Tolco Pty Limited v Micevski
[2005] NSWWCCPD 119
•19 October 2005
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Tolco Pty Limited v Micevski [2005] NSW WCC PD 119
APPELLANT: Tolco Pty Limited
RESPONDENT: Josif Micevski
INSURER:QBE Workers Compensation (NSW) Ltd
FILE NUMBER: WCC9400-04
DATE OF ARBITRATOR’S DECISION: 29 October 2004
DATE OF APPEAL DECISION: 19 October 2005
SUBJECT MATTER OF DECISION: No transcript; no statement of reasons; inadequacy of reasons.
PRESIDENTIAL MEMBER: Acting Deputy President Deborah Moore
HEARING:On the papers
REPRESENTATION: Appellant: QBE In-House Legal Department
Respondent: Bussoletti Lawyers
ORDERS MADE ON APPEAL: 1. The decision of the Arbitrator dated 29 October 2004 is revoked.
2.The matter is referred to the Registrar for allocation as soon as possible to another Arbitrator for determination.
3.No order as to costs of the appeal.
BACKGROUND TO THE APPEAL
Josif Micevski (‘the Respondent Worker’) was employed by Tolco Pty Limited (‘the Appellant Employer’) as a storeman. He claimed that on 12 November 2001, he was standing on a pipe, approximately two metres above ground, undoing bolts on a tank with a co-worker, when he slipped on the pipe and fell and hit his head on the pipe and on the concrete below, as a consequence of which he sustained a severe head injury.
On 15 June 2004, the Respondent Worker lodged an Application to Resolve a Dispute in the Commission seeking weekly benefits compensation, medical expenses, and permanent impairment/pain and suffering.
On 8 July 2004, the Appellant Employer filed a Reply claiming that employment was not a substantial contributing factor because the Respondent Worker had a pre-existing condition unrelated to work.
It was not disputed that the Respondent Worker had been diagnosed as having a suffered a rupture of an aneurysm of the right middle cerebral artery following the incident on 12 November 2001. What was in issue was whether the fall was as a result of the aneurysm spontaneously rupturing or whether the fall caused the aneurysm to rupture.
The matter was listed for conciliation/arbitration hearing on 29 October 2004. The Arbitrator made an award in favour of the Respondent Worker for weekly benefits and for medical expenses pursuant to the provisions of the Workers Compensation Act 1987 (‘the 1987 Act’) and referred the claim for permanent impairment to an Approved Medical Specialist.
A document headed “Statement of Reasons – Ex Tempore Orders” was attached to the Certificate of Determination. That document repeated the orders and stated:
“To ensure the parties received a timely determination of their dispute, the reasons for the orders… were given or orally at the conciliation conference. A sound recording of the reasons given is available to the parties”.
The Registrar has since advised that no sound recording of the arbitration is available.
On 25 November 2004, the Appellant Employer filed an Application to Appeal against Decision of Arbitrator. Most relevant to this appeal is the Appellant Employer’s submissions that:
·“The Arbitrator erred in law in failing to provide adequate reasons for her determination in circumstances where such failure has had a material affect upon the outcome of the matter.
·The Arbitrator erred in law in failing to observe procedural fairness by not adopting the form of ‘Reasons for Determination’ adopted by most Presidential Members and Arbitrators of the Workers Compensation Commission”.
The Respondent Worker opposed the appeal and submits that:
“The Arbitrator’s judgment and reasons for judgment outline her reasoning process. Such reasoning process complied with the provisions of section 294 of the WIM Act 1998 and the Rules of the Commission, particularly Rule 73.”
LEAVE TO APPEAL
The appeal was filed in time, and the amount the subject of the award satisfies the criteria set out in section 352(2) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’). Leave to appeal is granted.
ON THE PAPERS REVIEW
The Appellant Employer submits that an oral hearing is appropriate. The Respondent Worker’s submissions are silent on this point. My task on appeal is not to further debate issues raised before the Arbitrator, but is concerned with claimed error, of law, fact and/or discretion.
I am satisfied that I have sufficient information within the meaning of Section 354 of the 1998 Act and in accordance with Practice Direction 1 to proceed ‘on the papers’, and that this is the appropriate course in the circumstances.
ISSUES IN DISPUTE
The threshold issue to be determined in this appeal is how to conduct a review of the Arbitrator’s decision where there is no transcript of the hearing, nor record of the Arbitrator’s reasons.
CAN THE ARBITRATOR’S DECISION BE REVIEWED?
The lengthy submissions on appeal filed by both parties suggest that they each had a fairly clear understanding of the Arbitrator’s ‘reasons’ as they no doubt recorded them at the time of the hearing.
Neither party has submitted that the appeal cannot proceed because of the absence of a transcript. Nevertheless, the review of an Arbitrator’s decision where there is no transcript of evidence given at the arbitration hearing nor of reasons given ex tempore presents considerable difficulties on appeal.
There have been a number of decisions of the Commission on this issue, particularly the decisions of Deputy President Fleming in Fraternity Bowling & Recreation Club Limited v Sartor [2004] NSWWCC PD47 (‘Sartor’) and in Thompson v Expanet Pty Limited [2005] NSWWCC PD14 (‘Thompson’) and of President Sheahan in Depalo v Department of Aging, Disability and Homecare [2005] NSWWCC PD35.
The relevant principles on this issue were discussed at length by Deputy President Fleming in Sartor and further summarised in Thompson. The circumstances of these cases are similar to the present case.
Deputy President Fleming in Thompson summarised the relevant consideration as follows:
·“It is not necessary for an Arbitrator to give lengthy reasons for their decision. Provided that Rule 73 is complied with, the reasons will be adequate, notwithstanding they do not set out the statutory provisions at length, nor specify and examine all relevant judicial authority on the matters decided.
·The standard by which adequacy of reasons must be determined is relative to the nature of the decision itself and the decision-maker (see discussion in Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSWWCC PD6). The Commission is not a court and proceedings are conducted with as a little formality and technicality as the proper consideration of the matter permits. (see section 367 of the 1998 Act, Objectives of Commission). This approach is equally applicable to the preparation of statements of reasons or the giving of ex tempore reasons. The Commission encourages the practice of Arbitrators in giving ex tempore reasons, where it is fair and appropriate to do so. This provides the parties with a timely outcome of their dispute. As with written reasons, the ex tempore reasons must be capable of adequately conveying to the parties the basis upon which the Arbitrator came to his or her decision.
·Where reasons are given ex tempore, recorded and made available to the parties, Section 294(2) and Rule 73 will be complied with, subject to the reasons being adequate. However, where there is no record of the reasons, and therefore nothing to be incorporated, by reference, in the ‘Certificate of Determination’, then the ‘Certificate of Determination’, issued under section 294(2) of the 1998 Act does not comply with Rule 73. There is, in effect, no statement as referred to in Rule 73. Failure to provide adequate reasons for decision is not only a breach of the Arbitrator’s statutory obligations; it is an error of law…
·Where reasons are given ex tempore and there is a failure to make any record of those reasons, the reality is that the parties do not have a record of the reasons, that the Commission does not have a record of the reasons, and there is no record of the reasons for the purpose of review by a Presidential Member. This amounts to a constructive failure to give reasons, as required by section 294 and Rule 73. It matters not whether this failure was occasioned by human error in the operation of the sound recording equipment, administrative failure or technical failure. Ultimately, it must be said that the Arbitrator erred in failing to provide reasons for decision.”
Of significance to the determination of this appeal is that not only did the Respondent Worker apparently give oral evidence and was cross-examined, but that the Arbitrator also had to consider extensive competing medical opinions. The parties’ submissions on appeal suggest that the reliability of the content of some of those opinions were the subject of intense debate at the hearing.
In these circumstances, where the adequacy of an Arbitrator’s reasons are in dispute on appeal, I cannot conduct a fair and proper review of the decision in the absence of a transcript of both the evidence given at the arbitration and the reasons given orally by the Arbitrator.
CONCLUSION
The absence of a transcript recording the reasons given ex tempore, amounts to a constructive failure by the Arbitrator to provide reasons for her decision. Such a failure amounts to an error of law. Regrettably, for the parties, given the delay occasioned in determining this matter, it is unfortunate that I have no alternative but to revoke the decision of the Arbitrator.
DECISION
(1) The decision of the Arbitrator dated 29 October 2004 is revoked.
(2)The matter is referred to the Registrar for allocation as soon as possible to another Arbitrator for determination.
COSTS
I make no order as to costs of the appeal.
OTHER
I recommend that priority be given to determination of this matter for the reasons stated above.
Deborah Moore
Acting Deputy President
19 October 2005
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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