Star City Pty Limited v Jerusalem
[2009] NSWWCCPD 132
•20 October 2009
| WORKERS COMPENSATION COMMISSION | ||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||||
| CITATION: | Star City Pty Limited v Jerusalem [2009] NSWWCCPD 132 | |||||
| APPELLANT: | Star City Pty Limited | |||||
| RESPONDENT: | Jose Jerusalem | |||||
| INSURER: | Self insurer | |||||
| FILE NUMBER: | A1-1039/09 | |||||
| ARBITRATOR: | Ms R Gurr | |||||
| DATE OF ARBITRATOR’S DECISION: | 19 June 2009 | |||||
| DATE OF APPEAL DECISION: | 20 October 2009 | |||||
| SUBJECT MATTER OF DECISION: | Incomplete transcript of arbitral proceedings; need for remitter. | |||||
| PRESIDENTIAL MEMBER: | Deputy President Kevin O’Grady | |||||
| HEARING: | On the papers | |||||
| REPRESENTATION: | Appellant: | George Mallos Lawyer | ||||
| Respondent: | Parramatta City Legal | |||||
| ORDERS MADE ON APPEAL: | The decision of the Arbitrator dated 19 June 2009 is revoked and the matter is remitted to another arbitrator for determination afresh. | |||||
| Costs of both the original conciliation/ arbitration hearing and this appeal to follow the final costs order following remitter to and hearing by another arbitrator. | ||||||
BACKGROUND TO THE APPEAL
Mr Jose Jerusalem (‘the worker’) commenced employment as a pastry chef with Star City Pty Limited (‘the appellant’) in 1996. The worker, who is now 66 years of age, performed that work on a full time basis until late 2005 at which time he ceased work and sought treatment with respect to a medical condition unrelated to his work. It seems that he remained absent from work by reason of that illness and the need for surgical treatment until approximately July 2007. The evidence is somewhat unclear but it appears that the worker resumed his duties at that time and again went off work in September 2007 at which time he underwent medical treatment in respect of a hernia condition. There is no suggestion in the evidence that the hernia was work related.
The evidence suggests that following his convalescence from treatment concerning the hernia the worker travelled to the Philippines, his place of birth, for a two week visit. He subsequently, in November of 2007 resumed work with the appellant and, at his request, was given restricted duties.
The worker continued performing those restricted duties and it is alleged that in April or May 2008 he first experienced painful symptoms in both shoulders.
In June 2008 the worker took holidays for one month following which he returned to work. It was at that time he first consulted his general practitioner Dr Haidary concerning his painful shoulders.
The worker ceased work on 8 July 2008 at which time he was certified by Dr Haidary as being fit for suitable duties. That practitioner issued a WorkCover NSW medical certificate on 5 July 2008 stating that a work injury had occurred to both right and left shoulders and that the worker was capable of lifting weights no greater than five kilos and was to avoid pulling and pushing.
The worker lodged a claim in respect of workers compensation benefits on 19 July 2008. Liability in respect of that claim was ultimately denied. The dispute between the parties was referred to the Workers Compensation Commission (‘the Commission’) following the filing of an Application to Resolve a Dispute on 11 February 2009. That application sought orders in respect of entitlement to lump sums and payment of medical expenses.
That application came before an Arbitrator for conciliation/arbitration on 4 May 2009. Among the issues in dispute between the parties was the nature of the worker’s pre-injury duties. The Arbitrator directed that a view of the appellant’s kitchen premises be conducted as well as a demonstration of certain aspects of the worker’s pre-injury duties. That took place by arrangement on the day of hearing. The Arbitrator reserved her decision and a Certificate of Determination was issued on 19 June 2009.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 19 June 2009 records the Arbitrator’s orders as follows:
“The Commission determines:
1. The Applicant suffered a work related injury to both shoulders in his employment with the Respondent occurring on or about 30th May 2008.
2. There is to be an Award for the Applicant in relation to s.60 expenses arising from the injury.
3. The matter should be referred to an AMS for assessment of whole person permanent impairment arising from the injuries to the right and left upper extremities.
4. The Respondent to pay the Applicant’s costs as agreed or assessed.
A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”
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.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions by the parties that the appeals can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
LEAVE
There is no dispute between the parties concerning threshold requirements as prescribed by section 352 of the 1998 Act.
The appeals having been lodged within the time prescribed by that section and the fact that the monetary threshold prescribed by that section has been met, together with a consideration of the arguments raised on appeal, lead me to conclude that it is appropriate that leave be granted to proceed with the appeals and I so order.
ISSUES IN DISPUTE
The grounds of appeal challenge the Arbitrator’s findings of fact concerning the occurrence of injury as alleged by the worker and challenge her finding that the worker’s employment was a substantial contributing factor to that injury.
The submissions which accompany the application challenge the probative value of the expert medical evidence which was before the Arbitrator and particular reliance is placed upon those principles which are stated by the Court of Appeal concerning the admission and evaluation of expert evidence as stated in Makita (Australia) Pty Ltd v Sprowles (2001) 25 NSWCCR 218 (‘Makita’).
PRELIMINARY MATTERS
The hearing of this matter was, by arrangement, conducted at the premises of the appellant. That course was adopted given the earlier agreement between the parties that a view and demonstration should take place at the kitchen of the appellant’s premises. Those proceedings were recorded and a transcript has been produced and provided to each of the parties (‘transcript’). Following receipt of a copy of that transcript the appellant’s solicitor wrote to the Commission advising that there were “deficiencies” to be found in the document which were described as follows:
“(a) there are large slabs of the re-examination missing from page 11;
(b) at page 13 there should been [sic] included the description provided by Mr Judd on the record of that which had been observed in the worker’s workplace, a description which all parties agreed to.”
Enquiries conducted by the Commission failed to confirm that any part of re-examination of the worker by his solicitor had not been recorded. Omitted from the recording was, as pointed out by the appellant’s solicitor, a description of those matters observed during conduct of the view and demonstration.
Following those enquiries the Commission advised each of the parties that the incomplete state of the transcript had been confirmed. The parties were invited to make any further written submissions in relation to the future conduct of the appeal given the circumstance that there is an incomplete transcript available.
In response to that invitation the appellant’s solicitors provided supplementary submissions dated 14 September 2009. The following matters were raised:
“1. It is asserted by the appellant that there are large slabs of the transcript which are missing. From page 13 onwards there should be a detailed description of the work that the respondent was required to do. The description of the work would have gone for a number of pages and the description was agreed to by the respondent’s representative together with the Arbitrator.
2.It is asserted by the appellant that the work described was light and well within the limited physical capabilities of the respondent from the time that he recommenced work in November 2007.
3.It is asserted by the appellant that the appellant is denied natural justice as a result of the defective transcript as the work demonstrated was critical to the appellant’s case and it was the whole purpose of the Arbitrator going to the kitchens at the appellant’s premises. The failure of the Arbitrator to identify the various duties is fundamental to the appellant’s case.”
The appellant’s supplementary submissions proceed to deal with detail to be found in the transcript however no submission is expressly put concerning the future conduct of this appeal having regard to the absence of a complete transcript.
The worker has provided further submissions dated 24 September 2009. Those submissions do address the future conduct of this appeal. The worker asserts that the appeal should be determined having regard to the material presently before the Commission notwithstanding the incomplete state of the transcript. In support of that proposition the following matters were put in argument:
“3. The Respondent submits that the matter should be determined based on the material presently available. This is in keeping with the objectives of the Commission to provide a fair, cost effective and timely service as set out in s. 367 of the 1998 Act. The Workers Compensation Commission is a more administrative, efficient and paper driven jurisdiction. The Respondent contends that there is sufficient material presently available to determine the appeal.
4. The Respondent does not accept that the appellant has been denied natural justice as a result of the incomplete transcript. The Arbitrator made first hand observations of the Respondent’s working conditions on the date of the inspection and came to her decision with those observations in mind.
5. The Arbitrator, so far as relevant, referred to the observations she made in the kitchen throughout her decision. The detailed description of the work that the Respondent was required to do, was not adverse to the Respondent’s case. There were numerous observations made which would have assisted the Respondent’s case, had they been transcribed. It was observed in the kitchen that the Respondent was required to raise his arms above shoulder height to perform some of his work duties and that his bench work required him to outstretch his arms up to a 45° angle from his shoulders (contrary to Dr Hitchen’s opinion).”
It is clear that, following the view and demonstration conducted at the appellant’s kitchen, a number of significant concessions were made by the worker concerning the physical requirements of his pre-injury duties. It is correct, as raised in the worker’s submissions, that the Arbitrator made frequent reference to the nature of the worker’s duties in the course of her Statement of Reasons (‘reasons’). Of particular significance are those matters recorded between [26] and [36] where the Arbitrator summarises those matters which were observed and agreed during the course of the view and demonstration.
The worker is again correct in his submission that the Arbitrator’s description of the work “was not adverse to the [appellant’s] case.” Notwithstanding the existence of this summary the appellant asserts that the nature of the worker’s duties were “critical” to its case and it is suggested, though not expressly stated, that the absence of counsel’s description of those matters, as agreed between the parties, is not cured by the matters recorded as stated by the Arbitrator. As above noted the appellant asserts failure on the part of the Arbitrator “to identify the various duties”.
REVIEW IN ABSENCE OF COMPLETE TRANSCRIPT
It is probable that some part of the worker’s evidence given during the course of re-examination by his solicitor has not been recorded hence does not appear in the transcript. The absence of a record of that evidence gives rise to no complaint put on behalf of the worker. The appellant asserts that a substantial amount of evidence has been omitted concerning re-examination of the worker however no argument is advanced suggesting prejudice or other disadvantage by reason of the omission of that evidence. Had that been the extent of the deficiency of the transcript it is arguable, in my view, that the present review may proceed and that justice between the parties could be attained notwithstanding the state of the record.
However the omission from the transcript of counsel’s summary of those matters observed and agreed during the course of the view and demonstration is of a different character. The manner in which the appellant conducted its defence of the claim involved argument concerning the relevance of the precise physical nature of the worker’s duties to the issue of “injury” as defined in section 4 of the Workers Compensation Act 1987 Act (‘the 1987 Act’) as well as the proper application of the provisions of section 9A of that Act.
Those matters demonstrated and observed in the appellant’s kitchen on the day of hearing led to an agreement between the parties concerning the nature of the subject duties which, in important respects, contrasted with evidence relied upon by the worker including his own evidence and the opinion of Dr Ellis who had been qualified to provide expert medical opinion in support of his claim. It is clear that the assumptions made by Dr Ellis in his report of 30 October 2008 concerning the nature of the worker’s pre-injury duties were, in certain respects, not confirmed by those matters observed and agreed to following the view and demonstration. The question arises as to whether the absence of counsel’s summary gives rise to the need for a re-hearing or whether, notwithstanding this absence, this review may proceed.
The Arbitrator in the course of her reasons has, as submitted by the worker, made numerous references to the nature of the pre-injury duties. Those reasons include the expression of the Arbitrator’s view that the description of the subject duties as recorded by the medical witnesses “…was not accurate.” It was stated by the Arbitrator at [86]:
“Neither Dr Ellis nor Dr Hitchen had entirely accurate information in relation to the work activities. The Respondent provided incomplete information as noted above. Mr Jerusalem exaggerated both the weights to be lifted and the amount of “hand hanging.” However, I am satisfied that there was sufficient repetitive arm and shoulder related activity over along [sic] period likely to have contributed significantly to his shoulder injury in accord with Dr Ellis’ opinion.”
The thrust of the appellant’s complaint made on this appeal is that the conclusion expressed by the Arbitrator in the last sentence of the above quotation was erroneous and that the error has arisen by reason of her evaluation of the evidence as a whole and, in particular, the evidence concerning the nature of pre-injury duties. In my view the absence of the record of counsel’s summary of those duties gives rise to the difficulties as stated by Bryson JA (with whom Handley JA and Bell J agreed) in Aluminium Louvres and Ceilings Pty Limited v Xue Qin Zheng (2006) 4 DDCR 358 at [32] (‘Zheng’):
“This is a serious shortcoming, because it greatly impedes the right of appeal and the due exercise of powers of the Presidential member under s.352; and also impedes the conduct of a further appeal under s.353. According to circumstances, the absence of a sound recording could fairly readily lead a Presidential member to a decision to require a rehearing; although that result would not be automatic.”
Having regard to all circumstances I have concluded that the absence of a complete record of the proceedings before the Arbitrator so impedes the conduct of this appeal that a just determination of the dispute between the parties cannot be attained.
Whilst the Arbitrator’s reasons include the apparently detailed summary of the subject work duties, the Commission in my view, is unable to rely on that summary as a substitute for those matters omitted from the transcript when dealing with the parties’ submissions, in particular those submissions concerning the appropriate weight to be attached to the evidence of the various medical witnesses.
CONCLUSION
Having regard to the matters outlined above I conclude that the appropriate order on this appeal should require revocation of the Arbitrator’s orders and that the matter be remitted for determination by another Arbitrator. This course is to be regretted however the demands of justice require a re-determination on remitter.
DECISION
The decision of the Arbitrator dated 19 June 2009 is revoked and the matter is remitted to another arbitrator for determination afresh.
COSTS
The need for a re-hearing has been occasioned by an apparent technical fault during the recording process and all concerned remain blameless. I have had regard to the broad discretion as to costs which is granted by the provisions of section 341 of the 1998 Act and conclude that the appropriate order with respect to costs is that costs of both the original conciliation/arbitration hearing and this appeal should follow the final costs order following remitter to and hearing by another arbitrator.
Kevin O’Grady
Deputy President
20 October 2009
I, MARIE JOHNS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O’GRADY, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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