Shoalhaven City Council v Stevenson
[2013] NSWWCCPD 28
•23 May 2013
| WORKERS COMPENSATION COMMISSION | |||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||
| CITATION: | Shoalhaven City Council v Stevenson [2013] NSWWCCPD 28 | ||
| APPELLANT: | Shoalhaven City Council | ||
| RESPONDENT: | Samuel Stevenson | ||
| INSURER: | Self-insured | ||
| FILE NUMBER: | A1-6669/12 | ||
| ARBITRATOR: | Ms E Beilby | ||
| DATE OF ARBITRATOR’S DECISION: | 14 January 2013 | ||
| DATE OF APPEAL DECISION: | 23 May 2013 | ||
| SUBJECT MATTER OF DECISION: | Challenge to factual findings; ss 61 and 261 of the Workplace Injury Management and Workers Compensation Act 1998; requirements as to giving notice of injury and making of a claim; obligation to state reasons for decision. | ||
| PRESIDENTIAL MEMBER: | Deputy President Kevin O'Grady | ||
| HEARING: | On the papers | ||
| REPRESENTATION: | Appellant: | Leigh Virtue & Associates | |
| Respondent: | Gerard Malouf & Partners | ||
| ORDERS MADE ON APPEAL: | 1. Paragraph one of the Arbitrator’s determination dated 14 January 2013 is revoked and the following findings are made in its place: “1. The applicant has complied with the requirements as to giving notice of injury and concerning the making of a claim as prescribed by ss 61 and 261 respectively of the Workplace Injury Management and Workers Compensation Act 1998.” 2. Paragraphs two, three and four are confirmed. 3. The appellant is to pay Mr Stevenson’s costs of this appeal. | ||
BACKGROUND
Mr Samuel Stevenson alleged that he injured his right knee on 25 May 2000 whilst in the course of his employment performing parks and garden maintenance duties with Shoalhaven City Council (the appellant). A rung on a ladder had broken as he climbed into a tractor causing him to fall heavily on his right foot.
Mr Stevenson stated in evidence that he immediately reported the injury to his supervisor, who has been identified in oral evidence as being Mr Glen Elliott, using a two way radio. Mr Elliott came to Mr Stevenson’s workplace at that time. An incident report form which Mr Elliott had brought to the site was completed and signed by Mr Stevenson.
Some months later Mr Stevenson sought medical advice and was treated conservatively. He continued working with ongoing right knee symptoms. His employment with the appellant came to an end in February 2009. He has since worked in various capacities, with intervening periods of unemployment.
On 28 March 2012 Mr Stevenson, through his solicitors, claimed lump sum compensation of $7,500 in respect of 10 per cent permanent loss of efficient use of his right leg. Liability was declined by the appellant. A notice issued pursuant to s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) addressed to Mr Stevenson’s solicitors particularised the reasons for denial of liability as follows:
“1. Your client has not sustained injury with Shoalhaven City Council.
2. Your client’s medical condition is not causally connected to any injury.
3. Employment is not a substantial contributing factor to injury.
4. If your client has sustained injury (which is denied) it is in the nature of a disease process and Shoalhaven Council is not the last employer for whom your client has carried out work to the nature of which any such disease is due.
5. Your client does not suffer from any impairment and, in the alternative, any impairment does not result from injury.
6. Your client has not given notice of injury nor claimed compensation benefits in accordance with the requirements of the legislation such that your client is precluded from recovering compensation.
The issues relevant to this dispute are those which have been identified above and the sections of the legislation on which our client relies in declining liability are Sections 4, 9, 9A and 66 of the Workers’ Compensation Act 1987 and Sections 74, 254, 255, 260, 261 and 323 of the Workplace Injury Management and Workers’ Compensation Act 1998.”
These proceedings were commenced by Mr Stevenson seeking an award in respect of his entitlement to lump sum compensation. The application came on for hearing before Arbitrator Elizabeth Beilby on 17 November 2012. Leave was granted to the appellant to cross-examine Mr Stevenson. Following the evidence and submissions the Arbitrator reserved her decision. On 5 December 2012 a telephone conference was convened by the Arbitrator at the request of Mr Stevenson’s solicitors. An application was made at that time by Mr Stevenson, seeking the admission of further documentary evidence. That application was refused. A Certificate of Determination was issued by the Arbitrator on 14 January 2013 accompanied by a Statement of Reasons (Reasons). The following determinations and orders were made:
“The Commission determines/orders:
1. The applicant has given proper notice of his injury to entitle him to bring his claim for permanent impairment of his right knee.
2. The applicant suffered an injury to his right knee on 25 May 2000 in accordance with section 4 and 9A of the Workers Compensation Act 1987.
3. The matter is remitted to the Registrar for referral to an Approved Medical Specialist for assessment of impairment to the right knee arising from an incident on 25 May 2000.
4. The respondent is to pay the applicants costs as agreed or assessed.
A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”
ISSUES IN DISPUTE
The appellant relies on four grounds of appeal. Grounds A and B allege error by the Arbitrator in her “consideration and determination” of matters in dispute identified as “injury, causation and substantial contributing factor” (ground A) and “whether [Mr Stevenson] has made a claim for compensation in accordance with the requirements of the Act” (ground B). Error is not identified in the grounds. However it is reasonably clear, having regard to submissions which are put in support of the appeal, that these two grounds suggest that the Arbitrator erred:
(a) in finding that Mr Stevenson had discharged the onus of proof upon him concerning the occurrence of injury;
(b) in failing to consider “whether (and if so what) pathology resulted from the alleged incident”;
(c) in “reversing the onus of proof so far as the occurrence of the alleged incident and injury is concerned”;
(d) in failing to consider “whether employment is a substantial contributing factor to injury”;
(e) in finding a causal connection between Mr Stevenson’s “knee injury and the incident alleged”, and
(f) in finding that Mr Stevenson had met the statutory requirements concerning notice of injury and the making of a claim.
Ground C appears to, again, challenge the Arbitrator’s factual finding concerning the occurrence of relevant injury on 25 May 2000 and suggests a reversal of the burden of proof.
Ground D suggests that the Arbitrator has erred in failing to consider “whether the injury was in the nature of a disease process and if so whether the appellant was not the last [relevant] employer”.
ON THE PAPERS
The appellant has submitted that this appeal should not be determined on the papers as is permitted by s 354(6) of the 1998 Act. It appears to be suggested by the appellant that an oral hearing is required to enable “all relevant issues” to be addressed. It is also suggested that an oral hearing is appropriate given that “the dispute concerns mixed questions of fact and law and that there are issues relating to [Mr Stevenson’s] credit”. Mr Stevenson consents to the matter being heard on the papers.
Having regard to Practice Directions Nos 1 and 6, the documents that are before me, and the fact that the appellant has provided supplementary submissions following receipt by it of a transcript of the proceedings since the filing of this appeal, I am satisfied that I have sufficient information to proceed “on the papers”, without holding any conference or formal hearing and that this is the appropriate course in the circumstances.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to quantum and time as found in the provisions of ss 352(3) and 352(4) of the 1998 Act have been met.
PRELIMINARY MATTER
On 18 January 2013 the Registrar referred the matter for Medical Examination by Approved Medical Specialist (AMS) Dr Tommasino Mastroianni in accordance with the Arbitrator’s order. That examination was appointed to take place on 5 February 2013. The present appeal was instituted by the filing of an Application with the Commission on 7 February 2013.
It is the Commission’s general practice that, in the case of an appeal in a matter where an order of remitter has been made for the appointment of a medical examination, such appointment is deferred until the outcome of the appeal is known. Given the chronology in the present matter, that is that the appeal was commenced after the appointment and that the appointment was in respect of an early date in February 2013, the Medical Assessment Certificate was issued by Dr Mastroianni on 11 February 2013. That certificate, which is before the Commission, provided:
“MEDICAL ASSESSMENT CERTIFICATE
Table 1 - Assessment in accordance with the Table of Disabilities for injuries received before 1 January 2002
Matter No: 006669/12
Applicant: Samuel Stevenson
Date of Assessment: 5th February, 2013
This Certificate is issued pursuant to section 325 of the Workplace Injury Management and Workers Compensation Act 1998.
Body Part (describe the body part as per Table of Disabilities)
e.g. right leg at or above the knee
Date of injury
Total amount of permanent % loss of efficient use or impairment
Proportion of permanent impairment due to pre-existing injury, abnormality or condition
Total permanent % loss of efficient use or impairment attributable to this injury (after deduction of any pre-existing impairment in column 4.)
Right leg at or above the knee (Right Knee)
25/05/2000
10%
Nil
10%
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE MEDICAL ASSESSMENT CERTIFICATE ISSUED BY TOMMASINO MASTROIANNI, APPROVED MEDICAL SPECIALIST, WORKERS COMPENSATION COMMISSION”
The appellant, on 13 March 2013, registered an appeal with the Registry against the medical assessment. That appeal is brought pursuant to s 327 of the 1998 Act. Commission records indicate that no determination by the Registrar has been made as to whether the appeal should proceed as is regulated by the provision of s 327(4). Having regard to the date of the registration of the appeal against the medical assessment it appears that the Registrar may also have to deal with questions raised as to time having regard to the terms of s 327(5).
Given the existence of an extant appeal against the medical assessment, questions are raised as to what orders are appropriate on this appeal. That subject is addressed below at [66].
FRESH OR ADDITIONAL EVIDENCE
Mr Stevenson has made an application seeking leave to tender fresh or additional evidence on this appeal. That application is made pursuant to the provisions of s 352(6) of the 1998 Act which provides:
“(6) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission. The Commission is not to grant leave unless satisfied that the evidence concerned was not available to the party, and could not reasonably have been obtained by the party, before the proceedings concerned or that failure to grant leave would cause substantial injustice in the case.”
The additional evidence which Mr Stevenson seeks to adduce on this appeal is the same document which he belatedly sought to tender before the Arbitrator noted at [5] above. A copy of that document is annexed to Mr Stevenson’s Notice of Opposition to this appeal. The document in question is a letter dated 11 December 2000 sent by the appellant to Mr Stevenson (cc Paul Collins – Asset Construction and Maintenance Manager). The subject heading of the correspondence is “Workers Compensation Claim No 01.035-(R) knee date of injury: 25/5/2000”. The text of the letter, which is signed by Maree Vickridge, Insurance Officer, is as follows:
“I refer to your recent claim for Workers Compensation and wish to advise that Council has accepted liability for this claim.”
The appellant opposes the admission of the additional evidence. At the hearing before the Arbitrator the appellant had raised a defence founded upon an assertion that Mr Stevenson had not complied with the statutory requirements concerning notice of injury and the making of a claim. It may be seen that, prima facie, the correspondence which is the subject of this application is, as argued on behalf of Mr Stevenson, of significant relevance to the issues litigated.
The Arbitrator, in her Reasons, recorded that the basis of her rejection of the application made by Mr Stevenson to adduce the document as a late document had been stated during the course of the relevant telephone conference. At [17] of Reasons the Arbitrator summarised those reasons as follows:
“Essentially the applicant was seeking an indulgence to admit the document, without any explanation as to why it had not been provided at the telephone conference or even at the arbitration. There was no doubt the document was relevant to the dispute, however the delay in bringing the document to the respondent’s attention or the Commission’s attention was not explained adequately in any way.
I therefore came to the conclusion that without adequate explanation for delay, the document, though relevant to the dispute, could not be admitted into evidence.”
The present application is supported by submissions which seek to rely upon those matters argued before the Arbitrator at the telephone conference conducted in December 2012. A copy of the application which was then before the Arbitrator is included in the documents filed in opposition to the appeal. As stated by the Arbitrator in the summary of her reasons for rejection of the document, the arguments advanced provided no explanation for Mr Stevenson’s failure to adduce the evidence with his application, or at the initial teleconference or at the hearing of the application. No explanation is given on the present application. In those circumstances the Commission cannot be satisfied that the document was not available to Mr Stevenson, and could not reasonably have been obtained by him, before the proceedings conducted before the Arbitrator as is required by the terms of s 352(6) of the 1998 Act.
It remains to be determined as to whether refusal to grant leave to tender the document would cause substantial injustice. Such consideration is required by the terms of the last mentioned subsection.
The arguments advanced by Mr Stevenson suggest that the admission of the document would not in any way prejudice the appellant given that the document in question had been created by the appellant. It is also argued that the document should be admitted to avoid the Commission being misled by the appellant raising issues which include denial of injury and denial of notice of injury and making of claim. Other argument is advanced in support of a proposition that the “defences” concerning injury and notice should be withdrawn in circumstances where admission of the document is refused.
The Commission, when considering the question as to whether refusal would cause substantial injustice, may be guided by matters stated by the majority (McHugh, Gummow and Callinan JJ) in the decision of CDJ v VAJ [1998] HCA 67; 197 CLR 172. In that matter the Court was dealing with the provisions of s 93A(2) of the Family Law Act 1975 (Cth) which, in terms is arguably wider than those of s 352(6) of the 1998 Act, granted power to the Family Court of Australia to receive further evidence upon questions of fact. It was there stated (at 202) with respect to the exercise of the discretion:
“The power to admit further evidence exists to serve the demands of justice. Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial.”
Bearing in mind that the party here seeking leave was the successful party at first instance, and having regard to my conclusions stated below concerning the merits of the appeal generally, I conclude that the interests of justice do not require that leave be granted to permit tender of the correspondence of the Council dated 11 December 2000. Accordingly, leave is refused.
THE ARBITRAL PROCEEDINGS
The evidence
The documentary evidence before the Arbitrator was noted by her at [19] of Reasons. I note in passing that Mr Stevenson’s Application to Admit Late Documents which comprised his statement dated 30 August 2012 was filed on 4 September 2012. That late document and the late documents relied upon by the appellant were admitted by consent at the hearing.
Cross-examination conducted by the appellant’s solicitor is recorded in the transcript (T2-T42). That cross-examination, which as stated by the Arbitrator was to be limited to the issues raised in defence of the application, was wide ranging. Questions were put to Mr Stevenson concerning relevant dates and attendances upon his general practitioner, Dr Albie Thomas. Mr Stevenson was also questioned as to statements made by him to a prospective employer described in evidence as Online Labour Hire. This questioning was directed to Mr Stevenson’s credit as a witness. The course of cross-examination was interrupted at one point and Mr Stevenson, at the direction of the Arbitrator, left the hearing room. Argument was then heard by the Arbitrator as to certain objection taken by Mr Stevenson’s counsel to cross-examination concerning Mr Stevenson being the subject of bullying in the course of his employment with the appellant. It was made clear by the appellant’s solicitor that the purpose of the cross-examination concerning bullying, allegedly occurring in the year 2009, was to demonstrate that Mr Stevenson was later, in 2010, motivated to falsely allege injury against the appellant. The Arbitrator ruled that the line of questioning should be permitted. Mr Stevenson’s counsel responded to that ruling with the statement that the appellant was then alleging fraud and that there was no evidence of such fraud and further that fraud on the part of Mr Stevenson had not been alleged by the appellant in the proceedings. Those objections were noted by the Arbitrator and an observation was made by her that she could not perceive that there was “any significant merit in that line of cross-examination”. However, permission to proceed with the cross-examination was affirmed.
Upon the resumption of cross-examination, Mr Stevenson confirmed that he was “unhappy with the circumstances in which [his] employment at [the appellant] came to an end”. Mr Stevenson denied that he was dissatisfied with the manner in which he was treated “at the appellant”. He also stated that his time of employment with the appellant was one of the best he had had. The difficulties encountered by Mr Stevenson described by him, concerned a complaint made by him on behalf of himself and his gang concerning deficient work conditions. WorkCover intervened and corrections to conditions were made following which “there were several charges brought up” against Mr Stevenson.
The cross-examination of Mr Stevenson included questions relating to his statement that he had suffered an injury to his right knee with Online Labour Hire on 2 February 2010. Mr Stevenson agreed that that injury occurred on the first day of his work with that company and that his knee was swollen on that first night. He agreed that he had been required to do a lot of squatting and a lot of walking. Mr Stevenson attended the practice of Dr Thomas but could not recall whether he told him of his experience of pain at work on 2 February 2010. Questioning proceeded and it was put that Mr Stevenson had seen Dr Thomas on 11 February 2010 at which time he gave a history of injury with the appellant but made no mention of the difficulties he had experienced with his knee on 2 February 2010. It was put that Mr Stevenson “had bad blood with [the appellant]” and that he was “still upset with [the appellant]”. This suggestion was denied by Mr Stevenson. Mr Stevenson was further questioned concerning his attendance upon, general practitioner, Dr Alastair Shaw and the contents of a certificate issued by that practitioner dated 7 December 2000. The detail of that questioning, and the documentary evidence upon which the cross-examination was founded is, where relevant, addressed in more detail in the course of discussion below.
Submissions before the Arbitrator
The appellant’s solicitor commenced submissions by raising the appellant’s denial that Mr Stevenson had given “notification of injury”. No reference to relevant statutory provisions was made at that time. It was argued that the only evidence of notification was that of Mr Stevenson himself. Argument then appears to have been redirected to the issue of the occurrence of injury. It was put that the only evidence of injury was that of Mr Stevenson himself and further that there was an absence of any contemporaneous corroborative evidence and that there was nothing in the documentary evidence to support that allegation. The appellant’s solicitor then addressed the evidence which suggested that there had been, on an unknown date, an injury to the right knee when Mr Stevenson banged his knee against a machine. That submission was founded upon the contents of a WorkCover certificate dated 7 December 2000 in which no date of injury is particularised. Argument also seems to have been advanced that Mr Stevenson’s evidence leads to confusion given that it was accepted by him that an injury noted in a certificate of sickness issued by Dr Thomas on 14 October 2002, concerning a “bite –right knee”, had occurred before the injury alleged in the proceedings.
The appellant’s solicitor then proceeded to argue that Mr Stevenson had not given notice of claim as required by the statute. It was asserted that the only notice of claim was made in February 2010. The submissions included inexact suggestions that a period of six months post injury was relevant and further that questions of “ignorance, mistake, other reasonable cause” were also somehow relevant. Again, there was no reference to relevant statutory provisions. It was asserted that, in the absence of evidence of relevant notice of claim, “[Mr Stevenson] loses on that basis”.
The focus of submissions once again turned to the question of the occurrence of injury. It was asserted that the evidence relating to referral of Mr Stevenson to Dr Ian Davison, orthopaedic surgeon, was in respect of an injury other than that as alleged by Mr Stevenson. There was, it was argued, otherwise no evidence corroborating the allegation of injury occurring in May 2000.
It was further argued that Mr Stevenson’s evidence concerning the occurrence of injury was “unsatisfactory” and that the Arbitrator would treat his evidence “with great caution”. It was put that Mr Stevenson’s evidence concerning the occurrence of injury in May 2000 would not be accepted.
The appellant also advanced argument suggesting that the expert medical evidence does not support the existence of a causal nexus between any injury that may be established as having occurred in the year 2000, and the state of Mr Stevenson’s right knee as has been recently diagnosed. The appellant’s solicitor then proceeded to make generalised submissions concerning s 9A of the Workers Compensation Act 1987 (the 1987 Act). It was put that Mr Stevenson “can’t possibly establish that employment on that date in May 2000 is a substantial contributing factor to injury. It’s just not there”.
Mr Stevenson’s counsel argued that the evidence concerning report of injury to Mr Elliott on the day of its occurrence in May 2000 constituted sufficient notice as required by the statute. Counsel sought to emphasise Mr Stevenson’s evidence concerning his attendance upon Dr Davison. His only attendance upon Dr Davison was in respect of the knee injury which he alleged occurred in May 2000. That argument was directed to the apparent mis-description of the circumstances of the injury’s occurrence as found in the medical certificate dated December 2000. It was also put that any suggestion made in cross-examination that Mr Stevenson was conducting a vendetta against the appellant would be rejected.
Counsel argued that, given the state of the evidence, the question as to the occurrence of injury was entirely dependent upon the Arbitrator’s acceptance or otherwise of the evidence of Mr Stevenson. If his evidence was accepted it is established that he “did make a claim”. No attention was given by counsel to any relevant statutory requirement. As to the question of causation, argument seems to have been advanced that the pathology present in the right knee, having regard to the perpetuation of symptoms, would, as a matter of common sense, be taken to be related to the May 2000 injury.
The Arbitrator’s decision
The Arbitrator, following a summary of matters alleged by Mr Stevenson and the issues raised in defence of the claim, proceeded to deal with the challenge raised by the appellant concerning Mr Stevenson’s credit as a witness and its disputation concerning, as described by her, “notice of claim”. The Arbitrator stated that such “notice” had been made “by way of contemporaneous complaint to [Mr Stevenson’s supervisor] which was then forwarded to the insurer so that the applicant received a claim number to use when consulting his general practitioner and for any physiotherapy treatment”.
The Arbitrator expressed the view that the question as to whether Mr Stevenson “has made a claim validly or not primarily rests upon my assessment of [Mr Stevenson’s] credit”. It was noted in the course of Reasons that Mr Stevenson had been cross-examined “extensively” during which the Arbitrator had had an opportunity “to observe [Mr Stevenson] and [this] provided ground upon which [the Arbitrator] could make findings as to his credit”. It was stated that the Arbitrator’s impression of Mr Stevenson was that he attempted to answer questions honestly and “in a very straightforward manner”. It was noted that on occasions Mr Stevenson had made admissions against interest. The Arbitrator accepted the explanation advanced by Mr Stevenson concerning his failure to disclose his injury to subsequent employers. It was accepted that such non-disclosure was directly related to his need to secure employment to enable him to support his family. Reference was made by the Arbitrator to the evidence found in clinical records of Mr Stevenson’s treating general practitioner concerning his experience of being bullied, stressed and upset by treatment received by him at work. The appellant’s argument that such treatment gave rise to conduct, by Mr Stevenson, of a vendetta against the appellant was rejected. It was noted that the argument as advanced by the appellant “seems to be [sic] to amount to an allegation of fraud, which was not pleaded”.
The Arbitrator concluded that Mr Stevenson was a witness of truth and proceeded to consider the question as to whether notice of injury had, as is required, been given. Following a summary of evidence relating to “notice of injury and of claim” (at [34] of Reasons) the Arbitrator made a finding that “[Mr Stevenson] did make a claim as his evidence suggests” (at [39] of Reasons).
The Arbitrator proceeded to consider the argument raised by the appellant concerning “date of injury”. It was the appellant’s argument that the contents of Dr Shaw’s WorkCover certificate dated 7 December 2000 contained a description of the injury as being “banging of the knee against a machine”. The appellant had argued that such certificate could not relate to the injury as alleged. That certificate contained a notation that Mr Stevenson had been referred to Dr Davison, orthopaedic surgeon, for treatment. The Arbitrator accepted Mr Stevenson’s evidence that he had been referred to Dr Davison on one occasion only and that was in relation to problems he had experienced in his right knee following the subject injury. The Arbitrator concluded that there had been “some confusion” in Dr Shaw’s mind at the time the certificate was issued. It was accepted by the Arbitrator that the referral to Dr Davison “arose out of the claimed tractor incident on 25 May 2000” (at [46] of Reasons).
The Arbitrator proceeded to consider the question as to whether Mr Stevenson had established the occurrence of injury as alleged. That consideration included references to ss 4 and 9A of the 1987 Act. I note in passing that those sections, as quoted by the Arbitrator in the course of her reasons are, wrongly, in the amended form which followed the 2012 amendments of the Act.
Following a consideration of the lay and expert medical evidence, the Arbitrator made the following determination concerning the alleged injury (at [61] of Reasons):
“Taking a common sense approach to this matter, the applicant says that something happened in May 2000, which I have accepted. He then says his ongoing pain and restrictions are the result of that incident which I accept. I therefore find that the applicant had sustained an injury arising out of that incident. The Approved Medical Specialist (AMS) is the appropriate person to determine what the impairment proportion should be arising from that incident.”
The Arbitrator proceeded to make findings and orders as appear in the Certificate of Determination noted at [5] above.
SUBMISSIONS, DISCUSSION AND FINDINGS
This appeal is governed by the provisions of s 352 of the 1998 Act. The nature and scope of such an appeal is as provided by s 352(5):
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
The powers of the Commission upon conduct of such an appeal are defined by the provisions of s 352(7):
“On appeal, the decision may be confirmed or may be revoked and a new decision made in its place. Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.”
As may be seen from my attempted summary of matters raised on this appeal (between [6] and [8] above) the appellant presents a very broad challenge to the Arbitrator’s determination of the dispute. Notwithstanding the breadth of that challenge, there has been a failure by the appellant to identify the error or those errors upon which it is based. The submissions, which include those initially made upon institution of the appeal; further submissions made following receipt by the appellant of a transcript, and submissions in reply to Mr Stevenson’s opposition, are lengthy. However, it must be said that argument presented is far from lucidly stated and in many respects merely constitutes a repetition of argument as advanced before the Arbitrator. There is an absence of precision when argument is raised concerning “notification of injury and the claiming of compensation benefits”. The fundamental difficulty with argument concerning this matter arises by reason of the appellant’s failure to identify those provisions of the legislation relevant to the suggested error concerning determination of matters in dispute.
These shortcomings may not be resolved by reference to the terms of the appellant’s two notices of dispute issued pursuant to s 74 of the 1998 Act. The first notice, issued by the appellant dated 15 February 2010, makes no reference whatsoever to suggested non-compliance with statutory requirements concerning notice and claim. The notice subsequently issued by the appellant’s solicitors dated 1 June 2012 raises the issue of notice of injury and making of a claim and, later, reference is made to no less than 10 separate sections of the Acts, some of which are concerned with questions of notice. However, there is no particularity as to the real basis of the dispute.
The Arbitrator’s finding as to injury
The Arbitrator’s finding as to the contested issue concerning the occurrence of injury is noted at [41] above. It appears that the appellant’s challenge is founded upon a suggested error of fact. I so conclude having regard to the statement, which appears at paragraph [4] of submissions, under the heading “Ground A”, where it is said:
“The appellant says that the Arbitrator was in error in accepting that [Mr Stevenson] had discharged the onus of proof so far as the occurrence of the incident alleged on the date alleged is concerned and further the Arbitrator failed to consider whether (and if so what) pathology resulting from the alleged incident in any event and in this regard the appellant relies in particular [on matters elaborated in submissions].”
In circumstances where factual error is asserted on an appeal, such will be made out in those circumstances addressed by Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 (at 506), that is where:
“… material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the trial judge is so preponderant in the opinion of the appellate court that the trial judge’s decision is wrong.”
The appellant correctly states that proof of the occurrence of injury depended upon acceptance by the Arbitrator of the evidence of Mr Stevenson. The Arbitrator dealt with the question of “injury” between [47] and [61] of Reasons. The Arbitrator had earlier in those reasons considered the question of Mr Stevenson’s credit as a witness. Following a consideration of Mr Stevenson’s evidence, including his responses in cross-examination, the Arbitrator concluded that he was a witness of truth. The Arbitrator reached that conclusion notwithstanding matters raised on behalf of the appellant concerning apparent inconsistencies as to dates and description of the occurrence of injury. It is apparent that the Arbitrator placed particular emphasis in her reasoning upon Mr Stevenson’s evidence, which she accepted, that he had been referred once, and once only, to Dr Davison. That referral had been made by Dr Shaw as is established by the contents of the NSW Workers Compensation Medical Certificate issued by that practitioner on 7 December 2000. That is the certificate which has the entry “banged knee against machine” which was relied upon by the appellant as casting doubt upon the truthfulness of Mr Stevenson’s evidence concerning the circumstances of injury to his right knee. The Arbitrator’s acceptance of Mr Stevenson’s evidence concerning there being but one referral to Dr Davison at the relevant time, led her to conclude (at [44] of Reasons) that there must have been some confusion in Dr Shaw’s mind at the time of writing the certificate. The Arbitrator has, in my opinion, addressed the evidence and arguments raised on behalf of the appellant and has stated reasons for her acceptance of Mr Stevenson’s evidence concerning the occurrence of injury.
The Arbitrator’s reasons included reference to the evidence of Dr Anthony Smith, orthopaedic surgeon, qualified on behalf of the appellant. Her rejection of Dr Smith’s opinion, that Mr Stevenson’s degenerate right knee was “non-work related”, was founded, in part, upon her conclusion that Dr Smith did not have a “thorough history”. In particular it was stated by her that Dr Smith did “not seem” to have a history of ongoing pain dating from May 2000. It is clear that the Arbitrator has rejected the view expressed by Dr Smith that the “aggravation” of his right knee arthritis which occurred in 2000 had “resolved”. That is clear having regard to her acceptance of the opinion of Dr Bodel, orthopaedic surgeon, qualified on behalf of Mr Stevenson, as noted at [60] below. The Arbitrator’s reasoning demonstrates no relevant error and I reject the appellant’s argument that her finding concerning the occurrence of injury should be set aside on this appeal.
Notice of injury and making of a claim
The Arbitrator appears to have addressed the question as to whether Mr Stevenson had “made a claim validly or not” (at [22] of Reasons). Her consideration of that question was bound up with her finding that Mr Stevenson was a witness of truth. Her conclusion was that Mr Stevenson “did make a claim as his evidence suggests” (at [39] of Reasons). The appellant had argued that Mr Stevenson had failed to give notice of injury and had not made a claim as required. I have earlier referred to the inadequacy of argument raised at the hearing concerning relevant statutory provisions, and the inexact nature of argument then presented. It is no doubt for those reasons that the Arbitrator had reached her conclusion, as then expressed, that no relevant failure concerning requirements as to making of the claim had been established. The Arbitrator’s omission to address the question of notice of injury, whilst perfectly understandable having regard to the manner in which argument was advanced, constitutes error. In the circumstances it is proposed to examine the evidence, the relevant provisions of the statute and argument, such as it is, raised by the appellant, to enable a determination as to whether any relevant error was made concerning the Arbitrator’s conclusion that Mr Stevenson had not failed to meet his obligations concerning making of a claim. The question concerning notice of injury also requires consideration.
The relevant injury occurred, as found by the Arbitrator, on 25 May 2000. In those circumstances, requirements as to notice of injury are prescribed by s 61 of the 1998 Act which provides:
“61 Notice of injury to be given to employer
(1) Compensation may not be recovered under this Act unless notice of the injury has been given to the employer as soon as possible after the injury happened and before the worker has voluntarily left the employment in which the worker was at the time of the injury.”
The claim in respect of lump sum compensation was made on behalf of Mr Stevenson by his solicitors on 28 March 2012. The time requirements concerning the making of a claim for such compensation is regulated by the provisions of s 261 of the 1998 Act which, relevantly, provides:
“261 Time within which claim for compensation must be made
(1) Compensation cannot be recovered unless a claim for the compensation has been made within 6 months after the injury or accident happened or, in the case of death, within 6 months after the date of death.
…
(3) For the purposes of this section, a person is considered to have made a claim for compensation when the person makes any claim for compensation in respect of the injury or death concerned, even if the person’s claim did not relate to the particular compensation in question.”
Mr Stevenson’s case concerning notice of injury was that he notified his supervisor, Mr Elliott, on the day of its occurrence. Such notification, if accepted by the Commission, constitutes compliance with the provisions of s 61 of the 1998 Act. The appellant correctly states in submissions on this appeal that the onus of proof concerning compliance with notice requirements is upon Mr Stevenson. The Arbitrator, as earlier noted, following an assessment of the evidence and a determination as to the credibility of Mr Stevenson’s evidence, accepted that such report had been made. That conclusion was one open to the Arbitrator on the evidence. It is suggested by the appellant that the Arbitrator’s reasons demonstrate that she has in some way reversed the onus concerning this matter. Reference is made to paragraphs [37] to [40] of Reasons where the Arbitrator notes the absence of evidence from the appellant or its insurer concerning notice. I reject the appellant’s suggestion that the reasons stated by the Arbitrator demonstrate any “reversal” of the onus of proof. It was, in my opinion, appropriate that the Arbitrator, when evaluating the evidence concerning the matter in dispute, made the observation that there was an absence of evidence concerning the issue presented on behalf of the appellant.
The question as to whether Mr Stevenson has met his obligations concerning the making of a claim depends upon whether the facts permit reliance by him upon the provisions of s 261(3). The evidence of Mr Stevenson concerning the making of an earlier claim, that is, one earlier than 2012 may be found at [4] of his statement made on 30 August 2012:
“Initially, I did not seek medical treatment as I thought the injury would fix itself over the next few days as my work mostly involved sitting in the tractor which was operated through a hand throttle so my knee was mostly rested. However, the pain continued and I had a clicking sensation in my knee which steadily got worse over the next few months. When I advised my supervisor of this, he told me to go and see a doctor and he filled out the appropriate paperwork and forwarded it on to my employer’s insurance division who issued me with a claim number to provide to the doctor.”
The evidence establishes that Mr Stevenson was referred by Dr Shaw for conduct of an x-ray, which took place on 1 September 2000. I note in passing that the x-ray report concerning the right knee was: “the knee joint compartments are well preserved. There are no bony lesions or significant arthritic changes. There is no evidence of a joint effusion.” It is open to inference, and on this appeal I conclude, that the commencement of treatment concerning Mr Stevenson’s right knee injury received in May 2000, occurred on a date prior to the conduct of the x-ray examination. It is Mr Stevenson’s evidence that he had, before pursuing treatment, arranged to lodge a claim through his supervisor for the purpose of obtaining a claim number. Having regard to the date of the x-ray examination it is clear that, should Mr Stevenson’s evidence be accepted, notice of that claim had been made within six months of the occurrence of injury.
It is Mr Stevenson’s evidence that the claim in question was accepted by the insurer and that his medical expenses were paid. It is important to note that the appellant’s dispute concerning liability, notified in correspondence dated 15 February 2010, contains the following statement concerning that denial:
“The injury you sustained on 25 May 2000 was a minor injury which required no time lost from the workplace. The scan conducted on the right knee states there is no injury to the right knee. Therefore it is Council’s opinion that a recurrence could not occur of an injury with no ongoing treatment since 2000.”
It may be seen that the appellant’s correspondence, the date of which is not explained on the evidence, predated the lump sum claim by some 25 months. Leaving aside the question as to what had prompted this denial of liability, it is clear that an inference may be drawn that the appellant had accepted that an injury had occurred on 25 May 2000; that the injury was treated by the appellant as “a minor injury”; that no time was lost from work, and that there was a scan conducted on the right knee at that time which indicated that there was “no injury”. The state of that evidence, together with Mr Stevenson’s evidence, permits the conclusion that a claim had been made as required by the statute shortly following the subject injury. In those circumstances, I find on this appeal that Mr Stevenson, having made a claim in 2000, is entitled to the benefit of the provisions of s 261(3) and may thus be taken to have complied with his obligations as to making a claim.
Causation and employment as a substantial contributing factor
The Arbitrator has accepted the evidence of Mr Stevenson that he has had ongoing pain in his right knee since the injury in May 2000. He has managed that pain, as accepted by the Arbitrator, without the need for ongoing medical treatment. The x-ray findings in 2000 revealed no abnormality in the knee joint, notwithstanding the persistence of symptoms. That finding is in stark contrast to that demonstrated on the MRI study conducted on 22 November 2010. That study, which predates Dr Bodel’s first examination of Mr Stevenson, revealed the following:
“Findings: There is significant loss of cartilage at the articular apex and medial facet of the patella. There is a mild joint effusion identified. There is also evidence of bony reactive change on the patellar aspect of the joint.
The medial compartment demonstrates subtle fissuring of cartilage with an underlying medial meniscal tear. The medial meniscal tear is degenerative in type demonstrating linear oblique orientation without fragmentation or separation.
The lateral compartment and lateral meniscus delineate normally.
The MCL insertion to the femur demonstrates minor thickening consistent with a prior healed strain. There is no acute MCL injury. The LCL and associated tendon complex appear normal.
The ACL and PCL appear normal.
No other significant changes are seen.”
The appellant is correct in its submission that Dr Bodel “expressed difficulty in coming to a diagnosis” in his report dated 10 August 2010. However, Dr Bodel did not at that time have the benefit of the MRI findings. It is also correct that Dr Bodel, once he had seen the MRI, expressed the view that the incident which occurred whilst Mr Stevenson was working in February 2010 may have “caused some additional structural damage in the right knee”. It is clear that, by inference, Dr Bodel is of the opinion that the May 2000 injury, at least in part, was causally related to the changes demonstrated by that study. That is the opinion preferred by the Arbitrator. Reasons were stated for that acceptance and an observation was made by the Arbitrator that the question as to the consequences in terms of impairment was not a matter for her but one for assessment by an AMS. I reject the appellant’s suggestion that the Arbitrator has erred in concluding that there was a causal nexus between the injury in 2000 and the present state of Mr Stevenson’s knee and resulting disability.
The appellant argues that the Arbitrator has erred in finding that Mr Stevenson’s employment with the appellant was a substantial contributing factor to his injury. The terms of s 9A(1) as at the relevant time were:
“9A No compensation payable unless employment substantial contributing factor to injury
(1) No compensation is payable under this Act in respect of an injury unless the employment concerned was a substantial contributing factor to the injury.
…”
The appellant correctly submits that, whilst the question as to whether employment was a substantial contributing factor to the injury was acknowledged by the Arbitrator, her Reasons do not demonstrate that she had “[considered] that issue at all” (further submissions p 3). That submission appears to be an assertion of error by reason of failure to state reasons. Whilst a finding was made that “Mr Stevenson suffered an injury to his right knee on 20 [sic, 25] May 2000 in accordance with ss 4 and 9A of the 1987 Act” (Reasons at [63]), I accept that the Arbitrator failed to expressly state reasons concerning s 9A. That omission may well be explained having regard to the Arbitrator’s straight forward factual findings concerning the circumstances of injury and by the absence of any meaningful argument advanced at the hearing before her concerning questions raised by application of s 9A.
Reference in submissions on this appeal is made by the appellant to the decision of the Court of Appeal in Van Wessem v Entertainment Outlet Pty Ltd [2010] NSWWCCPD 97; 9 DDCR 351. It is correctly argued that employment is not to be taken as being a substantial contributing factor to injury merely because it occurred in the course of employment: s 9A(3)(a). The present facts concern injury occurring to a worker at his place of work, during working hours whilst performing duties. The injury came about, as accepted by the Arbitrator, by reason of the failure of a ladder causing Mr Stevenson to fall. Those facts, in my opinion, establish beyond doubt that employment was a substantial contributing factor to injury. The Arbitrator’s conclusion concerning the requirements of s 9A was correct and should not be disturbed on this appeal.
Disease
It is asserted in submissions that the Arbitrator “was required to determine … whether the injury was in the nature of a disease process and if so whether the appellant was not the last employer for whom the worker carried out work to the nature of which any such disease is due”. That question was raised in the s 74 notice issued by the appellant’s solicitors in June 2012. However, it must be noted that no argument concerning the “disease” provisions of the legislation was advanced at the hearing. In the circumstances, the appellant may not raise this issue on appeal given that it is bound by the manner in which argument was presented before the Arbitrator (see Metwally v University of Wollongong (No 2) [1985] HCA 28; 59 ALJR 481 per the Court at 483). In those circumstances, the arguments advanced concerning this question must be rejected.
CONCLUSION
Having regard to the findings made on this appeal concerning Mr Stevenson’s compliance with the requirements as to the making of a claim and concerning the correctness of the Arbitrator’s conclusion concerning the application of s 9A of the 1987 Act it is, in my view, appropriate, and consistent with legislative intent, that the Arbitrator’s determination, subject to appropriate amendment, be confirmed on this appeal rather than to order remitter of the matter for hearing afresh.
Having regard to the extant appeal brought by the appellant against the Medical Assessment Certificate of Dr Mastroianni, I consider it appropriate that the Arbitrator’s order of remitter found in [3] of the Certificate of Determination be confirmed on this appeal. I am of the opinion that, but for the existence of that appeal, there would be no impediment to the entry on this appeal of an award in favour of Mr Stevenson in accordance with the Medical Assessment Certificate.
DECISION
Paragraph one of the Arbitrator’s determination dated 14 January 2013 is revoked and the following findings are made in its place:
“1.The applicant has complied with the requirements as to giving notice of injury and concerning the making of a claim as prescribed by ss 61 and 261 respectively of the Workplace Injury Management and Workers Compensation Act 1998.”
Paragraphs two, three and four are confirmed.
COSTS
The appellant is to pay Mr Stevenson’s costs of this appeal.
Kevin O'Grady
Deputy President
23 May 2013
I, KATHRYN CAMP, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O'GRADY, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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