Prestige Property Pty Ltd v Rafiq
[2006] NSWWCCPD 355
•19 December 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Prestige Property Pty Ltd v Rafiq [2006] NSWWCCPD 355
APPELLANT: Prestige Property Pty Ltd
RESPONDENT: Suiad Rafiq
INSURER:Self Insured
FILE NUMBER: WCC15474-05
DATE OF ARBITRATOR’S DECISION: 24 February 2006
DATE OF APPEAL DECISION: 19 December 2006
SUBJECT MATTER OF DECISION: Weight of evidence; Arbitrator relying on his own experience.
PRESIDENTIAL MEMBER: Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION: Appellant: Turkslegal
Respondent: Sowden Akerman
ORDERS MADE ON APPEAL: The Arbitrator’s finding that the Respondent Worker suffered personal injury to her left shoulder in her fall from a ladder at her workplace on 13 March 2002 is revoked.
Paragraphs two, three and four of the Arbitrator’s decision dated 24 February 2006 are revoked and the following order made:
“The matter is remitted to a different Arbitrator for the Respondent Worker’s outstanding rights and entitlements under the Workers Compensation Act 1987 to be redetermined in accordance with the reasons in this decision.”
Paragraph one of the Arbitrator’s decision of 24 February 2006 has already been implemented and is confirmed.
Costs of the first Arbitration hearing are to follow the event of the second Arbitration.
No order as to costs of the appeal.
BACKGROUND TO THE APPEAL
On 21 March 2006 Prestige Property Pty Ltd (‘the Appellant Employer/Prestige’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 24 February 2006.
The Respondent to the Appeal is Suiad Rafiq (‘the Respondent Worker/Mrs Rafiq’).
On 17 October 2001 Mrs Rafiq sustained injury to her back and left knee when she slipped and fell in the course of her employment with the Appellant Employer. On 13 March 2002 she sustained further injuries when she fell from a ladder in the course of her employment. The exact nature and extent of the injuries sustained in the March 2002 fall is the subject of dispute. That the Respondent Worker injured her back, left knee and right shoulder is not disputed (Appellant Employer’s submissions, paragraph 17). However, the Appellant Employer contests any liability in respect of the left shoulder on the ground that it was not injured in the fall on 13 March 2002 or at all.
The matter was listed for conciliation and arbitration on 24 January 2006 when lengthy discussions took place about how the matter was to proceed. Oral evidence was taken from the Respondent Worker concerning when she first complained of pain in her left shoulder (transcript page one to six). A lengthy discussion then took place about the issues to be determined at the Arbitration hearing. Without resolving that issue, submissions were made (transcript page six to 16) as to whether the question of Mrs Rafiq’s incapacity for work should be referred to an Approved Medical Specialist (‘AMS’). The Arbitrator then gave reasons (‘the first decision’) set out at page 16 to 20 of transcript making various findings. His reasons dealt not only with the nature of the proposed referral to the AMS but also with whether the Respondent Worker had sustained any injury to her left shoulder in the March 2002 fall. Up to that point of the proceedings neither party had made submissions on that issue.
At the conclusion of his first decision the Arbitrator asked counsel for the Appellant Employer (Mr Newton) if he wished to be heard on the order the Arbitrator proposed making in respect of the Respondent Worker’s entitlement to expenses under section 60 of the Workers Compensation Act 1987 (‘the 1987 Act’) (transcript page 20 line 12). Mr Newton pointed out that neither he nor counsel for the Respondent Worker (Mr Dodd) had made any submissions on the question of injury to the left shoulder (transcript page 20 line 25). The Arbitrator then indicated that he was prepared to hear those submissions and invited Mr Newton to take instructions about making an application for a reconsideration under section 350(3) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) (transcript page 21 line 52). After seeking instructions Mr Newton applied for the Arbitrator’s first decision, relating to the left shoulder, to be rescinded and to be allowed to make submissions on the question of injury to the left shoulder (transcript page 22 line 43). That application was not opposed by Mr Dodd and was granted by the Arbitrator.
Both counsel then made lengthy submissions on the issue of whether the Respondent Worker had injured her left shoulder in the March 2002 fall. The Arbitrator again asked if Mr Newton wished to make submissions about his “intention to make an order under section 60” (transcript page 32 line 22). This was a clear reference to the Arbitrator’s previously stated intention “that there should be a general order that the respondent” pay the Respondent Worker’s expenses under section 60 of the 1987 Act (transcript page 19 line 34). Mr Newton declined to make any submissions in respect of the proposed order under section 60 (transcript page 32 line 25). The Arbitrator then delivered a second decision in which he rescinded that part of his first decision “in which any referral to the AMS would contain a reference to the left shoulder being injured on 13 March 2002” (transcript page 32 line 40).
In the course of his second decision the Arbitrator said that he accepted the sworn evidence of Mrs Rafiq to the effect that in the March 2002 fall she hurt her left shoulder (transcript page 33 line 24). He also indicated his intention to make an order under section 60. In the context of the earlier references to section 60, this must be seen as a reference to a ‘general order’ under that section.
A sealed Certificate of Determination dated 24 February 2006 was issued by the Commission. This document is in the same terms as an unsealed Certificate of Determination dated 24 January 2006. Attached to the Certificate of Determination is a document headed “Statement of Reasons – Extempore Orders” (‘Reasons’). That document gives a brief outline of the proceedings on 24 January 2006 and makes a finding that the Respondent Worker “suffered personal injury to her left shoulder in her fall from a ladder at her workplace on 13 March 2002” and adds that the reasons for the orders made were given orally at the conciliation and arbitration hearing and that a sound recording of the reasons is available to the parties. The Reasons referred to in the Certificate of Determination are the reasons set out in the transcript of 24 January 2006 referred to above. This transcript was forwarded to the parties on 10 November 2006 with a Direction inviting the parties to make any further submissions arising out of the transcript on or before 24 November 2006. Further submissions were received from the Appellant Employer on 23 November 2006 but no further submissions have been received from the Respondent Worker.
A “Request for Assessment of General Medical Dispute by Approved Medical Specialist” was prepared by the Arbitrator on 24 January 2006. That request noted that the Arbitrator had “determined in an Arbitration Hearing that the Applicant suffered personal injury to her left shoulder in her fall from a ladder at her workplace on 13 March 2002”. A Medical assessment Certificate (‘MAC’) was issued on 14 March 2006.
The Appellant Employer seeks leave to appeal the Arbitrator’s decision of 24 February 2006.
LEAVE TO APPEAL
Monetary Threshold
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
No award of compensation has yet been made in this case but the Arbitrator’s finding would result in the Respondent Worker receiving compensation under section 66 of the 1987 Act in respect of whole person impairment resulting from the alleged injury to her left shoulder in excess of $5,000.00. Therefore, the threshold in section 352(2)(a) is satisfied. As the whole of that compensation is “at issue” on appeal, the threshold in section 352(2)(b) is also satisfied.
Time
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.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 24 February 2006, records the Arbitrator’s findings and orders as follows:
“The findings made are as follows:
That the Applicant suffered personal injury to her left shoulder in her fall from a ladder at her workplace on 13 March 2002.
The orders made are as follows:
“1.The applicant is to attend an appointment with an Approved Medical Specialist for the purpose of a permanent impairment dispute and a general dispute regarding the capacity of the applicant to work.
2.The question of weekly payments of compensation will be further considered at the teleconference after receipt of the Medical Assessment Certificate and the advice of the Approved Medical Specialist in respect of the General Medical Dispute.
3.Respondent is to pay the applicant’s expenses under s60 of the Workers Compensation Act 1987.
4.Respondent is to pay the Applicant’s costs as agreed or assessed. This matter proceeded directly to Arbitration and there were complex issues involving an extensive review of the medical evidence. This matter is certified as being complex.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a)finding that the Respondent Worker injured her left shoulder when she fell on 13 March 2002;
(b)ignoring logically probative evidence in reaching his decision;
(c)making a finding that was against the weight of the evidence;
(d)allowing irrelevant considerations to influence his decision, namely, his own personal experience;
(e)forming his own opinion (based on his personal experience) about the nature of the Respondent Worker’s pathology;
(f)failing to give any reasons, other than relying on his own personal experience of shoulder tears, to support the finding that the Respondent Worker suffered an injury to her left shoulder on 13 March 2002;
(g)failing to exercise his discretion fairly or according to law in that he failed to take into account relevant and material considerations;
(h)failing to act according to equity, good conscience and the substantial merits of the case in that he had predetermined the matter before properly considering all of the evidence and submissions made by the parties;
(i)making a general order for the payment of section 60 expenses;
(j)failing to consider that there was a real issue as to the reasonable necessity for the Respondent Worker’s claimed treatment expenses, and
(k)failing to give any reasons, or adequate reasons, for his decision.
REVIEW
Before considering the issues in the current appeal it is appropriate to consider what is involved in a ‘review’. In Mayne Health Group t/as Nepean Private Hospital v Sarah Sandford [2002] NSWWCCPD 6 the Commission considered the nature of a review and held at [11]:
“A consideration of the nature of the hearing before the Arbitrator at first instance, of the broad powers, functions and discretions exercisable by the Arbitrator and of the express limitations on evidence before the ‘review’ under section 352, lend support to the view that the Commission has a specific and limited role on appeal (Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47 31 August 2000). It is not an ‘appeal’ in the strict sense, as the Commission can receive further evidence. Similarly it is not a ‘rehearing’ of the matter where the Commission is re-exercising the power of the Arbitrator at first instance by hearing the matter ‘de novo’ and coming to a fresh decision based on all the evidence available at that later time (Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47 31 August 2000; Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616). The ‘review’ is by way of rehearing where the powers of the Commission to confirm, revoke or substitute a new decision are exercisable only where it can be demonstrated that the original decision of the Arbitrator is affected by “. . some legal, factual or discretionary error” (Allesh v Maunz [2000] HCA 40 (3 August 2000)).”
Not every error by an Arbitrator will lead to the decision under review being set aside on appeal. In Snow Confectionary Pty Ltd v Askin [2004] NSWWCCPD 56 it was held at [15]:
“The error must be such that, but for it, a different decision should have been made (Section 294 of the 1998 Act; YG & GG v Minister for Community Services [2002] NSWCA 47; Absolon v NSW TAFE [1999] NSWCA 311). The jurisdiction of a Presidential member on appeal is to ‘review’ the decision of an Arbitrator. It is not intended that this review become a hearing de novo of the dispute (Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSWWCCPD 6, Ross v Zurich Workers Compensation Insurance [2002] NSWWCCPD 7).”
I intend to apply the above principles in determining the present appeal.
THE ARBITRATOR’S REASONS
In his second decision the Arbitrator noted:
· that he conceded “everything that Mr Newton has pointed out in relation to the medicals” (transcript page 32 line 43);
· there had been a delay in “bringing this matter forward” (transcript page 32 line 44);
· there was a small bursal surface tear of the supraspinatus tendon of the Respondent Worker’s left shoulder which he would describe as a “niggling nuisance” and in his experience in these matters such a tear “does not extend to the extent that someone would necessarily bring it to attention” (sic) (transcript page 32 line 53);
· the issue was brought to the general practitioner’s “attention and diagnosed in December 03” (sic) (transcript page 32 line 57);
· the Respondent Worker had other matters to deal with (transcript page 33 line two);
· the Respondent Worker’s original statement mentions injury to her “shoulders”;
· it’s not necessary to adopt the concept of Browne v Dunn (1894) 6 R 67 but in this case Mr Newton was given the opportunity to cross examine and “did not seize that opportunity” (transcript page 33 line 19);
· in all the circumstances he accepted the sworn evidence of the Respondent Worker to the effect that she hurt her left shoulder in the March 2002 fall (transcript page 33 line 23);
· the authority of Kooragang Cement Pty Ltd v Bates (1994) 10 NSWLR 452;
· what is required is a common sense evaluation of the causal chain and due regard to the statutory formula (transcript page 33 line 30);
· he proposed to take a common sense attitude to the matter and find that the left shoulder was injured in the March 2002 incident;
· the matter would be referred to an AMS, and
· the Respondent Worker should have the benefit of an order under section 60.
SUBMISSIONS AND FINDINGS
Appellant Employer’s Submissions
In respect of the finding of injury to the left shoulder the Appellant Employer submits that:
· the records from Sydney Hospital for 13 March 2002 record no complaint by Mrs Rafiq relating to her left shoulder;
· the Ambulance report dated 13 March 2002 makes no mention of a left shoulder injury or pain;
· the claim form completed by Mrs Rafiq on 10 August 2002 (‘the claim form’) makes no mention of injury to the left shoulder despite being “quite specific about other body parts injured” (Appellant Employer’s submissions paragraph 18(c));
· the physiotherapists consulted by Mrs Rafiq on 10 April and 2 July 2002 make no mention of left shoulder pain;
· Mrs Rafiq’s treating general practitioner, Dr Salem, makes no mention of left shoulder pain until 3 January 2003;
· Mrs Rafiq’s oral evidence was that she might have complained of her left shoulder to Dr Salem in June or July 2002;
· Dr Goldberg took no history of left shoulder complaints;
· Dr Mahony took no history of a left shoulder injury;
· Dr Murrell first recorded a history of left shoulder pain on 3 March 2003 when he noted Mrs Rafiq “is now getting discomfort in the left shoulder” (emphasis added), indicating that the complaints were of recent origin;
· the Respondent Worker did not tender any evidence from her treating doctors to support her allegation that her left shoulder pathology resulted from the fall in March 2002;
· the only support for the left shoulder claim is from Dr Davis, a doctor qualified by her solicitors and whose opinion was based on an incorrect history that Mrs Rafiq developed symptoms in her left shoulder immediately after the accident;
· the Arbitrator made a serious error of fact in accepting the evidence in Mrs Rafiq’s statement of 15 March 2005 when it conflicted with the contemporaneous records and the claim form;
· the Arbitrator did not explain why Mrs Rafiq’s later statement was to be preferred over the earlier claim form;
· the Arbitrator ignored probative evidence, namely, the claim form and the contemporaneous clinical records;
· the Arbitrator’s decision was against the weight of the evidence and this constitutes an error of law (Australia Broadcasting Tribunal v Bond (1990) 170 CLR 321 (‘Bond’));
· the Arbitrator allowed irrelevant considerations (his personal experience) to influence his decision and, in doing so, acted on incorrect legal principles;
· the Arbitrator was wrong to decide this issue by reference to his personal experience. In doing so he went beyond the evidence and formed his own opinion on the nature of Mrs Rafiq’s pathology and symptoms. These were not matters of general knowledge of a specialist tribunal but were matters to be decided on the evidence;
· the Arbitrator was in breach of the principles set out in BHP Steel Pty Limited v Barbour [2004] NSWWCCPD 42 (‘Barbour’) where is was held at [27]:
“The proof of issues such as ‘injury’ and ‘causation’ must be discharged on the basis of evidence that complies with Rule 70. It would not be open to the Arbitrator to find, for example, that the worker suffered pain from an injury arising from the nature of his work, although the evidence was that he did not complain of it, simply on the basis that many people did not complain. Nor would it be permissible for an Arbitrator to find that a worker’s injury was long standing, when the evidence was of sudden onset, simply on the basis that ‘in general’ people did not complain of mild symptoms. These are not matters within the general knowledge of a specialised tribunal, but matters that must be decided on evidence in accordance with Rule 70 of the Commission’s Rules (Wallaby Grip (BAE) Pty Ltd (in Liq) v Macleay Area Health Service (1998) 17 NSW CCR 355).”
· the Arbitrator found in favour of Mrs Rafiq because, relying on his own personal experience of shoulder tears, the symptoms might not have been serious enough to cause Mrs Rafiq to bring it to the attention of a doctor. Mrs Rafiq’s did not give that evidence;
· the Arbitrator failed to give adequate reasons for his decision and failed to exercise his statutory duty to fairly and lawfully determine the application;
· the Arbitrator failed to take into account relevant and material considerations, in particular Mrs Rafiq’s inconsistent statements;
· the Arbitrator had predetermined the matter before properly considering all of the evidence and the submissions;
· it is apparent from the speed with which the Arbitrator delivered his Reasons that he had no interest in considering whether there was any basis for the Appellant Employer’s submissions;
· the Arbitrator did not take a few minutes to consider the long and detailed clinical history which was put to him or the inconsistencies in the evidence;
· justice must be done and be seen to be done. That does not happen when an Arbitrator does not take a few minutes to go through a long and complex history, particularly in circumstances where the Arbitrator had already made a mistake in determining the matter without hearing the parties on the issue of injury, and
· the order that Mrs Rafiq be referred to an AMS should be set aside and a new referral be arranged after the dispute in respect of injury to the left shoulder has been determined.
In respect of the claim for section 60 expenses the Appellant Employer submits:
· the Arbitrator erred in his application of the law to section 60;
· the Arbitrator mistakenly believed that if he found in favour of Mrs Rafiq on the issue of injury to the left shoulder, it would automatically follow that he should order payment of section 60 expenses;
· the Arbitrator failed to consider that there was a real issue as to the reasonable necessity for treatment expenses, both in relation to the left shoulder and the other body parts claimed, as the Appellant Employer had declined liability for further treatment expenses on the basis of evidence that there was no longer any reasonable necessity for treatment resulting from the work injury;
· the Arbitrator failed to direct his attention to the evidence on the issue of whether the claimed section 60 expenses were reasonably necessary as a result of the conceded work injuries;
· the Arbitrator failed to give any or any adequate reasons for his decision on this issue;
· the Arbitrator did not consider the competing evidence on this issue;
· the Appellant Employer relied on evidence that indicated that Mrs Rafiq had fully recovered from the effects of the work injuries she sustained and there was no longer any need for ongoing treatment resulting from those work injuries;
· the Arbitrator should have determined liability for each section 60 expense claimed rather than make a general order, and
· the general order for the payment of section 60 expenses should be rescinded and the Arbitrator should be asked to determine liability for the expenses claimed according to law.
Respondent Worker’s Submissions
In respect of the injury to the left shoulder the Respondent Worker submits:
· Mrs Rafiq gave sworn evidence that she injured her left shoulder in the fall on 13 March 2002 and made complaints to her general practitioner, Dr Salem, but had sustained much more substantial injuries to her right shoulder and back in that incident;
· Dr Davis is a well respected occupational physician and injury management consultant;
· the contemporaneous clinical records and Mrs Rafiq’s claim form did not indicate that the left shoulder was not injured in the fall, but merely that it had been omitted from those documents. It was for the Arbitrator to determine whether to accept Mrs Rafiq’s sworn evidence regarding injury to her left shoulder when it had not been mentioned in those documents;
· that a tribunal of fact prefers one aspect of evidence rather than another is not an error of law. Arbitrators’ have to assess and determine conflicting evidence every day. In this case the Arbitrator had the benefit of Mrs Rafiq’s statement, her sworn evidence and “extensive cross examination by experienced counsel” (Respondent Worker’s submissions paragraph 22). He formed his own view regarding the veracity of that evidence and that should not be lightly interfered with on appeal (Abalos v Australia Postal Commission (1990) 171 CLR 167 (‘Abalos’));
· in mentioning his own experience the Arbitrator was referring to Mrs Rafiq’s evidence as to why she did not advise her treating doctors of her problems with her left shoulder. This evidence is given against a background of Mrs Rafiq having significant problems with her right shoulder, back and left knee;
· the MAC issued on 14 March 2006 can still stand even if the Arbitrator’s finding of injury to the left shoulder is rescinded. As the left shoulder has been separately assessed, it can simply be deleted from the MAC;
· there is no indication that the Arbitrator predetermined the matter. He was in possession of all documentary evidence and had earlier conducted a teleconference between the parties. He had seen Mrs Rafiq give oral evidence;
· no inference can be drawn from the speed at which the Arbitrator made his decision. He was aware of the issues and the evidence. The simple question for him was whether he accepted Mrs Rafiq’s sworn evidence and her medical case or the evidence called by the Appellant Employer. This depended on his acceptance of Mrs Rafiq veracity as a witness. This was a simple ‘yes/no’ decision which did not involve significant additional analysis;
In respect of the section 60 expenses the Respondent Worker submits:
· as only a general order was made for the payment of section 60 expenses it is a matter for discussion between the parties as to which of the claimed expenses are reasonably necessary treatment as a result of the Respondent Worker’s found injuries;
· the matter has not concluded (the claim for weekly and lump compensation remains to be determined) and, therefore, if the claimed section 60 expenses are not agreed they can be determined at the further conciliation and arbitration hearing for weekly compensation, and
· the expenses for treatment of Mrs Rafiq’s carpal tunnel syndrome are not pressed as being work related.
Overall, it is submitted that the appeal should not be upheld as the Commission would effectively be “second guessing” the Arbitrator without the benefit of having seen Mrs Rafiq give evidence on oath.
DISCUSSION AND FINDINGS
The Left Shoulder
Mrs Rafiq’s evidence about her left shoulder injury is in her statement of 15 March 2005. At paragraph 18 she said:
“On 13 March 2002 I was helping a fellow worker to place cardboard into a compactor. The compactor jammed and I climbed a ladder to try to clear the blockage. Both feet slipped and I fell onto an iron object used to push waste into the compactor and also fell onto the concrete floor. I struck the floor with my elbows and knees. I was unable to get up from the floor and was helped by a cleaner. I was taken by ambulance to Sydney Hospital. At the time of the accident I experienced very bad pain in my knees, shoulders, elbows and low back. I also had bruising all over my body.”
In her oral evidence before the Arbitrator Mrs Rafiq agreed that her statement was true and correct (transcript page one line 55). Mrs Rafiq was asked if she told Drs Salem or Murrell or anyone at Sydney Hospital “about the problems with your left shoulder” to which she responded that she told Dr Salem (transcript page five line five). She was then asked:
“Q. Okay. Now, do you recall when it was that you first told Dr Salem about problems with your left shoulder? I’m asking when.
A. I don’t remember. You know, after the fall I don’t remember the date. About one month after also I had the operation I said ‑‑Q. Sorry, about one month after the operation?
A. One month, two months, yes. I said, ‘This is also I have got aching.’Q. Okay. Is the operation you referred to the first operation to your right shoulder carried out by Dr Murrell on 7 May 2002?
A. Yes.Q. Is that right?
A. Yes.Q. So in terms of when you told Dr Salem, then it was some time, on what you’ve
just told us, in June or July of 2002 you told Dr Salem. Is that what you're saying?
A. Yeah. It may be earlier because [inaudible].Q. About then?
A. Yes.” (emphasis added)
Contrary to the Respondent Worker’s submissions, she was not cross examined on her evidence. In normal circumstances where a witness is not cross examined that will often lead to the result that that witness’s evidence will be accepted because it is unchallenged. However, in matters before the Commission, that is not so because cross examination is often not permitted. The rule in Brown v Dunne is not a rule of evidence but is a rule of procedural fairness. It requires that, unless notice has been clearly given of the cross-examiner’s intention to rely upon certain matters, it is necessary to put to an opponent’s witness in cross examination the nature of the case upon which it is proposed to rely in contradiction of his evidence (Archer v Richard Crookes Constructions Pty Ltd (1997) 15 NSWCCR 297. It does not require that matters about which notice has already been given be put in cross examination (Daw v Toyworld Pty Ltd (2001) 21 NSWCCR 389). In Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 Hunt J (at 18F) identified two aspects of the ‘rule’ in Browne v Dunn. The first was described as “a rule of practice or procedure, based upon general principles of fairness”; the second was described as “a rule relating to the weight or cogency of the evidence” (see also State Rail Authority of NSW v Brown [2006] NSWCA 220 per Basten JA at [54]).
Neither ‘rule’ can be strictly applied in the Commission because all evidence must be filed with the Application or the Reply and late evidence is only allowed by leave. The issues to be determined are, or should be, set out in those documents or at the teleconference stage of the proceedings. Cross examination is only allowed in limited circumstances (see Electrolux Home Products Pty Limited v Richey & Email Limited [2006] NSWWCCPD 242). The issue of whether Mrs Rafiq injured her left shoulder in the March 2002 fall was always alive in this case. That was clear on the face of the Reply and every other document tendered in evidence. In these circumstances it seems reasonable to conclude that Mrs Rafiq was ‘on notice’ that injury to her left shoulder and when she first mentioned that injury and the symptoms from it were always issues in the case. Counsel for Mrs Rafiq has not contended otherwise, either before the Arbitrator or on appeal. Therefore, it was not essential (as a matter of fairness to Mrs Rafiq) that the she be cross examined in order to comply with the rule. However, it certainly would have been prudent, in a case such as the present, where the Appellant Employer was effectively saying that the worker lied when she said she injured her left shoulder in the March 2002 fall and where the Arbitrator invited cross examination, if Mrs Rafiq had been cross examined. By not cross examining when the Arbitrator gave counsel for the Appellant Employer the opportunity to do so the tribunal was deprived of the opportunity of hearing if Mrs Rafiq had an explanation for the lack of complaint about her left shoulder until several months after the fall.
In these circumstances it is hardly surprising that the Arbitrator accepted Mrs Rafiq evidence. The fact that Mr Newton did not cross examine was obviously one factor that influenced the Arbitrator because at page 33 line 20 he noted that Mr Newton “did not seize” the opportunity to cross examine Mrs Rafiq. The Arbitrator then said:
“In all the circumstances I propose to accept the sworn evidence of the applicant to the effect that in the fall she hurt her shoulder.”
The Arbitrator was entitled to take into account the fact that counsel for the Appellant Employer did not cross examine Mrs Rafiq when he was given that opportunity. However, I do not believe that is the end of the matter because there were other factors the Arbitrator either did not consider or improperly considered.
Mrs Rafiq’s sworn evidence was very limited. It consisted of her confirming her statement of March 2005 and claiming that she had mentioned ‘aching’ in her left shoulder to Dr Salem in June or July 2002. A bald answer on oath that ‘my statement is true and correct’ does not add any persuasive weight to the statement when that statement is otherwise deficient is several key respects. Mrs Rafiq’s oral evidence did not link the aching about which she told Dr Salem, to any trauma to the left shoulder in the March 2002 fall. She gave no explanation of how she might have injured her left shoulder in the fall. She gave no explanation for the absence of a complaint about her left shoulder in any of the documentary evidence in the case until the MRI in January 2003. Her oral evidence did not significantly advance her written statement. However, it did lend support to an argument first raised by Dr Cummine in his report of 16 September 2003 that after the surgery to her right shoulder on 7 May 2002:
“She returned to see her local doctor, and by this time, because she was favouring the right arm, she was developing symptoms in her left shoulder, and an ultrasound and x ray were carried out on this shoulder.” (emphasis added)
The reference to an ultrasound and x ray of the left shoulder is incorrect as the only investigation of the left shoulder is the MRI in January 2003. However, Dr Cummine’s comment is consistent with the report from Dr Murrell of 3 March 2003 that after a prolonged period of unsuccessful treatment to her right shoulder Mrs Rafiq was starting to develop discomfort in the left shoulder.
This evidence gives support to an argument that the left shoulder problem resulted from overuse of the left arm as a direct result of the undisputed right shoulder injury. This argument was not presented at the Arbitration hearing and I express no concluded view about it.
The Respondent Worker submits that she suffered much more substantial injuries to her right shoulder and back in the March 2002 fall and, by inference, that is the reason she did not make an earlier complaint about her left shoulder. That argument has some initial appeal but it is not supported by any evidence. Mrs Rafiq’s evidence gave no explanation for the delay in mentioning her left shoulder symptoms.
The Respondent Worker’s submission that the contemporaneous clinical records and the claim form do not indicate that the left shoulder was not injured is partly correct. However, those documents do indicate which parts were injured. The failure to mention injury to the left shoulder in them was an important factor that the Arbitrator failed to consider.
It is submitted that it was for the Arbitrator to weigh whether to accept Mrs Rafiq’s sworn evidence regarding the injury to her left shoulder when it had not been mentioned in contemporaneous documents. That is correct. However, the Arbitrator did not undertake that task. He merely said “I accept the sworn evidence of the applicant” when that evidence was inconsistent with other contemporaneous evidence. He failed to address the inconsistencies other than by reference to his experience or by reference to Mrs Rafiq having had “niggling nuisance” symptoms in her left shoulder. It was not permissible for the Arbitrator to determine the case by reference to his experience (see Barbour) and there was no evidence of the “niggling symptoms” to which the Arbitrator referred.
For a tribunal of fact to accept one aspect of evidence rather than another is not an error of law. Arbitrators are required to assess and decided between conflicting evidence every day. However, when performing that task an Arbitrator must act according to law and must consider all of the evidence. An Arbitrator must not take into account irrelevant matters, such as his or her personal experience. The Arbitrator was in error when he referred to his “experience in these matters” (transcript page 32 line 51) and used that experience to determine the matter rather than deciding it on the evidence before him. The full quote where the Arbitrator referred to his experience is at page 32 line 50 of the transcript:
“Now, Mr Newton rightly points out that it is a small tear, and my experience in these matters is that sometimes such a tear, whilst I would describe it as of a niggling nuisance, it does not extend to the extent that someone would necessarily bring it to attention (sic). I accept what he says, that the applicant didn’t report it to her GP, and I suppose in the medical evidence that I have before me he makes it clear that this issue was brought to his attention and diagnosed in December ’03 (sic).” (emphasis added)
There are a number of things to note about this passage. The first is the reference to the Arbitrator’s experience. Even if this was a reference to his experience as an Arbitrator and not to his general personal experience, an Arbitrator is not entitled to use that experience to fill in missing evidence. An Arbitrator may inform himself or herself of any matter under section 354(2) of the 1998 Act. In that event the Arbitrator must comply with the rules of procedural fairness and advise the parties so they have an opportunity to respond with further evidence or submissions (Paul Segaert Pty Limited t/as Lidco v Narayan [2006] NSWWCCPD 296 (‘Narayan’). In addition the Arbitrator must comply with Part 15 Rule 15.2 of the Workers Compensation Commission Rules 2006 (‘the Rules’) (formerly Rule 70 of the Workers Compensation Commission Rules 2003) which provide:
“When informing itself on any matter, the Commission is to bear in mind the
following principles:(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.”
The Arbitrator did not use the power available to him in section 354(2), did not comply with Part 15 Rule 15.2 of the Rules and did not comply with the rules of procedural fairness. Though the Arbitrator refers to Mrs Rafiq having “other matters to deal with” (transcript page 33 line three) he wrongly used his experience as an important factor in accepting Mrs Rafiq’s evidence and finding in her favour. In these circumstances the Arbitrator’s reference to his experience introduced an irrelevant matter into the adjudication process and he was in error in doing so (House v The King (1936) 55 CLR 499).
Second, there was no evidence that the left shoulder problem was a “niggling nuisance” prior to the first complaint to Dr Salem. There was no evidence as to why there was no complaint by Mrs Rafiq until several months after the March 2002 fall. By referring to his experience it seems to me that the Arbitrator was speculating and was using his experience in a way that is not permitted because it introduced matters that could not be met with contrary evidence or submissions. The reference to the left shoulder problem being a “niggling nuisance” was never advanced as a reason why no complaint was made until some months after the fall. It may well be that Mrs Rafiq was predominantly concerned with her right shoulder and her other injuries, but that explanation was never offered in her evidence and the Arbitrator was not entitled to speculate that that was the reason why there was a delay in her making a complaint to Dr Salem.
Third, Dr Salem’s report of 21 December 2005 refers to left shoulder pain and a “partial tear noted – Dec 03”. This is an error by the doctor because the partial tear was noted on the MRI scan dated 3 January 2003. The MRI scan was presumably arranged by Dr Salem because it was addressed to him.
In all the circumstances, and whilst I am mindful that an appellate tribunal should not lightly interfere with what is partly a credit based finding, the Arbitrator has “failed to exercise his discretion fairly and according to law” (Rohloff v Diacut Pty Limited (in liquidation) [2005] NSWWCCPD 17 at [26]) in that he has taken into account irrelevant material (namely, his personal experience) and failed to consider all of the relevant evidence (namely, the contemporaneous documents). Therefore, the Arbitrator’s finding that the Respondent Worker injured her left shoulder in the fall on 13 March 2002 must be revoked.
In light of the above errors it is not necessary for me to determine the other grounds of appeal but it is appropriate that I comment on the Appellant Employer submission that the Arbitrator had predetermined the matter before considering all the evidence.
The Arbitration hearing in this matter proceeded in a most unusual way with the Arbitrator giving one decision, then rescinding it, hearing further submissions, and giving a second decision. The second decision made the same finding as the first. The Appellant Employer argues on appeal that the Arbitrator predetermined the matter in his first decision. This may have some merit but the application for the Arbitrator to rescind the first order and reconsider the matter under section 350(3) was made by the Appellant Employer. Without deciding the issue, I have doubts about whether section 350(3) is intended to be used in the way it was applied in the present matter. A general discussion of the circumstances and manner in which section 350(3) is to be used is set out in Samuel v Sebel Furnture Limited [2006] NSWWCCCPD 141 at [58].
For the purposes of this appeal the point to be noted is that, knowing that the Arbitrator had already decided the left shoulder issue against it, it was the Appellant Employer that sought the reconsideration under section 350(3). In these circumstances it is not open on appeal to argue that the Arbitrator had predetermined the matter. An allegation that an Arbitrator has predetermined a matter is an allegation of apprehended bias (see Narayan at [52] to [58]). If the Appellant Employer had that concern it should have objected to the Arbitrator continuing to hear the matter after the first decision (Vakauta v Kelly (1989) 167 CLR 568 at 572 (‘Vakauta’) and lodged an appeal under section 352. A failure to object on the ground of apprehended bias will mean that the party has waived his or her right to object (Vakauta and Lindon v The Commonwealth (1996) 70 ALJR 541 at 548B). Therefore, the argument that the Arbitrator predetermined the matter cannot, given the authorities and the history of this matter, be raised on appeal.
Section 60 Expenses
The Application sought the payment of section hospital and medical expenses under 60 in the sum of $37,313.39 (see Part 4.2 of the Application). That amount was itemised in a schedule attached to the Application and headed “Out of Pocket Expenses” (‘the schedule’). The schedule included items totalling $28,244.26 that had already been paid by the Appellant Employer. It also included domestic items such as an Electrolux multi steamer, a massage machine and a dishwashing machine. By its Reply the Appellant Employer disputed that the claimed section 60 expenses were reasonably necessary as the result of any injury received by Mrs Rafiq in the course of or arising out of her employment with it.
In his first decision the Arbitrator said at page 19 line 32:
“I am also inclined to make a general order, Mr Newton, subject to hearing from you in relation to section 60, that there should be a general order that the respondent should pay the applicant’s expenses under section 60 pursuant to the Act, just that general order.”
At page 20 line 11 the Arbitrator asked Mr Newton if he wished to be heard on the proposed section 60 order. What then ensued was a lengthy discussion about the fact that the parties had not made submissions about the injury to the left shoulder. That discussion resulted in that part of the first decision referring the left shoulder to an AMS being rescinded and further submissions being made. At the end of those submissions the Arbitrator said to Mr Newton “do you wish to address me on my intention to make an order under section 60?” (transcript page 32 line 21). Mr Newton replied “No, sir”. The Arbitrator then gave his second decision. In the course of that decision the Arbitrator said in respect of the section 60 expenses:
“There being also a concession by the respondent in relation to the right arm and the back, I think it’s appropriate in this case that the applicant’s rights under section 60 ‑ she should have the benefit of an order by me, and I propose to make that order. That doesn’t necessarily mean that each and every expenditure, nor that the applicant should go off and start going to physiotherapy two or three times a week.” (transcript page 33 line 51)
In a case where liability for section 60 expenses has been denied and the application claims specific amounts it may well be that it is not appropriate for a ‘general order’ to be made for the payment of those expenses. However, in the present case counsel for the Appellant Employer twice declined to make submissions on the appropriate order to be made in respect of the medical and hospital expenses. In these circumstances it is surprising that the Appellant Employer seeks to argue on appeal that the Arbitrator was in error in making a ‘general order’.
The Respondent Worker submits that as the matter must be returned to determine her rights to weekly and lump sum compensation the issue of outstanding section 60 expenses can be determined at that time. Whilst this submission is eminently practical and sensible, it overlooks the fact that the section 60 expenses claimed in the Application are all disputed.
On appeal I have to decide whether the Arbitrator made an error of fact, law or discretion by making a ‘general order’. With considerably reluctance I have reached the conclusion that, in the circumstances of this case, the Arbitrator was in error in making a general order for the payment of section 60 expenses. Where section 60 expenses are itemised and liability for those expenses is declined it does not advance the resolution of the matter for a ‘general order’ to be made. What is required in that situation is a detailed consideration of the items claimed and a decision on whether any of them were reasonably necessary treatment as a result of the injury or injuries found. That was not done in this case.
Therefore, it is appropriate that the general order for the payment of section 60 expenses be revoked and for that part of the claim to be determined afresh along with the question of whether the Respondent Worker injured her left shoulder in or as a result of the fall in March 2002.
RELIEF SOUGHT
The Appellant Employer seeks that the Arbitrator’s order that Mrs Rafiq be referred to an AMS be set aside and substituted with a finding that the only injuries sustained by Mrs Rafiq were injuries to her back and left knee in the 17 October 2001 injury and her right shoulder, left knee and back in the 13 March 2002 injury. As the AMS examined Mrs Rafiq on 7 March 2006 and a MAC was issued on 14 March 2006, the order sought serves no useful purpose.
The Respondent Worker submits that if the Arbitrator’s finding regarding the left shoulder is set aside, the MAC can still stand as it has given separate assessments for each part of the body for which there is a claim. Therefore, if Mrs Rafiq is unsuccessful in respect of her left shoulder claim, that part of the MAC can be ignored. I agree with that submission. Each assessment in the MAC is clearly independent of the others. The assessment of the left upper limb depended solely on Mrs Rafiq left arm and shoulder symptoms. In these circumstances, if it is ultimately found that Mrs Rafiq is not entitled to compensation in respect of her left shoulder symptoms that part of the MAC will be of no effect.
Given that the Arbitrator impliedly made a finding as to Mrs Rafiq’s credit, it is not appropriate that I redetermine the claim for the left shoulder. In my view the only proper and fair course is for the claim for the left shoulder and section 60 expenses to be redetermined by a different Arbitrator at the same time as the claim for weekly and lump sum compensation is determined. That is the course I propose to adopt.
DECISION
The Arbitrator’s finding that the Respondent Worker suffered personal injury to her left shoulder in her fall from a ladder at her workplace on 13 March 2002 is revoked.
Paragraphs two, three and four of the Arbitrator’s decision dated 24 February 2006 are revoked and the following order made:
“The matter is remitted to a different Arbitrator for the Respondent Worker’s outstanding rights and entitlements under the Workers Compensation Act 1987 to be redetermined in accordance with the reasons in this decision.”
Paragraph one of the Arbitrator’s decision of 24 February 2006 has already been implemented and is confirmed.
COSTS
Costs of the first Arbitration hearing are to follow the event of the second Arbitration.
No order as to costs of the appeal.
Bill Roche
Deputy President
19 December 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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