Melissa Smith v St. Andrews Anglican Retirement Village
[2003] NSWWCCPD 26
•17 October 2003
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
__________________________________________________________________
| CITATION: | Melissa Smith v St. Andrews Anglican Retirement Village [2003] NSW WCC PD 26 |
| APPELLANT: | Melissa Smith (also known as Burton) |
| RESPONDENT: | Uniting Church in Australia Property Trust (NSW) trading as St. Andrews Anglican Retirement Village |
| INSURER: | Uniting Care Employer Advisory Service – self administration on behalf of Allianz Australia Limited |
| FILE NO: | WCC 2740-2002 |
| DATE OF DECISION: | 17 October, 2003 |
| PRESIDENTIAL MEMBER: | Deputy President Gary Byron |
| DECISION UNDER APPEAL: | Application for leave to appeal against the decision of the Arbitrator; refusal to admit document into evidence; award of compensation for a closed period, and not continuous. |
| DATE OF DECISION UNDER APPEAL: | 7 January, 2003 |
| HEARING: | 15 September, 2003 (telephone conference) |
| REPRESENTATION: | Appellant: McClellands Lawyers |
| Respondent: Holman Webb Lawyers | |
| ORDERS MADE ON APPEAL: | The appeal is not allowed. The decision of the Arbitrator is confirmed. |
THE APPEAL
On 29 January, 2003 the Applicant, Melissa Smith, also known as Burton, (‘the Appellant’), lodged an ‘Application [to] Appeal Against a Decision of an Arbitrator’, dated 23 January, 2003, in the Workers Compensation Commission (‘the Commission’), against a decision of an Arbitrator dated 7 January, 2003. The Respondent to the appeal is Uniting Church in Australia Property Trust (NSW) trading as St. Andrews Anglican Retirement Village (‘the Respondent’) and the Insurer is Uniting Care (self-administration) on behalf of Allianz Australia Limited, (‘the Insurer’).
The Commission issued directions to the parties in this matter, and various documents in relation to the appeal were lodged with the Commission up to and including 28 July, 2003. In addition, I issued directions on 2 July, 2003 for (a) the production of the medical report of 17 December, by Dr. Carmody and the covering letter relevant to that document, (b) the filing of a submission by the Respondent as to the ‘threshold issue’ in relation to leave to appeal, and (c) the filing of submissions by both parties as to whether the appeal could be dealt with on the papers. I directed that the submissions and documents were to be filed in the Commission and served on the other party on or before Friday 11 July, 2003 and that any response to these submissions was to be filed in the Commission and served on the other party on or before Friday 18 July, 2003. The Respondent agreed to the appeal being determined on the papers, but the Appellant submitted that it was in the interests of justice that it not be determined on the papers. Last submissions were received by me on 1 August, 2003, and arrangements were then made with and between the parties, for the appeal to be heard by telephone conference on 15 September, 2003.
The issues that were in dispute before the Arbitrator are summarized in the Arbitrator’s Statement of Reasons for Decision, as follows:
·Did the Applicant receive an injury arising out of or in the course of employment? (WCA S 9)
·Was the Applicant’s employment a substantial contributing factor to her injury? (WCA s 9A)
·Was the Applicant totally or partially incapacitated for work as a result of her injuries? (WCA s 33)
·For what period was the Applicant totally incapacitated for work as a result of her injuries? (WCA ss 36 and 37)
·Should the Applicant be treated as totally incapacitated under the ‘odd-lot’ rule? (WAC s 39)
·For what period was the Applicant partially incapacitated? (WCA s 40)
·Is the Applicant disentitled to weekly benefits because of an unreasonable failure to comply with the requirements of workplace injury management requirements [sic] under the Workers Compensation Act [sic]? (WIMWCA s 57)
·Are some or all of the Applicant’s medical and related expenses incurred as a result of treatment, services or assistance reasonably necessary for the compensable injury?
WCA refers to the Workers Compensation Act 1987 (‘the 1987 Act’), and WIMWCA refers to the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’). The Rules that applied to the proceedings before the Arbitrator were the Interim Workers Compensation Rules 2001 (‘the Rules’).
THE DECISION UNDER REVIEW
The Certificate of Determination issued by the Commission on 7 January, 2003 sets out the formal decision of the Arbitrator, as follows:
·That the Applicant is entitled to weekly compensation at the rate of $381.90 per week from 16th January, 2002 to 14th March, 2002 (s36 & s37 WCA).
·That the Respondent pay the Applicant’s reasonable expenses pursuant to s60 WCA on production of accounts or receipts.
·That the Respondent pay the Applicant’s costs as agreed or taxed.
The Arbitrator’s decision, regarding the orders for the Respondent to pay the Appellant’s reasonable expenses pursuant to section 60 of the 1987 Act and for the payment of costs as agreed or taxed, are not the subject of this appeal and consequently, are not under review. However, the decision by the Arbitrator not to admit into evidence, a medical report dated 17 December, 2002 from Dr. Carmody, that was tendered at the hearing before her, and her decision to make a closed period order, are the subject of this appeal, as set out hereunder.
THE ISSUES IN DISPUTE ON APPEAL
The issues in dispute in the appeal may be summarised as follows:
(1)Whether the Arbitrator erred in law, by applying the wrong test in deciding not to admit into evidence, Dr. Carmody’s report of 17 December, 2002; by not reading that report before making the decision to admit or exclude it, and by exercising her discretion to exclude the report by deciding that the prejudicial effect of admitting this evidence outweighed the probative value of the evidence.
(2)Whether the Arbitrator erred in law by awarding the Appellant a closed period award of $381.90 from 16 January, 2002 to 14 March, 2002, and by not awarding payment of weekly compensation pursuant to sections 36, 37, 38 and 40 of the 1987 Act, from 16 January, 2002, and ongoing.
JURISDICTION TO HEAR THE APPEAL
Before proceeding to hear the appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act, which provides:
352Appeal against decision of Commission constituted by Arbitrator
(1)A party to a dispute in connection with a claim for compensation may, with leave of the Commission constituted by a Presidential member, appeal to the Commission as so constituted against a decision in respect of the dispute by the Commission constituted by an Arbitrator.
(2)The Commission is not to grant leave to appeal unless the amount of compensation at issue on the appeal is both:
(a)at least $5,000 (or such other amount as may be prescribed by the regulations), and
(b)at least 20% of the amount awarded in the decision appealed against.
(3)If the Commission refuses to grant leave to appeal, the Commission must state reasons for the refusal in writing to the parties.
(4)An appeal can only be made within 28 days after the making of the decision appealed against.
(5)An appeal under this section is to be by way of review of the decision appealed against.
(6)Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.
(7)On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
(8)In this section, decision includes an award, interim award, order, determination, ruling and direction.
While the Respondent initially objected to the grant of leave to appeal in the submission dated 8 July, 2003, the objection was not pressed at the hearing. I am satisfied that the requirements of section 352(2) are met.
The appeal was lodged within 28 days of the Arbitrator’s decision, complying with the requirements of section 352(4).
Leave to appeal is granted.
SUBMISSIONS ON APPEAL
Written submissions for the Appellant
The written submissions for the Appellant may be summarized as follows:
·The Arbitrator had a discretion, pursuant to Rule 16(3) of the Interim Workers Compensation Commission Rules (‘the Interim Rules’), to admit evidence relied upon by a party in proceedings, that has not been served and lodged with the Application to Resolve a Dispute, or where a statement outlining this evidence has not been served or lodged with the Application. The test used by the Arbitrator at paragraph 17 on page 6 of the Statement of Reasons for Decision, being the weight of the balance between the prejudice to the Respondent and the probative value to the Appellant, was not the correct test to be used as the discretion to exclude evidence where its prejudicial effects outweighs its probative value has no application in civil proceedings. Ibrahim v The King [1914] AC 599 at 610; Hurst v Evans [1917] 1 KB 352 at 358; Manenti v Melbourne and Metropolitan Tramways Board [1954] VLR, 115, and David Syme and Co Limited v Mather [1977] VR 516 at 531, cited.
·It is not conceded that the Appellant sought to tender a letter of request from the Appellant’s Solicitor to Dr. Carmody, when seeking to tender the report dated 17 December, 2002, from Dr. Carmody. The letter of request was sought by the Arbitrator. However, to avoid injustice, pursuant to Rule 16(3), the Arbitrator should have read the supplementary report dated 17 December, 2002, by Dr. Carmody, before making her decision as to whether to admit into or exclude it from the evidence before her. It is submitted that the Arbitrator could not make a decision on the relevance and the probative value of the supplementary report of Dr. Carmody without reading the document.
·On 20 September, 2002 the Appellant’s Solicitors requested a report from Dr. Carmody. As at the date of the telephone conference on 13 December, 2002 the Appellant’s Solicitors had not received a report from Dr. Carmody. The Arbitrator informed the Appellant’s Solicitors that she would not adjourn the conciliation/arbitration date and that the Appellant’s Solicitors must file and serve the report of Dr. Carmody before 18 December, 2002. The Appellant’s Solicitors received the report on 17 December, 2002. On that date, clarification was sought, by way of facsimile communication, in relation to certain matters contained in the first report of Dr. Carmody, which was dated 14 December, 2002. This facsimile advised Dr. Carmody that the matter was listed for hearing on 19 December 2002 and sought his opinion as a matter of urgency. On the morning of 19 December, 2002 the Appellant’s Solicitors received the supplementary report dated 17 December, 2002. This one page supplementary report contained, in addition to the clarifying information, his response to a request for his opinion as to substantial contribution of employment, and present incapacity. “As from the commencement of the Applicant’s claim being 10 July, 2002 the Respondents had been aware of the Applicant’s pregnancy which was the reason for seeking the clarification and further opinion from Dr. Carmody.”
·The Arbitrator should have exercised her discretion in favour of the Appellant considering that there were no new facts in issue raised in Dr. Carmody’s report of 17 December, 2002, and to avoid injustice, the Arbitrator should have considered the prejudicial effect to the Appellant of excluding that supplementary medical report, given the limited period of time the Appellant had for preparation prior to the telephone conference and the subsequent arbitral proceedings. Furthermore, the Arbitrator, in exercising her discretion, should have considered the delay experienced by the Appellant in obtaining the first report of Dr. Carmody. The Appellant seeks to rely on the evidence of Dr. Carmody in his medical report of 17 December, 2002.
The Appellant relied upon her grounds of appeal, without expanding on them, in relation to the Arbitrator’s decision to make an award for payment of compensation for a closed period. The Appellant seeks a continuing award in the same amount of weekly payments, pursuant to sections 36, 37, 38 and/or 40 of the 1987 Act. Finally, the Appellant submits that the decision of the Arbitrator should be revoked, and that a new decision should be made.
Written submissions for the Respondent
The written submissions for the Respondent may be summarized as follows:
·The report dated 14 December, 2002 from Dr. Carmody had been duly filed and was before the Arbitrator. A copy of that report was served on the Respondent on 18 December, 2003. At no time did the Appellant indicate that a further report had been requested from Dr. Carmody, nor did the Appellant seek leave to rely upon a further report from Dr. Carmody.
·The Respondent relies on Rule 16 and section 290 of the 1998 Act in submitting that the Arbitrator’s decision to exclude the report of 17 December, 2002, was correct. The Arbitrator had the opportunity to peruse the letter of request, which indicated the nature of the information that would be in Dr. Carmody’s report of 17 December, 2002; she was well placed to make her decision to exclude the report, and she was correct in making that decision. The Arbitrator has made no error of law in deciding to exclude the document.
·In addition to clarification, the Appellant requested further information in the nature of an opinion as to whether her employment had been a “substantial contributing factor” within the meaning of section 9A of the 1987 Act, in the development of the Appellant’s incapacity. Dr. Carmody’s report of 14 December, 2002 “clearly deals with all of these issues.”
·All of the medical evidence, including Dr. Carmody’s report of 14 December, 2002 “states that the Applicant’s [sic] back and leg pain is a result of degenerative changes.” Reference is made to the contents of the ‘Application to Resolve a Dispute’ dated 25 September, 2002 and the Respondent’s reply filed on 12 November, 2002. The Arbitrator has not made an error of law as the evidence compelled a finding that beyond 14 March, 2002, the Appellant’s capacity for work related to factors other than her employment duties including degenerative factors and in particular, her pregnancy.
·The Respondent submits that the Appellant should pay her own costs of this appeal.
TELEPHONE CONFERENCE
The telephone conference hearing was held with the parties on 15 September, 2003. Mr. Wright of Counsel instructed by Mr. Peter Clarke, McClellands Lawyers, appeared for and with the Appellant. Mr. Taylor, Holman and Webb, Lawyers, appeared with a representative of the Respondent. Telstra recorded the telephone proceedings and a transcript was provided subsequently, to the Commission and to the parties.
At the commencement of the hearing, Mr. Wright sought an adjournment for the purpose of obtaining and producing fresh evidence from a treating specialist, Dr. Darveniza, following receipt of further instructions as to developments in the Appellant’s medical condition that have allegedly occurred since the hearing and determination by the Arbitrator. Mr. Taylor objected to the adjournment on the basis that he had received no notice of any intention to make this application or that any submissions as to further evidence were to be made at the hearing. He said that the issues on which the appeal was to proceed were clear. The submissions made by the parties were considered and I briefly outlined the nature and scope of an appeal to a Presidential member, as set out in the transcript. This appeal was lodged on 29 January, 2003 and the parties have had ample time to make their preparations, having dealt with Commission staff in terms of requirements and procedures in relation to this appeal, since then. The time that has elapsed since the issue of further directions by me on 2 July, 2003 has provided even more opportunity for this purpose. Finally, it is apparent from the submission made by Mr. Wright, that the adjournment was being sought for the purpose of obtaining medical evidence of developments that have apparently occurred since the date of the Arbitrator’s decision, and without knowing the precise details that might be contained in any medical report that might be produced. Finally, no substantive submissions have been made with regard to leave to submit fresh evidence in the appeal, pursuant to section 352(6) of the 1998 Act. In the circumstances, the application was refused.
In pressing the issues raised in the Appellant’s written submissions, Mr. Wright submitted that the timeframe for seeking and producing Dr. Carmody’s report of 14 December, 2002, was necessarily narrow. He said:
…it necessarily follows that if there are any clarifications that are required, the Applicant should, in procedural fairness terms, be allowed to pursue such clarification, and you will see from the timeframe that has been provided that the timeframe was necessarily limited to only about one or two days.
Although providing drastic restrictions, Mr. Wright said that section 290 of the 1998 Act provides for the operation of the Rules to allow some leeway. He submitted that the Appellant’s Solicitors had no way of knowing that there would be inadequacies in the report dated 14 December, 2002, from Dr. Carmody. There was no way of complying with Rule 16, but the Arbitrator herself had allowed the admission of that report. He said that it follows that it is procedurally unfair to impose the exclusion on the report of 17 December, 2002. He further stated that the words “as soon as practicable” in Rule 16(2)(b) leaves the way open for the Appellant to rely on that report. Mr. Wright pointed out that Dr. Carmody’s report of 14 December, 2002 was in fact, referred to by the Arbitrator. That report, he said, was so ambiguous and unclear that by referring to it in her determination, the Arbitrator allowed significant prejudice to the Appellant and it was unreasonable to do so without considering the points of clarification in the report of 17 December, 2002. He drew attention to the ambiguity or conflict between the following two statements in the report of 14 December, 2002:
In my opinion, Melissa’s back and leg pain is the result of degenerative changes at the L4/5 and L 5/S1 discs. Having completed my investigations of Melissa, I am of the opinion that the history she gave is consistent with the condition found.
Mr. Wright went on to say that this ambiguity was never addressed in the decision-making process, this being unfair and unreasonable, given the availability of the report of 17 December, 2002, which in fact, did address the issues.
Mr. Wright went on to say that the Arbitrator considered Dr. Carmody’s report of 14 December, 2002 together with the reports of Dr. Rutherford and Dr. Smith. In particular, he referred to the second sentence in paragraph 42, of the Arbitrator’s Statement of Reasons for Decision:
Both agree that there is no relationship between her current condition and her injury on 16th January, 2002.
By not admitting Dr. Carmody’s report of 17 December, 2002, the Arbitrator denied the Appellant procedural fairness by allowing the earlier report to stand alone in ambiguous terms or forms, and thereafter it was used against the Appellant in those circumstances.
Mr. Taylor for the Respondent, submitted that it was not so much that Dr. Carmody’s report of 14 December, 2002 was ambiguous, but it is simply the case that the Appellant did not like it, was not happy with the conclusions expressed, and sought to get another one before the arbitral proceedings in December, 2002. He said that the report seemed to be fairly clear and comprehensive. The diagnosis and conclusions reached in the report of 14 December, 2002 seem to be fairly clear. Dr. Carmody indicates that it is more of a constitutional, degenerative condition than one related to the Appellant’s work. He said that Dr. Carmody’s report is not ambiguous, but just unhelpful from the Appellant’s point of view.
Mr. Taylor went on to say that the Respondent knew nothing of the report dated 17 December, 2002 until the Appellant sought to tender it at the hearing before the Arbitrator. No prior indication or notice of that report had been provided. The tight timeframe is acknowledged, but no effort was made to provide a copy to the Respondent, not even by facsimile on the morning of the hearing.
Mr. Taylor submitted that the report of 17 December, 2002 was requested “not really just for matters of clarification but really to review the issues then and to traverse the same issues…” Mr. Taylor went on to say that the Appellant could have called the doctor to give evidence on the day if clarification was required, rather than to ambush the Respondent with a report that had not been furnished to the Respondent, and that the Respondent knew nothing about until the application was made to tender it at the arbitral hearing. He said that in any event, “it is simply a rehash of the report of the 14th with more favourable conclusions for the applicant.” Mr. Taylor submitted that the document would not assist, “certainly to the degree of the prejudice that is weighed upon the Respondent.” He submitted that the Arbitrator reached the correct conclusion. The Arbitrator saw the questions that were put to Dr. Carmody by the Appellant’s Solicitor and that assisted her in arriving at her decision. Mr. Taylor said that this is not a question of an error of law but simply a question of the exercise of a wide discretion that resides in the Arbitrator.
Mr. Wright pressed the point that the medical report of 17 December, 2002, of Dr. Carmody raised no new views “in relation to investigations or the like; it only provides his opinion as to the medical-legal questions in issue, which he didn’t address in his substantive report of 14 December, 2002.” He said further, that the Respondent already had the report of 14 December, 2002 “which denied everything.” He submitted that there was no prejudice to the Respondent and that the Appellant should have been entitled to seek clarifications that were needed. The Arbitrator did not read the report of 17 December, 2002, this being common ground, and it is submitted that this amounts to substantial procedural unfairness. Mr. Wright said that the Arbitrator could not properly make her finding without reading the actual report. Mr. Wright referred to the written submissions made in this regard and to the cases cited, as previously stated. In particular, he referred to Papakosmas v R (1999) 196 CLR 297 regarding the basis and extent of the discretion purported to be exercised by the Arbitrator. Mr. Wright submitted that while there is a limited discretion to exclude or limit evidence on the basis put by the Arbitrator, it is not as wide as implied and exercised by the Arbitrator. In any event, he submitted, without conceding the point, that Rule 16(3) permitted the admission of the evidence. The short time frame available to the Appellant is put forward as the special circumstances for the avoidance of injustice, required by the Rule.
Mr. Wright further submitted that the Arbitrator erred in law by not having regard to Rule 38 requiring that evidence should be logical and probative, in deciding to exclude the document, her action being ultra vires the Rule.
In response Mr. Taylor submitted that the medical report of Dr. Carmody, dated 14 December, 2002 was already a supplementary report; that the Arbitrator did read the letter from the Appellant’s Solicitors to Dr. Carmody, and was able to obtain from its contents, the specific matters in response to that letter, that were covered in his report of 17 December, 2002, and that in any event, there was no ambiguity in Dr. Carmody’s report of 14 December, 2002. He submitted that the rules of evidence do not apply and the Arbitrator properly exercised her discretion in the matter. In terms of procedural fairness, it should be taken into account that the Respondent did not see the report of 17 December, 2002 that was tendered before the Arbitrator; had no notice of that report and no leave had been sought to rely upon any further report.
In terms of the second issue in the appeal, whether the Arbitrator had erred in making an award for a closed period, Mr. Wright submitted that the Appellant had been accepted as a witness of truth. Moreover, Dr. Rutherford’s report referred to resolving symptoms complicated by pregnancy, but did not say anything about resolution of work-related symptoms. It is implied in his report of 11 July, 2002 that the work-related symptoms were exacerbated by the pregnancy, and there is reference to the chronicity of symptoms. Mr. Wright submitted that the exacerbation of her back pain is again referred to in Dr. Rutherford’s report of 16 September, 2002, but that her advancing pregnancy was unlikely to be exclusively caused by it, again not ruling out the work-related injury. Mr. Wright further submitted that the Arbitrator had fallen into error in dealing with the medical reports of Dr. Rutherford. He said that the Arbitrator’s conclusion that the effects of the injury had receded by the time the Appellant’s baby was born and that the pain then being endured resulted from degenerative changes in the discs at the L4/5 and l5/S1 level, is unsafe, particularly if the contents of Dr. Carmody’s report of 17 December, 2002, are taken into account.
In relation to Dr. Smith’s report, Mr. Wright conceded that the Arbitrator was correct in concluding that Dr. Smith does say that there was no relationship between her current condition and the alleged injury. However, he submitted that Dr. Smith’s report should not have been relied upon or should have been given little weight, as the Appellant was found to be a witness of truth and was supported by the report of Dr. Rutherford.
Mr. Taylor submitted that the appeal was not meant to be a rehearing and that the Respondent argues that the Arbitrator had the power to do what she did. However, Dr. Rutherford, the treating doctor, clearly held the view that the Appellant’s pregnancy was a major issue. He said that the symptoms were likely to be aggravated by the effects of her advancing pregnancy, therefore to say that the entire problem was caused by an incident at work is misleading. It was reasonable for the Arbitrator to suggest, having read this report, that at the very least, the Appellant’s condition was largely attributable to her pregnancy. Mr. Taylor conceded that the Arbitrator found the Appellant to be a witness of credit, but that Dr. Smith “makes some other conclusions, but they are of not any particular import at this appeal today.” Mr. Taylor further submitted that the Arbitrator’s findings and conclusions were in accordance with the evidence.
In conclusion, Mr. Wright submitted that the conclusion drawn by the Arbitrator that the Appellant would have been cleared to return to work after the review on 14 March, 202, is not supported and cannot be implied by the reports of Dr. Rutherford. There is an ongoing incapacity for work and her condition is of a nature that has a causal link with the injury sustained at her work.
Mr. Taylor responded that Dr. Rutherford seems to suggest repeatedly that the Appellant’s problems were related to her pregnancy and not to any work condition. He pointed to Dr. Smith’s reports and said that he was fairly adamant that in relation to the Appellant’s complaints, spondylolisthesis is a congenital condition that is not due to work, and that there was nothing wrong with the Appellant when he submitted his report, insofar as the alleged incident at work is concerned.
EVIDENCE
The Appellant gave sworn witness in the proceedings before the Arbitrator.
The following documentary evidence was before the Arbitrator and was taken into account by her:
·A medical report dated 16 September, 2002, of Dr. Douglas Rutherford, the Appellant’s treating doctor.
·A medical report dated 14 December, 2002, of Dr. Christopher Carmody, the Appellant’s orthopaedic specialist.
·The compensation claim form dated by the Appellant, 17 January, 2002 and the Employer, 18 January, 2002.
·WorkCover medical certificate dated 14 October, 2002, by Dr. Rutherford.
·Medical report dated 11 July, 2002, by Dr. Rutherford.
·Medical report dated 17 July, 2002, by Dr. Robert Smith, the Respondent’s orthopaedic specialist.
The history of the claim made by the Appellant and an outline of her evidence is contained in the Arbitrator’s Statement of Reasons for Decision. Briefly, the Appellant was, at the time of the hearing, a married woman, 29 years of age. She had been employed by the Respondent for about three years. On 16 January, 2002 she experienced severe pain in her back and right leg when she was assisting a patient to the toilet by attaching the patient to a pixel lifter. She assisted the patient to a sitting position and supported her. As she lent forward to take hold of the pixel strap she felt some pain. At the time she was pregnant with her third child. She notified the Respondent of the injury, in writing, on that day and on 17 January, 2002, she made a claim for payment of compensation. She did not work again until 30 January, 2002, when she worked for three days from 10 am to 5 pm, undertaking clerical work. She then worked for a further six days, from 9 am to 5 pm, concluding on 7 February, 2002. She did not work again. On 8 February, 2002 she advised her employer that she intended to take maternity leave from 15 April, 2002 to 17 June, 2002. Her child, Emily was born on 5 May, 2002. It is agreed by the parties that at the time of her injury, the Appellant was working thirty hours per week at an hourly rate of $12.73.
DISCUSSION AND FINDINGS
The issues in dispute in this appeal are whether the Arbitrator erred in not admitting the medical report dated 17 December, 2002, from Dr. Carmody, and whether she erred in making an award for payment of compensation for a closed period, and not continuing.
Notwithstanding the Arbitrator’s decision not to admit Dr. Carmody’s medical report of 17 December, 2002 into evidence the Arbitrator found, on the basis of the evidence that was before her, that the Appellant suffered an injury “within the meaning of section 4 WCA, on 16th January, 2002”, and that her employment was a substantial contributing factor to that injury. An award for payment of compensation was made in favour of the Appellant. These findings are not in dispute. Furthermore, the order by the Arbitrator that the Respondent pay the Appellant’s reasonable expenses pursuant to section 60 of the 1987 Act, on production of accounts or receipts, is not in dispute in this appeal. Consequently, there is no dispute as to the Respondent’s liability for payment of workers compensation, except as to the period for which the liability applies.
The Appellant variously submitted that the Arbitrator erred in law by applying the wrong test in deciding not to admit the report dated 17 December, 2002, of Dr. Carmody; that she erred by not reading that document before making the decision to exclude it, and that she erred by exercising her discretion to exclude it by deciding that the prejudicial effect of admitting this evidence outweighed its probative value: (written submissions in support of the appeal). However, in the proceedings before me the Appellant submitted that some limited discretion does reside in the Arbitrator to exclude or limit evidence on the basis put by the Arbitrator, but that it is not as wide as implied and exercised by the Arbitrator. Mr. Wright for the Appellant cited the High Court case of Papakosmas v R (1999) 196 CLR 297. That case concerned the application of the Evidence Act 1995 (NSW) to a sexual assault criminal trial. In particular, the Court considered sections 55 and 56 as to relevance of evidence, section 66 as to the admission of hearsay evidence, section 135 as to the general discretion to exclude evidence and section 137 as to the exclusion of prejudicial evidence in criminal proceedings. The High Court made it clear that the Evidence Act 1995 replaced the common law rules of evidence (at [10] and [46]). Moreover, Gleeson CJ and Hayne J stated at [26]:
The Act confers on courts a general discretion to refuse to admit evidence in certain circumstances (s135), and it obliges a court, in a criminal proceeding, to refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant (s137).
Section 137 of the Evidence Act 1995 applies to criminal proceedings only. However section 135 confers a general discretion to exclude evidence and applies to both criminal and civil proceedings. Section 135 provides:
135 General discretion to exclude evidence
The Court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:
(a) be unfairly prejudicial to a party, or
(b) be misleading or confusing, or
(c) cause or result in undue waste of time.The Appellant also relied on the authorities cited earlier at [11], to support the proposition that the test for the admissibility of evidence, where the probative value is weighed against the prejudicial effect of the evidence, has no or limited application in civil proceedings. Each of the authorities were decisions that related to the common law rules of evidence and in any event, do not displace the provisions of the Evidence Act 1995 in New South Wales. In terms of the rules of evidence that are applicable in New South Wales, the Arbitrator did not apply the “wrong” test in the exercise of the general discretion provided in section 135 of that Act, in deciding not to admit Dr. Carmody’s medical report of 17 December, 2002, and I find accordingly.
While the Arbitrator had the power to exercise her discretion to exclude the document, what remains to be determined is whether she exercised that discretion properly in this matter. However, this must be considered within the context of the provisions of the 1998 Act, and the Interim Rules that applied at the time.
Section 354 of the 1998 makes provision for the procedure before the Commission. It provides, inter alia:
354 Procedure before Commission
(1)Proceedings in any matter before the Commission are to be conducted with as little formality and technicality as the proper consideration of the matter permits.
(2)The Commission is not bound by the rules of evidence but may inform itself on any matter in such manner as the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits.
(3)The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.
Rule 38 provided:
38 Principles of procedure
When informing itself on any matter, the Commission is 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 unsubstantiated assumptions is unacceptable,
(d)unqualified opinions are unacceptable.
Rule 16 provides:
16Material to be lodged with application
(1)For the purposes of section 290, the applicant must lodge with the application for dispute resolution all information and documents on which the party proposes to rely that are in the possession of the applicant at that time.
Note: Section 290 (3) prevents a party from introducing additional material if it was not provided as and when required by the rules.
(2)Subject to subrule (3), an applicant may not in the proceedings introduce evidence that has not been included in a statement, report or other document lodged with the application for dispute resolution in the proceedings unless:
(a)the applicant has served and lodged with the application for dispute resolution a statement revealing:
(i)the specific nature of the evidence, and
(ii)the reliance the party intends to place on the evidence, and
(iii)the reasons why the evidence is not available at the time of service, and
(iv) the time it is expected to be available, and
(b)the evidence is included in a statement, report or other document served on all other parties and lodged as soon as practicable after that evidence becomes available.
(3)The Commission may, for the avoidance of injustice in special circumstances, allow an applicant to introduce evidence that the applicant would otherwise be prevented from introducing because of the operation of subrule (2).
Dealing first of all, with the proposition that the Arbitrator’s decision not to admit the document was ultra vires Rule 38, it was submitted during the telephone hearing before me, by Mr. Wright, that “the report of 14 December, in my submission, becomes logical and probative when considered with the report of 17 December and, indeed, the report of 17 December is of course, logical and probative in these circumstances. So, in my submission, the Arbitrator also erred on a question of law in relation to rule 38. It’s my submission that the Arbitrator failed to have regard to that rule, and also one submits that what’s proposed by the Arbitrator in the decision-making process in that regard was ultra vires of rule 38.” Rule 38 sets out principles in terms of specific qualities of evidence, which are to be borne in mind by the Commission, “…when informing itself on any matter…”. In my view, Rule 38 provides a set of basic principles but not an exclusive prescription, and does not extend to inhibit an Arbitrator in ruling on the admissibility or otherwise, of particular evidence, on other legal grounds or principles. The Arbitrator was required to “bear in mind” the principles set out in Rule 38, in the conduct of the proceedings before her, but the principles were not an issue in her decision not to admit Dr. Carmody’s report of 17 December, 2002. I find that the Arbitrator did not err in this regard.
The Commission is not bound by the rules of evidence and the Arbitrator was entitled to inform herself on any matter in such manner as she thought fit and as the proper consideration of the matter before her permitted, pursuant to section 354(2) of the 1998 Act. It was a matter for the Arbitrator to determine the admissibility and relevance of evidence in accordance with the relevant legislation, including the Rules, and the Practice Directions. This does not mean that the rules of evidence would not have been a relevant consideration for the Arbitrator when exercising her discretion. She was entitled to peruse the letter of 17 December, 2002 from the Appellant’s Solicitors to Dr. Carmody in order to ascertain the nature of the medical report of that date, provided by Dr. Carmody. She had already directed that a further report from Dr. Carmody be filed by 5 pm on 18 December, 2002, and the report dated 14 December, 2002 was duly filed and a copy provided to the Respondent. The Respondent objected to the admission of the medical report of 17 December, 2003, when it was sought to be tendered at the arbitral hearing on 19 December, 2002. That was the first occasion on which the Respondent had seen or knew of the existence of, that particular report. In reading the letter of request of 17 December, 2002 from the Appellant’s Solicitors to Dr. Carmody, I note that there were four requests regarding his report of 14 December, 2002. The first request was for clarification of the sentence “It is my opinion that this condition is unrelated to her present symptoms”. In reading of the relevant part of the medical report of 14 December, 2002, to which this question is directed, it is clear that the condition referred to was “spondylotic spondylolisthesis of L5”, as stated in the immediately preceding sentence. There is no ambiguity and I am unable to discern the need for clarification of this point, which had been plainly made. Questions 2, 3 and 4 do not seek clarification as the Appellant claims, but request Dr. Carmody to provide opinions, which by clear implication if not by definition, are not included in that report, and if admitted as evidence in the later report, would take the form of late, substantive evidence, rather than mere clarification of earlier evidence. While it was open to the Arbitrator to read Dr. Carmody’s report of 17 December, 2002, the Arbitrator did not do so, obviously on the basis that the contents of the Solicitor’s letter were a clear indication of what was contained (as specifically requested), in the report. Reading the report of 17 December, 2003 would have taken the matter no further, insofar as the Arbitrator’s decision is concerned.
The admission of late evidence in proceedings is a matter entirely within the discretion of the Arbitrator before whom the matter is proceeding. However, that discretion must be exercised in accordance with the objects of the legislation; within the particular statutory context of the decision-maker, and not capriciously: Salido v Nominal Defendant (1993) 32 NSWLR 524. Practice Direction No. 9, effective from 1 July, 2003, and therefore not effective at the relevant time, does however, provide a number of considerations that would normally be taken into account by an Arbitrator in determining an application to admit late evidence. These are:
·The submissions of the parties and objections raised
·The effect, if any, on the timely resolution of the dispute
·The extent of the prejudice to the other parties, if any, that would result from granting leave
·The requirements of the Act and the Rules, and
·The objectives of the Commission
The Appellant did not, in so many words, seek leave to produce Dr. Carmody’s report of 17 December, 2002 as late evidence, but clearly, that was the true nature of the contents of the document. The Respondent had no warning of it and was not prepared for it. The Arbitrator was correct in not exercising her discretion under Rule 16(3). Far from the “avoidance of injustice in special circumstances” for the Appellant, the prejudice and unfairness to the Respondent would have been substantial in these circumstances, had she admitted the document into evidence at the hearing. The Arbitrator was obliged to take into account considerations of fairness and justice between the parties: Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 58 ALR 305; Gallo v Dawson (1990) 13 ALR 479. In my view she discharged this obligation and exercised her discretion, accordingly. I acknowledge the short time frames that had confronted the Appellant (notwithstanding that the request for Dr. Carmody’s report was initially made in September, 2002; there being no indication of the action, if any, that had been taken by the Appellant to follow-up this request), but the Arbitrator had already extended reasonable latitude to the Appellant by allowing the late report dated 14 December, 2002 to be lodged. Finally, the Appellant in fact, succeeded in the proceedings before the Arbitrator, notwithstanding the absence of Dr. Carmody’s report of 17 December, 2002, and was awarded compensation, albeit for a closed period. In all of the circumstances, I find that the Arbitrator did not err in refusing to admit Dr. Carmody’s report of 17 December, 2002 into evidence in the proceedings before her, nor in not reading the contents of that document, having properly informed herself by reading the covering letter of 17 December, 2002, from the Appellant’s Solicitors to Dr. Carmody.
A Presidential member has a specific and limited role in the review of a decision of an Arbitrator. Amongst other things, the review is not a rehearing where the Presidential member is dealing with the matter de novo and arriving at a fresh decision based on all of the evidence available at a later time: Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616. The review is by way of rehearing where the powers of the Presidential member to revoke or substitute a new decision are exercisable only where it is demonstrated that the decision of the Arbitrator is affected by some legal, factual or discretionary error: Allesch v Maunz (2000) 203 CLR 172.
The consideration of the evidence and the weight to be attached to the evidence is entirely a matter for the Arbitrator and, in the absence of demonstrable error in arriving at the decision based on the evidence, her assessment should not be disturbed. I have carefully examined the medical evidence that was before the Arbitrator and find that the assessment made by the Arbitrator of that evidence, as outlined in her Statement of Reasons for Decision, was open to her. In particular, Dr. Rutherford’s evidence is to some extent guarded and equivocal, not as to the fact, but to the extent that the work-related event contributed to her ongoing symptoms, as opposed to the effects of her pregnancy and her degenerative state. The evidence supports the fact that the Appellant sustained an injury to her back arising out of or in the course of her employment and that her employment with the Respondent was a substantial contributing factor. However, the medical evidence that was before the Arbitrator does not, on balance, appear to support an award of workers compensation on a continuous basis. In these circumstances, the Arbitrator was entitled to reach the conclusions set out in paragraphs 43 to 45 of her Statement of Reasons for Decision. I can find no evidence of an error of law, fact or discretion affecting her conclusions, and her decision that is based upon those conclusions. It follows that the award of payment of weekly compensation from 16 January, 2002 to 14 March, 2002, should stand.
DECISION
No error of law, fact or discretion has been made by the Arbitrator. The appeal is not allowed and the decision of the Arbitrator is confirmed.
COSTS
The appeal has been unsuccessful and costs fall to be determined in accordance with section 345 of the Act, which provides:
345 Costs Penalties Where Appeal Unsuccessful
(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 the payment of the appellant’s costs on the appeal by any other party to 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 prescribed 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 Authority.
(5) The Registrar is to notify the Authority of an order to an insurer under this section to pay an administration fee.
I make no order as to costs at this point, and encourage the parties to arrive at an agreement in this regard. Failing that, a further application for costs may be made.
OTHER ISSUES
At the commencement of the telephone hearing on 15 September, 2003, I said:
There are a couple of other matters that I should raise at this time, which we can come back to as well. If you wish, you can make submissions as to the letter that was sent from Geoffrey Grasso, United Care, dated 23 December, which was sent direct to the Arbitrator, care of the Commission, after the date of hearing on 19 December, 2002. The letter was posted by the Commission administration to the Arbitrator on 6 January, 2003, and there’s a file note that said that this was done ‘as fax would not go through’.
I note, as I said, that it was posted to her from the Commission office on 6 January, and her completed decision is dated 7 January, 2003.
Finally, I invite submissions, if you wish, as to fresh or additional evidence. Two WorkCover medical certificates were purported to be lodged under cover of letters dated 8 July 2003 and 7 August 2003. There was no certificate, in fact, attached to the letter of 8 July, so that’s gone astray, somewhere.
No submission as to fresh or additional evidence has been made in relation to these documents, and there is no indication that these documents have been made available to the respondent, but the respondent can tell us that.
Mr. Wright indicated that he had not seen the letter from Mr. Grasso, and neither had the Respondent. I indicated that I would not be taking the letter into account but considered that I should inform the parties that it was on the Commission file. At the conclusion of the hearing I indicated to the parties that Mr. Grasso’s letter, in all probability, would not have been seen by the Arbitrator and therefore, could not have been taken into account, given that it was posted to her on 6 January, 2003 and her Statement of Reasons for Decision was dated 7 January, 2003. Both parties stated that they did not wish to take the matter further and had no submissions to make. Moreover, the letters of 8 July and 7 August, 2003, to which medical certificates were allegedly attached, and that were received in the Commission, were not pressed, by Mr. Wright, who indicated that he did not seek to rely on these documents. Mr. Taylor, for the Respondent, made no submissions in relation to these documents.
Gary Byron
Deputy President
I certify that that this is a true and accurate record of the reasons for decision of Deputy President Gary Byron, Workers Compensation Commission.
Registrar Date:
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