Way v Newcastle City Council
[2005] NSWWCCPD 138
•22 November 2005
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Way v Newcastle City Council [2005] NSW WCC PD 138
APPELLANT: Ken Way
RESPONDENT: Newcastle City Council
INSURER:Newcastle City Council
FILE NUMBER: WCC 10518-03
DATE OF ARBITRATOR’S DECISION: 16 August 2004
DATE OF APPEAL DECISION: 22 November 2005
SUBJECT MATTER OF DECISION: Exclusion of medical report, procedural fairness, treatment of evidence
PRESIDENTIAL MEMBER: Acting Deputy President Robin Handley
HEARING:On the papers
REPRESENTATION: Appellant: Whitelaw McDonald Solicitors
Respondent: Harris Wheeler Lawyers
ORDERS MADE ON APPEAL: The decision of the Arbitrator is confirmed.
No order is made as to the costs of this appeal.
BACKGROUND TO THE APPEAL
Ken Way was born on 16 September 1932 and is aged 73. He was employed by Newcastle City Council from 1956 until 1990, originally on the Road Construction Crew and then as a greaser.
On 13 January 2003, Mr Way lodged a claim for compensation in respect of an injury to his knees arising out of the nature and conditions of his employment. On 30 May 2003, Mr Way’s solicitors lodged an ‘Application to Resolve a Dispute’ with the Workers Compensation Commission (‘the Commission’) in respect of Mr Way’s claim for compensation for permanent impairment and pain and suffering in the amount of $35,963.75. At a teleconference between an Arbitrator and the parties on 23 September 2003, the Arbitrator ordered that the application be struck out because the claim was made out of time. That decision was revoked by Deputy President Fleming on appeal and referred back to the Registrar for allocation to an Arbitrator and determination in accordance with her reasons. The Deputy President found, pursuant to section 261(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’), that the date of injury should be deemed to be 13 January 2003, and the Arbitrator had therefore made an error of law.
The matter was allocated to a different Arbitrator and, on 23 July 2004, conciliation with the parties having proved unsuccessful, she conducted an arbitration hearing. On 16 August 2004, the Arbitrator made the determination set out below. On 13 September 2004, Mr Way sought leave in the Commission to bring an appeal against the decision of the Arbitrator.
Initially, the matter was listed to be heard by Deputy President Fleming, but on 12 October 2005, on the application of counsel for Mr Way, she disqualified herself. The Deputy President was concerned that the Arbitrator, in determining the weight to be given to the medical evidence, appeared to have taken into account the Deputy President’s comments about such weight in her previous appeal decision in this matter.
THE DECISION UNDER REVIEW
The Certificate of Determination, dated 13 September 2004, records the Arbitrator’s orders as follows:
“1. Award for the Respondent in respect of the Applicant’s claim for compensation for permanent loss of efficient use of the right and left legs at or above the knee.”
In her ‘Statement of Reasons for Decision’, the Arbitrator accepted that “a proportion of the work performed for the Respondent required the Applicant to kneel or crawl on his knees” (paragraph 47). While Mr Way did not routinely have to lift heavy parts without assistance, the Arbitrator accepted, nonetheless “that the Applicant’s work did involve some heavy lifting” (paragraph 49). The Arbitrator found no evidence that Mr Way made a complaint to a doctor about his knees during the time he was employed by the Council, and at no time had Mr Way received any treatment in respect of the complaints about his knees. She noted that while the medical evidence of both parties concluded that Mr Way has early osteoarthritis of the knees, the medical evidence was significantly at odds on the question of causation. She preferred the medical evidence of Dr John Graham, Occupational Physician, who examined Mr Way at the request of the Council, to that of Dr Philip Jeffrey, General Practitioner, who examined Mr Way at the request of his solicitors. The Arbitrator found:
“the evidence supports a finding that the Applicant received an injury to his left and right legs arising out of or in the course of his employment with the Respondent by way of aggravation, acceleration, exacerbation or deterioration of the disease of osteoarthritis, where his employment with the Respondent was a contributing factor to the aggravation, acceleration, exacerbation or detioration.”
The Arbitrator found Dr Graham’s view that the condition is a constitutional one related to aging, to which Mr Way’s employment had made a slight contribution, to be persuasive. She was not, therefore, satisfied that Mr Way’s employment was a substantial contributing factor to his injury or the acceleration, aggravation, exacerbation or deterioration of the disease of osteoarthritis. Thus, Mr Way was not entitled to compensation for non-economic loss.
In making her decision, the Arbitrator had regard to two reports from Dr Graham dated 3 February 2003, but excluded from her consideration a report from Dr Graham dated 15 July 2003. Her reason for this was clause 43(1)(a) of the Workers Compensation Regulation 2003 (‘the 2003 Regulation’) which states that “only one medical report in any particular speciality may be admitted on behalf of a party to the proceedings”. The Arbitrator chose to have regard only to Dr Graham’s reports of 3 February 2003, which she said “are properly to be regarded as the one report”, on the basis that (1) the Council submitted these reports were “the clearest statement of the Respondent’s case”, (2) Mr Way’s representative said in the course of the arbitration hearing that she was not relying on either of Dr Graham’s reports, and (3) Deputy President Fleming, in making her decision on the appeal, dated 29 March 2004, only had regard to Dr Graham’s reports of 3 February 2003 and did not refer to his report of 15 July 2003.
ISSUES IN DISPUTE
The issue in dispute is whether Mr Way’s employment was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease of osteoarthritis affecting his knees. The parties’ submissions concerning the Arbitrator’s treatment of the evidence are discussed below.
ON THE PAPERS REVIEW
Section 354(6) of the 1998 Act states:
“(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.”
I have had regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions of the parties. Mr Way’s solicitors request that they be permitted to make further oral submissions. They have, however, now provided three sets of written submissions. The Council “is content” for the matter to be dealt with on the papers. Having considered these submissions, 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.
Neither party sought to adduce fresh evidence.
LEAVE
Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of section 352 of 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. With regard to section 352(2), the amount of compensation at issue is $35, 963.75, the Arbitrator having made an award in favour of the Council. I am therefore satisfied that the section 352 threshold has been met, and I grant leave to appeal.
SUBMISSIONS
There is no dispute that Mr Way suffers from early osteoarthritis of both knees. The Arbitrator found that Mr Way suffered an injury arising out of or in the course of his employment with the Council, namely the aggravation, acceleration, exacerbation or deterioration of the disease of osteoarthritis, where his employment was a contributing factor to that aggravation, acceleration, exacerbation or deterioration. That finding has not been challenged. However, what is at issue is whether Mr Way’s employment by the Council was ‘a substantial contributing factor’ to the injury.
Mr Way’s Submissions
Mr Way’s solicitors submit the Arbitrator should not have excluded from her consideration the report of Dr Graham dated 15 July 2003. They contend this report had already been admitted to the proceedings, with their consent, and was relied upon by both parties. At no stage in the proceedings did the Arbitrator advise the parties that only one of Dr Graham’s reports could be admitted. The Arbitrator decided to exclude the report of 15 July 2003 without hearing argument from the parties on the issue. To not allow the report, “would create a severe injustice to the applicant and would be against public policy”. Mr Way’s solicitors submit that Dr Graham’s reports of 3 February 2003 and 15 July 2003 “are inextricably linked and one cannot be read without the other”. The later report:
“sheds invaluable light on the way in which Dr Graham has formulated his opinion on whether the applicant’s employment has been a substantial contributing factor to the applicant’s injury and this cannot be gleaned from reading the report dated 3 February, 2003 alone. Upon reading the report dated 15 July, 2003 it is clear that Dr Graham’s report of 3 February, 2003 cannot be given any weight in these proceedings.”
Mr Way’s solicitors contend it is clear Dr Graham did not take a history of work activities or duties from Mr Way and gave an opinion without this crucial information. He also took “a jaundiced view of the legitimacy of the claim”, and made an adverse finding as to causation on the basis that Mr Way was not particularly symptomatic when Mr Way “in fact complained of symmetrical aching bilaterally and instability in his right knee, which knee the Applicant consistently said in evidence was worse”. His reports should therefore be afforded no weight. Despite the fact that Dr Jeffrey is a general practitioner and not an Occupational Physician, in the absence of other medical evidence of probative value, the Arbitrator should have accepted his opinion.
Dr Jeffrey’s evidence should have been preferred to that of Dr Graham because Dr Jeffrey took a far more detailed history from Mr Way as to his duties and symptoms that accorded with the evidence given by Mr Way. There was no evidence that Dr Jeffrey failed to take into account Mr Way’s age and “other lifestyle factors” in forming his opinion, as claimed by the Arbitrator. Mr Way’s solicitors also submit the Arbitrator wrongly took into account the obiter comments made about the medical reports by Deputy President Fleming in her decision on the appeal. The Deputy President made these comments on the basis of only limited evidence and they were not relevant to any issue she determined.
Mr Way’s solicitors also submit the Arbitrator gave insufficient consideration and weight to Mr Way’s evidence. The Arbitrator made findings adverse to Mr Way’s credit that were not supported by the evidence. At paragraph 46 of her Statement of Reasons, she stated: “I note, however, that cross-examination of the Applicant elicited the concession that ‘a lot’ of his work as a greaser was performed in the pits.” Mr Way’s solicitors contend that drawing this conclusion totally ignores other oral evidence given by Mr Way of his working on his knees, including crawling under trucks on cold concrete. The Arbitrator also noted Mr Way did not seek medical treatment for his knees but ignored his oral evidence that “you just toughen [sic] it out when your knees are crook”, and that he would relieve the aching when he “knocked off” with a hot shower. Then at paragraph 75, the Arbitrator said she had taken into account “the concessions made in cross-examination”. Mr Way’s solicitors contend no such concessions were made.
The Council’s Submissions
The Council concedes, “It is apparent from the transcript that the parties proceeded upon the basis that Dr Graham’s report dated 15 July 2003 would be part of the evidence considered by the arbitrator”. However, as the Arbitrator observed, Mr Way’s representative said at the hearing that she did not intend to rely upon Dr Graham’s reports.
The Council contends there was nothing to indicate that either Dr Jeffrey or Dr Graham had the degree of detail as to the nature of Mr Way’s duties as was contained in Mr Way’s statement. Similarly, neither doctor had the further information elicited in oral evidence from Mr Way. The Arbitrator was faced with conflicting opinions from Dr Graham and Dr Jeffrey about the contribution that Mr Way’s employment had made to his condition. Her reasons for accepting Dr Graham’s opinion are clearly set out and no error has been demonstrated in her reasoning process.
The Council rejects the suggestion that Dr Graham took “a jaundiced view”. He was entitled to take into account Mr Way’s failure to seek medical assistance in making his assessment of the severity of the claimed symptoms. Moreover, there is no evidence that the Arbitrator was unduly swayed by Deputy President Fleming’s comments in her earlier appeal decision about the medical evidence.
EVIDENCE
Mr Way provided a statement dated 19 June 2003. He described his work for the Council, for his first five years from 1956 on the Road Construction Crew, then for about two years from 1961 as a fitter’s labourer in the workshop, and from 1963 until his retirement in 1990, as a greaser in the workshop. All the work described by Mr Way includes kneeling, and working as a greaser often involved crawling on his knees under a truck on cold concrete floors. Whilst he did not suffer any specific injuries to his knees, he recalled having “a lot of trouble with my knees”, which were painful and aching.
Mr Way also gave sworn evidence at the arbitration hearing. He described how only some greasing work was accessible from the pit and how he would often have to crawl under trucks to do greasing work at the front, back and around the outsides of vehicles (arbitration hearing transcript pages 5 to 6). He did not seek treatment at work for his knees but “when you knocked off you went and stood underneath a hot shower and poured water on them”. It never occurred to him go into the medical centre across the road from the workshop: “you just toughen it out when your knees are crook” (arbitration hearing transcript page 9). When asked about the maintenance of his award-winning garden, Mr Way said his wife did most of the work including the weeding, although he helped her, for example with things like mowing. However, he noted that “there’s hardly any weeds in the garden because we mulch it” (arbitration hearing transcript page 12). In answer to questions from the Arbitrator, he estimated that he spent 20 minutes of the hour spent servicing a truck on his knees. He would do six or seven trucks during the course of a night shift from 11.30pm to 7.00am (arbitration hearing transcript page 15).
The principal medical reports tendered by the parties were the report of Dr Jeffrey dated 26 September 2002 and the reports of Dr Graham dated 3 February 2003 and 15 July 2003. As noted, Dr Graham is an Occupational Physician. Dr Jeffery is general practitioner to whom Mr Way was referred by his solicitors; he is not Mr Way’s treating doctor. Dr Jeffrey described briefly Mr Way’s work for the Council as a greaser, involving “a lot of kneeling on the cement floor in the workshop”. Dr Jeffrey said:
“X-rays performed in September 2002 show some early arthritis in both knees …
As a result of the nature and conditions of Mr Way’s employment and not due to any other factor, [sic] has developed osteoarthritis of both knees with patellofemoral crepitus and arthritis.”
Dr Graham provided two reports dated 3 February 2003, the shorter one-page report giving his assessment of permanent impairment. The longer four-page report states that Mr Way worked for the Council for approximately 35 years, initially as a labourer on the roads and then in the workshop as a greaser. No further detail is given of what duties were involved in that work. Dr Graham diagnosed early osteoarthritis of the knees, a constitutional condition related to aging:
“There may have been a slight contribution to it from the nature and conditions of his work but his employment has not been a substantial contributing factor to the development of the condition nor of any acceleration or aggravation of it.”
A reading of Dr Graham’s report dated 15 July 2003, the admissibility of which I discuss below, suggests that further information had been supplied to him by the Council’s solicitors:
“it would now appear that Mr Way also has a history of a claim for a back injury with the Newcastle City Council with some referred pain into both legs. Mr Way is now able to recall the back injury (which he states continues to give him some trouble) but could not recall any pain in the legs associated with this.”
Dr Graham re-examined Mr Way on 14 July 2003, but in his report dated 15 July 2003, expressed the same opinion as to the cause of his knee problems as in his earlier report, that “the condition is a constitutional one relating to aging”. However, while stating, “the pattern is not one of post-traumatic osteoarthritis”, Dr Graham acknowledged, “it is possible that there has been a minor contribution to the development of the condition arising from the nature and conditions of his work” with the Council.
DISCUSSION AND FINDINGS
The role of the Presidential Member on appeal is to review the Arbitrator’s decision as a whole. The review is not a rehearing. In this case, Mr Way must demonstrate that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172; The King Island Company Limited v Deery [2005] NSW WCC PD 1) in order to enliven the Presidential Member’s power to interfere with the Arbitrator’s decision pursuant to section 352(7) of the 1998 Act.
Exclusion of Medical Report
First, in relation to Mr Way’s solicitors’ submission concerning the Arbitrator’s exclusion from the evidence considered by her in making her decision of Dr Graham’s report dated 15 July 2003, regard must be had to clause 43 of the 2003 Regulation. Clause 43 restricts the admission of medical reports in any proceedings to one medical report in any particular specialty per party. A “permissible update” of a medical report already admitted may also be admitted in certain circumstances. However, clause 44 states a medical report is a permissible update report if it is provided for the purpose of updating the original report, and is provided more than six months after the original report or “because there has been a material change in the worker’s condition”. There was no suggestion that Dr Graham’s report dated 15 July 2003 was such a report.
The purpose and intent of Part 10 of the 2003 Regulation, “Restrictions on obtaining medical reports”, have been discussed in a number of Commission decisions: see, for example, State Transit Authority of NSW v Dadras [2004] NSW WCC PD 87 at paragraph 14 onwards. Essentially, the purpose “is to stop the excessive cost, time and potential unfairness that result from both parties seeking to maximise their advantage in the dispute by filing numerous medical reports”: Deputy President Fleming in Fishburn v Integral Energy Australia [2005] NSW WCC PD 53, at paragraph 28.
It is not unusual for situations to arise where solicitors who have sought a medical report from a specialist become aware of further relevant information that should have been made available to the specialist for the purpose of formulating his opinion. Commonly, the solicitors will write to the specialist providing the additional information, and asking for some form of supplementary report. In my view, such a supplementary report, provided it does not go outside the parameters of the original report but merely confirms, modifies or retracts, as appropriate, the opinion expressed in the original report, should be regarded as itself part of the original report. This does not violate the purpose and intent of Part 10 of the 2003 Regulation. However, it must be emphasised that such a supplementary report should only be admitted where its purpose is to clarify the original report, where it can be shown that there has been some omission in relation to the material originally provided which could lead to an opinion in the original report being expressed on the basis of inaccurate or incomplete information.
In my view, Dr Graham’s report dated 15 July 2003 should be regarded as such a clarifying report. It is not an additional report. Dr Graham acknowledged that additional relevant information had been made known to him. He appears to have put this information to Mr Way on the occasion of the second examination, and subsequently confirmed the opinion expressed in his original report. Thus, in my view, the report of 15 July 2003 should be treated as clarifying the original reports of 3 February 2003, and part thereof, and the Arbitrator should not have excluded this report from the material she took into consideration in making her decision. The effect of this error is discussed below in conjunction with procedural fairness.
Procedural Fairness
I am also concerned that the Arbitrator did not raise this matter with the parties at the arbitration hearing and call for submissions. It is clear that the parties proceeded on the basis that the report of 15 July 2003 would be admitted. Presumably, the potential problem with the application of Clause 43 of the 2003 Regulation did not occur to the Arbitrator until after the conclusion of the hearing. In my view, the proper course in such a situation is to inform the parties of the perceived problem and invite their submissions. In many situations, written submissions will suffice unless the perceived problem is likely to have a substantial effect on a party’s case, when it may be necessary to re-open the hearing and allow oral submissions either by telephone or videolink, or in person.
The question then is what is the effect of the Arbitrator’s failure to raise the matter with the parties and seek submissions thereon, and of her error in failing to take into consideration the supplementary report of 15 July 2003. Did this amount to a breach of the requirements of procedural fairness? The requirements of procedural fairness will depend upon the nature of the decision under review (Kio v West (1985) 159 CLR 550). A fundamental requirement of procedural fairness is that a decision-maker must give a party whose interests may be adversely affected by a decision an opportunity to be heard. A denial of procedural fairness is an error of law going to jurisdiction (Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11).
The Commission is bound by the common law rules of procedural fairness subject to any clear and express statutory modification. For example, section 354 of the 1998 Act states relevantly:
“(1) Proceedings in any matter before the Commission are to be conducted with as little formality and technicality as the proper consideration of the matter permits.
(2) The Commission is not bound by the rules of evidence but may inform itself on any matter in such manner as the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits.
(3) The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.”
In Aluminium Louvres & Ceilings Pty Ltd v Zheng [2004] NSW WCC PD 26 (‘Zheng’), at paragraphs 29 to 30, Deputy President Fleming said the determination of what is procedurally fair is a matter for the arbitrator in the circumstances of the particular case. In Rick Damelian Pty Ltd v Romanas [2004] NSW WCC PD 93 (‘Romanas’), Deputy President Byron said, at paragraph 45:
“As observed in Zheng, where the rules of evidence do not apply, the conduct of proceedings will be determined according to principles of fairness, taking into account the nature of the proceedings, the legislative requirements and the demands of the instant case. The Commission is bound by the principles of procedural fairness, which require that the parties be given the opportunity to address the evidence against them, where that evidence is to be relied upon in the Commission’s decision.”
In my view, there was a breach of the requirements of procedural fairness but a relatively minor one, which I doubt had any effect on the outcome of the case. I do not find Mr Way’s solicitors’ submissions about the report of 15 July 2003 shedding valuable light on the way in which Dr Graham formulated his opinion in his earlier reports of 3 February 2003 to be persuasive. I am inclined to the Council’s view that there is nothing to indicate that either Dr Jeffrey or Dr Graham had the degree of detail as to the nature of Mr Way’s duties as was contained in his written statement of 19 June 2003. I also note the statement by Mr Way’s representative during the course of the arbitration hearing that she did not intend to rely on Dr Graham’s reports (arbitration hearing transcript page 40). I am therefore not satisfied that, as Mr Way’s solicitors submitted, there was an injustice to Mr Way which would warrant my interfering with the Arbitrator’s decision.
Treatment of the Evidence
Mr Way’s solicitors also submit that the Arbitrator gave insufficient consideration and weight to Mr Way’s evidence. I note the Arbitrator considered the detail of both Mr Way’s statement of 19 June 2003 and his oral evidence at the hearing. She accepted “that a proportion of the work performed for the Respondent required the Applicant to kneel or crawl on his knees” (Statement of Reasons paragraph 47), and that his work “did involve some heavy lifting” (paragraph 49). She noted that Mr Way did not seek medical treatment for his knees while employed by the Council, and there was no evidence of a complaint made to a doctor about his knees during the time of his employment. There was also no evidence from a treating doctor in support of Mr Way’s claim and no report from a specialist.
The Arbitrator cited (paragraph 62(iii)) Deputy President Fleming’s comment that Dr Jeffrey “does not have any special knowledge in relation to Mr Way’s condition, as he is not Mr Way’s treating doctor”. The Arbitrator preferred the report provided by Dr Graham, noting that “Dr Graham, as pointed out by Deputy President Fleming, provided a comprehensive report”. Notwithstanding these comments, the Arbitrator analysed both Dr Jeffrey’s and Dr Graham’s reports. In my view, she exercised her independent judgement in weighing up the evidence and, whilst Mr Way’s solicitors criticise some of her comments, I am not persuaded that she gave insufficient consideration and weight to Mr Way’s evidence. I also do not agree with the Mr Way’s solicitors’ comment that Dr Graham commenced with a “jaundiced view”. Dr Graham set out the information available to him and expressed an opinion.
I do not regard the Arbitrator’s use of the word ‘concession’, in relation to answers given by Mr Way in cross-examination, to mean more than his having agreed, for example, that “a lot” of the greasing points underneath a truck were accessible from the pit (arbitration hearing transcript page 5), or that, for example, he had not sought treatment from the Council’s medical centre that he passed twice daily (arbitration hearing transcript page 9). It appears to me that the major difficulty for Mr Way was the relative lack of evidence in support of his case.
In conclusion, I am not satisfied that the Arbitrator made an error of law in her treatment of the evidence.
DECISION
The decision of the Arbitrator is confirmed.
COSTS
No order is made as to the costs of this appeal.
Robin Handley
Acting Deputy President
22 November 2005
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ROBIN HANDLEY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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