Reddy v Australian Automotive Group Pty Limited
[2008] NSWWCCPD 71
•7 July 2008
| WORKERS COMPENSATION COMMISSION | ||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||||
| CITATION: | Reddy v Australian Automotive Group Pty Limited [2008] NSWWCCPD 71 | |||||
| APPELLANT: | Mahalingam Reddy | |||||
| RESPONDENT: | Australian Automotive Group Pty Limited | |||||
| INSURER: | Employers Mutual Indemnity Workers Compensation Ltd | |||||
| FILE NUMBER: | WCC8862-07 | |||||
| DATE OF ARBITRATOR’S DECISION: | 18 March 2008 | |||||
| DATE OF APPEAL DECISION: | 7 July 2008 | |||||
| SUBJECT MATTER OF DECISION: | Section 354(7A)(b) of the Workplace Injury Management and Workers Compensation Act 1998; dismissal of proceedings for lack of substance; notice under section 74 of the 1998 Act; failure to take into account evidence as to injury. | |||||
| PRESIDENTIAL MEMBER: | Deputy President Gary Byron | |||||
| HEARING: | Determined ‘on the papers’ | |||||
| REPRESENTATION: | Appellant: | P K Simpson & Co | ||||
| Respondent: | Stephen Lee Legal | |||||
| ORDERS MADE ON APPEAL: | The decision of the Arbitrator dated 18 March 2008 is revoked and the matter is remitted to another Arbitrator for determination afresh in accordance with these Reasons. | |||||
| The Respondent Employer is to pay the Appellant Worker’s costs of this appeal. | ||||||
BACKGROUND TO THE APPEAL
On 15 April 2008 Mr Mahalingam Reddy (‘the Appellant Worker/Mr Reddy’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 18 March 2008.
The Respondent to the Appeal is Australian Automotive Group Pty Limited (‘the Respondent Employer/Australian Automotive’).
The Insurer is Employers Mutual Indemnity Workers Compensation Ltd
Mr Reddy is a married man approaching his 60th birthday. He commenced working for Australian Automotive on or about 30 April 1999 and is still employed by that company.
In carrying out his duties, Mr Reddy says that on or about 30 August 2005 he hurt his right shoulder and believes that the injury has caused symptoms that affect the proper use, or has caused impairment, of his right arm. He states that he was manually loading a full bumper bar box into the back of a delivery van at the time of injury. In his (unsigned) statement dated 15 November 2007 he says, “It was a large box that weighed about 20 kgs. The injury happened at Respondent’s premises at Top Ryde. At the time of the injury I was working as a Spare Parts Delivery Driver. I gave notice of the injury on 30 August 2005 and the injury was reported to Miss S Smith.”
Mr Reddy states that he completed the relevant claim forms and provided medical certificates. He states, “I was always proud of my work, but after the injury I could not work at the same pace and I had to take some time off and seek medical treatment.” He says that he still suffers symptoms and restrictions because of his right shoulder injury, suffering ongoing discomfort and pain, limitations on the length of time that he can work without a break, and in the type of work he can perform with his right arm and shoulder.
Mr Reddy states that the Insurer denied liability for his claim, by letter dated 8 May 2006. He says, “The insurer initially accepted my claim but denied it in May 2006 when my specialist had recommended that I have surgery because my shoulder was not getting better.” Mr Reddy said that he had suffered a previous injury to the same shoulder in about February 2005, and he had disclosed this injury in his claim form and in consultation with all of the doctors he has seen in relation to his work injury.
On 20 November 2007 Mr Reddy duly filed an ‘Application to Resolve a Dispute’ in the Commission, claiming the sum of $8,750.00 for 7% whole person permanent impairment from the workplace incident on 30 August 2005, being for “whole person impairment in relation to right upper extremity”.
Australian Automotive filed a ‘Reply to Application to Resolve a Dispute’ in the Commission on 11 December 2007, stating that Mr Reddy is not entitled to compensation as alleged or at all.
A teleconference was scheduled between the parties and the Arbitrator for 26 January 2008 at 9 am.
Australian Automotive’s solicitor wrote to the Commission on 7 January 2008 seeking to have the teleconference rescheduled, as he was at that time listed in two matters in the Commission at the same time on the same date. On 16 January 2008 the matter was set down for a conciliation/arbitration hearing on Thursday 7 February 2008 at 10 am. There is no record on the file to indicate what occurred at the teleconference, if it was held, as the details in the “Teleconference Outcomes” form were not completed, except to indicate that the dispute regarding payment of lump sum compensation remained in dispute.
The conciliation/arbitration proceedings scheduled for 7 February 2008 were cancelled because Mr Reddy had been admitted to hospital. The conciliation conference and arbitral hearing were rescheduled and eventually took place on 14 March 2008, before the Arbitrator.
The Arbitrator issued a ‘Certificate of Determination’ dated 18 March 2008, together with a ‘Statement of Reasons for Decision’ (‘Reasons’).
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’ records the Arbitrator’s orders as follows:
“1.The proceedings are dismissed pursuant to s 354(7A)(b) of the Workplace Injury Management Act 1987 [sic] on the basis that they lack substance.
2. No order as to costs.”
A transcript of the arbitral proceedings (‘T’), setting out the Arbitrator’s Reasons, was provided to each of the parties.
ISSUES IN DISPUTE
The issues in dispute in the appeal are found in the grounds of appeal:
“2.6.1The Arbitrator erred in finding that the proceedings lacked substance within the meaning of s 354(7A)(b) of the Workplace Injury Management Act 1987 NSW [sic].
2.6.2The Arbitrator erred in considering matters outside the s74 notice, namely whether the applicant had reached maximum medical improvement.
2.6.3The Arbitrator erred in failing to take into account the evidence available on injury.”
Australian Automotive opposes the appeal and submits that the Arbitrator’s decision should be confirmed.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘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.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by each of the parties 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
Before proceeding to deal with an appeal the Commission must determine whether the application meets the threshold requirements of section 352 of the 1998 Act.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
The amount of compensation at issue on appeal is at least $5000. Section 352(2)(a) of the 1998 Act is satisfied. Section 352(2)(b) of the 1998 Act has no application as no amount of compensation was awarded in the decision appealed against (see Mawson v Fletchers International Exports Pty Ltd [2002] NSWWCCPD 5).
Leave to appeal is granted.
PROCEEDINGS BEFORE THE ARBITRATOR
At the commencement of the arbitration hearing on 14 March 2008 the Arbitrator stated:
“The issue that is to be heard today relates to injury, so it’s a threshold injury, and the respondent has made a request – has sought leave to cross-examine the applicant. We have discussed the questions, and I have granted leave for him to do that.” (See T 1, line 29).
Counsel for Australian Automotive then proceeded to cross-examine Mr Reddy about his claim of work-related injury, the subject of the dispute. Mr Reddy was sworn prior to giving his evidence. The documentary evidence filed in the matter and Mr Reddy’s oral evidence given on the day comprises the whole of the evidence that was before the Arbitrator, and that is before me in this appeal.
At the conclusion of cross-examination, Counsel for Australian Automotive submitted that a “threshold issue” had arisen. His oral submissions, the submissions in response by Counsel for Mr Reddy, and the Arbitrator’s comments, findings and reasons are set out at T 16-20.
The essence of Australian Automotive’s oral submissions before the Arbitrator is contained in the submission set out at T16 (from line 51) to T17, as follows:
“Well, no, there really has to be, apart from injury. I mean, if the applicant’s unambiguous intention is to proceed to surgery, then there is now no evidence that maximum medical improvement has been achieved, and can’t be, and, indeed, Dr Habib says that in his very terms of his report. He says that:
Without surgical intervention of the right shoulder, the right shoulder would be considered to have reached maximum medical improvement.
And then he goes on to make an assessment on the basis of the present condition, but if the applicant’s unambiguous intention is to proceed to surgery, it’s our contention, leaving aside all other issues, that this application is premature.”
Counsel then goes on to say at T17, line 16, “And that’s not something that we could know until we get here today and I asked him.”
Counsel for Mr Reddy made no submission at that point.
After a brief adjournment, the following exchange occurred as set out at T 17-18:
“MR ROBERTSON: Thankyou. In fact, what I’m trying to do – this is a section 66 claim. If there is a reason why it cannot be resolved or it cannot be determined, it is sufficient for you to dispose of the proceedings, such as maximum medical improvement hasn’t been achieved. That is sufficient for you to dispose of the proceedings, and that’s, in fact, what you should do, not go to determine other issues.
MR CARNEY: No, look, in my submission, that is putting the cart before the horse. You can’t have maximum improvement of a case where there’s no injury. I mean, it just can’t happen. If you want to concede injury and you want to concede that the matter should then be at a stage where it could be referred off to an AMS, that’s fine, and at that stage you cay say, ‘Well, no, it can’t be because it hasn’t reached maximum improvement’ or ‘there hasn’t been stabilisation’, if you like.
MR ROBERTSON: But I don’t understand your authority for that.
MR CARNEY: Well, it’s very simple. You can’t have a referral to an AMS or even a case that’s even being contemplated going to an AMS without injury. You have to have injury first.
MR ROBERTSON: I accept that, but this case isn’t going to be referred to an AMS. It can’t be.
MR CARNEY: Yeah, but you still have to have injury before you can even come to that conclusion.
MR ROBERTSON: Why?
MR CARNEY: Because the Arbitrator can’t make a ruling on something that she doesn’t have the jurisdiction to do, and she only has jurisdiction if there’s injury. She has to have --
MR ROBERTSON: I disagree, Arbitrator. Our position is that this matter can be dispensed with now and you don’t need to determine those matters. I mean, I’m happy for you to determine those matters.
MR CARNEY: I think it will save a lot of time in the future.
MR ROBERTSON: Well, it won’t, I can tell you that. I can tell you that now. It won’t.
MR CARNEY: Well, why don’t you just concede injury?
MR ROBERTSON: Because I’m not instructed – why would I concede injury in the circumstances of this case? Anyhow, I’m happy to – if that’s how you wish the case to proceed, Arbitrator, and it’s your case, I’m –
MR CARNEY: It’s my case.
MR ROBERTSON: -- perfectly happy to do this, happy to do that, but we would say it is unnecessary for you to do that when the application cannot proceed at this point.
ARBITRATOR: Mmm. I think I’ll just take a couple of minutes to think about it. My gut feeling is that Mr Carney is actually correct, that I have to determine the threshold injury, but I just would like a couple of minutes to think through it.”
Following a brief adjournment the Arbitrator invited further, brief submissions. Mr Robertson for Australian Automotive addressed the Arbitrator in similar terms to those set out above, submitting that the “claim for section 66 benefits is premature, and it’s quite sufficient for you to dispose of these proceedings by so finding and that would be sufficient for you to bring these proceedings to a close.” (T19)
Mr Carney addressed the Arbitrator in response, and reiterated:
“… until there’s a finding of injury, a section 66 claim can’t arise. True it is that this is a claim for section 66, but section 66 applies to a permanent impairment arising from an injury at work, and we say that unless there’s a finding of injury at work, you can’t even get to the point of making a decision on section 66.” (T19)
He went on to say, as recorded at T20, “… but the fact of the matter is that we need to have some sort of finding of injury at some stage to ground the jurisdiction.”
In response to that, Mr Robertson said:
“Can I say, Arbitrator, that the jurisdiction is granted [sic] by the dispute. There’s no problem with jurisdiction. My friend says that there needs to be a finding of injury before you can make a finding, if you were so inclined, to find that maximum medical improvement hadn’t occurred. With great respect, that’s not necessary. It’s perfectly proper for you to you to [sic] to come to the conclusion, irrespective of any other issue in the case, it is clear that maximum medical improvement has not occurred, and that’s sufficient for you to dispose of this case.”
The Arbitrator’s decision and reasons are recorded at T20, as follows:
“All right. Well, I’m inclined to agree with Mr Robertson in this case. There is only the section 66 matter that is listed here. We have heard from Mr Reddy that he hasn’t reached maximum improvement and that he’s going to have the operation regardless. So, I think that whatever might happen in the future becomes a little bit hypothetical. And, so, in accordance with section 354(7A)(b), I believe that the proceedings are lacking in substance and that I will dismiss the proceedings.”
SUBMISSIONS ON APPEAL
Mr Reddy’s submissions on appeal are directed specifically to the three grounds of appeal, set out at [16] above, of these Reasons.
He submits, as to the first ground:
“(a)The appellant submits that there was an error by the arbitrator in regards the application of s354(7A)(b) of the Workplace Injury Management Act 1987 NSW [sic] (the Act) and more particularly the finding that the proceedings lacked substance.
(b)The Arbitrator ignored the fact that the s74 notice which put injury in issue and also that there was ‘no question’ to got [sic] to the Approved Medical Specialist or that s60 expenses should not be paid as there was no ongoing symptoms related to the initial injury, in other words, whether the ‘aggravation’ is still causing symptoms or had ceased.
(c)There is no exploration of reasons of how when the worker clearly states in his statement that he injured himself at work, when he completed a claim form and the respondent does not put on evidence that contradicts this evidence that there could be substance in the dispute as to injury.”
He submits as to the second ground:
“(a)The Arbitrator ignored the fact that the s74 notice put injury in dispute and nothing else.
(b)There is no explanation of reasons of how when the worker clearly states in his statement that he injured himself at work, when he completed a claim form and the respondent does not put on evidence that contradicts this evidence that there could be no substance in the ‘injury’ disputed.
(c)The Arbitrator was asked to dismiss the claim on the basis that Maximum Medical Improvement had not been reached. This was not an issue raised in the s74 notice nor is it an argument what would preclude finding an injury, or that s60 expenses are payable.”
He submits as to the third ground:
“(a)The appellant submits that there was an error by the Arbitrator in regards the application of s354(7A)(b) of the Workplace Injury Management Act 1987 NSW [sic] (the Act) and more particularly the finding that the proceedings lacked substance.
(b)The Arbitrator ignored the fact that s74 notice put injury in dispute and nothing else.
(c)There is no explanation of reasons of how when the worker clearly states in his statement that he injured himself at work, when he completed a claim form and the respondent does not put on evidence that contradicts this evidence that there could be substance in the dispute.
(d)The Arbitrator was asked to dismiss the claim on the basis that Maximum Medical Improvement had not been reached. This was not an issue raised in the s74 notice nor is it an argument that would preclude finding an injury, or that s60 expenses are payable.
Mr Reddy seeks a determination by the Commission that the proceedings do not lack substance and that he suffered injury to his right shoulder in the course of his employment, as claimed. He requests further, that a determination be made, that as a result of injury he suffers a whole person impairment of 7%, that he be paid a lump sum by way of compensation in the amount of $8,750, and that maximum medical improvement has been reached. Alternatively, he submits that the matter be remitted for determination afresh by another Arbitrator.
Australian Automotive provides two responses to all three grounds, in its submissions on appeal.
Its first submission in response is as follows:
“At the heart of all three Grounds of Appeal is the assertion of error on the basis that certain issues were not raised by the s74 Notice.
It is relevant to all three Grounds of Appeal to note that during the Conciliation phase of the proceedings discussions took place as to the issues between the parties. In accordance with the practice of the Commission, properly these discussions were not recorded. The Respondent indicate during this Conciliation phase it would be seeking leave to cross examine the worker on those issues which were, firstly, whether the Appellant had sustained injury in the manner alleged or at all, secondly, whether the Appellant had full recovered from the effects of any injury and, thirdly whether the Appellant had reached maximum medical improvement. The Appellant through his Counsel, objected to being cross examined on the issues, however, when asked by the Arbitrator the basis of the objection, none was forthcoming. Leave was granted. It is clear from the attached Transcript (P2 Lines 16 and 17) that such leave had been sought prior to the arbitration being recorded. The Appellant does not contend in this Appeal that such leave ought not have been granted. For the reason set out above, the respondent disputes the completeness of the Arbitrator’s statement that ….. ‘The issue that is to be heard today relates to injury, so it is a threshold injury,’ … (P2 Lines 15 & 16).
No objection was taken by the Appellant at that point to the fact that not all of these issues had been raised in the s74 Notice. Certainly the issue of ‘injury’ was not raised in the denial nor indeed was ‘maximum medical improvement’.
From page 3 line 32 to Page 14 Line 31 the Appellant is cross examined at some modest length in relation to the first two issues without relevant objection. The only objection during the entire cross examination appears at Page 13 Lines 41 to 46 and, it is submitted, this was not relevant to the issues herein.
From page 14 Line 33 to Page 15 Line 21 the Appellant is cross examined in relation to the third issue without any objection whatsoever.
The Appellant took no issue in relation to the so called s74 point during addresses.
In these circumstances it is respectfully submitted by the Respondent that the Appellant cannot now complain in this Appeal that these issues were not raised in the s74 Notice. Any such objection should have been taken at the time the Respondent indicated the issues it sought to have determined by the Commission and sought leave to cross examine on them. At the very least, if the s74 point was to be taken, it could and should have been taken during cross examination. The Commission was entitled to treat the failure to object as a waiver of the Appellant’s right to object and he is thereafter bound by that decision. It is respectfully submitted that the failure to do so is fatal to this Appeal.
Had objection been taken at the appropriate time the Respondent would have been entitled to make the submission pursuant to s 289A(4) of the Workplace Injury Management and Workers Compensation Act, 1998 that the issues ought to be heard or otherwise dealt with by the Commission in the interests of justice. Alternatively, it is submitted that the Applicant’s silence during the Conciliation and Arbitration as well as the leave of the Commission to cross examine on issues not dealt with by the s 74 Notice amounts to an acquiescence that s289A(4) could be applied.”
Its second submission in response is as follows:
“The Appellant also complains in each Ground of Appeal that the Arbitrator did not determine the issue of ‘injury’. It must be remembered that the only matter before the Commission was limited to a claim pursuant to s 66.
The medical evidence supporting maximum medical improvement is contained in the report of Dr Habib dated 1st September, 2006. At page 3 under the heading ‘Prognosis’ he states as follows:-
‘Without surgical intervention the right shoulder condition would be considered to have reached maximum medical improvement.”
Clearly, with surgical intervention the position would be otherwise. In his evidence at Page 14 Lines 46 to 47 and Page 15 Lines 1 to 21 the Appellant makes it abundantly clear he intends to undergo surgical intervention whether the condition is compensable pursuant to the provisions of the Workers Compensation Act or otherwise. It is submitted that it was, therefore open to the Arbitrator to find that maximum medical improvement had not been reached. Indeed the Appellant did not and does not submit otherwise.
The Appellant’s Counsel submitted that it was incumbent on the Commissioner [sic] to determine the ‘injury’ issue irrespective of whether maximum medical improvement had been achieved. Again with respect, the Respondent submits now, as it did at the hearing, this is simply not so. If the Arbitrator was satisfied as indeed she clearly was (Page 20 Lines 15 to 17) that maximum medical improvement had not been reached then that was sufficient to dispose of the matter. It was not incumbent upon her to determine ‘injury’ or any other issue for that matter whether it would ‘save a lot of time in the future’ as submitted by the Applicant’s Counsel at Page 18 Lines 14 and 15, or not. It is not submitted that it would have been an error for her to do so but that it was not necessary and does not amount to an error of law to decline so to do.”
Australian Automotive submits that the decision of the Arbitrator should be confirmed.
DISCUSSION AND FINDINGS
The Arbitrator’s reasons for decision are wholly contained in her statement reproduced at [35] above, of these Reasons.
It should be noted that there is no record on the relevant Commission file to indicate what took place in the conciliation phase, prior to the commencement of the formal arbitration hearing. It is recorded at page 1 of the transcript of the arbitral proceedings that the Arbitrator had granted leave for Mr Robertson to cross-examine Mr Reddy. There is no reference in the file or the transcript that objections were raised as to the cross examination of Mr Reddy, nor the basis for any such objections that may have been put forward.
It should be noted further, that Australian Automotives “disputes the completeness of the Arbitrator’s statement that….. ‘The issue that is to be heard today relates to injury, so it is a threshold injury,’ … (P2 Lines 15 & 16).”
On a reading of the transcript of the proceedings before the Arbitrator, it appears to me that the Arbitrator accepted that Mr Reddy had not “reached maximum improvement”. I take that effectively, to be a finding in that regard because it then led to the Arbitrator’s decision to bring the proceedings to a close (notwithstanding that she had earlier stated, and I understand she meant, that the issue [fact] of [work] “injury” [that resulted in permanent impairment] was the issue before her in the proceedings). In that event, she states, “So, I think that whatever might happen in the future becomes a little bit hypothetical.” She further states at T 20, “There is only the section 66 matter that is listed here.”
Mr Reddy’s Counsel had submitted that no consideration could be given to a “section 66 claim” as “section 66 applies to permanent impairment arising from an injury at work, and we say that unless there’s a finding of injury at work, you can’t even get to the point of making a decision on section 66.”
Section 354 (7A) of the 1998 Act provides:
“(7A) The Commission may dismiss the proceedings before it before or during the conduct of proceedings:
(a) if it is satisfied that the proceedings have been abandoned, or(b) if it is satisfied that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, or
(c)for any other ground of dismissal specified in the Rules.”
Section 66(1) of the Workers Compensation Act 1987 provides:
“A worker who receives an injury that results in permanent impairment is entitled to receive from the worker’s employer compensation for that permanent impairment as provided by this section. Permanent impairment compensation is in addition to any other compensation under this Act.” (Emphasis added).
“Injury” is defined in section 4 of the 1987 Act as follows:
“4 In this Act -
injury -
(a) means personal injury arising out of or in the course of employment;
(b) includes -(i)a disease which is contracted by a worker in the course of employment and to which the employment was a contributing factor; and
(ii)the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration; and
(c)does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
Did the Arbitrator err in finding that the proceedings lacked substance within the meaning of section 354(7A)(b) of the 1998 Act?
In determining this issue, the question is whether the decision made by the Arbitrator was correct and whether it was open to her having regard to the facts and circumstances.
A proceeding can only be said to be lacking in substance if it has no material purpose or point. Such a proceeding would for example contain no essential element or relevant issue for determination by, or to be addressed by, the Commission in terms of disputed rights and obligations between the parties. A proceeding without substance is by definition, a proceeding without worth or value. In this matter the Arbitrator’s only reason for describing the proceedings as lacking in substance is to be found in her observation, “So, I think that what might happen in the future becomes a little bit hypothetical.”
The proceedings before the Arbitrator could not, accurately, be so described. The Arbitrator had before her a dispute as to whether the injury to Mr Reddy was or was not, a workplace injury that resulted in permanent impairment (section 66(1) of the 1987 Act), and whether it was compensable under the Workers Compensation Acts. The fact of “injury” was and remains in dispute between the parties. Indeed Mr Robertson for Australian Automotive made it clear in the proceedings before the Arbitrator that “injury” was not conceded (T18, line 31). Much was made of the fact that Mr Reddy’s medical condition had not “reached maximum medical improvement”, and it is a factor in this case. A reading of the material that was before the Arbitrator indicates that there were other issues and factors involved in the dispute before her, also.
Most certainly, the Arbitrator was confronted with a difficulty. Mr Robertson described the proceedings as “premature” (T19, line 27), and that may or may not be so. However, Mr Reddy gave no indication that he wished to discontinue the proceedings and return to the Commission at another time. That is a matter for him. In any event, whether the proceedings were premature or not, is quite different to the proposition that the proceedings lack substance.
It is not unreasonable to think that from time to time, a matter will come before an Arbitrator that does not sit comfortably within the usual order of things and/or the requirements of the procedural framework of the Commission. Such matters will or ought to be, entirely exceptional. However, in such a case, it may be possible for the Arbitrator to resolve or otherwise determine the matter in some way; or for the matter to be discontinued, or for the matter to be adjourned; or for a specific plan to be devised to deal with and manage the matter within a suitable and appropriate timeframe, having regard to the particular circumstances and characteristics of the case. If “live” and relevant issues remain in dispute between the parties, it cannot be said that the matter lacks substance, whether or not the future direction and procedures of the matter before an Arbitrator are thought to be clouded with a degree of uncertainty.
Although the facts and circumstances are somewhat different, a similar dilemma confronted another Arbitrator, giving rise to an appeal that came before Acting Deputy President Deborah Moore, in Brooke v G L & E J Thurkettle t/as G L & E J Thurkettle Mobile Crutching & Sheep Handling Unit [2006] NSWWCCPD 188. However, the same issue that arose in that matter in terms of the ultimate ascertainment of the degree of permanent impairment does not flow from the Arbitrator’s decision in the instant case, as when confronted with the problem, the Arbitrator simply determined that the proceedings lacked substance.
A helpful statement is found in the NSW Court of Appeal case of Deveigne & Anor v Askar [2007] NSWCA 45, per Giles JA at [8]:
“Court proceedings are constituted by procedural steps, typically beginning with the filing of a statement of claim. As explained in Berowra Holdings Pty Ltd v Gordon [2006] HCA 32; (2006) 80 ALJR 1214, a plaintiff invokes the court’s jurisdiction to determine a dispute. The plaintiff claims an order or orders, and in the course of the proceedings the defendant or a third party may apply for an order determining part of the dispute. The court may decide that it has no jurisdiction, or may decide to exercise its jurisdiction in a particular way, and it gives effect to its decision by orders. Some defect in the procedural steps may mean that the court ought not have made the order. It may be said that the defect rendered the proceedings or the application claiming the order a nullity; but it is the order, not the procedural steps, which determines the whole or part of the dispute. The defect has its effect as the reason for no order or the reason why the order ought not have been made.”
(Emphasis added).
In my view, the Arbitrator effectively made a finding that Mr Reddy “hasn’t reached maximum improvement”, but except for broadly stating that she was “inclined to agree with” him, she made no finding or statement as to Mr Robertson’s suggestion that a decision on “maximum medical improvement” was sufficient for her “to dispose of [determine] this case”. Furthermore, she did not deal with, and gave no reasons with regard to, Mr Carney’s submission that until there is a finding of injury at work “a section 66 claim can’t arise.” These opposing submissions required a resolution, and the giving of brief reasons for that resolution, in the proper determination of the matter (see section 294(2) of the 1998 Act and Rule 15.6 of the Workers Compensation Commission Rules 2006). However, the Arbitrator simply dismissed the proceedings for lack of substance, notwithstanding that neither Counsel put to her that there were no issues of substance involved in the matter. As to the requirement to give reasons for decision in the Commission, see for example discussion in G & D Brown/Reola Partners v Dutoit & ors [2008] NSWWCCPD 1 at [104] – [110]; Seaib v Hays Personnel Services (Aust) Pty Ltd [2008] NSWWCCPD 36 at [113] – [115].
I find that the proceedings before the Arbitrator did not lack substance within the meaning of section 354(7A)(b); that the Arbitrator erred in dismissing the proceedings on this basis, and further, that she erred in failing to give adequate reasons for her decision.
This ground of appeal succeeds.
Did the Arbitrator err in considering matters outside of the section 74 Notice, namely whether Mr Reddy had reached maximum medical improvement?
It is unnecessary to deal with this ground of appeal, given that I propose to remit the matter to another Arbitrator to determine afresh. Australian Automotive in particular, has raised a number of substantive points regarding the “section 74 Notice”, some of which are raised in the context of what occurred outside of the arbitral proceedings. There is nothing recorded in the Commission file that can assist me in this regard and it would be unfair and inappropriate to be drawn into the substantive issues of dispute between the parties as to the “section 74 Notice” in these circumstances.
Accordingly, I make no findings in relation to this ground of appeal.
Did the Arbitrator err in failing to take into account the evidence available on injury?
Given that the matter is to be remitted to another Arbitrator for determination afresh, and having regard to the opposing submissions of the parties, it will be a matter for the Arbitrator to decide what evidence he or she should take into account, and what course the proceedings should take.
Accordingly, I make no findings in relation to this ground of appeal.
DECISION
The appeal is successful. The decision of the Arbitrator dated 18 March 2008 is revoked. The matter is remitted to another Arbitrator for determination afresh in accordance with these Reasons.
COSTS
Mr Reddy seeks an order for costs of the original proceedings against Australian Automotive on the following grounds:
“(a)The applicant presented evidence on which the arbitrator should have made an award or determination in his favour.
(b)An award or determination should have been made in favour of the applicant on the evidence submitted.”
Mr Reddy also seeks an order for the costs of this appeal against Australian Automotive on the following grounds:
“(a)It was necessary for the applicant to commence these appeal proceedings to obtain a determination in his favour in respect of his claim.”
Having regard to the circumstances, the Arbitrator to whom this matter is remitted for determination afresh should determine any issue of costs of the original proceedings before the Arbitrator from whose decision this appeal arose, and any question of costs of the further proceedings before her or him.
The Respondent Employer is ordered to pay the costs of this appeal of the Appellant Worker.
Gary Byron
Deputy President
7 July 2008.
I, MARIE JOHNS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF GARY BYRON DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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