Rick Damelian Pty Limited v Romanas
[2004] NSWWCCPD 93
•22 December 2004
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Rick Damelian Pty Limited v Romanas [2004] NSWWCCPD 93
APPELLANT: Rick Damelian Pty Limited
RESPONDENT: Athanasios Romanas
INSURER:CGU Workers Compensation (NSW) Limited
FILE NUMBER: WCC10454-2003
DATE OF ARBITRATOR’S DECISION: 12 December 2003
DATE OF APPEAL DECISION: 22 December 2004
SUBJECT MATTER OF DECISION: Admission of more than one report from same medical specialty; lack of procedural fairness; inadequacy of reasons; credit; sections 4 and 9A of 1987 Act; findings not based on evidence and weight of evidence.
PRESIDENTIAL MEMBER: Deputy President Gary Byron
HEARING:29 September 2004
REPRESENTATION: Appellant: Leigh Virtue & Associates
Respondent: Shead Lawyers Pty Limited
ORDERS MADE ON APPEAL: The decision of the Arbitrator is revoked.
The matter is remitted back to the Arbitrator concerned for determination afresh and preparation of written reasons for decision, in accordance with these reasons.
No order is made as to costs.
BACKGROUND TO THE APPEAL
Mr Athanasios Romanas, the Respondent Worker in this appeal, commenced working for Rick Damelian Pty Limited, the Appellant Employer, in 1990. He says that before he commenced this employment he had experienced back pain from time to time and “may have seen an orthopaedic surgeon, Dr J Roarty at St Vincent’s Medical Centre about that pain on referral from my family doctor Dr Macarounas at Earlwood, who continues to be my GP to this day.” He further states that he “may have” been hospitalised for one day for the purpose of an injection in his back before he commenced his employment with the Appellant Employer, “but I cannot completely recall.”
He states that he hurt his back in 1990 or 1991 and had a few weeks off work. He does not recall how he hurt his back, only that he did it at work after being employed by the Appellant Employer. He says that it became gradually worse and he started having trouble getting out of bed in the morning because of the pain. He had difficulty sitting and standing and experienced pain down the left leg. He underwent a laminectomy in 1992 at St Vincent’s Private Hospital. He was off work from October to mid December. Mr Romanas states that he returned to work on full time duties and was “basically pain free throughout 1993, 1994 and most of 1995.” He experienced lower back pain on a later date that he does not recall and reported this to the Service Manager, Mr Tony Brown. He consulted Dr Roarty and had a couple of weeks off work.
Later still, on a date that he cannot pinpoint, he felt pain in his lower back and left leg, while at work. He reported this to the Service Manager, consulted Dr Macarounas and Dr Roarty, took painkillers and had a couple of weeks off work. He completed a workers compensation claim form upon his return to work. He took further time off work around this time because of muscular pain in his left arm, but did not claim workers compensation.
On 14 April 1998 Mr Romanas was squatting on the driver’s side guard of a vehicle and turning part of the engine with a breaker bar. He says that he was pushing down on the breaker bar with his right arm from a squatting position when he felt a sharp pain in his lower back and pain down his left leg. He continued to work on and did not report it to anyone on that day. He states that his wife drove him home from work and he then “more or less fell in the lounge room owing to the pain.” He says that he was in great pain all night. He contacted Dr Macarounas the next day, and also contacted the Service Adviser John Kalcara at Rick Damelian Pty Limited to report the incident. Mr Romanas said that he was unable to go to the doctor because of the pain. Dr Roarty who had retired by this time, referred him to Dr Pell who informed Mr Romanas’ wife that she should try to get him to hospital. On 20 April 1998 Mr Romanas was transported to St. Vincent’s Public Hospital by ambulance where he states that he had a myelogram and a CT scan. He returned home and was off work for one week, for which he claimed workers compensation. He states, “Liability was accepted from Commercial Union, and Dr Pell performed a second laminectomy on me at St Vincent’s Private Hospital on 8 May 1998.”
There is a history of negotiations and communications between the parties, and an application for registration of an agreement dated 22 October 1999 pursuant to sections 66 and 67 of the Workers Compensation Act 1987 (the 1987 Act), in the former Compensation Court.
On 6 November 2002 Mr Romanas made a claim on CGU Workers Compensation (NSW) Limited, the Insurer, for weekly payments of compensation pursuant to sections 36 and 37 of the 1987 Act, confirming that he had suffered a recurrence of severe back pain on or about 23 September 2002 and had been certified unfit for work since that date. An Order for Interim Payment Direction was made in the Workers Compensation Commission under section 297 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 15 November 2002, requiring the Appellant Employer to pay to Mr Romanas weekly compensation at the statutory rate per week for a period of 4 weeks and 1 day commencing on and from 23 September 2002 and ceasing on 21 October 2002.
On 28 May 2003 Mr Romanas lodged an Application to Resolve a Dispute in the Commission in relation to a back injury on 8 February 1995, 26 July 1996 and 14 April 1998. The disputed claim is for weekly payments of compensation for the period 21 October 2002 to 12 May 2003, “pursuant to Sections 36, 67[sic], 38 and 40.” Also sought was an “Award pursuant to section 60 from 23 September 2002 in respect of treatment for symptoms from 23 September 2002 to date and continuing.” The treatment sought was stated as “General Practitioner, pharmaceutical, physiotherapy and general section 60 award.”
The dispute came before an Arbitrator in due course and on 8 December 2003 the Arbitrator made the following ex tempore determination, as set out in a Certificate of Determination dated 12 December 2003:
“1.The Respondent to pay weekly benefits to the Applicant, pursuant to Section 38 of the Act for the closed period of 17 weeks from the 21st of October 2002 to the 2nd of March 2003 at the rate of $740.38 per week and amounting to $12,586.46.
2. The Respondent to pay the Applicant’s medical expenses on production of accounts and or receipts.
3. The Respondent to pay the Applicant’s costs as agreed or assessed.”
A document “Statement of Reasons – Extempore Orders” was attached to the Certificate of Determination, indicating that a sound recording of the reasons given was available to the parties.
On 18 December 2003 the Appellant Employer lodged an appeal in the Commission against the Arbitrator’s decision.
Following compliance with formal directions as to the service of documents, the matter was set down for hearing before me on 29 September 2004.
I have before me in this appeal a transcript of the arbitration proceedings dated 8 December 2003 as well as the documents that were before the Arbitrator. However, the documents known collectively as the ‘Arbitrator’s file’ are not with the Commission file and cannot be located. As far as I am able to ascertain, there is nothing relevant to this appeal missing from the Commission file.
Leave to appeal was granted on 25 August 2004.
ISSUES IN DISPUTE
The Appellant Employer submits that the Arbitrator’s decision should be revoked on a number of grounds. These may be summarised as that the Arbitrator erred in:
·allowing the Respondent Worker to admit two reports from doctors of the same specialty;
·denying the Appellant Employer procedural fairness by refusing to allow the Respondent Worker to be questioned; failing to properly consider the employer’s objections to material Mr Romanas sought to have admitted; failing to allow the Appellant Employer to make proper or complete submissions; failing to properly consider the submissions and/or material submitted by the Appellant Employer;
·failing to provide adequate reasons for decision;
·failing to properly consider sections 4 and 9A of the 1987 Act;
·making findings not based on the evidence or contrary to the evidence before him;
·failing to draw an adverse inference against the Respondent Worker for evidence omitted, excluded or not called by the Respondent Worker.
The Respondent Worker submits that the “appeal is unmeritorious”; that the Arbitrator’s decision was correct in law, and that procedural fairness was afforded to the Appellant Employer.
EVIDENCE AND SUBMISSIONS
The Same Medical Specialty
The Appellant Employer submits that the Arbitrator erred in admitting the report of Dr Cairns, Orthopaedic Surgeon, in circumstances where the Respondent Worker had elected to rely on a report from Dr Harrison, who is a doctor from the same specialty. In admitting Dr Cairns’ report over the objections of the Appellant Employer, it is submitted that the Arbitrator acted in contravention of section 127(3) and section 294A(1)(c) of the 1998 Act and Part 10 Rule 43(1)(a) of the Workers Compensation Regulation 2003 (the Regulation), “noting that the report does not come within any of the exceptions noted in the regulation.” The Appellant Employer relies on the decision in Devine v Coles Supermarkets Australia Pty Ltd [2003] NSW WCC PD 28 (Devine). In the hearing before me, the Appellant Employer submitted that the Arbitrator has erred at law in admitting Dr Cairns’ report and has relied heavily upon it in order to come to his determination. For that reason, it is submitted by the Appellant Employer, that the decision should be revoked.
The Respondent Worker submits that the Arbitrator did not admit the report on behalf of the Applicant within the meaning of Part 10 Rule 43A (1)(c) of the Regulation, but that he admitted it because it was annexed to the report of the GP Dr Macarounas dated 27 January 2003, and was independently present on the treating doctor’s file and commented on by him spontaneously, in his report. It is further submitted by the Respondent Worker that the current proceedings relate to a closed period claim for weekly compensation for which the Appellant Employer had previously accepted liability “and for which the Respondent had paid the Applicant substantial compensation under s66 and 67. Dr Cairns had prepared a report for the insurer in the course of earlier proceedings for a section 66/67 award.” The Respondent Worker further submits that Devine does not apply because in that case, one party sought to rely upon multiple reports prepared for the same party by doctors of the same speciality for the same claim in the same proceedings. “None of the exceptions in Part 10 Rule 43(2) of the Regulation apply here, precisely because this circumstance is not the circumstance addressed by the Regulation.” The Appellant Employer rejects this argument on the basis that allowing reports into evidence in this way would enable parties to circumvent “the rules”. It is submitted that it is no more admissible than if it had been admitted without any recourse to the General Practitioner’s views, which it is submitted, are wrong in any event and do not support the decision made.
Procedural Fairness
The Appellant Employer submits that the Arbitrator erred when he:
·refused the Appellant Employer the right to question Mr Romanas for the purpose of testing his case;
·failed to properly consider the objections made by the Appellant Employer to material which the Respondent Worker sought to have admitted;
·failed to have proper regard to the submissions made by the Appellant Employer, and
·constrained the Appellant Employer from making proper or complete submissions.
The Respondent Worker refers to section 353 [sic] of the 1998 Act and submits that section 354 of the 1998 Act provides that the Commission is not bound by rules of evidence and is required to act according to equity, good conscience and the substantial merits of the case. The Respondent Worker submits that proceedings need not be conducted by a formal hearing; that the Arbitrator conducted the proceedings accordingly, and in fact, “proceeding rather more formally than he was obliged to do.” The Respondent Worker points to similar treatment in that the Arbitrator did not permit the Respondent Worker to object contemporaneously “to obvious errors of fact or misreadings of documents before him and instead required the Applicant to make submissions on them later.” He submits that the Appellant Employer was given great latitude by the Arbitrator.
The Respondent Worker argues that as a matter of law, the Arbitrator is not required to permit cross-examination of the worker. The Respondent Worker submits that the Arbitrator conducted proceedings in accordance with the 1998 Act, the Rules and the Commission’s Guideline for the Conciliation/Arbitration process.
The Respondent Worker submits that the Appellant Employer was given considerable latitude in making numerous and lengthy submissions during the course of the proceedings. “The transcript speaks for itself in regard to the latitude extended to the respondent.” Furthermore, it is submitted that at page 50, line 30 of the transcript, the Appellant Employer actually declined an invitation from the Arbitrator to make any further submissions.
The Solicitor for the Appellant Employer made submissions at the hearing about the way in which proceedings are conducted in the Commission. His submission included in summary that:
·proceedings are not inquisitorial as “there is nothing in the Act or Regulations that says that”, and there is nothing in the law that suggests that the proceedings are anything other than adversarial;
·questioning of witnesses enables each to test the case of the other side and the ability to do so is an essential element of natural justice, with certain limited exceptions;
·the need to cross examine existed in the proceedings before the Arbitrator because the assertions of the Respondent Worker were “at best, doubtful, at worst, completely inconsistent with what was then known to be the record of the aetiology of his back condition over many years”;
·the failure to afford the right to question the Respondent Worker was a denial of natural justice amounting to an error of law;
·“The guideline does not have the force of law, does not subsist within the Act or regulations by reference to any law or by reference to any consideration…it does not have the force of law to rely on it to say that an arbitrator is right to refuse a person the right to ask questions or to limit that right…”
·the right to test evidence put by the other party is important and “the Tribunal has failed to discharge its statutory duty insofar as by its rulings it has precluded itself from inquiring into matters relevant to the injury and which it was bound to investigate.”
Inadequacy of Reasons and Credit
The Appellant Employer submits that the Arbitrator failed to give adequate reasons: for the admission of certain material; in not accepting the Appellant Employer’s submissions, and in his ultimate determination in favour of Mr Romanas. Mr Romanas rejects this submission. At the hearing the Appellant Employer emphasised among other things, that the Arbitrator was in error in relying on medical reports that are not properly in evidence; in relying on the Health Insurance document that provided nothing more than a print-out of Medicare payments; relying upon that document to demonstrate that the Respondent Worker had received treatment for his back problem after 1998 when there was no evidence of that being the case, and in making an award on the basis of a wage rate that was neither agreed nor supported by evidence.
It is also submitted that the Arbitrator failed to consider and give reasons on “numerous pieces of evidence which really required the arbitrator to address his mind to that evidence and if he was to reject that evidence to say why, and that is what reasons is about.” The Appellant Employer submits that the Arbitrator has failed in his statutory duty to provide adequate reasons for his decision. Detailed submissions on inadequacy of reasons and the evidence put, and submissions made to the Arbitrator are set out at pages 13–19 of the transcript of proceedings before me, and while taken into account, need not be reproduced.
The Appellant Employer also submits that the Arbitrator erred in accepting the credit of Mr Romanas in circumstances where there were clear and unequivocal contradictions and inconsistencies between what purported to be the Respondent Worker’s statement “(though it was never adopted)”, and numerous other documents and information. The Respondent Worker submits that the Appellant Employer does not specify in its written submissions, the alleged inconsistencies going to credit. He adds, “… some lengthy submissions of the Respondent [before the Arbitrator] were based on incorrect reading of documents (eg see p8 lines 31-38 cf p40 line 44 – p41 line 19).” The Respondent Worker submits that the Arbitrator was entitled to form a view about his credit. At the hearing before me, the Appellant Employer again submitted that the Respondent Worker had given no evidence before the Arbitrator nor had he adopted the statement that he had apparently made. In any event, it is submitted that there are “inconsistencies between the contents of the statement, histories given to various doctors, the record from clinical and treating doctors which would cast extreme aspersions on the credit of the applicant…” The finding that his credit is accepted because he returned to work and was working full time is not correct, as this is not an issue that goes to credit. The history of the Respondent Worker and alleged inconsistencies are detailed at pages 11 and 12 of the transcript of the proceedings before me and need not be reproduced in detail. The Respondent Worker submits that he gave a detailed account of his history in order to illustrate his credit and to demonstrate that the Appellant Employer had previously accepted liability for his injury and had made payments of compensation to him. Finally, it was submitted that the Appellant Employer had every opportunity before the Arbitrator to bring evidence to attack the credit of the Respondent Worker, but failed to do so.
Sections 4 and 9A of the 1987 Act
The Appellant Employer submits that the Arbitrator failed to interpret or apply section 4 of the 1987 Act properly or at all, and failed to consider the issues put forward in respect of section 9A of the 1987 Act properly or at all. At the hearing before me it was submitted that the Arbitrator made “no finding of injury as such”, and that no reasons were given for the Arbitrator’s ultimate finding in favour of the Respondent Worker. This is a critical issue as there is reference to a period of treatment following a specific injury at home. None of the matters set out in section 9A of the 1987 Act were considered by the Arbitrator and nowhere is there a statement as to employment being a “substantial” contributing factor.
The Respondent Worker rejects this submission. He refers to page 52 line 35 of the transcript and submits that the Arbitrator in fact did consider sections 4 and 9A of the 1987 Act.
Lack of Evidence and Findings Contrary to Evidence
The Appellant Employer submits that the Arbitrator erred in not finding that the Respondent Worker’s injury, “… if indeed such an injury was suffered”, was not substantially contributed to by the injuries alleged in the application to resolve a dispute. The Appellant Employer submits that the Arbitrator failed to “ascribe the applicant’s back condition in September 2002 either to the injury sustained at home at or about that time, or in the alternative to the injury sustained in or prior to 1992 (which injury was not part of the application to resolve a dispute).”
Furthermore, the Appellant Employer argues that the Arbitrator erred in his reliance on the medical evidence of Dr Macarounas “without having any or proper regard to the basis of that doctor’s views and to the inadmissibility or unreliability of [sic] manner in which the view was formulated.”
The Appellant Employer also submits generally that the Arbitrator erred in considering as evidence “that which was not evidence and considering as evidence, that which was not validly before the Arbitrator.”
Finally, the Appellant Employer claims that the Arbitrator erred in not drawing an inference favourable to the Appellant Employer from evidence omitted or excluded or not called by the Respondent Worker.
The Respondent Worker submits that the Arbitrator is entitled to prefer the evidence of one doctor to another and that his findings were based on material that was properly before him.
The Respondent Worker also submits that the Appellant Employer itself summarised the real issue at page 50, line 31 of the transcript of proceedings before the Arbitrator: “I mean, the only issue is which injury. The complication was that he had surgery in 1992, and if it is a complication of that surgery and that treatment, it’s not compensable.”
Finally, the Respondent Worker submits that both sides of the argument were fully addressed by the parties and the Arbitrator gave careful reasons for his decision at pages 51-54 of the transcript.
DISCUSSIONS AND FINDINGS
A Presidential Member of the Commission has a specific and limited role in the review of a decision of an Arbitrator. The review is not a rehearing. The Presidential Member is not dealing with the matter de novo and is not arriving at a fresh decision based on all of the evidence available at a later time (Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616). The power of the Presidential Member to revoke the decision pursuant to section 352(7) of the 1998 Act and to substitute a new decision in its place, is exercisable only where it is demonstrated that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172). Alternatively, the Presidential Member may remit the matter back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions made.
The Same Medical Specialty
A reference to the second reading speech in relation to the Workers Compensation Legislation Amendment Bill 2000 by the Hon. J Della Bosca makes it clear that the purpose of making the Regulation was to prevent the excessive cost, time and potential unfairness that is the outcome when both parties seek to maximise their advantage in a dispute by filing numerous medical reports. However, the Minister makes it clear that “It is not the intent of the proposals to limit treatment provided to an injured worker…”. Moreover, the record of this treatment, by the worker’s treating general and specialist medical practitioners, is critical to the ultimate determination of the worker’s rights and entitlements under the statutory compensation scheme” (State Transit Authority of NSW v Dadras [2004] NSW WCC PD 87) (Dadras).
Clause 43 of the Regulation restricts the number of medical reports to be admitted in proceedings to only one medical report in any particular speciality. A permissible update of that medical report is also allowed. Clause 43A, which took effect on 2 September 2004 restricts the numbers of medical reports sent to an Approved Medical Specialist.
“Claims Management Phase Reports” (Clause 45) are not restricted by Part 10 which applies to medico-legal reports from treating doctors, obtained by either party from independent medical experts for the purpose of proving or disproving an entitlement under the 1987 Act.
In this case the Arbitrator did not admit the medical report of Dr Cairns as a “medico-legal report” within the meaning of Part 10 Clause 43A(1)(c) of the Regulation, but as a “claims management phase report” attached to the report of Dr Macarounas, General Practitioner, as part of the treating doctor’s file, and referred to by him in terms of the medical history of the Respondent Worker. The report in question is not one that is relied upon as one of a number of reports prepared for the same party by doctors of the same specialty for the same claim in the same proceedings, as was the case in Devine. The application of Part 10 is discussed in Dadras, where Deputy President Fleming said, in making the distinction outlined above:
“It is also an interpretation that leads to a result that is commonly accepted as fair, reasonable and necessary as between workers, employers and insurers who are parties to a workers compensation dispute. Medical reports by treating medical practitioners form an integral part of the evidentiary matrix of a worker’s claim for compensation.”
In the circumstances, I find that the Arbitrator did not err in admitting the report of Dr Cairns into evidence, included as it was, in the history set out in the treating doctor’s report. This ground of appeal is not made out.
Procedural Fairness
The essential aspects of the Appellant Employer’s submissions are that procedural fairness was denied because: the Arbitrator would not permit cross-examination or questioning of the Respondent Worker; that the Arbitrator did not have proper regard to the objections and submissions made by the Appellant Employer, and that the Arbitrator constrained the Appellant Employer in making proper or complete submissions.
A reading of the transcript of the proceedings before the Arbitrator does not support the claim that the Arbitrator did not have proper regard to the objections and submissions made by the Appellant Employer, nor that the Appellant Employer was unduly constrained in making proper or complete submissions. It is clear to me that the Arbitrator permitted the Appellant Employer to make submissions and objections adequately, and that he afforded the same opportunities to each of the parties. What he accepted or rejected in terms of the merits of those objections and submissions in the context of the proceedings, is quite another matter. I can find no indication that the Arbitrator was not fair and even handed in dealing with the parties, and I note that he specifically asked the Appellant Employer whether he had anything more to say (paragraph 35, page 50 of the transcript). The Appellant Employer was permitted to address at some length throughout the hearing until the Arbitrator delivered his ex tempore decision at 6.15pm. I find that the Appellant Employer has failed to demonstrate a lack of procedural fairness on these grounds.
The Appellant Employer correctly states that the Respondent Worker did not give oral evidence before the Arbitrator. The written statement to which reference is made and on which the Appellant Employer sought to question the Respondent Worker is his signed statement, dated 24 July 1998, that was filed in the Commission with his Application to Resolve a Dispute on 28 May 2003.
At the hearing before me, the Appellant Employer referred to Aluminium Louvres & Ceilings Pty Ltd v Zheng [2004] NSW WCC PD 26 (Zheng), indicating that it had been wrongly decided and rejecting in many respects the force of the Guideline for the Practice of Conciliation/Arbitration (the Guideline) issued by the President of the Commission. For the purposes of the instant case, the submission is that the Arbitrator erred in refusing to allow the cross-examination or questioning of the Respondent Worker as to his written statement.
Proceedings in the Commission are to be conducted with as little formality and technicality as the proper consideration of the matter permits (section 354(1) of the 1998 Act). The Commission is not bound by the rules of evidence but may inform itself in such manner as the Commission thinks appropriate and as the proper consideration of the matter before it permits (section 354(2) of the 1998 Act). The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms (section 354(3) of the 1998 Act).
The objectives of the Commission are enshrined in the 1998 Act at section 367 and must be observed by the Commission, however constituted, in the conduct of proceedings. As observed in Zheng, where the rules of evidence do not apply, the conduct of proceedings will be determined according to principles of fairness, taking into account the nature of the proceedings, the legislative requirements and the demands of the instant case. The Commission is bound by the principles of procedural fairness, which require that the parties be given the opportunity to address the evidence against them, where that evidence is to be relied upon in the Commission’s decision. Section 354 of the 1998 Act must be complied with along with, as I have said, the statutory objectives of the Commission set out in section 367 of the 1998 Act. Rule 70 of the Workers Compensation Commission Rules 2003 (the Rules) sets out the principles of procedure and Rule 71 sets out a number of measures to assist the parties. These too, must be complied with. The Guideline issued by the President is not a creature of statute but simply aims to provide a practical framework within which many of the practices, procedures and proceedings of the Commission ought to be conducted in the context of the Commission’s objectives and other relevant, statutory provisions. The Guideline does not purport to, nor does it in fact, exclude the operation of the law including the principles of procedural fairness. Nevertheless, in the absence of clear reasons to the contrary, the Guideline should be followed as it is created and exists within the spirit and ambit of the Commission’s statutory objectives, as well as the Commission’s procedural model which gives effect to the legislation under which it was created and/or operates.
The Deputy President in Zheng referred to Saverio Barbaro and Minister for Immigration and Ethnic Affairs [1980] 3 ALD 1, in which Davies J, President of the Administrative Appeals Tribunal discussed the nature of tribunal proceedings that are not bound by the rules of evidence. He said, inter alia:
“The requirement of a hearing and the provision of a right to appear and be represented carries with it an implication that, so far as is possible and consistent with the function of the Tribunal, a party should be given the opportunity of testing prejudicial evidentiary material tendered against him. It is generally appropriate that a party should have an opportunity to do more than give evidence to the contrary of the evidence adduced on behalf of the other party. He should be given an opportunity to test the evidence tendered against him provided that the testing of the evidence seems appropriate in the circumstances and does not conflict with the obligation laid upon the Tribunal to proceed with as little formality and technicality and with as much expedition as the matter before the Tribunal permits.”
The Appellant Employer conceded in the hearing before me that there was no right as such to cross-examine, but that procedural fairness demanded an opportunity to test the evidence against it. Procedural fairness in the context of Commission proceedings does not mean that the authors of documents submitted into evidence by the parties, are always liable to cross examination. What is procedurally fair will depend upon the circumstances, and the Guideline is an aid to an Arbitrator in determining that very question in proceedings before him or her, and in exercising the Commission’s power to control its own proceedings.
The Arbitrator in the instant case considered the reasons put forward by the Appellant Employer to question the Respondent Worker. The Arbitrator rejected the application on the basis that there was no fundamental right to question him and in any event, the matters that he wished to put to the Respondent Worker would have been more appropriately explored through the process of medical reports and the responses to them. The second ground upon which the application to question the Respondent Worker was made, (and notwithstanding that it was not his “obligation to protect the justice afforded to the applicant”), was to afford the opportunity to the Respondent Worker to explain or clarify matters which would be inconsistent with submissions to be put to the Arbitrator by the Appellant Employer in the course of the proceedings. In the circumstances, I find that the Arbitrator gave proper consideration to the request made by the Appellant Employer, and there was no denial of procedural fairness in refusing to allow the line of questioning of the Respondent Worker, as outlined to him by the Appellant Employer.
Inadequacy of Reasons and Credit
The Arbitrator found no difficulty with the credit of the Respondent Worker, “who, as his legal representative has suggested, is to be commended for getting back to work and working full time.” Mr Romanas did not give oral evidence in the proceedings before the Arbitrator and it is somewhat difficult to know how the Arbitrator arrived at that view of his credit. However, Mr Romanas’ credit is not a critical issue upon which the dispute turns, and the Appellant Employer has not claimed that it is. In the circumstances, it is not appropriate or necessary for me to interfere with that finding (Abalos v Australian Postal Commission (1990) 171 CLR 167).
An Arbitrator is required by section 294(2) of the 1998 Act and Rule 73 to provide adequate reasons for decision in the determination of a dispute. (See also Absolon v NSW TAFE [1999] NSWCA 311 (Absolon) and YG v Minister for Community Services [2002] NSWCA 247) (YG). Failure to provide reasons is not only a breach of an Arbitrator’s statutory duty, it is an error of law (Sydney Water Corporation Ltd v Aqua Clear Technology, Supreme Court of NSW, per Rolfe J (P/L 55047/96) 17 December 1996; Dennis Willcox Pty Limited v Federal Commissioner of Taxation (1998) 79 ALR 267). If the failure is established, it may be a ground to revoke the decision. However, an Arbitrator is not required to give lengthy and detailed reasons, nor to recite and analyse in detail the content of the evidence and submissions. The standard by which adequacy of reasons must be determined is relative to the nature of the decision itself and the decision-maker (see discussion in Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSW WCC PD 6 and Fraternity Bowling & Recreation Club Ltd v Sartor [2004] NSW WCC PD 47). However, for the ground of inadequate reasons to succeed, it must be demonstrated not only that the reasons are inadequate, but that the inadequacy sufficiently demonstrates that the Arbitrator has failed to exercise his or her statutory duty to fairly and lawfully determine the matter (see Absolon and YG).
In this matter, the Arbitrator stated that the parties had pressed him to give an extempore decision. He gave his decision at 6.15pm stating, “…although I was going to take a few minutes, I won’t in the circumstances do so…”.
The Arbitrator observed:
“I have had greater difficulty sorting through his complex medical history and the greater than usual confusion between medical reports, largely because of the fact that he’s had a long history of difficulties with his back, at least four separate incidents, at least some of which have been connected with his work.”
The Arbitrator does not canvass all of the medical evidence in his decision. He states that his starting point is the report of Dr Cairns in which it is indicated that an examination was conducted in relation to an injury sustained in 1998 and which was work related. The Appellant Employer challenges this on the basis that it substantially represents what Mr Romanas told him. The Arbitrator relies upon “the technology, the radiology and the various scans which took place from time to time which transcend the opinions of individual doctors because they record accurately the history of the applicant’s back…”. The Arbitrator finds this persuasive in terms of the Respondent Worker’s case because it suggests that, “we are dealing with the same pathology”. He then refers to the report of Mr Romanas’ treating doctor, Dr Macarounas, which includes an explanation of the various and different manifestations of Mr Romanas’ back problems. Dr Macarounas refers to the report of Dr Cairns attached to the treating doctor’s file, in support of his explanation. Had it not been for that explanation, the Arbitrator states that he would have had some difficulty in dealing with the reports of Dr Edwards and Dr Innes-Brown, as they tended to undermine Mr Romanas’ claim. He also refers to the report of Dr Harrison, dated 30 October 2003 “which relates to three of the injuries suffered by the applicant during his employment and which occurred in 1995, 1996 and 1998”, and in which the recurrence of the injury in 2002 is described as part of a process.
In arriving at his conclusion the Arbitrator states that the treating doctor says that Mr Romanas “never fully recovered” from the original concerns with regard to his back, and that some of the medical reports are consistent with that. He states, “In that context I believe, having regard to the reports I’ve just mentioned from Dr Harrison and Dr Macarounas, that there is that substantial connection and certainly there is causation.”
The Appellant Employer made a significant number of submissions to the Arbitrator that, according to the transcript of the proceedings, do not appear to have been resolved by the Arbitrator. For example at pages 10 - 11 it submits that the “1992 injury” is not before the Arbitrator, and that Dr Macarounas does not in fact put forward a view about the significance of that injury, but merely repeats Dr Roarty’s view. Again, he submits that the injury in September 2002 occurred at Mr Romanas’ home when he bent over to pick up a towel. He goes on to challenge a range of alleged inconsistencies in and between the medical evidence, and Mr Romanas’ recorded medical history. He submits, “So, with respect, the history given by the applicant to doctors has been very much at least, as I say, self-serving and, to that extent, has led to extreme difficulty, in my submission, in reliance of those reports from doctors who have that inaccurate history.” (page 18). The reasons recorded in the transcript do not indicate that these and other issues have been resolved. This is not an exhaustive list of the relevant matters that are not dealt with in the Arbitrator’s findings and reasons for decision, but that need to be resolved.
Following a close reading of the transcript of the proceedings before the Arbitrator and an examination of the evidence before him, it is difficult to appreciate that the Arbitrator resolved and made adequate findings in relation to all of the relevant and disputed material issues, particularly in relation to the medical evidence. Indeed, there is no indication that he has adequately addressed the submissions of the parties in relation to the relevant medical evidence before him and the inconsistencies raised in relation to that evidence. On the other hand, he does attribute great significance to the “technology, the radiology and the various scans which took place from time to time”, and expressed the overall view that they transcend the opinions of the individual doctors because they provide the full medical history of Mr Romanas. This could be decisive but it is the Appellant Employer’s apparently unresolved contention that this pathology derives from an injury that is not before the Arbitrator. In any event, the history and its relevance to a work-related injury is one of the key issues of this matter.
There is no doubt that this is a difficult matter principally because of the complexities of, and the challenges to, the medical history involved, and the mass of detail, much of which is contentious. I am not satisfied that the Arbitrator has properly determined the application, because it is far from clear that all relevant issues have been resolved. It is not apparent from the reasons given in the ex tempore decision. In the circumstances, I find that the Arbitrator’s reasons for decision are inadequate, that this is amounts to an error of law, and that the inadequacy sufficiently demonstrates that the Arbitrator has failed to exercise his statutory duty to fairly and lawfully determine the matter. Arbitrators ought not to be discouraged from giving ex tempore decisions where it is appropriate, but inevitably, some disputes such as this, will require much greater and detailed consideration.
In the circumstances, I propose to revoke the decision of the Arbitrator and remit the matter back to the Arbitrator concerned to determine afresh and to provide written reasons. I will not proceed to make findings with regard to the grounds of appeal in relation to sections 4 and 9A of the 1987 Act, nor the grounds of appeal in relation to the alleged lack of evidence and findings allegedly made contrary to the evidence, as it is not clear from the transcript and the ex tempore reasons, whether these issues have been properly dealt with and what findings, to some extent at least, have in fact been made.
DECISION
The decision of the Arbitrator is revoked. The matter is remitted back to the Arbitrator concerned for determination afresh and preparation of written reasons for decision, in accordance with these reasons.
COSTS
No order is made as to costs.
Gary Byron
Deputy President
22 December 2004
I 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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