Ahmed v Transfield Constructions Pty Ltd
[2006] NSWWCCPD 318
•23 November 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Ahmed v Transfield Constructions Pty Ltd [2006] NSWWCCPD 318
APPELLANT: Gulfam Ahmed
RESPONDENT: Transfield Constructions Pty Ltd
INSURER:Transfield Constructions Pty Ltd
FILE NUMBER: WCC7122-03
DATE OF ARBITRATOR’S DECISION: 27 April 2006
DATE OF APPEAL DECISION: 23 November 2006
SUBJECT MATTER OF DECISION: Treatment of the evidence; certification of a matter as ‘complex’ for the assessment of costs
PRESIDENTIAL MEMBER: Acting Deputy President Robin Handley
HEARING:On the papers
REPRESENTATION: Appellant: Buttar Caldwell & Co
Respondent: Hicksons Lawyers
ORDERS MADE ON APPEAL: The Arbitrator’s decision dated 27 April 2006 is confirmed.
There is no order as to the costs of this appeal.
BACKGROUND TO THE APPEAL
On 19 May 2006, Gulfam Ahmed sought leave in the Workers Compensation Commission (‘the Commission’) to bring an appeal against the decision of an Arbitrator dated 27 April 2006. The Respondent to the appeal is Transfield Constructions Pty Ltd (‘Transfield’), which is a workers compensation self-insurer.
On 17 August 2005, I revoked part of the decision of an Arbitrator dated 12 August 2004 dealing with the payment of weekly compensation to Mr Ahmed and remitted that part of the decision to an Arbitrator to be redetermined in accordance with the law, but otherwise confirmed the remainder of the decision dealing with the payment of reasonable medical expenses, compensation for permanent impairment, and costs: Transfield Constructions Pty Ltd v Ahmed [2005] NSWWCCPD 88. At paragraphs 2 to 5, I stated:
“2. ... Mr Ahmed was born in Pakistan on 28 March 1971 and migrated to Australia arriving on 19 May 2000. He is married with four dependent children. Mr Ahmed commenced employment with Transfield as a process worker in its Corrosion Protection Division in October 2000. His duties involved hanging pieces of iron on a jig. He stated that in early November 2001, he began experiencing pain in the lower side of his back whenever lifting “excessive weights”. While working on 26 November 2001, he experienced severe pain that he reported to his safety officer on 28 November 2001 before going home due to the pain. When he returned to work on 29 November 2001, he was unable to “even stand for a few hours”. As a consequence, he was put on light duties until 21 December 2001, when he was made redundant as a result of the closure of the Corrosion Protection Division.
3. On 21 February 2003, Mr Ahmed’s ‘Application to Resolve a Dispute’ was received by the Commission in respect of the injury to his back on 26 November 2001 and Mr Ahmed’s claim for weekly compensation since 26 November 2001 to date and continuing, and his claim for compensation for permanent impairment and pain and suffering ...
4. An Arbitrator conducted a teleconference with the parties on 5 June 2003 and directed Mr Ahmed to submit to a medical assessment by an Approved Medical Specialist for the purpose of assessing the percentage permanent impairment of his lower back, legs and neck. Mr Ahmed was examined by Dr Ian Meakin, Orthopaedic Surgeon, on 19 August 2003. In Dr Meakin’s Medical Assessment Certificate of that date, he stated that Mr Ahmed’s x-rays dated 26 November 2001 showed:
“radiological evidence of degenerative change at the L4/5 and the L5/S1 facet joints … [and] degenerative changes in the T11/T12 disc space. It is my opinion that these radiological findings have absolutely pre-dated the patient’s injury.”
Dr Meakin assessed the permanent impairment of Mr Ahmed’s back at 15%, of which 10% was attributable to the injury on 26 November 2001. He found a nil percentage impairment in respect of Mr Ahmed’s legs and neck.
5. Mr Ahmed appealed against the Medical Assessment Certificate ... On 15 March 2004, the Appeal Panel confirmed the Medical Assessment Certificate, finding there was no demonstrable error in the Certificate ...”
I note that since this appeal decision, Mr and Mrs Ahmed’s fifth child has been born – on 9 March 2006. Mr Ahmed therefore now has a dependent spouse and five dependent children.
On 4 April 2006, a conciliation conference with the parties having proved unsuccessful, a different Arbitrator conducted an arbitration hearing, following which, on 27 April 2006, he issued the decision set out below.
THE DECISION UNDER REVIEW
The Certificate of Determination, dated 27 April 2006, records the Arbitrator’s orders as follows:
“1. That the Respondent pay the Applicant weekly benefits compensation under section 36 of the Workers Compensation Act 1987 at the rate of $580.29 from 26 November 2001 to 1 April 2002, with credit to be given to the Respondent for payments made in respect of weekly benefits from 26 November 2001 to date.
2. Award in favour of the Respondent in respect of weekly benefits compensation after 1 April 2002.
3. That in all other respects the Orders of the Commission of 12 August 2004 apply, including those in respect of costs.”
In the Statement of Reasons for his decision, the Arbitrator said, at paragraph 32:
“Having carefully considered all the available evidence, I am satisfied that on the balance of probabilities, the Applicant was able to return to pre-injury duties approximately four months after his injury of 26 November 2001, this being a date no later than March 2002. I am further satisfied that there is no evidence subsequent to the assessment of Dr Bodel which would persuade me to not accept the findings set out in his report of 25 January 2006 in respect of the Applicant’s ongoing incapacity for work, including any suggestion of incapacity subsequent to end March 2002 up until the present time. The Applicant’s submission is that the later evidence of Dr Adler, Specialist in Rehabilitation Medicine, in his report of 18 November 2004 suggests that the Applicant is entitled to the statutory maximum under section 40 of the 1987 Act as he has “a substantial reduction of his employability” in the open labour market, taking into account his “poor English language skills combined with the level of physical disability” – page 3. However, as I have already foreshadowed, this only becomes applicable if there is a finding of ongoing incapacity beyond the end of March 2002, which for the reasons given above is not the case here.”
ISSUE IN DISPUTE
The principal ground of appeal identified by Mr Ahmed’s solicitors is that:
“the Arbitrator erred in his decision by failing to take into account the Applicant’s medical history when determining the period of incapacity. The Arbitrator based his decision on the non-binding assessment of Dr Bodel, an Approved Medical Specialist of 25 January 2006 ... [and] failed to attach sufficient weight to Dr Adler’s report [dated 11 November 2004], an Approved Medical Specialist (AMS) as he did to Dr Bodel’s assessment.”
Mr Ahmed’s solicitors also submit the Arbitrator should have certified the matter as ‘complex’ for the purpose of the assessment of costs. The parties’ submissions are considered below.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) states:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can 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.
Neither party sought to adduce fresh evidence.
LEAVE
Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act. The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act. With regard to section 352(2), I am satisfied that the amount of compensation at issue is at least $5,000 and comprises more than 20% of the amount awarded by the Arbitrator. Accordingly, I am satisfied that the section 352 threshold has been met, and I grant leave to appeal.
SUBMISSIONS ON THE TREATMENT OF THE EVIDENCE
As stated above, Mr Ahmed’s solicitors submit that when determining the period of incapacity, the Arbitrator erred by basing his decision on the non-binding assessment of the Approved Medical Specialist (‘AMS’), Dr James Bodel, Orthopaedic Surgeon, dated 25 January 2006, and by failing to take into account Mr Ahmed’s medical history, in particular by failing to attach sufficient weight to the report of Dr R Adler, Specialist in Rehabilitation Medicine, dated 18 November 2004. Mr Ahmed’s treating doctor first referred Mr Ahmed to Dr Adler in March 2004. In his report, Dr Adler found Mr Ahmed “unfit for labouring or manual handling intensive employment ... there is permanent impairment of the back”.
Mr Ahmed’s solicitors submit that Dr Adler’s findings, being those of a Specialist in Rehabilitation Medicine and an AMS, should be preferred to Dr Bodel’s assumptions and generalisations in attempting to assess Mr Ahmed’s condition four years previously. Dr Bodel should have placed greater weight on Dr Adler’s assessment. Mr Ahmed’s solicitors submit that Mr Ahmed is entitled to ongoing weekly compensation pursuant to either section 37 or 40 of the Workers Compensation Act 1987 (‘the 1987 Act’).
Transfield submits that the Arbitrator provided an in-depth analysis of the medical evidence including that of Mr Ahmed. Dr Adler was not acting in the capacity of an AMS and there is no reason to prefer the opinion of a Specialist in Rehabilitation Medicine over that of an Orthopaedic Surgeon. Dr Bodel had all the available medical evidence before him including that of Dr T Mastroianni, Occupational Physician, dated 11 February 2003, who found Mr Ahmed to be fit for pre-injury duties.
EVIDENCE, DISCUSSION AND FINDINGS
Treatment of the evidence
The role of the Presidential Member on appeal is to review the Arbitrator’s decision as a whole. The review is not a rehearing. In this case, Mr Ahmed must demonstrate that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172; The King Island Company Limited v Deery [2005] NSWWCCPD 1) in order to enliven the Presidential Member’s power to interfere with the Arbitrator’s decision pursuant to section 352(7) of the 1998 Act. Where the weight accorded to the evidence by the Arbitrator is challenged, Deputy President Fleming’s comment in Knight v Eyles Nominees Pty Ltd [2004] NSWWCCPD 73, at paragraph 40, should be borne in mind:
“Interference with an Arbitrator’s discretionary judgement as to the weight of evidence should only be done where it is manifestly obvious that the discretion has so miscarried that it has not been exercised fairly and lawfully.”
I have reviewed the Medical Assessment Certificate issued by Dr Bodel, dated 25 January 2006, noting that pursuant to section 326(2) of the 1998 Act, his assessment is evidence but not conclusive evidence in these proceedings. Dr Bodel reviewed the medical evidence provided to him, including the reports of Drs Adler and Mastroianni referred to by the parties. The injury occurred on 26 November 2001. Clearly, Dr Bodel’s assessment of Mr Ahmed four years later required him to rely on earlier medical evidence, in addition to the results of his own examination, in making his assessment of Mr Ahmed’s capacity for work following the injury. Dr Bodel found:
“It appears that this gentleman probably did suffer a musculoligamentous strain at the time of his lifting incident at work. The plain x-rays done soon after the injury showed evidence of muscle spasm. This type of soft tissue injury should settle within three to four months of the date of injury, allowing a return to pre-injury duties.”
Dr Bodel found Mr Ahmed was: “currently capable of his pre-injury work on a full-time basis. He has no clinical sign of major structural damage which would prevent a return to pre-injury duties.”
I have also reviewed the report of Dr Adler dated 18 November 2004. Dr Adler did not have the benefit of an interpreter for Mr Ahmed, and noted having “problems obtaining a clear history from him”. Nor, it appears, did Dr Adler have access to Dr Mastroianni’s report, or the MAC issued by the AMS, Dr Ian Meakin, Orthopaedic Surgeon, dated 19 August 2003. In the section of his report headed “Diagnosis”, Dr Adler said:
“Mr Ahmed complained to me of low back pain, consistent with lower lumbar mechanical derangement possibly in part contributed to by aggravation of lumbar facet degenerative disease. There was no evidence of any nerve root injury. This is causing a high level of disability.”
Under the heading “Work Fitness & Employability”, Dr Adler said:
“Mr Ahmed is unfit to lift loads of more than 5 kg, or to perform repetitive bending tasks of below knee height. He would not be able to cope with activities that would demand frequent forceful pushing pulling motion. He is unfit for labouring or manual handling intensive employment.
There is a substantial reduction of his employability given his poor English language skills, combined with the level of physical disability. I am doubtful that he would be able to obtain employment as a consequence.”
Dr Mastroianni examined Mr Ahmed on 11 February 2003 with an interpreter present. Dr Mastroianni found Mr Ahmed to “have some degenerative facet joint disease, not work related. This would not prevent him from working”. Dr Mastroianni said Mr Ahmed “may have sustained a soft tissue strain, from which he has recovered”, and “has no work injury at present” and “is fit for normal duties”. I note that Dr Bodel, while referring to Dr Adler’s report and his assessment, agreed with Dr Mastroianni’s assessment.
It is clear from his Statement of Reasons that the Arbitrator gave proper consideration to Mr Ahmed’s solicitors’ submissions concerning the weight to be given to Dr Bodel’s assessment. Ultimately, the Arbitrator made a finding having considered the evidence before him. His summary of the relevant evidence and his reasoning process is properly set out in his Statement of Reasons, and I am not satisfied that he made any legal, factual or discretionary error in finding that Mr Ahmed was able to return to pre-injury duties not later than the end on March 2002. The Arbitrator’s decision must therefore be confirmed.
Certification of a matter as ‘complex’
Mr Ahmed’s solicitors also submitted that the Arbitrator failed to confirm that the matter was ‘complex’ so that costs could be awarded accordingly. Transfield made no submission on this issue.
Clause 84 of the Workers Compensation Regulation 2003 fixes the maximum costs recoverable by legal practitioners and agents at those set out in Schedule 6, except where otherwise provided in Part 19. Schedule 6 sets out the maximum costs recoverable in workers compensation matters by reference to the Compensation Costs Table (‘the Table’) at the end of the Schedule. The Table identifies particular activities or events with an item number.
The parties to a matter before the Commission may seek certification of the matter as ‘complex’ for the purpose of the assessment of costs under Item 4.10 of the Table. The activity/event described in column 2 of the Table for that Item is: “Attending and participating in a conference with an Arbitrator where the Arbitrator determines that the matter is complex and the matter proceeds directly to arbitration.” Thus, it is at the teleconference stage in the proceedings that the Arbitrator should provide such a certification, with the result that there is no conciliation stage and the matter proceeds directly to arbitration from the teleconference.
I note that in both the proceedings before the original arbitrator and now the Arbitrator whose decision is the subject of the current appeal, the proceedings have been the subject of a teleconference and have then been referred to a conciliation/arbitration hearing. In both instances, the parties participated in conciliation prior to the matter progressing to arbitration. Therefore, it was not open to either arbitrator to certify the matter as ‘complex’, and costs should therefore be assessed under Items 4.09 (“Attending and participating in a conference with an Arbitrator (other than an arbitration hearing or where Item 4.10 applies)”) and 4.11 (“Attending and participating in an arbitration hearing (other than where Item 4.10 applies ...)”), and not under Item 4.10. Thus, I also reject Mr Ahmed’s solicitors’ appeal in relation to this issue.
DECISION
The Arbitrator’s decision dated 27 April 2006 is confirmed.
COSTS
There is no order as to the costs of this appeal.
Robin Handley
Acting Deputy President
23 November 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ROBIN HANDLEY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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