Rohloff v Diacut Pty Limited (in Liquidation)
[2005] NSWWCCPD 17
•18 March 2005
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Rohloff v Diacut Pty Limited (in Liquidation) [2005] NSW WCC PD 17
APPELLANT: Kevin Rohloff
RESPONDENT: Diacut Pty Limited
INSURER:Allianz Australia Workers Compensation (NSW) Limited
FILE NUMBER: WCC2981-02
DATE OF ARBITRATOR’S DECISION: 22 September 2003
DATE OF APPEAL DECISION: 18 March 2005
SUBJECT MATTER OF DECISION: Sound Recording of Arbitration hearings; admission of Medical Assessment Certificate into evidence; weight of evidence; discretion; pleadings; Arbitrator’s refusal to admit worker’s statement.
PRESIDENTIAL MEMBER: Dr Gabriel Fleming, Deputy President.
HEARING:On the papers.
REPRESENTATION: Appellant: Firths Lawyers
Respondent: Goldbergs Lawyers
ORDERS MADE ON APPEAL: The decision of the Arbitrator is revoked. The matter is remitted to a different Arbitrator for determination of the Applicant’s entitlement, if any, to compensation by way of weekly benefits from 4 January 2002 to date and continuing.
Background to the Appeal
Kevin Rohloff was employed by Diacut Pty Limited (in Liquidation) as a mechanic/demolition labourer. On 5 May 1997 he dropped a heavy power pack onto his foot at work and twisted his left knee. He was off work, with his foot in plaster, for about six weeks. He returned to the same employer, on comparable earnings, and was employed until 23 December 2001. His employment was terminated when the company went into liquidation. On 10 May 2002 he notified the employer of his injury and his claim for compensation.
The Employer denied liability for the injury, claiming that Mr Rohloff had not suffered any loss.
On 3 October 2002 Mr Rohloff filed an ‘Application to Resolve a Dispute’ in the Commission. He claimed workers compensation benefits by way of lump sums for permanent impairment and pain and suffering, and weekly benefits.
The matter was referred to a Commission Arbitrator. A conciliation and arbitration were held and a Certificate of Determination was issued on 22 September 2003. The Arbitrator made orders in favour of Mr Rohloff for lump sum compensation for permanent impairment and pain and suffering, however, he found that the Employer was not liable to pay weekly benefits compensation. The Arbitrator also ‘made no order as to costs’. I note that the Certificate of Determination states that the decision is “made with the consent of the parties”, whereas in relation to the payment of weekly benefits and costs it clearly was not.
On 17 October 2003 Mr Rohloff filed an appeal against the Arbitrator’s decision in relation to weekly benefits and costs. He seeks to have the Arbitrator’s decision in relation to weekly benefits and costs set aside and an order made in his favour. Mr Rohloff submits, in summary, that the Arbitrator:
· was wrong to refuse to grant him leave to file late documents,
· failed to determine the matter ‘as pleaded’,
· failed to properly consider the medical evidence, or to give it due weight, and
· was wrong to determine that he did not suffer any incapacity for work as a result of his work injury.
Mr Rohloff also argues that he has been prejudiced on appeal because of the failure of the Commission to provide a complete transcript of the arbitration, held on 26 August 2003.
The Employer wants the Arbitrator’s decision confirmed.
Leave to appeal is granted.
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.
The Arbitrator’s decision should not be disturbed unless it demonstrates an error of law, fact or discretion (Allesch v Maunz (2000) 203 CLR 172; Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSW WCC PD 6). The error must be such that, but for it, a different decision would have been made (YG & GG v Minister for Community Services [2002] NSWCA 247).
Failure to Provide Accurate Transcript
The conciliation phase of Commission proceedings is never recorded. There is no statutory requirement to record any of the Commission’s proceedings and it does so only in the interests of good practice and the avoidance of the potential for unfairness.
The transcript of the arbitration of 26 August 2003 appears to be incomplete. It is unclear whether the earlier part of the proceedings on that day was entirely taken up with conciliation. I note that in the first line of the transcript the Arbitrator states that he is “continuing” the recording, and that it is a continuation of a “hearing”. The transcript, such as it is, was not provided to the parties until 24 May 2004, some nearly ten months after the arbitration. The Appellant submits that these issues have prejudiced him on appeal.
The Respondent submits that a full and audible recording of the second part of the proceedings, ie. the arbitration phase, was provided to the parties, and disputes the contention that a failure to provide a full recording is a valid ground of appeal (Emeli Taeiloa v Forstaff Personnel [2003] NSW WCC PD 8) and Sheridan v David Anthony Clarke t/as Freestyle Marine Sports [2003] NSW WCC PD 4).
The ramifications of the failure to provide any, or adequate, transcription of the arbitration hearing has been considered in a number of matters, see: Pied Piper Pre-School Association (Wallerawang) Incorporated v Woolsey [2004] NSW WCC PD 5; Aluminium Louvres & Ceilings Pty Ltd v Zheng [2004] NSW WCC PD 26; Devine v Coles Supermarkets Australia Pty Ltd [2003] NSW WCC PD 28; Australian Traineeship System (Cargill Meat Processes Pty Limited) v Ramage [2004] NSW WCC PD 31; Wyong Shire Council v Paterson [2004] NSW WCC PD 45; Fraternity Bowling & Recreation Club Ltd v Sartor [2004] NSW WCC PD 47; Transfield Pty Limited v Bertinato [2004] NSW WCC PD 57; Thompson v Exparnet Pty Ltd t/as T & G Sheetmetal Services [2005] NSW WCC PD 14).
The absence of a compact disc or transcript does not, of itself, constitute a ground of appeal nor is it necessarily fatal to the conduct of a fair review of the Arbitrator’s decision. The task of the Presidential Member is to ‘review’ the Arbitrator’s decision, wherever it is possible to do so, either ‘on the papers’ or after an oral hearing. Presidential review under section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) is not a hearing de novo. The particular circumstances of each case will influence the course of the review.
In this matter no oral evidence was given at the arbitration. The Arbitrator has provided written reasons for decision. The parties have now had sufficient time to make further submissions on appeal taking into account the inadequacies of the transcript of the arbitration. I do not accept Mr Rohloff’s submission, that this disadvantages him in terms of the conduct of an appeal. In my view these inadequacies are not an impediment to proceeding to a fair review of the Arbitrator’s decision. This is not a case where the Arbitrator provided an ex tempore decision and therefore there is no record of the reasons for that decision. In this case the parties have been provided with a statement of reasons for decision in accordance with section 294 (2) of the 1998 Act.
Fresh Evidence
The Arbitrator’s Orders
The Arbitrator refused both parties leave to file late documents in the proceedings before him. These late documents were:
For the Applicant:
· Mr Rohloff’s statement of evidence, dated and filed 19 August 2003 and,
· The MAC of Dr Lennon, dated 11 July 2003.
For the Respondent:
· Reply, filed 19 August 2003 which included:
o Reports of Dr Mastroianni, dated 9 November 1999 and 18 June 2001, and
o Report of Dr Meachin, dated 27 June 2002.
In relation to the Medical Assessment Certificate of Dr Lennon, Approved Medical Specialist, the Arbitrator stated:
“….This was an examination for the purposes of assessment of the percentage of permanent loss of efficient use or impairment attributable to the Applicant’s claimed injuries to his left leg and foot. It is not in my view probative evidence of the factual issues of continuing incapacity for work or of the medical basis of such incapacity, a threshold issue in this case. Before the date of the arbitration, the Applicant had given no notice of his intention to rely on the MAC, had not served it on the Respondent when it became available on or about 16 July 2003, some 6 weeks before the date of the arbitration in accordance with Rule 38 [Workers Compensation Commission Rules 2003] and section 290 of the WIMWCA, [the 1998 Act] even though the Applicant opposed the Respondent’s application for leave to file its Reply. Even if that is incorrect, I find that the MAC is not sufficient to satisfy me on the issues of fact (history and continuing incapacity for work) and is not probative on the medical issues required to support the Applicant’s continuing incapacity claim. In any event, it would also be unfair to admit the document in that way at such a late stage of the case, in order to fill a gap in the Applicant’s medical evidence.”
Mr Rohloff did not file a statement of his evidence with his ‘Application to Resolve a Dispute’ as required by Rule 38 of the Workers Compensation Commission Rules 2003. The Arbitrator noted that this failing was raised with Mr Rohloff’s legal representative at the teleconference in this matter on 12 August 2003 however I note there were no directions made in relation to the filing of late documents at the teleconference. The conciliation/arbitration hearing was held on 26 August 2003. Mr Rohloff’s statement was filed in the Commission on 19 August 2003, however it appears from the Commission file that it was misfiled and was not forwarded to the Arbitrator prior to the arbitration hearing. The Arbitrator states, in his reasons, that he did not receive a copy of the statement until 4 September 2003, after the arbitration hearing. The statement was not dated, nor was it accompanied by proof of service on the Respondent. The Arbitrator, at the arbitration, refused leave for Mr Rohloff to file his written statement or to give oral evidence. The reasons for this were that:
“…I had already decided at the time that the Applicant’s medical evidence did not satisfy me in relation to the critical issue of continuing incapacity or any medical history of treatment or consultation going to the issue of incapacity after the medical evidence in April 2002. Therefore I saw no prejudice to the Applicant, or special circumstances, when refusing leave to rely on the Statement, produced some 11 months after the Application was filed. I had, partly on the Applicant’s submission, rejected the Respondent’s Reply for being some 11 months out of time. Therefore, despite my discretion to grant leave to admit the Applicant’s Statement, it served no real purpose in filling the gaps in the Applicant’s case.”
The arguments in support of the two applications (late evidence before the Arbitrator and fresh evidence on appeal) clearly overlap. It is appropriate to deal with the applications in the chronological order in which they have arisen. Clearly, if the Arbitrator is found to have erred in refusing to admit the late evidence in the arbitration proceedings, then the argument for admission of substantially the same material on the same issue, as ‘fresh evidence’ on appeal, is compelling.
Did the Arbitrator err in refusing to grant leave to file the Medical Assessment Certificate?
The Appellant submits that the Arbitrator erred in refusing to grant leave to rely upon the Medical Assessment Certificate of Dr Lennon, because pursuant to section 326(2) of the 1998 Act, leave is not required in order for a party to rely upon a Medical Assessment Certificate. Section 326(1) sets out the matters upon which a Medical Assessment Certificate is presumed to be correct. Section 326(2) provides that “[A]s to any other matter, the assessment certified is evidence (but not conclusive evidence) in any such proceedings”.
The Appellant submits, in the alternative, that the Arbitrator rejected the Appellant’s application to rely upon the Medical Assessment Certificate on an invalid basis. The Medical Assessment Certificate could not been foreshadowed in the ‘Application to Resolve a Dispute’ (as required by Rule 38 of the Workers Compensation Commission Rules 2003), because it was not in existence at the time of the filing of the dispute.
The Appellant also argues that the Arbitrator erred in failing to give due weight to Dr Lennon’s report (the Medical Assessment Certificate) by finding it not probative of the factual issue of continuing incapacity for work. The Appellant submits that the Medical Assessment Certificate is probative evidence of the issue of incapacity, as it contains uncontested evidence that the Appellant had, and will continue to suffer, permanent incapacity to perform his pre-injury duties.
The Respondent argues that the Arbitrator did not err in refusing to admit the Medical Assessment Certificate, as it would not have led to any different result (Harrison v Schipp (2002) 54 NSWLR 612 and, that in any event, the Medical Assessment Certificate is not binding in relation to incapacity and was sought only to determine permanent impairment. The Respondent submits that the Arbitrator did in fact consider the Medical Assessment Certificate although he was under no obligation to do so, yet preferred the opinions of Dr Berry and Dr Garvan. The Arbitrator gave due consideration to the permanent impairment assessment as provided by Dr Lennon, and gave due weight to the evidence contained in the Medical Assessment Certificate.
The Arbitrator erred in purporting to refuse to grant leave to Mr Rohloff to file Dr Lennon’s Medical Assessment Certificate. The Medical Assessment Certificate was not a ‘late document’ and leave was not required. The Registrar issues a Medical Assessment Certificate, given by an Approved Medical Specialist, to both parties. The effect of section 326 of the 1998 Act is to put the Medical Assessment Certificate into evidence in Commission proceedings, by operation of statute. It is not necessary for a party to indicate reliance upon a future Medical Assessment Certificate, at the time of filing an Application or a Reply and indeed it is unlikely that they will be in a position to do so, not knowing at that time who is to conduct the medical assessment or what the report will say. In this matter Dr Lennon’s Medical Assessment Certificate was issued to both parties by the Registrar on 16 July 2003. There was no need for Mr Rohloff to serve it on the Respondent and, in my view, the Respondent has no grounds to complain about Mr Rohloff relying upon the Medical Assessment Certificate in the arbitral proceedings. There is no disadvantage to either party, in that they were aware of the contents of the Medical Assessment Certificate and had the opportunity to comment on it.
The Medical Assessment Certificate is conclusive evidence of the matters referred to in section 326(1) of the 1998 Act. As to the relative weight and relevance to be given to the Medical Assessment Certificate in relation to other issues, and to other evidence, this is a matter for the discretion of the Arbitrator (see discussion in Aluminium Louvres & Ceilings Pty Ltd v Zheng [2004] NSW WCC PD 26). It is only where the Arbitrator can be said to have failed to exercise his discretion fairly and according to law that his decision should be overturned. This occurs where the Arbitrator has acted upon a wrong legal principle, allowed irrelevant considerations to influence the decision, made a material mistake as to the facts or failed to take into account relevant and material considerations (House v The King (1936) 55 CLR 499 at 504-505; Norbis v Norbis (1986) 161 CLR 513 at 520, Re National Roads and Motorists’ Association Ltd [2003] FCAFC 206 at [21] to [21]).
In this matter the Arbitrator found that the Medical Assessment Certificate was “not probative on the medical issues of fact (history and continuing incapacity for work)”. The Arbitrator gives no reasons for this finding. He does not outline the alleged deficiencies in the Medical Assessment Certificate, nor why, relatively, the other medical evidence was preferred. The Arbitrator concluded that there was a “profound lack of medical evidence” on the issue of incapacity. However the fact that the Arbitrator had no evidence from the worker in relation to the history of the injury, and the facts of his incapacity was critical to his assessment of the probative value of the Medical Assessment Certificate. The Arbitrator sought to rely upon the Medical Assessment Certificate to provide the worker’s history of the injury and incapacity. The result was that Arbitrator allowed irrelevant considerations to influence the weight to be given to the Medical Assessment Certificate. In this matter, having no statement from Mr Rohloff, the Arbitrator sought to establish the basic facts that supported the claim from the Medical Assessment Certificate and, necessarily, found that the Medical Assessment Certificate did not adequately provide them.
Did the Arbitrator err in refusing to grant leave to Mr Rohloff to file his statement and/or refusing to give it due weight?
The granting of leave to file late documents in proceedings before an Arbitrator, including medical evidence, a Reply or submissions, is governed by section 290 of the 1998 Act, Rules 38, 39, 40, 41, 42, 43(7) and 44 of the Workers Compensation Commission Rules 2003. Practice Direction No 9 provides as follows:
“…Applications to admit late documents will be resolved by the Arbitrator in accordance with section 355(1) of the Act.
The Arbitrator will generally deal with the application to admit late documents at the teleconference, held in accordance with the Registrar’s Guideline for The Practice of the Conciliation/Arbitration Process in the Workers Compensation Commission.
In determining an application for leave to lodge late documents, the Arbitrator will take into consideration:
· the submissions of the parties, including, if any, oral or written objections to the grant of leave,
· the effect, if any, on the timely resolution of the dispute,
· the extent of the prejudice to the other parties, if any, that would result from granting leave,
· the requirements of the Act and the Rules, and
· the objectives of the Commission.”
The relevant factors and principles have also been discussed in ADCO Constructions Pty Ltd v Ferguson [2003] NSW WCC PD 21 and a number of other Presidential decisions.
It is not in dispute that Mr Rohloff did not file his statement at the time of filing his ‘Application to Resolve a Dispute’ in the Commission. He filed it one week after the telephone conference, being one week prior to the conciliation arbitration conference (which was held on 26 August 2003, not 26 September 2003 as stated in the Arbitrator’s Reasons for Decision (at paragraph 14), dated 22 September 2003). As it happens, the Respondent filed the ‘Reply’ on the same day, 19 August 2003.
Mr Rohloff submits that the Arbitrator erred in refusing to admit his statement, in circumstances where relevant wage records and other documents in the possession of the Respondent were not available because the Respondent filed no Reply. Mr Rohloff argues that the Arbitrator’s refusal to allow leave to file his statement caused him substantial injustice.
The Respondent submits that the Arbitrator did not err in refusing to admit the Appellant’s statement. It argues that Mr Rohloff objected to the Respondent relying upon its late Reply and then chose to run the matter on an ex parte basis without the benefit of a statement, wage material, or the Medical Assessment Certificate. The Respondent argues that the Arbitrator treated both parties equally in refusing to allow the late Reply and the late statement so there was no prejudice particular to the Appellant in the refusal.
The Respondent further submits that the Arbitrator did not err in refusing the statement of the Appellant, as after having found that there was no incapacity for work, there was no prejudice to the Appellant in refusing the statement.
Due to administrative error in this matter the Arbitrator did not receive a copy of Mr Rohloff’s statement until after the arbitration hearing was completed. Despite not having seen the statement he ruled against its admission and refused Mr Rohloff leave to give oral evidence. The Arbitrator’s reasons do not evince a consideration of the factors in Practice Direction No.9. The Arbitrator’s reason for these refusals appears to be based purely on the lateness of the filing and his view of the veracity of the medical evidence before him on the issue of incapacity. The reasons would have benefited by reference to the Practice Direction and to relevant decided cases in the Commission.
In my view the Arbitrator did not exercise his discretion fairly and lawfully in refusing to allow Mr Rohloff to file his statement as a late document. It was necessary for the Arbitrator to consider the totality of the evidence and the documents before him. Clearly the admission of the statement was connected to the issue of the admission of the Reply and medical reports of the Employer. It is equally clear that the parties were tardy in terms of their compliance with the Commission’s Rules and procedural guideline. However, proceeding without the bulk of the relevant evidence, where that evidence was filed well prior to the conciliation and arbitration, resulted, in this case, in a “substantial injustice” to the worker. In addition, the Medical Assessment Certificate was available to the parties and the Arbitrator from July 2003, but was not, as discussed above, properly taken into account. The Arbitrator’s finding that he was “not satisfied on the evidence that the Applicant has established, factually or medically, that any incapacity for work existed on or after 4 January 2002” is a direct result of the exclusion of most of the relevant evidence and the Medical Assessment Certificate.
Filing of the Late Reply
In this matter the Respondent filed the ‘Reply’ several months after it was due in accordance with the Rules. On the basis of the failure to file a Reply the Arbitrator considered that the Respondent “had no standing in the proceedings. The Respondent was permitted to observe the proceedings. . .The proceedings therefore proceeded on an ex parte basis.” The Reasons for Decision also state that “the Respondent was not represented in the proceedings” although the transcript records the Respondent’s solicitor’s comments “on the record”. The basis of this approach is not clear to me. The Respondent appeared and was legally represented at the conciliation arbitration. The decision made by the Arbitrator indicates that, in relation to payments of lump sum compensation, orders were made “by consent”.
The failure to file a Reply does not mean the Respondent automatically has no role or “standing” in proceedings before the Commission. The Commission is not a Court and is not bound by strict ‘pleadings’ or the rules of evidence (section 354 of the 1998 Act; Far West Area Health Service v Radford [2003] NSW WCC PD 10; Barbour v BHP Steel Pty Limited [2004] NSW WCC PD 42). While the consequences of non-compliance with the Commission’s Rules may be to deny the Respondent the opportunity to rely upon a formal ‘Reply’ or to call oral evidence, the extent of it’s participation in the proceedings otherwise, is a matter for the discretion of the Arbitrator. Clearly this must be so, to enable the parties, at any time, to come to an agreement of the dispute that is suitable to both of them (section 355 of the 1998 Act; ‘The Practice of the Conciliation/Arbitration Process in the Workers Compensation Commission’). Whether or not the Respondent is permitted to make submissions at the arbitration, in the absence of a filed Reply, is also a matter for the Arbitrator, to be determined in accordance with the principles of procedural fairness and the achievement of the Commission’s objectives of a fair and timely resolution of the dispute.
The Employer’s late filing of the Reply was significant. It was not simply a few days late, it was nearly ten months late, and no explanation of the delay was given. Unfortunately the Arbitrator gave no reasons for his decision not to allow the Employer to file the Reply late, although the possible prejudice to the Worker, given the lateness of the filing, is obvious. In my view there were several reasons why the Arbitrator may have refused the Employer leave to file the late Reply, including the inadequacy of the explanation, prejudice to the worker who had filed his evidence and proceeded to a telephone conference in the absence of a response from the Employer, the flouting of the requirements of the Rules and the objectives of the Commission.
Non-compliance with the Commission’s Rules and procedural guidelines is a significant matter and the exercise of discretion by an Arbitrator in relation to late documents must be considered on the facts of each case. In the majority of cases it might be expected that non-compliance with the Rules would lead to the refusal to allow the filing of late documents. Ultimately however, the ‘avoidance of injustice’ is the intended result.
This dispute has now been on foot in the Commission since October 2002. This delay is relevant to the future conduct of the matter. While I am of the view that the Arbitrator did not err in refusing to grant leave for the filing of the late Reply, I am also of the view that it is in the interests of the fair finalisation of this dispute that all the relevant documents are now put before an Arbitrator. To this end the admission of ‘fresh evidence’ on appeal, being the Statement and the Reply, is considered below.
Should the ‘late documents’ filed by both parties now be admitted on the appeal?
The Appellant submits that leave should be granted to admit evidence into the appeal proceeding that was not presented to the Arbitrator. The Appellant seeks to have his statement, dated 27 January 2005, admitted into the appeal proceedings. This appears to be an update of the earlier statement, dated 19 August 2003, which the Arbitrator refused to admit. The Appellant submits that given the conduct of the Respondent in failing to lodge a Reply in the arbitral phase caused him difficulties in preparing his appeal. He argues that leave should be granted on appeal to admit his statement, which contains wage information that the Respondent has not supplied as a consequence of not filing a Reply.
The Respondent submits that fresh evidence should not be admitted on appeal unless the Respondent is also permitted to file late documents, namely its Reply and attached medical reports. Allowing only the fresh evidence of the Appellant would cause an injustice and would be unfair and disadvantageous to the Respondent considering that both parties were ten months late in lodging the documents that were subsequently rejected by the Arbitrator. The Respondent argues that admission of the statement and medical evidence of the Appellant in this case would not have led to a different result (Harrison v Schipp (2002) (2002) 54 NSWLR 612).
‘Fresh evidence’ on appeal is governed by section 352(6) of the 1998 Act, which provides as follows:
“(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.”
Practice Direction No. 6 sets out the process for seeking leave of the Commission to give ‘fresh evidence’ on appeal.
These matters have largely been addressed in the discussion above. The argument for the admission, on appeal, of Mr Rohloff’s statement, and the Reply and attached medical reports, is compelling, and I grant leave for their admission. The Medical Assessment Certificate is admissible by operation of section 326(2) of the 1998 Act.
Did the Arbitrator fail to give due weight to the evidence of Dr de Souza, Dr Berry and Dr Garvan on the issue of incapacity?
The Appellant submits that the Arbitrator also erred in failing to give due weight to his medical reports. The report of Dr Berry, which provided probative, uncontested evidence that the Appellant suffered an incapacity for work from 4 January 2002 to date. The report of Dr de Souza also supports the view that the Appellant was unable to continue performing his pre-injury employment, and the Arbitrator therefore erred in failing to give due weight to that evidence. Dr Garvan, the Appellant’s treating specialist, certified the Appellant fit for pre-injury work from 23 July 2001, although the WorkCover Certificate documenting this was not filed in the Appellant’s Application but is held in the Respondent’s file.
The Respondent submits that the Arbitrator did consider and give due weight to the evidence of Dr de Souza, Dr Garvan and Dr Berry. Dr De Sousa noted in his report of 20 March 2002 that he had not seen the Appellant since September 1999, so was in no position to provide an opinion as to incapacity. Dr Garvan did not address the Appellant’s capacity to work after January 2002, and Dr Berry on 15 April 2002 noted that the Appellant was fit for pre-injury duties with restrictions only as to kneeling crouching and climbing of stairs. There was no report regarding incapacity after 15 April 2002, so the Arbitrator made no error in giving only the appropriate weight to the Appellant’s medical evidence.
The errors alleged by the Appellant are matters of discretionary judgement, on the basis of the Arbitrator’s view of the evidence before him. As with any exercise of discretion by an administrative decision maker, this discretion must be exercised lawfully and fairly, taking into account the scope of the discretion and the objects of purpose for which it is conferred. To succeed on the grounds of appeal the Appellant must demonstrate that the Arbitrator has failed to exercise his discretion fairly and lawfully. Interference with an Arbitrator’s discretionary judgement as to the weight of evidence should only be done where it is manifestly obvious the discretion has so miscarried that it has not been exercised fairly and lawfully.
The Arbitrator failed to give any reasons for preferring the evidence of Dr Berry, other than that he agreed with his conclusions. The Arbitrator has not discussed the relative merits of the medical reports nor their probative value to the issues for determination. As discussed above, the Arbitrator’s findings on the lack of factual evidence as to incapacity influenced his assessment, such as it was, of the whole of the medical evidence. In the absence of any reasons for this assessment I am unable to conclude that he gave the evidence appropriate weight in coming to his decision.
Failure to determine the matter as pleaded
The Appellant submits that the Arbitrator erred in not accepting that his probable weekly earnings were $900 as pleaded. In the absence of any claim to the contrary by the Respondent, the Appellant’s claim should have been accepted. Furthermore the Appellant submits that his statement also contains sufficient evidence to support the claim that his probable weekly earnings but for the injury, are as pleaded.
The Respondent submits that the Appellant has not sufficiently made out this ground of appeal and that the appeal should accordingly be dismissed.
This ground of appeal does not disclose an error of law, fact or discretion by the Arbitrator. In the informal, less technical environment of the Commission it is not necessary or desirable to rely upon strict pleadings to define the issues between the parties (see discussion of this issue in Far West Area Health Service v Radford [2003] NSW WCC PD 10).
Failure to take into account formal admissions and deemed admissions
The Appellant submits that the Arbitrator erred in imputing deemed admissions into the proceedings when refusing leave to the Respondent to file a Reply. The Arbitrator wrongly implied in his determination that if a Reply is not filed, or is rejected, the onus falls to the applicant to prove by way of evidence, all allegations pleaded in the Application. In contrast, the Appellant submits that where a Reply is rejected, the matters pleaded are not disputed, and are therefore admitted. The Appellant submits that in the alternative, if the onus does fall to him to establish all components of the 1987 Act for an entitlement to compensation, leave should have been granted in the arbitration or now on appeal to admit evidence in support of this. Failure to grant leave would impose a substantial injustice on the Appellant.
The Respondent submits that the Appellant does bear the onus of establishing all elements of the claim and notes that the Appellant objected to the Respondent’s Reply being admitted, and elected to have the matter heard ex parte. The Appellant cannot now seek to be treated preferentially by the Commission, and allowed to introduce evidence that could have been addressed in the Reply.
The Appellant’s submission is rejected. This ground also does not disclose an error by the Arbitrator. The onus of proving the relevant elements of the 1987 Act, in order to found an entitlement to workers compensation by way of weekly benefits, is generally on the worker.
A Respondent’s failure to file a Reply, or to have a Reply admitted as a late document in arbitral proceedings, does not equate to an admission of the matters alleged in an ‘Application to Resolve a Dispute’ filed in the Commission. Ultimately an Arbitrator must be satisfied that the statutory entitlement is made out, including proof of issues such as ‘worker’, ‘injury’, ‘incapacity’ and engagement in ‘suitable employment’. This involves an examination of the evidence and discretionary judgment as to its relative probative value on the issues for determination. It remains open to an Arbitrator to determine that a worker has not proven these issues, even where the Respondent files no evidence in reply. The Arbitrator must carefully set out his or her “findings on material questions of fact, referring to the evidence or other material on which those findings were based”, his or her “understanding of the applicable law” and “the reasoning process” that led to the conclusions made (Rule 73).
Failure to find incapacity
The Appellant submits that the Arbitrator erred in finding that the Appellant suffers no incapacity for work, in the face of a medical finding by Dr Lennon, Approved Medical Specialist, that the Appellant suffers from 18% loss of efficient use of his left leg.
The Respondent submits that the Arbitrator did not err in failing to find incapacity, because there was no probative medical evidence or wage loss material available at the time of the Medical Assessment Certificate to support a finding of ongoing incapacity resulting from the 18% loss of use of the left leg. The report of Dr Berry dated 15 April 2002 was the latest report provided by the Appellant, in which it was noted that the Appellant was fit to continue working with only minimal restrictions. The Arbitrator could not come to the conclusion that the Appellant had an incapacity for work for the periods claimed, as there was no evidence of such incapacity.
This issue arises as a consequence of the Arbitrator’s decisions in relation to the admission of relevant evidence, which is discussed above. It does not disclose a further error by the Arbitrator.
Review of the Arbitrator’s Order as to Costs
The Arbitrator made ‘no order as to costs in respect of the claim for weekly compensation’. No reasons are given for this order. The making of an order for costs is a matter for the discretion of the Arbitrator in each case (section 341 of the 1998 Act). The Appellant states that he appeals this decision but makes no submissions on the point. The Respondent also makes no submissions on this issue.
This ground of appeal is not made out.
Future Conduct
This matter should be remitted to a different Arbitrator to have the dispute about weekly benefits compensation determined. The documents now before the Commission include the evidence that was before the Arbitrator, including the Medical Assessment Certificate of Dr Lennon, and the evidence admitted on appeal.
Decision
The decision of the Arbitrator is revoked. The matter is remitted to a different Arbitrator for determination, of the Applicant’s entitlement, if any, to compensation by way of weekly benefits from 4 January 2002 to date and continuing.
Dr Gabriel Fleming
Deputy President
16 March 2005
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DR GABRIEL FLEMING, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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