Phelan v Jasper Asset Pty Ltd t/as Formula 1 Motel
[2005] NSWWCCPD 90
•18 August 2005
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Phelan v Jasper Asset Pty Ltd t/as Formula 1 Motel [2005] NSW WCC PD 90
APPELLANT: Michelle Gay Phelan
RESPONDENT: Jasper Asset Pty Ltd t/as Formula 1 Motel
INSURER:GIO Workers Compensation (NSW) Ltd
FILE NUMBER: WCC18786-03
DATE OF ARBITRATOR’S DECISION: 23 June 2004
DATE OF APPEAL DECISION: 18 August 2005
SUBJECT MATTER OF DECISION: ‘Injury’; ‘Substantial Contributing Factor’; section 4 and section 9A of the Workers Compensation Act 1987; medical reports; Workers Compensation Regulation 2003; adequate reasons.
PRESIDENTIAL MEMBER: Dr Gabriel Fleming, Deputy President.
HEARING:On the papers.
REPRESENTATION: Appellant: PK Simpson and Co Solicitors
Respondent: Phillips Fox Solicitors
ORDERS MADE ON APPEAL: The decision of the Arbitrator is revoked and the following decision is made in its place:
On 15 March 2002 Ms Phelan suffered an injury, for which the Respondent is liable under the Workers Compensation Act 1987.
The ‘medical dispute’ is remitted to the Registrar for referral to an Approved Medical Specialist for assessment in accordance with these reasons.
The Respondent is to pay the costs of the appeal.
INDEX
Background to the Appeal 2
Issues in Dispute 3
Fresh Evidence 3
Procedural Fairness 5
‘Injury’; Section 4 of the Workers Compensation Act 1987 8
·Evidence 8
·Nature of the Injury 9
·The Lumbar Spine 10
·Chronic Pain 12
·Loss of Sexual Function 12
·Psychological Injury 13
‘Substantial Contributing Factor’; Section 9A of the Workers Compensation Act 1987 15
Assessment of Permanent Impairment 16
Summary 18
Adequate Reasons 18
Decision 20
Costs 20
BACKGROUND TO THE APPEAL
Michelle Phelan worked as a casual housekeeper at the Formula 1 Motel in Casula from 30 August 2001 until 23 May 2002. She worked about twenty hours per week over six days. The Formula 1 Motel is owned and operated by Jasper Asset Pty Ltd t/as Formula 1 Motel, whose workers compensation insurer is GIO Workers Compensation (NSW) Ltd (‘the Insurer’). The Insurer appeared for and on behalf of the employer in the Commission proceedings.
Ms Phelan claimed to have suffered a number of injuries at work for which she was entitled to lump sum compensation for permanent impairment and pain and suffering. Her claimed injuries were to the “back, left leg, right leg, neck, right arm, left arm, sexual organs and consequent anxiety and/or depression”. They were said to occur between 30 August 2001 and November 2002, on 7 May 2002 and on 16 November 2002, due to the “nature and conditions of her employment with the Respondent requiring constant lifting, twisting, bending, vacuuming of rooms and cleaning bathrooms”.
Ms Phelan made a claim for weekly benefits compensation from 23 May 2002 and she has continued to receive weekly benefits. She notified her employer of her claim for lump sum compensation on 8 August 2003. Formula 1 and the Insurer failed to make a timely decision on the claim and on 27 November 2003 Ms Phelan filed an ‘Application to Resolve a Dispute’ in the Commission.
The dispute went before an Arbitrator, who made an award, dated 23 June 2004, in favour of Formula 1 in relation to the claim for lump sum compensation. Ms Phelan has appealed against this decision. She argues that the decision was wrong, that it should be revoked, and that a decision finding that she suffered a compensable injury should be made in its place. The matter should then, she submits, be referred to an Approved Medical Specialist.
Ms Phelan has requested the matter be determined on appeal by way of an oral hearing. This submission is based upon the alleged complexity of the case and the alleged unfairness of the arbitral proceedings. I reject this submission. The issues, while complex, are the subject of written submissions by both parties. I also have before me all of the evidence that was before the Arbitrator and a transcript of the arbitration. A Presidential Member on appeal has a specific and limited role in the review of a decision of an Arbitrator. The review is not a rehearing. The Presidential Member is not dealing with the matter de novo. I am satisfied that I have sufficient information to proceed ‘on the papers’ pursuant to section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’), without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act. I am satisfied that the amount of compensation at issue in the appeal is at least $5,000 and 20% of the amount awarded in the decision appealed against. Leave to appeal is granted.
ISSUES IN DISPUTE
The submissions filed by Ms Phelan’s legal representative are not clearly set out in terms of the alleged errors made by the Arbitrator, whether of law, fact or discretion. An Arbitrator’s decision should be set aside only where it is affected by error (Allesch v Maunz (2000) 203 CLR 172; Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSW WCC PD 6). A number of documents have been filed which appear to be ‘fresh evidence’ on the appeal. This is therefore the first issue to be determined.
The issues in dispute in the appeal may be summarised as follows:
· Should leave be granted to Ms Phelan to file fresh evidence on appeal?
· Did the Arbitrator deny Ms Phelan procedural fairness?
· Was the Arbitrator wrong to find that Ms Phelan did not suffer an ‘injury’ as defined in section 4 of the Workers Compensation Act 1987 (‘the 1987 Act’)?
· Did the Arbitrator err in the application of section 9A of the 1987 Act?
· Did the Arbitrator give adequate reasons for her decision?
The fresh evidence submitted by Ms Phelan on appeal (expert reports) is not the same evidence that she sought to have admitted as ‘late documents’ in the proceedings before the Arbitrator (mostly statements going to Ms Phelan’s credit).
Fresh Evidence on Appeal
Ms Phelan has submitted an ‘Application to Admit Late Documents’ being supplementary medical reports from Mr Nash, Surgeon, dated 5 July 2004, and Dr Hampshire, Psychiatrist, dated 16 July 2004. She has also filed a report by Ms Kerrie Noonan, Clinical Psychologist, dated 4 August 2004. These reports were obtained following the Arbitrator’s decision and in response to it. It is argued that the updated reports evidence the Arbitrator’s misconception of the doctors’ original reports.
The Insurer objects to the filing of fresh evidence on appeal, arguing that there is no explanation as to why the medical reports of Mr Nash, Dr Hampshire, Dr Noonan and Dr Lam could not have been obtained earlier. It argues that it would be “unfair and prejudicial to the employer” to accept the reports in the appeal.
The reports of Mr Nash, Dr Hampshire and Ms Noonan are ‘fresh evidence’ in the appeal and may only be admitted with leave. Practice Direction No 6 provides 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.”
Ms Phelan’s legal representative has not made any substantive submission as to why leave should be granted other than to state that the reports are quite compelling as to how the Arbitrator has clearly misconceived Ms Phelan’s injuries and their relationship to her work.
I am not satisfied that these reports should be accepted as fresh evidence on the appeal. Ms Phelan had a fair and reasonable opportunity to put her medical evidence before the Arbitrator. The filing of evidence is governed by the 1998 Act and the Workers Compensation Commission 2003 (‘the Rules’). The Commission’s procedures are based upon the early filing of evidence, which in turn facilitates early resolution of the dispute.
There has been no submission made as to why the report of Ms Noonan could not have been obtained earlier in the proceedings, and what, if any, reasonable diligence was exercised to obtain it earlier. The report itself states that Ms Noonan has been working with Ms Phelan since 2002.
The original medical reports of Dr Hampshire and Mr Nash were relevant to the Arbitrator’s determination as to whether Ms Phelan had suffered an ‘injury’ at work and whether that work was a ‘substantial contributing factor’; to that injury. The Arbitrator took them into account and, exercising her discretion, weighed them against other evidence. The later reports of Dr Hampshire and Mr Nash produced as fresh evidence in the appeal seeks to challenge the Arbitrator’s interpretation of the earlier reports.
The questions of whether Ms Phelan had suffered an ‘injury’ as that term is defined in section 4 of the 1987 Act, and whether her employment was a ‘substantial contributing factor’ to that injury within the meaning of section 9A of the 1987 Act, were for the Arbitrator to determine. There will likely be many instances where a Commission Arbitrator comes to a view, based on the whole of the medical and other evidence before him or her, which does not accord with the evidence of a particular medical or other specialist. This itself does not support an application to allow further medical evidence on appeal. There would never be an end to litigation if a party could challenge a final decision in this way.
A similar scenario arose in the matter of Barclay Mowlem Constructions Ltd v Perry (1995) 12 NSWCCR 449. In that matter Armitage J rejected an application to file a medical report that post dated the decision of a Commissioner whose decision was subject to review by him. He noted that to allow this type of evidence on appeal could potentially launch a case that the respondent had not previously had the opportunity to meet. He also referred to the power of reconsideration, which in Barclay was available to the Commissioner, upon application. An Arbitrator has a similar power (pursuant to section 350(3) of the 1998 Act). The submission of this type of evidence is more suitable to an application for reconsideration than to an application for review of the Arbitrator’s decision by way of an appeal.
All three reports are from recognized and expert health professionals and must be considered credible evidence. However I am not satisfied that there is a high degree of probability that, had they been before the Arbitrator, they would have changed her findings, and therefore her final decision. This is separate to the issue of whether the Arbitrator was entitled to make the findings she did on the evidence that was before her (the ‘no evidence’) submission.
The application for leave to file fresh evidence in the appeal, being the reports of Dr Hampshire, Mr Nash and Ms Noonan, is refused.
Did the Arbitrator deny Ms Phelan procedural fairness?
The transcript of the arbitration of 19 May 2004 records the Arbitrator’s refusal to accept ‘late documents’ filed and served on 17 May 2004. The documents were a number of witness statements. The Arbitrator gave ex tempore oral reasons for her decision that may be summarized as follows:
· The Rules require both parties to have filed all their evidence at the time of the Application and Reply.
· A teleconference had been held on 6 April 2004 and no late evidence had been flagged at that time.
· The Insurer had no opportunity to properly consider the late evidence or to request witnesses be called for cross-examination.
· No reason was given for why the evidence was not produced earlier.
· Having heard the nature of the late documents the Arbitrator did not believe that it was of “central” relevance to the matters to be decided.
The Arbitrator also refused an application by the Insurer to allow Ms Susan Stanton, who had given a written statement, to give oral evidence. She was not satisfied that the evidence Ms Stanton was to give was “necessary for the Commission to make a fair and reasonable decision”. She stated that Ms Stanton’s written statement was to be taken into account in reaching her decision.
Ms Phelan argues that the Arbitrator denied her procedural fairness because she:
1. Refused Ms Phelan leave (on 17 May 2004) to rely upon late documents, namely “further statements and medical reports obtained from the Respondent insurers workers compensation file”.
2. Did not allow oral evidence to be given “by witnesses who attended the hearing at the request of both parties”.
3. States in her reasons that she has taken the disputed documents into consideration, despite refusing their admission.
Ms Phelan submits that the Arbitrator erred in relying on section 290 of the 1998 Act and clause 38 of the Rules, to find that the Insurer would be subject to prejudice if the documents were admitted. The documents were only obtained following the filing of the Reply. Ms Phelan submits that the statements were filed and served upon the insurer after the telephone conference on 6 April 2004 and that witnesses for both parties were summoned to attend the hearing. She argues that the medical and factual issues in the case were of such complexity as to make it necessary for the Arbitrator to hear from the witnesses and accept the late documents. In addition, the documents were only uncovered as a result of a ‘Direction to Produce’ issued to the Insurer and could not therefore have been filed earlier.
The Insurer submits that the Arbitrator conducted the proceedings fairly and that there was no denial of procedural fairness to Ms Phelan. The decision to refuse to allow the worker to rely on late documents, made after objection by the Insurer, was consistent with the Rules and was fair in all the circumstances. The Insurer argues that there was no unfairness in not calling witnesses as no application for witnesses to give oral evidence was ever made to the Arbitrator.
The Commission file contains a number of documents filed by Ms Phelan’s legal representatives after the original ‘Application to Resolve a Dispute’ was registered on 1 December 203. These are:
· Under cover of a letter dated 4 March 2004 are numerous documents including report of Dr Lowy dated 1 October 2003 and a report of Mr Nash dated 20 January 2004. These reports purport to be filed pursuant to Rule 38(2) however I note that the report of Dr Lowy was in fact provided to Ms Phelan’s solicitor prior to the filing of the ‘Application’.
· A bundle of documents produced and copied from material produced under Direction were also filed on 4 March 2004 without an ‘Application to Admit Late Documents’. A Certificate of Service was not filed although a copy of a letter to the Insurer’s solicitor indicates service.
· An ‘Application to Admit Late Documents’, filed 8 March 2004, relating to reports of Dr Fearnside, (Neurological Surgeon) dated 5 December 2003 and 5 February 2004 and other medical reports. It was submitted that the reports of Dr Fearnside had not previously been filed or referred to in the original ‘Application’ because of “administrative oversight” and that these reports had been in Ms Phelan’s possession, but unknown to her solicitor. No Certificate of Service.
· A report of Dr Hampshire, dated 5 April 2004 was filed on 6 April 2004. This report had been referred to in the ‘Application’ pursuant to Rule 38(2). No Certificate of Service.
· A large bundle of medical reports under cover of an ‘Application to Admit Late Documents’ filed on 22 April 2004 and purporting to be documents produced and copied from material produced under Direction. No Certificate of Service.
· A copy of Ms Phelan’s wage records under cover of an ‘Application to Admit Late Documents’ filed on 22 April 2004 and purporting to be documents produced and copied from material produced under Direction. No Certificate of Service.
· A copy of various claim, injury and report forms and statements of Ms Phelan, Craig Moore and Kerry Anderson, under cover of an ‘Application to Admit Late Documents’ filed on 22 April 2004 and purporting to be documents produced and copied from material produced under Direction. No Certificate of Service.
· Three medical reports, from Doctors Rabone, Price and Moorthy, filed under cover of an ‘Application to Admit Late Documents’ filed on 22 April 2004 and purporting to be documents produced and copied form material produced under Direction. No Certificate of Service.
· Various witness statements filed on 14 May 2004 under cover of an ‘Application to Admit Late Documents’ with a request that they be admitted but no submissions as to why. No Certificate of Service.
· The disputed documents filed on 17 May 2004.
The Insurer also filed a number of reports, on 17 March 2004, 5 April 2004 and 15 April 2004, pursuant to Rule 40(2) that had been referred to in the Reply.
Practice Direction No. 9 concerns the exercise of the Arbitrator’s discretion to admit late documents in Commission proceedings. It sets out a number of factors that are relevant to this discretion including; the submissions of the parties; the prejudice, if any, that will result from granting or refusing leave; the effect of any delay on the timely resolution of the dispute; the requirements of the 1998 Act and the Rules, and the nature of the proceedings in the context of the objectives of the Commission. The conduct of the parties is also relevant (ADCO Constructions Pty Ltd v Ferguson [2003] NSW WCC PD 21).
The conduct of this matter by Ms Phelan’s legal representative shows either a lack of awareness or a disregard for the requirements of the Rules and the Commission’s practices and procedures as set out in its Practice Directions and in the guideline on the ‘Practice of the Conciliation and Arbitration Process’ in the Commission. All of these are easily available through the Commission’s website and should be well known to a solicitor who practices in this jurisdiction. This is unacceptable, given that the Commission had been in operation for at least two and a half years at the time the matter went before the Arbitrator. The Rules have been consistently ignored, there has been a failure to file ‘Certificates of Service’, failure to file documents in support of Ms Phelan’s case at the time the Application was filed in the Commission, failure to file documents clearly in existence and in the solicitor’s possession prior to filing the original application (e.g. Dr Lowy report of 1 October 2003) and a failure to appreciate how the late service of documents might cause substantial injustice to the Insurer who must defend the claim.
It is not desirable, nor consistent with the Commission’s objectives and procedures, for either party to file medical reports not identified in the application, four months after the filing of an ‘Application’. Ms Phelan’s dispute, and the evidence to support her case, was clearly not prepared and ready to proceed prior to the time of filing the application in the Commission in December 2003.
The submission, made by Ms Phelan’s legal representative: that the dispute “was required to be referred to an Approved Medical Specialist” (‘AMS’) before being put before the Arbitrator is simply incorrect. There is no statutory basis for this submission (although section 329(1) of the 1998 Act was cited) nor does it reflect the Commission’s process, as set out in the guideline to the conciliation and arbitration process. While an award cannot be made for lump sum compensation without the matter being referred to an AMS (section 65 of the 1987 Act), it is common practice for the matter to go to an Arbitrator for determination of legal and threshold issues prior to the referral to the AMS. This is exactly what occurred in this matter.
Ms Phelan was given a fair and reasonable opportunity to file evidence in her case. She was required to do this in accordance with the Rules, and the practices and procedures of the Commission. The Arbitrator was generous and even handed in granting leave for a large number of documents to be admitted as late documents. Her final refusal related to documents filed only two days before the conciliation and arbitration conference.
The transcript evidences the application by the Insurer’s legal representative for Ms Susan Stanton to give oral evidence. As set out above this was refused and reasons were given for the refusal. In my view the Arbitrator’s reasons for refusing were fair and reasonable. If there were applications made by Ms Phelan’s legal representative for other witnesses to give oral evidence they are not recorded in the transcript. The determination of whether to hear oral evidence was a matter for the discretion of the Arbitrator. On the documents before me I agree with the Insurer that there was no denial of procedural fairness to Ms Phelan as no application for her witnesses to give oral evidence was in fact made at the arbitration.
There has been no denial of procedural fairness to Ms Phelan and this ground of appeal is not made out.
Was the Arbitrator wrong to find that Ms Phelan did not suffer an ‘injury’ as defined in section 4 of the Workers Compensation Act 1987?
Ms Phelan argues that the Arbitrator made the following errors on the issue of ‘injury’ pursuant to section 4 of the 1987 Act. These errors were:
·Failing to consider the totality of the medical evidence, particularly her medical evidence and the evidence of Dr Rabone (report of 16 September 2002), Dr Price (report of 28 January 2003) and Dr Moorthy (report of 15 September 2003).
·Misunderstanding and misinterpreting the evidence of Dr Hampshire in his report dated 5 April 2004.
·Giving insufficient weight to the medical evidence that supported a finding of ‘injury’.
·Failing to base the decision on logically probative evidence and substituted her own opinion for the medical evidence.
·Failing to allow Ms Phelan to submit evidence to support her as a witness of credit.
Ms Phelan submits that the Insurer has previously accepted her claim for weekly benefits compensation due to the same injury and has also met her reasonable medical expenses. She argues that the medical evidence obtained by the Insurer supports her claim.
The Insurer submits that the Arbitrator has properly weighed the medical evidence that was before her and has not erred in her findings.
What evidence was before the Arbitrator and taken into account?
Despite the decision to refuse to allow Ms Phelan leave to file late documents, being those under cover of an application dated 17 May 2004, the Arbitrator has purportedly considered the same documents. The written reasons for decision lists the documents filed on 17 May 2004 as evidence she has taken into account in her decision, namely: the statements of Ms Stanton, Mr Millar, Dr Leung, M Lindsell, Ms Poll, Ms Noonan, Ms Rudling, Mr Cook, J Taylor and Ms Nour. This is inconsistent with her order.
Ms Phelan’s legal representative has copied a large volume of evidence with the appeal documents but did not direct me to the fact that the Arbitrator, at the telephone conference on 6 April 2004, had made orders in relation to the admission of evidence. The Arbitrator’s notes of the telephone conference list the documents that she has “admitted into evidence”. The documents listed include certain medical reports and clinical notes. I assume, although it is not stated, that the decision to admit certain reports, and not others, was made in accordance with the requirements of Part 10 of the Workers Compensation Regulation 2003 (‘the Regulation’), which restricts the number of medical reports that may be admitted in proceedings. The Arbitrator refers to Dr Hampshire and Dr White as “the psychiatrists qualified by the applicant and the respondent respectively” (at paragraph 23 of the reasons). The problem is that the written reasons for decision lists many more medical reports and other documents than were admitted as a result of the orders made at the telephone conference.
For the purposes of review of the decision I have therefore considered that, as the reasons state, the Arbitrator has admitted all of the documents listed, including all the specialist medical reports listed. It is necessary to review the decision for error on this basis because the alleged errors relate to the finding and conclusions of the Arbitrator on “the evidence”. Arguably the failure to clarify the application of clause 43 of the Regulation to the medical evidence causes difficulties for the substitution of a new decision for that of the Arbitrator, if her decision is revoked (section 352(7) of the 1998 Act). However, it is preferable for as many issues as possible to be resolved by review so that the litigation is “put to rest” for the benefit of both parties (Chubb Security Australia P/L v Trevarrow [2004] NSWCA 344). An undesirable bi-product of the way in which the matter has proceeded is that all the evidence having apparently been ‘admitted’, it should also be referred to an Approved Medical Specialist pursuant to clause 43A of the Regulation, if an assessment of permanent impairment is required.
The Arbitrator did not fail to allow Ms Phelan to submit evidence to support her as a witness of credit. As noted above, while she purported to refuse to grant leave for a number of witness statements to be filed, she has nonetheless taken them into account in making her determination.
What is the nature of Ms Phelan’s injury?
Ms Phelan has claimed lump sum compensation for:
“20% permanent impairment of the back
19% permanent impairment of the neck
35% permanent loss of the efficient use of the left leg at or above the knee
2% permanent loss of the efficient use of the right leg at or above the knee
20% permanent loss of the efficient use of the left arm at or below the elbow
14% permanent loss of the efficient use of the right arm at or below the elbow
60% permanent loss of the efficient use of the sexual organs40% whole person impairment” (Letter to GIO dated 8 August 2003).
Ms Phelan has also claimed to suffer anxiety and/or depression consequent to her physical injuries.
Ms Phelan claims her injury occurred or was aggravated on three distinct occasions being: i) 30th August 2001 to November 2002, ii) 7 May 2002 and iii) 16 November 2002 - all being due “to the nature and conditions of her employment with the Respondent requiring constant lifting, twisting, bending, vacuuming of rooms and cleaning of bathrooms, the Applicant suffered injury to her back, left leg, right leg, neck, right arm and left arm”.
The Arbitrator concludes, at paragraph 32 of her reasons, that:
“Ms Phelan may have suffered some back and leg pain as a result of her physical work. All of her subsequent symptoms appeared well after she stopped work. There is a great deal of medical evidence on both sides in this case. The overwhelming weight of it is that if there was an injury it was ‘soft tissue’7 only and that it has long since resolved-at least in the physical sense. The specialist medical practitioners including those from orthopaedic and neurological specialities are unable to explain any ongoing physical basis for the symptoms. Ms Phelan has expressed ongoing frustration at the lack of explanation for the pain she claims to suffer. That her symptoms have not resolved is a result of her ‘Somatoform Disorder’. It may be that any back pain she did experience at work acted as a “trigger” to her current symptoms, although there is no evidence that this in fact occurred. Even if it did, I would not be able to find on the basis of the evidence that as a matter of impression and degree it is a substantial contributing factor to her current injury in line with principles enunciated by the Court in Dayton.”
The Arbitrator has not clearly dealt with Ms Phelan’s claims in relation to all of the parts of the body claimed. By inference she locates the site of the “soft tissue” injury as only to Ms Phelan’s lumbar spine. The claimed injury to the “sexual organs” is not referred to at all.
The Arbitrator has also not identified a ‘date of injury’.
Ms Phelan’s claim, and the medical evidence filed by both parties, articulates four alleged conditions, claimed to arise ‘out of or in the course of her employment’ (section 4 of the 1987 Act) with Formula 1. They are:
·Injury to the lumbar spine,
·Chronic pain in the back, left leg, right leg, neck, right arm and left arm,
·Loss of sexual function, and
·Psychological Injury of Anxiety and Depression, secondary to the chronic pain condition.
A consideration of the voluminous medical evidence that was before the Arbitrator raises the question of whether Ms Phelan’s pain condition and her psychological injury were one in the same, or were two separate conditions. Similarly there is overlap as to the claimed conditions of “loss of sexual function” and the separate condition of chronic pain.
Injury to the Lumbar Spine.
The Arbitrator records the history of Ms Phelan’s claim as follows (at paragraph 13);
“Ms Michelle Phelan was a casual housekeeper employed by the Formula 1 Motel at Casula, working usually about 20 hours per week over five or six days, when she claimed on 23rd May 2002 that the nature and conditions of her work were causing her pain in her lower back and left leg. She had commenced duties with the employer on 30th August 2001. There were no witnesses to any accident but some witnesses say that Ms Phelan complained of pain in January 2002. She did not give notice of the injury to her employer until 23rd May 2002, the day she ceased work. The employer’s Report of Injury dated 7th August 2002 said that the injury had in fact occurred on 15th March 2002 when Ms Phelan reports she had particularly severe pain walking up stairs. The incident Report of 23rd May says that the injury is sprains and strains of joints and adjacent muscles. The body parts affected are “back-upper and lower” and the cause “repetitive movement-low muscle loading.”
Ms Phelan, in her statement dated 7 August 2002, reports that she first began to experience pain in her lower back in January 2002. It became more severe throughout March and April 2002 and on 22 May 2002 she consulted her General Practitioner, Dr Leung about her ongoing pain. She did not return to work at Formula 1 after that day. Ms Phelan reported the injury on 23 May 2002, citing an ‘incident’ on 15 March 2002 making low slung beds as causing her lower back pain. She later completed a ‘claim form’ citing 15 March 2002 as the ‘date of injury’ adding that she had experienced lower back pain for 2 months prior to this. The Insurer report of the injury also cites “pain start January 2002”.
The evidence in relation to Ms Phelan’s claimed injury to her back included:
·Ms Phelan’s statement of the onset of pain from January 2002 and acute pain on 15 March 2002.
·Claim forms by Ms Phelan and the employer. WorkCover medical certificates.
·Dr Leung’s documentation of low back pain. He referred Ms Phelan for a CT Scan. This revealed a disc bulge at L5-S1 and a “mild annular bulge” at L4-L5, but was otherwise normal. Thereafter Ms Phelan underwent a series of clinical investigations, which were largely normal.
·Dr Rabone, reporting on 16 September 2002, was of the view that Ms Phelan had hurt her back at work due to heavy lifting and making beds. He expected that to resolve over another six months, however due to Ms Phelan’s “psychological” state his prognosis was guarded.
·Various medical reports, which recount Ms Phelan’s own account of ongoing back pain.
·Mr Nash reported on 20 January 2004 that Ms Phelan had suffered a “muscolo-ligamentous” injury to her back and cervical spine as a result of her work and now had a ‘psychosomatic component’ to her complaints.
·Dr Price, reporting on 28 January 2003, diagnosed “chronic regional pain syndrome (causalagia) secondary to an initial musculoligamentous sprain of the lumbar spine with some associated discogenic pain”.
·Dr Carr, reported on 20 January 2004 that Ms Phelan’s presentation was “entirely inconsistent” with a back injury. He found no organic basis for her claims and no evidence of “sympathetic dystrophy”.
Ms Phelan did not consistently report the date of the onset of her symptoms, however I am satisfied that the best evidence in relation to the date of injury is that which was recorded closest to the time it is said to have occurred. This includes the record of her report of injury in May 2002, her claim form and her attendance on Dr Leung. I prefer the evidence of Dr Leung who saw Ms Phelan in May 2002 and who has a long relationship with her as her treating General Practitioner. I give weight to the evidence of Dr Rabone, Mr Nash and Dr Price in relation to the nature of her back injury. All saw Ms Phelan in 2002 or 2003 and are in substantial agreement as to the nature of her back injury. Dr Carr did not see Ms Phelan until January 2004 and I find his evidence in relation to her back injury less probative than the other medical evidence.
On the evidence before the Arbitrator, and before me on appeal, I find that Ms Phelan suffered a frank injury to her lower back on 15 March 2002 as a result of her duties as a cleaner at Formula 1. In her statement she refers to the onset of back pain from January 2002. However on 15 March 2002 she suffered an injury in the form of acute back pain. The evidence is that this was a musculoligamentous injury to her lower back. There was also slight disc pathology on a CT scan, consistent with degenerative disc disease of the back. The organic cause of the muscolskeletal injury to Ms Phelan’s back has resolved. However she has continued to have back pain, despite no organic pathology to explain its cause. I note that this ‘injury’ could, potentially, fall within the definition of injury in both section 4(a) and (b) of the 1987 Act.
Ultimately there is no significance in whether the ‘date of injury’ was January or March 2002, as it is clear that Ms Phelan did not have an incapacity to work until 22 May 2002, and she has received weekly benefits compensation from that date. The employer and the insurer were the same throughout the whole of the relevant period. What is significant about this ‘date of injury’ is that it occurred after 1 January 2002, the date on which amendments to the assessment of psychological injuries took effect. This is discussed further below.
Chronic Pain to the “back, left leg, right leg, neck, right arm and left arm”
The nature of Ms Phelan’s work from March 2002 to May 2002 included bending, twisting and carrying relatively heavy loads, which aggravated her injury. Whether it also contributed to the development of a separate condition of pain in other parts of her body known as ‘complex regional pain syndrome’ or ‘reflex sympathetic dystrophy’ (hereafter referred to as ‘CRPS’) is a matter to be determined on the evidence.
The medical evidence in relation to Ms Phelan’s claimed chronic pain in her neck, arms and legs is encompassed in a diagnosis of CRPS. The medical evidence is as follows:
·Dr Lam (Pain Management Specialist) reported on 20 August 2002, 17 September 2002, 1 November 2002, 14 February 2003 and 23 May 2003, that Ms Phelan continued to have chronic pain as a result of her injuries at work and was unfit for normal duties.
·Dr Matalani, (Occupational Physician) reported on 11 September 2003 that Ms Phelan had soft tissue injury to her neck and back, chronic pain syndrome in her arms and legs, sexual dysfunction and reflex sympathetic dystrophy of the lower limbs.
·Dr Stenning, (Muscoloskeletal Medicine), reported on 18 June 2003 that Ms Phelan had chronic soft tissue damage and chronic pain in her back, neck, left leg, and left shoulder. He found her right leg to be normal and queried whether she had “carpal tunnel syndrome” in her left wrist.
·Dr Fearnside, Neurologist, reported on 5 February 2004 that Ms Phelan had chronic pain for which there was no anatomical basis. He concluded that she had ‘chronic pain syndrome’ affecting her back, neck, legs and arms.
The Arbitrator considered the evidence of Dr Hampshire and Dr White, both Psychiatrists, in relation to Ms Phelan’s claimed psychological condition, diagnosed by Dr Hampshire as a ‘Somatoform Disorder’. Her ultimate findings concern Ms Phelan’s back injury and ‘Somatoform Disorder’ and do not otherwise refer to a condition of ‘Complex Regional Pain Syndrome’. She has treated this and the ‘Somatoform Disorder’ as one condition. I am not satisfied that any of the medical evidence supports this finding and therefore this conclusion was reasonably open to her. It can be seen from the summary of the evidence set out above that there was considerable support for the diagnosis of CPRS to explain Ms Phelan’s symptoms of pain to her arms and legs. The medical evidence relates the development of this condition to the original physical injury to the back, albeit that many of the symptoms developed after Ms Phelan left her employment.
I find the evidence of Dr Lam persuasive as to Ms Phelan’s chronic pain condition. He saw her shortly after her initial injury and continued to monitor and treat her for pain over a number of months. Dr Price, Dr Matalani and Dr Stenning support the diagnosis of CRPS in addition to the injury to Ms Phelan’s lumbar spine. Overwhelmingly the weight of evidence supports the conclusion that Ms Phelan continues to suffer from CRPS, which was caused by her initial back injury. This encompasses her symptoms of pain to her neck, arms and legs.
Loss of Sexual Function
The evidence in relation to this claim is referred to, in part, above. Ms Phelan reports loss of sexual function. The medical reports in relation to this condition are inconsistent in their accounts of its history, severity and symptoms. Ms Phelan makes no reference to loss of sexual function in her statement of 7 August 2002. Dr Leung, her treating General Practitioner, makes no report of loss of sexual function in September 2002. Dr Lowy saw Ms Phelan in October 2003 and reports a history of loss of libido due to pain, following the original injury to her back. Dr Nash in January 2004 makes no reference to symptoms of sexual dysfunction in the body of his report however has issued a subsequent report with an assessment of 10% loss of sexual function. Dr Prince in January 2003 makes no record or report of symptoms of loss of sexual function.
The weight of evidence is that Ms Phelan has chronic pain, which she has occasionally reported has affected her sexual function. These facts are accepted. However whether Ms Phelan has a permanent loss of sexual function as a result of her injury is unclear.
In my view this is a matter that should be referred for the opinion of an Approved Medical Specialist. If she has such a loss arising from the original injury to her back then clearly the employer will be liable pursuant to the 1987 Act.
Psychological Injury
Ms Phelan has claimed to suffer anxiety, depression and other psychological symptoms as a result of her injury. Her legal representative has not clearly articulated this aspect of her claim. The medical evidence, in particular that of Dr Hampshire and Dr White, both psychiatrists, is not clearly expressed in relation to whether Ms Phelan’s psychological symptoms represent a different and distinct disorder from her CRPS, or are part of the same condition.
The Arbitrator accepted that Ms Phelan gave a genuine account of her symptoms and that Ms Phelan’s “perceived symptoms cause her considerable inconvenience”. She found Dr Hampshire’s description of Ms Phelan’s psychological symptoms to be consistent with Ms Phelan’s presentation at the conciliation/arbitration and consistent with the account she gave of her symptoms. In making this observation as to Ms Phelan’s presentation the Arbitrator was not substituting her own opinion for that of Dr Hampshire or of other medical experts whose evidence was before her. The Arbitrator was obliged to weigh Ms Phelan’s evidence along with the medical evidence and to exercise her discretion as to its probity. She also accepted the evidence of Dr Hampshire and Dr White, that Ms Phelan was not always a “good historian . . . and also that her complaints have at times been inconsistent and also exaggerated” (at paragraph 29 of the reasons).
The difficulty that arises from a consideration of Ms Phelan’s evidence and the whole of the expert medical evidence is that there is considerable overlap in the diagnosis of a ‘Pain Disorder’ and a ‘Somatic Disorder’. The symptoms suffered by Ms Phelan are described as anxiety, depression, physical pain without apparent organic cause, emotional distress and “impairment both socially, occupationally and inter personally” (Dr Hampshire’s report). These appear to be relevant to both CPRS and a Somatic Disorder, albeit that they both have a psychological element. The expert opinion of Dr Hampshire is that Ms Phelan is suffering a number of ‘Somatoform Disorders’. He also appears, although this is not clear, to distinguish between Ms Phelan’s ‘Somatoform Disorder’ and her ‘Pain Disorder’.
The Arbitrator purported to accept Dr White’s definition of a ‘Somatoform Disorder’. Dr White distinguishes CRPS from ‘abnormal illness behaviour’ or ‘somatoform disorders’. The Arbitrator found that there was no evidence that her work had contributed to Ms Phelan’s psychiatric condition, which in turn gave rise to her physical symptoms. She found that Ms Phelan’s physical complaints:
“. . . would have been very likely to arise whether Ms Phelan had been employed by this employer or not. Dr Hampshire’s evidence leads to this conclusion. Nor is there evidence that her employment is a cause of her depressive symptoms which are clearly long standing on the basis of Dr Leung’s records” (at paragraph 28 of the reasons).
Ms Phelan takes particular issue with the Arbitrator’s consideration of Dr Hampshire’s report. She argues that the Arbitrator misunderstood or misinterpreted Dr Hampshire’s report of 5 April 2004 in stating that it led to the conclusion that Ms Phelan’s ‘Somatoform Disorder’ was likely to arise whether or not she had been employed by Formula 1. The Arbitrator set out a lengthy extract from Dr Hampshire’s report and considered that it “seems to provide the best explanation of what is occurring with Ms Phelan and is the most consistent with all of the other medical evidence-although he was not in possession of much of it when he wrote his report”(paragraph 27 of the reasons). The Arbitrator states in her reasons that she prefers Dr Hampshire’s evidence to Dr White’s. She accepts his opinion as to Ms Phelan’s diagnosis, i.e. that she is suffering “from a number of Somatoform Disorders”. Dr Hampshire was also of the view that Ms Phelan had an “Adjustment Disorder with Depressed Mood”.
Having considered the whole of the medical evidence, including the reports of Dr Hampshire and Dr White, report of Adrienne Margarian, Consultant Psychologist, numerous reports of Dr Lam and rehabilitation reports, I find that it was not open to the Arbitrator to conclude that the ‘Somatoform Disorder’ suffered by Ms Phelan was not directly caused by her injury to her back. The evidence does not support this finding. All of the medical evidence supports the view that physical symptoms do indeed “trigger” this type of psychological condition.
Ms Phelan’s evidence as to her symptoms is not contradicted. It is particularly difficult to interpret the medical evidence in relation to Ms Phelan’s claim to a psychological disorder because no medical expert states with absolute clarity that such a disorder is separate, and distinct, from her condition of CRPS. Ultimately I accept as persuasive the evidence of Dr Hampshire and Dr Moorthy as to Ms Phelan’s psychological condition, in addition to a pain disorder, diagnosed by other specialists and discussed above, namely CRPS. There is a high level of agreement between them as to the existence of her psychological condition, i.e. ‘Somatoform Disorder’ albeit with different views as to the degree of “embellishment” that has accompanied her symptoms. I note that Dr White did not consider Ms Phelan to have a ‘Somatoform Disorder’ but rather that she displayed abnormal illness behaviour in the form of exaggeration of her symptoms. In my view the medical opinions of Dr Moorthy and Dr Hampshire appear to be based upon Ms Phelan’s account of her symptoms, are persuasive in terms of the explanation of those symptoms and support her claim to two conditions, namely CRPS, and a secondary psychological ‘Somatoform Disorder’.
Dr Moorthy, in his report of 15 September 2003, gave a diagnosis of “adjustment disorder with depressive and anxiety features”. He describes her history and symptoms as she reported them to him. He reports on her symptoms of depression, anxiety and pain, causing her serious physical symptoms in virtually all body systems. He concluded that her psychological injury was secondary to her physical condition of chronic pain, which was due to her work injury. However Dr Moorthy was of the view that Ms Phelan had no permanent loss attributable to her psychological injury, had not reached maximum medical improvement, and should obtain further specialist opinion as to her ongoing loss and inability to work.
Dr Hampshire also distinguishes between Ms Phelan’s pain condition/disorder and her psychiatric condition. He outlines Ms Phelan’s clinical and family history, and his findings on a “Mental State Examination”. He describes a very difficult family life and a high level of depression. He states that her “Somatization Disorder and her Pain Disorder, appeared while she was working for Formula 1 Motel and accelerated significantly in the 1 ½ years after she ceased work”. He makes the causative link between Ms Phelan’s claimed physical injuries, as a result of heavy lifting in her housekeeping work, and the reactionary development of her ‘Somatoform Disorder’.
I do not accept the opinion of Dr Carr, which seems at odds with the weight of other opinion as to Ms Phelan’s current conditions. Nor do I accept the opinion of Dr White, which is based upon his finding that Ms Phelan exaggerated in her report of her symptoms.
On balance, I find that Ms Phelan suffered from a distinct psychological condition, diagnosed as a ‘Somatoform Disorder’ that was caused by the original work injury to her back. This is separate to her condition of CPRS.
In terms of the outcome of Ms Phelan’s claim, the exact description of her psychological condition, whether encompassed in the diagnosis of ‘Somatoform Disorder’ or ‘Depressive Disorder’ or ‘’Conversion Disorder’ or ‘Adjustment Disorder’, is less relevant than the fact that it was a ‘secondary psychological injury’ to the original work related injury to her back. This is discussed below.
Did the Arbitrator err in the application of section 9A of the Workers Compensation Act 1987?
Whether employment was a ‘substantial contributing factor’ to a worker’s injury is a matter for determination on the facts of each case taking into account the factors in section 9A of the 1987 Act, which provides as follows:
“(1) No compensation is payable under this Act in respect of an injury unless the employment concerned was a substantial contributing factor to the injury.
(2) The following are examples of matters to be taken into account for the purposes of determining whether a worker’s employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination):
(a) the time and place of the injury,
(b) the nature of the work performed and the particular tasks of that work,
(c) the duration of the employment,
(d) the probability that the injury or a similar injury would have happened anyway at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had worked in that employment,
(e) the worker’s state of health before the injury and the existence or any hereditary risks,(f) the worker’s lifestyle and his or her activities outside the workplace”.
The Arbitrator found that Ms Phelan’s work at Formula 1 was not a ‘substantial contributing factor’ to her “current physical complaints” (at paragraph 28 of the reasons). This finding is primarily based on the finding that Ms Phelan’s only work ‘injury’ is a soft tissue injury to her back, which has completely resolved.
The Arbitrator, in the alternative, applied the test of ‘substantial contributing factor’ to the ‘Somatoform Disorder’ suffered by Ms Phelan. She found that, even if Ms Phelan’s psychological disorder, being a ‘Somatoform Disorder’ was “triggered” by her work injury, her employment was not a substantial contributing factor to it. She did not consider whether this was a compensable injury and the relevance of section 65A of the 1987 Act. This may be because she did not determine a date of injury.
Ms Phelan submits that the only real dispute between the parties, and the only issue raised by the Insurer was whether her employment with Formula 1 was a ‘substantial contributing factor’ to her injury. The Arbitrator thus, arguably, did not have “proper regard to the way the case had developed”. The Insurer submits that there was no admission as to ‘injury’ or ‘substantial contributing factor’ and that any payments made to Ms Phelan had been voluntary. It submits that the Arbitrator correctly identified the relevant and persuasive evidence to these two issues. In any event the issue of whether Ms Phelan had suffered an injury to which work was a ‘substantial contributing factor’ was a matter for the Arbitrator to decide before she could proceed to make any award in favour of Ms Phelan and is at issue on the appeal.
Ms Phelan argues that her employment was a ‘substantial contributing factor’ to her back injury and thus the subsequent conditions, both physical and psychological, which were causatively related to the back injury. She argues that: she suffered an injury while physically at work, she was performing manual work that was physically demanding for six days per week, there was no evidence of previous injury and no evidence that her lifestyle or activities outside of work caused or contributed to her injury.
There is no evidence to dispute Ms Phelan’s claim to have injured her back at work in early 2002 and I do not take the Insurer to be seriously disputing this. The injury occurred when she was at work. The nature of her work as a cleaner involved bending, twisting and lifting and clearly had the capacity to affect such an injury. Nothing adverse can be made of the fact that she had been working for Formula 1 as a cleaner since August 2002 when the injury occurred. There is no evidence that the injury would have occurred anyway at the same time. There is no evidence of prior back conditions or susceptibilities. She reports no complaint of chronic pain prior to the injury.
The Arbitrator erred in finding that Ms Phelan’s employment was not a ‘substantial contributing factor’ to her injury.
Assessment of Permanent Impairment
Ms Phelan’s legal adviser has framed her claim for permanent impairment according to the assessment methods set out in both the ‘Table of Disabilities’ (effective to 31 December 2001) and ‘Whole Person Impairment’ (effective 1 January 2002). The ‘WorkCover Guides for the Evaluation of Permanent Impairment’ lists CPRS under ‘Chapter 5 Nervous System’ and directs that it be assessed “using the method indicated in AMA5 Chapter 16, The Upper Extremities (pp495-497)” (at page 30 of the Guides).
Having found that Ms Phelan’s injury arose after 1 January 2002, it follows that she must be assessed by an Approved Medical Specialist according to the ‘Whole Person Impairment’ method.
Despite the plethora of medical evidence in this matter there is no conclusive evidence as to whether Ms Phelan’s CRPS is a permanent impairment. There are numerous rehabilitation reports that suggest a poor prognosis. This is a matter that should be assessed by an Approved Medical Specialist, pursuant to section 326 of the 1998 Act, along with an assessment of the degree of permanent impairment as a result of the injury, the contribution of any previous injury or pre-existing conditions and whether the degree of permanent impairment is ascertainable, whose opinion on the issue is binding.
As and from 1 January 2002 section 65A of the 1987 Act has effect and provides as follows:
“65A Special provisions for psychological and psychiatric injury
(1) No compensation is payable under this Division (either as permanent impairment compensation or pain and suffering compensation) in respect of permanent impairment that results from a secondary psychological injury.
Note. This does not prevent a secondary psychological injury from being compensated under section 67 as pain and suffering resulting from permanent impairment (but only if that permanent impairment results from a physical injury or a primary psychological injury).
(2) In assessing the degree of permanent impairment that results from a physical injury or primary psychological injury, no regard is to be had to any impairment or symptoms resulting from a secondary psychological injury.
(3) No compensation is payable under this Division (either as permanent impairment compensation or pain and suffering compensation) in respect of permanent impairment that results from a primary psychological injury unless the degree of permanent impairment resulting from the primary psychological injury is at least 15%.
(4) If a worker receives a primary psychological injury and a physical injury, arising out of the same incident, the worker is only entitled to receive compensation under this Division in respect of impairment resulting from one of those injuries, and for that purpose the following provisions apply:(a) the degree of permanent impairment that results from the primary psychological injury is to be assessed separately from the degree of permanent impairment that results from the physical injury (despite section 65 (2)),
(b) the worker is entitled to receive compensation under this Division for impairment resulting from whichever injury results in the greater amount of compensation being payable to the worker under this Division (and is not entitled to receive compensation under this Division for impairment resulting from the other injury),(c) the question of which injury results in the greater amount of compensation is, in default of agreement, to be determined by the Commission.
(5) In this section:
primary psychological injury means a psychological injury that is not a secondary psychological injury.
psychological injury includes psychiatric injury.
secondary psychological injury means a psychological injury to the extent that it arises as a consequence of, or secondary to, a physical injury”.
On the evidence before me I conclude that Ms Phelan’s ‘Somatoform Disorder’ is a secondary psychological injury and is therefore not compensable pursuant to section 66 of the 1987 Act. She has also made a claim for compensation for lump sum compensation for pain and suffering under section 67 of the 1987 Act and her ‘Somatoform Disorder’, should be taken into account in the determination of that entitlement, if any. In order to make the section 67 assessment, an Approved Medical Specialist should therefore be asked to assess whether her psychological injury is permanent.
In summary there are a number of aspects to the ‘medical dispute’ in Ms Phelan’s claim that must now be referred to an AMS for assessment. They are, in relation to Ms Phelan’s CRPS and Loss of Sexual Function:
(a) the degree of permanent impairment as a result of her injury
(b) whether any proportion of the permanent impairment is due to any previous injury or pre-existing condition or abnormality,
(c) whether impairment is permanent and
(d) whether the degree of permanent impairment is fully ascertainable.
In relation to Ms Phelan’s ‘Somatoform Disorder’ it is not absolutely necessary to assess he degree of permanent impairment as no entitlement arises under section 66 of the 1987 Act. However such an assessment will be a relevant factor, along with the other matters referred to above, in order that they may be taken into account in an award, if any, for pain and suffering compensation pursuant to section 67 of the 1987 Act.
Summary
In summary:
· Ms Phelan suffered a ‘soft tissue’ ‘injury’ to her lumbar spine on 15 March 2002 that arose in the course of her employment as a housekeeper at the Formula 1 Motel in Casula.
· Her employment was a substantial contributing factor to this injury.
· The Insurer is liable to compensate Ms Phelan for this injury.
· As a result of her back injury Ms Phelan developed a condition diagnosed as ‘Complex Regional Pain Syndrome’, which manifested in pain to her back neck, legs and arms.
· As a result of her injury Ms Phelan claims to have permanent impairment in the nature of ‘loss of sexual function’.
· As a result of her injury Ms Phelan also developed a ‘Somatoform Disorder’. This is a ‘secondary psychological injury’ pursuant to section 65A and is not compensable under section 66 of the 1987 Act.
· The ‘medical dispute’ should be referred to an Approved Medical Specialist for assessment pursuant to section 326 of the 1998 Act, in accordance with these reasons.
· Following the issue of a Medical Assessment Certificate the matter should be referred to an Arbitrator for determination, including a determination of Ms Phelan’s entitlement, if any, to compensation for pain and suffering under section 67 of the 1987 Act.
Did the Arbitrator give adequate reasons for her decision?
Ms Phelan argues that the Arbitrator made an error of law by failing to provide adequate reasons for her decision. She submits that the reasons were confused and did not properly address the issues, nor make clear and necessary findings of fact.
The Insurer submits that the Arbitrator’s written reasons are adequate and in compliance with the duty to provide reasons found in section 294(2) of the 1998 Act and rule 73 of the Rules.
The Arbitrator had a statutory duty to give reasons and issued a written statement of reasons, dated 23 June 2005. Rule 73 provides that the Commission’s statement of reasons must include:
“(a)the findings on material questions of fact, referring to the evidence or other material on which those findings were based, and
(b) the Commission’s understanding of the applicable law, and
(c)the reasoning processes that lead the Commission to the conclusions it made”.
Justice Kirby in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56 described the duty to give reasons thus:
“The more significant the decision, the clearer the duty may be, the clearer the reasons should be and the clearer the consequences will be for the breach. Some decisions cry out for a clear explanation. Especially is this so where the legislature has recognised the need and imposed a duty to give reasons and where the decision is very important for the person affected and for others close to that person. In such a case, the duty to give reasons is one, which this Court should uphold. The just, rational and lawful administration of the law is at stake” (at paragraph 64).
There was an enormous amount of evidence filed in this matter and it was not necessary for the Arbitrator to refer to each and every document before her. Her task was to distill what she found to be relevant and probative to the matters in issue. This was made more difficult because of the volume of evidence filed by Ms Phelan and admitted in the proceedings.
The duty of a court to record evidence and give reasons for findings the consideration of evidence was discussed by Justice McColl in Hume v Walton [2005] NSWCA 148 as follows:
“The primary judge’s duty was not only to record the evidence but also to record the findings she made based on that evidence: Mifsud v Campbell (1991) 21 NSWLR 725 at 728. While the extent of that duty may depend upon the circumstances of the individual case (ibid), where there is disputed expert evidence, the ‘parties are entitled to have the judge enter into the issues canvassed before the Court and to an explanation by the judge as to why the judge prefers one case over the other’: Archibald v Byron Shire Council[2003] NSWCA 292; (2003) 129 LGERA 311 at [54] per Sheller JA (with whom Beazley JA agreed); see also Bright v Joodie Holdings No 2 Pty Ltd[2005] NSWCA 134 at [33] per Santow JA (with whom Sheller JA and Campbell AJA agreed)” ( at paragraph 69).”
Arguably the duty imposed upon an Arbitrator, who is obliged to act expeditiously and informally, is not as high as that imposed upon a Judge of a Court. The principles, nevertheless, are the same.
I accept Ms Phelan’s submission that the reasons are inadequate. It is not possible, reading the reasons as a whole and without combing it for error (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259), to extract from them the matters required by Rule 73. They do not address the totality of Ms Phelan’s claim with any specificity. Had the Arbitrator answered the questions she set herself at paragraph three of the reasons, in relation to each claimed injury, her legal and factual findings and conclusions would have been easier to distill.
I agree with Ms Phelan’s submission that a discussion (brief) of the evidence of Dr Rabone and Dr Moorthy would also have assisted. I note that, although specifically admitted at the telephone conference, there is also no reference in the reasons to the reports of Dr Carr and Dr Fearnside, and only a passing reference to the reports of Mr Nash and Dr Lowy. These reports were not insignificant or irrelevant to the issues and it was incumbent upon the Arbitrator to state her view of their probative value and persuasiveness. If she did consider them, and concluded that they were of little probative value or not persuasive in the face of other evidence, then this should have been set out in her reasons.
The Arbitrator has erred in failing to provide adequate reasons for the decision.
DECISION
The consequence of the above findings is that the decision of the Arbitrator must be revoked and a new decision made in its place. The ‘medical dispute’ must now be referred to an Approved Medical Specialist for assessment.
The decision of the Arbitrator is revoked and the following decision is made in its place:
On 15 March 2002 Ms Phelan suffered an injury, for which the Respondent is liable under the Workers Compensation Act 1987
The ‘medical dispute’ is remitted to the Registrar for referral to an Approved Medical Specialist for assessment in accordance with these reasons.
COSTS
Ms Phelan was successful in her appeal. The appropriate order is therefore:
The Respondent is to pay the costs of the appeal.
Dr Gabriel Fleming
Deputy President
18 August 2005
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DR GABRIEL FLEMING, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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