DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:
Raulston v Toll Pty Ltd [2011] NSWWCCPD 25
APPELLANT:
Anthony Raulston
RESPONDENT:
Toll Pty Ltd
INSURER:
Self-insured
FILE NUMBER:
A1-9002/10
ARBITRATOR:
Mr J Wright
DATE OF ARBITRATOR’S DECISION:
18 February 2011
DATE OF APPEAL DECISION:
17 May 2011
SUBJECT MATTER OF DECISION:
Failure to give adequate reasons; unsatisfactory pleadings; inappropriate use of the expression “nature and conditions” of employment; approach to appeals from decisions after 1 February 2011; s 352 Workplace Injury Management and Workers Compensation Act 1998
PRESIDENTIAL MEMBER:
Deputy President Bill Roche
HEARING:
On the papers
REPRESENTATION:
Appellant:
Maurice Blackburn Lawyers
Respondent:
Lucas & Staggs Lawyers
ORDERS MADE ON APPEAL:
1. The Arbitrator’s determination of 18 February 2011 is revoked and the matter is remitted to a different Arbitrator for re-determination.
2. Costs of the first arbitration are to follow the event of the second arbitration.
3. The respondent employer is to pay the appellant worker’s costs of the appeal, as agreed or assessed.
BACKGROUND
The appellant worker, Mr Raulston, worked for the respondent employer, Toll Pty Ltd (Toll), as a truck driver from about 1997. He drove a car carrier. That work required him to load, unload, and transport cars between Melbourne and Wagga Wagga. He alleges that he injured his neck in the course of or arising out of his employment with Toll. Because of the unsatisfactory pleadings and evidence, and the unusual way his solicitor presented his case at the arbitration, the exact nature of his claim is unclear.
Mr Raulston submitted a claim form on 6 November 2006 in which he alleged that he injured his “neck & shoulder” in the course of his employment on 30 October 2006 while pulling a winch bar to tighten a chain to secure a car. He saw his local doctor and was certified unfit for two days because of a sprained right shoulder. A second certificate certified Mr Raulston fit for suitable duties from 4 November 2006 until 7 November 2006 because of a sprained right shoulder and neck pain. Mr Raulston returned to his normal duties on 8 November 2007.
A history recorded by Dr Evans (a specialist retained by Mr Raulston’s solicitor) in his reports of 15 August 2008 and 14 January 2010 suggested that Mr Raulston experienced similar neck pain when he again pulled down on the handle of a winch at work on 23 March 2007. He was said to have been off work for a week or two, but there is no corroborative evidence of that and Mr Raulston made no reference to it in his evidence.
Dr Evans also recorded a history that, from about 2002, Mr Raulston noted occasional neck pain at work when his head would bump on the roof of his carrier. Mr Raulston did not refer to this in his evidence.
In the course of unloading his trailer at Melbourne on 17 September 2007, a car door struck the bridge…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Raulston v Toll Pty Ltd [2011] NSWWCCPD 25
Case
[2011] NSWWCCPD 25
Decision Date
CaseChat Overview and Summary
The case of Raulston v Toll Pty Ltd involved a dispute between Mr Raulston, an employee, and Toll Pty Ltd, his employer, over workers' compensation claims. The matter was brought before the court to review the decision of an Arbitrator who had previously ruled against Mr Raulston's claims. The central issue was whether the Arbitrator provided adequate reasons for his decision, which rejected Mr Raulston's claims of work-related injuries and subsequent incapacity.
The court was required to determine if the Arbitrator's decision contained sufficient reasoning to justify his conclusions, particularly concerning the rejection of Mr Raulston's evidence. The court examined whether the Arbitrator adequately explained why he did not find reliable evidence of substantial injury from the claimed incidents and why he rejected Mr Raulston's evidence. Additionally, the court assessed if the Arbitrator properly addressed the conflicting expert medical opinions and the implications of these on the ultimate decision.
In its reasoning, the court held that the Arbitrator failed to provide adequate reasons for his conclusions. The Arbitrator's decision did not articulate the essential grounds upon which he reached his findings, particularly regarding the rejection of Mr Raulston's evidence. The court found that the Arbitrator did not sufficiently explain why he did not accept Mr Raulston's claims of injury or incapacity, nor did he properly address the conflicting medical evidence. The court further noted that the Arbitrator's findings were inconsistent and did not adequately resolve the key issues in the case.
The court revoked the Arbitrator's determination and remitted the matter to a different Arbitrator for re-determination. It also ordered that the costs of the first arbitration would follow the event of the second arbitration, and that the respondent employer would pay the appellant worker's costs of the appeal, as agreed or assessed.
Orders
Orders of the court
1. The Arbitrator’s determination of 18 February 2011 is revoked and the matter is remitted to a different Arbitrator for re-determination.
2. Costs of the first arbitration are to follow the event of the second arbitration.
3. The respondent employer is to pay the appellant worker’s costs of the appeal, as agreed or assessed.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
It is true, as Toll has submitted on appeal, that the Arbitrator said there was “no evidence of any significant period of incapacity flowing from the September incident” and that the clinical records did not disclose any treatment “in respect of the September accident”. However, those statements did not provide adequate reasons for the conclusion that there was no “reliable evidence of any substantial injury having occurred in September 2007 nor before that date”. The statement that there was “no evidence of any significant period of incapacity flowing from the September incident” (emphasis added) was incorrect; Dr Evans provided evidence on the causation issue (the Arbitrator’s rejection of this evidence is discussed below). Whilst it is correct that the clinical records did not disclose treatment in respect of the September incident, other than to say that the absence of attendances on the general practitioner did not lead him to conclude that Mr Raulston had no symptoms in the cervical area, the Arbitrator did not say what weight he attached to those notes but merely observed (at [26]) that they were “a factor to be considered”. That did not indicate an acceptance or rejection of the submissions from either side. The Arbitrator’s finding that the only injury Mr Raulston suffered on 17 September 2007 was to his nose and face was inconsistent with the next sentence, where he said that he noted Mr Raulston’s statement of “some neck and shoulder symptoms” which he did not think could have been “substantial”. I assume, though it is far from clear, that the reference to “some neck and shoulder symptoms” was reference to Mr Raulston experiencing those symptoms after the incident on 17 September 2007. Symptoms do not have to be “substantial” to constitute an injury or for an incapacity to result from them. More importantly, the Arbitrator’s statement implied, contrary to his statement that Mr Raulston only injured his nose and face, an acceptance of Mr Raulston’s case that he had injured his neck on 17 September. The issues at the arbitration required the Arbitrator to determine whether he accepted Mr Raulston’s evidence that he injured his neck on several separate occasions in the course of his employment, that he had a build up of pain in his neck and shoulders after 17 September 2007, that he felt extreme pain in his neck and shoulders when he sneezed on 20 November 2007, and that his incapacity and impairment resulted from his work injuries, or, whether he accepted Toll’s argument that all of Mr Raulston’s problems resulted from a non-work event at home on 20 November 2007. Though he concluded that the worker’s incapacity and impairments resulted from the non-work incident on 20 November 2007, he did not properly explain how he reached that conclusion and did not properly deal with the issues or the parties’ submissions. He made only one relevant reference to the submissions when he said (at [39]) that he rejected Mr Bucknell’s submission that the incapacity was the inevitable result of the September 2007 injury. He did not say why he rejected that submission.
Decision
Reasons for decision
In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 (Soulemezis), McHugh JA (as his Honour then was) stated at 280:“If an obligation to give reasons for a decision exists its discharge does not require lengthy or elaborate reasons: Ex parte Powter; Re Powter (1945) 46 SR (NSW) 1 at 5: 63 WN 34 at 36. But it is necessary that the essential ground or grounds upon which the decision rests should be articulated. In many cases the reasons for preferring one conclusion to another also need to be given.” (emphasis added) The resolution of disputes between medical experts requires a rational examination and analysis of the evidence and the issues (per Ipp JA in Sourlos v Luv A Coffee Lismore Pty Ltd [2007] NSWCA 203 at [25] citing Wiki v Atlantis Relocations (NSW) Pty Ltd [2004] NSWCA 174; 60 NSWLR 127). In Hume v Walton [2005] NSWCA 148, McColl JA said at [69]:“The primary judge’s duty was not only to record the evidence but also to record the findings she made based on that evidence: Mifsud v Campbell (1991) 21 NSWLR 725 at 728. While the extent of that duty may depend upon the circumstances of the individual case, where there is disputed expert evidence, the ‘parties are entitled to have the judge enter into the issues canvassed before the Court and to an explanation by the judge as to why the judge prefers one case over the other’: Archibald v Byron Shire Council [2003] NSWCA 292; (2003) 129 LGERA 311 at [54] per Sheller JA (with whom Beazley JA agreed); see also Bright v Joodie Holdings No 2 Pty Ltd [2005] NSWCA 134 at [33] per Santow JA (with whom Sheller JA and Campbell AJA agreed).” Her Honour’s comments in Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42; 2 DDCR 271 at [100] are also relevant:“The primary judge must state generally and briefly the grounds which have led him or her to conclusions concerning disputed factual questions and to list the findings on the principal contested issues. Although it is not necessary that the judge refer to all the evidence, ‘[w]here nothing exists but an assertion of satisfaction on undifferentiated evidence the judicial obligation has not been discharged’: Soulemezis, at 259, per Kirby P.” On reading the Arbitrator’s decision as a whole, I am not satisfied that he has given adequate reasons explaining why he reached his conclusions and, in particular, why he rejected Mr Raulston’s evidence. The Arbitrator did not explain why he did not think there was any reliable evidence of any “substantial injury” having occurred in September 2007 or before that date. If Mr Raulston’s evidence was accepted, it provided support for his claim. The Arbitrator did not say if he accepted or rejected Mr Raulston’s evidence. His decision implies that he rejected the worker’s evidence, but, if that was the case, he did not say why he rejected it. More importantly, the issue identified by the Arbitrator was not whether Mr Raulston suffered a “substantial injury” at work, but whether his incapacity and impairment resulted from his (apparently) accepted injuries.