Smith v Liquip Services Pty Limited
[2008] NSWWCCPD 103
•24 September 2008
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| CITATION: | Smith v Liquip Services Pty Limited [2008] NSWWCCPD 103 | ||||
| APPELLANT: | Robert Gary Smith | ||||
| RESPONDENT: | Liquip Services Pty Limited | ||||
| INSURER: | Gallagher Bassett Services Workers Compensation NSW Pty Limited | ||||
| FILE NUMBER: | WCC19707-03 | ||||
| DATE OF ARBITRATOR’S DECISION: | 9 May 2008 | ||||
| DATE OF APPEAL DECISION: | 24 September 2008 | ||||
| SUBJECT MATTER OF DECISION: | Multiple issues; incapacity; weight of evidence; impact of prior AMS assessments; psychiatric injury; Jones vDunkel principle; sections 40 and 60 of the Workers Compensation Act 1987 | ||||
| PRESIDENTIAL MEMBER: | Acting Deputy President Deborah Moore | ||||
| HEARING: | On the papers | ||||
| REPRESENTATION: | Appellant: | P.K. Simpson & Co | |||
| Respondent: | Cutler Hughes & Harris | ||||
| ORDERS MADE ON APPEAL: | 1. Paragraphs 1, 2 and 3 of the decision of the Arbitrator dated 9 May 2008 are confirmed. 2. To that decision is added paragraph 4 as follows: “4. The Respondent to pay to the Applicant section 60 expenses in respect of treatment of the right shin injury on 7 February 2001 on production of accounts or receipts” 3. The Respondent is to pay 10% of Mr Smith’s costs on appeal. | ||||
BACKGROUND TO THE APPEAL
This matter has an extraordinarily long history.
Mr Robert Gary Smith, the Appellant in these proceedings, initially filed an ‘Application for Determination’ in the former Compensation Court on 19 March 2002. The Respondent in those proceedings was Liquip Services Pty Ltd, the Respondent to this appeal.
In his Application, Mr Smith claimed that he was injured in the course of his employment with the Respondent on 7 February 2001 as follows:
“Whilst the applicant was lifting and carrying a hose it fell onto his right shin resulting in the applicant injuring his back and right leg (hip), left leg (hip) and left and right pelvis.” He claimed weekly benefits, medical expenses and lump sum compensation pursuant to the provisions of the Workers Compensation Act 1987 (‘the 1987 Act’).
Mr Smith filed a 1st Amended Application for Determination on 8 January 2003, a 2nd on 9 April 2003 and the 3rd (and final) on 17 October 2003. In his last Application, Mr Smith recited the same date and circumstances of injury, but alleged that his injuries now included “sexual organs, consequent anxiety and/or depression and psychological injury.”
That Application was unfortunately “not reached” in the Court on 26 November 2003, and was then transferred to the Workers Compensation Commission (‘the Commission’).
Since the transfer, the Application has had an even more tortuous history. By this stage, Mr Smith’s history had expanded to include an allegation of injury to his back as a result of physiotherapy treatment for his shin injury, and a (non-work related) injury to the left knee as a consequence of a skiing accident on 14 July 2001.
The claim for lump sum benefits was referred to two Approved Medical Specialists (‘AMS’) (orthopaedic and urological) by an Arbitrator on 14 May 2004. The Medical Assessment Certificates (‘MAC’) that were issued by Dr Blake ( in respect of the orthopaedic injuries) on 27 August 2004 and Dr Taylor (in respect of the claim for sexual organs) on 25 August 2004 were both the subject of appeal to the Medical Appeal Panel, and ultimately the Supreme Court.
The Supreme Court, in Smith v Liquip Services Pty Limited [2007] NSWSC 687 dismissed Mr Smith’s complaint against the Appeal Panel’s substituted certificate in relation to the assessment by Dr Blake, but ordered that a new Panel redetermine the appeal against the MAC of Dr Taylor. This process was finally completed on 20 September 2007.
The effect of the final MAC’s was that Mr Smith had no permanent impairment or loss of use of any of the body parts assessed, that is, the back, both legs at or above the knee, the pelvis and sexual organs. All injuries were included in the referral (with the exception of the psychological injury as that was not a primary injury).
The matter was eventually listed before an Arbitrator on 12 December 2007 for determination of the claim for weekly benefits compensation and section 60 expenses.
On 9 May 2008 a ‘Certificate of Determination’ with an accompanying ‘Statement of Reasons’ was issued. The determination of the Arbitrator was that Mr Smith had not established that any injuries to his body (other than the blow to the shin) arose as a consequence of the pleaded injury on 7 February 2001. Although accepting that Mr Smith also suffered from a psychological condition, the Arbitrator found that employment was not a substantial contributing factor to that injury. He found that Mr Smith had no further entitlement to any benefits, and accordingly, an award was made in favour of the Respondent.
It is from this decision that Mr Smith seeks leave to appeal.
ON THE PAPERS REVIEW
Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Both parties submit that the matter is suitable for a determination ‘on the papers’. Having regard to Practice Direction No’s 1 and 6, the documents that are before me, and the detailed submissions by both parties on appeal, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
LEAVE TO APPEAL
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 Act (‘the 1998 Act’).
The amount at issue on appeal satisfies the threshold requirements in section 352(2) of the 1998 Act, and the appeal was filed in time in compliance with section 352(4) of that Act.
Leave to appeal is granted.
THE DECISION UNDER REVIEW
The Certificate of Determination dated 9 May 2008 records the Arbitrator’s orders as follows:
“1.That there is an award to the Respondent for any claim for weekly payments beyond 30 January 2002 arising from injury 7 February 2001.
2.That the Applicant suffered 0% permanent impairment or permanent loss of efficient use of the back, right leg at or above the knee, left leg at or above the knee, pelvis and sexual organs pursuant to s66 of the Workers Compensation Act 1987 resulting from injury 7 February 2001 in accordance with the Medical Assessment Certificates dated 7 July 2006 and 30 September 2007.
3.That there is no order as to costs.”
THE REVIEW PROCESS
The nature of the review process has been succinctly summarised by Deputy President Roche in a number of decisions, and recently in Universal Consultancy Services Pty Ltd v Datta [2008] NSWWCCPD 87 where he said as follows [16-18]:
“16. The Court of Appeal considered the nature of a ‘review’ under section 352 of the 1998 Act in Aluminium Louvres & Ceilings Pty Limited v Zheng [2006] NSWCA 34; (2006) 4 DDCR 358 (‘Zheng’), 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.’
17. McColl JA approved this passage in South Western Sydney Area Health Service v Edmonds (2007) 4 DDCR 421; [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]). Thus, on review, a Presidential member is not bound by an Arbitrator’s discretionary decision, but can reach his or her own conclusion.
18. 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; (2007) 5 DDCR 287 (‘Chemler’) 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.’
Bearing these principles in mind, I now turn to the issues in dispute.
THE ISSUES IN DISPUTE
Mr Smith claims that the Arbitrator erred in the following respects:
“1.Failing to give proper weight to the medical evidence;
2.Failing to give proper weight to the evidence in [Mr Smith’s] statement;
3.Misdirecting himself in not addressing the essential questions for the resolution of the dispute between the parties;
4.Misdirecting himself as to the evidence before him;
5.Making an award that was against the evidence;
6.Failing to take into account the allegation that the applicant suffered from a psychiatric injury;
7.Addressing the wrong issue in determining whether the applicant had sustained incapacity to work as a result of physical and psychological disability;
8.Erring in failing to make an award in the applicant’s favour under section 60 of the Act;
9.Erring in failing to make an award in the applicant’s favour in respect of weekly payments of compensation;
10.Erring by accepting the applicant’s psychological claim reports but not reflecting this in a weekly payments and s60’s award;
11.Delay in the delivery of the Judgment, approx. 5 months after the hearing when the party’s [sic] submissions were made and recorded;
12.Erring in failing to draw inferences against the Respondent in favour of the Respondent [sic] by forensically not serving the medical reports of Dr E Korbel, dated 18.2.03, and Dr Jeni Saunders dated 28.5.2001.”
THE SUBMISSIONS ON APPEAL
Regrettably, Mr Smith’s submissions do not often tally with the grounds of appeal raised, nor have any particulars been provided as to how and in what circumstances it is alleged the Arbitrator “misdirected” himself or, for example, failed to give “proper weight” to the evidence. Moreover, many of the “submissions” merely repeat the grounds of appeal. They are frankly of little assistance.
Mr Smith commences by stating that “the issues between the parties are as defined [in the grounds of appeal]”. He then states:
“Looking at these grounds, in light of the fact that there had been a previous award, the insurer could not rely upon many of these grounds.”
I simply have no idea what is meant by this statement, although I do note that in supplementary submissions filed on 22 August 2008, Mr Smith concedes that there is no prior award in this matter.
Doing the best I can, there appear to be seven principle subjects of complaint by Mr Smith. These I have summarised as follows:
(a)The Arbitrator erred in not awarding Mr Smith ongoing weekly payments where there was “significant medical evidence which supported his claim”. This encompasses Mr Smith’s complaint as to the Arbitrator’s treatment of all of the evidence. The MAC’s did not of themselves disentitle Mr Smith to weekly payments.(Reflections GroupCleaning Services Pty Ltd (formerly Shopping Centre Cleaning Services (Aust) PtyLtdv Todic [2006] NSWWCCPD 254 referred to);
(b)The Arbitrator erred in determining that employment was not a substantial contributing factor to the claimed psychological injury since”… there was probative medical evidence that there was consequent psychological sequelae flowing from the subject physical injury”;
(c)The Arbitrator failed to make “a proper analysis of the evidence as to the applicant’s capacity for work from a psychiatric perspective” where the evidence was clear “that [Mr Smith] was …totally incapacitated for work for psychiatric reasons due to his work injury.” The Arbitrator failed to distinguish between physical and psychiatric “incapacity”;
(d)The Arbitrator erred in failing to make an award pursuant to section 60 of the 1987 Act;
(e)The Arbitrator’s treatment of the radiological evidence was incorrect or at least the Arbitrator “misdirected himself” in relation to this evidence;
(f)The Arbitrator failed to give adequate reasons for his decision (which was also very late);
(g)The Arbitrator failed to have regard to the principles in Jones v Dunkel (1959) 101 CLR 298 and failed to draw ”inferences” against the Respondent in respect of two medical reports.
The Respondent prepared submissions in response to all 12 grounds of appeal. In summary, the Respondent submits that:
(a)The Arbitrator gave proper weight to, and adequately addressed, all the evidence, both lay and medical;
(b)The Arbitrator clearly set out the issues for dispute, and points out that Mr Smith has failed to identify the “essential questions” it is alleged the Arbitrator did not address;
(c)The Arbitrator properly considered the claim for psychological injury and any consequential claim for weekly benefits. As the Respondent points out, “…there was no acceptance that the appellant’s psychological condition was causally related to the injury to his shin”;
(d)Although there was a delay in the determination, “…no consequence flows from this.”;
(e)The Arbitrator’s reasons were adequate;
(f)There is no basis for the ‘Jones v Dunkel’ argument, since it was never put to the Arbitrator.
In short, no errors were made by the Arbitrator and his decision was consistent with the totality of the evidence before him.
THE SUBMISSIONS, EVIDENCE AND FINDINGS
The Weekly Payments Dispute
The ‘Injury’ Issue
Mr Smith has always maintained that he has been incapacitated as result of the incident on 7 February 2001, and certainly since weekly payments ceased on 30 January 2002.
He has similarly claimed that the blow to his right shin caused him to suffer consequential injuries to his back, legs and pelvis and, more recently, to his sexual organs and a psychological injury.
It is useful at this point to consider the Arbitrator’s findings on the issues of ‘injury’ and ‘incapacity’.
The Arbitrator commenced his determination by setting out the history of the claim. He then correctly identified the issues in dispute between the parties as twofold: firstly, whether Mr Smith was entitled to ongoing weekly benefits, and secondly, whether he had any entitlement to section 60 expenses.
In considering the issue of ‘injury’, the Arbitrator said this [13-15]:
“13.It is clear by the various histories in the many medical reports in evidence that Mr Smith suffered two separate frank injuries. The first on 7 February 2001 when a flange struck his right shin and on 17 July 2001 when his left knee was injured in a skiing incident.
14.Superimposed upon that, but not as clear-cut, is also the allegation of a secondary back injury suffered whilst undertaking physiotherapy treatment for the first injury to the shin.
15.Leaving aside the extent, if any, to which any of the injuries has caused or contributed to any permanent impairment, an important factual question in most of the s66 medical assessments has been the degree to which any symptoms or disabilities are attributable to the first, and the second frank injury above, or, indeed, the claimed secondary injury to the back.”
The Arbitrator then set out at length extracts from a number of medical reports, particularly those from the AMS’ and the Appeal Panels. I should point out at this stage that the medical evidence in the case, particularly from Mr Smith, was extensive, and was set out in full in an annexure to the Arbitrator’s Statement of Reasons.
The Arbitrator did not refer to each and every report or clinical note but indicated in the annexure that all the material listed therein had been “… taken into account in making this determination.” I accept that there is no reference in that material to the statements of Mr Smith nor, I should add, is there reference to the Application or the Reply and attachments thereto, but reading the Arbitrator’s determination as a whole, it is clear that this material was equally in evidence before him. It seems to me that, given the extensive medical evidence, it was sensible of the Arbitrator to list it in detail in an annexure, along with the various authorities relied upon by the parties, and the various MAC’s. As Meagher JA said in Beale v GIO of NSW (1997) 48 NSWLR 430 at 443,when needing to refer to relevant evidence, ”there is no need to refer to [it] in detail, especially in circumstances where it is clear that the evidence has been considered.”
The Arbitrator dealt with this material as follows [29-31]:
“29.The purpose of providing the foregoing findings [the extracts from various reports] particularly those given by the independent medical experts (the two original Approved Medical Specialists and the further four Approved Medical Specialists sitting on the Appeal Panels) is that following high level scientific review the end result is that at the present time Mr Smith does not have any work injury related permanent impairment to any body part able to be assessed in accordance with the legislation.
30.There is also a plethora of medical evidence provided by both parties to the dispute that has been gathered since the time of the original injury to Mr Smith’s shin on 7 February 2001. These medical opinions have been thoroughly reviewed by all the independent medical specialists acknowledged above and notwithstanding a number of the submitted medical reports support Mr Smith’s assertion of permanent impairment in the form of loss of efficient use of the claimed body parts the simple and powerful outcome of all this is the overwhelming findings that there is no permanent impairments or losses attributable to workplace injury.
31.Because of the above it is not the intention of the Commission to ‘flog a dead horse’ and go through each individual medical opinion proffered and give opinion as to why they are or are not unacceptable. That job has been adequately done by Drs Blake, Taylor, the two Appeal Panels and the Supreme Court. It is sufficient, in the Commission’s view, that the independent findings already made be confirmed as they have in this matter.”
Whilst the Arbitrator’s turn of phrase in paragraph 31 was perhaps a little colourful, his approach to the medical evidence was in my view appropriate in the circumstances.
I similarly do not intend to quote at length from all the medical reports, but a few examples should suffice. The Arbitrator referred to a report of Dr Barrett, Orthopaedic Surgeon, qualified by the Respondent, dated 22 February 2002. He quoted as follows [16]:
“There are inconsistencies in his history in that initially, his main site of injury appeared to be his right shin. Over the following months, he apparently developed more diffuse symptoms in his right leg, and from his admissions today, he has far more extensive pains in his back, in his thoracolumbar spine and not in his shoulders. These symptoms are inconsistent and in my opinion, are unrelated to the initial work injury.”
The Arbitrator then referred to a report of Dr Bodel dated 14 February 2002 quoting as follows [17]:
“The patient suffered an injury to the front of his right shin as a result of an incident that occurred at work on 7.2.2001. He states that at the time of the injury he also did the splits but his main area of pain was in the right shin. He did not require time off work.
The patient has subsequently developed back pain and right groin pain as well as pain in the right leg and then later left knee pain after the skiing injury. His MRI of the lumbosacral spine was done after the skiing injury.
The patient does have definite disc pathology in the lumbosacral region but I find it difficult to causally link that to the episode at work on 7.2.2001.
The patient does have established degenerative disc disease at the lumbosacral junction but I am unable to causally link this to the specific event that occurred on 7.2.2001.”
Detailed extracts of the MAC of the AMS, Br Blake, dated 27 August 2004 were then set out [18]. Dr Blake had summarised the findings of a number of the doctors qualified (or treating) in the case. In relation to the right shin injury, Dr Blake said “Mr Smith is unable to identify the site of injury now, and there is no deformity on physical examination to suggest any persisting related abnormality. No abnormality is found in the right knee”.
In relation to the claimed back injury, Dr Blake opined:
“The accounts of details of Mr Smith’s injury and the subsequent events vary, including the two different descriptions given by Mr Smith himself in his early statement 21/2 months after the event, and in his history as given now 31/2 years later. There was no early mention of his back being in any way involved in the initial incident. His back appears to be first mentioned in the clinical notes of his treating physiotherapist on 21/4/01.”
Dr Blake concluded:
“The initial descriptions and Mr Smith’s own statement would appear to be the more reliable, having been recorded close to the event. In my opinion, on the available information, Mr Smith’s lower back was not involved directly in the work incident on 7/2/01. However, it does appear that his back became involved secondarily, apparently during physiotherapy treatment in about mid April.”
Notwithstanding Dr Blake’s query in relation to the physiotherapy treatment that “no reason is evident why they would start treating his back” he still assessed Mr Smith as having a 5% permanent impairment of his back. In the same way, Dr Bodel in his report of 14 February 2002 assessed Mr Smith as suffering from a “12% permanent impairment of function in the back” but nonetheless stated that “the cause of this is uncertain; it is unlikely to relate to the injury on 7.2.2001”.
This MAC of Dr Blake was the subject of appeal by Mr Smith on the grounds of incorrect criteria and demonstrable error. The Medical Appeal Panel, on 7 July 2006 revoked the MAC of Dr Blake, stating as follows:
“However, in the view of the Appeal Panel, there is no evidence before it that the Worker has any permanent disability resulting from the bruising to his right leg on 7/2/2001. There is no evidence that the Worker suffered any injury to his back resulting from the accident at work on 7/2/2001. The Panel rejects Dr Giblin’s explanation that the Worker twisted his back at the time he was hit on the shin, as mere conjecture unsupported by any contemporaneous report of injury to his back by the Worker.
In the view of the Panel [referring to the opinion of Dr Bodel], the evidence of back disc lesions only showed up after physiotherapy or the skiing incident… There was nothing in the mechanism of injury to the right shin described that would indicate that the Worker could have injured his back as a result of this accident. There is nothing in the Worker’s statements at the time of the injury or some months thereafter, which indicates that the Worker reported any injury to his back.”
The Appeal Panel then substituted Dr Blake’s MAC with their own, assessing Mr Smith as having 0% loss of use or impairment of any body part claimed as a result of the pleaded injury on 7 February 2001.
This was taken on appeal by Mr Smith to the Supreme Court. The Court dismissed the appeal against the Appeal Panel’s findings in relation to Dr Blake’s MAC but made other orders in relation to the MAC of Dr Taylor to which I will refer shortly.
Having read all the material before the Arbitrator, his summaries of the various medical opinions as to ‘injury’ and ‘causation’ are accurate. In a statement dated 20 April 2001, Mr Smith confirmed that in the incident on 7 February 2001 he injured his right shin. No mention was made of any injury to his back or any other part of his body. In a statement made by Shane Myers on the same date, the Workshop Sales Manager with the Respondent at the time, he said that he observed Mr Smith at work on 9 February 2001 and that he was “running around the workshop and did not appear to have any injury” Mr Myers stated that in his observation, “Mr Smith did not appear to have any difficulties with performing his usual tasks following the alleged injury on 7 February 2001” up until his employment as a casual was terminated on 26 February 2001.
In a claim form dated 17 March 2001, Mr Smith again confirmed that he had injured his “right lower leg” in the accident on 7 February 2001.
As Mr Smith rightly points out in his supplementary submissions, “there appears to be no dispute on behalf of the Respondent that the Appellant did suffer an injury during and in the said course of his employment on 7 February 2001.” But what Mr Smith appears to have overlooked is that the evidence overwhelmingly establishes that the only injury suffered by him on 7 February 2001 was to his right shin. An entry in some unidentified clinical notes (but probably Ingleburn Medical Centre) contained in the material submitted by Mr Smith to the Arbitrator further confirms this. On 23 February 2001 this notation appears: “11/2 weeks ago bang ® shin on flange. Still sore. Worse when jogs.” Entries thereafter are illegible. What is clear is that Mr Smith was able to jog a short time after this incident and indeed, was able to ski in July 2001.
Dr Giblin saw Mr Smith at the request of his treating general practitioner, Dr Cairncross of the Ingleburn Medical Centre. In a report dated 28 March 2001, he stated that Mr Smith “had a metal plate fall onto his right shin. Since that time he has had a lot of pain and disabilities. Clinically, his Bone Scan suggests increased uptake his problem is most likely a sub-periosteal bruise.”
In his next report dated 23 July 2001, Dr Giblin recorded that Mr Smith “injured his left knee skiing on the 15th July.” A “subluxation/dislocation of the patella” was diagnosed.
In a report dated 5 September 2001, Dr Giblin noted that Mr Smith “is now starting to get pain from his right buttock down the leg.” Then in the next report dated 24 October 2001 Dr Giblin stated:
“I have had an opportunity to review his history again today [24 October 2001] and it appears that at the time of the injury, although the metal object hit him in the shin, he twisted his back at the same time, and I consider that most of his problem relates to his back.”
That observation, as the Appeal Panel noted, was mere speculation, and utterly inconsistent with the contemporaneous material.
On 26 July 2001, Dr Cairncross wrote to the Respondent’s insurer noting that he had seen Mr Smith on the day of the accident [and thereafter] with a history of “a heavy blow to his right leg from a metal flange”. No mention was made to any injury to any other part of the body.
Mr Smith qualified Dr Matalani. He prepared a report dated 12 July 2001 and noted this history:
“On 7/2/2001, after having fitted a flange onto a hose, he picked up the hose. He estimated that the flange might weigh up to 10kg. The hose and the flange accidentally fell onto his right shin. He was moving forward and nearly lost his balance and suddenly felt pain in the right side of the back .He had to twist his trunk and move his right leg back further in order to get away from the heavy weight of the flange. In doing so he had to lean forward and felt pain in the left side of the back and left leg. The pain radiated to the front of the pelvis. He fell over forwards and had to jerk himself back up.”
This history is also inconsistent with contemporaneous accounts of the event on 7 February 2001.
Dr Stenning, also qualified by Mr Smith, provided a report dated 28 November 2001. He obtained this history:
“The hose fell very heavily with the flange onto his right shin. He tried to move his leg out to the right. He felt a pain coming into his back, mainly on the right side, which later came onto the left side also. [He] twisted and tried to move his right leg back further in order to get it away from the heavy weight. The weight was on his right foot and as he leant forward he felt even more pain occurring into his right leg and into his back.”
Again, this account is inconsistent with the Respondent’s records and other contemporaneous material, particularly the clinical notes of the treating doctor.
Dr Manohar saw Mr Smith for an opinion in January 2007. He recorded complaints of “pain in the neck extending across to the shoulders and down to the interscapular region lumbosacral pain with an ache extending down to both ankles” following a “twisting injury at work in 2001”. These appear to be new symptoms, and the description of the incident, albeit brief, is again inconsistent with earlier statements.
As Hoeben J noted in the Supreme Court proceedings [7] “there is a significant factual dispute, the competing versions of which were before the approved medical specialists.” It is noted that all the material to which I have referred was submitted to the AMSs.
The Arbitrator concluded as follows [33-34]:
“33.I am satisfied that Mr Smith suffered injury to the front of his right shin by accident as described on 7 February 2001. I am not satisfied on the available evidence that Mr Smith suffered injury to his back resulting from physiotherapy treatment given as a consequence of his shin injury as the evidence seems to suggest that radiological investigations on the back prior to 14 July 2001 does not demonstrate any abnormalities (x-ray13.5.01) whilst MRI taken of the back post 14 July 2001 (MRI 22.10.01) demonstrates minor disc pathology at L4/5 and L5/S1. Thirdly I am satisfied that the incident of 14 July 2001, when he injured his left knee, was not causally related to the injury of 7 February 2001 and any lingering injuries or symptoms to his left leg and indeed his back is resulting from that skiing incident and not as a result of sequelae of 7 February 2001.
34.In that regard I accept the various medical opinions of the Respondent that indicate the above over that of the Applicant. In other words, any incapacity for work Mr Smith has resulting from musculoskeletal reasons giving restrictions in his work capacity is due to ongoing pathology in the left knee and in the back and not to any ongoing injury to the right shin.”
The determination of what injuries resulted from the incident on 7 February 2001 was a question of fact, and although I have some concerns as to the manner in which the Arbitrator expressed his findings, there was very little evidence, and indeed no contemporaneous evidence, to support Mr Smith’s claim that he suffered injuries to various parts of his body in the incident pleaded. In other words, the Arbitrator’s findings on ‘injury’ (physical) and ‘causation’ were consistent with the totality of the evidence. The Arbitrator was not satisfied that the injury to the shin caused the pathology or symptoms in the other body parts claimed. This conclusion was entirely open to him, and I agree with it.
As Deputy President Byron said in Westpac Banking Corporation v Kilby & BananacoastCredit Union Ltd [2005] NSWWCCPD 18 at [54]:
“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] FCFA 206 at [21]).”
In the present case, I am not persuaded that Mr Smith has demonstrated that the Arbitrator failed to exercise his discretion fairly or according to law, nor acted upon an incorrect legal principle or made any material mistake as to the facts.
I should briefly refer to the MAC of Dr Taylor dated 25 August 2004. Dr Taylor stated:
“…it is beyond my comprehension to envisage how the injuries that Mr Smith described to me as happening to him could lead to the loss of use of his sexual organs.”
Dr Taylor then certified 0% loss of sexual organs.
Mr Smith appealed this decision to the Medical Appeal Panel, which upheld Dr Taylor’s assessment. On appeal to the Supreme Court, it was ordered that a differently constituted Appeal Panel should review the MAC of Dr Taylor.. This was done, and the new Appeal Panel revoked the original certificate of Dr Taylor and substituted a new MAC. This MAC also found 0% loss of sexual organs as a consequence of the injury on 7 February 2001.
Thus the Arbitrator rightly concluded that [30]”…the simple and powerful outcome of all this is the overwhelming findings that there is no permanent impairments or losses attributable to workplace injury.”
This finding was clearly open to him on the evidence.
The ‘Incapacity’ Issue
Having found that Mr Smith suffered an injury to his right shin in the accident on 7 February 2001, the Arbitrator then noted that Mr Smith had no permanent impairment of any of the body parts claimed. He found further that [40]: “neither the injury of 7 February 2001 nor the employment was a substantial contributing factor to Mr Smith’s Pain Disorder.” I will discuss the latter finding more fully below.
As to the question of incapacity, the Arbitrator found as follows [41-42]:
“41.That does not mean that Mr Smith does not have any pain, disability or injuries that may prevent him from working in some suitable employment but this decision only goes to the finding that any ongoing complaints are not as a result of the incident at the workplace on 7 February 2001.
42.I note that Mr Smith has been in receipt of workers compensation benefits up until 30 January 2002 nearly 12 months post injury of 7 February 2001. In all the circumstances and in light of the findings and evidence in this matter I am satisfied that that is reasonable.”
Having found that the only compensable injury suffered by Mr Smith was to his right shin, the Arbitrator’s task was then to consider whether that was productive of any incapacity. Again, having considered all the material before the Arbitrator, I am of the view that there was simply no evidence to support Mr Smith’s claim that he was incapacitated and entitled to ongoing benefits as a consequence of the shin injury. I refer in particular to the material set out in paragraphs 45 to 47 above.
Section 33 of the 1987 Act provides:
“If total or partial incapacity for work results from an injury, [my emphasis] the compensation payable by the employer under this Act to the injured worker shall include a weekly payment during the incapacity.
“Injury” is defined in section 4 of that Act as “personal injury arising out of or in the course of employment”.”
I accept Mr Smith’s submission that a finding by an AMS of ‘no impairment ‘does not of itself infer ‘no incapacity’. I also accept that the findings in paragraph 40 of the Arbitrator’s Statement of Reasons are as to impairment, not to injury per se.
This issue was considered by Acting Deputy President O’Grady in Reflections GroupCleaning Services Pty Ltd (formerly Shopping Centre Cleaning Services (Aust) Pty Ltd) v Todic [2006] NSWWCCPD 254 (‘Todic’). In that case, an AMS assessed the worker as having no permanent impairment of the various body parts claimed. Notwithstanding this finding, the Arbitrator awarded the worker weekly payments of compensation. The incident leading to injury was not in issue. The principle issue in dispute between the parties was not only incapacity but also the nature and extent of any injury which resulted from the pleaded incident. The worker claimed that she suffered injuries to various body parts. The Arbitrator rejected that claim, but accepted that the worker had injured her back, noting that caution should be exercised when evaluating reports founded on a degree of exaggeration and embellishment.
This approach was accepted on appeal. ADP O’Grady rejected the argument that “the Arbitrator was bound to accept in every respect the reasoning process and incidental findings and conclusions expressed by [the AMS] in reaching that conclusion”.
The status of a MAC was considered by Deputy President Roche in Connor v Trustees ofthe Roman Catholic Church for the Archdiocese of Sydney [2006] NSWWCCPD 124 (‘Connor’) where he said as follows:
“42. The extent to which a MAC is binding on the parties was considered by the Commission in Jopa Pty Limited t/as Tricia’s Clip-n-Snip v Edenden [2004] NSWWCCPD 50 (‘Jopa’) where Deputy President Fleming said at [27]:
‘However the issue of a MAC does not equate to a determination of the dispute by the Commission. There are obvious reasons why the legislature would have intended that the ultimate determination of the matter rests with an Arbitrator. There may be a number of issues in dispute between the parties which, while not medical issues, must be agreed, or determined by an Arbitrator, in order to finally resolve the matter. These may include issues of liability and associated claims for compensation by way of weekly benefits and medical expenses. Procedural fairness, the filing of evidence and compliance with the procedural requirements of the Workers Compensation Acts (‘the 1987 Act and the 1998 Act’) may also need to be considered.’
43. … Whether an injury is compensable is to be determined by applying the provisions of the legislation and the relevant authorities to the facts as found by the Arbitrator at a hearing. Neither an AMS nor an Appeal Panel is equipped to determine such matters…
44. In my view that Appeal Panel was correct when it said “the question of injury or its causation is not in our view a matter which Parliament has empowered the AMS to decide”. In light of this statement it seems to me that the Appeal Panel was not certifying that the Appellant Worker sustained a compensable injury or, if she had, that the effect of that injury was continuing. The certification went no further than an assessment of the issue before it, namely, in the event that the Appellant Worker sustained a compensable injury, what was the Appellant Worker’s whole person impairment as a result of that injury. A determination of whether the Appellant Worker sustained a compensable injury is a matter for the Commission.
45. The Appeal Panel was also correct to state that the “appropriate time to call into question the issue of injury was before the Arbitrator”. The Respondent Employer had always put the issue of ‘liability’ in general and ‘causation’ in particular in issue….”
In short, “once liability is decided it is the for the Medical Panel to decide the percentage loss from the injury so found.”
In Connor, the worker suffered a workplace injury to her back in March 1998. After a few days off, she resumed normal work and activities. She then awoke at home in June 2002 with more severe back pain radiating to her left leg. Her claim for weekly benefits from that time was rejected by the Arbitrator whose findings were upheld on appeal.
The facts in Todic are not dissimilar to those of Mr Smith with one important exception: in Todic, there was sound evidence to support the worker’s claim that she suffered an injury to her back in the incident pleaded, although her claims for injury to the neck, shoulders and arms were rejected.. The medical evidence was sufficient in the view of the Arbitrator to ground an award of weekly benefits. In the present case, it is not disputed that Mr Smith injured his right shin: what is in dispute is whether he injured any other body part in the incident pleaded. There is insufficient probative evidence to demonstrate that he sustained anything other than a blow to the shin, and no medical evidence to support the proposition that the shin injury led to ongoing incapacity.
In those circumstances, I am not persuaded that the Arbitrator’s conclusion on this issue was incorrect. Although as I have said he referred to “impairments” in paragraph 40, it is clear that the purpose of that paragraph, read in conjunction with the subsequent two paragraphs , was to define the ‘injury’ issue. Having concluded, rightly in my view, that Mr Smith only injured his right shin in the accident on 7 February 2001, (in terms of physical injuries), in the absence of any evidence of ongoing incapacity from this injury, the Arbitrator was justified in finding that Mr Smith had no further entitlement to weekly benefits.
The Psychological Injury and Incapacity
By October, 2003, Mr Smith claimed that, as a result of the injuries he sustained in the accident on 7 February 2001, he had developed a psychological condition , described by the Arbitrator as “Pain Disorder”.
In August 2002 Mr Smith was referred by his solicitors to Ms Margarian, consultant psychologist. In February 2003, his solicitors referred him to Dr Robert Hampshire, consultant psychiatrist. As the Arbitrator noted at [38]: “To my knowledge, Mr Smith has never been referred privately for psychological or psychiatric consultation.”
In a report dated 22 August 2002, Ms Margarian concluded:
“It would appear that Mr Smith is currently suffering from a Pain Disorder (DSM1V/307.89) associated with both psychological factors and a general medical condition. He consistently reported pain symptoms associated with the injury sustained in February 2001 which included pain within his right side of his body, hip and groin, lower and upper back and shoulders.”
The difficulty with this opinion is that it is predicated on incorrect criteria: there was insufficient probative evidence to suggest that Mr Smith suffered anything other than a blow to his right shin in the accident on 7 February 2001.
The issue of experts’ reports and the weight to be attached to them was considered by the Court of Appeal in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 where Justice Heydon said at 743-744:
“...so far as the opinion is based on facts ‘observed’ by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on ‘assumed’ or ‘accepted’ facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert’s evidence must explain how the field of ‘specialised knowledge’ in which the witness is expert by reason of ‘training, study or experience’, and on which the opinion is ‘wholly or substantially based’, applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert’s specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight.”
Justice Heydon then quotes from Davie v The Lord Provost, Magistrates and Councillors of the City of Edinburgh (1953) SC 34 at 39-40 where Lord President Cooper said:
“...the bare ipse dixit of a scientist, however eminent, upon the issue in controversy, will normally carry little weight, for it cannot be tested by cross-examination nor independently appraised, and the parties have invoked the decision of a judicial tribunal and not an oracular pronouncement by an expert.”
Similar difficulties arise with the opinion of Dr Hampshire who examined Mr Smith on 10 February 2003. In his report of 13 February 2003, he stated:
“Mr Smith was a poor historian who gave me vague descriptions of multiple somatic complaints and was unable to give me a clear account of the onset of many of the symptoms. He became extremely angry when I told him that I could get no clarity from his history.”
He concluded:
“This man suffers from a severe Pain Disorder in which psychological factors are now the overwhelming driver to his symptomatology, far outweighing any organic or underlying structural damage he may have.
As a result of and associated with his pain disorder he has a co morbid secondary depression of severe intensity. He also appears to be suffering from episodic anxiety states although these are of far less clinical significance.
He also suffers from a chronic substance abuse disorder, namely marihuana but I strongly suspect that this is a condition that was with him prior to his injury. It may have been exacerbated post injury….
Mr Smith complains of his pain in a most idiosyneratic [sic] and unusual manner which is both pervasive and all dominating in terms of his current psychological thinking…
His depression is severe…
Undoubtedly there are also predisposing factors that impact negatively on his current psychological state…
It appears to me that his severe pain disorder has arisen secondary to his injury of the 2 February [sic] 2001…”
Predisposing factors were identified as “underlying personality structures, lack of intelligence and impulse disorder” along with substance abuse and family background.
Unfortunately, Dr Hampshire does not say why he believes that Mr Smith’s condition “appears to [have] arisen” as a consequence of the pleaded incident, and this is on a background of an acknowledged “poor historian.”. Dr Hampshire obtained a history of the incident, noting the blow to the shin and the failure of his leg “to improve”. He then stated:
“Mr Smith told me that over the following weeks and months his pain, which was originally in his right leg, appeared to ascend through his right leg to his right buttock and eventually up the right hand side of his body to the right side of his face.”
Dr Hampshire does not explain the mechanism of this ‘ascension’. He does however recite the ’theory’ propounded by Dr Giblin to the effect that Mr Smith “twisted his back” at the time. Dr Hampshire then said:
“Mr Smith, late in his interview with me noted that he thinks he hurt his back [in] the injury of 2 [sic] February 2001.”
This ‘theory’ is unsatisfactory for the reasons noted above, but demonstrates again the flawed assumptions on which Dr Hampshire appears to have based his conclusions. As McColl JA said in South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16, [Edmonds] referring to a report from Dr Rivett:
“132.In my view Dr Rivett’s statement that “in general all the problems are work-related” which the Arbitrator accepted in concluding that the respondent’s duties were sufficient to cause her injury (apparently within the meaning of s 16) amounted to a bare ipse dixit. It was not probative of the issue before the Arbitrator.”
I am of the same view in relation to the comment by Dr Hampshire that “it appears that his severe pain disorder has arisen secondary to his injury of the 2 [sic] February 2001.”
Mr Smith was also examined by Dr Doron Samuell, clinical and forensic psychiatrist on 17 February 2003, (one week after he saw Dr Hampshire), at the request of the Respondent. In a report dated 25 February 2005 Dr Samuell said:
“His inconsistencies with me at interview should make a medical examiner cautious about accepting any subjective symptoms without objective verification. Mr Smith does not describe any symptoms of anxiety or depression to me at interview. I do not consider that he sustained any psychological disorder as a consequence of his workplace accident.
In my opinion Mr Smith has many aspects of an antisocial personality disorder. This is unrelated to his workplace injury and likely to cause him ongoing interpersonal, substance abuse and legal problems.”
I note that similar observations were made by practitioners at the Ingleburn Medical Centre, and recorded throughout the notes on various occasions. For example, an entry on 30 March 2002 states, inter alia “threatening [and] abusive…told patient in waiting room he was going to punch me for keeping him waiting…long history of cannabis abuse…frightening his children…advised to see psychiatrist…stormed out.”
The Arbitrator concluded as follows [39]:
“It appears to me, notwithstanding the opinion of Dr Samuell that Mr Smith does suffer from [a] psychological and/or psychiatric condition, in particular the condition of Pain Disorder. I am satisfied that the opinions expressed by Dr Hampshire and Ms Margarian are consistent and am prepared to accept that a degree of the condition has been caused by his injury in February 2001 but it was not a substantial contributing factor. However, with his plethora of physical pain areas identified in both cases, which have been generally dismissed as medically inconsistent by the majority of medical examiners that have reported on Mr Smith, I am also satisfied that the substantial contributing factor are those pains from injuries that have been found not to have a relationship to the workplace incident in February 2001 together with non work related factors adequately reported upon. I believe those injuries causing the majority of the Pain Disorder are those listed that are also not associated or consistent with an injury to the front of the right shin.”
I have some difficulty understanding the Arbitrator’s reasoning process here: on the one hand he speaks of “medically inconsistent” complaints but then refers to “pains” from injuries unconnected with employment as being substantial contributing factors to the “Pain Disorder”.
Having regard to my powers on review, I am frankly not persuaded that any of Mr Smith’s psychological condition has been “caused by his injury in February 2001” let alone whether the contribution is regarded as substantial or otherwise. The difficulty arises because the facts upon which the psychiatric reports are based are flawed for the reasons stated: neither Dr Hampshire nor Ms Margarian have adequately explained how the facts on which their respective opinions are based form a proper foundation for them, particularly given the observations by Dr Samuell (and acknowledged to a degree by Dr Hampshire) as to the ‘unreliability’ of much of Mr Smith’s account.
Contrary to Mr Smith’s submissions, there is simply no “probative medical evidence that there was consequential psychological sequelae flowing from…” the blow to the shin. That was the only physical injury suffered by Mr Smith in the accident on 7 February 2001, as properly determined by the Arbitrator.
Mr Smith submits that:
“The Arbitrator’s findings are inconsistent in terms of accepting that the Applicant does suffer from a psychological injury but then stating that it is not a work related condition when the medical evidence supports, on the balance of probabilities, that it is a work related condition.”
The medical evidence was in my view inadequate and inconclusive as to whether employment (or the injury pleaded) played any role in the development of Mr Smith’s psychological condition. The Arbitrator was not confined to acceptance of all aspects of Dr Hampshire’s opinion (see Connor): he was in theory entitled to accept that doctor’s opinion as to the nature of the condition suffered by Mr Smith but not necessarily his opinion as to causation for the reasons I have stated.
Mr Smith’s grounds of appeal, especially 6, 7 and 10 relating to the Arbitrator’s treatment of the claim for “psychological injury” have not been made out. Similarly, Mr Smith has not demonstrated that the Arbitrator failed to give proper weight to the medical evidence, failed to heed the contents of Mr Smith’s statement, and misdirected himself “as to the evidence before him”. It is simply not true, as Mr Smith submits, that the Arbitrator failed to take into account “the allegation that [the] Applicant suffered from a psychiatric injury”. This aspect of the claim has been dealt with in detail at paragraphs 35 to 39 inclusive of the Statement of Reasons.
Mere disagreement with the outcome of proceedings is not a proper basis for appeal. As Deputy President Fleming said in Rania Falcon v Narelllan Enterprises Pty Limited [2003] NSWWCCPD 34:
“Where the parties are accorded procedural fairness and the Arbitrator has taken all the relevant factors into account and the discretion has been exercised fairly and lawfully, it is not appropriate, on review by a Presidential member, to interfere with the Arbitrator’s decision Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSW WCC PD 6).”
Although I have some reservations as to the manner in which the Arbitrator dealt with this issue, the end result is consistent with the totality of the evidence. Mr Smith has not demonstrated that he suffered a psychological injury that arose as a consequence of the pleaded incident. Even if it were accepted that the injury to the shin on 7 February 2001 played some part in his “Pain Disorder”, as the Arbitrator appears to have acknowledged, the “true and correct view,” to quote Spigelman CJ in Chemler, is that it was not “substantial” within the meaning of section 9A of the 1987 Act, and is thus not compensable.
The Section 60 Claim
Mr Smith submits that the Arbitrator “erred in failing to make an award in the applicant’s favour under section 60 of the Act.”
Having made findings that Mr Smith “did suffer injury to the front of his right shin by workplace accident in February 2001” [para.40], it follows that Mr Smith is entitled to section 60 expenses relative to that injury.
The Arbitrator concluded that [43]:
“In light of the outcome of the First Issue [weekly payments] and the fact that it is not in the affirmative, I make no order in relation to medical and related expenses.”
Mr Smith is correct: he is entitled to section 60 expenses in relation to treatment for the right shin injury. In practical terms, I believe it is unlikely that any such expenses exist, since I note that the Respondent paid all entitlements up to 30 January 2002. Nevertheless, the entitlement remains, and the Arbitrator erred in failing to make such an award. I propose to reflect this in the orders I make.
The Radiological Material
Although not listed explicitly in the ‘grounds of appeal’, Mr Smith submits that:
“the X-rays at that point in time [May 2001] would not reveal the abnormalities that the subsequent MRI scan revealed the Arbitrator has misdirected himself as to the causal connection in respect of the nature of the Applicant’s lower back symptoms, the x-ray medical evidence, and his injury.”
Again, I have some difficulty in understanding what this submission means. It appears that Mr Smith takes issue with the Arbitrator’s findings at [33] as follows:
“I am not satisfied on the available evidence that Mr Smith suffered injury to his back resulting from physiotherapy treatment given as a consequence of his shin injury as the evidence seems to suggest that radiological investigations on the back prior to 14 July 2001 does not demonstrate that any abnormalities (X-ray 13.05.01) whilst MRI taken of the back post 14 July 2001 (MRI 22.10.01) demonstrates minor disc pathology at L4/5 and L5/S1…any lingering injuries or symptoms to his left leg and indeed his back is resulting from that skiing incident and not as a result of sequelae of 7 February 2001.”
As the Respondent rightly points out:
“There was no objective evidence in support of the back injury having arisen during physiotherapy. Rather, the only objective evidence did not support it. That is all the Arbitrator found, as he was entitled to do.”
Mr Smith’s submissions also overlook other compelling evidence disputing the occurrence of the back injury. The Medical Appeal Panel considered this submission and rejected it; although not binding on the issue, it was nonetheless probative evidence.
In short, Mr Smith was unsuccessful in persuading the Arbitrator (and indeed the Appeal Panel and the Supreme Court) that he suffered an injury to his back as a consequence of his shin injury for a number of reasons. The radiological evidence did not assist his claim, and I can see no error by the Arbitrator in his treatment of this issue.
The Adequacy of Reasons Issue
Mr Smith submits that:
“The Arbitrator does not deal with the claim for incapacity to work from a physical and psychological perspective. It appears that he has treated this as being the same thing when these are two distinct questions. A person may have a large WPI but no incapacity for work and vice versa. The Arbitrator has failed to properly consider these matters it is an error of law not to give any reasons for this decision.”
I do not cavil with Mr Smith’s statement on the issue of ‘incapacity’. But what he has overlooked in his submission is this:
a. He failed to establish that he suffered a psychological injury within the meaning of the 1987 Act, and
b. Having failed to establish that he suffered anything other than a blow to his right shin in the pleaded incident, there was simply no evidence to support a claim for incapacity beyond 30 January 2002.
Mr Smith’s submissions focus on what he perceives to be faults in the outcome of his claim, rather than on any errors made by the Arbitrator. The Arbitrator’s reasons were adequate in the context of his statutory obligations, and I cannot see where he has “failed to properly consider these matters”.
As I said in Mindgrove Pty Ltd v Hentunen [2005] NSWWCCPD 118:
“56.Commission Arbitrators have a statutory obligation to provide adequate reasons for a decision. The Commission is not a court and its objectives are to provide a fair and cost effective process for resolution of disputes between parties. Proceedings are conducted with as little formality and technicality as the proper consideration of the matter permits. As Deputy President Fleming said in Sandford’s case, “the content of statements of reasons for decision reflect this process and should not on review be ‘construed minutely and finely with an eye keenly attuned to the perception of error’ (Collector of Customs v Pozzolanic [1993] 43FCR 287). Further, “to succeed on the ground of ‘inadequate reasons’ it will be necessary for the Appellant Employer to demonstrate not only that the reasons are inadequate but that the inadequacy sufficiently demonstrates that the Arbitrator has failed to exercise his or her statutory duty to fairly and lawfully determine the application” (see Y G & G G v Minister for Community Services[2002] NSWCA 247.”
I accept Mr Smith’s complaint that “there was a significant delay in the delivery of the Judgement [sic] which was in breach of the guidelines for the Arbitrators”. But I am somewhat perplexed as to what Mr Smith perceives to be the impact of this delay, other than the outcome of the proceedings..
An ‘Arbitrators Code of Conduct’ was issued under the hand of former President Justice Sheehan in February 2007. It is a guideline only. Its force and effect was considered by Deputy President Byron in Rick Damelian Pty Limited v Romanas [2004] NSWWCCPD 93 where he said at [45]:
“The Guideline issued by the President is not a creature of statute but simply aims to provide a practical framework within which many of the practices, procedures and proceedings of the Commission ought to be conducted in the context of the Commission’s objectives and other relevant, statutory provisions.”
‘Timeliness’ is a requirement. In the present case, the complexity of this matter and it’s lengthy history have no doubt impacted upon the Arbitrator’s ability to comply with this aspect of the guideline. Although the delay is regrettable, I am not persuaded that the Arbitrator has failed to apply principles of procedural fairness in either the conduct of the proceedings or in his determination.
The ‘Jones v Dunkel’ Issue
Mr Smith submits that the Arbitrator erred:
“in failing to draw inferences against the Respondent in favour of the Respondent[sic] by forensically not serving the medical reports of Dr E Korbel dated 18.2.03 and Dr Jeni Saunders dated 28.5.2001.”
Mr Smith repeats his assertion that he has been incapacitated since 30 January 2002 by reason of ongoing physical and psychiatric symptoms, and that “there was significant medical evidence which supported his claim.” This evidence I have addressed earlier. He then states:
“Even the Respondent [sic] own medical evidence which was not served supported his ongoing incapacity and his need for ongoing treatment.”
I am at a loss to understand how Mr Smith claims to be aware of the contents of these reports. More importantly however, as the Transcript reveals, this point was not taken in the proceedings before the Arbitrator. In those circumstances, it is impossible for Mr Smith to now challenge the Arbitrator’s determination when the subject matter of his complaint was never raised. The Arbitrator may well have taken this submission into account, but this is a matter so completely speculative that it is impossible to draw any conclusions.
Mr Smith has failed to demonstrate any error by the Arbitrator on this point, and it is not necessary for me to consider the merits of the claim further.
CONCLUSION
The Arbitrator’s conclusions were consistent with the evidence before him. As the Respondent points out, Mr Smith “…is seeking to cavil with the Arbitrator’s refusal to speculate (as some of the doctors did) in the appellant’s favour as to the cause of any alleged back pain.” Mr Smith had very little probative evidence to support his claims. The evidence was overwhelming that, in the incident on 7 February 2001, the only injury sustained by him was a blow to the right shin. Any other claimed consequences were ultimately a matter for speculation, and there is no place for this in proceedings before the Commission [See Section 354 of the 1998 Act, and Clause15.2 of the 2006 Rules]. As Giles JA said in Edmonds:
“6. In Hevi Lift (PNG) Ltd v Etherington this Court said that medical reports which did not identify a factual basis for the opinions, but simply asserted that employment was a significant contributing factor to injuries, carried no weight…”
And again quoting from Edmonds, per McColl JA [133]:
“However the question whether expert evidence relied upon by a party is probative of a matter in issue is determined in accordance with legal principle and is susceptible to review on appeal in accordance with the principles which govern appellate review of findings of fact: see generally Fox v Percy [2003] HCA 22; (2003) 214 CLR 118.”
Much of the medical evidence relied upon by Mr Smith had very little probative value, and the Arbitrator was entitled to place some reliance on the scrutiny of this material by the “independent medical specialists”.
Save for the issue of the section 60 expenses, the appeal fails.
DECISION
Paragraphs 1, 2 and 3 of the decision of the Arbitrator dated 9 May 2008 are confirmed.
To that decision is added paragraph 4 as follows:
“4.The Respondent to pay to the Applicant section 60 expenses in respect of treatment of the right shin injury on 7 February 2001 on production of accounts or receipts.”
COSTS
Mr Smith has been largely unsuccessful on appeal. In all the circumstances, I think the appropriate order is for the Respondent to pay 10% of Mr Smith’s costs on appeal.
Deborah Moore
Acting Deputy President
24 September 2008
I MARIE JOHNS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DEBORAH MOORE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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