Rocla Pty Limited v Seton
[2007] NSWWCCPD 114
•15 May 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Rocla Pty Limited v Seton [2007] NSWWCCPD 114
APPELLANT: Rocla Pty Limited
RESPONDENT: Roderick Leslie Seton
INSURER:Rocla Pty Limited (self insurer)
FILE NUMBERS: WCC9479-03 and WCC8730-04
DATE OF ARBITRATOR’S DECISION: 15 November 2006
DATE OF APPEAL DECISION: 15 May 2007
SUBJECT MATTER OF DECISION: Whether the Arbitrator properly determined afresh issues of ‘injury’ and ‘incapacity’ following remittance of the matter to him in accordance with the decision of Deputy President Byron in Rocla Industries Pty Limited v Seton [2006] NSWWCCPD 43.
PRESIDENTIAL MEMBER: Acting Deputy President Deborah Moore
HEARING:On the papers
REPRESENTATION: Appellant: Leigh Virtue & Associates
Respondent: Messenger & Messenger, Solicitors
ORDERS MADE ON APPEAL: 1. The decision of the Arbitrator dated 15
November 2006 is revoked.
2.The matter is remitted to another Arbitrator with priority for reconsideration and redetermination of all relevant issues in accordance with these reasons.
3.Rocla (the Appellant) is to pay Mr Seton’s (the Worker’s) costs of the appeal.
4.I make no order as to costs of the proceedings before the Arbitrator.
BACKGROUND TO THE APPEAL
On 11 December 2006, Rocla Pty Limited (‘Rocla’) (formerly described as ‘Rocla Industries Pty Limited’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision of a Commission Arbitrator dated 15 November 2006.
The Respondent to the appeal is Roderick Leslie Seton (‘Mr Seton’).
This matter has had an extraordinarily long history, and each of the parties have brought numerous applications before the Commission seeking resolution of the many matters in dispute between them. I do not propose to reiterate the history at length, since it has been more than adequately dealt with in the decision of Deputy President Byron in Rocla Industries Pty Limited v Seton [2006] NSWWCCPD 43 and related decisions (being Seton v Rocla Industries Pty Limited No 1 [2006] NSWWCCPD 44 and Seton v Rocla Industries Pty Limited No 2 [2006] NSWWCCPD 45).
The reasons and findings of Deputy President Byron are contained in the decision of Rocla Industries Pty Limited v Seton [2006] NSWWCCPD 43. For ease of reference, I shall refer to that decision simply as ‘Rocla 2006’.
In Rocla 2006, Deputy President Byron set out at length the history of the proceedings between the parties. Briefly, on 27 August 2004 an Arbitrator issued directions at a Teleconference joining proceedings No. WCC8730-04 (Mr Seton’s application for weekly benefits) and WCC9479-03 (Rocla’s application).
Those matters were listed for arbitration hearing on 13 October 2004 and 10 November 2004.
On 20 January 2005 a decision was made by an Arbitrator in relation to both those matters in favour of Mr Seton.
Both parties sought leave to appeal that decision of the Arbitrator, and these appeals were the subject of determination by Deputy President Byron on 16 March 2006 in Rocla 2006 (and the related matters to which I have referred).
In Rocla 2006, Deputy President Byron made the following determination:
“In this matter … 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.”
In relation to the two appeals brought by Mr Seton ([2006] NSWWCCPD 44 and 45) the decision of the Arbitrator was confirmed for the purposes of the appeal.
Following the decision of Deputy President Byron, the matter was remitted to the Arbitrator at first instance who made a determination dated 15 November 2006, without holding any further Teleconference or hearing, following the receipt of submissions by Mr Seton dated 9 September 2006 and by Rocla dated 11 September 2006.
The Arbitrator again found in favour of Mr Seton and made a slight variation to his earlier award, and it is against that decision that Rocla now seeks leave to appeal.
THE DECISION UNDER REVIEW
For the sake of clarity, it is perhaps appropriate to set out at this stage the Arbitrator’s earlier determination dated 20 January 2005, which was in the following terms:
“1.That the Respondent pay the Applicant’s section 60 of the Workers Compensation Act 1987 expenses on production of accounts or receipts.
2.That the Respondent pay the Applicant weekly compensation at the rate of $600.00 from 11 June 2002 to 4 July 2002 under s.36 of the Workers Compensation Act 1987.
3.That the Respondent pay the Applicant weekly compensation at the rate of $300.00 from 10 July 2001 to date and excepting any period of total incapacity within that period under s.40 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.”
Following his re-determination of the matter in accordance with the decision of Deputy President Byron, the Arbitrator issued a fresh ‘Certificate of Determination’ with an accompanying ‘Statement of Reasons’ on 15 November 2006 in the following terms:
“1.That the Respondent pay the Applicant’s s.60 of the Workers Compensation Act 1987 expenses on production of accounts or receipts.
2.That the Respondent pay the Applicant weekly compensation at the rate of $300.00 from 4 July 2002 to date under s.40 of the Workers Compensation Act 1987. Such weekly payments to continue in accordance with the provisions of the Act.
3.That the Respondent pay the Applicant’s costs as agreed or assessed, and for this purpose I certify this matter as complex.”
LEAVE TO APPEAL
Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
The amount at issue on appeal satisfies the threshold requirements in section 352(2) of the 1998 Act. The appeal was filed in time in compliance with section 352(4) of the 1998 Act.
Leave to appeal is granted.
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.”
Rocla submits that the matter should not be determined ‘on the papers’ and should be the subject of an oral hearing. Rocla submits:
“Whilst most appeals can be determined ‘on the papers’, it is submitted that this is an exceptional case because of its complex history (lengthy original hearing numerous appeals, a subsequent determination and this fresh appeal) and thereby would justify an oral hearing where the parties can address and assist the Presidential Member.”
Mr Seton submits that the matter should be determined ‘on the papers’ since:
“An oral hearing could delay the hearing of the appeal and there is an abundance of written material on which the appeal can be determined. The proceedings arising out of these injuries were originally commenced in October 2002 and there has been no final determination made after a period exceeding four years and any further delay amounts to unfairness to the parties.”
As I said earlier, there is no doubt that this matter has indeed had a long and complex history. There is equally no doubt, as Mr Seton points out, that there is “an abundance” of written material contained in the extensive files before me.
My primary task is to determine whether or not I have sufficient information to exercise my functions on review of the Arbitrator’s determination. Essentially, I am required to determine whether or not the Arbitrator properly and adequately redetermined “afresh” the matters the subject of the decision by Deputy President Byron.
In these circumstances, I am not persuaded that the issues raised in this appeal are of such difficulty or complexity that an oral hearing is required, or that an oral hearing would further elucidate the issue I am required to determine. Both parties made extensive written submissions before the Arbitrator. Similarly, both parties have made extensive submissions on appeal.
Having regard to Practice Directions numbers 1 and 6, and all the material that is before me, 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.
FRESH EVIDENCE
Rocla seeks to introduce fresh evidence on appeal being a surveillance report from Worksite Investigations dated 21 August 2006.
Rocla sought to introduce this same evidence in its submissions before the Arbitrator. The Application was dealt with by the Arbitrator in paragraph 4 of his ‘Statement of Reasons’ dated 15 November 2006 as follows:
“The Respondent has sought by way of an Application to Admit Late Documents dated 22 September 2006, to file a further witness statement of a Mr Ron Lipovac dated 21 August 2006. That statement appears to be in the nature of an updated surveillance report. The Applicant, in correspondence dated 4 October 2006, objects to the filing of the Application to Admit Late Documents, and refers specifically to the Deputy President’s orders which related only to written submissions. While the absence of a specific reference by the Deputy President does not necessarily exclude the possibility of fresh evidence, I am persuaded by the Applicant’s submissions that this is a matter that has been ‘delayed on many occasions’ and it is in the interests of both parties that the matter be brought to conclusion as quickly as possible. I have had the benefit of considering all of the medical evidence, and of hearing the testimony of the Applicant worker, and I do not consider that the fresh evidence that is sought to be tendered is of such moment that I should admit it against the general practice of Commission proceedings that evidence should be put on early. At this very late stage of the proceedings, I am not prepared to admit the evidence.”
Section 352(6) of the 1998 Act provides that, in an appeal, leave is required for the admission of fresh evidence or evidence in addition to that which was before the Arbitrator.
Rocla seeks a review of the Arbitrator’s decision rejecting this evidence or alternatively, seeks to introduce such evidence on appeal pursuant to provisions of section 352(6) of the 1998 Act. Rocla makes the following submissions:
“The employer submits that this evidence goes to the heart of the employer’s defence on incapacity. As in the original hearing, the observations of the worker, this time in August 2006, again demonstrate that the worker is able to use his arms and shoulders in strenuous physical activities, erecting a wrought iron fence, carrying large lengths of wrought iron fence and using a spanner and a power drill in both hands, together with a rack and mattock as he weeded the area.
It is submitted that this evidence, being evidence that is wholly within the knowledge of the worker, can therefore not be of any prejudice to the worker. The same principles as when applying the Marcus [sic] discretion [Markus v Provisional Insurance Company Limited, unreported, Supreme Court, Clarke J, 11 May 1983] in respect of claims for privilege should equally apply when considering the admission of surveillance material. This evidence cannot come as any surprise to the worker. On the other hand, the exclusion of such evidence which corroborates the employer’s medical opinions is most prejudicial to the employer and should have been admitted by the Arbitrator.
Alternatively, and for the same reasons, the employer seeks leave to admit this evidence in this appeal pursuant to s.352(6).”
The issue of the admission of surveillance material by way of fresh evidence was considered at length by Deputy President Fleming in M & S Shipman Pty Limited v Larry John Matters [2003] NSWWCCPD 19 (‘Matters’) where she said (paragraphs 21 to 23) as follows:
“21. Principles relevant to the exercise of the discretion to admit fresh evidence in appellate proceedings have often been considered by the courts. These principles were discussed in relation to proceedings before the Commission in the matter of Ross v Zurich Workers Compensation Insurance [2002] NSW WCC PD 7. Factors weighing in favour of the exercise of discretion to admit fresh evidence in the appeal include that:
(i) if the request is refused, a substantial injustice will result to the party who seeks to have the evidence admitted, Radnedge v Government Insurance Office of NSW (1987) 9 NSWLR 235,
(ii) the evidence could not have been discovered, with reasonable diligence, at the time of the original proceedings, Radnedge v Government Insurance Office of NSW (1987) 9 NSWLR 235; Glover v Australian Ultra Concrete Floors Pty Limited [2003] NSWCA 80, and
(iii) the evidence is of such probative value that there is a high degree of probability that it would lead to a different outcome in the case; Greater Wollongong City Council v Cowan (1955) 93 CLR 435, Warr v Santos [1973] 1 NSWLR 432, Harrison v Schipp (2002) 54NSWLR 738; Atkins v National Australia Bank (1994) 34 NSWLR 155.
22.Factors weighing against the exercise of the discretion to admit fresh evidence in the appeal include:
(i) the interest in the finality of litigation and the importance of the ability of the successful party to rely on the outcome of the proceedings, Litynski v Albion Steel Pty Ltd (1994) 10 NSWCCR 287,
(ii) the prejudice, if any, that may result to the other party, particularly if the fresh evidence raises new arguments in the appeal, and
(iii) the intention of the legislative scheme in relation to the nature of the proceedings.
23.In some cases the introduction of fresh evidence will effectively raise new arguments in the appeal. As Gleeson CJ said in Lityski v Albion Steel Pty Ltd (1994) 10 NSWCCR 287 the two questions [are] simply the opposite sides of the one coin (at 297). It is undesirable, and potentially unfair, to allow a party to effectively present a new and different case on appeal, to that which was before the primary decision-maker. The comments of the High Court in relation to the introduction of new evidence following a trial are relevant to the consideration of these issues, In Coulton v Hollcombe (1986) 162 CLR 1 the Court, (per Gibbs CJ, Wilson, Brennan and Dawson JJ) held that:
… It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish (at [9]).
Similar submissions were made by Rocla before Deputy President Byron. In the initial arbitration hearing conducted over two days, 13 October 2004 and 10 November 2004, Rocla sought to call witnesses under summons (without statements) who had undertaken surveillance of Mr Seton. The Arbitrator rejected this evidence, and his reasons were set out in paragraphs 58 to 60 of his initial ‘Statement of Reasons’ dated 20 January 2005. He said as follows:
“57.The Respondent also sought to call witnesses who were the persons who had conducted the video surveillance, and sought to admit the video surveillance tape. The Applicant objected to this.
58.It was put to me by the Respondent that the persons retained to prepare a surveillance video tape and report would not sign a verifying statement, and that is why the evidence was not presented in a written form at an earlier stage as required by the Legislation.
59.I directed that the video tape would not be admitted, and that I would not permit evidence to be led from those witnesses who had refused to sign a statement. The Respondent then sought to tender the three investigation reports, and I did not admit those on the same basis. The parties referred to Rule 66 of the Workers Compensation Commission Rules 2003 …
I expressed concern that subsection (b) had not been complied with and therefore the Respondent could not rely on 66(3)(a). I was particularly concerned at admitting the evidence at a late stage given that the witnesses had been retained by the Respondent, and any issues in relation to their ability or otherwise to verify the evidence should have been addressed at a much earlier stage.
60.The Respondent referred me then to the general discretion conferred on me in sub-section (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.”
This issue was dealt with by Deputy President Byron in Rocla 2006 at paragraphs 95 to 104 inclusive. Relevant aspects of the Deputy President’s decision are as follows:
“95.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.’
…
100.Rocla has not complied with the requirements of the Practice Direction … 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’.
101.… The Arbitrator’s refusal was based essentially on the fact that Rocla had failed to comply with the Rules …
…
103.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 video tape 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.”
Deputy President Byron refused leave to adduce fresh or additional evidence.
In submissions before Deputy President Byron, Rocla argued that the Arbitrator had erred in refusing to admit the surveillance evidence. This ground of appeal was considered by Deputy President Byron at paragraphs 138 – 150 inclusive of his decision in Rocla 2006. Again, Deputy President Byron noted at (paragraph 144): “… Counsel for Rocla had been permitted to conduct extensive cross examination of Mr Seton, without objection to that course.”
Deputy President Byron then said (paragraph 145 to 149):
“145.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 video tape to be admitted into evidence was not made until after the hearing had commenced before the Arbitrator, and without prior notice to Mr Seton.
…
148.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.
149.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.”
Deputy President Byron found no error on the part of the Arbitrator on this issue, and that particular ground of appeal failed.
In the present case, the Arbitrator rejected the admission of the surveillance report dated 21 August 2006 principally on the basis of the issue of “delay” and in the interests of finality of litigation, but also on its apparent weight. The Arbitrator’s reasons appear to reflect his acknowledgment that he had previously heard the testimony of Mr Seton who it is noted had been cross examined extensively on the contents of earlier surveillance reports.
Again, whether the Arbitrator was correct in refusing to admit this evidence has been raised by Rocla as a substantive issue to be determined in this appeal. Thus it is appropriate that I first consider whether the Arbitrator erred, as Rocla claims, in rejecting this evidence before considering whether to admit this material. It is true that the evidence came into existence after the Arbitrator’s initial determination dated 20 January 2005. It was sought to be tendered by way of an ‘Application to Admit Late Documents’ dated 22 September 2006, some 11 days after Rocla had prepared its written submissions for the Arbitrator, pursuant to the directions of Deputy President Byron.
That however is not the only factor to consider. Rocla’s submissions focus on its interpretation of the contents of that material and the fact that this evidence “being evidence that is wholly within the knowledge of the worker, can therefore not be of any prejudice to the worker.” In Markus v Provincial Insurance Company Limited (1983) 25 NSWCCR 1 (‘Markus’) to which I referred earlier, and upon which Rocla seeks to rely in support of its submission that the material ought be admitted, Clark J (as he then was) was required to consider the Plaintiff’s request for production and inspection of certain documents over which the Defendant’s insurer claimed privilege. Clark J noted the Defendant’s submission that:
“… the interest of justice would not be served by producing the document because it contains material which does not advance the plaintiff’s case but which on the other hand would, if the plaintiffs are not genuine, put the plaintiffs on notice of some allegedly suspicious circumstances and enable them to tailor or endeavour to tailor their evidence to meet the circumstances.”
Clark J then considered how he was to exercise his discretion in the interest of justice. His Honour concluded:
“Bearing in mind the view that I have that the ultimate question is going to be as to the genuineness or otherwise of the plaintiffs, and again in the interests of justice that they may be put on notice at an earlier date of the allegedly suspicious circumstances, I think this factor, to the extent to which it is entitled to consideration, is outweighed by the greater interest of ensuring that the Court gives justice between the parties.
In conclusion I think the interests of justice are better served by my declining to make an order for production of that document.”
However, each such application must be considered on its merits having regard to the facts of each case. In addition, Markus must be considered in the context of the functions and procedures of the Commission.
In Matters, Deputy President Fleming refused to admit the surveillance material as fresh evidence. She noted that, in that case, the material did not come into existence until some two months after the conclusion of an Arbitration hearing stating:
“Its relevance and weight in relation to the matters that were before the Arbitrator for determination are negligible. At its highest, the video may evidence the fact that Mr Matters was not totally incapacitated as at the date it was made, i.e. 25 March 2003. This was not the issue before the Arbitrator, who decided the matter on the evidence before him at the conciliation and arbitration hearing on 25 February 2003. I am not satisfied that the video evidence now submitted is relevant and credible evidence, of such probative value to the issues for determination before the Arbitrator that it could change the outcome of the case.
Nor am I satisfied that the issues that were before the Arbitrator should be expanded in light of the evidence the Appellant Employer now seeks to have admitted. It is a unique feature of the workers compensation jurisdiction that a party may make more than one claim, and consequent application to the Commission, in relation to an injury that essentially arises from the same set of facts. These typically concern further aggravation of an injury, but may also relate to the resolution of symptoms of an injury, and subsequent changes in the level of incapacity and statutory entitlements.”
The circumstances of this particular case however are somewhat unusual. Deputy President Byron concluded (paragraph 156) that:
“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.”
As a consequence, he decided that the matter should be remitted to the Arbitrator at first instance for consideration and determination afresh of the issues of ‘injury’ and ‘incapacity’ and what necessarily follows.
Clearly, this material is relevant to the issue of incapacity. Deputy President Byron noted that (paragraph 155):
“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’.”
In his subsequent determination dated 15 November 2006, the Arbitrator determined (paragraph 4) that “… I do not consider that the fresh evidence that is sought to be tendered is of such moment that I should admit it against the general practice of Commission proceedings that evidence should be put on early.” However, this was a matter in which the Arbitrator had been required to reconsider and redetermine issues of injury and incapacity in accordance with the decision of Deputy President Byron. The circumstances were thus somewhat different from those in Matters where material was sought to be admitted on appeal after the Arbitrator’s determination. In the present case, the material was sought to be admitted as fresh evidence in the “redetermination” dispute and in my view, was of significant probative value. Whilst there is an argument that the material may result in some prejudice to Mr Seton, it does not in effect raise new arguments on appeal since Mr Seton was cross examined extensively on previous surveillance material.
In my view, in the interests of doing justice between the parties, the material should have been admitted by the Arbitrator but with an opportunity afforded to Mr Seton to respond. The Arbitrator in his “redetermination” of the issues raised by Deputy President Byron elected to proceed in the absence of a further Teleconference or arbitration hearing. Whilst that course of conduct was clearly open to him, in my view, it was inappropriate, given Deputy President Byron’s criticisms of the Arbitrator’s reasons and in particular, his treatment of Mr Seton’s oral evidence and his “obvious lack of veracity.”
There were valid criticisms of Rocla’s failure to comply with the Workers Compensation Commission Rules 2003 (the 2003 Rules) made by both the Arbitrator and Deputy President Byron in the earlier proceedings and of course Deputy President Byron’s determination on that issue clearly and rightly stands.
In summary, given the issues that were required to be “redetermined” by the Arbitrator, and in light of Deputy President Byron’s findings and reasons on this issue, in my view, the late evidence sought to be admitted by Rocla was of significant probative value, and any prejudice to Mr Seton could have been cured by affording him an opportunity, either by way of further oral evidence or written submissions, to respond to this evidence.
The Arbitrator failed to exercise his discretion fairly and lawfully in refusing to admit the fresh evidence given the nature of the particular “redetermination” he was required to conduct following the decision of Deputy President Byron.
I will deal with the issue of the admissibility of this evidence on appeal further below, when considering Rocla’s substantive grounds of appeal.
THE ISSUES IN DISPUTE
In addition to the ‘fresh evidence’ issue, Rocla has cited three other grounds of appeal which may be summarised follows:
“(a)The Arbitrator erred in finding that the worker was injured pursuant to section 4 of the Workers Compensation Act 1987 (the 1987 Act) be it by way of personal injury or the aggravation, acceleration, exacerbation or deterioration of a disease.
(b)That the Arbitrator failed to conduct a two stage process by next considering section 9A of the 1987 Act.
(c)That if the injury is confirmed by way of the aggravation, acceleration, exacerbation or deterioration of a disease (which is not conceded), the Arbitrator erred in not properly applying section 16 of the 1987 Act when determining that Rocla was the “last employer” liable to pay compensation.”
The substance of Rocla’s submissions also allege that the Arbitrator again erred in his determination of the issues of ‘injury’ and ‘incapacity’, and that he failed to adequately reconsider and redetermine the matter in line with the decision of Deputy President Byron.
THE ARBITRATOR’S DETERMINATION AND REASONS
It is appropriate at this point to reiterate the decision of Deputy President Byron in Rocla 2006 for the purposes of determining whether the Arbitrator properly or adequately performed his task.
The decision of Deputy President Byron was as follows:
“The matter is remitted back to the Arbitrator concerned for the 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.”
In paragraph 5 of his ‘Statement of Reasons’ dated 15 November 2006 the Arbitrator said as follows:
“I note that according to the Deputy President’s determination, all findings and determinations by me up to the consideration of the medical and oral evidence stand. What I am required to do is to consider and determine ‘afresh’ the issues of injury and incapacity, and ‘what necessarily follows’.”
The Arbitrator then went on to summarise the submissions made by both parties. At paragraph 29 he stated: “I have reconsidered the medical evidence submitted in this matter.” At paragraphs 30 – 43 inclusive, the Arbitrator set out a summary of all the medical evidence before him.
At paragraph 44 the Arbitrator stated as follows:
“Having reconsidered all of the evidence and the notes of the arbitration hearing, I do not consider it necessary to make any further comment with the respect to the oral testimony and candour of the Applicant worker, except to say that with respect to injury, the Applicant’s failure to accurately and comprehensively deal with his employment history after his redundancy with the Respondent does place the reporting doctors at some disadvantage. In reviewing the medical evidence I have taken this factor into account, to the extent that where the medical report appears to place any reliance on the absence or [sic] employment in the intervening period, that aspect should be discounted.”
At paragraph 45 the Arbitrator then proceeded to redetermined the issue of “injury”. The Arbitrator concluded at paragraph 53 that “… I am persuaded in reviewing this matter afresh that the Applicant suffers from a degenerative condition in both of his shoulders, which Dr Fearnside diagnoses as degenerative tendonitis.”
At paragraph 54, the Arbitrator stated:
“I have considered the comments of Dr Smith and Dr Edwards in particular, however, I prefer Dr Fearnside’s opinion having also had the benefit of properly considering the nature of Mr Seton’s work with the Respondent employer.”
The Arbitrator concluded that: “It is a s.16 matter” and at paragraph 57 stated:
“… Dr Fearnside is of the view that Mr Seton’s work would have contributed in a substantial way to the aggravation of this condition. I have commented in my earlier decision with respect to the arduous nature of the Applicant’s work, and I am satisfied that that work with the Respondent [sic] in the aggravation, acceleration, exacerbation or deterioration of a disease.”
At paragraph 58, the Arbitrator stated as follows:
“The next question therefore is as to which employer should pay compensation pursuant to s.16. The critical date that must be established is the date of the Applicant’s incapacity.”
The Arbitrator then reviewed the evidence on this issue noting that Mr Seton continued to work in his employment with Rocla until the date of his termination on 19 July 2001. At paragraph 63, the Arbitrator stated:
“The Application seeks weekly compensation from 10 July 2001. Given that the Applicant was working up until that date on full duties, and without notice of an injury, I am not satisfied that that was the date of incapacity. The first medical reference to incapacity after that date is 4 July 2002 … I consider that the best date, on the available evidence, as to fix on a date for incapacity. On that date, Dr Dearin [Mr Seton’s general practitioner] says that the Applicant should be restricted to light physical work or clerical type employment.”
The Arbitrator then went on to consider work that Mr Seton had carried out for a company known as “Lidsdale Couriers” and with a company known as “Toy World”. He noted that Mr Seton did not do any work for Toy World “until 2004” and that he did some brief work for Lidsdale Couriers “of a light nature” in September 2002. The Arbitrator concluded (para 66) “Therefore, the date of incapacity is 4 July 2002 pursuant to s.16, and the Respondent employer is solely liable for that injury and incapacity.”
As to the weekly payment determined by the Arbitrator, he stated (paragraph 67) “I am not persuaded that there is anything in the evidence that would cause me to vary my orders with respect to the weekly compensation …” The Arbitrator proceeded to enter an award in favour of Mr Seton at the rate of $300.00 per week pursuant to Section 40 of the 1987 Act from 4 July 2002 and continuing.
The Arbitrator then concluded (paragraph 68) “I note that for the reasons set out in this determination, my earlier order at paragraph 2 that the Respondent pay the Applicant weekly compensation at the rate of $600.00 from 11 June 2002 to 4 July 2002 under s.36 has been revoked and is no longer applicable.”
No reference is made by the Arbitrator to the earlier order in the ‘Certificate of Determination’ dated 20 January 2005 that Rocla pay weekly compensation to Mr Seton at the rate of $300.00 from 10 July 2001. However, it may be inferred from the Arbitrator’s subsequent determination that, having found the date of ‘incapacity’ as being 4 July 2002, no order for weekly payments prior to that date was applicable.
THE SUBMISSIONS, EVIDENCE AND FINDINGS
Did the Arbitrator properly reconsider and determine afresh issues of ‘injury’ and ‘incapacity’ in accordance with the evidence and the weight of evidence?
Mr Seton commenced work with Rocla in about 1993 until his termination on 19 July 2001. In his earlier determination of 20 January 2005, the Arbitrator noted (paragraph 18) “The Applicant filed an unfair dismissal claim in the NSW Industrial Relations Commission and noted that the date of dismissal was 19 July 2001. This was presumably withdrawn at some later stage.”
Mr Seton had given evidence that he noticed pain in both his shoulders in around 1996 and 1997. He admitted that there was no specific injury, nor that he reported his condition to either Rocla or to any doctor at that time. It was not disputed that Mr Seton performed his normal duties until the date of his termination on 19 July 2001.
The Arbitrator in his redetermination appears to have placed considerable weight on the evidence of Dr Dearin, General Practitioner. His notes reveal that Mr Seton consulted him on 10 July 2001 with a diagnosis of “hyperlipidamia, hypertension, gout and shoulder arthritis.” That appears to be the only reference to shoulder complaints during the course of Mr Seton’s employment although as the Arbitrator stated (paragraph 34) “Dr Dearin notes that the Applicant consulted Dr Keller during the relevant period while at work but observes that those notes were not available to him.”
In considering the issue of ‘injury’ the Arbitrator stated (paragraph 46):
“There is strong and almost overwhelming evidence that the Applicant suffers a degenerative condition in his shoulders. The clinical notes of Dearin are significant in that they refer to shoulder arthritis on 10 July 2001.”
Having reviewed all the other medical evidence, the Arbitrator concluded that Mr Seton “… suffers from a degenerative condition in both of his shoulders, which Dr Fearnside diagnoses as degenerative tendonitis.”
It is fair to say that the general consensus of medical opinion was that Mr Seton suffered from some degenerative changes in his shoulders.
The Arbitrator concluded that Mr Seton suffered from a “disease” within the meaning of section 16 of the 1987 Act stating as follows (paragraph 57):
“Dr Dearin on 1 April 2003 addresses this possibility [disease] and while accepting the views of Doctors Hughes and Edwards, notes that overuse may be relevant to the Applicant’s condition as observed on 1 April 2003. Dr Dearin says that work would have accelerated the degenerative changes, and goes so far as to say that lifting the fuel barrels would have contributed significantly to the Applicant’s condition. As I have already noted, Dr Fearnside is of the view that Mr Seton’s work would have contributed in a substantial way to the aggravation of this condition. I have commented in my earlier decision with respect to the arduous nature of the Applicant’s work, and I am satisfied that that work with the Respondent [sic] in the aggravation, acceleration, exacerbation or deterioration of a disease.”
Dr Michael Fearnside, an Approved Medical Specialist, issued a Medical Assessment Certificate (‘MAC’) in December 2003 (no specific date recorded). That Certificate was issued in respect to matter NO. WCC11203-03, which was Mr Seton’s claim for lump sum compensation. In the earlier proceedings before the Arbitrator, Rocla had objected to the admission of that report, but it was allowed by the Arbitrator. On appeal, Deputy President Byron decided that the Arbitrator was entitled to have regard to the contents of Dr Fearnside’s MAC, notwithstanding that it was completed on a Table of Disabilities basis because of an injury date being recorded as “1996 – 97”.
In his ‘Certificate of Determination’ dated 15 November 2006, the Arbitrator recorded the following extract from Dr Fearnside’s MAC from his earlier decision as follows:
“… Dr Fearnside, a neurological surgeon, writes ‘I accepted the nature and conditions of Mr Setons work could have contributed in a substantial way to the aggravation of this condition and that, on the balance of probabilities, they did contribute to the rotator cuff injuries. Mr Seton’s was a heavy job, not only conveying 20 litre drums of diesel oil to the pontoon but also lifting and carrying rocks and carrying diesel oil upstairs. The physical nature of this work could, in my opinion, have contributed and did contribute to this present clinical condition and permanent impairment’.
In Dr Fearnside’s view it was ‘the nature and conditions of Mr Seton’s work while employed as plant operator and driver at Rocal [sic] Industries Limited [that] was a substantial contributing factor to this present clinical condition.
Having read all of the medical evidence before me, I am inclined to prefer Dr Fearnside’s assessment of the Applicant. Dr Fearnside 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.”
In his “redetermination”, the Arbitrator again stated that he preferred Dr Fearnside’s opinion, notwithstanding the opinions of Drs Smith, Hughes and Edwards, qualified on behalf of Rocla, who, in general terms, were of the view that Mr Seton’s condition was unrelated to his employment with Rocla.
In principle, the Arbitrator was certainly entitled to accept the opinion of Dr Fearnside provided that adequate reasons were given for acceptance of this opinion over other expert medical opinion and provided that the Arbitrator’s reasons demonstrated, as Deputy President Byron noted, proper analysis of all the evidence, “… including the medical evidence and Mr Seton’s oral evidence, and the weight to be attached to it.”
In his “redetermination” of 15 November 2006, the Arbitrator has again summarised the medical evidence before him, but overall with little further detail than is contained in his similar summaries in his earlier decision. While it is now well established that an Arbitrator is not required to provide lengthy and detailed reasons in order to comply with the 1998 Act and the Rules, it is nonetheless necessary for an Arbitrator to demonstrate with sufficient clarity the basis upon which a decision has been made. (See Snow Confectionary Pty Limited v Askin [2004] NSWWCCPD 56).
The Arbitrator’s acceptance of the opinion of Dr Fearnside appears to be based principally on his view that Dr Fearnside carefully considered the physical nature of Mr Seton’s work. That, as the Arbitrator pointed out, was not really an issue in dispute between the parties. Nowhere does he provide reasons for his rejection of Rocla’s medical case. Mr Seton had obtained an opinion from Milder, Neurosurgeon, who did not comment on the relationship between his condition and his employment. Nor did Dr Biggs, Orthopaedic Surgeon, who provided a report dated 27 February 2003. Dr Burgess, Orthopaedic Surgeon, in a report dated 11 December 2002, took a history of an injury “five or six years ago” and attributed his condition to work with Rocla. Dr Sherry, Orthopaedic Surgeon, recorded on 15 May 2002 that Mr Seton had had a problem with both shoulders for many years.
Mr Seton’s ‘medical case’ essentially attributed his condition to an injury apparently occurring five or six years before he ceased work, an issue very much in dispute between the parties.
Dr Fearnside’s opinion was based on a ‘notional’ date of injury of 1996/97, which is consistent with the Arbitrator’s subsequent finding on ‘redetermination’ that Mr Seton suffered an aggravation of a ‘disease’.
Whilst I have some reservations as to the Arbitrator’s acceptance of the opinion of Dr Fearnside for the reasons stated, it was nonetheless open to him to accept that opinion. My principal concerns with the Arbitrator’s ‘reconsideration’ of the issue of ‘injury’ is with his failure to adequately analyse all of the evidence and his failure to provide adequate reasons for rejecting Rocla’s medical evidence.
I have similar concerns with the Arbitrator’s ‘reconsideration’ of the issue of ‘incapacity’. There was considerable dispute between the parties as to the nature and extent of subsequent work undertaken by Mr Seton following his termination from Rocla. In brief, Mr Seton had denied to a number of medical examiners, including Dr Fearnside, that he had undertaken any work since leaving Rocla. This, the oral evidence revealed, was not in fact the case. As the Arbitrator pointed in his earlier determination:
(55)“The Applicant agreed with the suggestion put by Counsel that he had not spoken of all of these activities because to do so, would not assist him in his application before this Commission.
(56)In short, the Applicant’s oral evidence discloses that he has not been entirely frank in his presentation to the medical assessors, or in his stated estimation of his capacity. The evidence over some considerable period indicates that the Applicant is capable of undertaking paid work, and that such work is available within a reasonable proximity of his home”.
On “redetermination’, the Arbitrator made the following statement (paragraph 44):
(44)“I do not consider it necessary to make any further comment with respect to the oral testimony and candour of the Applicant Worker, except to say that with respect to injury, the Applicant’s failure to accurately and comprehensively deal with his employment history after his redundancy with the Respondent does place the reporting doctors at some disadvantage. In reviewing the medical evidence I have taken this factor into account, to the extent that where the medical report appears to place any reliance on the absence or [sic] employment in the intervening period, that aspect should be discounted.
That appears to be the extent of the Arbitrator’s analysis of the impact of the oral evidence and its weight.
In my view, the Arbitrator’s statements in paragraph 44 of his determination of 15 November 2006 are inadequate in the context of the task he was required to perform as directed by Deputy President Byron. It is not clear how the Arbitrator has determined that a medical report may or may not have placed reliance on Mr Seton’s failure to accurately report his post-Rocla employment, nor is it by any means clear what “aspect “ of the medical reports the Arbitrator is referring to, or indeed the manner or basis upon which any medical opinion ought be “discounted”.
In my view, the Arbitrator’s reasons of 15 November 2006 once again, as Deputy President Byron pointed out, demonstrate “… little analysis of the evidence, including the medical evidence of Mr Seton’s oral evidence, and the weight to be attached to it.”
This is so, not only in relation to the issue of ‘injury’ but also ‘incapacity’. Moreover, it is clear that “… what may follow from that”, as Deputy President Byron said, must include an analysis of the provisions of section 9A of the 1987 Act. It is true that the Arbitrator dealt with this issue to some extent by voicing his preference for the opinion of Dr Fearnside who, as noted earlier, accepted that Mr Seton’s employment with Rocla was a substantial contributing factor to his injury. However, this statement was in my view insufficient in the context of the Arbitrator’s obligation to consider and determine afresh issues of injury and incapacity, and I accept Rocla’s submissions on this point, in line with the decision of ADP Lansdowne in Marks v Ricegrowers’ Co-Operative Limited [2006] NSWWCCPD 46 to which Rocla refers in its submissions.
The Arbitrator appears to have resiled from his earlier finding that: “On 1996 to 1997, Mr Roderick Leslie Seton received an injury to his left and right arm at or above the shoulders arising out of or in the course of his employment as a plant operator with Rocla Limited.” In his earlier decision, the Arbitrator found that Mr Seton had suffered “an injury” and that his employment with Rocla was a substantial contributing factor to it. The “injury” was said to be “… an injury to both the left and right arms at or above the elbow.”
“In reviewing this matter afresh …”, the Arbitrator then concluded that Mr Seton suffered from a degenerative condition in both shoulders within the meaning of section 16 of the 1987 Act.
It is appropriate at this point to note the terms of section 16(1) of the 1987 Act:
“(1)If an injury consists in the aggravation, acceleration, exacerbation or deterioration of a disease:
(a)The injury shall, for the purposes of this act, be deemed to have happened:
(i) at the time of the worker’s death or incapacity, or
(ii)if death or incapacity has not resulted from the injury – at the time the worker makes a claim for compensation with respect to the injury, and
(b)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.”
As the Arbitrator pointed out (paragraph 56) “The critical dates that must be established is the date of the Applicant’s incapacity”. The Arbitrator concluded that the date of incapacity was 4 July 2002 apparently on the basis of Dr Dearin’s report of that date. On that occasion, Dr Dearin considered that Mr Seton at that stage was restricted to light physical work. Having nominated 4 July 2002 as the notional date of injury, a date almost 12 months after Mr Seton’s termination with Rocla, the Arbitrator failed to have regard to relevant and significant evidence as to Mr Seton’s activities and other events that occurred following his cessation of employment with Rocla.
These ‘events’ include the following:
·Mr Seton underwent surgery at the hands of Dr Sherry on 11 June 2002.
·Mr Seton conceded that he had done some work driving a small truck for a fruit and vegetable business on a few occasions prior to his operation.
·Mr Seton gave evidence to the effect that his condition got “worse and worse and worse, then I had to have the operation …” (transcript 13.10.04 page 45).
·Mr Seton was unsure as to precisely when he worked for Lidsdale Couriers, conceding that it may have been prior to August 2002, and was unsure whether that work was undertaken before or after he obtained an invalid pension.
Examination of the transcript confirms Mr Seton’s “obvious lack of veracity”, and in determining the date of incapacity as 4 July 2002, the Arbitrator in my view has failed to consider a number of relevant ‘activities’ or ‘events’ to which I have referred. At the very least, commonsense would suggest that Mr Seton was incapacitated for a period of some weeks during and following his surgery in June 2002, irrespective of the issue of ‘injury’.
In short, the Arbitrator’s reconsideration and redetermination of the issue of ‘incapacity’ is inadequate and again fails to reveal any proper analysis of all of the evidence and the weight to be attached to that evidence.
CONCLUSION
The Arbitrator has erred in failing to properly reconsider and redetermine the issues of ‘injury and ‘incapacity’, and what necessarily follows, in accordance with the decision of Deputy President Byron in Rocla 2006. Once again, in my view, the Arbitrator has failed to properly address the impact of Mr Seton’s oral evidence on the dispute between the parties, and has failed to properly analyse all of the evidence before him.
The Arbitrator’s consideration of the issue of ‘incapacity’ in particular was cursory to say the least, and failed to take into account a number of factors to which I have referred previously.
The Arbitrator appears to have based his decision principally on a notation in Dr Dearin’s records of ‘”shoulder arthritis” shortly before Mr Seton ceased with Rocla, and on the opinion of Dr Fearnside on the basis that that doctor obtained a detailed statement as to the nature of Mr Seton’s duties. Whilst certainly there was evidence to support the proposition that the nature of Mr Seton’s duties aggravated or accelerated a disease process in his shoulders, the Arbitrator, in merely summarising the medical evidence presented by Rocla has failed to give any or any adequate reasons as to why that evidence, diametrically opposed to some of the evidence put forward by Mr Seton, should be preferred.
As Deputy President Byron noted in Rocla 2006 (paragraph 153):
“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.”
There is little analysis of this evidence, taken with the factors to which I have referred, in the Arbitrator’s “redetermination” of the issue of ‘incapacity’.
Regrettably, and I say this because of the lengthy history of this and related matters, the decision of the Arbitrator ought be set aside. In the interests of justice between the parties, I think the appropriate order is to remit the matter to another Arbitrator for reconsideration and redetermination of the issues of ‘injury’ and ‘incapacity’ and “what necessarily follows”, including consideration of the application of Section 9A of the 1987 Act.
Other issues determined by the Arbitrator which Deputy President Byron confirmed on appeal, should remain uncontested, in particular, his determination in relation to the earlier video evidence, and the issue of jurisdiction and compliance with the provisions of section 65 and 261 of the 1998 Act. The same must be said of Deputy President Byron’s decision in relation to the admission of various medical reports contained in paragraphs 116 to 137 of Rocla 2006.
As to the ‘fresh evidence’ sought to be admitted by Rocla in the “redetermination” proceedings before the Arbitrator and on appeal, I have already determined that in the interests of fairness and justice between the parties, that evidence ought be admitted. For the reasons stated above, it is not appropriate for me to admit this material on appeal, nor is it necessary given my findings as to the Arbitrator’s reconsideration and redetermination of this matter. That evidence may be admitted in fresh proceedings before an Arbitrator subject to the proviso that Mr Seton be afforded an opportunity to respond, either by way of written submissions, further statement or oral evidence.
DECISION
(a) The decision of the Arbitrator dated 15 November 2006 is revoked.
(b)The matter is remitted to another Arbitrator with priority for reconsideration and redetermination of all relevant issues in accordance with these reasons.
COSTS
It is unfortunate that the Arbitrator has failed to properly or adequately reconsider and redetermine this matter in accordance with the decision of Deputy President Byron in Rocla 2006. This is particularly so where both parties provided detailed written submissions to the Arbitrator prior to his “redetermination”, and have again done so on appeal.
Costs in the Commission are governed by section 24(1) of the 1998 Act. Costs are in the discretion of the Commission and the Commission has full power to determine by whom, to whom and to what extent costs are to be paid.
Although Rocla has been successful on appeal, this situation would not have arisen had the Arbitrator properly exercised his functions on reconsideration and redetermination of the matter in accordance with Deputy President Byron’s decision, and Mr Seton should not have to bear costs in those circumstances.
In all the circumstances, I think that the fair and appropriate order is for Rocla to pay Mr Seton’s costs of the appeal at the maximum rate allowable under the Costs Regulations, Schedule 6, Table 4 of the Workers Compensation Regulation 2003.
Deborah Moore
Acting Deputy President
15 May 2007
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DEBORAH MOORE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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