Transfield Services (Australia) Pty Limited v Rolando Norambuena
[2008] NSWWCCPD 108
•2 October 2008
| WORKERS COMPENSATION COMMISSION | ||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||||
| CITATION: | Transfield Services (Australia) Pty Limited v Rolando Norambuena [2008] NSWWCCPD 108 | |||||
| APPELLANT: | Transfield Services (Australia) Pty Limited | |||||
| RESPONDENT: | Rolando Norambuena | |||||
| INSURER: | Self Insurer | |||||
| FILE NUMBER: | WCC2171-08 | |||||
| DATE OF ARBITRATOR’S DECISION: | 10 June 2008 | |||||
| DATE OF APPEAL DECISION: | 2 October 2008 | |||||
| SUBJECT MATTER OF DECISION: | Procedural fairness; sufficiency/adequacy of reasons. | |||||
| PRESIDENTIAL MEMBER: | Acting Deputy President Kevin O’Grady | |||||
| HEARING: | On the papers | |||||
| REPRESENTATION: | Appellant: | David Allen Legal | ||||
| Respondent: | Taylor & Scott Lawyers | |||||
| ORDERS MADE ON APPEAL: | The determination of the Arbitrator, dated 10 June 2008, is revoked and the following decision is made in its place: | |||||
| “1(a) Award for the Applicant at the rate of $1,221.01 per week from 26 February 2007 to 1 June 2007 and at the rate of $1,282.06 per week from 2 June 2007 to 20 July 2007 pursuant to section 33 of the Workers Compensation Act 1987. The Respondent is to have credit in respect of payments made during those periods. | ||||||
| 2. Paragraphs 1(b), 1(c), 2, 3 and 4 of the Arbitrator’s determination are revoked. | ||||||
| 3. The matter is remitted to another Arbitrator for determination afresh pursuant to section 352(7) of the Workplace Injury Management and Workers Compensation Act 1998.” | ||||||
| No order as to costs of this appeal. | ||||||
BACKGROUND TO THE APPEAL
On 3 July 2007 Transfield Services (Australia) Pty Limited (‘the Appellant’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 10 June 2008.
The Respondent to the Appeal is Rolando Norambuena (‘the Respondent’).
The Respondent, who is presently 65 years old, is a Fitter/Welder by trade and commenced employment with the Appellant on 8 February 2007. The Respondent was engaged to carry out maintenance work conducted by the Appellant at a refinery situated at Kurnell NSW.
On 23 February 2007 the Respondent, in the course of his employment, suffered injury whilst attempting to lift a valve. It is alleged by the Respondent that as a result of the lifting incident he sustained injury to his low back with pain radiating to his right leg and that, some time later, he noticed pain in his right arm and neck. A report of this occurrence was made immediately to his Leading Hand and a Report of Injury Form was completed.
The Respondent consulted his General Practitioner and was certified as being fit for light duties on reduced hours. He continued work for a period of three days on each of which he worked four hours. It appears that the Respondent then ceased work however remained employed until his employment was terminated on 20 July 2007.
The Respondent claimed and was paid weekly compensation by his Employer, a Self Insurer, until 20 July 2007. The Respondent has remained unemployed since termination of his employment with the Appellant.
The Respondent disputed the Appellant’s termination of his compensation benefits and accordingly an Application to Resolve a Dispute (‘ARD’) was filed on his behalf on 20 March 2008. That ARD sought determination by the Commission of his entitlement to weekly benefits, medical expenses, the cost of domestic assistance and lump sum compensation pursuant to both sections 66 and 67 of the Workers Compensation Act 1987 (‘the 1987 Act’).
The injuries alleged by the Respondent in his ARD were particularised at Part 4 of that document. The injury description was “back, neck, left and right shoulder, right arm/elbow, physiological [sic]”. The “date of injury” was particularised as being 23 February 2007 and, in the alternative, “nature and conditions of employment between 8 February 2007 – 23 February 2007”. That ARD was the subject of amendment, details of which appear below.
The dispute between the parties came before an Arbitrator for conciliation/arbitration on 2 June 2008. A determination was made by the Arbitrator on 10 June 2008.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 10 June 2008 records the Arbitrator’s orders as follows:
“The determination of the Commission in this matter is as follows:
1.The Respondent is to pay the Applicant weekly benefits compensation at the following rates:
(a) For the period 26 February 2007 to 25 August 2007 at the rate of $1282.06/week pursuant to s36 of the 1987 Act. The Respondent is to be credited for any payments already made.
(b) For the period 26 August 2007 to 29 January 2008 at the maximum statutory rate for a single worker at $361.30 per week pursuant to s37 of the 1987 Act.
(c) For the period 30 January 2008 and continuing at the rate of $1163.50 per week ($2100.89 capped at $1563.50 less $500) pursuant to s40 of the Act.
2.The Respondent to pay the Applicant’s reasonably incurred medical expenses pursuant to s60 of the Act.
3.The Registrar is to refer the matter to an Approved Medical Officer for an assessment of permanent impairment for an injury to the lumbar spine, cervical spine and right upper extremity.
4.The Respondent to pay the Applicant’s costs as agreed or accessed [sic].
A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”
The Arbitrator, in her Reasons for Decision (‘Reasons’) made the following findings (at paragraph 34 of Reasons):
“Rolando Norambuena sustained injuries to his lumbar spine, neck, right shoulder, and right arm and elbow as a result of an injury sustained on 23 February 2007.”
ISSUES IN DISPUTE
The issues in dispute are whether the Arbitrator erred in the following respects:
(i)failing to provide adequate reasons for her decision, in particular with respect to her findings as to the extent of incapacity;
(ii)failing to provide adequate reasons for concluding that body parts other than the Respondent’s back be referred for assessment of whole person impairment by an Approved Medical Specialist;
(iii)failing to consider the oral evidence of the Respondent relating to the history and extent of injury;
(iv)failing to apply the principles as stated in Mitchell v Central West Health Service (1997) 14 NSWCCR 527 (‘Mitchell’) when determining the Respondent’s entitlement pursuant to section 40 of the 1987 Act;
(v)failing to “identify the diagnosis of the condition from which the worker is suffering as a result of work injury”;
(vi)failing to afford the Appellant procedural fairness in founding her decision “upon an injury which aggravated pre-existing “degeneration”, … where that case was not pursued by the worker”;
(vii)failing to give appropriate weight to the medical evidence in the Respondent’s case as to the subject injury being limited to a “back injury”;
(viii)failing to adequately address the evidence as to the Respondent’s incapacity;
(ix)erred in law “in finding the worker stopped being totally incapacitated and became partially incapacitated on the day he happened to be examined by Dr Stephenson”;
(x)failing to give adequate reasons for her determination of the weekly amounts of compensation awarded;
(xi)erred in her failure to consider relevant evidence with respect to the determination of the question of the Respondent’s probable earnings but for injury and as to the exercise by her of the discretion granted by the provisions of section 40 of the 1987 Act;
(xii)failing to apply those principles stated in Makita (Australia) Pty Limited v Sprowles (2001) NSWCA 305 (‘Makita’) in her evaluation of the evidence of Dr Mahony;
(xiii)erred in determination of the quantum of weekly award entered with respect to the period commencing 29 January 2008, and
(xiv)erred in her determination of the Respondent’s ability to earn and failed to provide adequate reasons for her conclusion.
The above summary is taken from the documentation which accompanies the Appellant’s Application in particular that which appears under the heading “Grounds of Appeal and Submissions in Support”.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the Parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
The amount of compensation at issue on the appeal is such that the subject matter of the appeal meets the relevant threshold requirements of section 352(2) of the 1998 Act which must be met before a grant of leave to appeal may be made by the Commission.
The requirements of sections 352(2) and (4) having been satisfied and having regard to the subject matter of the appeal and the arguments raised I order that leave be granted to the Appellant to appeal to the Commission.
PRELIMINARY MATTERS
Respondent’s Allegations of Injury
The Arbitrator at paragraph 5 of Reasons noted the following amendments to the Respondent’s ARD:
“5. At the hearing the Applicant was granted leave to amend the Application as follows:
a) Amend his birth date as set out in section 3.1 to read 7 June 1943.
b) Delete the claim for domestic assistance set out in section 5.4
c) Delete the claim for nature and conditions as set out in Part 4.”
There is before the Commission a transcript of the proceedings conducted before the Arbitrator on 2 June 2008 (‘transcript’). That transcript records oral evidence of the Respondent as well as submissions put on behalf of each party. That transcript does not record the Respondent’s applications with respect to amendment of the ARD as noted above. It is clear from an observation made by the Arbitrator (transcript page 13, line 55) that matters concerning amendment of the Respondent’s claim had been touched upon before the recording of proceedings began.
The amendment as noted at paragraph 5(c) of Reasons appears to record that the Respondent had been granted leave to abandon those allegations contained in Part 4 of his ARD which related to an allegation of injury resulting from the nature and conditions of employment between 8 February 2007 and 23 February 2007. An examination of the transcript reveals that the parties had reached agreement as to the nature of the Respondent’s allegation of injury and the following exchange is recorded (transcript T13.53 to T14.11):
“ ARBITRATOR: All right. Well, thank you. I will just also
put on the record so that there’s no confusion at any
55 time that there was an agreement before we went on the
record that this is not going to be a claim of disease.
Yep.MR PERRY: Yeah, that’s – well, that’s correct. There was
some discussion about that, and Mr Allen has submitted
that the position the respondent has taken is that there
was no such claim, the respondent says, for disease and5 that the respondent has not come here today to meet any
such case, and I’ve ended up conceding that, as such,
disease would not be relied upon in this case.ARBITRATOR: That’s right. Thank you for clarifying that …”
Having regard to the amendment with respect to allegation of injury and the matters raised on behalf of the Respondent by Counsel at the hearing, the Appellant in this appeal challenges the Arbitrator’s findings which, it is argued, are founded upon acceptance “of aggravation of a disease”. The matters raised are more fully addressed hereunder.
Evidence as to Relevant Wage Levels
The transcript records that during the course of submissions agreement was reached between the parties with respect to relevant wage levels. It appears that agreement was reached that the relevant current weekly wage rate was:
“ From 26 February 2007 to 1 June 2007 … $1,221.01 pw
From 2 June 2007 to date … … $1,282.06 pw”
It appears from the content of paragraph 3 of the Appellant’s Written Submissions that there was an acceptance by the Appellant that the figures agreed as being “current weekly wage rate” were determined having regard to the nature of the Respondent’s employment and the provisions of the relevant Enterprise Agreement. These matters are reiterated at paragraph 8 of those Written Submissions.
It was properly conceded on behalf of the Appellant in those Written Submissions (paragraph 8) that there had been an error in calculating the Respondent’s entitlement up to 20 July 2007 and that there had been an underpayment totalling $428.82.
The Respondent has on this appeal properly conceded that the Arbitrator was in error when calculating entitlement to compensation from 30 January 2008. It is argued that that error is of no consequence given that a proper approach to calculation would entitle the Respondent to an award at the maximum statutory rate from that date. Whether that assertion as to entitlement is to be accepted is addressed hereunder.
EVIDENCE AND SUBMISSIONS
The documentary evidence before the Arbitrator was noted at paragraph 14 of her Reasons. That material included the Respondent’s ARD and all attached documents, the Respondent’s Reply together with all attached documents and a Medical Certificate dated 22 April 2008 apparently tendered during the course of the hearing. It was also noted that the Respondent gave sworn oral evidence at the hearing. That evidence is recorded in the transcript.
A Statement made by the Respondent dated 17 December 2007 was included in the material attached to his ARD. That document contains detail of the alleged injury sustained on 23 February 2007. The Respondent describes his attempt to lift a valve weighing approximately 50 kilograms at which time he felt immediate pain and ceased work. It is stated that at that time he had sustained injury to his right arm and lower back with pain radiating down his right leg. He states that he consulted his General Practitioner and was certified as being “fit for light duties only on reduced hours” and that he returned to work for a period of three days working four hours each day. He states that he has not worked since.
It is stated by the Respondent that approximately one month after the subject injury he noticed that the pain in his right shoulder had extended into his neck and was causing discomfort. The Respondent proceeds to describe his treatment and medical investigations. He asserts that he is restricted in his activities and that he is unable to bend or to use his right arm to lift any heavy weight and is unable to reach above his shoulder height without experiencing intense pain.
A number of WorkCover NSW medical certificates were in evidence before the Arbitrator issued by Dr Brent Huckstepp (General Practitioner), Dr Norman Lum (General Practitioner) and Dr G G Mahony (Orthopaedic Surgeon).
The initial medical certificate issued by Dr Huckstepp is dated 26 February 2007 and the date of injury is noted as being 23 February 2007. The Respondent was certified as being fit for suitable duties. Dr Huckstepp recorded the injury in the following terms:
“Lifted a valve onto platform felt something go in back.”
A second certificate of Dr Huckstepp’s dated 1 March 2007 records the diagnosis as “simple lifting injury” and the Respondent was certified as being fit for suitable duties up until 15 March 2007.
The medical certificates in evidence before the Arbitrator issued by Dr Lum initially recorded a “lifting injury” and each subsequent certificate noted as “diagnosis” the words “back injury”. Each of the certificates issued by that Practitioner certified the Respondent as being fit for suitable duties.
Medical certificates issued by Dr Mahony dated from 3 July 2007. The diagnosis noted by Dr Mahony in the first two of those certificates is “L4/5 disc lesions” and as from 8 November 2007 that diagnosis was amplified to include the following matters:
“L4/5 disc lesions, cervical and thoracic strain.”
In evidence before the Arbitrator were three reports of Dr Graham Mahony dated 7 August 2007 and one dated 19 July 2007. Dr Mahony records initially examining the Respondent on 3 July 2007. It is recorded that Dr Mahony had “some difficulty with his history”. The lifting incident was noted in that report. The Respondent’s initial symptoms were recorded as being pain in his low back and right leg with pain in his right arm. Dr Mahony further records the Respondent experiencing neck pain which commenced about 1 month after the subject injury. Dr Mahony expressed the following opinion:
“OPINION
Mr Norambuena does appear to have developed symptoms referable to a cervical strain with nerve root irritation affecting the right upper limb with nerve root irritation radiating to the left shoulder.
He also has symptoms referable to a thoracic strain and a low lumbar back strain in association with degenerate changes with nerve root irritation affecting the right lower limb and there is evidence of a discogenic lesion at the L4/5 level abutting the thecal sac.
He has symptoms referable to a right ulnar nerve neuritis at the elbow and a right carpal tunnel syndrome.
It is consistent that that incident he described on the 23rd February 2007 has produced such lesions aggravating a potentially irritable spine.
I would advise him to restrict his future activities to activities not involving significant bending or lifting or significant use of his upper limbs.
I would consider that Mr Norambuena’s condition has reached maximum medical improvement.
I would also consider that he is suffering from a degenerative condition and the nature of his work as a fitter/welder has accelerated the degenerate changes. ….”
The balance of the reports of Dr Mahony address the question of the cost of treatment, assessment of whole person impairment as a result of the subject injury and the last of the reports is a copy of a letter of referral to a Physiotherapist for treatment of the Respondent’s neck and arm symptoms.
Dr Mahony expressed the view in his principal report that he considered the Respondent:
“permanently unfit for work as a fitter/welder.”
A report from Dr John O’Rourke dated 13 July 2007 being a radiological report concerning investigations of the Respondent’s lumbo sacral spine and cervical spine was in evidence before the Arbitrator.
A report from Francis Crossle (Physiotherapist) dated 27 February 2007 and a report by Joel Rombouts concerning pain management dated 10 May 2007 were also before the Arbitrator.
The balance of the documentation relied upon by the Respondent included extracts from the relevant Enterprise Agreement, together with correspondence relating to the claim as well as original Claim Forms.
The Appellant placed before the Arbitrator documentary evidence being expert medical evidence, together with a number of medical certificates issued by Dr Lum.
Included among the expert evidence were two reports of Dr Brian Stephenson (Orthopaedic Surgeon), the first dated 15 June 2007 and the second dated 29 January 2008. When first examined by Dr Stephenson the Respondent was recorded as complaining of:
“Lumbar pain going to the left buttock region and also up as far as the neck. He feels some discomfort in the right calf muscles also at times. ….”
It was Dr Stephenson’s opinion as expressed in the first of those reports that the Respondent had experienced an “episode of lumbar strain, muscular and ligamentous in nature” as a result of the lifting incident of 23 February 2007. Whilst Dr Stephenson noted that the Respondent had evidence of chronic lumbar degenerative change he expressly stated that there was no aggravation or exacerbation of any underlying pre-existing conditions. Dr Stephenson proceeded to state that he was of the opinion that the Respondent was then:
“… fit to work now on normal duties as a fitter following the correct industry standard lifting techniques that would be expected of him as a fitter in his working role and at his workplace.”
Dr Stephenson in his second report records the Respondent’s “present complaints” as follows:
“He complains of neck pain. He complains of pain in the back of the right leg. He said that there is pain and the fingers go to sleep at the right forearm extending to the 4th and 5th fingers right hand. He said that depends on what he is doing.”
Dr Stephenson noted his diagnosis as follows:
“5. Diagnosis
The diagnosis is that there is long-standing cervical and lumbar degenerative change.
There was no finding of any acute or prominent disc protrusion causing nerve root compromise as a result of the history of the incident of lifting at work. The date of incident injury 23.2.2007.
As noted in my previous report I do accept that the incident of 23.2.2007, there may have been symptoms of acute lumbar strain. Symptoms of a lumbar strain are expected to resolve satisfactorily generally over about a 6 week period as regards any acute lumbar strain.”
Dr Stephenson proceeded to express his opinion that the Respondent was fit for his pre-injury work as a Fitter/Welder.
The evidence of Dr Huckstepp is a copy of correspondence dated 7 March 2007 addressed to his colleague Dr Lum. That correspondence includes a transcription of Dr Huckstepp’s clinical notes. The notes record an injury to the Respondent’s low back and radiological investigation of same. Also attached to the Appellant’s Reply were a number of documents relating to management of the dispute, together with copies of correspondence relevant to the conduct of the disputed claim.
Appellant’s Submissions
At the hearing before the Arbitrator the Appellant relied upon submissions prepared on its behalf by Mr David Allen, Solicitor. Mr Allen supplemented those submissions with oral submissions on the day of hearing. The matters raised on behalf of the Appellant may be summarised as follows:
(i)the fact of “injury” occurring in the course of the Respondent’s employment on 23 February 2007 was not in dispute (transcript T20.49). The issues raised concerned the nature of the Respondent’s injury and the extent of any resultant incapacity;
(ii)the medical and lay evidence was summarised both in the written and oral submissions put on behalf of the Appellant and an argument was advanced that the proper conclusion to be reached as to the nature of the injury would be a finding that it was limited to an injury to the Respondent’s back. It was disputed that there was any other injury in particular it was argued that the evidence did not support a conclusion that the Respondent suffered any injury to his right arm, shoulder or neck;
(iii)the Appellant further argued before the Arbitrator that any incapacity suffered as a result of injury had ceased as at 20 July 2007, that being the date to which weekly benefits had been paid. It was argued, in the alternative, that if it be found that incapacity persisted beyond 20 July 2007, that incapacity had ceased as at the date of examination by Dr Stephenson in January 2008, and
(iv)the general thrust of the Appellant’s submissions were to the effect that any incapacity found would be partial incapacity and it was submitted that such “would result in only a small loss of earnings in the region of $100 to $150 per week”.
The Appellant has, as above noted, provided Written Submissions in support of this appeal which includes “Part B – Grounds of Appeal and Submissions in Support”. Paragraph 1 of those Submissions states that at the hearing, the Respondent’s Counsel:
“ … withdrew the claim for domestic assistance and withdrew an application for leave to amend the Application to allege injury in the nature of a disease of gradual onset or aggravation, acceleration, exacerbation or deterioration of a disease to which his employment was a substantial contributing factor within sections 15 and 16 of the Workers Compensation Act 1987 (WCA). The solicitor for Transfield Mr. David Allen had objected to the proposed application to so amend the Application upon grounds of denial of procedural fairness, in that the Respondent would not have the opportunity to respond to the allegation by obtaining further medical evidence (for example, from Dr Stephenson).
2. On the basis that no relief on account of the “disease” provisions of the 1987 Act was sought, the matter proceeded to hearing.”
The Respondent’s suggested abandonment of reliance upon “the disease provisions” is relied upon as a basis to support an argument that the Appellant was denied procedural fairness, given that an inference may be drawn that the:
“… Arbitrator found that injury resulted from the aggravation of the underlying disease condition …”
The Arbitrator’s findings with respect to incapacity are challenged by the Appellant. Reference is made to the oral evidence of the Respondent given at the hearing and to the medical evidence generally. Particular attention is given in the submissions to the finding by the Arbitrator with respect to the Respondent’s partial incapacity dating from January 2008.
The Arbitrator’s reasoning is the subject of criticism in these submissions upon the basis that consideration was given to the operation of section 38 of the 1987 Act in circumstances where there was no claim brought pursuant to that provision.
It was further argued that the Arbitrator “failed to consider any matters or even the existence of discretion under section 40 of the 1987 Act”.
The Written Submissions accompanying the Appellant’s Application include a further refinement of argument which commences at page 6 of that document. That material appears to identify the Appellant’s grounds of appeal with more particularity and may be summarised as follows:
(i)it is argued that the Arbitrator failed to provide adequate reasons in particular with respect to the conclusion that body parts of the Respondent other than his back should be referred for assessment by an AMS;
(ii)failure on the part of the Arbitrator to comply with the principles as stated in Mitchell when determining entitlement pursuant to section 40 of the 1987 Act;
(iii)failure to afford procedural fairness to the Appellant having regard to her conclusion as to aggravation of a pre-existent “degenerative” condition of the Respondent’s spine. This argument, as earlier stated, was founded upon the manner in which injury was particularised following amendment of the ARD;
(iv)failure to consider the evidence and the weight of the evidence concerning the extent of the injury sustained by the Respondent in particular that that injury was restricted to a back injury;
(v)failure to provide “any explanation” for the quantification of the weekly amounts awarded in the Respondent’s favour;
(vi)it is argued that the Arbitrator erred in her reliance upon the evidence of Dr Mahony given that the content of Dr Mahony’s evidence did not satisfy the “requirements” with respect to expert evidence as enunciated in the decision of Makita;
(vii)it is argued that the Arbitrator erred in her determination of quantum of probable earnings. It is put that the nature of the Respondent’s employment contract needed to be considered when this issue was being determined, and
(viii)with respect to quantification of any entitlement pursuant to section 40 it is argued that the Arbitrator erred in failing to address “competing submissions” in her Reasons.
The documents which accompany the Appellant’s Application do not state plainly the grounds of appeal but rather contain enumerated argument which, on occasions, contains a suggested ground of appeal together with a summary of evidence and argument directed to suggested error. The above mentioned summary has been distilled from the entirety of those submissions which accompany the Application.
Respondent’s Submissions
Submissions put on behalf of the Respondent before the Arbitrator are recorded in the transcript. Attention was initially given to the question of incapacity and the competing views of Drs Mahony and Stephenson. The medical evidence was summarised and, significantly, it was stated by Counsel:
“… if the Commission finds – and it’s entitled to find on the balance of the evidence, I’d have to concede, despite what Dr Mahony says – it’s entitled to find that there’s some section 43A residual capacity to earn from the time that compensation payments ceased on 20 July 2007.”
It appears that the Respondent at the hearing accepted that, in the event that the Arbitrator accepted incapacity persisting beyond the last date of voluntary payments then such incapacity would be “partial”.
Argument was advanced on behalf of the Respondent founded upon the opinion of Dr Mahony that the injury sustained included not only that to his back but included “cervical strain of the right upper limb, nerve root irritation, left shoulder, thoracic strain and low lumbar back strain” (transcript T21.9 to T21.14).
It is to be noted that ( transcript T21.40 to T21.48) submissions are put with respect to the question of “injury” which appear to be founded upon some allegation involving not only the subject injury but the nature and conditions of the Respondent’s work.
It was stated by Counsel that agreement as to “probable earnings” had been reached and reference was made to the current weekly wage rate as being the appropriate level of probable earnings but for injury (transcript T17.25 to T17.39). It was further put that “ability to earn” post injury would, having regard to the medical evidence and a number of other factors including the Respondent’s age, experience and linguistic skills, be “something less than $500 per week …”.
The Respondent has filed a Reply to the Appellant’s Application which includes submissions in response to the Appellant’s arguments on this Appeal.
The Respondent properly concedes an error on the part of the Arbitrator to be found in paragraph 35(1)(a) of her Reasons.
The Respondent again properly concedes an error to be found in paragraph 35(1)(c) of Reasons.
The Respondent seeks to refute the arguments in support of the suggested denial of procedural fairness. It is argued that there was no basis to infer that the Arbitrator had “overlooked” the amendment concerning, what is described as, “the s.16 allegation”.
The Respondent submitted that the “critical issue” for determination before the Arbitrator was “whether the Respondent had “recovered” from the injury on 23 February 2007”. The evidence generally is summarised and it is argued that the Arbitrator has plainly determined that the incapacitating effects of the injury which occurred on 23 February 2007 persisted. Reference is made to relevant authority and it is argued that the finding by the Arbitrator was one of an “injury simpliciter” being a frank injury which aggravated degenerative changes.
The Respondent argues that the Arbitrator “has sufficiently indicated and exposed her reasoning” and has given sufficient reasons for her conclusions of fact.
The Respondent argues that the Arbitrator “did follow the steps in Mitchell although the Arbitrator has not applied any discretion to reduce the s.40 award”.
The Respondent proceeds to address the evidence and the Arbitrator’s reasons in support of her ultimate finding that the Respondent had a post injury ability to earn $500 per week.
The Respondent seeks to refute the Appellant’s argument concerning Dr Mahony’s opinion and the suggestion that his opinions were “bare conclusions” as discussed in Makita. Reference is made to the physical examinations conducted by Dr Mahony as well as the conduct and analysis of investigations that had been carried out for diagnostic purposes.
The Respondent’s submissions are critical of the Appellant’s submission as to entitlement to $100 to $150 per week should there be a finding of ongoing incapacity. It is stated that such assertion is “baseless”. Reference is made to the form of the Appellant’s submission put to the Arbitrator and in particular to the absence of any submission as to probable earnings (other than reference to the suggested agreement with respect to base rates or current weekly wage rates).
Appellant’s Submissions in Reply
Written Submissions in reply to the Respondent’s argument as summarised above are before the Commission. Of significance the Appellant notes in paragraph 1 of those Submissions that agreement with respect to probable earnings was in fact reached between the parties at the hearing. The quantum of those earnings was as summarised in paragraph 24 above.
It is put (at paragraph 2 of Submissions in Reply) that agreement had been reached at the hearing “that there should be an award in favour of the Respondent Worker at the rate of $61.26 per week from 2 June 2007 to 20 July 2007.” It was further noted that entitlement to compensation beyond that date was disputed.
With respect to the suggested denial of procedural fairness it is put:
“It seems evident that (the Arbitrator) found that there was an aggravation of degeneration which falls within section 16 of the Workers Compensation Act 1987 ...”
It is argued that the Arbitrator’s findings with respect to injury were such that they were “characterised as a section 16 “disease” case”.
It is argued that the Arbitrator reached her ultimate conclusion with respect to the question of injury having overlooked the fact that the Respondent was not permitted to amend to rely upon the “disease” provisions of the 1987 Act.
DISCUSSION AND FINDINGS
This appeal is brought pursuant to the provisions of section 352 of the 1998 Act. Subsection (5) of that section provides:
“(5) An appeal under this section is to be by way of review of the decision appealed against.”
The nature of the “review” stated in the aforementioned subsection was considered by the NSW Court of Appeal in Aluminium Louvres & Ceiling Pty Limited v Zheng [2006] NSWCA 34; 4 DDCR 358 (‘Zheng’) where the Court was there considering an appeal from a Deputy President of this Commission who had heard an appeal from an Arbitrator which involved arguments concerning suggested denial of procedural fairness. In his leading judgment Bryson JA (with whom Handley JA and Bell J agreed) said at [38]:
“38. A review is a different process to an appeal and the matters which may be considered and the manner in which they may be considered are somewhat wider. See Boston Clothing Co Pty Ltd v Margaronis (1992) 27 NSWLR 580 at 584 (Kirby P). An attack, on review or otherwise, on an Arbitrator’s discretionary decision in controlling procedure may be based on the test stated in House v R (1936) 55 CLR 499 at 504 ‑ 505; but that is not the only basis on which the Presidential member may act. The powers of a Presidential member on review are somewhat wider and extend to power to reopen consideration of a matter of which an Arbitrator has disposed; the manner in which the powers of the Presidential member are to be exercised is itself the subject of discretion of the Presidential member. ….”
The concept of “review” as it appears in the aforementioned subsection was again considered by the NSW Court of Appeal in State Transit Authority of NSW v Fritzi Chemler [2007] NSWCA 249 where, it was observed by Spigelman CJ (with whom Basten JA and Bryson AJA agreed) at [30]:
“30. A Presidential member exercising a power to review a decision must decide whether the original decision is wrong or, as it is often put in the context of administrative appeals on merits, must decide what is the true and correct view. If s/he does so decide then s/he should substitute his or her own views, unless it is an appropriate case to remit …”
The manner in which the Appellant has presented its arguments on this appeal lacks, to an extent, precision however it is clear that the Arbitrator’s determination is challenged fundamentally upon two bases:
(i)denial of procedural fairness, and
(ii)failure to give adequate reasons for factual conclusions identified in the course of submissions.
It is proposed to deal with the serious suggestion that there has been a denial of procedural fairness. The Appellant’s submissions suggest that the Arbitrator’s findings as to the issue of “injury” and her acceptance of the opinion of Dr Mahony necessarily imply acceptance by her that such injury resulted from the aggravation of a pre-existing degenerative condition. The Appellant’s submissions do not make it clear whether this argument is limited to the Arbitrator’s finding with respect to injury to the Respondent’s lumbar spine or whether it is directed to the totality of the injuries found by her and enumerated at paragraph 34 of her Reasons. It is however asserted that:
“5. The arbitrator explained in paragraph 30 of her Reasons for Decision that she accepted that the injury on 23 February 2007 had rendered the previously asymptomatic degenerative condition symptomatic. Such a finding is in contradiction to the basis upon which the matter proceeded, and is in breach of procedural fairness.”
The Arbitrator, at paragraph 30 of Reasons, addressed numerous evidentiary matters including a notation that the Respondent had, before injury, suffered from “arthritis” as noted in Dr Huckstepp’s clinical notes. The Arbitrator proceeded to state:
“There is really no other explanation as to why he continues to experience ongoing symptoms and incapacity if the degenerative condition was asymptomatic at the time of the injury. I therefore prefer the evidence provided by Drs Huckstepp, Lum and Mahony over that provided by Dr Stephenson because they are all consistent in regards to incapacity and in each case the doctors actually treated the Applicant and their opinions are based on their thorough knowledge of him. The incapacity Mr Norambuena continues to experience results from the lifting injury that occurred on 23 February 2007.”
The basis of the Appellant’s complaint is that a finding was made founded upon what is described in the Appellant’s submissions as “the disease provisions”. At the hearing, as above noted, the Respondent amended his ARD to delete any allegation of injury resulting from the “nature and conditions” of his employment with the Appellant. It also appears from the submissions from each party to this appeal that the Respondent withdrew an application to amend the ARD to include an allegation of injury being an aggravation of an underlying disease in terms of section 4(b)(ii) of the 1987 Act. Those matters are not recorded however it appears that the amendment was intended to seek an entitlement founded, in the alternative to the allegation of injury occurring on 23 February 2007, upon the disease provisions which include section 16 of the 1987 Act. That approach was undoubtedly raised by those advising the Respondent having regard to Dr Mahony’s opinion as expressed in his report of 7 August 2007 (at page 4):
“I would also consider that he is suffering from a degenerative condition and the nature of his work as a fitter/welder has accelerated the degenerate changes.”
The Appellant is correct to assert that the Respondent had abandoned not only the “nature and conditions” allegation contained in the ARD but had expressly eschewed reliance upon those provisions of the 1987 Act which regulate entitlement in respect of diseases whether contracted in the course of employment or aggravated in terms of section 4(b)(ii) of the 1987 Act.
The Respondent is correct when stating in submissions on this appeal (paragraph 6.7 of Submissions) that a finding of aggravation of a disease resulting from a frank incident may be determined to be an injury simpliciter within the meaning of section 4(a) of the 1987 Act. This matter was addressed by Hodgson JA in Rail Services Australia v Dimovski and Anor [2004] NSWCA 267 (‘Dimovski’) where it was stated (at [68]):
“68 In my opinion, the decision in Mecha is to be preferred. Section 16 applies only if the injury “consists in” the aggravation etc of a disease. If there is an event that satisfies paragraph (a) of the definition of injury, and if that is the injury relied on and proved, the circumstance that it aggravated the disease and thus could have supported a case under paragraph (b)(ii) does not mean that this injury “consists in” the aggravation of a disease. One strange result of the contrary view would be that a frank injury relied on and proved would, if it happened to aggravate a disease, and if incapacity did not commence immediately, be deemed under s.16(1)(a) to have happened at some time other than when it in fact happened.”
The circumstances which I have attempted to summarise above give rise to two distinct difficulties. Firstly, the argument as to entitlement in respect of “personal injury” in circumstances where there has been an “aggravation” of a disease was not raised before the Arbitrator. Secondly, the basis upon which the Appellant’s liability was determined is not clear from the terms of the Arbitrator’s Reasons.
If it is to be inferred from the Arbitrator’s Reasons that the Appellant’s liability was in fact founded upon an application of the “disease provisions” of the 1987 Act then the Appellant is correct in its complaint that it was not given an opportunity to address the matter either by way of evidence or submission. It is, however, unclear as to what reasoning was adopted by the Arbitrator when concluding that “injury” had been established by the Respondent. It is therefore my view that the Appellant has established a failure on the part of the Arbitrator to state adequate or, perhaps more correctly, sufficient reasons for her determination on this matter of dispute. That failure constitutes an error of law and such error, standing alone, requires revocation of the Arbitrator’s determination. The uncertainty as to whether liability has been determined having regard to the “disease provisions” precludes a conclusion that there has been a denial of procedural fairness.
The parties have agreed that the Arbitrator has erred in respect of the award entered in paragraph 1(a) of the Certificate of Determination. It was agreed that the Respondent had been paid less than his entitlement up to the date of termination of voluntary weekly payments being 20 July 2007. In the circumstances, there being no dispute as to entitlement up to that date, the Respondent’s entitlement may be determined upon this appeal.
At the hearing the Appellant disputed any entitlement to weekly payments after 20 July 2007. Following her factual determinations the Arbitrator entered an award for continuing weekly benefits. It is common ground between the parties that her award made in paragraph 1(c) constituted, at least, an arithmetic error. The Respondent acknowledges in submissions on this appeal that the maximum entitlement he may have is the maximum statutory rate for a worker without dependents which is substantially less than the sum of $1,163.50 entered by the Arbitrator in his favour.
The Appellant has argued on this appeal that the Arbitrator has erred in failing to provide adequate reasons with respect to various issues including her determination as to the extent of the Respondent’s injury, the nature and extent of incapacity and the determination of his ability to earn in his incapacitated state. These arguments are put in association with an assertion that the Arbitrator has failed to comply with the principles enunciated in Mitchell.
As was stated by Meagher JA in Beale v GIO of NSW (1997) 48 NSWLR 430 at 443 “reasons need not necessarily be lengthy or elaborate” but “relate to the function to be served by the giving of reasons”. When needing to refer to relevant evidence “there is no need to refer to [it] in detail, especially in circumstances where it is clear that the evidence has been considered”. [This line of reasoning was cited by Santow JA in Haris v Bulldog’s Rugby League Club [2006] NSWCA 53.]
I am of the opinion that the Arbitrator has failed to discharge her duty to sufficiently state reasons for her conclusions of fact concerning the issues summarised in [90] above and in so doing has erred in law. In so concluding I have had particular regard to the unexplained finding of total incapacity persisting to 29 January 2008, a finding which contradicts the apparent concession noted at [57] above. I conclude that the Arbitrator’s decision should be revoked.
The question arises as to whether, on this appeal, a new decision should be made in its place. The NSW Court of Appeal in Chubb Security Australia Pty Limited v Trevarrow [2004] NSWCA 344 considered the legislative intention behind section 352 of the 1998 Act and has expressed the view that should an appeal be upheld it is preferable, if possible, that the Presidential Member finally determine the matter (per Santow JA at paras 28 and 29).
I have reached the conclusion that an order may be made on this appeal with respect to the undisputed entitlement of the Respondent up until 20 July 2007. As to the outstanding matters I have concluded that it would be inappropriate to substitute a decision on appeal for that of the Arbitrator. I have reached this conclusion upon the basis that, at the very least, the issues raised by the relevance or otherwise of section 4(b)(ii) of the 1987 Act require attention and, in particular, the Appellant should have the opportunity to advance any available argument which it may be advised is available having regard to the proper application of principle to the relevant facts.
CONCLUSION
Having regard to the matters outlined above I conclude that the Arbitrator’s decision must be revoked. It is appropriate on this appeal to enter an award in favour of the Respondent in respect of entitlement to weekly compensation up to 20 July 2007. That award, made pursuant to section 33 of the 1987 Act, leaves open the question of the existence and extent of any incapacity beyond 20 July 2007 for latter determination. Otherwise the matter is remitted to another Arbitrator for determination afresh. Such determination is to address all issues raised for determination at the original hearing which concern entitlement to benefits to weekly payments beyond 20 July 2007 and otherwise as claimed in the ARD. The question of costs of the original hearing may be addressed by the Arbitrator following redetermination of the claim.
DECISION
The determination of the Arbitrator, dated 10 June 2008, is revoked and the following decision is made in its place:
“1(a) Award for the Applicant at the rate of $1,221.01 per week from 26 February 2007 to 1 June 2007 and at the rate of $1,282.06 per week from 2 June 2007 to 20 July 2007 pursuant to section 33 of the Workers Compensation Act 1987. The Respondent is to have credit in respect of payments made during those periods.
2. Paragraphs 1(b), 1(c), 2, 3 and 4 of the Arbitrator’s determination are revoked.
3. The matter is remitted to another Arbitrator for determination afresh pursuant to section 352(7) of the Workplace Injury Management and Workers Compensation Act 1998.”
COSTS
No order as to costs of this appeal.
KEVIN O’GRADY
Acting Deputy President
2 October 2008
I, TUYET WALLIS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O’GRADY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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