Yun Fu Wang v Botany View Hotel Limited
[2008] NSWWCCPD 25
•26 February 2008
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Yun Fu Wang v Botany View Hotel Limited [2008] NSWWCCPD 25
APPELLANT: Yun Fu Wang
RESPONDENT: Botany View Hotel Limited
INSURER:GIO Workers Compensation Limited
FILE NUMBER: WCC 3530-07
DATE OF ARBITRATOR’S DECISION: 3 August 2007
DATE OF APPEAL DECISION: 26 February 2008
SUBJECT MATTER OF DECISION: Section 352(4) of the Workplace Injury and Workers Compensation Act 1998; leave to appeal; section 9(A) of the Workers Compensation Act 1987.
PRESIDENTIAL MEMBER: Acting Deputy President Kevin O’Grady
HEARING:15 February 2008
REPRESENTATION: Appellant: In person, unrepresented.
Respondent: Sparke Helmore.
ORDERS MADE ON APPEAL: 1. Leave to appeal the Arbitrator’s decision dated 3 August 2007 is refused.
2. No order as to costs of this appeal.
BACKGROUND TO THE APPEAL
On 2 October 2007 Yun Fu Wang (‘the Appellant’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 3 August 2007.
The Respondent to the Appeal is Botany View Hotel Limited (‘the Respondent’).
The Appellant, who is presently 63 years of age, commenced employment with the Respondent in April 1998 as a Cleaner. The Appellant alleges that on the morning of 9 August 2000, whilst carrying a load on his shoulder in the course of his employment with the Respondent, he slipped on a banana peel and fell to the ground striking his head. The Appellant further alleges that he then stood up however fell again to the ground at which time he lost consciousness.
The Appellant was conveyed by ambulance to Royal Prince Alfred Hospital and was admitted for treatment and investigation following which, on 11 August 2000 he was discharged. On 13 August 2000 the Appellant was admitted to St. George Hospital, at which time he was suffering headaches and was vomiting. He was discharged on 27 August 2000. By reason of alleged disabilities the Appellant remained off work until his return to duties with the Respondent on 7 December 2000. The Appellant resumed his normal duties and continued performing that work until 8 January 2001 at which time he was dismissed by his employer following an alleged breach of security procedures in the course of his work. Following his dismissal the Appellant has remained off work and has alleged ongoing incapacity. It appears that the Appellant had presented a claim for workers compensation benefits to his employer and its insurer prior to the date of his dismissal. Following investigation of the circumstances of the Appellant’s alleged injury that claim was denied by the employer and its insurer.
Following his dismissal and the rejection of his claim for compensation benefits the Appellant has sought to resolve the dispute by Application to the Commission. The Appellant’s first Application before the Commission (matter WCC18534-04) was registered with the Commission in 2004. That Application came before an Arbitrator for determination on 3 March 2005 at which time, over the objection of the Appellant, the Application to Resolve a Dispute (ARD) was dismissed by order of the Commission. That decision of the Arbitrator was the subject of an Application by the Appellant for Leave to Appeal. That Application was, by consent, discontinued on 4 September 2006. It is to be noted that the parties on that occasion filed documents with the Commission which included an acknowledgement that the Arbitrator’s decision dated 8 March 2005 ordering dismissal of the proceedings was a declaration by her that the matter was a nullity and that it be struck out. The terms of that agreement enabled the Appellant to pursue his rights by way of a further Application.
The Appellant, on 15 May 2007 registered a fresh ARD with the Commission’s Registry. That Application alleged a work injury to have occurred on 9 August 2000. The description of the subject injury is stated at Part 4 of that Application as:
“Subarachnoid concussion, injuries in neck, shoulder, ankle.”
The Appellant’s claim was in respect of weekly compensation benefits, lump sums in respect of alleged permanent impairment/loss as particularised in Part 5.7 of the Application, lump sum in respect of alleged pain and suffering and reimbursement of medical, hospital and rehabilitation expenses.
A Reply to the Appellant’s ARD was filed on behalf of the Respondent. That Reply disputed the Appellant’s entitlement to compensation benefits and the basis of the denial of liability was fully particularised at Part 3 of that document. The Reply disputed, inter alia, that the Appellant had suffered injury as alleged and it was stated that the Appellant’s employment was not a substantial contributing factor to the injury suffered by the Appellant.
The Appellant’s Application came on for hearing before an Arbitrator on 16 July 2007 and a Certificate of Determination issued on 3 August 2007.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’ dated 3 August 2007 records the Arbitrator’s orders as follows:
“1. There is an award for the Respondent.
2. There is no order as to costs.”
PRELIMINARY MATTERS
Absence of Transcript
A sound recording was made of the proceedings conducted before the Arbitrator on 16 July 2007. Notwithstanding that fact a transcript of proceedings is not available. Investigations conducted on behalf of the Commission have established that the relevant sound file was “overridden due to human error when processed”.
There have, in the past, been a number of instances where appeals have been brought before a Presidential Member in circumstances where, for various reasons, there was an incomplete record of the proceedings from which the appeal was brought. The absence of such transcript was considered by the Court of Appeal in the matter of Aluminium Louvres and Ceilings Pty Limited v Xue Qin Zheng [2006] NSWCA 34 (‘Zheng’). In my view the decision of the Court in Zheng establishes that, having regard to both the legislative framework governing the conduct of proceedings before the Commission and the application of general principle, there exists a duty upon an Arbitrator to make a record of the evidence during the arbitration hearing. The absence of such transcript was there addressed by Bryson JA (with whom Handley JA and Bell J agreed) where it was stated (at 32):
“….This is a serious shortcoming, because it greatly impedes the right of appeal and the due exercise of powers of the Presidential member under s.352; and also impedes the conduct of a further appeal under s.353. According to circumstances, the absence of a sound recording could fairly readily lead a Presidential member to a decision to require a rehearing; although that result would not be automatic.”
In the present matter it is necessary to determine whether the absence of a transcript of the proceedings so impedes the conduct of this appeal that, rather than proceeding by way of review, there should be a requirement for a new hearing.
It is of significance that neither the Appellant nor the Respondent have suggested that the absence of the transcript in any way impedes proper disposition of this appeal. It is also relevant to note that the Arbitrator, in his Reasons for Determination (‘Reasons’), which accompanied the Certificate of Determination, included a notation that no oral evidence was given before him (paragraph 14 of Reasons) and, further, those Reasons (at paragraph 15) contain a summary of the documentary evidence which was before him. Those Reasons also contain (at paragraphs 42 – 44 inclusive) a brief summary of the submissions put at the hearing on behalf of each party.
It is important, in my view, to note that the precise state of the evidence before the Arbitrator was dealt with during the course of a hearing of this appeal conducted on 15 February last at which time each party appeared. Agreement was reached between the parties as to the state of the evidence as it was received by the Arbitrator and further detail concerning this matter appears below.
It is my view that, notwithstanding the absence of a complete record of proceedings, a just determination of the dispute between the parties can be attained. I have reached this conclusion having regard to all the circumstances and in particular agreement with respect to the state of the evidence, the absence of any objection by either party to proceeding in the absence of such transcript, the Arbitrator’s summary of submissions contained in his Reasons and the fact that no oral evidence was adduced before the Arbitrator. I consider there is no impediment to proceeding with this appeal.
DOCUMENTATION BEFORE THE COMMISSION
A feature of this appeal which distinguishes it from the vast majority of matters which come before the Commission for determination is the significant number of documents which have been lodged for registration with the Commission’s Registry, in particular since the date of determination by the Arbitrator. The Appellant has not, since September 2007, had the benefit of legal representation and he has attended to the conduct of this appeal on his own behalf. Since the date of the Arbitrator’s determination and up until 10 December 2007 voluminous documents have been lodged by or on behalf of the Appellant with the Registry on at least seven occasions. It is to be noted that there has been little regard when such documents have been lodged to the relevant legislation and rules governing conduct of appeals before the Commission. I further note that there is an absence of evidence before the Commission concerning service by the Appellant upon the Respondent’s representatives of copies of most of the documents which have from time to time been lodged with the Registry.
ISSUES IN DISPUTE
Having regard to the state of the documentation which is before the Commission it is difficult to discern with precision the grounds upon which the Appellant seeks to challenge the determination of the Arbitrator. The Appellant’s Application for Leave to Appeal filed on 2 October 2007 has, as noted above, been the subject of a Reply filed on behalf of the Respondent. It is reasonably clear having regard to the content of material properly before the Commission and the submissions put on behalf of each party that the issue in dispute is whether the Arbitrator erred in his finding that the Appellant’s employment was not a substantial contributing factor to any relevant injury.
HEARING
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) enables conduct of an appeal such as the present by the Commission without holding any conference or formal hearing. Such procedure is adopted in the vast majority of matters which have come before the Commission for determination on appeal. Both the Appellant and the Respondent have indicated in documentation filed with the Registry that they consent to the matter being determined without the conduct of any conference or formal hearing.
Notwithstanding the parties’ willingness to proceed without the need for a hearing I was not satisfied that sufficient information had been supplied in connection with the proceedings to enable such procedure. In the circumstances the conclusion was reached that the appropriate course to adopt was that of a formal hearing and that hearing was fixed for 15 February 2008 at Sydney.
At that hearing the Appellant was unrepresented and appeared in person. The Commission arranged for the presence of a qualified Interpreter at the hearing to assist the Appellant during the course of hearing. Mr Baker of Counsel appeared on behalf of the Respondent at the appeal.
At the hearing the Appellant provided supplementary written submissions contained in two separate documents and, to an extent, supplemented written submissions by way of oral argument. Supplementary oral submissions were put on behalf of the Respondent by Counsel. A transcript of those proceedings is available on the Commission file.
Before proceeding to deal with the merits of the appeal, the parties were invited to clarify matters concerning service of documents and the state of the evidence before the Arbitrator. No agreement was reached between the parties with respect to the question as to what documents had been properly served by the Appellant on the Respondent’s representatives. Notwithstanding that absence of agreement it is clear that the Respondent had received the Appellant’s Application with respect to this appeal filed on 2 October 2007 and a Notice of Opposition to Appeal was registered with the Registry on its behalf on 21 November 2007. The Respondent acknowledged (in a letter dated 11 December 2007 from the Respondent’s Solicitors to the Commission, which forms part of the Respondent’s submissions at the hearing) that the Appellant’s Submissions dated 5 December 2007 and some of the attached documents had been received. It appears that those and other documents had been forwarded to the Respondent’s Solicitors by the Registry given that the Appellant was unrepresented. Attached to the Appellant’s Submissions lodged with the Commission on 5 December 2007 were a large number of documents, many of which had been lodged with the Commission on earlier occasions. Among those documents were a report from Dr Peter Conrad, Specialist Surgeon, dated 19 November 2007, a report of Dr Ernest Tam, Consultant Physician and Geriatrician, dated 5 November 2007 and a report from Dr John M F Grant dated 18 March 2004 which reports had not been served upon the Respondent. Counsel for the Respondent was given an opportunity during the course of hearing to examine the last mentioned three medical reports following which it was submitted that objection was taken to the admission of those reports of Dr Conrad and Dr Tam into evidence. That objection was taken not only by reason of the stated failure of the Appellant to serve copies upon the Respondent but also upon the basis that the formal requirements concerning the admission of fresh evidence had not been complied with by the Appellant. The Respondent’s position with respect to the state of the documentation lodged with the Commission is succinctly stated in the aforementioned correspondence dated 11 December 2007 (which, as noted, formed part of its Submissions in this appeal) where it was stated:
“The Respondent submits that apart from the written submissions made by the Applicant on 5 December 2007, all of the above documents should be disregarded by the Commission when determining the appeal. In addition, the Respondent submits the Appellant was only granted leave to file further submissions by 5 December 2007 which we do not consider extends to what appears to be new evidence attached to such submissions.”
There being a degree of uncertainty as to the state of the evidence admitted before the Arbitrator the parties were invited at the hearing to reach agreement as to what documents were in evidence. Whilst the Arbitrator (at paragraph 15 of Reasons) notes both exclusion and inclusion of particular material, the description that appears there is not exhaustive of the material which was in evidence before him. It was agreed between the parties that all those documents attached to the Appellant’s original Application registered with the Commission on 15 May 2007, excluding two reports from Dr Michael Fearnside (dated 25 August 2006 and 24 March 2006) and a medical report of Dr Endrey-Walder (dated 22 July 2003), were admitted into evidence. In addition it was agreed that the documents attached to the Appellant’s Application to Admit Late Documents filed on 28 May 2007 and the Respondent’s documents attached to its Application to Admit Late Documents filed 25 June 2007 were in 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 amount of compensation at issue on the appeal is such that the subject matter of the appeal meets the relevant threshold requirements of section 352(2) of the 1998 Act which must be met before a grant of leave to appeal may be made by the Commission.
Section 352(4) of the 1998 Act provides:
“(4) An appeal can only be made within 28 days after the making of the decision appealed against.”
Part 16.2 of the Workers Compensation Commission Rules 2006 (‘the Rules’) governs procedural requirements with respect to appeals against an Arbitrator’s decision. Rule (11) of that Part provides:
“(11) 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 Appellant’s Application was filed with the Registry of the Commission on 2 October 2007. The Decision appealed against was made, in terms of section 352(4) of the 1998 Act, on 3 August 2007. It can be seen that the Appellant’s Application is in breach of the time requirements in that it was filed 32 days after expiration of the period fixed by the 1998 Act and the Rules (Part 16.2(1)). However the chronology relevant to the conduct of this appeal is, to an extent, complicated by the fact that the Commission record reveals that attempts were made to initiate an appeal prior to filing of the present Application on 2 October 2007. It appears that an Application for Leave to Appeal was filed on behalf of the Appellant by his former Solicitors, Messrs Zhang Shijing Lawyers on 31 August 2007. It further appears that, on 5 September 2007, that firm of Solicitors filed a document in the form of an Application to Resolve a Dispute on behalf of the Appellant which was in a form similar to the ARD dealt with by the Arbitrator.
With respect to the documents filed on 5 September 2007 it is clear that a misconception as to appropriate procedure occurred at the time of preparation and filing of same. With respect to the earlier document filed on 31 August 2007 there is no evidence before the Commission that such document was served upon the Respondent’s representatives and indeed the Respondent has put in submissions on this appeal that it has not been served with those documents.
The Appellant, since the withdrawal of his former Solicitors, has on a number of occasions been sent correspondence by the Commission’s Registry which has highlighted certain procedural requirements. It appears that as a result of such correspondence the Appellant, on 13 October 2007, filed a Certificate of Service with respect to service of documents filed on 2 October 2007 upon the Respondent and the Respondent’s Insurer. There is also a copy of correspondence dated 5 December 2007 on the Commission’s file being from the Commission’s Registrar to the Appellant which, in part stated:
“Additionally we would like to inform you that in light of the fact that you are unrepresented and that no certificate of service was received, we have forwarded a copy of the documents filed on 17 October 2007, 23 October 2007, 21 November 2007, 28 November 2007 and 5 December 2007 to the respondents solicitors, Sparke Helmore.”
It appears from the documents before the Commission that the Appellant took no steps to pursue the Application for Leave to Appeal which was filed by his former Solicitors on his behalf on 31 August 2007.
Notwithstanding the enormous volume of material which has, from time to time, been filed by the Appellant in the conduct of this appeal it is clear that there has been no strict compliance with the requirements of Part 16.2 of the Rules in particular Rules (11) and (12). Any such omission with respect to compliance with the Rules may be explained by the fact that the Appellant is unrepresented. It is clear, having regard to the tenor of correspondence forwarded by the Appellant to the Registry from time to time, that the Appellant, notwithstanding efforts on the part of the Registry to assist with respect to procedural requirements, did not have a full appreciation of the requirements stipulated by the Act and the Rules. It is clear, however, that the Appellant seeks an extension of time for making this appeal.
The discretion to grant such an extension of time may only be exercised once a party satisfies the Commission, in exceptional circumstances, that to lose the right to seek leave to appeal would work demonstrable and substantial injustice (see Rules Part 16.2 Rule (11)).
In the present matter a determination as to whether “exceptional circumstances” exist which in fact would enliven the Commission’s discretion to extend time may be determined having regard to all known and undisputed facts. Leaving aside the question as to the existence or otherwise of such exceptional circumstances, the manner in which any such discretion is to be exercised may be guided by the often cited passage from the judgment of McHugh J in Gallo v Dawson (1990) 93 ALR 479 (‘Gallo’):
“The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194-5; 70 ALR 185. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871 at 872; Hughes at 263-4, Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has “a vested right to retain the judgment” unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201.” (at 480)”
It may be seen that, fundamental to the exercise of the Commission’s discretion to extend time are the questions as to whether there exist exceptional circumstances concerning non-compliance with the time requirements and, further, a consideration of the prospects of the Appellant succeeding in the appeal. This latter task, in the present circumstances, requires an initial consideration as to whether any of the material filed by the Appellant from time to time is to be admitted in evidence on this appeal as “fresh evidence”. This question requires a determination as to whether leave to adduce such evidence is to be granted to the Appellant pursuant to section 352(6) of the 1998 Act.
FRESH EVIDENCE
It must be stated at the outset that the procedural requirements with respect to Applications for the admission of fresh evidence on appeal as prescribed by Practice Direction No.6 have not been complied with by the Appellant. It is also clear following a perusal of the documents that, so far as can be ascertained, the vast majority of documents filed by the Appellant since commencement of this appeal amount to a duplication of material already before the Commission. Having regard to all the circumstances, in particular the fact that the Appellant was unrepresented, an attempt was made to elucidate matters during the course of hearing on 15 February 2008. It became apparent that the documents of significance which had been lodged with the Commission by the Appellant are those medical reports mentioned above at paragraph 22.
Notwithstanding non compliance with the requirements of the last mentioned Practice Direction, the Appellant at the hearing was given an opportunity to put submissions as to why there was a delay in obtaining and making available those medical reports. It is to be regretted that the Appellant was unable to provide any coherent explanation or reason for the delay.
A perusal of the reports of Dr Conrad and Dr Tam indicates that those reports are not merely an “update” with respect to qualified opinion or details of treatment. Each of those reports contained views expressed by the authors founded upon a history which was, in significant respects, different or more complete than that which was recorded in earlier reports compiled by them. I note in passing that the report of Dr Tam dated 31 August 2002 was put into evidence by the Respondent and reliance is placed upon the history there recorded.
It is my view that admission of those reports at this late hour would be plainly prejudicial to the Respondent. The probative value of the opinions of both Drs Conrad and Tam has, arguably, been significantly diminished by the amendment or elaboration of relevant history. This is so particularly having regard to the very substantial passage of time since the alleged injury in the year 2000. It is my understanding that the Respondent takes no objection to admission of the report of Dr Grant and in the circumstances I order that leave be granted to the Appellant to place before the Commission that report dated 18 March 2004. The Appellant’s application with respect to the reports of Drs Conrad and Tam is refused. In the absence of any explanation concerning the late provision of the many documents lodged with the Registry from time to time, any application for leave to adduce that material as fresh evidence must be refused.
DISCUSSION OF EVIDENCE AND FINDINGS
The Appellant, in a Statement made on 12 February 2007 which was attached to his ARD makes reference not only to the alleged injury in the course of his employment on 9 August 2000 but also states that he had been the subject of an assault on two separate occasions firstly 15 June 2000 and secondly on 8 August 2000. The Appellant states at paragraph 13 of that Statement:
“13.On 8th August 2000, some people assaulted me, but I did not lose consciousness and my head was not injured, so I came back home on my own.”
The Appellant’s description of the alleged work injury appears at paragraph 14 of that Statement:
“14.At 9 am on 9th August 2000, when I was doing my cleaning job outside Botany View Hotel, carrying a heavy bottle of bag (20k) on my shoulder, I ran into a banana peel and slipped hitting my head. The heavy bag hit on my basis (sic) skull and neck, and my ankle fragmented by slip. I stood up and put the bag into a rubbish bin and walked a few steps falling again on the footpath and lost consciousness. ….”
The Respondent does not dispute the fact that the Appellant collapsed whilst at work on the morning of 9 August 2000, however it is the Respondent’s case that such was the consequence of the assault sustained by the Appellant on the day before and that whilst an injury may have occurred in the course of the Appellant’s work, the employment was not a substantial contributing factor to the injury within the meaning of section 9A of the Workers Compensation Act 1987 (‘the 1987 Act’).
The Arbitrator, in the course of his Reasons, summarised the documentary evidence before him (paragraphs 15 – 30 of Reasons). Following that summary the Arbitrator concluded that there were two specific issues to be determined. Firstly (at paragraph 31):
“31. The first issue is whether the applicant suffered an injury arising out of his employment on 9 August 2000.”
The second issue identified by the Arbitrator (at paragraph 38 of Reasons) was:
“38. The second issue is whether the applicant’s employment was a substantial contributing factor to the injury sustained by him on 9 August 2000.”
In my respectful view the Arbitrator has misstated the first issue identified by him at paragraph 31. As above noted the Respondent did not dispute that an injury occurred “in the course of” the Appellant’s employment. That being the case the injury is, prima facie, compensable in that the injury falls within the definition prescribed by section 4(a) of the 1987 Act. The task for the Arbitrator was to determine whether, notwithstanding the occurrence of such injury in the course of employment, section 9A of the 1987 Act, properly applied to facts as found denied the Appellant entitlement to compensation. As to whether any injury “arose out of” the Appellant’s employment an examination of the facts as alleged, in particular the slipping on the banana skin, required examination by the Arbitrator.
The Arbitrator (at paragraph 35 of Reasons) makes reference to the decision of the Court of Appeal in Morris v George [1977] 2 NSWLR 552 (“Morris”). The Arbitrator stated:
“35. But in Morris –v- George (1977) 2 NSWLR 552, it was held, in a case where a worker was left by one work injury with a disability which is the sole cause of another injury received during the worker’s employment, the second injury can be said to have arisen in the course of the worker’s then current employment and also to have arisen out of the former employment. Applying this rational to the present case, if Mr. Wang sustained further injuries at work, then even though the sole cause of the second injury was the injury received the previous day when he was not at work, the second injury can be said to have arisen in the court [sic] of the worker’s then current employment and also to have arisen out of the incident the day before.”
The decision in Morris was concerned with the question as to whether incapacity can “result from” more than one injury. The matter was determined by the court at a time when, as the Workers Compensation Act 1926 (‘the 1926 Act’) then stood, there was no provision for apportionment of liability between employers. It is my respectful view that the Arbitrator has, to an extent, misconceived the nature of the dispute before him and the task which confronted him for determination. Simply stated, the Arbitrator’s conclusion (at paragraph 37 of Reasons):
“…that Mr. Wang has received an injury arising out of his employment with the respondent. There is a direct connection in that he was working at his job when he sustained the fall”
is not supported by sufficient reasons and in my opinion the facts require review to determine whether the Arbitrator’s ultimate determination was correct.
The Arbitrator has correctly noted that in a case such as the present it is important to closely examine the evidence contemporaneous with the subject fall (paragraph 18 of Reasons). The Appellant was conveyed by ambulance to Royal Prince Alfred Hospital immediately after the fall. The clinical notes of that hospital which are before the Commission contain a notation of principal diagnosis as being “post traumatic seizure due to basal skull fracture”. Relevant findings noted at that hospital included:
“56 year old male presented with seizure due to trauma to head. O/E L orbital bruising: neck pain. CT scan showed medial wall of (L) orbit; L frontal contusion.”
Notes made on 10 August 2000 at that hospital included the entry:
“56 male assault 2/7 ago. Late onset post traumatic fit. L frontal contusion.”
A copy of a Patient Report prepared by the Ambulance Service of New South Wales, the date illegible but clearly relating to attendance on the day of the subject fall, was attached to the Appellant's Application filed 2 October 2007.That document, being a poor copy, is difficult to read however the following matters are noted under heading “Chief Complaint”:
“C/T male fitting. O/A Police on scene....stating PT assaulted yesterday, was witnessed standing near garbage bins outside hotel, fell and began to fit. Pt an employee of Hotel, staff state PT Chinese/Mandarin origin.....little english spoken, unsure of....Havn't witnessed him fitting before. O/E Pt pale....contusions to face..Dry blood on left eyebrow and upper lid. Bystander able to translate PT'sccs...therapy.”
A report dated 1 October 2002 by Dr Roslyn Jones, Medico-Legal Officer of the Royal Prince Alfred Hospital is a summary of material held by that hospital with respect to the Appellant’s admission for treatment on 9 August 2000. The following is stated by Dr Jones:
“A history was elicited that the patient had been assaulted the previous day around the face. There was reportedly no loss of consciousness sustained. Mr Wang apparently had a grand mal seizure, biting his tongue on the day of presentation. There was no previous history of seizures.”
The evidence establishes that the Appellant, following his discharge from Royal Prince Alfred Hospital experienced headache and vomiting at his home and was admitted to the St George Hospital on 13 August 2000. The records of that hospital are before the Commission and the history as recorded is as follows:
“56 male. Recent alleged assault with post traumatic seizures. Discharged from RPA following observation. Now presents with headache and vomiting.”
The Appellant made a Statement to the NSW Police on 31 August 2000 concerning the assault which occurred the day before his admission to Royal Prince Alfred Hospital. That Statement includes the following description:
“…..
(h) He punched me six time. He punched me with both fists to both of my eyes, forehead, lip, my nose and temple, he also hit me above my left eye. This happened very quicker. When this happened I fell to the ground and the man ran away. He ran towards the Redfern Police Station. When I fell to the ground I noticed that blood was coming from my left forehead.”
A Statement made by Mr Robert Peter Murphy, the Licensee of the Respondent Hotel made on 25 February 2005 includes reference to Mr Murphy’s observation that the Appellant “had swelling and abrasions on his face which appeared to be the result of some type of assault on his person.” These observations were made prior to the Appellant’s collapse whilst working.
The Appellant, in support of his claim, relies upon the opinion of Dr Conrad as expressed in his report of 15 November 2002. Whilst that report contains a detailed history of the Appellant’s fall at work Dr Conrad did not have the benefit at that point in time of the history of an assault occurring the day before the alleged work injury.
The Respondent relies upon the report of Dr Tam, Consultant Physician, dated 31 August 2002. The Appellant was referred to Dr Tam by Dr Wong for consultation. It is significant to note that Dr Tam recorded a history of assaults sustained by the Appellant on two occasions, however no history of any work injury appears in that report. Dr Tam notes under the heading “Impression”:
“Mr Wang gave a history of being assaulted on or about 16 June 2000 with traumatic injury to the right shoulder, right upper arm, right lower limb and right ankle.
He was also assaulted on or about 8 August 2000 and he sustained traumatic head injury with fracture at the base of skull, some subdural haematoma, eye and orbital injury, dental injury and facial injury….”
The Respondent has placed before the Commission a copy of a Police Report concerning the August assault which was compiled on 31 August 2000 in which it was noted that the Appellant had been punched “six times to the head” and that the Appellant had “collapsed”.
A report of Dr Meng K Wong dated 29 September 2003 was relied upon by the Respondent. That document stated in part:
“Mr Yung Fu Wang was assaulted in June 2000 and treated in Royal Prince Alfred Hospital. He was again assaulted by a man in Redfern on 8/8/2000. CT scan in August 2000 showed a small fracture of medial wall of left orbit and left frontal contusion with a small amount of subarachnoid blood.
On 9/8/2000, at work, Mr Wang probably had a grand mal seizure, fell and injured himself. ….”
Dr Wong did not have any history of the Appellant slipping on a banana skin at work causing him to fall.
The Appellant’s argument on this appeal, so far as can be discerned, is that the Arbitrator’s conclusions of fact were against the evidence and against the weight of the evidence. Whilst the Appellant has not articulated his case in such terms it is clear from the lengthy submissions made that the Arbitrator’s factual conclusions were the subject of challenge.
It is the Respondent’s submission that the Arbitrator’s factual findings were sound in that they were open to him on the evidence and that, notwithstanding any error as to his process of reasoning, his ultimate findings of fact and application of relevant principle were correct and that his conclusion that the application of section 9A of the 1987 Act negates entitlement to compensation, because his employment was not a substantial contributing factor to his injury, should be upheld.
It is my view that the evidence establishes that the Arbitrator’s ultimate conclusion was correct when he stated (at paragraph 45):
“….. I am satisfied on the balance of probabilities that whilst the applicant suffered an injury in the workplace on 9 August 2000 the cause of that injury was the fact that he had sustained a severe assault on the evening of the day before, 8 August, 2000, that caused him to suffer a grand mal seizure which caused him to fall to the ground whilst carrying out his employment.”
Having regard to the findings of fact made by the Arbitrator it is clear that, following a proper application of principle and relevant provisions of the 1987 Act, the Applicant suffered injury in the course of his employment on 9 August 2000 being a fall occasioned by reason of a post traumatic seizure. That is, the seizure which occurred at work and was diagnosed by those treating the Appellant at Royal Prince Alfred Hospital on 9 August 2000 was directly related to the head injury he sustained on 8 August 2000 during the assault. The Appellant’s employment was not a substantial contributing factor to that fall or any of the proven consequences of same. In the circumstances any injury so received by the Appellant is not compensable under the 1987 Act.
It may be seen that, following a review of the facts and application of principle, I have concluded that the Arbitrator’s ultimate conclusions were correct. It is therefore plain that the appeal would fail.
Whilst I am of the view that all the circumstances prevailing prior to the filing by the Appellant of his Application on 2 October 2007 may form the basis to argue that “exceptional circumstances” in a relevant sense existed causing delay to the pursuit of the appeal, my conclusion that the appeal has no merit leads me to the inevitable conclusion that leave must be declined.
DECISION
Accordingly leave to appeal the Arbitrator’s decision date 3 August 2007 is refused. The Application for Leave to Appeal fails.
COSTS
The Respondent in its written submissions sought an order for costs as against the Appellant in the event that the appeal failed. The Commission has a wide discretion with respect to costs which is granted by the provisions of section 341 of the 1998 Act (see K-mart Australia Limited v Falzon [2006] NSWWCCPD 283 per Snell ADP). I am of the opinion that there should be no order as to costs in the present matter.
Kevin O’Grady
Acting Deputy President 26 February 2008
I, MELANIE CURTIN, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O’GRADY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
4
3
0