NSW Police v Gilmore

[2007] NSWWCCPD 178

WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE

COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:NSW Police v Gilmore [2007] NSWWCCPD 178

APPELLANT:  NSW Police

RESPONDENT:  Andrew David Gilmore

INSURER:Allianz Australia Insurance Ltd

FILE NUMBER:  WCC444-07

DATE OF ARBITRATOR’S DECISION:          15 March 2007

DATE OF APPEAL DECISION:  14 August 2007

SUBJECT MATTER OF DECISION: Leave to appeal; section 352(2) of the Workplace Injury Management and Workers Compensation Act 1998; reconsideration; section 350(3) of the 1998 Act.

PRESIDENTIAL MEMBER:  Acting Deputy President Robin Handley

HEARING:On the papers

REPRESENTATION:  Appellant:      DLA Phillips Fox, Lawyers

Respondent:   Whitelaw McDonald, Solicitors

ORDERS MADE ON APPEAL:  Leave to appeal is refused. The Appellant’s application for reconsideration of the decision of the Arbitrator dated 15 March 2007 is also refused.

The Appellant is to pay the Respondent, Mr Gilmore’s costs of the appeal.

BACKGROUND TO THE APPEAL

1. On 1 May 2007, the NSW Police (‘the Appellant’) sought leave in the Workers Compensation Commission (‘the Commission’) to bring an appeal against the decision of an arbitrator dated 15 March 2007. The Respondent to the appeal is Andrew Gilmore, who has not lodged a ‘Notice of Opposition’ to the appeal. The Appellant’s workers compensation insurer is Allianz Australia Insurance Ltd.

1. Andrew Gilmore was born on 1 December 1965 and is aged 41. He joined the NSW Police as a mature entrant in March 1999. On 29 June 2006, Mr Gilmore’s solicitors lodged a claim for weekly compensation in respect of the period 19 October 2005 to 2 November 2005. During this time, he claimed to be suffering an adjustment disorder arising out of his employment in the period to 28 August 2005 when he notified the Appellant of his injury. On 30 January 2007, the Commission registered Mr Gilmore’s ‘Application to Resolve a Dispute’ in respect of his claim for weekly compensation. On 20 February 2007, the Appellant lodged a ‘Reply’.

1. On 6 March 2007, the Arbitrator conducted a teleconference with the parties. On 13 March 2007, conciliation having proved unsuccessful, he conducted an arbitration hearing, at the conclusion of which he gave an oral decision in the terms set out below.

THE DECISION UNDER REVIEW

1. The ‘Certificate of Determination’, dated 15 March 2007, records the Arbitrator’s orders as follows:

“1. That the Respondent make weekly payments to the Applicant under s 36 of the Workers Compensation Act 1987 for the period 19 October 2005 to 2 November 2005 at the rate of $1,029.48.
2. That the Respondent pay the Applicant’s costs as agreed or assessed.”

1. In the Statement of Reasons for his decision given orally at the conclusion of the hearing, the Arbitrator noted that there was no dispute that in the period September to November 2005, Mr Gilmore was suffering from the psychiatric injury of adjustment disorder (transcript p 23). However, what was in dispute was the cause of that disorder. The Arbitrator relied on the report of Dr Ian Fowler, Psychiatrist, dated 18 April 2006. (Dr Fowler diagnosed an adjustment disorder, and said: “the major cause of Mr Gilmore’s difficulties was the repeated difficulties he suffered as a result of his employment in the Police Service.”) The Arbitrator preferred Dr Fowler’s opinion to that of Simon Matthews, Consultant Psychologist, dated 29 September 2005. The Arbitrator concluded (transcript p 26) that the combined effect of the five incidents identified by Mr Gilmore, including a complaint of inappropriate sexual behaviour which was found to have no substance:

“operated together to result in Mr Gilmore suffering an adjustment disorder. To my mind, the evidence does not establish that the disciplinary process itself commencing from the time Inspector O’Dell notified Mr Gilmore of the complaint regarding sexual harassment predominantly caused the adjustment disorder.”

1. The Arbitrator said that while the evidence was clear that the disciplinary process was “the last straw”, the “predominant causes were the stressors experienced by Mr Gilmore prior to that” (transcript p 26). The Arbitrator concluded:

“Accordingly, I am satisfied that Mr Gilmore is not disentitled to the compensation that he seeks by virtue of section 11A. I am satisfied that he has an injury arising in or out of the course of his employment, being an adjustment disorder, and to which his employment was a substantial contributing factor. There’s no dispute about that, in any event, as I understand it, and, accordingly, I order that the respondent make weekly payments to the applicant under section 36 of the Act for the period 19 October 2005 to 2 November 2005 at the rate of $1,029.48 a week, and I also order that the respondent pay the applicant’s costs as agreed or assessed.”

ISSUES IN DISPUTE

1. The grounds of appeal identified by the Appellant are: (1)(a) that the Arbitrator made an error of fact and law by stating that Mr Gilmore developed an adjustment disorder as a result of previous stressors which occurred more than two years before the onset of injury, and (b) failed to give reasons as to why the evidence of Mr Matthews was not to be relied upon: and (2) that the Arbitrator made an error of law in allowing Mr Gilmore to plead his claim as a ‘disease’ despite this not having been pleaded previously. The Appellant’s submissions on these issues are discussed below.

ON THE PAPERS REVIEW

1. 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.”

1. Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the Appellant that the appeal can be determined on the basis of these documents, no Notice of Opposition to the appeal having been lodged by Mr Gilmore, 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. 

LEAVE

1. Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act. First, pursuant to section 352(4), an appeal can only be made within 28 days after the making of the decision appealed against. The Appellant’s appeal, lodged on 1 May 2007, was not made within 28 days of the Arbitrator’s decision, which was made on 15 March 2007, the date on which the Certificate of Determination was issued by the Commission (rule 16.2(2) of the Workers Compensation Commission Rules 2006 (‘the Rules’)). However, I note that the Appellant lodged a first appeal on 12 April 2007, within 28 days of the decision, which was rejected by the Registrar by letter dated 16 April 2007 for failure to comply with rule 16.2(4), in particular the requirement for the appeal application to have attached to it a copy of the Certificate of Determination.

1. In the appeal lodged on 1 May 2007, the Appellant said, with regard to the first appeal, that failure to lodge a copy of the Certificate of Determination with the appeal must have been due to an administrative oversight. However, it contends that by attaching a copy of the Arbitrator’s reasons and orders as contained in the transcript to the appeal, it complied with rule 16.2(4) because the transcript replicates in full the condensed information contained in the Certificate of Determination. Moreover, the Appellant contends that the Commission’s obligation under section 294(2) of the 1998 Act to provide a statement of reasons, was not satisfied until a sound recording of the hearing, containing the reasons for the determination, was received by them. The Appellant submits that it will be a denial of natural justice and procedural fairness to reject this appeal against an erroneous decision of an arbitrator.

1. Applications for extension of time for leave to appeal are dealt with in the Rules at subrules 16.2(11) and (12) as follows:

“(11) 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.

(12) A party who seeks an extension of time as referred to in subrule (11) must:

(a) as soon as practicable give notice to the other parties of the intention to seek the extension, and

(b) lodge and serve with the application for leave to appeal an application for the extension of time, including full details of the arguments to be put in favour of granting the extension.”

1. The Rules do not set out the factors to be considered in the exercise of the discretion to extend the time for filing an appeal against the decision of an Arbitrator. However, this issue has often been the subject of judicial consideration. A leading case is Gallo v Dawson (1990) 93 ALR 479, where Justice McHugh set out a number of guiding principles. He emphasised that the discretion to extend time should only be exercised where strict compliance with the rules will lead to an injustice for the applicant. In so deciding, regard should be had to (i) the history of the proceedings, (ii) the conduct of the parties, (iii) the nature of the litigation, (iv) the consequences for the parties of the grant or refusal of the application for extension of time, (v) the prospects of the applicant succeeding if leave is granted, and (vi) the respondent’s right, after the expiry of the time for appealing, to rely upon the decision made. These principles have been applied in Commission proceedings: see, for example, Howell v Stringvale Pty Ltd [2004] NSWWCCPD 22; Alexandru v State Rail Authority of NSW [2004] NSWWCCPD 54; South Eastern Sydney Area Health Service v Berry [2006] NSWWCCPD 32.

1. In my view, in this instance there was substantial compliance with rule 16.2(4), and to refuse leave on the ground that the appeal was out of time because no Certificate of Determination was attached to the original appeal, in circumstances where a copy of the transcript was attached, including the Arbitrator’s ex tempore decision and reasons, would lead to an injustice to the Appellant.

1. It should be noted that I do not accept the Appellant’s submission in relation to the Commission’s obligation under section 294(2) of the 1998 Act. Section 294(2) requires a “brief statement” to be attached to the Commission’s Certificate of Determination setting out the Commission’s reasons for the determination. In this instance, the Arbitrator gave his reasons orally at the conclusion of the hearing. The Statement of Reasons attached to the Certificate of Determination recites that an arbitration hearing was held on 13 March 2007 when the Arbitrator used his best endeavours to bring the parties to an agreed resolution of the dispute, albeit unsuccessfully, and:

“To ensure the parties received a timely determination of their dispute the reasons for the orders were given orally at the arbitration hearing.

A sound recording of the reasons given is available to the parties.”

1. A review of the transcript subsequently provided to the parties confirms this. The Arbitrator informed them of his decision and of the reasons for it at the conclusion of the hearing, two days before the issue of the Certificate of Determination. In my view, the brief Statement of Reasons attached to the Certificate of Determination, referring to the oral reasons given at the hearing, satisfies the obligation under section 294(2). I therefore reject the Appellant’s submission in this regard.

1. For the Commission to grant leave to appeal, the appeal must also meet the threshold imposed by section 352(2). This states:

“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.”

1. There is no discretion to waive this requirement where, as in the present case, the amount of compensation at issue is less than $5,000. The Appellant is seeking an order to set aside the decision of the Arbitrator ordering the payment of weekly compensation of $1,029.48 for a period of 15 days, from 19 October 2005 to 2 November 2005, which the Appellant claims totals $2,203.09 [sic - $2,206.03]. However, the Appellant claims that although the Certificate of Determination omits to specify an order in respect of medical and related expenses under section 60 of the Workers Compensation Act 1987 (‘the 1987 Act’):

“the Arbitrator notes in the transcripts that the claim, whilst not particularised, included past and ongoing medical and travel expenses. These medical expenses total approximately $956.00 to date ...

Furthermore, the Appellant submits that as the decision encompassed a general order as to section 60 medical expenses the total applicable would be unlimited and well in excess of $5,000.00 in medical expenses alone.”

1. I note Mr Gilmore’s claim did not include a claim for medical and related expenses under section 60 of the 1987 Act, and the Arbitrator made no order in this regard. I am not satisfied by the Appellant’s submission with regard to medical expenses that the threshold of $5,000 required by section 352(2)(a) is exceeded. In my view, the threshold has not been satisfied and leave to appeal should not, therefore, not granted.

1. The Appellant submits that should the threshold be deemed not to have been met, then the matter should be reviewed pursuant to section 350(3) of the 1998 Act. Section 350(3) gives the Commission a discretion to “reconsider any matter that has been dealt with by the Commission and rescind, alter or amend any decision previously made or given by the Commission”. There are a number of recent Commission decisions in which this power has been discussed: see, for example, Samuel v Sebel Furniture Ltd [2006] NSWWCCPD 141, Nan v Country Road Freight Services Pty Ltd [2006] NSWWCCPD 160, Markulin v Healthwoods Pty Ltd [2007] NSWWCCPD 76. The power is a wide discretionary one which should only be used where there are unusual circumstances such that the public interest in litigation not proceeding indefinitely is overridden by the need to do justice between the parties: Hilliger v Hilliger (1952) 52 SR (NSW) 105, at 108 (per Street CJ).

1. For example, unusual circumstances might arise where new evidence comes to light that was not available with reasonable care and diligence at the time of the initial hearing and which could have a significant influence on the outcome, or where the time for lodging an appeal has passed and a recent decision of a higher court on appeal makes clear that the applicable law was interpreted wrongly at the time of the decision in respect of which a reconsideration is being sought so that the decision involved an error of law.

1. The power is not, however, available to correct a mistake or inadvertence by a party’s solicitor (Hurst v Goodyear Tyre & Rubber Co (Australia) Ltd [1953] WCR 29), or where a party fails to act promptly in seeking reconsideration of a decision. Moreover, generally, parties should rely on the appeal mechanisms provided in sections 352 (appeals against the decision of an arbitrator) and 353 (appeals against the decision of a Presidential member) of the 1998 Act in order to seek the correction of errors of fact, law or discretion.

1. In the present case, the Appellant submits that the Arbitrator made a clear error of law based on the medical evidence and issues before him, and that it would be a manifest injustice to the Appellant if the Arbitrator’s decision is not reviewed. The Appellant’s first ground of appeal is that the Arbitrator made an error of fact and law in stating that Mr Gilmore developed an adjustment disorder, and failed to give reasons as to why the medical evidence of Mr Matthews was not to be relied upon. The Appellant seeks leave to introduce new evidence in support of this ground, namely the relevant description of ‘Adjustment Disorder’ from the Diagnostic and Statistical Manual of Mental Disorders, Fourth edition (‘DSM IV’). The granting of leave to introduce new evidence is governed by section 352(6) of the 1998 Act, which provides as follows:

“(6)     Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.”

1. Practice Direction No 6 sets out the process for seeking leave of the Commission to give ‘new evidence’ on appeal. It provides, in particular, that:

   “In general, the Commission will allow new evidence to be introduced only where it can be demonstrated that the new evidence could not reasonably have been obtained by the party and tendered in proceedings before the Arbitrator and that failure to allow the new evidence would cause a substantial injustice in the circumstances of the individual case.”

1. In this instance, given that this evidence deals with a definitional issue and not with the facts of Mr Gilmore’s case, I am prepared to grant leave in order to address the Appellant’s ‘manifest injustice’ submission in relation to section 350(3).

1. Essentially, in the first ground of appeal, the Appellant is challenging the Arbitrator’s treatment of the medical evidence and, in particular, his having relied on Dr Fowler’s report rather than that of Mr Matthews. I note that Mr Matthew’s report of 27 September 2005 pre-dates the period in respect of which weekly compensation is claimed. Dr Fowler was Mr Gilmore’s treating psychiatrist, who first saw Mr Gilmore on 17 September 2005. Dr Fowler subsequently saw Mr Gilmore on 15 November 2005, when he appears to have made the diagnosis of adjustment disorder, identifying the major cause as being the repeated difficulties Mr Gilmore suffered as a result of his employment in the NSW Police. I note Dr Fowler stated that, in relation to Mr Gilmore’s experiences in the NSW Police, “[t]here were many indications in his history that he may have been developing a major depressive illness”.

1. Mr Matthews diagnosed an “Adjustment Disorder with Depressed Mood” as defined in DSM IV. Having discussed the four other workplace incidents identified by Mr Gilmore that occurred between 2000 and 2003, I note Mr Matthews’ comment (report p13) in relation to the most recent incident in August 2005, involving the complaint of sexual harassment:

“On balance [sic] of available information it appears that this event had a very distressing impact on Mr Gilmore, particularly in relation to the nature of the complaint.”

Section 11A of the 1987 Act provides that no compensation is payable in respect of a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to, among other things, discipline. Mr Matthews’ comment suggests that it may have been the allegation and not the process of investigating the complaint which had the more significant effect on Mr Gilmore in relation to this incident.

1. The Arbitrator discussed the evidence of both Dr Fowler and Mr Matthews (transcript pp 23-25) and explained why he preferred the evidence of Dr Fowler. I note the definition of Adjustment Disorder in DSM IV states that there may be single or multiple stressors, and that they may be recurrent or continuous. Having undertaken a review of Dr Fowler’s and Mr Matthews’ reports and their treatment by the Arbitrator, I am not satisfied that the Appellant has demonstrated unusual circumstances justifying a reconsideration of the Arbitrator’s decision. In my view, even if Mr Gilmore’s injury should have been diagnosed other than as an adjustment disorder, there was sufficient evidence to support a finding that he suffered a psychological injury arising out of his employment with the NSW Police, and that the predominant cause of this was not the process of investigating the complaint of sexual harassment.

1. The Appellant’s second ground of appeal is that the Arbitrator made an error of law by allowing Mr Gilmore to plead his claim as a ‘disease’ at the hearing, despite this not having previously been pleaded. In my view, having reviewed the transcript of the hearing and the evidence before the Arbitrator, it is clear what the nature of the claimed injury was from the outset, namely an adjustment disorder. While Mr Gilmore claimed there were multiple factors that gave rise to the injury, the Appellant claimed that the injury was predominantly caused by the reasonable disciplinary process arising out of the complaint of sexual harassment of which Mr Gilmore was informed on 28 August 2005, when he was asked to prepare a written response to the allegation.

1. Whether the injury should have been classified as an injury or a disease was referred to at the hearing in discussion between Counsel for Mr Gilmore and the Arbitrator (transcript p 9). However, this does not, in my view, appear to have been a live issue to the extent that it would have had any effect on the outcome. What was significant was whether the injury was caused by a number of incidents in the course of Mr Gilmore’s employment, with Mr Gilmore’s learning of the complaint of sexual harassment on 28 August 2005 being “the last straw” (as described by Dr Fowler), or whether the injury was caused by the investigation into the complaint of sexual harassment.

1. The Appellant referred to the decisions in Kurrajong Holdings t/as The Gardeners Inn v Carette [2004] NSWWCCPD 8 and Cottons Glass & Aluminium Pty Ltd v Handsaker [2006] NSWWCCPD 205. I note those matters concerned whether a proper claim had been made, which, in my view, distinguishes them from the present case, there being no apparent dispute that, on 9 September 2005, Mr Gilmore made a claim for compensation in respect of stress, and that, on 29 June 2006, his solicitors made a claim for compensation in respect of adjustment disorder.

1. I am not, therefore, satisfied that the Appellant has demonstrated unusual circumstances in relation to its second ground of appeal justifying a reconsideration of the Arbitrator’s decision.

1. In conclusion, the Appellant has failed to establish unusual circumstances warranting a reconsideration of the Arbitrator’s decision under section 350(3) of the 1998 Act.

DECISION

1. Leave to appeal is refused. The Appellant’s application for reconsideration of the decision of the Arbitrator dated 15 March 2007 is also refused.

COSTS

1. The Appellant is to pay the Respondent, Mr Gilmore’s costs of this appeal.

Robin Handley

Acting Deputy President  

14 August 2007

I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ROBIN HANDLEY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE