Soo & Hargraves Pty Limited trading as Pizza Haven Orange v Bishop

[2006] NSWWCCPD 220

WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Soo & Hargraves Pty Limited trading as Pizza Haven Orange v Bishop [2006] NSWWCCPD 220

APPELLANT:  Soo & Hargraves Pty Limited trading as Pizza Haven Orange

RESPONDENT:  Carl Reginald Bishop

INSURER:GIO Workers Compensation (NSW) Ltd

FILE NUMBER:  WCC6619-05

DATE OF ARBITRATOR’S DECISION:          6 September 2005

DATE OF APPEAL DECISION:  8 September 2006

SUBJECT MATTER OF DECISION:                Leave to appeal; Weight of the evidence

PRESIDENTIAL MEMBER:  Acting Deputy President Robert Harrington

HEARING:On the papers

REPRESENTATION:  Appellant:      Abbott Tout Lawyers

Respondent:   Leitch Hasson Dent

ORDERS MADE ON APPEAL:  1. The decision of the Arbitrator dated 6 September 2005 is confirmed.

2. The Appellant (Pizza Haven) pay the Respondent’s (Mr Bishop’s) costs of the appeal.

BACKGROUND TO THE APPEAL

1. On 13 October 2005 Soo & Hargraves Pty Limited trading as Pizza Haven Orange (‘Pizza Haven’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 6 September 2005.

1. The Respondent to the Appeal is Carl Reginald Bishop (‘Mr Bishop’).

1. Mr Bishop was born on 15 March 1960.  He is 46 years of age.

1. Mr Bishop worked for Pizza Haven on a casual basis between February 1996 and 29 or 30 September 1999.

1. Mr Bishop alleges that in or about August 1999 whilst lifting boxes during a stock take he suffered injury to his back.  He subsequently attended his local general practitioner Dr Cooray.  There was no evidence before the Arbitrator from Dr Cooray as he had left the Orange district, and his notes were unavailable.

1. Mr Bishop alleges that he informed his employer, Mr Peter Hargraves, around the time of the incident, that he had suffered an injury to his back.  Mr Hargraves denies this assertion.

1. Mr Bishop did not make a claim for compensation until 26 November 2004.  Although the issue of the late making of the claim by Mr Bishop was raised in Pizza Haven’s ‘Reply to Application to Resolve a Dispute’ (‘Reply’) the issue was not raised before the Arbitrator in addresses nor has it been raised on appeal.

1. Mr Bishop’s claim was heard before a Commission Arbitrator on 18 August 2005, Mr Bishop did not give evidence, although the Arbitrator did ask Mr Bishop some questions as to his wages.  The Arbitrator accepted in part, Mr Bishop’s claim, and made an award in his favour in the sum of $20 per week in respect of his back injury.

1. It is in respect of this award that Pizza Haven seeks leave to appeal.

THE DECISION UNDER REVIEW

1. The ‘Certificate of Determination’, dated 6 September 2005 records the Arbitrator’s orders as follows:

“That the Respondent pay to the Applicant the sum of $20 per week from 19
August 1999 to date and continuing pursuant to the provisions of Section
40 of the 1987 Act.

That the Applicant’s claim for medical and related expenses, pursuant to
Section 60 of the 1987 Act, be struck out pursuant to Rule 6 (2).

That the Respondent pay the Applicant’s cost as agreed or assessed.”

ISSUES IN DISPUTE

1. The issues in dispute in the appeal are:

   ·Whether there was sufficient evidence before the Arbitrator to support a finding of injury.

   ·Whether there was sufficient evidence before the Arbitrator upon which he could award Mr Bishop weekly compensation payments of $20 per week.

ON THE PAPERS REVIEW

1. 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.”

2. Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances. 

LEAVE

1. 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’).

1. Mr Bishop was awarded only $20 per week, however, the award entitled Mr Bishop to ongoing medical expenses and possibly lump sum payments under sections 66 and 67 of the Workers Compensation Act 1987 (‘the 1987 Act’). The amount of compensation that is in issue on appeal, therefore, in this matter exceeds $5,000 such that section 352(2)(a) is satisfied. As the whole of Mr Bishop’s entitlement to compensation is at issue, section 352(2)(b) is satisfied.

1. The appeal was not lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act. I believe the appeal was lodged, one day out of time. It was rejected by the Commission for procedural reasons. The appeal was not resubmitted until 13 October 2005. Pizza Haven’s submissions do not explain the reason for the delay and only address the issue of prejudice. The discretion to extend time is exercised to ensure that justice between the parties is achieved and that strict compliance with the rules does not result in an injustice to the appellant (Gallo v Dawson (1990) 1993 ALR 479). In balancing the respective rights of the parties the determining factor, in my view, which leads me to exercise my discretion in favour of Pizza Haven, is the fact that Mr Bishop waited five years before he made his claim for compensation. I am of the view that to require strict compliance with the rules, in these circumstances, would lead to a substantial injustice for Pizza Haven. As such, I grant leave to appeal.

SUBMISSIONS ON APPEAL

1. Pizza Haven submits that a proper analysis of the evidence before the Arbitrator would lead to the conclusion that Mr Bishop did not suffer the injury alleged, because:

·Mr Bishop did not make a claim for compensation until 26 November 2004, five years after the alleged incident.

·There was no corroborative evidence from his then GP Dr Cooray.  Although the evidence established that Dr Cooray had left the district in approximately 2000 and his notes were unavailable.

·The notes of his present general practitioner Dr Whitmill did not contain any clear corroborative entries in respect of Mr Bishop’s injury until a recording of 8 December 2004.  It was then that the doctor first records details of the alleged injury in August 1999.

·Between the year 2000 and 2004, the doctor’s notes contain many entries in respect of problems Mr Bishop was having with, alcohol, his upper limbs and shoulders and other health problems, however, there was very little reference to any back complaints.

·Mr Bishop’s claim form of 26 November 2004 recorded the injury as having occurred on 24 August 2000 (Mr Bishop was not employed as at this date).  24 August 2000 coincides with Mr Bishop being referred by his general practitioner for x-rays of his back.

·Mr Bishop alleged that he reported the injury to Mr Hargraves.  Mr Hargraves in his statement before the Arbitrator denied this.

1. Mr Bishop submits that it was the Arbitrator’s function to weigh up all the evidence before him, including the matters referred to by Pizza Haven.  The Arbitrator carried out this task and found in favour of Mr Bishop.  Pizza Haven have not established any reviewable error.

DISCUSSION AND FINDINGS

1. There is significant merit in Pizza Haven’s submissions. The facts of this case, in my view, could have led to a result in favour of either party in respect to the issue of injury.  This does not however establish that the Arbitrator fell into reviewable error.  If the parties cannot reach agreement then it is the task of the Arbitrator to weigh up all the evidence and decide the contested issues.  Usually one or both parties will be dissatisfied with the result.

1. In order to determine whether the Arbitrator fell into reviewable error it is necessary to examine the evidence relating to injury.

Evidence as to injury

1. Mr Bishop’s evidence was contained in his statement.  He was not cross-examined.  Relevantly he said at paragraph [20]:

“My work at Pizza Haven involved delivering pizzas, folding boxes, making pizzas, cutting pizzas and stocktaking.  Stocktaking involved lifting and carrying boxes of flour, cheese, and frozen meat including beef, cabanossi, bacon and chicken.  Those boxes would have weighed 60 kg.  The bags of flour, weighed 20 kg.  During the stock take I would have moved about 24 to 30 boxes and about 50 bags of flour, and that was once a week, every Wednesday morning.”

Mr Bishop went on to say at paragraph [23]:

“I first noticed the pain in my back in late August or early September 1999, and I went and saw Dr Cooray at 260 Ansen St, Orange.  He left town, and I saw Dr Whitmill.”

1. The following relevant material was contained in Dr Whitmill’s notes and documents:

   ·The cover sheet to the doctor’s note contains a note under the heading social history; “always done labouring jobs delivered pizzas till 1999 and then stopped due to back pain…nil trades or certificates.”  I infer that the doctor took this history when Mr Bishop first saw him in or about September 2000.

   ·In a hand written clinical note headed ‘health summary’, the doctor has recorded, (I believe in September 2000): “1999, L5/S1, compression [refer to] Dr Mutton (orthopaedic surgeon) and physiotherapy prescribed panadeine forte.”

   ·On 14 February 2001 the doctor records “injury to back and injury to right arm at Uralla when lacerated elbow and had entrapment of ulnar nerve 1995, still has problems with sensation and power reduction operated on by Dr P Blum injured back 18 months ago. (emphasis added)

   ·In the doctor’s notes is an x-ray report from Dr William Mott.  The report is in response to a referral by Dr Cooray dated 24 August 2000.  It records: “the L5/S1 disc space is slightly narrow and there are probably some degenerative changes at that level.  No other bony or joint lesion is shown.”

   ·There is a C.T. report of Dr Peter Stein addressed to Dr Bruce Whitmill dated 12 February 2001, which records: “at L5-S1 a large central posterior prolapse of the disc, which comes close by both S1 nerve roots and may displace them.”

2. Dr Burgess (orthopaedic surgeon) (qualified by Mr Bishop’s solicitors) who examined Mr Bishop on 12 January 2005 was of the opinion that Mr Bishop suffered from an L5/S1 disc lesion which was caused, on the history that Mr Bishop recounted to him, by the injury of August 1999.

1. Dr Stuart Porges (general surgeon) (qualified by Pizza Haven) was of the opinion that Mr Bishop sustained “a minor disc bulge in the episode at work on the 18^th August 1999.”

1. The clinical notes and documents from Dr Whitmill which I have referred to in paragraph [22] above corroborate Mr Bishop’s claim to the following extent:

·When Mr Bishop first consulted Dr Whitmill (probably in September 2000) he gave a history of back problems, consistent with an L5/S1 disc lesion.

·Although not entirely clear, the entries under social history and those recorded during the consultation on 14 February 2001 tend to corroborate Mr Bishop’s assertion that he injured his back in 1999 whilst working at Pizza Haven.

·The C.T. results as reported in 12 February 2001 establish that by at least February 2001, Mr Bishop had the structural changes in his lower back which, in Dr Mutton’s and Dr Porges’s opinion, were the cause of Mr Bishop’s incapacity.

·Mr Bishop had been treated by Dr Cooray in respect of back problems at least by 24 August 2000.

The Arbitrator’s finding as to injury

1. The Arbitrator had before him Mr Bishop’s statement.  Mr Bishop was not cross-examined. The evidence contained in the statement of his employer, Mr Hargraves, disputed Mr Bishop’s assertion that he reported the injury.  His statement did not go directly to the issue of injury.  Given that there was a five-year gap between the injury and Mr Bishop’s claim for compensation, and that there was material in Dr Whitmill’s notes and documents which, in some instances, supported Mr Bishop’s claim and in other instances, were inconsistent with his claim, it was appropriate in the circumstances for Pizza Haven’s representatives to cross-examine Mr Bishop.  Their forensic decision not to cross-examine Mr Bishop, in the absence of overwhelming evidence against Mr Bishop’s claim, creates, in my opinion, an insurmountable hurdle to their assertion that the Arbitrator’s acceptance of Mr Bishop’s evidence as to injury should be rejected.

1. Additionally, before the arbitrator, as I set out above, was evidence in Dr Whitmill’s notes and documents, which tended to corroborate Mr Bishop’s assertions as to injury.

1. An appeal to a Presidential Member is by way of review, not a hearing ‘de novo’.  The extent of the power to review was considered in Mayne Health Group t/as Nepean Private Hospital v Sarah Sandford [2002] NSWWCCPD 6 (29 October 2002) where Deputy President Fleming, said in respect of the scope of the power to review (paragraph [11]):

“A consideration of the nature of the hearing before the Arbitrator at first instance, of the broad powers, functions and discretions exercisable by the Arbitrator and of the express limitations on evidence before the ‘review’ under section 352, lend support to the view that the Commission has a specific and limited role on appeal (Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47 31 August 2000). It is not an ‘appeal’ in the strict sense, as the Commission can receive further evidence. Similarly it is not a ‘rehearing’ of the matter where the Commission is re-exercising the power of the Arbitrator at first instance by hearing the matter ‘de novo’ and coming to a fresh decision based on all the evidence available at that later time (Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47 31 August 2000; Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616). The ‘review’ is by way of rehearing where the powers of the Commission to confirm, revoke or substitute a new decision are exercisable only where it can be demonstrated that the original decision of the Arbitrator is affected by “...some legal, factual or discretionary error” (Allesch v Maunz [2000] HCA 40 (3 August 2000).”

1. The Arbitrator accepted the evidence of Mr Bishop, as to injury, as he was entitled to do.  There was evidence in Dr Whitmill’s notes and documents which corroborated, to some extent, Mr Bishop’s assertions as to injury.  It was open to the Arbitrator on the evidence, in my opinion, to make a finding in favour of Mr Bishop in respect of injury.  It follows therefore that I am of the opinion that Pizza Haven have not established that the Arbitrator’s decision in respect of injury was affected by some legal, factual or discretionary error.  Pizza Haven’s first ground appeal must therefore be rejected.

The Arbitrator’s section 40 assessment

1. The Arbitrator determined that Mr Bishop’s probable weekly earnings, but for the injury, had he continued to be employed in the same or some comparable employment, at $320 per week.  There was evidence to justify the Arbitrator’s assessment and the reasons for such were clear and adequate.  In my view, the Arbitrator’s application and analysis of the first stage of the Mitchell v Central West Health Service (1997) 14 NSWCCR 527, section 40 assessment was correct.

1. The Arbitrator then determined that Mr Bishop’s ability to earn in some suitable employment from time to time during his partial incapacity was $300 per week.  The Arbitrator was of the view that Mr Bishop could do most of the activities of his former employment other than the heavy lifting.  The Arbitrator was of the opinion, based on the additional payment made by his employer to Mr Bishop in respect of the heavy lifting, that his disability affected Mr Bishop’s ability to earn by an amount of $20.  There are many methods by which an Arbitrator may determine the second stage of the Mitchell section 40 assessment. The methodology of the Arbitrator in this instance, though unusual, does not constitute a reviewable exercise of his discretion.

1. It follows therefore that Pizza Haven’s second ground of appeal must be rejected.

DECISION

1. The decision of the Arbitrator dated 6 September 2005 is confirmed

COSTS

1. The Appellant (Pizza Haven) pay the Respondent’s (Mr Bishop’s) costs of the appeal.

Robert Harrington

Acting Deputy President

8 September 2006

I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ROBERT HARRINGTON ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE