State Forests of NSW v Hancock
[2007] NSWWCCPD 3
•3 January 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:State Forests of NSW v Hancock [2007] NSWWCCPD 3
APPELLANT: State Forests of NSW
RESPONDENT: Mark Hancock
INSURER:Self-Insured
FILE NUMBER: WCC10406-06
DATE OF ARBITRATOR’S DECISION: 30 October 2006
DATE OF APPEAL DECISION: 3 January 2007
SUBJECT MATTER OF DECISION: Absence of transcript; Constructive failure to give reasons
PRESIDENTIAL MEMBER: Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION: Appellant: Leigh Virtue & Associates
Respondent: Whitelaw McDonald
ORDERS MADE ON APPEAL: The Arbitrator’s decision dated 30 October 2006 is revoked and the matter is remitted to a different Arbitrator for determination of all issues that remain in dispute.
No order as to costs of the appeal.
Costs of the first Arbitration are to follow the event of the second Arbitration.
BACKGROUND TO THE APPEAL
On 31 October 2006 State Forests of NSW (‘the Appellant Employer/State Forests’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 30 October 2006.
The Respondent to the Appeal is Mark Hancock (‘the Respondent Worker/Mr Hancock’).
Mr Hancock started work for State Forests in 1999 as a motor mechanic in its Toronto West workshop. On Friday 3 January 2002 he was unloading his toolbox from the tray of a work vehicle when he felt a sharp pain across his low back. The incident was reported in the injury book and he attended on a local general practitioner, Dr Lovett of Toronto Medical Centre.
On his return to work on the following Monday he avoided lifting but his pain continued. He consulted his regular general practitioner, Dr Hamidi, on the Wednesday of that week and was put off work with an appropriate Workcover certificate. Rehabilitation was arranged and he returned to work on clerical duties on 22 April 2002. He was unable to continue work beyond November 2002.
Mr Hancock’s initial claim for compensation was accepted and weekly compensation commenced with payments continuing until they were declined by notice in writing under section 54 of the Workers Compensation Act 1987 (‘the 1987 Act’) dated 27 October 2004. Payments continued under the Act until 12 December 2004.
Two Applications to Resolve a Dispute (WCC19111-04 and 13068-04) were filed in the Commission but were discontinued on 11 November 2005.
A further Application to Resolve a Dispute (‘the Application’) was registered in the Commission on 10 July 2006 in which Mr Hancock claimed weekly compensation from 12 December 2004 to date and continuing together with lump sum compensation as a result of the 3 January 2002 injury. It also claimed $5,527.89 in respect of hospital and medical expenses under section 60 of the 1987 Act.
By its Reply filed on 31 July 2006 the Appellant Employer’s solicitor stated the following under ‘Part 3 Dispute Details’:
“The Respondent is not yet able to identify with precision the issues in dispute because insufficient time is allowed for the filing of the Reply and investigations are continuing. At the present time the issues which remain in dispute are duly made claim and compliance with the legislation generally, injury, causation, substantial contributing factor (section 9A), incapacity, extent of impairment and quantum of entitlements generally, whether medical and treatment expenses are reasonably necessary and other issues to be advised.”
The above Reply was totally inappropriate in a case where the initial claim was accepted and voluntary compensation paid for over two years. The claim was denied on the basis of medical evidence from Dr Edwards that suggested that Mr Hancock’s condition was no longer work related. It is most unlikely that the Appellant Employer’s solicitor was not aware of that fact. The purpose of the Reply is to help the Applicant and the Arbitrator know the real issues in the case. To merely file what is obviously a standard pro forma Reply in such circumstances is unacceptable. An employer’s Reply should always properly identify the real issues in the case. A failure to do so may well result in an adverse costs order being made against an employer where it has succeeded on some issues but failed on others that have been put in issue in the Reply when no real dispute exists.
The matter was listed for teleconference on 18 September 2006 when it could not be resolved and was listed for a conciliation and arbitration on 26 September 2006 when it proceeded to Arbitration. The case could not be concluded on that day and was listed for further hearing on 25 October 2006 when submissions were heard and the Arbitrator delivered an ex tempore decision in favour of Mr Hancock.
The Appellant Employer seeks leave to appeal that decision.
LEAVE TO APPEAL
Monetary Threshold
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
The quantum in issue on the appeal is in excess of $5,000.00 and therefore the threshold in section 352(2)(a) of the 1998 Act is satisfied.
The whole of the quantum of compensation awarded is in issue on appeal and, therefore, the threshold in section 352(2)(b) is also satisfied.
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
I grant leave to appeal.
PRELIMINARY MATTERS
Section 354(6) of the 1998 Act provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
The Appellant Employer’s solicitor seeks an oral hearing of the appeal on the grounds that no transcript of the Arbitration proceedings is available and the issues involved are complex. The unavailability of transcript cannot be overcome by holding an oral hearing for the appeal. An appeal is not a second hearing (Barbour v BHP Steel Pty Limited [2004] NSWWCCPD 42) but is normally conducted on the record of the proceedings before the Arbitrator. The absence of a transcript may often prevent a review under section 352 being undertaken but that defect does not mean that an oral hearing is required.
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the Respondent Worker that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 30 October 2006, records the Arbitrator’s orders as follows:
“1.That the proceedings in respect of the claim for compensation for section 60 expenses in respect of a recliner chair be discontinued.
2.That the Respondent pay the Applicant’s section 60 expenses in respect of the provision of an orthopaedic mattress in the sum of $1,339.
3.That the Respondent pay the Applicant’s section 60 expenses on production of accounts or receipts.
4.That the Respondent pay the Applicant weekly benefits under section 37 of the Workers Compensation Act 1987 from 12 December 2004 to date and continuing at the applicable statutory rate as varied from time to time for a worker with 3 dependent children.
5.That in respect of the claim for lump sum compensation the dispute be referred to an Approved Medical Specialist for assessment of the degree of permanent impairment, if any, resulting from the injury on 3 January 2002 in respect of the thoracic and lumbar spine, loss of sexual function and bladder impairment.
6.That the Respondent pay the Applicant’s costs as agreed or assessed.
7.That the matter be certified as complex on the basis it involved complex issues of fact and law.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a)failing to satisfy the requirements of section 355(1) of the 1998 Act in that she failed to use her best endeavours to bring the parties to a settlement;
(b)exercising her discretion to admit into evidence certain late documents filed on behalf of the Respondent Worker;
(c)failing to have any or any proper regard to the documents admitted into evidence from the Centre for Wellbeing Pty Ltd;
(d)failing to give any or any adequate reasons for disregarding the records from the Centre for Wellbeing Pty Ltd;
(e)considering that the Respondent Worker had adduced sufficient evidence to discharge the onus of proof on him regarding the issues of compliance with the requirements of sections 254, 255, 260, 261 281 and 282 of the 1998 Act;
(f)failing to have regard to the authorities of Kurrajong Holdings t/as The Gardeners Inn v Carette [2004] NSWWCCPD 8 and Cottons Glass & Aluminium Pty Ltd v Handsaker [2006] NSWWCCPD 205;
(g)in referring the purported claim for lump sum compensation to an Approved Medical Specialist (‘AMS’);
(h)failing to determine the matters to be referred to the AMS, and
(i)finding the Respondent Worker to be totally incapacitated for work where such a finding was against the overwhelming weight of the evidence.
In addition, there is an issue as to the appropriate course to follow in light of the fact that there is no recording or transcript of the Arbitration hearing.
REVIEW
The nature of a review and the role and function of a Presidential member on appeal has been considered in many cases in the Commission. In The King Island Company Limited v Deery [2005] NSWWCCPD 1 it was held at [19]:
“19. A Presidential Member on appeal has a specific and limited role in the review of a decision of an Arbitrator. The 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). The powers of the Presidential Member to revoke the decision pursuant to section 352(7) of the 1998 Act and to substitute a new decision in its place, are exercisable only where it is demonstrated that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172). Alternatively, the Presidential Member may remit the matter back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions made.”
Before an Arbitrator’s decision will be revoked on review it must by demonstrated that it contains or has resulted from an error of fact, law or discretion. The error must be such that, but for it, a different decision should have been made (see Snow Confectionary Pty Ltd v Askin [2004] NSWWCCPD 79; Section 294 of the 1998 Act; YG & GG v Minister for Community Services [2002] NSWCA 247; Absolon v NSW TAFE [1999] NSWCA 311).
I intend to apply the above principles in the matter before me.
DISCUSSION AND FINDINGS
As noted above there is no record or transcript of the proceedings before the Arbitrator. The Commission in several cases has considered the absence of a transcript and its consequences for the review process. In Thompson v Expamet Pty Ltd t/as T & G Sheetmetal Services [2005] NSWWCCPD 14, as in the matter before me, the Arbitrator had given ex tempore reasons, which were not recorded. In dealing with the approach to be taken on appeal in such circumstances, Deputy President Fleming said at [11]:
“Where reasons are given ex tempore, recorded and made available to the parties, Section 294(2) and Rule 73 will be complied with, subject to the reasons being adequate. However, where there is no record of the reasons, and therefore nothing to be incorporated, by reference, in the ‘Certificate of Determination’, then the ‘Certificate of Determination’, issued under Section 294(2) of the 1998 Act, does not comply with Rule 73. There is, in effect, no statement as referred to in Rule 73. Failure to provide adequate reasons for decision is not only a breach of the Arbitrator’s statutory obligations; it is an error of law (Sydney Water Corporation Limited v Aqua Clear Technology P/L Supreme Court of NSW, Rolfe J, (P/L 55047/96) 17 December 1996; Dennis Willcox Pty Limited v Federal Commissioner of Taxation (1988) 79 ALR 267).
Where reasons are given ex tempore and there is a failure to make any record of those reasons, the reality is that the parties do not have a record of the reasons, the Commission does not have a record of the reasons, and there is no record of the reasons for the purpose of review by a Presidential member. This amounts to a constructive failure to give reasons, as required by Section 294 and Rule 73. It matters not whether this failure was occasioned by human error in the operation of the sound recording equipment, administrative failure or technical failure. Ultimately it must be said that the Arbitrator erred in failing to provide reasons for decision.”
The above reference to Rule 73 of the Workers Compensation Commission Rules 2003 should now be read as a reference to Part 15 Rule 15.6 of the Workers Compensation Commission Rules 2006 which is in the same terms as the 2003 rule.
The failure to have a record of the Arbitration proceedings was also considered by the Court of Appeal in Aluminium Louvres & Ceilings Pty Limited v Zheng [2006] NSWCA 34 where Bryson JA noted at [32] that the absence of a sounding recording or transcript was a serious shortcoming that “could fairly readily lead a Presidential member to require a rehearing; though that result would not be automatic”.
In the present case exactly the same problem arises. As there is no recording of the evidence, the submissions, or of the Arbitrator’s reasons for decision, it is impossible for me to conduct a review as required under section 352 of the 1998 Act. There is nothing to review. This leads inevitably to the most regrettable situation that the Arbitrator’s decision must be revoked because of a constructive failure to give reasons and the matter must be remitted to a different Arbitrator for a rehearing of all issues in dispute.
DECISION
The Arbitrator’s decision dated 30 October 2006 is revoked and the matter is remitted to a different Arbitrator for determination of all issues that remain in dispute.
COSTS
No order as to costs of the appeal.
Costs of the first Arbitration are to follow the event of the second Arbitration.
Bill Roche
Deputy President
3 January 2007
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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