Silk v State Rail Authority of NSW
[2006] NSWWCCPD 79
•10 May 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Silk v State Rail Authority of NSW [2006] NSWWCCPD 79
APPELLANT: Clayton Silk
RESPONDENT: State Rail Authority of NSW
INSURER:Self Insurer
FILE NUMBER: WCC3974-04
DATE OF ARBITRATOR’S DECISION: 24 March 2005
DATE OF APPEAL DECISION: 10 May 2006
SUBJECT MATTER OF DECISION: Extension of time to appeal, errors of fact, adequacy of reasons, credit finding, procedural fairness
PRESIDENTIAL MEMBER: Acting Deputy President Michael Snell
HEARING:On the papers
REPRESENTATION: Appellant: Beilby Poulden Costello
Respondent: Phillips Fox
ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 24 March 2005 is revoked and the matter is remitted to another Arbitrator for determination afresh.
The Respondent is to pay the Appellant’s costs of the appeal.
BACKGROUND TO THE APPEAL
On 5 May 2005 Clayton Silk (‘the Appellant ’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 24 March 2005.
The Respondent to the Appeal is the State Rail Authority of NSW (‘the Respondent’).
The Appellant commenced employment with the Respondent as a carriage cleaner on 8 August 2002. After a period he commenced to suffer symptoms in the back, allegedly due to the nature of his duties. He reported the injury on 12 November 2002. He was placed off work by his general practitioner, from 30 November 2002. A claim for weekly benefits and medical expenses was lodged on 5 December 2002, and the Respondent commenced payments of “provisional compensation”. The Appellant was examined by Dr Stephen at the Respondent’s request on 9 December 2002, the same date on which the Appellant resumed duties with the Respondent, working on light duties.
Dr Stephen’s report was not supportive of the Appellant’s claim for compensation, and by letter of 11 December 2002 the Respondent denied the claim. The Respondent terminated the Appellant’s employment by letter dated 17 December 2002, effective 20 December 2002.
The Appellant did not work thereafter, until obtaining work with Wilson Traffic Management as a traffic co-ordinator, from 15 November 2003 until 7 January 2004, when he was terminated from that employment.
An Application to Resolve a Dispute was filed on 5 March 2004, claiming weekly payments at a rate of $546.06 from 11 December 2002 to date and continuing, together with a general order for the payment of expenses pursuant to section 60 of the Workers Compensation Act 1987 (‘the 1987 Act’). The “Injury Details” alleged in Part 3 of that Application give the date of injury as 12 November 2002, and allege:
“The worker sustained injury as a result of the nature and condition (sic) of employment where he was required to clean, mega wash, wipe, scrub and mop trains or in the alternative the worker has sustained injury as a result of an aggravation of a disease pursuant to Section 16 of the Act.”
The Respondent filed a Reply on 25 March 2004, pleading lengthy “issues in dispute and reasons supporting dispute”, which I shall not recite here.
Ultimately a dispute occurred between the parties regarding the attendance by the Appellant at medical and vocational assessment appointments arranged by the Respondent. This culminated in orders being made by the Arbitrator on 19 July 2004 for the Appellant’s attendance at such appointments. These orders were the subject of an unsuccessful appeal by the Appellant, which was decided on 29 September 2004 (Silk v State Rail Authority of NSW [2004] NSWWCCPD 70). The Appellant subsequently attended the relevant appointments.
The Appellant was also directed by the Arbitrator to attend a medical assessment by an approved medical specialist, Dr Bodel, and this assessment was held on 12 November 2004. Dr Bodel described the question he was asked to assess as being “whether the applicant has a continuing aggravation of his spondylosis condition since ceasing employment with the respondent on 20 December 2002”. The doctor also dealt with three specific questions asked of him, regarding whether the Appellant suffered from a disease, the Appellant’s capacity for employment, and whether there were medical reasons for the Appellant ceasing his job as a traffic co-ordinator.
The matter proceeded to Arbitration on 3 March 2005. The parties relied upon documentary evidence. In addition some relatively short evidence was given by the Appellant. There were submissions.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 24 March 2005 records the Arbitrator’s orders as follows:
“1. Award in favour of the respondent in respect of the applicant’s claim for weekly payments of compensation.
2. Award in favour of the respondent in respect of the applicant’s claim for expenses under section 60 of the Workers Compensation Act 1987.
3. No order as to costs.”
The Arbitrator’s reasoning process is set out in her Reasons for Decision dated 24 March 2005.
ISSUES IN DISPUTE
The issues in dispute in the appeal are multiple, and will be described in more detail later in these reasons. Essentially the Appellant raises the following matters:
1. The Arbitrator has made material mistakes as regards various facts, and has not given an accurate account of the evidence before her. The Appellant points to what are said to be a number of specific instances in this regard.
2. The Arbitrator has failed to give any or any adequate reasons for preferring the opinion of Dr Stephen (in the Respondent’s case), over the opinions of Drs. Bentivoglio and Berry (in the Appellant’s case) and the approved medical specialist Dr Bodel.
3. The Arbitrator has failed to give any or any adequate reasons for her finding regarding the credit of the Appellant.
4. The Arbitrator has erred in indicating, during the running of the Arbitration, that she proposed making a finding that the Appellant had sustained injury involving the aggravation of a disease process within the meaning of section 16 of the 1987 Act. It is said the Arbitrator, in her Reasons for Decision, has then approached the matter in a contrary manner, finding “injury by way of the nature and conditions of his employment”. It is asserted the Appellant has been prejudiced by this scenario, as he has been deprived of the opportunity to “address the issue as to whether or not he had sustained an injury by way of the nature and conditions of his employment and indeed whether any aggravation had ceased”.
The relief sought by the Appellant is that the Arbitrator’s decision be revoked, and the matter be remitted to another Arbitrator for determination.
The Respondent, in its submissions in response, takes issue with all of the matters raised by the Appellant, and contends the Arbitrator’s decision should be confirmed.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘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 “makes no submissions in this regard”, on the question of whether the appeal should be dealt with on the papers. It is a question the Respondent does not address in its written material filed in this appeal. There is no application to admit fresh evidence. 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.
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 Appellant has failed, in its submissions, to address the question of whether the thresholds regarding quantum in subsection 352(2) have been met. The respondent submits that this failure to address the topic means the Appellant has failed to demonstrate the threshold has been crossed, and accordingly it is submitted “the Commission does not have jurisdiction to deal with the proposed appeal.” The Respondent does not actually make a submission the thresholds are not met.
The failure of the Appellant to address these threshold issues involves a lack of compliance with both Rule 77(3)(b) of the Workers Compensation Commission Rules 2003 (‘the Rules’), and with Practice Direction No. 6. The Application to Resolve a Dispute claims weekly compensation at a rate of $546.06 from 11 December 2002 to date and continuing. There is a period, whilst the Appellant was employed by Wilson Traffic Management, when his actual earnings may preclude an award of weekly compensation. Beyond the first twenty-six weeks of incapacity, the maximum compensation recoverable would have been the figure thrown up by section 37 of the 1987 Act, rather than the figure claimed of $546.06 per week. Even allowing for these factors, it is clear the quantum of weekly compensation at issue on the appeal is significantly in excess of the sum of $5,000.00 referred to in section 352(2)(a). The whole of the sum is at issue, the Arbitrator having entered an award in favour of the Respondent. Thus section 352(2)(b) is satisfied. Accordingly, whilst it is regrettable the Appellant failed to specifically address the topic of the section 352(2) thresholds, it is clear such thresholds are met.
Rule 77(2) of the Rules provides the date of the decision is the date when the Commission issues a certificate as to the determination of the dispute, in compliance with section 294(1) of the 1998 Act. The date of the Certificate of Determination is 24 March 2005.
The Appeal Against Decision of Arbitrator was filed on 5 May 2005, outside the period of twenty-eight days from the making of the decision, within which such an appeal may be brought in compliance with section 352(4). Accordingly the Appellant requires leave to extend the time to lodge an appeal. Such an extension is potentially available pursuant to Rule 77(8) of the Rules, which provides as follows:
“(8) The Commission constituted by a Presidential member may, if a party satisfies the Presidential member, in exceptional circumstances, that to lose the right to seek leave to appeal would work demonstrable and substantial injustice, by order extend the time for making an appeal.”
The Appellant on 26 April 2005 lodged an Appeal Against Decision of Arbitrator. That document described the date of decision appealed against as 1 April 2005. This is inconsistent with the date of the Certificate of Determination. At that stage the Appellant appears to have proceeded on the basis he had twenty-eight days from 1 April 2005 in which to appeal. That document was rejected by the Registry for other procedural reasons, being that reasons had not been attached dealing with why the leave application and appeal should be determined on the papers, that insufficient copies had been filed, and that an outdated form had been used. The document was returned to the Appellant’s solicitors by letter dated 27 April 2005, specifying such reasons.
The file of the Commission includes a file note to the effect that the “COD was issued on 1 April 2005”. The source of this misapprehension is not apparent. It does adds credence to the notion that the Appellant’s solicitors acted under a genuine belief that 1 April 2005 was the date the Certificate of Determination issued, and accordingly believed the appeal was in time when an attempt was first made to lodge it on 26 April 2005.
The Appeal Against Decision of Arbitrator which is now before the Commission was then filed on 5 May 2005. It is accompanied by submissions in support of an extension of time in which to lodge an appeal. Those submissions effectively raise two points:
1. The appeal was originally filed within time, and only got out of time because of “procedural errors”.
2. There would be significant injustice to the Appellant if an extension were not granted, as the proceedings relate to “substantial rights to compensation including weekly compensation and medical expenses of an ongoing nature”.
The Respondent’s Submissions on the appeal do not touch on the question of whether an extension should be granted pursuant to Rule 77(8).
The principles governing an extension of time in which to file an appeal were dealt with by McHugh J. in Gallo v Dawson (1990) 93 ALR 479:
“The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194-5; 70 ALR 185. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871 at 872; Hughes at 263-4, Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has “a vested right to retain the judgment” unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201.” (at 480)
This passage has been applied on many occasions by Presidential members of the Commission, in dealing with applications pursuant to Rule 77(8) (see Madafiglio v Arnotts Biscuits [2006] NSWWCCPD 36, and the cases cited therein at[50]).
The first of the points raised by the Appellant in support of the application to extend is not strictly correct, having regard to the date of the Certificate of Determination. The error regarding the date of the Certificate of Determination is repeated in the second appeal document filed by the Appellant, which is that on which the Appellant relies in this appeal. The date of determination continues to be described as 1 April 2005.
In considering the history of the litigation and the conduct of the parties, the Appellant has operated under the mistaken belief that the appeal (in its rejected form) was lodged within time. The original appeal document having been returned to the Appellant’s solicitors, further documents were then prepared and lodged with reasonable promptness. When the document in its current form was lodged on 5 May 2005, it was about two weeks out of time.
It is relevant the Respondent has not sought to oppose the extension, nor asserted any prejudice would occur if the extension were granted.
The consequence of failing to grant the extension would be that the Appellant would lose his right to pursue an appeal. The finding by the Arbitrator would remain, that the effects of the injury suffered by the Appellant had ceased by 20 December 2002.
For reasons which will appear later in this Determination, I am of the view there are reasonable prospects of the Appellant succeeding in this appeal.
Having regard to the relatively short period by which the appeal is out of time, the reasons for it being filed out of time, the lack of any claim of prejudice by the Respondent, the substantial nature of the rights of the Appellant which are at issue, and the prospects of the appeal succeeding, it is in all of the circumstances appropriate to extend the time for filing an appeal in this matter, pursuant to Rule 77(8). In my view this is consistent with doing justice between the parties.
In all of the circumstances it is appropriate that leave to appeal be granted.
DISCUSSION AND FINDINGS
The appeal is by way of review, pursuant to section 352(5) of the 1998 Act. The Arbitrator’s decision should only be disturbed if it contains an error of law, fact or discretion, and then only if, but for the error, a different decision would have been made (South Western Sydney Area Health Service v Edmonds [2005] NSWWCCPD18).
Paragraphs 3 a, b, c, d and e of the submissions in the Appellant’s Grounds of Appeal attack the Arbitrator’s Reasons on the basis that she has misunderstood or misquoted evidence. I will deal with them in turn.
Paragraph 3a of the grounds attacks a finding at page 6 of the Arbitrator’s Reasons where it is said:
“The heaviest cleaning involved cleaning 2 and a half carriages over a shift. This involved bending but was not particularly demanding.”
The Appellant says this statement is inconsistent with the evidence. The Appellant’s evidence regarding his duties is to be found at paragraph 5 of his statement dated 17 February 2004, which is annexed to his Application to Resolve a Dispute. It is as follows:
“My duties as a carriage cleaner involved the cleaning of train carriages. This involved mopping, scrubbing, washing and wiping. I was required per shift to clean 2.5 train carriages. The work was extremely physical and required repetitive bending and twisting.”
It was open to the Respondent to obtain and utilise evidence if it could, to disprove the Appellant’s account of the arduousness of his work duties. There was no evidence put on by the Respondent to contradict the Appellant’s account that his work was, amongst other things, extremely physical.
The Appellant was called, on the application of his own legal advisor, to give some evidence on the limited topic of his work (subsequent to the Respondent) with Wilson Traffic Management. His evidence was led by the Arbitrator rather than his own legal advisor. Ultimately her questioning seems to have gone beyond the limited scope for which he was called. The course seems unusual, but was apparently adopted by consent, and is not in any way challenged in this appeal. After the Arbitrator concluded asking him questions, the Appellant was briefly cross-examined by the Respondent’s counsel. The cross-examination went solely to the state of the Appellant’s symptoms (and associated medication) whilst he worked for Wilson Traffic Management. The cross-examiner did not seek to challenge the Appellant’s account, in his statement, regarding the arduousness or nature of his duties.
Whilst the various medical practitioners whose reports were before the Arbitrator adduced differing levels of detail from the Appellant regarding his employment duties with the Respondent, I would not regard any of the histories as being inconsistent with the version in the Appellant’s statement.
The Respondent’s counsel, in his address, used the phrase “not all that demanding” (at T30.50). However he did so in a different context, saying “One would have thought that two and a half carriages over an entire shift is not all that demanding.” I take this to be a reference to the reasonableness of the number of carriages the Appellant was required to clean, rather than a reference to the actual duties involved in cleaning them.
Paragraphs 1 to 4 of the Respondent’s submissions on the appeal seek to respond to the assertion that there was no evidence to support the finding made by the Arbitrator regarding the Appellant’s work duties. The essential submission is that the term used by the Arbitrator, “not particularly demanding”, is a “value judgment not capable of objective qualification”.
In my view the description of the Appellant’s work adopted by the Arbitrator differs markedly from the version in the Appellant’s statement. Clearly the tenor of the Arbitrator’s description is to imply the Appellant’s duties were less arduous than his description in his statement would indicate. This is in circumstances where the Respondent had not sought to adduce any evidence, or otherwise challenge, the Appellant’s evidence on the point. The difference is important in the circumstances of the case. There was no frank incident alleged, and the Appellant relied upon allegations of “nature and conditions of employment”, or in the alternative “aggravation of a disease” as causing injury. Clearly the physical nature of his duties was significant, in deciding whether the work duties could have caused injury in the manner alleged, and if so, with what severity. The arduousness of the duties also was clearly relevant to any finding that the Appellant was unfit for his pre-injury work with the respondent.
Paragraph 3b of the Grounds of Appeal takes issue with a finding of the Arbitrator on page 6 of her Reasons for Decision. The relevant paragraph in the Reasons reads:
“The Applicant’s employment history is that he resigned voluntarily in circumstances which appear to be related to performance and a change in shift which competed with his studies at TAFE. He did not leave due to incapacity to perform the work.”
It is submitted on the Appellant’s behalf that there was no evidence the Appellant had resigned voluntarily, and indeed the Appellant submits it had been conceded by the Respondent’s counsel, in submissions, “that the worker’s employment was terminated by the Respondent”.
The Appellant’s statement dated 17 February 2004, at paragraphs 12 and 13, clearly indicates he resumed work on light duties on 9 December 2002, and was notified by letter from the Respondent, received on 17 December 2002, that his employment was to be terminated as of 20 December 2002.
The Respondent’s counsel in addresses said:
“So despite the fact that the applicant threatened to and said he would resign and wanted to relinquish his employment and he would come back later, the reality of life is that our people eventually, within a month, put him off anyway.” (at T32.30)
There are two handwritten documents attached to the Respondent’s Reply which touch on the topic. The first is a memorandum from James Ede, Presentation Co-ordinator to Phil McColl, Fleet Manager dated 25 November 2002. It describes an incident in which Mr Ede admonished the Appellant on “Monday”, and:
“Mr. Silk at this point said that he was resigning because we were slave drivers and he was not going to work under these conditions. I then stated that he would have to put his resignation in writing, he then relinquished duty stating we would get it later.”
The second handwritten document is headed “29/11/02 – Meeting with Clayton Silk (9.30am)”. It describes the Appellant being asked about “his workmanship & abandoning his work since Monday”. It describes discussion regarding the Appellant’s complaints of back pain, and the Appellant explaining that day shift made his TAFE studies inconvenient. The Appellant was given claim forms to fill in, was asked to see a doctor, and there was explanation about “selected duties – day shift”. The Appellant was told his working standards had to improve.
These handwritten documents are totally inconsistent with the Appellant having resigned at that point. They are consistent with the Appellant’s statement, and with the concession made by the Respondent’s counsel in addresses. There is no other evidence relevant to an assertion the Appellant had resigned, as opposed to being terminated by the Respondent, as he said in his statement.
The Respondent’s submissions on this appeal, at paragraphs 5 to 7, assert there was sufficient evidence to support the finding made by the Arbitrator regarding the cessation of the Appellant’s employment with the Respondent. It is submitted the two handwritten documents referred to above support the Arbitrator’s finding of fact on this point. They do not. This finding of fact, regarding the cessation of the Appellant’s employment, was inconsistent with the evidence, and with the concession made by the Respondent’s counsel in addresses. There was not evidence to support the finding.
Again the finding is one of significance. The Arbitrator’s finding that the Appellant resigned, and the reasons why, leads her to the conclusion “He did not leave due to incapacity to perform the work”. That conclusion is not only relevant to the Appellant’s case on incapacity. It also would tend to suggest the Appellant was not so badly affected by his back injury at that point as to incapacitate him for work. This would be consistent with any injury suffered by the Appellant being of a minor nature. Accordingly this erroneous finding is potentially significant, in the finding ultimately made by the Arbitrator, that the aggravation of the Appellant’s spondylosis occasioned by his work duties with the respondent did not continue beyond 20 December 2002.
The next challenge to the Arbitrator’s Reasons is set out in paragraph 3d of the Grounds of Appeal. The relevant passage, on page 7 of the Reasons, reads:
“In respect to the disc pathology, there is a lack of contemporaneous medicine which supports the view that there was disc pathology in December 2002. The first evidence of this emerges with Dr Csillag some 7 months after leaving the Respondent’s employment.”
The Appellant submits that, as the radiological report of Dr Csillag is dated 30 November 2002, the Arbitrator has identified a gap which did not really exist.
The difficulty probably comes from the Arbitrator confusing the radiologists who were the authors of two different reports. Dr Csillag was the author of a report of 30 November 2002, which commented on plain x-rays of the lumbar spine. The first radiological report to identify disc pathology (and indeed the first investigation of a type which would be likely to detect such pathology) is that of Dr Doull dated 7 July 2003, commenting on a lumbar CT Scan.
Whilst the Arbitrator does misdescribe the evidence, I am not satisfied the misdescription leads to the consequence submitted by the Appellant. It is clear from the passage of the Reasons at page 6.3 that the Arbitrator was aware the Appellant had undergone an x-ray examination on 30 November 2002, which was reported upon by Dr Csillag. I do not take the Arbitrator, in the passage relied upon by the Appellant, to be finding there was a gap in the Appellant obtaining medical treatment, or undergoing radiological investigation, of seven months.
Rather, the import of the Arbitrator’s comment is that there is no medical evidence confirming the existence of disc pathology, prior to Dr Doull’s CT Scan report of 7 July 2003. In my view the misdescription does not have the effect contended for in paragraph 3d of the Appellant’s Grounds of Appeal.
However I do find the Arbitrator’s reasoning in relation to these radiological reports troubling. At page 6.3 she describes the contents of the report by Dr Csillag on the plain x-rays of 30 November 2002, and then adds “There was no L4/5 lesion suggested”. The investigation was plain x-rays. It is not suggested by any of the medical evidence that one would necessarily have expected disc pathology to be detected by this investigation, if such pathology existed.
At page 6.5 of her Reasons the Arbitrator sets out the contents of the radiological report of Dr Doull, on the CT Scan of 7 July 2003. She then adds the comment:
“In my view, this is more suggestive of the natural progression of the pre-existing condition than a continuation of an aggravation of an injury in November 2002.”
None of the medical evidence in the matter comments on the CT Scan in the terms adopted by the Arbitrator. It is unclear whether the comment flows from her earlier comment regarding the absence of L4/5 disc pathology in the report dealing with the plain x-rays.
The passage of the Reasons quoted in paragraph 3e of the Grounds of Appeal effectively states that there is no medical evidence before the Commission confirming the Appellant’s complaints for a period of seven months, leading up to the CT Scan report of 7 July 2003. The Arbitrator says that consequentially she is reliant upon the Appellant’s evidence (and therefore his credit) to be satisfied he suffered from the symptoms alleged, over that period. I can see no flaw in this logic. It is true there was no medical evidence (as distinct from the Appellant’s statement and evidence) to corroborate the Appellant’s complaints over that period between December 2002 and July 2003. I do not take the Arbitrator to be saying there was no evidence of medical treatment prior to July 2003, which is the meaning the Appellant submits attaches to that passage. Such a statement would have been a misdescription of the evidence, but I do not think this is what the Arbitrator has said.
Paragraph 3f of the Grounds of Appeal refers to a passage at page 7 in the Arbitrator’s Reasons, in which she describes Drs. Bodel and Berry as not having had the benefit of Dr Stephen’s contemporaneous clinical findings (on examination on 9 December 2002), in forming their views. This is significant as both Dr Berry and Dr Bodel supported the proposition that the Appellant had ongoing symptoms in the lower back, causally related to the Appellant’s employment duties with the Respondent. Dr Stephen (whose views the Arbitrator accepted in preference) opined there may have been “some minor aggravation of Mr. Silk’s spondylosis”, but said such aggravation had ceased by the time he examined the Appellant on 9 December 2002. The Arbitrator’s statement that Drs. Berry and Bodel had not had the benefit of Dr Stephen’s clinical findings in December 2002 provided a potential basis for her preferring the views of Dr Stephen. It does appear to have been significant in the Arbitrator’s reasoning, as she had made the same point previously (in relation to Dr Berry) at page 6.7 of her Reasons.
It is asserted at paragraph 3f of the Grounds of Appeal that the Arbitrator is factually incorrect in this regard, as both Dr Berry and Dr Bodel had access to the report of Dr Stephen dated 9 December 2002, including Dr Stephen’s clinical findings.
In so far as Dr Berry is concerned, there is nothing in his report to substantiate this assertion. He may have had access to Dr Stephen’s report, but the report of Dr Berry does not indicate what material he had access to, prior to preparing his report. There was no material before the Arbitrator which would establish Dr Berry had access to Dr Stephen’s report (and clinical findings). Accordingly this ground of appeal does not succeed in so far as Dr Berry is concerned.
The situation is different in respect of Dr Bodel. Page 4 of Dr Bodel’s report sets out the material to which he had access. The list includes Dr Stephen’s report of 9 December 2002. Dr Stephen’s clinical findings are set out on page 3 of that report under the heading “Clinical Examination”. Clearly Dr Bodel had access to this material. Furthermore Dr Bodel discusses Dr Stephen’s report, including the clinical findings, at pages 5.9 to 6.2 of his report.
The Respondent, in response to this argument, says what the Arbitrator meant was that Drs. Berry and Bodel “did not have the benefit of examining the Applicant contemporaneously with the alleged onset of symptoms” (paragraphs 22 to 25 of Respondent’s Submissions). I do not find this argument convincing. Clearly medical practitioners can reduce clinical findings to writing. It is an everyday occurrence. Dr Stephen had done so, and Dr Bodel clearly noted he was aware of such findings, and considered them. If the Arbitrator had intended to say Dr Bodel did not have the benefit of himself examining the Appellant contemporaneously with the onset of symptoms, she could have done so.
The Arbitrator’s statement that Dr Bodel did not have access to the clinical findings of Dr Stephens is, as the Appellant submits, incorrect.
Again, the error is a significant one. The case presented a conflict of medical opinion which had to be resolved. The Arbitrator’s stated belief that Dr Bodel did not have access to the clinical findings of Dr Stephen provided a potential reason, which may well have been significant, in her decision to prefer the opinion of Dr Stephen over that of Dr Bodel.
There are a number of Presidential decisions dealing with the appropriate approach when an Arbitrator has made errors in fact finding. In Westpac Banking Corporation v Kilby & Bananacoast Credit Union Ltd [2005] NSWWCCPD 24 it is said:
“As stated in South Western Sydney Area Health Service v Edmonds [2005] WCCPD 18, the weight and relevance to be given to evidence before an Arbitrator is a matter in the discretion of that Arbitrator. The decision of the Arbitrator should not be overturned unless it can be demonstrated that the Arbitrator has failed to exercise that discretion fairly and according to law. This may occur when an Arbitrator has acted upon an incorrect legal principle, allowed irrelevant considerations to influence the decision, made a material mistake as to the facts, or failed to take into account relevant and material considerations, (House v The King (1936) 55 CLR 499 at 504-505; Norbis v Norbis (1986) 161 CLR 513 at 520, and In the Matter of National Roads and Motorists Association Ltd [2003] FCAFC 206 at [21]). (per Byron DP at [54])
In Knight v Eyles Nominees Pty Limited t/as Processed Forest Products [2004] NSWWCCPD 73 Fleming DP says:
“Interference with an Arbitrator’s discretionary judgment as to the weight of evidence should only be done where it is manifestly obvious the discretion has so miscarried that it has not been exercised fairly and lawfully. In my view this is such a case. The Arbitrator has not, in her reasons, given a fair or accurate account of the evidence that was before her.” (at [40])
In my view the factual errors referred to above are such that interference is called for. There are a number of errors referred to by the Appellant involving misstatements of the evidence on matters which are material, and which have potentially affected the result.
Paragraphs 3g, h and i of the grounds of Appeal raise arguments regarding whether the Arbitrator erred in preferring the views of Dr Stephen over the views of Drs. Berry, Bentivoglio and Bodel, and whether she gave sufficient reasons for doing so.
It is convenient to deal initially with the matters raised in Paragraph 3i. That ground effectively claims the Arbitrator erred in preferring the views of Dr Stephen over the views of Drs. Bentivoglio, Berry and Bodel. The error is said to stem both from the factual errors previously referred to, and from the failure to consider the advantage Drs. Bentivoglio, Berry and Bodel had over Dr Stephen in formulating their opinions, as they had access to the CT scan and MRI findings, whereas Dr Stephen did not.
The medical evidence on both sides of the record was consistent with the proposition that the Appellant suffered from a pre-existing condition in his lower back, and also with the proposition that this condition may well have been aggravated by the duties he carried out with the Respondent. Dr Bodel went a little further than this. He was of the view the Appellant’s duties probably aggravated the pre-existing problem, and in addition said the “disc pathology has probably been caused by the nature and conditions of his work as a carriage cleaner at State Rail”. (at page 4.5 of his report). Where the medical evidence diverged (leaving to one side Dr Bodel’s opinion regarding the disc pathology), was whether the effects of the aggravation were ongoing. Drs. Berry, Bentivoglio and Bodel answered this in the affirmative, whereas Drs. Stephen, Perla and Edwards were of the opinion the aggravation was one where the effects ceased after differing periods.
The task which the Arbitrator perceived herself to be facing in dealing with the conflicting medical views is set out at page 7.2 of her Reasons:
“There is a divergence of medical opinion as to whether this condition is a disease or simply a mechanical anomaly resulting in a propensity towards early degenerative changes and leaving the Applicant with a lowered capacity to manage heavy weights, repetitive bending or prolonged positions. On the balance I prefer the latter position. Dr Stephens (sic) puts his mind to this question in some detail and is convincing.”
The finding of the Arbitrator on the question of whether there is a causal link between the Appellant’s work duties and any ongoing incapacity is at page 7.5 of her Reasons:
“I find that the Applicant had an aggravation of his pre-existing condition. That aggravation had fully resolved by the time he saw Dr Stephen and the nature and conditions of the Respondent’s employment was not a substantial contributing factor to any aggravation either during the period of his unemployment or his employment as a traffic controller. I find that any aggravation or incapacity if found now, may relate to his work as a traffic controller or the natural progress of his pre-existing condition and is therefore not the liability of the Respondent.
The Applicant has failed to substantiate his claim that the nature and condition (sic) of the Respondent’s work caused a continuing aggravation of his spondylosis condition since ceasing employment with them on the 20/12/02.”
There are difficulties with how the Arbitrator has approached the question. It is unclear why, at 7.2, she described the alternatives as she did. There is no reason why a “mechanical anomaly resulting in a propensity towards early degenerative changes and leaving the Applicant with a lowered capacity” would necessarily be inconsistent with a condition being a ‘disease’ within the meaning of section 16 of the 1987 Act, potentially subject to aggravation. And indeed she has gone on to find the Appellant suffered injury involving the aggravation of a pre-existing condition, albeit with self-limiting consequences. The way in which the finding is expressed at page 7.5 also suggests a blurring of two separate questions, one being whether section 9A of the 1987 Act has been satisfied, and the other being whether a causal link is established between the injury the Arbitrator has found, and incapacity during the period of the claim. Whether the Arbitrator applied an appropriate test on the question of causation is not, however, a matter raised by the Grounds of Appeal.
It is true, as the Appellant submits, the Arbitrator did not, in her evaluation of the medical evidence, deal with a disadvantage under which Dr Stephen laboured in comparison with the other doctors. There is no indication he was given access to the CT scan report and MRI scan report. He does not refer to them. This is surprising given that Dr Stephen prepared a supplementary report dated 8 June 2004, which was used by the Respondent, post-dated those investigations, and post-dated service of the Application to Resolve a Dispute (to which those radiological reports were annexed) upon the Respondent. This is a matter which goes to weight.
I accept the submission by the Appellant that the way in which the Arbitrator dealt with the medical issue must be looked at in context, having regard to the factual errors identified earlier. It is also relevant that she approached the medical issue under the belief, which I have already found to be mistaken, that Dr Bodel had formulated his opinion unaware of the clinical findings of Dr Stephen. In my view the way in which the Arbitrator has approached the medical issue demonstrates error in how she went about deciding which of the competing medical views she preferred. She has taken into account the factual errors previously referred to. She has failed to take into account a relevant matter, being Dr Stephen’s apparent lack of awareness of the CT Scan and MRI Scan reports.
Paragraphs 3g, and h of the Grounds of Appeal raise issues regarding the adequacy of the Arbitrator’s reasons. Given the conclusion I have reached regarding the factual errors alleged, including the way the Arbitrator dealt with the competing medical opinions, it is not necessary that I deal with the points regarding reasons in great detail. There is a helpful analysis by Byron DP of the duty of Arbitrators to give reasons, in NSW Department of Education and Training v Sanders [2004] NSWWCCPD 89 (‘Sanders’):
“11. An Arbitrator has a statutory duty to provide adequate reasons for decision. Section 294(2) of the 1998 Act and Rule 73 require the Commission to provide reasons for decision in the determination of a dispute. (See also Absolon v NSW TAFE [1999] NSWCA 311 and YG v Minister for Community Services [2002] NSWCA 247). Failure to provide adequate reasons is not only a breach of an Arbitrator’s statutory and common law obligations, it is an error of law (Sydney Water Corporation Ltd v Aqua Clear Technology, Supreme Court of NSW, per Rolfe J, (P/L 55047/96) 17 December 1996; Dennis Willcox Pty Limited v Federal Commissioner of Taxation (1988) 79 ALR 267). If the failure is established, it may be a ground to revoke the decision made. An Arbitrator is not required to give lengthy and detailed reasons for decision, nor to recite and analyse in detail the content of the evidence and submissions. The standard by which adequacy of reasons must be determined is relative to the nature of the decision itself and the decision-maker (see discussion in Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSW WCC PD 6 and Fraternity Bowling & Recreation Club Ltd v Sartor [2004] NSW WCC PD 47). The Commission is not a court and its proceedings are conducted with as little formality and technicality as the proper consideration of the matter permits (see Objectives of the Commission in section 367 of the 1998 Act). Fundamentally, the reasons given must be capable of conveying adequately to the parties, the basis upon which the Arbitrator came to the decision that was made.”
Paragraphs 3g and h of the Grounds of Appeal relate to the reasons the Arbitrator gave for approaching the conflict of medical opinion as she did. Whilst I have found there to be appealable error in the way she went about this task, the reasons she gave satisfied the test as described in Sanders.
Paragraph 3j of the Notice of Grounds of Appeal asserts error both in the finding the Arbitrator made as regards credit, and in the reasons she gave in this regard. In Devries v Australian National Railways Commission (1993) 177 CLR 472 (‘Devries’) at 479 Brennan, Gaudron and McHugh JJ said:
“More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based upon the creditability of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against – even strongly against – that finding of fact. If the trial judge’s finding depends on any substantial degree on the creditability of the witness, the finding must stand unless it can be shown that the trial judge ‘has failed to use or has palpably misused his advantage’ or has acted on evidence which was ‘inconsistent with facts incontrovertibly established by the evidence’ or which was ‘glaringly improbable’.”
The Appellant asserts the Arbitrator formed the view she did of the Appellant’s credit, because she made a factual error regarding the seven month gap (discussed at paragraphs 54 to 58 of these reasons). For the same reasons as previously, I am not convinced the Arbitrator was identifying a gap of seven months before the Appellant sought treatment. Nor do I read her Reasons to say the reason she has made the finding on credit is because of this gap. Accordingly I am not persuaded the Arbitrator fell into factual error in relying upon such a gap as a reason for forming a view adverse to the Appellant’s credit.
It does not matter whether I would have reached the same view as the Arbitrator regarding the Appellant’s credit. That finding on credit will only amount to appealable error if the Arbitrator has fallen into error in making the finding, having regard to the principles in Devries. I am not persuaded that she has done so.
The Arbitrator gives reasons for her credit finding, at page 7.4 of her Reasons. There are said to be “inconsistencies emanating from the medical reports as described above and from verbal evidence.” This is a reference to certain ‘inconsistencies’ described at pages 6.9 to 7.2 of the Arbitrator’s Reasons. The Arbitrator also had the advantage of hearing and seeing the Appellant give evidence, although she does not specifically refer to the Appellant’s demeanour as being a factor in the view she formed on credit. Applying the duty to give reasons as discussed in Sanders, I would regard the Arbitrator’s reasons on this point as sufficient.
At paragraph 3k of the Grounds of Appeal the Appellant raises an issue, which is not particularly well defined, but which I take to be an assertion the Appellant was denied procedural fairness. It is said a dispute arose during the course of the Arbitration as to whether the Appellant had sustained an injury due to the ‘nature and conditions’ of his employment, or rather an aggravation of a disease within the meaning in section 16 of the 1987 Act. It is said that during the course of the Arbitration the Arbitrator “made a finding that the Applicant had sustained injury as a result of an aggravation of a disease pursuant to Section 16”. This is said to have affected the submissions of the parties. It is alleged the Arbitrator then performed an “about face” on this point, and “now believes that the injury was sustained as a result of the nature and conditions of employment rather than a disease”. The Appellant is said to have been prejudiced by this sequence of events, as he did not, given the earlier indication that section 16 governed the Appellant’s injury, address on whether there was an injury caused by the ‘nature and conditions’ of employment, and whether any aggravation caused in this way had ceased.
This ground of appeal is, in my view, misconceived. An allegation of ‘nature and conditions’ can (and frequently will) lead to a finding of ‘injury’ involving the ‘disease’ provisions in sections 15 and 16 of the 1987 Act. The two terms are not mutually exclusive. In Mirkovic v Davids Holdings Pty Ltd (1995) NSWCCR 656 Neilson CCJ said:
“The phrase “nature and conditions of employment” is not a term of art, although many who practise in this jurisdiction seem to think so. One Judge of Appeal recently referred to it as “quaint”. My colleague Burke J has frequently referred to it as a “meaningless concept”. It is used in this place as a shorthand way of alleging that, although no frank incident is relied upon, there was some aspect of the work carried out by a worker over a period of time, e.g. repeated lifting or bending, which caused some pathological condition or acted upon some underlying pathological condition to cause incapacity. Some classify such a period of work as a series of traumata or microtraumata, others classify it as causing a disease of gradual process within section 15 of the Act (where the pathology was caused by such work) or as the aggravation, acceleration, exacerbation or a deterioration of a disease within section 16.” (at page 667)
Having regard to the foregoing, it is misconceived to suggest that because there was an indication from the Arbitrator that the ‘disease’ provisions (realistically, section 16 of the 1987 Act) may well apply, this dissuaded one of the parties from addressing on the question of ‘nature and conditions’. In addition, the Arbitrator proceeded to decide the question of ‘injury’ in the Appellant’s favour. The question then became one of how long the effects of the ‘injury’ continued. It was immaterial, for the purposes of this exploration, whether the original decision was based upon section 16, or rather upon a finding of a series of ‘microtraumata’. In either event, the determinative question would then be one of deciding how long the effects of the aggravation, acceleration, exacerbation or deterioration continued.
There was discussion between the legal representatives and the Arbitrator regarding the pathology present, and whether the ‘disease’ provisions had application. I cannot see in the Transcript that the Arbitrator has purported to make any final finding of fact on this topic, during the running of the Arbitration. It is worth noting that rules of procedural fairness are not breached if, during a hearing, a trial judge informs the parties of his or her preliminary view. This gives the parties an opportunity to consider and submit in relation to the view thus expressed (see Daw v Toyworld (NSW) Pty Ltd [2001] NSWCCR 389).
Accordingly I am not persuaded the ground contained in paragraph 3k has been made out.
DECISION
As a consequence of the various factual errors identified in these reasons, the appeal is upheld.
It is desirable, if possible, that a Presidential member who upholds an appeal finally determine the matter (see Chubb Security Australia Pty Ltd v Trevarrow [2004] NSWCA 344). In this matter, given the credit finding made by the Arbitrator who originally heard the matter, it is in my opinion inappropriate that I seek to substitute my views for the decision of the Arbitrator, which I have revoked. In my view the relief sought by the Appellant at paragraph 3m of his Grounds of Appeal is appropriate.
The decision of the Arbitrator dated 24 March 2005 is revoked, and the matter is remitted to another Arbitrator for determination afresh.
COSTS
The Respondent is to pay the Appellant’s costs of the appeal.
Michael Snell
Acting Deputy President
10 May 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF MICHAEL SNELL, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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