Raju v TSA Metal Products Pty Ltd
[2006] NSWWCCPD 237
•19 September 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Raju v TSA Metal Products Pty Ltd [2006] NSWWCCPD 237
APPELLANT: James Raju
RESPONDENT: TSA Metal Products Pty Ltd
INSURER:Employers’ Mutual Indemnity (Workers Compensation) Ltd
FILE NUMBER: WCC 20275-05
DATE OF ARBITRATOR’S DECISION: 6 April 2006
DATE OF APPEAL DECISION: 19 September 2006
SUBJECT MATTER OF DECISION: Leave to appeal; extension of time for making appeal
PRESIDENTIAL MEMBER: Acting Deputy President Robin Handley
HEARING:On the papers
REPRESENTATION: Appellant: PK Simpson & Co, Solicitors
Respondent: Edwards Michael Moroney, Lawyers
ORDERS MADE ON APPEAL: Leave to appeal against the decision of the Arbitrator is refused.
There is no order as to the costs of this appeal.
BACKGROUND TO THE APPEAL
On 17 May 2006, James Raju sought leave in the Workers Compensation Commission (‘the Commission’) to bring an appeal against the decision of an arbitrator dated 6 April 2006. The Respondent to the appeal is TSA Metal Products Pty Ltd (‘TSA’). TSA’s workers compensation insurer is Employers’ Mutual Indemnity (Workers Compensation) Ltd (‘EMI’).
Mr Raju was born in Fiji on 22 December 1958 and is aged 47. He migrated to Australia in 1986. Mr Raju is married with dependent children.
About 1989, Mr Raju commenced employment with Konica Australia Pty Ltd (‘Konica’) as a technician/sheet steel worker. Mr Raju claims to have injured his right hand on 5 November 1992 and, on 11 October 1994, his neck and back in the course of his employment with Konica. Konica terminated his employment with effect from 18 September 1998. Mr Raju subsequently obtained employment with TSA in about March 2004 and, on 20 October 2004, he injured his back and neck lifting a cabinet. At that time, Mr Raju’s position was that of supervisor in TSA’s powder coating section, powder coating metal parts used for office furniture and equipment.
Mr Raju’s workers compensation claim against Konica for lump sum compensation was settled on 23 November 1998 with Konica agreeing to pay Mr Raju compensation under section 66 of the Workers Compensation Act 1987 (‘the 1987 Act’) comprising $7,207.20 in respect of 8% loss of use of the right hand arising from the incident on 5 November 1992, $7,875.00 in respect of 10% permanent impairment of the back and $3,937.50 in respect of 7.5% permanent impairment of the neck arising from the incident on 11 October 1994, together with compensation under section 67 in respect of these injuries and costs. On 18 February 2000, following a commutation award made by Judge Geraghty in the Compensation Court of NSW, Mr Raju entered into a Deed of Release with Konica whereby he agreed to accept the sum of $50,000 in full settlement of all claims in respect of injuries arising out of or in the course of his employment with Konica.
By letters dated 7 April 2005, Mr Raju’s solicitors lodged claims with Konica and TSA in respect of weekly compensation, lump sum compensation under sections 66 and 67, and hospital, medical and related expenses pursuant to section 60 of the 1987 Act. EMI paid Mr Raju weekly compensation until 7 July 2005. On 29 November 2005, Mr Raju lodged an ‘Application to Resolve a Dispute’ with the Commission.
On 20 March 2006, it was agreed between the parties that the Application in relation to Konica should be discontinued on the basis that all injuries received by Mr Raju whilst in their employment were the subject of the commutation award and Deed of Release dated 18 February 2000. Conciliation of the dispute between Mr Raju and TSA having proved unsuccessful, the Arbitrator then proceeded to conduct an arbitration hearing. On 6 April 2006, he made his decision in the terms set out below.
I note that the Arbitrator referred Mr Raju for assessment by an Approved Medical Specialist (‘AMS’) and that the Commission issued the AMS’s Medical Assessment Certificate (‘MAC’) on 20 June 2006. Neither party has sought leave for the MAC to be admitted as fresh evidence in the appeal, and I have not taken it into consideration in conducting this review.
THE DECISION UNDER REVIEW
The Certificate of Determination, dated 6 April 2006, records the Arbitrator’s orders as follows:
“1. The Application in respect of the First Respondent [Konica] is discontinued. The requirement to file a notice of discontinuance is dispensed with.
2. The First Respondent is to pay the Applicant’s costs in so far as they relate to the claim against the First Respondent, as agreed or assessed.
3. There is an award in favour of the Second Respondent [TSA] in respect of the Applicant’s claim for weekly payments of compensation.
4. The Second Respondent is not liable for the payment of the Applicant’s claim under s 60 of the Workers Compensation Act 1987.
5. In so far as the Application relates to a claim for lump sum compensation under s 66 of the Workers Compensation Act, it is to be referred to an Approved Medical Specialist.
6. The question of costs in relation to the proceedings against the Second Respondent is reserved.”
In his ‘Statement of Reasons for Decision’, the Arbitrator found there was an incident at TSA’s workplace on 20 October 2004 as a result of which Mr Raju suffered injury. He was transported to hospital by ambulance and subsequently had some time off work as a result. EMI accepted liability, and weekly compensation payments were made until 7 July 2005 when further liability was declined. The Arbitrator found that there was no doubt that Mr Raju’s employment was a substantial contributing factor to that injury. With regard to whether Mr Raju was totally or partially incapacitated for work because of the injury suffered on 20 October 2004, the Arbitrator found:
“It is more probable than not that any difficulties caused him by his back complaint following his return to work with TSA (if any) result from the injury sustained whilst he was employed by Konica for which he has already been paid compensation, and that he is as fit for duties now as he was when he began work with TSA.”
The Arbitrator therefore found that Mr Raju had not discharged the onus of establishing an entitlement to weekly compensation for the period 7 July 2005 to 23 December 2005 and that in respect of his claim for weekly compensation, there should be an award in favour of TSA. In the absence of agreement between the parties, Mr Raju’s claim for lump sum compensation could not be determined without an assessment by an Approved Medical Specialist. The question of costs would be reserved until Mr Raju’s claim for lump sum compensation had been finalised.
ISSUES IN DISPUTE
The issues in dispute in the appeal are first, whether an extension of time should be granted for the filing of Mr Raju’s appeal, second, as to the substantive grounds of the appeal, whether the Arbitrator made errors of fact or law in considering the issue of incapacity, in his treatment of the evidence on the issue of incapacity, and in determining Mr Raju’s claim for hospital, medical and related expenses. The parties’ submissions on these issues are discussed below.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) states:
“(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 have had regard to Practice Directions Numbers 1 and 6, the documents before me, and the submissions by the parties. Mr Raju’s solicitors submit that because of the complexities of the matter, there should be a hearing. TSA submits the matter “is relatively straightforward and can be determined on the papers”. Having considered the issue, 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.
Neither party sought to adduce fresh evidence.
LEAVE
Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act. First, with regard to section 352(2), Mr Raju’s solicitors submit that his claim for weekly compensation at the statutory rate of $340.90 for 21 weeks and one day amounts to $7,256.70, in excess of the $5,000 threshold. There was no monetary award (other than costs) made by the Arbitrator in favour of Mr Raju, and I am therefore satisfied that the amount of $7,256.70 constitutes more than 20% of the amount awarded in the decision appealed against.
With regard to section 352(4) – the requirement for an appeal to be made within 28 days after the making of the decision appealed against, clearly Mr Raju’s appeal was not made within 28 days of the Arbitrator’s decision, which was made on Thursday 6 April 2006, the date on which the Certificate of Determination was issued by the Commission (Rule 77(2) of the Workers Compensation Commission Rules 2003 (‘the Rules’)). TSA’s solicitors state they received the Certificate on the following Monday 10 April 2006. Although it seems improbable that Mr Raju’s solicitors would not have received the Certificate until 21 April 2006, as they claim, there were, nevertheless, public holidays on Friday 14 April 2006 (Good Friday) and Monday 17 April 2006 (Easter Monday). However, public holidays have no effect on the number of calendar days within which an appeal may be made unless the last day of the prescribed period is a public holiday, in which case the appeal may be lodged on the next day that is not a Saturday, Sunday, Public or Bank Holiday in that place (Interpretation Act 1987 (NSW), section 36(2)).
Section 352(4) required that Mr Raju’s appeal should be made by Friday 5 May 2006, two weeks after his solicitors claim to have received the Certificate of Determination. There was one intervening public holiday – Tuesday 25 April 2006, ANZAC Day. Mr Raju’s appeal was received on 17 May 2006, 11 days late. (In my view, the appeal was “made” on 17 September 2006, notwithstanding that the Registrar rejected the application for failure to attach submissions on the section 352(2) threshold issue of the amount of compensation which was the subject of the appeal and on what percentage of the amount awarded in the decision appealed against this represented: Rowe v NSW Department of Education and Training [2006] NSWWCCPD 27, at paragraph 46.)
Rule 77(8) of the Rules provides that a Presidential Member may extend the time for making an appeal where the appellant demonstrates that exceptional circumstances exist, and that they would suffer a substantial injustice if the right of appeal were lost. The onus of proving exceptional circumstances rests with the appellant.
The Rules do not set out the factors to be considered in the exercise of the discretion to extend the time for filing an appeal against the decision of an Arbitrator. However, this issue has often been the subject of judicial consideration. A leading case is Gallo v Dawson (1990) 93 ALR 479, where Justice McHugh set out a number of guiding principles. He emphasised that the discretion to extend time should only be exercised where strict compliance with the rules will lead to an injustice for the applicant. In so deciding, regard should be had to (i) the history of the proceedings, (ii) the conduct of the parties, (iii) the nature of the litigation, (iv) the consequences for the parties of the grant or refusal of the application for extension of time, (v) the prospects of the applicant succeeding if leave is granted, and (vi) the respondent’s right, after the expiry of the time for appealing, to rely upon the decision made. These principles have been applied in Commission proceedings: see, for example, Howell v Stringvale Pty Ltd [2004] NSWWCCPD 22, Alexandru v State Rail Authority of NSW [2004] NSW WCC PD 54, South Eastern Sydney Area Health Service v Berry [2006] NSWWCCPD 32.
Mr Raju’s solicitors submit that the delay in receipt of the determination was beyond the control of the worker, and that Mr Raju had difficulty understanding the decision and its implications, especially since the Arbitrator’s decision contains errors of law and internal inconsistencies and is confusing for Mr Raju, whose first language is not English. For Mr Raju not to be able to assert his potential entitlements where the Arbitrator has made errors of law and fact would be a denial of justice.
TSA notes that a complete appeal was not filed until 31 May 2006. It also notes that Mr Raju is legally represented, and submits there is nothing exceptional about his circumstances that should have prevented him making his appeal within the prescribed time. Moreover, the appeal is without merit and Mr Raju’s solicitors have failed to establish a “demonstrable and substantial injustice” (Rule 77(8)) should leave to appeal not be granted.
THE MERITS OF THE APPEAL AND PROSPECTS OF SUCCESS
As TSA’s solicitors acknowledge, exercise of the discretion in determining whether an extension of time for the making of an appeal should be granted, requires consideration of the merits of the appeal and its prospects of success.
Ground 1: Denial of Liability
Mr Raju’s solicitors state that there is no dispute that Mr Raju suffered an injury at work on 20 October 2004 as a result of which he was taken to hospital by ambulance. EMI initially accepted liability and did not decline liability until notification of this by letter dated 22 June 2005 when they sought to deny liability on the ground that employment was no longer a substantial contributing factor (section 9A of the 1987 Act) to Mr Raju’s then incapacity. Mr Raju’s solicitors submit that, there being no dispute about Mr Raju’s injury, the Arbitrator should first have considered whether EMI’s denial of liability was in accordance with the law. Only then should he have considered whether there was an incapacity arising from the injury. By failing to consider this first issue, the Arbitrator made an error that affected the remainder of his determination.
TSA submits there is no statutory basis for Mr Raju’s solicitors’ assertion that the Arbitrator should not have determined the issues in dispute without first being satisfied that the denial of liability was in accordance with the law. This was not a point raised at the hearing and, in any event, the Arbitrator determined the injury/section 9A issues in Mr Raju’s favour. Having so found, the question became whether any incapacity for the period claimed resulted from the injury on 20 October 2004.
In my view, there was no error of law in the Arbitrator’s approach. Having noted that the parties had agreed, in the course of making submissions, that Mr Raju sustained an injury at work on 20 October 2004, the Arbitrator went on to say that given that the injury “occurred whilst the Applicant was lifting a cupboard in his workplace, then work was a substantial contributing factor to the injury” (paragraph 11). I agree with TSA that having so found, the relevant issue became whether Mr Raju continued to suffer an incapacity for work as a consequence of the injury during the (closed) period 7 July 2005 to 23 December 2005 in respect of which Mr Raju claimed weekly compensation at the maximum statutory rate.
Ground 2: Treatment of the Evidence on the Issue of Incapacity
Mr Raju’s solicitors submit there was sufficient medical evidence to support Mr Raju’s claim for compensation for permanent impairment as a result of the injuries sustained in the incident on 20 October 2004 and to support a finding that it was that incident that led to Mr Raju’s current incapacity. Since those injuries, Mr Raju has gradually returned to work on light duties but at no time was he certified fit to return to his pre-injury duties by his general practitioner. Mr Raju’s solicitors submit the Arbitrator failed to take into account the WorkCover Certificates issued by his general practitioner, and placed too much weight on the pain experienced by Mr Raju both before and after the incident on 20 October 2004. Instead, the Arbitrator should have focused on Mr Raju’s capacity for work before and after the incident on 20 October 2004. The Arbitrator overlooked the vocational reports indicating a substantial incapacity for work as a result of the injury sustained on 20 October 2004. Mr Raju’s solicitors submit he has an ongoing incapacity for work and, consequently, an entitlement to weekly payments.
TSA submits that while there was evidence before the Arbitrator which could, if accepted, have supported Mr Raju’s claim for incapacity payments, equally, there was evidence to the contrary. The Arbitrator recognised this (Statement of Reasons, paragraph 19) and it was open to him to accept the opinions of the doctors relied on by TSA (paragraph 80) and find that Mr Raju had not established that he suffered an incapacity for work as a result of the injury during the closed period which was the subject of Mr Raju’s claim (paragraph 87). The Arbitrator recorded the parties’ submissions and set out his reasons for accepting the submissions made by TSA, thereby satisfying the requirements of Rule 73 of the 2003 Rules for a statement of reasons.
TSA states the Arbitrator’s reasoning process showed that he took the view that the correct medical history is that revealed by the Liverpool Health Centre Notes which showed that Mr Raju continued to complain of back pain on a regular basis up to and including three days before he commenced employment with TSA. As the Arbitrator recognised, this was not part of the history relied on by Mr Raju’s doctors in formulating their opinions. The Arbitrator was justified in giving less weight to those opinions and preferring the opinions of Drs Matheson, Smith and, in particular, Assem, relied on by TSA.
I note that where the weight accorded to the evidence by the Arbitrator is challenged, Deputy President Fleming’s comment in Knight v Eyles Nominees Pty Ltd [2004] NSWWCCPD 73, at paragraph 40, should be borne in mind:
“Interference with an Arbitrator’s discretionary judgement as to the weight of evidence should only be done where it is manifestly obvious that the discretion has so miscarried that it has not been exercised fairly and lawfully.”
I have reviewed the Arbitrator’s discussion of the evidence on the question of incapacity in his Statement of Reasons (paragraphs 12 to 28), his record of the parties’ submissions on this issue (paragraphs 29 to 64) which includes reference to the Functional Assessment Report prepared by the Vocational Capacity Centre report dated 10 August 2005, and his findings and reasons on this issue (paragraphs 68 to 84). In my view, the Arbitrator satisfies the requirements of Rule 73 by adequately expressing his reasons. The Arbitrator discusses the specialist medical reports provided by the parties, noting, for example, in relation to the reports by Dr Peter Giblin, Orthopaedic Surgeon (report dated 31 May 2005), and Dr James Bodel, Orthopaedic Surgeon (report (obtained by Konica) dated 22 November 2005), that both relied on Mr Raju’s history that he was pain free prior to commencing work with TSA. Dr Bodel stated:
“This gentleman quite clearly indicates that he was pain free at the time that he commenced work at TSA Metal Products Pty Ltd. He then did heavy work for about six months before the twisting injury that occurred at work on 20 October 2004.”
Dr Bodel diagnosed disc pathology at the lumbosacral junction as a result of the injury on 20 October 2004 and said there was “no clinical evidence of ongoing work related pathology from his previous employer, Konica Minolta”. Dr Giblin said:
“Based on his history and examination, this gentleman has a provisional diagnosis of a soft tissue injury to his cervical and lumbar spine as a result of the subject injury 20th October 2004, and consistent, with the reported findings at L5/S1 as referred to in the body of this report.”
I am not satisfied that the Arbitrator failed to take into account the Functional Assessment Report (he refers to one of the two authors of the report, the physiotherapist, Christine Leaver’s findings, at paragraph 80) or the WorkCover certificates. With regard to the latter, while the Arbitrator does not specifically refer to these certificates, it is not necessary to refer to each and every piece of evidence before him, and it is apparent that he placed particular emphasis on the patient records from the Liverpool Health Centre where Mr Raju’s treating general practitioners worked, and on the specialists’ reports where a fuller history was evident. I note, for example, that in his report dated 26 July 2005, Dr M Assem, Consultant in Rehabiliation Medicine, diagnosed “age related degenerative changes in the cervical, thoracic and lumbo-sacral spine”. He said the degenerative changes had been present for a long time and were unrelated to the incident on 20 October 2004:
“There may have been a temporary exacerbation of his symptoms but I would have expected any aggravation to have long since resolved. His continued symptoms and limitations are disproportionate to the pathology identified.”
Dr J M Matheson, Consultant Neurosurgeon (reports dated 10 May 2005 and 13 March 2006), noted Mr Raju’s “long history of spinal problems” and complaints of back, shoulder and neck pain (report dated 13 March 2006), but considered these to be degenerative in origin. While the incident on 20 October 2004 would have caused some bruising, “he has long since recovered from this injury” (report dated 10 May 2005). Dr Anthony Smith, Orthopaedic Surgeon (reports dated 26 July 2005 and 7 March 2006), also found “fairly extensive degenerative disease” pre-dating the incident on 20 October 2004. Any aggravation caused by this incident had long since settled. As the Arbitrator noted, Drs Assem, Matheson and Smith thought Mr Raju was exaggerating his symptoms as did the physiotherapist, Ms Leaver.
I note that Dr Michael Fearnside, Neurological Surgeon (report dated 20 June 2005), records that Mr Raju told him that “there was no illness or disorder or injury which precluded him from working” when he commenced working with TSA. Dr Fearnside diagnosed soft tissue injuries to Mr Raju’s neck and back as a result of the incident on 20 October 2004. He found a “significant functional overlay” to Mr Raju’s presentation but said that notwithstanding this, he was satisfied that Mr Raju does have “significant pain, bilateral sciatica and disabilities as a result of the fall on 20/10/04”. Dr Fearnside considered that Mr Raju would have maximum medical improvement by 12 months after the accident.
The Arbitrator found “[i]t is more probable than not that any difficulties caused him by his back complaint following his return to work with TSA (if any) result from the injury sustained while he was employed by Konica for which he has already been paid compensation” (paragraph 80). Thus, the fact that Mr Raju may have been partially incapacitated for work on his return to work after the injury on 20 October 2004, is obviously not determinative of the issue in dispute but must be considered in the context of all the other evidence.
After reviewing the evidence and the Arbitrator’s Statement of Reasons, I am not satisfied that the Arbitrator’s discretionary judgement as to the weight he accorded to the evidence obviously miscarried such that it could be said that he did not exercise his discretion fairly and lawfully. I am therefore also not satisfied there is merit in this ground of appeal.
Ground 3: Section 60 Expenses
With regard to Mr Raju’s claim for hospital, medical and related expenses under section 60 of the 1987 Act, Mr Raju’s solicitors submit the Arbitrator failed to give reasons for his decision that TSA was not liable. For example, despite the injury not being in dispute, there is no discussion of medical reports or treatment or ongoing necessity for treatment. Where an injury has occurred and has been agreed upon, the worker is entitled to the reasonably necessary medical expenses which flow from such an injury. Mr Raju’s solicitors also submit the Arbitrator’s decision not to to award weekly compensation and medical expenses may turn out to be inconsistent with a finding of an Approved Medical Specialist that Mr Raju has a permanent impairment arising out of the injury on 20 October 2004.
While acknowledging that Mr Raju’s claim for hospital, medical and related expenses was not expressly referred to by the Arbitrator in his Statement of Reasons, TSA submits that it is obvious that his award in favour of TSA in respect of this claim followed logically and inevitably from his findings on the claim for weekly compensation. Namely:
“the arbitrator was not satisfied that the worker had discharged his onus of establishing that any back problems suffered by him after the denial of liability ‘resulted from’ the October, 2004 [sic] as distinct from the injuries suffered in the employ of Konica.”
As stated above, the Arbitrator found there was no dispute that Mr Raju sustained an injury at work on 20 October 2004, and went on to say that given that the injury “occurred whilst the Applicant was lifting a cupboard in his workplace, then work was a substantial contributing factor to the injury” (paragraph 11). I note that in submissions, Counsel for Mr Raju stated that section 60 expenses would follow the Arbitrator’s determination with regard to Mr Raju’s claim for weekly compensation (transcript page 33). In my view, while it would have been preferable for the Arbitrator to give reasons in relation to his determination of Mr Raju’s claim for section 60 expenses, it was obviously clear to the parties that the Arbitrator’s determination on the claim for section 60 expenses would follow his determination of Mr Raju’s claim for weekly compensation. This was not an error of law that would warrant any amendment of the Arbitrator’s decision and I am therefore not satisfied there is any merit in this ground of appeal.
In summary, Mr Raju’s appeal lacks merit and has little prospect of success.
CONCLUSION
I am not persuaded by Mr Raju’s solicitors’ submissions that there are exceptional circumstances and that Mr Raju would suffer a substantial injustice if his right to appeal is lost. I have had regard to the factors identified by Justice McHugh in Gallo, in particular to the previous claim against Konica and its settlement, to the effect on Mr Raju if an extension of time for making his appeal is not granted, and to the prospects of him succeeding if leave is granted. I am not satisfied that I should exercise my discretion to extend the time for making an appeal, and leave to appeal is therefore refused.
COSTS
There is no order as to the costs of this appeal.
Robin Handley
Acting Deputy President
19 September 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ROBIN HANDLEY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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