Rowe v NSW Department of Education and Training
[2006] NSWWCCPD 27
•23 February 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Rowe v NSW Department of Education and Training [2006] NSWWCCPD 27
APPELLANT: David Forbes Rowe
RESPONDENT: NSW Department of Education and Training
INSURER:GIO Workers Compensation (NSW) Ltd
FILE NUMBER: WCC9142-04
DATE OF ARBITRATOR’S DECISION: 29 October 2004
DATE OF APPEAL DECISION: 23 February 2006
SUBJECT MATTER OF DECISION: Procedural fairness; bias and lack of impartiality; failure to observe proper procedures, error of law; improper exercise of power conferred by legislation; abuse of power; failure to properly consider submissions made; relevance; misapplication of relevant legislation.
PRESIDENTIAL MEMBER: Deputy President Gary Byron
HEARING:Determined on the papers
REPRESENTATION: Appellant: Mamdouh Elmaraazey
Barrister and Solicitor
Respondent: Hunt & Hunt
ORDERS MADE ON APPEAL: The decision of the Arbitrator, dated 29 October 2004, is confirmed.
Pursuant to section 342 of the Workplace Injury Management and Workers Compensation Act 1998 I order that the costs of the appeal are to be treated as unreasonably incurred for the purposes of this section. Accordingly, no order is made for payment of those costs by the Respondent.
BACKGROUND TO THE APPEAL
Mr David Forbes Rowe, the Appellant, was employed by the NSW Department of Education and Training (‘the Respondent/the Department’) at all relevant times. On 9 December 1991 Mr Rowe was arrested at his home, taken to Bega Police Station and charged with a number of counts of indecent assault involving students at the Wolumla Public School, where he had been employed as a teacher since 1984. Mr Rowe was suspended from his teaching duties on the same day, prior to his departure from the Bega Police Station. Mr Rowe said that he was shocked by the whole incident. He said that he was confused, had problems sleeping and felt quite ill as a result. Mr Rowe first sought medical assistance from Dr Holloway, treating doctor, in relation to his condition, on 16 January 1992. Dr Holloway did not provide any medication but suggested that he consult a counsellor. Mr Rowe attended several counselling sessions early in 1992.
On 5 November 1992 Mr Rowe lodged a claim with GIO Workers Compensation (NSW) Ltd (‘the Insurer’) for psychological injury arising out of and in the course of his employment as a teacher with the Department.
In March 1993 Mr Rowe was convicted before a Judge and jury of having indecently assaulted one of his pupils.
On 23 April 1993 Mr Rowe attended the surgery of Dr Canaris, Consultant Psychiatrist, who diagnosed him as suffering from “a severe adjustment disorder with depressed mood”.
Mr Rowe commenced treatment under Dr Knox, Consultant Psychiatrist, who concurred with Dr Canaris’ diagnosis.
On 4 February 1994 the Court of Criminal Appeal overturned the March 1993 conviction and ordered a new trial. The Director of Public Prosecutions subsequently determined that Mr Rowe would be “no-billed” in relation to the offences for which he had been convicted.
On 27 June 1994 the Department instituted ten disciplinary charges against Mr Rowe.
On 3 November 1994, following an inquiry, the Department found Mr Rowe to have engaged in improper conduct in respect of two of the ten disciplinary charges bought against him. Around this time the Department proposed to relocate Mr Rowe to another school. However, Mr Rowe stated that he was unable to take up the position offered, due to the state of his health.
In October 1996 Mr Rowe sought to take long service leave. In June 1997 the Department ceased to pay Mr Rowe his salary.
On 27 August 1997 Mr Rowe was medically retired because of “chronic adjustment disorder with mixed anxiety and depressed mood”.
On 12 August 1999 the Department commenced proceedings against Mr Rowe to recover an overpayment of salary paid to him between 30 January 1995 and 30 October 1996 (District Court proceedings No. 5972 of 1999). The dispute related to whether Mr Rowe was absent on unauthorised study leave or whether he was legally entitled to the monies received from the Department.
In March 2000 the Department obtained a default judgment in these proceedings in the sum of approximately $100,000. The judgment was set aside, on appeal, on the basis that there had been no service on Mr Rowe. On 15 May 2001 the Department filed an ‘Amended Statement of Claim’ in the District Court, seeking to recover the sum of $69,080.73, together with interest.
On 16 May 2002 Mr Rowe lodged a cross-claim in these proceedings. The cross-claim sought damages in negligence and breach of statutory duty, based upon the facts and circumstances surrounding the conduct of the inquiry by the Department, in relation to the disciplinary charges brought against Mr Rowe on 27 June 1994.
In 2003 Mr Rowe lodged a workers compensation claim (WCC5146-02) in the Commission, in relation to his 1991 work related psychological injury. The claim was settled on 28 July 2003. ‘Terms of Settlement’ were entered and included the following:
·that there be an award in favour of the applicant worker in the sum of $200 per week from 17 September 1997 to date and continuing;
·that the Respondent meet the applicant’s section 60 [of the Workers Compensation Act 1987 (‘the 1987 Act’)] expenses including those already incurred, upon production of receipts.
In October 2003 District Court proceedings No. 5972 of 1999 were settled. Details of the settlement were set forth in a ‘Deed of Release’ (‘the Deed’) which provided that in consideration for the dismissal of the Department’s claim against Mr Rowe and the payment of $35,000 towards his costs, he agreed to release and forever discharge in favour of the Department, “all present and future actions, claims, suits, demands and costs which [Mr Rowe] has or might have” but for the Deed. The Deed excluded from the release the “actions claims, suits, demands and costs which [the Applicant] has or might have” touching upon or in connection with or incidental to Workers Compensation Commission matter numbered “WCC 5146-2002”.
Mr Rowe lodged an ‘Application to Resolve a Dispute’ in the Commission on 9 June 2004 (WCC9142-04). He claimed that he suffered a psychological injury for which non-economic loss compensation is payable and that arose out of and in the course of his employment as a teacher with the Department. The basis of his claim is that the psychological injury occurred on 9 December 1991 when he was accused of indecency. He claimed lump sum compensation under section 66 of the 1987 Act.
On July 2004, the Respondent made an offer of settlement in matter WC9142-04, on the basis that an award wass entered for the Department and each party pay its own costs. The offer was sent to Mr Rowe’s former solicitors. This offer was conveyed to Mr Rowe’s current solicitors on 27 August 2004. The offer was not accepted.
An Arbitrator of the Commission held a teleconference with both parties on 13 September 2004, and, on 29 October 2004, the Arbitrator made a determination in the matter without the need for the parties to attend either a conciliation conference or an arbitration hearing. The Arbitrator had indicated that a legal issue had arisen at the teleconference, and requested the parties to make further written submissions on or before 15 October 2004. Both parties made further written submissions to the Arbitrator, in compliance with his request. An award was made in favour of the Department, as set out in paragraph 27, below.
The teleconference was not recorded and consequently, there exists no transcript of those proceedings, to which reference may now be made.
On 26 November 2004 Mr Rowe lodged an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission, against the decision of the Arbitrator, set out in ‘Certificate of Determination’, dated 29 October 2004.
I note for the sake of historical completeness only, that on 14 April 2005 Mr Rowe lodged a further ‘Application to Resolve a Dispute’ in the Commission (WCC5539-05) claiming psychological injury as a result of his treatment that arose out of and in the course of his employment as a teacher with the Department. Mr Rowe claimed weekly payments from 18 April 2005, section 60 [of the 1987 Act expenses], and lump sum compensation pursuant to sections 66 and 67 of the 1987 Act.
It was submitted by Mr Rowe that the action in relation to weekly payments was brought pursuant to section 55(1) of the 1987 Act, which provides that, any weekly payment may be reviewed by the Commission, “because of a change of circumstances”.
Mr Rowe’s solicitors submitted that the traumatic events that Mr Rowe suffered in 1991 continued to affect his way of life, that he was distressed about the circumstances surrounding the ‘Deed of Release’ of October 2003, and that he had become resentful about legal matters since then. Mr Rowe relied upon the report dated 28 January 2005 of his treating psychiatrist, Dr Knox, to establish a “change of circumstances”.
On 21 September 2005 an Arbitrator made an award in that matter (WCC5539-05), in favour of the Respondent. The primary reasons for the Arbitrator’s determination in that matter were that:
·Mr Rowe’s claim for lump sum entitlement in relation to both sections 66 & 67 of the 1987 Act and the threshold damages question, were already presented in matter WCC 9142-04, which was determined by the Arbitrator in favour of the Respondent on 29 October 2004, and which is currently on appeal. This constitutes res judicata and/or issue estoppel and therefore this aspect of the current claim cannot successfully be re-litigated;
·in relation to Mr Rowe’s claim for section 60 [of the 1987 Act] expenses, this claim was already dealet with in the terms of settlement in matter WCC 5146-02. The ‘Certificate of Determination’ issued by the Commission included an order “that the Respondent meet the Applicant’s section 60 expenses including those already incurred upon production of receipts”, and
·in relation to the claim for a review of the weekly compensation payments, the attempt to establish a change of circumstances pursuant to section 55 was without merit and did not justify a review of the settlement made in July 2003 in matter WCC 5146-02.
The Commission wrote to Mr Rowe’s solicitors on 6 October 2005, referring to the determination made by the Arbitrator on 21 September 2005 in matter WCC5539-05. The Commission asked Mr Rowe, in light of this determination, whether he still wished to proceed with the appeal [the instant case] in matter number WCC9142-04. Mr Rowe indicated that he did.
The appeal in the instant case remains on foot.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 29 October 2004 records the Arbitrator’s orders as follows:
“1.This matter is resolved in favour of the Respondent.
2.That costs incurred since 27 August 2004 were unreasonably incurred but otherwise the Respondent is to pay the remaining costs as agreed or assessed.”
ISSUES IN DISPUTE
The submissions in support of and in reply to the appeal are quite detailed. However, both parties have employed the same broad headings or grounds of appeal. The many issues on appeal can be distilled and conveniently summarised as follows:
(1)whether the Arbitrator erred by reason of breaches of the rules of natural justice in that, he exhibited bias against Mr Rowe in the conduct of the inquiry; made partial decisions in favour of the Department, and “failed to provide an opportunity for Mr Rowe to have a fair opportunity, in conducting the inquiry”;
(2)whether the Arbitrator failed to observe the procedures that were required by law to be observed in connection with making the decision in that, he failed to have regard to the evidence and/or Mr Rowe’s submissions in coming to that decision; that the Arbitrator conducted his inquiry in a way that was partial to the Respondent; that the Arbitrator failed to have regard to Mr Rowe’s written submissions; that the Arbitrator failed to require the Department to submit proper submissions, and that the Arbitrator failed to have regard to what appears to be, the inadequacy of the Department’s submissions;
(3)whether the decision of the Arbitrator involved an error or errors of law, in that, the Arbitrator had total disregard for the doctrine of precedent; that the Arbitrator did not apply the provisions of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act; the Arbitrator made findings on irrelevant matters “at that stage of the inquiry”; that the Arbitrator made findings in favour of the Department when there were no submissions and/or proper submissions made by the Department; the Arbitrator failed to have regard to the evidence and the submissions of Mr Rowe, and that the Arbitrator made findings on matters while Mr Rowe has not been given the opportunity to controvert them, and
(4)whether the Arbitrator improperly exercised the power conferred by the 1987 Act and the 1998 Act, in making his decision in that, he failed to take into account “relevant consideration in the exercise of power”, and exercised the power in a way that constituted abuse of the power.
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.”
Mr Rowe submits that the appeal may be determined on the papers and the Department has offered no objections. Having regard to Practice Directions Numbers 1 and 6, and the documents that are before me, I am satisfied that I have sufficient information to proceed to determine the appeal ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The ‘Application Against Decision of Arbitrator’ was lodged in the Commission on 29 November 2004. On the same day the Registrar wrote to Mr Rowe’s solicitor indicating that the “application” was incomplete, and requiring that the following defects were to be addressed by 7 December 2004:
“Failure to make submissions on threshold issues relating to the granting of leave, including the amount of compensation at issue and the percentage of the amount awarded alleged to be at issue in the Appeal.”
The Registrar further stated that failure to comply with the Commission’s request within the time specified in the letter would result in the application being rejected.
Mr Rowe’s solicitor lodged the response in the Commission on 7 December 2004 in compliance with the Registrar’s request. Mr Rowe claimed “the maximum of $123,400.00 for section 66” and “the maximum of $61,750.00 for section 67.”
The Department states that, “… this is the first instance at which the applicant has particularized his claim under sections 66 and 67”. The Department goes on to say:
“Secondly the respondent submits that there has been absolutely no evidence adduced by the applicant as to the degree of whole person impairment, let alone that he has sustained a degree of permanent impairment at the maximum level. Thirdly, the respondent notes that the amounts put forward by the applicant as the maximum amounts payable under Sections 66 and 67 are incorrect as at the date of injury, 9 December 1991 and, in fact, incorrect at any time.”
The Department submits that Mr Rowe has not established that the amount of compensation is greater than $5,000.
Mr Rowe did not specify an amount in dispute in his ‘Application to Resolve a Dispute’, or in the initial ‘Appeal Against Decision of Arbitrator’ in the instant case. He did specify the amount in his response to the Registrar’s request of 29 November 2004.
The Department submits that even so, Mr Rowe has provided no medical evidence of permanent impairment and has not particularized or duly made a claim. It submits further that Mr Rowe’s claim for the maximum amounts under sections 66 and 67 of the 1987 Act are unsupported by any medical evidence and are wholly without merit. However, these are essentially substantive issues rather than threshold issues. Notwithstanding that Mr Rowe had not specified a precise amount up to this point, the very nature of the dispute before the Arbitrator, and the Department’s opposition to the claim and the amount of the claim, suggests that there is a significant amount of money in dispute between the parties.
I am satisfied that the amount of compensation at issue on appeal exceeds $5,000 and the award made by the Arbitrator is wholly in favour of the Department. I find that the requirements of section 352(2)(a) and (b) are satisfied.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act and the Registrar’s request of 29 November 2004. See further, paragraphs 42 to 45, below.
However, the Department claims that Mr Rowe’s appeal was not served on it or the Insurer, within seven days of being registered as required by section 77(4) of the Workers Compensation Rules (‘the Rules’), and therefore should be rejected on this basis.
According to the ‘Certificate of Service’ the relevant documents were served on the Department on 13 December 2004, that is, within seven days of the deadline set by the Registrar for rectification of defects in the ‘Appeal Against Decision of Arbitrator’ that was originally lodged in the Commission on 29 November 2004.
The Registrar’s letter of 29 November 2004 says, in part, “If you fail to comply with the Commission’s request within the time specified in this letter, the application will be rejected.” While the ‘Appeal Against Decision of Arbitrator’ was initially lodged within 28 days after the date of the Arbitrator’s decision, in compliance with section 352(4) of the 1998 Act, the Registrar’s advice to Mr Rowe was that it would be “rejected” if he failed to comply with her request/direction. It follows that the appeal had been made by Mr Rowe but not registered at this point. The appeal was accepted on 7 December 2004, on the filing of the further particulars, in compliance with the Registrar’s request/direction. Registration could not have taken place before 7 December 2004, given that the appeal could only have been rejected [for registration purposes] after that date, in the event of non-compliance. In the circumstances, I am satisfied that service was effected on 13 December 2004 in accordance with Rule 77(4), registration having occurred on or after 7 December 2004.
The Registrar’s final instruction to Mr Rowe, in her letter of 29 November 2004, states:
“In the event that your response is not received within the 28 day Appeal limitation period prescribed by the legislation, you will also be required to make submissions as to why the application should be accepted outside of the statutory limitation period.”
Section 352(4) of the 1998 Act provides:
“An appeal can only be made within 28 days after the making of the decision appealed against.”
The ‘Appeal Against Decision of Arbitrator’ was lodged in the Commission within the 28 days and was not rejected by the Registrar. Therefore, it remained on foot. Notwithstanding that Mr Rowe was required to rectify defects as outlined by the Registrar, this was not fatal to his appeal, provided that he complied with the Registrar’s request/direction dated 29 November 2004 - which he did. The appeal was never rejected. Section 352(4) provides only for the making of an appeal, and is silent as to the date of registration of the appeal in the Commission. Registration is an internal Commission procedure, following the making of an appeal.
In my view, Mr Rowe is not required to make application for an extension of time pursuant to Rule 77(9) of the Rules or to satisfy the Commission as to the matters set out in Rule 77(8). His ‘Appeal Against Decision of Arbitrator’ was never out of time.
Leave to appeal is granted.
FRESH EVIDENCE
The Department submits that Mr Rowe’s request to reserve the right to rely on fresh evidence should be rejected on the basis that no particulars have been given of any fresh evidence upon which he intends to rely, and on the basis that this would result in a breach of natural justice as it would not allow the Department to know the case that it is required to meet.
I am unable to find an application for the admission of fresh evidence in relation to the decision appealed against, other than a note endorsed on Mr Rowe’s original submissions received in the Commission on 29 November 2004. The note states:
“NOTE: THE APPLICANT RESERVES THE RIGHT TO AMEND HIS APPEAL UPON RECEIVING A STAMPED COPY OF THE RESPONDENT’S SUBMISSIONS FOR THE ARBITRATION.”
However, in the interests of certainty, pursuant to section 352(6) of the 1998 Act, leave is not granted for fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against, to be given in this appeal.
APPEAL TO A PRESIDENTIAL MEMBER
A Presidential member has a specific and limited role in the review of a decision of an Arbitrator. The review is not a rehearing. The Presidential member is not dealing with the matter de novo and is not arriving at a fresh decision based on all of the evidence available at a later time (Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616).
The powers of a Presidential member to revoke the decision pursuant to section 352(7) of the 1998 Act and to substitute a new decision in its place, or to remit back to the same Arbitrator or a different Arbitrator for determination in accordance with a decision of or directions by, a Presidential member, are exercisable only where it is demonstrated that the decision is affected by some legal, factual or discretionary error (Allesch v Maunz (2002) 203 CLR 172; Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSW WCC PD 6). The principle was highlighted by Gleeson CJ in Swain v Waverley Municipal Council (2005) 79 ALJR 249; 213 ALR 249. His Honour said: “The question for an appellate court is whether it was reasonably open to the jury to make an assessment unfavourable to the respondent, not whether the appellate court agrees with it.” Moreover, it must be such that but for the error, a different decision would have been made in its place (YG & GG v Minister for Community Services [2002] NSWCA 247).
EVIDENCE AND SUBMISSIONS
Mr Rowe’s submissions
Mr Rowe provided detailed submissions on appeal, dated 26 November 2004, which may be summarised as follows:
· The Arbitrator exhibited bias against Mr Rowe and made partial decisions in favour of the Respondent in conducting the inquiry by, admitting and/or considering evidence of which no notice had been given in circumstances that were unfair to Mr Rowe; admitting and/or considering evidence that was not required; refusing to require the Department to produce documents that were important to Mr Rowe’s case; permitting the Department to adduce evidence of a kind that Mr Rowe had been refused permission to adduce; assisting the Department to present its case notwithstanding that Mr Rowe was not similarly assisted; admitting evidence on matters unrelated to the inquiry; making findings in favour of the Department that ignored the evidence and/or the submissions of Mr Rowe, and making findings in favour of the Department “where there was no proper submissions or submissions made by the Respondent.”
· The Arbitrator failed to provide Mr Rowe with a fair opportunity in conducting the inquiry by, directing the Department not to forward the submissions to Mr Rowe and vice versa; failing to comply with the directions of his own making; failing to maintain the inquiry within the boundaries that he himself directed Mr Rowe to comply with; refusing to “require and/or request from the Department to produce relevant documents; considering evidence that was not relevant nor cogent, nor probative; considering matters that were not relevant to the inquiry but were prejudicial to Mr Rowe, and conducting his inquiry in such a manner that weakened Mr Rowe’s case and strengthened the Department’s case.
· The Arbitrator erred in failing to observe the procedures that were required by law in connection with the decision, including failing to have regard to the evidence and/or submissions of Mr Rowe in coming to his decision. In particular, the Arbitrator failed to have regard to his own directions to Mr Rowe; he failed to have regard to the Department’s unfounded allegations; he failed to consider elements of Mr Rowe’s case especially those concerning Dr Akkerman and his report, and unfairly and unreasonably re-interpreted evidence so as to be favourable to the Department when it was not favourable. Further, the Arbitrator conducted his inquiry “in a way partial to the Respondent”, as above and also in considering irrelevant and unnecessary matters in making his decision; in refusing to require the Department to produce documents relevant to Mr Rowe’s case; in failing to have regard to the written submissions of Mr Rowe; in failing to require the Department to submit proper submissions, and failing to have regard to what appears to be, the inadequacy of the Department’s submissions.
· The decision of the Arbitrator involved additional errors of law including, totally disregarding the doctrine of precedent; in not applying the provisions of the 1987 Act and 1998 Act correctly and in particular the sections listed in the submissions; in making findings on irrelevant matters at that stage of the inquiry; in making findings in favour of the Department when there were no submissions and/or proper decisions made by the Department; in failing to have regard to the evidence and the submissions of Mr Rowe. Furthermore, the Arbitrator made findings on matters while Mr Rowe has not been given the opportunity to controvert them.
· Making of the decision was an improper exercise of the power conferred by the 1987 and the 1998 Acts in that, it failed to take into account relevant considerations in the exercise of power; the Arbitrator exercised power in a way that constituted abuse of the power as set out above; in substituting his own views to Mr Rowe’s disadvantage; in substituting his own views when “there was no, as it appears, proper submissions and/or any submissions from the Respondent”, and in substituting his own views in the face of the overwhelming precedents that conflicted with those findings.
The Commission requested Mr Rowe to address certain “threshold” issues relating to the granting of leave to appeal, which had not been addressed in his submissions dated 26 November 2004. The detailed submissions made by Mr Rowe, dated 3 December 2004, in response to the Commission’s request may be summarised as follows:
· The Arbitrator failed to comply with section 293(2) and section 287 of the 1998 Act. Mr Rowe noted that in his previous application, WCC5146-02, he sought compensation pursuant to sections 66 and section 67 of the 1987 Act. At that time he was required to submit himself to Dr Akkerman, the Commission’s approved specialist, in order to be assessed. Mr Rowe submits that the Department failed to produce this report and was in breach of section 290 of the 1998 Act. Mr Rowe also submits that the Arbitrator failed to require the Department to produce the report and as a result, Mr Rowe was not in the position to assert or predict the contents of the report.
· The Respondent never challenged Mr Rowe’s claim for pain and suffering.
· The Respondent also ignored the provisions under the Workers Compensation (Benefits) Amendment Act 1989 relating to the relevant amendments to the 1987 Act.
· Mr Rowe was injured as evidenced by the ‘Certificate of Determination’ of 28 July 2003 – WCC 5146-02. The Department failed to address this issue in its response to matter WCC5145-02 and did not produce the medical evidence required under the Act;
· In response to the Department’s submissions of 29 June 2004, that, “As at the alleged date of injury, 9 December 1991, there was no entitlement under the Workers Compensation Act 1987 to lump sum compensation for psychological injury”, Mr Rowe submits that he is entitled to a lump sum compensation and provided submissions in relation to the meaning of the phrase “permanent brain damage” (being an injury which is not or is not wholly an injury otherwise compensable under this Table) appearing in the Table of Compensation for Permanent Injuries in Part 3, Division 4 of the 1987 Act.
· These submissions were provided previously in Mr Rowe’s primary submissions dated 14 October 2004 and were before the Arbitrator at the time of his decision of 29 October 2004. The submissions may be summarised as follows:
Mr Rowe submits that “personal injury” covers a problem caused by trauma, resulting in damage to some part of the body. The damage need not be to an external part of the body and includes internal and psychiatric illness. Mr Rowe also submits that the term “injury” bears its ordinary meaning as used in everyday language.
Mr Rowe cites Darrin Zickar v MGH Plastic Industries Pty Ltd (1996) HCA 31 (14 November 1996) “where the judges noted that as ‘personal injury’ was not defined it must be given its ordinary meaning, and that the word ‘includes’ at the beginning of section 4(b) was meant to extend the meaning of ‘personal injury’ to include disease, provided the relevant contribution of employment is present, and not to exclude disease from section 4(b).”
In relation to disease, Mr Rowe submits that the word ‘disease’ in section 4(b) of the definition of injury encompasses every kind of illness including functional mental illness: Federal Broom Co. Pty Ltd v Semlitch (1964) 110 CLR 626.
Mr Rowe also cites Zinc Corporation Ltd & Another v Scarce (1995) 12 NSWCCR 566 where Clarke J states:
“It is not in doubt that the mental shock or trauma can constitute an ‘injury’ within the meaning of the statute, but only when it has a ‘physiological effect’.”
Bhatia v State Rail Authority (NSW) (1997) 14 NSWCCR 568 is also cited, in which Burke J states:
“In my view, the symptoms of anxiety, mania and depression experienced by the worker were physiological effects manifesting the effects of injury … In my view if it be accepted that a worker has symptoms of this type and degree, then it is axiomatic that he suffered injury …” [at 578].
Mr Rowe submits that, Langdon v State of New South Wales (1996) 13 NSWCCR 552, lends support to his submission for entitlement to lump sum compensation, in which it was held that:
“It would seem that the intention of the legislature in substituting in 1989 the provision for ‘brain damage’ in the Table of Compensation for Permanent Injuries for the original provision for ‘loss of mental powers’ was to extend the range of circumstances in which a worker who sustained a work-related “injury” to his brain, might be entitled to lump sum compensation:
(a)so as to include those, who, by reason of consequential impairment of their higher intellectual function, while still able to engage in some form of work, were no longer able to work in their prior employment; and
(b)so as to enable those who had lost, either in whole or in part, some faculty or the efficient use of some bodily part which controlled by the brain, and the loss of which faculty, or the loss of the efficient use of which bodily part, was not already provided for in the new Table.”
· Mr Rowe also submits that no amount of compensation had been awarded in relation to his claim for lump sum compensation and pain and suffering.
· Mr Rowe claims the following:
othe maximum of $123,400 for section 66; and
othe maximum of $61,750 for section 67.
The Department’s submissions
The Department has necessarily, provided lengthy and detailed submissions in reply. The submissions made by the Department in response to Mr Rowe’s appeal submissions, dated 26 November 2004 are as follows:
· the submissions, seeking leave to appeal and on threshold issues, were not enclosed in the original Appeal and should be rejected on this basis;
· the Appeal was not served on the Department within seven days of being registered as required by section 77(4) of the Workers Compensation Commission Rules 2003 and therefore should be rejected on this basis;
· the Appeal was not served on either the Insurer or Department, as required by Rule 77(4)(b), and
· Mr Rowe’s request to reserve the right to rely on fresh evidence should be rejected on the basis that no particulars have been given of any fresh evidence upon which Mr Rowe intends to rely, and on that basis this would result in a breach of natural justice.
These issues have been determined above. The Department further submits that:
· the Department denies that the Arbitrator exhibited bias against Mr Rowe, submits that the particulars given by Mr Rowe in this allegation are insufficient, and that this assertion is without merit and without any basis in fact;
· the Department denies that the Arbitrator failed to provide an opportunity for Mr Rowe to have a fair opportunity in the conduct of the inquiry, and submits that the particulars given by Mr Rowe in support of this allegation are insufficient and that this assertion is without merit and without any basis in fact;
· the Department denies that the procedures that were required by law in connection with the making of the Arbitrator’s decision were not observed;
· the Department denies that the Arbitrator conducted his inquiry in a partial way to the Department including failing to require the Department to submit proper submissions. The Department states that at the teleconference of 13 September 2004, the Arbitrator directed both parties to prepare written submissions by 15 October 2004. The Department’s submissions were forwarded to Mr Rowe’s solicitors on 14 October 2004, but Mr Rowe never served his submissions on the Department;
· in response to Mr Rowe’s allegations that that the Department failed to produce the report of Dr Akkerman and that the Arbitrator failed to require the Respondent to do so, the Respondent submits:
oDr Akkerman’s report was not part of Mr Rowe’s ‘Application to Resolve a Dispute’ nor was it part of the ‘Reply’ served on behalf of the Department, and
oDr Akkerman’s report is not in the possession of the Department and was not a part of these proceedings;
The following is a summary of the Department’s submissions in response to Mr Rowe’s submissions dated 3 December 2004:
· the Department denies that the Arbitrator failed to comply with sections 293(2) and 287 of the 1998 Act. It is submitted that it was not necessary for the Arbitrator to apply section 293(2), as the Arbitrator had elected at first instance to deal with the issue of law, that is, whether there was an entitlement to lump sum payments as at the date of injury, 9 December 1991. Therefore it was not necessary for Mr Rowe to be referred to a medical assessment until this issue had been dealt with. Furthermore, the Department states that as Mr Rowe had never provided any evidence of the degree of whole person impairment sustained by him, the claim had never been duly made;
· in response to Mr Rowe’s allegation that the Department never challenged Mr Rowe’s claim for pain and suffering, the Department submits that this was not necessary as the Department had challenged Mr Rowe’s claim under section 66 and that a claim under section 67 is contingent in the claim under section 66 being made out. Furthermore, the Department submits that Mr Rowe’s submission is totally irrelevant to the determination of threshold issue as to whether leave to appeal should be granted;
· the Department states that no evidence was ever led by Mr Rowe that he had sustained brain damage and submits that Mr Rowe’s submission is totally irrelevant to the determination of the threshold issue as to whether leave to appeal should be granted;
· the respondent states that Mr Rowe’s earlier claim, WCC5146-02, was a claim for weekly payments and medical expenses only and did not include lump sum compensation and therefore the Department was not required to address the issue of lump sum compensation for psychological injury in that claim. The Department also submits that Mr Rowe’s submission is totally irrelevant to the determination of the threshold issue as to whether leave to appeal should be granted;
· furthermore, the Department states that if the earlier claim, WCC5146-02 did contain a claim under sections 66 and 67, that was not withdrawn prior to the final determination, then this claim was addressed in the Terms of Settlement made on 28 July 2003 and Mr Rowe is estopped from bringing this current claim in any event. The Department further states that unless that evidence was served and relied on by either party, any evidence adduced in respect of those earlier proceedings, is not evidence in respect of the current proceedings;
· the Department submits again that it, its Insurer or its current legal representatives, is not in possession of the medical report of Dr Akkerman;
· the Department also submits that if Dr Akkerman was an Approved Medical Specialist appointed by the Commission, then Mr Rowe should have a copy of this report and that it was open to Mr Rowe to rely on a copy of this report in his ‘Application to Resolve a Dispute’;
· the Department denies that it ever breached section 290 of the 1998 Act by not producing Dr Akkerman’s report and that there is no requirement under that section that a party must produce to another party a document upon which legal and professional privilege may be claimed;
· the Department states that Mr Rowe never caused a ‘Direction to Produce’ to be issued either to it, its Insurer or its previous legal representatives in relation to Dr Akkerman’s report;
· the Department denies that the Arbitrator was required by section 293(2) of the 1998 Act to require a party to produce a medical report;
· the Department considers that Mr Rowe’s allegation that he was in no position to assert nor to predict what was in Dr Akkerman’s report is entirely irrelevant, as Dr Akkerman’s report was never served or attempted to be relied upon by either party;
· the Department further submits that at no point did Mr Rowe ever particularise his claim under section 66 and at no point was any medical evidence served by Mr Rowe, asserting that he had sustained any degree of permanent impairment as a result of the injury, and in these circumstances, Mr Rowe has never duly made his claim;
· the Department submits that the maximum amounts claimed by Mr Rowe pursuant to sections 66 and 67 are unsupported by medical evidence and are incorrect as at the date of injury, 9 December 1991, and in fact, incorrect at any time;
The Department states that it also intends to rely on its primary submissions dated 13 October 2004. The main points raised in these submissions were as follows:
·the Department accepts that Mr Rowe claims he suffered a psychological injury on 9 December 1991 however submits that there was no entitlement to lump sum compensation under the 1987 Act as it was in force on the date of the injury;
·Section 73 of the 1987 Act sets out the table for compensation for permanent injuries according to which injured workers could claim compensation pursuant to section 66(1) of that Act. Psychological injury is not referred to at all in that table;
·the suggestion made by Mr Rowe’s solicitor at the teleconference in this matter on 13 September 2004, that the Workers Compensation (Benefits) Amendment Act 1989 No.133 introduced entitlement to lump sum compensation for psychological injury is incorrect;
·the relevant provision was not introduced until the Workers Compensation Legislation Further Amendment Act 2001 amended the 1987 Act to include section 65A. Section 65A commenced operation on 1 January 2002. Prior to that date there was no entitlement to lump sum compensation for psychological or psychiatric injury under the 1987 Act;
·Mr Rowe’s claim was clearly pleaded as a psychological injury and not a brain injury, and although some suggestion was made by Mr Rowe’s solicitor at the teleconference on 13 September 2004 that Mr Rowe’s injury was a brain injury, Mr Rowe’s ‘Application to Resolve a Dispute’ was never amended to reflect this;
·Mr Rowe’s injury is not properly capable of being described as a brain injury. The Department refers to Ansett Australia v Dale [2001] NSWCA 314 (14 September 2000) in which Powell JA refers to the description of what was comprehended by the phrase “brain damage” in the table at section 73 of the 1987 Act at the relevant time;
·the Department also refers to Langdon v State of New South Wales (1996) 13 NSWCCR 552 in which Mahoney P stated that the phrase “brain damage” for the purposes of the table at section 73 of the 1987 Act as it then was, and compensation under section 66 of that Act, meant permanent brain damage.
·the Department submits that Mr Rowe relies on no evidence supportive of a finding of any form of brain injury in this matter, and in particular had not provided any reports from neurologists, or any radiological reports at all. Furthermore there is no suggestion in any of the material attached to the ‘Application to Resolve a Dispute’ that Mr Rowe suffered permanent brain damage and therefore it is submitted that Mr Rowe has not properly made a claim for compensation under section 66, as required to do so under sections 65 and 66 of the 1998 Act, and finally
·the Department submits that section 115(1) of the 1998 Act should apply and that any costs incurred by Mr Rowe after the receipt of the Department’s offer of settlement dated 27 August 2004, should be treated as unreasonably incurred on the basis of section 115(2)(a) of that Act.
The documentary evidence in the proceedings, itemised at paragraph 11 of the Arbitrator’s ‘Statement of Reasons for Decision’ (‘Reasons’) are before me in this appeal and are taken into account.
DISCUSSION AND FINDINGS
The written submissions in this appeal are wide-ranging and detailed. I also have before me the written submissions that were submitted to the Arbitrator, at his request, by the parties, following the teleconference that was held on 13 September 2004. As previously indicated, the teleconference was not recorded and consequently, no transcript of those proceedings exists. A copy of a note from the Arbitrator to the Commission, dated 13 September 2004, which is on the Commission file, states:
“This matter was the subject of a T/C this morning at 11 am. A legal issue arose. I have asked for written submissions by 15 October and that they be forwarded to the Commission. Could you forward them to me when received and I will then do the matter on the papers.”
The various assertions made by Mr Rowe’s solicitor as to the attitude of the Arbitrator, and the conduct of the proceedings by the Arbitrator, are serious in nature, and collectively, allege a course of conduct, and a degree of bias and systematic partiality that if proven, arguably, could amount to misconduct on the part of the Arbitrator. The assertions go beyond claims of error and/or incompetence, and even beyond what might be regarded as an acceptable standard of reasonable criticism. I do not have the benefit of a transcript of the teleconference, however teleconferences are not usually recorded, thus there is nothing unusual about that. In any event, what emerged from the teleconference was merely a request by the Arbitrator that the parties provide written submissions concerning an issue of law that had arisen during discussions at the teleconference. That aside, there is simply nothing before me to substantiate these serious assertions. Mr Rowe’s legal representative has failed to put anything of substance to me that supports his assertions. The Department denies the assertions and says that they have no merit or basis in fact. There is no suggestion by Mr Rowe’s solicitor, in the further written submissions that he provided to the Arbitrator following the teleconference, that he had any concerns about the way in which the teleconference had been conducted. There is no record that I can find on the Commission file, of any complaint or expression of concern by Mr Rowe’s solicitor, about the way in which the Arbitrator has conducted this matter.
In my view, Mr Rowe’s solicitor’s assertions as to the Arbitrator’s conduct and attitude are without foundation. They are not demonstrable; they are not justified, and they are inappropriate. It is one thing to put forward robust arguments in support of the merits of a case, even in a critical way if there is reason to do so. However, it is quite another matter, indeed it is unacceptable, to launch what could be construed as a personal and unwarranted attack on the integrity of the Arbitrator who, whether his decision is correct or not, has obviously attempted to determine the dispute before him properly and according to law, as is his duty.
In the absence of any evidence or arguments of substance from Mr Rowe’s solicitor to demonstrate the validity of his assertions of bias and systematic partiality, I propose simply to reject them and proceed with the determination of this appeal.
I find that those parts of each ground of appeal asserting bias and partiality, or any improper conduct or course of behaviour on the part of the Arbitrator, are without foundation and consequently, to that extent, the grounds of appeal are not made out.
Notwithstanding the detailed and wide-ranging issues that are said to be in dispute between the parties in this appeal, and which are set out at paragraph 27 above, the principal issue that was addressed by the Arbitrator in his Reasons, and that was addressed by each of the parties in their written submissions to the Arbitrator, is set out in paragraphs 21 to 24 of his Reasons, as follows:
“21.The Application in this matter was filed by Elrington Boardman and Allport on 9 June 2004 alleging that the Applicant suffered psychological injury as a result of allegations being made against him by children while employed as a teacher on 9 December 1991. He is seeking lump sum compensation under section 66 of the 1987 Act. These solicitors do not now act for the Applicant.
22.The Respondent submitted that in 1991, when the injury is said to have occurred, psychological injury was not available as it was not included in the table contained in Section 73 of the 1987 Act as it stood at that time.
23.The Applicant’s current legal representative, however, submitted at the teleconference that the injury could be categorised as ‘permanent brain injury’, and that expression is included in the table in Section 73. This submission had not been raised in the Application, so written submissions were sought on this issue and the validity of the psychological injury claim and it was agreed between the parties that this threshold matter would be considered ‘on the papers’.
24.The Applicant submits that the principal issue is what is comprehended by the phrase ‘permanent brain damage (being an injury which is not or is not wholly an injury otherwise compensable under this table)’ appearing in the table of compensation for permanent injuries in the 1987 Act as it stood in 1991. The submissions then are focused on an examination of the definition of ‘injury’ and the words ‘personal injury’ and ‘disease’ quoting many legal authorities.”
The Arbitrator addressed Mr Rowe’s medical evidence in some detail. In addition to other medical reports and documents listed by the Arbitrator at paragraph 25 of his Reasons, he listed the following medical reports that were included in Mr Rowe’s ‘Application to Resolve a Dispute’:
·Dr Canaris, Consultant Psychiatrist, dated 28 April 1993
·Dr Palombi, Child and Adolescent Psychiatrist, dated 3 February 1994
·Dr William Knox Consultant Psychiatrist dated 23 August 1994, 10 November 1994, 4 June 1996, 30 April 2002 and 27 May 2002
The Arbitrator notes at paragraph 25 of his Reasons’, that Dr Canaris’ diagnosed Mr Rowe as suffering a “ clinically significant depressive disorder which is best described as severe adjustment disorder with depressed mood”. Dr Caranis states that Mr Rowe’s depression is of sufficient severity to warrant treatment and suggests a trial course of antidepressants. However he notes that in Mr Rowe’s situation, antidepressants are “more likely to have a palliative than a therapeutic effect and his mood is likely to remain depressed until his situation is somehow resolved”.
The Arbitrator also notes at paragraph 25 of his Reasons that Dr Palombi concurs with Dr Canaris’ diagnosis that Mr Rowe is suffering with “some degree of reactive depression” and echoes Dr Canaris’ recommendation that “some brief treatment and possibly medication would be in order”. As the Arbitrator observes, the majority of the report deals with issues associated with the alleged incidents at the school in relation to the charges of indecency.
The Arbitrator also states at paragraph 25 of his Reasons that the reports of Dr Knox also concur with Dr Canaris’ view. He states, “Mr Rowe continues to suffer from reactive depression of moderate severity”. His reports tend to discuss the stress suffered by the Applicant. However, in Dr Knox’s report of 30 April 2002 the Arbitrator notes that Dr Knox makes the following observation:
“I did not judge that the prescription of psychotropic medication as appropriate given that Mr Rowe’s presentation was one of mental injury, rather than mental illness, that it was understandable that he was troubled with the symptoms that he had as a result of his overwhelming circumstances”.
However the Arbitrator states that, from the documents presented, Dr Knox did not pursue the issue of “mental injury” with other specialists and did not make any reference to the fact that what he was discussing may have amounted to permanent brain injury. It is suggested by the Arbitrator that Dr Knox may have used the expression “mental injury” for emphasis and illustration only, otherwise it is reasonable to expect that he would have taken this issue further. On reading Dr Knox’s report, along with the other medical reports and in context, Dr Knox’s comments amount to an observation in passing, but as the Arbitrator correctly states, he does not take the point any further.
The Arbitrator states at paragraph 26 of his Reasons that Mr Rowe’s submissions, dated 3 December 2004, failed to make any attempt to link any of the medical evidence attached to his ‘Application to Resolve a Dispute’, to his argument that the injury can be categorised as “permanent brain damage”. Instead the submissions focus on what the words “injury”, “personal injury” and “disease” have in their ordinary meaning, and that they can include an injury of this nature. The Arbitrator also notes that the definitions come down to the requirement that there must be some identifiable physiological change that occurred during the course of employment.
The Arbitrator found that the evidence in support of Mr Rowe’s ‘Application to Resolve a Dispute’ does not support his submission. At paragraph 27 of his Reasons, he said:
“It cannot, because with the one exception referred to above, there is no evidence. The exception referred to by Dr Knox was not pursued and without corroboration from other specialties does not support the claim. The evidence all supports the diagnosis that the Applicant has psychiatric illness, which is termed ‘adjustment disorder with depressed mood’.”
The Arbitrator goes on to say at paragraph 28 of his Reasons:
“I find on the balance of probabilities that even if a case can be maintained that the injury is one of permanent brain damage rather that [sic] psychiatric illness, the case cannot be made out on the evidence set out in the Application, and that this matter should be resolved in favour of the Respondent because this diagnosis was not compensable in 1991.”
The Arbitrator also found that there was no justification for this ‘Application to Resolve a Dispute’ on the basis that the compensation sought was on the basis of an injury not covered by the legislation in force at the time of the injury.
The Arbitrator summarised the resolution of the issues in dispute before him, at paragraph 31 of his Reasons, as follows:
“In summary the resolution of the issues in dispute are as follows:
·On 9 December 1991, David Forbes Rowe received a psychological injury, which may have arisen out of or in the course of his employment as a teacher with NSW Department of Education but this injury was not compensable under the 1987 Act as it stood at that time.
·The injury may have been able to be categorised as ‘permanent brain damage’ but the evidence presented in support of the Application does not support this diagnosis, and this matter should be resolved in favour of the Respondent.
·That the matter was brought without proper justification and costs incurred since 27 August 2004 were unreasonably incurred.”
On a consideration of the evidence, submissions and other documents before me, I find that the Arbitrator had little option other than to arrive at these findings. Notwithstanding the legal argument put by Mr Rowe’s solicitor in his written submissions to the Arbitrator, the fact is, as the Arbitrator states, the evidence put forward by Mr Rowe does not support a diagnosis of permanent brain damage. Mr Rowe’s solicitor simply failed to link the medical
evidence or any evidence, to his proposition that the injury suffered by Mr Rowe was permanent brain damage. Furthermore, statements as to the law are not enough. It is necessary to demonstrate how and why the law is applicable to the facts of a particular case. That has not been accomplished in the instant matter.
Mr Rowe’s solicitor raised a number of other issues, many of which were asserted but were unsupported by argument, and some of which were substantive issues in relation to Mr Rowe’s claim, but that were outside of the scope of this appeal. Given that the Arbitrator has arrived at the correct conclusion on the evidence, and that my review is not a rehearing (and I am not dealing with the matter de novo), it serves no purpose to pursue each and every assertion made in this appeal. I have closely read and considered Mr Rowe’s submissions in this appeal and that he made to the Arbitrator. I have also closely read and considered the other evidence and documents that are before me. I am satisfied that there is simply insufficient or no evidence, to support the litany of assertions and failures alleged by Mr Rowe’s solicitor against the Arbitrator. Combing through the Appellant’s submissions to say so in each instance would be a pointless exercise. In any event, notwithstanding the accuracy or otherwise of the balance of the Arbitrator’s findings (or lack of findings if any), the critical fact that the evidence does not substantiate Mr Rowe’s case, means that a different decision would not and could not, have been made (YY & GG v Minister for Community Services [2002] NSWCA 247).
In the circumstances, I find that the Arbitrator made no error of law, fact or discretion and therefore, the appeal must fail.
The Department seeks confirmation of the Arbitrator’s “Order that the appellant have no costs from 27 August 2004. The respondent submits that all of the appellant’s costs from this date, including the costs of the Appeal, have been unreasonably incurred.” As I propose to confirm the decision of the Arbitrator in this matter, his findings and orders stand. The costs of this appeal are dealt with in paragraph 79, below.
DECISION
The appeal is unsuccessful. The decision of the Arbitrator dated 29 October 2004 is confirmed.
COSTS
The Department submits that the ‘Application to Resolve a Dispute’ and this appeal were brought without proper justification. The costs were incurred after a reasonable offer of settlement was made on either 22 July 2004 when an offer was sent to Mr Rowe’s former solicitors, or at least, on 27 August 2004 when it was sent to his current solicitor. I agree with the Arbitrator that there was no justification for bringing the ‘Application to Resolve a Dispute’ as the award of compensation was sought for injury that was not covered by the legislation in force at the time of the injury. Moreover, Mr Rowe did not or could not provide evidence to substantiate his claim before the Arbitrator, nor was he able to demonstrate that the volume of legal argument and authorities upon which he relied, and the medical evidence, applied to the facts and circumstances of his claim.
Pursuant to section 342 of the 1998 Act, I am satisfied that the costs on the claim, of this appeal, were unreasonably incurred and I order that those costs are to be treated as unreasonably incurred for the purposes of this section. Accordingly, I make no order for payment of those costs by the Department.
Gary Byron
Deputy President
23 February 2006.
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF GARY BYRON, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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