Radford v Bega Co-Operative Society Limited t/as Bega Cheese

[2006] NSWWCCPD 170

WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Radford v Bega Co-Operative Society Limited t/as Bega Cheese [2006] NSWWCCPD 170

APPELLANT:  Christine Anne Radford

RESPONDENT:  Bega Co-Operative Society Limited t/as Bega Cheese

INSURER:CGU Workers Compensation (NSW) (No.  2) Pty Limited

FILE NUMBER:  WCC 14929-03

DATE OF ARBITRATOR’S DECISION:          24 February 2005 and 23 March 2005

DATE OF APPEAL DECISION:  1 August 2006

SUBJECT MATTER OF DECISION: Section 350(3) of the Workplace Injury Management and Workers Compensation Act 1998; interpretation and weight of evidence; discretion of Arbitrator

PRESIDENTIAL MEMBER:  Acting Deputy President Robert Harrington

HEARING:On the papers

REPRESENTATION:  Appellant:      White Barnes Solicitors

Respondent:   Lander & Rogers Solicitors

ORDERS MADE ON APPEAL:  1. The decisions of the Arbitrator dated 24 February 2005 and 23 March 2005 are revoked.

2. The matter is remitted to another Arbitrator for determination afresh.

3. The Respondent is to pay the Appellant’s costs of the Appeal.

BACKGROUND TO THE APPEAL

1.On 14 April 2005 Christine Anne Radford (‘Mrs Radford’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision dated 23 March 2005.

2.The Respondent to the Appeal is Bega Co-Operative Society Limited t/as Bega Cheese (‘Bega Cheese’).

3.Mrs Radford was employed by Bega Cheese in August 2000.  Mrs Radford suffered injury to her neck on 7 November 2001.  Liability was accepted by Bega Cheese, and in respect of this injury, Mrs Radford has been paid all her entitlements to compensation including medical expenses and weekly compensation payments.

4.Whilst Mrs Radford was carrying out light duties as a result of her neck injury, Mrs Radford alleges that on 11 or 12 April 2003, while she was working on the stringer line, she reached up with her left arm above a machine as part of the cleaning process and she experienced a tearing sensation in the region of her left shoulder.

5.Mrs Radford only claimed medical expenses under section 60 of the Workers Compensation Act 1987 (‘the 1987 Act’), in respect of the alleged injury, as she was already receiving workers compensation payments in respect of her neck injury.

6.A teleconference was held on the 23rd of December 2004.  At that teleconference, the Arbitrator noted the matter could not be settled and the parties agreed that the matter was a suitable matter to be determined ‘on the papers’.

7.The Arbitrator, at that teleconference, made the following directions to the parties:

“1.All produced documents in this matter are to be sent to the Arbitrator within 14 days;

2.Submissions from both parties are to be provided to the Arbitrator on or before the 27th of January 2005;

3.The matter will be determined on the papers on or before the 10th February 2005.”

8.The Arbitrator, delivered her first decision and the ‘Certificate of Determination’ in respect of that decision was issued on 24 February 2005 (‘first decision’).

9.The Arbitrator, delivered a second decision (‘second decision’) in respect of Mrs Radford’s claim and a ‘Certificate of Determination’ was issued on 23 March 2005.  The reason as to why the Arbitrator delivered a second decision, in respect of the same subject matter, is explained in the first paragraph of her second decision:

“This statement of reasons rescinds the Statement of Reasons issued by myself on the 18/02/05. The Statement of Reasons was reviewed on the grounds that the Respondent’s written submissions dated the 24/01/05, directions to produce from Dr Geoff Long, Dr Gareth Long, Dr Jeff Lee and Professor Oakshott had not been provided to me within the time frame stipulated in my directions as a result of an administrative error with the commission. These have now been included in the material before me, and under the provisions of section 350 of the Workplace Injury Management and Workers Compensation Act 1998. I have reconsidered the matter and altered my decision.”

10.It is against the determination of the Arbitrator of the 23rd of March 2005 that Mrs Radford now seeks leave to appeal.

THE DECISION UNDER REVIEW

11.The first ‘Certificate of Determination’, dated 24 February 2005 records the Arbitrator’s orders as follows:

“1.The Respondent pay the Applicant’s section 60 of the Workers Compensation Act 1987 expenses on production of accounts or receipts.

2.And that the Respondent pay the Applicants cost as agreed or assessed.”

12.The second ‘Certificate of Determination’, dated 23 March 2005 records the Arbitrator’s orders as follows:

“1.Award in favour of the Respondent in respect of the Applicant’s claim for expenses under section 60 of the Workers Compensation Act 1987.

2.No order as to costs.”

ISSUES IN DISPUTE

13.The issues in dispute in the appeal are whether:

·section 350 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides the Arbitrator with the power to reconsider her own decision; and

·the Arbitrator erred in respect of the substantive decision, in that the decision was against the weight of evidence.

ON THE PAPERS REVIEW

14.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.”

15.Mrs Radford submits that the appeal should be the subject of a hearing because of ‘the necessity to trace with particularity the history of the chronology of events insofar as substantive matters at issue are concerned together with the historical path of the proceedings’.  I am of the opinion that the chronology and history of this claim is clearly delineated in ‘the papers’ I have before me.  Further, having regard to Practice Directions Numbers 1 and 6, and the submission by the Bega Cheese 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. 

LEAVE

16.Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.

17.The appeal concerns Bega Cheese’s liability to pay compensation in respect of Mrs Radford’s injury.  The appeal, therefore, concerns the entirety of Mrs Radford’s entitlement to compensation, including medical expenses, lump sum compensation and potentially weekly compensation payments.  Mrs Radford has had major surgery to her left shoulder.  I am, therefore, of the view that the amount of compensation at issue on appeal in this matter exceeds $5,000 such that section 352(2)(a) is satisfied.

18.The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.

FRESH EVIDENCE

19.Mrs Radford seeks to have the following ‘fresh evidence’ admitted into evidence:

1.Two reports of Dr Gareth Long dated 11 November 2004, together with an operation report of Dr Gareth Long in respect of Mrs Radford’s operation on 26 October 2004.

2.The file note of Mrs Radford’s solicitors in respect of a teleconference dated 23 December 2004 together with a letter from Bega Cheese’s solicitors to the Registrar of the Commission dated 28 February 2005.

20.‘Fresh evidence’ on appeal is governed by section 352(6) of the 1998 Act, which provides as follows:

“(6)Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.”

21.Practice Direction Number 6 sets out the process for seeking leave of the Commission to give ‘new evidence’ on appeal.  It provides as follows:

“New Evidence
Where a party seeks leave to give new evidence in relation to the decision appealed against, that party must serve a copy of the new evidence on the other parties to the dispute when serving the Application or Opposition.
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.”

22.Practice Direction Number 6 also provides that if new evidence is sought to be relied upon, the Application or Opposition to the Appeal must contain:

“-a schedule of the new evidence,
-a copy of the new evidence,
-a brief outline of the new evidence and the reasons why it was not given in the proceedings before the Arbitrator, and
-submissions why the new evidence should be admitted.”

23.The medical reports of Dr Long and the operation report were before the Arbitrator.  The Arbitrator, in her Statement of Reasons, records this fact at page 2 of the decision.  As such there is no need to admit these reports as ‘fresh evidence’.

24.The file note of the 23rd of December 2004 does not provide any additional information or evidence to that which can be ascertained from the documents that are before me.  I therefore reject the application to admit the file note into evidence.  The letter from Bega Cheese’s solicitor Robyn Hickey dated the 28th February 2005 was directed to the Registrar of the Commission.  There is no evidence that the letter was forwarded to the Arbitrator.  Leaving to one side, Mrs Radford’s submission that the letter is relevant to the issue of prejudice, in the absence of evidence that it was in the possession of the Arbitrator, the letter can have no relevance.  As such, I reject Mrs Radford’s application to admit the letter of the 28th February 2005 into evidence.

EVIDENCE AND SUBMISSIONS

25.Before the Arbitrator the following matters were not contested:

1.Mrs Radford ceased working for Bega Cheese in May 2003.

2.Mrs Radford did not make a formal claim in respect of her alleged shoulder injury until November 2003.

3.Mrs Radford consulted her General Practitioner, Dr Geoff Long on the 17th of April 2003, and the doctor recorded:

“…given new job that involved heavier lifting and rapid repetitive work - now neck pain (headaches) ++ and some shoulder pain…”

4.Mrs Radford next attended her General Practitioner Dr Geoff Long in relation to her shoulder complaint on 5 November 2003.  At that consultation the doctor records:

“usual W./C. certificate for right cervical radiculopathy written, also left shoulder pain-(referred to in April consultation persists-O\E the signs of rotator cuff injury...”.

5.Dr Gareth Long, orthopaedic surgeon, operated on Mrs Radford’s left shoulder the 26 October 2004.  At that operation Dr Gareth Long observed that:

“…the supraspinatus was completely avulsed producing a 3 cm diameter tear…”

6.Mrs Radford was examined by Dr Bodel, orthopaedic surgeon, in June 2003.  The purpose of the examination was to review the neck injury, of 7 December 2000.  During that examination Dr Bodel examined her left upper limb.  The doctor recorded that there was a full range of movements of the left upper limb and Mrs Radford made no complaint to the doctor in respect of left shoulder pain.

26.Mrs Radford’s evidence consisted of the statement dated the 20th of June 1995 which was admitted into evidence.  Mrs Radford was not cross-examined, Bega Cheese having consented to the matter being determined on the papers.  In respect of the injury, Mrs Radford said the following:

“I recall that having suffered no previous symptoms in relation to my left shoulder on 11 possibly 12 April 2003 I was working on the stringers line helping the machine operator to clean a machine.  I recall reaching up above the machine as part of the cleaning process when I experienced a pain-tearing sensation in the region of my left shoulder.  On the same day late in the day I was pushing a trim bin in the course of repetitively manoeuvring blocks of cheese, and I felt the same sensation along my left arm the arm/shoulder.”

27.Mrs Radford went on to say at paragraph 8 of her statement:

“I note that a few months later in May 2003 my work within the factory ceased as a result partly of the unavailability of work, and also because of the ongoing problems that I was having with my neck.  I confirm that throughout this period I was having continuing pain and disability affecting my left shoulder and because the condition did not seem to be improving as I had expected in November 2003 I lodged a claim form for workers compensation benefits in relation to my shoulder, and I also saw local GP, Dr Long who referred me to a specialist Dr G. Long who I saw for the first time on the 26th November 2003.”

DISCUSSION AND FINDINGS

Section 350(3) of the 1988 Act: the legal entitlement of the Arbitrator to reconsider her first decision

28.Section 350(3) provides:

“The Commission may reconsider any matter that has been dealt with by
the Commission and rescind, alter or amend any decision previously
made or given by the Commission.”

29.Section 350(3) is in similar terms to its predecessor (section 17 in the 1987 Act) which is also in similar terms to its predecessor, (section 36) then found in the Workers Compensation Act 1926 (NSW).  In Hatfield Engineering Pty Ltd v Fitzgerald [2003] NSWCA 345 (‘Hatfield’), Santow JA said the following in respect of section 17 of the 1987 Act:

“It was common ground between the parties that the authority conferred on the court, whereby the court is not prevented from “reconsidering any matter which has been dealt with by it” or “from rescinding, altering or amending any decision” was extremely wide. In the words of Street CJ in Hilliger v Hilliger (1952) 52 SR (NSW) 105, “no limit is set in the section to the power of the court …”. The joint judgment of Owen and Walsh JJ in Hardaker v Wright & Bruce Pty Limited (1960) 62 SR (NSW) 244 at 248 specifically approved that passage and the following one, quoted below:

‘I see no reason for limiting the generality of the words used in the section, and whether the question be one of fact or one of law, if the circumstances warrant it, I think that there is power in the court to entertain an application for variation or rescission so long as the original order is current, and to make such order in the way of variation or rescission as to it may seem proper. It is important, naturally, to keep well in mind the distinction between the existence of the power and the occasion of its exercise, and courts should not lose sight of the general rule that public interest requires that litigation should not proceed interminably. A party who seeks or opposes an order must produce all the available evidence at the original hearing, and courts must be on their guard to refuse to allow the same matter to be litigated again and again. But at the same time it is clear that the legislature intended to leave with the prescribed courts the power of reviewing any decision in order to see that justice is done between the parties.’

Importantly in Hardaker (above) at 249 it was expressly accepted that changed circumstances, or fresh evidence concerning the original circumstances, was a ground for reconsideration though “such reconsideration is not necessarily [so limited]” but “may, in a proper case, extend to considering whether an error has been made, whether of fact or of law, and to making such new or altered award as the circumstances, when thus reconsidered, appear to require.”

30.The decision in Hatfield is authority for the fact that section 350(3) provides a very wide discretion to an Arbitrator to reconsider a decision. In the present case the need to reconsider arose from an error by the Commission in not forwarding to the Arbitrator Bega Cheese’s medical evidence and written submissions before the Arbitrator made her determination (first decision). It is clear, in my opinion, that the authority provided by section 350(3), to reconsider a decision is sufficiently wide to allow the Arbitrator to reconsider her first decision in circumstances, where as a result of an error by the Commission, Bega Cheese’s written submissions and evidence were not before the Arbitrator at the time of her first decision. There still remains the outstanding question as to whether it was appropriate, in all the circumstances of this case, for the Arbitrator to reconsider her decision. I will return to this issue later in this determination.

Was the Arbitrator’s decision against the weight of the evidence?

31.In my opinion, because there are two different decisions in respect of the same subject matter, the Arbitrator’s second decision needs to be considered in the context of her first decision in order to determine matters of fairness including whether the Arbitrator’s second decision was against the weight of evidence.

32.When the Arbitrator’s second decision is analysed in the context of the first decision there can be identified a number of material errors in respect of her findings of fact.

33.There are a number of Presidential decisions dealing with the appropriate approach when an Arbitrator has made errors in fact finding.  In Westpac Banking Corporation v Kilby & Bananacoast Credit Union Ltd [2005] NSWWCCPD 24 it is said:

“As stated in South Western Sydney Area Health Service v Edmonds [2005] WCCPD 18, the weight and relevance to be given to evidence before an Arbitrator is a matter in the discretion of that Arbitrator. The decision of the Arbitrator should not be overturned unless it can be demonstrated that the Arbitrator has failed to exercise that discretion fairly and according to law. This may occur when an Arbitrator has acted upon an incorrect legal principle, allowed irrelevant considerations to influence the decision, made a material mistake as to the facts, or failed to take into account relevant and material considerations, (House v The King (1936) 55 CLR 499 at 504-505; Norbis v Norbis (1986) 161 CLR 513 at 520, and In the Matter of National Roads and Motorists Association Ltd [2003] FCAFC 206 at [21]).” (per Byron DP at [54])

34.The Arbitrator’s two decisions are by and large identical except for the Arbitrator’s recording of the submissions and the Arbitrator findings and reasons.  The gravamen of the two decisions centres around the Arbitrator’s interpretation of the relevance of the examination by Dr Bodel of Mrs Radford on the 20 June 2003.  Dr Bodel was asked to examine Mrs Radford in respect of her neck injury of the 7 December 2000.  Dr Bodel was not informed of the alleged left shoulder injury, as Mrs Radford had not reported the shoulder injury until after Dr Bodel’s examination.

35.The Arbitrator, in the first decision, said the following in respect of the relevance of the Dr Bodel examination:

“That the left shoulder problem was not reported on by Dr Bodel in June 2003 does not indicate that it did not exist.  Dr Bodel was asked to review the neck injury of 7/12/2000 and did not direct his attention to the Applicant’s shoulder injury of April 2003.  In any event this was only two months after the shoulder injury, and I find I am persuaded that the Applicant’s explanation that the shoulder pains was probably masked by the neck condition at the time.  I find no contrary evidence to support the Applicant has not been a creditable historian in respect of shoulder injury.  I find that I can accept the Applicant’s link between the work and the shoulder pain by reference to Dr Geoff Long’s support of her that she reported it to him as early as May 2003.”

36.The Arbitrator, in her second decision, said the following in respect of the relevance of Dr Bodel’s examination:

“Dr Bodel was asked to review the neck injury of 7/12/2000.  This was only two months after the shoulder injury.  He found no restriction on the left shoulder.  The Applicant’s explanation that the shoulder pain was probably masked by the neck condition at the time is a consideration, however, in the context of the balance of the clinical reports from Dr Geoff Long through October 2003 I find no evidence of reported problems in respect of shoulder and given the degree of tear found by Dr Gareth Long, one would reasonably expect some report of symptoms during the early months post injury.”

37.The clinical notes of Dr Geoff Long seem to be at the forefront of the Arbitrator’s change of opinion in respect of the consequences of Dr Bodel’s examination and findings on the Applicant’s claim.  The difficulty with the Arbitrator’s change of opinion being based on Dr Geoff Long’s clinical notes is, that although the clinical notes were not before the Arbitrator when she made the first decision, the clinical notes did not provide any additional relevant information.  The Arbitrator, in respect of this issue, had the following evidence before her when she made the first decision; the Applicant’s evidence that she did not see Dr Geoff Long for her left shoulder injury until November 2003 (at least for treatment) and the reports of Dr Geoff Long of the 17th of November 2003 and the 12th of May 2003.  Relevantly the report of the 12th of May 2003 recorded:

“Ms Radford presented on the 5 November 2003 complaining of pain in her left shoulder.  She told me at the time she had mentioned this left shoulder pain during consultation in April (see my previous correspondence)…”.

38.Dr Geoff Long’s report of the 12 May 2003 records that Mrs Radford saw him on the 17th of April 2003 with some shoulder pain and neck pain which had been caused by ‘line work’ that she had been performing recently.  The only additional information that the clinical notes of Dr Geoff Long provided the Arbitrator with, was that the doctor had seen the Applicant on eight occasions between the relevant consultations on 17 April 2003 and 5 November 2003.  The notes provide very little information; they record only that the doctor issues workers compensation certificates and prescribed medication.  The notes do not record complaints, findings on examination or other relevant material.  The clinical notes provide no basis to justify the Arbitrator’s change of opinion as to the relevance of the Dr Bodel examination.  The failure by the Arbitrator to explain her change of opinion in my view constitutes a material error in the exercise of her discretion.

39.In respect of Dr Geoff Long’s evidence, the Arbitrator, in her second decision, said the following:

“Dr Geoff Long, who is the General Practitioner, does not record whether the shoulder injury on the 11/04/03 is to the left or right shoulders.  His subsequent opinion varies as to whether it is work related or not.  In one clinical entry he appears to doubt the Applicant’s complaints.  His entry into his clinical notes in respect to the left shoulder specifically occurred on the 05/11/03.  From this evidence, I find that Dr Geoff Long’s opinion is not reliable, and I cannot conclude from him, that there was an injury to the left shoulder on the 11/4/03”.

40.There are a number of errors in respect of this assessment of Dr Geoff Long’s evidence they are:

(i)The criticism, by the Arbitrator, that Dr Geoff Long’s evidence ‘is unreliable’ is unfounded on evidence.  Dr Geoff Long’s report and clinical notes did not provide any opinions as to causation.  The doctor, as do many general practitioners, provided only, in his report, the history taken from his clinical notes, and the relevant treatment undertaken in respect of Mrs Radford. There are no inconsistencies between the doctor’s clinical notes which were provided to the Arbitrator after the first decision was delivered and Dr Geoff Long’s medical reports that were before the Arbitrator when the Arbitrator delivered her first decision.

(ii)The Arbitrator was critical of Dr Long’s evidence in that the Arbitrator records; “at one stage he [the doctor] appears to doubt the Applicant’s complaints”.  The Arbitrator would seem to have formed this opinion from entry in the doctor’s clinical notes, of 11 August 2003 which records:

“W./C. certificate for 3/12-not working at present-it all sounds pretty crazy.”

It is, in my opinion, not possible to infer, from the above entry, what the doctor intended by this statement, particularly in view of the fact that the doctor has continued to treat Mrs Radford in respect of her injuries including providing medical certificates and prescribing medication.  It is my opinion that it was not open to the Arbitrator to come to the conclusion that the doctor doubted Mrs Radford’s complaints on the evidence that was before her.

(iii)The Arbitrator’s opinion that ‘he [the doctor’s], subsequent opinion varies as to whether it is a work related [condition] or not’.  This conclusion, it would seem, is based on a report dated the 9 July 2004 that Dr Geoff Long wrote to the workers compensation insurer CGU.  In that letter, he confirms that as a result of the earlier neck injury, the Applicant is restricted to light duties.  He then said the following:

“Notwithstanding the above, Mrs Radford currently has a left shoulder injury (not work related), which means she can do no work.  She is awaiting an MRI and following this will see the orthopaedic surgeon to again.  Hopefully this issue will be resolved.”  (Emphasis added)

41.It is my opinion that the evidence does not justify the Arbitrator’s conclusion that Dr Geoff Long’s opinion varies as to ‘whether it is the work related condition’.  The evidence establishes that:

·The doctor was aware that liabilities in respect of the shoulder injury had been rejected by the workers compensation insurer prior to the 9 July 2004.

·The doctor records and reports did not contain an opinion as to causation.  The doctor, a general practitioner, recorded only historical matters, times of consultation and very brief notes in respect of his consultations with Mrs Radford.

·The purpose of the report of 9 July 2004 was to report, to the workers compensation insurer, in respect of the neck injuries, in respect of which the insurance company had accepted liability.

·In the last line of the paragraph, quoted above, the doctor seems to be indicating that the referral to the orthopaedic surgeon will determine the issue as to liability. 

42.A consideration of the above factors does not support the Arbitrator’s conclusion.  The doctor is, when using the words ‘not work related’, merely confirming the earlier rejection of liability by the insurance company rather than giving an opinion as to causation.  It is my opinion that the finding by the Arbitrator that the doctor’s subsequent opinion varies as to whether the injury is a “work related [condition] or not” is not justified on the evidence.

43.Dr Gareth Long and Professor Oakshott were the only doctors who provided the Arbitrator with an opinion as to causation.  Because of the administrative error, the report of Professor Oakshott was not in evidence when the Arbitrator first determined this matter.  However, the Arbitrator recorded accurately the contents of Professor Oakshott’s report in her first decision as the ‘Applicant’s submissions’ referred to and recorded Professor Oakshott’s opinion.  The Arbitrator records, in her first decision, the following in respect of Dr Gareth Long’s opinion:

“I find that Dr Gareth Long’s medical opinion is most persuasive on all points.  He opines that the Applicant’s condition can definitely be brought on in the manner described by her at work.  His use of the word “definitely” brings weight to his opinion.  I can put little to no weight on the opinion by Professor Oakshott as commented on in the Applicant’s written submissions, as his report is not in evidence.”

The Arbitrator at paragraph [33] of her decision continued her assessment of Dr Gareth

Long’s evidence:

“Dr Gareth Long reviews and links the work activities as a substantial contributing factor.  Dr Bodel does not take a history of the April 2003 incident.  There is no pre injury history of shoulder pain.  On the balance I find the evidence is weighty in favour of the injury being caused by the employment activities.  I find that the Applicant has made her case in respect to s9 and that the work was a substantial contributing factor in causing the left shoulder injury in April 2003.”

44.In her second decision, the Arbitrator provides the following analysis of Dr Gareth Long’s evidence and Professor Oakshott’s evidence at paragraph [40]:

“I find Dr Gareth Long’s medical opinion is made without the benefit of Dr Bodel’s report whereas Prof Oakshott’s opinion includes this information.  Both Dr Gareth Long and Prof Oakshott surmise that [sic] condition can definitely be brought on in the manner described as simply as reaching out but Professor Oakshott goes further to say that the injury could happen at any time given the background of the body weight and rheumatoid arthritis.  Indeed, there had been a history of similar condition in the right shoulder.”

The Arbitrator continued:

“On the balance, I find the evidence of the contemporaneous clinical notes of Dr Geoff Long and Dr Bodel’s observations lead me to conclude that the applicant has not made her case that the incident on the 11/04/03 caused her supraspinatus tear.  I find that the respondent has been persuasive in respect to s9 and 9A, that the cause was work related or a substantial contributing factor.”

45.The Arbitrator’s factual finding in relation to Dr Gareth Long’s evidence contains material errors, particularly when regard is had to the Arbitrator’s factual findings in her first decision.  First is the rejection of Dr Long’s opinion, because he did not have the benefit of Dr Bodel’s report.  The Arbitrator, before delivering the first decision, was aware that Dr Long did not have the benefit of Dr Bodel’s report.  Notwithstanding this knowledge, she accepted Dr Long’s opinion, describing it as “most persuasive” in her first decision.  It is not possible to logically reconcile the finding in her first decision and the finding in her second decision in respect of Dr Long’s opinion.  Secondly, the fact that the doctor did not have access to Dr Bodel’s report is irrelevant in relation to Dr Long’s ‘medical’ opinion as to causation.  Dr Bodel’s report raises lay issues, that is, whether the applicant suffered the injury as alleged and, whether Mrs Radford had the continuity of symptoms in her left shoulder as she alleged.  These are issues to be determined by the Arbitrator not the doctors.  If the doctor’s view is based on an incorrect factual premise or on facts contrary to those found by the Arbitrator then his opinion has no weight.  Dr Long’s opinion is based on an acceptance of Mrs Radford’s history, as recorded by him, that is; Mrs Radford reaching out and feeling a sudden tear in the region of the left shoulder, and subsequently exacerbating that pain later that day pushing a bin, together with a continuity of symptoms since the injury and the lack of symptoms before the injury.  Dr Bodel’s findings, following his examination of Mrs Radford in June of 2003 undermine that factual basis in that they put in doubt the occurrence of Mrs Radford’s injury and her assertion that she had a continuity of pain in left shoulder following the injury.  On one view, Dr Bodel’s findings on examination, in June 2003 (that Mrs Radford had a full range of movement in her left upper limb without complaint of pain) lead to the conclusion that Mrs Radford was not a reliable historian and her evidence in respect of the injury and ongoing complaint should be rejected.  The rejection of Mrs Radford’s evidence because it was inconsistent with Dr Bodel’s examination and report was a matter for the Arbitrator, not the doctor. 

46.Professor Oakshott’s opinion on the other hand, is based mainly on a lay assessment as to whether the facts support Mrs Radford’s allegation of injury rather than a medical assessment.  Professor Oakshott’s opinion is that Mrs Radford did not suffer an injury to her left shoulder in April 2003 because:

·Mrs Radford did not complain to Dr Bodel in June 2003 of any injury to the left shoulder;

·There were not any signs of left shoulder injury reported on by Dr Bodel, following his examination; and

·Mrs Radford did not seek any medical treatment in respect of the shoulder until November 2003.

47.To the extent that Professor Oakshott provides a medical opinion as to causation he bases his opinion on the fact that Mrs Radford has pre-existing rheumatoid arthritis.  However, he fails to explain how rheumatoid arthritis would make a person more susceptible to a tear of the supraspinatus tendon.  Further, in order to support his opinion that Mrs Radford is likely to suffer a spontaneous rupture of the supraspinatus tendon, the doctor relies upon the fact that “she had a similar problem in relation to a right shoulder some years ago”.  Professor Oakshott’s report records only, in respect of the right shoulder injury, that; “she injured her right shoulder at work in 1993”. Without a full history as to how and in what circumstances this injury occurred it is not open to the doctor or the Arbitrator (as she did in the second decision) to use the history of the earlier right shoulder injury to justify a finding that Mrs Radford is susceptible to spontaneous ruptures of the supraspinatus tendon. I am therefore of the opinion that the Arbitrator’s acceptance of Professor Oakshott opinion over the opinion of Dr Gareth Long was against the weight of the evidence.

48.Although there is a medical issue which needs to be determined in relation to Mrs Radford’s claim for compensation, in my opinion, the real issue in Mrs Radford’s claim was a lay issue. That is, did she suffer the injury as alleged?  The failure, by Mrs Radford to make any complaint to Dr Bodel about her left shoulder during the examination by the doctor in June 2003 and the failure to report the injury to her general practitioner, at least in respect of treatment, until November 2003 are important.  The fact remains that Mrs Radford’s evidence is:

·that in April 2003 whilst cleaning a machine and reaching up, she felt a tear in the region of her right shoulder;

·then, later in the day whilst pushing a bin she had an exacerbation of pain; and

·that she had continuous problems with her shoulder until November of 2003 when she felt that she needed medical treatment in respect of a left shoulder problem.

49.Mrs Radford was not cross-examined, in respect of these matters, nor was she cross-examined in respect of her explanations (that being that the shoulder did not recover as expected) as to why she did not seek treatment before November 2003.  Any negative inference from Dr Bodel’s examination could only indirectly have impacted on Mrs Radford’s credit.  The Arbitrator did not make a finding as to credit in relation to Mrs Radford’s evidence.  In the absence of an adverse finding in relation to Mrs Radford’s credit, in my opinion, the Arbitrator’s conclusions “that the Applicant has not made her case that the incident on 11 April 2003 cause her supraspinatus tear” cannot be justified on the evidence.

50.In conclusion, therefore, I am of opinion that the Arbitrator second decision contains reviewable errors.  The errors are highlighted by the juxtaposition of the two decisions.  The Arbitrator assessment of the medical evidence demonstrates, in my opinion, a material mistake in respect of her factual determination.  Further, in my opinion, in the absence of an adverse credit finding, by the Arbitrator in respect of Mrs Radford’s evidence the Arbitrator’s ultimate finding in relation to injury was against the weight of the evidence.

Was it appropriate for the Arbitrator to reconsider her decision?

51.I do not consider that it was appropriate in the circumstances of this case for the Arbitrator to reconsider her decision. Although section 350(3) provides the Arbitrator with a very wide discretion to reconsider a decision, the discretion should only be exercised in limited circumstances. (See Comensoli v NSW Department of Juvenile Justice [2006] NSWWCCPD 138). Both decisions required the Arbitrator to make an assessment of the reliability the Mrs Radford’s evidence. In the first decision, the Arbitrator clearly accepted Mrs Radford’s evidence. The Arbitrator, in her second decision, did not make a finding in respect of Mrs Radford’s credit. However, the conclusion at paragraph [41] of her decision, that; “Christine Anne Radford did not receive an injury to a left shoulder arising out of or in course of her employment as a process worker…” could only have been on the basis of a rejection of Mrs Radford’s evidence. A comparison of the two decisions reveals that in ‘decision one’ the Arbitrator accepted Mrs Radford’s evidence and the evidence of Dr Gareth Long. In ‘decision two’ the Arbitrator, by implication rejected Mrs Radford’s and Dr Gareth Long’s evidence.

52.Section 354(3) of the 1998 Act, requires the Commission is to act according to equity, good conscience and the substantial merits, I do not believe this has been achieved in this matter when the two decisions and the respective findings are considered and compared.  In Hercules v Brennan [1982] BC8200314, G106 of 1982 (Unreported, Fitzgerald J, 8 November 1982), Fitzgerald J was called upon to consider the issue of functus officio.  Although this decision is not entirely on point, the underlying philosophy of the decision is relevant as Fitzgerald J said:

“Both Counsel in the proceedings before me today accepted that the law in relation to this aspect of the matter was to be found in the judgment of Holland J in Malone v Marr (1981) 2 (NSW).LR 894, although counsel for the applicant also relied upon the note of the decision of the Divisional court in R v Southhampton Justices Ex parte Atherton (1974) Crim L Rev. 108.  In that case, it was said that:

‘…it might have been thought by intelligent and instructive members of the public sitting in court that justice was not being seen to be done when the justices, having pronounced one penalty and gone through their motions of hearing mitigation, proceeded to pronounce another penalty.’ ”

53.It is my opinion that an intelligent and instructive member of the public would not, after reading the two decisions of the Arbitrator in this matter, form the view that justice has been done to either Mrs Radford or Bega Cheese.

54.The Arbitrator, in her decision of 23 March 2005, rescinded her earlier decision of 24 February 2005.  A question arises as to the status of the Arbitrator’s first decision of 24 February 2005 if I revoke the second decision of 23 March 2005.  This potentiality was not covered in the parties’ written submissions.

55.In order to allow the parties to address this issue, a teleconference was arranged on 1 August 2006.  Mr Peter Lleonart, solicitor, represented Mrs Radford and Ms Robyn Hickie, solicitor, represented Bega Cheese.  Both Mr Lleonart and Ms Hickie agreed that both decisions should be before me, on appeal, and I concur.  Given the lack of procedural fairness in the Arbitrator’s conduct of this matter amounting to an error of law, both her decisions of 24 February 2005 and 23 March 2005 are revoked.

56.It is desirable, if possible, that a Presidential Member who upholds an appeal finally determines the matter (see Chubb Security Australia Pty Ltd v Trevarrow [2004] NSWCA 344).  In this matter, given that the credit of Mrs Radford is the critical issue to be determined, it is, in my opinion, inappropriate that I seek to substitute my views for the decision of the Arbitrator, which I have revoked.  In my view the appropriate order is for the matter to be remitted to another Arbitrator for determination afresh.

DECISION

57.As a consequence of the various factual and legal errors identified in these reasons, the Appeal is upheld.

58.The decisions of the Arbitrator dated 24 February 2005 and 23 March 2005 are revoked and the matter is remitted to another Arbitrator for determination afresh. 

COSTS

59.The Respondent is to pay the Appellant’s costs of this Appeal.

Robert Harrington

Acting Deputy President

1 August 2006

I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ROBERT HARRINGTON ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE