Wyong Shire Council v Paterson
[2004] NSWWCCPD 45
•26 July 2004
| WORKERS COMPENSATION COMMISSION | ||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||||
| STATUS: Decision confirmed on Appeal: Wyong Shire Council v Paterson [2005] NSWCA 74; (2005) 5 DDCR 13 | ||||||
| CITATION: | Wyong Shire Council v Paterson [2004] NSWWCCPD 45 | |||||
| APPELLANT: | Wyong Shire Council | |||||
| RESPONDENT: | Shane Brentnail Paterson | |||||
| FILE NUMBER: | WCC 10455-2003 | |||||
| DATE OF ARBITRATOR’S DECISION: | 13 November 2003 | |||||
| DATE OF APPEAL DECISION: | 26 July 2004 | |||||
| SUBJECT MATTER OF DECISION: | Determination of ‘injury’ under section 4 of the Workers Compensation Act 1987, Procedural Fairness, Adequacy of Reasons. | |||||
| PRESIDENTIAL MEMBER: | Dr Gabriel Fleming, Deputy President | |||||
| HEARING: | 29 June 2004 | |||||
| REPRESENTATION: | Appellant: | Greylings Attorneys | ||||
| Respondent: | Taylor & Scott Lawyers | |||||
| ORDERS MADE ON APPEAL: | The decision of the Arbitrator is confirmed. | |||||
| The Appellant Employer is to pay the costs of the appeal. | ||||||
CONTENTS
THE APPEAL PARAGRAPHS 1–8
LEAVE PARAGRAPHS 9-10
ISSUES IN DISPUTE PARAGRAPHS 11-16
DISCUSSION AND FINDINGS PARAGRAPHS 17-33
DECISION PARAGRAPH 34
COSTS PARAGRAPHS 35-36
THE APPEAL
On 11 December 2003 Wyong Shire Council (‘the Appellant Employer/the Council’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission against a decision, dated 13 November 2003. The Council is a self-insurer for the purpose of workers compensation.
The Respondent to the Appeal is Shane Brentnail Paterson (‘the Respondent Worker/Mr Paterson’).
The appeal relates to an ‘Application to Resolve a Dispute’ lodged in the Commission by Mr Paterson on 28 May 2003. In this Application Mr Paterson alleges that he sustained two separate injuries, the first to his hip on 15 July 2002 and the second to his back on 23 August 2002. Mr Paterson seeks an award of weekly benefits compensation for total incapacity in the amount of $537.60 per week from 31 August 2002, to date and continuing, $6,250.00 for permanent impairment/pain and suffering, and ongoing medical and treatment expenses.
On 10 September 2002, the Council formally denied liability on the basis that employment was not a substantial contributing factor to the injury.
A Commission Arbitrator heard the dispute on 22 September 2003. The parties were unable to come to an agreement and therefore the Arbitrator determined the matter. On the issue of liability, the Arbitrator found that, “it was conceded by the Respondent’s legal representative at the hearing of this matter that the only real issue in dispute was whether the Applicant’s employment with the Respondent was a substantial contributing factor to the injury”.
The Certificate of Determination, and attached Statement of Reasons for Decision (‘the Reasons’) records the Arbitrator’s award as follows:
“A.That the Respondent pay the Applicant weekly compensation at the rate of $200 per week from 14 September 2003 being the date of last payment made by the Respondent under Section 40 of the Workers Compensation Act 1987.
Such weekly payments to continue in accordance with the provisions of the Act.
B. Section 60 expenses:
That the Respondent pay the Applicant’s Section 60 of the Workers Compensation Act 1987 expenses in accordance with that section on production of accounts or receipts.
Costs:
C. That the Respondent pay the Applicant’s costs as agreed or assessed.”
This matter was referred to me for review on 20 May 2004.
A hearing in the appeal was held on 29 June 2004, attended by legal representatives of both parties. The transcript of that hearing is before me on the appeal, along with the evidence that was before the Arbitrator and the parties’ submissions.
LEAVE
Leave to appeal was granted on 3 June 2004 because I was satisfied that:
· The appeal was filed within 28 days of the decision appealed against (section 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’)),
· The amount of compensation at issue on the appeal is at least $5,000 (section 352(2)(a) of the 1998 Act), and
· The amount of compensation at issue on the appeal is at least 20% of the amount awarded in the decision appeal against (section 352(2)(b) of the 1998 Act).
No new evidence is submitted in the appeal (section 352(6) of the 1998 Act).
ISSUES IN DISPUTE
The Appellant Employer argues that the Arbitrator’s decision should be overturned and that a new decision, in favour of the Appellant Employer, should be substituted in its place. The Appellant initially submitted nine grounds of appeal, however withdrew most of these grounds, leaving the following issues in dispute:
The Arbitrator erred in:
· Misdirecting himself as to the issues in dispute, wrongly finding that ‘injury’ was not in dispute and, therefore, failing to properly determine the ‘injury’ that was the basis for an award of compensation (‘The Injury Error’);
· Denying the Employer procedural fairness in not giving it notice of the case against it in relation to the ‘nature and conditions’ of employment (‘The Procedural Fairness Error’).
The Appellant also complains, quite properly, about the lack of a transcript of the arbitration. Despite arrangements being made to record the arbitral proceedings on 22 September 2003, it was noted in the Commission file that “there existed no recording of the proceedings due to technical difficulties” and as a result, no transcript is available. A short ‘Supplementary Statement - Hip Injury’ was filed with the original application and oral evidence of the worker was given at the hearing. Another ‘Supplementary Statement’ was submitted to the Arbitrator and attests to an accident that ‘happened on or about 23 August 2002. In the accident I suffered injury to my back when I was shovelling to fill in pot holes’. The Appellant Employer submits that it has been grossly prejudiced by the absence of a transcript and that the decision should be revoked on this basis. The prejudice flows from the failure of the Arbitrator to identify the ‘injury’ upon which he made the award, and the evidence to support a finding of injury.
The Respondent Worker claims that the absence of a transcript causes no prejudice to the Employer as the relevant evidence was documentary, and was before the Arbitrator.
Despite the fact that it is the Commission’s policy to record arbitral proceedings, the issue of the absence of a transcript has arisen in several previous matters in the Commission (Aluminium Louvres & Ceilings Pty Ltd v Zheng [2004] NSW WCC PD 26; Australian Traineeship System (Cargill Meat Processes Pty Limited)v Ramage [2004] NSW WCC PD 18). This situation highlights the necessity for a statement of the worker to be filed in all matters, as required by Rule 38 of the Workers Compensation Commission Rules 2003. The lack of a transcript of the Arbitration may be, but is not always, fatal to the conduct of a fair review on appeal. Where the decision is given ex tempore, and there is neither a transcript nor statement of the worker’s evidence, the conduct of the review may be impossible. The task of the Presidential Member is to ‘review’ the Arbitrator’s decision, wherever it is possible to do so, either ‘on the papers’ or after an oral hearing. The particular circumstances of each case will influence the course of the review.
An Arbitrator’s decision should not be disturbed unless, on review, it is found to be affected by an error of law, fact or discretion (Allesch v Maunz (2000) 203 CLR 172; Mayne Health Group t/as Nepean Private Hospital v Sarah Sandford [2002] NSW WCC PD 6). Where such an error is found it may not be possible to proceed to substitute a new decision, where the evidence before me on appeal is inadequate because it was not properly filed or recorded in the arbitration proceedings. To allow the filing of fresh evidence on appeal may lead to the review becoming a complete second hearing of the dispute (Barbour v BHP Steel Pty Limited [2004] NSW WCC PD 41). This is not the intention of the statutory scheme and in these circumstances it is appropriate for the matter to be remitted to an Arbitrator to be determined afresh. The Workers Compensation Legislation (Amendment) Act 2004, effective 9 July 2004, amended section 352 of the 1998 Act to allow for a Presidential Member, on review, to remit a matter to an Arbitrator.
In this matter the oral evidence given by the worker at the Arbitration is not before me. The parties agreed that no ‘statement’ was filed other than the two so-called ‘supplementary’ statements filed by the worker. While these statements are brief they clearly attest to the date, nature and alleged cause of the injury. Taking into account the particular grounds of appeal, the Arbitrator’s written reasons and the documentary evidence that is before me I am satisfied that I can proceed to review the Arbitrator’s decision.
DISCUSSION AND FINDINGS
The facts of this matter are set out in the decision of the Arbitrator and are not repeated in full here. In summary, Mr Paterson is a 30-year-old man with no dependents. He was employed by Wyong Shire Council as a temporary gardener’s assistant from 13 August 2001 until 1 October 2001 and then as a temporary water and sewerage labourer from 2 October 2001 to 30 August 2002. Mr Paterson claims that he injured his back on 23 August 2002 when doing some light work shovelling dirt and tar to fill in potholes on the road. He returned to work and shortly afterwards, experienced pain in the back going down both legs which lasted for approximately two minutes. He did not return to work after this incident and was subsequently sacked by his employer. He continues to suffer pain and has not worked since the incident.
The parties filed a number of medical reports. Mr Paterson relies upon the specialist reports of Dr Collins, Physician, who opined that his condition is “probably related to the nature and conditions of his work”.
The Appellant Employer relies upon the specialist report of Dr Bornstein, Orthopaedic Surgeon, dated 18 March 2003 who opined that he was partially incapacitated for work and could not do the full duties of a labourer and that Mr Paterson’s employment was not a substantial contributing factor to his injury. The Appellant Employer also relied upon the report of Dr Khan, Surgeon, dated 2 September 2002.
The Injury Error
The Appellant Employer submits that the Arbitrator erred in making an award on the basis that it was conceded by the Appellant Employer that injury was not in dispute, when in fact injury was vigorously contested at the arbitration hearing. The Appellant Employer submits that the two questions of ‘injury’ and ‘substantial contributing factor’ were in dispute before the Arbitrator.
The Respondent Worker submits that it is clear from the medical evidence that Mr Paterson suffered a work related injury on 23 August 2002 and that the issue before the Arbitrator was whether employment was a substantial contributing factor. This view is supported by reference to the parties’ medical reports: Dr Collins, Dr Khan and Dr Bornstein.
I find the Appellant Employer’s submission on this ground confusing. While arguing that the Arbitrator failed to determine ‘injury’ as a matter of fact, it also submits that the Arbitrator deals with this issue in the reasons, albeit encapsulated in the issue of whether his employment was a ‘substantial contributing factor’ to it. The Appellant Employer’s complaint appears to be more that the Arbitrator’s findings and reasons on both issues are inadequate.
The Arbitrator refers, at paragraph 8 of the Reasons, to a concession made by the Employer at the hearing, namely, that ‘the only real issue in dispute was whether the Applicant’s employment with the Respondent was a substantial contributing factor to the injury’. The Appellant Employer denies that such a concession was made.
Section 9A(1) of the Workers Compensation Act 1987 (‘the 1987 Act’) provides that:
“No compensation is payable under this Act in respect of an injury unless the employment concerned was a substantial contributing factor to the injury”.
In considering the application of section 9A(1) to the facts of the particular case it is essential that an Arbitrator first be satisfied that the worker has suffered an ‘injury’, as defined in section 4 of the 1987 Act. As no record of the arbitral proceedings exist I do not know if it was conceded that this was not in dispute in this matter. In any event, an Arbitrator should clearly state the relevant findings of fact in relation to ‘injury’ before embarking on a consideration of the application of section 9A, in particular, the factors set out in section 9A(2) that require an analysis of the particular facts.
On balance, I am of the view that the Arbitrator did make the necessary finding as to ‘injury’ required by sections 4 and 9A of the 1987 Act, being the injury to Mr Paterson’s back that occurred on 23 August 2002. There was some confusion in the recitation of the evidence, because of reference to a prior injury to Mr Paterson’s hip, and because he appears to have changed the nature of the claim from one of frank injuries to the nature and conditions of Mr Paterson’s employment (this is discussed below). The ‘Application to Resolve a Dispute’ filed in the Commission stated that injuries to the back and left hip were the subject of the claim. The medical evidence confirms that the injury to Mr Paterson’s left hip resolved after treatment. The medical evidence is also fairly consistent on the existence of demonstrable pathology, supported by radiological evidence, as to an injury to Mr Paterson’s back. The reasons at time refer to ‘injury’ and at other times ‘injuries’.
While the reasons suffer from some inadequacy in setting out the facts and applicable law in relation to the finding of injury, it is not such that the decision itself should be set aside. The Arbitrator’s decision must be read as a whole (Beale v GIO (NSW) (1997) 48 NSWLR 430 at 444) and without combing it for error (Minister for Immigration and Multicultural Affairs v Wu Shan Liang (1996) 185 CLR 259). While the Arbitrator did not clearly discuss the evidence in terms of his finding as to ‘injury’, the reasons for so finding are evident from reading the decision. When read as a whole, it is evident that the ‘injury’ upon which the Arbitrator made his determination is the injury to Mr Paterson’s back, which occurred on 23 August 2002. In this matter the Arbitrator sets out the facts under the heading ‘the injury and nature of the claim’ (paragraphs 17-20). He expressly makes a finding as to injury in paragraph 51 under the heading ‘SUMMARY’ where he states, ‘On 23 August 2002, the Applicant received an injury to his back arising out of or in the course of his employment as a Labourer with the Respondent’. The Arbitrator refers to this particular injury and the medical opinion in relation to it at a number of points in the decision - see paragraphs 3, 19, 21, 23, 26, 28, 30, 33, 34, 36, 43 and 51. The orders made determine liability as from the date of the worker’s injury to his back, and award weekly compensation accordingly.
The Procedural Fairness Error
The Appellant Employer submits that it was taken by surprise when the Arbitrator erroneously based his award and findings on a ‘nature and conditions’ claim when two separate injuries were stated on the Application to Resolve a Dispute. The Appellant Employer claims to have understood the dispute as one relating to the ‘frank injury’ of 23 August 2002, not relating to the nature and conditions of Mr Paterson’s employment with the Appellant, from 13 August 2001.
The Respondent Worker submits that the evaluation of causation and diagnosis are matters for expert medical evidence and not for assertion by the Appellant Employer. It submits that the Appellant Employer seeks to “convert the claim form and application to forms of strict pleading”. The Respondent Worker argues that the current scheme for the determination of claims is not bound by the strict rules of evidence and that the Arbitrator correctly informed himself as required by section 354(2) of the 1998 Act and section 9A of the 1987 Act.
The Respondent Worker’s submissions as to the nature of the Commission’s proceedings are entirely correct. The Commission has noted in a number of decisions that the system of ‘pleadings’ associated with court processes is not appropriate in a less formal and technical jurisdiction. I discussed this issue in Far West Area Health Service v Radford [2003] NSW WCC PD 10 as follows:
“The system of pleadings is common in civil proceedings in the adversarial system of litigation in the courts. Pleadings are written statements, in a concise, logical and legal form, of the facts, which constitute a party’s cause of action or defence (Halsbury’s Laws of Australia (Butterworths, Volume 20 [325-3205])). Their function is to define the issues the parties are asking the court to determine, to inform the parties as to what facts have to be proven at trial, and to assist in determining the conduct of the trial. They are intended to bind the parties to the issues and facts contained in them. The system of pleadings in the courts has not been without its criticisms. These include concern about their complexity and the barrier they present to unrepresented litigants, the questionable accuracy of factual assertions contained in them (Jamieson & Brugmans (1993) 116 ALR 193), the mix of questions of fact and law they frequently raise and their ineffectiveness at truly narrowing the issues between the parties.
The system of pleadings common to adversarial proceedings in the courts does not have the same role in the Commission. It is trite but necessary to reiterate that the Commission is not a Court. It is an independent statutory tribunal whose powers and functions are set out in the Workplace Injury Management and Workers CompensationAct 1998 (the Act). The practice and procedure whereby the issues are defined in a dispute must be determined in accordance with the Commission’s statutory objectives. These objectives are set out at section 367 of the Act as follows:367Objectives of the Commission
(1)The Commission has the following objectives:
a.to provide a fair and cost effective system for the resolution of disputes under the Workers Compensation Acts,
b.to reduce administrative costs across the workers compensation system,
c.to provide a timely service ensuring that the workers entitlements are paid promptly,
d.to create a registry and dispute resolution service that meets worker and employer expectations in relation to accessibility, approachability and professionalism,
e.to provide an independent dispute resolution service that is effective in settling matters and leads to durable agreements between the parties in accordance with the Workers Compensation Acts,
f. to establish effective communication and liaison with interested parties concerning the role of the Commission.
(2)In exercising their functions, the members of the Commission must have regard to the Commission’s objectives.
In the informal, less technical environment of the Commission it is not necessary or desirable to rely upon strict pleadings to define the issues between the parties. The Act provides a comprehensive statutory scheme for the making of claims, substantiation of claims, acceptance or rejection of liability, expedited assessment of claims, and the determination of medical issues. The dispute resolution processes in the Workers Compensation Commission, including appeals, are the final step in this scheme. When the parties reach the Commission the issues that are in dispute between them should be clear. This is not to say that some issues will not assume greater significance than others in the proceedings, or that others may be resolved after the dispute is lodged in the Commission and before the Arbitrator must make a decision.
There are a number of ways in which the issues between the parties to a dispute lodged in the Commission are defined, without the need for formal pleadings. Firstly, they should be clearly articulated in the Application and Reply. Second, the identification and elucidation of the key issues in dispute are the primary functions of the Arbitrator and should occur at the first telephone conference between the parties, as set out in the Registrar’s Guideline to the Conciliation and Arbitration Process in the Commission. At this early stage the Arbitrator also reviews the evidence of each party relevant to the issues. In many cases the issues will be narrowed, with some resolved by conciliation, so that the course of the proceedings is directed only to those issues truly remaining in dispute. Third, the parties have a further opportunity to identify and narrow the issues in the informal environment of the conciliation and arbitration hearing. These processes essentially fulfill the same function as formal pleadings while at the same time being more accessible and not disadvantaging the self-represented person unable to prepare formal pleading documents.”
In this matter the medical evidence from both parties was reflective of a consideration of the facts of the back injury, how it occurred and the nature of Mr Paterson’s work. It is in this context that Dr Collins suggests that the back injury related to the characteristics of his work. To insist that the injury be ‘pleaded’ as a ‘nature and conditions’ claim or a ‘frank’ injury, where the facts are in evidence and have been the subject of expert medical opinion, does not assist in the resolution or determination of the dispute. Procedural fairness does not demand that the injury be ‘pleaded’ in this way, but that the Respondent is aware of the facts of the case and the claims that it has to meet, and has a reasonable opportunity to do so. In this matter the claim was for payment of weekly compensation and medical expenses pursuant to the 1987 Act, and the Appellant Employer had the opportunity to collect and present its evidence in relation to that claim.
The Appellant Employer’s argument that it was disadvantaged by the late ‘nature and conditions’ submission appears misconceived in any event. It was agreed that the ‘Application to Resolve a Dispute’ initially identified two frank injuries to support the claim. The ‘hip injury’ allegedly resolved and the worker claimed ongoing incapacity due to the back injury. The medical reports of both parties address the consequences of the ‘frank injury’ to the worker’s back. It is Dr Collins, for the Respondent Worker, who raises the issue of the contribution of the ‘nature and conditions’ of Mr Paterson’s employment to his back injury and ongoing incapacity. While the Arbitrator notes that the Respondent Worker’s legal representative submitted, at a late stage of the proceedings, that the injury could be understood as both a ‘frank’ injury and a ‘nature and conditions’ claim, this does not appear to be the basis upon which the Arbitrator determined the matter. The Arbitrator found that a ‘frank injury’ to the worker’s back occurred on 23 August 2002. I do not accept that the Appellant Employer was, in fact, disadvantaged by the late submissions as to the basis upon which the worker sought to argue the claim.
This ground of appeal is not made out.
DECISION
The decision of the Arbitrator is confirmed.
COSTS
The Appellant Employer has been unsuccessful in the appeal and the costs fall to be determined according to Part 8, Division 3 of the 1998 Act. Section 345 provides as follows:
345Costs penalties where appeal unsuccessful
(1)On an appeal from the Commission constituted by an Arbitrator to the Commission constituted by a Presidential member:
(a) if the appellant is the claimant and is unsuccessful on the appeal, the Commission must not make an order for the payment of the appellant’s costs on the appeal by any other party to the appeal, or
(b) if the appellant is an insurer (other than a licensed insurer that maintains a statutory fund under the 1987 Act) and is unsuccessful on the appeal, the Commission may order the insurer to pay to the Authority for payment into the WorkCover Authority Fund an administration fee of $1,000 or such other amount as may be prescribed by the regulations.
(2)If the appellant in any such appeal is a licensed insurer that maintains a statutory fund under the 1987 Act and is unsuccessful on the appeal:
(a)the insurer’s costs on the appeal, and
(b)the costs of any other party to the appeal that the insurer is ordered to pay, are not to be paid out of the statutory fund.
(3)If an appeal concerns lump sum compensation, weekly payments of compensation or medical expenses compensation, the appellant is considered to be unsuccessful on the appeal unless the decision on appeal results in a change in favour of the appellant in the amount awarded or ordered to be paid in the decision appealed against of at least $5,000 (or such other amount as may be prescribed by the regulations) and at least 20% of the amount awarded or ordered to be paid.
(4)An administration fee that an insurer is ordered to pay is recoverable as a debt due to the Authority.
(5)The Registrar is to notify the Authority of an order to an insurer under this section to pay an administration fee.
The Appellant Employer is to pay the costs of the appeal.
Dr Gabriel Fleming
Deputy President
26 July 2004
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DR GABRIEL FLEMING, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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