Willis v Trustees of the Roman Catholic Church for the Archdiocese of Sydney, Centacare
[2012] NSWWCCPD 40
•6 August 2012
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| CITATION: | Willis v Trustees of the Roman Catholic Church for the Archdiocese of Sydney, Centacare [2012] NSWWCCPD 40 | ||||
| APPELLANT: | Sharyn Willis | ||||
| RESPONDENT: | Trustees of the Roman Catholic Church for the Archdiocese of Sydney, Centacare | ||||
| INSURER: | Catholic Church Insurances Ltd | ||||
| FILE NUMBER: | A1-10670/11 | ||||
| ARBITRATOR: | Ms K Haddock | ||||
| DATE OF ARBITRATOR’S DECISION: | 19 April 2012 | ||||
| DATE OF APPEAL DECISION: | 6 August 2012 | ||||
| SUBJECT MATTER OF DECISION: | Application to extend time to appeal; no prospects of success; no demonstrable or substantial injustice if time to appeal not extended; Pt 16 r 16.2(12) of the Workers Compensation Commission Rules 2011 | ||||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | ||||
| HEARING: | On the papers | ||||
| REPRESENTATION: | Appellant: | Gerard Malouf & Partners | |||
| Respondent: | Astridge & Murray | ||||
ORDERS MADE ON APPEAL: | The application to extend time to appeal is refused. The Arbitrator’s determination of 19 April 2012 is confirmed. Each party is to pay her or its own costs of the appeal. | ||||
INTRODUCTION
This appeal concerns an application to extend time to appeal and, if time to appeal is extended, the question of whether the Arbitrator erred in failing to find that the appellant worker had “reasonable cause” for not giving notice of injury as soon as possible after an alleged injury on 8 June 2006, and in failing to find that the appellant had established “injury”.
BACKGROUND
The appellant worker, Sharyn Willis, works for the respondent employer, Centacare, as an administrative officer. She alleges that she injured her left shoulder in the course of her employment with the respondent as follows:
(a) while lifting up to 25 archiving boxes on 8 June 2006;
(b) while carrying groceries from a shopping centre to her work premises on 28 August 2006 (originally pleaded as 18 August 2006), and
(c) while filing on 16 March 2009.
The employer’s insurer disputed liability for various reasons. The issues ultimately disputed at the arbitration were whether Ms Willis:
(a) gave notice of injury with respect to the incidents on 8 June 2006 and 28 August 2006;
(b) claimed compensation within six months after the incidents on 8 June 2006 and 28 August 2006, and
(c) sustained injury to her left shoulder arising out of or in the course of her employment on either 8 June 2006, 28 August 2006 or 16 March 2009.
If Ms Willis established the above matters, the insurer also disputed whether employment was a substantial contributing factor to any injury.
The Arbitrator found:
(a) as Ms Willis had not reported an injury on 8 June 2006, and had not established special circumstances that would excuse her failure to do so, she was precluded from recovering compensation in respect of that injury;
(b) on 1 September 2006, Ms Willis gave notice of injury and claimed compensation in respect of the injury ultimately pleaded as having occurred on 28 August 2006 (which may have occurred on 21 August 2006);
(c) the medical evidence was unsatisfactory because there was no evidence from any of the worker’s four treating specialists;
(d) though the worker’s counsel submitted that Ms Willis had a tear and bursitis in her left shoulder, there was no medical evidence that they were due to her employment;
(e) Dr Conrad, the worker’s qualified specialist, made no diagnosis of the condition in the worker’s left shoulder and provided no explanation as to how the “accidents and conditions of work” caused injury to the left shoulder, whatever that injury may be;
(f) Ms Willis suffered from adhesive capsulitis in her left shoulder in and before June 2006, and the condition caused her pain and discomfort with various activities;
(g) none of the injuries pleaded (including the injury of 8 June 2006) appeared to have been of sufficient severity to cause post-traumatic adhesive capsulitis;
(h) there is a difference between pain and injury. What is required to constitute an injury is a “sudden or identifiable pathological change” (Castro v State Transit Authority (NSW) [2000] NSWCC 12). A temporary change in the body’s functioning, without pathological change, does not constitute injury;
(i) the pain and discomfort experienced by Ms Willis was “manifestation not causation, revelation not genesis” (Windeyer J in Darling Island Stevedoring & Lighterage Co Ltd v Hussey [1959] HCA 55; 102 CLR 482), and
(j) Ms Willis had not established that she sustained injury arising out of or in the course of her employment and there would be an award for the respondent employer.
The Commission issued a Certificate of Determination on 19 April 2012 in the following terms:
“1. That the name of the respondent is amended to: Trustees of the Roman Catholic Church for the Archdiocese of Sydney, Centacare.
2. That the Application to Resolve a Dispute and Reply are amended to delete the date of injury of 18 August 2006 wherever it appears, and insert the date of injury of 28 August 2006.
3. That there is an award in favour of the respondent.
4. That there is no order as to costs.”
In an appeal filed out of time, Ms Willis seeks to challenge the Arbitrator’s determination.
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
There is no dispute that the monetary thresholds in s 352(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) are satisfied.
Time
The appeal was lodged more than 28 days after the decision was made and is out of time (s 352(4) of the 1998 Act). Ms Willis seeks an extension of time in which to appeal. In support of that application, it has been submitted on behalf of Ms Willis that:
(a) the delay in lodging the appeal was caused by the unavailability of counsel to advise on the prospects of success on appeal. Counsel had a number of personal and family-related commitments, which “significantly delayed the filing of the appeal”;
(b) the appeal is only two business days out of time and any prejudice to the respondent is minor compared with the significant impact the alleged frank injuries have had on Ms Willis, leading to surgery in December 2009 and loss of employment;
(c) in the circumstances, there would be a demonstrable and substantial injustice to Ms Willis if she were prevented from lodging an appeal;
(d) the respondent received unsealed copies of the appeal on 22 May 2012;
(e) initially, the respondent only disputed “injury” in respect of the incident on 8 June 2006 and only raised the issues of “notice” and “injury” in respect of the three incidents in the Reply lodged on 10 December 2011;
(f) the respondent was granted latitude by being allowed to rely on the report of Dr Edwards dated 25 January 2012 when Dr Hitchens was unavailable to re-examine the worker, and when Dr Edwards’s first report was not tendered;
(g) the consequence of the extension of time is allowing the interests of justice to be pursued;
(h) the respondent was granted significant procedural liberties throughout the running of the case;
(i) it would be against the interests of justice to deny Ms Willis the opportunity to appeal when the appeal is only two business days out of time;
(j) as to the prospects of success, reliance was placed on the submissions attached to the appeal, and
(k) while the respondent would be potentially prejudiced by losing the protection of the Arbitrator’s decision, such prejudice is relatively minor compared with the demonstrable and substantial injustice to Ms Willis if leave is not granted to lodge the appeal two business days out of time in the context where significant liberties were granted to the respondent throughout the proceedings.
The respondent has opposed the extension of time to appeal and submitted that the above submissions do not demonstrate any justifiable basis on which time should be extended.
An extension of time in which to appeal is governed by Pt 16 r 16.2(12) of the Workers Compensation Commission Rules 2011 (the 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 seek leave to appeal would work demonstrable and substantial injustice, by order extend the time for making an appeal.”
The question of extending time to appeal was considered by McHugh J in Gallo v Dawson [1990] HCA 30; 93 ALR 479 (Gallo) at 480. His Honour observed that, in order to determine whether the strict application of time limits will 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 for the parties of the grant or refusal of the application for the 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 extension of time is granted.
The appellant’s “explanation” for the appeal being out of time is unsatisfactory. The unavailability of counsel does not provide exceptional circumstances that justify the extension of time. That is especially so where there is no explanation from the counsel said to have been unavailable and where the worker’s solicitor prepared the submissions in support of the appeal. There is no explanation from the solicitor as to why the appeal was filed out of time. There is no evidence as to when the worker’s solicitor received instructions to appeal and no attempt has been made to properly explain why the appeal was lodged out of time. Those omissions are remarkable and raise serious questions as to the veracity of the explanation offered.
The submission that the respondent was granted “significant procedural liberties” throughout the running of the case is incorrect and, in any event, even if it were correct, is completely irrelevant to the extension of time issue. As to the report from Dr Edwards, Ms Willis’s counsel objected to the tender of that report because the doctor’s earlier report had not been served. The respondent indicated that the earlier report could not be found and, because of the late objection, sought an adjournment to locate the earlier report. Ms Willis’s counsel opposed the matter being adjourned and submitted that, if Dr Edwards’s report was admitted, it should be given little weight. In view of the worker’s preference for the matter not to be adjourned, and as the prejudice to the respondent in excluding the report outweighed the prejudice to the worker in admitting it, the Arbitrator admitted the report.
The Arbitrator’s ruling admitting Dr Edwards’s report was a perfectly proper exercise of her discretion and has not been challenged on appeal. It did not involve granting the respondent any “procedural liberties”. It follows that that ruling is irrelevant to the application to extend time to appeal.
While it is correct that the respondent raised issues in addition to those initially raised in the s 74 notice, the issues the Arbitrator identified as being in dispute were agreed between the parties. It is therefore completely untenable to suggest on appeal that the respondent was granted “significant procedural liberties” throughout the running of the case.
The remaining submissions in support of the extension of time application emphasise the fact that the appeal is only a few days out of time and that the prejudice to the respondent is minor when compared to the demonstrable and substantial injustice to Ms Willis if time to appeal is not extended.
The fact that the appeal is only a few days out of time is a relevant factor in determining if time should be extended. However, the Commission is not simply required to compare the competing prejudices to each of the parties. To succeed with her application, Ms Willis must establish that, in exceptional circumstances, to lose the right to appeal will work a demonstrable and substantial injustice. Whether there will be a demonstrable or substantial injustice if time to appeal is not extended in the present case requires a close and careful consideration of the merits of the appeal.
GROUNDS OF APPEAL AND SUBMISSIONS IN SUPPORT
There are only two grounds of appeal. First, that the Arbitrator erred in failing to find that the worker had “reasonable cause” for not giving notice of injury pursuant to s 254 of the 1998 Act in respect of the alleged incident on 8 June 2006 (notice of injury) and, second, that the Arbitrator erred in finding that the worker had not established “injury” (injury).
Notice of injury
At the arbitration, counsel for the worker conceded that he was unable to submit that notice of injury had been given on 8 June 2006, or even within six months of that date, and that there was no evidence of ignorance or mistake. Ms Willis tendered no evidence in support of the circumstances provided for in s 254(3) and her counsel merely submitted that there was some “obvious confusion” on her part.
The Arbitrator referred to these concessions by counsel and to a document tendered by the respondent and headed “Case Notes Pertaining to Sharyn Willis” (the case notes), which recorded that Ms Willis attended an administrative meeting on 10 June 2006 called a “CAN day” and took approved leave on 11 June 2006.
On 12 June 2006, Ms Willis reported to her supervisor that while at the “CAN day” she experienced a “weird” sensation in her left shoulder and had pain while driving home. She was unable to identify a “trigger” for the pain and did not wish to make a claim for workers compensation but did wish to make a report. She was given the “appropriate incident report form”, which is not in evidence.
Based on this evidence, the Arbitrator was not satisfied that Ms Willis either reported the injury of 8 June 2006 or that she had established special circumstances that would excuse her failure to do so.
The submissions in support of this ground of appeal refer to Ms Willis’s statement of 29 November 2011 and to the case notes referred to at [23] above. In her statement, Ms Willis said that she had moved boxes at work on 8 June 2006 and began to feel pain in her left shoulder, which she ignored. Other than referring to having submitted an incident report form (which is not in evidence) about two weeks after the initial incident, Ms Willis gave no explanation for having not reported the injury and her statement is of little assitance to the notice issue.
The case notes make no mention of Ms Willis having reported an injury of the kind that allegedly occurred on 8 June 2006 and do not advance her case. They refer to Ms Willis experiencing a “weird” sensation in her left shoulder at the “CAN day” on 10 June 2006 and that she was unable to identify a “trigger” for that pain. That evidence supports the Arbitrator’s conclusion that the worker did not give notice of an injury occurring on 8 June 2006.
It was submitted that it was “reasonable” for the worker to have initially ignored or played down the effects of the “injury” on 8 June 2006, because she did not wish to claim workers compensation. The basis for this submission is not identified. The evidence is that Ms Willis reported pain (not an injury) on 12 June 2006 and said she did not wish to claim for that pain. There is no persuasive evidence that Ms Willis did not report the incident of 8 June 2006 because she did not wish to make a claim. She did not “play down” the effects of the incident on 8 June; she did not report that incident and, as was effectively conceded by her counsel at the arbitration, has never offered an explanation for failing to do so.
Next, it was submitted it was “reasonable” for Ms Willis not to have notified the respondent of the initial “injury” because her treating doctor, Dr Nguyen, was unclear of the diagnosis and her left shoulder symptoms were further aggravated by carrying food items at work on 28 August 2006. This submission ignores the terms of s 254(3)(b), which state that the failure to give notice of injury is not a bar to the recovery of compensation if the failure “was occasioned by ignorance, mistake, absence from the State or other reasonable cause”. There is no evidence that Ms Willis failed to report the 8 June 2006 incident because Dr Nguyen was uncertain of the diagnosis and/or because of the incident on 28 August 2006, and the submission is untenable.
Ms Willis also submitted that it was “reasonable” for her to believe that it was not necessary to duplicate notification of the incident on 8 June 2006, since she gave notice of the 28 August 2006 incident. Again, this submission completely misses the point. There is no evidence that Ms Willis failed to report the 8 June 2006 incident because she believed it was not necessary to report it in circumstances where she had reported the 28 August 2006 incident.
Last, it was submitted that the above “special circumstances” satisfy s 254 because Ms Willis had “reasonable cause” for failing to notify the respondent of the incident on 8 June 2006. This submission fails to deal with the evidence or the terms of s 254. There is no evidence that Ms Willis failed to give notice of the 8 June 2006 incident because of a “reasonable cause”. The submissions are simply made up and have no basis in fact or law. Moreover, these submissions are completely inconsistent with the submissions counsel made at the arbitration.
The first ground of appeal is baseless and has not come close to establishing that the Arbitrator erred in her approach or conclusion.
Injury
Ms Willis’s submissions on this point are that the Arbitrator erred in failing to place due weight on the compelling evidence of traumatic work-related incidents in view of the following:
(a) the lack of compelling evidence of pre-existing left shoulder complaints;
(b) the eight year gap between 1998, when she saw Dr Harris for paraesthesia in both arms with radiation to the left shoulder because of degenerative changes in her cervical spine, and the attendance on Dr Nguyen on 8 June 2006;
(c) each of the three frank incidents involved manual duties and were traumatic;
(d) the MRI scan and ultrasound on 20 October 2006 and 25 June 2007 respectively revealed a tear and impingement, and
(e) each of the three frank incidents and the resultant pathology required surgery performed by Dr Davé on 12 December 2009.
Last, it was submitted that only Dr Conrad recorded a complete and correct history of the three frank incidents at work and his evidence “should be preferred”.
The Arbitrator’s observation that the evidence was unsatisfactory was an understatement. It was quite remarkable for the worker to have run a case of this kind (where she alleged that she had shoulder surgery because of her work injuries) without tendering any evidence from any of her several treating specialists and without any opinion from her qualified specialist (Dr Conrad) linking the findings on MRI with the work incidents or expressing a view on diagnosis. In addition, Dr Conrad provided no explanation of how “the accidents and conditions of work” caused the problems in Ms Willis’s left shoulder. The doctor’s failure to provide an explanation for the connection between Ms Willis’s condition and the employment incidents and his failure to provide a diagnosis, provided a sound basis for the Arbitrator not accepting his conclusion.
The Arbitrator considered the evidence in detail and accepted the opinions of Drs Hitchen and Edwards that Ms Willis suffers from adhesive capsulitis or frozen shoulder. She correctly observed that there was no medical evidence that the pathology revealed on the MRI scan was due to Ms Willis’s employment with the respondent. In these circumstances, the lack of compelling evidence of pre-existing left shoulder complaints is irrelevant. It is for the worker to prove her case, not for the respondent to disprove it.
Similarly, as the Arbitrator placed no reliance on the 1998 symptoms in reaching her conclusion, the eight-year gap between the neck and arm symptoms in 1998 and the attendance on Dr Nguyen in 2006 is of no consequence.
The submission that each of the three frank incidents involved manual duties and was traumatic is unsupported by any medical evidence. There is no medical evidence that any of the incidents pleaded were traumatic or that they, either individually or together, caused Ms Willis’s problem. That is the fundamental problem with the worker’s case.
The submission that each of the three incidents and the resultant pathology required surgery on 12 December 2009 is based on an assumption that is not supported in the evidence. As already noted, there is no evidence from Dr Davé (or any of the worker’s several treating doctors), and Dr Conrad expressed no view on the connection between the surgery and work incidents. In these circumstances, the fact that he recorded a history of three incidents is of no consequence and the Arbitrator was entitled to give his opinion little or no weight.
It follows that the second ground of appeal is also baseless and without merit. The Arbitrator’s conclusion was open to her and neither her conclusion nor her reasoning discloses any error.
CONCLUSION
Having carefully considered the appellant’s arguments in support of the appeal, I have concluded that the appeal is completely without merit and that the arguments in support of it are untenable. The Arbitrator did not err in failing to find “reasonable cause” under s 254 and did not err in concluding that the worker had not made out her case. The worker’s arguments have demonstrated a fundamental lack of understanding of the issues involved and failed to address the evidence or the Arbitrator’s reasons in any meaningful way.
It follows that the appellant has not established that, in exceptional circumstances, to lose the right to appeal would result in any injustice, let alone a “demonstrable and substantial injustice”, as is required under the Rules. The application to extend time to appeal is refused.
DECISION
The application to extend time to appeal is refused.
The Arbitrator’s determination of 19 April 2012 is confirmed.
COSTS
Each party is to pay her or its own costs of the appeal.
Bill Roche
Deputy President
6 August 2012
I, MARGOT UNDERCLIFFE, 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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