State Transit Authority of New South Wales v Kelaher
[2006] NSWWCCPD 278
•23 October 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:State Transit Authority of New South Wales v Kelaher [2006] NSWWCCPD 278
APPELLANT: State Transit Authority of New South Wales
RESPONDENT: Peter Kelaher
INSURER:State Transit Authority of New South Wales
FILE NUMBER: WCC 17211-05
DATE OF ARBITRATOR’S DECISION: 15 March 2006
DATE OF APPEAL DECISION: 23 October 2006
SUBJECT MATTER OF DECISION: Adequacy of Reasons
PRESIDENTIAL MEMBER: Acting Deputy President Julian Martin
HEARING:On the papers
REPRESENTATION: Appellant: Sparke Helmore Lawyers
Respondent: Steve Masselos & Co
ORDERS MADE ON APPEAL: 1. The decision of the Arbitrator dated 15 March 2006 is revoked and the matter is remitted to another Arbitrator for determination afresh in accordance with these reasons.
2. No order is made as to the costs of this appeal.
BACKGROUND TO THE APPEAL
On 11 April 2006 State Transit Authority of New South Wales (‘State Transit’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 15 March 2006.
The Respondent to the Appeal is Peter Kelaher (‘Mr Kelaher’) who was born on 16 September 1957 and is 49 years of age.
Mr Kelaher commenced employment with State Transit on 4 June 1996 as a bus driver. Prior to that he worked as an advertising salesman for 19 years.
On 30 September 2002 Mr Kelaher was involved in a dispute with three male passengers, aged 16 or 17 years. They refused to pay their bus fare and an argument developed resulting in the three males being asked to leave the bus.
The following day a group of males, including the three that were on the bus, attacked Mr Kelaher whilst he was on his way home from work. Thereafter Mr Kelaher and his family continued to be stalked and harassed, with the last major incident occurring in August or September 2004.
Mr Kelaher had occasional time off work until March 2005 when he was removed from driving duties and provided with suitable work. In April/May 2005 Mr Kelaher went off work and remained off at the time of the arbitration hearing.
Compensation benefits were sought from State Transit, however Mr Kelaher was advised by correspondence of 20 April 2005 that ‘liability is declined’.
On 10 October 2005 proceedings were commenced in the Commission for payments of weekly benefits, medical expenses and lump sum compensation. An arbitration hearing took place on 27 January 2006 and State Transit have appealed from the decision handed down by the Arbitrator.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 15 March 2006 records the Arbitrator’s orders as follows:
“1.That the Respondent pay the Applicant compensation at the rate of $1,087.54 from April 2005 section 36 of the Workers Compensation Act 1987 and subsequently under section 38 of that Act. Such weekly payments to continue in accordance with the provisions of the Act.
2.That the Respondent pay the Applicant’s section 60 of the Workers Compensation Act 1987 expenses on production of accounts or receipts.
3.That the Applicant be referred to an Approved Medical Specialist.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are:
“1.whether the Arbitrator erred in finding that Mr Kelaher’s incapacity results from the assault and/or nature and conditions of his employment;
2.that the Arbitrator failed to give any or any adequate reason why he found Mr Kelaher’s incapacity was related to his employment and why he found Mr Kelaher to be totally incapacitated;
3.that the Arbitrator erred in the amount awarded resulting from the finding of total incapacity, and
4.that the Arbitrator erred in awarding Mr Kelaher compensation pursuant to section 38 of the Workers Compensation Act 1987 (‘the 1987 Act’).”
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 and the documents that are before me, and the submissions by the parties 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.
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 Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
As the matter involves an ongoing award of compensation, backdated to April 2005, it clearly satisfies the monetary threshold and accordingly I grant leave to appeal.
FRESH EVIDENCE
Neither party seeks leave to introduce fresh evidence.
SUBMISSIONS, EVIDENCE AND DISCUSSION
Adequacy of Reasons – Causal Connection
The Arbitrator in his decision at paragraphs 19 and 20 stated:-
“Whilst it is true that Dr White’s report is detailed and thorough, in this case, it virtually stands alone. His conclusion “I am unable to relate his present psychological and social dysfunction to the events in September and October 2002” appears to me to be inconsistent with the Applicant’s general history and behaviour however in any event, it may be that too much emphasis has been placed by both parties on that incident.
I accept that the Applicant suffers from post traumatic stress disorder as a result of the incident of 1 October 2002, preferring the opinions of Drs Bornstein [sic Dr Borenstein] and McClure.”
State Transit submit that the Arbitrator failed to give any, or any adequate reasons for rejecting the opinion of Dr White and further does no more than to find that he accepts the opinions of Dr Borenstein and Dr McClure. It is further submitted that the Arbitrator failed to evaluate any of the doctors’ opinions based upon histories given or clinical presentation.
Mr Kelaher submits in response that the Arbitrator indicated that he had considered the report of Dr White and did not accept it. It is further submitted that the Arbitrator’s reasoning was sufficient for the lay person to understand and reference is made to the decision of Mifsud v Campbell (1991) 21 NSWLR 725 (‘Mifsud’) in support of this submission.
I agree with State Transit’s submission that the reasons are inadequate. There was clearly a dispute between the expert evidence of the parties. Justice McColl in Hume v Walton [2005] NSWCA 148 referred to Mifsud and a number of other authorities when discussing the duty of a court to record the evidence and findings:
“The primary judge’s duty was not only to record the evidence but also to record the findings she made based on that evidence: Mifsud v Campbell (1991) 21 NSWLR 725 at 728. While the extent of that duty may depend upon the circumstances of the individual case (ibid), where there is disputed expert evidence, the ‘parties are entitled to have the judge enter into the issues canvassed before the Court and to an explanation by the judge as to why the judge prefers one case over the other’: Archibald v Byron Shire Council [2003] NSWCA 292; (2003) 129 LGERA 311 at [54] per Sheller JA (with whom Beazley JA agreed); see also Bright v Joodie Holdings No. 2 Pty Ltd [2005] NSWCA 134 at [33] per Santow JA (with whom Sheller JA and Campbell AJA agreed)” (at paragraph 69)”
Dr White, Consultant Psychiatrist, examined Mr Kelaher on 5 October 2005 at the request of State Transit. As a result of this examination the doctor provided a lengthy report, 27 pages, and a further supplementary report dated 16 January 2005 [sic 2006] after receiving further documentation from State Transit. Mr Kelaher was also examined by Raynor Lander, Consultant Psychologist, at the request of State Transit on 7 April 2005. Both Dr White and Mr Lander disputed Mr Kelaher’s claim.
The medical evidence presented in Mr Kelaher’s case included a report from Dr McClure, Consultant Psychiatrist, Greta Goldberg, Clinical Psychologist and Sam Borenstein, Consultant Clinical Psychologist. Both psychologists and Dr McClure supported Mr Kelaher’s claim.
Although it is not necessary for the Arbitrator to refer to evidence of every fact and issue before him nor every step in the reasoning process (Yates Property Corporation Pty Ltd (In Liq) v Darling Harbour Authority (1991) 24 NSWLR 156 and Ainger v Coffs Harbour City Council [2005] NSWCA 424) in my opinion the reasons he set out were not sufficient to identify why he found the reports supporting Mr Kelaher more persuasive than those of Dr White and Mr Lander. Although Mr Lander’s report is mentioned by the Arbitrator in the section of his decision titled the ‘Respondent’s Medical Evidence’, there is no reference to it in the Arbitrator’s ‘Findings and Reasons’.
Adequacy of Reasons – Finding of total incapacity
The Arbitrator at paragraph 21 of his decision found that:
“For all intents and purposes, he is totally incapacitated for work as a bus driver or otherwise.”
State Transit submit that in the light of Mr Kelaher’s evidence the Arbitrator failed to give any, or any adequate reasons for this finding.
Mr Kelaher submits that there was a significant body of medical evidence which supported the fact of a‘significant degree of incapacity’ and that the Arbitrator by his statement, (set out above in paragraph 24) indicated that he had considered whether or not Mr Kelaher was fit for any other work. Mr Kelaher further points to medical certificates of the general practitioner, Dr Vago, which certify him as unfit for work. These were in evidence before the Arbitrator, however Dr McClure was of the opinion that Mr Kelaher was “currently unfit to work as a bus driver but would be capable on at least on a part-time basis of alternative duties if sympathetically supervised.”
Mr Kelaher in his statement said that he didn’t think he could drive any more, whilst Dr Borenstein was silent on the issue of incapacity. Greta Goldberg was of the opinion that Mr Kelaher was unable to drive buses. Interestingly both Dr White and Mr Lander were of the opinion that Mr Kelaher is unfit for work.
It may well be that Mr Kelaher is ‘for all intents and purposes totally incapacitated’ but it is incumbent on the Arbitrator to provide reasons for this finding, particularly having regard to the conflicting evidence. I am satisfied that the Arbitrator’s reasons were inadequate and accordingly this ground of appeal is made out.
The amount awarded for total incapacity
The Arbitrator awarded Mr Kelaher the sum of $1,087.54 for the period of total incapacity. State Transit submit that the appropriate rate for the first 26 weeks of total incapacity is the current weekly wage rate (award rate) and that the appropriate award rate at the time was $753.00.
Mr Kelaher responded by pointing out that there was no evidence at the arbitration hearing of the appropriate award rate and that in any event they only claimed $800 per week in the Application. Mr Kelaher has indicated that he would consent to the admission of fresh evidence as to the appropriate award rate.
Having read the transcript of the submissions by the parties at the arbitration hearing it is apparent that the amount of $1,057.54 was agreed to be the comparable earnings for the purpose of section 40 of the 1987 Act, but there was no evidence of the award rate. It appears that the sum awarded by the Arbitrator ($1,087.54) is a typographical error.
Clearly the Arbitrator erred in the amount that he awarded pursuant to section 36 of the 1987 Act (total incapacity).
Award pursuant to section 38 of the 1987 Act
The Arbitrator made this finding at paragraph 22 of the decision:
“The appropriate order seems to be that he be paid at the section 36 rate from 30 March 2005 to 30 September 2005 and thereafter at the section 38 rate being 80% of that amount as it appears that the Respondent is unable to find any suitable duties for the Applicant to do.”
State Transit submit that the application before the Arbitrator did not include a claim pursuant to section 38 of the 1987 Act and indeed Mr Kelaher did not rely on this section of the Act. Mr Kelaher in response agrees that no reliance was placed on section 38 and that it may be an error on the face of the record. It is submitted by Mr Kelaher that the Arbitrator in fact meant to refer to section 37 (total incapacity after the first 26 weeks) having regard to the finding of total incapacity.
It is not clear from the decision what the Arbitrator was referring to, however I note the reference to State Transit not being able to find any suitable duties for Mr Kelaher.
It is clear that there are a number of errors of law and the decision of the Arbitrator will have to be revoked. It is not necessary that I determine the issue of whether the Arbitrator erred in finding that Mr Kelaher’s incapacity resulted from the work incidents, as in my opinion this is a matter that will need to be remitted for arbitration hearing before another Arbitrator rather than determined by me. I have reached this decision because if Mr Kelaher is found to be partially incapacitated, there is no clear evidence on the issues that need to be addressed when considering section 40 of the 1987 Act. It is also apparent that Mr Kelaher’s most recent medical evidence, other than medical certificates from the general practitioner, is almost 18 months old and that there is no agreement on the current weekly wage rate if Mr Kelaher is found totally incapacitated.
DECISION
The decision of the Arbitrator dated 15 March 2006 is revoked and the matter is remitted to another Arbitrator for determination afresh in accordance with these reasons.
COSTS
No order is made as to the costs of this appeal.
Julian Martin
Acting Deputy President
23 October 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JULIAN MARTIN, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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