Symbion Health Limited v Ford
[2008] NSWWCCPD 13
•31 January 2008
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 Ford [2008] NSWWCCPD 13
APPELLANT: Symbion Health Limited (formerly Mayne Group Limited)
RESPONDENT: Rodney Ford
INSURER:Self insurer
FILE NUMBER: WCC4442-07
DATE OF ARBITRATOR’S DECISION: 12 September 2007
DATE OF APPEAL DECISION: 31 January 2008
SUBJECT MATTER OF DECISION: Injury; sections 4 and 9A of the Workers Compensation Act 1987; failure to take into account relevant and material considerations; fresh evidence.
PRESIDENTIAL MEMBER: Deputy President Gary Byron
HEARING:On the papers
REPRESENTATION: Appellant: Leigh Virtue & Associates
Respondent: Slater & Gordon
ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 12 September 2007 is revoked and the matter is remitted to another Arbitrator for determination afresh, according to law and these Reasons.
No order is made as to the costs of this Appeal.
BACKGROUND
On 9 October 2007 Symbion Health Limited (Formerly Mayne Group Limited) (‘Symbion’), the Appellant Employer, sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 12 September 2007. Symbion is a self-insurer.
Mr Rodney Ford, the Respondent Worker in this appeal, commenced employment in 1986 with Armaguard, part of the Mayne Group of companies, as an escort driver. In 1995 he became a dispatcher, which required him to handle bags of coins. He had been employed by Mayne Group, now Symbion, until 3 February 2003 at which time his employer became Linfox, a separate employer and separately insured as a corporation.
Mr Ford claims to have suffered two frank injuries. The first is said to have occurred on 2 July 1998, being a left knee twist injury while alighting from his car, when arriving at work, and the second on 27 December 2001, again a left knee twist injury, while climbing out of the armoured truck.
Mr Ford filed an ‘Application to Resolve a Dispute’ on 19 June 2007 claiming medical expenses pursuant to section 60 of the Workers Compensation Act 1987 (‘the 1987 Act’) and permanent impairment including pain and suffering compensation.
On 3 July 2007, Symbion filed a ‘Reply to Application to Resolve a Dispute’ (‘Reply’) in the Commission.
The claim was listed for a conciliation/arbitration hearing before a Commission Arbitrator on 24 August 2007, and on 12 September 2007 the Arbitrator issued a ‘Certificate of Determination’ in terms set out below at paragraph 18 and a ‘Statement of Reasons for Decision’ (‘Reasons’).
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 Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’). Section 352(4) states that an appeal can only be made within 28 days after the making of the decision appealed against. Symbion’s appeal was lodged on 9 October 2007, in compliance with that section 352(4).
For the Commission to grant leave to appeal, the appeal must also meet the monetary threshold imposed by section 352(2), which provides:
“The Commission is not to grant leave to appeal unless the amount of compensation at issue on the appeal is both:
(a)at least $5,000 (or such other amount as may be prescribed by the regulations), and
(b) at least 20% of the amount awarded in the decision appealed against.”
Symbion submits that the amount of compensation in issue on appeal exceeds $5,000 and is 100% of the amount at issue in the proceedings. Mr Ford makes no submission in this regard. I concur in Symbion’s submission.
Both sections 352(2)(a) and (b) of the 1998 Act are satisfied.
Leave to appeal is granted.
PRELIMINARY MATTERS
Section 354(6) of the 1998 Act provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Symbion submits:
“…this is a matter which should not be determined on the papers but rather should be given an oral hearing before a Presidential member as the Appeal involves complex issues which would benefit from such an oral hearing. Further, transcript of the proceedings is not available at the time that the Appeal is filed and such Transcript is, in the view of the Appellant, best addressed at an oral hearing”.
On 15 October 2007 Symbion wrote to the Commission requesting the Transcript of the Proceedings (‘Transcript’) and on 7 November 2007 the Registrar sent to both parties a copy of the Transcript. The Registrar’s covering letter enclosing the Transcript stated the following:
“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.”
On 14 December 2007 Symbion filed in the Commission four pages of further submissions. The further submissions included the statement, “The Appellant, having now been provided with a typed transcript of the proceedings before the Arbitrator, seeks to rely on the following, further ground of appeal…”. Symbion also included submissions in response to Mr Ford’s ‘Notice of Opposition to Appeal Against Decision of Arbitrator’ (‘Opposition’) including his request to seek leave to rely on fresh evidence. Symbion states in its covering letter of 12 December 2007 that it served a copy of its further submissions on Mr Ford’s legal representatives, by DX, on that date.
No further submissions were received in the Commission from Mr Ford. Contact was made by the Commission with Mr Ford’s legal representatives to ascertain whether they had received Symbion’s further submissions. They stated that they had not received them and were not aware of them.
In order to allow Mr Ford to make submissions in response to Symbion, should he choose to do so, I issued Directions on 11 January 2008, in the following terms, to the legal representatives of the parties:
“The following directions are made in this matter:
1.A copy of the transcript of the proceedings before the Arbitrator was made available to both parties on 7 November 2007. The Commission’s covering letter enclosing the transcript stated:
‘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.’
2.On 14 December 2007, the Appellant’s legal representatives filed in the Commission further written submissions (consisting of four pages). A further ground of appeal was included in those submissions, along with comments on the contents of the Respondent Worker’s ‘Notice of Opposition to Appeal against Decision of Arbitrator’ that had been filed in the Commission and served upon the Appellant. The Appellant’s legal representatives stated in their covering letter to the Commission, that they served a copy of the further submissions on the Respondent Worker’s legal representatives on 12 December 2007, by DX. No further submissions were received in the Commission from the Respondent Worker or his legal representatives.
Given that an additional ground of appeal was lodged, contact was made with his legal representatives to ensure that the Appellant’s further written submissions had been received. The legal representatives indicated that they had not received them and were not aware of them. That being so, the Respondent Employer [sic] has had no opportunity to respond to the additional ground of appeal and to the Appellant’s further submissions on appeal.
A copy of the Appellant’s letter of 12 December 2007, and the document, ‘Appellant’s Submissions in Reply’, in which the further ground of appeal and further submissions are included, are attached to these Directions. The Respondent Worker is at liberty to lodge further written submissions, restricted to the matters raised or incidental thereto in the ‘Appellant’s Submissions in Reply’, in the Commission.
3.The Respondent Worker’s written submissions are to be filed in the Commission and served on the Appellant Employer or [sic] before Monday 21 January 2008.
4.These Directions and copy of the attached documents should be provided to both parties to this appeal. Following receipt of the written submissions, a decision will be made as to the way in which this appeal should proceed.”
Mr Ford’s solicitors responded to these Directions and filed further submissions in the Commission on 21 January 2008.
A ‘Certificate of Service’ certifying service of the submissions upon the Symbion’s solicitors, by DX and FAX, was also filed in the Commission on 21 January 2008.
Symbion was not required to respond, given the terms of the Directions issued. (See in particular the last paragraph of Direction 2).
In his further submissions, Mr Ford objected to Symbion’s ‘Submissions in Reply’, to which he has now responded. He states:
“1.I note that a Transcript of the proceedings was provided to both parties on 7 November 2007.
2.The Appellant then served Submissions in Reply in the Workers Compensation Commission on 14 December 2007. Those Supplementary Submissions in Reply following receipt of the Transcript were outside the twenty-eight day time period within which such Supplementary Submissions must be filed in the Workers Compensation Commission and served on the other party as stated in Practice Direction No 6 dated 15 November 2007.
3.It is noted that the Respondent did not receive those Supplementary Submissions in Reply but it accepted that they were filed in the Workers Compensation Commission.
4.At the time that the Supplementary Submissions were filed in the Workers Compensation Commission, the time period of twenty-eight days had expired.
5.There has been no explanation provided by the Appellant as to why the Submissions were filed outside that twenty-eight day period and the Respondent worker objects to those Submissions being relied upon by the Appellant employer.”
Practice Direction No 6 ‘Appeal Against a Decision of the Commission Constituted by an Arbitrator’, dated 15 November 2007, issued pursuant to Rule 18.1 of the Workers Compensation Commission Rules 2006 (‘the Rules’), provides, under the heading ‘Procedure for Appeals Against a Decision of an Arbitrator’, the following:
“Any supplementary submissions following receipt of the transcript must be lodged and served within 28 days of the date of the letter from the Registrar addressed to the party enclosing a copy of the transcript.”
Practice Direction 6 was issued in its current form and took effect from 15 November 2007. The previous Practice Direction 6 dated 1 November 2006, contained a similar time limit in connection with the filing of supplementary submissions. The Practice Direction prior to that contained no such time limit.
The letter from the Registrar enclosing the Transcript in this matter was dated 7 November 2007. However, the Registrar’s letter, while setting out the requirements for filing supplementary submissions, did not specify that it should be done with 28 days. No particular time was specified. I understand that the standard letter, enclosing transcript has now been suitably amended to overcome this omission.
It is correct that Symbion filed its supplementary submissions on 14 December 2007. Strictly speaking it is bound by the requirement to file them within the prescribed time limit of 28 days.
However, Mr Ford raises no suggestion of prejudice or injustice should those supplementary submissions be considered in this Appeal. His only objection is that they were filed after the expiration of the 28 days from the date of the Registrar’s letter. Mr Ford has been given the opportunity to respond to those supplementary submissions, and he has chosen to do so. I do not consider that allowing the supplementary submissions to be taken into consideration on Appeal would be prejudicial to him at all, in these circumstances.
I further consider that it would be unfair to exclude Symbion’s supplementary Submissions in light of the fact that Mr Ford has taken the opportunity afforded to him, to respond fully to those supplementary submissions.
The Practice Directions are made under Rule 18.1. Rule 1.6 (2) provides:
“(2) The Commission may if it thinks fit on terms dispense with compliance with any of the requirements of these rules, either before or after the occasion for the compliance arises.”
While Rule 1.6 (2) will be used sparingly and only in appropriate cases, I consider that this is such a case. Accordingly, I dispense with the requirement for Symbion to comply with the requirement to file its Supplementary Submissions within 28 days of the Registrar’s letter enclosing the Transcript.
In terms of the manner in which this Appeal should proceed, Mr Ford submits that the appeal can be determined on the papers. I concur in that submission.
Having regard to Practice Directions Numbers 1 and 6, the nature and substance of the evidence and submissions before the Arbitrator and now before me (including the Transcript of the arbitral proceedings), the written submissions of the parties on appeal, including Symbion’s submissions on appeal and in reply to the Opposition, Mr Ford’s further written submissions in response to the Directions issued, and other relevant documents that are before me, 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.
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 amongst other things, the process for seeking leave of the Commission to give ‘new evidence’ on appeal. It provides as follows:
“FRESH EVIDENCE AND/OR ADDITIONAL EVIDENCE
Each application to introduce fresh evidence or additional evidence on appeal will be considered on its own facts and circumstances and in the context of the Commission’s obligation to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms (see section 354 of the 1998 Act).
In the exercise of its discretion to admit fresh evidence or further evidence on appeal the Commission will have regard to, and the parties should make submissions on, whether:
·it can be demonstrated that the evidence could not with reasonable diligence have been obtained by the party and tendered in proceedings before the Arbitrator;
·the evidence is credible;
·there is a high degree of probability that there would have been a different decision if the evidence had been admitted at the arbitration, and/or
·it is just to admit the evidence in all the circumstances of the individual case.
Parties should be aware that a review under section 352 of the 1998 Act is not a rehearing or hearing de novo. The original arbitration should not be treated as a preliminary hearing and all relevant evidence should be called at that time.”
Practice Direction No.6 also provides that if fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against is relied upon, parties must include:
a schedule of the fresh or additional evidence;
a copy of the fresh or additional evidence;
a brief outline of the fresh or additional evidence and the reasons why it was not given;
a brief outline of the fresh or additional evidence and the reasons why it was not given in proceedings before the Arbitrator, and
submissions as to why the fresh or additional evidence should be admitted, or rejected as the case may be.
Where a party seeks leave to rely on fresh or additional evidence in relation to the decision appealed against, that party must serve a copy of the fresh or additional evidence on the other parties to the dispute when serving the Application or Notice of Opposition. Mr Ford has substantially complied with the procedural requirements of the Practice Direction.
In his Opposition filed on 23 November 2007, Mr Ford seeks leave of the Commission to rely on correspondence dated 23 January 2002 from Toro Havini, Claims Manager, Mayne Workers Compensation Services to Dr Simon Coffey, as ‘new evidence’. In support, Mr Ford’s solicitors submit that when Symbion had filed its Reply to the initial Application, it raised the issue of ‘Notice of Injury’. The solicitors further submit that the Reply, which was received in the Commission on 3 July 2007, had been served directly on Mr Ford and not Mr Ford’s solicitors (McClellands Lawyers, now known as Slater & Gordon) at that time. Mr Ford’s solicitors submit that Mr John Matthews, Solicitor, had conduct of the file from the commencement of the proceedings. However, they state that he was not provided with a copy of the Reply by Mr Ford at, or at any time before, the teleconference on 27 July 2007. The solicitors submit that this was due to Mr Ford being on holidays at the time and having not provided it to Mr Matthews prior to the teleconference. However, Mr Ford participated in the teleconference from his holiday destination. Mr Matthews claims that he did not know specifically what was in issue in the matter until Symbion’s legal representative read out at the teleconference, the issues that Symbion had pleaded in the Reply. (However, it is clear that both Mr Ford and his legal representative both knew that they were to participate in the teleconference, and did so, notwithstanding that apparently, they did not communicate as to the substance of the issues in dispute, between the date that Mr Ford received Symbion’s Reply, and the date of the teleconference).
It is stated by Mr Ford’s solicitors that in the circumstances, Mr Matthews did not have the opportunity to meet that issue immediately and sought to introduce the correspondence dated 23 January 2002 into the proceedings at the arbitration for the sole purpose of the issue of ‘Notice of Injury’ raised in Symbion’s Reply. However this was opposed at the arbitration, and the Arbitrator declined to admit the correspondence into evidence.
Mr Ford submits the following in support of the admission of this additional evidence, on appeal:
“ 8. ...reasonable diligence was applied in seeking to admit the document in the proceedings before the Arbitrator.
9. The evidence is credible as it is a document written by the Respondent insurer to the treating orthopaedic surgeon.
10. It is submitted that where the issue of notice of injury is raised as an issue in this appeal, that in all the circumstances, and given the prior history of the document in the proceedings, that in the interests of justice, the document should be admitted into the proceedings.”
In its submissions in reply filed 14 December 2007, Symbion argues that the document on which Mr Ford now seeks to rely is not new evidence at all as it is clearly evidence which was available to be given at the time of the arbitration; that the document does not address any of the issues in dispute, and does not assist Mr Ford in any event. Symbion submits that:
“the assertion that the issue of notification of injury was belatedly raised is, with respect, not correct, that matter having been clearly raised at the first opportunity in these proceedings and also in the prior proceedings before the Commission (which prior proceedings were discontinued).”
The Transcript of 24 August 2007 reveals the following discussion in relation to the admission of the late document (page 2, line 8):
“ARBITRATOR: What are the procedural issues, Mr Macken?
MR MACKEN: Oh, well, I received by fax yesterday but only saw for the first time today an Application to Admit Late Documents. I don’t know if you’ve got that. I don’t know if it’s pressed.
MR MATTHEWS: Yes, it is pressed.
MR MACKEN: Well, as the parties have done, Arbitrator – and then there are some documents in the application that I’ll be taking objection to.
MR MATTHEWS: Arbitrator, that Application to Admit Late Documents is in respect of a document which is dated 29 May 2003, and it’s a letter from Mayne Workers Compensation Services – that is the respondent insurer – addressed to the applicant, and I submit that in the circumstances where in the reply that was the first notification that the applicant had that notice of claim was an issue, that this document should be admitted, and noting that it was in actual fact produced by the respondent, so clearly there’s no prejudice. [Emphasis added]
ARBITRATOR: Yeah. Yes, Mr Macken?
MR MACKEN: Firstly, Arbitrator, when my friend says it was produced by the respondent, nothing has been produced by the respondent in these proceedings. As to whether it’s the respondent’s document, well, having seen it for the first time today I haven’t had the opportunity to get instructions about that, but, in any event – and it’s something I would have to get instructions about – it purports, I think, to assert that because correspondence was sent to Mr Ford in respect of a certain matter, that must be in respect of those matters which are alleged in the Application to Resolve a Dispute. There’s absolutely no evidence of that at all, and it’s not a matter in respect of which I’ve had an opportunity of responding to it.
In a front-end-loaded system that’s a quintessential problem. There’s no reason why if it was to be relied on it couldn’t be filed with the application. As to the assertion that notice of injury and duly made claim were put in issue for the first time with the reply, well, with respect, that’s not a matter with which the respondent agrees, because you will see from the material that has been lodged there have been at least one, I think, and possibly two, previous sets of Commission proceedings where those issues were squarely in dispute in those proceedings. These proceedings have come on subsequently. Those matters have been in dispute for a very substantial period of time, Arbitrator, and its just too late, with respect, to expect that a respondent is effectively given a document on the day of an arbitration, albeit the morning of an afternoon arbitration, and is then expected to be able to respond and address it and put on evidence in reply to it, if necessary in that time frame. It’s just absolutely not enough time. So the document is opposed.
ARBITRATOR: Yes. Thank you. Anything further, Mr Matthews?
MR MATTHEWS: Well, it was a document, I submit, produced by the respondent, the respondent’s insurance section, and it refers to – at the top of it has “Date of injury: 27/12/2001”. So I submit it’s clearly a document in relation to the workplace injury as pleaded in this matter, which occurred on 27 December 2001.
ARBITRATOR: Well gentlemen, I’ve heard those submissions and listened carefully. The fact of the matter is that this appears to be a document, which has emerged as a late application only effectively today, and indeed, I don’t have it before me at all, but it is ---
MR MATTHEWS: It was faxed yesterday, Arbitrator.
ARBITRATOR: Well, be that as it may, in the last 24 hours this document has emerged. It was not filed with the ARD. No criticism attached, I quickly add, to these comments; I’m just talking historically. The telephone conference in this matter was 24 July, as I’ve said – some 31 days ago – and it hasn’t been signalled since. Albeit that this matter in its global history has been the subject, it seems, at least of two earlier proceedings, discontinued, and has had some history, I am inclined to the submissions of the respondent in this particular circumstance that its not had prior notice that this particular item would be before the proceedings. Nothing hinges on my comments other than the disallowance of the document, which I accordingly disallow, for the reasons submitted. Thank you.”
The Commission file reveals correspondence from Mr Ford’s solicitors to the Commission dated 23 August 2007 and date stamped as received by the Commission on 24 August 2007, the date of the arbitral hearing. This correspondence enclosed an ‘Application to Admit Late Documents’ (in the proceedings then before the Arbitrator), being the letter from Toro Havini, Claims Manager, Mayne Group Compensation Services to Mr Ford, dated 29 May 2003. The Application indicates that it was served by facsimile on Symbion’s solicitors, Leigh Virtue & Associates, on 23 August 2007.
However, as previously noted, Mr Ford seeks to have admitted as ‘fresh and/or additional evidence’ in this Appeal, an item of correspondence dated 23 January 2002 from Toro Havini, Claims Manager, Mayne Worker’s Compensation services to Dr Coffey. A perusal of the ‘Application to Resolve a Dispute’ filed with the Commission on 19 June 2007 reveals that this particular item of correspondence was attached to, and is listed in, Mr Ford’s initial ‘Application to Resolve a Dispute’, as part of his evidence. It has been on the Commission file from the outset, and was taken into account as evidence, by the Arbitrator.
The Arbitrator notes at paragraph 12 of his ‘Statement of Reasons for Decision’ (‘Reasons’):
“The documents in evidence before the Commission and taken into account in making this determination are all of the material filed with the Application and with the Reply, or otherwise as taken into evidence in the proceedings.”
The letter dated 23 January 2002, states the following:
“Dear Dr Coffey,
I refer to the above-mentioned workers compensation claim and to your letter of the 22.01.02.
Please be advised that Mayne Logistics accept liability to cover the costs for the proposed surgery:
· Arthroscopy of the left knee
· Arthroscopy of the right knee
Please arrange for surgery to both knees simultaneously as suggested in your letter.”
This is not the letter that Mr Ford sought to be admitted into evidence at the arbitral proceedings. The letter dated 29 May 2003, was the document that was put forward by Mr Ford, opposed by Symbion, and its introduction disallowed by the Arbitrator.
As previously stated, the letter of 23 January 2002 is already in evidence; it has been taken into account by the Arbitrator, and was filed with Mr Ford’s initial Application on 19 June 2007.
Briefly and in summary, I note that the Arbitrator refused to admit the letter of 29 May 2003 into evidence. The circumstances surrounding the matter, including a brief account of the apparent difficulties experienced between Mr Ford and his solicitors, are set out above. The Arbitrator’s reasons for rejecting the document, as fresh or new evidence are reasonable in those circumstances. I note in particular that the relevant issue to which the document purportedly relates, came to Mr Ford’s solicitor’s attention in this matter, no later than at the teleconference on 27 July 2007, but he did not file the application to admit the document in the Commission before the Arbitrator, nor make his application known to Symbion, until the morning of the arbitral hearing, on 24 August 2007. This does not indicate reasonable diligence as claimed by Mr Ford’s legal representative. No reason has been advanced for this delay. Clearly, Mr Ford’s legal representative had ample opportunity to file the relevant document in the Commission and serve it on Symbion, well before the arbitral proceedings took place.
An award and orders were made in favour of Mr Ford, following the arbitral proceedings, notwithstanding the Arbitrator’s rejection of the letter of 29 May 2003 as new evidence. Essentially, the same reasons for admission of the document into evidence that were put the Arbitrator, apply in this Appeal. However, had the application to admit the letter of 29 May 2003 been put to me, as I think may have been the intention, I see nothing that would have persuaded me to disagree with the decision of the Arbitrator on the point.
It may be that Mr Ford’s solicitor has inadvertently submitted the wrong document as new evidence, on appeal. In any event, the letter of 23 January 2002 is the document that is nominated and put forward as the subject of the application to admit new evidence on appeal. Given that it is already in evidence the application serves no purpose.
The application to admit new evidence is refused on that basis.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 12 September 2007, records the Arbitrator’s determination as follows:
“The determination of the Commission in this matter is as follows:
1.Award for the Applicant with respect to his claim for s60 medical expenses at $2560.35 payable by the Respondent.
2.There is a finding in favour of the Applicant against the Respondent with respect to liability for the claim for permanent impairment under s66 of the Act in respect of left knee injury firstly on 2 July 1998 and secondly on 27 December 2001.
3.The assessment of quantum of permanent impairment in respect of the left knee injuries of 2 July 1998 and 27 December 2001 are to be referred by the Registrar to an Approved Medical Specialist for determination.
4.The claim made for pain and suffering under s67 of the Act is reserved pending the Medical Assessment Certificate to issue from the AMS in accordance with the previous Order.
5.The Respondent is to pay the Applicant’s costs as agreed or assessed.
6.This notation is made to these Orders, namely that, at the Arbitration, upon hearing submissions of the parties, I determined that there was no material filed with either the Application or Reply which is to be excluded from the proceedings nor accordingly to be excluded from the reference to the AMS as herein Ordered.”
ISSUES IN DISPUTE
The issues in dispute before the Arbitrator, as set out in his Reasons, were as follows:
At paragraph 7:
“The issues in dispute in relation to the claim for medical expenses are:
·Are some or all of the Applicant’s medical and related expenses incurred as a result of treatment, services or assistance that was reasonably necessary for the compensable injury? (the 1987 Act s 60).”
At Paragraph 10:
“The issues in dispute in relation to the claim for non economic loss include:
·Did the Applicant receive an injury arising out of or in the course of employment? (section 9 of the 1987 Act)
·Was the Applicant’s employment a substantial contributing factor to his injury? (section 9A of the 1987 Act)
·Are some or all of the Applicant’s medical and related expenses incurred as a result of treatment, services or assistance that was reasonably necessary for the compensable injury? (section 60 of the 1987 Act)
·Impairment and quantum generally
·The issues as filed by the Respondent which, without listing them, are dealt with following.”
The issues in dispute in the Appeal are set out precisely in the grounds of appeal in Symbion’s submissions (dated 9 October 2007 and 12 December 2007), and in summary, amount to whether the Arbitrator erred:
1.in finding that Mr Ford sustained a frank injury on 27 December 2001;
2.in failing to properly consider or determine whether any claim had been made in respect of “any left knee injury” sustained on 27 December 2001, within 6 months “as required by the Act (or, on one view, at all)”;
3.in failing to properly consider the Application of sections 4 and 9A of the 1987 Act and failing to give adequate reasons for determining that the requirement of these sections were satisfied;
4.in his consideration and determination as to whether Mr Ford’s condition was properly categorised as a disease process, and in his consideration of the contribution of employment to that disease process;
5.in ordering the payment of section 60 expenses in circumstances where Mr Ford has not discharged the onus of proof such as to permit such an order to be made, and
6.in admitting into evidence the additional forensic medical reports of Dr Wallace and Dr Meachin over the objection of the Appellant.
APPEAL TO A PRESIDENTIAL MEMBER
A Presidential member has a specific and limited role in the review of a decision of an Arbitrator. A review is not a rehearing. The Presidential member is not dealing with the matter de novo and is not arriving at a fresh decision based on all of the evidence available at a later time (Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616).
In this case, Symbion 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] NSWWCCPD 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. Moreover, the error must be such that, but for it, a different decision should have been made (see Snow Confectionary Pty Ltd v Askin [2004] NSWWCCPD 56, and Absolon v NSW TAFE [1999] NSWCA 311).
SUBMISSIONS, DISCUSSION AND FINDINGS
27 December 2001 injury
Symbion submits that a “proper view of the evidence does not support a finding of any specific frank injury occurring on 27 December 2001, but rather, the evidence is consistent with a gradual development of pain and swelling on the left knee over a period of time after Christmas 2001 and continuing. It points to the following relevant evidence:
a.The clinical notes attached to the Application to Resolve a Dispute (Dr Harget) first record a reference to Mr Ford’s left knee feeling sore when he got out of a car in July 1998, and there is a reference to the word “footballer” but the record is otherwise unclear. A review of the clinical notes would suggest that Mr Ford’s left knee condition had recovered by the time of the consultation on 9 September 1998 – there being no references to any left knee complaints at numerous consultations between that date and 28 December 2001. On 28 December 2001 the clinical notes record that his left knee was painful and swollen and makes reference to the 1998 injury but no reference to any frank injury the previous day;
b.Mr Ford’s treating specialist Dr Coffey had also recorded no history of any frank injury to Mr Ford’s left knee on 27 December 2001 and records that on 26 December 2001 Mr Ford noted that the knee began swelling during that working day;
c.Mr Ford’s claim form submitted to his subsequent employer’s Insurer (Allianz) dated 26 July 2004 particularises an injury to the left knee said to result from climbing in and out of trucks at various Armguard depots and records a date of injury as 27 December 2001, but the time of injury as “progressive” and refers to a left knee soft tissue injury on 2 July 1998, which is said to have “recovered in full till [sic] December 2001.” The progressive nature of the left knee injury is also confirmed in Symbion’s report of injury (filed with the Reply);
d.Mr Ford’s allegations of injuries extracted from the previous Application before the Commission (to which Linfox was a party and subsequently discontinued) makes specific reference to a frank injury in 7 March 2003 and again on 14 December 2004, as well as reference to a progressive injury to the left knee by reason of the nature and conditions of that employment in the period after 3 February 2003, (“and specific reliance is placed in the disease provisions of the Act”);
e.The report of Dr Hughes, Consultant Orthopaedic Surgeon, qualified by Symbion, dated 20 October 2003 records a history which makes reference to the worker’s left knee becoming painful again in 2001 and states “he thinks he may have aggravated it at work but he cannot remember any specific incident”, and
f.The history in Dr Edwards report of 19 October 2006 refers to the alleged injury on 27 December 2001 and relevantly records “he said his left knee flared up during the day. There was no incident or injury. That night his left knee became markedly swollen”. [Dr Edwards is a Medico-Legal Consultant who provided his report to Symbion].
In reply Mr Ford submits the following:
a.the clinical notes of Dr Harget has an entry 28 December 2001 which states: “L knee painful/swollen previously inj 1998 – settled” and this is completely in accordance with and gives support to Mr Ford suffering a frank injury on 27 December 2001 when he was getting out of an armoured truck and suffered a twisting injury to his left knee as pleaded in the proceedings. Furthermore, the Arbitrator states at paragraph 18.6 of his decision, “the statement of the Applicant of 7 May 2007 is sufficiently clear. It is not contested as to the incident descriptions given”. Mr Ford submits he clearly suffered a frank injury;
b.Dr Coffey’s report dated 3 October 2002 obtains a history that “he was working on Boxing Day when he noted the knee to began to swell during that working day. He was unable to comfortably weight bear and in fact, moved onto crutches over the Christmas/New Year period”. This history is consistent with a frank injury and the report of pain occurring on a particular day, being Boxing Day. This history is not of progressive pain over months, weeks or days and is clearly of pain occurring on Boxing Day which is in accordance with Mr Ford’s statement;
c.the claim form dated 26 July 2004 submitted to Linfox clarifies the situation as Mr Ford specifically referred to two dates of injury in that claim form and that Allianz and Linfox were advised of two prior dates, being 2 July 1998 and 27 December 2001. The notation of “recovered in full till December 2001” is not in accordance with a progressive injury to the left knee by reason of the nature and conditions of that employment;
d.Symbion refers to a statement of Mr Ford dated 14 August 2005 which formed part of prior proceedings and notes that the prior statement included in Symbion’s Reply includes only pages 4 and 5. Therefore the weight to be attached to those pages must be in accordance with the fact that Symbion does not rely upon the whole of the statement and in any event those prior proceedings were discontinued and there is nothing in that Statement which could disturb the finding of the Arbitrator that an injury occurred on 27 December 2001, and
e.Symbion refers to the report of Dr Hughes dated 20 October 2003, however it is submitted again that the Arbitrator noted in his Reasons at paragraph 18.6 that Mr Ford’s statement of 7 May 2007 was not contested as to the incident descriptions given in it. Furthermore, Mr Ford attended his local doctor, Dr Harget, the day after the frank injury complaining about a painful and swollen left knee. It is submitted that more weight must be placed on this contemporaneous notation from the treating doctor rather than placing reliance upon a medico-legal examination occurring on 20 October 2006.
In its submissions in response to the Opposition, filed 14 December 2007, Symbion further submits the following:
a.it is reasonable to expect that the occurrence of the alleged injury on 27 December 2001 would be recorded in the clinical notes of Dr Harget on the following day, being 28 December 2001, however no such record is found. This is particularly instructive when the clinical notes on the date referred to make specific reference to a previous injury in 1998;
b.the fact that Mr Ford asserts a specific frank injury in his statement of 7 May 2007 is not contested, however the assertion that he makes, that the allegation made by him in this regard is not contested, is incorrect. That is, and has always been, contested;
c.Mr Ford’s suggestion that the history recorded in Dr Coffey’s report of 3 October 2002 is somehow consistent with a frank injury is incorrect. It is submitted that the history recorded makes no reference at all to any frank injury on 27 December 2001 and rather refers to the development of swelling on Boxing Day (being 26 December 2001) without any reference to any frank injury, and
d.the evidence of Mr Ford contained in pages 4 and 5 of his statement speaks for itself and if Mr Ford wished to assert that the statement therein recorded was not representative of his allegations it was open to Mr Ford to seek to adduce further evidence and he elected not to do so.
In response to the Directions issued on 11 January 2008, Mr Ford submits:
“In response to point 3 of the Appellant employer’s submission as to whether or not Dr Coffey records a history of frank injuries, it is again submitted that the history recorded by Dr Coffey is consistent with the suffering of a frank injury. When one reads the report dated 3 October 2002 in context it is submitted that Dr Coffey is clearly concerned with treating two frank or twisting injuries which caused discernable changes to the pathology of the Respondent worker’s knee.”
In terms of the issue raised in this ground of appeal, that is, whether the Arbitrator erred in finding that Mr Ford sustained a frank injury on 27 December 2001, the Arbitrator found at [29.1] of his Reasons:
“That the Applicant has suffered two (2) frank workplace incidents in his employment with this Respondent, in each case being singular twisting injuries to his left knee, occurring respectively and distinctly on 2 July 1998 and on 27 December 2001 as described and pleaded.”
This finding is reinforced by related conclusions. These are found at [27] after a consideration of the medical evidence:
“What identifies this matter in its presentation is that there are, in my view and determination, on the balance of reliable material, two (2) distinct and frank workplace injury incidents.”
And further at [32]:
“The distinct left knee pathology, and its sequelae in terms of the incapacity pleaded to those proceedings, is resultant from the discrete workplace injury interventions of 2 July 1998 and 27 December 2001 in his then work engagement with this Respondent [Symbion].”
In his statement of 7 May 2007 Mr Ford states that he first suffered an injury to his left knee on 23 July 1998 in the course of his employment with Mayne Group, as Symbion was then known. He said that he arrived at work and parked his car in his employer’s car park. Mr Ford said that as he was getting out of his car “I twisted on my left knee and when this happened I felt pain in the left knee.”
He states that the next time he suffered injury to his left knee was on 27 December 2001, when he was on light duties as a result of a back injury. He said that he was driving an armoured vehicle, which he parked between two rows of pallets. This location was confined and he was unable to completely open the truck door. He said that he opened the door as far as possible and then climbed from the cabin. He states that he placed his right foot on the doorstep of the truck and then twisted his body around to climb out of the vehicle. He then placed his left foot on the ground and at the same time, twisted around to walk away from the truck. On doing so, he said that he felt pain in his left knee. Mr Ford said that he reported the incident to his manager, Mr Sarkis Ayoub on that day, and also to his supervisor Mr Graham Fisk on the following day, when the pain in his knee was worse. He states that Mr Fisk made an entry in the injury book. Mr Ford says that he consulted Dr Kathryn Harget, his treating doctor, the next day, but kept on working “for the next few days”.
Mr Ford consulted Dr Harget a number of times, including 2 January 2002 when his left knee had become worse. He said that he was put off work at that time and did not return until 15 March 2002. He states, “I then returned to work on light duties in relation to my back injury and my left knee injury.” He says that between March and October 2002 he undertook light duties consisting of office work. He states, “I was not allowed to do any lifting or carrying and I was only working 8 hours a day.” From about October he resumed working on armoured vehicles.
Mr Ford concludes his statement thus:
“Dr Harget is my treating doctor. She referred me to Dr Coffey. Dr Coffey performed an arthroscopy on my left knee on 11 February 2002 at the Nepean Private Hospital. I also had an arthroscopy on my right knee at that time.
As a result of the injury to my left knee I continue to suffer from pain in that knee. The pain is constant and from time to time I experience swelling and stiffness in the left knee.
I am unable to kneel on the left knee. I cannot run or jog. I have difficulty walking distances of more than 300 metres. I can no longer play golf and lawn bowls.
I have difficulty walking down stairs without the use of a hand rail.”
It is correct that Dr Harget’s clinical notes record that on 28 December 2001, the day following the alleged workplace injury, that Mr Ford’s left knee was painful and swollen. The notes then go on to refer to a “previous” injury in 1998. Symbion suggests that the record made makes no reference to a frank injury on the 27 December 2001. That is correct in that there is no such specific reference, but in fairness, the notation is quite cryptic and the use of the word “previous” may possibly be an indicator that Dr Harget may have been referring to injury, relative to a “previous” injury sustained in 1998. However, it is difficult to say one way or the other, because no clinical notes of Dr Harget, between 27 December 2001 (clinical notes up to this date filed with the Application) and 27 August 2003 (clinical notes from this date filed in the Reply), are in evidence. According to the note in Dr Harget’s clinical notes, the “previous” injury sustained in 1998 had “settled”.
Dr Harget referred Mr Ford to Dr Simon Coffey, treating Orthopaedic Surgeon, who issued a report dated 18 January 2002. Again, Dr Coffey comments, “I note that he has previously injured his left knee at work.” However, as Symbion submits, Dr Coffey observes that Mr Ford’s knee became swollen and quite painful, with restricted movement, while he was at work on 26 December 2001, the day before the day of the claimed frank injury. Dr Coffey observed:
“He has improved somewhat since then, but he has been left with persistent medial joint line pain and restricted movement.
Examination of the left knee reveals a small effusion, with tenderness of the medical joint line and a positive McMurray’s sign. He is unable to fully extend the knee past 15 degrees of flexion and only has further flexion to 90 degrees. The knee is stable to clinical examination otherwise.
Rodney does not have an x-ray and I have ordered this for completeness.
Rodney should have arthroscopic meniscectomy of the left knee, as I believe that he has a medial meniscal tear. I have discussed this procedure with him, including the risks and benefits.”
Following Mr Ford’s bilaterial knee arthroscopy, Dr Coffey interviewed him again. In his report of 22 February 2002 to Dr Harget, Dr Coffey said:
“As noted in his operative report, he had significant chondro-calcinosis, with synovitis and loose debris within the left and right knee joints. Both knees were debrided, with gentle medial meniscal trimming, due to a small meniscal tear on both sides. I would recommend that Rodney continue with his knee rehabilitation and have warned him that in the longer term, the chondro-calcinosis can lead to some slight brittleness in the meniscal and chondral tissues. Despite this, he is rehabilitating well and could return to work, as planned, in mid-March.”
In his later medico-legal report to Mr Ford’s legal representatives, dated 3 October 2002, Dr Coffey makes reference to Mr Ford’s “further problems with the left knee in the Christmas/New Year period of 2001-2002.” He states:
“He was working on Boxing Day when he noted the knee to begin swelling during that working day. He was unable to comfortably weight bear and in fact, moved onto crutches over that Christmas/New Year period. He began Naprosyn, on the instructions of his local medical officer, which improved the symptoms somewhat. Due to persistent symptoms around the left knee and the fact that it did not settle, he attended my rooms on 18th January 2002 for review. At that time, he described a stiff and painful knee with an incomplete range of motion. Due to a presumptive diagnosis of internal derangement, probably meniscal tear, I recommended arthroscopic surgery for his left knee to be performed.”
Dr Coffey went on to discuss Mr Ford’s right knee and stated that Mr Ford complains of persistent pain in both knees, characterised by dull aching and associated swelling, controlled partially by the use of anti-inflammatory medications. He opines that Mr Ford has an inflammatory antropathy affecting both knees. He says that this condition is known as chondro-calcinosis. He states:
“The injury to the left knee reflects an increased susceptibility to chondral damage and there was evidence of articular surface damage, as seen in the loose articular tissue within the knee joint at arthroscopy. The underlying process however, is not related to Mr Ford’s work, but the exacerbation of his symptoms may easily be explained by the twisting injury and subsequent use of the left knee.”
He goes on to say that, as to causation, the injury sustained, albeit minor, is a reasonable explanation for the onset of the symptoms in his left knee, however, this is an exacerbation of an underlying condition, which until then, had not been diagnosed. He concludes:
“With regard to permanent impairment, I would regard Mr Ford as having 10% loss of efficient use of the left leg at or above the knee. The underlying causation for this is primarily due to the chronic inflammatory arthropathy of chondro-calcinosis. The injury sustained at work is a reasonable explanation for the exacerbation of his symptoms.”
The Arbitrator went to some lengths to indicate why he found that Mr Ford’s injury was a frank injury sustained on 27 December 2001. (See [18] – [32] of his Reasons). That finding is the very point in issue in the first ground of appeal.
At the outset, there is a clear reference in Dr Harget’s clinical notes of 28 December 2001, to a “previous injury in 1998” that had “settled”. The specific reference to Mr Ford’s left knee is “L knee painful/swollen.” There is no specific statement of “injury” to the left knee.
There are various accounts relevant to Mr Ford’s left knee injury in December 2001.
·In his statement of 7 May 2007, made for the purposes of this dispute before the Commission, Mr Ford said that he twisted his knee on 27 December 2001 after alighting from his employer’s truck that he parked in a confined space, when he “twisted around to walk away from the truck”.
·In his letter to Mr Ford’s solicitors, dated 25 March 2003, Dr P. Endrey-Walder, General Surgeon qualified by Mr Ford, relevantly states, “The day after Boxing Day 2001 while on the job he suffered pain and swelling at his left knee, and this caused much restriction in the range of movement at the joint. He had to consult with his family physician and was again started on anti-inflammatories…. On 11.2.2002 Dr Coffey performed bilateral arthroscopies, reporting (3.10.2002) to have found evidence of chronic synovitis, chondro-calcinosis and loose articular cartilage tissue in the left knee. The chondral tissue and the small lateral meniscal tear were debrided. Similar changes were noted at the right knee.” He refers to a work related injury to the left knee “just after Christmas 2001”.
·In his letter to Mr Ford’s solicitors, dated 24 September 2004, Dr Endrey-Walder stated that Mr Ford had an 8% whole person impairment on account of his left knee condition. He added, “I believe that four fifths of the above is due to injuries suffered prior to 1.1.2002, and one fifth to aggravation after that date.”
·As outlined above, Dr Coffey refers to a swelling of Mr Ford’s left knee on Boxing Day, 26 December 2001, requiring him to “move onto crutches” over the Christmas/New Year period. He refers to a possible exacerbation of Mr Ford’s symptoms at that time by reason of a “twisting injury”. He refers to any injury as “minor” but as a reasonable explanation for the onset of the symptoms, by way of exacerbation.
·In his letter of 18 January 2002, to Dr Harget, Dr Coffey refers to the swelling and pain to Mr Ford’s left knee, while at work on Boxing Day. He said that Mr Ford had meniscal tears to both knees, and recommended surgery for both. That was carried out subsequently, as outlined in Dr Coffey’s letter to Dr Harget, dated 22 February 2002.
·In the report of Dr David Meachin, Orthopaedic Surgeon, dated 28 October 2004, he states, “He had been doing a lot of driving when his left leg flared up again with pain and swelling.” While he refers to a “history of injury” he does not identify any specific incident, other than “a lot of driving”.
·In Dr Meachin’s report dated 29 June 2005, he describes the situation as, “During the Christmas period of 2001 to January 2002 he was doing extra work when his knees flared-up again with pain and swelling.” He refers to constant aching and swelling of Mr Ford’s left knee at that point in time. Unlike Dr Hartger, he attributes Mr Ford’s current left knee symptoms to his injury of 2 July 1998, stating, “The mechanism of injury is consistent with a torn meniscus. He will have problems kneeling and squatting.” He adds, “In my opinion his employment with Mayne is the cause of his problems.”
·Dr Kim Edwards, Medico-Legal Consultant Surgeon, qualified by Symbion, reports on 19 October 2006:
“On 27 December 2001, he was working with two casuals, and had to drive a truck all day, as well as doing the loading and unloading. At the time, he was on light duties because of a back injury, which occurred on 10/5/01. He said a forklift was used for much of the lifting. He said his left knee ‘flared up during the day’. There was no incident or injury. That night, his left knee became markedly swollen.
He went to see Dr Harget on 28 December 2001. The written clinical notes indicate that she prescribed Naprosyn. The notes further indicate that he returned to work, and on 31 December 2001, then went back to see Dr Harget in to [sic] January 2002. She noted that his left knee was still swollen and there was ‘grinding’.
…
He underwent bilateral arthroscopy on 11 February 2002. I note from the medical file that in the left he was found to have:-
‘Marked chronic synovitis, debrided. CHONDROCALCINOSIS.
Medical meniscus meniscocapsular synotivits debrided, no tear.
Lateral meniscus mesial degeneration debrided.
MFC instact, (chondrocalcinosis)’
The remainder of the knee was normal.
He underwent a synovectomy and partial lateral meniscectomy.”
·At page 6 of the same report, Dr Edwards states:
“In relation to his left knee, he gives a history of a twisting injury in July 1998. He had physiotherapy and his symptoms settled. He does not describe any further specific incident or injury. He noted that his left knee ‘flared up during the day’ on 27 December, 2001 while at work.”
…
Chondrocalcinosis can cause acute arthritis, which can be indistinguishable from gout. Twisting [sic] injury on 2 July 1998, the effects of which have long since ceased, he has not had any injury to his left leg.”
·In his letter to Symbion’s legal representatives, dated 19 October 2006, Dr Edwards opined that Mr Ford does not suffer from any permanent loss of use of his left leg at or above the knee, as a result of any alleged work-related injury prior to 31 December 2001.
·In his report of 20 October 2006, Dr Lloyd Hughes, Orthopaedic Surgeon qualified by Symbion, states, “In 2001 his left knee became painful again. He thinks he may have aggravated it at work but he cannot remember any specific incident.” He added, “The incident at work in 1998 in regard to his left knee may have simply exacerbated the underlying condition. Despite this, examination of his left knee was normal and there is no assessable disability.”
·In his letter to Symbion’s legal representatives, dated 20 October 2006, Dr Hughes stated that Mr Ford does not suffer from any permanent loss of use of the leg at or above the knee as a result of any alleged injury prior to 31 December 2001.
·In his report of 2 June 2004 Dr Peter Isbister, Orthopaedic Surgeon and Medico-Legal Consultant, informed Symbion that re-aggravation of the injury of 2 July 1998 occurred on 27 December 2001 “whilst Mr Ford was getting repeatedly out of a branch car as he was the only driver available and he had to assist the two casual workers with him. He was carrying out the driving and the paperwork and aggravated his knee every time he climbed in an out of the truck. His knee was painful and swollen that night.” He added at page 6, “He has degenerative changes in his lumbar spine and left knee and in my opinion these are likely to be aggravated by some of the activities which he is performing whilst working with Armaguard Security Services [now Symbion]. In my opinion these degenerative changes are constitutional in nature and have been progressive over the years.”
·Finally, in a “Workers Compensation Claim Form” dated 26/7/04, signed and submitted by Mr Ford, he states his injury details as, “Left knee climbing in and out of truck at various Armaguard Depots”, citing the injury as “left knee meniscus tear”. He further states that the date of such injury was “27/12/01” and, in terms of the time of injury on that day, he states that it was “progressive”. This document was filed by Symbion in its initial Reply to Mr Ford’s Application.
The Arbitrator goes to some lengths and cites legal authority to establish that a frank injury may arise “from an underlying disease condition, in effect”. However, the more fundamental issue in terms of this ground of appeal is whether a work-related frank injury was sustained and if so, how and when did it happen.
The medical reports vary to some extent. I accept that some variations in language, emphasis and detail may be expected as different medical practitioners review previous medical reports, and over time, take the history of events from a worker claiming injury. However, quite different accounts of what allegedly occurred emerge from the documentary evidence in this matter.
The claim of a frank injury arising from twisting his left knee, on 27 December 2001, is what Mr Ford put to, and was accepted by, the Arbitrator. It is also what is pressed in this Appeal.
There are some references to “twisting” in various medical reports. However, there are also references to a painful and swollen left knee presenting on Boxing Day, 26 December 2001 and the requirement to use crutches from then on over the Christmas/New Year period. This is the day before the date when the frank injury is alleged to have occurred. Mr Ford’s account to doctors of this eventuality is not consistent with his claim that on 27 December 2001, he was able to open the door of his truck, parked in a confined space, “and then climbed out of the cabin of the truck. I placed my right foot on the doorstep of the truck and then twisted my body around to climb out of the vehicle. I then placed my left foot on the ground and at the same time twisted around to walk away from the truck and when I did this I felt pain in my left knee.”
While the Arbitrator refers to some of the contents of most of the medical reports that I have cited, he does not attempt to deal with the inconsistencies in terms of how the claimed frank injury arose, nor to any extent, as to whether Mr Ford’s injuries were in the nature of a “disease of gradual process” or an exacerbation of a disease. Having regard to Mr Ford’s medical condition and the different accounts that emerge from the evidence, these aspects demanded closer attention by the Arbitrator, particularly as Mr Ford himself, provided and/or confirmed much if not all of the information as to the circumstances of injury, during the course of his various medical consultations.
Perhaps the most glaring inconsistency in the evidence is found in the quite different written accounts given by Mr Ford. In his statement of 7 May 2007 he said that he twisted his left knee after alighting from his truck on 27 December 2001. In his ‘Workers Compensation Claim Form’ of 26 July 2004 he said that his injury was sustained on 27 December 2001, progressively over time on that day, by reason of “climbing in and out of truck at various Armaguard Depots”. Moreover, he also states in that ‘Workers Compensation Claim Form’ that he had quite normal movement in his left knee before the injury occurred on 27 December 2001. These accounts are inconsistent one with the other, and both accounts are at odds with what he told various doctors about his left knee becoming painful and swollen on the day before, that is, Boxing Day, 26 December 2001, requiring the use of crutches for a number of days.
The Arbitrator did not address the matter of inconsistencies in the evidence, in terms of injury, in his analysis of the evidence and in arriving at his finding that Mr Ford had suffered a frank injury on 27 December 2001. In that event, the Arbitrator has failed to give proper and adequate consideration to all of the relevant evidence, in arriving at his decision (see Prestige Property Pty Ltd v Rafiq [2006] NSWWCCPD 355).
An Arbitrator’s decision should not be overturned until and unless it can be shown that he or she demonstrably failed to exercise his or her discretion in terms of relevance and weight of the evidence (see Vettas v Cho [2006] NSWWCCPD 122). In Rohloff v Diacut Pty Limited (in Liquidation) [2005] NSWWCCPD 17 at [26], the Deputy President said:
“It is only where the arbitrator can be said to have failed to exercise his discretion fairly and according to law that his decision should be overturned. This occurs where the Arbitrator has acted upon a wrong legal principle, allowed irrelevant considerations to influence the decision, made a material mistake as to the facts or failed to take into account relevant and material considerations (House v The King (1936) 55 CLR 499 at 504-5; Norbis v Norbis (1986) 161 CLR 513 at 520; Re National Roads and Motorists Association Ltd [2003] FCAFC 206 at [21]).
The Arbitrator has taken a good deal of relevant material into account in arriving at his decision, but by failing to properly articulate and consider the obvious inconsistencies in the evidence, and the impact these might have in the context of the whole of the evidence, he has at least, failed to take into account relevant and material considerations of a potentially critical nature. This is an error of law.
It is my view that the matter should be remitted to another Arbitrator for determination afresh, given that there are a number of other issues in dispute in the matter, including but not exclusively, the associated considerations as to whether the claim was duly made in the first place, and whether Mr Ford’s “condition was properly categorised as a disease process”. I will therefore, not proceed to deal with the remaining grounds of appeal, so as not to unduly compromise or to impose undue constraints upon the parties, and the Arbitrator who is to determine the matter afresh.
Symbion submits that in these circumstances, the question of the costs of the initial arbitration should be determined as a part of any such subsequent proceedings. I concur in this submission and commend it to the Arbitrator, accordingly.
DECISION
The Arbitrator’s determination dated 12 September 2007 is revoked and the matter is remitted to another Arbitrator for determination afresh according to law and these Reasons.
COSTS
No order is made as to the costs of this appeal.
Gary Byron
Deputy President
31 January 2008
I, MELANIE CURTIN, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF GARY BYRON, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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