Rinker Group Limited v Mackell - [2008] NSWWCCPD 100

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Rinker Group Limited v Mackell [2008] NSWWCCPD 100
APPELLANT:		Rinker Group Limited
RESPONDENT:		Kathleen Ellen Mackell
INSURER:		Self Insured
FILE NUMBER:		WCC2717-07
DATE OF ARBITRATOR’S DECISION:		8 May 2008
DATE OF APPEAL DECISION:		19 September 2008
SUBJECT MATTER OF DECISION:		Evidence; leave to call oral evidence from lay and expert witnesses; estoppel; effect of consent orders; notice of claim; deemed date of injury; refusal of adjournment; inappropriate conduct by employer’s solicitor.
PRESIDENTIAL MEMBER:		Deputy President Bill Roche
HEARING:		On the papers
REPRESENTATION:		Appellant:	Leigh Virtue & Associates
Respondent:	Somerville Laundry Lomax
ORDERS MADE ON APPEAL:		The Arbitrator’s decision of 8 May 2008 is revoked and the matter is remitted to a different Arbitrator for re-determination in accordance with the reasons in this decision. Costs of the first arbitration are to follow the result of the second arbitration.
No order as to costs of the appeal.

BACKGROUND

As the worker has not filed a statement, I have taken the following background summary from the medical reports in evidence, mainly Dr Maxwell, dated 13 July 2006, and Dr Wallace, dated 8 November 2005. Kathleen Mackell (‘the Respondent Worker/Ms Mackell’) started part time work as an administrative assistant for Readymix Concrete (now known as Rinker Group Limited, ‘the Appellant Employer/Rinker’) in about 1990. After a period off work to have her second child, she returned to work for Readymix, at its request, in about 1993. In 1995 her duties increased, as two other employees were made redundant. At that stage, she spent about 99% of her time doing data entry work. In 2004 the company purchased three more plants resulting in the workload increasing. Ms Mackell worked from 8.00am until 4.30pm with only 10 minutes for lunch.

Ms Mackell developed pain in her right arm and shoulder in the course of her employment in either 2001 or 2002. She reported her symptoms to her employer in or about May 2005. On 12 May 2005, she attended her local general practitioner, Dr Reid, who diagnosed her to have “tendonitis of the right upper arm” and certified her fit for suitable duties (keying up to one hour at a time with 15 minute breaks) from 13 May 2005. She lost no time from work at this stage. She underwent physiotherapy and, on 19 May 2005, an ultrasound, which revealed “calcific calcification in the anterior part of the supraspinatus tendon near its insertion consistent with calcific tendinosis”.

In July 2005, Dr Stabler, orthopaedic surgeon, examined Ms Mackell and arranged for two corticosteroid injections into her right shoulder. As the injections only gave temporary relief, he recommended surgery for the removal of the calcium deposit at her right rotator cuff. In Dr Stabler’s opinion, Ms Mackell’s condition was not work related.

Also in July 2005, Melanie Mott, occupational therapist from CSR Australia, conducted an assessment of Ms Mackell’s workstation at the request of Rinker. Before and after this assessment she spoke with Mr Winkleman, the employer’s return to work co-ordinator and Peter Wakeham, the regional manager. Ms Mott took a history of Ms Mackell experiencing a gradual escalation of her right shoulder and upper arm pain over the three previous years. As at July 2005, Ms Mackell experienced burning pain in her shoulder, which interrupted her sleep and disrupted her domestic tasks. Notwithstanding these symptoms, she remained at work on full hours.

Ms Mott records that Ms Mackell complained of significant time pressures in her daily work and an increased workload over the years. As she liked to keep up to date, Ms Mackell would sometimes work through designated work breaks to catch up with her work. Ms Mott concluded, “continuous data entry ideally should be briefly varied after 20 to 30 minutes, either by alteration of activity/posture and/or brief ‘pause’ exercises/stretches”. She added, “Ideally, [a] change to work techniques to allow more frequent alternation from static keyboard posture, would assist in minimising symptoms, however it is acknowledged that this would likely impact on Ms Mackell’s productivity”.

Ms Mackell took six days holidays in September 2005. At the end of the sixth day her pain was improving, but it returned when she returned to work.

In November 2005, Ms Mackell came under the care of Dr Pearce, orthopaedic surgeon. He assessed her as having degeneration of the right rotator cuff with calcification that was “directly related to her type of work” (report 4 November 2005). Noting that all forms of conservative treatment had failed, he recommended surgery in the form of an arthroscopy, acromioplasty and excision of the lateral end of the clavicle.

By an Application for Interim Payment Direction (No. 20126-05) (‘the Interim Payment Application’), registered in the Commission on 28 November 2005, Ms Mackell sought weekly benefits at the rate of $945.96 per week for an unidentified period of six weeks together with medical expenses of $4,500 in respect of the proposed cost of the surgery to her shoulder. After considering the medical and other evidence before her, the Registrar’s delegate (Ms Lynch) concluded that Ms Mackell had established that her employment was a substantial contributing factor to her injury. Despite that finding, she declined to issue the Interim Payment Direction Ms Mackell sought because, as at the date of the Direction, 13 January 2006, Ms Mackell had not taken any time off work and had not incurred any medical expenses.

Ms Lynch’s reasons state that by “letter dated 5 July 2005 the Insurer wrote to the Applicant accepting liability”, but denied liability by letter dated 30 September 2005 on the basis of section 9A of the Workers Compensation Act 1987 (‘the 1987 Act’).

The formal Interim Payment Direction issued by the Registrar on 5 May 2006 recorded that the Interim Payment Application was withdrawn.

In 2006 Ms Mackell filed an Application to Resolve a Dispute (No. 7972-06) (‘the first Application’). Details of this Application and Rinker’s Reply are not known, as the file was not tendered in evidence.

On 17 January 2006 Ms Mackell stopped work and underwent surgery at the hands of Dr Pearce. The operation confirmed a deep partial thickness tear of the supraspinatus tendon and a significant subacromial bursa, which was excised, and an acromioplasty performed. Ms Mackell continued to have pain and stiffness in her shoulder and she returned to theatre on 9 May 2006 for a manipulation and injection, which improved her shoulder function.

Dr Reid declared Ms Mackell fit for suitable duties from 3 April 2006 and for full duties from 6 June 2006, but, according to Dr Maxwell, her manager would not permit her to return to work and on 20 June 2006 the employer informed her that her job was no longer available because of restructuring.

Later in 2006, Ms Mackell started work with a different employer.

On 3 August 2006, the Commission issued a “Certificate of Determination – Consent Orders” (‘the Consent Orders’) in the first Application in the following terms:

“1. That the application be amended to claim weekly compensation for the period 17 January 2006 to 6 June 2006.
2.That for the period 17 January 2006 to 17 February 2006, payments of sick leave made to the Applicant by the Respondent be deemed payments for weekly compensation under Section 36 of the 1987 Act.
3.That the Respondent pay to the Applicant weekly compensation from 20 February 2006 to 3 May 2006 in the sum of $945.96 agreed to total $9,932.58.
4.That the Respondent pay to the Applicant weekly compensation from 4 May 2006 to 6 June 2006 in the sum of $945.96 agreed to total $4729.80.
5.That the Respondent pay the Applicant’s Section 60 expenses to date upon production of accounts or receipts.
6.That the Respondent pay the Applicant’s costs as agreed or assessed.”

By letter addressed to Rinker on 16 February 2007, Ms Mackell’s solicitor claimed lump sum compensation on her behalf in the sum of $8,750.00 in respect of a 7% whole person impairment. The claim was supported by a report from Dr Miller dated 2 February 2007, attached to the letter.

On 19 April 2007, Rinker denied liability for the claim and purported to provide a notice under section 74 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).

The letter served reports from Dr Maxwell dated 13 July 2006, Dr Stabler dated 16 September 2005, and Dr Blue dated 7 February and 14 March 2007. It also advised that Ms Mackell was entitled to seek assistance from the WorkCover Claims Advisory Service, her union or a solicitor, or seek a review of the decision declining liability, or dispute the decision in the Commission.

By an Application to Resolve a Dispute (‘the second Application’) registered in the Commission on 19 April 2007, Ms Mackell sought lump sum compensation in respect of a 7% whole person impairment as a result of tendonitis in the right arm and shoulder caused by the “nature and conditions of employment as a result of data entry duties including prolonged periods of typing and operating [a] mouse” between December 1993 and January 2006.

Rinker attached its letter of 19 April 2007 to its Reply, filed in the Commission on 7 May 2007.

By a “Referral for Assessment of Permanent Impairment to Approved Medical Specialist” dated 16 May 2007, a delegate of the Registrar referred the assessment of Ms Mackell’s permanent impairment to an Approved Medical Specialist (‘AMS’). A Dispute Management Officer advised Ms Mackell on 24 May 2007 that a medical examination had been arranged with an AMS for 18 June 2007. There is no record of Rinker having been advised of the AMS referral.

The AMS issued a Medical Assessment Certificate (‘MAC’) on either 18 or 28 June 2007, which was served on Rinker by letter dated 28 June 2007 and on Ms Mackell by letter dated 19 July 2007.

On 2 July 2007, Rinker’s solicitor, Mr Macken of Messrs Leigh Virtue & Associates, wrote to the Commission advising that a number of issues remained in dispute and suggested that arrangements be made for the matter to be listed for a teleconference. The Registrar’s delegate replied on 19 July 2007 that the Reply did not provide any evidence of any other issues in dispute.

Further correspondence passed between the Registrar and Mr Macken concerning the effect of the Consent Orders of 3 August 2006.

On 23 July 2007, Rinker filed an appeal to a Medical Appeal Panel. The Appeal Panel determined the appeal on 15 November 2007 when it revoked the first MAC and issued a new MAC in substantially the same terms.

The matter was listed for arbitration at Ballina on 16 April 2008 when, over objection, Ms Mackell gave oral evidence and was cross-examined. In a reserved decision delivered on 8 May 2008, the Arbitrator found in favour of Ms Mackell on all issues and found that she sustained injury to her right shoulder arising out of or in the course of her employment with a deemed date of injury of 16 January 2006. He referred the assessment of the degree of whole person impairment from the injury to the Registrar for referral to an AMS.

By an appeal filed on 2 June 2008, Rinker sought leave to appeal the Arbitrator’s decision.

LEAVE TO APPEAL

Monetary Threshold

Before proceeding to deal with an appeal the Commission must determine whether the appeal meets the requirements of section 352 of the 1998 Act.

Section 352(2) of the 1998 Act provides:

“(2) The Commission is not to grant leave to appeal unless the amount of compensation at issue on the appeal is both:
a)at least $5,000 (or such other amount as may be prescribed by the regulations), and
b)at least 20% of the amount awarded in the decision appealed against.”

As no compensation has been awarded in this matter, the amount of compensation at issue on appeal is determined by reference to the compensation claimed in the second Application (Fletchers International Exports Pty Limited v Regan [2004] NSWWCCPD 7). That amount is $8,750.00. In these circumstances it is not necessary for the Appellant Employer to satisfy the threshold in section 352(2)(a)(b) (Mawson v Fletchers International Exports Pty Ltd [2002] NSWWCCCPD 5).

Therefore, both limbs of section 352 are satisfied.

Interlocutory

Ms Mackell submits, citing Hamilton v Sydney Water Corporation [2008] NSWWCCPD 5, that the Arbitrator’s determination should be considered as a preliminary or interim determination of an interlocutory nature. This case has no relevance to the question of whether the current appeal relates to an order of an interlocutory nature, but concerned whether the relevant monetary thresholds in section 352(2) of the 1998 Act had been satisfied. The Arbitrator’s orders have finally determined the issue of injury and cannot be considered to be interlocutory (P & O Ports Limited v Hawkins [2007] NSWWCCPD 87).

Time

The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.

I grant leave to appeal.

ON THE PAPERS

Section 354(6) of 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.”

Mr Macken submits that an oral hearing is required because of the complex issues involved. I do not accept this submission.

Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by Ms Mackell 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.

ISSUES IN DISPUTE

The issues in dispute in the appeal are whether the Arbitrator erred in:

(a)failing to afford the Appellant Employer procedural fairness and natural justice (‘procedural fairness’) in the conduct of the proceedings by:

(i)allowing Ms Mackell to give oral evidence despite no statement having been filed (‘oral evidence from Ms Mackell’);
(ii)refusing to allow the Appellant Employer to call oral evidence from the treating surgeon, Dr Stabler (‘oral evidence from Dr Stabler’);
(iii)allowing into evidence an additional forensic medical report (‘additional forensic medical report’);
(iv)allowing Ms Mackell to tender late documents, when those documents had not been filed or lodged prior to the arbitration (‘late documents’), and
(v)failing to grant an adjournment (‘refusal to grant an adjournment’).

(b)considering a claim to have been made in accordance with the requirements of the legislation in circumstances where no such claim was in evidence (‘notice of claim’);

(c)the consideration of an earlier consent order and in considering any admissions or estoppel arising from same (‘estoppel’);

(d)failing to give any reasons for a finding apparently made regarding injury (‘reasons’);

(e)his consideration and determination of the deemed date of injury (‘deemed date of injury’);

(f)his consideration and determination of the issue of the last employer for whom Ms Mackell carried out work to the nature of which any disease was due (‘last employer’), and

(g)as a consequence of the error identified in (c) above, the Arbitrator has erred in failing to determine whether Ms Mackell sustained injury and whether employment was a substantial contributing factor to the injury (‘injury’).

NATURE OF A REVIEW

The Court of Appeal considered the nature of a ‘review’ under section 352 of the 1998 Act in Aluminium Louvres & Ceilings Pty Limited v Zheng [2006] NSWCA 34; (2006) 4 DDCR 358 (‘Zheng’), where Bryson JA said at [38]:

“A review is a different process to an appeal and the matters which may be considered and the manner in which they may be considered are somewhat wider. See Boston Clothing Co Pty Ltd v. Margaronis (1992) 27 NSWLR 580 at 584 (Kirby P). An attack, on review or otherwise, on an Arbitrator’s discretionary decision in controlling procedure may be based on the test stated in House v. R (1936) 55 CLR 499 at 504 - 505; but that is not the only basis on which the Presidential member may act. The powers of a Presidential member on review are somewhat wider and extend to power to reopen consideration of a matter of which an Arbitrator has disposed; the manner in which the powers of the Presidential member are to be exercised is itself the subject of discretion of the Presidential member.”

McColl JA approved this passage in South Western Sydney Area Health Service v Edmonds (2007) 4 DDCR 421; [2007] NSWCA 16 at [134] (‘Edmonds’). To describe the relative weight and relevance of the expert evidence as “a discretionary decision which could only be disturbed on House v The King principles” was described by McColl JA as “an over-generalisation” (at [133]). Thus, on review, a Presidential member is not bound by an Arbitrator’s discretionary decision, but can reach his or her own conclusion.

The nature of a review was further considered by the Court of Appeal in State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249; (2007) 5 DDCR 287 (‘Chemler’) where Spigelman CJ said at [28] and [30]:

“28. The concept of a review on the merits is wider than the concept of an appeal in a judicial context. There is a well established line of authority on the use of the terminology of ‘review’ instead of ‘appeal’ with respect to the workers compensation system in this State which establishes the breadth of a review on the merits.
…
30. A Presidential member exercising a power to review a decision must decide whether the original decision is wrong or, as it is often put in the context of administrative appeals on merits, must decide what is the true and correct view. If s/he does so decide then s/he should substitute his or her own views, unless it is an appropriate case to remit. The power to remit is not constrained in the manner for which the Appellant contends.”

I intend to apply the above principles in the matter before me.

FRESH EVIDENCE

Neither party seeks to rely on fresh evidence or additional evidence on appeal.

EVIDENCE SUBMISSIONS AND DISCUSSION

Procedural Fairness

Oral Evidence from Ms Mackell

Section 290 of the 1998 Act provides:

“290 Information exchange between parties

(1) When a dispute is referred for determination by the Commission, each party to the dispute must provide to the other party and to the Registrar, as and when required to do so by the Rules, such information and documents as the Rules require.
(2) A party to a dispute who fails without reasonable excuse to comply with a requirement of this section is guilty of an offence.
Maximum penalty: 50 penalty units.

(3) Any document or information that a party to a dispute has failed to provide in contravention of this section cannot be admitted on behalf of the party in proceedings on the dispute before the Commission.
(4) Subsections (2) and (3) do not apply if the party is a worker unless it is established that the worker was represented by a legal practitioner or agent (as defined in section 131) at the relevant time.
(5) The regulations may provide for exceptions to subsection (3). In particular, the regulations may authorise the Commission to permit the admission in proceedings before the Commission in specified circumstances of a document or information that would otherwise be not admissible under that subsection.

(6) If the Registrar is satisfied that an applicant has failed without reasonable excuse to comply with a requirement of this section, the Registrar may do any one or more of the following:
(a) refer the matter to the Authority,
(b) note the matter in a certificate issued by the Registrar in respect of the dispute (together with details of the documents or information to which the failure relates),
(c) order that a specified amount or proportion of the costs that would otherwise be recoverable by the party in connection with the referral of the matter to the Commission are not recoverable.”

Part 14 Rule 14.2 of the Workers Compensation Commission Rules 2006 (‘the Rules’) provides:

“14.2 Calling of witnesses
(1) Where a party proposes to rely on the oral evidence of a witness, the party must
lodge and serve a document containing:
(a) the name of the witness, and
(b) a written statement of the evidence to be given by the witness, signed by
the witness,

with the information and documents required under rule 10.3 to be lodged and served by the party.
(2) Subject to subrules (3) and (4), a party may not in proceedings call a witness to
give oral evidence that has not been included in a document lodged and served as
required by subrule (1) unless:
(a) the party has lodged and served with the information and documents
required under rule 10.3 a statement revealing:
(i) the specific nature of the evidence, and
(ii) the reliance the party intends to place on the evidence, and
(iii) the reasons why the evidence has not been included in a
statement as required by subrule (1), and
(iv) the time the evidence is expected to be so included, and

(b) the evidence is included in a written statement lodged and served on all
other parties as soon as practicable after that statement can be obtained.

(3) Where:
(a) a person refuses to sign a statement of the oral evidence to be given in
proceedings by the person, and
(b) the party wishing to adduce the evidence has served a summons issued
under rule 13.13 in respect of the person,
this rule does not prevent the party from calling the person to give the evidence.

(4) The Commission may, for the avoidance of injustice, allow a party to introduce
oral evidence that the party would otherwise be prevented from introducing because
of the operation of subrule (2).
(5) Where a party proposes to give oral evidence, this rule applies to the party as
though the party were the party’s witness as well as being the party.”

In breach of section 290, and for reasons that have not been properly explained, Ms Mackell attached no statement to the second Application. At the hearing, her solicitor applied for leave that she give oral evidence. Over opposition from Mr Macken, the Arbitrator allowed Ms Mackell to give the following evidence in chief (at T10.31):

“Q. Do you adopt the history and the information that has that has [sic] been provided to the doctors who you’ve seen in respect to this injury in as far as their written reports that you’ve seen and read?
A. I do.”

The Arbitrator then gave Mr Macken leave to cross-examine Ms Mackell. At T18.50, Ms Mackell was asked another question by her solicitor, by leave:

“The question would be, ‘Did you injure your right arm playing tennis?’
APPLICANT: No.”

The Arbitrator allowed the oral evidence on the basis that “if any party had wished to challenge that history, it was available to the respondent to provide evidence to say that the histories were incorrect” (T9.46). In his Reasons (at paragraph 19(ii)) the Arbitrator added:

“there was no prejudice to the Respondent as the histories had been well known and available to the Respondent since the reports were first relied on in 2005 in the case of Doctor Wallace and Doctor Fuller and had been the subject of review by the Registrar’s Delegate in the application for Interim Payment Directions. The Respondent had had ample time to produce any evidence in reply to those histories. I gave leave for the Respondent to cross-examine the Applicant.”

Rinker argues that the Arbitrator erred in:

(a)only considering prejudice to it rather than considering “the avoidance of injustice” as required by Rule 14.2(4), and

(b)in asserting that Rinker had ample time to produce evidence in reply to histories given in circumstances where those histories were not adopted or confirmed in any way until the arbitration at Ballina.

That this problem arose at all is extraordinary. Whilst I have no information about the proceedings at the teleconference on 21 February 2008, the absence of any statement from a worker is precisely the kind of omission that should have been identified at that stage of the proceedings. In these circumstances it is hard to understand how the case came to be listed for arbitration at Ballina. However, once listed for arbitration, the Arbitrator faced a difficult situation. On the one hand the worker was in clear breach of the Act and Rules. On the other hand the matter had been the subject of previous proceedings in the Commission that had been resolved by way of Consent Orders. The amount of compensation is modest.

Rinker had every opportunity to investigate the matter and to arrange its own medical examinations, which it did. That Ms Mackell had complained of pain in her shoulder as a result of her work was well known to Rinker, as it had arranged a Workplace Assessment Report by CSR Australia on 26 July 2005. The preparation of that report involved an occupational therapist attending at Rinker’s premises and assessing Ms Mackell’s workstation and discussing it with Mr Winkelman, the workplace return to work co-ordinator, and Mr Wakeham, the regional manager.

Whilst it is most unsatisfactory that the matter was listed for hearing without a statement having been prepared and served by Ms Mackell, the Arbitrator did not err in allowing the matter to proceed as he did. Rule 14.2(4) requires an Arbitrator to avoid injustice. That direction applies to both parties. He attempted to do that by permitting Ms Mackell to give very limited, and, in many respects, unsatisfactory evidence in chief and by allowing Mr Macken to cross-examine her. That was far from ideal, but it allowed the matter to proceed. Any possible prejudice to Rinker was overcome by allowing cross-examination. There was nothing to be gained by allowing the matter to be adjourned. Ms Mackell’s evidence raised no new allegations or matters that prejudiced Rinker. If there was any prejudice, it was to Ms Mackell because her evidence was severely curtailed.

On appeal, Rinker has pointed to no prejudice it has suffered on this issue and I reject its challenge on this point.

Oral Evidence from Dr Stabler

Dr Stabler was Ms Mackell’s first treating specialist. His report of 16 September 2005 was attached to the Reply and his reports of 7 July and 15 September 2005 were included in the clinical notes produced and tendered from Dr Reid. Essentially, he considered that Ms Mackell’s calcific tendonitis was constitutional and not due to her work duties.

On 11 March 2008, the Registrar, at the request of Rinker’s solicitor, issued Summons’ to Attend on Drs Pearce, Reid, Wallace, Blue, Fuller and Maxwell. In addition, Directions for Production were issued for service upon Drs Reid, Pearce and Stabler. An order made by the President, Judge Keating, gave leave to Rinker to serve a Summons to Attend on Drs Miller and Stabler requiring their attendance at the arbitration on 16 April 2008.

At the arbitration, the Arbitrator refused Mr Macken’s application to call Dr Stabler to give oral evidence by telephone. Mr Macken submitted that he wanted to call Dr Stabler because he was “the original treating orthopaedic surgeon, and I want him to give some verbal evidence about…his opinion” (T26.7) and about the “basis for his assertion that he does not consider the applicant’s condition to be causally connected to her employment” (T27.16). It was conceded that the calling of Dr Stabler had not been raised at the teleconference, and that, other than Dr Stabler’s report, no statement had been obtained from him. Mr Macken submitted that Dr Stabler was “not an expert. He’s a treating specialist” (T26.27), and conceded that he had not given notice of what the doctor’s further evidence would be (T26.44).

Mr Macken disputed the Arbitrator’s categorisation of the proposed evidence as “expert opinion as to whether or not the injury that he diagnosed was work related” (T27.35) and said “What I want to ask him as a treating specialist is why he came to that view” (T27.39). Notwithstanding Mr Macken’s denials, it is patently obvious that he wished to call Dr Stabler to give evidence as an expert on the issue of causation. It was open to Rinker to have obtained any additional evidence from Dr Stabler in a statement, as required by the Rules, and to have served that statement. No explanation was offered as to why that was not done. In these circumstances it was for the Arbitrator to determine whether to allow the oral evidence “for the avoidance of injustice”. He refused the application for the following reasons (Reasons, paragraph 19(iv)):

“a.Doctor David Stabler’s report is listed in the documents filed with the Reply in the items 6.1.1 entitled ‘Independent Medical Expert Reports’.
b.The Respondent advised that the evidence that he wished to obtain from Doctor Stabler was whether the injury was work related. This is clearly within the realm of expert evidence and does not relate to the provision of treatment or diagnosis.
c.Practice Direction number 3 issued on 1 November 2006 deals with the provision of expert evidence. That Practice Direction sets out the procedure and by reference to rule 14.2 the requirements of the calling of expert witnesses. The Practice Direction also notes the procedure for seeking leave to call an expert, with leave to be sought at the telephone conference. No leave was sought at the telephone conference. The Respondent has not filed any statement from Doctor Stabler or any report from Doctor Stabler setting out the evidence that he would give. The report from Doctor Stabler that the Respondent sought to have addressed by further oral evidence was attached to the reply and is dated 16 September 2005. It is in my view that the Respondent has had ample opportunity since 2005 to obtain from Doctor Stabler a report in better form addressing all issues and answering all questions that the Respondent wished to have addressed by Doctor Stabler in written form well prior to the Conciliation/Arbitration Conference. For these reasons leave to call the evidence from Doctor Stabler was refused.”

On appeal, Rinker argues that the Arbitrator misstated the requirements of Practice Direction No. 3. It is argued that the Practice Direction does not state (as asserted by the Arbitrator) that leave needs to be sought at the teleconference for the calling of a medical practitioner to give oral evidence. The Practice Direction provides:

“At the teleconference the Arbitrator will address a number of procedural issues including whether, in the particular circumstances of the case, there is a demonstrated need to hear oral evidence from expert witnesses. The Arbitrator will consider any matters raised by the parties. The Arbitrator will then advise the parties of the witnesses, including expert witnesses, who will be permitted to given oral evidence at the conciliation conference and arbitration hearing.”

I do not accept Rinker’s submission. Whether there is a need to hear oral evidence from expert witnesses is an issue that will be addressed by the Arbitrator at the teleconference where he or she will consider any matters raised by the parties and then advise the parties which witnesses the parties will be permitted to call to give oral evidence. The legislation and Rules require that all evidence should, so far as possible, be filed with the Application and the Reply. Oral evidence is the exception, not the rule. The terms of the Practice Direction make it clear that the calling of oral evidence should normally be raised at the teleconference. That was not done in the present matter. Had it been done, it would have given the Arbitrator an opportunity to make any direction considered appropriate for the giving of that evidence, such as the provision of a statement, as required by Rule 14.2.

It is not to the point that the Arbitrator gave leave for Ms Mackell to give oral evidence. Her oral evidence was limited to the confirmation of her medical histories and was of limited value. It did not raise any new issues. Rinker has pointed to no prejudice that has arisen as a result of her limited oral evidence. The calling of a doctor to give oral evidence on matters not previously dealt with in a report or statement raises completely different issues.

Whether to allow Rinker to call Dr Stabler was a matter within the Arbitrator’s discretion. I am not bound by the Arbitrator’s decision on this issue, but I am entitled to reach my own conclusion (see Zheng and Edmonds above). I can see no basis on which the Arbitrator has erred in the exercise of his discretion. Exercising the discretion anew, I would, in the same circumstances, reach exactly the same conclusion. Rinker did not comply with either the Rules or the Practice Direction with respect to the calling of oral evidence. The evidence sought to be called was expert evidence that was readily available to Rinker before the arbitration. It gave no notice at the teleconference of the desire to call Dr Stabler. That failure gave Ms Mackell no opportunity to marshal her evidence to meet the additional oral evidence. That put her in a position of significant disadvantage and prejudice. In these circumstances I agree with the Arbitrator’s decision to refuse to allow oral evidence from Dr Stabler.

Additional Forensic Medical Report

The challenge on this issue is that Ms Mackell sought to rely on forensic medical reports from two doctors with the same specialty, namely, Dr Fuller and Dr Wallace, both orthopaedic surgeons. Rinker had qualified Dr Fuller and Ms Mackell had qualified Dr Wallace. Over the objection by Rinker, the Arbitrator allowed both reports into evidence. The Arbitrator said, at paragraph 19(i) of his Statement of Reasons for Decision (‘Reasons’):

“The intention of the legislation is to prevent parties from obtaining duplicate reports from the same specialists. In this instance the Applicant has not obtained duplicate reports but simply sought to file and rely on a report obtained by the Respondent in addition to a report obtained by qualifying its own expert.”

The restriction on the number of medical reports that can be admitted on behalf of a party is in Regulation 43 of the Workers Compensation Regulation 2003 which provides:

“43 Restrictions on number of medical reports that can be admitted

(1) In any proceedings on a claim or a work injury damages threshold dispute in relation to an injured worker, only one forensic medical report may be admitted on behalf of a party to proceedings.
(2) A report referred to in subclause (1) must be from a specialist medical practitioner with qualifications relevant to the treatment of the injured worker’s injury.
(3) Where the injury has involved treatment by more than one specialist medical practitioner, with different qualifications, then an additional forensic medical report may be admitted from a medical practitioner with qualifications in that specialty.
(4) In this clause:
‘forensic medical report’:
(a) means a report from a specialist medical practitioner who has not treated the worker and has been obtained for the purpose of proving or disproving an entitlement, or the extent of an entitlement, in respect of a claim or dispute, and
(b) includes a medical report provided by a specialist medical practitioner in respect of an examination of the injured worker pursuant to section 119 of the 1998 Act.”

This Regulation took effect on 1 November 2006 and applies to all claims lodged with the Registrar on or from that date. Ms Mackell lodged her current Application on 19 April 2007. However, Regulation 48A provides, so far as is relevant:

“48A Further transitional provision

(1) In this clause:
‘the amending Regulation’ means the Workers Compensation Amendment (Miscellaneous Provisions) Regulation 2006 .
(2) The amendments made to this Part by the amending Regulation do not affect the use of a medical report in evidence in proceedings or as part of disclosure to an approved medical specialist where the report relates to an application lodged with the Registrar prior to 1 November 2006.
(3) The amendments made to this Part by the amending Regulation apply to all claims or work injury damages threshold disputes lodged with the Registrar on and from 1 November 2006.
(4) Despite subclause (3), where the medical examination to which the relevant medical report relates occurred before 1 November 2006, this Part, as in force immediately before 1 November 2006, continues to apply in respect of the report if the report:
(a) formed part of an application lodged with the Registrar prior to 1 December 2006, or
(b) formed part of a reply filed in respect of such an application within 21 days of the application being lodged.”

Ms Mackell tendered forensic medical reports from three specialists: Dr Wallace, Dr Fuller and Dr Miller. However, as two of Ms Mackell’s reports relate to examinations that took place before 1 November 2006, and presumably formed part of an application lodged prior to 1 December 2006, the Regulation in force immediately before that date must be considered. The parties conducted the arbitration and the appeal on that basis. Prior to the 1 November 2006 amendment, the Regulation provided that “only one medical report in any particular specialty may be admitted on behalf of a party to the proceedings”. Dr Miller is a surgeon, not an orthopaedic surgeon, but Drs Wallace and Fuller are both orthopaedic surgeons, thus the objection to both reports being tendered.

Ms Mackell argues that at the hearing she relied primarily on Dr Wallace’s report. A vague reference is made to a second reading speech at the time the Regulation “was adopted into the legislation” where, it is claimed, the Minister for Industrial Relations said the object of the Regulation was primarily to avoid parties shopping for medico-legal reports that suited them. As Rinker qualified Dr Fuller, it is argued by Ms Mackell that she has not breached the intention of the Regulation.

No date or reference is given for the Minister’s speech and my researches have been unable to locate it. Even assuming that the Minister made such a speech, there is no reason to give the words in the Regulation anything other than their clear meaning. As there is no ambiguity in the Regulation, I do not believe it is necessary to have resort to the Second Reading speech. The Court of Appeal has questioned the value of referring to such speeches (Monier Ltd v Szabo (1992) 28 NSWLR 53 and Lembecke v SAS Trustee Corporation (2003) 56 NSWLR 736). The relevant Regulation provided that only one medical report in any particular specialty may be admitted on behalf of a party to the proceedings. How the report came into existence is irrelevant. Therefore, the Arbitrator erred in admitting the reports from Drs Wallace and Fuller. Ms Mackell must elect which of the doctors she wishes to use at the hearing, either Dr Wallace or Dr Fuller, but not both.

Naturally, Regulation 43 also binds Rinker and I note that Drs Blue and Maxwell are both orthopaedic surgeons.

Late Documents

The Arbitrator admitted into evidence a document identified as “Form A - Claim for Compensation” dated 13 May 2005 (‘the claim form’), in circumstances where the document had not been attached to the second Application filed with the Commission and no Application to Admit Late Documents had been filed prior to the arbitration. It is argued that the admission of the document breached Part 10 Rule 10 of the Rules and that the Arbitrator erred in only considering the relevance of the document and the lack of prejudice to Rinker when he should have considered “the interests of justice”, as required under Rule 10.3(3).

At the arbitration, the Arbitrator gave Mr Macken a short adjournment to obtain instructions about whether Ms Mackell had “lodged a formal claim for compensation with her employer” (T22.38). After seeking those instructions, the following exchange took place (at T23.2):

“ARBITRATOR: So, your position is that you are not in the position to say whether or not the applicant has ever lodged a claim, a formal claim for compensation with the employer?

MR MACKEN: I’m not in a position to address that document and the assertion that that was a claim for compensation submitted to the employer even before we get to issues as to whether it has anything at all to do with these proceedings. The people who are described in that claim form are not here, not available to give evidence and I have not got the opportunity of getting instructions.”

Whether Mr Macken actually sought instructions is unclear. What is clear is that Mr Macken did not answer the Arbitrator’s reasonable question, namely, was he in a position to say whether or not Ms Mackell had ever lodged a claim for compensation with Rinker? The following exchange then took place (at T23.15):

“ARBITRATOR: Do you know who Mr Winkelman is?
MR MACKEN: Mr Winkelman, I understand, is an employer - employee of a company --
ARBITRATOR: Which company?
MR MACKEN: -- which may or may not be related to the respondent. I haven’t been able to get those instructions, Arbitrator, and I cannot -

APPLICANT: Sorry.
MR MACKEN: I’m glad that the applicant finds all this amusing, that the respondent gets put to this on the day of the arbitration. The respondent cannot meet that document, Arbitrator. I cannot say it forcefully enough. It’s very amusing that the applicant to come along here saying, ‘Oh, no, we’re going to foist it all on the respondent as we go.’
ARBITRATOR: Excuse me, excuse me.
MR MACKEN: Yes, Arbitrator?
ARBITRATOR: Please don’t make comments about the applicant.” (emphasis added)

I make a number of observations about this exchange. First, Mr Macken’s statement that Mr Winkelman was an employee of “a company…which may or may not be related to the” Appellant Employer, was misleading and demonstrated a deplorable lack of candour. Mr Winkelman, as Mr Macken knew, or ought to have known, from Ms Mott’s report attached to the second Application, was Rinker’s workplace return to work co-ordinator.

Second, the claim form is headed “Rinker Group Limited” and includes the following at the bottom of page two:

“TO BE COMPLETED BY MANAGER/TEAM LEADER
Date Claim Received: 13/5/05 Date WorkCover medical certificate received: 13/5/05

Name (print): R P Winkelman Signature: _____________
Position: RTW Co-ord Date: 13/5/05”

R P Winkelman, as Rinker’s manager/team leader, signed the document in the space provided.

Third, Ms Mackell’s allegations were well known to Rinker. It arranged for a Workplace Assessment Report in 2005 and the matter had been the subject of two previous applications in the Commission.

In the circumstances, it was astonishing for Mr Macken to feign ignorance about whether Ms Mackell had submitted a claim and to suggest that he was not in a position to “address” the document. Such conduct is unacceptable and contrary to the standard of conduct the Commission expects from legal practitioners, as set out in the Registrar’s Guideline “Standards of Conduct During Proceedings” of October 2004.

Apart from the submission that the Arbitrator erred in failing to consider the broader issue of “the interests of justice”, rather than merely relevance and prejudice, no useful submissions have been made on this issue. The main, but not the only, issues in determining the interests of justice question are whether the document is relevant and whether there is any prejudice to the opposing party. Whilst Ms Mackell should have attached the claim form to her Application there was clearly no prejudice to Rinker in allowing the document into evidence and it was in the interests of justice to do so, as it provided evidence that Ms Mackell had given notice of her claim as early as May 2005. In a case where the employer apparently wished to put all matters in issue, it was appropriate that the claim form be admitted into evidence. I agree with the Arbitrator’s approach.

The submission that the admission of this document constituted a denial of procedural fairness is without foundation and is not supported by any authorities or argument. In all the circumstances, having particular regard to the fact that Mr Winkelman signed the document, as Rinker’s return to work co-ordinator, I do not accept that the tender of the document denied Rinker the opportunity to consider and address the late evidence. No submission has been made as to what Rinker would have done had the claim form been attached to the second Application, as it should have been. Nor has any submission been made as to how the tender prejudiced Rinker. I do not accept that the tender denied Rinker procedural fairness.

The Arbitrator allowed into evidence a further document (over objection) that had not been attached to the second Application; namely, a document headed “AUTHORITY TO RELEASE MEDICAL INFORMATION” (‘Authority to Release’). Whilst no specific submissions have been made about this document, I assume that the Arbitrator’s decision to admit it is also the subject of challenge on appeal. The Authority to Release is a standard authority permitting Rinker Group Limited to obtain from Ms Mackell’s treating doctors any reports or clinical notes. Rinker suffered no prejudice by the admission of this document. It was in the interests of justice that it be admitted as it demonstrated that there was no impediment to Rinker obtaining reports from Ms Mackell’s treating doctors, if it wished.

Refusal to Grant an Adjournment

Mr Macken sought an adjournment to deal with Ms Mackell’s oral evidence and the admission of the claim form. His reasons for seeking an adjournment were:

(a)the arbitration was the first time he’d been required to deal with any evidence from Ms Mackell (T17.31);

(b)it was inherently unfair to be required to deal with any evidence from Ms Mackell at all (T17.33), and

(c)he had no time to consider, meet or address the claim form or call evidence in response to it (T24.55).

The question of whether or not an adjournment should be granted always involves the exercise of an arbitrator’s discretion. That discretion must be exercised lawfully having regard to relevant matters.

A helpful review of the authorities on adjournments was conducted by Judge Burke in Moombalene Local Aboriginal Land Council v Dailey [1998] NSWCC 22; (1998) 16 NSWCCR 469 (‘Dailey’) at paragraphs [25] to [32]:

“25 Firstly, proceedings before the Court, coming on for hearing by the usual processes, should be heard and determined at the time and place fixed for hearing. (See the litany of cases cited in the comment on Pt34, r4 of the NSW Supreme Court Rules 1970.)
26 Secondly, where there is a proper basis for such an application and refusal would seriously prejudice the party seeking adjournment and not prejudice the other party, then adjournment should ordinarily be granted: Watson v Watson (1968) 70 SR 203; Jordan v Smart [1961] NSWR 735.

27 Thirdly, a party is expected to take reasonable steps to prepare and present his case at the time and place appointed: Ord v Ord [1923] 2 KB 432; Dick v Piller [1943] 1 KB 497; Pennings v TA Field Pty Ltd (1990) 6 NSWCCR 271.

28 Fourthly, where the period of adjournment sought is only very short the Court will usually be much more relaxed--or be corrected on appeal: Carryer v Kelly [1969] 2 NSWR 769.

29 Fifthly, where the matter has proceeded to judgment after wrongful refusal of adjournment, the evidence thereby excluded must be shown to be material to the resolution of disputed issues to warrant further hearing: GIO v Best, NSWCA, No. 40525/91, 2 June 1992, unreported.

30 Sixthly, the proper administration of justice ordinarily requires that the parties should be afforded the opportunity to present their respective cases.

31 Seventhly, an appellate tribunal will be very reluctant to interfere with the exercise of the discretion to grant or refuse adjournment at first instance: Thornberry v R (1995) 69 ALJR 777--itself a case of such appeal being successful.

32 It is fairly clear that not all these principles are capable of application at the same time. There is clear tension between some of the stated precepts. The Court is always faced with the problem of establishing a balance between competing demands and arriving at a resolution that adequately weighs the impact of these contrary factors in arriving at a resolution in any particular matter.”

The issue of adjournments has also been considered in a number of cases in the High Court. In particular, in Sali v SPC Ltd (1993) (‘Sali’) [1993] HCA 47; 116 ALR 625 at 628-9 Brennan, Deane and McHugh JJ said:

“In Maxwell v Keun [[1928] 1 KB 645, at 650, 657, 658] the English Court of Appeal held that, although an appellate court will be slow to interfere with the discretion of the trial judge to refuse an adjournment, it will do so if the refusal will result in a denial of justice to the applicant and the adjournment will not result in any injustice to any other party. That proposition has since become firmly established and has been applied by appellate courts on many occasions. [See, for example, Walker v Walker [1967] 1 WLR 3276, at 330; Carryer v Kelly (1969) 90 WN (Pt 1) (NSW) 566, at 569; Bloch v Bloch (1981) 55 ALJR 701, at 703; 37 ALR 5, at 580-9]. Moreover the judgment of Atkin LJ in Maxwell has also been taken to establish a further proposition: an adjournment which, if refused, would result in a serious injustice to the applicant should only be refused if that is the only way that justice can be done to another party in the action [Walker [1967] 1 WLR, at 330; Carryer (1969) 90 WN (Pt 1) (NSW), at 569]. However, both propositions were formulated when court lists were not as congested as they are today and the concept of case management had not developed into the sophisticated art that it has now become.”

The above principles must be read in the light of the legislation, Rules and Practice Directions, which govern proceedings in the Commission. In particular the provisions of section 354 of the 1998 Act are relevant:

“354 Procedure before Commission

(1) Proceedings in any matter before the Commission are to be conducted with as little formality and technicality as the proper consideration of the matter permits.
(2) The Commission is not bound by the rules of evidence but may inform itself on any matter in such manner as the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits.
(3) The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.
(4) Proceedings need not be conducted by formal hearing and may be conducted by way of a conference between the parties, including a conference at which the parties (or some of them) participate by telephone, closed-circuit television or other means.
(5) Subject to any general directions of the President, the Commission may hold a conference with all relevant parties in attendance and with relevant experts in attendance, or a separate conference in private with any of them.
(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.
(7) An assessment or determination is to be made by the Commission having regard to such information as is conveniently available to the Commission, even if one or more of the parties to the assessment or determination proceedings does not co-operate or ceases to co-operate.
(7A) The Commission may dismiss 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.

(8) In proceedings before a court with respect to a claim for work injury damages (other than proceedings under section 235A or 235C or under the Crimes Act 1900 with respect to fraud), evidence of a statement made in proceedings before the Commission is not admissible unless the person who made the statement agrees to the evidence being admitted.”

Practice Direction No. 2 of the Commission’s Practice Directions is also relevant. It emphasises the objectives of the Commission and, in particular, the duty to provide a timely and effective resolution service. It adds that:

“The Commission will not adjourn any proceedings unless it is demonstrated that one or more parties would suffer an injustice if the adjournment is not granted.”

The Practice Direction adds that the Commission has the discretion to grant an adjournment, “other than in accordance with this Direction, where procedural fairness in the instant case requires it”.

No relevant submissions have been made, nor authorities cited, as to why the Arbitrator should have adjourned the matter in Ballina. In circumstances where no proper basis was advanced for the granting of an adjournment, the Arbitrator did not have to give detailed reasons for his refusal. Rinker has pointed to no evidence it was deprived of calling because of the refusal. It has pointed to no prejudice it has suffered.

The general complaint of a denial of procedural fairness is unsustainable. That is especially so where the oral evidence complained of consisted of only two questions and the documents complained of were a claim form signed by an officer of Rinker and an Authority to Release. Having regard to the issues in this case and the Commission’s statutory objectives, the Arbitrator’s decision to refuse the adjournment application was correct and proper in the circumstances.

Notice of Claim

At the arbitration, Mr Macken submitted that “the starting point for the Commission is: do you have any jurisdiction at all to consider that application?” (T34.28). He then submitted (at T34.42):

“Now, you don’t have before you any evidence of the claim for lump sum compensation. Sorry, I withdraw that. You don’t have any evidence as to precisely what was claimed in respect of that lump sum compensation.”

It was also submitted (at T35.18) that there was “no evidence at all of any claim, not only in accordance with the requirements of the Guideline but at all for their claim.” He added (at T35.22), “in those circumstances there is nothing the Commission can do but find against the applicant on that primary jurisdictional problem.”

Given the evidence before the Arbitrator, the history of the matter and the authority of Fletchers International Exports Pty Ltd v Barrow & anor [2007] NSWCA 244 (‘Barrow’), Mr Macken’s submissions before the Arbitrator were patently untenable and should not have been made. The evidence in support of a claim for lump sum compensation having been made is found in the letter from Ms Mackell’s solicitor addressed to the Appellant Employer and dated 16 February 2007. It reads:

“Re: Kathleen Mackell – Lot 7 Bryon Bay Road Bangalow NSW 2479
Date of Birth: 11 October 1961
Date of Accident: 1 [sic]

Please find enclosed by way of service Medical Report of Dr Geoffrey Miller, Specialist Surgeon, dated 2 February 2007.

Pursuant to sections 102 and 103 of the Workplace Injury Management and Workers Compensation Act 1998 we hereby make a claim on behalf of our client for 7% permanent impairment in the amount of $8,750.00 on the basis of [the] Medical Report of Dr Miller.

Our client continues to suffer pain and discomfort for which Dr Miller believes she may benefit from period [sic] physiotherapy and a course of non-steroidal anti-inflammatory medication. Accordingly, please authorise the said treatment in order that our client may access the recommended treatment without delay.

We look forward to receiving your advice in relation to this claim in early course [sic].”

Rinker responded by letter dated 19 April 2007. The response stated:

“We refer to your further correspondence seeking to claim the payment of lump sum and other compensation benefits in respect of the alleged injury to your client’s shoulder and we advise that we do not concede that your correspondence complies with the requirements of the legislation for the purpose of making a claim for compensation.

Despite this we can also indicate, for the avoidance of doubt and delay, that liability in respect of any claim for compensation benefits is denied. This correspondence is provided for the purpose of notifying you of that decision in accordance with section 74 of the Workplace Injury Management and Workers Compensation Act 1998.

We note that the documentation submitted is support of the claim that you have purported to make consists of the documents enclosed with your letter of 16 February 2007. As you already hold copies of those documents further copies are not enclosed. We can confirm that liability in respect of the claim is declined for the following reasons:
1. Any medical condition from which your client suffers is not causally connected to her employment or any incident or injury in that employment.
2. Employment is not a substantial contributing factor to any alleged injury.

3. Any alleged impairment is not the result of your client’s employment or an incident or injury in that employment.

4. Your client has not suffered a work injury.

5. Any medical treatment required is not a consequence of employment or any work injury and is not reasonably necessary.

6. Your client does not suffer from permanent impairment as claimed or at all or in the alternative the extent of any impairment claimed is excessive.

7. Your client has not complied with the requirements of the Legislation in regard to notification of injury and in regard to making a claim for compensation benefits with the result that the legislation precludes any such entitlement to benefits.

In declining liability the Sections of the legislation on which we rely are Sections 4, 9, 9A, 60 and 66 of the Workers Compensation Act 1987 and also Sections 254, 255, 260 and 323 of the Workplace Injury Management and Workers Compensation Act 1998.

The issues relevant to the dispute include whether your client has suffered from or continues to suffer from any work related injury, whether employment has been a substantial contributing factor to any injury, whether your client requires any treatment and if so whether the requirement for treatment is related to any alleged work injury and whether it is reasonably necessary, whether your client suffers from any permanent impairment, whether any permanent impairment is related to any alleged work injury, the extent of any alleged permanent impairment and the amount of the deduction required for pre-existing abnormality.”

On appeal, Mr Macken initially submitted that the Arbitrator erred in “considering there to be jurisdiction in circumstances where there was no evidence before the Commission as to what was said to constitute the claim for lump sum compensation benefits (being the claim which was relevantly before the Commission)”. This submission was based on the assertion that the letter of 16 February 2007, relied on by the Arbitrator, was not in evidence. This submission was patently false and was withdrawn (after Ms Mackell’s submissions highlighted the error) in Mr Macken’s submissions in reply filed on 29 July 2008. The letter was in evidence at the arbitration and I can only assume that Mr Macken had not read the second Application.

In any event, I note that in Barrow Mason P observed (at [42] and [43]):

“42 The Explanatory Note to the Guidelines states that they set out the procedures for the initial notification of an injury, making provisional liability payments and the making and handling of claims under Pt 3 of the WIM Act. The Guidelines are said to be ‘primarily intended to assist WorkCover NSW Licensed Insurers’. Nowhere is it suggested that the Guidelines touch upon the Commission’s jurisdiction or powers as regards a later dispute.

43 In addition, the word ‘guidelines’ is usually encountered with reference to a non-binding indication of policy. The Macquarie Dictionary relevantly defines the term to mean ‘a statement which defines policy or the area in which a policy is operative’.”(emphasis added)

In the light of this authority, which was decided well before the arbitration in the present matter and in which Leigh Virtue and Associates represented the appellant, it was improper for Mr Macken to present a “no jurisdiction” argument.

This issue was further considered by the Court of Appeal in Tan v National Australia Bank Ltd [2008] NSWCA 198 where Young CJ in Eq (Basten JA agreeing) held (at [79]):

“79 There is no requirement that notification of a claim needs to be articulated in the statutory language of an ‘injury’ or an ‘aggravation’. Lack of strict compliance with s 260 and the Guidelines therefore does not deprive the Commission of its statutory jurisdiction otherwise conferred by statute.”

Mr Macken now seeks to present totally different arguments on appeal, namely, that the letter of 16 February 2007 is defective in that it “does not comply with the requirements of the legislation” in a large number of respects including, for example:

(a)neither the letter, nor the report of Dr Miller enclosed with it, identifies the date of injury with sufficient precision to comply with the legislation;

(b)the letter and the report are not consistent with the allegation of injury in Part 4 of the second Application, and

(c)if this letter constitutes the claim for compensation, it has not been made within six months of the date of injury (alleged in the second Application to be between December 1993 and January 2006) and the failure to make the claim within the six month time limit has not otherwise been excused by reference to the legislation.

Which part of the legislation Mr Macken relies on is not identified.

In considering the notice issue, it is appropriate to briefly review the history of this matter. In respect of the notice of injury, Ms Mackell completed a claim form on 13 May 2005. That document provided details of her injury (tendonitis), the body part injured (right arm and shoulder), the name of the treating doctor (Dr Reid), the place of injury (Ballina Area Office), the name of the person to whom the injury was reported (Mr Wakeham, Ms Mackell’s manager), an explanation of how the injury occurred (repetitive data entry over a long period of time), and it was signed by Mr Winkelman, Rinker’s return to work co-ordinator. A WorkCover certificate from Dr Reid was attached to the claim form. Dr Reid’s initial certificate diagnosed Ms Mackell to have tendonitis of the right upper arm and declared her fit for suitable duties from 13 May 2005 with keying up to one hour at a time with 15 minute breaks.

Rinker arranged an examination with Dr Fuller on 3 June 2005 and he reported on 6 June 2005. He took a history of Ms Mackell’s duties and that she developed pain in her right shoulder two years ago that has worsened over time. She had not lost any time from work but noticed that at the end of the month when her workload increased her shoulder pain increased. He diagnosed her to have calcific tendonitis, which was substantially caused by her employment with Rinker. He felt it was too soon to make any assessment regarding permanent impairment.

The balance of the relevant history is set out at paragraphs [2] to [19] above.

In her detailed Statement of Reasons dealing with the Interim Payment Application, Ms Lynch made no mention that Rinker took any issue as to notice of injury or notice of claim.

Ms Mackell’s letter of 16 February 2007, together with Dr Miller’s report, made it clear beyond doubt that she was claiming lump sum compensation in respect of injury to her right arm/shoulder as a result of the nature of her work with Rinker. Rinker was well aware of the period of Ms Mackell’s employment and that the claim related to that period. In a claim for lump sum compensation, particulars about the claim are particulars “sufficient to enable the insurer, as far as practicable, to make a proper assessment of the claimant’s full entitlement on the claim” (section 282 of the 1998 Act). Ms Mackell’s letter of 16 February 2007 and Dr Miller’s report provided appropriate particulars in compliance with section 282(1). In any event, Rinker’s letter of 19 April 2007 did not identify non-compliance with section 282 as an issue in dispute. I also note that Rinker had arranged for the medical examination with Dr Blue by correspondence dated 19 December 2006, that is, well before Ms Mackell’s letter of 16 February 2007. It seems that Rinker was well aware that a claim for lump sum compensation was being made and it took steps to meet that claim.

The submission that the letter and report are not consistent with the allegation of injury in Part 4 of the second Application is not supported by any reasoned argument and is totally specious. The second Application referred to a date of injury of December 1993 to January 2006. The injury is described as “tendonitis in [the] right arm and shoulder” due to “nature and conditions of employment as a result of data entry duties including prolonged periods of typing and operating [a] mouse”. Dr Miller’s report recorded a full history of Ms Mackell’s duties with Rinker, her symptoms, that she suffered no other injuries, and his assessment of her whole person impairment, which had reached maximum medical improvement. I do not accept there is any inconsistency between the letter and Dr Miller’s report, and the second Application. Apart from making the general allegation, Mr Macken has not identified any inconsistency and I reject this challenge.

The argument that if the letter of 16 February 2007 is a notice of claim, the claim has not been made within six months of the date of injury is untenable. First, Rinker did not properly identify this as an issue in its section 74 notice and there is no reason why it should be allowed to do so on appeal. Merely referring to every possible section in the legislation that might be relevant is not proper compliance with section 74. A section 74 notice must state in plain language, in the body of the document, the reason the insurer disputes liability and the issues relevant to that decision (Mateus v Zodune Pty Limited t/as Tempo Cleaning Services [2007] NSWWCCPD 227 at [45]). Whilst the letter of 19 April 2007 referred to sections 254 and 260 (and many other sections), the last paragraph in the letter did not identify ‘notice’ as an issue. Second, Mr Macken did not argue this point before the Arbitrator. As it had not been properly identified as an issue in the letter of 19 April 2007, Rinker would have needed leave before it could be argued. No leave was sought from the Arbitrator, or on appeal. Given the history of this matter, I can see no reason why leave would have been granted. Had leave been granted, it would have been on terms that Ms Mackell be allowed to call evidence of the matters in section 261(4). Third, under section 261(3) of the 1998 Act a person “is considered to have made a claim for compensation when the person makes any claim for compensation in respect of the injury or death concerned, even if the person’s claim did not relate to the particular compensation in question” (emphasis added). Given that Ms Mackell made two previous claims for compensation in this matter, it is difficult to see how it could seriously be argued that she had not claimed compensation within six months of her injury.

For these reasons, I reject this ground of appeal.

Estoppel

Rinker argues:

(a)that the Arbitrator erred in having regard to the Consent Orders of 3 August 2006. While those orders are between the same parties there is no evidence regarding the nature of the proceedings to which the orders relate nor any evidence which could have the effect of making those orders relevant in any way to the issues to be determined in the present claim. There is no evidence that the consent orders were in respect of Ms Mackell’s alleged injury to her right arm/shoulder said to have resulted from the nature and conditions of her data entry duties from December 1993 to January 2006;

(b)the Arbitrator erred in considering that the consent orders could give rise to any issue estoppel or any admissions (Rail Services Australia Pty Ltd v Dimovski & anor [2004] NSWCA 267; (2004) 1 DDCR 648 (‘Dimovski’); Seaib v Hayes Personnel Services (Aust) Pty Ltd [2008] NSWWCCPD 36 (‘Seaib’));

(c)it is necessary for the party relying on the admission or estoppel to prove that the Consent Orders are in respect of precisely the same matters which are the subject of the present dispute, and

(d)the Arbitrator’s finding that the injury pursuant to which the Consent Orders were made was the injury to the right shoulder, was not a finding open on the evidence.

The Arbitrator found that the Consent Orders (described by him as a ‘Consent Award’) were an admission that there had been an injury (Reasons, paragraph 32). He then noted that Ms Mackell had an operation on her right shoulder on 17 January 2006 and that Dr Reid declared her to be unfit from that day. He incorrectly stated that she was declared fit for work on 1 June 2006 and returned to work on 6 June 2006. Ms Mackell was declared fit for work on 6 June 2006, but when she returned to work is not known. Dr Maxwell records that Ms Mackell received a redundancy letter on 20 June 2006. The Arbitrator noted that the period of weekly compensation paid in the Consent Orders (17 January 2006 until 6 June 2006) coincides with hospitalisation and the period of incapacity after the surgery, and that the surgery was due to the injuries assessed by Dr Pearce in November 2005 and had been the subject of the Interim Payment Application. As a result, the Arbitrator concluded that the injury “pursuant to which the consent orders were made was the injury to the right shoulder” (Reasons, paragraph 34).

Given the fact that the Commission is expressly empowered to act without regard to technicalities, the Arbitrator’s reasoning was, up to this point, open to him:

(a)it is clear from the history Ms Mackell gave to Dr Miller that she has sustained no other injuries;

(b)Ms Mackell was certified unfit because of her shoulder condition from 17 January 2006 until 6 June 2006. That coincides with the period of weekly compensation paid in the Consent Orders. Mr Macken’s submission that the time off “could have been paid in respect of a lost foot. Well, the applicant hasn’t lost a foot, but it could have been any injury” (T41.50) was unhelpful, as it did not address the evidence;

(c)the only other claim made by Ms Mackell (the Interim Payment Application) related to the same subject matter as was dealt with in the Consent Orders;

(d)the Commission is not a court and is not bound by the rules of evidence but may inform itself on any matter and must act according to equity, good conscience and the substantial merits of the matter (section 354 of the 1998 Act), and

(e)in these circumstances the only reasonable inference from the evidence is that the Consent Orders dealt with Ms Mackell’s claim for time off as a result of her shoulder injury.

However, that is not the end of the analysis.

The Arbitrator then referred to the decision of Acting Deputy President Snell in Seaib where, after a review of the authorities, the Acting Deputy President summarised (at [77]) the relevant principles in respect of the legal consequences of prior settlements effected by consent awards/orders:

“(i) A consent award can create res judicata estoppels, and also will involve admissions of facts inherent to the award, for example the occurrence of injury, or the existence of economic incapacity resulting from injury, at a certain point in time (Dimovski).
(ii) When an issue is the subject of res judicata estoppel, it is not justiciable in a further action; it is not open to consideration de novo (Almario).
(iii) A res judicata estoppel, created by a consent award for an employer, on a weekly claim, or claim for section 60 expenses, operates up to the date it is made. It does not eliminate future rights (Almario, Kaibau, Coggins).
(iv) A consent award does not oblige the Commission, in subsequent proceedings, to take the factual position described in the consent award as a starting point in the fact finding process. The Commission should determine the facts as at the date of further hearing, “without legal constraints flowing from the earlier award” (Dimovski, De Witte, Kaibau).
(v) When engaging in this fresh fact finding process, it is appropriate to have regard to admissions flowing from the earlier consent award, and the presumption of continuance. However such matters are only part of the evidence, to be considered with other evidence, lay and medical (Dimovski, Coggins).
(vi)A consent award does not create an issue estoppel (Anderson).
(vii)Where a worker executes Admissions and Agreed Facts as part of a settlement, these speak as at the time they were made. They are evidentiary of the facts stated, but not conclusive (Almario).
(viii) It is necessary to analyse and interpret admissions and agreed facts with care, in deciding what evidentiary force they have (Smylie).
(ix)Section 60 is an indemnity provision (New South Wales Sugar Milling Co-op Ltd v Manning (1998) 44 NSWLR 442). Admissions that a worker has no entitlement to such expenses “thereafter”, or “over and above” an agreed sum, should be read in this light (Smylie).
(x) Agreed Facts which purport to impose a blanket bar upon the recovery of further compensation, for example a worker “is not entitled to any further weekly payment or compensation”, or “has no entitlement to compensation against the Respondent”, must be read subject to section 234 of the 1998 Act, which prevents contracting out of the 1987 and 1998 Acts.
(xi) The parties cannot use a series of consent awards to achieve de facto commutation, without appropriate approvals (Nelson v Flood & Co Ltd [1934] 8 WCR 227, Almario).”

Whilst I am in general agreement with the above summary, the question of whether a consent award/order can give rise to an issue estoppel (point (vi) above) has been the subject of several persuasive authorities discussed below. Those authorities suggest that, in certain circumstances, issue estoppels can arise from consent awards/orders, though the nature and extent of such an estoppel will depend on the facts and circumstances of each case.

The Arbitrator referred to the first three points identified by Acting Deputy President Snell and then referred to the decision of W E Bromley Pty Ltd v Coggins [2006] NSWWCCPD 128 (‘Coggins’). In Coggins, I held that a prior consent award prevented an employer from later denying that the worker had, as at the date of the award, a certain percentage impairment of his back.

The Arbitrator also referred to Spicer Axle Australia Pty Ltd v Merza [2007] NSWWCCPD 148 (Merza). That case dealt with the circumstances in which a matter was referred to an AMS for assessment. The employer argued that the circumstances of the referral gave rise to an estoppel on the issue of the nature and extent of the worker’s injury. I rejected that argument, but added (at [54]):

“If any estoppel arose it is arguable that the Appellant Employer is estopped from contesting injury to the L4/5 disc in circumstances where Dr Sheridan sought approval from the relevant workers compensation insurer before proceeding with the surgery. I infer from the fact that the surgery went ahead that that approval was given. However, as the Respondent Worker has not argued any estoppel against the Appellant Employer it is not appropriate that I reach a concluded view on this issue.”

There are three things to note about Merza. First, it did not concern consent orders, but merely the circumstances in which a referral had been made to an AMS, which I held did not create an estoppel. Second, the worker did not argue any estoppel and I expressed no concluded view about it. Third, any ‘estoppel’ in that case would have been no more than an admission, which could have been taken into account with all the other evidence in assessing the claim but would not have determined the claim.

The Arbitrator referred to Ms Mackell seeking approval for surgery and to Rinker having paid for the surgery (Reasons, paragraph 38). Whilst Ms Mackell sought the cost of the surgery in the Interim Payment Application, that application was ultimately unsuccessful and there is no evidence that Rinker agreed to pay for the surgery. Whilst the general order for the payment of section 60 expenses (in the Consent Orders) suggests that Rinker may well have paid for the surgery, it is not known what items were covered in the general order. He then referred to Rinker entering into the Consent Orders for the payment of weekly compensation for incapacity during the period following the surgery. As a result, he found (at paragraph 38 of his Reasons) that Rinker “admitted injury by entering into the Consent Award and that by reason of that Consent Award, and the agreement to pay for the surgery the Respondent is estopped from denying injury”. He then based his finding on injury solely on the effect of the Consent Orders.

In doing so, the Arbitrator overstated the effect of the Consent Orders. The orders have created a res judicata estoppel in respect of the period from 17 January 2006 until 6 June 2006. That means that the worker is estopped from later claiming weekly compensation for that period because her entitlement has merged in the orders made and Rinker is estopped from denying that the injury created no need for medical treatment that was reasonably necessary in the period up to 3 August 2006. But, without evidence identifying the issues in the previous proceedings, it is not possible to conclude whether any issue estoppel arises from the Consent Orders.

The question of whether an issue estoppel can arise from consent orders is addressed in the text The Doctrine of Res Judicata by Spencer Bower, Turner and Handley (‘Spencer Bower’), third edition, 1996, where it is stated (at [39]):

“Though consent judgments and orders are decisions and their operative parts binding, it may not be clear what questions were concluded. The court will examine the available evidence to ascertain the matters in dispute. Any issue which the parties recognised was the subject of the litigation and was fundamental to the judgment or order will be conclusively determined. Where, however, there are no such materials neither party is estopped from disputing anything but the actual judgment or order. The proper approach to determining the scope of a consent judgment was stated by Lord Herschell LC:
‘…a judgment by consent is intended to put a stop to litigation between the parties, just as much as is a judgment which results from the decision of the court after the matter has been fought out to the end. And I think it would be very mischievous if one were not to give a fair and reasonable interpretation to such judgments and were to allow questions that were really involved in the action to be fought over again in a subsequent action’.”

The citation for Lord Herschell’s decision is Re South American and Mexican Co [1895] Currans Hill 37 at 50.

The effect of consent orders has been the subject of recent judicial consideration in Australia. In Somander v Minister for Immigration and Multicultural Affairs (2001) 178 ALR 677, Merkel J considered the effect of dismissal orders made by consent and said (at 686):

“It is now well-established that judgments or orders by consent of the parties are as efficacious and binding as those pronounced after a contest. Thus, such judgments or orders can give rise to a plea of res judicata and issue estoppel as a bar to litigation of the same issues between the same parties in subsequent litigation.”

The similar view was expressed by the Full Court of the Supreme Court of South Australia in Mitsubishi Motors Australia Ltd v Harbord and anor (1997) 69 SASR 75 at 90 and by McMurdo J in Balnaves v Smith & anor [2008] QSC 76.

However, the extent to which a consent order may give rise to issue estoppels has not been finally determined (Spencer Bower, at [38]). There is no issue estoppel in situations capable of change (Spencer Bower, at p102 and Hamersley Iron Pty Ltd v The National Competition Council [2008] FCA 598), and a later claim for lump sum compensation is one example of such a situation. This point is succinctly illustrated in Spencer Bower (at [185]):

“An agreement to pay compensation registered under the Workmen’s Compensation Acts estopped the employer from disputing liability for the accident; but not from contending that the worker’s death did not result from it.”

The authorities cited in Spencer Bower are Cleverley v Gas Light and Coke Co (1907) 24 TLR 93 and O’Donel v Commissioner for Road Transport (1938) 59 CLR 744 (‘O’Donel’). The authority of O’Donel is of particular significance and was considered and applied by Handley JA in Dimovski where his Honour said (at [9] to [12]):

“9 Mr King submitted that the Judge erred in law in failing to give effect to the estoppel created by the consent award by finding that although the worker had suffered further injuries to his left leg his current loss of use was still only 25%. A consent judgment can create res judicata estoppels: Spencer Bower, Turner & Handley ‘Res Judicata’ 1996 pp 21-2. The estoppels flowing from the consent award bound the second respondent as a party and the appellant as a privy in interest, as the second respondent’s statutory successor: Spencer Bower & Ors (above) pp 119-22.
10 The argument based on issue estoppel involved two propositions. The first was that the consent award conclusively determined that as at 16 October 1996 the worker had a permanent impairment of his left leg at or above the knee of 25% which was the result of an injury or injuries sustained in the employment of the second respondent. This is correct. The second was that he suffered two further injuries to his left leg in the employment of the appellant, one from the nature and conditions of his work, and the other the frank injury on 25 May 1998. This was also correct.
11 If these further injuries caused other than temporary aggravations of the worker’s condition they must have increased the impairment in his left leg. The Judge did not find that they only caused temporary aggravations, but nevertheless found no increased impairment. Accordingly it was submitted that she had disregarded the estoppel. Mr King relied strongly on her statement that the consent award was ‘possibly not reflective of an accurate assessment’.
12 These submissions must be rejected because they are contrary to the principles established in O’Donel v Commissioner for Road Transport (1938) 59 CLR 744. A decision that a worker’s total blindness between 14 September 1934 and 15 February 1935 arose from an injury in the course of his employment was held not to issue estop the employer from contending that his blindness after 15 February 1935 arose from other causes. Evatt J said at 763:
‘The argument involves and is based upon the fallacy that where an issue between A and B related to a state of things which is capable of subsequent alteration, the conclusive determination in A’s favour of that state of things as at one date plus conclusive proof that up to a later day there has been no alteration of such state of things establishes in A's favour as against B an estoppel as to the state of things existing at the later day ... this method, thought logically sound, is not permitted by law ... The unsuccessful party is bound by the authoritative determination of every fundamental issue but when a distinct and separate issue arises subsequently, he is not bound to submit to the second issue being established by the combination of a former issue with additional evidence, no matter how strong such evidence may be’.” (emphasis added)

Dealing specifically with the consent awards, his Honour said (at [14]):

“The consent award involved admissions by the parties and these, coupled with the presumption of continuance, were of some weight. However there was much other evidence, lay and expert, relating to the worker’s impairment at the later date and the weight to be given to the admissions and the presumption of continuance was a question of fact for the Judge.”

In the same case Hodgson JA said (at [57]):

“The inconsistency point was supported by submissions concerning issue estoppel. However, although an issue estoppel binds the parties as to the issues actually determined, they are not bound in relation to any different issue, not even where the combination of the original issue and extremely strong evidence would support a finding on the second issue: see O’Donel v. The Commissioner for Road Transport and Tramways (NSW) (1938) 59 CLR 747 at 763.”

Applying the principles in O’Donel and Dimovski to the present matter, and assuming that the estoppel can be properly proved, the consent award of 3 August 2006 does create issue estoppels as to the issues “the parties recognised was the subject of the litigation and was fundamental to the judgment or order” (Spencer Bower, at [39]), but there is no estoppel in situations capable of change. Rinker will be estopped from denying that Ms Mackell suffered an injury that resulted in her need for surgery and in her incapacity from 17 January 2006 until 6 June 2006. It may also be estopped on other issues, such as notice of injury and worker. However, consistent with O’Donel and Spencer Bower (at p102), Rinker will not be estopped from arguing that it has no liability in respect of a later claim for lump sum compensation. In such a claim, the Consent Orders will be of some weight (especially in circumstances where Rinker had a solicitor acting on its behalf at the time the Consent Orders were made), but their probative value must be assessed in the light of all the evidence.

It may also be relevant (at the re-determination) to consider the principles in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 (‘Anshun/Anshun estoppel’). These principles usually arise where a party seeks in subsequent proceedings to raise a defence that could and should have been raised in earlier proceedings between the same parties, but was not. In certain circumstances, the party may be estopped from raising that defence in later proceedings. The majority (Gibbs CJ, Mason and Aickin JJ) said (at [37]) that the estoppel will not arise unless “the matter relied upon as a defence in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it”. In that case the appellant, the Port of Melbourne Authority, sought to rely in subsequent proceedings on an indemnity given by the respondent although it had not raised that indemnity in previous proceedings taken by an injured worker against the Authority and the respondent as defendants. Those proceedings concluded with a judgment against each defendant. The High Court held (at [16]) that the later claim by the Authority had to fail because “the judgment which the Authority seeks to obtain in the present action is one which would contradict the judgment which has been entered in the (previous) action”.

Kirby JA (as his Honour then was) considered Anshun estoppel in Lambidis v Commissioner of Police (1995) 37 NSWLR 320 at 322 (‘Lambidis’) where his Honour said that such an estoppel:

“…prevents a party from later relying upon a claim or defence which it has unreasonably refrained from raising in earlier proceedings which were so closely connected with the later subject matter that it might reasonably have been expected that the claim or defence would have been raised?”

Anshun estoppel depends on “considerations of public policy and the reasonableness of the conduct of litigants” (per Justice Kirby in Lambidis at 325). Each case will depend on its facts, as the question of what is unreasonable will vary according to the circumstances. However, the Commission has a discretion, in special circumstances, to allow an issue to be raised even where it is found that the point was unreasonably omitted from the earlier proceedings (Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 242 at [38]). Because of a lack of evidence as to the issues raised in the previous proceedings, I am unable to determine if the principles discussed in Anshun are applicable in the present matter. In general, however, if an employer refrains from raising issues such as, for example, notice of claim or notice of injury in earlier proceedings, it may well be prevented from relying on those issues in later proceedings against the same worker involving the same incident.

A further point to note is that it is not essential to formally plead estoppel in order to rely on it (Ferreira v Zebra Stoneworks Pty Ltd [2002] NSWCA 405 at [56]). That is especially so in the Commission, which is required to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. The ultimate question is whether reliance on estoppel should be precluded by consideration of procedural unfairness. A party seeking to rely on an estoppel must properly prove the essential facts that establish it and must give reasonable notice of his or her intention to rely on it.

Reasons

As the matter must be re-determined, it is not necessary for me to consider this issue.

Deemed Date of Injury

Rinker argues that the deemed date of injury is the date on which the claim was made (Alto Ford Pty Ltd v Antaw (1999) 18 NSWCCR 246 (‘Antaw’) and, as the letter of 16 February 2007 “does not comply with the requirements of the legislation” there is no claim and therefore no deemed date of injury. In the alternative, it argues that the deemed date of injury is 16 February 2007 and consideration needs to be given to the identity of the employer for whom Ms Mackell last carried out work to the nature of which the disease is due. The subsequent employment, it is argued, is the same type of work that Ms Mackell did with Rinker and as that employment resulted in aggravation (even if only symptomatic aggravation) of her condition, the liability for the payment of compensation benefits rests with the later employer.

In Antaw the worker was a motor mechanic who was injured in 1976 when a metallic particle struck his left eye. He settled his claim under section 16 of the Workers Compensation Act 1926 (‘the 1926 Act’) for a 10% loss of sight in the left eye. The worker moved to different employers and in 1992 he had further surgery to his eye. In April 1996 he ceased full time work as a mechanic because of his loss of vision. He claimed weekly and lump sum compensation on 29 July 1996 and was awarded weekly compensation from 10 August 1993 (incapacity having arisen in January 1992 when he had time off work for surgery and was paid voluntary compensation) and lump sum compensation in respect of a further 40% loss of sight in his left eye calculated on a deemed date of injury of 29 July 1996. The employer appealed arguing that the injury should be deemed to have happened on or before 30 June 1987 and lump sum compensation should have been calculated under section 16 of the 1926 Act. Counsel for the appellant argued that no practical purpose was to be served by applying section 15 of the 1987 Act where the worker had suffered a frank traumatic injury and there was no difficulty in identifying the date of the injury from which the incapacity arose.

It was also argued that the evidence established a deemed date of injury under section 15 before 30 June 1987 because the worker had been incapacitated for work in 1976 and when he first stopped work because of his vision in 1985. The Court of Appeal held that the injury was deemed to have happened at the time of incapacity. That is, when the worker was unable to do work as a motor mechanic. It was open to the trial judge to find that that incapacity occurred in 1992. By 1996 the worker had sustained a further 40% loss of vision. The worker’s incapacity had not resulted from that additional loss of vision and the appropriate date to determine the lump sum entitlements was the time when the worker made his claim for that compensation.

In P & O Berkeley Challenge Pty Ltd in the interest of HIH Winterthur Workers Compensation (NSW) Pty Ltd v Alfonzoand others (2000) 49 NSWLR 481 (‘Alfonzo’) the worker developed painful symptoms in her arms and neck in the course of her employment between 1981 and February 1996. In that period she worked for two employers: the Government Cleaning Service from 1 January 1981 to 28 January 1994 and P & O Berkeley Challenge Pty Ltd (‘Berkeley’) from 29 January 1994 to 11 February 1996. Berkeley had two insurers: one for the period up to 31 December 1995 and another from 1 January 1996. Her symptoms deteriorated over time resulting in her being put off work and paid compensation from April 1993 to August 1993. On her return to work her symptoms again deteriorated and she was off work for five weeks over the holiday period at the end of 1995. She worked again for three weeks in 1996 but stopped on 11 February 1996 and did not work again. By 1 January 1996 her employer had changed insurers. She claimed weekly and lump sum compensation in a case to which section 16 of the 1987 Act applied. The issue was which of Berkeley’s two insurers was responsible for its liability?

The trial judge held that incapacity in section 16 was a reference to incapacity for which compensation was claimed. Therefore, the relevant date was the commencement of the worker’s inability to earn wages she would otherwise have earned but for injury (per Priestley JA at 484). This meant that the deemed date of injury under section 16 was 12 February 1996 and the insurer on risk at that time was liable to indemnify Berkeley.

In addition to claiming weekly compensation Mrs Alfonzo also claimed lump sum compensation. Though that claim was not made until 30 July 1997, the trial judge held that the deemed date of injury fixed by section 16(1)(a)(i) (12 February 1996) was also the date of injury for the purposes of the lump sum claim. On appeal Priestley JA, with whom Clarke A-JA agreed, affirmed that conclusion.

The Court of Appeal considered Alfonso and Antaw in Stone v StannardBrothers Launch Services Pty Ltd [2004] NSWCA 277 (‘Stone’). In that case the worker developed skin cancer as a result of prolonged exposure to the sun in the course of his employment with the respondent up to 16 December 1985 when he stopped work for unrelated reasons. Prior to stopping work he was aware of ‘sun spots’, which he had burnt off by his doctor. The worker’s condition deteriorated and he claimed lump sum compensation in respect of severe facial disfigurement in December 2001, which claim was amended on 10 June 2003. The trial judge held that the treatment given before 30 June 1987 would have involved some incapacity for work and therefore the deemed date of injury was before 30 June 1987 and the provisions of section 16 of the Workers Compensation Act 1926 applied in assessing the quantum of compensation recoverable.

On appeal, it was held that the trial judge erred. As there was no claim for weekly compensation, section 16(1)(a)(i) did not fix a date on which the impairment injury happened. That date was, in the circumstances of the case, fixed when the claim for lump sum compensation was made in either December 2001 or 10 June 2003.

The Court of Appeal recently considered Antaw in Gales v Lovett, McCracken & Bray [2008] NSWCA 171 (‘Gales’). Hodgson JA (Ipp and Hoeben JJA agreeing) observed (at [30]) that in Antaw the Court noted that subsections 15(3) and 15(4) had the effect that:

“the additional loss of vision would itself be an injury within s 15; and the court accordingly held that the additional forty per cent loss measured in 1996 was an injury which had not caused the incapacity which had occurred in 1992, and thus was deemed to have occurred when the claim was made in 1996.”

No finding of the kind made in Antaw, as explained in Gales, is open in the present matter. Ms Mackell did not suffer “an injury” in February 2007. Neither section 15 nor section 16 creates a liability to pay compensation. Each section assumes that an injury within the meaning of section 4 has occurred (Crisp v Chapman (1994) 10 NSWCCR 493 at 495). Ms Mackell’s injury occurred between 1993 and January 2006 and section 16 deems her injury to have occurred at the time of her incapacity (17 January 2006). If no incapacity resulted from the injury (as was the case in Stone), then the deemed date of injury would have been the date on which she claimed lump sum compensation.

I reject Rinker’s argument that the deemed date of injury is 16 February 2007.

Last Employer

It is argued that the Arbitrator had to consider whether Ms Mackell’s later and more recent employment was the “same by virtue of its tendencies, incidents or characteristics, as the nature of the employment with the Appellant to which the disease is alleged to be due” and it is sufficient if the later employment even causes only symptomatic aggravation of Ms Mackell’s condition.

This submission is unsustainable and confuses section 15 with section 16. This case does not involve a claim that Ms Mackell’s injury is a disease of such a nature “as to be contracted by a gradual process” (section 15) and, as a result, the liability does not fall on the employer “who last employed the worker in employment to the nature of which the disease was due” (section 15(1)(b)). The claim is under section 16. That section provides that “If an injury consists in the aggravation, acceleration, exacerbation or deterioration of a disease”, compensation is payable by the employer “who last employed the worker in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration”.

Mr Macken relies on a history taken by the AMS (Dr Ashwell) on page two of his MAC of 18 June 2007, which recorded that in August 2006 Ms Mackell commenced work with a new employer doing “the same type of work with data entry” and that she has intermittent pain in her right shoulder with prolonged work and hanging out the washing. The weight to be attached to Dr Ashwell’s report is uncertain.

I do not accept that Dr Ashwell’s history establishes that Ms Mackell has sustained a further aggravation injury under section 16. Ms Mackell’s condition was well established prior to starting work with her more recent employer and Dr Ashwell’s opinion does not alter that fact. This conclusion follows regardless of the deemed date of injury.

INJURY

This issue and the question of Ms Mackell’s entitlement to lump sum compensation will have to be re-determined in the light of the reasons in this decision and in the light of any additional evidence the parties may tender.

ADDITIONAL MATTERS

Whilst it is regrettable, this matter must now be re-determined by a different Arbitrator. The future conduct of this claim is a matter for the parties and the next Arbitrator, but it may be prudent if attention is given to the following matters:

(a)the taking of a detailed statement from Ms Mackell dealing with all matters in issue;

(b)obtaining and serving the Commission’s previous files relating to Ms Mackell’s prior claims against Rinker;

(c)serving all relevant documents, including any claim forms and particulars, as required by the 1998 Act and the Rules, and

(d)retaining experienced counsel.

In respect of the Reply filed by Mr Macken, I note that it has a schedule attached to it headed “Schedule of Issues in Dispute” that purports to raise the following issues: injury, notice of injury, claim for compensation (whether duly made or otherwise), causation, substantial contributing factor, impairment and quantum of entitlement and compliance with the legislation regarding notification and claiming compensation (including but not limited to compliance with the time limits). The attaching of such a schedule to a Reply is inappropriate and unacceptable. Insurers have an obligation under the 1998 Act to clearly and succinctly state the matters in dispute in a section 74 notice. If a party wishes to raise new or additional issues, full particulars of such issues must be provided at the first available opportunity and leave sought for those issues to be relied on.

Finally, given the nature of this claim and its history, Mr Macken’s general conduct of the case before the Arbitrator was unsatisfactory. His gratuitous comments about Ms Mackell (see [71] above) were totally unacceptable and should not have been made. This kind of conduct should not be repeated. It was unnecessary, inappropriate and did not advance Rinker’s interests.

DECISION

The Arbitrator’s decision of 8 May 2008 is revoked and the matter is remitted to a different Arbitrator for re-determination in accordance with the reasons in this decision. Costs of the first arbitration are to follow the result of the second arbitration.

COSTS

No order as to costs of the appeal.

Bill Roche
Deputy President

19 September 2008

I, TUYET WALLIS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE