Ayse Cakir v Western Sydney Area Health Service t/as Parramatta Linen Service
[2004] NSWWCCPD 1
•13 January 2004
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
__________________________________________________________________
| CITATION: | Ayse Cakir v Western Sydney Area Health Service t/as Parramatta Linen Service [2004] NSW WCC PD 1 | |
| APPELLANT: | Ayse Cakir | |
| RESPONDENT: | Western Sydney Area Health Service t/as Parramatta Linen Service | |
| INSURER: | NSW Treasury Managed Fund | |
| FILE NO: | WCC 9268-2003 | |
DATE OF ARBITRATOR’S DECISION: | 29 August 2003 | |
| DATE OF APPEAL DECISION: | 13 January 2004 | |
| SUBJECT MATTER OF THE DECISION: PRESIDENTIAL MEMBER: | Application for leave to appeal against a decision of an Arbitrator dismissing the Applicant’s claim for weekly compensation and medical expenses on the basis that the worker was no longer suffering a compensable injury. Alleged errors of fact, law and jurisdiction. President Justice Terry Sheahan | |
| HEARING: | On the Papers | |
| REPRESENTATION: | Appellant: Steve Masselos & Co | |
| Respondent: Hunt & Hunt Lawyers | ||
| ORDERS MADE ON APPEAL: | Leave to appeal is granted. The appeal is allowed. The decision of the Arbitrator is revoked. The matter is returned to the Registrar for allocation to an Arbitrator to determine the amount of weekly compensation the Appellant is entitled to, in accordance with section 40 of the 1987 Act and with these published reasons.The Respondent is to pay the Appellant’s expenses under section 60 of the 1987 Act on production of accounts or receipts. The Respondent is to pay the costs of the appeal. | |
THE APPEAL
On 26 September 2003 Ayse Cakir, (‘the Appellant Worker’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 28 August 2003. The application seeking leave to appeal was served on the NSW Treasury Managed Fund, (‘the Respondent Insurer’) on 2 October 2003.
The Arbitrator awarded the Appellant Worker weekly benefits for partial incapacity for a closed period, and medical expenses, and dismissed a much broader claim made by the Appellant Worker for weekly benefits on the basis that the Appellant Worker was no longer suffering a compensable injury. The Appellant Worker submitted in her leave application that the Arbitrator made errors of fact, law and jurisdiction, and I have had the benefit of extensive written submissions from both parties regarding the alleged errors.
In my opinion the issues in dispute in this appeal are capable of being condensed into four grounds of appeal, namely whether the Arbitrator:
· made errors of fact, and/or
· made errors of law and/or jurisdiction, and/or
· was entitled to come to the decision she reached, and/or
· gave adequate reasons.
However, in fairness to the parties, I intend to set out their competing arguments quite extensively for the record.
JURISDICTION TO HEAR THE APPEAL
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’), which provides:
“352 Appeal against decision of Commission constituted by Arbitrator
(1)A party to a dispute in connection with a claim for compensation may, with leave of the Commission constituted by a Presidential member, appeal to the Commission as so constituted against a decision in respect of the dispute by the Commission constituted by an Arbitrator.
(2)The Commission is not to grant leave to appeal unless the amount of compensation at issue on the appeal is both:
(a)at least $5,000 (or such other amount as may be prescribed by the regulations), and
(b) at least 20% of the amount awarded in the decision appealed against.
(3)If the Commission refuses to grant leave to appeal, the Commission must state reasons for the refusal in writing to the parties.
(4)An appeal can only be made within 28 days after the making of the decision appealed against.
(5)An appeal under this section is to be by way of review of the decision appealed against.
(6)Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.
(7)On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
(8)In this section, decision includes an award, interim award, order, determination, ruling and direction.”
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
The Appellant Worker submitted in her leave application that, as the amount of compensation claimed, comprising weekly compensation and medical expenses, was $17,870.80, and the amount of compensation awarded was $7,079.62, the amount of compensation at issue in the appeal is $10,791.18, which sum is both greater than $5,000, and greater than 20% of the amount awarded.
The Respondent Insurer submitted that:
“…if the finding of the Arbitration [was] that the Applicant ceased to suffer from any work related injury as at 26 May 2003 than (sic) the amount of compensation at issue does not exceed $5,000.00 and consequently leave should not be granted.”
Although I am not in agreement with the Appellant Worker’s exact calculations, I am satisfied that the application for leave to appeal meets the requirements of section 352(2). The effect of the decision of the Arbitrator is to deny the Appellant Worker’s claim for ongoing weekly compensation (to which claim was made in the original ‘Application to Resolve a Dispute’) from 27 May 2003, and to award the worker less than was claimed from the period 1 January to 26 March 2003, which can be quantified as well over $5,000 and more than 20% of the amount awarded in the decision.
For these reasons, leave to appeal is granted.
“ON THE PAPERS” REVIEW
Section 354(6) of the 1998 Act provides:
“354 Procedure before Commission
(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.”
I do not have the benefit of the Arbitrator’s file in considering this appeal. However, I am satisfied that all the material that was before the Arbitrator is now before me. The material before me includes:
· Transcript of the Arbitration Hearing which occurred on 6 August 2003.
· Statement of Ayse Cakir dated 4 March 2003.
· Reports of Dr Yee dated 6 January 2003 and 3 February 2003.
· Reports of Dr Conrad, dated 27 March 2003 (including 2 supplementary reports of the same date) and 9 May 2003.
· Clinical notes of Dr Durmush.
· Clinical notes of Dr Emin.
· Report of Dr Durmush dated 2 September 2002.
· Reports of Dr Potter, dated 25 November 2002 (including 1 supplementary report of the same date).
· Reports of Dr Honner, dated 26 May 2003 (including 1 supplementary report of the same date).
· Report of Dr Robinson dated 30 January 2002.
· Report of A Sostaric dated 1 March 2002.
· Report of Dr Chan dated 13 March 2002.
· Report of Dr Schembri dated 16 September 2002.
· Report of Dr Connolly dated 17 October 2002.
· Reports of P Camden dated 2 April 2002, 17 April 2002, 22 May 2002.
· Report of T Duong dated 30 August 2002.
· Reports of T Bridges dated 30 September 2002, 8 October 2002.
· Return to work plans of G Chaffer dated 13 February 2002, 24 July 2002, 28 August 2002, 9 October 2002, 12 November 2002, 19 November 2002, 16 December 2002 and similar return to work plans with ‘commencement’ dates of 21 January 2002, 4 April 2002, 23 May 2002.
· Physiotherapy Plan of B McLean dated 27 August 2002.
· Medical Certificates issued by Dr Durmush for the periods 28 December 2002 to 11 January 2003, and 12 January 2003 to 12 February 2003.
· Claim Form dated 18 January 2002.
· Recurrence Reports dated 8 April 2002, 18 April 2002, 23 April 2002.
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 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.
EVIDENCE
Much at issue in this appeal appears to turn on the medical evidence in this matter, and some of that evidence is now set out in more detail.
The Appellant Worker’s Medical Evidence
In a report dated 27 March 2003, Dr P Conrad noted the Appellant Worker’s history and symptoms, and under the heading “Opinion” stated:
“This lady has been involved in heavy repetitive work…[a]s a result she has sustained a chronic tenosynovitis of the extensor tendon of the left wrist and this is associated with a small ganglion formation. At this stage she needs conservative treatment, which should include physiotherapy, wrist splintage and cortisone injections. If the ganglion becomes bigger and more symptomatic it may need surgical removal…In the meantime [the Appellant Worker] is not fit to do work as a linen machinist, but she may be able to do 12 hours per week of light cleaning or similar work. This should be in a position where she does not have to lift anything more than 2-5 kgs in weight or do heavy repetitive work with her left arm. She should not use heavy industrial vacuum cleaners or polishers and this should be part of a structured rehabilitation program. Her prognosis is uncertain.”
In a report dated 27 March 2003, marked Supplementary Report 1, Dr P Conrad stated:
“There is no evidence of pre-existing degenerative disease or previous accidents and therefore this loss relates directly to the conditions of work at Parramatta Linen Service, which can be said to be a substantial contributing factor to his (sic) loss.”
In a report dated 6 January 2003, Dr D Yee stated: “I think that lateral epicondylitis doesn’t need to be treated and I think that [the Appellant Worker] is getting a lot of her symptoms from her dorsal wrist ganglion.”
Philip Camden’s physiotherapy report to Dr Durmush dated 17 April 2002 states: “This patients (sic) left arm pain has returned since resuming work again. She is complaining of pain in the flexor and extensor muscle groups of the forearm, similar to what she was experiencing before, despite only working 4 hrs/day & light duties.”
Philip Camden’s physiotherapy report to Dr Durmush dated 22 May 2002 states: “This patients (sic) L wrist pain has improved while off work.”
In the bone scan report of Dr Geoffrey P Schembri to Dr Durmush dated 16 September 2002, Dr Schembri stated: “There is minimal arthritic change in the left wrist.”
The Respondent Insurer’s Evidence
In two reports dated 26 May 2003, Dr R Honner noted the Appellant Worker’s history and that: “At times [the Appellant Worker] said she used to get swelling on the back of her left wrist…she last saw the swelling on the back of the left wrist some five or six months ago.” Under the heading “Present Complaints” Dr Honner noted the Appellant Worker: “…said that since she stopped work the pain has remained much the same. It is worse when she is doing things and active, and it occasionally goes away but it is usually present about 80% of each day.”
Under the heading “Findings on Examination” Dr Honner stated: “I could not detect any localized areas of swelling or tendon sheath abnormality around the wrist.”
Under the heading “Investigations”, Dr Honner noted:
“X-rays of the left wrist in January, 2002 revealed no abnormality in the wrist itself, although there was a small focal bony lesion in relation to the distal shaft of the 5th metacarpal. An ultrasound of the left wrist at that time was thought to show slight thickening of the extensor tendons with a small amount of associated fluid, and it was thought the appearances were ‘suggestive of a small focal area of tendonitis’. A bone scan in September, 2002 was reported as showing: ‘minimal arthritic change in the left wrist’. Further X-rays of the left wrist were reported as normal in October, 2003 (sic), and an ultrasound at that time showed a small cystic lesion over the dorsum of the left wrist. A further ultrasound of the left wrist in March, 2003 showed a small ganglion cyst dorsally, and a small amount of fluid within the extensor tendon sheath ‘in keeping with mild tenosynovitis’.”
Under the heading “Diagnosis”, Dr Honner stated:
“I cannot make a physical diagnosis that would explain [the Appellant Worker’s] severe and widespread pain in the left arm, and it is my opinion that her complaints are greater than physical examination would support. She appears to have developed an intermittent dorsal ganglion at the left wrist. It was not present when I examined her…With regard to the tentative diagnosis of tenosynovitis, there was no evidence of any local sheath swelling or tenderness when I examined her, no crepitus or inflammation. While [the Appellant Worker] may have had a tenosynovitis affecting the extensor tendons at some stage, there is no clinical evidence of that condition at this time, and I do not consider it could explain her widespread tenderness and pain. There is no clinical evidence of an epicondylitis, and the bone scan does suggest that she could have some early arthritic changes in the wrist.”
Under the heading “Relation to Accident or Employment” Dr Honner stated:
“..in my opinion [the Appellant Worker’s] symptoms were mainly due to underlying constitutional conditions, early arthritic changes in the left wrist, and possibly some muscle fatigue symptoms. While she may have had a tenosynovitis at some stage on the extensor tendons, and her symptoms could have been temporarily aggravated by her work, that aggravation would have ceased some six weeks after she stopped work in December, 2002. It is my opinion that her current complaints and symptoms are not due to her work…”
Under the heading “Restrictions on Return to Work” Dr Honner stated:
“…I cannot make a physical diagnosis that accounts for all of [the Appellant Worker’s] complaints. Clinically her weakness is voluntarily initiated, and I consider that she is fit to return to full time duties, although it would appear that she is constitutionally unfit to carry out any heavy or rapid work.”
Under the heading “Contribution of Employment to Present Incapacity” Dr Honner stated: “It is my opinion that [the Appellant Worker]’s employment is not currently contributing towards her incapacity.”
In his report of 26 May 2003, Dr Honner did not recommend any further treatment. Under the heading “Rehabilitation” he stated that the Appellant Worker “… does not appear motivated to attempt to return to work because her treating specialist has advised her that she remains unfit for work.” Under the heading “Prognosis”, Dr Honner stated that the Appellant Worker’s “…prognosis is guarded. Her symptoms have continued in spite of the fact that she has stopped work, and these symptoms are much greater than detailed physical examination or the investigations would support.”
In a report dated 25 November 2002, Dr S Potter noted three issues: “1. The patient has diffuse tenderness from the left elbow to the left wrist which is not organic. 2. She has left arm weakness which is not organic. 3. She has left arm sensation change which is not organic.” Dr Potter also noted: “There is however a ganglion in the left wrist which is not relevant and could not cause sensation change, pain, weakness and disability.”
Under the heading “Opinion” Dr Potter stated:
“The patient presents as distressed but there is no organic pathology and, more importantly, the ganglion as shown is not going to cause the territory of pain, the disability, the sensation change and the weakness.”
Under the heading “Fitness to Work” Dr Potter stated: “[the Appellant Worker] is therefore fully fit for normal duties in her former occupation as a machinist. The simple ganglion itself is not going to interfere with her capacity to work in that context.”
THE DECISION OF THE ARBITRATOR
In view of the broadly based attack on the Arbitrator’s findings, I think it appropriate to quote more extensively than usual from her decision.
The issues in dispute before the Arbitrator, as summarised by her (at [9]), were:
·Did the Applicant receive an injury arising out of or in the course of employment?
·Was the Applicant’s employment a substantial contributing factor to her injury?
·Was the Applicant totally or partially incapacitated for work as a result of her injuries?
·For what period was the Applicant totally incapacitated?
·For what period was the Applicant partially incapacitated?
·Does the Applicant continue to suffer from the effects of her accepted compensable condition OR does the Applicant suffer from a partial incapacity arising out of non-work-related factors?
·In respect of any period of partial incapacity for work:
(a) what is the weekly amount which the Applicant would probably have been earning but for the injury had she continued to be employed in the same or comparable employment?
(b) what is the average weekly amount the Applicant is earning or would be able to earn in some suitable employment from time to time after the injury?·Are some or all of the Applicant’s medical and related expenses incurred as a result of treatment, services or assistance reasonably necessary for the compensable injury?”
Under the heading ‘Findings and Reasons’ the Arbitrator stated the following (at [35]-[37]):
“I have considered carefully the medical evidence, oral evidence and the submissions made on behalf of each of the parties. On the balance of probabilities I find that the [Appellant Worker] is no longer incapacitated for work. The Respondent [Insurer]was providing her with light duties at the time she left its employment. Even though she has now been off work for a considerable period of time, there is, according to the [Appellant Worker]’s evidence, no improvement. The [Appellant Worker] did not present as a person in pain. The duties outlined by the Respondent [Insurer]would not have involved her in the repetitive work about which she has complained. On the Respondent’s medical evidence there is no organic reason for her complaints. On the [Appellant Worker]’s own evidence, any tenosynovitis is ‘slight’ or ‘mild’.
I note that the Respondent [Insurer]’s medical evidence supports the view that the [Appellant Worker] may have had some tenosynovitis but that this condition had abated by the time of Dr Honner’s examination of the [Appellant Worker] on 26 May 2003. Dr Honner speculates that any such condition should have abated approximately 6 weeks after the Applicant stopped work in December 2002. The [Appellant Worker] ceased work on 28 December 2002 and the date being 6 weeks after that time is 8 February 2003. I do not have any medical evidence to support the Respondent [Insurer]’s view that her condition did in fact abate on that date. I do have the Respondent [Insurer]’s report from Dr Honner stating clearly that as of 26 May 2003 that condition was no longer present. I also have the WorkCover certificates issued by Dr Durmush certifying her as completely unfit during this period. I have the [Appellant Worker]’s report from Dr Conrad dated 27 March 2003 in which he states that the [Appellant Worker] was fit for some light duties for up to 12 hours per week.
I have accepted Dr Honner’s view that the [Appellant Worker] as of 26 May 2003 at the latest was no longer suffering from a work-related injury. In doing so, I have had regard to the [Appellant Worker]’s own medical evidence which is equivocal as to the extent and continuing nature of the injury. I find that the [Appellant Worker] is not entitled to weekly compensation as from 27 May 2003 but is entitled to compensation at the applicable rate from 9 January 2003 to 26 May 2003 inclusive. There is no future entitlement.”
Under the heading ‘Summary’ the Arbitrator held (at [38]):
“In summary the resolution of the issues in dispute is as follows:
· On 9 January 2002, Ayse Cakir received an injury to her left arm and wrist arising out of or in the course of her employment as a hospital assistant and machinist with Western Sydney Area Health Service (Parramatta Linen Service).
· Ayse Cakir’s employment was a substantial contributing factor to her injury.
· Ayse Cakir was partially incapacitated for work as a result of her injuries from 28 December 2002 to 26 May 2003.
· Ayse Cakir’s probable weekly earnings, but for the injury, had she continued to be employed in the same or some comparable employment, are $527.55 per week.
· Ayse Cakir has already been paid compensation for the period 28 December 2003 to 8 January 2003.
· Non-economic loss entitlement is not applicable.
· Ayse Cakir is no longer suffering from a compensable injury.”
Under the heading ‘Decision’ the Arbitrator ordered that (at [39]):
“For the reasons set out in this statement the decision in this matter is:
1. That the Respondent pay the Applicant weekly compensation at the rate of $363.30 from 9 January 2003 to 31 March 2003 and $369.50 from 1 April 2003 to 26 May 2003 under s.37 of the Workers Compensation Act 1987.
2. Award in favour of the respondent in respect of the Applicant’s claim for weekly payments of compensation from 27 May 2003 and continuing.
3. That the Respondent pay the Applicant’s expenses under section 60 of the Workers Compensation Act 1987 on production of accounts or receipts.
4. That the Respondent pay the Applicant’s costs as agreed or assessed.”
SUBMISSIONS
I intend to set out now, for the record, the parties’ submissions, in the “groupings” they themselves used (namely fact, law and jurisdiction). As the issues in dispute are capable of refinement into the four questions I arrived at and set out in parargraph three above, I will deal with some matters in a peremptory way and not address every specific point as raised.
Alleged Errors of Fact
The Appellant Worker submitted that the Arbitrator made the following errors of fact:
· the Arbitrator stated in her decision that “Provisional weekly payments of compensation were made by the Insurer from 18 January 2002 to 9 January, 2003” when, the Appellant Worker submitted, the true position is that:
“...voluntary weekly payments were made by the Insurer initially for a period of 17 weeks on the basis of total incapacity until 22 May, 2002 at the current weekly wage rate of $522.80. Thereafter the worker co-operated in a gradual return to work and was paid make up pay, for her partial incapacity for a period of 9 weeks until 31 July, 2002. The worker then resumed her full pre-injury duties and was paid wages for a period of 9 weeks until 4 October, 2002 when she suffered a recurrence of her injury and was once again put on a rehabilitation plan and make up pay was resumed and continued until 1 January, 2003. This involves two injuries not one.”
· the Arbitrator quoted section 33 of the Workers Compensation Act 1987 (‘the 1987 Act’) incorrectly because she referred only to partial incapacity, when the section deals with both total and partial incapacity. The other provisions set out in the Arbitrator’s decision (at [14]), the Appellant Worker submitted, related only to total incapacity.
· the Arbitrator misused the word “totally” in her description of Dr Conrad’s report of 9 May 2003 in her decision (at [32]).
· the Arbitrator used the words “injury” and “injuries” throughout her decision which meant, the Appellant Worker submitted, that “The Arbitrator has confused the consequences of the two injuries and merged them into one” and highlighted “…the confusion expressed concerning the facts of this case for determination”.
In response, the Respondent Insurer, in its Notice of Opposition received by the Commission on 16 October 2003, submitted that:
· the Arbitrator was endeavouring to paraphrase the legislation in her decision (at [14]), “…as none are included in their entirety…”, hence the absence of the word “total” under section 33 of the 1987 Act was of “…no consequence…”.
· “On reading Dr Conrad’s report referred to in paragraph 32 does not, as is suggested, result in mistake and confusion (sic).”
· no doctor suggested a second injury occurred on 4 October 2002 and “…in the circumstances the Arbitrator was entitled to make the findings summarised in paragraph 38…” where referral to the Appellant Worker’s injuries was referring to those suffered on 9 January 2002.
· it was clear (at [3]) that the arbitrator was dealing with the issue of causation rather than injury.
An error in making a finding of fact does not amount to an error of law, nor to a jurisdictional error that affects the status of the decision, unless the error made involves some misdirection as to the law, or the fact is a jurisdictional fact, the satisfaction of which is necessary prior to any exercise of the jurisdiction of the tribunal or court (Corporation of the City of Enfield v Development Assessment Commission & Anor (2000) 199 CLR 135).
Any factual “errors” made in this case, such as confusion of the words “injury” and “injuries”, or in setting out the Appellant Worker’s history of receiving provisional weekly payments, or in simply describing or paraphrasing relevant legislation, do not involve misdirection, and are not errors of jurisdictional fact. Hence, this ground of appeal must fail.
However, the Appellant Worker submitted that the Arbitrator also made the following additional “errors of fact”:
· the Arbitrator stated that the worker “…did not present as a person in pain” which, the Appellant Worker submitted, “...is patently absurd as the worker was present at the Conference / Hearing and complained of pain. None of the medical evidence denies the validity of the worker’s complaints of pain.”
· “it is not the case that the worker’s evidence was ‘equivocal as to the extent and continuing nature of the injury’. It is not the case on the material before her that the [Appellant Worker] experienced ‘no improvement’ in her symptoms as the physiotherapist in Dr Durmush’s notes clearly states that there was improvement after rest from work. The symptoms returned only after a return to the pre-injury duties.”
In response to those submissions, the Respondent Insurer submitted that:
· the Arbitrator, in stating “…that the worker ‘did not present as a person in pain’ clearly results from the Arbitrator’s impression of the worker at the time she gave evidence and is the conclusion that she is entitled to make. The ‘misreading’ of to (sic) the [Appellant Worker]’s physical presentation and notwithstanding her statement in evidence to the contrary. The lack of objective evidence to support the [Appellant Worker]’s subjective complaints is something referred to in the reports of Dr R Honner and Dr Potter.”
· “It is clear that the Arbitrator has weighed the competing medical evidence…” referring to the Arbitrator’s decision (at [36]-[37]).
· the Arbitrator was entitled to find as she did as the Appellant Worker had:
“…provided an inconsistent history as to the nature of her complaints and in turn the doctors relied upon, provide differing diagnoses on matters of causation…The [Appellant Worker]’s own medical evidence was equivocal and competing diagnoses including ‘lateral epicondylitis’ and ‘tenosynovitis’ in the absence of any significant abnormality on investigations including X-ray and a bone scan found the presence of a wrist ganglion the significance of which is a matter of some debate.”
These particular submissions do not assert errors of fact, and will be dealt with below (at [54]-[57]).
Alleged Errors of Law
The Appellant Worker submitted that the Arbitrator made the following errors of law:
· the Arbitrator ordered that the Appellant Worker be paid according to section 37 of the 1987 Act when that provision only applies to total incapacity after the first 26 weeks of the total incapacity, which, the Appellant worker submitted, is inconsistent, and “…displays an erroneous view of the meaning of the sections and serves to confirm the confusion under which the Arbitrator suffers concerning the injury or injuries and the dates when that injury or those injuries occurred as well as the application of the incapacity sections of the [1987] Act.”
· the Arbitrator erred when she found that “…the [Appellant Worker] was no longer incapacitated for work” because the Arbitrator failed “…to distinguish between injury and incapacity. The Respondent’s justification for ceasing payments was that ‘under 9A…employment is no longer a substantial contributing factor’. The Arbitrator found that there was an injury with a substantial contribution from work causing incapacity up until 27 May, 2003 but there is no evidence, as admitted in paragraph 36, to support a finding that the contribution ceased to have effect on or about 27 May, 2003.”
· the Arbitrator listed as an issue in dispute the amount the Appellant Worker was able to earn in some suitable employment, and found that the worker was partially incapacitated, but did not make a finding on the issue of suitable duties recorded as being in dispute.
· the Arbitrator granted a general order in favour of the Appellant Worker under section 60 of the 1987 Act for medical expenses, when, the Appellant Worker submitted, such an order implies that an injury exists, which “…is inconsistent with Summary paragraph 38 point 7 that the [Appellant Worker] is ‘no longer suffering from a compensable injury’.”
· the Arbitrator failed to consider that:
“…if only one injury has occurred, the date of injury should be the most recent date of doing work which has given rise to [the Appellant Worker’s] symptoms, that is 3 October, 2002 when she suffered recurrence while doing the same pre-injury duties which led to the injury 9 months earlier. The date of injury is crucial to the calculation of benefits payable and the relationship between sections 36, 37 and section 40.”
In response, the Respondent Insurer submitted that:
· the Arbitrator’s referral to section 37 (at [39]) was clearly an error. However, it is clear that it was the intention of the Arbitrator to find that the Appellant Worker was partially incapacitated for the period to 26 May 2003, and “…therefore the [Appellant Worker]’s entitlement falls within Section 40 of the [1987 Act].” The Respondent Insurer noted that the Arbitrator used the wording of section 40(2) of the 1987 Act, and hence: “The Arbitrator’s error here is not substantive and her intentions are clear and may be simply remedied by deleting Section 37 and inserting ‘Section 40’.”
· the Arbitrator awarded amounts to the Appellant Worker which reflected the maximum statutory rate under section 40 of the 1987 Act for a worker with one dependent child, which was an error “…having regard to the [Appellant Worker]’s evidence of no dependents.”
· “The Respondent ceased paying compensation reliant upon the views of Dr S Potter (25 November 2002) which included the statement ‘incapacity is not work related but subjective.’ …Notwithstanding this doctor’s opinion and the competing reports relied upon by the [Appellant Worker], the Arbitrator has accepted…the views of Dr Honner who at the time of his examination on 26 May 2003 said that the (sic?) clinical evidence of tenosynovitis or epicondylitis and that she was fit to return to full time duties. In so saying the doctor at the date of his report deals with both matters of injury and incapacity.”
· the general medical expenses order made by the Arbitrator “…is based upon production of accounts and receipts. There is no inconsistency here and the order is in its usual form.”
· “The Arbitrator was entitled to find the injuries sustained by [the Appellant Worker] occurred on January 2002. In asserting that there occurred a further injury on 3 October 2002 [the Appellant Worker] is confusing injury and resultant incapacity.”
Alleged Errors of Jurisdiction
The Appellant Worker submitted that the Arbitrator made the following errors of jurisdiction:
· “…it was unfair of the Arbitrator to determine the matter on the basis of Dr Honner’s report wherein it is admitted (sic) that the doctor ‘I cannot make a physical diagnosis that would explain her severe…pain’ and in which the Arbitrator mistakenly states at paragraph 36 that the doctor ‘speculates’ that the ‘condition should have abated.’”
· the Arbitrator did not made a determination with respect to “…the issue she set for herself in paragraph 9 point 6 concerning any ‘non-work-related factors’.”
· the Arbitrator failed to take into account the Appellant Worker’s oral evidence as “…she has not given any reason capable of understanding by a lay person as to why the [Appellant Worker]’s complaints of pain were rejected. The Arbitrator has denied the Appellant [Worker]’s subjective complaints without giving sufficient reasons for denying the validity of her complaints.”
· the Arbitrator identified three diagnoses “…(i) tenosynovitis (ii) ganglion, & (iii) tendonitis all of which were identified as possible causes of the [Appellant Worker]’s pain”, and the Arbitrator determined “…the matter in relation to tenosynovitis but has not considered the other two conditions.”
· the Arbitrator took into account material that was “…stated not to be relevant to [the Application], that is opinions concerning permanent loss.”
· the Arbitrator “…purported to make decisions concerning the future (paragraph 37) when she has no jurisdiction to do so.”
· the Arbitrator gave no description and failed to take into account or provide reasoning concerning the “…nature of the onerous duties undertaken by the [Appellant Worker] since 17 June, 1999, which were constant and repetitive such as to be considered causative of a disease of gradual onset.”
In response, the Respondent Insurer submitted that:
· “[t]he Arbitrator was told to rely upon the determination of Dr Honner noting that his report follows a thorough examination of the [Appellant Worker], the taking of a detailed history and perusal of investigations including X-rays and ultrasounds. It is noted that this doctor quite fairly was prepared to concede that the [Appellant Worker] may have suffered from tenosynivitis but determined that at the time of his examination ‘that there is no clinical evidence of that condition at this time, and I do not consider it could explain her widespread tenderness and pain’. It was the conclusion of Dr Honner that ‘clinically her witness is voluntary initiated’…In the circumstances there is no requirement upon the Arbitrator to determine the nature for (sic) the non-work related component of her claim.”
· “[t]he Arbitrator has considered the [Appellant Worker]’s evidence at paragraph 35(d).”
· “[t]he Arbitrator determined to (sic) the [Appellant Worker]’s medical evidence was equivocal and has referred (sic) the various reports tendered by the [Appellant Worker] throughout her determination. This having been said, the Arbitrator has preferred the views of Dr R Honner and in the circumstances is not required to deal with the differential diagnoses.”
· “… the Arbitrator referred to permanent impairment is of no import save as to evidence a consideration of the medical opinion relied upon by the parties (sic).”
· the Arbitrator’s statement that “there is no future entitlement” reflected the Arbitrator’s determination that “…the [Appellant Worker] has no ongoing rights past 26 May 2003.”
· “[t]he description of the [Appellant Worker]’s duties with the Respondent form part of the evidence given by the [Appellant Worker] at the hearing and also the history taken by the doctors who examined her. There is no requirement that these be repeated within the body of the Determination.”
DISCUSSION AND FINDINGS ON THE REMAINING ISSUES
Review on Appeal
A Presidential Member has the specific and limited role of ‘review’ on appeal (section 352(5) of the 1998 Act). The Presidential Member on appeal may confirm the Arbitrator’s decision or revoke it and substitute a new decision in its place (section 352(7) of the 1998 Act). As was discussed by Deputy President Fleming in McMahon v Anthony Lagana and Joseph Lavella t/as the Vessel “Nimble II” [2003] NSW WCC PD 22 (‘McMahon’), it was not the intention of the legislature to allow appeals to effectively become a full second hearing of the dispute. As discussed by Deputy President Fleming in Falcon v Narellan Enterprises Pty Limited [2003] NSW WCC PD 34, it is not appropriate, in review on appeal, to interfere with the Arbitrator’s decision, where the parties were accorded procedural fairness, the Arbitrator has taken the relevant factors into account, and the discretion has been exercised fairly and lawfully (see also Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSW WCC PD 6 (‘Mayne’)).
The ‘review’ on appeal, before the Commission, is by way of rehearing, where the powers of the Commission to confirm, revoke or substitute a new decision are exercisable only where it can be demonstrated that the original decision of the Arbitrator is affected by ‘some legal, factual or discretionary error’ (Allesch v Maunz (2000) 203 CLR 172).
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 Shu Liang (1996) 185 CLR 259).
As I stated in paragraph three, the issues in dispute on this appeal are capable of being condensed into four grounds of appeal, namely whether the Arbitrator made errors of fact, and/or made errors law and/or of jurisdiction, and/or was entitled to come to the decision she reached, and/or gave adequate reasons. I dealt with the first ground, whether the Arbitrator made errors of fact, at paragraph 40, and concluded that there was no appellable error of that type. I turn now to consider the other alleged errors.
Error of Law and/or Jurisdiction
The Arbitrator ordered that the Respondent Insurer pay the Appellant Worker weekly compensation for partial incapacity, but she was in error when she stated that she made that order under section 37 of the 1987 Act, as compensation for partial incapacity is actually governed by section 40 of that Act. This is an error of jurisdiction, and that particular order has no meaning and can have no effect.
Was the Arbitrator entitled to come to the decision she reached?
In essence, the Appellant Worker in this case submits that the Arbitrator did not make her findings and decision “properly”, i.e. on the basis of the evidence, and in accordance with the weight of the evidence. If this failure were to be established to my satisfaction, it would be an error of law, and the decision would not comply with the requirements of Rule 70 of the Workers Compensation Commission Rules 2003 (“the 2003 Rules”) which provides:
70 Principles of procedure
When informing itself on any matter, the Commission is to bear in mind the following principles:
(a) evidence should be logical and probative,
(b) evidence should be relevant to the facts in issue and the issues in dispute,
(c)evidence based on speculation or unsubstantiated assumptions is unacceptable,
(d) unqualified opinions are unacceptable.
The Arbitrator ordered that the Respondent Insurer pay the Appellant Worker’s medical expenses under section 60 of the 1987 Act, but stated that the Appellant Worker was no longer suffering from a compensable injury. This betrays, if not error, at least some internal inconsistency in the decision.
The Arbitrator found that the Appellant Worker’s medical evidence was equivocal as to the extent and continuing nature of the injury. This is a finding not supported on the face of the medical evidence. Dr Conrad clearly opines that the Appellant Worker suffered an injury as a result of her work, which affected her in such a way that she was able to perform only 12 hours per week of light duties.
The Arbitrator appears to have preferred Dr Honner’s report in so far as it held that, as at 26 May 2003, the Appellant Worker had no symptoms related to workplace injury. However, in holding that the Appellant Worker did suffer an injury, arising out of the course of her employment which was a substantial contributing factor to it, the Arbitrator did not accept the rest of Dr Honner’s opinion that, in his view, the Appellant Worker had not developed a specific condition due to her work.
On a close consideration of the whole of the evidence that was before the Arbitrator, the submissions that were made to the Arbitrator, and the submissions made in this appeal, I have come to the conclusion that the Arbitrator was entitled neither to make some of the findings she made, nor to arrive at the final decision she reached in this matter.
Adequacy of Reasons
Arbitrators of the Commission have a common law and statutory obligation to provide adequate reasons for their decisions (section 294(2) of the 1998 Act, Rule 73 of the 2003 Rules, Absolon v NSW TAFE [1999] NSWCA 311). Failure to do so constitutes an error of law and may be a ground to set aside the Arbitrator’s decision.
The standard by which the adequacy of reasons must be determined is relative to the nature of the decision itself and the decision-maker (see discussion in Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSW WCC PD 6).
The Commission is not a court, and its proceedings are conducted with as little formality and technicality as the proper consideration of the matter permits. This approach is also applicable to the preparation of statements of reasons. However, the reasons must adequately convey to the parties the basis upon which the Arbitrator came to his or her decision. These matters are set out in Rule 73 of the 2003 Rules, and require the Arbitrator to give a brief statement setting out the reasons for the determination, including:
“(1). . .
(a)the findings on material questions of fact, referring to the evidence or other material on which those findings were based, and
(b) the Commission’s understanding of the applicable law, and
(c)the reasoning process that lead the Commission to the conclusions it made.
(2)Without limiting subrule(1), the reasons set out in a statement referred to in subrule(1) are to be stated sufficiently (in the opinion of the Commission) to make the parties aware of the Commission’s view of the case made by each of them.”
It is not always incumbent upon a Commission Arbitrator to set out lengthy written reasons in order to comply with the common law, the statutory requirements, or the 2003 Rules. To do so would be unreasonable and inconsistent with the objectives of the Commission in providing a speedy resolution to workers compensation disputes (Collector of Customs v Pozzolanic [1993] 43 FCR 280; Minister for Immigration and Multicultural Affairs v Wu Shan Liang [1996] 185 CLR 259; Minister for Immigration and Multicultural Affairs v Yusuf [2001] 206 CLR 323, M & S Shipman Pty Ltd v Matters [2003] NSW WCC PD 19). However, any stated or published reasons should clearly set out the evidence, findings, and the application of the applicable law. The statement of reasons for decision must explain why and how the Arbitrator made the decision.
As was discussed by Deputy President Fleming in McMahon, to succeed on the ground of ‘inadequate reasons’ it will be necessary for the Appellant to demonstrate not only that the reasons are inadequate, but that their inadequacy sufficiently demonstrates that the Arbitrator has failed to exercise his or her statutory duty to fairly and lawfully determine the application.
In ADCO Constructions Pty Ltd v Ferguson [2003] NSW WCC PD 21 Deputy President Fleming discussed how the standard by which the ‘adequacy’ of an Arbitrator’s reasons will be determined is relative to the nature and context of both the decision made and the decision-maker; and that the Commission is not a court (Fuentes v Standard Knitting Mills Pty Limited & Anor [2003] NSWCA 146) but is obliged to act according to equity and good conscience and the demands of the instant case.
The inadequacy must be such as to warrant the inference that the Arbitrator had not exercised his or her jurisdiction in accordance with law (YG v Minister for Community Services [2002] NSWCA 247 (26 July 2002)).
The Arbitrator gave neither reasons for, nor an outline of, the calculations necessary to satisfy the statutory requirements, as to weekly payments of compensation, pursuant to the relevant sections of the 1987 Act.
The Arbitrator stated that she had: “…considered carefully the medical evidence, oral evidence and the submissions made on behalf of each of the parties.” However, she did not give adequate reasons as to why she preferred certain medical evidence above the other evidence, except to note, as discussed above, that she found that the Appellant Worker’s medical evidence was equivocal as to the extent and continuing nature of the injury, a conclusion with which I cannot agree on the face of those reports. In the report dated 26 May 2003, Dr Honner stated “...in my opinion [the Appellant Worker’s] symptoms were mainly due to underlying constitutional conditions, early arthritic changes in the left wrist, and possibly some muscle fatigue symptoms”, but, in the bone scan report of Dr Geoffrey P Schembri to Dr Durmush dated 16 September 2002, Dr Schembri stated: “There is minimal arthritic change in the left wrist.”
As was stated above, the purpose of giving reasons is to enable the parties to understand why the decision has been made. In this matter I am not satisfied, on balance, that the reasons have fulfilled this minimum requirement. In my view the parties could not clearly discern the reasoning behind the Arbitrator’s decision. The reasoning process of the Arbitrator (i) in coming to the conclusions that she did, in the determination of relevant facts necessary to establish an entitlement under section 40 of the 1987 Act (not section 37 of the 1987Act as appeared in the orders), and (ii) in the statement and application of the relevant law to guide her to those conclusions, cannot readily be understood from reading the statement of reasons.
I am satisfied that the inadequacy of the reasons in this case provides sufficient grounds to set the decision aside. In my view the reasons demonstrate that the Arbitrator has failed to exercise her statutory duty to fairly and lawfully determine the application (YG & GG v Minister for Community Services [2002] NSWCA 247, Absolon v NSW TAFE [1999] NSWCA 311).
In all of the circumstances of this matter I am of the view that the Arbitrator’s determination should be revoked and a new decision made in its place.
Findings
It is for the Arbitrator to decide whether to accept or reject evidence, and it is not open to a Presidential member to displace those findings on the basis of credit, unless the decision is affected by demonstrable mistake or misapprehension about relevant facts, or the value and importance of the advantage enjoyed by the Arbitrator have been misused: State Rail Authority v Earthline Constructions Pty Limited (In liquidation) (1999) 160 ALR 588. The Arbitrator has not properly exercised her function in assessing the Appellant Worker’s credibility and truthfulness (Abalos v Australian Postal Commission (1990) 171 CLR 167). The Arbitrator made no specific findings with respect to the Appellant Worker as a witness. Although the Arbitrator noted in her decision that: “The [Appellant Worker] did not present as a person in pain”, it is clear from the transcript of the hearing that the Appellant Worker testified that she was, in fact, in pain. The Appellant Worker submitted at the hearing that she was a witness of credit. The Arbitrator, in her written decision, did not directly disagree with that proposition, so I infer that she found the Appellant Worker was a witness of credit, and I am content to rely on that finding.
The Arbitrator found that the Appellant Worker received an injury arising out of or in the course of her employment with the Respondent Employer, and that such employment was a substantial contributing factor to the injury. I note that Philip Camden’s physiotherapy report to Dr Durmush dated 22 May 2002 states: “This patients (sic) L wrist pain has improved while off work”, and I am content to rely on those specific findings of the Arbitrator.
The Arbitrator also found that the Appellant worker was partially incapacitated as a result of that injury, but only for the period to 26 May 2003. After examination of the medical evidence, as described above, particularly the report of Dr Honner dated 26 May 2003, I prefer the Appellant Workers’s medical evidence, particularly the reports of Dr Conrad dated 27 March 2003, to those of the Respondent Insurer. Therefore, I am of the opinion that the evidence establishes that the Appellant Worker remains partially incapacitated
Conclusions
In all of the circumstances of this matter I am of the view that the appeal should be allowed and the Arbitrator’s determination be revoked.
I find that on 9 January 2002, the Appellant Worker received an injury to her left arm and wrist arising out of or in the course of her employment as a hospital assistant and machinist with Western Sydney Area Health Service (Parramatta Linen Service). The Appellant Worker’s employment was a substantial contributing factor to her injury and she is now partially incapacitated for work as a result of her injuries from 9 January 2003.
I find that the Respondent Insurer is liable to pay the Appellant Worker weekly compensation under section 40 of the 1987 Act. I also find that the Appellant Worker is able to perform 12 hours of work per week in light cleaning or similar duties.
In order to preserve the rights of the parties, it appears to me to be inappropriate in this case to proceed to make the decision that ought to have been made properly at first instance by the Arbitrator, based upon the necessary calculations and reasons to support it, as I do not have sufficient information in front of me to make those calculations. Hence I am not able to substitute the appropriate detailed monetary orders to finalise this matter.
Consequently, it is appropriate that I refer this matter to the Registrar, to put before an Arbitrator, so that the determination can now be properly made according to law.
DECISION
The Commission’s decision on this appeal is as follows:
(a) The appeal is allowed.
(b) The following orders are made:
1. The decision of the Arbitrator is revoked.
2. The matter is returned to the Registrar for allocation to an Arbitrator to determine, in the event the parties cannot agree, the amount of weekly compensation to which the Appellant is entitled in accordance with section 40 of the 1987 Act, and in the light of the matters set out in these reasons.
3. The Respondent is to pay the Appellant’s expenses under section 60 of the 1987 Act on production of accounts or receipts.
COSTS
The Respondent Insurer should pay the costs of this appeal.
Justice Terry Sheahan
President
I certify that that this is a true and accurate record of the reasons for decision of President, Justice Terry Sheahan, Workers Compensation Commission
Registrar Date:
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