Silk v State Rail Authority of New South Wales
[2004] NSWWCCPD 70
•29 September 2004
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Silk v State Rail Authority of New South Wales [2004] NSW WCC PD 70
APPELLANT: Clayton Silk
RESPONDENT: State Rail Authority of New South Wales
INSURER:State Rail Authority of New South Wales
FILE NUMBER: WCC3974-04
DATE OF ARBITRATOR’S DECISION: 19 July 2004
DATE OF APPEAL DECISION: 29 September 2004
SUBJECT MATTER OF DECISION: Power of Arbitrator to require the Appellant to submit himself for medical examination and vocational assessment as arranged by the Respondent.
PRESIDENTIAL MEMBER: Deputy President Gary Byron
HEARING:On the papers.
REPRESENTATION: Appellant: Beilby Pouldon Costello Lawyers
Respondent: Phillips Fox
ORDERS MADE ON APPEAL: The decision of the Arbitrator is confirmed.
THE APPEAL
On 4 August 2004 Clayton Silk (the Appellant Worker) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (the Commission) against a decision, dated 19 July 2004.
The Respondent to the Appeal is the State Rail Authority of New South Wales (the Respondent Employer).
The appeal was referred to me for review on 13 September 2004.
ISSUES IN DISPUTE
The issue in dispute in the appeal is whether the Arbitrator has the power to make an order requiring Mr Silk to submit himself for medical examination by Drs Perla and Edwards, and for a vocational assessment, as arranged by the Respondent.
At the same time, the Arbitrator made an order requiring Mr Silk to submit himself for examination by an Approved Medical Specialist (AMS) as arranged by the Registrar. This decision is not subject to appeal.
BACKGROUND
Mr Silk commenced employment with the State Rail Authority as a carriage cleaner on 8 August 2002. He worked nightshift from 11.00 pm to 5.30 am. His gross salary was $546.06 per week. His duties required him to clean railway carriages involving mopping, scrubbing, washing and wiping. He was required to clean 2.5 carriages per shift. Mr Silk states that the work was extremely physical and required repetitive bending and twisting. He said that from November 2002 he noticed that he had developed upper and lower back pain which he believed arose from the repetitive nature of his work.
Mr Silk said that the pain continued and became more severe in the lower back with radiation of pain into both legs. He reported his lower back pain to his supervisor on 12 November 2002. He consulted his employer’s doctor, Dr David Rockman on 25 November 2002 but according to Mr Silk, Dr Rockman was unable to provide any advice or assistance. He consulted Dr Quoc Dang on 30 November 2002 and was certified unfit for work, and was prescribed medication. He subsequently made a claim for workers compensation, which was initially accepted. He returned to work on light duties from 9 December 2002, but then received notice from his employer that his employment was terminated as of 20 December 2002.
He continued to consult Dr Dang and was referred by State Rail Authority to Dr John Stephen, Orthopaedic Surgeon on 9 December 2002. The Respondent Employer advised him on 11 December 2002 that his claim was rejected on the basis of Dr Stephen’s report. He commenced receiving social security benefits but subsequently obtained employment with Wilson Traffic Management as a Traffic Coordinator. That employment ceased on 7 January 2004. Mr Silk believes that his condition continued to worsen. He says that he has been advised by Dr John Bentivoglio, Orthopaedic Surgeon, to undergo surgery if his symptoms do not improve. He continues to take medication and is due for review by Dr Bentivoglio in December 2004.
A teleconference was held by the Arbitrator on 16 July 2004 when the order, the subject of this appeal, was made. The formal written order supported by a statement of reasons was issued on 19 July 2004.
JURISDICTION
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
In this matter I am satisfied that:
· The appeal was filed within 28 days of the decision appealed against (section 352(4) of the 1998 Act),
· The amount of compensation at issue on the appeal is at least $5,000 (section 352(2)(a) of the 1998 Act),
· No amount was awarded in the decision appealed against and therefore section 352(2)(b) of the 1998 Act has no application (Mawson v Fletchers International Exports Pty Limited [2002] NSW WCC PD 5),
· The referral ordered by the Arbitrator in this matter, the subject of this appeal, has a real capacity to put in issue, the amount of compensation determined by reference to the claim (Fletchers International Exports Pty Ltd v Regan [2004] NSW WCC PD 7), and
· No new evidence is submitted in the appeal (section 352(6) of the 1998 Act).
Leave to appeal is granted.
ON THE PAPERS REVIEW
Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
The Appellant Worker does not “consent or oppose the matter being determined on the papers” but expresses a preference to present oral submissions. The Respondent Employer is silent on this issue. 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 ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
SUBMISSIONS
In summary, the Appellant Worker submits that the Arbitrator has no power to make the order, the subject of this appeal. It is contended that the basis upon which an employer is entitled to have a worker medically examined is contained in section 119 of the 1998 Act; that the Respondent Employer has no other entitlement to have the worker examined, and that there is no entitlement to obtain refresher medical reports due to a lapse of time. It is further submitted that it is not the intention of the legislation that an employer is to be entitled to require a further medical examination once liability has been declined or following the filing of an Application to Resolve a Dispute. In the event that liability is admitted then the Respondent Employer is entitled pursuant to section 119 of the 1998 Act, to further medical examinations, otherwise it is not so entitled. The Appellant Worker further submits that the Workers Compensation Commission Rules 2003 (the Rules) exclude “as previously existed in the Compensation Court Rules, an entitlement for the employer/insurer to examine the Applicant once the proceedings have been commenced.” The Appellant Worker cites Godfrey v Wollongong Womens Information Services Incorporated (1999) 19 NSWCCR 74 (Godfrey), to illustrate the point. It is submitted that in that case, Her Honour Judge Truss makes a distinction between an entitlement to a medical examination under section 119 of the 1998 Act, where the matter was not before the Court, and the entitlement to such medical examinations created by the Compensation Court Rules. The Appellant Worker states that the Compensation Court Rules have no application to proceedings in the Commission, but that there are no similar enabling provisions “contained in the Rules of the Workers Compensation Commission.”
The Respondent Employer submits that Dr Stephen’s report indicated that the history provided by Mr Silk and the complaints described are inconsistent with the clinical findings; that he has no diagnosable injury to the back region; as a result of his employment with the Respondent Employer he may have suffered a minor aggravation to his spondylosis, however any aggravation would now have ceased, and that other than Panadol, Mr Silk is not in need of any ongoing treatment.
It is further submitted that at the time of his examination, there was no indication of any allegation that any work related back injury resulted from an aggravation, exacerbation or acceleration of disease. The Respondent Employer contends that Mr Silk’s allegation that he suffers from a disease within the meaning of section 16 of the Workers Compensation Act 1987 (the 1987 Act) is a matter that was not foreseen by the Respondent Employer and accordingly, the Respondent Employer has not had the opportunity to obtain any independent medical opinions in relation to this aspect of Mr Silk’s claim.
The Respondent Employer submits that without being able to obtain a medical report on the issue of disease, it will be unfairly and unduly prejudiced in its ability to meet Mr Silk’s allegation and/or to defend this aspect of his claim.
It further submits that a period of some eighteen months has now elapsed since Dr Stephen’s report was prepared and Mr Silk’s condition may have either improved or deteriorated in that time. Consequently, it is considered to be not unreasonable for the Respondent Employer to obtain a refresher medical report, which would assist both parties, and the Commission in determining the relative merits of his current medical condition.
Referring to the objectives of the Commission set out in section 367(1) of the 1998 Act and Part 3 of the Registrar’s Guideline in relation to the Standards of Conduct during Proceedings (the Registrar’s Guideline), the Respondent Employer submits that while Mr Silk is entitled to pursue his current position, the result is that the proceedings have been unnecessarily delayed for no apparent purpose. His substantial claim for ongoing weekly benefits should not be determined on the basis of one report from Dr Stephen. Mr Silk has not undergone recent examination on behalf of the Respondent Employer and has not been functionally and vocationally assessed for the purpose of trying to identify and establish the exact extent of his injury and incapacity, if these exist.
It is further submitted that Mr Silk would suffer no hardship, distress or prejudice in attending the appointments and, had he done so as scheduled, the Respondent Employer would now be in possession of current, probative and comprehensive medical evidence to support recommendations to either resolve this matter or maintain the dispute.
Finally, the Respondent Employer contends that in compliance with Rule 39 [Rule 40] of the Rules, it detailed in its Reply the specific nature of the medical reports requested and to be relied upon, including the purpose of the reports. It submits that it is open to the Commission, in accordance with the discretion outlined in Rule 39(5) [Rule 40(5)], to allow the medical evidence sought by the Respondent Employer, by directing Mr Silk to attend medical examinations with the doctors nominated in the Reply.
From a reading of the Arbitrator’s Statement of Reasons in this matter, it is apparent that the submissions made on appeal are substantially the same as those that were made to the Arbitrator.
DISCUSSION AND FINDINGS
Nature of an 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 de novo. The matter is not being dealt with afresh. The Presidential Member is not arriving at an entirely fresh decision based on 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 review is by way of rehearing, where the powers of the Presidential Member to revoke the decision pursuant to section 352(7) of the 1998 Act and to substitute a new decision in its place, are exercisable only where it is demonstrated that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2002) 203 CLR 172).
Order by Arbitrator for medical and vocational examinations
In Godfrey Part 20, Rule 2 of the Compensation Court Rules was discussed.The Appellant Worker has pointed out that there are no similar provisions contained in the Workers Compensation Commission Rules 2003 and contends that had the same effect been intended, a similar provision would have been included. I agree with the Arbitrator who rejected this proposition, stating:
“I find I am not persuaded by the view of the Applicant that the lack of reference to procedures for medical examination in the Commission rules is indicative of and [sic] intention for such examinations not to take place. This could in effect deny all Respondents the opportunity to respond to injuries/diseases of gradual onset, which by their nature may not be immediately discernable at the time of employment.”
On what is before me, it is established that there was no indication at the time of the examination by Dr Stephen that Mr Silk was to allege that he had sustained injury as a result of an aggravation of a disease pursuant to section 16 of the 1987 Act, as distinct from an injury sustained purely by reason of the nature and conditions of his employment. The claim that Mr Silk suffered from a disease was included, in the alternative, in the Application to Resolve a Dispute, filed in the Commission on 27 February 2004 and registered on 5 March 2004. In its Reply, the Respondent Employer indicated the documents and information on which it intended to rely but did not then have in its possession (Rule 40). These included the medical reports and the vocational assessment that it now seeks, pursuant to the order made by the Arbitrator. Dr Stephen’s report is dated 9 December 2002. The Arbitrator found that the claim of an aggravation of a disease after an elapsed period of 18 months provides sufficient reason for the Respondent Employer to investigate that period, particularly when within that period, Mr Silk was employed with another employer “and this may have impacted on the Applicant’s incapacity.” Whether or not the Arbitrator allows the documents nominated, into evidence in the proceedings before her is yet to be formally determined. However, given that the Respondent Employer has had no opportunity to assess Mr Silk’s claim of aggravation of a disease, it cannot know one way or the other, whether it ought to concede the point and settle the dispute, or to continue to contest it. In these circumstances at least, it was open to the Arbitrator to make the order, referring Mr Silk for examination and assessment.
I agree with the Respondent Employer that there is no prejudice to Mr Silk and potentially at least, the assessments may offer some prospect of settlement of the dispute, if the reports vindicate his claim of aggravation of disease. On the other hand, the Respondent Employer would suffer prejudice in the absence of the reports, by reason of being unable to properly assess its position, and to prepare and present its case in relation to what is a substantial claim against it, for weekly benefits. This would be manifestly unfair and could cause injustice.
I can find no error of law, fact or discretion on the part of the Arbitrator who in my view, was entitled to make the orders.
DECISION
The appeal is unsuccessful. The decision of the Arbitrator is confirmed.
Gary Byron
Deputy President
29 September 2004
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.
ASSOCIATE
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