Volkswagen Financial Services Australia Pty Ltd v Mokohar
[2016] NSWWCCPD 13
•23 February 2016
| WORKERS COMPENSATION COMMISSION | ||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||
| CITATION: | Volkswagen Financial Services Australia Pty Ltd v Mokohar [2016] NSWWCCPD 13 | |
| APPELLANT: | Volkswagen Financial Services Australia Pty Ltd | |
| RESPONDENT: | Aaron Mokohar | |
| INSURER: | QBE Workers Compensation (NSW) Ltd | |
| FILE NUMBER: | A1-4265/15 | |
| ARBITRATOR: | Mr R Perrignon | |
| DATE OF ARBITRATOR’S DECISION: | 2 November 2015 | |
| DATE OF APPEAL DECISION: | 23 February 2016 | |
| SUBJECT MATTER OF DECISION: | Psychological injury; application to admit late documents; application for leave to cross-examine; exercise of Arbitrator’s discretion; evidence of no current work capacity; presumption of continuance; out of date medical evidence; improper attempt to raise new issues in submissions in reply without seeking leave | |
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | |
| HEARING: | On the papers | |
| REPRESENTATION: | Appellant: | Gillis Delaney Lawyers |
| Respondent: | Marshall & Gibson Lawyers | |
| ORDERS MADE ON APPEAL: | 1. Paragraphs 1, 2, 4(a) and 5 of the Certificate of Determination of 2 November 2015 are confirmed. Paragraphs 3 and 4(b) are revoked and the following orders made in their place: “3. That the applicant has had no current work capacity from 22 October 2014 to 18 April 2015. 4.(b) In respect of the period 31 January 2015 to 18 April 2015, at the rate of $880 per week, pursuant to s 37.” 2. Mr Mokohar’s entitlement to weekly compensation beyond 18 April 2015, if any, is remitted to a different Arbitrator for re-determination. | |
INTRODUCTION
The appellant employer has challenged an Arbitrator’s refusal to grant leave to admit into evidence documents attached to an Application to Admit Late Documents filed with the Commission the day before the arbitration hearing, the refusal to allow cross-examination, and the finding that the worker had no current work capacity. For the reasons explained below, the appeal is partly successful and the worker’s entitlement to weekly compensation from 19 April 2015 to date and continuing must be re-determined. The Arbitrator’s findings on injury, and incapacity up to 18 April 2015, are confirmed.
BACKGROUND
In April 2014, the respondent worker, Aaron Mokohar, started work for the appellant employer, Volkswagen Financial Services Australia Pty Ltd, as a case manager. He alleged that he suffered a psychological injury due to bullying and harassment at work between April 2014 and when he stopped work on 22 October 2014. He claimed weekly compensation from 22 October 2014 to date and continuing, and compensation for hospital and medical expenses.
Relying on evidence from Dr Lee, consultant psychiatrist, the insurer disputed liability on the ground that he did not suffer from a psychological condition and that he suffered no incapacity for work.
The Commission listed the matter for conciliation and arbitration in Queanbeyan on Tuesday, 27 October 2015. At 5.24 pm on Monday, 26 October 2015, the appellant’s solicitors lodged with the Commission an Application to Admit Late Documents. This application had attached to it a 48 page factual investigation report (the investigation report). That document had a further 37 pages of attachments. The documents included; “website material”, “social media material”, and a statement from Amanda Lintott, a director of an employment agency. The parties agree that these documents did not come to the attention of Mr Mokohar’s legal advisers until about 30 minutes prior to the commencement of the arbitration.
At the start of the arbitration, counsel for the appellant, Mr Callaway, sought leave to tender the documents attached to the Application to Admit Late Documents. Counsel for Mr Mokohar, Mr Nicholson, objected to the admission of the documents and the Arbitrator upheld that objection. After a short adjournment, Mr Callaway sought leave to cross-examine Mr Mokohar about “certain matters contained in the documents” (T8.11). That application was opposed and refused.
The matter proceeded with lengthy submissions from both counsel. In an oral decision delivered on 30 October 2015, the Arbitrator identified the issues in dispute to be:
(a) whether Mr Mokohar suffered a diagnosable psychiatric illness;
(b) if so, whether it was contracted in the course of his employment with the appellant and whether the employment was the main contributing factor to the contraction of the disease, and
(c) to what extent, if any, Mr Mokohar had been incapacitated for work from 22 October 2014 to date as a result of the psychiatric illness, if any.
After a comprehensive review of the evidence, expressed with enviable clarity, the Arbitrator found that Mr Mokohar suffered a diagnosable psychiatric illness, either an Adjustment Disorder or a Major Depressive Disorder, and that the main cause of the illness was a history of difficult personal relations with several co-workers. Accepting the evidence from Mr Mokohar’s treating general practitioner, Dr Muthurajah, and his treating psychologist, Ms Meylakh, the Arbitrator found that Mr Mokohar had no current work capacity from 22 October 2014 to date and continuing and made an award for the payment of weekly compensation and medical expenses.
Consistent with the Arbitrator’s reasons, the Commission issued a Certificate of Determination on 2 November 2015 in the following terms:
“1.Grant leave to amend Part 4 of the Application to Resolve a Dispute by substituting ‘22 October 2014 (deemed date)’ as the date of injury, and as a consequence to amend Part 5 to claim weekly compensation from 22 October 2014 to date and continuing.
2.Finding that on 22 October 2014 (deemed date) the applicant contracted a disease of the mind, namely and [sic] Adjustment Disorder or Major Depressive Disorder, and that his employment was the main contributing factor to the contraction of that disease.
3.Finding that the applicant has been totally incapacitated for work from 22 October 2014 to date and continuing as a result of injury on 22 October 2014 (deemed date).
4. Award of weekly compensation as follows.
a.In respect of the period 22 October 2014 to 29 January 2015, at the rate of $1,045 per week pursuant to section 36 of the Workers Compensation Act 1987.
b.In respect of the period 39 [sic, 30] January 2015 to date and continuing, at rate of $880 per week, pursuant to section 37.
5.Pursuant to section 60, the respondent is to pay the applicant’s reasonably necessary medical and related expenses as a result of injury on 22 October 2014 (deemed date).”
The employer has appealed.
ON THE PAPERS
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 Nos 1 and 6, the documents that are before me, and the submissions 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.
ISSUES IN DISPUTE
In the Further Amended Application – Appeal Against Decision of Arbitrator, prepared by the appellant’s solicitor, Ms Tancred, the issues were identified as whether the Arbitrator erred in:
(a) exercising his discretion in not permitting the appellant to tender the late documents annexed to the Application to Admit Late Documents dated 26 October 2015 (refusal to admit late documents);
(b) exercising his discretion by refusing the appellant leave to cross-examine Mr Mokohar in relation to matters touching on his activities relevant to his work capacity (refusal to allow cross-examination);
(c) finding ongoing total incapacity in circumstances where there was no evidence as to Mr Mokohar’s activities or of ongoing incapacity (finding of no current work capacity), and
(d) finding ongoing total incapacity in circumstances where, properly considered, there was no evidence to support such a finding (finding of no current work capacity).
In submissions in reply, prepared by Mr Callaway, the following grounds have been identified, namely, whether the Arbitrator erred in:
(a) not giving due weight to the probative value of the late documents, particularly the website material (refusal to admit late documents);
(b) placing undue weight on possible prejudice to Mr Mokohar (delay) and in not properly considering the injustice by rejection of each part of the material separately (refusal to admit late documents);
(c) failing to consider the merits of the application (to admit late documents) by having regard to the content of the material sought to be tendered (refusal to admit late documents);
(d) failing to have regard to the fact that any explanations in relation to the material could have been proffered by Mr Mokohar and his partner at the arbitration (refusal to admit late documents);
(e) placing undue weight on the delay that may be occasioned to Mr Mokohar and no weight on doing justice between the parties on the substantial merits of the case (refusal to admit late documents);
(f) stating that counsel for the appellant had not pointed to any aspect of the evidence that was in need of clarification, which might justify the application for leave to cross-examine, when the website material clearly required explanation if the appellant was to be afforded a fair hearing (refusal to allow cross-examination), and
(g) failing to acknowledge that the most recent evidence was more than eight months old (finding of no current work capacity).
The raising of several new issues in submissions in reply, without seeking leave to do so, was improper and should not have been done. It was analogous to filing additional submissions, without leave, after the conclusion of the case. Such a practice has been sharply criticised by appellate courts on many occasions (see Bale v Mills [2011] NSWCA 226 at [57] and the cases there cited). That criticism is appropriate in this matter.
Submissions in reply are restricted to responding to matters raised in the notice of opposition. Mr Callaway’s submissions in reply are the submissions that should have been filed in support of the appeal. The appellant’s legal advisers have conducted this matter as if the normal rules of practice and procedure do not apply to them. That is unacceptable. Notwithstanding that leave was not sought to raise the new issues in the reply, I will address them.
The various grounds of appeal really come down to three main issues: refusal to admit late documents, refusal to allow cross-examination and finding of no current work capacity.
REFUSAL TO ADMIT LATE DOCUMENTS
Proceedings before the Arbitrator
To properly understand this ground of appeal, and to give context to the Arbitrator’s ruling, it is necessary to set out the history of the matter and the proceedings before the Arbitrator at Queanbeyan.
At a teleconference before the Arbitrator on 31 August 2015, when both sides were legally represented, the appellant’s solicitor said that the appellant would be filing further evidence going to the issue of incapacity (T4.21). She referred to Facebook entries, which the Arbitrator said “must have been available to her at 31 October [sic, 31 August] as she indicated that it was going to be filed” (T4.25). No documents were lodged with the Commission until the late documents were forwarded to the Commission by email at 5.24 pm on 26 October 2015, that is, after the registry had closed. These were the documents that Mr Callaway sought to tender in Queanbeyan on 27 October 2015.
In opposition to the admission of the documents, Mr Nicholson submitted:
(a) that the material had been served on his solicitor electronically on 26 October 2015, but neither his solicitor nor he saw the material until 30 minutes prior to the start of the arbitration;
(b) he had seen some of the material (from Facebook or Instagram) before 27 October 2015, but some post-dated the date of registration of the Reply, which was on 11 August 2015;
(c) he had not previously seen Ms Lintott’s statement or the other documents;
(d) he had attempted, as best he could, to explore some of the issues in conference with Mr Mokohar shortly after receiving the material, but it “became quite clear to me that I just won’t be able to understand what’s going on without the benefit of a very lengthy either conference of myself or my solicitor and the gathering of reply evidence” (T3.9), and
(e) that he would need an adjournment to deal with, take instructions on, reply to the documents and to “even know the relevance of them” (T3.19).
Mr Callaway submitted that he had, on his phone, “some information in terms of attempts that were made to get hold of this material earlier” (T3.27). He said that “it seems that my instructing solicitor contacted the investigator in September – 7 September, then 1 October 2015, 2 October 2015, 14 October 2015, 15 October 2015, 21 October 2015, in attempts to get this material” (T3.29). He said that the problem was arranging for Ms Lintott to sign her statement and that delayed getting the report.
The Arbitrator gave the following reasons for refusing the application, starting at T4.16:
“Application is made to admit a late document filed by the [appellant] the night before the hearing, namely, 26 October 2015, in circumstances where the hearing has been set down for hearing in Queanbeyan on 27 October.
The matter was last heard at a teleconference on 31 August 2015. On that date the [appellant’s] solicitor did indicate that the [appellant] would be filing further evidence going to the issue of incapacity. In particular, she referred to Facebook entries which must have been available to her at 31 October [sic, 31 August] as she indicated that it was going to be filed.
The explanation for the delay is that the relevant solicitor approached the investigator to provide an investigation report on, I think, 7 September and a number of times in October from 1 October. It has been explained to me that there was difficulty in getting Ms Lintott to sign her statement, but there is no reason given why any of the other material could not have been more promptly furnished.
I accept the submissions of [Mr Mokohar’s] counsel that were this material to be admitted it would necessitate an adjournment because, of course, he would need to take detailed instructions on all this material – it’s quite voluminous – and to consider whether evidence were needed in response to it. I think, doubtless, evidence would be needed. So, the only basis on which I would even contemplate giving leave to present this material as evidence would be to grant an adjournment.
That would delay the proceedings unreasonably, and I am not satisfied that the delay has been adequately explained. There is no reason by [sic, why] Ms Lintott’s statement couldn’t have been served unsigned.
It is not clear to me what interactions occurred between the solicitor and the investigator and there is no explanation for why there was a gap between the enquiry of 7 September and 1 October of so long. As the solicitors for the insurer were well aware that there were problems as to timing, they should have approached the Commission and informed the Commission and the other parties of the problems and, if necessary, had the matter – applied to have the hearing date vacated so that they could obtain that evidence, file and serve it within proper time. They did not do so.
For those reasons I am not satisfied the delay has been reasonable. I am satisfied that there is prejudice to [Mr Mokohar] in the manner in which the – and the timing in which the documents have been produced, and I am not prepared to prejudice the hearing date or the resources of the Commission by throwing away the current hearing date, so I do not accept into evidence the Application to Admit Late Documents of 26 October 2015.
I will now adjourn.”
Submissions
The appellant’s submissions are in two parts: Ms Tancred’s submissions, attached to the further amended appeal, and Mr Callaway’s submissions in “reply”. Ms Tancred said that the investigation report attached to the Application to Admit Late Documents was not received until 26 October 2015. She submitted that the report contained “material relevant to injury and incapacity”, namely, a statement from Amanda Lintott, website domain registration details and social media material.
Ms Tancred submitted that it was apparent from the documents that Mr Mokohar was seeking alternative employment at the time he ceased work with the appellant, which was said to be relevant to injury and incapacity. In addition, at the date of the arbitration, Mr Mokohar “appeared to be associated with 3 websites namely Best Start Child Care, Hostyhelp.MobI and CrewSure Recruitment. CrewSure Recruitment had current vacant employment positions posted with [Mr Mokohar] nominated as the contact person”. The investigator’s report was said to “contain detailed facebook [sic] entries consistent with [Mr Mokohar] being socially active and travelling”.
Ms Tancred contended that the documents “go to the very issue to be determined by the Commission in relation to both injury and incapacity”. She said that the “Domain Name material is unexplained in the evidence and is inconsistent with the level of incapacity alleged and found by the Arbitrator”. In the circumstances, “the issue of incapacity has been determined without regard to the material, most importantly the material that indicates [Mr Mokohar] has likely been engaged in some type of work or at least activities consistent with him having a work capacity”.
Ms Tancred contended that the “issue of incapacity has ultimately been determined on a dearth of material thereby underscoring the miscarriage of justice occasioned by the exclusion of the investigator’s report”. A “proper exercise of discretion pursuant to Reg 10.3 [sic] of the Rules required admission of the documents in the interests of justice”. Any prejudice to Mr Mokohar in admitting the documents could have been remedied by oral evidence and, if necessary, an adjournment.
Mr Callaway submitted that it is unclear why the admission of the late documents would involve substantial prejudice to Mr Mokohar. This was not a case where a party was taken by surprise by an un-served expert report. Mr Mokohar was present at the arbitration and much, if not all, of the social media and website material could have been addressed by him and, if necessary, by his partner, through oral evidence. The only arguable prejudice to Mr Mokohar related to Ms Lintott’s statement, which may or may not have occasioned the need for an adjournment.
Dealing with Mr Nicholson’s submission that the Arbitrator had not been provided with assistance to allow him to make an assessment as to whether the material was relevant, Mr Callaway contended that the “initial application to tender the material does not appear in the transcript”. He added that, in any event, the relevance of the website material is “self-evident”, the issues were clear and the Arbitrator was afforded the opportunity to read the material.
Mr Callaway made the following additional points:
(a) if admitted, the material constituted prima facie evidence that went to the issue of incapacity. Given that the claim was for continuing weekly payments, that was a substantial part of what the case was about. The admission of the material may or may not have justified an adjournment but its exclusion meant that the case was decided without the Commission having before it evidence that went to the critical issue of incapacity – both past and future;
(b) applying the principles in House v The King (1936) 55 CLR 499, as considered in Micallef v ICI Australia Operations Pty Ltd & Anor [2001] NSWCA 274 at [45] (Micallef), “the Arbitrator’s reasons and the outcome disclose that the Arbitrator erred in exercising his discretion”;
(c) the Arbitrator appears to have ignored the fact that the website material prima facie suggested a work capacity and failed to take into account that it had “likely been created by [Mr Mokohar] and that he has chosen not to disclose or explain his activities in that regard in a statement”;
(d) the Arbitrator failed to have regard to the fact that any explanations in relation to the material could have been proffered by Mr Mokohar and, if desired, his partner. Given that Mr Mokohar was “prima facie the moving force behind the website material and he had chosen not to disclose it in advance of the arbitration, the submission to the effect that it would have taken too long to obtain instructions should not have been countenanced”, and
(e) the Arbitrator placed undue weight on the delay that may have been occasioned to Mr Mokohar and no weight on doing justice between the parties on the substantial merits of the case. The Arbitrator “arrived at a result so unreasonable or unjust” as to suggest error (Micallef at [45]).
Discussion and findings
The appellant’s submissions have ignored the legislation, the Commission’s Rules, the fact that it was in default of those rules, the history of the matter and the Arbitrator’s reasons. For the reasons explained below, no relevant error has been established on this issue.
Before considering the circumstances of the present case, it is appropriate to make some general observations about matters of practice and procedure, such as applications to admit late documents. Appellate courts exercise particular caution in intervening in such decisions (per Beazley JA (as her Honour then was) (Giles and Whealy JJA agreeing) in Hamod v State of New South Wales [2011] NSWCA 375 at [132], an appeal dealing with a refusal to grant an adjournment).
Beazley JA further explained, at [134]–[136]:
“134. ... The court at first instance must be free to exercise its discretion in matters of practice and procedure as the court considers necessary, having regard to the circumstances of the case. However, the discretion so vested in the first instance court is subject at all times to the primary obligation of ensuring a fair trial to the parties to the litigation.
135. The court’s concern with a fair trial is not divorced from the other considerations that the court has in the administration of justice. In particular, the concept of a fair trial is one that has regard to the interests of all parties to the suit. Nor, in this State, is it divorced from the court’s statutory obligation to ensure the just, quick and cheap resolution of the real issues in the dispute or proceedings: the Civil Procedure Act, s 56(1). See also Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; 239 CLR 175 at 182–183, 200–201, 205, 210–211, 217–218.
136. For these reasons, before an appellate court will interfere with a discretionary judgment in a matter of practice and procedure, the question whether injustice flowed from the order appealed from will be a relevant and necessary consideration: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [[1981] HCA 39; 148 CLR 170]. See also Bloch v Bloch [1981] HCA 56; 180 CLR 390; Mudginberri Station Pty Ltd v Australasian Meat Industry Employees’ Union and Others (1986) 12 FCR 10.”
Moreover, as explained by Heydon JA (Sheller JA and Studdert AJA agreeing) in Micallef (applying House v The King), to succeed in an appeal of this kind, that is, against a discretionary decision, the appellant must demonstrate that the Arbitrator erred in exercising his discretion in that he:
“(a) made an error of legal principle;
(b) made a material error of fact;
(c) took into account some irrelevant matter;
(d) failed to take into account, or gave insufficient weight to, some relevant matter, or
(e) arrived at a result so unreasonable or unjust as to suggest that one of the foregoing categories of error had occurred, even though the error in question did not explicitly appear on the face of the reasoning.”
The Commission operates, and has always operated, a front-end loaded system. That is, parties must file the evidence upon which they rely prior to the hearing. Section 290 of the 1998 Act provides that when a dispute is referred for determination by the Commission, each party to the dispute must provide to the other party and to the Registrar such information and documents as the Rules require.
Part 10 Rule 10.3 of the Workers Compensation Commission Rules 2011 (the Rules), as they were at the date of the arbitration, provided:
“10.3 Material to be lodged with application or reply
(1) For the purposes of section 290 of the 1998 Act, a party to proceedings must lodge and serve with:
(a) the application to resolve the dispute, if the party is the applicant, or
(b) the reply required by rule 10.4 (1), if the party is a respondent, or
(c)the reply required by rule 11.1 (7), if the party is a party joined under rule 11.1(4),
all information and documents on which the party proposes to rely and that are in the possession or control of the party, and that have not been lodged by a party in the current proceedings.
(2) Subject to subrules (3)–(5), a party may not in proceedings introduce evidence that has not been lodged and served as required by subrule (1) or has not been provided to any other party as required by the 1998 Act or any Regulation or Guideline made under that Act.
(3) The Commission may, if it is satisfied that it is necessary to do so in the interests of justice, allow a party to introduce evidence that the party would otherwise be prevented from introducing because of the operation of subrule (2).
(4) Where a party wishes to rely on a document produced pursuant to a direction issued under rule 13.4 or a notice for production served under rule 12.2, or inspected in response to a notice of objection served under rule 12.4 (1) (b) (i), and claims that the party was:
(a) unaware of the relevant information in the document, or
(b) unable to obtain possession of the document,
at the time the party lodged the application to resolve the dispute or reply, the party must, as soon as practicable after becoming aware of the information, lodge and serve on all other parties to the proceedings:
(c) a copy of the document, or
(d)if the document was inspected in response to a notice of objection served under rule 12.4 (1) (b) (i), a description of the document.
(5) Without limiting subrule (3), where a party complies with subrule (4) in respect of any information, the Commission may allow the party to introduce evidence of that information.”
By attempting to prepare its case after the teleconference, the appellant failed to comply with the 1998 Act and the Commission’s Rules. Where a party in default seeks to tender late documents, that party carries the onus of establishing why the Rules should not be enforced. In Iovanescu v McDermott [2004] NSWCA 106, the NSW Court of Appeal dealt with an application, pursuant to the District Court Rules, to seek an extension of the time in which to seek rescission of a dismissal order. Young CJ in Eq (as his Honour then was) said:
“3. Mr Doherty SC almost used the phrase ‘merely a matter of case management’ as some sort of mantra which would excuse all non-compliances with the court rules.
4. It is true, as has been said many times over, that the rules must be the servant and not the master, in litigation.
5. However, the authorities, when properly examined, do not stop there, but actually make it clear that prima facie the rules must be observed and that a person who seeks dispensation from them, particularly because of delay, must show good reason why such dispensation should be granted and must endeavour to explain away his or her apparent blameworthiness in connection with the total delay involved.”
In the same case, Windeyer J said:
“12. So far as prejudice is concerned the trial judge said that the relevant rule under which the statutory dismissal took place was part of the case management armoury of the court. He then set out various passages from State of Queensland & another v J L Holdings Pty Limited (1997) 189 CLR 146 which are well known and which need not be reproduced, but which in essence state that case management is not an end to itself but is an aid to the administration of justice and that case management procedures do not overcome the requirement of ensuring a fair trial. It is a mistake to regard the decision in that case as a sort of gospel in all indulgence applications; it is important to remember it was relevant to amendment.”
And:
“16. I turn now to the explanation as to whether or not there was a proper explanation for delay. Counsel for the respondent argued that as there was no statutory requirement for an explanation, no explanation was required. That is not correct. It is always a question bearing upon the exercise of discretion in a claim for extension of time: Salido v Nominal Defendant (1993) 32 NSWLR 524 at 533, 539 and 541; Holt v Wynter (2000) 49 NSWLR 128 at 136. That is because it goes to the question of whether it is just and fair to grant the indulgence sought, namely an extension of time to apply to rescind the dismissal. It cannot just be a question of prejudice and ability to have a fair trial. If that were the position and everything else could be sorted out by appropriate costs orders then the accepted requirements for case management would go out the window. Hence the principles of case management assume that the parties will comply with rules or give proper reasons for failure to do so.”
Deputy President Byron considered the issue of admission of late documents in Coles Myer Limited v Tabassum [2005] NSWWCCPD 16 where he described (at [18]) the following as factors which might be taken into account:
“- Whether there was an acceptable explanation for the delay
- Whether or not the refusal to admit the evidence will cause a substantial prejudice to the party making the application
- The prejudice, if any, that would result to the other party
- Whether or not the delay in filing the document was attributable to the legal representative and not the party personally
- The nature of the proceedings, including the nature of the relevant statutory scheme
- General considerations of fairness and justice between the parties.”
In the circumstances of the present case, the appellant has not come close to establishing relevant error by the Arbitrator in the exercise of his discretion to exclude the late documents. In summary, he properly considered:
(a) the history of the matter, which included the matters raised at the teleconference;
(b) the reason for the delay in getting the investigator’s report;
(c) the absence of an explanation as to why the material that did not require Ms Lintott’s signature could not have been more promptly served;
(d) the material, if admitted, would necessitate an adjournment so that detailed instructions could be obtained from Mr Mokohar on it, noting that it was “quite voluminous” (T5.7), and to consider whether evidence was needed in response;
(e) that an adjournment would delay the proceedings unreasonably and the Arbitrator was not satisfied that the delay (in obtaining the material) had been adequately explained, there being no reason why Ms Lintott’s statement could not have been served unsigned;
(f) that it was not clear what interactions occurred between the solicitor and the investigator and there was no explanation as to why there was a long gap between the enquiry of 7 September and 1 October;
(g) that, as the appellant’s solicitors were well aware that there were problems as to timing, they should have approached the Commission and informed it and the other side of the problems and, if necessary, applied to have the hearing date vacated so that they could obtain the evidence, and file and serve it within the proper time. They did not do so. For these reasons, he was not satisfied that the delay (in obtaining and serving the material) was reasonable;
(h) that he was satisfied that there was prejudice to Mr Mokohar in the manner and timing in which the documents were produced, and
(i) that he was not prepared to prejudice the hearing date or the resources of the Commission by throwing away the hearing date.
The explanation for the delay in obtaining and serving the documents, and therefore for the non-compliance with the Rules, was less than satisfactory, to say the least. Assuming that the explanation provided by Mr Callaway from the bar table was accurate, it did no more than demonstrate that the delay in serving the documents occurred because Ms Lintott was unable to sign her statement earlier. As the Arbitrator pointed out, no reason was given as to why the other material could not have been more promptly furnished or why the statement could not have been served unsigned.
The prejudice to the appellant, if any, if the material were excluded, was not articulated at the arbitration. Mr Callaway merely submitted on why the documents had not been served before 26 October 2015. He made no submissions (that have been recorded on the transcript) about the relevance or potential weight of the documents. If Mr Callaway made relevant submissions during the conciliation stage of the proceedings, as he appears to suggest in his submissions in “reply”, though he has not identified what those submissions were, he would have been well aware that such submissions are not recorded.
The failure to record matters discussed at the conciliation stage was not an oversight by the Arbitrator. Consistent with the Commission’s policy on sound recording and transcription of proceedings, which is available on its website, the conciliation proceedings are deliberately not recorded so that the parties will feel free to engage in a full and frank exchange of views in an attempt to resolve the dispute.
If the parties discuss matters during the conciliation stage that are considered relevant to an issue in dispute, it is the obligation of the legal representative to repeat those points, as formal submissions, once the arbitration (and sound recording) commences. Apparently, Mr Callaway did not do that. Therefore, if points were made during the conciliation stage, which were not repeated during the arbitration, the Arbitrator did not err in not dealing with them. In any event, as far as the appeal is concerned, Mr Callaway has not identified the point or points he says he made that were not transcribed and the matter is simply irrelevant.
Ms Tancred’s submissions on appeal have been set out at [22]–[25] above. Exactly how the “Domain Name material” is relevant to the issues in dispute was not explained and is not immediately apparent on the face of the material. The submission that Mr Mokohar failed to explain the material misses the point. It was not for Mr Mokohar to explain something that was not in evidence; it was for the appellant to explain why its breach of the Rules should be excused. It did not do so.
Mr Callaway’s submission that the website material constitutes “prima facie evidence that went to incapacity” is equally unpersuasive. He has referred to pages five and six of the investigation report. Page five refers to a domain name having been registered by Mr Mokohar on 18 August 2014 and another on 3 March 2015. The address for one was Clarendon Road, Stanmore, NSW and the address for the other was Alice Lane, Newtown. At the time the Application to Resolve a Dispute was filed, Mr Mokohar lived in Braddon, ACT. In my view, the mere registration of a domain name by Mr Mokohar, without more, was of limited relevance to the claim, though it may have set in train a line of enquiry that may have revealed relevant information.
Page six of the investigation report stated that Mr Mokohar was previously the director of two companies that have “since been dissolved”. The appellant had not even attempted to explain the potential relevance of this information or how its exclusion caused it prejudice.
Also at page six of the investigation report is the assertion that Mr Mokohar was “linked to a business name of CrewSure Recruitment”, a website that “lists itself as a recruitment agency that provides hospitality professionals for a range of staffing solutions to the events and catering industry”. The investigators “found a number of current position’s [sic] advertised under the crewsure [sic] recruitment [sic] banner” which had been “posted by the claimant – Aaron Mokohar”. There are then entries in the investigation report that are illegible because of the fine and blurred print. The appellant has not explained the potential relevance of this information, or how its exclusion caused it prejudice.
Even accepting that the material established that Mr Mokohar was looking for work at the relevant time, that is not conclusive of whether he had no current work capacity. A worker’s subjective view of his or her fitness for work will rarely be determinative, especially in a case involving a psychological injury. A determination of the nature and extent of a worker’s incapacity requires consideration of all the evidence, especially the expert evidence (Boral Recycling Pty Ltd v Figueira [2014] NSWWCCPD 41 at [33]). The late material to which I have been taken on appeal provides limited assistance on that issue.
Ms Tancred pointed to nothing in the material that supports her submission that it was “likely” that Mr Mokohar had been “engaged in some type of work”. In the circumstances, that submission was improper.
The submission that, because the documents have been excluded, the issue of incapacity has been determined on a “dearth” of material is, for reasons explained below, not an accurate summary of the state of the evidence.
The relevance of the Facebook entries, and how they added to similar entries already in evidence, has not been explained. The Arbitrator said that the numerous Facebook and Instagram entries already in evidence showed Mr Mokohar to be capable of travelling from his home in Canberra to Queensland and back from time to time, that he was capable of smiling for a camera and capable of some pleasurable social activity (T35.27).
The Arbitrator (correctly) observed that Mr Mokohar’s case, that he was incapable of remunerative employment, did not rely on an assertion that he was “completely anhedonic [sic]” (T35.32). He added that the mere fact that Mr Mokohar was capable of “some social activity or some pleasure in life, does not convince me that he necessarily has any capacity for work” (T35.32). Nothing has been put to suggest that the additional Facebook entries, in the late documents, added anything new or additional to the entries that were already before the Arbitrator.
The prejudice to Mr Mokohar was that, because of the extremely late service of the documents, his legal advisers had limited time in which to obtain instructions. Mr Nicholson submitted, and the Arbitrator accepted, as it was open to him to do, that he needed an adjournment to deal with the material. An adjournment would have delayed the resolution of the matter. Such a delay would have caused him irreparable prejudice (French CJ in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; 239 CLR 175 (Aon) at [5]). The Arbitrator was right to take that into account in the exercise of his discretion to exclude the material.
The submission that much, if not all, of the social media and website material could have been addressed by Mr Mokohar and his partner, through oral evidence, misses the point. The Commission operates on the basis that all evidence should be filed with the Application to Resolve a Dispute or the Reply. The appellant did not comply with that obligation. In the absence of a proper explanation as to why, in breach of the Rules, the material was served so late, it was unreasonable to require Mr Mokohar to prepare a response to it without having a reasonable time for his legal advisers to analyse it, take instructions, and consider what, if any, response was required.
All of the matters listed at [38] above were relevant to the exercise of the Arbitrator’s discretion. The bald submission that applying the principles in House v The King discloses that the Arbitrator erred in the exercise of his discretion is plainly wrong and is rejected. The Arbitrator did not make any of the errors identified in House v The King as justifying appellate interference with his discretionary decision.
The assertion that the Arbitrator ignored the fact that the website material prima facie suggested that Mr Mokohar had a work capacity and that he (the Arbitrator) failed to take into account that it had “likely been created by [Mr Mokohar] and that he has chosen not to disclose or explain his activities” was not a submission made at the arbitration. It is not open to argue on appeal that an Arbitrator erred in not dealing with a submission never put (Brambles Industries Ltd v Bell [2010] NSWCA 162; 8 DDCR 111). Moreover, the submission is based on the doubtful assumption that the website material established that, at the relevant time, Mr Mokohar had a work capacity. For the reasons explained above, I do not accept that to be so.
The Arbitrator did have regard to the fact that any explanation in relation to the material could have come from Mr Mokohar. He did so in the context of Mr Nicholson’s submission that he needed an adjournment to deal with, take instructions on, reply to the documents and to “even know the relevance of them” (T3.19). He formed the view that the adjournment would have delayed the “proceedings unreasonably”. In view of the history of the matter, the Rules, and the lack of adequate explanation for the extremely late service of the documents, that conclusion was open to him.
I do not accept that the Arbitrator placed undue weight on the delay that may have been occasioned to Mr Mokohar and no weight on doing justice between the parties on the substantial merits of the case. What may be just in the circumstances requires the Commission to take account of other litigants, not just the parties to the proceedings (Sali v SPC Ltd [1993] HCA 47; (1993) 67 ALJR 841 at 843–4). Account should be taken of the interests of the public as a whole in the efficient use of publicly funded court resources (Aon at [5]). The interests of justice did not require the Arbitrator to admit the late material in circumstances where he determined that to do so would require an adjournment.
REFUSAL TO ALLOW CROSS-EXAMINATION
Proceedings before the Arbitrator
After ruling on the application to rely on the late material, the Arbitrator took a short adjournment. Upon resumption, Mr Callaway sought leave to cross-examine Mr Mokohar. In support of that application, he made the following submission, at T8.3:
“The application is based on this. I made an application to tender late documents which was refused. Some of the content of those documents is clearly of probative value, especially in the context of a claim for ongoing weekly payments. And whilst there may be material in those documents that [Mr Mokohar] wouldn’t be able to respond to if they went in as a complete investigator’s report, certainly if I am permitted to ask [Mr Mokohar] about certain matters contained in the documents he’d be in a position to respond.
ARBITRATOR: So you want to put to him the matters that are alleged in the documents which have been rejected?
MR CALLAWAY: I want to ask him about the Hostie Help [sic] and the Crucial [sic] Recruitment because in circumstances where he’s bringing a claim for ongoing weekly payments it’s important in my submission in the interest of justice that those matters be explored.
ARBITRATOR: Is that it, Mr Callaway?
MR CALLAWAY: Yes, Arbitrator.”
The Arbitrator said, at T8.27:
“Counsel for the [appellant] is not able to point to any aspect of the evidence before me which is in need of clarification and which might justify the application. It does appear to me to overcome the effect of the exclusion of late served evidence and I reject the application.”
Submissions
Ms Tancred submitted that, in circumstances where there “was no evidence as to [Mr Mokohar’s] recent activities and there was significant doubt as to his current activities raised by the investigator’s report, procedural fairness required that the appellant employer be permitted to ask [Mr Mokohar] about his activities since ceasing work with the employer”.
In the submissions in “reply”, Mr Callaway submitted that considerations relating to possible prejudice occasioned by admission of the website material “have little or no bearing on the refusal of leave to cross-examine on that material”. He said that the website material, about which he sought to cross-examine Mr Mokohar, “tended to suggest a capacity for work”.
Mr Callaway submitted that the medical opinions and Mr Mokohar’s statements were fundamental to the issue of incapacity and it was “clear from the website material that a proper analysis thereof would have demonstrated that the histories upon which the medical opinions were based had been overtaken by events and that [Mr Mokohar’s] statement was deficient”. He said that the appellant should have been permitted to test that evidence through cross-examination and Mr Mokohar should not have been permitted to sit back and have his case for continuing incapacity presented on a “false premise”. Absent explanations from Mr Mokohar, the evidence relied upon by him was “highly questionable and unsatisfactory”.
Mr Callaway contended that the Arbitrator erred in saying that counsel for the appellant was not able to point to any aspect of the evidence that was in need of clarification and which might have justified the application. That was because the “website material clearly required explanation if the [appellant] was to be afforded a fair hearing”.
There was no evidence before the Commission as to what activities Mr Mokohar had been involved in since February 2015 and cross-examination would have permitted the appellant to legitimately test Mr Mokohar’s level of incapacity by reference to his website activities, in circumstances where there appears to have been (in the rejected material) a significant divergence with the proposition that Mr Mokohar was at all times (and therefore continued to be) totally incapacitated (as found by the Arbitrator).
The proposed cross-examination related to matters about which Mr Mokohar had integral knowledge and which ought to have been addressed in a statement by him in any event. Mr Mokohar would likely have suffered no prejudice because the Arbitrator’s refusal to admit the documents would have meant that the cross-examination could have been limited in such a way that there would have been no recourse by the appellant to the untendered material in seeking to refute Mr Mokohar’s oral evidence. The appellant would have been stuck with Mr Mokohar’s answers. The denial of procedural fairness (to the appellant) is “glaring”, given the circumstances outlined.
Mr Callaway said that he relied on House v The King and Micallef.
Discussion and findings
The observations I have made above about the approach to appeals relating to matters of practice and procedure, and to discretionary decisions generally, apply to this ground of appeal. For the reasons explained below, the appellant has not established relevant error by the Arbitrator in refusing leave to cross-examine.
First, there is no legal right to cross-examination in the Commission (Aluminium Louvres & Ceilings Pty Ltd v Xue Qin Zheng [2006] NSWCA 34 per Bryson JA at [37] (Handley JA and Bell J agreeing) (Zheng)). The Commission “is not a court and is not expected to function as a court” (per Mason P (Santow and Tobias JJA agreeing) in Fletcher International Exports Pty Limited v Barrow [2007] NSWCA 244 at [91]).
Second, as Bryson JA observed in Zheng (at [25]), an Arbitrator “is in a good position to decide on and to impose appropriate controls on the adduction of evidence, by cross-examination or otherwise”. In other words, whether cross-examination is allowed is a matter for an Arbitrator’s discretion.
Third, it is difficult to see the application for leave to cross-examine as anything more than an attempt to avoid the effect of the Arbitrator’s rejection of the late documents. Clearly, Mr Callaway wanted to put matters to Mr Mokohar that were in that material, notwithstanding that the material was not in evidence. It was within the Arbitrator’s discretion to refuse to permit cross-examination in those circumstances.
Fourth, procedural fairness is concerned with providing a person whose rights are potentially affected in a matter with the opportunity to deal with relevant issues (Victims Compensation Fund Corporation v Nguyen [2001] NSWCA 264; 52 NSWLR 213 at 219 [37] per Mason P). The appellant had every opportunity to present its case and the only reason it was not able to present the evidence in the late documents was because of its own non-compliance with the Rules and extremely dilatory preparation.
If the Arbitrator had allowed Mr Callaway to cross-examine on documents that were not in evidence, he would have denied Mr Mokohar a reasonable opportunity to properly deal with relevant issues, something the Arbitrator had already determined could not be done without an adjournment, which was not appropriate. To suggest that, in these circumstances, the refusal to allow cross-examination involved a denial of procedural fairness to the appellant is to turn the principles of procedural fairness on their head.
As explained by Bryson JA in Zheng, at [37]:
“An assessment of whether the Arbitrator’s decision should be set aside for want of procedural fairness is no simple matter and could not be disposed of by applying any legal tests susceptible of clear statement relating to entitlement to cross-examine an applicant, or a witness. There is no legal right to cross-examine an applicant or other witness in the Workers Compensation Commission, and decisions whether to allow cross-examination or to limit it are discretionary decisions which must be made in a context of the legislation and practices which the Commission follows, and, at least as importantly, in the context of the facts and circumstances of the case under consideration.”
In the context of the facts and circumstances of this case, the refusal to allow cross-examination involved no unfairness to the appellant.
Fifth, the Commission’s Guideline headed “The Practice of the Conciliation/Arbitration Process in the Workers Compensation Commission” states:
“Questioning or cross-examination of witnesses (including parties) will be permitted in very limited circumstances and only if the Arbitrator is of the view that it is necessary to come to a decision. Circumstances where cross-examination may be allowed could include where:
* contradictory evidence requires to be clarified or tested, or
* adverse matters material to the decision should be put to a witness when there has been no previous opportunity for these to be answered.”
Consistent with the Guideline, the Arbitrator was not satisfied that any aspect of the evidence was “in need of clarification and which might justify the application” to cross-examine. That decision was well within the Arbitrator’s discretion. Having regard to the history of the matter and, in particular, the submissions by Mr Callaway at the arbitration, the Arbitrator’s decision involved no relevant error. Mr Callaway made no submissions to the Arbitrator along the lines he has presented on appeal. Whether the Arbitrator erred depends on an assessment of the matter as it was before him. Other than stating that he wanted to ask Mr Mokohar about “CrewSure Recruitment” and “Hostyhelp”, Mr Callaway did not identify the matters that needed clarification.
Sixth, exactly how a “proper” analysis of the website material demonstrated that the histories upon which the medical opinions were based had been overtaken by events was not explained, either at the arbitration or on appeal. Nor was it explained how, absent explanations from Mr Mokohar (about the website material), the evidence relied upon by him was “highly questionable and unsatisfactory”. The assumption appears to be that the website material established that Mr Mokohar was working at a time when he said that he had no current work capacity. The website material did not come close to establishing that.
Seventh, exactly what “false premise” the case was presented under is unclear. As noted above, if it is suggested that Mr Mokohar was working, at a time when he gave histories that he was not working, the website material does not establish that to be so.
Eighth, the submission that the website material required an explanation, if the appellant was to be afforded a “fair hearing”, was based on the false premise that the website material required an explanation. The material was of limited relevance and, given the history of the matter and the appellant’s breach of the Rules, did not require an explanation for the appellant to get a fair hearing. If the appellant did not get a fair hearing, which I do not accept, it was because of its own non-compliance with the Rules and tardy preparation.
Ninth, it is correct that there was no evidence of Mr Mokohar’s activities between February 2015 and the arbitration on 27 October 2015. However, permitting cross-examination on documents that were not in evidence, and which the Arbitrator excluded because of the appellant’s non-compliance with the Rules, would have been unfair to Mr Mokohar. That is because he would have been tested on material that he had not had time to properly consider, because it had not been served within time, and which was not in evidence. The application to cross-examine was an attempt to do indirectly something that could not be done directly.
Tenth, the submission that the proposed cross-examination related to matters about which Mr Mokohar had integral knowledge involves an assumption that may or may not be warranted. It was not a matter put to the Arbitrator. Whether it related to matters that Mr Mokohar should have addressed in a statement is simply not known.
Eleventh, the submission that Mr Mokohar would likely have suffered no prejudice, because the Arbitrator’s refusal to admit the documents would have meant that the cross-examination could have been limited in such a way that there would have been no recourse to the untendered material in seeking to refute Mr Mokohar’s oral evidence, does not advance the appellant’s position on appeal. It merely begs the question: if the cross-examination was not going to have recourse to the late documents, what was it going to do? It is impossible to imagine any relevant cross-examination without recourse to the material in the late documents. In any event, Mr Callaway did not submit to the Arbitrator that cross-examination be limited in the manner now suggested on appeal.
Last, for the reasons explained above, there was no unfairness to the appellant.
FINDING OF NO CURRENT WORK CAPACITY
Submissions
Ms Tancred submitted that the Arbitrator’s “finding of total incapacity is not supported by either [Mr Mokohar’s] statements or the medical opinions furnished in support of his claim”. She quoted the following passage from Ms Meylakh’s report of 24 February 2015:
“Mr Mokohar has expressed a very strong desire to return to the workforce and to overcome his work injury in the future. He is determined to try, however it is imperative that it will be a suitable environment and it is even more important that he be given his time now to recover. Mr Mokohar has been working on suitable coping strategies to deal with his symptoms. Nevertheless, his condition is very sensitive and almost solely attributable to his work injury. I believe that with time and psychological intervention, Mr Mokohar can succeed in overcoming his injury and returning to work in a suitable and healthy environment.”
She also relied on the following passage from Dr Canaris’s report of 18 February 2015:
“His prognosis is bound up with the resolution of his claim.
Whole person impairment assessment is premature and should be assessed in twelve to eighteen months in the event that he is still unwell.”
Ms Tancred submitted that these reports were dated four months after Mr Mokohar ceased work with the appellant. In these circumstances, absent a statement from Mr Mokohar providing a subsequent history (Mr Mokohar’s most recent statement was dated 23 June 2015), or some other material, “one could not reasonably infer his level of incapacity 8 months later”.
Mr Nicholson submitted that this ground failed because the analysis of the evidence (set out in the Arbitrator’s decision and in Mr Nicholson’s submissions) “demonstrate[d] that the Arbitrator thoroughly considered the evidence relating to capacity for employment and clearly stated his findings based on that evidence”.
In the submissions in reply, Mr Callaway submitted that the Arbitrator made no observation as to the dates of the various medical opinions. Mr Callaway contended that the Arbitrator should have done so, given that he was being asked to determine the claim for weekly payments on limited evidence, only 12 months after the injury. It was contended that the evidence was stale.
Mr Callaway argued that the Arbitrator did not acknowledge the fact that the most recent evidence was more than eight months old and Mr Mokohar’s June 2015 statement did not properly address incapacity. Given the date of injury, and its proximity to the latest medical evidence, the evidence was dated and without Mr Mokohar furnishing an up-to-date account of his work capacity, was unsatisfactory.
Mr Callaway contended that the error was not in the Arbitrator’s analysis of the evidence, as Mr Nicholson had contended, but in the absence of evidence supporting a finding of continuing incapacity. Mr Mokohar’s case relied on medical opinion in the early days of his incapacity (approximately four months after he had gone off work). If anything, the prognoses were optimistic. Mr Mokohar is unable to point to any evidence to support a finding that he remained totally incapacitated at the date of the arbitration.
Discussion and findings
This issue calls for a careful consideration of the Arbitrator’s reasons.
The Arbitrator (at T26.1–5) referred to the WorkCover certificates issued by Dr Muthurajah from 31 October 2014 to 25 March 2015, each of which indicated that Mr Mokohar was totally incapable of work due to his psychological injury. This was described in the early certificates as “work–induced stress/anxiety” and, from the certificate of 25 November 2014, as “work–induced anxiety/depression (Adjustment Disorder DSM–IV)” (T26.8). (I note that Dr Muthurajah’s certificate of 25 March 2015 certified Mr Mokohar to have no current work capacity for any employment to 18 April 2015.)
The Arbitrator noted that, in her first report, dated 19 November 2014, Ms Meylakh diagnosed an Adjustment Disorder with symptoms of depression and that she felt Mr Mokohar’s symptoms should not persist for more than six months from cessation of the stressor which caused them, which the Arbitrator found was the work with the appellant.
In terms of Mr Mokohar’s symptoms, the Arbitrator recorded (at T27.23) that, as at the date of Ms Meylakh’s second report, which was 24 February 2015, Mr Mokohar was complaining of “constant anxiety, an inability to sleep, fatigue, irritability, impaired concentration, and generalised anxiety impairing his general function”. Ms Meylakh also recorded, as the Arbitrator noted, that Mr Mokohar complained of “panic symptoms, palpitations, tightness of the chest, shortness of breath, choking, dizziness, faintness, sweating, trembling and tingling in the extremities” (T27.26).
Ms Meylakh considered that Mr Mokohar suffered significant distress and impairment in his social and occupational function. Despite his strongly expressed desire to return to work, she described his condition as “very sensitive”. She added that “[w]ith time and psychological intervention (cognitive behavioural therapy and pharmacology) Mr Mokohar can succeed in overcoming his injury and returning to work in a suitable and healthy environment” (T28.2). The Arbitrator said “[t]he clear indication from that advice was that [Mr Mokohar] was[,] at that point[,] incapable of any work” (T28.6). This finding was consistent with the evidence and involved no error. Contrary to Mr Callaway’s submission, the Arbitrator noted the dates of Ms Meylakh’s reports at T26.25.
The Arbitrator then considered (at T30–32) the evidence from Dr Canaris, consultant psychiatrist qualified by Mr Mokohar, who examined him on 18 February 2015. The Arbitrator noted that, in his report of the same date, the doctor recorded that Mr Mokohar complained of suffering fatigue, lack of energy, lack of motivation, feelings of depression, lack of sleep, reduced libido, neglecting his home and hygiene and self-care.
On examination, Dr Canaris noted a visibly upset affect, that Mr Mokohar was close to tears for a significant portion of the interview and that, during the interview, Mr Mokohar had retched and had to use the bathroom. Mr Mokohar wept at one point of the interview. Dr Canaris considered that Mr Mokohar’s anxiety and depressive symptoms had come on in the context of workplace stress. He described them as sometimes moderate and at times severe, as disabling and interfering substantially with the quality of Mr Mokohar’s life.
Dr Canaris diagnosed a Major Depressive Disorder with prominent anxiety features. The Arbitrator expressly noted Dr Canaris’s preference for the diagnosis of Major Depressive Disorder reflected his view that the disorder was of a far greater magnitude than simply an Adjustment Disorder, and not one that would necessarily resolve within six months (T32.26). Contrary to Mr Callaway’s submission, the Arbitrator noted the date of Dr Canaris’s report at T30.23.
Under “Consideration and Findings”, the Arbitrator said, at T35.12:
“As Dr Lee’s view that [Mr Mokohar] is capable of pre injury duties is based on his lack of diagnosis, and I am satisfied that there is an available diagnosis or diagnoses, I am unable to accept Dr Lee’s view that there is no incapacity for work. Ms Meylakh’s view was that [Mr Mokohar] had no capacity for work, and Dr Muthurajn [sic] agrees with that view. The symptomatology described both by Ms Meylakh in her report of February 2014, and by Dr Canaris in his report, is quite extreme. It is perfectly acceptable that a person suffering those symptoms would not be capable of any work at all.”
He then dealt with the numerous Facebook and Instagram entries upon which the appellant relied, which I considered at [50]–[51] above. He rejected Mr Callaway’s submission that Ms Meylakh’s evidence should not be accepted because of an allegedly inaccurate history.
The Arbitrator concluded that he was satisfied that, as at 24 February 2015, the date of Ms Meylakh’s report, Mr Mokohar was “completely incapable of employment, and had been so since he left work on 22 October 2014” (T37.13). He added (at T37.14) that there was no convincing evidence that the situation had changed since February 2015. Accordingly, he was satisfied that Mr Mokohar remained incapable of employment due to the severity of the symptoms of either Major Depressive Disorder or Adjustment Disorder. For that reason, there would be an award of weekly compensation to date and continuing in the amounts claimed and a general order for medical expenses.
The evidence summarised by the Arbitrator clearly supported a finding that Mr Mokohar had no current work capacity from the time he stopped work until 18 April 2015. So far as it related to the period up to 18 April 2015, Ms Tancred’s submission that the issue of incapacity was determined on a “dearth” of material, and was not supported by medical opinions, was plainly wrong and simply ignored the evidence. The assertion that the Arbitrator’s finding is not supported by Mr Mokohar’s statements has ignored the fact that statements in a medical history are evidence of the fact (Guthrie v Spence [2009] NSWCA 369; 78 NSWLR 225 at [75]).
The Arbitrator was entitled to consider, and did consider, the severity of Mr Mokohar’s symptoms, as recorded (in detail) by Ms Meylakh and Dr Canaris, in reaching his conclusions on incapacity. He also took into account Dr Muthurajah’s certificates, which certified Mr Mokohar to have no current work capacity until 18 April 2015. In addition, he considered Dr Canaris’s diagnosis of Major Depressive Disorder, which reflected the doctor’s view that the disorder was of a far greater magnitude than simply an Adjustment Disorder, and therefore not one that would necessarily resolve within six months, as Ms Meylakh had initially suggested.
The Arbitrator also considered the relevance of the Facebook and Instagram entries, which the Arbitrator inferred (during submissions) had been posted in June 2015 (T49.16), and which Mr Callaway conceded were not “determinative of anything really” (T48.1), and said that the mere fact that Mr Mokohar was capable of “some social activity or some pleasure in life, does not convince me that he necessarily has any capacity for work” (T35.32). That finding was open on the evidence.
However, I accept that there is an absence of evidence addressing incapacity beyond 18 April 2015, that is, in the six months up to the arbitration on 27 October 2015. (Contrary to Mr Callaway’s submissions, the medical evidence was not “more than 8 months old” at the time of the arbitration.) Mr Mokohar’s statement of 23 June 2015 said nothing at all about his symptoms at that time. It merely described the symptoms he experienced up to 31 October 2014, the date on which he gave notice of injury. Surprisingly, he did not say if those symptoms, or similar symptoms, were continuing as at June 2015. He did say that his “current treatment consist[ed] of regular appointments with Natalya Meylakh to assist with ongoing treatment for [his] injury”.
Essentially, though he did not expressly say so, in finding that Mr Mokohar had no current work capacity at the time of the arbitration the Arbitrator relied on the presumption of continuance. That is, he inferred that Mr Mokohar’s incapacity continued from April 2015 until October 2015, and was continuing. In many cases that will be appropriate. However, given the state of the evidence in the present case, there are a number of problems with that approach. The so called presumption of continuance is not a true presumption but a description of the process of reasoning by which inferences of fact can be drawn. “Whether an inference should be drawn depends on the particular circumstances and the chance or likelihood of intervening circumstances having altered the original state of affairs” (Beattie and Sutherland v Osman (No 4) [2009] NSWSC 834 at [45]).
Whether Mr Mokohar remained incapacitated beyond 18 April 2015, that is, beyond the expiration of Dr Muthurajah’s last certificate, depended on a “deduction from probabilities and must always depend on the accompanying facts” (Dixon J in Axon v Axon (1937) 59 CLR 395 at 405). The “accompanying facts” in the present case were, for the period beyond 18 April 2015, extremely limited. It may have been open to the Arbitrator to infer that, given Mr Mokohar’s evidence that he was still seeing Ms Meylakh in June 2015 “to assist with ongoing treatment” for his injury, his symptoms were continuing at the same or a similar level to that recorded by Ms Meylakh in February 2015, but he did not refer to or rely on that evidence.
The Arbitrator did refer to Dr Canaris’s diagnosis of Major Depressive Disorder, which reflected the doctor’s view that the disorder was of a far greater magnitude than simply an Adjustment Disorder, and not one that would necessarily resolve within six months (T32.26). That provided a basis for concluding that Mr Mokohar’s incapacity would extend beyond April 2014, but did not assist on the nature or extent of that incapacity. Moreover, Dr Canaris did not address the expected duration of the condition. He merely said that whole person impairment assessment was “premature and should be assessed in twelve to eighteen months in the event that [Mr Mokohar] is still unwell”. It is clear from that statement that, as at February 2015, Dr Canaris did not consider Mr Mokohar’s condition to be permanent. His evidence therefore provided limited support for the conclusion that Mr Mokohar had no current work capacity as at October 2015.
The Arbitrator appears to have been persuaded to find that Mr Mokohar had no current work capacity up to October 2015 and continuing because of the absence of “convincing evidence” that his situation had changed since February 2015. Though it was relevant to note that there was no convincing evidence of a change in Mr Mokohar’s situation, the question was whether the evidence, either directly or by inference, established that the situation in February/March 2015 continued up to October 2015. The fact that Ms Meylakh was still treating Mr Mokohar in June 2015 provided some evidence that the condition had not resolved. However, in the absence of up to date evidence from Mr Mokohar, or a medical expert, it was not possible to properly determine the nature and extent of his condition (or incapacity) several months after the last medical examination and report.
It follows that, in the circumstances, the Arbitrator erred in finding that Mr Mokohar had no current work capacity from 19 April 2015 to the date of the award and continuing. On the other hand, there is no evidence that the condition had resolved by that time (the evidence that Mr Mokohar was still seeing Ms Meylakh in June 2015 clearly suggested that it had not). Given the state of the evidence, the only fair result is that Mr Mokohar’s entitlement to weekly compensation beyond 18 April 2015 be re-determined by a different Arbitrator.
CONCLUSION
The relief sought by Ms Tancred was that the Arbitrator’s award be revoked and the (whole) matter be remitted to a different Arbitrator for re-determination. It is not appropriate to grant that relief. Though Ms Tancred’s submissions contended that the late documents were relevant to “injury and incapacity”, only the third ground of appeal has succeeded and that ground related only to incapacity. Mr Callaway made no submissions attacking the finding of injury and no submissions challenging the Arbitrator’s rejection of Dr Lee’s evidence.
It follows that the Arbitrator’s findings and determination on injury and employment being the main contributing factor to the injury are confirmed. The Arbitrator’s rejection of Dr Lee’s evidence on injury and incapacity is also confirmed, it having not been challenged. The only variation to the award is to amend paragraph 3 and 4(b) to close the award at 18 April 2015. In light of the unsatisfactory state of the evidence, Mr Mokohar’s entitlement to weekly compensation beyond that date is to be re-determined by a different Arbitrator.
The re-determination is restricted to the question of what, if any, entitlement Mr Mokohar has to weekly compensation beyond 18 April 2015. The re-determination will be a re-hearing and, for the purposes of cl 9 of Sch 6 to the Workers Compensation Regulation 2010, a “separate resolution”. The parties will be at liberty to tender such evidence as they consider appropriate at the re-determination, provided it is served in accordance with the Rules, or admitted by leave of the Arbitrator or by consent.
As it has already been considered and rejected, it is not open to the appellant to rely on Dr Lee’s evidence on the issue of incapacity beyond 18 April 2015.
DECISION
Paragraphs 1, 2, 4(a) and 5 of the Certificate of Determination of 2 November 2015 are confirmed. Paragraphs 3 and 4(b) are revoked and the following orders made in their place:
“3. That the applicant has had no current work capacity from 22 October 2014 to 18 April 2015.
4.(b) In respect of the period 31 January 2015 to 18 April 2015, at the rate of $880 per week, pursuant to s 37.”
Mr Mokohar’s entitlement to weekly compensation beyond 18 April 2015, if any, is remitted to a different Arbitrator for re-determination.
Bill Roche
Deputy President
23 February 2016
I, STEVEN HAMPSON, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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