Ross v Zurich Workers Compensation Insurance

APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
__________________________________________________________________

CITATION:	Ross v Zurich Workers Compensation Insurance [2002] NSWWCCPD 7
APPELLANT:	Darrin Charles Ross
RESPONDENT:	Zurich Workers Compensation Insurance
EMPLOYER:	McKean and Son Pty Ltd
FILE NO:	WCC 106-2002
DATE OF DECISION:	18 November 2002
PRESIDENTIAL MEMBER:	Dr Gabriel Fleming Deputy President
DECISION UNDER APPEAL:	Award for the Respondent
DATE OF DECISION UNDER APPEAL:	7 August 2002
HEARING:	Leave Granted 29 October 2002
Appeal Determined ‘On the Papers’
REPRESENTATION:	Appellant:
Gerard Egan, Solicitor
Respondent:
Mark Schreuder, Solicitor
ORDERS MADE ON APPEAL:	The appeal is not allowed. The decision appealed against is confirmed.

THE APPEAL

On 30 April 2002 Darrin Charles Ross (‘the Applicant / the Appellant’) lodged an ‘Application to Resolve a Dispute’ with the Workers Compensation Commission (‘the Commission’). The Applicant claimed to have suffered an injury to his neck, back and shoulders when at work for McKean and Son Pty. Ltd. on 30 April 2001. A claim for compensation was made on 3 May 2001. The relevant worker’s compensation insurer is Zurich Australia Workers Compensation (‘the Respondent’). Weekly payments of compensation were made from 10 May 2001 until 16 April 2002 and all medical expenses in that period were met. On 12 April 2002 the Respondent wrote to Mr. Ross declining liability for the claim on the ground that his employment with McKean and Son Pty. Ltd. was not a substantial contributing factor to his injury. The application to the Commission sought an order that Mr. Ross continue to be paid weekly compensation by way of income support plus medical expenses in the sum of $2581.15.
The parties attended a telephone conference on 1 July 2002 and 9 July 2002, and a conciliation conference and arbitration hearing on 15 July 2002. All parties were legally represented throughout the proceedings. The parties were unable to come to a settlement of the dispute acceptable to all of them. The Arbitrator proceeded to obtain their agreement as to the facts and issues in dispute and to hear oral submissions. On 7 August 2002 a Certificate of Determination was issued which recorded the decision in the matter as follows: ‘Award for the Respondent’. The Applicant lodged an appeal against this decision on 4 September 2002. This is the determination of the appeal.

THE ISSUES IN DISPUTE

The primary issue for determination by the Arbitrator was whether Mr. Ross’s employment was a substantial contributing factor to his injury (Section 9A of the Workers CompensationAct 1987). On this issue the Arbitrator found for the employer. The grounds of the appeal as stated in the appeal document are:
. . . that the Arbitrator’s decision was:
a.Against the weight of the evidence
b.Specifically referring to the silence of treating medical practitioner (paragraph 29 and 38) on a medical certificate should not have been taken into consideration as it was a subsequent certificate
c.Was silent as to the Applicant’s Psychological and Fibromyalagia as referred to by Dr Hayter (sic)
d.Was given insufficient or no time to explore settlement (sic)
e.A non-decision as to ongoing medical and like expenses.
The Applicant had a change of legal representative after the filing of the Appeal. A hearing on the question of leave to appeal was held on 29 October 2002 and the Applicant’s then legal representative made a number of additional submissions in relation to the grounds of the appeal. In summary, the Applicant’s further claim was that the Arbitrator had failed to properly consider the Applicant’s evidence as to the factual circumstances of his employment and of the injury. This failure to fully consider the correct history affected the Arbitrator’s findings in relation to the medical evidence presented by the Respondent. The Applicant submitted that all of the Respondent’s medical evidence was premised on an incorrect history of the injury. To this extent, submitted the Applicant, the decision was based on irrelevant considerations and was against the weight of the evidence.
The Respondent resisted the appeal and filed written submissions. The Respondent also made oral submissions at the telephone hearing. The Respondent relied upon the medical reports submitted to the Arbitrator and the finding made by the Arbitrator that the Applicant’s employment was not a substantial contributing factor to his injury.

JURISDICTION

Section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the Act’) provides for an appeal against a decision of the Commission constituted by an Arbitrator. The appeal is heard by a Presidential member. The Commission is not to grant leave to a party to appeal unless the amount of compensation at issue on the appeal is at least $5000 and 20% of the amount awarded in the decision appealed against. An appeal must be made within 28 days of the date of the decision appealed against.
The Respondent filed written submissions to the effect that the decision subject to appeal did not concern an award in excess of $5000. The Respondent also submitted that the appeal was filed out of time. A telephone hearing was held on 29 October 2002. It was conceded at that hearing that the amount in dispute included weekly payments of compensation at the rate of $550.00 per week from 30 April 2002 and continuing and ongoing medical expenses in excess of $2500. As the decision denied the Applicant any award, the threshold of $5000 and 20% were met.
The Certificate of Determination was issued on 7 August 2002. The appeal is within time, having been filed on 4 September 2002.
Leave to appeal the Arbitrator’s decision was granted.

FRESH EVIDENCE

The Applicant submitted that the Commission should hear oral evidence from Mr. Ross and admit fresh medical evidence in the form of updates of medical reports. The Commission has a wide discretion in relation to the admission of new evidence in an appeal against a decision of an Arbitrator. Section 352(6) of the Act provides that:
. . . 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.
A number of authorities have considered the tests at common law for the introduction of fresh evidence in appellate proceedings before the courts. The relevant tests are firstly, that the evidence which is sought to be admitted on appeal was not available to the appellant at the time of the original proceedings or could not have been discovered at that time with reasonable diligence, and secondly, that the evidence is of such probative value that it is reasonably clear that it would change the outcome of the case (Wollongong Corporation v Cowan (1955) 93 CLR 435; McCann v Parsons (1954) 93 CLR 418; Orr v Holmes (1948) 76 CLR 632). These tests are addressed to the underlying principle of the need for finality in litigation and the importance of the ability of the successful party to rely on the outcome of the litigation. They are also addressed to the fundamental demands of fairness and justice in the instant case.
The principles developed by the common law for appellate court review are relevant, but not determinative of the exercise of discretion to admit fresh evidence pursuant to the statutory right of appeal under Section 352(6) of the Act. The factors relevant to the exercise of this particular discretion must be determined as a matter of statutory construction (CDJ v VAJ [1998] HCA 67).
The subject matter of the original proceedings is a critical factor in considering the exercise of the discretion to admit fresh evidence (CDJ v VAJ [1998] HCA 67 at paragraph 106). The Commission is concerned with the resolution of disputes for payment of compensation by way of weekly benefits, medical expenses and lump sum payments under the Workers CompensationAct 1987 and the Workplace Injury Management and Workers CompensationAct 1998. These acts provide a comprehensive statutory scheme governing the making of claims, substantiation of claims and acceptance or rejection of liability, expedited assessment of claims, and the determination of medical issues (Part 2 and Part 7 of the Act). The introduction of a new system of dispute resolution for these matters is embodied in the establishment of the Worker’s Compensation Commission. The intention of the legislature is clearly to provide a fair and expeditious means of resolving worker’s compensation disputes (Section 367 of the Act). There is a public interest in ensuring accessible procedures for the final and binding determination of injured worker’s entitlements under the worker’s compensation scheme.
The nature of the original proceedings before the Arbitrator is also relevant to the issue of whether fresh evidence or evidence in addition or in substitution for the evidence received should be admitted. It is important to consider what opportunity the parties had to fully and fairly present their evidence. Compliance with the statutory scheme should lead to particularization of a claim and the gathering of evidence to support or refute it early in the life of a dispute, well before an application to the Commission is contemplated.
Early disclosure of information in relation to a worker’s compensation dispute is a principle that is reinforced in the procedures of the Commission. The Interim Workers Compensation Commission Rules 2001 (‘the Rules’) require an Applicant to file all relevant evidence at the time of making an ‘Application to Resolve a Dispute’ and an employer/insurer to do likewise at the time of filing a Response to the Application. The parties have the option of identifying that evidence which is not immediately available and which will be submitted at a later date. The process of dispute resolution in the Commission involves the calling of the parties together in a telephone conference shortly after all documents are filed so that the status of the evidence and the prospects of settlement may be canvassed. In this case two telephone conferences were held.
Where oral evidence is to be given by a witness the Rules require that a written statement be provided. Rule 36 provides as follows:
36. Calling of witnesses
(1) A party that proposes to call a witness to provide oral evidence must include the name of that witness and a signed written statement by that witness:
(a)If the party is the applicant - with the application for dispute resolution, or
(b).. .
(c). . .
(2) A party may call a witness to give evidence where a statement has not been filed in accordance with subrule (1) only with the leave of the Commission.
(3) The Commission cannot grant that leave unless satisfied that admission of the evidence would prevent a substantial injustice to the party.
(4) An application for leave under this rule can only be made if the party lodges a written and signed statement setting out the evidence of the witness.
(5) This rule does not prevent a witness being summonsed in circumstances where the person refused to provide a written and signed statement.
The powers of the Arbitrator and the Presidential Member on appeal are also relevant considerations to the admission of ‘fresh evidence’ on appeal. Proceedings before an Arbitrator are informal and non-technical, they are not governed by the rules of evidence and they may be conducted in the absence of a formal hearing (Section 354 of the Act). The only avenue of appeal against a decision of an Arbitrator is to a Presidential Member (Section 350 of the Act). The Presidential Member may confirm the Arbitrator’s decision or revoke it and substitute a new decision in its place. Exercise of the discretion to admit ‘fresh evidence’ on appeal to a Presidential Member is one mechanism for ensuring the fairness and lawfulness of Arbitrator’s decisions, not otherwise amenable to review. Where the fresh evidence is proof of an injustice to a party in the determination of the original proceedings, then the case for its admission is obviously strong. However, clearly it is not the intention of the legislature that the review of a decision by an Arbitrator effectively becomes a full second hearing of the matter.
Appeal to a Presidential Member is concerned with claimed error, of law or fact, not with the hearing of evidence and determination of the matter at first instance. A Presidential member has a specific and limited role in the review of a decision of the Commission constituted by an Arbitrator. It is not an ‘appeal’ in the strict sense, as the Commission can receive further evidence. Similarly it is not a ‘rehearing’ of the matter where the Commission is re-exercising the power of the Arbitrator at first instance by hearing the matter ‘de novo’ and coming to a fresh decision based on all the evidence available at that later time (Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47 31 August 2000; Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616). The ‘review’ is by way of rehearing where the powers of the Commission to confirm, revoke or substitute a new decision are exercisable only where it can be demonstrated that the original decision of the Arbitrator is affected by ‘some legal, factual or discretionary error’ (Allesh v Maunz [2000] HCA 40 (3 August 2000)).
To allow appeals against the decisions of Arbitrators to become, in effect, hearings de novo would be to undermine the intention of the legislation and the system of simple, fair and expeditious resolution of worker’s compensation disputes that it creates. Given the statutory scheme, and the practices and procedures of the Commission, it is likely that only in demonstrably exceptional circumstances will the demands of justice in the instant case require the Commission, on review of an Arbitrator’s decision, to hear fresh evidence by way of previously unheard evidence of the Applicant worker. The same applies to the making of findings of ‘credit’ that should be made, if at all, at first instance. Decision-makers should in any event always be cautious in relying on findings of credit rather than evidence of the facts necessary to determine a lawful entitlement in the instant case (see comments of Kirby J in State Rail Authority v Earthline Constructions Pty Limited (in liquidation) (1999) 160 ALR 588 (‘State Rail’)).
The Applicant submitted that the Arbitrator had not properly considered his evidence and as a result it was vital for the Presidential Member, on appeal, to hear this evidence and make findings as to the ‘credit’ of the Applicant and as to the factual history of his injury. In particular, the Applicant argued that ‘equity and fairness’ demanded he be given the opportunity to fully outline to the Presidential Member the circumstances of his employment at the time the injury occurred. The Applicant argued that an inconsistent history of the injury had been reported to a number of doctors who examined him and as a result those reports were unsound. It was submitted that the Arbitrator thus relied upon evidence that was flawed by virtue of acceptance of the wrong history of the nature of Mr. Ross’s work at the time of the injury. This, it was argued, is central to the reason why the Arbitrator’s decision should be set aside. The Applicant also sought to obtain and file updated medical reports. It was not claimed that the Applicant’s medical condition had changed in any significant way.
The Respondent submitted that no new evidence should be allowed on appeal. The Applicant had sufficient opportunity to present his evidence at the conciliation stage of the proceedings, (which was said to have lasted several hours) and at the arbitration. This is not, submitted the Respondent, a case where some new medical investigation has been undertaken. The Respondent took the view that the medical reports were based upon the history provided by the Applicant and that to allow oral evidence by the Applicant and updated medical reports was to simply give the Applicant ‘another go’.
The evidence that is before me in this matter presents a particular difficulty in relation to the ‘review’ of the Arbitrator’s decision. The Commission file in relation to the determination of the matter by the Arbitrator contains the following documents;
For the Applicant;
Application to Resolve a Dispute plus attached reports as follows:
·Letter dated 10 April 2002 from Zurich Insurance to the Applicant
·      Letter dated 6 March 2002 from Discover Chiropractic Centre
·      Report of Dr Dyson-Berry, General Practitioner, dated 1 March 2002
·Reports of North Coast Radiology dated 25 October 2001 and 11 Feb 2002
·      WorkCover Certificates issued by Dr Hayter 19 March 2002
·      Report of Dr Hayter dated 1 Feb 2002
·      Report of Dr Langley.
For the Respondent;
·Reply to the Application for Dispute Resolution plus
·Report of Dr Slater dated 19 June 2001
·Report of Dr Parkington dated 12 December 2001
·Report of Dr Ashwell dated 18 February 2002.
In this case the admission of ‘fresh evidence’ in the form of a written statement or oral evidence from Mr. Ross raises issues that are of some significance for the Commission’s practice and procedure. Mr. Ross did not file a written statement of his evidence with his application, as required by the Rules. The conciliation proceedings before the Arbitrator were not recorded (consistent with Commission practice). The reasons for decision state that Mr. Ross gave unsworn evidence. It is not entirely clear where this oral evidence forms the basis for the findings. The reasons for decision draw largely from the written medical evidence.
There is no record of the Arbitrator having granted leave for Mr. Ross to give oral evidence in the absence of the previous filing of a written statement, nor of the other matters required by Rule 36. The arbitration stage of the proceedings was recorded and transcribed (consistent with Commission practice). The transcript shows that the Arbitrator reviewed Mr. Ross’s evidence, summarized it for the record and asked the parties if there was anything about that summary which was incorrect or that they wished to comment upon. The parties then made submissions that are recorded in the transcript.
This leaves the Commission, on appeal, without any original record of the Applicant’s evidence in this matter. To rely on the summary of the Applicant’s evidence is problematic where the duty of the Presidential Member on appeal is to review the decision for errors, including alleged errors of fact. One of the grounds of the appeal is that the decision is ‘against the weight of the evidence’. At the same time it is accepted by both parties that the Applicant had the opportunity at the conciliation stage of the proceedings to fully present his evidence to the Arbitrator. Although not documented, it was generally agreed that the parties were engaged in the conciliation process for more than one hour. The Applicant’s solicitor did not challenge the summary of the evidence presented by the Arbitrator at the arbitration phase of the proceedings and when given the opportunity to add to this evidence it was submitted that nothing further was needed.
In these circumstances I would be reluctant to allow the Applicant to present fresh evidence of the nature of the employment and the injury on appeal. However, in most cases before an Arbitrator it would also be expected that a written statement of the Applicant’s evidence would have been filed in the proceedings at the time of the filing of the Application. If not, then the requirements of Rule 36 should lead to a written statement being filed at some later time.

The Applicant sought to tender a statement made by him on 23 October 2001, in addition to seeking leave to permit the Applicant to give oral evidence on the appeal. The parties agreed that this statement was made at the request of the Respondent and was prepared by an officer of the Respondent. It is signed by Mr. Ross and sets out the circumstances of his employment and other relevant matters.
Given that there is no other original record of the Applicant’s evidence, it is fortuitous that the statement of 23 October 2001 is accepted by both parties as documenting Mr. Ross’s account of the circumstances of his injury. In the circumstances, leave was granted for this statement to be filed, in addition to the evidence previously before the Arbitrator (and contained on the Commission’s file). The Respondent’s objection on the basis that the document predates Mr. Ross’s evidence before the Arbitrator was noted, however, in my view nothing turns on this issue.
Leave to obtain additional medical evidence in the form of ‘updated’ medical reports was refused. The Applicant’s solicitor stated that Mr. Ross reports his condition as remaining basically static. In the circumstances I do not see how further medical evidence will be of any assistance to me in the determination of the appeal.

ON THE PAPERS REVIEW

Section 354 (6) of the Act provides that:
. . [I]f the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.
The President has issued Practice Direction No 1 of 2002 in relation to the determination of matters ‘on the papers’ that sets out a number of factors relevant to deciding whether to proceed in this way. For the reasons set out above, leave has not been granted Mr. Ross to give oral evidence. The Respondent initially submitted that the matter should be determined on the papers, but resiled from this position at the telephone hearing and sought an oral hearing in the matter.
Both parties have now had the opportunity to make submissions on the relevant issues. This occurred at the telephone hearing and a transcript of that hearing has been provided to the Commission and the parties. Neither party sought to provide anything further to the Commission in writing. I do not see how the fairness to the parties will be advanced in any way by having an oral hearing where the submissions already made are repeated.
In the circumstances there is no impediment to the Commission proceeding to determine the appeal on the basis of the evidence already filed before the Arbitrator, the additional evidence in the form of the statement of Mr. Ross submitted by leave, the appeal application and reply with attached submissions, and the transcript of the telephone hearing of 29 October 2002.

SUBMISSIONS

As stated above, the Applicant, through his first legal representative, claimed a number of grounds of appeal. His second representative did not specifically address these grounds but made submissions on other, albeit related, grounds. I have considered all of the matters raised in the appeal documents and at the telephone hearing on 29 October 2002. In summary, the Applicant submits that the decision of the Arbitrator is flawed because it relies upon a history of injury that is factually wrong or incomplete. The substance of this argument is that the ‘mechanism of injury’ must be fully appreciated in order to properly construe the medical reports.
The reasons for decision describe the evidence in relation to the Applicant’s employment at the time of the injury as follows:
Between 30 April 2001 and 2 May 2001 the Applicant was employed by the Respondent to slash asparagus between rows of vines using a tractor and slasher. The Applicant drove the tractor in reverse. He experienced pain in his neck and upper back and saw his medical practitioner (at paragraph 19).
The Arbitrator accepts that the Applicant sustained an injury in the course of his employment (at paragraph 38).
The Applicant argued that the Arbitrator had an obligation to ‘clarify’ the nature of the work that Mr. Ross was undertaking. He submits that the ‘Statement’ of 23 October 2001, now in evidence, provides additional information in relation to the nature of the work. The Applicant referred me to that part of the statement where Mr. Ross says:
The irrigation pipes are under the ground near the end of the rows. About at distance of about 2/3 (sic) up each row there is a trench about 1 foot deep and 18 inches wide, this is what caused the bump in the rows.
I know that the tractor was fitted with an air seat, however this did not stop the tractor from jarring my back.
This more expansive description of the nature of the work, submits the Applicant, could significantly impact on the medical and arbitral opinion as to whether this work was a substantial contributing factor to his injury. The history of the injury referred to by the Arbitrator is allegedly inconsistent with this description of the injury. The Applicant claims the Arbitrator wrongly relied upon the reports of Drs Ashwell and Parkington that were submitted by the Respondent. They should be compared to the reports of Dr Hayter (the treating general practitioner) and Dr Boyce, which are based on a full and accurate work history.
The Applicant makes a further point, that the Arbitrator placed substantial weight on the fact that Dr Hayter’s reports were silent as to whether the Applicant’s employment was a substantial contributing factor to the injury. The Applicant submitted that Dr Hayter, having earlier submitted reports that stated that Mr. Ross’s work was a substantial contributing factor to the injury, was not required to repeat this claim on subsequent, standard form, reports. It should be noted that these earlier reports were not before the Arbitrator.
The Applicant submitted that the report of Dr Langley was misconstrued by the Arbitrator as being equivocal as to Mr. Ross’s prognosis and need for ongoing treatment. The Applicant claims that the reports of Dr’s Pilkington and Ashwell do not refer to an accurate history of injury and should have been given less weight by the Arbitrator when considering all of the evidence. Fundamentally, the Applicant claims, these doctors have not directed themselves to the effect of being catapulted out of the seat with your spine in a rotated position repeatedly and in a somewhat more violent manner than they seem to understand occurred (transcript of 29 October 2002 at page 16).
The Respondent relied upon the medical reports of Drs Ashwell and Pilkington. It submitted that the Applicant had ample opportunity to present an accurate picture of his injury to the doctors who examined him and to the Arbitrator in the conciliation and arbitration proceedings. The Respondent’s representative submitted that the conciliation proceedings lasted for ‘several hours’ and that Mr. Ross, who was legally represented, had ‘every opportunity’ to clarify any discrepancies or incompleteness in the medical evidence that was before the Arbitrator. At no stage were the concerns that are now raised put to the Arbitrator or the Respondent. The Respondent argued that the Applicant is essentially seeking to have the matter heard a second time.

FINDINGS AND REASONS

The Applicant relied to a large extent on the submission that the Arbitrator had erred in relying on an incorrect or incomplete history of the how the injury occurred. To support his claim the Applicant refers to the express, albeit brief, findings of the Arbitrator in relation to the circumstances of the injury. The Applicant also relies upon the brief recitation of the history in the reports of the Respondent’s doctors, which were preferred by the Arbitrator.
The Applicant has, in my view, failed to demonstrate an error of fact by the Arbitrator in this regard. I accept that the reasons for decision deal only in summary form with the history of the injury. It is clear from the reasons for decision that the Arbitrator considered all of the medical evidence that was before him. This included the reports of Drs Hayter and Boyce. I have read these reports, in particular their reference to the nature of the work done by the Applicant when the injury occurred. I have also read the reports of Drs Pilkington, Ashwell and Slater. I can find no significant difference in the description of the injury in all of these medical reports. True, some are more detailed than others. Dr Hayter for example, in his report of 1 February 2002 states that:
Mr. Ross was performing tractor driving duties over a 3 day period. He would drive over bumps in the ground that continuously bounced him in the air off the seat. He drove with his head turned both directions at different times.
Dr Pilkington, whose report the Applicant argues should be disregarded because of the ‘incorrect history’ on which it is based, states:
Mr. Ross said that he was driving a tractor. He had to do a lot of reversing over a period of two days and this involved twisting to the left and right. The tractor was driving on bumpy ground.
It should be remembered that these reports were provided after an examination of Mr. Ross and after he had given the doctors the history of the injury in his own words.
The parties had the opportunity to give their evidence at length at the conciliation and arbitration hearing. The transcript of the arbitration records the Arbitrator’s summary of the evidence, in so far as it is relevant to this issue, as follows;
The evidence that has been put to me by the applicant is that on 30 April 2001 Mr. Ross commenced employment with McKean and Sons, and the nature of that employment was that he was requested to, or instructed to, drive a tractor to conduct slashing operations between rows of vines to slash asparagus, and he was instructed to drive the tractor in reverse and tells me that that was to avoid the build-up of debris in the radiator at the front of the tractor.
The parties were given the opportunity to correct this account and did not do so.
The Arbitrator has preferred the medical reports of Drs Ashwell and Pilkington and is entitled to do so. The Arbitrator does not give detailed reasons for this preference except for stating that it was based on the fact that these doctors had more recently examined Mr. Ross and had specifically addressed the issue of whether Mr. Ross’s employment was a substantial contributing factor to his injury. I do not accept that these reports are, on their face, based on an incorrect or incomplete account of the injury. Despite the brevity of the reference to the history of the injury in the ‘findings and reasons’ of the Arbitrator I am satisfied, from reading the statement of reasons as a whole, that the reports were fully considered. Questions of weight and relevance of evidence are clearly matters that the Arbitrator must determine.
The Applicant has also submitted that the decision of the Arbitrator is against the weight of the evidence. I am not satisfied that this ground has been made out. The Arbitrator had ample evidence, in the form of reports from Drs Pilkington, Ashford and Slater, to support the decision.
The Applicant argues that the Arbitrator erred in that specifically referring to the silence of treating medical practitioner (paragraph 29 and 38) on a medical certificate should not have been taken into consideration as it was a subsequent certificate. Without taking evidence directly on this issue, (including sighting the original certificates and instructions on the standard forms) I am not in a position to determine whether this was in fact an error on the part of the Arbitrator. Ultimately however, I am of the view that even were the Applicant successful in proving the Arbitrator was in error on this issue, the ‘error’ is not such that the Arbitrator would have come to a different decision.
The Applicant argued that the decision was silent as to the Applicant’s Psychological and Fibromyalagia as referred to by Dr Hayter (sic). These claims do not appear elsewhere in the evidence and were not pressed by the Applicant at the conciliation conference and arbitration hearing. The Applicant’s claim dated 30 May 2002 and made on the Employer pursuant to Section 65(1) of the Act, describes the nature of the claim as an impairment of the back and neck. This document was filed with the Application for Dispute Resolution in the Commission. It is spurious to now assert that this was an additional matter before the Arbitrator and was not dealt with. It simply was not raised and there is no error attached to the Arbitrator not referring to it in the decision.
The Applicant submitted that he was given insufficient or no time to explore settlement. While no further details of this alleged ground of review were provided, I accept that the Arbitrator has an obligation, pursuant to Section 355 (1) of the Act to use his or her ‘best endeavours to bring the parties to a dispute to a settlement that is acceptable to all of them’. Not to do so would be an error of law. I do not accept that this ground has been made out. The parties agreed that an extensive conciliation process was undertaken, lasting somewhere between one and three hours. Mr. Ross and his legal representative participated in that process, as did the representative of the Respondent. Prior to this the parties had participated in two telephone conferences where the possibility of settlement was discussed.
The final ground of review claimed by the Applicant was that the decision was a non-decision as to ongoing medical and like expenses. This is clearly an untenable ground. Having found that the Respondent is not liable for the Applicant’s injury, it is self evident that the Respondent is not liable for the payment of medical expenses that were reasonably necessary as a result of the injury.

DECISION

The appeal is not allowed. The decision appealed against is confirmed.

COSTS

Section 341 of the Act provides that the Commission has full power to determine by whom and to what extent costs are to be paid.
The Appellant/Applicant has been unsuccessful in the appeal. Section 345 of the Act provides for Costs Penalties Where Appeal Unsuccessful as follows:
(1)On an appeal from the Commission constituted by an Arbitrator to the Commission constituted by a Presidential member:
(a)If the appellant is the claimant and is unsuccessful on the appeal, the Commission must not make an order for payment of the appellant’s costs on the appeal by any other party to the appeal, or
(b)If the appellant is an insurer (other than a licensed insurer that maintains a statutory fund under the 1987 Act) and is unsuccessful on the appeal, the Commission may order the insurer to pay to the Authority for payment into the WorkCover Authority Fund, an administration fee of $1000 or such other amount as may be prescribed by the regulations.
(2)If the appellant in any such appeal is a licensed insurer that maintains a statutory fund under the 1987 Act and is unsuccessful on the appeal:
(a)The insurer’s costs on the appeal, and
(b)The costs of any other party to the appeal that the insurer is ordered to pay,
are not to be paid out of the statutory fund.
(3)If an appeal concerns lump sum compensation, weekly payments of compensation or medical expenses compensation, the appellant is considered to be unsuccessful on the appeal unless the decision on appeal results in a change in favour of the appellant in the amount awarded or ordered to be paid in the decision appealed against of at least $5,000 (or such other amount as may be prescribed by the regulations) and at least 20% of the amount awarded or ordered to be paid.
(4)An administration fee that an insurer is ordered to pay is recoverable as a debt due to the Authority.
(5)The Registrar is to notify the Authority of an order to an insurer under this Section to pay an administration fee.
At this stage I make no order as to costs but note that the parties should take the above provisions into account in coming to any agreement as to costs. Failing agreement, the parties may make application for an order as to costs.

Dr Gabriel Fleming
Deputy President

I certify that that this is a true and accurate record of the reasons for decision of Deputy President Dr Gabriel Fleming, Workers Compensation Commission.

Registrar

Date:

[2002] NSWWCCPD 7

18 November 2002