Smith v New South Wales Police Service
[2004] NSWWCCPD 77
•4 November 2004
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Smith v New South Wales Police Service [2004] NSW WCC PD 77
APPELLANT: Neil Francis Smith
RESPONDENT: New South Wales Police Service
INSURER:Treasury Managed Fund
FILE NUMBER: WCC11670-2003
DATE OF ARBITRATOR’S DECISION: 24 December 2003
DATE OF APPEAL DECISION: 4 November 2004
SUBJECT MATTER OF DECISION: Leave to file fresh evidence; continuing weekly payments; rate of weekly payments; medical expenses; whether claim for permanent impairment made; whether evidence taken into account.
PRESIDENTIAL MEMBER: Deputy President Gary Byron
HEARING:Determined on the papers
REPRESENTATION: Appellant: Self-Represented Worker
Respondent: Hunt & Hunt Lawyers
ORDERS MADE ON APPEAL: The decision of the Arbitrator, dated 24 December 2003, is revoked and the following decision is made in its place:
The Respondent Employer is to pay to the Appellant Worker, weekly payments of compensation pursuant to section 40 of the 1987 Act from 8.9.94 to 30.6.95 at the maximum statutory rate plus dependent spouse; from 1.7.95 to 12.7.95 at $89.00; from 13.7.95 to 30.6.96 at $185.07; from 1.7.96 to 30.6.97 at $83.28; from 1.7.97 to 30.6.98 at the maximum statutory rate plus dependent spouse; from 1.7.98 to 24.2.03 at $245.88, and continuing on that basis and at that rate. Payments for dependent spouse conditioned on evidence of dependency for each period for which a dependent spouse payment is allowed.
The Respondent Employer is to pay the Appellant Worker’s section 60 of the 1987 Act expenses on production of accounts or receipts.
The Respondent Employer is to pay the Appellant Worker’s costs of the proceedings before the Arbitrator as agreed or assessed.
THE APPEAL
On 20 January 2004 Neil Francis Smith (Mr Smith/the Appellant Worker) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (the Commission) against a decision, dated 24 December 2003. The appeal was registered by the Commission on 17 February 2004. Mr Smith is not legally represented for the purposes of this appeal, although he was represented in the proceedings before the Arbitrator. He did consult his Solicitor after lodging the appeal and his Solicitor subsequently lodged further submissions on his behalf. However, Mr Smith advises that he does not wish these further submissions to be taken into account in this appeal.
The Respondent to the Appeal is New South Wales Police Service (the Respondent Employer) and the relevant insurer is the Treasury Managed Fund (the Insurer).
In this appeal, Mr Smith claims that he is entitled to payment of weekly compensation from 25 February 2003 and continuing (beyond the closed periods stipulated by the Arbitrator), and future medical expenses. He also raises other issues including entitlements under sections 38, 66 and 67 of the Workers Compensation Act 1987 (the 1987 Act). He alleges that he sustained a psychological injury and alcohol induced injuries, arising out of his employment as a Senior Constable in the New South Wales Police Service. The Insurer denied liability for the claim.
The appeal has been referred to me out of priority order, following a request from Mr Smith who put forward grounds for an expedited review of the Arbitrator’s decision.
BACKGROUND
Mr Smith was a Senior Constable of Police stationed at Cabramatta at the time of the injury for which workers compensation is claimed. By way of background, in January 1981 he was required to investigate a report that gunshots had been heard. In the course of this investigation, Mr Smith and his colleague were fired upon and in his view, were lucky not to have been injured. Members of the Special Weapons Group were called, attended the scene and disarmed the person who had fired the shots. A short time later, in relation to a separate incident, Mr Smith went to a house, following reports to police that neighbours had heard shots being fired. At the scene, Mr Smith discovered that a male person had shot himself after placing a large calibre military rifle in his mouth. He said that he was required to collect fragments of bone, brain and blood from the ceiling, walls and floor of the premises. Mr Smith resigned from the Police Service in February 1981, because of a high level of anxiety that he said he developed, following these incidents.
Mr Smith rejoined the Police Service in 1992 and shortly after, was promoted to his previous rank of Senior Constable. According to Mr Smith, he failed in his efforts to complete a training course to become a Police Education and Development Officer. He states that early in 1994, he became aware of “corruption and misconduct on a grand scale at Cabramatta”. In his statement of 14 June 2003, Mr Smith states that his claim is based on the psychological injuries he sustained as the result of unreasonable actions of his employer, including demotion, vilification and humiliation because he took a stand against Police corruption at Cabramatta and because he communicated with the local State Member of Parliament, John Newman about his concerns. Mr Smith sought medical assistance and was placed on sick leave. In due course, he resigned from the Police Service, his last day of service being 27 August 1994. He states that Mr Newman was murdered five days after his (Mr Smith’s) resignation. He claims that he and his wife continued to be harassed following his resignation. He gave details of this together with his attempts to obtain and hold onto various jobs, and details of medical assistance and treatment that he required. He subsequently made a claim on the Respondent Employer for workers compensation, but his claim was rejected.
On 1 July 2003, Mr Smith lodged an ‘Application to Resolve a Dispute’ in the Commission. A teleconference was held on 2 October 2003, after which the matter proceeded to a face-to-face conciliation/arbitration hearing on 16 October 2003. The parties were unable to reach an agreement, and the Arbitrator was required to make a determination. Mr Smith was legally represented by Mr David Jones of Marshall and Partners Solicitors, in these proceedings.
The Arbitrator found in favour of Mr Smith, but found that none of his alcohol-related conditions claimed were compensable. He found that Mr Smith was partially incapacitated for work, as a result of his injuries, from 8 September 1994 to 24 February 2003.
The Certificate of Determination, dated 24 December 2003, records the Arbitrator’s orders as follows:
“1. The Respondent to pay the Applicant weekly payments of compensation pursuant to section 40 of the Act from 08.09.94 to 30.06.95 at the maximum statutory rate plus dependent spouse; from 01.07.95 to 12.07.95 at $89.00; from 13.07.95 to 30.06.96 at $185.07; from 01.07.96 to 30.07.97 at $83.28; from 01.07.97 to 30.06.98 at the maximum statutory rate plus a dependent spouse; from 01.07.98 to 24.02.03 at $245. Payments for dependent spouse conditional on evidence of dependency for each period.
2. The Respondent to pay the Applicant’s section 60 of the Act expenses on production of account or receipts.
3. Respondent to pay the Applicant’s costs as agreed or assessed.”
Following the decision of the Arbitrator, Mr Smith dispensed with the services of his Solicitors and filed this appeal on 20 January 2004. The Respondent Employer lodged a ‘Notice of Opposition’ to the appeal, together with an ‘Application to Admit Late Documents’, on 13 May 2004.
However, on 24 May 2004, Mr Smith sent an email to the Registrar confirming that he had once again retained Mr David Jones, of Marshall & Partners Solicitors. Further, Mr Smith requested an extension of time and stated, “I have come to realise that I am totally out of my depth as [sic] unrepresented worker”.
On the following day, Mr Jones of Marshall & Partners contacted the Registrar by email and advised that he had received instructions to act for Mr Smith in the appeal. Mr Jones requested that the Commission provide a complete record of the appeal documents and requested that the “initial determination by the President be deferred for a period of 7 days to allow consideration of the appeal material.”
On 26 May 2004, a Direction was issued by the Commission informing the parties of the timetable for the filing of further submissions on the appeal. Upon receipt of advice from the Appellant Worker’s Solicitors that the Direction had not been received, the Commission issued a further Direction dated 24 June 2004 for the same purpose.
On 7 July 2004, the Commission received the ‘Appellant Worker’s Amended Submissions’, along with various documents relied upon in the arbitration proceedings and copies of fresh evidence sought to be admitted in the appeal. The Respondent Employer duly filed a ‘Supplementary Notice of Opposition’ on 9 July 2004.
By letter dated 15 August 2004, Mr Smith advised the Commission that he had again “dispensed with the services of Mr David Jones, Solicitor and am now unrepresented”. In a further letter dated 22 August 2004, Mr Smith sought to “have all and any submissions made by Mr David Jones of Marshall & Partners set aside as they do not represent my views or instructions.” In relation to his claim for alcoholic hepatitis Mr Smith submitted that he wished to “withdraw any reference to this disease from this Appeal”.
ISSUES IN DISPUTE
Mr Smith’s former Solicitor’s submissions concur with Mr Smith’s submission that he is entitled to be paid weekly compensation from 25 February 2003 and continuing, in addition to the closed period awards made by the Arbitrator . The Solicitor further submits that:
·the Arbitrator erred in failing to take into account evidence that was available to him and which had been indicated both at the hearing and in submissions filed, that would be relied upon;
·alternatively, if this is rejected, the documents should be admitted as fresh evidence;
·the Arbitrator erred in finding against the available evidence or weight of the evidence, that Mr Smith was not incapacitated for work on the basis of partial incapacity beyond 24 February, 2003 due to a work related condition, and
·the Arbitrator erred in finding against the evidence or weight of the available evidence, that Mr Smith’s alcohol related conditions were not compensable.
In confirming that he wished to proceed with this appeal unrepresented, Mr Smith informed the Commission in writing on 22 August 2004, in the following terms:
“My appeal is simply this, the Arbitrator should have made an ongoing award for weekly payments beyond the closed period set by the Arbitrator which I think was February or March 2003 because I was then and remain Certified unfit for any work as per WorkCover medical Certificates that should have been before [the Arbitrator]. If there is a problem with these Certificates I enclose copies. It is highly unlikely I shall ever be able to work again.
I also believed I should have been entitled to an award under section 38 of first 26 weeks at 80% of normal salary because I was certified totally unfit for work at that material time which has not been disputed. This was the period in which I submitted my Resignation to the Respondent and at the time I was under the care of Dr G Poulos GP and Dr Chaudary, Psychiatrist.”
On reading Mr Smith’s submissions he is claiming that the Arbitrator ought to have had regard to the record of the interview of himself and his wife by Mr Geoff Denman, Solicitor for the Director of Public Prosecutions, which he states “has always been part of the Applicant’s ‘documents to be relied upon’ but has apparently never been seen by the Arbitrator.”
Mr Smith also submits that there is a wealth of documentary evidence to demonstrate an unbroken chain of events, but the Arbitrator “seems to have had access to only a tiny proportion of that evidence.”
Mr Smith has submitted an extensive list of documents, that “exist but for reasons I can only guess at, are being kept from the light of day.”
Mr Smith also refers to a videotape that has been provided to the Commission, “of the interview between the applicant and the Respondent’s Dr Alan White [which] should be aired as it goes directly to the question of integrity when it is compared with the written report.”
Mr Smith submits that these items should have been considered by the Arbitrator, and he questions whether the Arbitrator had sufficient material before him to properly arrive at a “Decision on the Papers”. (I note however, that the matter was not dealt with on the papers. The determination was made following a face-to-face conciliation/arbitration hearing before the Arbitrator, at which Mr Smith gave evidence and was legally represented).
He further asks why an independent medical assessment was not ordered for ascertaining the degree of permanent impairment. He claims that he is entitled to an order pursuant to sections 66 and 67 of the 1987 Act.
He further asks whether the Arbitrator’s decision on “Section 60 expenses allow for future treatment of both the Applicant’s Psychological Injuries and his alcohol problem/injuries. And if not, why not?”
Mr Smith has withdrawn any assertions previously made about “alcoholic hepatitis”, but not the balance of the assertions regarding alcohol abuse by him and the impact that it had upon him. I have paraphrased Mr Smith’s specific “grounds” of appeal, as expressed by him (some in the form of questions), for the sake of clarity and completeness. He states in a document submitted in clarification of his appeal and dated 24 January 2004, that the Arbitrator “had to make his decision with literally one arm tied behind his back for lack of ‘to be relied upon’ documents, apparently due to the failure of legal representatives.”
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.”
Mr Smith has requested or consented on a number of occasions, both in his original appeal application and subsequent documents, for the matter to be determined on the papers. Similarly, in the Respondent Employer’s Reply dated 13 May 2004, no objection is raised to the matter being determined ‘on the papers’. Having regard to the wishes of the parties, Practice Directions Numbers 1 and 6, and the documents that are before me, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
In arriving at the decision to determine the appeal ‘on the papers’ I have also taken into account Mr Smith’s own statements as to his state of anxiety and his submission as to the current state of his health. The submissions that he has made are comprehensive and I am satisfied on perusing the file, that he has received independent legal advice and assistance on a number of occasions, as well as a good deal of appropriate assistance from the Registrar and the Commission staff in getting this appeal on foot. It is clear that the requirements of Part 2.3 of the Commission’s Access and Equity Service Charter have been substantially followed, having regard to the file notes, copies of email communications, letters and directions given, along with Mr Smith’s apparent, albeit general, familiarity with the process and the legislation.
There is nothing to be gained by subjecting Mr Smith to a face-to face hearing, against his wishes, particularly as the Respondent Employer has agreed that the appeal may be determined ‘on the papers’.
While in the circumstances, I am not confronted with the situation of an unrepresented person appearing before me in a physical sense, I am mindful of the obligations of the Commission in dealing with an unrepresented worker in proceedings before the Commission. An unrepresented person will ordinarily be at a disadvantage because of their lack of legal skill (Rjaski v Scitec Corporation Ltd [unreported] NSW CA 16 June, 1986 (Rjaski)). A court (and a tribunal) has an obligation to diminish this disadvantage so as to ensure a fair and just hearing (Rjaski; Minogue v HREOC [1999] FCA 85; Panagopoulos v Southern Healthcare Network [unreported] SCT Vic 15 September, 1997). However, the court or tribunal must remain neutral and must not provide an advantage to the unrepresented person over the party that is legally represented (Rjaski). (The relevant issues in dealing with unrepresented litigants were discussed in Reisner v Bratt [2004] NSWCA 22)). A determination of this appeal ‘on the papers’, with the relevant principles in mind, is appropriate.
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 (the 1998 Act), which provides:
“352 Appeal against decision of Commission constituted by Arbitrator
(1) A party to a dispute in connection with a claim for compensation may, with leave of the Commission constituted by a Presidential member, appeal to the Commission as so constituted against a decision in respect of the dispute by the Commission constituted by an Arbitrator.
(2) The Commission is not to grant leave to appeal unless the amount of compensation at issue on the appeal is both:
(a)at least $5,000 (or such other amount as may be prescribed by the regulations), and
(b)at least 20% of the amount awarded in the decision appealed against.
(3) If the Commission refuses to grant leave to appeal, the Commission must state reasons for the refusal in writing to the parties.
(4) An appeal can only be made within 28 days after the making of the decision appealed against.
(5) An appeal under this section is to be by way of review of the decision appealed against.
(6) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.
(7) On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.
(8) In this section, decision includes an award, interim award, order, determination, ruling and direction.”
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act. Notwithstanding that the Commission did not register the appeal until 17 February 2004, it was actually received in the Commission on 20 January 2004.
There is no dispute that the monetary threshold requirements of section 352(2) are met.
Leave to appeal is granted.
ROLE AND FUNCTION OF A PRESIDENTIAL MEMBER
Having regard to the submissions made by Mr Smith and the fact that he is not legally represented in this appeal, it is necessary to outline briefly, the role and function of a Presidential Member on appeal, and the limitations of that role and function. A Presidential Member 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 (2002) 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.
LATE DOCUMENTS
There has been some doubt as to the date of service upon the Respondent Employer and/or the Insurer of the ‘Appeal against Decision of Arbitrator’ in this matter. Directions were given by the Registrar and a timetable for the filing of documents was given to the parties. At one point, Mr Smith was legally represented. This occurred at a time after the lodging of the appeal and gave rise to the necessity for the timetable to be put into place. However, as previously stated, Mr Smith subsequently discharged his lawyer. The Respondent Employer’s legal representatives addressed inquiries to the Commission about the status of the appeal, but responses to these inquiries were incomplete and delayed. Without traversing further the history of the matter, it transpired that the Respondent Employer filed a ‘Notice of Opposition’ to the appeal accompanied by an ‘Application to Admit Late Documents’, after receiving verbal advice from the Commission. Mr Smith objects to the filing of the late documents on the basis that he caused the service of the sealed documents on the NSW Police Service and the Insurer on 23 February 2004. However, according to my reading of the documents on the Commission file, the delay came about substantially as a result of a break-down in communication between the Respondent Employer’s legal representatives and the Commission, when the Solicitors were seeking to clarify some aspects of the appeal, and in particular, whether they had received all of the documents that were filed, initially, by Mr Smith. I note that the Commission extended some latitude to Mr Smith and his legal representative, when he decided to re-engage his Solicitor after he had lodged his appeal.
On 7 July 2004 the Commission received further submissions on behalf of Mr Smith, from his Solicitors. This led to supplementary submissions being made by the Respondent Employer, together with a ‘Supplementary Notice of Opposition’, to which Mr Smith’s Solicitors duly responded, the documents being received in the Commission on 16 July 2004. In a further document dated 22 August 2004 and received in the Commission on 24 August 2004, Mr Smith states, “I seek to have all and any submissions made by Mr David Jones of Marshall & Partners set aside as they do not represent my views or instructions.”
Having regard to the unusual history and circumstances of this matter and recognizing that the delay in submitting the response was undoubtedly influenced by these unusual events and circumstances as well as the communication difficulties between the Respondent Employer’s Solicitors and the Commission, it is my view that the interests of justice would not be served by refusing to admit the late documents. I find that Mr Smith is not prejudiced by allowing the Respondent Employer to pursue its case in the usual way. The application to admit the late ‘Notice of Opposition’ is allowed.
EVIDENCE
Evidence that was before the Arbitrator
Mr Smith gave unsworn evidence before the Arbitrator. A transcript of this evidence is before me in this appeal.
The Arbitrator states that the following documents were in evidence before him and were taken into account in making his determination:
·Statement of Neil Francis Smith, dated 14 June 2003
·Statement of Sandra Theresa Smith dated 18 September 2002
·Medical report of Ross Leembruggen, Mr Smith’s treating psychologist, dated 22 October 2002
·Medical report of Dr Greg Steele, Mr Smith’s psychiatric specialist, dated 24 February 2002
·Letter from John Lyons, Macquarie Area Health Service dated 22 October 2003
·Referee statements for Mr Smith, of 29 July 1994
·Extract from Police Royal Commission “Chapter 4”
·Transcript from “Four Corners” programme of 8 April 1997
·Certificate of Discharge for Mr Smith
·Treasury Managed Fund letter dated 21 November 2002
·Register of Injuries form
·Three medical reports from Dr A White, the Respondent Employer’s psychiatric specialist, dated 4 November 2003.
These documents are before me in this appeal.
The Arbitrator states the following at paragraph 12 of his Statement of Reasons for Determination (Reasons):
“I note at the conference leave was granted to the parties for documents produced under directions for production to be filed in evidence with the submissions, but I have received no other documents and take into account only those listed above.”
Other evidence
Mr Smith claims that he provided his Solicitor with a significant number of documents, many of which were not produced to the Arbitrator. These are set out in a list that was filed as part of Mr Smith’s appeal against the decision of the Arbitrator. Mr Smith submits that the Arbitrator ought to have had access to all documents, not just those put forward by his Solicitor, as these documents demonstrate “an unbroken chain of such evidence that supports the Applicant’s claim. Unfortunately, or perhaps more sinisterly, the Arbitrator seems to have had access to only a tiny proportion of that evidence.”
Mr Smith submits that a videotape of and interview between himself and Dr Allan White “should be aired as it goes directly to the question of integrity when it is compared with the written report.” The videotape referred to is sealed and is attached to the Commission file, being received on 4 December 2003 and after being uplifted following approval by the Arbitrator, was returned to the Commission on 19 December 2003. The video was referred to in the course of the proceedings before the Arbitrator, but there is no indication that upon its return to the Commission, it was taken into account.
Documents and information listed as not available at the time of filing the ‘Application to Resolve a Dispute’ and that are not included in the list of documents taken into account by the Arbitrator are:
· Medical reports of Dr Raschke
·Medical reports of Dr Poulos
·Medical reports of Dr Chaudhary
·Medical reports of Dr Kerr
·Medical reports of the Mental Health Team of Coonabarabran District Hospital
·Medical reports of Dr Caterson
·Medical reports of Dr Haines
·Documents from GIO General Limited
·Documents from New South Wales Police Service.
These documents were the subject of directions to produce.
Further documents that had been requested but were not available at the time of filing of the ‘Application to Resolve a Dispute’ and which are not included in the Arbitrator’s list, are:
· Section 126 Reports (Treasury Managed Fund), requested 29 November 2002
·Particulars of employment (Treasury Managed Fund), requested 29 November 2002.
Documents that were filed with the ‘Application to Resolve a Dispute’, but that are not included in the Arbitrator’s list, are:
· Treasury Managed Fund letter dated 2 October 2002
·Copies of letters from Marshall & Partners, Solicitors to the Treasury Managed Fund Workers Compensation, seeking details of Mr Smith’s claim, his employment and requesting a reconsideration of the claim.
The Arbitrator made the following request at the commencement of the arbitral proceedings. He said at page 1:
“There’s been a number of documents produced by directions for production which have not been filed in evidence. I just want to know what documents need to be filed in evidence to be relied on before the matter is determined.”
Mr Smith’s Solicitor indicated that he wished to rely upon the “application as filed with the supporting documents”. Mr Jones listed the documents that were attached to the ‘Application to Resolve a Dispute’, all of which are included in the list set out in the Arbitrator’s Statement of Reasons for Decision. The Solicitor stated that other documents were “…attached to the application, but I don’t seek to rely upon those documents.” He indicated that there were further documents upon which he intended to rely, and then listed the following:
· Document dated 22 August 1994, under the hand of the Superintendent of Police and Acting District Commander, Cabramatta, setting out leave entitlements and history
·Documents including clinical notes, produced by Dr Caterson, General Practitioner at Gulgong, pursuant to directions to produce
·Notes of Dr Haines of Tanilba, produced pursuant to directions to produce
·Notes of Dr Raschke, General Practitioner at Medowie (including notes of Dr Soraya Felix who previously conducted the practice), produced pursuant to directions to produce
·Transcript from the Police Integrity Commission (PIC) of an interview between Jeff Denman of the PIC and Mr Smith and his wife, on 8 December 1994, and a certificate attached to the transcript under the hand of Terrence P. Griffin dated 9 October 2003, certifying that the document could be disclosed and used for the purposes of Mr Smith’s workers compensation claim
·Tax invoice dated 7 August 2003 detailing amounts due and owing for treatment received by the applicant
·Report dated 22 October 2003 of Mr John Lyons, Authorised Nurse Practitioner.
None of these, with the exception of the last item, were included in the list of documents that are set out in the Arbitrator’s Statement of Reasons for Decision. However, the medical reports of Dr Caterson, Dr Haines, Dr Raschke, documents from the NSW Police Service and documents from GIO General Limited, were listed in the ‘Application to Resolve at Dispute’, but were not available, at the time of filing.
The Respondent Employer indicated that it wished the following documents to be taken into account by the Arbitrator:
· A copy of a letter to the Police Association that accompanied Mr Smith’s resignation dated 8 August 1994
· A letter from the Police Academy to the Officer in Charge, Police Staff Branch, dated 5 February 1993
· Entries in a document ‘Particulars of periods of relief on higher rank”
· A computer printout ‘Interactive maintenance commentary/extension data’ dated 13 July 1995
· A letter from Inspector Webber, Patrol Commander, Coonabarabran, dated 13 July 1995
· A report ‘Re-joinee’s progress report’ dated 29 January 1993
· A ‘Recruitment Preliminary Health assessment’ dated 24 June 1992
· A Resignation dated 6 February 1981
· Reports of Dr Alan White.
With the exception of the reports of Dr Alan White, none of these items were included in the Arbitrator’s list set out in the Statement of Reasons for Decision. I note that in its Reply, the Respondent Employer listed the following documents upon which it would rely in the proceedings before the Arbitrator:
·Medical report of Dr G Steele
·Medical report of Dr A White
·Employee’s compensation claim.
No documents were nominated in the Reply as information and documents proposed to be relied upon, and that were not in the possession of the Respondent Employer.
Mr Smith’s Solicitor further indicates at page 7 of the transcript of proceedings that he would also rely upon certain documents relating to employment, “group certificates, etcetera.”
I note copies of two letters on the file dated 13 August 2003 and 29 August 2003 addressed from the Registrar to Mr Smith’s Solicitors and the Respondent Employer’s Solicitors, respectively, rejecting and returning directions for production of documents. The letters do not indicate the nature of the documents sought to be produced.
I note on the file an ‘Application to Admit Late Documents’ dated 8 September 2003, for the production of medical records of Dr Chaudary. There is no indication as far as I am able to ascertain, by reference to the documents that are before me, that this Application was dealt with by the Arbitrator and I am unable to locate Dr Chaudary’s report on the file.
During the course of discussion in the proceedings before him, the Arbitrator gave leave for the parties to file in evidence, documents that had been identified as being relied upon by them. He requested the parties to make written submissions and to attach the documents to them.
The Solicitor for Mr Smith made written submissions dated 24 November 2003 and attached a ‘Schedule of Earnings’ for various periods which corresponds with the closed periods set out in the Arbitrator’s decision, plus details of medical expenses from 17 January 2002 to 14 October 2003. He listed numerous documents that he sought to rely on but they were not attached to the submission itself. The list contained a reference to the documents identified in the Arbitrator’s Statement of Reasons for Decision, in addition to others that were apparently served upon the Respondent Employer, but were not submitted to the Arbitrator.
The Respondent Employer made written submissions dated 18 December 2003, attaching correspondence indicating that the WorkCover Certificate could not be located, notwithstanding due inquiry. Mr Smith himself submitted in this appeal, two WorkCover Certificates covering the periods 17 October 2002 to 17 March 2002, and 17 March 2003 to 17 March 2004. They were not physically before the Arbitrator but were discussed during the course of proceedings.
Mr Smith himself made a brief written submission to the Arbitrator, dated 8 November 2003.
Fresh evidence in the form of WorkCover Certificates
It is clear from the submissions to and discussions with the Arbitrator, that the WorkCover Certificates were required by both parties for the purposes of the proceedings before the Arbitrator, and that the documents would have been admitted without argument, had they been available at the time. From my reading of the file, it appears that the Certificates were notionally in evidence, but could not be physically located at the time. In the circumstances, I grant leave for the WorkCover Certificates dated 17 October 2002 and 10 November 2003 to be admitted into evidence, notwithstanding that Mr Smith did not strictly comply with the procedure to make application to admit late documents. Application to admit further fresh and additional documents and the videotape, are dealt with below, in paragraphs 64-67.
SUBSTANTIVE SUBMISSIONS
Mr Smith
In addition to the statement set out in paragraph 17, above, Mr Smith has lodged detailed submissions. They have been carefully noted and are taken into account in the appeal. They need not be restated but briefly amount to the following:
·The Arbitrator did not have all the relevant material before him in order to make a proper decision
·The Arbitrator was probably unaware of the two missing WorkCover Certificates (referred to in paragraph 57 above)
·The Arbitrator ought to have reviewed the video of the interview with Dr White
·Mr Smith’s psychological injuries are inextricably linked to the alcohol abuse and avenues for payments for ongoing care and/or treatment ought to be left open
·No independent medical assessment was carried out to ascertain a degree of permanent impairment
·The adjusted rate of compensation ordered by the Arbitrator should be overturned and compensation for the relevant period should be at the maximum statutory rate and continuing
·All of the documents, not before the Arbitrator, should be admitted as new evidence in the appeal
·“The Applicant alleges that as a result of his employment with the respondent, due to the nature and conditions of his work, that he suffered a psychological/psychiatric injury leading to increased alcohol consumption causing numerous physical conditions including reduced cognitive function, anxiety, depression, alcoholic hepatitis and delirium and tremors with alcohol hallucinosis.”
I am mindful that Mr Smith has withdrawn any claim with regard to “alcoholic hepatitis”.
I have read and taken into account Mr Smith’s further submissions of 24 January 2004 and 22 August 2004 in support and clarification of his initial submissions on appeal.I note that Mr Smith expressed the view that the Arbitrator was required to make his decision without the benefit of documents that should have been submitted in evidence. Mr Smith provided a significant list of documents that he wants the Commission to take into account, but for the most part, it is not apparent that most of these documents, apart from those mentioned previously, have ever been put before the Commission as constituted by either the Arbitrator or me.
The Respondent Employer
The Respondent Employer’s submissions may be summarised as follows:
·Fresh evidence should not be admitted and will not assist the Commission to further understand the difficulties experienced by Mr Smith. This has already been made out to the satisfaction of the Arbitrator, notwithstanding the failure of Mr Smith’s Solicitor to file the documents and rely upon them in the arbitral proceedings. The proposed additional evidence does not advance the findings of fact at paragraph 28 of the Arbitrator’s Statement of Reasons for Decision, this finding being already made in Mr Smith’s favour.
·The videotape of the interview with Dr White did not form part of the evidence relied upon by Mr Smith at the time of the hearing before the Arbitrator. In any event, it is of no consequence given that in determining the claim the Arbitrator in fact preferred the opinion of Dr G Steele, Mr Smith’s Psychiatrist, over Dr White on matters of injury in relation to the claimed psychological disorder, and Dr Steele solely in relation to the cause of Mr Smith’s alcohol dependence. Reference is made to paragraphs 30 and 26 respectively, of the Statement of Reasons for Decision. The Arbitrator rejected Dr White’s view that Mr Smith did not and has never suffered any psychiatric disorder.
·On the evidence available to the Arbitrator, including the evidence of Dr Steele and Mr Smith’s “stated desire to return to sailmaking and the commencement of a business with his wife”, the Arbitrator was entitled to find that Mr Smith was capable of driving trucks, notwithstanding his stated difficulties in populated areas. The Arbitrator did not make an error of law in reducing Mr Smith’s entitlements pursuant to section 40 of the 1987 Act during the period 1 July 1999 to 24 February 2003, as a result of his decision to leave his driving job in Dubbo and move to Port Stephens. Mr Smith has offered no medical opinion that would support his contention that he is unfit for employment as a truck driver, either totally or partially.
·The Arbitrator’s decision should be confirmed. Mr Smith was legally represented, accorded procedural fairness, all relevant factors were taken into account and decisions were exercised fairly and lawfully. “With respect to the Appellant it cannot be demonstrated that the original decision of [the] Arbitrator…was affected by ‘some legal, factual or discretionary error’.”
·Having regard to the date of injury the Appellant Worker is not entitled to seek lump sum compensation pursuant to section 66 and 67 of the 1987 Act.
The Respondent Employer made supplementary submissions in response to “amended submissions” provided by Mr Smith’s former Solicitors. Mr Smith does not wish his Solicitors’ submissions to be taken into account in this appeal. In acceding to this request, I must also discount the supplementary submissions made by the Respondent Employer, in response to them.
DISCUSSION AND FINDINGS
Mr Smith was successful to some extent before the Arbitrator, and orders for payment of compensation were made in his favour. The Respondent Employer does not take issue with the decision of the Arbitrator and indeed, submits that the decision should be confirmed. The thrust of Mr Smith’s appeal is that the decision of the Arbitrator does not go far enough and that a whole range of documents and other evidence were not taken into account by the Arbitrator. In dealing with Mr Smith’s application, the Arbitrator was legally required to confine himself to the dispute between the parties, which was essentially about liability for and payment of workers compensation, taking into account evidence put before him that was relevant to that dispute. He was not required nor entitled to conduct a wide-ranging inquiry into the merits or otherwise of all of the grievances arising out of the totality of alleged events that understandably, are of concern to Mr Smith.
Further fresh and additional documentary and videotape evidence
Having examined the Commission file, it is apparent that some of the documentary evidence that was identified at the outset of the dispute was never put before the Arbitrator and indeed, is not on the file. Furthermore, much of the detailed documentary evidence that Mr Smith wishes to be taken into account in this appeal is not before me and was not before the Arbitrator. Neither the Arbitrator nor I have had the opportunity to peruse these documents, determine their relevance and if relevant, take them into account. However, that is not exclusively the case, as set out below.
As previously stated, this review is not a rehearing of the dispute, but rather, a review to ascertain whether the Arbitrator fell into error. I have no power to deal with and resolve other concerns that Mr Smith may have, including those about the way in which he considers that he has been represented.
Mr Smith has not made his application for the admission of fresh and additional evidence in accordance with the Workers Compensation Commission Rules 2003 (the Rules). However, putting that to one side, as the whole dispute is not being determined afresh by me, it is not appropriate to embark upon a consideration of a range of documentary evidence that was not provided with or nominated in Mr Smith’s ‘Application to Resolve a Dispute’, that was not before the Arbitrator, and is not before me. In the circumstances, the request for the admission into evidence in this appeal, of the documents listed by Mr Smith, except for the WorkCover Certificates stipulated in paragraph 57, is not granted.
Similarly, it is clear that the Arbitrator preferred the evidence of Dr Steele, which supported Mr Smith’s claim, over the evidence of Dr White, which did not. On that basis, he found in favour of Mr Smith. Having arrived at this conclusion, there was little point in the Arbitrator viewing the videotape of the interview between Mr Smith and Dr White. It would have taken the matter no further. For this reason, the application to introduce the videotape into evidence in the appeal is refused, as it serves no practical purpose in the context of these proceedings. I find that the Arbitrator, having rejected Dr White’s evidence, did not fall into error in not viewing the videotape.
Claim for permanent impairment: sections 66 and 67 of the 1987 Act
Mr Smith submits that he should have been medically examined to establish permanent impairment and that he is entitled to an award of compensation pursuant to sections 66 and 67 of the 1987 Act. The disputed claim before the Arbitrator, as stated in the ‘Application
to Resolve a Dispute’ was for weekly benefits compensation and medical expenses. There was no dispute before the Arbitrator in relation to permanent impairment and pain and suffering. No error has been made in this regard.
Alcohol dependency
The Arbitrator weighed up the evidence in relation to the claims made by Mr Smith as to alcohol dependency. Consistent with his preference for the report of Dr Steele, who largely supported Mr Smith, the Arbitrator accepted Dr Steele’s opinion that he could not say that the alcoholism “was due in substantive part to his work in the police force or the events of 1994.” The Arbitrator was required to weigh up the whole of the evidence before him and make his decision based upon a proper consideration of it. There is nothing in the evidence before me to indicate that the Arbitrator failed to discharge his responsibilities in this regard. He gave due consideration to the whole of the relevant evidence before him. The Arbitrator does not deny that Mr Smith has a problem with alcoholism nor does he disagree with Dr Steele’s opinion that Mr Smith could not function as a police officer because of his alcohol dependence. He simply does not accept on the evidence, that the alcohol issues were the result of injury sustained arising out of or in the course of his employment. Essentially, he found that there is insufficient evidence to support the proposition that alcohol is an element of the psychological injury found to have been sustained, unlike the situation in Rootsey v Tiger Nominees Pty Ltd [2002] NSWCC 48, cited by Mr Smith, where a causal link was found. Having regard to the evidence, I concur in the Arbitrator’s finding. In the absence of any error on the part of the Arbitrator, it is not open to me to overturn his decision.
Section 38 of the 1987 Act
No claim or submissions were made to the Arbitrator concerning the application of section 38 of the 1987 Act. Consequently, the Arbitrator has made no decision that may be reviewed.
Claim for ongoing award of weekly payments and future medical expenses
The Arbitrator did not deal with the ‘Application to Admit Late Documents’ dated 8 September, 2003, relating to a ‘Direction for Production to Westmead Hospital’ of certain records of Dr Chaudary. (These documents had been nominated in the ‘Application to Resolve a Dispute’ lodged in the Commission). The ‘Direction for Production’ was the document described in the ‘Application to Admit Late Documents’, not the evidence to be produced. In any event, while it was indicated that Dr Chaudary’s records, along with other documents, would be relied upon in the proceedings before the Arbitrator, they were never produced in evidence before the Arbitrator and the Arbitrator had no opportunity to deal with the substance of the Application. The documents in question are not on the Commission file. The fact that the documents were never put before the Arbitrator as evidence means that they were of no assistance to the Arbitrator.
The dispute before the Arbitrator related to a total period of weekly compensation from 27 August 1994 “to date and continuing” as stated in the ‘Application to Resolve a Dispute’. However, there is no reference in the Statement of Reasons for Decision to any consideration of the dispute as to continuing weekly payments beyond 24 February 2003. Only the specific closed periods have been addressed. The medical evidence supports the existence of partial incapacity beyond that date, for example Dr Steele’s reports and indicatively, the report of Mr Leembruggen, treating psychologist. The Arbitrator found that he preferred the evidence of Dr Steele over that of Dr White, and I have already concurred in that finding. The Arbitrator found at paragraph 36 of his Statement of Reasons for Decision that Mr Smith was partially incapacitated from 8 September 1994 to 24 February 2003, “when he was seen by Dr Steele, generally to the extent of the schedule of earnings submitted by the applicant, which was not contradicted by the respondent.” Dr Steele’s opinion of Mr Smith’s medical condition was current at the end of that period, not simply within it.
The WorkCover Medical Certificate dated 10 November 2003 and signed by Dr Raschke, admitted into evidence in this appeal, certifies that Mr Smith was unfit for work from 17 March 2003 to 17 March 2004. This extends well beyond the date of the closed periods for which the Arbitrator made his award.
The Arbitrator was apparently guided by the written submission of Mr Smith’s Solicitors, dated 24 November 2003, who, while seeking weekly payments and medical expenses “as from 27 August 1994”, submitted details of the closed periods in paragraph 5 under the heading “Entitlement to Compensation”:
“It is respectfully submitted that the Applicant is entitled to compensation for weekly payments and medical expenses in accordance with the attached schedule and further a general order should be made for the Applicant [sic] medical and treatment expenses pursuant to Section 60 of the 1987 Act.”
The Arbitrator duly complied, with an adjustment for the period from 1 July 1998 to 24 February 2003, as set out in paragraph 37 of his Statement of Reasons for Decision.
There is nothing in the documents to suggest that the continuing weekly payments do not remain in issue. Clearly, it was and still is an issue for Mr Smith. Reading the separate documents submitted direct from Mr Smith to the Commission since the ‘Application to Resolve a Dispute’ was first lodged, there is no doubt that his claim for continuing weekly payments was and is, ongoing. It seems that Mr Smith’s Solicitors intended to convey to the Arbitrator, the “rate” of payment for the various periods stated in the schedule that accompanied its broader submissions, but the apparent ambiguity of the submission may have misled the Arbitrator into inferring that continuing weekly payments were no longer in issue. In any event, the Arbitrator made no finding in terms of the disputed claim for continuing weekly payments and gave no reasons. The failure of the Arbitrator in this regard is an error of law.
An Arbitrator has a common law and statutory duty to provide adequate reasons for decision. Section 294(2) of the 1998 Act and Rule 73 require the Commission to provide reasons for decisions in the determination of a dispute. See also Absolon v NSW TAFE [1999] NSWCA 311 and YG v Minister for Community Services [2002] NSWCA 247. Being an error of law, failure to provide adequate reasons may be a ground to revoke the decision of the Arbitrator. In the instant case, the Arbitrator not only failed to provide reasons but also failed to give the issue of continuing weekly payments, any or proper consideration. In the circumstances I propose to revoke his decision and make a new decision in its place.
Having regard to the whole of the evidence, in particular the evidence of Dr Steele (paragraph 72 above), Dr Rashke (paragraph 73 above), and Mr Smith, and taking into account the submissions made both to the Arbitrator and to me, I am satisfied that there is sufficient evidence before me to support a decision to make an order in the same terms as that made by the Arbitrator, and continuing. I find accordingly.
Moreover, the order for payment of Mr Smith’s section 60 of the 1987 Act expenses incurred as a result of medical treatment, services or assistance, reasonably necessary for the compensable injury, as found by the Arbitrator, should not be restricted to the closed periods stated by the Arbitrator, but should continue to be paid on production of accounts or receipts.
The difficulties confronting the Arbitrator were substantially that while indications were given that certain documents were to be relied upon, they were never actually put into evidence before him. While there was some discussion during the arbitral proceedings on this aspect, for some reason it seems that the process of putting the documents physically into evidence, broke down. Together with the Arbitrator’s failure to address and/or give reasons in relation to continuing weekly payments, this has caused a good deal of inconvenience for Mr Smith and no doubt, to the Respondent Employer. While recognizing that Mr Smith’s ongoing level of anxiety and the sheer volume of “paper work” involved in this matter, created their own difficulties, it is unfortunate that the dispute has needed to travel this far to be finalised.
DECISION
The appeal is allowed. The decision of the Arbitrator is revoked and the following decision is made in its place:
1.The Respondent Employer is to pay to the Appellant Worker, weekly payments of compensation pursuant to section 40 of the 1987 Act from 8.9.94 to 30.6.95 at the maximum statutory rate plus dependent spouse; from 1.7.95 to 12.7.95 at $89.00; from 13.7.95 to 30.6.96 at $185.07; from 1.7.96 to 30.6.97 at $83.28; from 1.7.97 to 30.6.98 at the maximum statutory rate plus a dependent spouse; from 1.7.98 to 24.2.03 at $245.88, and continuing on that basis and at that rate. Payments for dependent spouse conditional on evidence of dependency for each period for which a dependent spouse payment is allowed.
2.The Respondent Employer is to pay the Appellant Worker’s section 60 of the 1987 Act expenses on production of accounts or receipts.
3.The Respondent Employer is to pay the Appellant Worker’s costs of the proceedings before the Arbitrator as agreed or assessed.
COSTS
No submissions have been made as to the costs of this appeal. No order is made as to costs.
Gary Byron
Deputy President
4 November 2004
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF GARY BYRON DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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