Top View Windows Pty Ltd v Taha
[2006] NSWWCCPD 13
•2 February 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Top View Windows Pty Ltd v Taha [2006] NSWWCCPD 13
APPELLANT: Top View Windows Pty Ltd
RESPONDENT: Maher Taha
INSURER:QBE Workers Compensation
FILE NUMBER: WCC5200-05
DATE OF ARBITRATOR’S DECISION: 18 July 2005
DATE OF APPEAL DECISION: 2 February 2006
SUBJECT MATTER OF DECISION: Admission of late documents; weight of evidence; procedural fairness; section 40 of the Workers Compensation Act 1987.
PRESIDENTIAL MEMBER: Dr Gabriel Fleming, Deputy President
HEARING:On the papers
REPRESENTATION: Appellant: McCulloch & Buggy, Solicitors
Respondent: Kheir & Associates, Solicitors
ORDERS MADE ON APPEAL: The decision of the Arbitrator, dated 18 July 2005 is confirmed.
The matter is remitted to the Arbitrator for determination of whether Mr Taha has ‘dependents’ for the purpose of the calculation of the amount of his statutory entitlement to weekly compensation.
The Appellant is to pay the costs of the appeal.
BACKGROUND TO THE APPEAL
Maher Taha claims that he suffered a number of injuries when employed by Top View Windows Pty Ltd as an Assembler in 2003. Top View denied liability for Mr Taha’s claim and, as a result, he applied to the Workers Compensation Commission to resolve the dispute. On 18 July 2005 a Commission Arbitrator decided that Mr Taha was entitled to certain payments of weekly benefits compensation and medical expenses. The Arbitrator referred Mr Taha’s claim of permanent impairment to an Approved Medical Specialist. On 12 August 2005 Top View lodged an Application for Leave to Appeal against the Arbitrator’s decision. This is the decision on the appeal.
QBE Workers Compensation is Top View’s workers compensation insurer and acted for and on behalf of Top View in the Commission proceedings.
Leave to appeal is granted (pursuant to section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’)).
Top View submits an oral hearing should be held in order to fully address the issues on appeal. Both parties rely upon the evidence and submissions that were before the Arbitrator and have also filed submissions on the appeal issues. There is no fresh evidence on the appeal. 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 (section 354(6) of the 1998 Act).
ISSUES IN DISPUTE
The issues in dispute in the appeal may be summarised as follows:
·Did the Arbitrator breach procedural fairness in admitting the report of Dr Sanki, dated 10 May 2005?
·Did the Arbitrator err in relying upon Dr Sanki’s report?
·Did the Arbitrator err in ‘misinterpreting’ the reports of Dr Sanki and Dr Berry?
·Did the Arbitrator err in finding that Mr Taha had four dependents?
·Did the Arbitrator err in his application of section 40 of the Workers Compensation Act 1987 (‘the 1987 Act’)?
·Did the Arbitrator fail to give adequate reasons for his decision?
ANALYSIS OF THE ISSUES
Did the Arbitrator breach procedural fairness in admitting the report of Dr Sanki, dated 10 May 2005?
The Workers Compensation Commission Rules 2003 (‘the Rules’) set out the requirements for the filing of medical and other evidence in Commission proceedings. The Commission’s dispute resolution process is premised upon the expectations that: the parties have complied with their disclosure requirements under the 1987 Act, are ready to proceed to dispute resolution at the time of filing an Application or Reply in the Commission and, the evidence relied upon to support and deny the claim has been exchanged between the parties (Rule 38 and Rule 40). Where evidence is to be relied upon but is not yet available to the parties, it must be clearly and specifically identified in either the Application or Reply. An Arbitrator has a discretion to allow documents into evidence where there has been non-compliance with the Rules. As with any discretion it must have been exercised fairly and lawfully.
The granting of leave to file late documents in proceedings before an Arbitrator, including medical evidence, a Reply or submissions, is governed by section 290 of the 1998 Act and Rules 38, 39, 40, 41, 42, 43(7) and 44. Additionally, Practice Direction No 9 provides as follows:
“Applications to admit late documents will be resolved by the Arbitrator in accordance with section 355(1) of the Act [the 1998 Act].
The Arbitrator will generally deal with the application to admit late documents at the teleconference, held in accordance with the Registrar’s Guideline for The Practice of the Conciliation/Arbitration Process in the Workers Compensation Commission.In determining an application for leave to lodge late documents, the Arbitrator will take into consideration:
·the submissions of the parties, including, if any, oral or written objections to the grant of leave,
·the effect, if any, on the timely resolution of the dispute,
·the extent of the prejudice to the other parties, if any, that would result from granting leave,
·the requirements of the Act and the Rules, and
·the objectives of the Commission.”
The principles relevant to the exercise of the Arbitrator’s discretion have been discussed in ADCO Constructions Pty Ltd v Ferguson [2003] NSW WCC PD 21 and a number of other Presidential decisions.
In the original ‘Application to Resolve a Dispute’ filed on 7 April 2005, Mr Taha did not identify any documents ‘not yet in his possession’. On 25 May 2005 Mr Taha filed an ‘Application to Admit Late Documents’, being the report of Dr Sanki dated 10 May 2005.
10. In the ‘Reply’, filed on 29 April 2005, Top View identified a number of relevant documents not yet in its possession, including the intention to file a report from Dr Sanki (not otherwise described). A number of ‘Directions’, under cover of ‘Application(s) to Admit Late Documents’ were issued on behalf of Top View, in relation to medical and other reports.
11. A telephone conference with the Arbitrator was held on 17 June 2005. Directions issued by the Arbitrator after the telephone conference do not refer to the report of Dr Sanki, although the Arbitrator’s reasons for decision dated 18 July 2005 clearly demonstrate that he took the report into account and found it persuasive of the issues he was required to decide. There is no ‘Certificate of Service’ in relation to service on Top View of Dr Sanki’s report and it submits it was not properly served with the report. Mr Taha submitted correspondence evidencing service of the report under cover of a letter dated 24 May 2005. A copy of this letter was attached to his submissions filed in the appeal.
12. The Arbitrator clearly decided to admit certain late documents filed on behalf of both parties, namely;
For Top View:
·Report of Dr Crane, General Surgeon, dated 2 May 2005
For Mr Taha:
· Report of Dr Sanki, dated 10 May 2005
13. It is difficult to review the exercise of the Arbitrator’s discretion to admit Dr Sanki’s report because the content of the report was allegedly discussed at the telephone conference on 17 June 2005 when, logically, the Arbitrator would have made a decision in relation to admission of the report. In accordance with Commission practice, the telephone conference was not recorded. The reasons for any decisions or directions made at the telephone conference were not reduced to writing. Lengthy written reasons for such interlocutory decisions and directions are not necessary. However the Arbitrator had an obligation to record any decisions made and brief reasons for those decisions and to place this record on the Commission file.
14. Mr Taha submits that the Arbitrator was correct to exercise his discretion to allow the report of Dr Sanki to be filed, notwithstanding non-compliance with the Rules. He argues that: the report was not available earlier, it was filed in the Commission on 24 May 2005, it would in any event have been produced under a Direction to Dr Sanki issued at the request of Top View on 1 June 2005, and Top View was on notice of the report at the time of the telephone conference.
15. Top View alleges that it objected to the filing of Dr Sanki’s report at the hearing. Mr Taha alleges that there was no objection. There is no record of any objection in the transcript, however it is incomplete. Mr Taha argues that Dr Sanki’s report was, in any event, produced under direction issued on behalf of Top View, however this is not confirmed in the documents on file.
16. The Arbitrator’s brief note of the telephone conference refers to “applic requires operation in respect of which there is ref to clips being left in the patient as the cause of pain”(sic). I am satisfied that this is a reference to Dr Sanki’s report and that Top View was on notice of its contents at least from the time of the telephone conference.
17. The Commission file records that on 14 July 2005 Top View filed a report of Dr Barrett, dated 5 July 2005. Dr Barrett does not comment on the effect of Mr Taha’s inguinal hernia on his capacity to work, referring this for the opinion of a general surgeon. His report therefore does not take the arguments on appeal any further (I note there is no ‘Certificate of Service’ of this report and this should be addressed before the matter is referred to an Approved Medical Specialist).
18. The Arbitrator did not err in exercising his discretion to admit the report of Dr Sanki. The report was clearly of great significance to Mr Taha’s claim and was ultimately critical to the Arbitrator’s findings in relation to Mr Taha’s incapacity for work. As the result of a CT scan undertaken by Dr Sanki, he came to the opinion, that Mr Taha’s ongoing incapacity could be affected by the fact that a number of ‘clips’ had not been removed following his operation for an inguinal hernia. This was a dramatic explanation, in part, for Mr Taha’s ongoing complaint of pain and resulting incapacity to work. The extent of the prejudice to Mr Taha if the report was not admitted was great. While the non-compliance with the Rules in relation to the time for filing of evidence was a serious and relevant consideration, in this case other factors outweighed it. Having admitted Dr Sanki’s report, the Arbitrator was required to afford Top View the opportunity to consider and respond to it. As discussed above, it is not the practice in the Commission to facilitate the ongoing ad hoc filing of medical evidence. The parties should have their evidence prepared and filed well in advance of the arbitration hearing. However this case is exceptional in that it appears the CT investigation carried out only in April 2005 (according to the report of Dr Barrett) revealed a startling fact that could explain Mr Taha’s account of his ongoing symptoms. For this reason, Top View should have been given the opportunity to respond to it.
19. I am satisfied Top View had this opportunity and were on notice of the contents of Dr Sanki’s report from the time of the telephone conference. Dr Sanki’s report was served on Top View before the telephone conference and the arbitration hearing. There is no record of whether an application was made by Top View to file evidence in response to it however, Top View was given leave to file a further medical report of Dr Crane and to issue a ‘Direction for Production’ to Dr Mahony. Dr Sanki’s findings were raised in the examination of Mr Taha at the arbitration (see transcript at page 6). The transcript of the arbitration (such as it is) supports Mr Taha’s contention that no objection was raised to the report of Dr Sanki at the hearing.
20. The Arbitrator did not err in failing to provide Top View procedural fairness in relation to the report of Dr Sanki, dated 10 May 2005.
Did the Arbitrator err in relying upon Dr Sanki’s report?
21. Interference with an Arbitrator’s decision as to the weight to be given to the evidence should not be done unless it is clear that the Arbitrator has not exercised this discretion fairly and lawfully (this has been discussed in many Commission decisions, see for example; Knight v Eyles Nominees Pty Ltd [2004] NSWWCCPD 73; State Transit Authority of NSW v Chemler [2005] NSWWCCPD 82; Port Stephens Council v Harding [2006] NSWWCCPD 6).
22. The Arbitrator’s reasons for decision set out clearly the evidence that was before him. The submission by Top View, that Dr Sanki’s report does not identify an “ongoing incapacitating problem” but instead “simply identifies” what is causing Mr Taha’s pain, is obviously circuitous. The Arbitrator expressly considered all the medical evidence. He noted that there was an area of agreement between Dr Sanki and Dr Berry in relation to the ongoing pain as a result of the hernia operation, albeit that only Dr Sanki recommended further surgery.
23. The Arbitrator expressly preferred their evidence to that of Dr Crane. He also stated that he found the medical evidence of “Dr Giurgis” “confusing”. At page 5 of the ‘Reasons for Decision’ the Arbitrator refers to reports of “Dr Guirgis (Orthopaedic Surgeon) dated 7 June 2003 and dated 6 February 2004” and summarises the findings in those reports. However, there is only one report from Dr M Guirgis and that is dated 7 June 2003. The report of 6 February 2004 was a report from the General Practitioner, Dr G Guirguis. In this latter report he states that he referred Mr Taha to “Dr Guirgis Orthopaedic Surgeon”. When considered as a whole I am of the view that this error has not affected the Arbitrator’s determination, however, it highlights the importance of carefully identifying the medical evidence filed in proceedings and stating how it complies with Part 10 of the Workers Compensation Regulation 2003 (‘the Regulation’)(this is discussed further below).
24. In my view the medical evidence does not support the conclusion suggested by Top View, that Mr Taha “is not incapacitated due to the hernia condition and, indeed, . . . made a good recovery from the surgery in relation to same”.
25. The Arbitrator also had the opportunity to hear oral evidence from Mr Taha and to use this in weighing the facts relevant to the history of the injury and development of his symptoms.
26. It cannot be said that the Arbitrator had no evidence upon which to base his findings. He appears to have carefully considered the whole of the evidence before him and has given weight to Dr Sanki’s opinion, which he is entitled to do. In the light of the other medical evidence and of Mr Taha’s own account of his symptoms and incapacity for work, he found it persuasive. While Top View is dissatisfied with the Arbitrator’s findings on the evidence this does not amount to an error of law, fact or discretion on the part of the Arbitrator.
27. This ground of appeal is not made out.
Did the Arbitrator err in ‘misinterpreting’ the reports of Dr Sanki and Dr Berry?
28. Top View argues that the Arbitrator misinterpreted the reports of Dr Sanki and Dr Berry in relation to the issue of incapacity.
29. It is correct to assert that Dr Sanki’s report does not expressly refer to Mr Taha’s incapacity, is not lengthy and does not set out the history of the injury. However, the value of Dr Sanki’s report is clearly that it provides a ‘new’ reason for Mr Taha’s reports of ongoing pain and difficulty following his hernia operation. This report must be considered with the other evidence, medical and otherwise, to give a full picture of the issue of incapacity.
30. In my view the Arbitrator has, correctly, considered the whole of the evidence on the issue of incapacity. He accepted Mr Taha as a witness of truth and accepts his account of his work limitations. He also expressly considered the reports of Dr G Guirguis, Dr M Guirgis, Dr Crane, Dr Ditton, Dr Mills, Dr Sanki and Dr Berry.
31. This ground of appeal is not made out.
Did the Arbitrator err in finding that Mr Taha had four dependents?
32. Top View submit that Mr Taha’s four children “ . . . were not dependent upon him and were not dependent upon him since he separated from his wife”. The evidence is that this separation occurred on 12 January 2005.
33. Mr Taha’s original claim for compensation identified his four children and his wife as “dependents”.
34. Mr Taha and Top View make entirely contradictory assertions as to the evidence on the issue of ‘dependence’ that was before the Arbitrator at the arbitration hearing. Top View assert that under cross-examination Mr Taha “conceded” that he does not “pay maintenance” for his children. The transcript of the arbitration (incomplete but apparently recording the whole of Mr Taha’s cross-examination) records Mr Taha as saying he did not pay maintenance for his children “because Centrelink money is not enough to pay maintenance” (page 16 of the transcript).
35. In fact the Arbitrator did not determine the issue of ‘dependency’ of Mrs Taha or the four children of the marriage. He sets out as an apparent agreed fact (at page 6 of the Reasons) that the “Applicant is a 38 year old man with 4 dependents”. However, the orders refer only to the rate of “$551.00 per week or the maximum statutory rate if the first 26 weeks have been exceeded”. If there is an error in relation to dependency, it is the failure to determine a material issue in the dispute.
36. There was also little evidence of dependency before the Arbitrator. Whether or not Mr Taha would financially contribute to his wife or children if he received an award is an open question. The financial arrangements in the family, for example whether or not Mrs Taha is employed and how much she is earning, are not known. This is a matter that should have been addressed by the parties and explored by the Arbitrator prior to the making of an award for weekly payments. The increase in the weekly benefit entitlement over a lengthy period, between a single person, as opposed to a person with four or five dependents, is significant.
37. The Arbitrator erred in failing to determine this issue.
38. There is insufficient evidence to determine this issue on appeal and therefore the matter should be remitted to the Arbitrator for the determination of this issue at the earliest opportunity.
Did the Arbitrator err in his application of section 40 of the Workers Compensation Act 1987?
39. Top View submits that the Arbitrator erred in finding that Mr Taha had an entitlement pursuant to section 40 of the 1987 Act. It argues that it was not open to the Arbitrator to find that Mr Taha’s ability to earn was ‘nil’ and that this finding was against the weight of the evidence.
40. I am not satisfied that Top View has demonstrated any error by the Arbitrator in the determination of Mr Taha’s ability to earn in suitable employment. Contrary to the submissions made by Top View, there was medical evidence (Dr Berry) that Mr Taha was affected by the nerve irritation in his groin (as a result of the hernia operation) and was unable to perform much of his pre-injury work. Medical advice was that he could only work with restrictions (Dr G Guirguis and Dr Berry), notwithstanding that Mr Taha was willing to work, had actively sought suitable employment, and was unable to obtain it.
41. However the Arbitrator has not clearly set out all of the necessary findings in relation to the determination of Mr Taha’s entitlement under section 40 of the 1987 Act (Mitchell v Central West Health Service (1997) 14 NSWCCR 527; Snow Confectionary Pty Ltd v Askin [2004] NSWWCC PD56). The Arbitrator canvases the evidence on Mr Taha’s ability to earn in suitable employment (at the bottom of page 10 of the Reasons). He refers to the evidence of the restrictions imposed on Mr Taha by his injury and accepts that “despite trying for months as indicated in his Job Log [he] has not been able to get employment at all”. Having stated this in the reasons he then goes on to canvas various partial employment options, and concludes “in all the circumstances the Applicant is partially incapacitated”.
42. The Arbitrator has also not addressed the discretionary element of section 40(1) of the 1987 Act. This failure to address the discretionary element of section 40(1) of the 1987 Act was an error on the part of the Arbitrator. However, on review of the evidence that was before the Arbitrator and the submissions on appeal, I am not satisfied that this error is such that the decision should be revoked. There is no basis, on the evidence, to reduce the amount of the award to Mr Taha under section 40(1) of the 1987 Act. There has been no conduct by Mr Taha that would justify such a reduction. His evidence is that he has actively sought employment within his physical restrictions. He himself agrees that he can perform a range of jobs within his physical restrictions. Mr Taha’s poor English language skills may make employment more difficult to find. The award does not ‘overcompensate’ him, in the sense that he is in a more favourable position than if he continued in employment. There are no other factors that would justify a reduction of the award.
Did the Arbitrator fail to give adequate reasons for his decision?
43. An Arbitrator has a duty to give adequate reasons for decision. Section 294(2) of the 1998 Act and Rule 73 of the Commission’s Rules require that the reasons include:
(a)the findings on material questions of fact, referring to the evidence or other material on which those findings were based; and
(b)the Commission’s understanding of the applicable law, and
(c)the reasoning processes that lead the Commission to the conclusions it made.
44. Top View has not amplified the bare claim that the reasons are inadequate and in my view such a claim is not made out. The Arbitrator has clearly met the requirements of the 1998 Act and the Rules. Lengthy written reasons are not required.
45. The Arbitrator has correctly identified the issues in dispute, and set out the evidence and his findings on these issues. He has given careful consideration to an analysis of the medical evidence and has conveyed why he has found certain evidence persuasive. He has also set out his findings on Mr Taha’s evidence, finding him a ‘witness of truth’ (unfortunately the Arbitrator refers to ‘the Tribunal’ instead of ‘the Commission’).
46. However, as discussed above, the Arbitrator’s reasons do not expressly consider the extent to which the reduction in weekly income calculated by reference to probable and actual earnings is “proper in the circumstances of the case” (section 40(1) of the 1987 Act). This is a matter for the discretion of the Arbitrator according to the circumstances of the instant case.
47. The failure to address the issue of ‘dependents’ in relation to the award of weekly compensation (as discussed above) also affects the adequacy of the reasons.
48. These two errors affect the adequacy of the reasons for decision given by the Arbitrator. In the absence of a clear statement of his determination of the discretionary matters in section 40 of the 1987 Act and the identification and determination of the issue of dependency, the reasons are inadequate.
49. This ground of appeal is made out.
FURTHER ISSUES
50. A further issue arises in this matter, not raised by the parties to the appeal, but evident on the face of the reasons for decision. The Arbitrator has not identified the basis upon which he has admitted the medical evidence in relation to the restrictive requirements of the Regulation. There was a large amount of medical evidence and the reasons for decision should have clearly set out what medical evidence was admitted and why that evidence was admitted. It was necessary to consider the application of Part 10 of the Regulation for the purpose of review of the decision on appeal.
51. Mr Taha’s medical evidence reveals that he consulted a number of specialist medical practitioners in the course of his treatment for both his hernia, and back, neck and arm problems. It appears, from the face of the medical reports filed, that the application of Part 10 of the Regulation was as follows:
Mr Taha’s Medical Evidence
· Dr G Guirguis, General Practitioner (report dated 6 February 2004).
· Dr M Guirgis: Consultant Orthopaedic Surgeon (report dated 7 June 2003). This report was provided as part of treatment of Mr Taha (Clause 45(2)(c) of the Regulation).
· Dr Greenberg: Colorectal and General Surgeon (report dated 28 November 2003). This report was provided as part of treatment of Mr Taha (Clause 45(2)(c) of the Regulation).
· Dr Yarrow: General Surgeon (report dated 27 May 2004). Dr G Guirguis referred Mr Taha to Dr Yarrow in relation to post inguinal hernia pain. This report was provided as part of treatment of Mr Taha (Clause 45(2)(c) of the Regulation).
· Dr Ditton: Consultant in Pain Management (reports dated 13 July, 17 August and 5 October 2004). Mr Taha was referred to Dr Ditton by Dr G Guirguis and he provided brief reports in relation to Mr Taha’s hernia pain. This report was provided as part of treatment of Mr Taha (Clause 45(2)(c) of the Regulation).
· Dr N Berry: General Surgeon (report dated 23 November 2004). This report is governed by Clause 43 of the Regulation, however, it is the only report filed in this specialty, that is not a ‘claims management phase report’ (Clause 45 of the Regulation).
· Dr AJ Sanki: Orthopaedic Surgeon (report dated 10 May 2005) This report was provided as part of treatment of Mr Taha (Clause 45(2)(c) of the Regulation).
Top View’s Medical Evidence
· Dr R Mills: Consultant Physician in Occupational Medicine (report dated 1 June 2004). This report is governed by Clause 43 of the Regulation, however, it is the only report filed in this specialty, that is not a ‘claims management phase report’ (Clause 45 of the Regulation).
· Dr Crane: General Surgeon (report dated 2 May 2005). This report is governed by Clause 43 of the Regulation, however, it is the only report filed in this specialty, that is not a ‘claims management phase report’ (Clause 45 of the Regulation).
DECISION
52. The decision of the Arbitrator, dated 18 July 2005 is confirmed.
53. The matter is remitted to the Arbitrator for determination of whether Mr Taha has ‘dependents’ for the purpose of the calculation of the amount of his statutory entitlement to weekly compensation.
COSTS
54. Top View has been “unsuccessful” on the appeal (section 345 of the 1998 Act). The Arbitrator’s decision as to liability remains in force. The matter must still be referred to an Approved Medical Specialist, as soon as possible, for an assessment of permanent impairment. The only remaining issue is for the Arbitrator to determine ‘dependency’, which will affect the rate of weekly compensation payable to Mr Taha.
55. The appropriate order is that: ‘The Appellant pay the costs of the appeal’.
Dr Gabriel Fleming
Deputy President
2 February 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DR GABRIEL FLEMING, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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