Outback Traders (Aust) Pty Ltd v Tobin
[2006] NSWWCCPD 181
•9 August 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Outback Traders (Aust) Pty Ltd v Tobin [2006] NSWWCCPD 181
APPELLANT: Outback Traders (Aust) Pty Ltd
RESPONDENT: Vanessa Tobin
INSURER:Employers Mutual Indemnity (Workers Compensation) Ltd
FILE NUMBER: WCC8028-05
DATE OF ARBITRATOR’S DECISION: 23 September 2005
DATE OF APPEAL DECISION: 9 August 2006
SUBJECT MATTER OF DECISION: Procedural fairness; hearsay evidence; admissibility of history in medical report; section 60 Evidence Act 1995, and reasons.
PRESIDENTIAL MEMBER: Acting Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION: Appellant: Dutton Lawyers
Respondent: Nagle & McGuire
ORDERS MADE ON APPEAL: Paragraphs 1 to 4 inclusive of the Arbitrator’s decision of 23 September 2005 are revoked and the following order is made:
“The matter is remitted to a different Arbitrator under section 352(7) of the Workplace Injury Management and Workers Compensation Act 1998 for the Arbitrator to determine the Respondent Worker’s entitlements pursuant to the provisions of the Workers Compensation Act 1987 in accordance with this decision.”
Paragraph 5 of the Arbitrator’s decision of 23 September 2005 is confirmed.
Costs of the original Arbitration are to follow the result of the second Arbitration.
The Appellant Employer is to pay the Respondent Worker’s costs of the appeal.
BACKGROUND TO THE APPEAL
On 12 October 2005 Outback Traders (Aust) Pty Ltd (‘the Appellant Employer/Outback Traders’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 23 September 2005.
The Respondent to the Appeal is Vanessa Tobin (‘the Respondent Worker/Ms Tobin’).
The Respondent Worker in this case was born on 9 August 1968. She completed her school certificate in 1984 at Port Macquarie High School. Since leaving school she has had various jobs including, sales assistant with Woolworths, cook/waitress at different petrol stations, grape picker at Bomaderry Silo’s Vineyard, and machine operator and packer with the Appellant Employer.
In 1998 Ms Tobin fell whilst on her way to work with Apex Laundry. The following day she had pain in her “tail bone” (Ms Tobin’s undated statement page two). She consulted her usual general practitioner, Dr Antonio who prescribed pain killers and physiotherapy. She stated that she made a full recovery from that fall. Later entries in Dr Antonio’s notes cast some doubt on that assertion.
In mid 2004 she injured her right wrist when she lifted a roll of film whilst working for the Appellant Employer. She had one day off work and was placed on light duties which she continued to perform until 18 August 2004. On that day she bent over, intending to move a tray of fudge, when she experienced severe low back pain. Several histories record her as having actually lifted the tray. That error was corrected by Ms Tobin’s oral evidence before the Arbitrator on 15 September 2005 (transcript page 24 line 37).
After the incident on 18 August 2004 her pain was such that an ambulance was called and she was taken to Shoalhaven Memorial District Hospital (‘Shoalhaven Hospital’) where she was treated in the casualty department. The admission notes record that Ms Tobin had been lifting a tub of fudge off the floor “like she does every day” when she felt a sudden stab of pain in her lower back radiating to both legs. She felt she could not walk because of the pain. The hand written entry also records “previous back injury 7 years ago after slipped on wet grass – Ø probs since”. I interpret the last entry to mean ‘no problems since’. The typed summary under “presenting problem” states “similar injury seven years ago”. The hospital provided Ms Tobin with a referral to give to Dr Antonio. She was also referred for physiotherapy which she attended the next day. X rays taken on 18 August 2005 showed minor anterior vertebral ostephytes in the lumbo sacral spine.
She again attended at Shoalhaven Hospital on 19 August 2005 because of continuing back pain. A CT scan taken on that day showed a small L4/5 posterocentral disc bulge which may have been touching the L5 nerve roots together with minor facet joint degenerative changes.
On 20 August 2005 she attended on Dr Antonio complaining of sever back pain and being unable to sit. On examination he found non specific tenderness in the lumbar spine with severe pain on movement.
The Appellant Worker ultimately returned to work on selected duties on or about 19 September 2004 but was certified unfit for work again from 21 October 2004 until 10 January 2005.
Her claim had initially been accepted, but liability was declined in writing on 23 December 2004 because any aggravation caused by the work incident on 18 August 2004 had ceased and because her employment was not a substantial contributing factor to her injury (letter from Employers Mutual Indemnity (Workers Compensation) Limited (‘EMI’) to Appellant Worker 23 December 2004).
The Respondent Worker returned to light duties with the Appellant Employer in January 2005 but on 16 February 2005 her employment was terminated because the Outback Traders was no longer able to provide suitable duties.
On 22 February 2005 (wrongly referred to as ‘24 February’ by Ms Tobin and as ‘22 October 2004’ by Dr Searle) Ms Tobin was in bed at her home when she rolled over and proceeded to get up. When she stood up she experienced “excruciating low back pain” (Respondent Worker’s second undated statement, page one). An ambulance was called and she was taken to Shoalhaven Hospital where she was given medication and allowed home. The ambulance report refers to a previous back injury and to her getting out of bed and her back “giving way”. There is no reference in those notes or the hospital notes of the Respondent Worker suffering any further injury or event that might have precipitated her pain on that day.
On 23 May 2005 her Application to Resolve a Dispute (‘the Application’) was filed in the Commission seeking compensation from 6 January 2005 to date and continuing as a result of the back injury she sustained on 18 August 2004. Whilst the original Application alleged an injury in July 2004, that allegation was deleted at the Arbitration hearing.
The claim was heard in an Arbitration hearing in Nowra on 15 September 2005 with the Arbitrator finding in favour of the Respondent Worker. Outback Traders now seeks leave to appeal that decision.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 23 September 2005, records the Arbitrator’s orders as follows:
“1.The Respondent is to pay the Applicant the sum of $272.00 per week from 7 January 2005 to 22 February 2005.
2.The Respondent is to pay the Applicant at the statutory rate applicable to a single worker from 23 February 2005 to date and continuing as adjusted pursuant to s.36 and 37.
3.The Respondent is to pay the Applicant’s s.60 expenses.
4.The Respondent is to pay the Applicant’s costs as agreed or assessed.
5.I certify this matter as being complex.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a)denying the Appellant Employer natural justice and procedural fairness (‘procedural fairness’) in relation to the manner in which the Arbitration was conducted in that:
(i)the Appellant Employer was not given the opportunity to respond or make submissions on the question of whether the Respondent Worker remained totally incapacitated for work, and
(ii)the Appellant Employer was not given the opportunity to make further submissions on any issues “such as incapacity or 9A” (Appellant Employer submissions page five paragraph (j));
(b)accepting as evidence of the fact the history recorded by Dr Searle in his report of 2 April 2005 that “in fact the second acupuncture treatment caused a relapse, and when she tried to get out of bed on 22 October 2004 she had extreme back pain and could not move” (‘Dr Searle’s evidence’);
(c)accepting the opinion of Dr Searle when it was unsupported by proven facts (‘Dr Searle’s evidence’);
(d)accepting the history of Dr Searle as evidence in the case when there was no evidence that the Respondent Worker had given to the Appellant Employer notice that she intended to rely upon the hearsay statements to Dr Searle as evidence in the case (‘Dr Searle’s evidence’);
(e)accepting the history recorded by Dr Searle when it was so vague and imprecise as to have no probative value (‘Dr Searle’s evidence’);
(f)accepting the history recorded by Dr Searle when there was no evidence from the doctor as to the manner in which the acupuncture treatment was likely to have caused further aggravation (‘Dr Searle’s evidence’);
(g)rejecting the opinion of Dr Roberts “outright” without giving reasons for doing so (‘Reasons’, Dr Roberts’ evidence’);
(h)failing to give any due consideration to the applicability of section 9A of the Workers Compensation Act 1987 (‘the 1987 Act’) (‘Reasons’, section 9A’);
(i)failing to consider the substantial evidence that the Respondent Worker was not totally incapacitated for work (‘Reasons’, ‘incapacity’);
(j)failing to consider that any incapacity suffered by the Respondent Worker was a result of non work related factors such as drug use and non organic factors (‘Reasons’, ‘drug use and non organic factors’), and
(k)failing to consider the substantial evidence regarding the Respondent Worker’s credit and drug usage (‘Reasons’, ‘credit’).
LEAVE TO APPEAL
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 been made in this case but the Arbitrator’s finding would result in the Respondent Worker receiving no compensation and therefore the second limb of section 352(2) does not apply (see Mawson v Fletchers International Exports Pty Ltd [2002] NSWWCCPD 5).
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
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.”
The Appellant Employer submits that the issues raised on appeal are complex and, therefore, should be determined in an oral hearing. Since the appeal was filed on 12 October 2005 the Appellant Employer has filed additional written submissions on 28 December 2005. In addition, a full transcript of the evidence and the oral submissions before the Arbitrator is available. I do not believe that the issues raised in this matter are so complex that an oral hearing is required. The parties written submissions are detailed and adequately cover all issues.
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the Respondent Worker 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.
SUBMISSIONS AND FINDINGS
Procedural Fairness
It is accepted that the Commission is bound to apply the rules of natural justice and procedural fairness. In Inghams Enterprises Pty Ltd v Zarb [2003] NSWWCCPD 15 Deputy President Fleming referred to section 354 of the 1998 Act, which provides that proceedings in the Commission are to be conducted with as little technicality and formality as possible, and then said at [25] and [26]:
“25. While this provision modifies the common law rules of procedural fairness in some respects, for instance, in relation to the determination of matters on the papers, it does not alter the fundamental rule that a party is entitled to be heard in relation to the case against it, before the decision-maker exercises the power to make the decision (Twist v Council of the Municipality of Randwick (1976) 136 CLR 110). In this case the Arbitrator expressly told the parties they would have the opportunity to make further submissions on the matter of an award of lump sum compensation, once she had made the relevant finding of fact upon which the issue turned. In my view, it was clearly a denial of procedural fairness to then proceed to determination without allowing the parties to make those submissions. This was not a matter of informality and lack of technicality. There is nothing in section 354 of the 1998 Act which required the Arbitrator in this matter to give the parties the opportunity to make further submissions; however, once she had stated that she was going to follow that course, there is, equally, nothing in the section that excuses her failure to do so.
26. A denial of procedural fairness is an error of law going to jurisdiction (Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 (‘Bhardwaj’). In this matter the denial of procedural fairness was in relation to the determination of compensation for permanent impairment, and for pain and suffering compensation under sections 66 and 67 of the 1998 Act. The result is that no decision has been effectively made in relation to these entitlements and an Arbitrator must consider this part of the dispute afresh.”
In the present case the Arbitrator said at page 57 line 35 of the transcript “gentlemen, I thought I’d let you know my thinking”. He then outlined the following:
(a)he had no problem with the incident of 18 August 2004 having caused an injury “by way of aggravation to pre existing degenerative changes” (transcript page 57 line 37);
(b)he was satisfied that the “nature of the injury was a substantial contributing factor” (transcript page 57 line 40);
(c)there was a long history of prior back problems (transcript page 57 line 45);
(d)what the Appellant Worker did on 18 August 2004 “flared it [the arthritis] up” (transcript page 57 line 48);
(e)that aggravation continued to bother her and was causing incapacity at the time voluntary compensation ceased on 6 January 2005, and
(f)“what happened at home was a supervening aggravation which constitutes a new injury. The difference to Ms Tobin’s lifestyle caused by that aggravation is too dramatic to ignore and I can’t find anything in the medical evidence that tells me that what happened at home was in anyway connected to the injury on 18 August. Mr McCarthy, what do you want to – do you want to be heard?” (transcript page 58 line five).
The following exchange then occurred (transcript page 58 line 40) between the Arbitrator and Mr McCarthy, the solicitor for the Appellant Employer:
“Arbitrator: I just – that’s the way I’m thinking. ‘Do you wish to be heard?’ is what I’m saying to you. Do you want to go first? Do you want to cavil with that or do you want to –
Mr McCarthy: No, I don’t want to cavil with that really in any way. Those were going to be the broad thrust of my submissions, in any event.
Arbitrator: All right. Well, why don’t we hear from Mr McGuire first and of you—
Mr McCarthy: There’s just one point –
Arbitrator: Oh, right. Okay.
Mr McCarthy:-- I was going to make about 9A, but I can make that now or later.
Arbitrator: Well, if you wish to dissuade me from my thoughts, speak now. If you don’t wish to, then you can wait for Mr McGuire.”
Mr McCarthy then made submissions about the applicability of section 9A of the 1987 Act to Ms Tobin’s claim. He made the point that, in light of the Respondent Worker’s previous back problems, “virtually anything would have aggravated her condition” (transcript page 59 line 32) and the movement she made at work was no different to any movement she might have made anywhere. The example was given of her dropping a spoon at home and bending to pick it up. He then submitted that if the Arbitrator was not minded to apply section 9A, the Respondent Worker was only entitled to an award for a closed period up to 22 February 2005 (transcript page 59 line 50).
Mr McGuire then made the following submissions:
(a)no one suggests that the Respondent Worker’s problem in February 2005 is anything more than a continuation of her original incident (transcript page 62 line eight);
(b)Dr Searle put all of Ms Tobin’s problems down to the 18 August 2004 incident (transcript page 62 line 51);
(c)the February 2005 incident was not an issue raised by the insurer (transcript page 62 line 55);
(d)the insurer’s case was based on Dr Rowe’s opinion (transcript page 63 line three) that the effect of any aggravation caused by the 18 August 2004 incident had ceased by November 2004;
(e)there was no cross examination or medical evidence to suggest the pain experienced on 22 February 2005 was different to that experienced on 18 August 2004 (transcript page 65 line 50);
(f)once it’s established that there is a work related injury, the insurer has the obligation to provide medical evidence that there is some other cause of the Respondent Worker’s problem (transcript page 67 line 15), and
(g)if the pain on 22 February 2005 followed upon acupuncture treatment on 21 February 2005 and that treatment was for the effects of the 18 August 2004 injury, then the pain on 22 February 2005 is definitely related to the work injury (transcript 68 line 10).
In the course of Mr McGuire’s submissions the Arbitrator stated that he had missed Dr Searle’s reference to the February 2005 incident at home because the doctor’s report refers to it occurring on 22 October 2004 (transcript page 67 line 20). The Arbitrator then says at 68 line 38:
“Arbitrator: Well, Mr McCarthy, I’m coming back to you because I had not appreciated that Dr Searle had, in fact – did have a history, albeit on a different date and under different circumstances, [sic] obvious exaggeration. All I had seen was no February ’05 reference in the report dated 2 April and this line that said she has not suffered any additional injuries. So, having been alerted to that, that does give the Applicant some support for the causation aspect, which, as you know, is an aspect of this case that’s causing me trouble.”
Mr McCarthy then made submissions on the issue of whether the work aggravation had ceased and the fact that the event at home on 22 February 2005 was a further independent aggravation. He concluded at page 70 line four saying:
“But the correct view, in my submission, is that – and supported by the evidence and the history – is that there is a long standing degenerative condition. It’s been periodically aggravated of which our work aggravation is but one. And that’s the respondent’s submissions.”
Mr McGuire stated that he had no objection to Mr McCarthy cross examining further on Dr Searle’s history relating to the acupuncture treatment if he wished (transcript page 70 line 26). That offer was not taken up by Mr McCarthy.
The submissions concluded with the Arbitrator saying at page 70 line 38 “anything further from anyone?” to which Mr McCarthy replied “no”. The Arbitrator proceeded to give an ex tempore decision in favour of the Respondent Worker.
The Appellant Employer’s first complaint under this heading is that it was denied the opportunity to make submissions on whether the Respondent Worker was totally incapacitated for work from 23 February 2005. The Appellant Employer’s case was that the work aggravation had ceased and therefore any incapacity beyond 8 December 2004 (the date of Dr Rowe’s report) or 22 February 2005 (the date of the home incident) was not related to the work injury. It had no medical evidence after the 22 February 2005 home incident to suggest that Ms Tobin’s incapacity was anything other than total. Mr McCarthy cross examined Ms Tobin at length (from pages 27 to 53 of the transcript) and did not suggest any job for which she might be fit by reason of her training or experience. He did not challenge her evidence in chief that she did not believe there was any job, either full time or part time, for which she was fit (transcript page 24 line 45). The cross examination was directed at demonstrating that the incident at home on 22 February 2005 was a significant event which greatly increased Ms Tobin’s incapacity for work (transcript page 53 line 17). In these circumstances it is hard to imagine what submissions could have been made by the Appellant Employer on the issue of incapacity. On appeal, no submissions have been made that the Respondent Worker is fit for some suitable employment. The Appellant Employer has pointed to no evidence after 22 February 2005 suggesting that the Respondent Worker is only partially unfit.
The Arbitrator’s decision refers to the Respondent Worker’s evidence that she did not consider she was capable of doing any work (transcript page 73 line 35) and added at page 74 line 55 that she was “very frank with the Commission and seemed eager to help”. He also accepted Dr Searle’s evidence that the incident at home on 22 February 2005 was related to acupuncture treatment Ms Tobin had for her work injury (transcript page 74 line 47). Given these factual findings by the Arbitrator on causation and given Dr Searle’s undisputed evidence that Ms Tobin was “unfit for all forms of work” (Dr Searle, report 2 April 2005 page five) it was open to the Arbitrator to find the Respondent Worker was totally unfit for work. However, for reasons set out below, his reasons for making that finding were inadequate.
Mr McCarthy was given the opportunity at page 70 line 38 to make any further submissions he wished but declined to do so. In all the circumstances I do not believe there has been any denial of procedural fairness to the Appellant Employer on this issue.
The second complaint under this heading is that the Appellant Employer was not given the opportunity to make further submissions on the section 9A issue. For the reasons set out above, I do not accept this submission. The Appellant Employer was given three opportunities to make submissions. First, after the Arbitrator expressed his preliminary views, second, after Mr McGuire made his submissions, and third, at page 70 line 38. In my opinion the Appellant Employer was given every reasonable opportunity to present its arguments and I do not believe there was any denial of procedural fairness in the conduct of the proceedings.
Dr Searle’s Evidence
Dr Searle saw Ms Tobin at the request of her solicitor on 30 March 2005. In his report of 2 April 2005 he states at page two:
“In fact the second acupuncture treatment caused a relapse, and when she tried to get out of bed on 22/10/04 she had extreme back pain and could not move. She managed to drag a phone to her and ring for an ambulance and went back to the hospital. Eventually she was sent home with more analgesics and she was referred to a psychologist, but that treatment did not help her either. She was sent to Wollongong Hospital to see a neurosurgeon and was kept in bed there for a time with an analgesic drip, but eventually told to return to Shoalhaven Hospital. She was returned there in a wheelchair and kept in hospital for seven days being treated with MS Contin and a variant of this (E Contin?) as well as Naprsoyn and Coloxyl. Eventually she was able to get into a walking frame. She was seen by a neurosurgeon, Dr Rowe Brennan, who was afraid that surgery may worsen her and suggested she attend a Pain Management Clinic. She was also seen by Professor Webster with the same suggestion.”
Dr Searle’s report was admitted into evidence without objection. Ms Tobin was not asked any questions in chief or in cross examined about the history she gave to Dr Searle. The Appellant Employer submits that it was not open to the Arbitrator to accept the above history as evidence of the fact when there was no independent evidence of those facts and no notice had been given of an intention to rely upon the hearsay statements in Dr Searle’s report. In addition it is argued that, if it was open to the Arbitrator to accept the above history as evidence of the fact, it was so vague and imprecise as to have no probative value.
In R v Welsh (1996) 90 A Crim R 364 it was held that under section 60 of the Evidence Act 1995 a history recorded by a doctor is evidence of the facts recorded in that history if it is relevant for a purpose other than proof of the facts. A similar conclusion was expressed without detailed discussion by the Court of Appeal in Moran v Amoret Installations Pty Ltd [2000] NSWCA 106.
The issue was considered in detail by Justice Heyden (with Priestley and Sheller JJA agreeing) in Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25 (‘Daw’). In this case Heyden JA said at [70]:
“70 Secondly, while at common law the history taken by a doctor and repeated as the basis for that doctor’s opinion evidence had to be admissibly proved if it was to be received as evidence of the facts stated (e.g. Ramsey v Watson (1961) 108 CLR 642 at 649), that rule has been reversed by s 60 of the Evidence Act Section 60 provides:
‘The hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of the fact intended to be asserted by the representation.’
The ‘previous representations’ in medical reports are relevant for a purpose other than proof of the fact intended to be asserted by the representation. Hence the hearsay rule does not apply to the evidence of previous representations, and they are admissible. That at least is what the Court of Criminal Appeal held in R v Welsh (1996) 90 A Crim R 364. While the Court of Criminal Appeal is not bound by decisions of the Court of Appeal, the Court of Criminal Appeal ‘would naturally have great regard for a carefully considered decision of the Court of Appeal’: R v Masters (1992) 26 NSWLR 450 at 472. The Court of Criminal Appeal will follow decisions of the Court of Appeal unless convinced they are plainly wrong: R v O'Halloran [2000] NSWCCA 528 at para 92. In my judgment the same applies where the Court of Appeal is confronted with a decision of the Court of Criminal Appeal in point. I do not consider that the decision of Hunt CJ at CL, Newman J and Bell AJ in R v Welsh was plainly wrong. It follows that it does not matter that it is not possible to point to some other hearsay exceptions such as those relating to business records to support the reception of histories and other factual material in clinical notes.”
In my view the authority of Daw is directly on point with the issue raised in the present case. Applying the principles set out in Daw it is my opinion that the Arbitrator was entitled to rely on the history recorded by Dr Searle to support his conclusion that the increased pain experienced by the Respondent Worker on 22 February 2005 was not an “independent aggravation” as submitted by the Appellant Employer (transcript page 70 line one) but was pain following the acupuncture treatment for the work injury and, as a result, there was a “continuing causation between the present incapacity and the work injury” (transcript page 74 line 50).
In any event I am not convinced that the event which happened at home on 22 February 2005 was an ‘independent aggravation’. What happened on that date was that the Respondent Worker experienced a significant increase in her pain when getting out of bed. I do not believe an incident of that kind could reasonably be considered to be an entirely new injury. In the text Workers Compensation (New South Wales) second edition by C P Mills the author stated at page 236:
“The concept of an entirely new cause intervening to produce the ensuing incapacity involves the idea of the replacement of the injury, as the cause of the incapacity, by a second incident, again causing incapacity. Before the novus actus will be regarded as the only cause of the incapacity, it must be shown that the incapacity which would have resulted from the injury has ceased to exist, and that the incapacity which does exist has resulted from the new cause as the sole cause.”
What is required is a commonsense evaluation of the casual chain with due regard to the statutory formula by asking the question: has the incapacity “resulted from” the work event in question? (Kooragang Cement Pty Ltd v Bates (1994) 10 NSWCCR 796). In the present case that question can be answered in the affirmative without regard to the acupuncture treatment referred to by Dr Searle because the incident at home was so innocuous that it could never reasonably be regarded, as a matter of common sense, as something that broke the causal connection between the work injury and the incapacity.
Further, it is relevant to note section 354 of the 1998 Act which provides:
“354 Procedure before Commission
(1) Proceedings in any matter before the Commission are to be conducted with as little formality and technicality as the proper consideration of the matter permits.
(2) The Commission is not bound by the rules of evidence but may inform itself on any matter in such manner as the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits.
(3) The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.
(4) ….”
When informing itself on any matter the Commission must bear in mind the principles set out in Rule 70 of the Workers Compensation Commission Rules 2003 (‘the Rules’) which provide that:
“(a) evidence should be logical and probative,
(b) evidence should be relevant to the facts in issue and the issues in dispute,
(c) evidence based on speculation or unsubstantiated assumptions is unacceptable,
(d) unqualified opinions are unacceptable.”
Dr Searle’s evidence about the acupuncture treatment was logical, probative and relevant to the facts in issue and the issue in dispute in the case. It was contained in a report that was attached to the original Application filed in May 2005. It was evidence that the Appellant Employer had every opportunity to challenge, either in cross examination or in the form of other evidence. Therefore, if I am wrong in my analysis and application of Daw and section 60 of the Evidence Act, it is my opinion that the Arbitrator was entitled to accept Dr Searle’s history as evidence of the fact by relying on section 354 of the 1998 Act together with Rule 70.
The Arbitrator’s conclusion on this issue can be supported on another ground. There was no evidence from the Appellant Employer that the home incident resulted in any further or additional damage to the Respondent Worker’s back.
This part of the Arbitrator’s decision is also attacked because Dr Searle does not explain the manner in which the acupuncture was likely to have caused further aggravation. It is not necessary for a doctor to give a detailed account of the mechanism involved. What he recorded was that, other than the injury on 18 August 2004, the Respondent Worker had no other relevant injuries. In his opinion, given the history of acupuncture treatment, the increase in symptoms in February 2005 could be put down to that treatment. Once it was accepted that the acupuncture treatment was reasonably necessary treatment for the original injury that is sufficient to enable a finding that the incapacity has resulted from the original injury.
It follows that I see no error of fact, law or discretion in the Arbitrator’s handling of Dr Searle’s evidence or his conclusion on the issue of the increased pain at home on 22 February 2005.
Reasons
Dr Roberts’ Evidence
An Arbitrator’s duty to give reasons has been considered in a number of decisions of the Commission. In Ayse Cakir v Western Sydney Area Health Service t/as Parramatta Linen Service [2004] NSWWCCPD 1 the following observations were made about the duty of Arbitrator’s to give reasons:
“58. Arbitrators of the Commission have a common law and statutory obligation to provide adequate reasons for their decisions (section 294(2) of the 1998 Act, Rule 73 of the 2003 Rules, Absolon v NSW TAFE [1999] NSWCA 311). Failure to do so constitutes an error of law and may be a ground to set aside the Arbitrator’s decision.
59. The standard by which the adequacy of reasons must be determined is relative to the nature of the decision itself and the decision-maker (see discussion in Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSW WCC PD 6).
60. The Commission is not a court, and its proceedings are conducted with as little formality and technicality as the proper consideration of the matter permits. This approach is also applicable to the preparation of statements of reasons. However, the reasons must adequately convey to the parties the basis upon which the Arbitrator came to his or her decision. These matters are set out in Rule 73 of the 2003 Rules, and require the Arbitrator to give a brief statement setting out the reasons for the determination, including:‘(1). . .
(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 process 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.’
61. It is not always incumbent upon a Commission Arbitrator to set out lengthy written reasons in order to comply with the common law, the statutory requirements, or the 2003 Rules. To do so would be unreasonable and inconsistent with the objectives of the Commission in providing a speedy resolution to workers compensation disputes (Collector of Customs v Pozzolanic [1993] 43 FCR 280; Minister for Immigration and Multicultural Affairs v Wu Shan Liang [1996] 185 CLR 259; Minister for Immigration and Multicultural Affairs v Yusuf [2001] 206 CLR 323, M & S Shipman Pty Ltd v Matters [2003] NSW WCC PD 19). However, any stated or published reasons should clearly set out the evidence, findings, and the application of the applicable law. The statement of reasons for decision must explain why and how the Arbitrator made the decision.
62. As was discussed by Deputy President Fleming in McMahon, to succeed on the ground of ‘inadequate reasons’ it will be necessary for the Appellant to demonstrate not only that the reasons are inadequate, but that their inadequacy sufficiently demonstrates that the Arbitrator has failed to exercise his or her statutory duty to fairly and lawfully determine the application.”It is submitted that the Arbitrator rejected Dr Roberts’ evidence outright without giving any reasons for doing so. Apart from one reference to Dr Roberts in the context of the letter from EMI advising that compensation payments would cease, the Arbitrator does not refer to Dr Roberts in his reasons for decision. When Mr McGuire mentioned the doctor in his submissions at page 60 line 28 of the transcript the Arbitrator said “you may leave Dr Roberts well to one side”. Mr McCarthy made no reference to Dr Roberts in his submissions at the Arbitration hearing. On appeal no submissions have been made as to what matters the Commission should consider from Dr Roberts’ evidence.
Dr Roberts is a consultant forensic psychiatrist who saw the Respondent Worker at the request of EMI on 16 November 2004. In addition to taking the usual history that one would expect a psychiatrist to take, Dr Roberts also conducted a physical examination of Ms Tobin. In his opinion she had no work related psychiatric condition. That is hardly surprising since none was alleged in the Application. In relation to her physical symptoms he conceded that that was “ultimately for the appropriate specialist to comment upon but any assessment of her that does not take into account the clear and obvious signs of untenable assertions is an incomplete and inaccurate examination” (Dr Roberts’ report 6 December 2004 page 16). In his opinion Ms Tobin had no evidence of a physical condition and the only available diagnosis “relates to marijuana use”.
In response to Dr Roberts’ assertion that the treatment provided by Ms Rutland, consultant psychologist, was not required in this matter, Ms Rutland prepared a report dated 25 February 2005. In that report she noted that when Ms Tobin first presented on 13 October 2004 she was highly anxious and distressed and had a number of anxiety features. After four weeks Ms Tobin had made very good progress. The original referral to Ms Rutland was by Dr Antonio for “an opinion and management regarding pain management counselling” (report Ms Rutland 25 February 2005 page 4). In respect of Dr Roberts’ criticism of Ms Rutland’s use of the Beck Anxiety Inventory, Ms Rutland stated that Dr Roberts noted similar symptoms on his examination which were consistent with the diagnosis of anxiety.
In the context of the case overall, and bearing in mind that the main injury was orthopaedic or neurological and considering the lack of submissions on this point by the parties, it is understandable that the Arbitrator did not deal with it. However, having regard to this conflict in the evidence, the Arbitrator was in error in not referring to Dr Roberts’ report and to the reports of Ms Rutland and indicating which evidence he accepted and which he rejected. At the least this was necessary to avoid conflict over whether the counselling provided by Ms Rutland is a reasonably necessary section 60 expense.
Section 9A
The submission made is that the Arbitrator failed to give “any due consideration to the question of the applicability of section 9A” (Appellant Employer’s submissions paragraph 14). It is true that the Arbitrator has failed to properly address section 9A in his reasons and he was in error in failing to do so.
The Arbitrator touched on section 9A at page 57 line 41 of the transcript when he expressed his “thinking” to the parties and said he was “satisfied that the nature of the injury was a substantial contributing factor. It would be difficult for the respondent to argue otherwise in view of the fact they [sic] paid compensation till 6 January”. This statement did not form part of the Arbitrator’s decision. After it was made Mr McCarthy made lengthy submissions on section 9A. Those submissions were not referred to or considered by the Arbitrator in his decision. The failure to consider an essential element in a case like the present constitutes an error of law and a failure to comply with Rule 73 in that the Arbitrator has not set out the reasoning process that has lead him to his ultimate conclusion.
The Arbitrator’s reference to the payment of compensation until 6 January 2005 and that it would be “difficult for the respondent to argue” section 9A indicates a further error. The mere payment of compensation does not, without more, mean that an employer has conceded all the elements necessary for a worker to succeed with his or her claim (APD Snack Foods Pty Limited v Vuic [1984] WCR 62).
The weight to be given to such payments was considered by the Court of Appeal in Department of Education and Training v Sinclair [2005] NSWCA 465 at [90] to [93] (‘Sinclair’). The Chief Justice noted at [93]:
“Finally, I would particularly reject any suggestion that an employer might adversely affect their position in the Commission by not fully investigating each possible defence prior to making their first payment. Such an outcome would have the effect of deterring precisely the kind of reasonable behaviour that beneficial legislation such as the workers compensation scheme seeks to encourage.”
The voluntary payment of compensation is, at most, an admission. That admission must be considered with all the evidence in the case to reach a determination on the merits. In the present case there was much other evidence before the Arbitrator that had to be considered before a final decision could be given on liability. The Arbitrator did not consider that evidence. A possible reason for that failure is found a page 75 line 10 of the transcript where the Arbitrator says, after finding the Respondent Worker to be totally incapacitated, “now, gentlemen, we’re being rushed. What’s the section 38 rate?” In these circumstances it may have prudent for the Arbitrator to reserve his decision and so that all issues raised by the parties could be dealt with.
Incapacity
The Arbitrator did refer to some of the evidence on incapacity (see [34] above). The “substantial evidence” (Appellant Employer’s submissions paragraph 15) that the Respondent Worker was not totally incapacitated all pre dated the increase in symptoms on 22 February 2005. Once it was accepted that that increase in symptoms resulted from the original injury, it was open to the Arbitrator to find total incapacity for work on the open labour market. However, as stated above at [54], the Arbitrator should have dealt with the evidence of Dr Roberts and indicated whether he accepted or rejected it. His failure to do so constitutes an error of law.
Drug Use and Non Organic Factors
Neither of these matters was considered by the Arbitrator in his reasons but this is hardly surprising considering that no submissions were made by either party on either topic. Whilst Mr McCarthy cross examined about drug use by the Respondent Worker, there was no evidence that that use was relevant to the issue of injury or incapacity. No submissions are made on appeal as to how these issues are said to impact on the assessment of the claim. Subject to my comments above concerning Dr Roberts’ evidence, the Arbitrator was not in error in not referring to the Respondent Worker’s drug use in his decision.
In passing I note that the Respondent Worker was cross examined about taking illicit drugs but was not cautioned or given a certificate under section 128 of the Evidence Act 1995.
Credit
In view of the findings I have made above it is necessary for this case to be returned to another Arbitrator for the matter to be redetermined in accordance with these reasons. Therefore, it is not appropriate that I make any comment on the credit issues raised in the case.
Other Matters
The Arbitrator said at page 73 line 38 of the transcript:
“As I said, the medical evidence is ad idem that she suffers from degenerative changes and that the incident on 18 August aggravated those changes.”
That is not correct. Dr Searle’s opinion was that:
“It is most likely that the injury at work on 18/8/04 caused a bulge and tear of the annulus at the L4-5 level and possibly minor abnormalities at other levels as well. The ongoing symptoms from these injuries are persistent and are probably permanent unless some more effective treatment can be arranged.”
His opinion was based on this history:
“While she was at work on 18/8/04 she bent over, possibly in an awkward position, to move a tray of fudge. Relative to the type of movement she was doing this was a relatively heavy tray weighing about 8 kilograms. As she tried to move it in this bent position she felt excruciating back pain which was so severe that she could not move.”
This history was later shown to be false. The Respondent Worker did not lift or try to move the tray of fudge in a bent position but experienced pain on bending (transcript page 24 line 37 and page 28 line 40).
Dr Antonio’s diagnosis in his report of 29 August 2005 was of “severe disabling low back pain” and “aggravated osteoarthritis of the lumbar spine” as a result of “picking up a box of fudge at work weighing 5 to 10 kg from the ground level resulting in acute severe disabling low back pain”. As with Dr Searle, the history of pain on lifting a box of fudge was false. As a result, the weight to be attached to the reports of Dr Searle and Dr Antonio is greatly diminished.
The weight to be attached to Dr Antonio’s evidence is further diminished considering his answers to the questions sent to him by EMI on 14 December 2004. In answer to the question “Do you agree that the aggravation/exacerbation that occurred on 18 August 2004 has now ceased?” the doctor has written “Yes, given the time lag of 4 months”. Dr Antonio added that he agreed with the report of Dr Rowe.
Dr Rowe’s view in his report of 8 December 2004 was:
“She does have some degenerate change in the cervical and lumbar region and whilst it is possible that this was aggravated by the lifting of 18 August 2004, it is considered that there is no evidence of ongoing aggravation.”
Whilst Dr Rowe says “lifting” in the above passage, his history at page one of his report was that the pain commenced as Ms Tobin bent over and she did not lift the box. Therefore he is the only doctor (leaving to one side Dr Roberts) with a correct history of how the pain commenced.
Neither the Arbitrator’s reasons nor any of the submissions on appeal deal with the issues that are raised by the above medical histories. In these circumstances it is my view that the only fair course to adopt is for the case to be remitted to a different Arbitrator for a redetermination of all issues in accordance with these reasons. Whilst I am reluctant to adopt this course it is the only proper course open to me in view of the credit issues raised in the case, the Arbitrator’s failure to deal with the psychological evidence and the section 9A issue, and in light of the fact that the parties have not made detailed submissions about the consequences of the inaccurate medical histories.
Further, it is likely that the parties will need to call further evidence to address the issues raised above.
Additional Error
The Arbitrator ordered the Appellant Employer to pay compensation at the rate applicable under sections 36 and or 37 of the 1987 Act from 23 February 2005. The Respondent Worker’s agreed average weekly earnings were $350.00 (transcript page two line 15). As at 23 February 2005 the maximum rate of weekly compensation for a single worker was $328.90 per week. Therefore the maximum weekly compensation the Respondent Worker could recover at that time (after the first 26 weeks of incapacity) was $315.00 per week. That is, 90% of her average weekly earnings of $350.00 per week (section 37(1)(a)).
DECISION
Paragraphs 1 to 4 inclusive of the Arbitrator’s decision of 23 September 2005 are revoked and the following order is made:
“The matter is remitted to a different Arbitrator under section 352(7) of the Workplace Injury Management and Workers Compensation Act 1998 for the Arbitrator to determine the Respondent Worker’s entitlements pursuant to the provisions of the Workers Compensation Act 1987 in accordance with this decision.”
Paragraph 5 of the Arbitrator’s decision of 23 September 2005 is confirmed.
Costs of the original Arbitration are to follow the result of the second Arbitration.
COSTS
The Appellant Employer has lost on its main appeal points relating to procedural fairness and to the history recorded by Dr Searle. In the circumstances it is appropriate that it pay the Respondent Worker’s costs of the appeal.
The Appellant Employer is to pay the Respondent Worker’s costs of the appeal.
Bill Roche
Acting Deputy President
9 August 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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