JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: SOTICO PTY LTD -v- WILSON [2007] WASCA 112
CORAM: STEYTLER P
WHEELER JA
PULLIN JA
HEARD: 8 MARCH 2007
DELIVERED : 25 MAY 2007
FILE NO/S: CACV 67 of 2006
BETWEEN: SOTICO PTY LTD
Appellant
AND
KAREN WILSON
Respondent
ON APPEAL FROM:
Jurisdiction : DISPUTE RESOLUTION DIRECTORATE, WORKCOVER WA
Coram :COMMISSIONER NISBET
File No :C 10 of 2006
Catchwords:
Appeal - Workers' compensation - Turns on own facts
Legislation:
Workers Compensation and Injury Management Act 1981 (WA), s 213
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr T H Offer
Respondent: Ms H E Prince
Solicitors:
Appellant: Julian Lentzner
Respondent: Chapmans
Case(s) referred to in judgment(s):
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194
STEYTLER P: I agree with Wheeler JA.
WHEELER JA:
Background
The background to this appeal is as follows. The respondent was employed by the appellant as a leading hand mill worker in February 2000. She was injured in that year while walking through a shed at the mill, when she fell into a hole. As she fell straight down, her arms went out to support herself and she came down on a piece of timber which caused an injury to her left shoulder. After some conservative treatment, in December 2001 she was reaching out with her left arm to get a board located high above her and developed a sharp pain in the left shoulder region with a tingling sensation.
She was referred to see Mr Peter Campbell, an orthopaedic surgeon. Some time later she underwent arthroscopic surgery which involved removal of a chipped bone in her shoulder region. Mr Campbell performed further surgery, for reasons which are not important in the present appeal. The respondent undertook a course of intensive physiotherapy and other rehabilitative measures.
The referral and medical evidence
In August 2004, the respondent lodged a "Form 22" referral to the Director of the former Conciliation and Review Directorate pursuant to the provisions of s 93D(5) of the Workers Compensation and Injury Management Act 1981 (WA). She claimed a degree of disability of not less than 16 per cent. There was a dispute, which seems to have been drawn out for a very considerable period of time. The appellant disputed the claimed degree of disability. There was conciliation, a number of interlocutory applications, an appeal to the Compensation Magistrate, and finally a referral of the dispute for arbitration. The Arbitrator heard the dispute in January 2006.
The medical evidence which the respondent lodged with her Form 22 included a report from Dr David Kennedy dated 27 August 2004, which expressed the opinion that the respondent had suffered a permanent loss of the efficient use of her left arm at and above the elbow joint of 26 per cent. That would give, by the calculations required under the Act,…
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- AGLC
- Sotico Pty Ltd v Wilson [2007] WASCA 112
- Case
- [2007] WASCA 112
- Decision Date
CaseChat Overview and Summary
The Court of Appeal observed that the appeal to the Commissioner required the grant of leave. Section 247(2) of the Act states that the Commissioner is not to grant leave unless a question of law is involved. The Court of Appeal noted that the appeal was an appeal by way of rehearing, which emerges from s 147(7) of the Act. The Court of Appeal also noted that, once a question of law is identified and leave is granted, the Commissioner is obliged "within the constraints marked out by the nature of the appellate process … to conduct a real review …": Fox v Percy (2003) 214 CLR 118 at [25]. The Court of Appeal found that the Commissioner had correctly identified that there was no error of law made by the Arbitrator and that the Arbitrator's reasons were adequate at law. The Court of Appeal also found that, even if there was an error, the Commissioner had reviewed the evidence and reached his own conclusion. Thus, the appeal was dismissed.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
The appeal to the Commissioner was one which required the grant of leave. Section 247(2) of the Act states that the Commissioner is not to grant leave unless a question of law is involved. Part XIII of the Act makes it clear that the appeal is an appeal by way of rehearing. This emerges from s 147(7), which states that, on hearing an appeal made under this section, the Commissioner may affirm, vary or quash the decision appealed against, or substitute and make, in addition, any decision that should have been made in the first instance. Section 245(1)(b) states that, unless the contrary intention appears in Pt XIII, in the exercise of jurisdiction under Pt 13, the Commissioner has and may exercise or perform all of the powers, duties, responsibilities, authorities and jurisdictions of an Arbitrator. Once a question of law is identified, leave is granted and an error of law is held to have occurred (Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at [14]), then the Commissioner is obliged "within the constraints marked out by the nature of the appellate process … to conduct a real review …": Fox v Percy (2003) 214 CLR 118 at [25]. If an appeal is taken against the decision of the Commissioner then the appeal is to the Court of Appeal pursuant to s 254(1). Leave is required and the appeal must be from a decision of the Commissioner in the proceeding "on a question of law". If leave is granted, the Court of Appeal has the usual plenary powers to affirm, vary or set aside the decision of the Commissioner, or to make any decision that the Commissioner could have made. The Court also has the power to decide that it is necessary to send the matter back for reconsideration. The rules of the Court of Appeal provide that the appeal is by way of rehearing. Having made those observations concerning the nature of the proceedings before the Commissioner and this Court, I now turn to the Commissioner's decision. The Commissioner decided there was no error of law made by the Arbitrator. He held that it was open to the Arbitrator to accept the evidence of Dr Kennedy, that the appellant's real complaint was about the weight the Arbitrator gave to it and that no error of law was demonstrated. I agree that there was no error for the reasons the Commissioner gave. However, in case other minds differ, I will assume that there was an error and that the Arbitrator's reasons were inadequate at law. If that is so, then the Commissioner made an error by failing to detect the existence of an error of law by the Arbitrator. That error was an error of law. However, the Commissioner has reviewed the evidence and reached his own conclusion. Thus, even if it be correct that the Commissioner failed to detect error when error existed, the Commissioner's reasons provide entirely adequate reasons for an affirmation of the Arbitrator's determination. The Commissioner in his reasons referred to the report of Dr Kennedy and referred to the report of Mr Campbell. He said:"7.Grounds 1, 2 and 4 can be dealt with together, as they were by the appellant's counsel during the course of hearing of the appeal. In this regard, during the course of the arbitration, the appellant attacked the medical evidence upon which the respondent was relying, on four grounds they being that:.1There was a conflict between the medical practitioners because the treating orthopaedic surgeon, Dr Campbell, had seen the respondent on many occasions and carried out all relevant surgery and yet he gave the opinion that it was not possible to assess any permanent disability as at July 2004 whereas Dr Kennedy, it was said, had seen the respondent on only one occasion and yet made the assessment at around the same time..2The history given to Dr Kennedy as revealed by his report did not include any references to any other medical issues affecting the injured shoulder and it was said that the history given to Dr Kennedy did not match the history given to Dr Campbell with there being no explanation of the differences in the history by the respondent before the arbitrator..3Dr Kennedy's diagnosis of 'extensive damage to her left shoulder joint involving the rotator cuff tendon with a insubstance (sic) tear to the infraspinatus tendon with tendonopathy involving the supraspinatus tendon and the development of extensive subdeltoid, subacromial bursitis as well as extensive damage to the articular cartilage in the glenohumeral joint' was said to be inconsistent with the radiological evidence and the reports of Drs Campbell, Whyte and Fallon..4Dr Kennedy's instructions from the respondent's solicitors directed him to assess permanent disability notwithstanding Dr Campbell's view that it was premature to do so rather than asking whether he had agreed with Dr Campbell's view in that regard.8.With regard to the first of these complaints the fact of the matter was that the only evidence of assessment of degree of disability before the arbitrator was that of Dr Kennedy. Just because the respondent's treating surgeon did not think he could make such an assessment at that particular time there is no reason to reject an assessment which appears, at least on the face of it, to have been appropriately made by another medical practitioner who had examined the respondent …9.With regard to the second ground of complaint I have examined all of the medical reports which were before the arbitrator and I have been unable to discern any difference in history which suggests that the arbitrator should have disregarded Dr Kennedy's report as being unreliable which, in essence, again, is the complaint really being made by the appellant in this matter. In thirty years or more in legal practice and having read medical reports by many medical practitioners in respect of the same patient, I have observed that there will inevitably be minor differences in the history taken. Most times the medical profession disavows any responsibility for inaccuracies in the history, however, my experience has been that there is as much inaccurate history taking as there is inaccurate history giving, and that before a medical report can be disregarded it must be demonstrated that there is more than just an inaccurate history giving. Generally speaking in cases which revolve around the history given to various medical practitioners, it is the credibility of the patient which is at issue. There is no suggestion in any of the reports that I have read that the respondent was an inaccurate reporter or unreliable or that the circumstances surrounding her accident, her injuries and her subsequent treatment and attempts of rehabilitation, were anything but appropriate. ...10.The third complaint, as I understand it, revolves around the description of there being extensive damage 'to her left shoulder joint involving the rotator tendon' at least, on my reading of the reports, this is what it must relate to because in all other respects Dr Kennedy's diagnosis is supported by the various MRI scans that have been taken with respect to the respondent's shoulder. Dr Kennedy certainly demonstrates in his report that he had the relevant MRI scans available for his examination at that time because he specifically mentions them and repeats the comments that have been made by the radiologists concerned. In the end result it seems to me that there has simply been some inaccurate use of language because the MRI scan reports demonstrate that 'there is no evidence of a full thickness or major partial thickness rotator cuff tear' (Dr Whyte's report of 30 April 2002 refers) (a report not mentioned by Dr Kennedy) a finding repeated in Dr Davis' report of 22 October 2002 which was seen by Dr Kennedy and, for the sake of completeness which reads: 'The rotator cuff remains intact. There is no high grade partial or full thickness tear.' In all other respects, however, Dr Kennedy's diagnosis accords with the radiological evidence and the reports of the radiologists and of Dr Campbell. It is correct for him to describe that there was extensive damage to the respondent's left shoulder joint involving the rotator cuff tendon - and that is the sense in which I understood the report …11.As to the fourth and final complaint under these grounds of appeal, it was quite open to Dr Kennedy to say that he could not assess permanent disability because it was too early to do so. As Dr Kennedy's report clearly discloses, he thought he was in a position to make the assessment requested of him and did so ... "