Symbion Health Limited (formerly Mayne Group Limited) v Jimmy Franks & Linfox Australia Pty Limited
[2007] NSWWCCPD 93
•11 April 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Symbion Health Limited (formerly Mayne Group Limited) v Jimmy Franks & Linfox Australia Pty Limited [2007] NSWWCCPD 93
APPELLANT: Symbion Health Limited (formerly Mayne Group Limited)
FIRST RESPONDENT: Jimmy Franks
SECOND RESPONDENT: Linfox Australia Pty Limited
APPELLANT INSURER: Self insurer
SECOND RESPONDENT INSURER: Allianz Australia Workers Compensation (NSW) Limited
FILE NUMBER: WCC4173-05
DATE OF ARBITRATOR’S DECISION: 25 September 2006
DATE OF APPEAL DECISION: 11 April 2007
SUBJECT MATTER OF DECISION: Admissibility of evidence; injury; disease; incapacity; weight of evidence; jurisdictional error – absence of a duly made claim; validity of a Medical Assessment Certificate; adequacy of reasons, apportionment and contribution; application of sections 16 and 38 of the Workers Compensation Act 1987.
PRESIDENTIAL MEMBER: Acting Deputy President Deborah Moore
HEARING:On the papers
REPRESENTATION: Appellant: Leigh Virtue & Associates
First Respondent: Braye Cragg
Second Respondent: Hunt & Hunt
ORDERS MADE ON APPEAL: 1. The decision of the Arbitrator dated 25 September 2006 is revoked.
2. The matter is remitted to another Arbitrator for redetermination.
3. No order as to costs of the appeal.
BACKGROUND TO THE APPEAL
On 23 October 2006 Symbion Health Limited (formerly Mayne Group Limited) (‘Mayne’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision of a Commission Arbitrator dated 25 September 2006.
The Respondents to the appeal are Jimmy Franks (‘the Worker’/First Respondent) and Linfox Australia Pty Limited (‘Linfox’/the Second Respondent).
The Worker is 41 years of age. He commenced employment as a storeman/forklift driver with Mayne in about December 1995. Linfox then apparently took over the company on or about 3 February 2002 and he continued working in the same capacity for Linfox until September 2004.
The Worker claimed that his principal duties involved driving a forklift. Because the Worker had limited vision in his left eye, he claimed that “… as a result of repetitive flexion, extension and rotation of the neck” he suffered an injury to his neck and left shoulder.
In an undated and unsigned statement annexed to his application (to which I will refer later), the Worker claimed that in about 1998 his neck became particularly sore such that he was required to consult his general practitioner, Dr McCarthy. He was off work a week, apparently undertook physiotherapy and then resumed his normal duties. The Worker claimed that there was “no particular incident which caused this problem … it just came on over time.”
The Worker claimed that in about 1999 “the same thing happened again … once again there was no specific incident.” Again, the Worker was apparently off work for a week following a further consultation with Dr McCarthy, underwent physiotherapy and then resumed his normal duties.
The Worker stated that “… my neck never got better from that time on.”
The Worker stated that, during his periods off work in 1998 and 1999, he reported his injuries and made a claim which was accepted by Mayne.
The Worker alleged that in about February 2003, when his employment was effectively transferred to Linfox, the work load increased and that his neck “became very bad”. The Worker alleged that in March 2003 as he went to move a pallet his neck “cramped up” and he was forced to cease work. He was apparently off work until about June 2003 and resumed on selected duties on various hours on various days until his employment was terminated by Linfox on 24 September 2004.
Liability was declined by Mayne from 19 March 2004.
On 18 March 2005 the Worker filed an ‘Application to Resolve a Dispute’ in the Commission seeking weekly benefits compensation, medical, hospital or related expenses and permanent impairment/pain and suffering compensation pursuant to the provisions of the Workers Compensation Act 1987 (‘the 1987 Act’) and the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) from both Mayne and Linfox. As against Mayne, the Worker claimed that as a result of injuries on 13 November 1998, 30 August 1999, 11 July 2002 and 10 March 2003 [sic] together with the nature and conditions of his employment between 11 December 1995 and 2 February 2003 he sustained injuries to his neck and left shoulder. In the alternative, it was alleged that his employment duties aggravated or exacerbated a disease process affecting his neck and shoulder. He sought weekly benefits compensation to 19 Mach 2004.
As against Linfox, the Worker claimed that on 11 July 2002 [sic], and 10 March 2003, and as a result of the nature and conditions of his employment between 3 February 2003 and 24 September 2004 he similarly suffered injuries to his neck and left shoulder. A “disease” allegation was similarly raised and again, weekly benefits compensation was sought from 19 March 2004.
The Worker’s claims for lump sum compensation were referred to an ‘Approved Medical Specialist’ (‘AMS’) on 27 May 2005 following a Teleconference. The Worker was assessed by Dr Robin Higgs, AMS, on 1 August 2005. Following that examination, a Medical Assessment Certificate (‘MAC’) was issued on 21 September 2005. On 14 October 2005 Mayne made an application to appeal against the assessment of Professor Higgs. The appeal was successful and a fresh MAC was issued on 20 July 2006. I will deal with the MAC in more detail below.
The parties attended a conciliation/arbitration hearing on 7 September 2006. No oral evidence was given at that hearing. All parties made oral submissions which are recorded in the transcript.
The Arbitrator found in favour of the Worker, and it is against that decision that Mayne now seeks leave to appeal.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’ dated 25 September 2006 with an accompanying ‘Statement of Reasons’ records the Arbitrator’s determination as follows:
“(i) The Respondents to pay weekly compensation to the Applicant in the contributions set out in the decision, being one twelfth for the Second Respondent and eleven-twelfths for the First Respondent, as follows:
(a) $286.45 per week pursuant to section 40 for the period 19 March 2004 to 9 July 2004;
(b) $204.70 per week pursuant to section 40 for the period 10 July 2004 to 24 September 2004;
(c) $634.31 per week pursuant to section 38 for the period 25 September 2004 to 24 March 2005;
(d) $507.44 per week pursuant to section 38 for the period 25 March 2005 to 24 September 2005; and
(e) $210.00 per week pursuant to section 40 from 25 September 2005 to date and continuing.
(ii) The Respondents to pay the Applicant’s reasonable and necessary section 60 expenses in the same contributions.
(iii) The Respondents to pay the Applicant’s costs as agreed or assessed.
(iv) The permanent impairment dispute is to be referred to the ‘AMS’ with a deemed date of injury of 10 March 2003.”
LEAVE TO APPEAL
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 at issue on appeal satisfies the threshold requirements in section 352(2) of the 1998 Act. The appeal was filed in time in compliance with section 352(4) of the 1998 Act.
Leave to appeal is granted.
ON THE PAPERS REVIEW
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”.
In its appeal application filed on 23 October 2006, Mayne indicated that it had not been able to finalise all of its submissions and grounds of appeal as it had not yet obtained a transcript. Mayne submitted that the matter required the appointment of a hearing before a Presidential Member. On 13 November 2006 the Commission forwarded to both Mayne and his solicitor a copy of the transcript advising as follows:
“If you have indicated in your submissions on appeal that you have been unable to complete your grounds of and/or submissions on appeal for the reason that the transcript of proceedings had not been received by you at the date of lodgement, you are required to complete and lodge in the Commission your final grounds and/or submissions on appeal and serve on all other parties to the appeal in accordance with Practice Direction No. 6”.
In a letter dated 20 November 2006 addressed to the Commission, Mayne’s solicitor had acknowledged receipt of the transcript and stated:
“As already indicated it is our preference to finalise these matters and address transcript and any submissions made in opposition (if any are filed) at a hearing before a Presidential Member”.
No further submissions were filed by Mayne.
On 10 November 2006 Linfox filed a ‘Notice of Opposition to Appeal’ indicating, inter alia, that “the appeal should be decided on the papers”.
As Acting Deputy President Candy recently said in Mayne Group Limited v O’Neill & Anor [2007] NSWWCCPD 85 (‘O’Neill’) at para 22:
“It is not appropriate for a party to an appeal to ‘require’ a hearing before a Presidential member. Written submissions should be made in as complete and full a form as is possible so that the appeal may be determined ‘on the papers’ if that course is found to be appropriate”.
Similarly, a party’s “preference” is not a proper basis for requiring an oral hearing particularly in circumstances where the other relevant party (Linfox) has indicated the matter is suitable for a determination ‘on the papers’. I note at this point that no ‘Notice of Opposition’ or submissions to the appeal have been filed by the Worker.
The Appellant has cited 21 grounds of appeal, many of which are either duplicated or overlap. The Appellant maintains that “… as this matter involves complex factual and legal issues … this matter cannot be dealt with on the papers and requires the appointment of a hearing before a Presidential Member”.
I am not persuaded that the issues raised are of such difficulty or complexity that an oral hearing is required. It is perhaps appropriate to note at this point that similar issues were dealt with extensively by ADP Candy in the recent decision of O’Neill to which I have referred which involved the same legal representative for the Appellant as in this matter.
Moreover, since no oral evidence was given, the transcript essentially records the parties’ submissions before the Arbitrator.
Having regard to Practice Directions No’s 1 and 6, all the documents that are before me, the submissions on appeal by both Mayne and Linfox together with the authorities to which Mayne has referred, 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 ISSUES IN DISPUTE
As I said earlier, Mayne identified 21 grounds of appeal which may be summarised as follows:
1.whether Mayne was denied natural justice and procedural fairness in the conduct of the proceedings in particular, the Arbitrator’s acceptance of statements by the Worker “… in circumstances where those statements were unsigned, not adopted and untested (and unable to be tested because of the rules);
2.whether the Arbitrator erred in nominating 10 March 2003 as the deemed date of injury and indeed erred in her assessment of the evidence in relation to the issue of injury;
3.whether the Arbitrator erred in apportioning liability and/or the method of apportionment;
4.whether the Arbitrator properly dealt with the issue of incapacity in light of all the evidence that was before her.;
5.whether the Arbitrator had jurisdiction to determine ‘injury’ allegedly resulting from the ‘nature and conditions of employment’ in the absence of evidence of a duly made claim for compensation in respect of that allegation;
6.whether the Arbitrator erred in her determination of the ‘disease’ issue;
7.whether the Arbitrator gave appropriate weight to certain pieces of evidence and gave inappropriate weight to other evidence, in particular, the Worker’s Wage Schedule;
8.whether the Arbitrator’s award pursuant to sections 38 and 40 of the 1987 Act were proper in the circumstances, particularly the award as against Mayne pursuant to section 38, and
9.whether the Arbitrator erred in “… purporting to revisit …” the MAC of Professor Higgs in circumstances where it had been revoked by the Medical Appeal Panel and a further certificate issued.
THE ARBITRATOR’S DETERMINATION AND REASONS
The Arbitrator prepared a detailed and comprehensive ‘Statement of Reasons’. She detailed all the documentary evidence before her and summarised all the medical evidence, noted the oral submissions of the parties at the hearing before setting out her “findings and reasons”. Her findings are summarised as follows:
·The Arbitrator rejected submissions made by both Mayne and Linfox that the Worker’s unsigned and undated statements had “… no evidentiary or probative value … and should therefore be given little weight.” The Arbitrator noted that statements were consistent with both histories obtained by all the doctors and with other documentary evidence before her and concluded that:
“Accordingly, I have no reason to reject the statements and I accept them as being an accurate account of the history of the Applicant’s development of symptoms and his work history with the two Respondents despite being unsigned and undated.”
·Having considered the evidence from the Worker and all the medical evidence before her, the Arbitrator accepted that the Worker had suffered an injury to his neck as a result of his work activities with both Mayne and Linfox as a forklift driver, and that the injury was in the nature of an aggravation, exacerbation, acceleration or deterioration of a disease, in this case, cervical spondylosis, a degenerative disease of the cervical spine such that the provisions of section 4(b)(ii) of the 1987 Act were satisfied. The Arbitrator accepted that “the Worker’s employment with both Respondents was a substantial contributing factor to his injury.”
·The Arbitrator then considered the provisions of section 16 of the 1987 Act and the evidence as to the deemed date of injury. The Arbitrator noted that following the incidents in 1998 and 1999, the Worker returned to his pre-injury employment. She noted that he continued in that employment until March 2003 when he went off work for some months. The Arbitrator stated “From that date on he never returned to fulltime pre-injury employment. Although he was able to return to some of his pre-injury employment, it was always on variable reduced hours until his employment was terminated in September 2004.
Consequently, the Arbitrator concluded that “… the Applicant’s incapacity for the purposes of a deemed date of injury is 10 March 2003, when he reports an aggravation and goes off work and does not ever return to his pre- injury employment”.
·The Arbitrator noted that the Worker had commenced employment with Linfox approximately one month prior to the deemed date of injury, and determined that Linfox was liable to pay compensation to the Worker pursuant to section 16(1)(b). The contributions payable, applying the formula set out in section 16, were therefore one twelfth by Linfox and eleven twelfths by Mayne.
·The Arbitrator concluded, on all the material before her, that the Worker was partially incapacitated for employment and had been since 19 March 2004 when liability was declined. The Arbitrator accepted a Wage Schedule filed by the Worker as to his probable earnings but for injury in 2006 as being $660.00 per week noting that neither Mayne nor Linfox “placed any evidence before me contesting this amount.”
·There was however some evidence with respect to the Worker’s remuneration between the period 19 March 2004 and 24 September 2004. The Arbitrator calculated the Worker’s probable earnings as at March 2004, his actual earnings in the period March to September 2004, and made an award under section 40 of the 1987 Act during that period.
·The Arbitrator then accepted that the provisions of section 38 of the 1987 Act applied to the Worker’s circumstances following his termination by Linfox on 24 September 2004. She provided detailed reasons and calculations in respect of her assessment of that award for the period 25 September 2004 to 24 September 2005.
·Thereafter, the Arbitrator noted the obligations in calculating an award pursuant to section 40 of the 1987 Act as set out in the Court of Appeal decision of Mitchell v Central West Health Service (1997) 14 NSWCCR 527.
·The Arbitrator then determined that the award would be paid eleven twelfths by Mayne and one twelfth by Linfox.
·As to the MAC of Professor Higgs, the Arbitrator said this:
“It was submitted on behalf of the Applicant that the MAC should be interpreted to say that Professor Higgs intended that the whole person impairment assessment to be 13% to be paid by the First Respondent and 4% by the Second Respondent. It is my view that the MAC is flawed as Professor Higgs made assessments based on incorrect dates of injury, which were referred to him. The Medical Appeal Panel decision does not assist in this regard. It is my view that the permanent impairment dispute should be referred back to the AMS to assess of [sic] the degree of permanent impairment of the injury attributable to the deemed date of injury of 10 March 2003”.
I will discuss these findings of the MAC and the Appeal Panel in more detail below.
THE MEDICAL ASSESSMENT CERTIFICATE AND APPEAL
It is appropriate at this stage to deal with what transpired following the referral to the AMS and the subsequent Medical Appeal Panel.
As I said earlier, the Worker was referred for assessment of Whole Person Impairment (‘WPI’) by the Arbitrator on 27 May 2005. The referral document noted the following:
“Frank dates of injury – 13 November 1998, 30 August 1999, 11 July 2002 and 10 March 2003 together with the nature and conditions of employment from 11 December 1995 to 2 February 2003 and nature and conditions of employment from 3 February 2003 to 24 September 2004. Notational date of injury – 24 September 2004 being last date of employment.”
The Worker was assessed by Professor Higgs whose MAC was issued on 21 September 2005.
In brief, Professor Higgs concluded as follows:
“The impairment of neck function can be represented in percentage terms by a 20% permanent impairment of function of the neck … With regard to the impairment of neck function, I have formed the opinion that one-fifth (1/5) of the impairment of neck function is causally associated with pre-existing, and co-existing, age caused degenerative cervical spinal spondylosis and intervertebral pathology. I have further formed the opinion that four-fifths of the impairment of neck function can be causally associated with the consequence of work injury and with the consequences of the Nature and Conditions of working activities. My consideration of all of the evidence has caused me to conclude that work prior to 01/01/02 is cause for a 10% impairment of neck function and that employment subsequent to 01/01/02 is cause for a 6% impairment of neck function.”
Professor Higgs also concluded that the Worker suffered a 12% loss of efficient use of his left arm of which 8% “… can be causally associated with employment prior to 01/01/02”.
Professor Higgs concluded that the Worker suffered a 13% WPI associated with impairment of the cervical spine. One fifth of the WPI he assessed as being non work related, and four fifths “causally associated with the consequences of employment.” He assessed “10% WPI (rounded down)” causally associated with employment activities of which “7% WPI (rounded)” was causally associated with employment prior to 01/01/02 and 3% WPI (rounded) in respect of employment subsequent to 01/01/02.
Professor Higgs’ summary table was not easily decipherable however, it appears that he assessed the Worker as suffering from 20% of his neck in respect of injuries received prior to 1 January 2002 of which one fifth was “… age caused and 6/20 is due to injuries suffered after 01/01/02. He assessed 5% impairment of the neck attributable to injury on 13 November 1998, 5% to injury to 30 August 1999 and 10% due to nature and conditions of employment between December 1995 and December 2001.
Professor Higgs assessed 15% loss of the left arm of which 4% was attributable to injury on 13 November 1998, 4% to injury on 30 August 1999 and 8% due to the nature and conditions of employment for the period December 1995 to December 2001.
In his Whole Person Impairment Table, similar difficulties are encountered. Professor Higgs appears to have assessed 13% WPI and attempted to apportion that assessment between the two employers somehow arriving at a “total % WPI” of 4%.
Mayne appealed this decision on the grounds that Professor Higgs’ assessment was made on the basis of incorrect criteria and contained a demonstrable error. In a ‘Statement of Reasons’ issued by the Appeal Panel on 20 July 2006, the Panel reviewed Professor Higgs’ assessment noting the following salient points:
·“The Panel, having reviewed the reports of Doctors Hughes and Edwards, is of the opinion that neither of these reports would significantly change the result.
·The AMS clearly sets out the dates which he is required to refer to at paragraph 3 on page 2 of the Medical Assessment Certificate. He states that these dates have been provided to him by the AMS referral.
·The Panel found that the summary tables attached to the Medical Assessment Certificate did not effectively reflect the finding of the AMS, with which the Panel largely agreed. The tables did not address each frank injury or each period of nature and conditions of employment as required and this is now being done.
·For these reasons, the Panel has therefore determined that the Medical Assessment Certificate issued 21 September 2005 in this matter should be revoked, and a new medical Assessment Certificate should be issued.”
The Appeal Panel issued two fresh Medical Assessment Certificates. In respect of injuries received prior to 1 January 2002, the panel made the following assessments:
·“5% impairment of the neck due to injury on 13/11/98.
·5% impairment of the neck due to injury on 30/08/99.
·10% impairment of the neck due to “nature and conditions of employment with First Respondent during the period 11/12/95 to 31/12/01. Deemed date 31/12/01.”
The Panel also assessed loss of use of the left arm at or above the elbow in the following terms:
·“4% loss due to injury on 13/11/98.
·4% loss due to injury on 30/08/99.
·8% loss due to “nature and conditions of employment with First Respondent during the period 11/12/95 – 31/12/01.”
In relation to injuries received after 1 January 2002, the Panel made the following assessments:
·“1% WPI (rounded down) in respect of injury to the cervical spine on 24/09/04.
·3% WPI (rounded up) in respect of injury to the cervical spine as a result of “employment with the First Respondent during the period 01/01/02 – 02/02/03 (13 months).
·0% WPI due to injury to the cervical spine for the period “01/01/2002 to 24/09/04 nature and conditions.”
Total WPI was 4%.
In its ‘Statement of Reasons’, the Medical Appeal Panel noted that it had received all of the documents that were sent to the AMS for the original assessment and “… taken them into account in making this determination.”
Thus it is fair to say that the Panel “largely agreed” with the findings and assessment of Professor Higgs, essentially confirming his findings of 20% permanent impairment of the neck, 15% loss of use of the left arm at or above the elbow and 4% WPI. Essentially, the Medical Appeal Panel ‘rearranged’ the assessments to accord with the dates of injury as provided by the Arbitrator in her letter of referral dated 27 May 2005.
In those circumstances, the Arbitrator was entitled to have regard to the primary findings of Professor Higgs in his MAC insofar as the Medical Appeal Panel did not interfere with those aspects of the MAC, stating that the Panel “largely agreed” with the finding of the AMS.
In my view, it was open to the Arbitrator to “revisit” the MAC of Professor Higgs in the manner in which she did. The Arbitrator noted at paragraph 8 of her ‘Statement of Reasons’ that the MAC had been revoked by the Medical Appeal Panel and a fresh certificate issued. At paragraph 19 of her ‘Statement of Reasons’ she said this:
“In relation to the issues in which a ‘Medical Assessment Certificate’ is not conclusively presumed to be correct, the AMS opinion is as follows:
‘Professor Higgs is of the view that the Applicant had aged caused degenerative cervical spinal spondylosis and intervertebral disc pathology. He considered that the left shoulder condition was due to brachialgia that was associated with and a consequence of cervical spine degenerative pathology. He considered that the Applicant’s work was a substantial contributing factor to this injury and to his present condition. Professor Higgs was also of the view that ‘it can be concluded that degenerative orthopaedic pathology should be regarded as being a disease’”.
THE SUBMISSIONS, EVIDENCE AND FINDINGS
The Worker’s Statements
The Appellant submits that it was denied natural justice and ‘procedural fairness’ in the manner in which the Arbitrator dealt with the conduct of the proceedings in particular:
“… The decision of the Arbitrator to admit and have regard to what was alleged to have constituted statements by the Respondent Worker in circumstances where those statements were unsigned, not adopted and untested (and unable to be tested because of the rules). The Arbitrator erred in having regard to the statements in any event for the reasons already indicated.”
Annexed to the Worker’s Application were two statements, both of which were unsigned and undated, although the latter statement refers to “… my statement of March 2004 …”
The transcript records that both Mayne and Linfox objected to any reliance on these statements at the hearing before the Arbitrator. At page 13 of the transcript, Mayne’s solicitor said this:
“… There is no evidence from the Applicant in. There are unsigned statements which, in my respectful submission, have no evidentiary value at all and don’t comply with the rules … essentially they are bits of paper that purport to be statements from the Applicant. They haven’t been adopted, they haven’t been signed. They have no evidentiary value. So what you’re left with is the documentary evidence…”
At page 18 of the transcript, Counsel for Linfox stated:
“There’s no evidence from the Applicant. Leaving aside the fact that he hasn’t signed his statement, there is no evidence as to the nature and the type of work that he was doing with the second Respondent …”.
Thereafter, Counsel for Linfox proceeded to quote from the Worker’s statement in his submissions to the Arbitrator.
Rule 14.2 of the Workers Compensation Commission Rules 2006 (‘the Rules’) requires a party proposing to rely on the oral evidence of a witness to lodge and serve a written statement “… signed by the witness …”. Significantly, Rule 14.2(5) provides that: “Where a party proposes to give oral evidence, this rule applies to the party as though the party were the party’s witness as well as being the party.”
It appears from the transcript that no attempt was made to arrange for the Worker to sign his statements such that he may then have been able to given oral evidence if so required. Counsel for the Worker, when told that the ‘statements’ were unsigned, said at page 3: “They’ve been in the ARD from the beginning. So that’s the evidence of the Applicant.” The Arbitrator responded: “Alright … do you want to proceed?”
As to this issue, the Arbitrator said at paragraph 21 of her ‘Statement of Reasons’:
“It was submitted on behalf of the Respondents that the statements of the Applicant have no evidentiary or probative value as they are unsigned and undated and should therefore be given little weight. Statements provided by the Applicant are entirely consistent with histories obtained by all of the doctors in the medical reports before me and with the claim forms and reports of injury as well as all of the other documentation before me. Accordingly, I have no reason to reject the statements and I accept them as being an accurate account of the history of the Applicant’s development of symptoms and his work history of the two Respondents despite being unsigned and undated.”
Rule 10.3 of the Rules provides that a party lodging an ‘Application to Resolve a Dispute’ must provide “… all information and documents on which the party proposes to rely …” There is no specific requirement in the Rules for a worker to provide a written statement.
However, in the present case, the real issue is whether or not the Arbitrator was entitled to accept the Worker’s purported statements as evidence in the proceedings.
As I have said, the statements were not signed but more importantly, do not appear at any stage of the proceedings to have been effectively ‘adopted’ by the Worker.
I note also Rule 15.2 of the Rules which provides as follows:
“When informing itself on any matter, the Commission is to bear in mind the following principles:
(a) Evidence should be logical and probative,
(b) Evidence should be relevant to the facts in issue and the issues in dispute,
(c) Evidence based on speculation on unsubstantiated assumptions is unacceptable,
(d) Unqualified opinions are unacceptable.”
In my view, a statement that is unsigned and not adopted is not a proper statement, is unsubstantiated, and is not in effect evidence at all.
The rules of evidence and in particular, the admissibility of evidence, were recently considered by the Court of Appeal in South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 (‘Edmonds’) McColl JA made the following pertinent observations:
“127.While the Commission may inform itself on any matter in such manner as it thinks appropriate and as the proper consideration of the matter before it permits (s 354(2)), r 70 of the Workers Compensation Commission Rules 2003 provides that when informing itself on any matter, the Commission is to bear in mind the principles that evidence should be logical and probative, should be relevant to the fact in issue and the issues in dispute, that evidence “based on speculation or unsubstantiated assumption is unacceptable” and that “unqualified opinions are unacceptable”.
128.Rule 70 broadly reflects fundamental principles of the common law concerning admissibility of evidence. Indeed, in Aluminium Louvres & Ceilings Pty Ltd v Zheng [2004] NSWWCCPD 26 (at [24]) Deputy President Fleming said:
“Where the rules of evidence do not apply, the conduct of proceedings will be a matter to be determined according to principles of fairness, taking into account the nature of the proceedings, the legislative requirements and the demands of the instant case. The Commission may have regard to evidence that would not be admissible in a court in accordance with the rules of evidence. Fairness must guide the weight to be given to this evidence.
129 Where the rules of evidence do not apply, in order to find error of law based on absence of evidence there must be an absence of material, whether strictly admissible according to the rules of evidence or not: Smith & Anor v Collings Homes Pty Ltd & Anor [2004] NSWCA 75 at [32] per Mason P (Handley JA and Campbell J agreeing).”
In the present case, clearly there was ‘material’ purporting to be statements of the Worker. The question is whether it was appropriate for the Arbitrator to have regard to that material which would not normally be admissible according to the rules of evidence. Adopting the language of Deputy President Fleming in Aluminium Louvres & Ceilings Pty Limited v Zheng [2004] NSWWCCPD 26, “fairness must guide the weight to be given to this evidence”.
Applying principles of fairness to the facts and circumstances of this case does not in my view permit the admission of the purported statements. Although unsigned, if they had been adopted in any way by the Worker, either through questions from the Arbitrator enabling her to “inform” herself on an issue, or by some other means, I would consider them admissible in the context of the nature of proceedings before the Commission. The fact remains however that they were not, and thus cannot be regarded as proper statements or evidence at all, and, to quote McColl JA again in Edmonds (paragraph 131) did not conform “… to common law standards of admissibility designed to ensure they have probative value”. Moreover, the ‘statements’ were unauthenticated and inadmissible in accordance with the Evidence Act 1995.
Accordingly, I am of the view that the Arbitrator erred in accepting those statements into evidence notwithstanding that they were, in my view, as the Arbitrator pointed out, broadly consistent with most of the documentary evidence before her.
An appeal pursuant to the provisions of section 352 of the 1998 Act is by way of ‘review’. I have considered whether, in this context, I am able to proceed to review the Arbitrator’s determination in the absence of the Worker’s purported statements in line with the principles enunciated by the Court of Appeal in Daw v Toy World (NSW) Pty Limited [2001] NSWCA 25. In that case, the Plaintiff argued that the Trial Judge erred in placing any reliance at all on a set of clinical notes purportedly of unknown origin. These notes had been referred to by one of the Defendant's qualified doctors whose reports were admitted into evidence before the Trial Judge without objection. Heydon JA said (paragraph 46):
“First, if the document was of unknown origin, it could have been objected to as unauthenticated and irrelevant. The Evidence Act 1995 does not permit documents to authenticate themselves save in limited circumstances: National Australia Bank Limited v Rusu (1999) 47 NSWLR 309.”
He went on to note at paragraph 70:
“Secondly, while at common law the history taken by a doctor and repeated as the basis for that doctor's opinion evidence had to be admissibly proved if it was to be received as evidence of the facts stated (e.g. Ramsey v Watson (1961) 108 CLR 642 at 649), that rule has been reversed by s 60 of the Evidence Act Section 60 provides:
‘The hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of the fact intended to be asserted by the representation.’
The "previous representations" in medical reports are relevant for a purpose other than proof of the fact intended to be asserted by the representation. Hence the hearsay rule does not apply to the evidence of previous representations, and they are admissible. That at least is what the Court of Criminal Appeal held in R v Welsh (1996) 90 A Crim R 364. While the Court of Criminal Appeal is not bound by decisions of the Court of Appeal, the Court of Criminal Appeal "would naturally have great regard for a carefully considered decision of the Court of Appeal": R v Masters (1992) 26 NSWLR 450 at 472. The Court of Criminal Appeal will follow decisions of the Court of Appeal unless convinced they are plainly wrong: R v O'Halloran [2000] NSWCA 528 at para 92. In my judgment the same applies where the Court of Appeal is confronted with a decision of the Court of Criminal Appeal in point. I do not consider that the decision of Hunt CJ at CL, Newman J and Bell AJ in R v Welsh was plainly wrong. It follows that it does not matter that it is not possible to point to some other hearsay exceptions such as those relating to business records to support the reception of histories and other factual material in clinical notes.”
Whilst I may have regard then to the Worker’s statements to the various doctors he consulted, notwithstanding his ‘unauthenticated’ statement, this regrettably is not an end to the matter. It is clear from the Arbitrator’s ‘Statement of Reasons’ not only that she adopted the ‘statements’ in summarising “the Injury and Nature of the Claim,” but also relied substantially on that material in determining the award of weekly payments. For example, at paragraph 33, she noted the Worker’s ‘claim’ that after March 2004 “… He was only paid for the hours he worked by the Second Respondent.” Some material was provided by the Second Respondent as to the Worker’s earnings in 2004, and the Arbitrator concluded (paragraph 34) that: “In the absence of any evidence to the contrary I accept the Applicant’s claim that he was not paid make-up pay … during the period 19 March 2004 to 24 September 2004 and I accept that it is in the terms claimed by the Applicant.”
Similarly, statements made by the Arbitrator in relation to the award pursuant to section 38 of the 1987 Act appear to be based solely on the Worker’s purported statements.
In the absence of other evidence on this issue, and disregarding the purported statements of the Worker, it is with considerable reluctance that I must conclude that I am not adequately able to review the Arbitrator’s determination.
I say this not only because the Arbitrator’s determination, in my view, was in all other respects thorough and well reasoned, but also because of the advanced state of the proceedings, particularly the proceedings before the Medical Appeal Panel.
In reaching this conclusion, I have had regard to the views of Bryson JA (with whom Handley JA and Bell J agreed) in Aluminium Louvres & Ceilings Pty Limited v Zheng [2006] NSWCA 34 at paragraph 38 as follows:
“A review is a different process to an appeal and the matters which may be considered and the manner in which they may be considered are somewhat wider. See Boston Clothing Co Pty Ltd v. Margaronis (1992) 27 NSWLR 580 at 584 (Kirby P). An attack, on review or otherwise, on an Arbitrator's discretionary decision in controlling procedure may be based on the test stated in House v. R (1936) 55 CLR 499 at 504 - 505; but that is not the only basis on which the Presidential member may act. The powers of a Presidential member on review are somewhat wider and extend to power to reopen consideration of a matter of which an Arbitrator has disposed; the manner in which the powers of the Presidential member are to be exercised is itself the subject of discretion of the Presidential member. I see no ground upon which it could be doubted that the Deputy President acted within her discretionary powers in disposing of the matter as she did. No rule of law required the Arbitrator not to limit cross-examination, and the view that there was no want of procedural fairness was a view which the Deputy President could reasonably reach without any error of law.”
I am not persuaded that the exercise of my discretion permits me to adopt material that is not strictly admissible according to the rules of evidence where that material fails to conform to Rule 70 of the Workers Compensation Commission Rules 2003 (Rule 15.2 of the Rules) notwithstanding the broad powers of the Commission in the conduct of proceedings as set out in section 354 of the 1998 Act.
It is regrettable to say the least that this situation has developed, but I see no alternative other than to refer the matter to another Arbitrator for redetermination of all issues. Hopefully, the defects in the Worker’s case can be cured by appropriate application to the Commission prior to redetermination.
CONCLUSION
Having concluded that the Worker’s purported statements were inadmissible, and wrongly accepted into evidence over objections by both Mayne and Linfox, it is not necessary for me to consider the other grounds of appeal raised by Mayne, and I do not propose to comment further upon them.
DECISION
1. The decision of the Arbitrator dated 25 September 2006 is revoked.
2. The matter is remitted to another Arbitrator for redetermination.
COSTS
No order as to costs of the appeal.
Deborah Moore
Acting Deputy President
11 April 2007
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DEBORAH MOORE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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