State Forests of NSW v Whittaker
[2006] NSWWCCPD 61
•13 April 2006
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:State Forests of NSW v Whittaker [2006] NSWWCCPD 61
APPELLANT: State Forests of NSW
RESPONDENT: Ian Whittaker
INSURER:State Forests of NSW
FILE NUMBER: WCC 744-05
DATE OF ARBITRATOR’S DECISION: 24 June 2005
DATE OF APPEAL DECISION: 13 April 2006
SUBJECT MATTER OF DECISION: Adequacy of reasons, treatment of evidence
PRESIDENTIAL MEMBER: Acting Deputy President Robin Handley
HEARING:On the papers
REPRESENTATION: Appellant: Leigh Virtue & Associates, Solicitors
Respondent: Abbott Pardy & Jenkins, Solicitors
ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 24 June 2005 is revoked and the matter is remitted to the Registrar for referral to a different arbitrator for rehearing.
There is no order as to the costs of this appeal.
BACKGROUND TO THE APPEAL
On 21 July 2005, State Forests of NSW sought leave in the Workers Compensation Commission (‘the Commission’) to bring an appeal against the decision of an arbitrator dated 24 June 2005. The Respondent to the appeal is Ian Whittaker.
Mr Whittaker was born on 30 August 1947 and is aged 58. He is married with three children aged 8, 6 and 4 years, and lives in Inverell. Mr Whittaker was employed as a forestry worker (latterly as a Field Supervisor) with State Forests from 13 March 1972 and claims to have suffered an injury to his right shoulder, right arm and neck on 15 to 16 April 1998 in the course of digging holes with a crow bar, and between then and 20 February 2004, as a result of the nature and conditions of his employment. Mr Whittaker’s employment was terminated on 20 February 2004 on the ground that there were no suitable duties available to him. State Forests ceased payment of weekly compensation from 4 October 2004 and, on 11 November 2004, Mr Whittaker’s solicitors lodged a claim for weekly compensation from 4 October 2004 to date and continuing at the rate of $750.00 per week.
On 18 January 2005, the Commission registered Mr Whittaker’s ‘Application to Resolve a Dispute’. State Forests filed its ‘Reply’ on 7 February 2005. The Arbitrator conducted a teleconference with the parties on 29 March 2005 and, on 23 May 2005, conciliation having proved unsuccessful, he conducted an arbitration hearing. On 24 June 2005, he made the decision set out below.
THE DECISION UNDER REVIEW
The Certificate of Determination, dated 24 June 2005, records the Arbitrator’s orders as follows:
“1. That the Respondent pay the Applicant weekly compensation at the rate of $728.00 from 21 February 2004 to 22 August 2004 and thereafter at the statutory rate for an Applicant with three dependants under ss 36 and 37 of the Workers Compensation Act 1987.
2. That the Respondent pay the Applicant’s costs as agreed or assessed.”
In the Statement of Reasons for his decision, the Arbitrator said he found Mr Whittaker totally believable and accepted that he reported the injury in April 1998, despite there apparently being no written record of this. The Arbitrator also accepted that Mr Whittaker “is unable to find work in his immediate area and would take the opportunity to work eagerly if it was available and within his present limitations”. The Arbitrator found that Mr Whittaker’s injury “was an aggravation of a degenerative condition substantially the result of the nature and conditions of his employment”. He found that Mr Whittaker’s probable weekly earnings, but for the injury, had he continued to be employed in the same or some comparable employment, were $728.00. He also found that although Mr Whittaker now has some capacity for work, “due to the conditions prevailing in the area where he resides”, he is unable to work because, although he has sought work appropriately, “there are no suitable employment opportunities for him”.
ISSUES IN DISPUTE
The grounds of appeal identified by State Forests include that the Arbitrator gave inadequate reasons for his decision, made findings of fact for which there was no evidence, made errors in his treatment of the evidence, made errors in identifying and addressing the relevant issues in dispute, and denied State Forests procedural fairness in the way he conducted the proceedings and by failing to have proper regard to State Forests’ evidence and submissions. The grounds of appeal and the parties’ submissions are discussed more fully below.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) states:
“(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.”
I have had regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions of the parties on the appeal. State Forests submits the appeal involves complex issues and, because further evidence is relied on, the matter requires an oral hearing. Mr Whittaker’s solicitors submit the appeal is neither difficult nor complex and can be determined on the papers. Having considered these submissions and the relevant 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
Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act. The appeal was lodged within 28 days of the issue of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act. With regard to section 352(2), I accept that the amount of weekly compensation at issue exceeds $5,000 and represents 100% of the amount claimed. I am therefore satisfied that the section 352 threshold has been met, and I grant leave to appeal.
FRESH EVIDENCE
Fresh evidence on appeal is governed by section 352(6) of the 1998 Act, which provides as follows:
“(6) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.”
Practice Direction No 6 sets out the process for seeking leave of the Commission to give ‘new evidence’ on appeal. It provides as follows:
“New Evidence
Where a party seeks leave to give new evidence in relation to the decision appealed against, that party must serve a copy of the new evidence on the other parties to the dispute when serving the Application or Opposition.
In general, the Commission will allow new evidence to be introduced only where it can be demonstrated that the new evidence could not reasonably have been obtained by the party and tendered in proceedings before the Arbitrator and that failure to allow the new evidence would cause a substantial injustice in the circumstances of the individual case.”
Practice Direction No 6 also provides that if new evidence is sought to be relied upon, the Application or Opposition to the Appeal must contain:
“ -a schedule of the new evidence,
-a copy of the new evidence,
-a brief outline of the new evidence and the reasons why it was not given in the
proceedings before the Arbitrator, and
-submissions why the new evidence should be admitted.”
State Forests seeks leave to admit as fresh evidence documents produced under direction by Inverell Hospital in related proceedings - evidence it states was not available at the time of the current proceedings. State Forests submits the new evidence should be admitted because “it is relevant to the issues in dispute and confirms what the Appellant says regarding there being no injury of April 1998 and no report of injury at that time”. The documents appear to be records held by the Hospital on behalf of Dr R Findlay, Mr Whittaker’s former general practitioner, and comprise clinical notes relating to the period January 1997 to March 2001, together with some reports relating to an epididymal cyst and elevated intraocular tension. The reports are of no relevance to the matter in dispute and the clinical records only appear to be relevant to the extent that there is no record of Mr Whittaker consulting Dr Findlay about any problem between 25 February 1998 and 22 June 1998. There are then a number of entries in June and September 1998 concerning the degenerative disease affecting Mr Whittaker’s cervical spine.
Mr Whittaker’s solicitors oppose the admission of this fresh evidence, firstly, on the ground that the documents could have been obtained before the hearing and, if they had been, could have been addressed in evidence. Therefore, to admit the documents at this stage could be prejudicial to Mr Whittaker. Secondly, the documents merely show a record of Mr Whittaker’s attending Dr Findlay around the relevant time. The fact that they do not record an attendance in April 1998 does not establish there was no injury. This is especially so in the light of the Arbitrator’s findings on credit and Mr Whittaker’s evidence that, before the injury, he had applied for recreation leave for the period 17 to 24 April 1998. Thus, it was only when he returned from leave that his symptoms worsened (as detailed in the history recorded in the report by Dr Alan Searle, Orthopaedic Surgeon, dated 27 April 2004).
In my view, State Forests have not adequately explained why the documents could not reasonably have been obtained and tendered in the proceedings before the Arbitrator. I am also not satisfied that failure to allow the new evidence would cause a substantial injustice to State Forests in the circumstances of the case. Other evidence before the Arbitrator established that the condition was a degenerative one, and Mr Whittaker gave evidence at the arbitration hearing concerning the events of April to July 1998. The Arbitrator found him to be “totally believable” and that he answered the questions put to him “honestly and without guile”. I therefore refuse leave to admit the fresh evidence.
SUBMISSIONS, DISCUSSION AND FINDINGS
The role of the Presidential Member on appeal is to review the Arbitrator’s decision as a whole. The review is not a rehearing. In this case, State Forests 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] NSW WCC PD 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. Where the weight accorded to the evidence by the Arbitrator is challenged, Deputy President Fleming’s comment in Knight v Eyles Nominees Pty Ltd [2004] NSW WCC PD 73 at paragraph 40 should be borne in mind:
“Interference with an Arbitrator’s discretionary judgement as to the weight of evidence should only be done where it is manifestly obvious that the discretion has so miscarried that it has not been exercised fairly and lawfully.”
State Forests list a large number of grounds of appeal, some of which are general and non-specific and overlap with other grounds. I will address these in turn, with the exception of the issue of the adequacy of the Arbitrator’s reasons, which is more conveniently dealt with where relevant.
Grounds (a), (g) and (m). State Forests submits the Arbitrator erred by asserting that Mr Whittaker gave notification of an injury on 15 April 1997 and 24 May 2004. Mr Whittaker’s solicitors note that the reference to 1997 is clearly a typographical error and should read 15 April 1998. I agree. With regard to evidence to support a finding of notification of injury on those dates, I can find no evidence to support a finding of notification on 15 April 1998. Mr Whittaker’s evidence at the arbitration hearing was that he went on holiday on arriving home after work on 16 April 1998, and he acknowledged that he did not notify State Forests of the injury or make a claim for compensation. He was not aware at that time of what was causing the pain in his shoulder and neck and that the injury might be work related. However, while on holiday, he did go and see his general practitioner, Dr R Findlay, and Dr Findlay advised him to take sick leave, and Mr Whittaker said he would have filled out a form in this regard.
There does not appear to be any other evidence of sick leave being sought at that time although, according to State Forests, Mr Whittaker did take sick leave on 23 June 1998 to have x-rays of his neck, arranged by Dr Findlay. Thus, it appears the Arbitrator made an error of fact by finding that Mr Whittaker notified State Forests of the injury on 15 April 1998.
With regard to the “nature and conditions of employment” injury, I note Mr Whittaker’s employment was terminated on medical grounds on 20 February 2004 and that he continued receiving weekly compensation until 3 October 2004. Mr Whittaker’s solicitors made a claim for compensation on 11 November 2004. It is not clear why the Arbitrator found notification of the injury on 24 May 2004. Submissions were made by Mr Whittaker’s counsel and by State Forests’ solicitor at the arbitration hearing on the issue of notification (transcript pages 57 to 59 and pages 61 to 62, respectively), but there is no reference to this issue in the Arbitrator’s reasoning. In the circumstances, it is my view that the Arbitrator should have addressed the issue of notification in his Statement of Reasons and made an error of law by failing to do so.
Ground (b). State Forests submits the Arbitrator erred by asserting that the only evidence attached to State Forests’ Reply was that of Dr Ehrlich. An examination of the Reply shows the Arbitrator’s statement in paragraph 6 of his Statement of Reasons was clearly incorrect - the Reply had various reports attached. Whilst a mistake, it is not clear that this had any effect on the Arbitrator’s decision.
Ground (c). State Forests submits the Arbitrator erred in paragraph 8 of his Statement of Reasons by asserting or inferring a requirement that State Forests identify “grounds of defence”. While proceedings before the Commission do not require “strict pleadings”, nevertheless, the Commission prescribes a procedure to be followed and it is the responsibility of a respondent employer to put its case to the arbitrator. State Forests do not identify issues addressed by it that the Arbitrator has allegedly chosen to ignore or has excluded, and I am therefore unable to address this general ground, which I therefore reject.
Ground (d). State Forests submits the Arbitrator erred in the issues in dispute he identified, in particular, in relation to whether Mr Whittaker was either totally or partially incapacitated for work, as to the nature and causes of any alleged injury, and whether the claim for compensation was made within the time prescribed by section 261 of the 1998 Act.
Mr Whittaker’s solicitors submit that at the end of the arbitration hearing, Mr Whittaker’s counsel contended that Mr Whittaker should be found totally incapacitated for work so that section 37 of the Workers Compensation Act 1987 (‘the 1987 Act’) applies. Alternatively, counsel submitted that if he is found to be partially incapacitated, so that section 40 of the 1987 Act applies, it should be recognised that Mr Whittaker is only able to undertake a very limited range of part-time sedentary work. I have examined the transcript of the arbitration hearing (page 59) and confirm counsel so contended.
With regard to whether there was an injury and, if so, the nature and cause of the injury, the Arbitrator’s findings with regard to the incident in April 1998 are less than adequate, and make no reference to the definition of injury in section 4 of the 1987 Act. The Arbitrator described Mr Whittaker as having jarred his neck on 15 and 16 April 1998 (paragraph 16 of his Statement of Reasons) and, in his findings, said “I accept that he felt a pain when working in April 1998” (paragraph 25). The Arbitrator appears to have relied on Mr Whittaker’s evidence in so concluding and makes no reference to supporting medical evidence. In paragraph 30 of his Statement of Reasons, the Arbitrator stated he was satisfied that “the Applicant’s injury was an aggravation of a degenerative condition substantially the result of the nature and conditions of his employment”. In so finding, the Arbitrator relied on the medical evidence of Dr Searle and Dr Graham, and the medical certificates of Mr Whittaker’s general practitioner. This finding that Mr Whittaker suffered a ‘nature and conditions of work’ injury is obviously linked to the time he ceased work on 20 February 2004.
Although the Arbitrator referred to sections 9A, 15 and 16 of the 1987 Act at paragraph 10 of his Statement of Reasons, there is no discussion of these sections in relation to the injury other than impliedly in his finding that the aggravation of Mr Whittaker’s degenerative condition was substantially the result of the nature and conditions of his employment and that the deemed date of injury was 20 February 2004. In my view, this is less than adequate reasoning.
The Arbitrator should also have considered whether any claim for compensation was made within the time frame prescribed by section 261 of the 1998 Act. However, as noted, having found Mr Whittaker’s injury to be “an aggravation of a degenerative condition substantially as a result of the nature and conditions of his employment”, one assumes the Arbitrator implied that section 16 of the 1987 Act applied, deeming the date of injury to be 20 February 2004, in accordance with section 16(1).
With regard to whether Mr Whittaker was either totally or partially incapacitated for work, the Arbitrator found, at paragraph 29, that Mr Whittaker was “unable to find work in his immediate area and would take the opportunity to work eagerly if it was available and within his present limitations”. The limitations are not spelled out. At paragraph 32, the Arbitrator said:
“the applicant now has a capacity for work but due to the conditions prevailing in his local area where he resides is totally unable to do so. I accept that there are no suitable employment opportunities for him and that he has sought work appropriately.”
There is no discussion of the nature of Mr Whittaker’s incapacity and, in his summary of the resolution of the issues in dispute, at paragraph 33, the Arbitrator stated that Mr Whittaker “was totally incapacitated for work as a result of his injuries from 20 February 2004”. However, I also note Mr Whittaker’s oral evidence that after completing a TAFE “Workplace Trainer Assessor” Certificate IV, he has done little to try and get a job apart from speaking to “the lady at the TAFE”, going to Centrelink, and speaking with “Forward Personnel”, who assist people with disabilities in the workplace (transcript pages 39 to 42). Essentially, because his wife is now working full-time, he spends considerable time looking after his children. In my view, the Arbitrator’s findings and discussion on the issue of incapacity are less than adequate. His findings on Mr Whittaker’s efforts to find work are misleading and not reflected in Mr Whittaker’s oral evidence at the arbitration hearing.
Ground (e). State Forests submits the Arbitrator failed to give any reasons for finding Mr Whittaker’s employment to be a substantial contributing factor to his injury (section 9A of the 1987 Act). I agree with Mr Whittaker’s solicitors’ submission that whether Mr Whittaker’s employment was a substantial contributing factor to his injury was, as noted above, impliedly referred to by the Arbitrator in paragraph 30 of his Statement of Reasons, and it is clear from paragraphs 21 and 22 that the Arbitrator accepted the opinion of Dr Searle in this regard and was “fortified in that conclusion by the report of Dr Graham” dated 27 August 2001. However, in my view, the Arbitrator should have more specifically addressed section 9A.
Ground (f). State Forests submits the Arbitrator failed to consider whether any entitlement Mr Whittaker might have, had expired because of the 26 week period to which section 36 payments are limited. Additionally, the Arbitrator erred by awarding weekly compensation from 21 February 2004, when compensation was only claimed from 4 October 2004. Mr Whittaker’s solicitors respond that State Forests put in issue payments from 21 February 2004 by stating that such payments were made in error.
I have confirmed from the transcript of the arbitration hearing (page 3) that State Forests did put in issue payments from 21 February 2004. There is no dispute that State Forests should have credit for the payments already made. It is clear that the Arbitrator’s award for the period 21 February 2004 to 22 August 2004 is in respect of the 26 week period permitted under section 36 of the 1987 Act, and that the Arbitrator’s award for the period thereafter was under section 37.
Adequacy of reasons. In my view, the Arbitrator’s findings and discussion on the issue of injury and causation, and of capacity for work and entitlement are inadequate. He does not explain the extent of the limitations imposed by Mr Whittaker’s condition nor what level of capacity he has. There is no discussion of the relevant provisions of the law and, in my view, in the light of Mr Whittaker’s oral evidence, further consideration should have been given to whether Mr Whittaker’s entitlement to weekly compensation might more appropriately fall under section 40 of the 1987 Act. Mr Whittaker acknowledged that with the benefit of medication he might be capable of a range of light duties (transcript pages 9 to 12 and 36 to 43).
Generally as to the adequacy of reasons required for such a decision, I am guided by the decision of Deputy President Fleming in Mayne Health Group t/as Nepean Private Hospital v Sarah Sandford [2002] NSW WCC PD 6 (‘Mayne’), at paragraphs 45 to 48. The Deputy President said Arbitrators have a statutory obligation to provide adequate reasons for decisions (see section 294(2) of the 1998 Act, and Rule 73 of the Workers Compensation Commission Rules 2003) and failure to do so constitutes an error of law. She stated, at paragraph 46:
“The standard by which the ‘adequacy’ of reasons is determined is relative to the nature and context of the decision made and the decision-maker.”
However (paragraph 48), to succeed on the ground of inadequate reasons requires:
“that the inadequacy sufficiently demonstrates that the Arbitrator has failed to exercise his or her duty to fairly and lawfully determine the application.”
(See YG & GG v Minister for Community Services [2002] NSWCA 247.)
In my view, the Arbitrator’s failure to properly address the relevant issues by reference to the relevant evidence and law, demonstrates that he failed to fairly and lawfully determine the application. He thereby made an error of law sufficient to warrant setting aside the decision.
Ground (h). State Forests submits the Arbitrator erred in considering as evidence that which was not evidence. I agree with Mr Whittaker’s solicitors’ submission that this ground should be rejected for lack of specificity.
Ground (i). State Forests submits the Arbitrator erred by denying it natural justice and procedural fairness in his conduct of the proceedings by admitting a report of Dr John Graham, Neurologist, dated 27 August 2001 and not allowing State Forests an adjournment in relation to this. Having examined the arbitration hearing transcript, where there is considerable discussion of whether this report should be admitted, in particular because State Forests sought the admission of other reports by Dr Graham, it appears that the parties had an adequate opportunity to express their views and the Arbitrator exercised his discretion to admit the report and then allow State Forests a further seven days “to produce any document or make any other submission it wishes to make with regard to the report of 27 August 2001” (transcript page 53). I am not satisfied there was any denial of natural justice by the Arbitrator or procedural unfairness in the way he conducted the proceedings.
Ground (j). State Forests submits the Arbitrator erred in asserting there had been any non-disclosure of any reports. In his Statement of Reasons, the Arbitrator stated that he found the omission by State Forests of Dr Graham’s report dated 27 August 2001, in which Dr Graham stated his opinion that Mr Whittaker’s employment was a substantial contributing factor to his neck injury, “very disturbing”. However, the Arbitrator accepted “that the Respondent’s representative did not realise that the document was not included in the documents placed in evidence”. There is no evidence to support State Forests’ allegation that this interfered with the Arbitrator’s objective consideration and determination of the issues.
Ground (k). State Forests submits the Arbitrator has erred by failing to have proper regard to the evidence and its submissions and by failing to give adequate reasons in this regard. Mr Whittaker’s solicitors reject this and submit the Arbitrator gave proper, adequate and sufficient reasons. In my opinion, while noting my discussion of the adequacy of the Arbitrator’s Statement of Reasons, above, ground (k) should be rejected for lack of specificity.
Ground (l). State Forests submits the Arbitrator erred by accepting Mr Whittaker’s evidence despite inconsistencies between that and other evidence. Mr Whittaker’s solicitors note the Arbitrator found Mr Whittaker totally believable. Once again, in my opinion, this ground should be rejected for lack of specificity.
Ground (n). State Forests submits the Arbitrator erred by failing to consider and make a finding on the issue of disease, whether any disease was one of gradual process, whether the disease or any aggravation arose out of Mr Whittaker’s employment, and whether his employment was a substantial contributing factor. Mr Whittaker’s solicitors point to the Arbitrator’s discussion of these issues at paragraphs 20, 30 and 33 of his Statement of Reasons. I note the overlap with grounds (d) and (e) above, where I have addressed these issues.
Ground (o). State Forests submits the Arbitrator erred by finding a deemed date of injury of 20 February 2004. Mr Whittaker’s solicitors submit the Arbitrator applied section 16 of the 1987 Act. I have discussed this in relation to ground (d), at paragraph 25, above.
Ground (p). State Forests submits the Arbitrator erred by making a finding as to the state of the labour market in the area when there was no evidence as to the area in question or state of the labour market. Mr Whittaker’s solicitors point to his evidence about this. There being only Mr Whittaker’s evidence on this issue, discussed at paragraph 29 above, which, in my view, is less than convincing, there is insufficient evidence to support the Arbitrator’s finding and he thereby made an error of fact.
Rate of weekly payments. Apart from addressing State Forests’ grounds of appeal, Mr Whittaker’s solicitors also ask that the determination be remitted to the Arbitrator for correction of the award so that it provides (in accordance with the wages schedule filed by Mr Whittaker) for the payment of weekly compensation at the rate of $700.00 per week from 21 February 2004 to 31 March 2004, at the rate of $728.00 per week from 1 April 2004 to 22 August 2004, and thereafter at the statutory rate for an applicant with three dependents under sections 36 and 37 of the 1987 Act.
Conclusion
In conclusion, in my opinion, the Arbitrator made errors of law – the inadequacy of his reasons on the issues of injury, causation and capacity for work, and the failure to adequately address the issue of notification of the injury – and errors of fact – as to notification of the injury in 1998, Mr Whittaker’s capacity for work and the state of the labour market in his local area, and the applicable rate of weekly payments for the period 21 February 2004 to 31 March 2004. The Arbitrator’s determination must therefore be revoked and the matter remitted to another arbitrator for hearing afresh and redetermination.
DECISION
The decision of the Arbitrator dated 24 June 2005 is revoked and the matter is remitted to the Registrar for referral to a different arbitrator for rehearing.
COSTS
There is no order as to the costs of this appeal.
Robin Handley
Acting Deputy President
13 April 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ROBIN HANDLEY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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