New South Wales Police Service v Shelley - [2011] NSWWCCPD 57

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		New South Wales Police Service v Shelley [2011] NSWWCCPD 57
APPELLANT:		New South Wales Police Service
RESPONDENT:		Candida Shelley
INSURER:		Allianz Australia Insurance Limited
FILE NUMBER:		A1-10675/10
ARBITRATOR:	Mr D Nolan
DATE OF ARBITRATOR’S DECISION:		9 May 2011
DATE OF APPEAL DECISION:		18 October 2011
SUBJECT MATTER OF DECISION:		Application to extend time to appeal; no satisfactory explanation for appeal being filed 10 weeks out of time; no reasonable prospects of success if time to appeal extended; unmeritorious application; Pt 16 r 16.2(12) of the Workers Compensation Commission Rules 2011
PRESIDENTIAL MEMBER:		Deputy President Bill Roche
HEARING:		On the papers
REPRESENTATION:		Appellant:	Sparke Helmore Lawyers
Respondent:	Burston Cole & Associates
ORDERS MADE ON APPEAL:		The application to extend time to appeal is refused. The Arbitrator’s decision dated 9 May 2011 is confirmed.

BACKGROUND

The respondent worker, Candida Shelley, is a police officer. On 12 May 2008, she was stationed at Auburn and was rostered to attend a training course at the New South Wales Fire Brigade Headquarters at Homebush Bay. She attended the training day with other officers who were also based at Auburn. At the end of the course at about 2.00 or 3.00 pm, Sergeant Coluccio drove Ms Shelley and three other officers back to Auburn Police Station in his private car.
Though it was an extremely warm day, Ms Shelley wore a jumper in the lecture room at the course. Before getting into the front of Sergeant Coluccio’s car, Ms Shelley said that she was cold and she put a jacket on over her jumper. About halfway back to Auburn, Ms Shelley pulled the hood of her jacket over her head, saying that she was cold.
About a minute later, she slumped in the seat and Sergeant Coluccio noticed that she was foaming from the mouth, sweating and that her eyes had rolled back in her head. He stopped outside the Auburn Police Station and yelled for someone to call an ambulance. He then opened the passenger door and could see that Ms Shelley was suffering a fit. When he pulled the hood of her jacket back, she started to struggle, shake and wave her arms.
Sergeant Coluccio could see that Ms Shelley was very hot. He undid her seatbelt and tried to remove her jacket. While he was taking her jacket off, Ms Shelley swung her arms and resisted. With the aid of another officer, Sergeant Coluccio tried to control her. As she was shaking, they had to apply a “fair amount of force” as they tried to get her out of the car. They pulled her forcefully and eventually managed to get her jacket off, but stopped their attempts to remove her from the car. Ms Shelley then said that her arm and shoulder were hurting.
Ms Shelley was taken by ambulance to Auburn Hospital. It was later discovered that Ms Shelley had dislocated her left shoulder. Counsel for the Police Service properly conceded at the arbitration that the shoulder was dislocated during the attempt to remove Ms Shelley’s jacket (T8.46–50) and that the injury was received in the course of the worker’s employment.
Because of her shoulder injury, Ms Shelley was off work until 9 August 2008. She claimed weekly compensation and a general order for the payment of medical expenses. The only issue before the Arbitrator was whether her employment was a substantial contributing factor to the injury, namely, the dislocation of the left shoulder.
After hearing submissions from counsel for each party, the Arbitrator delivered an extempore decision on Friday 6 May 2011, in which he found in favour of Ms Shelley. The Commission issued a Certificate of Determination on Monday 9 May 2011 in the following terms:
“The Commission determines:
1. That the Respondent pay the Applicant weekly compensation at the rate of $1,407.28 per week from 12 May 2008 to 9 August 2008 pursuant to s 36 of the WorkersCompensation Act 1987 (the 1987 Act).
2.   That the Respondent pays the Applicant’s s 60 expenses upon production of accounts and/or receipts.
3.   That the Respondent pays the Applicant’s costs as agreed or assessed.
4.   I certify that this is a complex matter pursuant to costs Schedule 6 of the Workers
Compensation Regulations. The determination of the matters in dispute involved
factual issues, s 4, s 9, s 9A, s 33, s 59 and s 60, application of authorities in particular as to s 9 with injury and causation in dispute. Because of the difficulties in preparing an uplift of 10% should apply to both parties’ costs.
A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”

In an appeal filed on 15 August 2011, the Police Service seeks to extend the time to appeal and, if time is extended, to appeal the Arbitrator’s decision.

ON THE PAPERS

Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 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.

APPLICATION TO EXTEND TIME TO APPEAL

The appeal was lodged 10 weeks outside the 28-day period in which an appeal must be made under s 352(4) of the 1998 Act. In support of its application for an extension of time to appeal, the Police Service submitted that:
(a)     the appeal “was not completed in time due to an administrative oversight”;
(b)     the Arbitrator did not provide a copy of a statement of reasons and therefore a request was made for a transcript. A CD of the proceedings was received and transcribed “in-house”;
(c)     the appellant has attempted to review the decision based solely on the comments made at arbitration and the Arbitrator’s failure to provide reasons and allow the appellant the opportunity to “aptly review the decision” has caused substantial prejudice and injustice;
(d)     “injury is in dispute in this matter due to the peculiar circumstances surrounding same” and, if leave is not granted, the appellant will be liable for the claim without recourse for the alleged incorrect decision of the Arbitrator;
(e)     the Arbitrator’s decision “puts in jeopardy the application of the ‘Good Samaritan’ law” in circumstances where individuals attempt to assist a person who is incapacitated;
(f)      the appeal raises issues that are arguable and strict compliance with the time limits may work a substantial injustice as the appellant will lose the opportunity of having the matter determined according to its substantial merit.
An extension of time in which to appeal is governed by Pt 16 r 16.2(12) of the Workers Compensation Commission Rules 2011 (the Rules), which provides:
“(12) The Commission constituted by a Presidential member may, if a party satisfies the Presidential member, in exceptional circumstances, that to lose the right to seek leave to appeal would work demonstrable and substantial injustice, by order extend the time for making an appeal.”
McHugh J considered the question of extending time to appeal in Gallo v Dawson [1990] HCA 30; 93 ALR 479 (Gallo) at 480. His Honour observed that, in order to determine whether the strict application of time limits will work an injustice, it is necessary to have regard to:
(a)     the history of the proceedings;
(b)     the conduct of the parties;
(c)     the nature of the litigation;
(d)     the consequences for the parties of the grant or refusal of the application for the extension of time;
(e)     the prospects of the applicant succeeding in the appeal, and
(f)      upon expiry of the time for appealing, the respondent has a vested right to retain the judgment unless the application for extension of time is granted.
For the following reasons, the application to extend time to appeal is refused.
Other than the vague assertion that the appeal was not completed in time “due to an administrative oversight”, the appellant has not explained why the appeal is out of time. The nature of the administrative oversight has not been identified. The “explanation” offered is inadequate and unsatisfactory.
The assertion that the Arbitrator did not provide a statement of reasons is not correct. Where an Arbitrator delivers an extempore decision, that decision is recorded and the recording made available to the parties on request. The Registrar issues a Certificate of Determination and a document headed “Statement of Reasons – Extempore Orders”. This document complies with s 294(2) of the 1998 Act, which states that a brief statement of reasons is to be attached to the Certificate of Determination (Thompson v Expamet Pty Ltd t/as T & G Sheetmetal Services [2005] NSWWCCPD 14).
At the same time the Commission issued the Certificate of Determination on 9 May 2011 in the present matter, it issued and served on the parties a document headed “STATEMENT OF REASONS – EXTEMPORE ORDERS”. That document includes the following:
“In this matter an Arbitration Hearing was held on 6 May 2011, where I, acting as Arbitrator, used my best endeavours to bring the parties to an agreed resolution of the dispute. The parties were unable to come to an agreement.
To ensure the parties received a timely determination of their dispute the reasons for the orders set out below were given orally at the Arbitration Hearing on 6 May 2011.
A sound recording of the reasons given is available to the parties.”

The document then repeats the orders set out in the Certificate of Determination.

The submission that the Arbitrator’s failure to provide reasons has deprived the appellant of the opportunity to “aptly review the decision” and has caused substantial prejudice and injustice is based on the false assumption that the Arbitrator did not give reasons for his decision. In the presence of the appellant’s counsel, the Arbitrator gave detailed extempore reasons for his decision. The appellant has not explained what steps, if any, it took to file an appeal between the date of the hearing and the expiration of the time in which to appeal.
The appellant’s submission that it was “unable to adequately prepare an application for an appeal from a decision for which reasons have not been provided” is surprising. The Arbitrator provided reasons for his decision. The unavailability of a transcript will rarely amount to exceptional circumstances to justify the extension of time to appeal. That is especially so where the appellant asserts that the appeal is out of time because of an unexplained “administrative oversight”.
I do not understand the submission that the Arbitrator’s decision “puts in jeopardy the application of the ‘Good Samaritan’ law”. The recovery of compensation in the Commission depends on the application of the legislation and the relevant legal authorities. There is no “Good Samaritan” law or principle applicable to claims for workers compensation.
Whether losing the right to appeal will result in a demonstrable and substantial injustice requires a consideration of the merits of the appeal. The substantive grounds of appeal are that the Arbitrator erred in:
(a)     failing to give a statement of reasons, in breach of s 294 of the 1998 Act;
(b)     concluding that there was a discrete injury suffered when the worker’s fellow employees removed her coat;
(c)     differentiating the shoulder dislocation from the seizure;
(d)     concluding that the convulsive episode had concluded by the time the shoulder was injured;
(e)     failing to take into account or give sufficient weight to the fact that the fit extended over a period of time and the actions of the fellow officers occurred during a fit and in an attempt to render first aid;
(f)      overlooking the fact that the fit had not concluded prior to the worker’s fellow officers trying to remove her jacket, and
(g)     incorrectly interpreting and applying s 9A of the 1987 Act and determining that employment was a substantial contributing factor to the injury.
I have already dealt with the alleged failure to give reasons. The first ground of appeal is baseless.
That there was a discrete injury to the shoulder when the co-workers removed the worker’s jacket was conceded by the appellant’s counsel at T8.46, where the following exchange occurred:
“ARBITRATOR: It’s the removal of the jacket that appears to have caused the injury.
MR STANTON: Yes I think that’s an inescapable inference from the comments of the sergeant as to what the Applicant said. Even in her confused state.”
In light of this (appropriate) concession by the appellant’s counsel, which was consistent with the evidence, the submission on appeal that the Arbitrator erred in finding that the dislocation occurred when the worker’s jacket was being removed is remarkable. A party is normally bound by the conduct of his or her case at trial (University of Wollongong v Metwally (No. 2) (1985) 60 ALR 68 at 71). The appellant has advanced no reason why that principle should not apply in this matter.
The argument sought to be presented on appeal is that the Arbitrator overlooked “material facts”, namely, that the seizure had not concluded prior to the worker’s fellow officers attempting to remove the jacket. Whether the seizure had concluded before the attempt to remove the jacket is not determinative. On the evidence, regardless of counsel’s appropriate concession, it was open to the Arbitrator to conclude that the dislocation occurred as a result of efforts by the worker’s fellow officers to remove her jacket.
In any event, contrary to the appellant’s submissions, the Arbitrator did not conclude that the seizure had ceased by the time of the dislocation. He merely said it was more likely that the shoulder injury occurred in the course of the attempt to remove the jacket, rather than having been part of the seizure. Sergeant Coluccio’s uncontradicted evidence supports that finding and it involves no error.
If the appellant’s submission is that the injury may have had two causes, the seizure and the attempt to remove the jacket, that does not prevent the worker from succeeding. An injury can have more than one cause (ACQ Pty Ltd v Cook; Aircair Moree Pty Limited v Cook [2009] HCA 28; 237 CLR 656 at [25] and [27]).
To the extent that the Arbitrator differentiated between the seizure and the dislocation, he did not err. It was conceded that employment had not caused the seizure. The question was whether employment had been a substantial contributing factor to the injury, that is, to the dislocation of the left shoulder. It was therefore appropriate to differentiate between the seizure and the dislocation.
It was not in issue that the worker was in the course of her employment at the time of the injury. The Arbitrator concluded that Ms Shelley suffered the dislocation as a consequence of her employment and that her employment was a substantial contributing factor to the injury, not a minor contributing factor. He was not persuaded that she would have suffered the injury anyway or that the other provisions in s 9A(2) negated the employer’s liability.
It was submitted that the Arbitrator disregarded s 9A(3)(a), which provides that employment is not to be regarded as a substantial contributing factor to the worker’s injury merely because the injury arose out of or in the course of the worker’s employment, and applied “an inappropriate test” of whether the injury was “a consequence of employment”. I do not accept that submission. The Arbitrator’s reasons were a clear, though brief, reference to the subsections in s 9A(2), which provides examples of the matters to be taken into account for the purposes of determining whether employment is a substantial contributing factor to an injury. Though the receipt of an injury in the course of employment is not, on its own, sufficient to satisfy s 9A, that does not mean it is irrelevant to that determination (Supair Pty Ltd v Sweeney [2000] NSWCA 319; 20 NSWCCR 314).
The relevant matters in s 9A(2) in the present case are the time and place of the injury (at work in working hours) and the lack of probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if she had not been at work. There is no evidence that the worker’s lifestyle or activities outside work contributed to the injury.
To the extent that the seizure contributed to the injury, its contribution was minor in that it merely created a situation where Ms Shelley required assistance. The injury was caused by the direct actions of co-workers (acting in the course of their employment) giving Ms Shelley assistance at her place of employment during working hours. In these circumstances, the connection between the employment and the injury was “real and of substance” (Dayton v Coles Supermarkets Pty Ltd [2001] NSWCA 153; 22 NSWCCR 46). It does not matter that the original cause of the need for assistance (the seizure) was unrelated to employment. As a matter of common sense, the employment, namely the actions of the co-workers, was a substantial contributing factor to the injury.
It follows that the appellant has not demonstrated that it has a reasonable prospect of succeeding on appeal should time to appeal be extended.

CONCLUSION

The application to extend time to appeal is completely without merit. The reason the appeal was filed 10 weeks out of time has not been satisfactorily explained and, given that the prospects of the appeal succeeding are poor, losing the right to appeal will result in no injustice, let alone a substantial injustice. The appellant’s submissions in support of this application have been surprising, to say the least.

DECISION

The application to extend time to appeal is refused.
The Arbitrator’s decision dated 9 May 2011 is confirmed.

COSTS

The appellant employer is to pay the respondent worker’s costs of the appeal, as agreed or assessed.

Bill Roche

Deputy President
18 October 2011

I, CATHRINE LOREN, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE