Stanton v Shoalhaven City Council
[2008] NSWWCCPD 58
•16 June 2008
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE
COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Stanton v Shoalhaven City Council [2008] NSWWCCPD 58
APPELLANT: David George Stanton
RESPONDENT: Shoalhaven City Council
INSURER:Self insured
FILE NUMBER: WCC5620-07
DATE OF ARBITRATOR’S DECISION: 13 December 2007
DATE OF APPEAL DECISION: 16 June 2008
SUBJECT MATTER OF DECISION: Section 4 of the Workers Compensation Act 1987; adequacy of reasons for decision; fair climate for acceptance of expert medical evidence; inquisitorial powers of the Commission; procedural fairness; referral to Approved Medical Specialist.
PRESIDENTIAL MEMBER: Deputy President Gary Byron
HEARING:Determined on the papers
REPRESENTATION: Appellant: White Barnes
Respondent: Astridge & Murray
ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 13 December 2007 is confirmed.
No order is made as to the costs of this appeal.
BACKGROUND
On 9 January 2008 Mr David Stanton, the Appellant Worker, sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission, against a decision dated 13 December 2007.
The Respondent Employer to the Appeal is Shoalhaven City Council (‘the Council’). The Council is self-insured.
Mr Stanton commenced employment with the Council on 10 June 1997 and was employed as a Ranger. He claims to have suffered an injury to his right arm and shoulder at work on 9 April 2002 when he was holding the boom of a jet patcher (a street pavement repair apparatus) attached to the back of a vehicle, when the driver of the vehicle drove off resulting in a “wrenching” injury to his right arm, in particular the right elbow and right shoulder.
Mr Stanton made a claim for compensation pursuant to section 66 of the Workers Compensation Act 1987 (‘the 1987 Act’) claiming $6,250 lump sum compensation for 5% whole person impairment for the right upper extremity.
In the ‘Section 74 Notice’ issued by the Council on 1 February 2007, it accepted liability for injury to Mr Stanton’s right elbow but denied liability for the alleged injury to his right shoulder. The Council’s decision was based upon “medical certificates issued by your nominated treating doctor, your workers compensation claim form, incident report form and Dr Harbison’s reports of 17 May and 23 November 2006.” This decision was confirmed in the ‘Review – Dispute Notice pursuant to Section 287A of the Workplace Injury Management and Workers Compensation Act 1998 (NSW)’, dated 18 July 2007.
On 25 July 2007 Mr Stanton filed his ‘Application to Resolve a Dispute’ in the Commission. In due course the matter proceeded to a hearing before the Arbitrator on 25 October 2007 following which a ‘Certificate of Determination’ dated 13 December 2007, was issued, together with the Arbitrator’s ‘Statement of Reasons for Decision’ (‘Reasons’).
Mr Stanton has appealed the Arbitrator’s decision.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 13 December 2007 records the Arbitrator’s orders as follows:
“1.That there is an award to the Respondent for the Applicant’s claim for compensation for injury to his [the Applicant’s] right shoulder as a consequence of a workplace incident on 9 April 2002.
2.That the dispute concerning permanent impairment of the Applicant’s right upper extremity (excluding any loss of the right shoulder) shall be referred for assessment by an Approved Medical Specialist appointed by the Registrar of the Commission.
3.That the date of injury is 9 April 2004 [sic 2002] and the assessment is to be undertaken under the whole person impairment regime.
4.That the Application to Resolve a Dispute and attachments, the Reply and attachments and the Application to Admit Late Documents lodged by the Respondent dated 18 October 2007 and attachments be disclosed to the Approved Medical Specialist.
5.That the Respondent pays the Applicant’s costs as agreed or assessed at the completion of these proceedings. Those costs are not to include costs of the conciliation/arbitration hearing of 25 October 2007.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are set out in Mr Stanton’s three grounds of appeal. Mr Stanton submits that the Arbitrator erred in law in:
1.failing to give proper reasons for his decision;
2.making a determination that Mr Stanton did not sustain an injury to his right shoulder in the course of his employment with the Council, and
3.denying Mr Stanton procedural fairness in failing to accept him as a witness of truth, and failing to avail himself of the inquisitorial powers of the Commission to test Mr Stanton’s assertions with respect to injury.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Both Mr Stanton and the Council submit that the Appeal may be determined ‘on the papers’.
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the parties, 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
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
I am satisfied that the monetary threshold in section 352 (2) of the 1998 Act is met.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
Leave to appeal is granted.
REVIEW OF THE ARBITRATOR’S DECISION ON APPEAL
A Presidential member has a specific and limited role in the review of a decision of an Arbitrator. A 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).
In this matter, Mr Stanton must demonstrate that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172; The King Island Company Limited v Deery [2005] NSWWCCPD 1) in order to enliven the Presidential member’s power to interfere with the Arbitrator’s decision pursuant to section 352(7) of the 1998 Act. Moreover, the error must be such that, but for it, a different decision should have been made in its place (see Snow Confectionary Pty Ltd v Askin [2004] NSWWCCPD 56 (‘Askin’); and Absolon v NSW TAFE [1999] NSWCA 311 (‘Absolon’)).
EVIDENCE, DISCUSSION AND FINDINGS
Essentially, the substantive issue in this appeal is whether the Arbitrator erred in finding that Mr Stanton did not sustain an injury to his right shoulder in the course of his employment with the Council.
The relevant findings are found at [42] to [44] of the Arbitrator’s ‘Statement of Reasons for Decision’ (‘Reasons’):
“42.I believe the evidence as outlined above is of such gravity that to find in favour of Mr Stanton’s claim of workplace injury to his right shoulder would be inconsistent.
43.I am not satisfied, on the balance of probabilities, that Mr Stanton has suffered injury to his right shoulder resulting from the workplace incident of 9 April 2002 in accordance with s 4 of the 1987 Act.
44.I therefore find in favour of the Respondent in relation to Mr Stanton’s claim for injury to his right shoulder, which he asserts resulted from workplace incident of 9 April 2002. Notwithstanding Mr Stanton lost the dispute about his right shoulder he has not lost his claim for compensation for his right upper extremity (without the shoulder).”
Before determining each of the three specific grounds of appeal, it is necessary to examine the evidence relevant to injury, that was before the Arbitrator, and upon which he arrived at his decision.
Evidence as to Injury
In his ‘Application to Resolve a Dispute’ Mr Stanton claimed permanent impairment and pain and suffering compensation for injuries to his “right upper extremity” sustained at work on 9 April 2002. In support of his claim he relied upon a report dated 4 October 2006, of Dr Philip Marnie, Orthopaedic Surgeon, whom he consulted as arranged by his legal representatives. The report provided comment on an unrelated injury as well as the injury, the subject of this appeal. It relevantly states, in part:
“In April 2002, he was operating a jet patcher, the driver of the vehicle in which the patcher was mounted drove off with Mr Stanton holding the boom, wrenching his right arm, the pain in his right shoulder and elbow, and since then he has continued to have symptoms in the right shoulder and elbow. As far as he could remember he continued to work but was in the office for seven months after that injury.
He still has loss of movement and pain in the right shoulder and cannot sleep on the right side. There was difficulty with lifting up objects from his side and he continues to have aching pain and twinges in his right shoulder and he feels his shoulder condition is static.”
Dr Marnie diagnosed a probable partial rotator cuff rupture “with a subsequent loss of full movement of the shoulder and that is consistent with his history of the injury on 9 April 2002.” The majority of the report refers to a subsequent work injury on 10 March 2006 in which Mr Stanton injured himself in stepping down from a Council garbage truck, when he twisted his knee. This injury is not the subject of these proceedings. However, Dr Marnie assessed 8% upper extremity impairment, translating to 5% Whole Person Impairment as a result of the injury to his right shoulder.
In a supplementary report dated 18 June 2007, Dr Marnie opines that the impairment of Mr Stanton’s upper extremity is due to injury to the right shoulder directly related to the workplace incident that occurred on 9 April 2002. He clarified Mr Stanton’s history by stating:
“He also had pain in the right elbow so that he experienced pain in the right arm as a whole following the injury and although the elbow seemed to be the more painful at that time, it was his shoulder which had had the restriction of movement as stated on page 4 of my report [4 October 2006]”.
Several WorkCover NSW Medical Certificates also form part of Mr Stanton’s evidence. The ‘initial’ certificate dated 11 April 2002 issued by Dr Parker referred to the injury of 9 April 2002 as, “grabbed back of truck as truck pulled away”. The diagnosis was a right lateral extensor tendinitis at elbow. Mr Stanton was certified fit for suitable duties from 11/4/02 to 11/5/02.
An additional ‘initial’ certificate, dated 12 April 2002, issued by his treating doctor, Dr Killalea, was consistent in describing the injury of 9 April 2002 as occurring when he “grabbed back of truck as truck pulled away”. Dr Killalea diagnosed a right elbow strain and certified Mr Stanton fit for suitable duties from 11/4/02 to 26/4/02.
Seven ‘progress’ WorkCover certificates issued by Dr Killalea covering the period of 26 April 2002 to 23 August 2002, certified Mr Stanton as being fit for suitable duties. On 27 September 2002 he was certified as fit for pre-injury duties. While the injury is initially diagnosed as right lateral epicondylitis from 26 April 2002 to 31 May 2002, the injury is then diagnosed as “Right Tennis elbow and Right shoulder strain” in the final four certificates dated from 28 June 2002 to 29 September 2002.
Dr Whistler, of Whistler Radiology, prepared two Radiology Reports. In the report dated 15 April 2002 an x-ray of the right elbow is reported to disclose no fracture or dislocation but some ossification “arising from the lateral epi-trochlear region of the humerus, this may be at the extensor tendon origin. No other bone or joint abnormality demonstrated. Some ossification at region of lateral epidondyle and humerus. This is a non-specific finding.”
In his report dated 3 July 2002, Dr Whistler reported that an x-ray of the right shoulder revealed that there was minor degenerative change at the gleno-humeral joint and acromio-clavicular joint with no rotator cuff calcification and no signs of recent fracture involving the shoulder girdle. The ultrasound of the right shoulder found no discrete tear involving the rotator cuff tendons or of calcification deposition. He stated that there was fluid within the biceps tendon sheath but the tendon itself appeared to be intact. Dr Whistler further stated that there were “no signs of abnormal clumping of the supraspinatus no abduction. Entities such as capsulitis are not excluded.”
Mr Stanton prepared a signed statement dated 19 February 2007 in which he stated that a day or two after the incident at work on 9 April 2002, because the pain was not going away, he attended the Shoalhaven District Hospital. He recalled lodging both a claim form and a notification of injury form, both dated 11 April 2002, with the Council, stating that these forms were physically prepared by his overseer, Mr Trevor Moloney. On 12 April 2002 he consulted his general practitioner, Dr Killalea who also issued a WorkCover certificate certifying him fit for suitable duties. He stated that he underwent physiotherapy treatment and noticed that the pain seemed to be getting worse particularly in his right shoulder. He underwent a scan of the right shoulder on 3 July 2002. He recalled that after a period of months the severity of the pain diminished, however he was left with ongoing symptoms in his right shoulder.
In referring to the time of the injury Mr Stanton stated:
“I would have to say that at that stage the main focus of my concern was in relation to my right elbow for the reasons that this is where I thought the injury occurred. However I am adamant that the pain that I was suffering right throughout was in relation to the right arm as a whole up to the level of the shoulder.”
He further stated that he has continued to experience symptoms in the right shoulder, which have prevented him from sleeping on his right side. In addition he noted a loss of strength in the right shoulder, difficulty lifting objects, and ongoing aching and twinges of sharper pain, in the that shoulder.
The Council’s evidence, attached to its ‘Reply to Application to Resolve a Dispute’ (‘Reply’), and to its ‘Application to Admit Late Documents’ filed in the Commission on 19 October 2007 consisted of a report of Dr Scott Harbison, Orthopaedic Surgeon, qualified by the Council, dated 17 May 2006, which dealt exclusively with the work injury to Mr Stanton’s left knee sustained on 10 March 2006. Under the heading ‘Previous Health’ Dr Harbison recorded “He had an injury to his right knee in 1972. He is otherwise healthy.”
In his second report dated 23 November 2006, Dr Harbison noted that in his previous consultation with Mr Stanton (report dated 17 May 2006) Mr Stanton had not mentioned a shoulder problem and consequently no examination of his shoulder was carried out at that time.
In the second consultation Dr Harbison noted that Mr Stanton referred to an injury to his right shoulder in April 2002 and gave a history that he was “holding the hose on the back of the truck when the truck driver suddenly moved the truck forward with the result that his right arm was momentarily pulled forward”. He dropped the hose and experienced immediate pain in his right shoulder and another man nearby had heard a snap. Mr Stanton told Dr Harbison that he was able to keep working for the rest of that day. However that night, his right shoulder was very sore and he went to hospital at about 6.00am the following morning where he had some x-rays, the results of which he stated were normal.
Mr Stanton told Dr Harbison that he continued to have trouble with his right shoulder and in July 2002 underwent an x-ray and an ultrasound examination. He had physiotherapy treatment for one to two months, which he said did not assist him greatly. However the acupuncture treatment he received twice a week for three or four months did help.
Dr Harbison stated that Mr Stanton told him that his forearm continued to swell for several months and that although the right shoulder improved a lot subsequently, he still experienced problems in his shoulder including sharp pains particularly after active use of his arm. Mr Stanton is right-handed and stated that his right shoulder hurt when lying in bed on his right side. He told Dr Harbison that he felt that he had lost some movement at the shoulder joint but there was no particular movement that was more painful than others.
Dr Harbison found no wasting around the shoulder girdle, and reported that all muscles were working at normal power and that sensation around the shoulder girdle and in the upper limbs was normal. He also found that there were “negative impingement signs”.
Dr Harbison reviewed the x-ray and ultrasound of Mr Stanton’s right shoulder, both dated 3 July 2002. He disagreed with Dr Marnie’s report (dated 4 October 2006), in which he opined that Mr Stanton probably suffered a partial rotator cuff rupture. Dr Harbison found that “the ultrasound examination did not confirm any such rupture or the clinical findings.” Dr Harbison found that the findings at the time of his examination were consistent with some degenerative change in the rotator cuff and in the acromio-clavicular joint. He further observed:
“In the movements that are recorded hereunder, it should be noted that all movements were active movements and all angles were measured with a goniometer. The ranges of motions were repeated and three recorded were averaged. It should be noted in passing that Mr Stanton became progressively less cooperative as he was asked to repeat each movement.”
Dr Harbison concluded that Mr Stanton has degenerative arthritis in his shoulders and that he suffered a soft tissue strain of the right shoulder in 2002. He assessed Mr Stanton as having an impairment of 1% Whole Person Impairment (WPI) of the right shoulder. In considering any pre-existing conditions, Dr Harbison noted that x-rays taken of Mr Stanton’s right shoulder a few months after the injury showed established arthritis in the acromio-clavicular joint. He applied a deduction of one tenth for the arthritis which he rounded up to reach an assessment of 1% WPI.
A WorkCover Physiotherapy Plan dated 16 May 2002 records that the area to be treated was the right arm (including biceps region, elbow and forearm) and that the physiotherapy treatment to be provided consisted of soft tissue massage, radial nerve stretches, taping and wearing of a tennis elbow brace. It was noted that the problem may take time to settle due to the nature of the work (e.g. lifting etc) and that there were “multiple pain areas”. The Plan recommended that 10 further treatments were required, and that it was expected that Mr Stanton would make a gradual return to full duties. However, care was required so as not to overload the arm as it could be easily aggravated.
The Council also relied on WorkCover certificates from Dr Parker dated 11 April 2002 and Dr Killalea dated from 12 April 2002 to 31 May 2002 but did not rely on the certificates issued by Dr Killalea dated from 28 June 2002 to 29 September 2002 which specifically referred to shoulder pain, as previously noted.
The Council’s ‘Employee’s Compensation Claim’ form dated 11 April 2002 prepared by his overseer, Mr Trevor Moloney noted the injury as being to the right elbow with the following entered under the heading ‘What Happened’: “Operating boom arm at back of jet patcher. The boom became stuck while the truck was moving forward slowly causing David to hurt his right elbow”.
The Council’s ‘Mishap/Accident Report’ dated 11 April 2002, also prepared by Mr Moloney, in response to question 23 ‘What was the injury as reported to you? (Give full details including the parts of the body affected e.g. cut on second finger on left hand)’, only records the notation: “10-4-02”.
The Council’s ‘Investigation Report’ dated 11 April 2002 under the heading ‘Findings’ records:
“ … In this operation the back operator pulls this boom off the truck while the truck moves forward slowly. On this occasion David‘s right arm was connected to the boom thus pulling muscles on David‘s right elbow”.
Evidence also included documents produced under direction by Dr Killalea. The relevant attendances /diagnoses /treatments comprised the following:
a. 12 April 2002: “suffered jerking injury to R arm as truck pulled away on 9/4/2002. Pain presently to R elbow and feels like tear and has burning feeling to the middle of his R arm. Actions: Diagnostic Imaging requested: X-ray – Elbow (R);
b. 28 June 2002: “Still having problems with R shoulder. Pain radiating to neck, and some pain to front of his shoulder. Worse with certain positions. Pain to extremes of flexion and abduction. Tender to anterior aspect of R shoulder. Actions: Diagnostic Imaging requested: X-ray – Shoulder (R), US – Shoulder (R)”
c. 5 July 2002: “Shoulder injury noted. Still has pain most of the time, can’t lie on R side. Lots of Trigger points in Supraspinatus muscle, biceps, ant. Deltoid, scapular muscles. Recommend needling +/- massage.”
d. 26 July 2002: “Still having problems with R shoulder. Wishes to pursue dry needling. Physio seems to have plateaued.”
e. 23 August 2002: “Still having problems with R elbow. Still problems with mashing eggs. Picked up a shovel at work and tried to test it out. Still pursuing dry needling. Still able to work light duties only. Able to drive at present. Still has limited range of motion to R shoulder. Review 27/09/2002.”
f. 27 September 2002: “R arm has improved, as a result of dry needling. Wishes to go back to full duties. Good strength to grip, and to wrist flexion and extension, and to elbow. Minimal pain. If exacerbation of pain review.”
g. 17 January 2003: “…Shoulder is OK now.”
The Council’s evidence also included four Council, ‘Injury Management/Return to Work Plans’, dated from 15 April 2002 to 30 September 2002. Under “Medical constraints”, the notation, “Lifting up to 10 kg” is made in all plans except in final plan dated 30 September 2002, which records: “Exercise constraint/care with R arm and shoulder – any discomfort/pain – cease activity immediately”.
Documents produced under direction by Nowra Physiotherapy & Sports Injury Clinic include patient records dated from 18 April 2002 to 4 June 2002. However, the copies of these documents produced to the Commission were of poor quality and not complete in sections. The notation made on 27 May 2002 states: “c/o R shoulder pain over w/e ? why. Biceps also ached. Elbow not too bad. Took anti-flam & settled down. R sh mvmt”. Reference is also made to Mr Stanton’s right shoulder on 4 June 2002 however due to the poor quality of the document, it is unable to be deciphered.
Documents produced under direction by Shoalhaven District Hospital, consisted of correspondence to the Physiotherapist from the Hospital, dated 11 April 2002 noting “Workplace injury x 2. Pain lateral elbow R. Extensor tendonitis R elbow”, a Physiotherapy Plan dated 16 May 2002 and an Emergency Department Clinical Record dated 11 April 2002, noting the presenting problem as:
“Injury to rt elbow several days ago. Pt rested same and it seemed to improve but the last couple of days pt has experienced loss of motion in elbow swollen & painful. The injury was a jarring action to rt elbow. 2 aspalgion given rt arm placed in collar & cuff”.
Handwritten notes state: “Workplace injury R elbow. Grabbed back of truck as it pulled away 3/7 ago also similar injury few weeks ago. Dx Lateral extensor tendonitis R arm.”
Arbitrator’s treatment of the Evidence
The Arbitrator noted at [9] of his Reasons, that according to Mr Stanton’s statement, he went to hospital a day or two after the workplace incident on 9 April 2002. This was confirmed by reference to Shoalhaven District Hospital’s contemporaneous notes filed by the Council.
The Arbitrator also noted that the provisional diagnosis made by the attending doctor, Dr Parker, was “lateral extensor tendonitis r arm” and at [11] of his Reasons stated that at the time of the hospital visit there was no history taken of any injury or symptoms to the right shoulder.
The Arbitrator then considered the claim form and notification of injury form, both dated 11 April 2002, and confirmed, in accordance with Mr Stanton’s statement, that the forms were not physically completed by Mr Stanton but by a third party. He noted that the claim form recorded: “operating boom at back of jet patcher. The boom became stuck whilst truck was moving slowly forward causing David to hurt his right elbow.” The Arbitrator noted at [12] of his Reasons, “Again no mention of any injury to the shoulder.”
The Arbitrator referred to the Council ‘Mishap/Accident Report’ completed at the same time and noted the entry, “still the injury complained of was only to Mr Stanton’s right elbow.” (See [13] of the Arbitrator’s Reasons).
The Arbitrator dealt with the clinical notes produced by Dr Killalea noting at [15] of his Reasons, “the first noted mention of a problem with Mr Stanton’s right shoulder was the consultation of 28 June 2002 some - 10 weeks post incident”.
In dealing with the evidence produced by Nowra Physiotherapy & Sports Injury Clinic, the Arbitrator noted that the first mention of any shoulder problem was at the consultation of 27 May 2002 about seven weeks post incident. He also made mention of two Physiotherapist reports which were entered into evidence during the arbitration hearing:
“19.To be fair to Mr Stanton I refer to two Progress Reports written by the Physiotherapist to the GP [Dr Killalea] dated 31 May 2002 and 27 June 2002. In the report of 31 May 2002 the Physiotherapist reported (amongst other things) –
‘I have been treating Mr David Stanton for right lateral epicondylitis and right biceps pain which he sustained while at work as a Ranger ….. Over the week David has reported increased shoulder pain which could possibly be related to re-aggravation of the biceps (likely muscle tear).’ (underlying mine).
In the Report of 27 June 2002 the Physiotherapist reported (amongst other things) -
‘David Stanton has been attending Nowra Physiotherapy and Sports Injury Clinic for his right elbow and right shoulder pain. David has reported that his shoulder is now his main problem although the pain in his elbow is returning gradually even following the injection.’
The Physiotherapist appeared to have some concerns and advised the GP in the following terms:-
‘I am concerned that there may be some underlying (? Anterior capsule) from the initial injury at work. Do you think that David should have any further investigations?’”
The Arbitrator then noted at [20] of his Reasons that an x-ray and ultrasound of Mr Stanton’s right shoulder was carried out on 3 July 2002. The x-ray revealed arthritis in the acromio-lavicular joint. The ultrasound indicated no tear or calcification in any of the rotator cuff muscles, and a small amount of fluid in the biceps sheath. The Arbitrator stated that he understood that the investigations were regarded as normal for a man of Mr Stanton’s age.
Further evidence was referred to by the Arbitrator including a number of Injury Management/Return to Work Plans dated from 15 April 2002 to 30 September 2002. The Arbitrator again noted at [21] of his Reasons that there was no specific report of an injury to the right shoulder in any of the plans. He made reference to the notation on the plan dated 30 September 2002, which stated: “Exercise constraint/care with R arm and shoulder – any discomfort/pain – cease activity immediately.”
After dealing with the contemporaneous evidence the Arbitrator considered the medico-legal reports of Dr Marnie (at [22] to [26] of his Reasons) and Dr Harbison ( at [27] to [30] of his Reasons). In particular the Arbitrator drew attention, at [23], to the history taken by Dr Marnie in his report dated 4 October 2006 in which he recorded: “In April 2002, he was operating a jet patcher, the driver of the vehicle in which the patcher was mounted drove off with Mr Stanton holding the boom, wrenching his right arm, the pain in his right shoulder and elbow…”.
The Arbitrator noted at [25] of his Reasons the following history provided by Dr Marnie in his supplementary report dated 18 June 2007, as follows:
“I did obtain a history of Mr Stanton of pain in his right shoulder following his injury in 2002. He also had pain in his right elbow so that he experienced pain in the right arm as a whole following the injury and although the elbow seemed to be the more painful at that time, it was his shoulder which had had the restriction of movement as stated on page 4 of my report. In my opinion, the impairment of his upper extremity due to his injury to the right shoulder can be directly related to his injury on 9 April 2002.”
As outlined at [23] above, of these Reasons, Dr Marnie assessed a permanent loss of 8% right upper extremity, which equated to 5% whole person impairment with no deduction being made for pre-existing condition.
At [27] of his Reasons the Arbitrator noted the history that Dr Harbison recorded in his report dated 23 November 2006, in relation to Mr Stanton’s right shoulder. In particular, he noted Dr Harbison’s comment that Mr Stanton informed him that he had experienced “immediate pain in the shoulder” at the time of the incident on 9 April 2002 and “that night his right shoulder was very sore and he went to hospital at about 6:00am the following morning”.
He further noted that Dr Harbison diagnosed Mr Stanton as having degenerative arthritis in his knees and shoulders and that he had suffered a soft tissue strain of the right shoulder in 2002. Dr Harbison stated that Mr Stanton’s symptoms and signs were consistent with his diagnoses and he assessed Mr Stanton as suffering from a 1% permanent loss of right upper extremity (shoulder) which equated to a 1% whole person impairment after deduction of 10% for pre-existing non-work related condition, being the arthritis.
After assessing the contemporaneous and medico-legal evidence, the Arbitrator came to the following conclusion at [37] of his Reasons:
“…The problem with Mr Stanton’s claim is that there appears to be no contemporaneous evidence available to effectively and confidently assert that the incident on 9 April also caused injury to his right shoulder. There is no doubt, on the evidence, that Mr Stanton’s right elbow was affected in the incident but no evidence of injury to the right shoulder.”
The Arbitrator came to this conclusion in light of both medico-legal experts assessment of whole person impairment of 1% by Dr Harbison, the Council’s own expert, and 5% by Dr Marnie.
At [38] of his Reasons, the Arbitrator stated:
“I note that Mr Stanton’s statement of 19 February 2007 he advised that following the incident of 9 April 2002 he “immediately suffered pain to my elbow and to my right arm generally”. To Dr Marnie he gave a history of “In April 2002 …wrenching his right arm, the pain in his shoulder and elbow and since then he has continued to have symptoms in the right shoulder and elbow.” To Dr Harbison Mr Stanton’s history was ‘”Mr Stanton told me that in April 2002 …He had immediate pain in the shoulder …That night his right shoulder was very sore and he went to hospital about 6.00 am the following morning. (Underlining mine).”
He states at [30] of his Reasons that both medico-legal experts were “quite in order” in giving an assessment of whole person impairment based upon the history they obtained from Mr Stanton. However he found that, in accordance with the “best” evidence, “(i.e. contemporaneous)”, the history given on this point by Mr Stanton was “erroneous and not substantiated by the evidence”.
The Arbitrator referred to the decision of Deputy President Roche in Combined Civil Pty Ltd v Rikaloski [2007] NSWWCCPD 181 (‘Rikaloski ‘) to support his finding that the history recorded by the medico-legal experts did not accord precisely with the other evidence in the case. The Arbitrator cited the following passage from that decision:
“32. Whilst the Commission is an expert tribunal … that expertise does not extend to determining issues of ‘injury’ and ‘causation’ in the absence of appropriate expert evidence (see Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42 at [82]; Wallaby Grip v Macleay Area Health Service (1998) 17 NSWCCR 355 at [20] and Barbour at [27].
“33. The principles in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 (‘Makita’) are also relevant. That case made it clear that the prime duty of experts in giving opinion evidence is to furnish the trier of fact with criteria enabling evaluation of the validity of the expert’s conclusions (per Heydon JA in Makita at [59]). Without that evidence the expert’s opinion will be a ‘bare conclusion’ (Makita at [59]). In many cases the history recorded by an expert will not accord precisely with the other evidence in the case. In that situation the question will be whether the history recorded provided a ‘fair climate’ for the acceptance of the expert’s opinion (Makita at 731-732; Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 at 509-510 and Brady v Commissioner of Police (2003) 25 NSWCCR 58 at 76).”
The Arbitrator found at [41] of his Reasons that the history recorded by the expert medico-legal consultants did not accord precisely with the other evidence before him. He concluded by saying that he did not believe that a “fair climate” had been provided for the acceptance of the expert opinions in relation to the alleged shoulder injury. He went on to say at [42] of his Reasons that he believed that the evidence as outlined, “is of such gravity that to find in favour of Mr Stanton’s claim of workplace injury to his right shoulder would be inconsistent.” At [43] he stated that he was not satisfied on the balance of probabilities that Mr Stanton had suffered injury to his right shoulder resulting from the workplace incident of 9 April 2002, “in accordance with s4 of the 1987 Act.”
As stated previously, the contemporaneous evidence before the Arbitrator in support of Mr Stanton’s claim that he sustained a work-related injury to his right shoulder, included the clinical notes produced by Dr Killalea, which reported a problem with Mr Stanton’s right shoulder at the 28 June 2002 consultation. In addition, the evidence produced by Nowra Physiotherapy & Sports Injury Clinic recorded the first mention of a shoulder problem at the consultation of 27 May 2002, followed by two progress reports dated 31 May 2002 and 27 June 2002, both of which referred to Mr Stanton’s shoulder pain.
The Arbitrator re-produced Mr Stanton’s signed statement in his Reasons and commented on it and some of the contemporaneous evidence such as the Shoalhaven Emergency Department clinical records and the circumstances surrounding the completion of the claim form and notification of injury form. The Arbitrator made further reference to Mr Stanton’s statement at [38] where he noted that Mr Stanton had, following the incident of 9 April 2002, stated, “immediately suffered pain in my elbow and to my right arm generally.” The Arbitrator proceeded to compare this account to the histories given to Dr Marnie and Dr Harbison to demonstrate that the history given by Mr Stanton was “erroneous and not substantiated by evidence”. The Arbitrator however made no reference to that part of Mr Stanton’s statement, where he stated:
“4. …I would have to say that at that stage my main focus of my concern was in relation to my right elbow for the reason that that is where I thought the injury had occurred. However I am adamant that the pain that I was suffering right throughout was in relation to the right arm as a whole up to the level of the shoulder…I then noticed that the pain seemed to be getting worse and in particular I was experiencing more and more pain to the right shoulder. I then underwent a scan to my right shoulder in the month of July 2002. I recall that after a period of months the severe pain seemed to lessen. However I was left with ongoing symptoms.”
Counsel for Mr Stanton addressed the Arbitrator during the arbitration hearing, stating (at page 2 line 22 of Transcript):
“Now, you have Mr Stanton’s statement. Mr Stanton is here. I’ve indicated in conciliation that in making your determination today you will need to make an assessment with respect to his credibility. Mr Stanton is here if you wish to ask him questions so that that might assist your determinative process. I note the employer doesn’t wish to cross-examine Mr Stanton on his statement.”
The Arbitrator did not respond to this invitation. This relates specifically to the third ground of appeal regarding the Arbitrator’s alleged failure to avail himself of the inquisitorial powers of the Commission to test Mr Stanton’s assertions with respect to injury. I will return to that issue in due course. The first and second grounds of appeal may be dealt with together.
Did the Arbitrator err in making a determination that Mr Stanton did not sustain an injury to his right shoulder in the course of his employment, and in failing to give proper reasons for his decision?
Arbitrator’s Determination
Mr Stanton states in his appeal submissions, “the worker has given clear and specific evidence with respect to a mechanism of injury which Drs Mahoney [sic] and Harbison as expert medico-legal opinion providers have accepted as being consistent with a tear to the right rotator cuff”. However, Dr Harbison did not agree altogether with Dr Marnie’s comments as to ‘Diagnosis and Attribution’. Dr Harbison states at page 4 of his report of 23 November 2006:
“I do not agree with Dr Marnie’s comments in the paragraph ‘Diagnosis and Attribution’. While Mr Stanton could have sustained a partial rotator cuff rupture with the kind of injury he sustained to his right shoulder, the ultrasound examination did not confirm any such rupture and the clinical findings now do not support the diagnosis of a specific tear in the rotator cuff. The findings presently are consistent with some degenerative changes in the rotator cuff and in the acromio-clavicular joint.”
Nevertheless, Mr Stanton also submits that the Arbitrator did not provide an appropriate or proper explanation as to why he rejected his evidence in circumstances where both Dr Marnie and Dr Harbison accepted that the mechanism of injury would give rise to the clinical presentation as discovered.
In response, the Council argues that the Arbitrator did consider Mr Stanton’s statement, which it notes was made almost five years after the incident, and that he then contrasted the history of injury and the anatomical site of pain given by Mr Stanton with the contemporaneous evidence, which included the Shoalhaven Hospital notes, Nowra Physiotherapy & Sports Injury Clinic’s notes and WorkCover certificates. It also included the reports from Dr Whistler of Whistler Radiology.
The Council submits that the Arbitrator provided a proper explanation for rejecting that part of Mr Stanton’s statement in respect of the alleged right shoulder injury. The Council asserts that the determination that the histories given by Mr Stanton to the medico-legal experts did not accord with all of the contemporaneous evidence, and that the conclusion reached by the Arbitrator was both “reasonable and proper in the circumstances”.
The Arbitrator has endeavoured to follow the chronology of relevant events related to the claim of injury to Mr Stanton’s shoulder. In so doing, he concludes that a “fair climate” did not exist within which the expert evidence in support of a right shoulder injury could be accepted. Differences and/or variations in medical opinion are expressed in this matter, essentially in the context of the same set of facts and the results of various medical investigations. In order to establish whether any particular expert opinion is of material value, it “must have some rational relationship with the facts proved.” (Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 at 732 (‘Makita’)). It is fundamental that what an expert gives is an opinion based on the facts. Consequently, the expert is required to “prove” by admissible means the facts on which the opinion is based. In Makita, Heydon JA said at 731-2:
“If other admissible evidence establishes that the matters assumed are ‘sufficiently like’, the matters established ‘to render the opinion of the expert of any value’, even though they may not correspond ‘with complete precision’, the opinion will be admissible and material: see generally Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 at 509-510; Paric v John Holland Contructions Pty Ltd [1985] HCA 58; (1985) 59 ALJR 844 at 846).”
In Brady v Commissioner of Police (2003) 25 NSWCCR 58, His Honour Judge Armitage said at 76:
“In Paric … Samuels JA refers to the situation where facts stated in an expert’s report do not completely correspond to the facts proved at trial, and held that where there is a ‘fair climate’ for the acceptance of the expert’s opinion, this may occur, notwithstanding the discrepancy just referred to, relying on various authorities which His Honour cited from America and elsewhere. His Honour said that this question is essentially one of fact and degree.”
This aspect has been discussed in a number of Presidential decisions on appeal in the Commission. See for example, Rikaloski; Dennis v NSW Fire Brigades [2007] NSWWCCPD 165; Matar and Anor v Zeineddine [2008] NSWWCCPD 51.
It was necessary for the Arbitrator to consider and assess the “value” of the various medical opinions in light of the available, factual evidence in this matter, in relation to whether injury was sustained to Mr Stanton’s right shoulder.
The evidence as to the question of injury to Mr Stanton’s right shoulder is summarised at [22] – [50] above, of these Reasons. The Arbitrator’s treatment of the evidence is summarised at [51] – [73] above, of these Reasons.
One of Mr Stanton’s principal concerns is that the Arbitrator failed to provide an explanation for not accepting the contents of his statement of 19 February 2007, in terms of the claimed injury to his right shoulder. He submits that the Emergency Department Clinical Record of the Shoalhaven District Hospital dated 11 April 2002 support his claim of injury. The Arbitrator notes that there was no reference to, or history taken from Mr Stanton, as to any injury to the right shoulder. Mr Stanton states that at the time, the “main factor of my concern was in relation to my elbow for the reason that that is where I thought the injury had occurred.”
The Council submits that the Arbitrator, upon a review of all available evidence, determined that Mr Stanton’s claim in respect of injury to his right shoulder on 9 April 2002 was not supported by what the Arbitrator describes as “the contemporaneous evidence available” (see [37] of the Arbitrator’s Reasons). The Council further asserts that the Arbitrator did consider the contents of Mr Stanton’s statement, which was made some five years after the incident out of which the alleged injury arose. It submits that the Arbitrator compared Mr Stanton’s statement with a number of “contemporaneous” reports, which included the Shoalhaven Hospital report of 11 April 2002. The Arbitrator observed that the report disclosed a history which contained no mention of injury or “pain to my right elbow and to my right arm generally” (see paragraph 3 of Mr Stanton’s statement) or “the pain was affecting my right elbow and my right arm generally up to the level of the shoulder” (see paragraph 4 of Mr Stanton’s statement). The Council submits that the inference drawn by the Arbitrator that Mr Stanton gave no history of shoulder injury or pain to the Hospital authorities, is available in the circumstances, and the history and details taken by the Hospital from Mr Stanton on 11 April 2002 is inconsistent with the contents of his statement made some five years later.
The Arbitrator observed that there was no mention of shoulder injury in Mr Stanton’s claim form and notification of injury form, both dated 11 April 2002. Mr Stanton points out that he did not complete these forms himself and that an inference should have been drawn by the Arbitrator that the reference to the truck “moving forward slowly”, as opposed to Mr Stanton’s claim that it moved quite suddenly, was an attempt by the Council to play down the injury and the cause of the injury. However, as submitted by the Council, Mr Stanton adopted the contents of the documents when he signed them, notwithstanding that they were prepared by a supervisor. Mr Stanton submits that if the truck moved off slowly the injury would not have been as severe as claimed by him. That may or may not be so, but the Arbitrator did not draw the inference suggested by Mr Stanton. In so doing he was not demonstrably in error, notwithstanding that Mr Stanton does not agree with him.
The Arbitrator, after considering the evidence before him, states that there is no mention of injury to Mr Stanton’s right shoulder until it appears in Dr Killalea’s clinical notes on 28 June 2002, some ten weeks after the incident. There is mention of the need to exercise “constraint/care” with the right arm and shoulder in the Councils injury management and return to work plan dated 30 September 2002. Prior to that the plans indicated that Mr Stanton was able to lift weights up to 10 kg.
In dealing with the clinical notes produced by Nowra Physiotherapy, the Arbitrator observed that there was a reference to Mr Stanton’s right shoulder at the consultation of 27 May 2002, which was some seven weeks after the workplace incident. The clinical note records, “c/o R shoulder pain over the w/e? why. Biceps also ached. Elbow not too bad. Took anti-inflam & settled down.” However, the note of 31 May 2002 records “over the week David has reported ‘increased shoulder pain which could possibly be related to a re-aggravation of the biceps problem likely muscle tear’.” The report of 27 June 2002 records Mr Stanton as saying that “His shoulder is now the main problem although the pain in his elbow is returning gradually even following the injection.” It seems that Nowra Physiotherapy attributes the “likely” cause of the reported shoulder pain manifestation, to an injury to Mr Stanton’s bicep.
The Arbitrator notes at [20] of his Reasons that an x-ray and ultrasound of Mr Stanton’s right shoulder on 3 July 2002 disclosed that the investigations were regarded as normal for a man of Mr Stanton’s age.
As set out earlier in these Reasons, there is certainly reference from the outset to injury to, and pain in, Mr Stanton’s right elbow, and there are references to pain in his right arm. However, the Arbitrator correctly concluded that the “contemporaneous” evidence made no claim of injury to, or pain in, Mr Stanton’s right shoulder.
It is true that Dr Marnie’s report supports Mr Stanton’s claim of injury to his right shoulder, but it is not correct to say that Dr Harbison’s report also supports such a claim. Dr Harbison states in his report of 23 November 2006, at page 4:
“Dr Marnie obtained a similar history to that which I had obtained. The findings on examination were significantly different. In particular, Dr Marnie recorded a greater range of movement at both shoulders than I had recorded but he recorded significantly less movement in both knees.
I do not agree with Dr Marnie’s comments in the paragraph ‘Diagnosis and Attributions’. While Mr Stanton could have sustained a partial cuff rupture with the kind of injury he sustained to his right shoulder, the ultrasound examination did not confirm any such rupture and the clinical findings now do not support the diagnosis of a specific tear in the rotator cuff. The findings presently are consistent with some degenerative change in the rotator cuff and in the acromio-clavicular joint.”
Dr Harbison does not discount the “possibility” of injury to the right shoulder but he states unreservedly that the results of the medical investigations do not support that any such injury was sustained. Furthermore, the Arbitrator points out the inconsistencies between the history recorded in Mr Stanton’s statement, the history he gave to Dr Marnie and the history he gave to Dr Harbison (see [38] of his Reasons).
In considering the Arbitrator’s decision, the question is not whether or not one agrees with his view, but whether it was reasonably available to him to arrive at that view, based on the evidence. In the High Court, in Swain v Waverley Municipal Council [2005] HCA 4; 79 ALJR 249; 213 ALR 249, Gleeson CJ said:
“The question for an appellate court is whether it was reasonably open to the jury [sic] to make an assessment unfavourable to the respondent, not whether the appellate court agrees with it.”
That general principle applies in this matter. Accordingly, I find that on the evidence before him, the Arbitrator’s decision that Mr Stanton did not sustain a workplace injury to his right shoulder on 9 April 2002 was reasonably open to him. But in any event, for the purposes of Mr Stanton’s claim, any injury to the right shoulder that “possibly” may have occurred, has resolved (see Dr Killalea’s clinical note of 17 January 2003 and other evidence as outlined in the Arbitrator’s and these Reasons).
Reasons
Section 294(1) and (2) of the 1998 Act provide:
“(1) If a dispute is determined by the Commission, the Commission must as soon as practicable after the determination of the dispute issue the parties to the dispute with a certificate as to the determination.
(2)A brief statement is to be attached to the certificate setting out the Commission’s reasons for the determination.”
Rule 15.6 of the Workers Compensation Commission Rules 2006 (‘the Rules’) provides:
“(1)A statement of the Commission’s reasons referred to in section 294(2) of the
1998 Act is to include:
(a)the Commission’s findings on material questions of fact, referring to the evidence or other material on which those findings were based, and
(b)the Commission’s understanding of the applicable law, and
(c)the reasoning processes that lead the Commission to the conclusions it made.
(2)Without limiting subrule (1), the reasons set out in the statement referred to in subrule (1) are to be stated sufficiently (in the opinion of the Commission) to make the parties aware of the Commission’s view of the case made by each of them.”
While Arbitrators have a statutory obligation to provide adequate reasons (Absolon), it is not necessary for an Arbitrator to give lengthy reasons for decision. The requirement for lengthy reasons would be unreasonable and inconsistent with the statutory objectives of the Commission (Liverpool City Council v Trovato [2004] NSWWCCPD 15). In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, McHugh JA (as he then was) stated at 280:
“If an obligation to give reasons for a decision exists its discharge does not require lengthy or elaborate reasons: Ex parte Powter; Re Powter (1945) 46 SR (NSW) 1 at 5; 63 WN 34 at 36. But it is necessary that the essential ground or grounds upon which the decision rests should be articulated. In many cases the reasons for preferring one conclusion to another also need to be given.”
The reasons for decision will be adequate, notwithstanding that they do not set out the relevant statutory provisions at length, or specify and examine all relevant and judicial authority (Askin). Furthermore, it is not necessary for the Arbitrator to refer in detail to the evidence of each and every fact in issue, nor each and every step in the reasoning process (Yates Property Corporation Pty Ltd (In Liquidation) v Darling Harbour Authority (1991) 24 NSWLR 156 (‘Yates’); Ainger v Coffs Harbour City Council [2005] NSWCA 424 (‘Ainger’)). However, a statement of reasons must set out “with enough clarity, the relevant findings on material questions of fact, the Arbitrator’s understanding of the applicable law [and] the Arbitrator’s application of the law to those findings (Askin).
Importantly, the Arbitrator must not only note the relevant evidence and give reasons for the findings made, but where the evidence is disputed he or she must give a clear explanation of the reasons why some of the evidence is preferred over other evidence (Mayne Group Limited v Mikhail [2006] NSWWCCPD 249 at [41]. See also, Mifsud v Campbell (1991) 21 NSWLR 725 at 728; Bright v Joodie Holdings No 2 Pty Ltd [2005] NSWCA 134; Hume v Walton [2005] NSWCA 148).
In the High Court of Australia in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56 at [64], Kirby J said:
“The more significant the decision the clearer the duty may be, the clearer the reasons should be and the clearer the consequences will be for the breach. Some decisions cry out for a clear explanation … Especially is this so where the legislature has recognised the need and imposed a duty to give reasons and where the decision is very important for the person affected and for others close to that person.”
Failure to give reasons or adequate reasons is an error of law and may be a ground upon which a decision may be set aside. To succeed in having a decision set aside an Appellant must demonstrate not only that the reasons are inadequate, but that this inadequacy also demonstrates that the Arbitrator has failed to exercise his or her statutory duty to fairly and lawfully determine the matter (YG & GG v Minister for Community Services [2002] NSWCA 247; Absolon; ADCO Constructions Pty Ltd v Keneth Ian Ferguson [2003] NSWWCCPD 21).
The standard by which the adequacy of reasons must be determined is relative to the nature of the decision itself and the decision-maker (Mayne Health Group t/as Nepean Private Hospital v Sarah Sandford [2002] NSWWCCPD 6). An Arbitrator’s reasons should be read as a whole and it is not required of a Presidential member on review to comb through his or her findings and reasons in search of error (Beale v GIO (NSW) (1997) 48 NSWLR 430 at 444; Minister for Immigration and Ethnic Affairs v Wu Shu Liang [1996] HCA 6; (1996) 185 CLR 259). As previously stated, it is not necessary for an Arbitrator to refer to each and every piece of evidence (Yates; Ainger).
In this matter, the Arbitrator has gone to some lengths to analyse, compare and contrast the evidence in this matter and has given sufficient reasons upon which to base his decision. He has discharged his obligations in this regard and has made no error in point of law. I find accordingly.
Grounds 1 and 2 are not made out.
Did the Arbitrator deny procedural fairness by failing to accept Mr Stanton as a witness of truth, and failing to avail himself of the inquisitorial powers of the Commission to test his assertions with respect to injury?
Mr Stanton submits, “The Arbitrator had available to him the Commissions inquisitorial powers and failed to take advantage of these powers to clarify any misgivings he may have had on the evidence.”
The Council submits that there is no evidence to support the assertion that Mr Stanton was denied procedural fairness. It argues that Mr Stanton was represented by able counsel, and relied upon medical evidence and his statement of 19 February 2007. It asserts that despite having available to him the evidence that was before the Arbitrator, prior to the conciliation/arbitration proceedings, Mr Stanton elected not to provide any supplementary statement or, as was his right, not to give supplementary oral evidence in answer to the matters raised by the Council. The Council submits that it was open to the Arbitrator, upon a proper evaluation of the evidence, to find in favour of the Council in respect of the claim for injury to Mr Stanton’s right shoulder that allegedly resulted from the workplace injury of 9 April 2002.
There is no indication in anything that is before me that the Arbitrator was left with any “misgivings”, nor that he needed to exercise any power to clarify any such “misgivings”. It appears to me that he gave due consideration to the relevant evidence and made a decision that was open to him to make, on that evidence.
The nature of the Arbitrator’s role in the determination of a dispute in the Commission has been addressed in a number of Presidential decisions on appeal. One such decision is that of Acting Deputy President Moore in relation to the purported inquisitorial powers that reside in an Arbitrator. In Welch v Paul Mitchell [2007] NSWWCCPD 66, she said, in part:
“52. The role of Arbitrators was considered recently by Deputy President Roche in Paul Segaert Pty Limited t/as Lidco v Narayan [2006] NSWWCCPD 296, principally in the context of procedural fairness. DP Roche considered the provisions that governed proceedings before the Commission stating as follows:
‘In light of the above authorities it is appropriate to consider the provisions that govern proceedings before the Commission. They are set out in Chapter 7 of the 1998 Act and in section 354 which provides as follows:
‘354 Procedure before Commission(1) Proceedings in any matter before the Commission are to be conducted with as little formality and technicality as the proper consideration of the matter permits.
(2) The Commission is not bound by the rules of evidence but may inform itself on any matter in such manner as the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits.
(3) The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.
(4) Proceedings need not be conducted by formal hearing and may be conducted by way of a conference between the parties, including a conference at which the parties (or some of them) participate by telephone, closed-circuit television or other means.
(5) Subject to any general directions of the President, the Commission may hold a conference with all relevant parties in attendance and with relevant experts in attendance, or a separate conference in private with any of them.
(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.
(7) An assessment or determination is to be made by the Commission having regard to such information as is conveniently available to the Commission, even if one or more of the parties to the assessment or determination proceedings does not co-operate or ceases to co-operate.
(8) In proceedings before a court with respect to a claim for work injury damages (other than proceedings under section 235A or 235C or under the Crimes Act 1900 with respect to fraud), evidence of a statement made in proceedings before the Commission is not admissible unless the person who made the statement agrees to the evidence being admitted.’ (emphasis added).63. Part 15 Rule 15.2 of the Workers Compensation Commission Rules 2006 (‘the Rules’) is also relevant. This Rule reproduces, in identical terms, Rules 70 of the Workers Compensation Commission Rules 2003. It provides:
‘Principles of procedure
When informing itself on any matter, the Commission is to bear in mind the following principles:(a) evidence should be logical and probative,
(b) evidence should be relevant to the facts in issue and the issues in dispute,(c) evidence based on speculation or unsubstantiated assumptions is unacceptable,
(d) unqualified opinions are unacceptable.’
64. In addition, the conduct of the Commission’s Arbitrators is governed by the “Arbitrators Code of Conduct” (‘the Code of Conduct’) issued by the President, Justice Sheehan, and the Registrar of the Commission, Ms Helen Walker. The Code of Conduct states the “Arbitrators Role” as follows:‘ARBITRATORS ROLE
2. The fundamental role of Arbitrators is to be impartial and independent in carrying out their role of attempting to bring the parties involved in a dispute to a settlement acceptable to all of them and, where this is not achieved, making a determination.’
53. In considering the manner in which an Arbitrator may deal with the evidence before him, DP Roche made the following observations:
‘73. Fourth, section 354(2) expressly permits the Commission to “inform itself on any matter in such manner” it thinks fits. I do not believe this provision gives Arbitrators carte blanch to consider any material that he or she may consider of interest to an issue in dispute. The broad terms of section 354 are constrained by Rule 15.2 set out above. In addition to the requirements that the evidence be logical, probative and relevant to the facts in issue and the issues in dispute, I would add that Arbitrator’s, when seeking to inform themselves on matters, have a duty to comply with the rules of natural justice and procedural fairness as discussed above. That is, they must give all the parties in the case a reasonable opportunity to consider the material. This includes allowing a reasonable time to seek an opinion from their own specialist or do their own research on the particular topic. The power should be used sparingly and cautiously. Usually, but not always, this will mean that the power should only be used when it is considered necessary to enable the particular matter to be determined according to its “substantial merits” (section 354(3)). Arbitrators should always be vigilant not to be, or give the appearance of being, an advocate for one side. In my opinion the Arbitrator in the present case acted fairly and with due regard to the principles of procedural fairness and the legislative provisions under which the Commission operates.’”
108.In the recent Court of Appeal decision in South Western Sydney Area Service v
Edmonds [2007] NSWCA 16 McColl JA said as follows:
“91. Having regard to the nature of the dispute the Arbitrator was assigned to determine and the fact his decision directly affected both parties’ private rights he was, in my view, prima facie obliged to act in accordance with the obligations of procedural fairness and natural justice discussed by Deane J in Australian Broadcasting Tribunal v Bondand Others [1990] HCA 33; (1990) 170 CLR 321 at 365 ff; see also Salemi v MacKellar (No 2) [1977] HCA 26; (1977) 137 CLR 396 at 419 per Gibbs J (as his Honour then was). He was also, accordingly, obliged “to observe the recognized standards of judicial fairness” (Testro Bros Pty Ltd v Tait [1963] HCA 29; (1963) 109 CLR 353 at 370 per Kitto J) and, in particular, that which required him to bring an impartial mind to the exercise of his decision-making function: see Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka [2001] HCA 23; (2001) 206 CLR 128 at [20] per Gleeson CJ, McHugh, Gummow and Hayne JJ; Australian Broadcasting Tribunal v Bondand Others (at 366 – 367) per Deane J.
. . .
94. Nevertheless, although the Commission operates pursuant to a legislative framework which frees it, to some degree, from “constraints otherwise applicable to courts of law, and regarded as inappropriate to tribunals” (Minister for Immigration and Multicultural Affairs v Eshetu at [49]), it is modelled on adversarial proceedings to the extent that issues are primarily defined by what for convenience can be described as “pleadings” (cf the primary judgment at [11]), the parties are entitled to be represented by a legal practitioner or agent and they adduce the evidence upon which they wish to rely before the Arbitrator. The proceedings “take the form of litigation between parties”: see Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka (at [23] per Gleeson CJ, McHugh, Gummow and Hayne JJ). In contrast, in the “pure” European model of the inquisitorial process, the “task of the judge... is to act as a protagonist in the proceedings and it is the judge and prosecuting officials, not the parties, who have the responsibility for seeking out and testing the evidence, often in advance of a formal hearing”: Creyke and Bedford, at 4. Although I note, in this respect, that the Guidelines state “[q]uestions to witnesses, if any, will be by or through the Arbitrator”, it is not clear to what extent this is actually observed. Aluminium Louvres & Ceilings Pty Limited v Xue Qin Zheng, for example, concerned a complaint that an Arbitrator hearing a case in 2003 limited the time for cross-examination by the employer.
95. However, even in the context of a Tribunal whose procedures have been held to be inquisitorial rather than adversarial in nature, plain words would be required to exclude the requirement to act impartially: Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka (at [28] per Gleeson CJ, McHugh, Gummow and Hayne JJ; see also Kirby J (at [66] – [67]). I can find nothing in the WIM Act which excludes the obligation to so act.”
In the instant matter legal practitioners represented both parties. There is no indication that the parties were in any way constrained in the conduct of their cases in the proceedings. Mr Stanton was not prevented from putting his case comprehensively, before the Arbitrator.
Counsel for Mr Stanton addressed the Arbitrator during the arbitration hearing, stating (at page 2 line 22 of Transcript):
“Now, you have Mr Stanton’s statement. Mr Stanton is here. I’ve indicated in conciliation that in making your determination today you will need to make an assessment with respect to his credibility. Mr Stanton is here if you wish to ask him questions so that that might assist your determinative process. I note the employer doesn’t wish to cross-examine Mr Stanton on his statement.”
In my view the Arbitrator acted fairly, impartially and with due regard to the principles of procedural fairness. On the basis of the written evidence before him (noting that Mr Stanton elected not to give oral evidence) and the oral submissions made during the arbitral hearing, it was open to the Arbitrator to come to his own conclusion as to Mr Stanton’s assertions with respect to the claimed injury to his right shoulder, and whether he considered this was work-related. In this case it may be assumed that he did not consider it necessary or appropriate to exercise proactively, “inquisitorial powers”, and that he was satisfied to rely upon his analysis and assessment of the evidence that was before him. It was always open to Mr Stanton to reinforce his own evidence, and it was not for the Arbitrator to act in aid of furthering Mr Stanton’s case, as distinct from giving due consideration to the evidence. The guidance afforded by the NSW Court of Appeal in Edmonds is noted, in connection with the extent to which an Arbitrator ought to venture into the arena. In my view, it was a matter for the Arbitrator to make further inquiries only if he thought it to be “appropriate and as the proper consideration of the matter” required, as provided in section 354 (2) of the 1998 Act:
“(2) The Commission is not bound by the rules of evidence but may inform itself on any matter in such manner as the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits.”
I find that no error of fact, law or discretion is demonstrated. Accordingly, this ground of appeal is not made out.
OTHER MATTERS
The Council raises the issue, (in addressing the second ground of appeal), that the decision of the Arbitrator should be varied so that the matter is determined with an award in its favour, generally. It notes that the award was made in respect of claimed injury to Mr Stanton’s right shoulder. The medical report relied upon was Mr Stanton’s medico-legal expert Dr Marnie dated 4 October 2006, who assessed Mr Stanton as having a whole person impairment of the right upper extremity, but only in relation to the right shoulder.
The Council submits that as the Arbitrator made an award in its favour in respect of the right shoulder, there is nothing to be referred to an Approved Medical Specialist (‘AMS’). Mr Stanton never claimed any whole person impairment to any part of the right upper extremity, apart from the right shoulder. Accordingly, it states that there is no continuing dispute within the meaning of the Act.
The Council further states that it wrote to the Registrar under cover of letter dated 24 December 2007. This was before Mr Stanton’s ‘Application to Against Decision of Arbitrator’ was filed. It sought a reconsideration of the Arbitrator’s decision pursuant to the provisions of the workers compensation legislation, including section 350 of the 1998 Act, only insofar as it relates to the referral by the Commission for an AMS in respect of the right upper extremity. The Commission file reveals that the Arbitrator was absent on leave at that time and unable to respond to the Council’s request. On 11 January 2008, upon receipt of Mr Stanton’s Appeal application, the Commission cancelled the AMS appointment pending a determination of the appeal against the Arbitrator’s decision.
The relevant orders referred to in the Arbitrator decision, dated 13 December 2007, are as follows:
“1.That there is an award to the Respondent for the Applicant’s claim for compensation for injury to his right shoulder as a consequence of a workplace incident on 9 April 2002.
2.That the dispute concerning permanent impairment of the Applicant’s right upper extremity (excluding any loss of the right shoulder) shall be referred for assessment by an Approved Medical Specialist appointed by the Registrar of the Commission.
3.That the date of injury is 9 April 2004 [sic - 2002] and the assessment is to be undertaken under the whole person impairment regime.
4.The Application to Resolve a Dispute and attachments, the Reply and attachments and the Application to Admit Late Documents lodged by the Respondent dated 18 October 2007 and attachments be disclosed to the Approved Medical Specialist.”
The Arbitrator in coming to his decision, made the following comments:
“35. Mr Stanton has made a claim for compensation pursuant to s66 of the Workers Compensation Act 1987. Mr Stanton’s compensation claim is that he is entitled to be paid $6,250.00 lump sum for 5% whole person impairment for the right upper extremity resulting form workplace injury suffered, as described, on 9 April 2002. Mr Stanton relies upon the opinion of his medico-legal consultant, Dr P Marnie. In his report of 4 October 2006 Dr Marnie assessed Mr Stanton as having 8% upper extremity loss and using Table 16.3 translated that 8% loss to the upper extremity to 5% whole person impairment. The forgoing impairment was demonstrated in the table contained in the 4 October 2006 report (page 4) and utilised clinical signs of movement of the shoulders.
36. The Respondent, for reasons outlined above, denies liability for the claimed right shoulder injury but does not dispute liability for an elbow injury to the right arm as a consequence of the 9 April 2002 incident.
37. The evidence, which has been outlined above indicates that the Respondent has some legitimate concerns, which have been adequately outlined in their Notices dated 1 February and 18 July 2007. The problem with Mr Stanton’s claim is that there appears to be no contemporaneous evidence available to effectively and confidently assert that the incident on 9 April 2002 also caused injury to his right shoulder. There is no doubt, on the evidence, that Mr Stanton’s right elbow was affected in the incident but no evidence of injury to the right shoulder.
…
44. I therefore find in favour of the Respondent in relation to Mr Stanton’s claim for injury to his right shoulder, which he asserts resulted from workplace incident of 9 April 2002. Notwithstanding Mr Stanton lost the dispute about his right shoulder he has not lost his claim for compensation for his right upper extremity (without the shoulder).
45. There still remains the disposition of the outstanding question of the degree of loss of Mr Stanton’s right upper extremity. I intend to send that aspect off to an Approved Medial Specialist that will be chosen by the Registrar. The Approved Medical Specialist will be asked to assess the whole person loss of Mr Stanton’s right upper extremity due to injury suffered on 9 April 2002 but that assessment not to take into account any loss that may be present in Mr Stanton’s right shoulder. Therefore the description should be right upper extremity to the level of the shoulder but not to include the shoulder.”
In his ‘Application to Resolve a Dispute’ filed on 25 July 2007, Mr Stanton made a claim for $6,250 for permanent impairment, including pain and suffering, for his ‘right upper extremity’ due to the injury suffered on 9 July 2007, and relied not only on the reports of Dr Marnie dated 4 October 2006 but also on his supplementary report dated 18 June 2007. (The upper extremities are addressed in AMA 5, Chapter 6, at pages 433-521, and are not confined to the shoulder).
In its section 74 Notice to Mr Stanton’s solicitors dated 1 February 2007 the Council notes the following:
“As outlined above there has never been a claim lodged for injury to your Right Shoulder and therefore any liability is denied. Council does accept liability for injury to your right elbow.
The decision is based upon medical certificates issued by your nominated treating doctor, your workers compensation claim form, incident report form and Dr Harbison’s reports of 17 May 2006 and 23 November 2006.”
In its review Notice dated 18 July 2007, the Council, in denying liability in respect of the alleged injury to Mr Stanton’s right shoulder, notes:
“1. We confirm that Council has not received a compensation claim form from you in relation to any alleged right shoulder injury. In this regard, we note that the only injury relating to the present claim is in respect of an alleged elbow injury occurring on 9 April 2002.”
The evidence discussed above supports the Arbitrator’s decision to refer Mr Stanton to an AMS for assessment of right upper extremity (excluding any loss regarding the right shoulder itself). Mr Stanton made a claim for whole person impairment to his right upper extremity and not just his right shoulder as submitted by the Council. It seems to me that the Arbitrator, though finding against Mr Stanton’s claim of workplace injury to his right shoulder, was entitled to refer Mr Stanton to an AMS for assessment of right upper extremity (excluding any loss regarding the right shoulder itself), on the basis of the evidence before him as well as the Council’s acceptance of liability of injury to the right elbow due to the incident on 9 April 2002.
In any event, I am not inclined to interfere with the Arbitrator’s order in the absence of submissions from Mr Stanton on the point. It is open to the Council to renew its application to the Arbitrator for a reconsideration or alternatively, for the parties to attempt to settle what remains of the matter, should they wish to do so, now that this appeal has been determined.
DECISION
The appeal is unsuccessful. The decision of the Arbitrator, dated 13 December 2007, is confirmed.
COSTS
I make no order as to the costs of this appeal.
Gary Byron
Deputy President
16 June 2008
I MARIE JOHNS, 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
2
30
0