Rocla Industries Pty Ltd v Seton
[2006] NSWWCCPD 43
•16 March 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Rocla Industries Pty Ltd v Seton [2006] NSWWCCPD 43
APPELLANT: Rocla Industries Pty Ltd
RESPONDENT: Roderick Leslie Seton
INSURER:Self-insurer
FILE NUMBERS: WCC9479-03 and WCC8730-04
DATE OF ARBITRATOR’S DECISION: 20 January 2005
DATE OF APPEAL DECISION: 16 March 2006
SUBJECT MATTER OF DECISION: Leave to appeal; extension of time to appeal; fresh or additional evidence; dispensing with requirements of the Rules; error of law; jurisdiction; admissibility and refusal to admit evidence; injury; incapacity; ability to earn; credit, and inadequacy of reasons for decision.
PRESIDENTIAL MEMBER: Deputy President Gary Byron
HEARING:Determined on the papers
REPRESENTATION: Appellant: Leigh Virtue & Associates
Respondent: Messenger & Messenger,
Solicitors & Attorneys
ORDERS MADE ON APPEAL: The decision of the Arbitrator, dated 20 January 2005, is revoked and the following decision is made in its place:
The matter is remitted to the Arbitrator concerned for consideration and determination afresh of the issues of ‘injury’ and ‘incapacity’, and what necessarily follows, in accordance with these reasons, and in accordance with the evidence and the weight of the evidence, including the medical evidence brought by both parties and the oral evidence of the Respondent worker. The Arbitrator is to seek and receive fresh written submissions from the parties within a time fixed by him, and thereafter proceed to consider and determine the matter afresh with or without holding any further conference or formal hearing, as the Arbitrator determines upon a consideration of section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998.
No order is made as to the costs of this appeal.
ALL MATERIAL IN RELATION TO THE DETERMINATION OF THREE
ASSOCIATED APPEALS, INCLUDING THIS APPEAL, IS SET OUT IN THIS APPEAL.
THE OTHER TWO APPEALS ARE:
- Seton v Rocla Industries Pty Ltd No1 [2006] NSWWCCPD 44, and
- Seton v Rocla Industries Pty Ltd No 2 [2006] NSWWCCPD 45.
BACKGROUND TO THE APPEAL(S)
Mr Roderick Leslie Seton, the Respondent worker in this appeal, was employed as a loader-driver and plant operator with Rocla Industries Pty Limited (‘Rocla’), the Appellant, in 1993 until 19 July 2001. He was made redundant on that date, after his union intervened following a misconduct action brought by Rocla against him. Mr Seton filed an unfair dismissal claim in the NSW Industrial Relations Commission, the date of the dismissal being 19 July 2001. It was withdrawn at some later time.
Mr Seton claims to have suffered an injury to his neck, and both arms at or above the elbow. It is alleged that the injury occurred as a result of the nature and conditions of his employment with Rocla in the period 1993 to July 2001, and principally as a result of carrying water pumps, and lifting blades and gear boxes.
On 14 August 2002 Mr Seton notified Rocla of the injury.
On 26 August 2002 Mr Seton lodged a claim with Rocla for weekly benefits.
On 22 October 2002 Rocla, as self-insurer, advised Mr Seton that it denied liability for the claim for weekly benefits.
On 24 October 2002 Mr Seton lodged an ‘Application to Resolve a Dispute’ (‘the Application’) in the Workers Compensation Commission (‘the Commission’). This is matter is WCC3581-02. Mr Seton claimed that he suffered injury to both shoulders. He claimed that the injury occurred between 1996 to 1997, as a result of the nature and conditions of his employment with Rocla. Mr Seton claimed weekly compensation for the period from 10 July 2001 to 22 August 2002. Mr Seton’s Solicitors sent letters to Rocla on 14 August 2002 and 26 August 2002 requesting payment of weekly benefits. Mr Seton had received no response from Rocla in relation to these requests, at the time of lodging the Application.
There are a number of applications and events involved in the dispute between Mr Seton and Rocla, with the result that the way in which the dispute has unfolded is somewhat difficult to follow. For this reason, the history is set out hereunder in chronological sequence, rather than simply under each Application.
On 21 February 2003 the Commission issued a direction from the Arbitrator, directing that the conciliation conference/arbitration be held in Orange on 4 April 2003.
On or about 4 March 2003 Rocla appealed against this decision of the Arbitrator. Rocla sought an order that the decision of the Arbitrator, listing the matter for conference/arbitration in Orange, be set aside and that the conference be listed to take place in Sydney on 4 April 2003.
On 20 March 2003, and prior to the determination of Rocla’s appeal, the Commission directed that the conciliation conference/arbitration be held in Lithgow on 4 April 2003.
On 4 April 2003 Mr Seton requested an adjournment of the conciliation/ arbitration listed in Lithgow on that date. The basis of the application for adjournment was that the application for leave to appeal, made by Rocla on 4 March 2003, had not been determined prior to the arbitration, and that medical issues had been raised by Rocla to which Mr Seton had not had the opportunity to reply. The adjournment was refused and the parties attempted to conciliate the matter, but were unsuccessful. Mr Seton elected to discontinue the proceedings. The Solicitors for Rocla opposed the election to discontinue and sought an order that Mr Seton pay Rocla’s costs pursuant to section 342(2) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
On 9 April 2003 Mr Seton lodged an ‘Election to Discontinue Proceedings’.
On 15 April 2003 Mr Seton wrote to Rocla making a claim pursuant to sections 66 and 67 of the Workers Compensation Act 1987 (‘the 1987 Act’). He claimed a total amount of $38,600 which included $13,600 under section 66 and $25,000 under section 67, of that Act. No response was received from Rocla in relation to this claim.
On 28 April 2003 the Arbitrator made the following order in relation to matter WCC3581-02:
“1. I make no order for costs against the Applicant.”
On 30 April 2003 Rocla lodged an ‘Application to Resolve a Dispute’, in the Commission. The Application was made by Rocla in respect of the dispute between it and Mr Seton for weekly compensation from 10 July 2001 to date and continuing. Rocla, as self-insurer had denied liability. It is noted that the ‘section 290 statement’ attached to the Application describes Rocla, incorrectly, as the Respondent in this Application. This became matter number WCC9479-03.
On 1 May 2003 the Application, WC9479-03 was registered by the Commission. An error was made by the Commission in the initial registration of the Application, with Mr Seton recorded as the Applicant and Rocla as the Respondent.
On 28 May 2003 Mr Seton lodged a Reply with the Commission in relation to matter WCC9479-03.
On 28 May 2003 a ‘Direction for Production’, in matter WCC9479-03, was filed on behalf of Mr Seton, who in error, described himself as the Applicant, and Rocla as the Respondent, in that matter.
On 29 May 2003 Mr Seton wrote to Rocla serving medical reports pursuant to section 126 of the 1998 Act, in matter WCC9479-03.
On 18 June 2003 Mr Seton lodged a further ‘Application to Resolve a Dispute’ in the Commission. He claimed injuries to his neck and right upper limb. It was claimed that the injury occurred between 1996 and 1997 as a result of the nature and conditions of his employment with Rocla. Mr Seton sought compensation under sections 66 and 67 of the 1987 Act. The total amount in dispute was $38,600 and the claim was made on the basis that the “insurer had not made a decision”’. This became matter WCC11203-03.
On 24 June 2003 Rocla wrote to the Commission in relation to WC9479-03, voicing its concern that it had received a sealed copy of its ‘Application to Resolve a Dispute’ on 19 June 2003, although the Application had been lodged on 30 April 2003. It also noted that Mr Seton’s Reply had been lodged at the Commission on 28 May 2003, which indicated that Mr Seton had received a sealed copy of that Application before Rocla had received its sealed copy of the Application.
On 4 July 2003 Rocla lodged its Reply in matter WCC11203-03 with the Commission.
On 9 July 2003 the Commission wrote to Rocla noting that there had been some delay as a result of confusion in registering the Application and other documents. The Commission made the decision to expedite matter WCC9479-03.
On 11 July 2003 Mr Seton wrote to the Commission voicing concerns that the matter was to be expedited. Mr Seton stated that at the time that WCC3581-02 was discontinued, he had made his intentions clear that he was to add a claim for compensation pursuant to sections 66 and 67 of the 1987 Act. Mr Seton said that he had duly made the claim, by the service of a medical report on Rocla, by letter dated 15 April 2003. It was also stated that Mr Seton had to wait the statutory period of two months before he could file an application to include claims under sections 66 and 67 of the 1987 Act. As indicated in paragraph 20 above, this claim was lodged in the Commission on 18 June 2003 and registered as matter number WCC11203-03.
On 23 July 2003 Rocla’s Solicitors wrote to the Commission in response to the Commission’s letter of 9 July 2003 in matter WCC9479-03, and amongst other things, indicated that the Commission had failed to provide it with a suitable explanation of what had occurred.
On 18 August 2003 the Commission made a direction that WCC9479-03 and WCC11230-03 be dealt with in the same proceedings.
On 20 October 2003 a teleconference was held and on 21 October 2003 an Arbitrator for the Commission ordered the following in relation to WCC11230-03:
“1.Leave granted to the Applicant in WCC11230-03 to amend the Application to include a claim for section 60 medical expenses on production of accounts and/or receipts.
2.This matter to be referred to an Approved Medical Specialist to be nominated by the WCC, noting the expedition order of the Commission.”
On 19 November 2003 an appointment was made for Mr Seton to attend an examination by Dr Fearnside, Approved Medical Specialist (‘AMS’) in matter WCC11230-03.
On 16 January 2004 Dr Fearnside’s Medical Assessment Certificate (‘MAC’) was issued in matter WCC11230-03. Dr Fearnside certified that the Applicant suffered a permanent loss of efficient use of the right arm at or above the elbow of 13.5%, and 9% for the left arm at or above the elbow.
On 13 February 2004 a teleconference was held in matter WCC9479-03 and WCC11203-03. The Respondent, Rocla, indicated at the teleconference that an Appeal had been lodged with respect to the MAC. There was also a concern raised by Rocla that Mr Seton’s Solicitor was the appointed Arbitrator for another matter in which Rocla was involved, and raised the issue of a potential conflict of interest. However, the issue was not pursued, presumably because potentially, while it might be an issue in the matter in which he was an Arbitrator, it is not relevant in the instant case. A further teleconference was scheduled for 7 May 2004.
On 22 February 2004 Rocla lodged an ‘Application to Appeal the Decision of an Approved Medical Specialist’ in relation to WCC11203-03.
At the teleconference held on 7 May 2004 matters WCC9479-03 and WCC11203-03 were set down for conciliation/arbitration at Lithgow on 16 July 2004. Rocla advised that one of the bases of their MAC appeal in matter WCC11203-03 was that the Medical Appeal Panel could not determine this appeal until such time as the related matter WCC9479-03 had been determined.
On 24 May 2004 Mr Seton purported to lodge an ‘Application to Resolve a Dispute’ against Rocla in the existing matter WCC9479-03, addressing the issue of weekly payments and adding the issue of section 60 of the 1987 Act, claiming medical expenses. He claimed that the injury to his neck and injury to both shoulders occurred as a result of the nature and conditions of employment from 1993 to July 2001. This matter was registered with the Commission on 3 June 2004 and became matter WCC8730-04.
On 3 June 2004, President, Justice Sheahan determined the appeal referred to in paragraph 9 above, in relation to matter WCC3581-02, as follows:
“1.Leave to appeal the decision of the Arbitrator, dated 21 February 2003, is refused.
2. No order made as to costs.”
On 4 June 2004 Mr Seton sought leave to bring an ‘Appeal Against the Decision of the Arbitrator’ in the Commission against a decision dated 7 May 2004 in matters WCC9479-03 and WCC11203-03. Mr Seton appealed against the decision of the Arbitrator to list the hearing of this matter at Lithgow on 16 July 2004, as the Arbitrator had given no reasons for his decision to list the matter.
On 16 June 2004 Rocla lodged its Opposition to Mr Seton’s appeal in matter WCC8730-04.
On 21 June 2004 the Registrar of the Commission struck out Rocla’s ‘Application to Appeal the Decision of an Approved Medical Specialist’ in matter WCC11203-03, referred to in paragraph 31, above.
On 24 June 2004 an Arbitrator directed that the conciliation/arbitration proceedings in matters WCC9479-03 and 11203-03, scheduled for 16 July 2004, be vacated in light of the appeal lodged by Mr Seton against the direction dated 7 May 2004, referred to in paragraph 35 above, to set the matter down for conciliation/arbitration.
On 29 July 2004 I made an order that the Appeal lodged on 4 June 2004 by Mr Seton, appealing against the listing of matters WCC9479-03 and 11203-03 on 16 July 2004, not be determined and no substantive orders were made. Leave was given to the parties to make submissions as to the costs of the appeal. The decision was made on the basis that the appeal was otiose.
On 27 August 2004 an Arbitrator issued directions at a teleconference joining matters WCC8730-04 (Mr Seton’s Application) and WCC9479-03 (Rocla’s Application).
Matters WCC8730-04 and WCC9479-03 were listed for arbitration on 13 October 2004 and 10 November 2004
On 20 January 2005 a decision was made by an Arbitrator in relation to matters WCC8730-04 and WCC9479-03, in favour of Mr Seton. The matter was determined as follows:
“1. That the Respondent pay the Applicant’s section 60 of the Workers Compensation Act 1987 expenses on production of accounts and receipts.
2. That the Respondent pay the Applicant weekly compensation at the rate of $600 from 11 June 2002 to 4 July 2002 under s36 of the Workers Compensation Act 1987.
3. That the Respondent pay the Applicant weekly compensation at the rate of $300 from 10 July 2001 to date and excepting any period of total incapacity within that period under s40 of the Workers Compensation Act 1987. Such weekly payments to continue in accordance with the provisions of the Act.
4. The Respondent to pay the Applicant’s costs as agreed or assessed, and for this purpose I certify this matter as complex.”
On 15 February 2005 Rocla sought leave to bring an ‘Appeal Against the Decision of Arbitrator’ in the Commission, against that decision dated 20 January 2005 in matters WCC9479-03 and WCC8730-04. The appeal was lodged prior to Rocla being issued with the ‘Certificate of Determination’.
On 21 February 2005 Rocla’s Appeal was rejected by the Commission on the basis that it failed to comply with the requirement to make threshold submissions, in relation to a hearing.
However, on 23 February 2005 the Commission accepted the Appeal.
On 1 March 2005 the Commission sent the Arbitrator’s ‘Certificate of Determination’ and ‘Statement of Reasons for Decision’ dated 20 January 2005, to Mr Seton.
On 17 March 2005 Mr Seton filed a ‘Notice of Opposition’ in response to Rocla’s appeal in matters WCC9479-03 and WCC8730-04.
On the same day, Mr Seton sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Commission, against the decision dated 20 January 2005 in matters WCC9479-03 and WCC8730-04. On 18 March 2005, the Commission rejected the application, as it failed to comply with Practice Directions.
On 24 March 2005 Mr Seton lodged a fresh application to seek leave to bring an ‘Appeal Against the Decision of Arbitrator’ in the Commission, against the decision dated 20 January 2005 in matters WCC9479-03 and WCC8730-04.
On 18 April 2005 Rocla filed a Reply in response to Mr Seton’s appeal in both matters.
On 2 May 2005 the Commission made a direction that matter WCC11203-03 (Mr Seton’s sections 66 and 67 of the 1987 Act Application) be listed for conciliation/arbitration on 19 May 2005.
On 20 May 2005 the following directions were made by the Arbitrator in matter WCC11203-03:
“1. that this matter be adjourned pending the outcome of the Appeal in matters 9479-03 and 8730-04.
2. that the determination of that Appeal be expedited.”
On 30 May 2005, the following directions were substituted for the direction issued by the Arbitrator on 20 May 2005:
“1. that this matter, 11203-03, be adjourned pending the outcome of the Appeal in matters 9479-03 and 8730-04.
2. that matters 9479-03, 8730-04 and 11203-03 be referred to me for determination once the appeals in matters 9479-03 and 8730-04 are finalised.”
On 16 June 2005 Rocla lodged a second application for leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Commission, against the decision of the Arbitrator dated 20 January 2005, in matters WCC9479-03 and WCC8730-04.
On 17 June 2005 Mr Seton sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Commission against the interlocutory decision of the Arbitrator in matter WCC11203-03, dated 20 May 2005 and 30 May 2005. The Appeal was brought because the Arbitrator did not determine the section 67 Act dispute in this matter, and it is asserted that the directions dated 20 and 30 May 2005 operate as a stay of proceedings in Mr Seton’s claim. It is submitted that the Arbitrator did not have the power to adjourn the matter and that in the circumstances the Arbitrator should proceed to make a determination.
On 12 July 2005 Rocla lodged a ‘Notice of Opposition’ in the Commission in relation to the appeal in WCC11203-03. It was submitted that Mr Seton’s appeal did not satisfy the threshold requirements of the Act as the decision does not relate to any amount of compensation nor any percentage of any such amount. Rocla also submitted that the part of the Arbitrator’s direction purporting to require the matters to be returned to him constitutes an error of law and says that this direction is ultra vires, it is a nullity, and of no effect.
THE DECISIONS UNDER REVIEW
The Certificate of Determination, dated 20 January 2005, in matters WCC9479-03 and WCC8730-04, which were dealt with together, records the Arbitrator’s orders as follows:
1.“That the Respondent pay the Applicant’s section 60 of the Workers Compensation Act 1987 expenses on production of accounts and receipts.
2.That the Respondent pay the Applicant weekly compensation at the rate of $600 from 11 June 2002 to 4 July 2002 under s36 of the Workers Compensation Act 1987.
3.That the Respondent pay the Applicant weekly compensation at the rate of $300 from 10 July 2001 to date and excepting any period of total incapacity within that period under s40 of the Workers Compensation Act 1987. Such weekly payments to continue in accordance with the provisions of the Act.
4.The Respondent to pay the Applicant’s costs as agreed or assessed, and for this purpose I certify this matter as complex.”
The ‘Directions’ dated 30 May 2005, in matter WCC11203-03, records the [different] Arbitrator’s decision as:
“1.That this matter stand adjourned pending the outcome of the appeal in matters 9479-03 and 8730-04.
2.That matters 9479-03, 8730-04 and 11203-03 be referred to me for determination once the appeals in matters 9479-03 and 8730-04 are finalised.”
SUMMARY
The dispute in the Commission between the parties is comprised of a number of events and processes initiated by each of them over a considerable period of time, interspersed by some administrative difficulties. At this point in time, each party has two appeals on foot.
Mr Seton’s first appeal refers to matters WCC9479-03 and WCC8730-04, which were determined together by the Arbitrator on 20 January 2005, and his second appeal refers to matter WCC11203-03 in which an ‘interlocutory’ determination was made by a different Arbitrator on 20 and 30 May 2005.
Rocla has lodged two appeals against the one decision of the Arbitrator, dated 20 January 2005, in relation to matters WCC9479-03 and WCC8730-04 that were determined together.
For convenience, and for the purposes of the Commission records, the determination and reasons for decision in each appeal are set out below. However, Presidential Decision numbers are allocated in each of THREE appeals determined together. The three Presidential Decisions are:
· Rocla’s two appeals together, in matters WCC9479-03 and WCC8730-04: Rocla Industries Pty Ltd v Seton [2006] NSWWCCPD 43;
· Mr Seton’s appeal in matters WCC9479-03 and WCC8730-04: Seton v Rocla Industries Pty Ltd No 1 [2006] NSWWCCPD 44, and
· Mr Seton’s interlocutory appeal in matter WCC11203-03: Seton v Rocla Industries Pty Ltd No 2 [2006] NSWWCCPD 45.
ISSUES IN DISPUTE
The issues in dispute in cross appeals PD 43 and PD 44 are:
·whether leave to appeal should be granted;
·whether time should be extended within which an appeal may be made;
·whether fresh or additional evidence may be admitted;
·whether the requirements of the Rules may be dispensed with;
·whether the Arbitrator has jurisdiction because the claim was not duly made;
·whether certain evidence is admissible and whether refusal to admit other evidence as an error;
·whether injury is established;
·whether incapacity is established;
·whether the Respondent worker has an ability to earn;
·whether the Respondent worker lacked credit in the proceedings before the Arbitrator;
·whether the Arbitrator failed to provide adequate reasons for decision, and
·whether the Arbitrator erred in allowing cross-examination on the basis of material that had not been allowed into evidence.
The issue in dispute in appeal PD 45 is whether the Arbitrator had the power to adjourn the proceedings before him.
ON THE PAPERS REVIEW
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.”
The Appellant Employer, Rocla, submits that it had sought but had not been provided, at the time of lodging its appeal on 15 February 2005, with a transcript of the proceedings before the Arbitrator and therefore, it was unable to finalise its submissions in respect of the appeal. It is noted that Rocla had not been provided with a copy of the ‘Certificate of Determination’ (‘Certificate’) and ‘Statement of Reasons for Decision’ (‘Reasons’) for the decision at the time of lodging its appeal on 15 February 2005. The Commission’s file reveals that the Certificate and Reasons had been sent in error by the Commission to an organization that was not a party to the dispute, undercover of letter dated 20 January 2005. The Certificate and Reasons were subsequently forwarded by that other organization, to the Solicitors for Rocla. It is also noted that Mr Seton did not receive the Certificate and Reasons for the decision until 1 March 2005.
The Solicitors for Rocla submit that it will be necessary to appoint a hearing before a Presidential member to enable them to supplement the grounds of appeal and submissions by reference to the transcript and to also to adduce the additional/fresh evidence referred to in the Appeal. According to the Commission file, on 28 February 2005, the Commission forwarded copies of the transcript of proceedings to both Rocla and Mr Seton. On 16 March 2005 the Commission received correspondence from Rocla, dated 14 March 2005, thanking the Commission for providing a copy of the transcript of proceedings and confirming the request for a hearing before a Presidential member. A perusal of the file further reveals that Rocla wrote to the Commission again on 7 July 2005, requesting a copy of the same transcript of proceedings that had already been supplied. I note that the appeal submissions originally filed by Rocla on 15 February 2005 are identical to the submissions in the second appeal, filed on 16 June 2005. However, Rocla has not filed additional written submissions since the transcript was provided to its solicitors on 28 February 2005.
The Respondent Worker, Mr Seton, submits that as Rocla has not been able to complete its submissions because it did not have the transcript available, the matter should not be determined on the papers until Rocla’s final grounds of appeal have been provided. As already stated, there have been no subsequent written submissions on appeal, lodged by Rocla with the exception of the grounds of appeal/submissions lodged on 16 June 2005, which are the same as the grounds lodged on 15 February 2005.
While there was an initial delay in the provision of the Certificate and Reasons to each party, as outlined above, this did not prevent either party from filing further written submissions on appeal, given the length of time available to them to do so. The relevant statutory provisions, the Rules, the Practice Directions, and the practices and procedures of the Commission in relation to the requirements on appeal, including the matter of determination of appeals on the papers, are well established. Each of the parties has had ample time to make further and more comprehensive written submissions on appeal, after obtaining the transcript, had it or he, chosen to do so. The documents and the transcript of the proceedings before the Arbitrator have been available to both parties since March 2005. In any event, I have the benefit of a transcript of proceedings before the relevant Arbitrator, and all of the evidence and submissions that were before both Arbitrators, in each matter. Finally, I have the benefit of all documents and submissions that have been filed in the appeal.
Having regard to the submissions, evidence and documents that are presently before me, I am satisfied pursuant to section 354(6) of the 1998 Act, that I have sufficient information to proceed on the papers in each appeal without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
Section 352 of the 1998 Act provides:
“352 Appeal against decision of Commission constituted by Arbitrator
(1)A party to a dispute in connection with a claim for compensation may, with leave of the Commission constituted by a Presidential member, appeal to the Commission as so constituted against a decision in respect of the dispute by the Commission constituted by an Arbitrator.
(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 $5000 (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.
(3)If the Commission refuses to grant leave to appeal, the Commission must state reasons for the refusal in writing to the parties.
(4)An appeal can only be made within 28 days after the making of the decision appealed against.
(5)An appeal under this section is to be by way of review of the decision appealed against.
(6)Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.
(7)On appeal, the decision may be confirmed or may be revoked and a new decision made in its place. Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.
(8)In this section, decision includes an award, interim award, order, determination, ruling and direction.”
Rule 77 of the Workers Compensation Commission Rules 2003 (‘the Rules’), relevantly provides in part:
“77 Appeal against Arbitrator’s decision
(1)A party to any proceedings applying for leave to appeal under section 352 of the 1998 Act against a decision of an Arbitrator must lodge the application within 28 days after the making of the decision, or within such extended time for making the appeal as may be ordered under subrule (8).
(2)…
(3)An application referred to in subrule (1) must include, or have attached, full details of:
(a)…
(b)for the purposes of section 352(2) of the 1998 Act, the amount of compensation alleged to be at issue on the appeal, and
(c)any new evidence in respect of which leave is to be sought, by the party lodging the application, in accordance with section 352(6) of the 1998 Act, and
(d)…
(4)…
(5) …
(6) …
(7)…
(8)The Commission constituted by a Presidential member may, if a
party satisfies the Presidential member, in exceptional
circumstances, that to lose the right to seek leave to appeal would
work demonstrable and substantial injustice, by order extend the
time for making an appeal.
(9)A party who seeks an extension of time as referred to in subrule (8)
must:
(a) as soon as practicable give notice to the other parties of the intention seek the extension, and
(b) lodge and serve with the application for leave to appeal an application for the extension of time, including full details of the arguments to be put in favour of granting the extension.”
Rocla’s two appeals in WCC9479-03 and WCC8730-04: PD 43
Rocla lodged its first appeal on 15 February 2005, which complied with section 352(4) of the 1998 Act. It stated in its accompanying submissions that it had not been provided with a transcript of the proceedings before the Arbitrator, and submitted therefore, that it had not been able to finalise its submissions in respect of the appeal in the absence of the transcript. It submits that it relies on such further grounds and submissions as it may become apparent after a review of the transcript of the arbitration in conjunction with a review of the Reasons. As noted previously the transcript of proceedings was sent to Rocla by letter dated 28 February 2005, and Rocla’s Solicitors wrote to the Commission on 14 March 2005 acknowledging receipt of the transcript.
On 16 June 2005 Rocla lodged a second application for leave to bring an ‘Appeal Against Decision of Arbitrator’, against the same decision dated 20 January 2005. The submissions were set out in the same terms to those in the first appeal, including a reference to the absence of the transcript. Notwithstanding that Rocla had then had the transcript and all other documents in its possession for approximately three months, it chose to file no further written submissions in support of its appeal.
Notwithstanding that the second appeal was lodged well out of time, it is identical with the first appeal and therefore, for all practical purposes, I am treating it as the one appeal. The first appeal was lodged within 28 days of the decision of the Arbitrator appealed against.
The amount of compensation at issue on the appeal is at least $5,000 and is at least 20% of the amount awarded in the decision appealed against.
Leave to appeal the Arbitrator’s decision of 20 January 2005 is granted.
Mr Seton’s appeal in WCC9479-03 and WCC8730-04: PD 44
The amount of compensation at issue on the appeal is at least $5,000 and is at least 20% of the amount awarded in the decision appealed against. Rocla submits that there is no amount in issue on appeal as Mr Seton simply wishes to affirm the Arbitrator’s award. However, both Rocla and Mr Seton have submitted that the Arbitrator has made errors of law, albeit different errors of law. Errors of law if substantiated, may disturb the decision made by the Arbitrator, even if that outcome is unintended by Mr Seton. In these circumstances, the amount of the Arbitrator’s award is in issue on appeal.
Mr Seton submitted an application for an ‘Extension of Time to Lodge and Appeal’, dated 24 March 2005. He submitted that he had written to the Registrar on 21 January 2005 requesting the status of the Arbitrator’s decision. On 17 February 2005 Mr Seton again wrote to the Registrar requesting a response to his first letter and inquired as to when the decision could be expected. Counsel on behalf of Mr Seton attended the Commission Registry on 22 February 2005, and was informed that the ‘Certificate’ and the ‘Reasons’ had been posted to all parties on 21 February 2005. Mr Seton says that no explanation for the delay was given. Because of the administrative error referred to at paragraph 66 above, Mr Seton did not receive the Arbitrator’s decision until 1 March 2005.
Clearly, the delay was not Mr Seton’s fault.
In the circumstances, I am satisfied that in exceptional circumstances, to lose the right to seek leave to appeal in this matter would work demonstrable and substantial injustice to Mr Seton. Accordingly, I order that the time for making his appeal be extended to 24 March 2005.
Leave to appeal the Arbitrator’s decision of 20 January 2005 is granted.
Mr Seton’s interlocutory appeal in WCC11203-03: PD 45
Essentially the issue in dispute in relation to the matter of leave to appeal in this matter is whether the Arbitrator had the power to adjourn the proceedings before him, without determining “the s67 dispute” and because the directions issued in this regard by the Arbitrator “operate as a stay of proceedings” of Mr Seton’s claim. Mr Seton asks that the decision be set aside and the Arbitrator be ordered to proceed to a determination of the substantive dispute between the parties.
Rocla submits that the threshold [section 352(2)] requirements are not satisfied, as the decision to adjourn the proceedings does not relate to any amount of compensation at issue on appeal, “nor any percentage of any such amount”. I agree with this submission.
It is possible to appeal against an interlocutory decision involving no ‘award’ (see discussion in Steven Tagg v International Flavours and Fragrances (Australia) Ltd [2003] NSW WCC PD 5 (‘Tagg’)).
A decision to grant or not to grant an adjournment is a matter in the discretion of an Arbitrator (Tagg; Goodman Fielder Limited v Alasmar [2004] NSW WCC PD 43).
However, the Arbitrator is bound by the demands of procedural fairness. The proceedings in the Commission in terms of procedural fairness are largely governed by the provisions of the 1998 Act, the nature of the decision under review and the demands of the particular case, (Kioa v West (1985) 159 CLR 550).
Courts have been asked from time to time to review interlocutory decisions that are procedural in character, and have been somewhat cautious in their approach. For example, in Coles Myer Limited v Victorian WorkCover Authority and Frew [2002] VACA 144, the Victorian Court of Appeal considered an application to review an interlocutory procedural decision which, if settled, would contribute to uniform practices in the jurisdiction below. Moreover, if the decision were allowed to stand it would not work a substantial injustice to the appellant.” Winneke, P. said:
“For my own part, I regard the judge’s order as one of the kind to which the oft-repeated words of Jordan, CJ in In re Will if Gilbert (dec’d) [1] can aptly be applied. His Honour said:
‘There is a material difference between an exercise of discretion on a point of practice and procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of the judge at first instance, the result would be disastrous to the proper administration of justice.’”
The circumstances of each case and in particular, whether the decision that is subject to appeal causes a substantial injustice to one of the parties, are relevant considerations to a determination as to whether a decision concerns purely procedural or substantive issues (Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170).
Section 352(2) of the 1998 Act provides a threshold that concerns “the amount of compensation at issue on appeal”. The grant or otherwise of an adjournment by the Arbitrator in this matter, does not give rise to an amount of compensation in issue on appeal. As the Deputy President said in Tagg, “There is no evidence that the grant of the adjournment in this matter put in issue the amount of the Appellant’s claim, affected the ability to pursue the amount claimed in the Commission or caused the Appellant a substantial injustice.” As in that case, the granting of the adjournment by the Arbitrator in this matter was procedural, and the appeal against the decision therefore, does not meet the threshold test in section 352(2). Mr Seton is not deprived of his opportunity to pursue his case in the Commission, and he has not demonstrated substantial injustice.
While Mr Seton may prefer to have proceeded without the adjournment, I do not agree with his contention that the Arbitrator had no power to adjourn the matter. Mr Seton has put nothing to me to demonstrate that the Arbitrator has erred in the exercise of his discretion.
Leave to appeal the decision of the Arbitrator dated 20 and 30 May 2005 is refused.
I make no order as to costs in relation to this appeal.
FRESH EVIDENCE - WCC9479-03 & WCC8730-04: PD 43
In submissions dated 15 February 2005 and 16 June 2005, Rocla sought to “adduce fresh evidence or additional evidence on appeal including, though not necessarily limited to, the evidence of witnesses summonsed to attend at the arbitration (whose evidence was refused by the Arbitrator) and video evidence in the possession of such witnesses.”
As set out in paragraph 72 above, section 352(6) of the 1998 Act provides that evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.
Rocla indicated in both sets of submissions that the application to adduce fresh or additional evidence on appeal was subject to its review of the transcript. As at 16 June 2005, Rocla had been in possession of the transcript for over 3 months and had ample time to conduct such a review, and to comply with Practice Direction 6 in relation thereto.
Practice Direction No 6 sets out the requirements for seeking leave of the Commission to give new evidence on appeal. It provides:
“New Evidence
Where a party seeks leave to give new evidence in relation to the decision appealed against, that party must serve a copy of the new evidence on the other parties to the dispute when serving the Application or Opposition.
In general, the Commission will allow new evidence to be introduced only where it can be demonstrated that the new evidence could not reasonably have been obtained by the party and tendered in proceedings before the Arbitrator and that failure to allow new evidence would cause a substantial injustice in the circumstances of the individual case.”
Practice Direction No 6 also provides that if new evidence is sought to be relied upon, the Application or Opposition to the Appeal must contain:
“- a schedule of the new evidence,
- a copy of the new evidence,
- a brief outline of the new evidence and the reasons why it was not given in the
proceedings before the Arbitrator, and- submissions why the new evidence should be admitted.”
Rocla has not complied with the requirements of the Practice Direction, and has made no further submissions in support of its application for leave to introduce the fresh or additional evidence, since it came into possession of the transcript that it was waiting on. In any event, the evidence, apart perhaps from the non-specified evidence referred to, was and has always been in Rocla’s possession. There is no apparent reason why it did not, or could not have, provided a copy of that evidence and otherwise complied with Practice Direction 6, at the time of, or any time since, it filed its first ‘Appeal Against Decision of Arbitrator’.
I note that Rocla includes in its substantive grounds of appeal at items 3(c)(v), (vi) and (vii), the issue of the refusal of the Arbitrator to admit what appears to be the same evidence. The Arbitrator’s refusal was based essentially on the fact that Rocla had failed to comply with the Rules. However, the fresh or new evidence sought to be introduced on appeal extends beyond that to non-specific evidence that is “not necessarily limited to” the evidence of the witnesses referred to. Neither the Commission nor Mr Seton has been made aware of the nature, content or even the actual existence of any non-specific evidence.
Discussion by, and the decision of, the Arbitrator in relation to the evidence of witnesses who had apparently conducted a surveillance operation and who were able to produce a “videotape and report”, is set out at paragraphs 57 to 60 of his ‘Statement of Reasons for Decision’ (‘Reasons’).
Rocla has put nothing before me to demonstrate that refusal to allow the evidence to which it refers, including the non-specific evidence to which it alludes, would cause substantial injustice to it in this appeal. This is particularly the case when it is taken into account that the Arbitrator allowed Rocla to cross-examine Mr Seton, using that very material. Moreover, whether the Arbitrator was correct in refusing to admit the evidence of the witnesses, the videotape and the report, has been raised by Rocla itself as a substantive issue to be determined in this appeal. In these circumstances, in addition to what I have already said, it would be inappropriate to admit this evidence as fresh or additional evidence, or at all, without determining whether or not the Arbitrator has erred as alleged by Rocla, and if so, what then follows, in that context.
In the circumstances, leave to give fresh or additional evidence in this appeal, pursuant to section 352(6) of the 1998 Act, is refused.
MR SETON’S ‘NOTICE OF OPPOSITION’ - WCC9479-03 & WCC8730-04: PD 43
Mr Seton’s ‘Notice of Opposition in Reply to Employer’s Grounds for Leave to Appeal and Appeal’ (‘Notice of Opposition’) was filed on 24 March 2005 and apparently therefore, did not comply with Rule 77(5), which requires a ‘Notice of Opposition’ to be lodged and served upon the other parties within 14 days of being served with the [appeal] application. In the submissions accompanying Mr Seton’s ‘Notice of Opposition’ it was submitted that he did not receive a copy of the Arbitrator’s ‘Certificate of Determination’ and Reasons until 1 March 2005 (see paragraph 66 above). This occurred after receipt of a letter from the Registrar of the Commission, dated 28 February 2005, advising him that an appeal had been lodged against the Arbitrator’s decision. Mr Seton submits therefore, that he was unable to finalise his submissions in respect of the appeal, as he had not received the relevant documents and advice from the Commission. He states that he received a copy of those documents from the Commission on or about 2 March 2005, whereas the ‘Direction’ issued by the Registry appears to have been made on 24 February 2005. In those circumstances it was submitted by Mr Seton that he had been prejudiced in the preparation of the submissions.
As already canvassed above, difficulties were experienced by both parties in relation to the processing of, and receipt of documents and notices from the Commission in relation to this appeal. It is clear that Mr Seton’s submission is correct. Mr Seton’s ‘Notice of Opposition’ has been duly served on Rocla. There is no prejudice to Rocla by the admission of the ‘Notice of Opposition’ and accompanying documents, in these proceedings. On the other hand, it would be unfair and unjust to penalise Mr Seton for circumstances that were substantially beyond his control.
In the circumstances, pursuant to Rule 6(2) of the Workers Compensation Commission Rules 2003 (‘the Rules’), I hereby dispense with the requirement for Mr Seton to comply with Rule 77(5).
SUBMISSIONS
What follows now refers mainly to the evidence and submissions in appeals in WCC9479-03 and WCC8730-04 (PD 43 and PD 44), against the decision of the Arbitrator, dated 20 January 2005. Submissions in relation to matter WCC11203-03 have been taken into account in the determination of the appeal in Seton v Rocla Industries Pty Ltd No 2 [2006] NSWWCCPD 45, as outlined in paragraphs 84 to 94, above.
Rocla’s appeal – Rocla’s submissions
The submissions on appeal made by Rocla, dated 15 February 2005 and 16 June 2005, may be summarised as set out below.
The Arbitrator erred in:
· exercising jurisdiction in circumstances where Mr Seton had not made a claim for compensation benefits in accordance with the requirements of section 65 and section 261 of the 1998 Act;
· admitting reports in Mr Seton’s case for more than one doctor in a particular speciality being in particular, the reports of Dr Sherry, Dr Burgess and Dr Biggs, each of whom is an orthopaedic surgeon;
· admitting expert medical evidence on behalf of Mr Seton in circumstances where the facts and/or assumptions relied on in respect of that expert evidence was not supported or capable of being supported by the evidence before the Arbitrator, or in the alternative was inconsistent with the evidence before the Arbitrator;
· admitting and relying on the ‘Medical Assessment Certificate’ (‘MAC’) of Dr Fearnside for the same reasons as outlined above, and in addition, in circumstances where that certificate related to different proceedings involving different allegations and where an appeal against that certificate remained undetermined;
· refusing to allow Rocla to adduce oral evidence from witnesses who were summonsed to give evidence and who were present and available to give evidence on the date of the arbitration;
· refusing to allow Rocla to show video evidence belonging to or in the possession of witnesses summonsed to give evidence and who were present and available to give evidence on the date of the arbitration, and otherwise erred in limiting, restricting or excluding evidence or information on which Rocla sought to rely;
· failing to have any or proper regard to submissions made on behalf of Rocla regarding the admission of evidence, and failed to give any adequate reasons for refusing to allow Rocla to adduce evidence in circumstances where it was clearly in the interests of justice that it be admitted;
· purporting to find that Mr Seton suffered injury with Rocla in circumstances where there was no evidence or in the alternative, no adequate evidence of the occurrence of such an injury, nor any evidence of any complaint of any injury, or any evidence of any notice of any injury;
· failing to make any finding of the nature of any injuries sustained and failed to consider adequately whether the injury was in the nature of a disease process and also failed to consider the relevant application of sections 4, 15 and/or 16 of the 1987 Act;
· failing to find that Rocla was not the employer who last employed the worker in employment to which the nature of the disease was due having regard firstly to the Arbitrator’s finding that Mr Seton had regularly undertaken work since ceasing employment with Rocla, and secondly having regard to Mr Seton’s specific and uncontradicted evidence to the effect that the activities he carried out with his subsequent employers either caused, aggravated, accelerated, exacerbated or caused a deterioration, of the alleged injury/disease;
· failing to find that Mr Seton was fit for his pre-injury employment having regard to that employment with Rocla having come to an end by reason of redundancy only and not by reason of unfitness for work, and having regard to Mr Seton’s evidence in respect of his subsequent employment activities;
· finding that Mr Seton was capable of working only two to three days per week and working only 21 hours per week, and erred in purporting to find that Mr Seton’s ability to earn was only $450 per week in circumstances where he was clearly able to work full time as a courier driver and full time in a number of other occupations which would clearly result in his earning being substantially in excess of $450 per week, and in excess of his probable pre-injury earnings;
· failing to find Mr Seton had no credit at all as a witness and in failing to find that his evidence should be disregarded for all purposes where it was not corroborated by other evidence, and
· Rocla submits that the decision of the Arbitrator should be set aside and in its place an award entered in favour of Rocla.
Rocla’s appeal - Mr Seton’s submissions
The submissions in reply made by Mr Seton, dated 24 March 2005, may be summarised as follows:
· that Mr Seton had complied with section 65 and section 261 of the 1998 Act;
· that Dr Sherry and Dr Biggs were treating medical practitioners and Dr Burgess was a “legal medical” practitioner, and in those circumstances, the reports were properly admitted and that all medical reports were admitted in accordance with the Rules;
· the MAC of Dr Michael Fearnside was admissible in accordance with the Act and in fact was binding on the Arbitrator;
· that the oral evidence was correctly rejected by the Arbitrator because Rocla had failed to comply with the Rules;
· that it is disputed that the Arbitrator erred in failing to have proper regard to submissions made on behalf of Rocla regarding the admission of the evidence, and that the Arbitrator erred in finding that Mr Seton had suffered injury;
· that no findings were required to be made by the Arbitrator in relation to the nature of any injuries sustained, whether the injury was in the nature of a disease process, and in the relevant application of sections 4, 15 and/or 16 of the 1987 Act;
· that Rocla failed to comply with the Rules in that it failed to provide an exchange of all information and documents at the beginning of the conciliation/arbitration process, with particular reference to section 290 of the 1998 Act and Rules 38,40,42 and 44;
· that Rocla concedes that Mr Seton was unfit for work, but further submitted that this unfitness was due to pre-existing conditions in the worker’s shoulders;
· that no evidence was called by Rocla as to the employment of the worker as a part time or full time courier;
· that the Arbitrator did not err in failing to make adverse finding as to Mr Seton’s credit on the basis of cross examinations taken from investigation reports and videotapes, which were not admitted in evidence, because of Rocla’s non-compliance with the Rules, and
· Mr Seton objects to the reliance of further grounds of appeal by Rocla and to the granting of leave to Rocla to adduce fresh or additional evidence.
Mr Seton’s appeal – Mr Seton’s submissions
Mr Seton’s submissions on appeal may be summarised as set out below.
The Arbitrator erred in:
· exercising jurisdiction in circumstances where he allowed Mr Seton to be cross-examined on material that was not in evidence, and that was obtained from an investigator. The material was taken from notes of the investigator and the contents of a videotape, in circumstances where the Arbitrator had earlier rejected an application to admit documentary evidence from the same investigator and the same videotape, because Rocla had failed to comply with Rule 40;
· allowing cross examination which was procedurally unfair to Mr Seton and on which Mr Seton had no opportunity to call evidence in reply (reference is made to section 290 of the 1998 Act and Rules 38, 40, 42 and 44);
· accepting that the MAC of Dr Michael Fearnside was binding on him in the proceedings, and erred in accepting a statement from the legal representative of Rocla that there was a current appeal against the certificate, even though the Arbitrator had been provided with a letter from the Registrar which indicated that the Rocla’s appeal had been dismissed [this refers to Rocla’s ‘Application to Appeal the Decision of an Approved Medical Specialist’ in matter WCC11203-03 which was struck out by the Registrar on 21 June 2004];
· accepting that an appeal operated as a stay of proceedings and in adjourning the matter before him [WCC11203-03 – matter determined at paragraphs 84 to 94, above], and
· The Arbitrator consolidated matter numbers WCC11203-03 and WCC9479-03 at a telephone conference held prior to the conciliation/arbitration. The Arbitrator erred in not continuing to hear matter WCC11203-03 as part of the proceedings and in not proceeding to the final determination of application WCC11203-03 [matter determined at paragraphs 84 to 94, above].
Mr Setons appeal – Rocla’s submissions
Rocla’s submissions on appeal may be summarised as follows:
· leave to appeal should not be granted as the appeal has not be filed within 21 days as required [this issue has been dealt with at paragraphs 79 to 83, above];
· Rocla repeats and relies on the ‘Grounds of Appeal’ and submissions made in support of its own appeal against the Arbitrator’s decision;
· there is no amount of compensation at issue nor any percentage of the sum awarded in Mr Seton’s appeal as Mr Seton is not seeking to alter the decision of the Arbitrator but rather seeks to affirm the decision. In these circumstances the threshold requirements of section 352(2) of the 1998 Act are not satisfied and therefore, leave to appeal should not be granted to Mr Seton [this issue is dealt with at paragraph 79, above];
· the Arbitrator did not err in allowing Mr Seton to be crossed examined as Rocla was clearly entitled to test Mr Seton’s claim and to ask questions regarding the allegations he was making in support of that claim. The reasonableness of the Arbitrator’s approach in this regard was born out by the fact of Mr Seton substantially resiling from his initial allegations during the course of his evidence, and eventually admitting that various parts of his evidence were misleading or inaccurate. Rocla states that the Arbitrator was in error in not allowing the video of Mr Seton’s activities to be shown;
· the Arbitrator was correct in allowing cross examination of Mr Seton on the basis of what is described as rejected evidence and the only error of the Arbitrator was in rejecting that evidence which should have been admitted for the purpose of overcoming procedural unfairness and otherwise;
· the Arbitrator was correct in not accepting the MAC as binding on him for reasons which include that the MAC related to allegations which were entirely different to those in the proceedings before the Arbitrator, and Rocla submits that the only error of the Arbitrator was in having any regard at all to the MAC rather than rejecting it entirely as he should have done, and
· the appeal is not capable of being determined on the papers having regard to the various grounds of appeal and Rocla’s request for the admission of fresh or additional evidence. This issue has been determined, above.
DISCUSSION AND FINDINGS
Both parties allege errors by the Arbitrator, which may be grouped as set out hereunder. For the sake of clarity, the name of the party alleging the error is recorded against each heading.
Error in the exercise of jurisdiction by the Arbitrator (Rocla).
Rocla submits that the Arbitrator erred in exercising his jurisdiction in circumstances where Mr Seton had not made an initial claim for compensation benefits in accordance with the requirements of sections 65 and 261 of the 1998 Act. While Rocla’s documents included certificates that may have been related to this issue had it been pursued, it was not an issue in dispute before the Arbitrator. It was not raised or addressed by Rocla until the proceedings before the Arbitrator had concluded, when final submissions were made. Furthermore, the denial of liability that gave rise to the dispute in the first place, was not made on this basis. I can find no record on the Commission file that indicates that the circumstances in which the claim was made by Mr Seton, were ever in dispute. The Arbitrator was not required to deal with the issue in his determination of the dispute. It follows that the Arbitrator did not make the error as alleged.
This ground of appeal is not made out.
Errors in the admission of medical evidence (Rocla).
Rocla submits that the Arbitrator erred in admitting into evidence more than one medical report in the same medical specialty, specifically, the reports of Dr Sherry, Dr Burgess and Dr Biggs, “each of whom are [sic] orthopaedic surgeon[s]”
Clause 43(1)(a) of the Workers Compensation Regulation 2003 (‘the Regulation’) provides that only one medical report in any particular speciality may be admitted by a party to the proceedings. The purpose and intent of Part 10 of the Regulation as to restrictions on obtaining medical reports have been discussed in a number of decisions on appeal in the Commission (see for example, State Transit Authority of NSW v Dadras [2004] NSW WCC PD 87 ‘Dadras’). The purpose is to stop the excessive cost, time and potential unfairness that result from both parties seeking to maximise their advantage in the dispute by filing numerous medical reports (Fishburn v Integral Energy Australia [2005] NSW WCC PD 53 ‘Fishburn’).
Mr Seton consulted Dr Sherry who performed surgery on his shoulder on 11 June 2002. Dr Sherry is an orthopaedic specialist. His medical reports are dated 29 May 2002 and 3 June 2002. Dr Sherry is one of Mr Seton’s treating doctors, notwithstanding that he is a specialist.
Dr Burgess is also an orthopaedic surgeon. His report is dated 11 December 2002. He reports that Mr Seton informed him that the surgery performed by Dr Sherry had “made him worse”.
Dr Biggs is also an orthopaedic surgeon, who specialises in shoulder, knee and arthroscopic surgery. His report is dated 27 February 2003.
Mr Seton states, “Dr Sherry and Dr Biggs were treating medical practitioners and Dr Burgess was a legal medical practitioner and in those circumstances the reports are properly admitted.”
Clause 45 of the regulation makes a distinction between a medical report simpliciter and a medical report that is a ‘claims management phase report’. A ‘claims management phase report’ includes a report of a treating doctor. The reference to “medical reports” in clauses 43 and 44 is a reference to ‘medico-legal’ reports, which are not reports from a treating doctor. ‘Medico-legal’ reports are obtained by a party from independent medical experts, for the purpose of proving or disproving an entitlement under the workers compensation legislation. ‘Claims management phase reports’ are not restricted by Part 10 of the Regulation. These are “relied upon by both the worker and the insurer in relation to management of the worker’s claim, return to work and determination of entitlements”: ‘Dadras’, paragraph 31.
I find that Dr Sherry’s report is a ‘claims management phase report’ and that the restriction in Part 10 of the Regulation, does not apply.
Dr Biggs describes his own report as a “Medico/Legal Report” that was specifically requested by Mr Seton’s solicitors. However, Mr Seton consulted Dr Biggs for treatment, as is evidenced in Dr Biggs’ report. At paragraph b. of his report he states:
“I performed a left shoulder subacromial space local anaesthetic injection. The effect of the local anaesthetic was to give immediate partial pain relief, although his painful catching persisted.”
After providing certain views as to Mr Seton’s future medical and employment prospects and possibilities, Dr Biggs indicates that Mr Seton ought to undergo further surgery, and describes the nature of that surgery and the post-operative treatment that he would need to undertake.
Dr Biggs is not a medical expert who is independent of the parties to the dispute. Notwithstanding that he describes his report as a “Medico/Legal Report”, his report is in fact, one that may be relied upon by both parties and the insurer in relation to the management of his claim, his return to work prospects and the determination of his entitlements. The Arbitrator was entitled to construe Dr Biggs’ report in these circumstances, as a ‘claims management phase report’, which is not affected by the restrictions of Part 10 of the Regulation. I find accordingly.
Dr Burgess is not a treating doctor. He is independent of both parties and his report is clearly a ‘medico-legal’ report.
In summary, I find that the Arbitrator was entitled to admit the reports of Drs Sherry and Biggs as ‘claims management phase reports’ of treating doctors that are not caught by the restriction in Part 10 of the Regulation. Dr Burgess’ report is the one ‘medico-legal’ report that was admitted by the Arbitrator, as the orthopaedic specialist report in this matter.
I find no error in this regard on the part of the Arbitrator and consequently, this ground of appeal is not made out.
Rocla further submits that the Arbitrator erred in “admitting any expert medical evidence” put by Mr Seton, as this evidence was not supported or capable of being supported by the evidence before the Arbitrator, or alternatively, was inconsistent with that evidence. Rocla does not elaborate upon this submission nor does it point to any specific aspects of the evidence, to demonstrate the substance of its submission.
I can see no reason why the Arbitrator should have refused to admit and consider the medical evidence that was put before him. Whether, upon a proper consideration of that evidence, he accepted it, and what weight he then attached to it, is an entirely different matter. The Arbitrator was bound to deal with the evidence and there does not appear to be any basis for the proposition that he should not have admitted it for that purpose.
Having perused the transcript of the proceedings before the Arbitrator, I am unable to find any reason why the Arbitrator should have found the expert medical evidence to be inadmissible in the proceedings before him. I find therefore, that the Arbitrator did not err as alleged. This ground of appeal is not made out.
Rocla further submits that the Arbitrator was not entitled to rely on or admit into evidence, the MAC of Dr Fearnside, Approved Medical Specialist. The Arbitrator’s reasons for relying on this MAC are set out in paragraph 15 of his Reasons. He states:
“Dr Michael Fearnside, an approved medical specialist (‘AMS’) issued a Medical Assessment Certificate (‘MAC’) on a date in December 2003, but in relation to matter number 11203 of 2003. The Respondent objects to the admission of that medical assessment certificate in these proceedings. I have considered that objection carefully, and have allowed the admission of that report to these proceedings. In admitting this report I note that Dr Fearnside’s report considers much of the medical evidence that is otherwise before me in these proceedings, and refers to the same parties, refers to the same body parts at issue in these proceedings, and refers to an injury within the relevant period in these proceedings. Further, I note that the respondent has earlier made application to the Commission that all of the related proceedings be heard together, and while that has not been possible it does suggest that there is sufficient commonality between the proceedings in the Respondent’s [Rocla’s] view for me to at least consider the contents of Dr Fearnside’s report. I understand that the report is now the subject of an appeal to a Medical Appeal Panel, but as mentioned earlier, I am not aware of any determination of that appeal.”
Although it had apparently gone unnoticed by the Arbitrator and in particular by Rocla, a party to the proceedings, the appeal to the Medical Appeal Panel was struck out by the Registar on 21 June 2004. The Arbitrator in that matter is not the same Arbitrator whose decision is under review in this appeal.
The contents of Dr Fearnside’s MAC were relevant to the arbitral proceedings, for the reasons enunciated by the Arbitrator. Moreover, section 354(2) of the 1998 Act provides that the Commission is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate, and as the proper consideration of the matter before the Commission permits.
The Arbitrator was entitled to have regard to the contents of Dr Fearnside’s MAC as part of the evidence available to him. Moreover, I can find no reason why the contents of the MAC would be inadmissible per se, as suggested by Rocla.
I find that the Arbitrator is not in error on this issue and therefore, this ground of appeal fails.
Errors in refusing to admit evidence; in failing to have proper regard to submissions to admit evidence, and in failing to provide adequate reasons for refusal to admit evidence (Rocla)
The evidence to which Rocla refers in this ground of appeal is the evidence of persons who had conducted a video surveillance, but whom Rocla said, would not sign a verifying statement, that being the reason, as the Arbitrator states at paragraph 58 of his Reasons, “why the evidence was not presented in a written form at an earlier stage as required by the legislation.”
The claim that the Arbitrator erred in that he failed to have proper regard to submissions to admit the evidence cannot be substantiated. Indeed, a reading of pages 1 to 11 of the transcript of the proceedings before the Arbitrator on 10 November 2004 reveals that the issue was canvassed in some detail by the Arbitrator, and with the Arbitrator by both parties. The submission by Rocla in this regard is factually incorrect, and I find accordingly.
The essential issues are whether the Arbitrator erred in refusing to admit the evidence and whether he failed to provide adequate reasons for that refusal.
Counsel for Rocla informed the Arbitrator (see page 9 of the transcript of proceedings before the Arbitrator) that he did not propose to rely upon the investigation report, “and I have no other document upon which I propose to rely other than a document in the possession of an investigator, which is his document, which is a video, and his oral evidence.” They were later formally tendered but the Arbitrator refused to admit them on the basis, as conceded by Rocla, that they were never filed in the Commission as required by Rule 40, or served on Mr Seton.
The Arbitrator refused to allow the evidence to be given and the videotape to be introduced into evidence because Rocla had further failed to comply with Rule 66, which it was required to do in order to bring the evidence before the Commission and to the notice of Mr Seton.
Rule 66(3) provides that the fact that a person refuses to sign a statement of the oral evidence, and that party has been summoned to attend, does not [itself] prevent the party from calling the person to give evidence. However, as the Arbitrator noted, there has been a failure to comply with the provisions of Rule 66, exacerbated by the fact that “any issues in relation to their ability or otherwise to verify the evidence should have been addressed at a much earlier stage.”
Notwithstanding the Arbitrator’s refusal to admit the documents and the videotape into evidence, it was observed by him and conceded by the parties that Counsel for Rocla had been permitted to conduct extensive cross-examination of Mr Seton, without objection to that course. The legal representative for Mr Seton said, at page 2 of the transcript:
“Now its procedurally unfair. They have had the advantage – they shouldn’t have been allowed to cross –examine on the film, but I didn’t object to it, and I let them get away with that. Now, they got more than they were entitled to, and it would be completely procedurally unfair now to let them do this.”
There is no dispute that the advantage of cross-examining Mr Seton on the material in question was extended without objection from Mr Seton. It is also not disputed that there was a failure by Rocla to comply with Rules 40 and 66. There is no dispute that the application to allow the oral evidence to be given and the videotape to be admitted into evidence was not made until after the hearing had commenced before the Arbitrator, and without prior notice to Mr Seton.
Rule 66(3) does not compel the Arbitrator to allow the person to give evidence and does not inhibit the proper exercise of the Arbitrator’s discretion.
In exercising that discretion, the Arbitrator said, at paragraph 60 of his Reasons:
“The Respondent referred me then to the general discretion conferred on me in subsection (4) [Rule 66(4)], however, in my opinion, the prejudice to the Applicant outweighed any injustice that may have flowed from my decision to refuse to admit that evidence and would be contrary to the general principle that all documents should be properly in evidence prior to a conciliation/arbitration.”
No satisfactory reason was given by Rocla for failure to comply with the Rules, either before the Arbitrator or in the submissions in support of this appeal. Rocla agreed that it had been permitted to cross-examine Mr Seton on the basis of at least much of that evidence, without objection.
In my view, the conclusion that the Arbitrator reached, after hearing, considering and discussing all of the arguments that were put to him, was reasonable in the circumstances. A reading of his Reasons and the transcript does not support Rocla’s assertion that he erred in refusing to admit the oral evidence, the documentary evidence and the videotape in question. Moreover, his reasons for the decision are clear and adequate.
Having found no error on the part of the Arbitrator, this ground of appeal fails.
Errors as to injury, incapacity, employment and credit (Rocla)
The Arbitrator has set out a succinct summary of the relevant medical evidence in his Reasons. He prefers the evidence of Dr Fearnside as he “appears to have carefully considered the nature of the Applicant’s work, and the heavy physical nature of Mr Seton’s work over a significant period with the employer is not contested. That work is likely, on the medical evidence, to have aggravated the Applicant’s underlying condition as is the opinion of Dr Fearnside. Such a view is supported by the Applicant’s medical evidence, at least with respect to the shoulder injuries.” While briefly summarising, but not commenting upon the medical reports of Drs Sherry, Burgess and Biggs, the Arbitrator makes no reference to any of the other medical evidence put forward by Mr Seton, that is set out in paragraph 14 of his Reasons.
There is little analysis of the medical evidence and apart from what is set out in the previous paragraph, no reasons are given as to why the medical evidence put forward by Mr Seton is to be preferred. The Arbitrator makes no comment of a conclusive nature on the medical evidence put forward on behalf of Rocla. That evidence in the main is diametrically opposed to the evidence upon which the Arbitrator has relied to arrive at his decision. Rocla’s medical evidence substantially maintains that Mr Seton is not suffering from a work related disability, that he merely has a degenerative condition, that he is not suffering from injuries to his shoulder, and includes a statement by Dr Smith that, “he [Mr Seton] is certainly doing some sort of manual activity judging by the state of his hands.”
While Mr Seton maintained in his evidence that he had reported “a few injuries”, according to the Arbitrator there does not appear to be any evidence of these reports. He ceased work because he was made redundant, not because of injury. In fact, Mr Seton said that he wanted to continue working notwithstanding that he had been made redundant.
Mr Seton’s evidence was found by the Arbitrator to be unsatisfactory. Indeed the Arbitrator states at paragraph 56 of his Reasons that Mr Seton’s evidence discloses that he has not been entirely frank in his presentation to the medical assessors, or in his stated estimation of his capacity. Further, in his evidence he disclosed a series of work-related activities in which he had been engaged, since being made redundant. He agreed with the suggestion put by Counsel that he had not spoken of all of these activities previously, because to do so would not assist him in his application before the Commission.
While being critical of Mr Seton’s obvious lack of veracity, both prior to and during the proceedings, the Arbitrator draws no conclusions in terms of the impact, if any, that this has in the dispute between the parties. He simply states that it was submitted to him that Mr Seton’s “lack of candour does not change the medical evidence that there is incapacity.”
The Arbitrator’s reasons in terms of injury and incapacity are entirely inadequate. There is little analysis of the evidence, including the medical evidence and Mr Seton’s oral evidence, and the weight to be attached to it. This amounts to an error of law on the part of the Arbitrator, and I find accordingly.
In the circumstances, the appeal is partly successful and I propose to revoke the decision of the Arbitrator and remit the matter to him for consideration and determination afresh, as to ‘injury’ and ‘incapacity’, and what may follow from that. However, findings and determinations that have been made in this appeal, up to and including paragraph 151 above, are to stand. In the interests of certainty and clarity, the Arbitrator will need to confirm or amend other aspects of his decision of 20 January 2005, that necessarily follow from his consideration and determination afresh, of the issues of ‘injury’ and ‘incapacity’, depending upon his findings and conclusions in his determination afresh, of those issues.
Errors in allowing cross examination on the basis of material not in evidence and that the Arbitrator had refused to be admitted as evidence (Mr Seton)
As previously stated, the cross examination of Mr Seton took place without objection from him or his legal representative. Having concurred in this course of action before the Arbitrator, Mr Seton cannot now object to it on appeal.
There is no error on the part of the Arbitrator, consequently this ground of appeal fails.
Error in not accepting Dr Fearnside’s MAC as binding, and in accepting that an appeal against the MAC was on foot, when in fact that appeal had been dismissed (Mr Seton)
The Arbitrator correctly stated that Dr Fearnside’s MAC was not prepared at his request nor specifically in relation to the matters, the subject of this appeal. While the Arbitrator was entitled to take the contents of the MAC into account as evidence, which he did quite substantially, he is correct in his assessment that the MAC is not binding upon him pursuant to section 326(1) of the 1998 Act. This is so because it was specifically concerned with issues in relation to matter WCC11203-03, which was before another Arbitrator, not the matters that were before this Arbitrator.
The Arbitrator is not in error as alleged. Accordingly, this ground of appeal fails.
Mr Seton’s [cross] appeal in this matter is not successful. (However, the decision of the Arbitrator dated 20 January 2005 is to be revoked as a consequence of Rocla’s appeal in Rocla Industries Pty Ltd v Seton [2006] NSWWCCPD 43, being partly successful).
DECISION 1
In this matter, Rocla Industries Pty Ltd v Seton [2006] NSWWCCPD 43, the decision of the Arbitrator dated 20 January 2005 is revoked. The matter is remitted back to the Arbitrator concerned for consideration and determination afresh of the issues of ‘injury’ and ‘incapacity’, and what necessarily follows, in accordance with these reasons, and in accordance with the evidence and the weight of the evidence, including the medical evidence brought by both parties and the oral evidence of the Respondent worker. The Arbitrator is to seek and receive fresh written submissions from the parties within a time fixed by him, and thereafter proceed to consider and determine the matter afresh with or without holding any further conference or formal hearing, as he determines upon a consideration of section 354(6) of the 1998 Act.
COSTS
No order is made as to the costs of this appeal.
DECISION 2
In Seton v Rocla Industries Pty Ltd No 1 [2006] NSWWCCCPD 44, the decision of the Arbitrator dated 20 January 2005 is confirmed for the purposes of this appeal. (However, the decision of the Arbitrator has been revoked for the purposes of the appeal in Rocla Industries Pty Ltd v Seton [2006] NSWWCCPD 43, and the matter was remitted to the Arbitrator for consideration and determination afresh, in accordance with the orders made in paragraph 163, above).
COSTS
No order is made as to the costs of this appeal.
DECISION 3
In Seton v Rocla Industries Pty Ltd No 2 [2006] NSWWCCPD 45, the decision of the Arbitrator is confirmed.
COSTS
No order is made as to the costs of this appeal.
Gary Byron
Deputy President
16 March 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF GARY BYRON, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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