National Foods Milk Limited v Ali
[2007] NSWWCCPD 186
•29 August 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:National Foods Milk Limited v Ali [2007] NSWWCCPD 186
APPELLANT: National Foods Milk Limited
RESPONDENT: Rohab Ali
INSURER:QBE Workers Compensation (NSW) Ltd
FILE NUMBER: WCC804-07
DATE OF ARBITRATOR’S DECISION: 3 May 2007
DATE OF APPEAL DECISION: 29 August 2007
SUBJECT MATTER OF DECISION: Meaning of ‘injury’ in section 4 of the Workers Compensation Act 1987; adequacy of reasons.
PRESIDENTIAL MEMBER: Acting President Bill Roche
HEARING:On the papers
REPRESENTATION: Appellant: Stephen Lee Legal
Respondent: Firths
ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 3 May 2007 is confirmed.
The Appellant Employer is to pay the Respondent Worker’s costs of the appeal.
BACKGROUND TO THE APPEAL
Rohab (John) Ali (‘the Respondent Worker/Mr Ali’) is a 59-year-old Fijian. Before coming to Australia in about 1983 he worked as a clerk in Suva until he was 24 and then in Auckland as a leading hand with Auckland Milk Co-operative for approximately 12 years. After coming to Australia he worked for Queensland United Foods in a packaging plant for 12 years before starting with United Foods Milk Limited (‘the Appellant Employer/United’) in 1999 as a general hand.
On 29 November 2003 (incorrectly referred to as “23 November 2003” in the Arbitrator’s Statement of Reasons for Decision and Certificate of Determination dated 3 May 2007) Mr Ali was working in United’s cool room when a stack of pallets fell onto him (‘the accident’). The exact nature and extent of his injuries is disputed and will be considered in detail in this decision. He was able to return to work on light duties after six weeks and normal duties shortly after that though he continued to complain of symptoms said to have resulted from the accident.
On 28 February 2006 his solicitor claimed lump sum compensation in the sum of $18,500.00 in respect of a 14% whole person impairment together with compensation for pain and suffering. By letter dated 3 April 2006 QBE Workers Compensation (NSW) Ltd (‘QBE’) declined to make any offer of settlement.
An Application to Resolve a Dispute (‘the Application’) was registered in the Workers Compensation Commission (‘the Commission’) on 12 February 2007 in which Mr Ali alleged that in his accident on 29 November 2003 he sustained injuries to his “neck, back, leg, left hand, chest, upper arm and ribs”. He claimed lump sum compensation in the sum of $18,500.00 in respect of a 14% whole person impairment and $30,000.00 for pain and suffering.
By its Reply filed on 2 March 2007 United sought leave to include the following matters as matters in dispute:
“1.The Applicant did not suffer injury to the thoracic spine, left hand and upper arm.
2. The Applicant has completely recovered from any pathological condition (soft tissue injury) suffered as a result of the episode at work on 29.11.03.
3. The Applicant is not suffering any work related injury to his cervical or thoracic spine or to his left shoulder.
4. If the Applicant is suffering injury that injury(s) is or are solely related to a pre-existing or constitutional condition and is not related to the alleged episode on 29.11.03.
5. In the event that work injury is found by the Commission a section 323 Workplace Injury Management Act 1998 [sic] deduction is appropriate.
6.The Applicant is not entitled to Section 66 and Section 67 benefits as claimed.”
The matter was listed for conciliation and arbitration before a Commission arbitrator on 24 April 2007 when submissions were heard but no oral evidence was taken. In a reserved decision delivered on 3 May 2007 the Arbitrator found in favour of Mr Ali on the issue of injury and remitted the matter to the Registrar for referral to an Approved Medical Specialist (‘AMS’) for permanent impairment assessment.
By an ‘Appeal Against Decision of Arbitrator’ filed on 28 May 2007 United seeks leave to appeal the Arbitrator’s decision.
LEAVE TO APPEAL
Monetary Threshold
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
The quantum in issue on the appeal is in excess of $5,000.00 and therefore the threshold in section 352(2)(a) of the 1998 Act is satisfied. No award of compensation has yet been made in this case and therefore the second limb of section 352(2) does not apply (see Mawson v Fletchers International Exports Pty Ltd [2002] NSWWCCPD 5).
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
Interlocutory
For the reasons set out in P & O Ports Limited v Hawkins [2007] NSWWCCPD 87, I am satisfied that the Arbitrator’s determination is not a “preliminary or interim” determination of an interlocutory nature. The Respondent Worker has not submitted to the contrary.
I grant leave to appeal.
PRELIMINARY MATTERS
Section 354(6) of the 1998 Act provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 3 May 2007, records the Arbitrator’s determination as follows:
“1.I find the Applicant suffered an injury to his cervical spine, his thoracic spine, and his left shoulder in the workplace incident on 23 November 2003 [sic].
2.This application is remitted to the Registrar for referral to an AMS for permanent impairment assessment on the basis of my findings.
3.The Respondent shall pay the Applicant’s costs associated with the conciliation and arbitration on the issue of injury, such costs to be agreed or assessed.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a)his interpretation and application of section 4 of the Workers Compensation Act 1987 (‘the 1987 Act’) (‘injury’);
(b)failing to acknowledge and respond to the disputes raised in the Appellant Employer’s Reply in relation to injury pursuant to section 4 of the 1987 Act (‘injury’), and
(c)failing to give adequate reasons to explain his findings in relation to injury as prescribed by section 4 of the 1987 Act (‘reasons’).
REVIEW
The nature of a review and the role and function of a Presidential member on appeal has been considered in many cases in the Commission. In The King Island Company Limited v Deery [2005] NSWWCCPD 1 it was held at [19]:
“19. A Presidential Member on appeal has a specific and limited role in the review of a decision of an Arbitrator. The review is not a rehearing. The Presidential member is not dealing with the matter de novo and is not arriving at a fresh decision based on all of the evidence available at a later time (Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616). The powers of the Presidential Member to revoke the decision pursuant to section 352(7) of the 1998 Act and to substitute a new decision in its place, are exercisable only where it is demonstrated that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172). Alternatively, the Presidential Member may remit the matter back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions made.”
The nature of a review was considered by the Court of Appeal in Aluminium Louvres & Ceilings Pty Limited v Zheng [2006] NSWCA 34 where Bryson JA said at [38]:
“A review is a different process to an appeal and the matters which may be considered and the manner in which they may be considered are somewhat wider. See Boston Clothing Co Pty Ltd v. Margaronis (1992) 27 NSWLR 580 at 584 (Kirby P). An attack, on review or otherwise, on an Arbitrator's discretionary decision in controlling procedure may be based on the test stated in House v. R (1936) 55 CLR 499 at 504 - 505; but that is not the only basis on which the Presidential member may act. The powers of a Presidential member on review are somewhat wider and extend to power to reopen consideration of a matter of which an Arbitrator has disposed; the manner in which the powers of the Presidential member are to be exercised is itself the subject of discretion of the Presidential member.”
This passage was recently quoted with approval by McColl JA in South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 at [134] (‘Edmonds’). To describe the relative weight and relevance of the expert evidence as “a discretionary decision which could only be disturbed on House v The King principles” was described by McColl JA as “an over-generalisation” (at [133]).
Before an Arbitrator’s decision will be revoked on review it must be demonstrated that it contains or has resulted from an error of fact, law or discretion. The error must be such that, but for it, a different decision should have been made (see Snow Confectionary Pty Ltd v Askin [2004] NSWWCCPD 56; Section 294 of the 1998 Act; YG & GG v Minister for Community Services [2002] NSWCA 247; Absolon v NSW TAFE [1999] NSWCA 311).
I intend to apply the above principles in the matter before me.
SUBMISSIONS AND FINDINGS
Injury
The Appellant Employer submits:
a) the dispute before the Arbitrator was whether Mr Ali had established that he sustained an injury within the meaning of section 4 of the 1987 Act. That dispute was not simply about whether Mr Ali had been involved in an injurious event but included a dispute as to whether he had completely recovered from the effects of that injurious event;
b) the meaning of an ‘injury’ within the terms of the 1987 Act was considered by Judge Neilson in Lyons v Master Builders Association of NSW (2003) 25 NSWCCR 422 (‘Lyons’) at [22] where it was held that the word ‘injury’ in section 4 of the 1987 Act refers to “both the [injurious] event and the pathology arising from it”;
c) the issue of ‘injury’ is a separate issue to a dispute about the degree of permanent impairment and was a matter for determination by the Commission constituted by an Arbitrator, not for an AMS (Total Steel of Australia Pty Limited v Waretini [2007] NSWWCCPD 33 (‘Waretini’) at [40];
d) the Arbitrator misstated his task at paragraph seven of his Statement of Reasons for Decision (‘Reasons’) where he said that “it was agreed that if I was satisfied that Mr Ali had suffered injuries to any of the body structures claimed, I should remit the claim back to the Registrar for her to arrange permanent impairment assessments.” There was no ‘agreement’ by United in relation to the dispute relating to ‘injury’ and it did not and does not resile from the disputes identified in its Reply;
e) United does not deny that Mr Ali was involved in an ‘injurious event’ (the accident on 29 November 2003) but it does deny that he has “any pathological entity or physiological disturbance resulting in a continuing work related injury consequent upon the ‘injurious event’” (Appellant Employer’s submissions paragraph 12);
f) the Arbitrator was in error in considering that he was not required to determine the issue of ‘injury’;
g) the Appellant Employer’s evidence was that Mr Ali’s complaints of widespread pain could not be explained “on the basis of physical injury” (Dr Harvey, report 5 March 2007, page five);
h) the Arbitrator was in error in not addressing “the issue of the persistence of injury beyond a date” (Appellant Employer’s submissions, paragraph 15);
i) the Arbitrator’s role was to identify any continuing pathology likely to give rise to impairment and it is the role of the AMS to determine the degree of permanent impairment arising from that injury;
j) the Arbitrator’s approach completely ignored a considerable body of evidence contained in the video exposed of Mr Ali in March 2006 and the 19 page report of Rodney Bebendorf of 23 March 2006 which report “bore strongly on the views expressed by Dr Harvey” (Appellant Employer’s submissions, paragraph 19), and
k) the Arbitrator’s approach completely or predominantly failed to embrace his role as an arbiter of fact and law which required him to consider the totality of the evidence and then determine if there was any work related injury consequent upon the injurious event.
The Respondent Worker submits:
a) it was common ground that on 29 November 2003 Mr Ali was struck by a pile of three to five falling pallets and that the impact knocked him unconscious for a short time;
b) the matter was listed for conciliation and arbitration after a teleconference on 21 March 2007 when it was agreed that the issue for determination at the arbitration was as stated at paragraph six in the Arbitrator’s Reasons, namely:
“Whether Mr Ali suffered an injury to his cervical spine, his lumbar spine and his left shoulder in the course of his employment as a result of the incident when the pallets toppled.”
c) consequently, no argument was directed towards the question of ongoing impairment or loss on the basis of medical or lay evidence. That task rests with the AMS;
d) the evidence on injury is as follows:
i.in his statement of 30 January 2007 Mr Ali said he injured his “head, neck, back, chest, left shoulder, ribs, left arm and left leg” in the accident. He was not cross-examined about those assertions;
ii.Dr Patrick in his report of 19 September 2005 took a history that the pallets impacted with the left side of Mr Ali’s head, left neck and the top of his left shoulder. The force of the impact caused Mr Ali to hit the ground with sufficient force to render him unconscious;
iii.X-rays of the cervical spine and chest were taken on 1 December 2003;
iv.Dr Kafataris (qualified by the Appellant Employer) was satisfied that Mr Ali had suffered a traumatic injury to the chest and left shoulder;
v.Dr Trevitt (qualified by the Appellant Employer) provided certain evidence in a report dated 27 March 2006 (this report was excluded by the Arbitrator and in the absence of a challenge to that ruling, I will not have regard to it on appeal), and
vi.Dr Harvey stated at page five of his report of 5 March 2007 that Mr Ali “may have suffered soft tissue injuries to the neck and left shoulder region”.
e) no submissions were made in relation to the video at the arbitration as it did not go to the matter in dispute.
The Arbitrator’s Reasons clearly defined at paragraph six the issue to be determined at the arbitration. That statement of the issue was consistent with the Arbitrator’s note of the outcome of the teleconference where he recorded under ‘any other comments’:
“In issue in this case is not injury per se, but whether the effects of the injury sustained by the Applicant in the course of his employment have ceased, thereby precluding a claim for non economic less [sic] compensation.”
The Arbitrator was therefore aware that the issue of ‘injury’ (that is, the consequences of the ‘injurious event’) and its effect was a separate and distinct issue for him to determine. That is why he listed the matter for arbitration. This approach was perfectly consistent with the authority of Lyons relied on by the Appellant Employer. I reject the Appellant Employer’s submission that the Arbitrator misstated his task at paragraph seven of his Reasons. The whole of paragraph seven reads:
“It is not my task to determine whether or not Mr Ali suffers any ongoing impairment as a consequence of his claimed injuries, but to determine whether he suffered those injuries. It was agreed that if I was satisfied that Mr Ali had suffered injuries to any of the body structures claimed, I should remit the claim back to the Registrar for her to arrange permanent impairment assessments. If I am not satisfied that Mr Ali suffered any of the injuries claimed, then the employer is entitled to an award in its favour with respect to them.”
This paragraph was a correct statement of the Arbitrator’s obligations. Whilst there may be some ambiguity about the expression “injuries to the body structures claimed”, when the whole of the Arbitrator’s Reasons are considered, I do not believe there is any uncertainty about the task he undertook or the conclusions he reached.
At paragraphs nine and ten of his Reasons the Arbitrator noted the submissions made by the Appellant Employer’s counsel to the effect that there was no evidence that Mr Ali suffered an injury to his neck, thoracic spine or left shoulder as a result of the accident. The argument was based on the assertion that there was no evidence of “a continuing disturbance of the pathological structures”. The mere experiencing of pain was, it was submitted, not sufficient. That pain must result from an injury to the “structure”.
The Arbitrator then considered the evidence from Dr Harvey that Mr Ali “may have suffered soft tissue injuries to the neck and left shoulder region” which could have been caused by the work incident but the doctor had doubts that Mr Ali’s complaints could be explained on the basis of physical injury (Reasons, paragraph 11). Whilst counsel for the Appellant Employer noted that Dr Harvey’s report conceded the possibility of an injury to the body parts claimed, he submitted that the pallets did not fall onto Mr Ali’s left shoulder or neck but fell onto his sternum and his eighth right rib (T2.23). Therefore, so it was argued, the Arbitrator could not be satisfied that Mr Ali injured his cervical spine, his thoracic spine and his left shoulder in the accident.
This submission was based on the x-ray evidence that Mr Ali sustained a fractured right eighth rib (see report Dr Markson 1 December 2003) and may also have fractured his lower sternum (see bone scan 9 February 2004) though no fracture was shown in the 1 December 2003 x-ray.
The Arbitrator rejected these submissions, and the opinion of Dr Harvey, for very cogent and logical reasons that were set out at paragraph 14 of his Reasons. First, the Arbitrator noted that Mr Ali has been consistent in the history given by him to the doctors who examined him that a number of pallets (between three and five) toppled from a stack and fell on him. Second, Mr Ali told Dr Patrick on 8 June 2005 (report 19 September 2005) that the pallets impacted with his head, left neck and the top of the left shoulder. Though not referred to by the Arbitrator, a history recorded by a medical practitioner is evidence of the fact recorded (Daw v Toyworld (NSW) Pty Ltd (2001) 21 NSWCCR 389 at [70]). Third, in his statement Mr Ali said he sustained injuries to his head, neck, back, chest, left shoulder, left arm and left leg. Fourth, nine days after the accident Mr Ali had x-rays of his ribs, sternum and neck. The Arbitrator felt that the fact that an x-ray had been taken of Mr Ali’s neck was consistent with his complaint of injury to that part of his body. Fifth, the Appellant Employer’s submission that the pallets did not fall on Mr Ali’s left shoulder or neck was at odds with Mr Ali’s evidence and with the fact that an x-ray of the neck was taken within days of the accident. Sixth, the Appellant Employer’s submission failed to take into account the mechanism of the accident which involved a number of pallets toppling. The Arbitrator felt that common sense would dictate that they would not each follow a uniform path when toppling and all strike Mr Ali at the same point. Rather, the Arbitrator felt that they would strike him in different spots, as they toppled.
I am of the view that the Arbitrator’s Reasons are logical and persuasive. They do not disclose any error and I agree with them. However, the Arbitrator’s Reasons at paragraph 14 focused mainly on which parts of Mr Ali’s body were affected by the injurious event. That was not the end of the matter. The Arbitrator acknowledged that fact by then proceeding to consider the consequences of the injurious event.
That analysis started with the Arbitrator considering Dr Patrick’s evidence (Reasons, paragraph 15). The relevant parts of that evidence (set out in his report of 19 September 2005) may be summarised as follows:
a) the doctor observed “significant muscle guarding at the upper/mid thoracic spine paravertebrally”, with prominence of the lower thoracic paravertebral musculature;
b) there was a reduced range of movement of the left shoulder;
c) Mr Ali probably sustained “some fracture of the sternum at the lower body and fracture of antero [sic] lateral eighth rib”;
d) Mr Ali sustained significant cervical injury with probable ligamentous injury and aggravation of significant pre-existing cervical spondylosis/facet arthrosis/uncovertebral arthrosis;
e) there has also been direct trauma to the region of his left shoulder with some ongoing subacromial bursitis/impingement, and
f) it was likely he also sustained an upper thoracic facet injury.
Dr Patrick prepared a second report on 23 April 2007 commenting on what he described as a “fairly lengthy video relating to everyday activities being carried out by” Mr Ali. There was nothing in the video to cause Dr Patrick to “significantly alter the opinion as expressed” in his report of 19 September 2005. He thought the video demonstrated “reasonably free movement, but certainly not full movement and his activities are not inconsistent with neck, upper thoracic and left shoulder symptomatology and pathology as previously described”. At paragraph 15 of his Reasons the Arbitrator made specific reference to this part of Dr Patrick’s second report.
At paragraph 16 of his Reasons the Arbitrator added that Dr Patrick’s conclusions were consistent with the history provided, Mr Ali’s evidence and the circumstances of the accident in which a number of pallets toppled onto him. They were also (as the Arbitrator noted) consistent with the concession made by Dr Harvey that the injuries “could have been caused by the work incident he describes”. The Arbitrator then concluded:
“In my view, the overwhelming weight of the evidence as to the circumstances of the incident, and the medical assessments, points to Mr Ali sustaining injuries to his cervical spine, his thoracic spine, and his left shoulder in the workplace incident.
As a result I conclude on the balance of probabilities that Mr Ali suffered an injury to his cervical spine, his thoracic spine, and his left shoulder in the workplace incident on 23 November 2003 [sic].”
As a result of the circumstances of the incident and the medical assessments, the Arbitrator accepted Dr Patrick’s opinion as to the nature and extent of the injury sustained by Mr Ali. The nature of that injury (the pathology) was explained in the body of Dr Patrick’s report of 19 September 2005 and quoted by the Arbitrator at paragraph 15 of his reasons. It was open to him to accept that evidence. The Arbitrator’s conclusion was well supported by the evidence and discloses no error. I agree with it.
Whilst it will often be prudent for an Arbitrator to include in his or her ultimate conclusions a finding of the exact nature of the pathology found to have been caused by the injurious event, such a finding will not always be necessary. That finding will be helpful where, for example, causation is in issue as it was in Connor v Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2006] NSWWCCPD 124 and Spicer Axle Australia Pty Limited v Merza [2007] NSWWCCPD 148. It was not necessary in the present matter as the Arbitrator’s acceptance of Dr Patrick’s conclusions made it clear beyond doubt that he accepted the doctor’s opinion on diagnosis, and there was no other potential cause of Mr Ali’s complaints. The diagnosis was that as a result of the accident Mr Ali sustained the injuries (pathologies) set out in paragraph [32] above. They may be summarised as follows:
a) neck: probable ligamentous injury and aggravation of significant pre-existing cervical spondylosis/facet arthrosis/uncovertebral arthrosis;
b) left shoulder: subacromial bursitis/impingement, and
c) thoracic spine: upper thoracic facet injury.
If the Arbitrator was in error in failing to articulate specific findings as to the pathology resulting from the accident (and I do not believe he was), that error has not affected the outcome of the case because the Arbitrator’s overall analysis of the issues demonstrates that he accepted Dr Patrick’s opinion and conclusions. If I were to re-determine the matter I would have no hesitation in finding, after considering the whole of the evidence, that as a result of the accident Mr Ali suffers the pathologies set out in Dr Patrick’s report and summarized at [36] above.
Those injuries have, in Dr Patrick’s opinion, resulted in Mr Ali sustaining a permanent whole person impairment of 14%. His opinion as to the degree of whole person impairment is of little or no weight as that issue must be determined by an AMS whose opinion is “conclusively presumed to be correct” (section 326 of the 1998 Act).
Though the Arbitrator did not expressly refer to the surveillance report of Rodney Bebendorf dated 23 March 2006 he did refer to Dr Patrick’s report of 23 April 2007, which set out a detailed summary of the relevant observations. I have read Mr Bebendorf’s report. It sets out details of observations conducted at a time when Mr Ali was back at work. I have found it of no assistance in determining the issue of injury (pathology). The Arbitrator was not in error in not making a specific reference to it.
Reasons
The failure to provide adequate reasons constitutes an error of law and may be a ground to set aside the Arbitrator’s decision. It is clear that arbitrators have a statutory obligation to provide adequate reasons for their decisions (section 294(2) of the 1998 Act; Part 15 Rule 15.6 of the Workers Compensation Commission Rules 2006 (‘the Rules’); Absolon v NSW TAFE [1999] NSWCA 311).
Relevantly, Rule 15.6 provides:
“(1) A statement of the Commission’s reasons referred to in section 294(2) of the 1998 Act is to include:
(a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based, and
(b) the Commission’s understanding of the applicable law, and
(c)the reasoning processes that lead the Commission to the conclusions it made.
(2) Without limiting subrule (1), the reasons set out in a statement referred to in subrule (1) are to be stated sufficiently (in the opinion of the Commission) to make the parties aware of the Commission’s view of the case made by each of them.”
To succeed in having the decision set aside on this ground United must demonstrate not only that the reasons are inadequate, but that their inadequacy discloses that the Arbitrator has failed to exercise his statutory duty to fairly and lawfully determine the application (YG & GG v Minister for Community Services [2002] NSWCA 247; Absolon v NSW TAFE [1999] NSWCA 311; ADCO Constructions Pty Ltd v Ferguson [2003] NSWWCCPD 21).
The standard by which the adequacy of reasons must be determined is relative to the nature of the decision itself and the decision-maker (Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSWWCCPD 6). An Arbitrator’s reasons should be read as a whole and it is not for a Presidential member on review to comb through the Arbitrator’s findings and reasons in search of error (Beale v GIO (NSW) (1997) 48 NSWLR 430 at 444; Minister for Immigration and Multicultural Affairs v Wu Shu Liang (1996) 185 CLR 259). It is not necessary for an Arbitrator to refer to every piece of evidence (Yates Property Corporation Pty Limited (in Liq) v Darling Harbour Authority (1991) 24 NSWLR 156; Ainger v Coffs Harbour City Council [2005] NSWCA 424).
The Appellant Employer submits that for the reasons set out in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 (‘Soulemezis’) the Arbitrator was “obliged to disclose the process by which he deduced that the Applicant was subject to a continuing physiological disturbance of underlying pathological structures caused by the injurious event.” This submission is not an accurate summary of the decision in Soulemezis. In that case McHugh JA (as he then was) stated at 280:
“If an obligation to give reasons for a decision exists its discharge does not require lengthy or elaborate reasons: Ex parte Powter; Re Powter (1945) 46 SR (NSW) 1 at 5: 63 WN 34 at 36. But it is necessary that the essential ground or grounds upon which the decision rests should be articulated. In many cases the reasons for preferring one conclusion to another also need to be given.”
In the present matter the Arbitrator clearly explained (at paragraphs 14 to 17 inclusive) the essential grounds upon which his decision was based, namely, he rejected the Appellant Employer’s arguments and accepted the opinions of Dr Patrick and the evidence of Mr Ali. The reasons were clear, concise, appropriate in the circumstances of the case and adequate to comply with the Arbitrator’s obligations under Part 15 Rule 15.6 of the Commission’s Rules.
It follows that I reject the submission that the Arbitrator’s approach “failed to embrace his role as an arbiter of fact and law” and that he failed to give sufficient reasons in support of his conclusions.
Other Matters
Whilst the Arbitrator’s decision dated 3 May 2007 is confirmed, the reference in the Certificate of Determination and the Reasons to the injury occurring on 23 November 2003 is incorrect and should, on the evidence before me, be 29 November 2003. The parties may wish to approach the Registrar and request that “a replacement Certificate of Determination or statement” be issued under section 294(3) of the 1998 Act with the correct date.
DECISION
The Arbitrator’s decision dated 3 May 2007 is confirmed.
COSTS
The Appellant Employer is to pay the Appellant Worker’s costs of the appeal.
Bill Roche
Acting President
29 August 2007
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, ACTING PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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