Sydney Anglican Home Mission Society Council t/as Sydney Anglicare v Maude
[2006] NSWWCCPD 127
•21 June 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Sydney Anglican Home Mission Society Council t/as Sydney Anglicare v Maude [2006] NSWWCCPD 127
APPELLANT: Sydney Anglican Home Mission Society Council t/as Sydney Anglicare
RESPONDENT: Elizabeth Janet Maude
INSURER:Vero Workers Compensation (NSW) Limited
FILE NUMBER: WCC4083-05
DATE OF ARBITRATOR’S DECISION: 27 June 2005
DATE OF APPEAL DECISION: 21 June 2006
SUBJECT MATTER OF DECISION: Incomplete transcript; inadequacy of reasons; findings of fact and failure to make findings of fact; application of section 55 of the Workers Compensation Act 1987.
PRESIDENTIAL MEMBER: Acting Deputy President Tydd
HEARING:On the Papers
REPRESENTATION: Appellant: Hunt and Hunt
Respondent: Bell Lawyers
ORDERS MADE ON APPEAL:
1.The decision of the Arbitrator, dated 27 June 2005 is revoked.
2.Applications numbered WCC 4083-05 and 6130-05 are remitted to another Arbitrator for conciliation, or determination afresh if the parties are unable to come to an agreement.
3.No order as to costs of the Appeal.
BACKGROUND TO THE APPEAL
On 19 July 2005 Sydney Anglican Home Mission Society Council trading as Sydney Anglicare (‘Sydney Anglicare’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 27 June 2005.
The Respondent to the Appeal is Elizabeth Janet Maude (‘Mrs Maude’).
From 1993 to July 2000 Mrs Maude was employed by Anglican Counselling as a relationship counsellor on a permanent part time basis. In August 2000 Anglican Counselling amalgamated with Anglicare New South Wales. As a result of the substantial amalgamation change Mrs Maude was placed in a Senior Counsellor position being required to undertake more formal and informal responsibilities with a significantly increased case load of patients; her levels of clinical supervision decreased and her support systems were disrupted by the resignation of nine senior counsellors. As a result of work place stress Mrs Maude’s psychological condition deteriorated and in March 2001 Mrs Maude was treated at the St John of God Hospital for the psychosomatic symptoms of loss of speech and prominent stuttering; together with flatten affect, depressed mood, poor sleep, poor appetite and low energy. Mrs Maude was diagnosed as suffering from major Depressive Disorder and treated with medication for that condition.
Following a period of total incapacity Mrs Maude returned to work with Anglicare and has remained in its employ. However the hours she has worked have varied over the years 2001 to date.
Mrs Maude made a claim for weekly compensation benefits for periods of total and partial incapacity pursuant to sections 36 and 40 of the Workers Compensation Act 1987 (‘the 1987 Act’) and medical and related expenses pursuant to section 60 of the 1987 Act. (Matter No.51260 of 2001 in the Compensation Court of New South Wales). The First Respondent was named as Sydney Anglican Home Mission Society Council t/as Sydney Anglicare and the Second Respondent Anglican Counselling Centre.
That application was heard by the Compensation Court and on 14 March 2003 Truss J made the following findings and orders:
“1The applicant suffered psychological injury as a consequence of her employment with the respondents and her employment was a substantial contributing factor to the injury.
2.She was totally incapacitated thereby from 16 February 2001 to 16 September 2001 and was paid compensation from 17 March to 4 May 2001.
3.She has been partially incapacitated thereby from 17 September 2001 to date and continuing.
4.Her current weekly wage rate was $512.
5.Her probable earnings uninjured are $512 to 3 February 2003 and $541 thereafter.
6. Her actual earnings are: -
$167 per week from 17 September 2001 to 30 September 2001
$209 per week from 1 October 2001 to 14 October 2001
$313 per week from 15 October 2001 to 3 February 2003
$398 per week from 4 February 2003 to 3 March 2003
$464 per week from 4 March 20037.Her ability to earn in some suitable employment is as set out in para 6 [above] except for the period 1 February 2002 to 3 February 2003 in respect of which I find $376 per week.
8.The applicant’s son Mathew (born 27 December 1985) was mainly dependent until 1 January 2002 and her sons Michael (born 31 August 1987) and Joshua (born 7 February 1992) have at all relevant times been mainly dependent upon the applicant for support.
9.AWARD for weekly payments: -
(a) pursuant to s 36 at $512 per week from 16 February to 16 March 2001 and from 5 May to 15 August 2001.
(b) pursuant to s 37 at $494.30 from 16 August 2001 to 16 September 2001.
(c) Pursuant to s 40 at the following rates:$345 per week from 17 September 2001 to 30 September 2001
$303 per week from 1 October 2001 to 14 October 2001
$199 per week from 15 October 2001 [sic] 31 January 2002
$136 per week from 1 February to 3 February 2003
$143 per week from 4 February 2003 to 3 March 2003
$77 per week from 4 March to date and continuing.10.I GRANT LIBERTY TO APPLY in relation to interest.
11.I ORDER the first respondent to pay the applicant’s medical and the like expenses pursuant to s 60.
12.I ORDER the first respondent to pay the applicant’s costs. I RECOMMEND a fee for counsel for an additional conference in the some of $250, and to [illegible] judged.”
Sydney Anglicare made two applications to review this decision. The first application was lodged with the Commission on 7 December 2004 (WCC 20028/04). That matter was discontinued on the basis of the Sydney Anglicare agreeing the pay Ms Maude weekly compensation pursuant to ‘Heads of Agreement’ which provided that:
“1. Matter discontinued with the Respondent to pay the applicant’s costs as agreed or assessed.
2. Respondent to pay the applicant by way of voluntary weekly payments pursuant to the following:
$73.48 pw from 26/5/03 to 31/10/03
$373.80 pw from 1/11/03 to 4/1/04
$73.48 pw from 5/1/04 to 19/1/05
Agreed to the sum of $9380.843. The Applicant admits that the above compensation represents the full extent of her claim for weekly compensation up to 19/1/05
4. In the event that the Applicant brings new proceedings seeking further weekly compensation after 19/1/05, and the Respondent brings proceedings seeking to diminish or terminate the existing award of $77 pw, the parties acknowledge:
(a) Nothing in this agreement would prevent the bringing of these proceedings by either party.
(b) Both sets of proceedings should be heard and determined at the same time.
(c) Nothing in this agreement interferes with the award of Truss J Matter No 512/2001.
(d) The discontinuance of these proceedings is to allow the parties to recommence fresh proceedings so that they can be heard and determined together, and such recommencement of proceedings will not affect the full extent to which costs may be payable.”The ‘Heads of Agreement’ were signed and dated 16 March 2005.
On 16 March 2005 Sydney Anglicare made an application to the Commission (matter number WCC 4083-05) for variation of the previous order of the Compensation Court. The medical reports of Dr Akkerman (psychiatrist) were relied upon by Sydney Anglicare in support of the application that Mrs Maude’s incapacity had ceased and that she could gradually return to her pre injury hours of 24 1/2 hours per week.
On 28 April 2005 the Ms Maude’s solicitors made an application (matter number WCC 6130-05) to vary the previous order of the Compensation Court. Current medical reports of Dr Robertson (treating psychiatrist) and Dr Sheen (general practitioner) were relied upon in support of the application that Mrs Maude’s condition fluctuated and that at the date of application Mrs Maude’s injury restricted her capacity to work to 18 hours per week. Ms Maude’s solicitors also made application to deal with the two proceedings concurrently.
On 29 April 2005 a delegate of the Registrar determined that the matters should be heard concurrently and issued that determination to the parties.
The decision under review arises in relation to the two applications made to the Commission and dealt with concurrently. The hearing was conducted before an arbitrator on 20 June 2005 and the transcript of proceedings in this matter is incomplete as it does not record the oral evidence (if any) and the oral submissions of the parties. The transcript contains what could be described as the ex tempore findings and the orders of the Arbitrator. The Commission issued a written copy of Arbitrator’s ex tempore findings and orders. A number of the submissions on appeal raise issues in relation to the conduct of proceedings, procedural fairness and the findings of the Arbitrator. In the absence of a complete transcript and written reasons I am confined to the incomplete transcript, and ex tempore findings and orders of the Arbitrator.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 27 June 2005 records the Arbitrator’s orders as follows:
1. That the award of her Honour Judge Truss of the Compensation Court of NSW dated 14 March 2003 be varied as follows.
a. the Employer pay the worker weekly compensation at the rate of $77 from 19 January 2005 to 14 April 2005.
b. The Employer pay the worker weekly compensation at the rate of $154.10 from 15 April 2005 to date and continuing.
2. That the Employer pay the Worker’s section 60 of the Workers Compensation Act 1987 expenses on production of accounts or receipts.
3. The Employer pay the Worker’s legal costs as agreed or assessed on the basis of a complex matter.
The ‘Statement of Reasons – Ex Tempore Orders’ is undated. That document states that a sound recording of the reasons given by the Arbitrator is available to the parties. The document sets out the orders referred to above and contains the following findings:
“1.That the incapacity for which the worker had recovered an award from her Honour Judge Truss on 14 March 2003 has not ceased.
2.That the worker’s capacity to work was reduced to 18 hours per week for the period 26.5.03 to 30.10.03.
3. That the worker was totally incapacitated for the period 1.11.03 to 4.1.04.
4.That the worker’s capacity to work was reduced to 18 hours per week for the period 5.1.04 to 30.4.04.
5.That the worker’s capacity to work for the period 1.5.04 to 14.4.05 was limited to 21 hours per week.
6.That the worker’s capacity to work was reduced to 18 hours per week for the period 15.4.05 to date and continuing.
7. That the proceedings be assessed as complex for the purposes of costs.
8.That the employer will not seek to recover from the Worker payments made to the Worker for the period prior to 19 January 2005 in accordance with the Heads of Agreement entered into between the Parties dated 16 March 2005.”
ISSUES IN DISPUTE
The issues raised in the appeal are that the Arbitrator erred in fact and in law:
Procedural Fairness
The Arbitrator erred in determining the dispute in circumstance where:
· Ms Maude’s solicitors had not plead change in circumstances, and
· Sydney Anglicare was not provided with notice of the “relapse” of Ms Maude’s injury from 15 April 2005.
Error of Law
The Arbitrator erred in law in failing to properly address the requirements of:
· Section 55 of the 1987 Act, and
· section 40(2)(b) of the 1987 Act.
Findings of Fact
The Arbitrator erred in finding:·Incapacity between 1 November 2003 and 5 January 2004,and
·that Ms Maude suffered from a “relapse” from 15 April 2005.
Failure to make findings of fact/adequacy of reasons
The Arbitrator erred in failing to make findings in respect of:·Incapacity continuing beyond 31 December 2003, and
·psychological or psychiatric disorder after 31 December 2003.
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.”
The Appellant submits that the application for leave to apply for an appeal can be determined on the papers. However the “appeal should be determined through oral evidence.” No further submissions are supplied in support of the application to provide oral evidence.
Section 354(2) confers on the Presidential Member an obligation to ‘review’ the decision on appeal. While the jurisdiction of a Presidential member on appeal is to ‘review’ the decision of an Arbitrator, it is not intended that this review become a hearing de novo of the dispute (Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSW WCCPD 6; Ross v Zurich Workers Compensation Insurance [2002] NSWWCCPD 7).
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission 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 amount of compensation at issue on the appeal is determined by reference to the amount of any monetary award made by the Arbitrator (Grimson v Integral Energy [2003] NSWWCCPD 29). Further in applying the decision in Lilly v Tomago Aluminium Co Pty Ltd [2004] NSWWCCPD 62, I have considered the ongoing nature of the Arbitrator’s award as it relates to future payments.
The compensation in dispute involves a claim of $73.48 per week from 26 May 2003 to 31 October 2003; $373.80 per week from 1 November 2003 to 4 January 2004 and $73.45 from 5 January 2004 to date and continuing (as referred to in Ms Maude’s statement of 23 November 2004). I am satisfied that the amount of compensation at issue on appeal is both at least $5,000.00 and as solicitor’s for Anglicare appear to dispute the Arbitrator’s award in its entirety I am satisfied that the amount of compensation at issue is at least 20% of the amount awarded in the decision appealed against.
I am satisfied that the requirements of Section 352(2) of the 1998 Act have been 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.
CAN THE ARBITRATOR’S DECISION BE REVIEWED?
I must have regard to the transcript of proceedings in determining this appeal which arises in circumstances of the decision appealed against being delivered ex tempore at hearing with a copy of the findings and orders made at hearing being provided to the parties on 27 June 2005.
The transcript reveals that the Arbitrator commenced proceedings by identifying the applications and appearances before her. At page two of the transcript there appears an entry that no sound was audible “from 0:02:01 to end of track at 0:11:42”. The transcript then recommenced (line 10 page 2) with the Arbitrator explaining that there was a break whilst she considered “some of the issues raised...”. Shortly thereafter (at line 30 page 2) the Arbitrator indicated that she had the opportunity of considering all of the evidence and the submissions from the representatives. (It is of significance that these submissions are not contained in the transcript.). The remainder of the transcript contains the Arbitrator’s delivery of her decision and findings referable to the evidence before her and the transcript concludes at page 8 line 20.
Neither party has submitted that the appeal cannot proceed because of the absence of a complete transcript and in the circumstances of being provided with ex tempore findings and orders (and not reasons for the decision). However I am required to consider these factors to ensure fairness to both parties in conducting this review (Depalo v Department of Ageing, Disability & Home Care[2005] NSWWCCPD 35 (‘Depalo’)).
Having regard to the submission before me particularly as they relate to the findings of fact; the failure to make findings of fact fundamental to the decision arrived at; the adequacy of reasons and in the absence of a complete transcript of proceedings my commencement point in determining the Appeal must be the adequacy of reasons for the decision (Fraternity Bowling & Recreation Club Ltd v Sartor [2004] NSWWCCPD 79; (‘Fraternity Bowling & Recreation Club’)).
This issue has been considered in a number of Presidential decisions (Depalo; Fraternity Bowling & Recreation Club; Tolco Pty Ltd v Micevshi [2005] NSWWCCPD 119(‘Tolco’)) and a summary of the relevant considerations to be applied is found in (Thompson v Expamet Pty Limited [2005] NSWWCCPD 14 (‘Thompson’)). In that case Deputy President Fleming stated that:
“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 circumstances of the present case are distinguishable from those outlined in Thompson. In the present case there is a transcript of the Arbitrator’s ex tempore findings and orders, this together with a written copy of the Arbitrator’s findings and orders have been provided to the parties. Following consideration of the transcript I concluded that the representatives made oral submissions at hearing and these were considered by the Arbitrator (lines 30 to 35 page 2). However for what appears to be technical difficulties these have not been transcribed.
The transcript does refer to the Arbitrator’s reliance upon the evidence (and indicate the weight she applied to the evidence) in relation to the issue of ‘incapacity’ (in particular lines 15 to 30 and 55 page 3 and lines 9 to 18 page 4).
Further the transcript (pages 2 to 4) does reveal that, following oral submissions the Arbitrator referred to the Applications before her and evidence as follows:
·Mrs Maude worked as a counsellor with Sydney Anglicare throughout the 1990s;
·as a result of her injury deem to have occurred on 24 January 2001 Mrs Maude reduced her working hours;
·on 14 March 2003 Truss J made a finding that Mrs Maude could work 21 hours per week (a reduction from the 241/2 hours Mrs Maude had been working);
·on 26 May 2003 Mrs Maude consulted Dr Sheen who reduced her working hours to 18 hours per week;
·on 1 November Dr Sheen found Mrs Maude to be totally unfit for work and during that period Mrs Maude ceased medication;
·on 5 January Mrs Maude returned to working 18 hours per week;
·on 15 April 2005 Dr Sheen recommenced Mrs Maude’s medication.
The Arbitrator referred to the evidence before her being the reports of Drs Sheen and Robertson and the reports of Dr Akkerman; the decision of Truss J and Mrs Maude’s statements.
In this regard the transcript together with the ex tempore findings and orders may be sufficient to outline the Arbitrator’s reasons in relation to her consideration of ‘incapacity’. However the applications are in respect of a variation of a prior award and I am not satisfied that the transcript provides reasons to demonstrate the Arbitrator’s application of section 55 of the 1987 Act or consideration of the application to vary the award made by Anglicare sufficient to “convey to the parties who are acquainted with the circumstances of this matter, the basis upon which the Arbitrator came to her decision.” (NSW Department of Education and Training v Sanders [2004] NSWWCCPD 89 (paragraph 13)).
The transcript does not assist further in discerning the Arbitrator’s reasoning process to arrive at findings referable to the evidence of ‘change of circumstance’ and her application of section 55 of the 1987 Act. At line 40 of page 3 the transcript the Arbitrator states:
“So, the first question to ask was: After the decision of her Honour Justice Truss, was there a deterioration in Mrs Maude’s condition? Quite clearly, the evidence says, yes, there was, …”
The ‘Statement of Reasons – Ex tempore Orders’ issued by the Arbitrator contains one finding of fact in relation to the ‘change of circumstance’. That finding is that Ms Maude’s incapacity which was the subject of the award of Truss J had not ceased. That finding does not assist me in determining this appeal as it relates to a ‘change of circumstance’.
Both applications before the Arbitrator sought to vary the award of Truss J. Accordingly the submissions of the representatives for Anglicare and Mrs Maude (and if taken, the oral evidence of Mrs Maude) in relation to the ‘change of circumstance’ are relevant to the determination of this appeal. However as stated I do not have the benefit of these submissions.
In determining this appeal I also have regard to the decision in Atlas v Bulli Spinners Pty Ltd [1993] NSWCC 17 and whilst I do not find that the Arbitrator’s findings were not supported by the evidence (as was found on Appeal in this matter) I do find that ‘it is not easy to discern upon what basis’ the Arbitrator varied the award and made a fresh award.
I am not satisfied that the ‘Statement of Reasons – Ex tempore Reasons’ and the incomplete transcript are an adequate record of the proceedings before the Arbitrator. Further the Arbitrator’s findings do not provide me with sufficient material to conduct a review. I am therefore unable to conduct a review of the Arbitrator’s decision.
It is no fault of the parties or the Arbitrator that the transcript is incomplete and in circumstances where a complete transcript was available the decision in this matter may be different. However as held in Thompson (see paragraph 27 above) “ultimately it must be said that the Arbitrator erred in failing to provide [adequate] reasons for [her] decision.”
Additionally I have considered the orders made by the Arbitrator which deal with the two applications. The transcript demonstrates that the Arbitrator clearly sought to make orders in relation to both Applications before her. However the findings appear to deal with the Application made by Mrs Maude’s solicitors and do not make findings referable to the Application made by Anglicare. The Arbitrator made an award in favour of Mrs Maude and the status of that matter is clear. However the status of the Application made by Anglicare has not been properly concluded and in failing to do so, the Arbitrator erred in law.
Considering all of the circumstances of the case I am not satisfied that I can do justice to the parties in conducting a review limited to the evidence before me. In this matter the adequacy and content of the Arbitrator’s reasons are in issue and the transcript is incomplete. I cannot be satisfied, on the evidence before me (and taking into account the incomplete transcript of proceedings) that the Arbitrator properly considered both of the applications before her; all of the evidence and undertook a review of the ‘change of circumstance’ required in accordance Section 55 of the 1987.
I am satisfied that the Arbitrator has made an error of law in failing to give adequate reasons and in failing to properly consider and finalise both applications before her and the decision of is revoked.
DECISION
The decision of the Arbitrator dated 27 June 2005 is revoked. Applications numbered WCC 4083-05 and WCC 6130-05 are remitted to another Arbitrator for conciliation, or determination afresh if the parties are unable to come to an agreement.
COSTS
Neither the Appellant nor the Respondent has made submissions in relation to the issue of costs. Having regard to the circumstances of the case, the relevant legislation (section 341(4) and section 354(5) of the 1998 Act) in my view, it is appropriate that I make no order as to the costs of this appeal.
Elizabeth Tydd
Acting Deputy President
21 June 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ELIZABETH TYDD, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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