Webb v Penrith Rugby Leagues Club Ltd
[2016] NSWWCCPD 16
•3 March 2016
| WORKERS COMPENSATION COMMISSION | ||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||
| CITATION: | Webb v Penrith Rugby Leagues Club Ltd [2016] NSWWCCPD 16 | |
| APPELLANT: | Jose Antonio Webb | |
| RESPONDENT: | Penrith Rugby Leagues Club Ltd | |
| INSURER: | QBE Workers Compensation (NSW) Ltd | |
| FILE NUMBER: | A1-2498/15 | |
| ARBITRATOR: | Ms J Snell | |
| DATE OF ARBITRATOR’S DECISION: | 15 September 2015 | |
| DATE OF APPEAL DECISION: | 3 March 2016 | |
| SUBJECT MATTER OF DECISION: | Extension of time to appeal; no prospect of success; no demonstrable or substantial injustice if time not extended; Pt 16 r 16.2(12) of the Workers Compensation Commission Rules 2011; failure to comply with Practice Direction No 6; failure to identify grounds of appeal | |
| PRESIDENTIAL MEMBER: | President Judge Keating | |
| HEARING: | On the papers | |
| REPRESENTATION: | Appellant: | McDonnell Schroder |
| Respondent: | Gillis Delaney Lawyers | |
| ORDERS MADE ON APPEAL: | The application to extend time to appeal is refused. | |
INTRODUCTION
This appeal concerns an application to extend time to appeal. If time to appeal is extended, the appellant seeks to challenge the Arbitrator’s finding that the worker’s employment was not a substantial contributing factor to an alleged frank injury. The appellant also seeks to challenge the Arbitrator’s finding that the worker’s employment was not the main contributing factor to an alleged aggravation of a disease condition in the worker’s left knee.
BACKGROUND
The appellant, Mr Webb, is employed by the respondent as a kitchen hand. He allegedly sustained an injury to his left knee on 2 September 2011, when he developed severe pain in the left knee whilst standing in an area within the respondent’s premises known as the “big pot wash”. Mr Webb further alleged that he suffered from an aggravation of a disease condition, namely degenerative changes in his left knee, which he claimed was aggravated by heavy and repetitive standing, walking, bending and squatting in the course of his employment between 10 July 2010 to 20 August 2014.
Mr Webb underwent surgery to his left knee on 21 August 2014. He claims weekly compensation during a period of incapacity from 20 August 2014 to 19 November 2014 and reimbursement of his medical and related expenses.
On 10 November 2011, QBE Workers Compensation (NSW) Ltd (QBE) issued a notice under s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). It denied liability for any injury under ss 4 and 9A of the Workers Compensation Act 1987 (the 1987 Act). It alleged that “it is highly probable that the injury or similar would have happened anyway at or about the same time or the same stage of [Mr Webb’s] life if he had not been at work or not worked in that employment”.
On 4 May 2015, Mr Webb lodged an Application to Resolve a Dispute (the Application) in the Commission seeking orders for payment of the disputed compensation referred to above. On 13 May 2015, the respondent lodged a Reply to the Application denying liability for the reasons stated in its s 74 notice.
On 10 August 2015, the matter proceeded to a conciliation and arbitration hearing before a Commission Arbitrator in Penrith. No oral evidence was called at the hearing.
For reasons which I shall come to in due course, the Arbitrator found against Mr Webb on both the alleged injury on 2 September 2011 and in respect of the allegation that he suffered an aggravation of the alleged disease condition.
On 15 September 2015, the Arbitrator issued a Certificate of Determination in the following terms:
“The Commission determines:
1. Award for the respondent.”
On 20 November 2015, an Application – Appeal Against Decision of Arbitrator (Appeal Application) was lodged in the Commission. The application was procedurally deficient in a number of respects and was lodged in breach of Practice Direction No 6 – Appeal Against a Decision of the Commission Constituted by an Arbitrator (Practice Direction No 6). The procedural deficiencies concerned the appellant’s failure to identify any grounds of appeal, the failure to attach a chronology as required and the failure to make any submissions on why the time to appeal should be extended.
Pursuant to Directions issued on 25 November 2015 and 11 December 2015 the appellant was directed to file an amended application to address the deficiencies.
In an Amended Application Appeal Against Decision of Arbitrator (Amended Appeal Application) lodged on 16 December 2015, Mr Webb seeks leave to extend the time to appeal and, if time is extended, to appeal the Arbitrator’s decision. (As discussed below, the appeal was still deficient in that it did not properly identify any grounds of appeal.)
ON THE PAPERS
Section 354(6) of 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.
PRELIMINARY MATTERS
Monetary threshold
The monetary thresholds in s 352(3) of the 1998 Act are satisfied.
Time
An appeal under s 352 must be made within 28 days of the decision appealed against (s 352(4) of the 1998 Act). Contrary to the appellant’s submissions, the initial Appeal Application was lodged in the Commission on 20 November 2015, not 18 November 2015.
An Arbitrator’s decision is made when the Commission issues a Certificate as to the determination of the dispute as required by s 294(1) of the 1998 Act (Pt 16 r 16.2(2) of the Workers Compensation Commission Rules 2011 (the 2011 Rules)). In the present matter, the Arbitrator’s determination was made on 15 September 2015. The “given day” for the reckoning of time pursuant to s 352(4) is 15 September 2015 and the time to appeal is calculated “exclusive of that day” (s 36 of the Interpretation Act 1987).
It follows that the last day for lodging the appeal within the 28-day period allowed by s 352(4) was 13 October 2015. Therefore the appeal was lodged 66 days after the Arbitrator’s Certificate of Determination was issued and 38 days after the appeal period expired.
Mr McDonnell, solicitor who appears for the appellant, submitted:
“Counsel appearing before the Arbitrator was on leave at the time of publication of the award decision and did not see the decision until after time for appeal had expired. After seeing the decision Counsel advised that an arguable ground of appeal was open and following the grant of ILARS assistance the appeal notice was filed and served. The appellant respectfully submits that there is no prejudice to the respondent in these circumstances and that there is an appropriate basis for the granting of leave to appeal out of time.”
Mr McDonnell further submitted that the extension of time should be allowed as the appellant lodged the appeal and notified the respondent expeditiously, after having received counsel’s advice and ILARS funding.
The respondent opposed the extension of time to appeal. It submitted that the appellant did not serve the application to appeal on the respondent at the first available opportunity and it was only made aware of the appeal when the Registrar issued a Direction on 25 November 2015 directing that the appellant file an amended application. The respondent was served the Amended Appeal Application and submissions on 18 December 2015.
Notwithstanding the Commission’s direction providing the appellant with an opportunity to file submissions in reply, the appellant did not file any submissions in reply.
An extension of time in which to appeal is governed by Pt 16 r 16.2(12) and (13) of the 2011 Rules which provides:
“(12) The Commission constituted by a Presidential member may, if a party satisfies the Presidential member, in exceptional circumstances, that to lose the right to appeal would work demonstrable and substantial injustice, by order extend the time for making an appeal.
(13) A party who seeks an extension of time as referred to in subrule (12) must:
(a) as soon as practicable give notice to the other parties of the intention to seek the extension, and
(b) lodge and serve with the application to appeal an application for the extension of time, including full details of the arguments to be put in favour of granting the extension.”
The question of extending time to appeal was considered by McHugh J in Gallo v Dawson [1990] HCA 30; 93 ALR 479 at 480. His Honour observed that, in order to determine whether the strict application of time limits would work an injustice it is necessary to have regard to:
(a) the history of the proceedings;
(b) the conduct of the parties;
(c) the nature of the litigation;
(d) the consequences to the parties for the grant or refusal of the application for extension of time;
(e) the prospects of the applicant succeeding in the appeal, and
(f) the fact that, upon expiry of the time for appealing, the respondent has a vested right to retain the judgment unless the application for an extension of time is granted.
On several occasions, the Commission has held that inadvertence or administrative errors by legal practitioners do not amount to exceptional circumstances that justify an extension of time to appeal (Department of Education and Training v Mekhail [2006] NSWWCCPD 1 and Department of Corrective Services v Buxton [2007] NSWWCCPD 55).
The respondent has submitted, and I accept, that the appellant’s submissions do not address why the appellant’s legal representatives failed to review the Arbitrator’s decision to determine whether there were any grounds of appeal and/or instruct alternative counsel to advise on the prospects of appeal within 28 days of the date of the Certificate of Determination.
The appeal was lodged 66 days after the decision and 38 days after the expiration of the appeal period. In those circumstances I reject the appellant’s submission that it acted expeditiously to lodge the appeal and notify the respondent. A delay of 38 days is a significant delay and it is certainly not expeditious.
For these reasons the explanation for the delay in lodging the appeal was unsatisfactory. However, a question still remains as to whether failure to extend time in which to appeal would result in a demonstrable and substantial injustice. In order to answer that question it is necessary to look closely at the prospects of success of the proposed appeal.
THE ARBITRATOR’S REASONS
The essential issue before the Arbitrator involved a determination of whether Mr Webb had suffered a personal injury on 2 September 2011, to which his employment was a substantial contributing factor under s 4(a) of the 1987 Act and/or whether he suffered an aggravation of a disease under s 4(b)(ii) of the 1987 Act to which his employment was the main contributing factor.
The alleged injury on 2 September 2011
The Arbitrator focused on the contest between the evidence of Dr Holman, an orthopaedic surgeon qualified by the respondent, and Dr Conrad, a general surgeon qualified by Mr Webb. Dr Holman accepted that there was evidence of degenerative changes in Mr Webb’s knee, including a degenerative tear of the medial meniscus but he found no evidence of any tear of the medial collateral ligament. He accepted the proposition that there was an aggravation of the pre-existing degenerative changes in the left knee whilst Mr Webb was “walking at work”. However, he considered it highly probable that the injury or a similar injury would have happened anyway at about the same time or at the same stage of Mr Webb’s life irrespective of his employment. Dr Holman’s report was prepared on 8 November 2011.
Dr Conrad provided a report, over three years later, on 18 February 2015. He stated that Mr Webb had been favouring his right leg due to walking, standing, bending and squatting. Dr Conrad noted that Mr Webb developed pain in the left knee, approximately on 1 July 2011. Dr Conrad concluded that this had progressively deteriorated and on 2 September 2011 he suffered “an accident” when he was standing at the “big pot wash”. On that occasion he developed severe pain in the left knee, which Dr Conrad concluded resulted from a tear of his meniscus which he said was “clearly due to the conditions of work and in particular on 2 September 2011”.
In reconciling the conflicting medical evidence, the Arbitrator accepted that there was overwhelming evidence that Mr Webb had pre-existing degenerative changes in his left knee. However, unlike Dr Conrad, Dr Holman recorded that Mr Webb told him that any pain he had in his knee prior to 2 September 2011 had settled. The Arbitrator expressed a preference for Dr Holman’s view because the history he recorded was more contemporaneous and more likely to be accurate than that taken by Dr Conrad several years later. The Arbitrator also stated that she had been more impressed by Dr Holman’s evidence because he exhibited an attention to detail with his history which seemed to be more precise than the history taken by Dr Conrad.
Applying the test discussed in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796 the Arbitrator concluded that mere walking, even if it was all day, as Mr Webb submitted, in the absence of a particular activity such as twisting or walking on uneven ground, would be unlikely to cause a meniscal tear.
Further, the Arbitrator held that even if she was satisfied that by reason of his job, which involved walking, standing, bending and squatting, the degenerative condition in his knee had been aggravated by the employment that, of itself, was not sufficient to succeed. In order to satisfy the provisions of s 9A of the 1987 Act, the employment must be a substantial contributing factor to the injury. Having regard to Dr Holman’s evidence, which the Arbitrator accepted, she was not satisfied that employment was a substantial contributing factor because of Dr Holman’s view that it was highly probable that Mr Webb would have sustained a similar injury irrespective of his employment. Therefore, the Arbitrator concluded that Mr Webb had not discharged the onus of proof in relation to the s 9A issue and found against him on the allegation of injury on 2 September 2011.
The alleged disease injury
Notwithstanding inconsistencies in the evidence regarding prior complaints, the Arbitrator found that there was a reasonably consistent history that Mr Webb had pain in his left knee for a few months leading up to 2 September 2011. However, the application failed because the Arbitrator was not satisfied that Mr Webb had discharged the onus of establishing that his employment was the main contributing factor to the aggravation of his disease condition. In reaching that conclusion the Arbitrator considered the history of prior complaints.
The Arbitrator noted that the history taken by the triage nurse at Nepean Hospital on 2 September 2011 did not identify activities alleged to have caused the knee pain for which Mr Webb was seeking treatment. The discharge summary noted a two month history of gradually worsening knee pain, but there was no reference to work duties as the cause of the increasing pain.
The Arbitrator noted that Mr Webb’s general practitioner, Dr Bishay, recorded that Mr Webb developed sudden pain over the medial aspect of the left knee on 2 September 2011. He made no mention of any particular work task causing the alleged injury or of Mr Webb complaining of work tasks over a period of time as the cause of it.
The employer’s report of injury refers only to a cramp like pain in the left knee with no work related incident. There was no complaint of prior knee pain.
Mr Webb’s treating specialist, Dr Elliott, in his first report dated 22 September 2011, referred to the history of some pain in the left knee but again there was no history of his employment as the cause of the pain.
The Arbitrator noted that Dr Holman’s evidence referred to symptoms prior to 2 September 2011, however, his evidence was that such symptoms settled. The Arbitrator also said that whatever symptoms Mr Webb may have suffered up to September 2011, he did not tell Dr Holman that they were work related. Dr Holman’s ultimate conclusion was that Mr Webb suffered degenerative arthritis in his knee and a degenerative tear in the medial meniscus that were unrelated to his employment.
Whilst Dr Conrad concluded to the contrary, namely that the torn meniscus was due to the conditions of his employment, he did not explain why.
The Arbitrator concluded, referring to Nguyen v Cosmopolitan Homes [2008] NSWCA 246, that she could not be satisfied of an actual persuasion that the symptoms experienced by Mr Webb on or prior to 2 September 2011 were work related.
The Arbitrator further concluded that if she was in error in that conclusion and Mr Webb had suffered an aggravation of a disease condition, he failed to discharge the onus of proving that his employment was the main contributing factor to the aggravation of the disease pursuant to s 4b(ii) of the 1987 Act. That was because of a lack of medical evidence that the main contributing factor to the aggravation of a pre-existing disease in the left knee was due to his repeated performance of his duties, walking standing etc. over the period alleged.
Consideration
Practice Direction No 6 requires that an appeal application must state:
“(b) briefly, but specifically, the grounds relied on in support of the appeal. It is not acceptable merely to allege that the Arbitrator erred in law, fact or discretion, or that the decision is against the evidence or the weight of the evidence. The grounds of appeal must identify the respects in which error of law, fact or discretion is alleged to have occurred as well as any material findings it is said the Arbitrator should or should not have made, and any material facts it is said the Arbitrator should or should not have found…”
The purported grounds of appeal do not comply with Practice Direction No 6. Although Part B of the Amended Appeal Application is entitled “grounds of appeal and submissions in support” in fact no grounds of appeal are identified. Rather, the submissions in support of the appeal merely reargue the submissions that were made before the Arbitrator on the merits of the claim.
An appeal under s 352 is characterised by the identification and correction of legal, factual or discretionary error. It is no longer a review on the merits, as it was prior to 1 February 2011. For that reason alone it is arguable that the appeal would inevitably be dismissed.
However, as the appellant submits, the appeal is essentially concerned with a single issue, namely the Arbitrator’s approach to the evidence of the respondent’s qualified medical specialist Dr Holman.
To the extent that any allegation of error can be discerned from the appellant’s Amended Appeal Application, the complaint is expressed in these terms:
“The appellant’s complaint is that the Arbitrator did not properly deal with Dr Holman’s final conclusion, as far as it is relevant for the purposes of a consideration of any s 9A(2) defence.”
The relevant extract from Dr Holman’s reports is found at p 9 of his report of 8 November 2011. Dr Holman was asked to express an opinion as to whether employment was a substantial contributing factor to Mr Webb’s condition. His attention was specifically directed to the matters referred to in s 9A(2) of the 1987 Act. In answer to the question concerning the contribution, if any, of the worker’s lifestyle and/or his activities outside the workplace to the injury, Dr Holman said:
“Mr Webb’s lifestyle and his activities outside the workplace did not contribute to the condition of his knee injury at [sic] any extent.”
The appellant submits that if Dr Holman’s assessment that the worker’s lifestyle or activities outside of work did not contribute to the condition of his knee then the Commission must find that the work activity on 2 September 2011 caused the sudden acute onset of pain in his left knee. The appellant submits:
“This event indicates trauma to his knee compartment at work that day whilst engaged in the walking and standing of his work as a kitchen hand irrefragably linked to his employment. This supports injury both on 2.9.11 and injury due to the nature and conditions of his employment between the claimed dates.”
The Arbitrator dealt with that submission and rejected it. The Arbitrator concluded that Dr Holman’s answer, when considered in context with the whole of his report, did not mean that simply because there were no lifestyle factors responsible for the condition, it must therefore be concluded that work must have been a causative factor. She said (at [94] of the Reasons):
“Dr Holman stated[,] when considering [Mr Webb’s] state of health and hereditary factors[,] that the degenerative changes contributed to the current symptoms in his left knee. Dr Holman found it was highly probable that a similar injury would have happened anyway or at the same stage of his life even if he had not been at work or performing work in his employment.”
The appellant’s submission ignores Dr Holman’s essential proposition, namely, that Mr Webb was suffering from a degenerative condition that was likely to become symptomatic irrespective of his employment. The Arbitrator accepted this evidence, as it was open to her to do.
Moreover, as the Arbitrator correctly observed, Dr Conrad did not explain how the duties undertaken by Mr Webb on 2 September 2011 resulted in a tear of the medial meniscus. Dr Conrad said that the injury was sustained between 1 July 2011 and 2 September 2011 and was due in particular to “the accident” on 2 September 2011. However, he did not explain what he meant by “the accident”. Such a description was at odds with Mr Webb’s evidence. He did not say that he suffered an accident. He said that he was “standing at the big pot wash” when he developed pain.
The Arbitrator noted that Dr Conrad’s evidence was inconsistent with respect to evidence of degenerative changes in Mr Webb’s knee. She noted when Dr Conrad assessed Mr Webb’s whole person impairment he said that there was no evidence of pre-existing degenerative disease. However, in his report of 18 February 2015, he accepted that the MRI scan of 4 October 2011 demonstrated degenerative change and chondral wear in the knee.
In contrast to Dr Conrad’s evidence, the Arbitrator found that Dr Holman’s evidence was more contemporaneous and was therefore more likely to be accurate. She also found that Dr Holman exhibited an attention to detail with his history taking, which seemed more precise than the history taken by Dr Conrad.
It was for these reasons that the Arbitrator preferred the opinion of Dr Holman to that of Dr Conrad. That was a conclusion that was open to her on the evidence. To disturb the Arbitrator’s finding in accordance with the principles discussed by Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 it would be necessary to be satisfied that other possibilities so outweigh that chosen by the Arbitrator that it can be said that her conclusion was wrong. I am not satisfied that that is the case and therefore the appeal has no prospect of success.
Whether the employment is a substantial contributing factor to the injury is a question of fact and it is a matter of impression and degree (Dayton v Coles Supermarkets Pty Ltd [2001] NSWCA 153 at [29]; McMahon v Lagana [2004] NSWCA 164 at [32]) to be decided after the consideration of all the evidence. In considering s 9A, an Arbitrator must take into account all the evidence, not just evidence in relation to lifestyle factors.
The Arbitrator (correctly) noted that the contemporaneous records of Nepean Hospital, Dr Bishay, Dr Elliott and the employment records, all failed to make any mention of work related symptoms in the left knee.
In these circumstances, for the reasons given, it was open to the Arbitrator to accept Dr Holman’s evidence, namely, that because of the degenerative state of Mr Webb’s knee, it was likely to become symptomatic irrespective of his employment. Once that evidence was accepted it was open to the Arbitrator to conclude that the provisions of s 9A were not satisfied with respect to the alleged 2 September 2011 injury.
Similarly, it was open to the Arbitrator to find that Mr Webb had not established that his employment was the main contributing factor to the alleged s 4(b)(ii) injury, which was an alternative finding in any event. It follows, therefore, that the appeal cannot succeed.
CONCLUSION
The appellant’s delay in lodging the appeal was significant. The explanation for the delay is unsatisfactory for the reasons I have discussed. The Amended Appeal Application failed to identify grounds of appeal directed to the question of error, in contravention of Practice Direction No 6. In substance the purported appeal merely sought to re-agitate the issues on the merits which is no longer permitted in an appeal under s 352 of the 1998 Act.
For these reasons, and because the appeal has no reasonable prospect of success, it cannot be said that, by refusing the application to extend time, any substantial injustice would result. The appropriate order, therefore, is that leave to extend time to appeal should be refused.
DECISION
The application to extend time to appeal is refused.
Judge Keating
President
3 March 2016
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