Priest v Southern Cross University
[2005] NSWWCCPD 11
•24 February 2005
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Rowland v Colarado Group Limited t/as Mathers Shoes [2005] NSW WCC PD 11
APPELLANT: Tammy Marie Rowland
RESPONDENT: Colarado Group Limited t/as Mathers Shoes
INSURER:CGU Workers Compensation (NSW) Limited
FILE NUMBER: WCC6664-2003
DATE OF ARBITRATOR’S DECISION: 3 September 2004
DATE OF APPEAL DECISION: 24 February 2005
SUBJECT MATTER OF DECISION: Leave to file late evidence, Application of NSW Harness Racing Club Ltd v Forrest (1995) 12 NSWCCR 217).
PRESIDENTIAL MEMBER: Dr Gabriel Fleming, Deputy President.
HEARING:24 November 2004.
REPRESENTATION: Appellant: McCabe Partners Lawyers
Respondent: Moroney Betts Solicitors
ORDERS MADE ON APPEAL: The decision of the Arbitrator is confirmed.
Background to the Appeal
Tammy Rowland worked for three to four hours a week as a casual sales assistant at Mathers Shoes (Colarado Group Ltd t/as Mathers Shoes) in Young from November 2000. She earnt, on average, $45.12 per week. On 21 March 2001, while she was working, she fell from a stepladder and injured her right ankle and right knee. She finished her shift and later that day attended her doctor. She has not returned to work for Mathers Shoes, or any other employer, since.
Ms Rowland claims that she continues to be incapacitated by her injury and is entitled to payments of weekly compensation to date and continuing, medical and related expenses and lump sum compensation for permanent impairment. She claims compensation at the full weekly rate for a sales assistant in accordance with the Shop Employees State Award (an amount between $458.80 and $489.80 during the period 21 March 01 and the present). Ms Rowland claims that as a result of her injury she has suffered 25% permanent loss of efficient use of her right leg below the knee, 10% permanent impairment of her back and 20% impairment of her sexual organs.
Mathers paid Ms Rowland weekly compensation of $45.12 from 21 March 2001 to 30 December 2003. It contends that Ms Rowland’s incapacity ceased on that date.
In a Certificate of Determination dated 3 September 2004, a Commission Arbitrator found that Ms Rowland was entitled to: weekly compensation at the rate of $45.12 per week from 1 January 2003 to 30 April 2003; $3800 in respect of 5% permanent impairment of her right leg at or below the knee and reasonable medical expenses in relation to her injury. Ms Rowland’s claim for lump sum compensation in relation to loss of sexual organs remains to be determined, as does her claim for compensation for ‘pain and suffering’, interest on the award and costs.
Ms Rowland lodged an appeal against the Arbitrator’s decision on 13 September 2004. The powers of a Presidential Member of the Commission on appeal to confirm, or revoke a new decision and make a new decision in its place are exercisable only when it can be demonstrated that the decision of the Arbitrator is affected by legal, factual or discretionary error (Allesch v Maunz [2000] 203 CLR 172). Ms Rowland argues that the Arbitrator made a number of errors in the course of making her decision. These are, that the Arbitrator was wrong in:
· refusing to exercise her discretion to grant leave to allow Ms Rowland to file late evidence, being her statement dated 3 September 2004,
· not hearing oral evidence from Ms Rowland at the arbitration hearing, and
· failing to properly determine Ms Rowland’s entitlement to weekly compensation pursuant to section 40 of the Workers Compensation Act 1987 ( ‘the 1987 Act’), in particular failing to take into account evidence that her probable weekly earnings may have been greater than her pre-injury earnings (New South Wales Harness Racing Club Ltd v Forrest (1995) 12 NSWCCR 217) (‘Forrest’).
Ms Rowland wants the Arbitrator’s decision revoked and the matter remitted to another Arbitrator for proper determination.
The Employer submits that the decision should be confirmed.
I have before me all the documents filed in the original proceedings before the Arbitrator, and those filed in the appeal, including the written submissions from both parties. I also have before me a related file, numbered 17152-04 that is before the Commission pending the outcome of the appeal. A hearing of the appeal was held on 24 November 2004 and both parties made final submissions in late December 2004.
Leave to appeal is granted.
Did the Arbitrator err in refusing to admit Ms Rowland’s statement as late evidence and failing to hear oral evidence from Ms Rowland?
Rule 38 of the Workers Compensation Commission Rules 2003, provides that an Applicant must lodge with their application to the Commission, all information and documents upon which they intend to rely. The Arbitrator has discretion to allow the filing of late evidence where it is necessary for the “avoidance of injustice”. The factors that may be relevant to the exercise of this discretion were elaborated in ADCO Constructions Pty Ltd v Kenneth Ian Ferguson [2003] NSW WCC PD2. ‘The President’s Practice Direction No. 9 also sets out matters that are relevant to an application to admit late documents, namely:
·“the submissions of the parties, including, if any, oral or written objections to the grant of leave,
·the effect, if any, on the timely resolution of the dispute,
·the extent of the prejudice to the other parties, if any, that would result from granting leave,
·the requirements of the Act and the Rules, and
·the objectives of the Commission.”
Ultimately all of these factors must be considered in light of the overall imperative of the “avoidance of injustice” in the instant case (these issues were also considered in Australian Traineeship System (Cargill Meat Processes Pty Limited) v Ramage [2004] NSW WCC PD 31, and Barbour v BHP Steel Pty Limited [2004] NSW WCC PD 42; Klose v QAF Meat Industries Pty Ltd [2004] NSW WCC PD 37).
The lack of a written statement by Ms Rowland is not necessarily the end of the matter, in relation to her evidence. It was open to the Arbitrator, if the evidence of Ms Rowland was essential to a fair determination of the dispute, to dispense with the requirements of the Rules and grant leave for her to give oral evidence. This evidence would then have formed part of the transcript of the proceedings.
The Arbitrator sets out her reasons for refusing to allow Ms Rowland’s statement to be filed late at paragraphs 35-37 of the reasons. She expressly considered Ms Rowland’s submissions and the relevant factors, set out above. A teleconference was held in this matter on 12 June 2003. No application for late admission of the worker’s statement was made at that time. It was not until the matter was again before the Arbitrator on 30 August 2004, some fifteen months later, that Ms Rowland’s legal representative sought leave to file her statement late.
There is no evidence that it was Ms Rowland’s personal conduct that led to the failure to file her statement. Ms Rowland’s legal representative explains the delay by way of his own ignorance of the Commission’s procedures. Given that the Commission had been in operation since 1 January 2002, and that this representative regularly operates in this jurisdiction, this explanation is unsatisfactory.
Ms Rowland submits that in refusing to allow her to file a statement of evidence she was denied the opportunity to prove ‘a major plank in her case’ and consequently she suffered ‘substantial prejudice’. She claims that this prejudice cannot be remedied by other means as she is “the only source of the evidence” that is relevant to the issue. This ‘major plank’ in Ms Rowland’s case is that she is entitled, pursuant to the authority of Forrest to a higher rate of compensation than her pre-injury earnings, because they are not an appropriate guide. In Forrest the Court of Appeal held that in certain circumstances where it was difficult to estimate a worker’s probable earnings if he/she remained uninjured, for example, in the case of a young person starting out on a career or a traineeship, it may be appropriate to estimate probable earnings in some comparative employment, based on other evidence of the availability and likelihood of other employment.
I have read Ms Rowland’s statement, which refers to a conversation with Ms Tania McGuire, the manager of the shoe shop at the time she was employed. The alleged conversation is to the effect that Ms McGuire told her she was shortly to retire and asked if she would be “interested in being trained in a managerial position”. Ms Rowland asserts that it was always her intention to return to full-time employment when her children were older and that she would have “loved to [have] accepted the offer . . . . However, I am fully aware that I can no longer work in the sales assistance or managerial role in a shop, because I would be required to be on my feet all day”.
Ms Rowland submits that any prejudice occasioned to the Respondent by allowing the admission of her statement late, could be remedied by allowing the Respondent, in turn, the opportunity to file a statement from Ms McGuire regarding the same matters and allowing oral evidence and cross-examination on this evidence. These submissions reflect a fundamental lack of understanding of the Commission’s processes, as set out in the Workers compensation Common Rules 2003 (‘the Rules’) and the Commission’s Guideline on the ‘Practice of the Conciliation/Arbitration Process’ (which is readily available on the Commission’s website).
Proceedings in the Commission must be fair, just and timely. The Rules give effect to these objectives and require an Applicant and Respondent to file relevant evidence, in support of, and in opposition to, the claim, at the earliest time, namely with the filing of the ‘Application to Resolve a Dispute’ and the ‘Reply to the Application to Resolve a Dispute’. The Rules thereby ensure that both parties are aware of the other’s claims and are in a position, at the outset, to try and resolve the issues in dispute between them. The submissions made on behalf of Ms Rowland, that the statement should be admitted in August 2004 some nineteen months after her ‘Application to Resolve a Dispute’ was filed (in February 03-August 04), are untenable in the context of the Commission’s Rules and statutory objectives. It ignores the nature of the Commission’s proceedings and the very fact that the Rules are explicitly designed to ensure that justice and fairness is occasioned to all parties.
The demands of procedural fairness, in the context of Commission proceedings, do not mean that the Commission’s Rules may be ignored or avoided with impunity. The Rules provide a fair means by which a party is given the opportunity to present his or her case and it is not a denial of procedural fairness to expect compliance with them. Nor is it tenable to claim that any prejudice that results from this type of non-compliance with the Commission’s Rules is curable by an order for costs. Costs orders in the Commission are not at large; they are constrained by the relevant provisions of the 1998 Act (Part 8 of the 1998 Act).
I have given careful consideration to Ms Rowland’s submission as to the critical nature of her statement and the prejudice that she suffers from the Arbitrator’s refusal to admit it in the proceedings. I am not satisfied that, even if the statement were admitted, its contents are sufficient to bring her claim within the principles articulated by the Court of Appeal in Forrest.
The circumstances of the worker in Forrest presented a considerably more compelling argument for looking to other ‘comparable employment’ when considering the worker’s probable earnings but for the injury. Ms Forrest was aged 17 and injured herself driving in a trotting race. The Court accepted, as a matter of fact, that she was intent upon pursuing a career with horses and had been prevented from doing so by her injury.
Ms Rowland also relies upon the Court of Appeal decision of Department of School Education v Boyd (1996) 13 NSWCCR 289. In that case the Court of Appeal, considered that the worker’s express intention to engage in more casual employment than he had been prior to his injury was sufficient to enliven a higher award of weekly compensation under section 40. Justice Beazley took the view that “if in a given case the Court accepts, as a matter of fact, that an employee had an intention to engage in other work, that may be suficient for the purposes of section 40” (at 291), see also Lloyd v Northern Rivers Charity Racing Association [2001] NSWCC49).
On the facts of this matter I am not satisfied that the Arbitrator was obliged to apply the principles in Forrest, nor that she would have come to different decision had she done so. This is so, even if the Arbitrator admitted Ms Rowland’s statement, and accepted its truth. At the time she was injured Ms Rowland was a thirty-one year old woman and had three children. At the time of the alleged conversation with Ms McGuire, she was working casually, filling in the ‘lunch time’ shift at the shoe shop. There is no evidence that she had in fact worked any other shifts, nor sought to train for any other position in the shop. She was not undertaking any training program, nor was she part of any clear progressive, promotional or management structure that might imply promotion. Her statement expresses only a general intention to return to full time employment when her “children had grown up”. This is a vague statement attended by gross uncertainty as to a position becoming available, when it might be available and whether or not Ms Rowland would have had the necessary qualifications and experience to take up the job. Ms Rowland’s circumstances are not such that it is impracticable or unreasonable to calculate her probable earnings, but for injury, on the basis of her actual earnings prior to the injury. In my view the probative value of Ms Rowland’s statement was minimal. Given this, there was also no need to call Ms McGuire.
I agree with the Respondent’s submission that the Arbitrator’s decision to refuse to admit Ms Rowland’s statement was fair and reasonable, and was not an error. She took the relevant matters into account in considering whether it was in the interests of justice to allow Ms Rowland to file a late statement. This is not a case where the statement although filed late, was still filed in advance of a meeting with the Arbitrator, thereby causing minimum prejudice in terms of the progress of the matter (Barbour v BHP Steel Pty Limited [2004] NSW WCC PD 42). In my view the Arbitrator did not err in refusing to admit evidence.
Did the Arbitrator err in not hearing oral evidence from Ms Rowland at the arbitration hearing?
A telephone conference was held before the Arbitrator on 31 August 2004. The Arbitrator, in her reasons, refers to “Unsworn evidence of Tammy Marie Rowland [given] at the conference”. Both parties submit to me, on appeal, that Ms Rowland did not give any evidence at the teleconference. No recording was made of the telephone conference and therefore I am not in a position to independently verify the Arbitrator’s claim. In the circumstances I accept the agreed position of both parties, that Ms Rowland did not, in fact, give oral evidence. Indeed the Arbitrator’s alleged refusal to allow her to do so forms one of her grounds of appeal. This presents a difficulty in that the Arbitrator’s alleged error is in a decision she purports to have made in Ms Rowland’s favour. Ultimately I am not satisfied that this has a critical bearing on either the Arbitrator’s decision or the outcome of the appeal.
Having not filed her statement of evidence, Ms Rowland required leave to be given by the Arbitrator in order for her to give oral evidence. The Arbitrator, in her reasons, has relied exclusively on the evidence contained in the medical reports of the Approved Medical Specialists, Drs Parmegiani, Breslin and Lowy. Given the nature of Ms Rowland’s claim and the issues in dispute this was a reasonable approach to the determination of the dispute. The ‘Reply’ filed in the proceedings by the Respondent on 3 March 2003, identifies the issues in dispute as the “correct weekly benefit rate” and the “issue as to what injury the worker has and the extent of any incapacity”. This is not a case where Ms Rowland’s statement was essential to determine the legal parameters of ‘worker’ or ‘injury’ or ‘substantial contributing factor’. I have dealt with the proposition that Ms Rowland’s evidence was essential to the legal argument about the application of the Forrest case above. This matter is largely a medical dispute. The imperative to have a worker’s written statement or oral evidence must be decided according to the facts of each case and in accordance with principles of procedural fairness, in the context of the Commission’s statutory objectives, practices and procedures. In my view the Arbitrator did not err in not taking sworn oral evidence from Ms Rowland.
Did the Arbitrator err in refusing to hear oral evidence from Drs Meagher and Klug?
At the hearing of the appeal Ms Rowland’s legal representative raised objection to the Arbitrator’s decision not to call Drs Meagher and Klug to give oral evidence (paragraph 34 of the reasons).
I accept the Respondent’s submission that the Arbitrator did not err in refusing to call the doctors to give oral evidence. The reports were before her and they spoke for themselves. There was a plethora of medical evidence before the Arbitrator, including the reports of three Approved Medical Specialists. While these reports are only persuasive as to matters relevant to a claim for weekly benefits, they nonetheless form part of the evidentiary matrix that is before the Arbitrator.
Did the Arbitrator err in failing to properly determine Ms Rowland’s entitlement to weekly compensation pursuant to section 40 of the Workers Compensation Act 1987?
This issue is intimately connected to the argument about the application of Forrest, as discussed above. I am not satisfied that the facts of this case are sufficient to enliven the principle set out in that case, even if Ms Rowland’s statement was admitted in evidence before the Arbitrator.
The Arbitrator, in her reasons in relation to the award of weekly benefits, expressly relied upon the reports of Drs Lowy and Parmegiani in relation to the nature and period of incapacity suffered by Ms Rowland as a result of her fall on 21 March 2001. She was entitled to do so. Matters of relevance and weight of evidence are for the Arbitrator to determine, provided that her discretion is exercised fairly and lawfully. The Arbitrator in this instance had logical and probative evidence before her to justify the making of an award of weekly compensation from 1 January 2003 (the Respondent having ceased payments on 30 December 2002) to 30 April 2003. Ms Rowland’s earnings of $45.12 at the time she was injured, formed the relevant basis for the award of weekly compensation in relation to the probable earnings for partial incapacity pursuant to s 40(2)(a) of the 1987 Act.
The Arbitrator did not err in failing to properly determine Ms Rowland’s entitlement to weekly compensation pursuant to section 40 of the 1987 Act.
Referral to Dr Breslin for Further Assessment
This matter has been in the Commission for a considerable time and appears to have been attended by significant delays. All three ‘Medical Assessment Certificates’ were not finally received in the Commission until 1 December 2004. Ms Rowland then appealed to the Medical Appeal Panel in relation to the ‘Medical Assessment Certificate’ of Dr Breslin. The Panel confirmed his assessment on 23 June 2004. Dr Breslin took the view that Ms Rowland’s loss of sexual function was not stable and therefore could not be assessed in terms of percentage permanent impairment/loss. He opined, on 1 December 2003, that she “should be assessed in twelve months time”.
I note that the Respondent has now withdrawn its objection to the matter being referred back to Dr Breslin for a further medical assessment. I also note that there was some disagreement about the documents that were to be forwarded to Dr Breslin in relation to that assessment. In the period that this matter has been on foot there have been amendments to the Workers Compensation Regulation 2003 (Part 10, Clause 44A) in relation to these issues and also Presidential decisions on the relevant point (State Transit Authority of NSW v Dadras [2004] NSW WCC PD 87). If there remain any unresolved issues in relation to the referral to Dr Breslin, the parties should seek a conference before the Arbitrator prior to the referral.
Section 60 Expenses
On appeal Ms Rowland raised the issue of the payment of her medical expenses. The Arbitrator made a general order in her favour in relation to these. This was discussed at the hearing of the appeal and the Respondent did not dispute the order. I understand that any issues in relation to travelling and other related medical expenses are to be resolved between the parties. The Respondent did not raise any dispute about these claims at the hearing of the appeal.
Decision
The decision of the Arbitrator is confirmed.
Matter No 17152-04
Ms Rowland has filed another ‘Application to Resolve a Dispute’ in the Commission, seeking relief for essentially the same matters as are the subject of this appeal. This was filed due to some confusion about the correct way to proceed following the issue of Dr Breslin’s Medical Assessment Certificate. That matter should now be discontinued and Ms Rowland’s legal representatives are urged to file a ‘Notice of Discontinuance’ at the earliest possible time.
Dr Gabriel Fleming
Deputy President
24 February 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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