NSW TAFE Commission - North Sydney Institute v Zuk
[2006] NSWWCCPD 148
•13 July 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:NSW TAFE Commission – North Sydney Institute v Zuk [2006] NSWWCCPD 148
APPELLANT: NSW TAFE Commission – North Sydney Institute
RESPONDENT: Michael Zuk
INSURER:NSW Treasury Managed Fund
FILE NUMBER: WCC17027-04
DATE OF ARBITRATOR’S DECISION: 11 April 2005
DATE OF APPEAL DECISION: 13 July 2006
SUBJECT MATTER OF DECISION: Section 55 of the Workers Compensation Act 1987
PRESIDENTIAL MEMBER: Acting Deputy President Kevin O’Grady
HEARING:On the papers
REPRESENTATION: Appellant: Abbott Tout.
Respondent: MacMahon Associates.
ORDERS MADE ON APPEAL: 1. The decision of the Arbitrator dated 11 April 2005 is confirmed.
2.The Appellant is to pay the Respondent’s costs of the appeal.
BACKGROUND TO THE APPEAL
On 10 May 2005 the NSW TAFE Commission – North Sydney Institute (‘the Appellant’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 11 April 2005.
The Respondent to the Appeal is Michael Zuk (‘the Respondent’).
The Respondent commenced employment with the Appellant in 1987 as a permanent teacher. A claim was brought by the Respondent against the Appellant in the Commission seeking weekly benefits and medical expenses in respect of alleged incapacity which followed an alleged psychological injury. That application was heard by an Arbitrator (‘the original Arbitrator’) and on 9 December 2003 orders were made in favour of the Respondent with respect to his application.
Pursuant to the original Arbitrator’s decision referred to above the Respondent has been in receipt of weekly compensation since 18 February 2003 to date. The Arbitrator’s order with respect to such weekly payments was made pursuant to section 36 and section 37 of the Workers Compensation Act 1987 (‘the 1987 Act’).
The Appellant, on 15 October 2004, filed an Application to Resolve a Dispute in the Registry of the Commission. That application sought an order with respect to review of the order made on 9 December 2003. That application was brought pursuant to section 55 of the 1987 Act.
The Appellant’s application with respect to review of the outstanding order was heard by the Commission on 25 February 2005, that hearing being conducted by a different Arbitrator (‘the Arbitrator’). The Arbitrator published her Statement of Reasons for Decision (‘Reasons’) on 11 April 2005. The Appellant’s application was, by order, dismissed.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’ dated 11 April 2005 records the Arbitrator’s determination as follows:
“1.The application for review of Mr Zuk’s award for weekly compensation and s 60 expenses is dismissed.
2.The Applicant is to pay the Respondent’s costs as agreed or assessed.”
It should be noted that, whilst the application for variation addressed both weekly benefits and medical expenses (section 60 of the 1987 Act) the Arbitrator correctly noted at paragraph 8 of her Reasons that the power to order variation pursuant to section 55 of the 1987 Act was limited to review of “any weekly payment of compensation” and further that such power of review does not extend to orders made pursuant to section 60 of the 1987 Act.
ISSUES IN DISPUTE
The issues in dispute in the appeal are:
(i)Whether the Arbitrator erred in her determination of matters of fact and law as well as the exercise of discretion in her application of section 55 of the 1987 Act.
(ii)Whether the Arbitrator erred in concluding that the Appellant had failed to establish a “change of circumstances” in terms of section 55 of the 1987 Act.
The issues enumerated above are addressed by the representatives of both the Appellant and the Respondent in written submissions which are before the Commission.
ON THE PAPERS REVIEW
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.”
Both the Appellant and the Respondent submit that this matter may be decided solely on the basis of the written application and the Notice of Opposition lodged.
Having regard to Practice Directions Numbers 1 and 6, and the documents that are before me, 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
Before proceeding to deal with an appeal the Commission must determine whether the Application meets the requirements of section 352 of the 1998 Act.
The amount of compensation at issue on the appeal is such that the subject matter of the appeal meets the relevant threshold requirements of section 352(2) of the 1998 Act which must be met before a grant of leave to appeal may be made by the Commission.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
The requirements of sections 352(2) and (4) having been satisfied and having regard to the subject matter of the appeal and the arguments raised I order that leave be granted to the Appellant to appeal to the Commission.
EVIDENCE AND SUBMISSIONS
The documentary evidence before the Arbitrator is noted at paragraph 14 of her Reasons.
In addition to the documentary evidence, the Arbitrator, at the hearing, permitted oral evidence to be given by the Respondent. That evidence was both in chief and in cross-examination. A transcript of that evidence is available on the Commission file.
It is to be noted that whilst the Statement of Reasons for Decision by the original Arbitrator (‘the original decision’) was before the Arbitrator hearing the application for review, the evidence which was before the Commission in the original application and which formed the basis of the original decision was not before the Arbitrator (excepting that documentary evidence which was tendered in both applications).
The Respondent in the Application heard by the Commission in 2003 succeeded in establishing that he had sustained psychological injury as a result of circumstances prevailing at his workplace during the several years prior to the hearing which circumstances were summarised by the original Arbitrator at paragraph 16 of his Statement of Reasons for Decision as follows:
“16.The evidence reveals a deteriorating relationship between the Applicant and several of his work peers and superiors over several years. Many of the Applicant’s colleagues and superiors stand accused of a litany of wrongs, some allegedly perpetrated against the good name of the employing institution and others against the Applicant personally. In particular, the Applicant has had serious run-ins with his colleagues Peter Morton and Phillipa Lehmann. The chapter and verse of these allegations is set out in the submissions made by the Applicant to the NSW Ombudsman dated 25 August 2003, and aspects are recited further in the various medical reports and statements before me. There are also a number of allegations of improper conduct ranged by various parties against the Applicant. Mercifully, I do not have to decide the merits of most of the claims and counter-claims. I am able to arrive at the conclusions necessary to determine this matter largely on the strength of undisputed facts, although in so doing I have to assess contrary medical opinions and of course competing legal arguments.”
The original Arbitrator addressed the medical and lay material which was in evidence before the Commission as well as relevant legal argument founded upon the facts raised by the parties and reached the conclusion that the Respondent was, as a result of the injury established on the evidence, totally incapacitated for work. It is to be noted that the original Arbitrator observed (at paragraph 37 of the Statement of Reasons for Decision/original decision):
“The issue is not so much his working day/working week capability in an impaired state, but the fact that the impairment itself is sourced in the Respondent’s failures. Section 47 of the 1987 Act has application here as well.”
It was the Appellant’s assertion before the Arbitrator that “because of a change of circumstances” within the meaning of section 55 of the 1987 Act the award entered by the original Arbitrator should be reviewed and that on such review the weekly payment then being received by the Respondent should be ended or in the alternative reduced.
In support of that application the Appellant relied upon the opinion as expressed by Dr Akkerman in his report of 2 April 2004. It was argued that the views expressed by that practitioner as to diagnosis, causation and work capacity constitute evidence of such change.
It is the Appellant’s submission in this appeal against the decision of the Arbitrator that:
“Dr Akkerman’s report establishes that there has been a change in the worker’s circumstances, as required by section 55(1) of the Workers Compensation Act 1987, as Dr Akkerman does not consider the worker to be suffering from any work related incapacity for employment – which differs significantly from the findings of (the original Arbitrator).”
In addition to the matters raised on the medical material the Appellant places reliance upon the oral evidence given by the Respondent at the hearing before the Arbitrator to support an argument that there has been a “change of circumstances” in the relevant sense given the Respondent’s “concessions” as to his ability to carry out duties for the RAAF since the making of the original order in 2003. (See Appellant’s submissions 2.3.) It should also be noted that in argument before the Arbitrator reliance was placed upon evidence of the departure from the workplace of fellow workers Morton and Lehmann as being supportive of its contention as to “change of circumstances”.
The Respondent in its Notice of Opposition to Appeal Against Decision of Arbitrator included arguments directed to the medical and lay material and the submissions made by the Appellant founded upon that evidence.
DISCUSSION AND FINDINGS
This appeal is brought pursuant to the provisions of section 352 of the 1998 Act. Subsection (5) of that section provides:
“(5)An appeal under this section is to be by way of review of the decision appealed against.”
The nature of the “review” stated in the aforementioned subsection was the subject of examination by Dr Fleming DP in Mayne Health Group t/as Nepean Private Hospital v Sarah Sandford [2002] NSWWCCPD 6. In summary, the Commission’s conclusion in the last mentioned decision was that a proceeding such as the present is not an “appeal” in the strict sense nor is it a hearing de novo. It was further stated in the course of that aforementioned decision that such power to “review” is exercisable only where it can be demonstrated that the original decision of the Arbitrator was affected by legal, factual or discretionary error.
In its written submissions the Appellant argues that the Arbitrator erred, in a relevant sense, in her finding “that a change of circumstance within the meaning of section 55(1) of the Workers Compensation Act 1987 had not been made out …”. It is further asserted that the Commission, on this appeal, “is also required to determine whether the Arbitrator failed to properly consider all the evidence before her, and the weight of evidence, and whether she failed to base her decision on the evidence that was logical probative [sic].”
As stated, the Appellant relies upon the contents of Dr Akkerman’s report dated 2 April 2004 as a basis upon which to make out “change of circumstances” within the meaning of section 55(1) of the 1987 Act. It is to be noted that Dr Akkerman examined the Respondent on the one occasion only, namely on 1 April 2004, that is, approximately four months after the original Arbitrator’s decision which was the subject of the review application. Dr Akkerman (at page 4 of his report) made a provisional diagnosis of Paranoid Personality Disorder and expressed the view that that was the “only diagnosis he has”. Dr Akkerman went on to state that:
“His condition is constitutional. It does not relate in any way to his employment. His employment was not a substantial contributing factor.”
Dr Akkerman further stated:
“In my opinion, Mr Zuk is as capable of employment as he has been at any stage in his career.”
The Arbitrator addressed the contents of Dr Akkerman’s report in paragraphs 15 to 20 of her Reasons.
The relevant subsections of section 55 of the 1987 Act provide:
“Section 55
(1)Any weekly payment of compensation may, because of a change of circumstances, be reviewed by the Commission at the request of the employer or the worker or the Authority.
(2) On any such review –
(a)the weekly payment may be ended, reduced or increased (but subject to the provisions of this Division relating to the amount of the weekly payment); and
(b)the amount of the weekly payment (if any) shall, in default of agreement, be determined by the Commission.”
Each of the parties to the appeal have made reference to authorities relating to the proper construction and application of section 55 of the 1987 Act. Those authorities include George Weston Foods Limited t/as Tip Top Bakeries v Goldsmith (1998) 17 NSWCCR 253; Atlas v Bulli Spinners Pty Ltd (1993) 9 NSWCCR 378; Williams v North Gosford Private Hospital [2004] NSWWCCPD 76; Warner v Northern Coal Fields Community Care Association [2005] NSWWCCPD 27 and Worthington v Alexander [2005] NSWWCCPD 12.
A consideration of the authorities above mentioned lead me to conclude that the following represents a summary as to the manner of construction and application of section 55 of the 1987 Act:
(i)A section 55 review is not a reconsideration of facts found in the earlier proceedings.
(ii)The review is an examination of circumstances which may have occurred since the original determination.
(iii)If such circumstances represent a change from those prevailing at the date of the original determination there may be grounds upon which a review is made.
(iv)In applying section 55 of the 1987 Act the starting point is an unqualified acceptance of the original decision maker’s findings.
(v)A review will occur only where it is established that circumstances that were before the original decision maker at the time of the award of weekly benefits and upon which the findings in relation to a statutory entitlement were made have changed.
(vi)Relevant “circumstances” are not restricted to consideration of change of medical condition or capacity for work.
(vii)The onus is upon the party seeking review to satisfy the threshold issue of “change of circumstances”.
The original Arbitrator (at paragraph 26 of his Reasons/original decision) found that the Applicant was then:
“suffering from Adjustment Order [sic] with Anxiety and Depression to an incapacitating degree. For the reasons elaborated below, I am satisfied that this is an injury that has arisen out of or in the course of his employment, and is not the consequence of a misperception.”
It can be seen that the original Arbitrator has made a finding of fact with respect to the occurrence of injury within the terms of the 1987 Act and has accepted, as a matter of fact, that the Respondent suffered from a psychological condition as diagnosed by his treating psychiatrist Dr Nicholas Cassimatis.
As noted above, it is the Appellant’s submission that Dr Akkerman’s opinion and conclusions as to capacity for work constitute evidence of “change of circumstances” in the relevant sense.
The Arbitrator addressed the relevance and weight of Dr Akkerman’s evidence at paragraphs 38 to 41 of her Reasons. The Arbitrator (at paragraph 41) concluded:
“I am not persuaded that Mr Zuk’s condition is now primary constitutional in origin. Nor am I am [sic] satisfied that because some of the factors that precipitated his condition have been removed from the workplace that his employment with TAFE is no longer a substantial contributing factor to the injury as it manifests itself in 2005.”
It can be seen that the tenor of the Arbitrator’s reasons includes a rejection of the views expressed by Dr Akkerman.
It is my view that, whilst the reasoning process of the Arbitrator may be open to some criticism, her conclusion is correct. I accept the Respondent’s submission which appears at page 2 of his written submissions:
“In his findings at first instance, (the original Arbitrator), found that Applicant [sic] to be suffering from an Adjustment Disorder with Anxiety and Depression which arose out of or in the course of his employment (paragraph 26). The Arbitrator relied upon the medical opinions of the Respondent’s treating general practitioner and psychiatrist to form that opinion (paragraph 27). It is submitted that the Appellant cannot rely on the report of Dr Akkerman of 2 April 2004, to support a different conclusion as to the Respondent’s medical condition.”
As noted above, the starting point in applying section 55 of the 1987 Act is an unqualified acceptance of the original decision maker’s findings. The opinion of Dr Akkermann serves only to challenge the medical opinion accepted by the original Arbitrator and does not constitute evidence of “change of circumstances” in any relevant sense.
The Appellant further submits that, having regard to the Respondent’s own evidence, there:
“has been a change in his capacity for employment, since the entry of the award, on 9 December 2003, as the worker is now able to perform operational duties for the RAAF, and to undertake these duties for periods of between 8 hours, and 10 days, at a time.
Accordingly, as the section 55(1) threshold has been met, the worker’s award should be reviewed by the Commission, and a finding should be made that the worker now suffers from a partial (if any) incapacity for employment.”
It is common ground that the Respondent has been a member of the RAAF Reserve Forces since 1978. Whilst he has, from time to time, derived a small income from such activity it has at no time been part of his case that engagement in those duties constitutes concurrent employment. It is the Appellant’s submission that the Respondent’s activities in the Reserve Forces as described by him in his evidence constitute evidence of “a change in the worker’s capacity for employment”. The Appellant, correctly in my view, submits that a narrow meaning should not be given to the expression “change of circumstances” and that such would embrace evidence of change in a worker’s capacity for employment.
The Arbitrator in her Reasons (at paragraph 55) addressed the subject of Mr Zuk’s engagement with the RAAF Reserve Forces:
“However Mr Zuk’s employment with the RAAF Reserve does not necessarily establish that he can work in the “general labour market” even in a low-level, administrative position. All it tells us is that he can work in a unique, close-knit environment with which he is familiar.”
The Arbitrator proceeded (at paragraph 56 of her Reasons) to state:
“It may be that Mr Zuk now has some capacity for employment. The evidence on this point is finely balanced. However in the absence of any cogent medical evidence that Mr Zuk is now fit for some work in the “general labour market reasonably accessible to him” I cannot be satisfied on balance that there has been a change in circumstance and that Mr Zuk now has some capacity for employment.”
I am of the view that the Arbitrator’s conclusions with respect to the question of the Respondent’s capacity for work (and thereby addressing the question of change of circumstances) were open to her on the evidence and further that no error of fact, law nor as to the exercise of discretion has been demonstrated by the Appellant.
I am fortified in my view as stated in the aforementioned paragraph particularly having regard to a close examination of the evidence given by the Respondent in cross-examination before the Arbitrator. It is clear that a great many of the “concessions” made by the Respondent with respect to his activities with the RAAF Reserve concerned his activities in the financial year 2003/2004. Nowhere in the evidence is there a clear differentiation between the Respondent’s activities in that pursuit falling before the date of the original decision (December 2003) and those that occurred thereafter. This lack of certainty affects the weight of the evidence before the Arbitrator and is a further factor that may, in my view, be taken into account in determining the question as to whether or not there is evidence of relevant change of circumstances.
DECISION
The appeal is unsuccessful. The decision of the Arbitrator dated 11 April 2005 is confirmed.
COSTS
The Appellant is to pay the Respondent’s costs of this appeal.
Kevin O’Grady
Acting Deputy President
13 July 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O’GRADY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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