Singh v FTW Products Pty Ltd
[2007] NSWWCCPD 230
•27 November 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Singh v FTW Products Pty Ltd [2007] NSWWCCPD 230
APPELLANT: Ricky Singh
RESPONDENT: FTW Products Pty Ltd
INSURER:CGU Workers Compensation (NSW) Limited
FILE NUMBER: WCC823-07
DATE OF ARBITRATOR’S DECISION: 7 August 2007
DATE OF APPEAL DECISION: 27 November 2007
SUBJECT MATTER OF DECISION: Notice under section 54 of the Workers Compensation Act 1987; application of amendments effected by Workers Compensation Legislative Amendment (Miscellaneous Provisions) Act 2005; referral to an Approved Medical Specialist; reasons; weight of and analysis of evidence.
PRESIDENTIAL MEMBER: Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION: Appellant: Bell Lawyers
Respondent: Sparke Helmore
ORDERS MADE ON APPEAL: The Arbitrator’s determination dated 7 August 2007 is revoked and the following orders made:
“1. The matter is remitted to a different Arbitrator for the Appellant Worker’s rights to be re-determined in accordance with the reasons given in this decision.
2. Costs of the first arbitration and of the second arbitration are to follow the events of the second arbitration.”
The Respondent Employer is to pay the Appellant Worker’s costs of the appeal.
BACKGROUND TO THE APPEAL
Ricky Singh (‘the Appellant Worker/Mr Singh’) was born on 2 August 1966 and is now 41 years old. After obtaining his higher school certificate he completed a degree in Graphic Arts at Sydney University. He started work as a screen printer with FTW Products Pty Ltd (‘the Respondent Employer/FTW’) in January 2002.
At about 3.30pm on 28 January 2003 he was working at FTW’s premises at Kingswood when he fell down several stairs sustaining injury to various parts of his body. The exact circumstances of his fall are contested but the fact that he fell and sustained injury is not disputed. He continued working but went home slightly earlier than normal. At home he was in such pain that an ambulance was called and he was admitted to Nepean Hospital until 31 January 2003. He was again admitted to Nepean Hospital because of his injuries from 3 February 2003 until 7 February 2003.
Whilst it was suspected that Mr Singh had sustained an undisplaced fracture of C5-6, later investigations established that there was no fracture. Because of his ongoing symptoms Mr Singh has not returned to work since his accident and has remained on strong pain relieving medication. He continues to consult Dr Manohar for pain management.
His claim was accepted and voluntary weekly compensation paid until, by notice issued by CGU Workers Compensation (NSW) Limited (‘CGU’) on 13 October 2006, liability was declined under section 54 of the Workers Compensation Act 1987 (‘the 1987 Act’) and payments stopped on 23 November 2006. Liability was declined on the basis of medical reports from Dr Shatwell dated 8 September 2006 and Dr Fulop dated 11 October 2006. The insurer forwarded a further copy of the letter of 13 October 2006 to Mr Singh on 14 November 2006.
By letter dated 30 November 2006 Mr Singh claimed lump sum compensation in the sum of $17,000.00 in respect of 14% whole person impairment plus compensation for pain and suffering of $22,500.00. By letter dated 12 December 2006 CGU confirmed that it continued to deny liability.
Mr Singh’s Application to Resolve a Dispute (‘the Application’) was registered in the Commission on 12 February 2007. In it he sought weekly compensation from 24 November 2006 to date and continuing in the sum of $421.20 per week (later amended) plus lump sum compensation as particularised in the letter of 30 November 2006.
By its Reply filed on 5 March 2007 FTW stated that it declined liability prior to 1 November 2006 and the following issues were listed:
“1.That the Applicant is no longer incapacitated for work as a result of the injury on 28 January 2003.
2.The Respondent disputes the rate of weekly compensation claimed by the Applicant.
3.That the Applicant does not suffer any whole person impairment as alleged or at all.
4.That the Applicant does not reach the threshold pursuant to section 67 of the [1987] Act or in the alternative, the Respondent dispute[s] the entitlement to section 67.
5.That there should be a deduction pursuant to Section 68A of the Act or Section 323 of the WIM Act for previous injury, other non-work related conditions, or non-compensable losses obtained prior to 30 June 1987.
6.That section 60 expenses are not reasonably necessary or do not relate to the injuries relied upon.
7.The Respondent seeks leave to issue Directions to the Applicant’s treating doctor[s], Dr Dinaka, Dr Manohar and Nepean Hospital.”
The matter was listed for a teleconference before a Commission Arbitrator on 19 March 2007. There is no transcript of the proceedings at the teleconference but the Appellant Worker submits that he requested the matter to be listed for conciliation and arbitration prior to referral to an Approved Medical Specialist (‘AMS’), so his claim for weekly compensation could be determined as soon as possible. The Respondent Employer has made no submission about the proceedings at the teleconference. The Arbitrator took steps on 19 March 2003 for the matter to be referred to an AMS to assess Mr Singh’s whole person impairment and for a General Medical Dispute in respect of the following questions:
“1.IS THE APPLICANT FULLY OR PARTLY CAPABLE OF RESUMING HIS PREINJURY DUTIES?
2. IF PARTLY, WHAT RESTRICTIONS SHOULD BE IMPOSED?
3.TO WHAT EXTENT, IF ANY, DOES THE APPLICANT’S INABILITY TO RESUME HIS PREINJURY DUTIES ARISE FROM THE INJURIES SUSTAINED ON 28 JANUARY 2003?”
Dr Breit was appointed as the AMS and he examined Mr Singh on 18 May 2007 and issued a Medical Assessment Certificate (‘MAC’) on 6 June 2007 certifying Mr Singh to have 0% whole person impairment as a result of his injuries on 28 January 2003. In answer to the specific questions put to him on incapacity, Dr Breit stated that:
“Based on the history, findings and opinion as outlined by me in the main body of this report, I would indicate that in my opinion there is no reason why this gentlemen could not resume his full time pre-injury duties.”
He answered “not applicable” to the remaining two questions put to him.
The matter was listed for conciliation and arbitration on 26 July 2007. On that day counsel for the Appellant Worker objected to the fact that the reports of Drs Anderson, Shatwell and Fulop had been forwarded to the AMS, allegedly in breach of clauses 34 and 37 of the Workers Compensation Regulation 2003 (‘the Regulation’) and sections 73, 74 and 126 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’). Counsel argued that these provisions applied because CGU’s section 74 notice was dated 14 November 2006 and the claim was caught by the amendments introduced by the Workers Compensation Legislative Amendment (Miscellaneous Provisions) Act 2005 (now repealed) (‘the amending Act’), which came into effect on 1 November 2006. In addition, a jurisdictional point was taken that, as I understand it, the matter should never have been referred to an AMS (T3.45-50).
After hearing oral evidence from Mr Singh and submissions from both parties the Arbitrator determined the matter in favour of FTW in a reserved decision on 7 August 2007.
By an appeal filed on 4 September 2007 Mr Singh seeks leave to appeal the Arbitrator’s decision.
LEAVE TO APPEAL
Monetary Threshold
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’).
The quantum in issue on the appeal is in excess of $5,000.00 and therefore the threshold in section 352(2)(a) of the 1998 Act is satisfied. No award of compensation has been made in this case but the Arbitrator’s finding would result in the Respondent Worker receiving no compensation and therefore the second limb of section 352(2) does not apply (see Mawson v Fletchers International Exports Pty Ltd [2002] NSWWCCPD 5).
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
I grant leave to appeal.
PRELIMINARY MATTERS
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.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, 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.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 7 August 2007, records the Arbitrator’s orders as follows:
“1. The Respondent is not liable for the payment of the Applicant's claim under section 66 of the Workers Compensation Act 1987.
2.The Respondent is not liable for the Applicant's claim for weekly compensation pursuant to sections 38 and 40 of the Workers Compensation Act 1987
3.The Respondent is not liable for the payment of the Applicants claim under section 60 of the Workers Compensation Act 1987.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a)referring Mr Singh to an AMS prior to a determination as to causation, section 9A of the 1987 Act, incapacity and entitlement to weekly compensation (‘referral to AMS’);
(b)referring the reports from Dr Fulop dated 11 October 2006, Dr Shatwell dated 8 September 2007 and Dr Anderson dated 19 May 2003 to the AMS, in circumstances where:
i.liability was declined on 13 October 2006, taking effect from 24 November 2006;
ii.the denial straddled the amendments to the Act in force from 1 November 2006;
iii.no revised notice was issued, and
iv.non compliance with the provisions of sections 74, 126 and 127 of the 1998 Act and clauses 34 and 37 of the Regulation (‘referral of medical reports’).
(c)allowing the reports of Dr Fulop dated 11 October 2006, Dr Shatwell dated 8 September 2007 and Dr Anderson dated 19 May 2003 into evidence in breach of sections 74, 126 and 127 of the 1998 Act and clause 34 and 37 of the Regulation (‘medical evidence’);
(d)concluding that Mr Singh no longer suffered any disability arising from the injury sustained with the Respondent Employer and that he is capable of resuming his full pre-injury duties (‘disability’), and
(e)relying primarily on the report from the AMS to determine Mr Singh’s fitness for pre-injury duties (‘incapacity’).
REVIEW
The nature of a review and the role and function of a Presidential member on appeal has been considered in many cases in the Commission. In The King Island Company Ltd v Deery [2005] NSWWCCPD 1 it was held at [19]:
“19. A Presidential Member on appeal has a specific and limited role in the review of a decision of an Arbitrator. The review is not a rehearing. The Presidential member is not dealing with the matter de novo and is not arriving at a fresh decision based on all of the evidence available at a later time (Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616). The powers of 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 (2000) 203 CLR 172). Alternatively, the Presidential Member may remit the matter back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions made.”
The nature of a review was considered by the Court of Appeal in Aluminium Louvres & Ceilings Pty Limited v Zheng [2006] NSWCA 34 where Bryson JA said at [38]:
“A review is a different process to an appeal and the matters which may be considered and the manner in which they may be considered are somewhat wider. See Boston Clothing Co Pty Ltd v. Margaronis (1992) 27 NSWLR 580 at 584 (Kirby P). An attack, on review or otherwise, on an Arbitrator's discretionary decision in controlling procedure may be based on the test stated in House v. R (1936) 55 CLR 499 at 504 - 505; but that is not the only basis on which the Presidential member may act. The powers of a Presidential member on review are somewhat wider and extend to power to reopen consideration of a matter of which an Arbitrator has disposed; the manner in which the powers of the Presidential member are to be exercised is itself the subject of discretion of the Presidential member.”
This passage was recently quoted with approval by McColl JA in South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 at [134] (‘Edmonds’). To describe the relative weight and relevance of the expert evidence as “a discretionary decision which could only be disturbed on House v The King principles” was described by McColl JA as “an over-generalisation” (at [133]).
The nature of a review was further considered by the Court of Appeal in State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249 where Spigelman CJ said at [28] and [30]:
“28. The concept of a review on the merits is wider than the concept of an appeal in a judicial context. There is a well established line of authority on the use of the terminology of ‘review’ instead of ‘appeal’ with respect to the workers compensation system in this State which establishes the breadth of a review on the merits.
30. A Presidential member exercising a power to review a decision must decide whether the original decision is wrong or, as it is often put in the context of administrative appeals on merits, must decide what is the true and correct view. If s/he does so decide then s/he should substitute his or her own views, unless it is an appropriate case to remit. The power to remit is not constrained in the manner for which the Appellant contends.”
Before an Arbitrator’s decision will be revoked on review it must be demonstrated that it contains or has resulted from an error of fact, law or discretion. The error must be such that, but for it, a different decision should have been made (see Snow Confectionary Pty Ltd v Askin [2004] NSWWCCPD 56; Section 294 of the 1998 Act; YG & GG v Minister for Community Services [2002] NSWCA 247, and Absolon v NSW TAFE [1999] NSWCA 311).
I intend to apply the above principles in the matter before me.
SUBMISSIONS AND FINDINGS
Referral to AMS
The Appellant Worker submits:
(a)the reports and material relied on by the Respondent Employer put section 9A in issue and denied incapacity and causation;
(b)at the teleconference on 19 March 2007 the Appellant Worker requested that the issues of incapacity, section 9A and causation be set down for conciliation and arbitration before any referral to an AMS;
(c)the Arbitrator referred the question of Mr Singh’s whole person impairment and the issues of incapacity and causation to an AMS before those issues were determined at arbitration;
(d)issues of causation, section 9A and incapacity are matters to be determined by an Arbitrator, not an AMS;
(e)reliance is placed on Total Steel of Australia Pty Ltd v Waretini [2007] NSWWCCPD 33 at [41] (‘Waretini’);
(f)as a result of the matter being referred to the AMS prior to the determination of the issues of causation and incapacity, the “AMS finding should be a nullity and should have not been considered by the Arbitrator in determining the issues of causation, incapacity and fitness for work at the arbitration hearing” (Appellant Worker’s submissions 4 September 2007, paragraph 11), and
(g)the Arbitrator’s findings were based primarily on and relied heavily upon the AMS’s opinion which was inconsistent with the weight of the evidence.
The Respondent Employer submits:
(a)the Arbitrator was not in error in referring Mr Singh to an AMS;
(b)section 9A was not an issue in the Reply;
(c)an Arbitrator had the power to refer Mr Singh to an AMS for a non-binding opinion on his capacity for work (section 319(b) of the 1998 Act);
(d)the Arbitrator acknowledged at paragraph 23 of his Statement of Reasons for Decision (‘Reasons’) that the AMS’s opinion on incapacity was not binding;
(e)the fact that Mr Singh had an injury was never in doubt. The issue was whether there was any incapacity related to his injury and it was for this reason the Arbitrator sought assistance from an AMS, and
(f)the AMS’s opinion was not inconsistent with the weight of the evidence.
The Respondent Employer is correct when it says that section 9A was not an issue in the Reply, however, it was identified as an issue in the letter declining liability on 13 October 2006. I assume that it was abandoned as an issue at the arbitration and note that it is not referred to in the transcript or in the Arbitrator’s Reasons. The letter of 13 October 2006 also stated that liability was declined because “the current condition is not related to injury at work and the soft tissue injury has ended”. These allegations were repeated in paragraphs one and two of Part 3 of the Reply where it was stated that Mr Singh was no longer incapacitated and did not have any whole person impairment.
Those issues, although not expressed as precisely as one would expect, raise the question of whether Mr Singh’s injury on 28 January 2003 continues to cause his current symptoms. In addition, the Respondent Employer’s solicitor indicated to the Arbitrator that liability for the matter was denied “in its entirety” (T16.39) and that Mr Singh “has no ongoing incapacity related to his injuries with” FTW (T28.13). The issue of causation is a ‘liability’ issue and must be determined by a Commission Arbitrator, not by an AMS (see Connor v Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2006] NSWWCCPD 124 (‘Connor’), Issott v North Sydney Leagues Club Ltd t/as Seagulls Club [2005] NSWWCCPD 38 (‘Issott’) and Waretini).
The causation issue in Connor and Issott was whether the alleged injurious event occurred. It was held that a binding MAC did not preclude a finding that the impairment had not resulted from the alleged injury at work. In Waretini it was held that the Arbitrator was in error for referring the assessment of the worker’s whole person impairment to an AMS after he found that the worker’s continuing symptoms were not related to the accepted work injury. In other words, the effect of any work injury had ceased.
Whilst the Reply in the present matter was not as clear as it should have been in identifying the issues, the transcript makes it clear that the Respondent Employer did intend to put causation in issue and it certainly argued that issue at the arbitration. In circumstances where liability was denied “in its entirety”, it seems reasonable to conclude that liability was in issue for the purposes of section 321 of the 1998 Act and the Commission (constituted by an Arbitrator) should not have requested the Registrar to refer the matter to an AMS to assess whole person impairment until liability (in this case, the causation issue) was determined (see section 321(4) of the 1998 Act). It was, however, open to the Arbitrator to refer the question of incapacity to an AMS for a non-binding opinion.
The question then arises as to what flows from the fact that the question of whole person impairment was referred to the AMS before the causation issue was determined. In my view, there are several reasons why nothing arises from that irregularity.
First, the AMS did not find that Mr Singh sustained no injury or that the effects of the injury ceased. He found that under the AMS Guides and the WorkCover Guidelines for the Evaluation of Permanent Impairment for injuries received after 1 January 2002, Mr Singh has 0% whole person impairment as a result of the injury. I infer that Dr Breit may well have made that finding (because of the objective nature of the test he applied and the nature of Mr Singh’s symptoms) regardless of any finding by a Commission Arbitrator on causation or incapacity.
Second, the Appellant Worker’s submission that the MAC is a nullity is without foundation and I have no power to make such a finding. Whilst it is true that a MAC does not equate to a determination of the dispute (Joppa Pty Limited t/as Tricia’s Clip-n-Snip v Edenden [2004] NSWWCCPD 50), the failure to determine the causation issue before the referral was, in the circumstances of the case and for the reasons outlined above, of no consequence.
Third, an assessment of a nil permanent impairment is not determinative of the issue of incapacity. The MAC assessment of nil permanent impairment has, in the circumstances of this case, no greater relevance or weight than if the AMS had only been asked to provide his opinion on a General Medical Dispute.
Last, I reject the Appellant Worker’s submission that the Arbitrator’s findings were “based primarily on” the AMS’s opinion. As can be seen below, the Arbitrator did not state why he rejected Mr Singh’s claim. He was, however, entitled to seek and have regard to Dr Breit’s non-binding opinion on incapacity. Therefore, Mr Singh has not been unfairly disadvantaged by the premature referral of the whole person impairment question to the AMS.
For the above reasons I reject this ground of appeal.
Referral of Medical Reports and Medical Evidence
The Appellant Worker submits:
(a)the Respondent Employer denied liability by letter dated 13 October 2006 with weekly payments continuing until 23 November 2006;
(b)the denial “straddled” the amendments to the 1998 Act which took effect on 1 November 2006;
(c)a further denial letter should have been sent to the Appellant Worker complying with section 74 of the 1998 Act. No “revised notice” was sent;
(d)in the circumstances the post 1 November 2006 amendments apply;
(e)the insurer’s letters of 13 October 2006, 14 November 2006 and 12 December 2006 do not comply with section 74 of the 1998 Act and are therefore invalid;
(f)when the claim was disputed, the reports of Drs Fulop, Shatwell and Anderson (‘the reports’) were not provided under section 126 of the 1998 Act. Therefore:
i.the insurer is not entitled to use those reports to dispute liability (section 126(3)(a));
ii.the reports are not admissible in proceedings on such a dispute before the Commission (section 126(3)(b)), and
iii.the reports may not be disclosed to an AMS in connection with the assessment of a medical dispute under Part 7 of Chapter 7 of the 1998 Act (section 126(3)(c)).
(g)clauses 34 and 37 of the Regulation have not been complied with in that the insurer did not disclose a copy of the reports to be relied upon as an attachment and as part of the denial in relation to the claim;
(h)the Arbitrator erred in admitting the reports as part of the material to be referred to the AMS;
(i)the Arbitrator erred in admitting the reports into evidence as part of the Respondent Employer’s case at the arbitration, and
(j)the notice denying liability was invalid and the material considered by the Arbitrator was in breach of the Act and Regulation.
The Respondent Employer submits that the insurer denied liability by letter dated 13 October 2006 and, at that time, the amendments to the 1998 Act and the Regulation had not commenced and have no application to this matter.
The Appellant Worker’s submissions make no reference to any authority or provision of the 1998 Act or the Workers Compensation Commission Rules 2006 (‘the Rules’) in support of his argument. There is no basis for the assertion that the denial “straddled” the commencement of the 1 November 2006 amendments. Weekly compensation continued until 23 November 2006 because of the provisions of section 54 of the 1987 Act. That section provides that where a worker has been receiving weekly compensation for a continuous period of one year or more, then payments must not be discontinued without giving the worker six weeks notice of intention to discontinue payment (section 54(3)(b)). There is nothing in either section 54 of the 1987 Act or section 74 of the 1998 Act to suggest or imply that because of the terms of section 54(3)(b), a notice given before 1 November 2006 must comply with the amendments that commenced on that date.
Subject to the transitional provisions, the amendments to the 1998 Act effected by the amending Act commenced on 1 November 2006. The transitional provisions are found in clause 2 Part 81J of Schedule 6 of the 1987 Act, which provides:
“Application of claim review provisions
(1) In this clause:
claim review provisions means sections 287A and 289A of the 1998 Act, as inserted by the amending Act.
(2) The claim review provisions apply in respect of a claim for compensation made before the commencement of section 287A as follows:(a) the provisions apply to a claim for which a notice under section 54 of this Act, or section 74 of the 1998 Act, is given after that commencement,
(b) the provisions apply to any other claim referred to the Registrar for determination by the Commission after the end of the period of 6 months after that commencement.” (emphasis added)
The other transitional provisions in Part 18J relating to the 1 November 2006 amendments deal with expedited assessment procedures, medical disputes, appeals from decisions of arbitrators and reconsiderations of decisions. Clause 37 and section 126 of the 1998 Act were amended on 1 November 2006 but there are no transitional provisions dealing with these provisions. Given that the claims review provisions only apply to claims for which ‘notice is given’ after 1 November 2006, it is highly improbable that parliament intended the other amendments in the amending Act to apply retrospectively to claims made and notices given before 1 November 2006.
The courts have frequently declared that, in the absence of some clear statement to the contrary, an Act will be assumed not to have retrospective operation (D C Pearce and R S Geddes Statutory Interpretation in Australia 5th edition, page 250). The authority cited in support of this proposition is Maxwell v Murphy (1957) 96 CLR 261 where Dixon CJ said at 267:
“The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to past events.”
The authors also quote the following passage from Fisher v Hebburn Ltd (1960) 105 CLR 188 where Fullagar J said at 194:
“There can be no doubt that the general rule is that an amending enactment – or, for that matter, any enactment, - is prima facie to be considered as having a prospective operation only. That is to say, it is prima facie to be construed as not attaching new legal consequences to facts, or events which occurred before its commencement.”
I do not understand the Appellant Worker to argue to the contrary. His argument is that because the weekly compensation payments to Mr Singh did not cease until 23 November 2006, the new claims provisions apply. I see no legal basis for that submission. It could not possibly have been intended that an insurer would be prevented from using medical reports because of a failure to comply with procedures that were not in force at the time it issued its notice under section 54. The section 54 notice was given in October 2006. At that time section 54 did not require an insurer to attach its reports to the notice. The fact that weekly compensation continued as required by section 54(3)(b) does not mean that the notice was given in November 2006. It is not argued that the notice given in October 2006 was defective or did not comply with the provisions of the legislation then in force.
No authority has been cited for the argument that a revised notice had to be sent complying with section 74 of the 1998 Act and I can find no basis in the legislation or the Regulation for that submission. The insurer denied the claim on the basis of the legislation in force in October 2006. It complied with that legislation. To accede to the Appellant Worker’s argument would be to give retrospective effect to the amending Act, something that should not be done in the absence of a clear statement to that effect. The Appellant Worker has not referred to any such statement and I reject his argument.
It follows that as the section 54 notice was issued before 1 November 2006 the Respondent Employer is not bound by the amended provisions of clauses 34 and 37 of the Regulation or by section 126 of the 1998 Act. In light of the arguments presented, the Arbitrator was not in error in admitting the reports into evidence and in allowing them to be referred to the AMS.
However, another matter arises that the parties have not addressed, either before the Arbitrator or on appeal. That is whether the Respondent Employer’s right to tender more than one “forensic medical report” is restricted by clause 43 of the Regulation. That clause was also amended on 1 November 2006 (Workers Compensation Amendment (Miscellaneous Provisions) Regulation 2006 (‘the amending Regulation’)). It now reads:
“43 Restrictions on number of medical reports that can be admitted
(1)In any proceedings on a claim or a work injury damages threshold dispute in relation to an injured worker, only one forensic medical report may be admitted on behalf of a party to proceedings.
(2)A report referred to in subclause (1) must be from a specialist medical practitioner with qualifications relevant to the treatment of the injured worker’s injury.
(3)Where the injury has involved treatment by more than one specialist medical practitioner, with different qualifications, then an additional forensic medical report may be admitted from a medical practitioner with qualifications in that specialty.
(4)In this clause:
forensic medical report:
(a) means a report from a specialist medical practitioner who has not treated the worker and has been obtained for the purpose of proving or disproving an entitlement, or the extent of an entitlement, in respect of a claim or dispute, and
(b) includes a medical report provided by a specialist medical practitioner in respect of an examination of the injured worker pursuant to section 119 of the 1998 Act.”
Clause 48A(3) provides:
“48A Further transitional provision
(1)In this clause:
the amending Regulation means the Workers Compensation Amendment (Miscellaneous Provisions) Regulation 2006.
(2)The amendments made to this Part [Part 10] by the amending Regulation do not affect the use of a medical report in evidence in proceedings or as part of disclosure to an approved medical specialist where the report relates to an application lodged with the Registrar prior to 1 November 2006.
(3)The amendments made to this Part by the amending Regulation apply to all claims or work injury damages threshold disputes lodged with the Registrar on and from 1 November 2006.
(4)Despite subclause (3), where the medical examination to which the relevant medical report relates occurred before 1 November 2006, this Part, as in force immediately before 1 November 2006, continues to apply in respect of the report if the report:
(a) formed part of an application lodged with the Registrar prior to 1 December 2006, or
(b) formed part of a reply filed in respect of such an application within 21 days of the application being lodged.
(5)Despite subclause (3), clause 45, as in force immediately before 1 November 2006, applies in respect of a medical report where the medical examination to which the report relates occurred before 1 November 2006 and either:
(a) the claim to which the report relates was resolved on or after 1 November 2006 without referral to the Registrar for determination by the Commission, or
(b) the application to which the report relates, or referral of the dispute for determination by the Commission to which the report relates, was lodged with the Registrar before 1 December 2006, except where there was a discontinuance of proceedings (without the consent of both parties) on or after 1 November 2006.” (emphasis added)
Clause 48A applies only to Part 10 of the Regulation and does not apply to clause 37. This fact reinforces my view that clause 37 does not apply to notices given before 1 November 2006.
In light of the amended terms of clause 43 and the fact that the current claim was “lodged with the Registrar” after 1 November 2006 (12 February 2007), it is arguable that the Respondent Employer is only entitled to tender “one forensic medical report”. As no submissions have been made on this issue and as this matter must be remitted to another Arbitrator in any event, I express no concluded view on this matter.
Disability and Incapacity
The Appellant Worker submits the Arbitrator:
(a)placed excessive weight on aspects of the reports from Drs Fulop and Shatwell;
(b)failed to analyse the evidence and give adequate reasons for rejecting his medical case;
(c)placed undue weight on the opinions of the AMS, and
(d)failed to give weight or adequate weight or consideration to the diagnosis of chronic pain syndrome and failed to consider that diagnosis in the context of the Appellant Worker’s capacity to work.
The Respondent Employer submits:
(a)the radiological investigations of Mr Singh’s cervical, thoracic and lumbosacral spines all support the proposition that he did not sustain any structural damage;
(b)there is ample evidence to support the Arbitrator’s conclusion;
(c)the Arbitrator had the opportunity of observing Mr Singh under cross-examination and made reference to inconsistencies apparent on cross-examination;
(d)the Arbitrator’s decision is consistent with a significant amount of the evidence before him, and
(e)the weight given by the Arbitrator to the evidence is a matter for the Arbitrator’s discretion.
At paragraph 20 of his Statement of Reasons for Decision (‘Reasons’) the Arbitrator briefly referred to Mr Singh’s evidence that he has not returned to work because he is getting “continued pain in the neck and back and thighs” and that he is still seeing Dr Manohar “for pain treatment and feels he is unable to resume his pre-injury occupation because it requires handling of heavy materials which he feels he is unable to do”.
The Arbitrator referred to the balance of the evidence at paragraphs 21 to 23 inclusive of his Reasons, where he said:
“21.The Respondent declined liability on the basis of the medical reports of Dr Michael Shatwell dated 8 September 2006 and Dr Annemarie Fulop dated the 11 October 2006.
In paragraph 5 of his report, Dr Shatwell states ‘I do not consider Mr Singh’s current condition to be related to the soft tissue injury occurring three and half years ago’.
In paragraph 6 relating to capacity Dr Shatwell states ‘Mr Singh is unlikely to be able to return to pre-injury duties. however, [sic] I feel this is because of psychological factors and not due to the effects of the injury.
In paragraph 4 of Dr Fulop’s report she states, ‘I believe he may be exaggerating his incapacity’.
In paragraph 5 she states, ‘employment is not a substantial contributing factor to the injury’.
She further states in paragraph seven, ‘he is fit for full-time work but a graded return from part time hours to full-time hours over a two month period is advisable, as he has not worked for nearly four years’.22. Under cross-examination that the Applicant admitted that he occasionally drives the car for short periods, although in paragraph 36 of his statement dated the 11 December 2006 he says, ‘I do not drive a car, and usually rely on a lift for appointments’.
He further agreed that his hospitalisation was for two periods of three days and four days respectively, whereas in paragraph 10 of his statement he alleges he was ‘admitted for the next three weeks’. In the history taken by the AMS he notes ‘he was apparently an inpatient for two weeks’.
23. I note that the AMS, DR Breit is of the opinion that ‘there is no reason why this gentleman (the Applicant) could not resume his full pre-injury duties’.
I am aware that Dr Breit’s opinion as to capacity is not binding, but I do believe it to be persuasive.”
The Arbitrator’s analysis of the evidence is set out at paragraph 24 of his Reasons:
“Having considered all the evidence before me, I am satisfied that the Applicant no longer suffers any disabilities arising from the injuries sustained while working for the Respondent and I have formed the view that the Applicant is capable of returning to his full pre-injury duties.”
He then concluded at paragraph 25 of his Reasons that the Respondent Employer is not liable for Mr Singh’s claim for weekly compensation or for his medical expenses under section 60 of the 1987 Act.
The failure to provide adequate reasons constitutes an error of law and may be a ground to set aside the Arbitrator’s decision. It is clear that Arbitrators have a statutory obligation to provide adequate reasons for their decisions (section 294(2) of the 1998 Act; Part 15 Rule 15.6 of the Rules; Absolon v NSW TAFE [1999] NSWCA 311).
Relevantly, Rule 15.6 provides that:
“(1) A statement of the Commission’s reasons referred to in section 294(2) of the 1998 Act is to include:
(a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based, and
(b) the Commission’s understanding of the applicable law, and
(c)the reasoning processes that lead the Commission to the conclusions it made.
(2) Without limiting subrule (1), the reasons set out in a statement referred to in subrule (1) are to be stated sufficiently (in the opinion of the Commission) to make the parties aware of the Commission’s view of the case made by each of them.”
To succeed in having the decision set aside on this ground Mr Singh must demonstrate not only that the reasons are inadequate, but that their inadequacy discloses that the Arbitrator has failed to exercise his statutory duty to fairly and lawfully determine the application (YG & GG v Minister for Community Services [2002] NSWCA 247; Absolon v NSW TAFE [1999] NSWCA 311; ADCO Constructions Pty Ltd v Ferguson [2003] NSWWCCPD 21).
The standard by which the adequacy of reasons must be determined is relative to the nature of the decision itself and the decision-maker (Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSWWCCPD 6). An Arbitrator’s reasons should be read as a whole and it is not for a Presidential Member on review to comb through the Arbitrator’s findings and reasons in search of error (Beale v GIO (NSW) (1997) 48 NSWLR 430 at 444; Minister for Immigration and Multicultural Affairs v Wu Shu Liang (1996) 185 CLR 259). It is not necessary for an Arbitrator to refer to every piece of evidence (Yates Property Corporation Pty Limited (in Liq) v Darling Harbour Authority (1991) 24 NSWLR 156; Ainger v Coffs Harbour City Council [2005] NSWCA 424).
In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 (‘Soulemezis’) McHugh JA (as he then was) stated at 280:
“If an obligation to give reasons for a decision exists its discharge does not require lengthy or elaborate reasons: Ex parte Powter; Re Powter (1945) 46 SR (NSW) 1 at 5: 63 WN 34 at 36. But it is necessary that the essential ground or grounds upon which the decision rests should be articulated. In many cases the reasons for preferring one conclusion to another also need to be given.” (emphasis added)
The resolution of disputes between medical experts requires a rational examination and analysis of the evidence and the issues (per Ipp JA in Sourlos v Luv A Coffee Lismore Pty Ltd & anor [2007] NSWCA 203 at [25] citing Wiki v Atlantis Relocations (NSW) Pty Ltd (2004) 60 NSWLR 127). In Hume v Walton [2005] NSWCA 148, McColl JA said at [69]:
“The primary judge’s duty was not only to record the evidence but also to record the findings she made based on that evidence: Mifsud v Campbell (1991) 21 NSWLR 725 at 728. While the extent of that duty may depend upon the circumstances of the individual case, where there is disputed expert evidence, the ‘parties are entitled to have the judge enter into the issues canvassed before the Court and to an explanation by the judge as to why the judge prefers one case over the other’: Archibald v Byron Shire Council [2003] NSWCA 292; (2003) 129 LGERA 311 at [54] per Sheller JA (with whom Beazley JA agreed); see also Bright v Joodie Holdings No 2 Pty Ltd [2005] NSWCA 134 at [33] per Santow JA (with whom Sheller JA and Campbell AJA agreed).”
Her Honour’s comments in Hevi-Lift (PNG) Limited v Etherington [2005] NSWCA 42 at [100] are also relevant:
“The primary judge must state generally and briefly the grounds which have led him or her to conclusions concerning disputed factual questions and to list the findings on the principal contested issues. Although it is not necessary that the judge refer to all the evidence, ‘[w]here nothing exists but an assertion of satisfaction on undifferentiated evidence the judicial obligation has not been discharged’: Soulemezis, at 259, per Kirby P.”
In my view the Arbitrator’s reasons do not comply with the standard required by the above authorities. He did not properly consider or analyse the issues presented in the evidence or indicate the essential ground upon which his decision was based. He made virtually no reference to the Appellant Worker’s medical case and the references to the Respondent Employer’s case was selective and lacked analysis.
The Arbitrator failed to consider several significant concessions made by Dr Fulop. They include:
(a)Mr Singh’s “current physical incapacity” is only mild and that he is fit for most forms of his pre-injury duties with a lifting restriction (initially) of 10 kilograms bi-manually (Dr Fulop’s report page six);
(b)Mr Singh was fit for full time work but a graded return from part time hours to full time hours over a two month period was advisable, as he has not worked for nearly four years;
(c)Mr Singh’s own regime of hydrotherapy is appropriate, and
(d)a physical reconditioning program is advisable.
The above concessions by Dr Fulop can only result in one conclusion: that Mr Singh has an incapacity, but it is only mild. Dr Fulop did not address whether she felt the incapacity had resulted from the injury. She was misguided in stating at page six that employment was not a substantial contributing factor to Mr Singh’s injury. The fact that Mr Singh fell down stairs at work on 28 January 2003 and suffered a significant soft tissue injury as a result was never in issue. If Dr Fulop intended to say that employment was not a substantial contributing factor to the incapacity, she was in error. The test is not whether employment is a substantial contributing factor to the incapacity but whether the incapacity has resulted from the injury (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (‘Kooragang’)). Therefore, Dr Fulop’s opinion gives Mr Singh some support. A fact not acknowledged or considered by the Arbitrator.
Dr Shatwell diagnosed Mr Singh to have suffered a soft tissue injury to his cervical, thoracic and lumbar regions in his fall in January 2003 with the current diagnosis being chronic pain syndrome (Dr Shatwell’s report 8 September 2006, page 11). On the issue of causation Dr Shatwell correctly stated that the initial injury (the fall) occurred at work and the soft tissue injury was “undoubtedly related to the fall”. He then added:
“The effects of the soft tissue injury sustained should now be at an end.
The current chronic pain syndrome is unrelated to the fall and is a constitutional reaction to the injury unrelated to the physical effects of an injury.
I do not consider Mr Singh’s current condition to be related to the soft tissue injury occurring three and a half years ago. Full investigation of the injury in the early period of 2003 did not reveal any severs effects of that injury. The current syndrome continues, as stated above, due to constitutional factors.” (emphasis added)
On the question of fitness for work, Dr Shatwell thought it was unlikely that Mr Singh would return to his pre-injury duties because of psychological factors and not due to the effects of the injury. He added that Mr Singh’s chronic pain syndrome could be managed by a graded exercise program and cognitive behaviour therapy. If this treatment was successful Mr Singh could return to his normal pre-injury duties without restrictions.
The Appellant Worker attacks the highlighted part of Dr Shatwell’s opinion (see [70] above) as being inherently inconsistent on the ground that a constitutional reaction to a physical injury is causally linked to that original injury. I agree with this submission.
In Kooragang Kirby P (as he then was) said at 463-4:
“The result of the cases is that each case where causation is in issue in a workers compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’ is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions.”
This decision was recently referred to (with apparent approval) in State Transit Authority of NSW v Chemler [2007] NSWCA 249 at [37]. In that case Spigelman CJ added (at [40]) that “In this area of law, as in negligence, the talem qualem principle is applicable i.e. employers take their employees as they find them.”
If Mr Singh’s current condition is a reaction to the injury it is not correct to say that it is a “constitutional reaction”, unless the evidence establishes that he would have developed the condition at about the same time if he had not been injured at work. There is no such evidence. The question is: has the incapacity resulted from the injury? The Arbitrator did not properly deal with this critical issue.
The Appellant Worker’s evidence consisted of reports from Drs Deveridge and Manohar, medical certificates from Dr Dinakar and reports from Mr Rodriguez, psychologist. The Arbitrator failed to consider any of this evidence.
Dr Deveridge diagnosed Mr Singh to have sustained a musculoligamentous injury to his cervical and lumbar spines in his fall. The doctor noted that Mr Singh seemed to have “considerable stress reaction surrounding his physical injuries” (report Dr Deveridge 13 September 2004, page three) and concluded that his residual disabilities were attributable to the fall at work on 28 January 2003. No significant pre-existing or pre-disposing conditions were identified.
Dr Manohar first saw Mr Singh on referral from Dr Dinakar on 4 June 2003 and has continued to treat him until the date of the arbitration. Mr Singh’s presenting problems were neck ache, shoulder pain and low backache. He denied any previous similar symptoms. Mr Singh was not working and was distressed by “the fact that he was unable to perform the work he had done for the last eighteen years” (report Dr Manohar 22 November 2004, page one). On 24 September 2003 Dr Manohar noted that Mr Singh complained of excruciating back symptoms and felt distressed. At review on 11 February 2004 Mr Singh stated that his social life had stopped and he felt depressed. Cipramil (an anti-depressant) was prescribed.
In his report of 16 November 2006 Dr Manohar diagnosed Mr Singh to be suffering from chronic myofascial pain syndrome and to be unfit for his pre-injury occupation. He confirmed that the accident in 28 January 2003 was “a substantial contributing factor to his disability” (report Dr Manohar 16 November 2006, page six). Whilst this is not the correct test of causation in respect of incapacity in workers compensation matters (see Kooragang above), it does not matter because the test of substantial contributing factor is at least as demanding (if not more) than the ‘results from’ test.
Mr Rodriguez saw Mr Singh at the request of Dr Manohar on 7 April 2004. He assessed Mr Singh to be depressed and to be exhibiting pronounced symptoms of anxiety and depression, which were adversely affecting his recovery and “imposing a psychological overlay” (report Mr Rodriguez 15 April 2004, page three). He recommended treatment, but no further reports from Mr Rodriguez are in evidence. Evidence of Mr Singh’s psychological state is also found in the report from Dr Moore, psychiatrist, who saw him at the request of the Respondent Employer on 13 August 2003. She diagnosed Mr Singh to be suffering from “a chronic pain disorder with predominant psychological features according to DSMIV” (report Dr Moore 13 August 2003, page five). She thought it was feasible that he could have developed chronic pain syndrome as a result of the accident, but the severity and chronicity of the pain was most likely related to psychological factors (page six).
At paragraph 23 of his Reasons the Arbitrator referred to Dr Breit’s opinion that “there is no reason why this gentleman could not resume his full pre-injury duties”. He was entitled to consider that evidence in reaching his conclusion. However, other than noting that the opinion was persuasive but not binding, the Arbitrator did not indicate what weight, if any, he attached to it. Dr Breit’s opinion was based on “the history, findings and opinion as outlined in the main body of this report” (MAC, page seven). His findings on examination revealed several significant inconsistencies in Mr Singh’s presentation (MAC page three and four). Those inconsistencies, together with the normal radiological investigations, led Dr Breit to reject Mr Singh’s complaints and express the conclusion noted above. It was for the Arbitrator to consider and weigh Dr Breit’s opinion against those of Drs Deveridge, Manohar and Dinakar. He did not do that.
A review of the evidence indicates that the balance of the evidence, when assessed according to the correct legal standard, supports Mr Singh’s claim that he remains incapacitated as a result of the injuries sustained by him in his work accident. No other cause for his complaints is suggested. Whilst it is true that the Arbitrator had the opportunity to observe Mr Singh during cross-examination and that Mr Singh gave inconsistent evidence as to how often he drives his car and how long he was in hospital immediately after the accident, the Arbitrator did not make any finding as to the relevance or weight he attached to those inconsistencies. Those inconsistencies indicated an element of exaggeration in Mr Singh’s evidence but they did not provide a basis for the rejection of the whole of his case. If the Arbitrator intended to base his conclusion on Mr Singh’s credit, he did not say so. Even if he had, such a conclusion does not overcome the Arbitrator’s “failure to weigh all relevant issues” (per Kirby J in Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; (2003) 77 ALJR 1598; [2003] HCA 48 at [98] and [99]).
CONCLUSION
It follows that the Arbitrator’s determination must be revoked and the matter re-determined by a different Arbitrator. The Appellant Worker’s submission that the MAC should be “considered a nullity” on the basis of procedural breaches (Appellant Worker’s submissions 4 September 2007, paragraph 39) is unsupported by any authority. I have no power to declare a MAC a nullity. However, the Commission has the power under section 329(1)(b) of the 1998 Act, in the appropriate case, to refer a matter to an AMS for further assessment. The circumstances where that may be done were discussed in Spicer Axle Australia Pty Ltd v Merza [2007] NSWWCCPD 148 and Target Australia Pty Ltd v Mansour [2006] NSWWCCPD 286. Whether it is appropriate for it to be done in the present case is a matter for the second Arbitrator to determine after hearing full submissions.
DECISION
The Arbitrator’s determination dated 7 August 2007 is revoked and the following orders made:
“1.The matter is remitted to a different Arbitrator for the Appellant Worker’s rights to be re-determined in accordance with the reasons given in this decision.
2.Costs of the first arbitration and of the second arbitration are to follow the events of the second arbitration.”
COSTS
The Respondent Employer is to pay the Appellant Worker’s costs of the appeal.
Bill Roche
Deputy President
27 November 2007
I, TUYET WALLIS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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