Recyclit Enviro Chutes Pty Ltd v Axisa
[2016] NSWWCCPD 41
•25 August 2016
| WORKERS COMPENSATION COMMISSION | ||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||
| CITATION: | Recyclit Enviro Chutes Pty Ltd v Axisa [2016] NSWWCCPD 41 | |
| APPELLANT: | Recyclit Enviro Chutes Pty Ltd | |
| RESPONDENT: | Tony Axisa | |
| INSURER: | QBE Workers Compensation (NSW) Ltd | |
| FILE NUMBER: | A1-19/16 | |
| ARBITRATOR: | Mr R Bell | |
| DATE OF ARBITRATOR’S DECISION: | 10 May 2016 | |
| DATE OF APPEAL DECISION: | 25 August 2016 | |
| SUBJECT MATTER OF DECISION: | Absence of transcript of extempore reasons for decision; statutory duty to give reasons; s 294 of the Workplace Injury Management and Workers Compensation Act 1998 and r 15.6 of the Workers Compensation Commission Rules 2011; constructive failure to give reasons | |
| PRESIDENTIAL MEMBER: | President Judge Keating | |
| HEARING: | On the papers | |
| REPRESENTATION: | Appellant: | Mulcahy Lawyers |
| Respondent: | Firths, The Compensation Lawyers | |
| ORDERS MADE ON APPEAL: | 1. The Arbitrator’s determination of 10 May 2016 is revoked. 2. The matter is remitted to another Arbitrator for determination afresh. | |
INTRODUCTION
This matter concerns whether an appeal under s 352 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) can proceed in the absence of a transcript of the Arbitrator’s extempore reasons for decision.
BACKGROUND
Mr Axisa, the respondent to the appeal, was employed by the appellant as a truck driver. On 7 December 2010, Mr Axisa was alighting from his truck when a gust of wind slammed the truck door closed crushing his hand and causing him to fall backwards onto the ground landing heavily.
Mr Axisa claimed lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) in the sum of $45,750 in respect of 22 per cent whole person impairment. The impairment, assessed by Dr Patrick in a report dated 23 August 2015, comprised of five per cent impairment in respect of the thoracic spine, 16 per cent impairment in respect of the lumbar spine and two per cent impairment in respect of the left upper extremity.
In a notice issued pursuant to s 74 of the 1998 Act, QBE Workers Compensation (NSW) Ltd (QBE), the employer’s insurer, denied liability for injury to the thoracic spine. QBE denied that the thoracic spine was injured in the incident on 7 December 2010. Among other reasons, it also denied that there had been any consequential injury to the thoracic spine or that it resulted in the contraction or aggravation of a disease to the thoracic spine.
On 6 January 2016, Mr Axisa lodged an Application to Resolve a Dispute in the Commission (the Application). He claimed lump sum compensation as described above.
On 22 January 2016, the employer filed a Reply to the Application denying liability for the reasons referred to in the s 74 notice.
On 18 April 2016, the matter came before a Commission Arbitrator for a conciliation and arbitration hearing. No oral evidence was called. The Arbitrator reserved his decision.
On 29 April 2016, the Arbitrator convened a telephone conference and delivered his reasons for decision orally. The Arbitrator found in favour of Mr Axisa in respect of the alleged injury to the thoracic spine. On 10 May 2016, the Commission issued a Certificate of Determination in the following terms:
“The determination of the Commission in this matter is as follows:
1. That the Commission finds [Mr Axisa] suffered injury to the thoracic spine in the course of his employment with the [appellant] on 7 December 2010.
2. That the claim for s. 66 of the Workers Compensation Act 1987 lump sum compensation for injury to the lumbar spine; thoracic spine; and left upper extremity on 7 December 2010 is remitted to the Registrar for referral to an Approved Medical Specialist (AMS).
3. The documents annexed to the Application to Resolve a Dispute and to the Reply, plus documents tendered at the hearing comprising:
a.Supplementary statement of Mr Axisa dated 8 March 2016; and
b.Clinical notes of Dr Jarzynski
are admitted before the AMS.
Note: [Mr Axisa] requests an assessment by an AMS at Sydney.”
The employer has appealed the Arbitrator’s determination.
PRELIMINARY MATTERS
There is no issue that the threshold requirements of ss 352(3) and (4) of the 1998 Act are satisfied.
Due to a technical malfunction with the recording of the Arbitrator’s reasons for decision, no transcript is available of the extempore decision delivered on 29 April 2016.
GROUNDS OF APPEAL
The appellant alleges that the Arbitrator erred in:
(a) “accepting that Mr Axisa injured his thoracic spine on 7 December 2010 where the opinion of Dr Patrick is of no weight or against the weight of the evidence”, and
(b) by failing to provide proper and adequate reasons for finding that Mr Axisa suffered a frank injury to his thoracic spine on 7 December 2010.
The appellant further alleges that:
(c) the issue of liability for Mr Axisa’s alleged thoracic spine injury should be remitted for rehearing due to the absence of a sound recording or transcription of the Arbitrator’s extempore reasons.
ISSUES ON APPEAL
The issues on appeal concern whether the Arbitrator erred in accepting the opinion of Dr Patrick, who is a surgeon retained by Mr Axisa’s solicitor. The appellant alleges that Dr Patrick’s evidence is of no weight or against the weight of the evidence. The appellant also alleges that Dr Patrick did not record a history of injury to the thoracic spine and did not refer to radiological evidence to support his opinion. Further it is alleged that Dr Patrick failed to adequately explain his opinion and in particular failed to explain why a finding of muscle guarding on examination was causally related to the alleged injury to the thoracic spine.
Mr Axisa’s credit is in issue. This is in terms of whether his uncorroborated evidence of contemporaneous complaints of injury to the thoracic spine could be accepted in the absence of recorded complaints of injury to the thoracic spine in Mr Axisa’s nominated treating doctor’s notes or in the WorkCover certificates of capacity. His credit is also in issue in terms of whether he knew the difference between his thoracic spine and lumbar spine when reporting symptoms to his doctors.
The appellant complains that the Arbitrator did not provide proper and adequate reasons for accepting Mr Axisa’s evidence for not making a report of injury to the thoracic spine until he saw Dr Patrick on 21 August 2015, or the absence of reported thoracic spine symptoms to Drs Oates or Jander (both occupational physicians retained by the appellant).
The appellant also submits that the Arbitrator failed to explain his reasoning for accepting the evidence of Mr Axisa’s treating surgeon Dr Cleaver, when other practitioners did not support the claimed injury to the thoracic spine.
Moreover, the Arbitrator failed to expose his reasons for accepting that a finding of muscle guarding in the thoracic spine, as found by Dr Patrick on examination, was causally related to the injury on 7 December 2010, in the absence of any demonstrable history or relevant pathology.
THE ABSENCE OF THE TRANSCRIPT
Submissions
The appellant submits that because the grounds of appeal relate partly to the adequacy of the Arbitrator’s extempore reasons it is appropriate for the question of liability for injury to the thoracic spine to be referred for further rehearing: Fraternity Bowling & Recreation Club Ltd v Sartor [2004] NSWWCCPD 47 (Fraternity).
Mr Axisa submits that the absence of a transcript of the Arbitrator’s reasons does not amount to an error that would result in the appeal being upheld. It submits:
“Appeals often occur in circumstances where the transcript is incomplete or alleged to be inadequate. In such circumstances, evidence has always been on application by the appellant permitted to establish if error has been made. The appellant of course carries the obligation to adduce the fresh evidence and the burden of having failed to adduce the evidence.”
Mr Axisa also submits that the power to admit fresh evidence on the appeal could overcome the lack of a transcript: Singh v Thompson Health Care Ltd [2009] NSWWCCPD 11. He submits that the appellant could have, if it so wished, made an application under s 352(6) to seek leave for the admission of fresh evidence on appeal, namely, a re-construction of the Arbitrator’s reasons by its solicitor who was present at the time the extempore decision was given. Mr Axisa further submits that, as no such application has been made, an adverse inference should be drawn that such evidence would not have supported the appellant’s contentions of appealable error.
CONSIDERATION
The statutory requirement to provide a statement of reasons is found in s 294 of the 1998 Act. Section 294 of the 1998 Act provides:
“(1) If a dispute is determined by the Commission, the Commission must as soon as practicable after the determination of the dispute issue the parties to the dispute with a certificate as to the determination.
(2) A brief statement is to be attached to the certificate setting out the Commission’s reasons for the determination.”
The matters to be included in a statement of reasons are governed by r 15.6 of the Workers Compensation Commission Rules 2011. It is in the following terms:
“(1) A statement of the Commission's reasons referred to in section 294 (2) of the 1998 Act is to include:
(a) the Commission's findings on material questions of fact, referring to the evidence or other material on which those findings were based, and
(b) the Commission's understanding of the applicable law, and
(c) the reasoning processes that led the Commission to the conclusions it made.
(2) Without limiting subrule (1), the reasons set out in a statement referred to in subrule (1) are to be stated sufficiently (in the opinion of the Commission) to make the parties aware of the Commission's view of the case made by each of them.”
The absence of the recorded reasons for decision amounts to a constructive failure to give reasons as required by s 294 and r 15.6. It is immaterial whether that failure was occasioned by human error in the operation of the sound recording equipment, administrative failure or technical failure. Ultimately, it must be accepted that the Arbitrator erred in failing to provide adequate reasons for the decision: Fraternity and Thompson v Expamet Pty Ltd t/as T & G Sheetmetal Services [2005] NSWWCCPD 14 (Thompson) at [11].
Thompson was cited with approval by Acting Deputy President Snell (as he then was) in K‑Mart Australia Ltd v Falzon [2006] NSWWCCPD 283, where the Acting Deputy President concluded (at [22]):
“In short, there is no decision for me to review within the meaning of section 352(5) of the 1998 Act. Applying the approach taken by Fleming DP in Fraternity No 1 and Thompson, there is a constructive failure to give reasons which amounts to an error of law.”
In two further Presidential decisions, namely Nepean Rubber Moulding Pty Ltd v Veljanoski [2014] NSWWCCPD 3 and Endeavour Energy v Ohmsen [2014] NSWWCCPD 6, the Commission has found that the absence of a transcript of the Arbitrator’s extempore reasons constituted appealable error.
Mr Axisa has not directed me to any reasoned argument of authority to support the submission that appeals “often occur in circumstances where the transcript is incomplete or alleged to be inadequate”. Such a submission is clearly inconsistent with the Commission’s approach in such circumstances as outlined by the authorities to which I have referred and I reject it.
Indeed, in Fraternity due to the absence of a transcript of the extempore decision the matter was remitted back to the Arbitrator for provision of reasons for the decision. However, in Fraternity Bowling & Recreation Club Ltd v Sartor [2004] NSWWCCPD 79 Deputy President Fleming determined that the Arbitrator’s re-constructed reasons were inadequate, due in part to the Arbitrator’s lack of recall. Consequently the appeal failed and the matter was remitted for re-determination.
I also reject the submission that the appellant was under an obligation to re-construct the Arbitrator’s extempore decision and seek to have such a re-construction admitted on appeal as fresh evidence. Again no reasoned argument or authority was advanced to support the submission, which is perhaps unsurprising because it is clearly wrong. The absence of the transcript was due to a shortcoming in the Commission’s procedures concerning the recording of the extempore decision. The appellant was under no obligation to attempt to rectify that difficulty and certainly no adverse inference could be drawn against the appellant for not doing so.
There may be occasions where the absence of a transcript of evidence given before the Arbitrator can be overcome on appeal (for example: Aluminium Louvres & Ceilings Pty Ltd v Xue Qin Zheng [2006] NSWCA 34). However, it is more likely that the absence of a transcript of extempore reasons will be fatal to a Presidential member discharging his or her functions to consider and determine an appeal under s 352.
The nature of the alleged errors compound the difficulty in proceeding with the appeal. Where a Presidential member is required to determine issues involving credit and the adequacy of reasons that task is frustrated by the absence of recorded reasons.
Whilst it is highly regrettable, I find that the Arbitrator erred in failing to provide reasons for the determination as required by s 294 and r 15.6. Therefore the appeal is upheld and the matter will be remitted to another Arbitrator to be heard and determined afresh.
ORDER
The Arbitrator’s determination of 10 May 2016 is revoked.
The matter is remitted to another Arbitrator for determination afresh.
Judge Keating
President
25 August 2016
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