her non-work activities contributing to her injury the Arbitrator should find that the prolapse did not occur in December 2001 but ‘. . sometime on or after after 25 January 2002 in circumstances where the employer has no liability’ (T (part 2) p17). Mayne argued that in those circumstances Ms Sandford’s employment was not a substantial contributing factor to her injury.
GROUNDS OF APPEAL
28. Mayne submitted that the appeal should be allowed on a number of grounds, the details of which are considered below. The grounds of appeal may be conveniently summarised, as follows;
i) Inadequate reasons given by Arbitrator (Appellants ground of Appeal 1 as discussed below).
ii) Arbitrator made findings based on no evidence or findings not supported by the evidence (Grounds 2, 3, 4, 6, 7, and 8).
iii)The Arbitrator identifed a wrong issue (Ground 5).
SUBMISSIONS IN REPLY TO THE APPEAL
29. The Respondent filed written submissions on the appeal which have been fully considered. In summary they were as follows:
1.The decision of the Arbitrator should not be disturbed as only he can truly be in a position to assess the credibility of the Repsondent worker [Abalos v Australian Postal Commission (1990) 171 CLR 167].
2.The case stands or falls on the credibility of the Respondent worker and in particular when the onset of right leg symptoms came on and on these issues, there is clear consistent evidence provided.
3.For an appeal to be successful, there must be an error of law. Finding that the Applicant is a witness of truth is a question of fact and not a question of law and there is clearly no evidence to indicate that there has been such an erroneous finding of fact that it is in fact an error of law.
30. For reasons that appear later in this decision it is not accepted that an appeal will be successful where, (or only if) there is an ‘error of law’, without that error ultimately affecting the fairness and lawfullness of the decision and the proper exercise of the Arbitrator’s powers. An appeal may also be successful where there is an error of fact or discretion having the same effect. The nature of the appeal to a Presidential member has been already been discussed above.
FRESH EVIDENCE
31. The Commission had before it in evidence on the appeal all documents that had been submitted by both parties in the original proceedings. This includes the Application to Resolve a Dispute and accompanying statements and medical reports and the Reply to the Application with accompanying statements and medical reports. A transcript of the proceedings of 28 June 2002 when oral evidence was heard by the Arbitrator was also before the Commission.
32. At the hearing of the appeal on 8 October 2002 the Respondent sought leave to tender fresh evidence. Section 352(6) of the Act provides that:
‘. . . 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.’
33. The ‘fresh evidence’ that the Respondent sought to tender was a one page document, being an anaesthetic record provided by Nepean Private Hospital dated 25 January 2002. This report records the words ‘sciatic â side 3/7’ under the heading ‘Pre-operative assessment’. The Respondent submitted that this document was of critical significance because it offered corroboration of her evidence as to the onset of symptoms of her injury. The Appellant opposed the submission of this evidence on the grounds that if relevant, it should have been submitted at first instance; that it caused prejudice because it’s veracity could not be tested on appeal, and that in any event, the document may have little weight or probative value.
34. On balance leave was granted for the document to be admitted on the basis that it may cause a significant injustice to Ms Sandford were it not admitted. Further reasons for this decision appear in the transcript of 8 October 2002. The weight to be given to the document is discussed below. It should be noted however that in my view this evidence should have been tendered in the original proceedings before the Arbitrator. It goes to an issue that was clearly relevant to the claim and was raised by Ms Sandford in her written statement at the time of filing of the original ‘Application to Resolve a Dispute’. This is a matter that may be ultimately relevant to the question of costs should the parties not come to some agreement.
REVIEW FINDINGS
Review of Findings Based on Credit
35. The Appellant raises a number of grounds of appeal that refute findings of the Arbitrator based on his view of Ms Sandford as a witness of credit. It is clear from a reading of the reasons for the decision under review that the Arbitrator found Ms Sandford to be an entirely credible witness. At paragraph 61 of the decision the Arbitrator states, inter alia, that:
‘. . . my acceptance of the Applicant depends upon me finding her to be a credible witness. Although the Applicant presented as a person who, for whatever reason was somewhat angry, she did not impress me as being a person who was inclined to lie, or even to mislead the Commission to suit her own convenience. From my observation, I found her to be totally creditable.’
36. As the Commission sitting on review of the Arbitrator’s decision a Presidential member does not have the benefit of having observed Ms Sandford give her evidence or answer questions put to her by the Appellant’s representative. The review of findings based on an acceptance of Ms Sandford’s credit as a witness is therefore problematic. While there are clearly significant differences in the nature of the decision-making task of a Commission Arbitrator and a Presidential member on the one hand, and trial and appellate judges on the other, the principles laid down by the appellate courts on this issue are equally applicable. To this end there are a number of authorities that provide guidance on how to proceed.
37. The Respondent has referred me to the decision of the High Court in the matter of Abalos v Australian Postal Commission (1990) 171 CLR 167 (‘Abalos’). In that matter Justice McHugh, with whom Mason, Deane, Dawson and Gaudron JJ agreed, cautioned that restraint that should be exercised by an appellate court in interfering with findings of a trial judge that are based on the acceptance of a witness’s credit. Only where it can be shown that the ‘advantage’ of the trial judge in seeing and hearing the witness is insufficient to justify the trial judge’s conclusion should a finding based on credit be reversed (Abalos, referring to Watt or Thomas v Thomas (1947) AC 484; Jones v Hyde (1989) 63 ALJR 349; Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479; See also Timms v Commonwealth Bank of Australia [2002] NSWCA 298).
38. The High Court considered the authorities on this issue (Jones, Abalos, Devries) in the matter of State Rail Authority v Earthline Constructions Pty Ltimited (in liquidation) (1999) 160 ALR 588 (‘State Rail’). Kirby J warned against ‘. . . attaching too much significance to the words of restraint expressed in Abalos and allowing those words to deflect the appellate court from its duty’ (at paragraph 71).
39. I am unaware of any authority on the application of these principles to Tribunals or to review within a statutory scheme such as that applicable to the Workers Compensation Commission. Consideration must be given as to whether the nature of the proceedings before an Arbitrator in the Commission, in particular the informality of the proceedings and the non-application of the rules of evidence, suggest that a different approach should be adopted to the review of an Arbitrator’s findings of credit. In my view the principles set out above are equally applicable. The key issue is that the Arbitrator has had the benefit of seeing and hearing the witness and coming to a view as to her (in this case) credibility and truthfullness. The Arbitrator has also had the opportunity to reflect upon the evidence prior to coming to a decision. In these circumstances the ‘advantage’ enjoyed by the Arbitrator may be considerable, particularly as in Commission proceedings the Arbitrator has engaged in an informal conciliation process with the parties prior to the arbitration hearing. Only after using his or her ‘best endeavours to bring the parties to a dispute to a settlement acceptable to all of them’ does the Arbitrator proceeds to hear and determine the matter (s 355).
40. These processes are consistent with the statutory objectives of the Commission (s 367) in particular the desire to be fair, just, informal and timely in resolution of workers compensation disputes. They also often result in the parties themselves, with the assistance of an Arbitrator, coming to an agreed resultion of their dispute. At the same time it is recognised that there will be cases where error occurs. The nature of the proceedings before the Arbitrator does not, in my view, detract from the proposition that simply because findings are based on credit does not mean that they are immune from careful scrutiny on review. The function of review is to ensure the decision is not affected by demonstrable mistake or misaprehension about relevant facts and that the ‘value and importance’ of the advantage enjoyed by the Arbitrator has not been misused. It is the Presidential member’s obligation to independently consider the evidence, the inferences and conclusions that may be properly drawn from the evidence and the proper application of legal principle to the instant case (State Rail). In some circumstances this will include the consideration of fresh evidence. For the Appellant to succeed it must demonstrate error of law or fact, as discussed above.
41. It is also important to note Kirby J’s words of caution in relation to findings based on credit. In State Rail he reflected upon the changing nature of the appellate function of the courts in civil matters and made the following observations on judicial assessment of credibility;
Apart from all else, demeanour is, in part, driven by culture. Studies suggest that evaluation of the evidence of women may sometimes be affected by stereotypes held by the decision-maker. This is doubtless also true in the case of evidence given by members of minority groups, whether racial, sexual or otherwise. Distaste or prejudice can cloud evaluation. Further, in a society such as Australia's, the capacity of the judiciary to respond to every cultural variety of communication is limited. . . . Trial judges should strive, so far as they can, to decide cases without undue reliance on such fallible considerations as their assessment of witness credibility. And appellate courts should refrain from needlessly expanding the categories of trial conclusions about the facts which are effectively unreviewable because of presumed or inferred credibility considerations. (Judgement of Kirby J, at paragraph 88).
42. Set out below are each of the claimed grounds of review, the Respondent’s submissions and my findings in relation to them. As previously stated the grounds of review have been considered together in three categories which may be summarised as i) inadequate reasons, ii) no evidence or findings not supported by the evidence, and iii) identifying a wrong issue.
i) Inadequate Reasons
43. The Appellant’s first ground of review is that:
‘1. The Arbitrator failed to provide adequate reasons for his decision to:-
1.1 Accept the Applicant as a witness of truth, thereby her evidence as to the absence of back symptoms prior to December 2001 in the face of the Applicant’s admission in cross-examination at pages 43 and 44 of the transcript and also her admission of having had a ‘tired back’ over a long period of time, and also against the clinical history contained in the report of Dr Sesel (Radiologist) (Exhibit 2). And in view of the clear views of Dr Seex (Neurosurgeon) as to the existence of pre-existing degenerative change and of the clear evidence of Dr Khan at Transcript Part 2 page 2 lines 10-20 and page 6 lines 36-38.
1.2 The Employer asserts that the Arbitrator’s findings on the issues referred to above are manifestly against the evidence, and their acceptance are inadequately explained in the Reasons for Decision’.
44. In reply the Respondent submitted that these are solely ‘matters for the Arbitrator who heard the evidence’ who found Ms Sandford to be a witness of truth. Ms Sandford’s evidence of the onset of her symptoms was accepted by the Arbitrator. The Respondent submits that the Arbitrator’s findings in relation to the onset of her symptoms is consistent with the evidence before him. It is in this regard that the ‘fresh evidence’ in the form of the hospital record of 25 January 2002 is significant. This record supports Ms Sandford’s own evidence that she was experiencing back pain from 22 January 2002. There is no reasons to dispute the authenticity or accuracy of the hospital record, nor did the Appellant seek to do so on appeal. To this extent this fresh evidence adds to the submission that the Arbitrator was correct in accepting Ms Sandford’s evidence that the onset of her symptoms pre-dated 25 January 2002 or some later date.
45. Commission Arbitrators have a common law and statutory obligation to provide adequate reasons for decision (Public Service Board of New South Wales v. Osmond (1985-1986) 159 CLR 656; Absolon v. NSW TAFE [1999] NSWCA 311 (‘Absolon’); Rule 41). Failure to do so constitutes an error of law and may be a ground to set aside the original decision on review.
46. The standard by which the ‘adequacy’ of reasons may be determined is relative to the nature and context of the decision made and the decision-maker. There are a number of authorities in relation to judicial review of decisions of federal administrative tribunals that support this proposition and which have relevance to a consideration of the review of Arbitrators decisions in the Commission (see for example, Collector of Customs v Pozzolanic (1993) 43 FCR 280; Minister for Immigration and Multicultural Affairs v Wu Shu Liang (1996) 185 CLR 259 (‘Liang’); Minister for Immigration and Multicultural Affairs v Yusuf (2001) 10 ALR 1).
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 content of statements of reasons for decision reflect this process and should not on review, be ‘construed minutely and finely with an eye keenly attuned to the perception of error’ (Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287). This is not to say that decisions should not be soundly based nor that the reasons should not be capable of conveying clearly the matters required by Rule 41 (set out above). As Kirby J observed in relation to a decision of the Refugee Review Tribunal in Liang, the decision-maker’s reasons will remain the ‘only insight into the considerations which were, or were not, taken into account in reaching the decision’ (at 291).
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. The Court of Appeal in YG & GG v. Minister for Community Services [2002] NSWCA 247 (26 July 2002), Hodgson JA, said,
‘. . . inadequate reasons do not without more show that the decision involved error: the inadequacy must be such as to warrant the inference that the Tribunal had not exercised its jurisdiction in accordance with law: see Absolon v. NSW TAFE[1999] NSWCA 311.
. . In my opinion, a question whether there is a deficiency of reasons, and whether that deficiency warrants an inference that a tribunal has not exercised its jurisdiction in accordance with law, is a matter of judgment, and in borderline cases, minds may reasonably differ’ (at paragraphs 37-38).
49. The Appellant’s assertions under this ground require some unpacking. From a careful consideration of the decision I cannot accept the claim that the Arbitrator’s acceptance of Ms Sandford as a witness of truth is ‘manifestly against the evidence and inadequately explained in the reasons’. Firstly I accept that the Arbitrator had the considerable advantage of seeing Ms Sandford give her evidence and answer questions in cross-examination. Second, the totality of the evidence referred to by the Appellant in apparent contradiction of Ms Sandford’s account of events is by no means clear or unequivocal on the relevant matters of fact to be determined by the Arbitrator. To this extent it was open to the Arbitrator to prefer Ms Sandford’s account and in some cases that of her Doctor, Dr Seex.
50. There was however clear evidence before the Arbitrator on one issue, namely whether or not Ms Sandford had ever had ‘back symptoms’ prior to December 2001. The finding made by the Arbitrator at paragraph 52 that Ms Sandford ‘has not previously felt any significant pains or discomfort in the back and right leg region’ (emphasis added) is difficult to understand. If that finding were qualified in some way (and I accept that it was not) it would, in my view be more consistent with the evidence before the Arbitrator. Ms Sandford’s evidence was that she had in the past, had episodes of back pain. She agreed in cross-examination that prior to the operation on her leg as a teenager she experienced ‘quite a deaI’ of back pain. There are inadequate reasons provided to explain the Arbitrator’s finding in this regard. However I am not satisfied that this inadequacy in the reasons for decision is such that it can be said that the Arbitrator has made an error resulting in a failure to decide the matter fairly and lawfully. The fact that Ms Sandford had experienced back pain in the past was not of itself determinative of the cause of her back pain in January 2002 nor of whether her employment was a substantial contributing factor to it.
51. The so-called ‘admission’ by Ms Sandford to back symptoms in existence prior to December 2001 (pages 43 and 44 of the transcript) does not contradict her other evidence. Her statement, filed with the Application to Resolve a Dispute, refers to a lack of knowledge of ‘any known pre-existing lower back conditions’. In cross examination Ms Sandford said that she had no back pain since the operation to address this problem when she was 15 years old, approximately thirty years previous. She also agreed in cross-examination (at pages 43 and 44) that she had from time to time throughout her career as a nurse been required to do heavy work, including pushing and pulling trolleys and that she had as a result often experienced a ‘tired back’. To be precise, her evidence was that she had not experienced pain in her back that required her to attend a doctor since the operation on her back at age 15.
52. The ‘clinical history’ contained in the report of Dr Sesel does not specifically refer to the presence of back symptoms and states that the x-ray ‘series of lumbosacral spine’ was ‘entirely normal’. The reasons for decision refer to that report at paragraph 22. The Appellant made much in cross-examination of Ms Sandford and in submissions on the appeal, of the referral of Ms Sandford to Dr Sesel in 1997 by her then General Practitioner, Dr Kidd. The first paragraph of Dr Sesel’s report reads as follows;
X-RAY LUMBOSACRAL SPINE
The vertabral bodies and disc spaces are normal in height. The facet hoints and SI joints appeared normal. The dimensions of the spinal canal are within normal limits and no focal abnormality seen which would account for clinical symptoms.
53. Ms Sandford was consistent in her denial of any back pain causing the referral to Dr Sesel. She stated that the reason for referral was due to problems with her left hip, disclosed as a correlate of surgery she had in 1996. Her evidence was that this did not cause her any symptoms.
54. The report of Dr Seex dated 13 June 2002 refers to the existence of pre-existing degenerative changes However he concluded that Ms Sandford ‘had relatively painless degeneration of the lumbar spine consistent with her age and nursing occupation, but that the disc injury was a new and acute one primarily relating to work’. Dr Seex also specifically concluded that hereditary risks and other medical problems should not be seen as significant contributing factors to Ms Sandford’s injury. The Arbitrator clearly considered this report as it is referred to at paragraphs 37, 39 and 41 of the reasons for decision. It is unfortunate that the Arbitrator did not specifically refer to any reliance he placed on this report in his ‘findings and reasons’. However a reading of the whole of the reasons demonstrates an acceptance of Dr Seex’s evidence in favour of Ms Sandford.
55. Dr Khan’s evidence at the relevant parts (at Transcript Part 2 page 2, lines 10-20, and Page 6 lines 36-38) was as follows;
‘ I think the radiological findings have to be taken into consideration along with clinical findings and history, so you match the clinical findings, history, with the radiological finding and come to a conclusion that this appearance is acute or non-acute because the radiological cannot say, ‘This is new, this is not new’ unless you have a comparison. So the radiological findings of degenerative changes are there, which are evident and we are (indistinct) terminology. I did find a small disc lesion on the right side of L5-S1 level, which I considered was the cause of the pain and the right side sciatica.’
. . .
I think that these degenerative changes, which I have seen on the X-rays, would have been for many years.’
56. The Arbitrator considered the evidence of Dr Khan, both his written reports and oral evidence. It is referred to in a number of places in the reasons for decision. At at paragraphs 65 and 68 the Arbitrator has considered the evidence of Dr Khan where it does not support Ms Sandford’s account of her symptoms and has come to the view that it is equivocal.
57. On balance I accept that the Arbitrator has provided adequate reasons for accepting Ms Sandford as a witness of truth. At the same time there are inadequate reasons for the purported finding that Ms Sandford had ‘not previously felt any significant pains or discomfort in the back and right leg region’. Having considered the evidence before the Arbitrator I am not satisfied that the failure to provide adequate reasons for this finding has resulted in an unfair or unlawful decision.
ii) No Evidence or Findings Not Supported by the Evidence
58. The Appellant claimed that the Arbitrator had made a number of errors in that findings were made with no evidence to support them or findings were made not sufficiently supported by the evidence. In the absence of an express statutory provision to the contrary, Commission Arbitrators have a common law duty to accord with the principles of procedural fairness (Kioa v West (1985) 159 CLR 550; Haoucher v MIEA (1990) 169 CLR 648 at 653, Annetts v McCann (1990) 170 CLR 596; Ainsworth v Criminal Justice Commission (1992) 175 CLR 564. The Workplace Injury Management and Workers Compensation Act 1998 (‘the Act’) provides that ‘the Commission is to act according to equity, good conscience and the substantial merits of the case without regard for legal forms’ (s 354(3)). Rule 39 of the Interim Workers Compensation Commission Rules 2001 (as set out above) outlines the principles that should guide the Commision when ‘informing itself on any matter’. The duty of an Arbitrator to act fairly includes the duty to decide the matter on the basis of evidence (Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; Minister for Immigration and Multicultural Affairs v Rajamanikkam [2002] HCA 32 (8 August 2002). As Deane J said in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321;
‘If a statutory tribunal is required to act judicially, it must act rationally and reasonably. Of its nature, a duty to act judicially (or in accordance with the requirements of procedural fairness or natural justice) excludes the right to decide arbitrarily, irrationally or unreasonably . . . When the process of decision-making is disclosed, there will be a discernible breach of the duty if findings of fact upon which a decision is based are unsupported by probative material and if inferences of fact upon which such a decision is based cannot reasonably be drawn from such findings of fact. Breach of a duty to act judicially constitutes an error of law which will vitiate the decision.’
59. The Appellant’s first claim under the ‘no evidence’ ground was;
‘2. There is no evidence to support the finding at paragraph 52 in the Reasons for Decision.’
60. Paragraph 52 of the decision provides as follows:
‘52. I accept the Applicant’s evidence that prior to December 2001 she had not previously felt any significant pains or discomfort in the back and right leg region’.
61. The Respondent argued that there is ‘ample evidence’ for this finding in her own evidence, in the Report of Dr Khan, and in the X-ray and report of Dr Sesel in January 1997 which noted no abnormality in the lumbosacral spine.
62. As discussed above the Arbitrator has provided inadequate reasons for the finding made at paragraph 52 of the reasons. This failure cannot be explained by the acceptance of Ms Sandford as a credible witness. In my view the finding at paragraph 52 is also clearly against the weight of the evidence, including Ms Sandford’s own evidence. The reasons for decision disclose that the Arbitrator had a number of pieces of evidence before him to support a finding that Ms Sandford had not had ‘significant’ back pain since her operation at age 15 years, namely;
a. The statement of Ms Sandford filed with the application
b. The oral evidence of Ms Sandford given at the hearing on 28 June 2002, and
c. The report of Dr Seex as to the acceptance of ‘relatively painless degeneration of the lumbar spine’.
63. A proper consideration of the evidence, as discussed above, suggests that the existence or non-existence of Ms Sandford’s back pain should have been more carefully qualified. It is necessary to consider whether the finding as expressed in paragraph 52 was a material finding of fact upon which the ultimate decision of the Arbitrator was based. In my view it was not. The reasons read as a whole disclose that the Arbitrator relied substantially upon Ms Sandford’s evidence in relation to the history of back symptoms, including her surgery at age 15 and complaint of a ‘tired back, her description of the nature of her employment at the relevant time and on the medical reports of Dr Seex and Dr Sesel.
64. The second ‘no evidence’ ground submitted by the Appellant was that;
‘3. There is no evidence lay or medical supporting the finding at paragraph 54 of the Reasons for Decision.’
65. Paragraph 54 of the Reasons for Decision provides as follows;
‘54. I also make a finding that at least until 25 January 2002, the back pain that the Applicant was experiencing was causally related to this type of work.’
66. The Respondent objects to this ground, arguing that the first report of Dr Khan supports this contention and that ’ Dr Khan did agree that if he was not provided with the erroneous information that caused him to alter his opinion he would not of altered his opinion in his 2nd report’.
67. As with the finding at paragraph 52, discussed above, the generality and lack of clarity of the finding at paragraph 54 renders it inconsistent with the evidence that is discussed at some length in the remainder of the decision. It is necessary to read paragraphs 51 - 54 together. From this reading it may be inferred that the Arbitrator was referring, in paragraph 54 to pain experienced by Ms Sandford from December 2001. The reasons do not adequately reflect this and there is a looseness of language used by the Arbitrator. However, I am also of the view that it does not affect the fairness or lawfullness of the decision. If the finding at paragraph 52 is read as linking the pain experienced by Ms Sandford to her work in December 2001 and January 2002, as the reasons read in full suggest, then it is a finding that in my view is supported by the evidence and one that was open to the Arbitrator to make.
68. The paragraph immediately above (53) refers to Ms Sandford’s evidence in relation to the lifting of ‘obese’ patients, which she had not done before. The report of Dr Seex, while not referred to directly at this point in the reasons, prefers the view that the ‘history of trauma’ given by Ms Sandford is the significant contributing factor to her injury. The Arbitrator accepted as a matter of fact that Ms Sandford was required to lift heavy patients and that the Applicant’s evidence as to the onset of back pain after this was true. The Arbitrators view of Dr Khan’s evidence as equivocal on this issue is referred to above.
69. The Appellant also argued that a number of findings made by the Arbitrator were not supported by the evidence. Firstly;
‘4. The findings in paragraph 55 in the Reasons for Decision are not supported by the evidence and contrary to Exhibits 2, 3 and the evidence of the in cross-examination and Dr Khan. The Arbitrator’s findings are inexplicable in view of this evidence.
70. Paragraph 55 of the Reasons for Decision provides as follows;
‘55. In spite of the report of Dr KR Sesel, and the history given in evidence by the Applicant, I am not satisfied that prior to December 2001 she had ever suffered any pain from a pre-existing or degenerative back and leg condition. There simply is no medical evidence available for me to be convinced otherwise.’
71. Exhibit 2 is the Medical Report of Dr Sesel dated 17 January 1997. Exhibit 3 is a letter from RL Whyburn and Associates dated 16 April 2002 and addressed to Dr Seex. This letter sets out the history of the claim and asks Dr Seex for a report on a number of matters. It’s relevance to the findings in paragraph 55 is not clear.
72. The Respondent submits, inter alia, that there is no basis for ‘. . . findings of any degenerative changes being present prior to December 2001, due to the results of the 1997 X-ray and the lack of any complaint of back pain prior to December 2001’.
73. The report of Dr Sesel does not state that Ms Sandford suffered from back pain in 1997. Ms Sandford, in cross examination repeatedly denied the assertion that she was referred to Dr Sesel because she was experiencing back pain at that time. As stated earlier the evidence of Ms Sanford in relation to prior back pain is that she suffered a ‘tired back’ from time to time as a result of heavy work and that she had some back pain many years earlier associated with her congenital condition. Dr Khan’s evidence was that he believed there was a link between Ms Sandford’s prior back pain and any ‘pre existing or degenerative back or leg condition’. It is clear from later paragraphs in the reasons for decision that the Arbitrator did not accept the evidence of Dr Khan on this issue. To this extent paragraph 55 is correct in that there was no medical evidence that ‘convinced’ the Arbitrator to make a different finding. However the finding at paragraph 55 is against the weight of the evidence to the extent that the Arbitrator finds that Ms Sandford had not ‘ever suffered any pain from a pre-existing or degenerative leg condition’.
74. It is pertinent at this point to consider the whole of that part of the reasons for decision contained in paragraphs 51-55. As stated above they suffer from some ‘looseness of language’ used by the Arbitrator. I have considered whether they disclose an error of law or fact that would form the basis for upholding the appeal. In particular, I have considered whether the Arbitrator failed to take into account relevant evidence in the form firstly, of the Applicant’s admissions of back pain relative to surgery she had as a teenager, and secondly her evidence of a ‘tired back’ in the course of her work as a nurse. I am mindful of the comments of the High Court in Liang as to finely construing reasons in search of error. Ultimately I am of the view that paragraphs 51-55 of the reasons when they are read in the context of the entirety of the reasons and the evidence that was before the Arbitrator at the time, do not disclose errors that are sufficient to justify interference in the Arbitrator’s decision.
75. The Appellant submitted that the decision of the Arbitrator should be reviewed because:
‘6. The finding at paragraph 61 as to the Applicant’s reporting of the ‘injury’ in the ‘tea room’ was not part of the Applicant’s case in chief nor in the Claim Form within the documents before the Commission and the Applicant’s assertion in re-examination as to mentioning it in the tea room was:-
(ii)totally uncorroborated,
(iii)uncontestable by the Employer in the circumstances,
and was manifestly against the manner in which the Applicant had run her case. In view of the balance of the evidence going to the Applicant’s credit particularly as to prior back problems and the nature of her employment over many years, the Arbitrator’s reason for accepting this uncorroborated ‘grasping at straws’ is inadequately explained in the circumstances.
76. Paragraphs 60 and 61 of the decision say;
60.What is critical to this case is a consideration as to the factors raised in subsection (2) of Section 9A [of the Act]
61.(a) the time and place of the injury. What is important herein is a determination as to when the right leg symptoms developed. If, as Mr Banson submits, they did not arise until 25th January 2002, such a finding lends weight to the argument that events outside the Applicant’s employment such as the lifting of the Kayak on 28th January 2002, may have been the substantial contributing factor to the injuries. However, I must take into account the evidence of the Applicant that not only did the right leg sypmtoms develop as early as 22nd January, 2002, but that she gave notice of such symptoms, albeit informally in the work tea room around the same day. I note that this latter evidence came at the ‘heel of the hunt’, during Mr Santone’s re-examination of his client. However, my acceptance of the Applicant depends upon me finding her to be a credible witness. Although the Applicant presented as a person who, for whatever reason was somewhat angry, she did not impress me as being a person who was inclined to lie, or even to mislead the Commission to suit her own convenience. From my observation, I found her to be totally creditable. Accordingly, I accept her version that around 22nd January 2002 she was no only suffering pains in the right leg region but that she informally mentioned this at work around the same time.’
77. Ms Sandford submitted that:
‘ It is irrelevant as to when the reporting of the injury took place. The transcript makes it clear that it was the Appellant that re-opened the Respondent worker’s evidence to clarify exactly when the first report of injury occurred and the Respondent worker simply provided this information in re-examination.. . . The important question is when did the symptoms occur and not necessarily when it was reported to another person. The question of when an injury was reported solely assists the Commission in understanding when the symptoms occurred, if there is a lack of accepted oral evidence. As the Commission has found that the Respondent worker is a genuine witness, there should be little if no emphasiss on when it was reported.’
78. The Arbitrator accepted Ms Sandford’s evidence as to the reporting of her injury in the ‘tea room’ as early as 22nd January 2002 in the context of finding her a witness of credit. This finding was relevant to a consideration of section 9A(a) of the Act as to the time and place of the injury. I do not accept that this finding dicloses some misuse of the Arbitrator’s advantage in having heard and seen Ms Sandford give her evidence. This was a matter legitimately raised in re-examination having been put in issue by the Appellant. No evidence was before the Arbitrator to challenge Ms Sandford’s account nor was any adjournment of the hearing sought to allow such evidence to be gathered in the context of a ‘new claim’ raised by the Respondent. The Arbitrator was entitled to accept Ms Sandford’s evidence. In any event this evidence is now not the sole reason for the acceptance of Ms Sandford’s account of reporting of her injury. The Respondent is assisted in refuting this ground by the admission of the anaaesthetic report of 22nd January 2002, in the appeal. This report supports Ms Sandford’s claim, and the subsequent finding of the Arbitrator, that the injury occurred prior to 25 January 2002.
79. The Appellant submitted that;
‘ 7. There is no evidence of any ‘new style’ of work undertaken by the Applicant in the year 2001. The Applicant did not in her evidence in chief run her case upon the basis that there had been any change in her work practices. This was confirmed in cross-examination. The Arbitrator’s finding of there having been some ‘new style ‘ of work in the year 2001 is unexplained by any evidence before the Commission’.
80. The Respondent submitted that Ms Sandord’s evidence in reply to questions about her work lists in December (T p15) was that she was required to handle patients who were excessively obese, in one case over 140 kilos. The Repondent relies on the proposition that;
‘. . . [L]ifting, handling and positioning this type of patient and other heavy patients clearly can produce the type of injury which the Respondent worker suffered, a disc prolapse, and accordingly the Arbitrator’s findings are consistent’.
81. Ms Sandford’s uncontradicted evidence was that at the end of December 2001 she was required to lift a number of obese patients. She said that she had not previously been required to do this. The Arbitrator’s reference at paragraph 42 of the reasons for decision to a ‘new style of work’ is referable to acceptance of this evidence. The Appellant, being in effect the employer and the insurer in this matter, did not lead any evidence about the workplace that contradicted this evidence. The Arbitrator was entitled to accept Ms Sandford’s evidence.
82. The final ‘no evidence’ ground of appeal submitted by the Appellant is that:
‘8. The Arbitrator misunderstood and consequently misapplied the opinion of Dr Khan. Contrary to the Arbitrator’s finding that it was the view of Dr Khan that the kayaking activity ‘could’ have led to an exacerbation of an underlying lumbar spinal condition, Dr Khan was of the clear view at Transcript Part 2 page 4 lines 20-24 that the lifting of the kayak caused the disc lesion. The Arbitrator’s ignorance of that part of Dr Khan’s opinion has not been explained.’
83. At the hearing before the Arbitrator Dr Khan was asked about the relationship between Ms Sandford’s symptoms reported on 29 January 2002, her kayaking activity on 28 January 2002, her surgical procedure on 25 January and the work she performed in December 2001. He gave evidence that the bending and lifting movement associated with kayaking ‘can cause disc lesion’. The transcript at the relevant page referred to in this ground of appeal provides as follows;
‘KHAN: No, [not the paddling] but the lifting movement, bending over and things, can be expected to do that, so it would appear that if you assumed that happened and then it led to the onset of leg pain that the disc lesion and acute disc lesion may have occurred during that period.’
84. The Respondent ( Ms Sandford) submitted that;
‘ [Ms Sandford] gave evidence that there was no increase in back pain either at the time of lifting the kayak or thereafter. . . . Dr Khan agreed that if that were to be the case then the kayacking incident was not relevant at all in the causation of the disc prolapse. Dr Khan did not state that the lifting of the kayak could cause a disc prolapse, however, he did state that you would have to assume a number of events occurring, including onset of leg pain at that time, and if all of the assumptions actually took place, then it could have caused the disc prolapse. The hospital record clearly shows that the onset of leg pain occurred before hand and accordingly the assumptions cannot be relied upon.’
85. I do not accept that, from a reading of the transcript at the relevant part and a reading of the reports of Dr Khan, it is evident he was unequivocal in his view that the kayaking activity undertaken by Ms Sandford on 28 January 2002 ‘caused the disc lesion’. He said it ‘may’ have done so. This was not supported by Dr Seex, whose evidence supported the Applicant’s explanation of events. This was also not supported by Ms Sandford’s evidence of her onset of symptoms. It is now further unsupported by the evidence that Ms Sandford reported her symptoms prior to her kayaking activity. This ground of appeal is not made out.
iii) Identifying a Wrong Issue
86. The Appellant argued that the Arbitrator had fallen into error as follows:
‘5. The Arbitrator misapprehended the central issue of this case which was that of ‘injury’ and ‘causation’ of the clear medical condition suffered by the Applicant. This is manifest in the purported finding at paragraph 57 of the Reasons for Decision.’
87. Paragraph 57 of the Reasons for Decision provide as follows;
‘57. What appears to be the central issue in this matter is whether the development of symptoms during the second half of January 2002 were the product of the Applicant’s employment being a substantial contributing factor.
88. The Respondent submitted that;
‘Apart from the work related injuries, there is absolutely no other explanation for what could of caused (sic) the disc prolapse. The medical record makes it clear that the Arbitrator’s view that the symptoms did develop on 22 January 2002 are correct, and at that time there was no other possible incident that could of caused a disc prolapse apart from her work conditions. Therefore, the Arbitrators findings are completely consistent’.
89. To ‘identify a wrong issue’ is an established error of law. Recent decisions of the High Court have identified such an error as one going to jurisdiction. In the joint judgment of McHugh, Gummow and Hayne, JJ in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1, the Court, after referring to Craig v South Australia (1995) 184 CLR 163 at 179 said:
‘. . . .`Jurisdictional error' can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law. ( at paragraph 82)’
90. At paragraph 9 of the reasons for decision the Arbitrator records that:
‘. . . the ‘issue in dispute in this application may be summarised as follows:
·Was the Appicant’s employment a substantial contributing factor to her injury, noting section 9A of the Workers Compensation Act 1987.’
91. Later in the decision the Arbitrator considers the evidence relevant to each of the factors in section 9A. It is clear from the a reading of the transcript of the proceedings and the reasons for decision that the nature of Ms Sandford’s ‘injury’ as that term is defined in the Workers Compensation Act 1987 and the contribution, if any, of her employment to that injury were considered by the Arbitrator to be the primary issues. I cannot see anything in the reasons for the decision to support the proposition that the Arbitrator misunderstood or failed to identify the correct issues in dispute. The Arbitrator’s comments at paragraph 57 refer to the matters of fact that must be established prior to a determination that as a matter of law the worker suffered an ‘injury’ to which her employment was a ‘substantial contributing factor’. In this regard it was a ‘central issue’ of fact as to when Ms Sandford’s symptoms developed. I do not accept that the Arbitrator identified the wrong issue in this matter.
SUMMARY OF FINDINGS
92. In relation to the Appellants grounds of appeal I find, in summary, as follows:
1. The Arbitrator failed to provide adequate reasons for finding that ‘prior to December 2001 [Ms Sandford] had not previously felt any significant pains or discomfort in the back and right leg region’. When considered in the context of the whole of the Arbitrator’s statement of reasons this inadequacy is not such that the Arbitrator could be said to have failed to exercise his jurisdiction in accordance with the law.
2. The finding that Ms Sandford had not previously felt any significant pains or discomfort in the back and right leg region’ (paragraph 52 of the reasons) is against the weight of the evidence. This erroneous finding of fact is not the sole basis on which the decision was made and it is not sufficient to justify interference in the Arbitrator’s decision.
3. The finding at paragraph 54 of the reasons for decision is unclear however in the context of the reasons read as a whole it is not against the weight of the evidence.
4. Paragraph 55 is correct in that there was no medical evidence that ‘convinced’ the Arbitrator to make a different finding. However they are against the weight of the evidence in that the Arbitrator finds that Ms Sandford had not ‘ever suffered any pain from a pre-existing or degenerative leg condition’
5. The Arbitrator has correctly identified the legal and factual issues in dispute.
6. The Arbitrator’s acceptance of Ms Sandford as a witness of credit (paragraphs 60 and 61 of the reasons) and of her evidence in relation to the reporting of her injury is supported by the evidence.
7. The Arbitrator’s findings in relation to the work which Ms Sandford did in December 2001 are supported by the evidence.
8. The Arbitrators findings in relation to the evidence of Dr Khan are supported by the evidence.
91. The Appellant has been partly successful on two grounds of appeal. However for the reasons stated above I am not satisfied that the errors are such that the decision is not otherwise supported by probative material and relevant findings on matters of fact and law.
DECISION
93. The appeal is not allowed. The decision of the Arbitrator in this matter is confirmed.
COSTS
94. Section 341 of the Act provides that the ‘. . Commission has full power to determine by whom and to what extent costs are to be paid’.
95. Section 345 of the Act provides for ‘Costs Penalties Where Appeal Unsuccessful’ as follows:
(1)On an appeal from the Commission constituted by an Arbitrator to the Commission constituted by a Presidential member:
(a)If the appellant is the claimant and is unsuccessful on the appeal, the Commission must not make an order for payment of the appellant’s costs on the appeal by any other party ot the appeal, or
(b)If the appellant is an insurer (other than a licensed insurer that maintains a statutory fund under the 1987 Act) and is unsuccessful on the appeal the Commission may order the insurer to pay to the Authority for payment into the WorkCover Authority Fund an administration fee of $1000 or such other amount as may be proescribed by the regulations.
(2)If the appellant in any such appeal is a licensed insurer that maintains a statutory fund under the 1987 Act and is unsuccessful on the appeal:
(a)The insurer’s costs on the appeal, and
(b)The costs of any other party to the appeal that the insurer is ordered to pay,
are not to be paid out of the statutory fund.
(3)if an appeal concerns lump sum compensation, weekly payments of compensation or medical expenses compensation, the appellant is considered to be unsuccessful on the appeal unless the decision on appeal results in a change in favour of the appellant in the amount awarded or ordered to be paid in the decision appealed against of at least $5,000 (or such other amount as may be prescribed by the regulations) and at least 20% of the amount awarded or ordered to be paid.
(4)An administration fee that an insurer is ordered to pay is recoverable as a debt due to the Authrority.
(5)The Registrar is to notify the Authority of an order to an insurer under this section to pay an administration fee.
96. At this stage I make no order as to costs but note that the parties should take the above provisions into account in coming to any agreement as to costs. The parties should also consider my views as to the filing of fresh evidence in the appeal. Failing agreement the parties may make application for an order as to costs.
Dr Gabriel Fleming
Deputy President
I certify that that this is a true and accurate record of the reasons for decision of Deputy President Dr Gabriel Fleming, Workers Compensation Commission.Registrar Date:
92
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