Printers, Envelopes & Business Forms Pty Ltd v Chand
[2004] NSWWCCPD 36
•24 June 2004
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Printers, Envelopes & Business Forms Pty Ltd v Chand [2004] NSWWCCPD 36
APPELLANT: Printers, Envelopes & Business Forms Pty Ltd
RESPONDENT: Saras Chand
INSURER:Employers Mutual Indemnity (Workers Compensation) Limited
FILE NUMBER: WCC 14586-03
DATE OF ARBITRATOR’S DECISION: 16 January 2004
DATE OF APPEAL DECISION: 24 June 2004
SUBJECT MATTER OF DECISION: Refusal to admit late documents, referral to Approved Medical Specialist.
PRESIDENTIAL MEMBER: Dr Gabriel Fleming, Acting President
HEARING:On the papers.
REPRESENTATION: Appellant: Neville & Edwards, Solicitors
Respondent: Eugene Lepore & Associates, Solicitors
ORDERS MADE ON APPEAL: The decision of the Arbitrator is confirmed.
THE APPEAL
On 11 February 2004 Printers, Envelopes & Business Forms Pty Ltd (‘the Employer/the Appellant Employer’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 16 January 2004.
The Respondent to the Appeal is Saras Chand (‘the Worker/the Respondent Worker’).
The appeal was referred to me for review on 21 June 2004.
ISSUE IN DISPUTE
The appeal concerns a decision by an Arbitrator to refuse to admit late evidence, namely medical and vocational assessment reports, filed by the Appellant Employer (who was the Respondent in proceedings before the Arbitrator).
The ‘Application to Resolve a Dispute’ was filed by the Worker on 12 September 2003.
The Employer filed a Reply on 23 September 2003. Part 4.2 of the Reply stated that a report from Dr Potter, Rheumatologist, dated 17 July 2003, was filed with the Reply. It also stated that reports from Dr Revai, Psychiatrist, and the Vocational Capacity Centre were to be filed on or before 14 October 2003 and 11 November 2003 respectively. The report of Dr Revai, dated 8 October 2003, was actually received in the Commission on 27 November 2003. Reports of the Vocational Capacity Centre were received on 22 December 2003.
The Workers Compensation Commission Rules 2003 (‘the Rules’) have strict requirements in relation to the filing of evidence. Practice Direction No. 9 assists legal practitioners and parties in relation to the procedure to be followed for lodgement of late documents, being either late evidence or a late reply to an Application to Resolve a Dispute.
The decision was made orally at a telephone conference and there is no transcript of the reasons for decision. The Commission file records that “the oral application sought by the Respondent for the late inclusion of material referred to in paragraph 4.2 of the Reply is dismissed, except any documents produced under a Direction to Produce”.
The only issue in dispute in this appeal is: Did the Arbitrator err in refusing to admit the late evidence filed by the Employer?
JURISDICTION
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
In this matter I am satisfied that:
·The appeal is filed within 28 days of the decision appealed against (section 352(4) of the 1998 Act).
·The amount of compensation at issue on the appeal is at least $5,000 (section 352(2)(a) of the 1998 Act),
·No amount was awarded in the decision appealed against and therefore section 352(2)(b) of the 1998 Act has no application (Mawson v Fletchers International Exports Pty Limited [2002] NSW WCC PD 5), and
·No new evidence is submitted in the appeal (section 352(6) of the 1998 Act).
Leave to appeal is granted.
ON THE PAPERS REVIEW
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.
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.
EVIDENCE AND SUBMISSIONS
As there is no record of the Arbitrator’s reasons for decision I am reliant upon the parties’ submissions as to what reasons were given orally.
The Appellant has submitted that the Arbitrator’s reason for rejecting the late evidence was that “they had not been obtained by the employer’s workers compensation insurer prior to the liability to pay compensation to the worker being declined”.
The Appellant submits that the reports were not ‘late documents’ and were filed in accordance with section 290(1) of the 1998 Act and Rule 40(2) of the Rules. There is, therefore, no ground for refusing their admission. In addition, the Appellant submits that it would suffer “unfair and incurable prejudice” if the late evidence was not forwarded to the Approved Medical Specialist for consideration in his or her medical assessment.
The Respondent’s legal representative has submitted that to allow the evidence to be admitted “would not only be outrageous, but would also amount to prejudice to the Applicant to the extreme”. This submission, without further elaboration, does not assist me in the determination of the appeal.
DISCUSSION AND FINDINGS
‘Review’, under section 352 of the 1998 Act, is by way of rehearing, where the powers of the Presidential Member 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 legal, factual or discretionary error (Allesch v Maunz [2000] 203 CLR 172).
The admission of evidence in proceedings in the Commission is to be distinguished from the referral of medical evidence to an Approved Medical Specialist. This issue is extensively canvassed in the decisions of Fletchers International Exports Pty Limited v Regan [2004] NSW WCC PD 7 and Podmore v Yarran Park Pty Ltd [2004] NSW WCC PD 25. In any event this issue is moot in this matter, as the Worker has been referred to an Approved Medical Specialist (‘AMS’) and attended an examination. The Commission file indicates that the late documents were sent to the AMS for consideration in making a medical assessment. A medical assessment certificate has not yet been issued (pursuant to section 325 of the 1998 Act). The parties’ remedy, if either is dissatisfied with that assessment, is to seek to appeal to a Medical Appeal Panel.
Rule 40 provides as follows:
40Material to be lodged by respondent
(1)For the purposes of section 290 of the 1998 Act, the respondent must lodge and serve with the reply all information and documents on which the respondent proposes to rely that have not been lodged with the application to resolve a dispute in the proceedings and that are in the possession or control of the respondent at that time.
(2)Subject to subrules (3) – (5), a respondent may not in proceedings introduce evidence that has not been lodged with the application to resolve a dispute, reply or response, or as required by rule 44, in the proceedings unless:
(a) the respondent has lodged and served with the reply a statement revealing:
(i)the specific nature of the evidence, and
(ii)the reliance the respondent intends to place on the evidence, and
(iii)the reasons why the evidence is not available at the time of service, and
(iv)the time it is expected to be available, and
(b) the evidence is served on all other parties and lodged as soon as practicable after the evidence becomes available.
(3)The Commission may, for the avoidance of injustice, allow a respondent to introduce evidence that the respondent would otherwise be prevented from introducing because of the operation of subrule (2).
(4)Where a respondent wishes to rely on a document produced as required by a direction issued under section 357 of the 1998 Act, and claims that the respondent was:
(a) unaware of the relevant information in the document, or
(b) unable to obtain possession of the document, at the time the respondent lodged the reply in the proceedings, the respondent must, as soon as practicable after becoming aware of the information, lodge and serve on all other parties to the proceedings a statement revealing:
(c) the specific nature of the information, and
(d) the reliance the respondent intends to place on the information.
(5)Without limiting subrule (3), where a respondent complies with subrule (4) in respect of any information, the Commission may allow the respondent to introduce evidence of that information.
It is for the Arbitrator to exercise his or her discretion in relation to the admission of late documents in the particular circumstances of each case, pursuant to Rule 40(3).
While the Employer purported to comply with Rule 40 (1) and (2) (a) and (b), the reports of Dr Revai and the Vocational Capacity Centre were filed considerably later than was indicated in the Reply. In my view they were clearly ‘late documents’. It was therefore for the Arbitrator to exercise his discretion as to whether or not they should be admitted into evidence.
On the evidence and submissions before me, including the Commission file containing the material that was before the Arbitrator, there is no obvious reason why the report of Dr Potter, dated 17 July and filed with the Reply, was not admitted into evidence.
Neither the Workers Compensation Acts (the Workers Compensation Act 1987 and the 1998 Act), the Workers Compensation Regulations 2003 nor the Commission’s Rules restrict a party in proceedings in the Commission, to reliance upon only the evidence that was available prior to the making of the decision to deny liability for the payment of workers compensation. However it should be noted that the insurer has obligations of disclosure under the 1998 Act and the Regulation (sections 73 and 74 of the 1998 Act and Clause 37 of the Regulation). There are also a number of restrictions on medical evidence, found in Sections 127 and 294A of the 1998 Act, and Part 10 of the Regulation.
As there is no record of the reasons for decision I am not in a position to determine whether the Arbitrator, as the Appellant submits, refused to admit the employer’s evidence on erroneous grounds. The decision made by the Arbitrator is an exercise of discretion. It should be overturned only where it can be shown that this discretion has been exercised unfairly and unlawfully.
However this matter is not yet finalised in the Commission. The issuing of a Medical Assessment Certificate by the AMS may lead to a consensual resolution of the dispute. If it does not, then the dispute will be returned to the Arbitrator to deal with any outstanding issues. Alternatively the matter may proceed to a Medical Appeal Panel.
If the admission of the late evidence remains in issue then, in my view, the best course is for the Arbitrator to reconsider the decision to refuse to admit the documents, in accordance with these reasons.
On this basis I propose to confirm the Arbitrator’s decision. If the decision is reconsidered the reasons should be recorded. The Arbitrator’s decision, as it stands, does not affect the AMS assessment and may or may not ultimately be relevant to the resolution of the dispute.
DECISION
The decision of the Arbitrator is confirmed.
Dr Gabriel Fleming
Acting President
24 JUNE 2004
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DR GABRIEL FLEMING, ACTING PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
0
0
0