Arup Pty Ltd v Wicks
[2009] NSWWCCPD 59
•1 June 2009
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| CITATION: | Arup Pty Ltd v Wicks [2009] NSWWCCPD 59 | ||||
| APPELLANT: | Arup Pty Ltd | ||||
| RESPONDENT: | Vanessa Wicks | ||||
| INSURER: | Allianz Workers Compensation (NSW) Limited | ||||
| FILE NUMBER: | A1-7541/08 | ||||
| ARBITRATOR: | Dr J. Keogh | ||||
| DATE OF ARBITRATOR’S DECISION: | 2 February 2009 | ||||
| DATE OF APPEAL DECISION: | 1 June 2009 | ||||
| SUBJECT MATTER OF DECISION: | Evidence and submissions misstated; need for revocation | ||||
| PRESIDENTIAL MEMBER: | Deputy President Kevin O’Grady | ||||
| HEARING: | On the papers | ||||
| REPRESENTATION: | Appellant: | Vardanega Roberts Solicitors | |||
| Respondent: | Peter Erman Solicitor | ||||
| ORDERS MADE ON APPEAL: | The decision of the Arbitrator dated 2 February 2009 is revoked and the matter is remitted to another arbitrator for determination. | ||||
BACKGROUND TO THE APPEAL
On 26 February 2009 Arup Pty Ltd (‘the appellant’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 2 February 2009.
The Respondent to the Appeal is Vanessa Wicks (‘the worker’).
The worker who is 31 years of age commenced employment with the appellant in 1996 as an administration assistant performing office duties. On 6 November 2003 the worker received injury in the course of her employment as she was lifting a number of boxes over a period of approximately two hours. On that day the worker experienced pain in her back and her left shoulder. The worker reported her injury and attended a doctor practicing nearby the appellant’s premises in Sydney and thereafter consulted her usual general practitioner, Dr Weekes.
The worker remained absent from work by reason of her injuries and resultant incapacity for a period of two weeks. The worker then returned to work performing light duties with a restriction of no lifting over five kilograms, no sitting or standing for more than one hour and no pushing and pulling.
The worker remained on light duties on a full-time basis until she ceased work by reason of her pregnancy. Her maternity leave commenced on 1 October 2006 and her first child was born on 9 November 2006. The worker up to this period had continued to receive treatment with respect to her work injuries which treatment included physiotherapy.
The worker was due to recommence work on 1 October 2007 however in August of that year whilst undergoing physiotherapy treatment her symptoms were exacerbated causing disability and further incapacity.
It seems that a further claim for compensation benefits was made and the worker received weekly payments up until 13 July 2008. Those payments were terminated by the appellant’s insurer, notice of which was given by letter dated 2 June 2008. That correspondence was forwarded to the worker in compliance with the requirements of section 74 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’). Termination of payments was founded upon a review by the insurer of the medical evidence available at that time and it was the insurers assertion that the worker had recovered from her work related injuries. The insurer had, in part, relied upon the opinion expressed by Dr Ian Barrett, orthopaedic surgeon who had examined the worker in February 2008. Reliance had also been placed upon the opinions expressed by Dr Graham J.L. Hall, consulting occupational physician and Ms Belinda Messer, psychologist who had conducted an Earning Capacity Assessment (section 40A of the Workers Compensation Act 1987 (‘the 1987 Act’)) on 21 April 2008.
The worker disputed the appellant’s entitlement to terminate compensation payments and an Application to Resolve a Dispute (‘application’) was filed on her behalf by her solicitors on 22 September 2008.
The worker’s application came before an arbitrator for conciliation/arbitration on 15 December 2008 at which hearing each party was represented. A Certificate of Determination issued on 2 February 2009. That Certificate of Determination was accompanied by a Statement of Reasons for decision (‘Reasons’).
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 2 February 2009 records the Arbitrator’s orders as follows:
“The Commission determines:
1.Respondent to pay the Applicant weekly benefits compensation for the period 14 July 2008 to 17 November 2008 at the maximum statutory rate applicable to an injured worker with one dependant pursuant to s40(5) of the 1987 Act.
2.Respondent to pay the Applicant’s reasonably necessary s60 expenses.
3.Respondent to pay the Applicant’s costs as agreed or assessed.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in the following respects:
(i) in finding that the worker was capable of working only ten hours per week, and
(ii) in the manner of calculation of the worker’s entitlement to weekly compensation pursuant to section 40 of the 1987 Act.
The issues as outlined above are taken from the document headed “Submissions in support” attached to the appellant’s application brought with respect to this appeal.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘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 Numbers 1 and 6, the documents that are before me, and the submission 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.
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 Registrar’s decision in compliance with section 352(4) of the 1998 Act.
The amount of compensation at issue on the appeal exceeds the thresholds provided by section 352(2) of the 1998 Act, which must be met before a grant of leave to appeal is made by the Commission.
The requirements of section 352(2) and (4) of the 1998 Act having been satisfied and having regard to the subject matter of the appeal and the arguments raised I order that leave be granted to the Appellant to appeal to the Commission.
EVIDENCE AND SUBMISSIONS
The Arbitrator at [11] of Reasons noted that documentary evidence which was before him. That material included the application and all attached documents, the Reply and attached documents, those documents attached to an application to admit late documents filed on behalf of the worker on 26 November 2008 and those documents attached to an application to admit late documents filed on behalf of the appellant on 12 December 2008.
There is before the Commission a transcript of the proceedings conducted before the Arbitrator on 15 December 2008 (‘transcript’). No oral evidence was given on that occasion however the transcript records those submissions put on behalf of each party by their respective legal representatives.
The worker’s application was amended by consent at the hearing. That amendment, allowed by the Arbitrator, was in respect of the period during which weekly compensation was claimed. At paragraph 5.1 of the Application that period was amended to read “14th July 2008 to 17th November 2008”.
The worker relied upon the contents of a statement made on 16 July 2008. The worker described the nature of her pre-injury duties as being:
“… reception, general administrative work, photocopying, binding, cleaning duties, I would be required to move furniture, answer telephones and carry boxes. The archive boxes could weigh up to 40kg each. My work duties generally involved a lot of bending, lifting and working with arms outstretched as I was filing.”
The worker’s statement contained a description of the injury received on 6 November 2003 which occurred as she was lifting boxes for approximately two hours. That activity caused pain in her back and “pins and needles” to the left arm and left leg. It is stated that the boxes each weighed approximately 30 kgs.
The worker’s statement records the medical treatment received including treatment from Dr Weekes, general practitioner. The statement records that Dr Weekes referred the worker to Dr Harry Patapanian, consultant rheumatologist and physician. It is stated that the worker was absent from work initially for a period of two weeks and upon return to work was placed on “light duties”. Those light duties continued until 1 October 2006 at which time the worker commenced maternity leave.
The worker further states that in August of 2007 during a course of physiotherapy her back pain was aggravated which prevented her from resuming work as scheduled on 1 October 2007.
The worker further states that weekly compensation payments resumed and that earlier, in February 2006, the appellant had agreed to pay lump sum compensation in respect of 7 per cent whole person impairment.
The worker states that she felt she would be able to do some of her normal work duties however is restricted in carrying out all pre-injury duties in particular lifting heavy boxes or sitting or standing for long hours. The worker states that she did not believe that she would be able to work full-time as an accounts clerk or as a data entry operator because of the need to sit continuously and for continuous use of her left arm.
A WorkCover NSW medical certificate issued by Dr Weekes dated 27 August 2008 was in evidence before the Arbitrator. That document certified that the worker was fit for suitable duties from 31 August 2008 to 30 September 2008. The worker’s capability for work was described in that certificate as being in respect of four hours per day four days per week, lifting limited to a maximum of two kilograms from desk level and with walking and standing restrictions limited to maximum period of 15 minutes without rest.
A number of medical reports were attached to the application being from Dr Patapanian, Dr David Millons and Dr David Meachin. The report from Dr Patapanian includes detail of a CT scan which is stated as showing, “A minor lumbo-sacral disc protrusion without neuro compromise.” An MRI is stated to demonstrate dehydration of the L4/5 and lumbo-sacral discs. Much of the content of the reports is not strictly relevant to the issues raised on this appeal given the date on which they were each compiled. Reference to relevant portions of those reports in made hereunder.
The worker placed in evidence a report from Dr Anup Kumar Mangipudi, occupational therapist. That report dated 6 August 2008 was headed “Section 40 Assessment Report”. That report records an assessment of functional capacity and physical assessment. Dr Mangipudi expresses the view that:
“Mrs Wicks would be best suited to full-time duties within the above stated capacities doing administration work. Given Mrs Wicks history of symptoms it would appear that future work duties requiring a level of sustained or repetitive upper limb manual work duties above the manual handling capacities as stated above is not recommended.”
The restrictions to which Dr Mangipudi referred are set forth at page 11 of his report and relate to limitations on lifting, repeated upper limb activity, repeated bending, twisting, turning, pulling, pushing and manipulating objects with the use of left hand. That practitioner also expressed a view that there should be restrictions as to sitting, walking and standing.
The report of Dr Sheikh M. Habib dated 8 August 2008 was in evidence before the Arbitrator. That report related to an examination of the worker which took place on 31 July 2008. Under the heading “Fitness for Employment” that practitioner expressed the following opinion:
“Mrs Wicks is fit for semi-sedentary duties as expected (sic) in her pre-injury employment in administration and reception work but not the added labouring activities such as moving furniture, folding and carrying chairs and tables, carrying, lifting especially overhead stacked boxes weighing up to 15 kilograms in a repetitive manner.”
Dr Habib proceeded to express the view that he considered the worker “fit for receptionist duties but not all administrative tasks.” Dr Habib noted a number of restrictions which he considered were appropriate concerning performance of duties by the worker.
Attached to the worker’s application was a copy of the section 66A lump sum agreement dated 30 March 2006.
The balance of the documents placed before the Arbitrator by the worker are not directly relevant to the issues raised on this appeal. It was common ground between the parties that pre-injury the worker was employed full-time. Paragraph 5.2 of the application particularised probable earnings as being $679.25 per week being an hourly rate of $18.11.
The appellant placed before the Arbitrator a number of rehabilitation reports prepared by an organisation named Recovre Pty Ltd. Those documents are not directly relevant to the issues raised on the appeal.
Attached to the appellant’s Reply was a report from Dr R.F. Herlihy dated 10 August 2004. That document was addressed to Recovre Pty Ltd. Dr Herlihy makes reference in that report to discussions he had with Dr Weekes concerning the worker. It is stated by that practitioner (at page 3):
“Dr Weekes and I certainly agree that Ms Wicks should never return to the duties that she says she was doing before her injury of 06/11/03. The recurrent bending to lift full creates of milk and cartons of other drinks and the moving of large quantities of boardroom furniture that she describes as her pre-injury duties were not suitable for an average female. The storeroom job she was doing at the time of symptom onset was unsuitable. However, I believe that even if she does have some degree of genuine low back complaint she should be physically fit for normal office duties as appropriate to a female of average stature although I would pay some extra respect to her subjective symptoms by limiting her lifting to 5 kg. Dr Weekes cautions against this level of exertion and advises that if she is asked to do any lifting there is a high risk of symptom exacerbation and resulting greater restrictions on her capacity for work. I agree that she probably would not tolerate a modest upgrade in her certified work capacity but I cannot avoid suspecting that this is due to her psychological state.”
A report of Dr Ian Barrett, orthopaedic surgeon dated 14 February 2008 was attached to the Reply. That report related to an examination conducted by that practitioner on 13 February 2008. With respect to the question as to the worker’s fitness for work at that time Dr Barrett stated as follows:
“Mrs Wicks is fit to work for eight hours a day, five days a week either as a receptionist or in an appropriate administrative position. She should be given the opportunity to change from a sitting to a standing position and vice versa for five to ten minutes each thirty minutes. She should avoid repetitive lifting, bending or twisting. She is fit to lift weights of up to 5kgs.”
Dr Barrett expressed his view that the worker had “recovered from the initial workplace injury”. It was Dr Barrett’s view that the worker’s residual symptomatology is “attributable to the pre-existing L4/5 and L5/S1 disc degenerative changes and also to non-organic factors”.
The appellant relied upon the Earning Capacity Assessment complied by Dr Hall and Ms Messer referred in [7] above. That report related to an assessment conducted on 21 April 2008. The report included a summary of the authors’ assessment of function. The worker’s symptoms were attributed to “mechanical back pain probably due to early mild spondylosis”. The view was expressed in that report that the worker’s back pain was related to the incident described (the subject injury) and the view was expressed that the pain was probably related to the hyper extension required in lifting heavy weights from head level. At paragraph 11.3 of that report a number of physical limitations were noted concerning repeated bending and lifting both in relation to the back and the left shoulder.
The assessment report also noted the vocational history of the worker which was limited to employment as a shop assistant, a bookkeeper (in the employ of the worker’s husband) and employment with the appellant. A number of suggested suitable work options are noted which included employment as an administrative assistant, accounts clerk and data entry clerk. The report included detail of job availability in those particular fields based upon advertised vacancies. Detail of suggested average earnings in those occupations was included, the range of which was between $730.00 per week and $879.00 per week.
A further report from Dr Barrett dated 8 May 2008 was relied upon by the appellant before the Arbitrator. Dr Barrett states that he has read the earning capacity assessment compiled by Dr Hall and Ms Messer and expresses his agreement that Mrs Wicks would be fit for the positions described therein being administrative assistant, accounts clerk and data entry operator.
The documents attached to the application to admit late documents included clinical notes of both Dr Weekes and Dr Patapanian. The content of those records has no direct relevance to the issues raised on this appeal.
Also attached to that application was a statement of Leanne Young made on 11 December 2008. Ms Young states that she is an employee of the appellant company being office manager. Ms Young describes the worker’s pre-injury duties and notes the limitations that had been placed upon the worker by Dr Mangipudi and Dr Habib. Ms Young proceeds to state “I advise that the (sic) neither the applicant’s post-injury duties nor her pre-injury duties exceed any of the above mentioned restrictions”.
The restrictions to which Ms Young was referring were those summarised by her raised by the two medical practitioners named in her statement.
Ms Young proceeds to state that by reason of the length absence of the worker from the place of employment the appellant company has “employed a new full-time administrative assistant”. It is then stated by Ms Young, “… Accordingly Arup is unable to provide the applicant with meaningful work as the position of full-time administration assistant has been filled this was the only suitable role available for her due to her restricted duties.”
Submissions before the Arbitrator
It was argued on behalf of the appellant before the Arbitrator that the Commission should accept the view expressed by Dr Barrett and conclude that the worker was no longer suffering from any incapacity as a result of the subject injury.
It was further argued that the evidence of Dr Barrett and the authors of the Earning Capacity Assessment, Dr Hall and Ms Messer, should be accepted and a finding made that the worker was fit for full-time work in those occupations nominated in the report and commented upon by Dr Barrett in the last of his reports. Such a finding would lead to a conclusion that there was no economic loss by reason of incapacity and hence there should be an award for the respondent.
Counsel appearing on behalf of the worker argued before the Arbitrator that the evidence of Dr Barrett should be rejected and it is suggested that Dr Barrett expresses no reasons for his conclusion that the subject injury has ceased to play any role in the symptoms experienced by the worker.
It was argued that the evidence supported a conclusion that the worker was fit only for restricted duties by reason of the subject injury and that the worker, if she was to return to the workforce, should increase her work on a graduated programme as addressed in the rehabilitation reports. It was argued that the worker should be awarded “… the full extent of the claim for the period claimed.” (transcript page 30). It appears that the worker’s argument was that her entitlement by reason of incapacity was to a weekly award for the maximum statutory rate.
The appellant’s solicitor in reply sought to emphasis the evidence which suggested that the worker was fit for “full-time duties” though with restrictions.
Submissions on this Appeal
The written submissions in support of the appeal seek to challenge the Arbitrator’s finding that the worker was capable of working ten hours per week as erroneous being against the evidence.
Reference is made in submissions to the decision of the Court of Appeal in Mitchell v Central West Health Services (1997) 14 NSWCCR 527 (‘Mitchell’). It is argued that the Arbitrator erred in particular with respect to the manner of calculation, as required by the 1987 Act and that authority, of the worker’s ability to earn in suitable employment post-injury. The evidence was summarised in those submissions and emphasis was placed upon those views expressed by various practitioners that the worker was fit for full-time duties.
The worker had provided written submissions in support of her Opposition to this appeal. It is asserted in those submissions that the Arbitrator’s award “reflects a proper and reasonable exercise of his discretion in making an award pursuant to section 40.”
Reference is made in those submissions to the worker’s evidence as to her restricted capacity for work and it is noted that the worker’s evidence was “not challenged in cross-examination”.
It is submitted that the Arbitrator had “rejected the evidence of Dr Barrett” and reference is made to the medical evidence and vocational assessments with reference to the restrictions as to capacity contained in the relevant reports.
The balance of submissions seek to justify the Arbitrator’s approach to the evidence and his application of principle including the manner of assessment of entitlement in the case of partial incapacity. Particular reference is made to the Arbitrator’s reasoning as revealed between paragraphs [37] and [47] of Reasons. These matters and the content of reasons as expressed by the Arbitrator are addressed below.
DISCUSSION AND FINDINGS
The Arbitrator at [8] of Reasons sets forth those matters raised by the parties requiring his determination. The Arbitrator correctly identified the dispute concerning the persistence of any incapacitating effects of the subject injury and further noted the dispute as to whether the subject injury had resulted in total or partial incapacity.
The Arbitrator also noted the need to determine the worker’s probable earnings should it be found that she suffers partial incapacity. The nature of the dispute between the parties was not fully described at [8] given that the major dispute concerned the question as to the worker’s “ability to earn” in her incapacitated state (section 40(2)(b)).
The Arbitrator proceeded to address the evidence and submissions and at [32] of Reasons states:
“32. Having reviewed all of the documents in evidence before the Commission and considered the submissions of the respective legal counsel I found [sic] on the balance of evidence before me that the Applicant had a residual capacity to undertake some administrative or clerical duties.”
The above quoted “finding” by the Arbitrator appears to be one which implies acceptance that the effects of the subject injury have persisted and that the worker was partially incapacitated during the relevant period. Whilst it is correct, as submitted by the worker, that the Arbitrator appears at Reasons [35] to have rejected the opinion of Dr Barrett, his reasons do not reveal his process of reasoning nor is there any express conclusion reached concerning the alleged ongoing effects of the injury.
A more explicit finding concerning incapacity is to be found at Reasons [36]:
“36. All things considered, I think the Applicant is capable of working at least two hours per day, five days per week, that is, a total of 10 hours per week. Consequently, the Applicant is for the purposes of the 1987 Act, partially incapacitated, in my view of the evidence.”
The Arbitrator proceeds to make reference to the decision in Mitchell and proceeds between [39] and [47] to calculate the worker’s entitlement to weekly compensation during a period of partial incapacity. It is during the course of the exercise of applying the so called “steps” enunciated in Mitchell that a glaring error is demonstrated. When dealing with the question of assessing the worker’s ability to earn in terms of section 40(2)(b) of the 1987 Act the Arbitrator stated as follows:
“40. Step 2. This requires a determination of the amount that the Applicant would be able to earn in some suitable employment from time to time after the injury (subject to subsection 40(3) and section 43A of the 1987 Act). The Applicant would not have been working for the Respondent either in his (sic) normal duties or light duties after 15 May 2006 (sic) because he (sic) accepted a redundancy. The Respondent’s counsel submitted that the Applicant would have the capacity to work 20 – 30 hours per week in some light but suitable employment whilst the Applicant’s counsel submitted that the Applicant, at best, was only capable of working 10-15 hours per week because of the Applicant’s physical condition and age.
41. Overall I found that the evidence in relation to the Applicant’s capacity to earn in some suitable employment was limited but I would accept that the Applicant has a residual capacity to earn $181.10 per week based upon 10 hours of work per week at the rate of $18.11 per hour in an industry that required less physical effort, such as receptionist work, photocopying or mail sorting. I received written submissions from the Respondent on 18 March 2008 attaching comparable wage records from another plant as the site of the Applicant’s previous employment had closed. The suggested comparison was $679.25 per week which equates to an hourly rate of $18.11 per hour (based on a 37.5 hour week).”
It may be seen that the above quoted paragraphs of Reasons contain significant misstatements by the Arbitrator. Paragraph 40 contains a misstatement of the gender of the worker. There follows a misstatement of the evidence. There is in the present matter no evidence concerning “a redundancy” and the claim as framed in the application was limited to a short period in the year 2008. There follows a misstatement of the appellant’s submissions concerning the worker’s work capacity. As noted above it was the appellant’s case that the evidence before the Commission supported a conclusion that the worker was fit for full-time duties.
In paragraph 41 reference is made erroneously by the Arbitrator to receipt of “written submissions from the Respondent on 18 March 2008 attaching comparable wage records from another plant…”. That statement by the Arbitrator is plainly wrong however, remarkably, the figures which follow appear to coincide with the economic evidence which was before the Commission.
The errors and misstatements which I have noted above may be explained, in part, by an assumption that poor editing of a precedent utilised to prepare the decision had resulted in the inclusion of irrelevant matters. Such conjecture is however unnecessary. The recorded reasons of the Arbitrator are plainly flawed and there is an obvious need for review. Such need is imperative and I so conclude without careful analysis of the submissions put by the parties.
The matters which I have attempted to outline above have not been addressed by the parties. It appears that the worker in her submissions on this appeal has, to an extent, been misled by those matters stated by the Arbitrator at [40] of Reasons concerning the appellant’s submissions relating to incapacity.
By reason of the Arbitrator’s errors the parties have been denied procedural fairness and the orders made cannot stand. The Court of Appeal in Chubb Security Australia Pty Limited v Trevarrow (2004) 5 DDCR 1 has expressed the view that should an appeal be upheld, it is preferable, if possible, that the Presidential Member finally determine the matter (per Santow JA at [28] and [29]). The decision is to be revoked. It is however inappropriate, in my view, to re-determine the matter on this appeal. I consider the proper course is that the matter be remitted to another arbitrator for determination. Such order of remitter would accord the parties representatives an opportunity to fully argue their client’s case with attention to all issues, some of which have not been properly addressed on this appeal.
DECISION
The decision of the Arbitrator dated 2 February 2009 is revoked and the matter is remitted to another arbitrator for determination.
COSTS
The need for a rehearing has been occasioned by the unexplained errors and omissions noted above. Having regard to the broad discretion which is granted the Commission by the provisions of section 341 of the 1998 Act I consider it appropriate that costs of both the original conciliation/arbitration hearing and this appeal should follow the final costs order following remission to and hearing by another arbitrator.
Kevin O’Grady
Deputy President
1 June 2009
I, MARIE JOHNS CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O’GRADY, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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