South Western Sydney Area Health Service v Edmonds

[2005] NSWWCCPD 18

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
STATUS: Remitted on Appeal: This decision has been the subject of a remitter from the Court of Appeal: see South Western Sydney Area Health Service (Camden District Hospital) v Edmonds [2007] NSWCA 16; (2007) 4 DDCR 421 and South Western Sydney Area Health Service v Edmonds (No 2) [2007] NSWWCCPD 90
CITATION:		South Western Sydney Area Health Service v Edmonds [2005] NSWWCCPD 18
APPELLANT:		South Western Sydney Area Health Service (Camden District Hospital)
RESPONDENT:		Linda Edmonds
INSURER:		Treasury Managed Fund
FILE NUMBER:		WCC8473-03
DATE OF ARBITRATOR’S DECISION:		18 March 2004
DATE OF APPEAL DECISION:		18 March 2005
SUBJECT MATTER OF DECISION:		Allegation of Bias on part of Arbitrator; Weight of Evidence, ‘Date of Injury’ per Section 16 of the Workers Compensation Act 1987.
PRESIDENTIAL MEMBER:		Dr Gabriel Fleming, Deputy President
HEARING:		On the papers
REPRESENTATION:		Appellant:		Turks Legal
Respondent:		Mattouks Law Group
ORDERS MADE ON APPEAL:		The decision of the Arbitrator is confirmed.
The Appellant is to pay the costs of the appeal.

THE APPEAL

1. Linda Edwards has lodged a claim against the South Western Sydney Area Health Service for workers compensation benefits.  She is seeking a lump sum for permanent impairment in relation to an alleged injury to her back and both knees as a result of her employment as a Catering Supervisor at Camden District Hospital.  The Employer has denied liability for her claim. 

1. On 31 March 2003 Ms Edwards filed an ‘Application to Resolve a Dispute’ in the Commission and on 28 October 2003 the parties and their legal representatives attended a telephone conference with a Commission Arbitrator.  Directions were given in relation to amending Ms Edwards’ application and the Employer’s Reply.  On 18 March 2004 the parties attended a second telephone conference with the same Arbitrator.  This telephone conference was partly sound recorded and a transcript is on the Commission file. 

1. The Arbitrator decided that Ms Edwards suffered from an aggravation of a disease, being osteoarthritis and the condition of “chondromalalacia patellae”, and that the ‘deemed date of injury’, in accordance with section 16 of the Workers Compensation Act 1987 (‘the 1987 Act’), was 6 August 2002. He found that this aggravation was work related. He referred the medical issues to an Approved Medical Specialist for an assessment.

1. The Employer has appealed against the Arbitrator’s decision.  It wants the Arbitrator’s decision revoked and replaced with a ‘date of injury’ specified as 23 May 2003.  It alleges, in summary, the Arbitrator:

   ·   Failed to act as an independent Arbitrator, assumed the role of an advocate for the worker and had a pre-determined view of the issues, and,

   ·   Failed to have proper regard for the evidence in relation to the worker’s report of injury.

   These are the issues in dispute on the appeal.

2. Ms Edmonds submits that the appeal should be dismissed and the Arbitrator’s decision confirmed.

1. Leave to appeal is granted.

1. The parties have agreed to the appeal being determined on the papers.  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. 

1. The Arbitrator’s decision should only be disturbed if it contains an error of law, fact or discretion (Allesch v Maunz (2000) 203 CLR 172; Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSW WCC PD 6). The error must be such that, but for it, a different decision would have been made (YG & GG v Minister for Community Services [2002] NSWCA 247).

Did the Arbitrator fail to act independently in determining the issues in dispute?

1. The Employer submits that the Arbitrator “ . . .  erred by framing the manner in which the nature of the injury suffered by the respondent worker should be pleaded in such a way as he saw fit and then proceeding to make a determination on this point in that by doing so, he assumed the role of an advocate rather than that of conciliator/arbitrator”. 

1. Ms Edmonds argues that the Arbitrator was correct in his decision and “in the manor (sic) which the Telephone Conference was conducted”.  She submits that the Arbitrator was correct to give leave “to amend the pleadings to include disease on 29 October 2003”, without objection from the Employer.

1. The submissions of both parties on this issue appear to misapprehend the role and function of the Commission and it’s statutory objectives.  The Commission is not bound by technicalities and legal forms and may inform itself as it thinks fit (section 354 of the 1998 Act).  Legal representatives must be aware that the Commission is not a court, but an independent statutory tribunal (Orellana-Fuentes v Standard Knitting Mill Pty Limited [2003] NSW CA 146 (20 June 2003), whose objectives are to provide a dispute resolution forum that is “fair and cost effective” (section 367 of the 1998 Act).  The fact that proceedings in the Commission are not governed by formal ‘pleadings’ has been discussed in earlier appeal decisions.  In Far West Area Health Service v Colin Robert Radford [2003] NSW WCC PD 10 I noted that:

   “. . .
   24.  In the informal, less technical environment of the Commission it is not necessary or desirable to rely upon strict pleadings to define the issues between the parties.  The Act provides a comprehensive statutory scheme for the making of claims, substantiation of claims, acceptance or rejection of liability, expedited assessment of claims, and the determination of medical issues.  The dispute resolution processes in the Workers Compensation Commission, including appeals, are the final step in this scheme.  When the parties reach the Commission the issues that are in dispute between them should be clear.  This is not to say that some issues will not assume greater significance than others in the proceedings, or that others may be resolved after the dispute is lodged in the Commission and before the Arbitrator must make a decision.

   25.  There are a number of ways in which the issues between the parties to a dispute lodged in the Commission are defined, without the need for formal pleadings. Firstly, they should be clearly articulated in the Application and Reply. Second, the identification and elucidation of the key issues in dispute are the primary functions of the Arbitrator and should occur at the first telephone conference between the parties, as set out in the Registrar’s Guideline to the Conciliation and Arbitration Process in the Commission.  At this early stage the Arbitrator also reviews the evidence of each party relevant to the issues.  In many cases the issues will be narrowed, with some resolved by conciliation, so that the course of the proceedings is directed only to those issues truly remaining in dispute.  Third, the parties have a further opportunity to identify and narrow the issues in the informal environment of the conciliation and arbitration hearing.  These processes essentially fulfill the same function as formal pleadings while at the same time being more accessible and not disadvantaging the self-represented person unable to prepare formal pleading documents.”

1. It is for an Arbitrator to determine the whole of the dispute that is before him or her.  However the nature of that dispute is not at large, it is confined by the parameters of the statutory scheme found in the Workers Compensation Acts (‘the 1987 Act and the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’)).  The issues in dispute must be referable to the “claim” that was made by the worker under the Workers Compensation Acts.  The requirements for the ‘Giving of notice of injury and making a claim’ for compensation are set out in Part 2 of Chapter 7 of the 1998 Act.  The “dispute” referred to the Commission is any ‘dispute about a claim’ made under the Workers Compensation Acts (section 288 of the 1998 Act). 

1. The 1998 Act and the WorkCover Provisional Liability and Claims Guidelines’ (‘the Guidelines’), dated December 2001, do not provide for the lodgment of an application to resolve a dispute in the Commission in the absence of the making of a claim by the worker on the relevant employer and insurer (see Kurrajong Holdings t/as The Gardeners Inn v Carrette [2004] NSW WCC PD 8). Section 260 of the 1998 Act (found in Division 2, Part 2 of Chapter 7) provides that a “claim must be made in accordance with the applicable requirements of the Workcover Guidelines”. The information that must be provided on a claim, and the requirements for the making of a claim are extensive and are set out in the Guidelines. Section 282 of the 1998 Act also details the ‘relevant particulars about a claim’ that must be provided to an insurer in order that it may determine liability and make an offer of settlement.

1. The Guidelines provide that “ to make a claim, the worker must provide certain information depending on what the worker is making a claim for” (Part 2 Rule 6 of the Guidelines).  Rule 6.5 of the Guidelines sets out the ‘information about the workplace injury’ that must be provided to the employer and insurer in relation to a claim, including a claim for lump sum compensation for permanent impairment.  This includes the:

   ·   Date and time of the workplace injury

   ·   How the injury happened, and

   ·   What part of the body is injured.

1. The Guidelines do not require notification of a claim to be articulated in terms of the statutory definitions of ‘injury’ (section 4 of the 1987 Act) or ‘aggravation (section 16 of the 1987 Act).  It would be obviously unfair to expect a worker to be cognizant of the detailed provisions of the Workers Compensation Acts.  It is sufficient if details required by the Guidelines are provided, in summary; how, where, when and why the injury is said to have occurred. 

1. Similarly the claim need not be restricted to ‘pleadings’ on limited grounds if it becomes a dispute and is referred to the Commission.  As I stated in Barbour v BHP Steel Pty Limited [2004] NSW WCC PD 42:

   “It is not appropriate for parties in the Commission to seek to have disputes cosseted in technical rules that result in a failure to determine the real issues (section 354 of the 1998 Act).  Parties are not restricted to issues strictly ‘pleaded’. Nor, as the Workers Compensation Acts (the 1987 Act and the 1998 Act) currently stand, is a Respondent in the Commission restricted to relying only on the reasons for which liability for a claim was initially refused.

   An application to the Commission should seek to detail the facts of the claim, as it was made upon the employer, and understood by the employer and the insurer prior to coming to the Commission.  To insist on strict categorization of the dispute as to only a ‘pleaded’ frank injury, or a ‘pleaded’ nature and conditions claim [or as in this matter a ‘pleaded’ aggravation], is to impose an artificial technicality on workers compensation disputes that is clearly not intended in the objectives of the Commission (section 367 of the 1998 Act).  This is not to say that parties should be at large to raise matters not genuinely in issue between them, or to pursue the ‘element of surprise’ in the advancement of their claims in the Commission.  Ultimately Commission proceedings must be governed by the principles of procedural fairness.  This includes giving a party notice of the case against it and the opportunity to respond, within the reasonable application of the procedural limitations and expectations placed upon the parties by the legislation and the Commission’s Rules”.

1. In essence it is saying no more than that the Commission is bound by procedural fairness, to state that an Employer must be on notice of the claim that is made against it and the nature of the dispute in the Commission.

1. I do not accept the Appellant’s submission that the Arbitrator erred in ‘reframing’ the statutory basis of Ms Edmond’s entitlement to compensation in the dispute before him. In doing so he did not compromise his independent role, but considered the whole of the evidence and any potential entitlement that Ms Edmonds had under the Workers Compensation Acts. Ultimately it is the Arbitrator’s role to make a determination of a worker’s entitlement according to law. The determination of Ms Edmonds claim in terms of the ‘aggravation of a disease’ pursuant to section 16 of the 1987 Act was open to the Arbitrator on the evidence before him. The facts of the claim were not new to the Respondent. Attached to Ms Edmonds application to the Commission was a copy of her claim on the Insurer dated 6 August 2002, with a medical report from Dr Rivett, dated 7 June 2002. Dr Rivett’s report recounts a medical history of symptoms of her injury from 1993 to 2002. Both parties had the opportunity, following the first telephone conference with the Arbitrator, to address the issues raised by the reframing of the dispute in terms of the relevant statutory provisions.

1. Although the Arbitrator did not err in his decision, in my view it was not unreasonable for the parties to assert some disquiet over the conduct of the proceedings.  The Arbitrator dealt erratically in relation to the dates of onset of the injury, eventually accepting the worker’s legal representative’s suggestion, that this should be stated as 1993.  The basis for this appeared to be the Arbitrator’s view that it was of no consequence if the injury was found to be an aggravation.  I note that the transcript records Ms Edmonds legal representative stating in response to the Arbitrator’s comments at one point, that “Well, this whole thing, every time we speak it gets changed”. 

1. The Arbitrator also indicated “from the outset [that] I’ve got a certain view”.  Given that proceedings in the Commission are conducted on the basis of the parties filing all of their evidence and submissions early, i.e. at the time of the Application and the Reply, it is not unusual, nor inappropriate, for an Arbitrator to have formed a preliminary view of the dispute prior to hearing from the parties at a telephone conference.  Indeed the Arbitrator’s careful appraisal of the material before him or her is the key to assisting the parties to come to a settlement of the dispute that is acceptable to all of them (section 355 of the 1998 Act).  If the dispute is not settled by agreement then it is ultimately the Arbitrator’s ability to fairly and impartially weight the evidence that is before him or her, and to consider the submissions made as to the relevant law, which are fundamental to the impartial determination of the dispute.

1. In this matter the Arbitrator was forced to determine the ‘date of injury’ as a preliminary issue.  Unfortunately, he did not clearly elucidate (at least in that part of the proceedings that was transcribed) the basis of the view he had taken ‘from the outset’.  His pre-emptory dismissal of the need to hear submissions from Ms Edmonds legal representative, after having heard lengthy submissions from the Respondent’s legal representative, may have reinforced the impression that he had no need to be persuaded of this ‘view’ by evidence and argument.  I accept the Employer’s submissions to the extent only that the Arbitrator appeared, at some points in the proceedings, to “take the role of an advocate”.  However, considering the whole of the reasons which the Arbitrator gave for the decision (given ex tempore), which in my view are adequate and in accordance with Section 294(2) of the 1998 Act and Rule 73 of the Workers Compensation Commission Rules 2003, I do not accept that the Arbitrator failed to decide the matter fairly and lawfully. Clearly this Arbitrator brought his own knowledge and experience of the operation of the Workers Compensation Acts to his role. This is the very expertise for which he is appointed as an Arbitrator and the task that he was expected to perform.

1. The Arbitrator did not err by failing to independently and fairly determine the threshold issue of the date of injury, pursuant to the 1987 Act.

Did the Arbitrator have proper regard to the evidence of injury?

1. The Employer relies upon the medical evidence of Dr Hoe and Dr Perla.  It submits that Dr Rivett’s evidence should not have been preferred as it “makes the sweeping generalisation” that all of Ms Edmond’s problems were work related.  The Employer submits that “ on a proper construction of the evidence, it must be found that the respondent worker suffered an injury during the course of her employment on 23 September 1993 when she slipped on a floor wrenching her right knee” and, that:

   “. . . while the evidence clearly refers to osteroarthritic changes being present in both knees and degenerative changes in the lumbar spine, there is a complete lack of any evidence by which to assert that the respondent worker’s employment caused an aggravation etc of these conditions and that the only conclusion to be drawn from the evidence is that in terms of any permanent impairment /loss that is compensable, this should be the permanent impairment/loss that results from the frank injury suffered on 23 May 1993.” 

2. Ms Edmonds submits that the Arbitrator was entitled to reject or accept the evidence “ as he sees fit” and that he did not err in doing so in this matter.

1. The relative weight and relevance to be given to evidence is a matter for the discretion of the Arbitrator (see discussion in Aluminium Louvres & Ceilings Pty Ltd v Zheng [2004] NSW WCC PD 26). It is only where the Arbitrator can be said to have failed to exercise his discretion fairly and according to law that his decision should be overturned. This occurs where the Arbitrator has acted upon a wrong 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, Re National Roads and Motorists Association Ltd [2003] FCAFC 206 at [21] to [21]).

1. In this matter the Arbitrator stated that he preferred the medical evidence of Dr Rivett.  His reasons set out the matters that he found to be probative and persuasive in the medical evidence and the history of Ms Edmonds symptoms.  He was entitled to come to his own view of the medical evidence and has not erred in doing so.

DECISION

1. The decision of the Arbitrator is confirmed.  The matter should now be referred to an Approved Medical Specialist as soon as possible.

COSTS

1. The Appellant has been “unsuccessful” on the appeal and the appropriate order is that it pays the costs of the appeal (section 345 of the 1998 Act).

Dr Gabriel Fleming

Deputy President  

18 March 2005.

I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DR GABRIEL FLEMING, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE