Bautista v Chubb Security Services Ltd & James Milson Nursing Home
[2005] NSWWCCPD 97
•26 August 2005
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Bautista v Chubb Security Services Ltd & James Milson Nursing Home [2005] NSW WCC PD 97
APPELLANT: Julie Bautista
FIRST RESPONDENT: Chubb Security Services Ltd
SECOND RESPONDENT: James Milson Nursing Home
INSURERS:Brambles Australasia Ltd (First Respondent)
Allianz Australia Workers Compensation (NSW) Ltd (Second Respondent)
FILE NUMBER: WCC16035-03
DATE OF ARBITRATOR’S DECISION: 23 August 2004
DATE OF APPEAL DECISION: 26 August 2005
SUBJECT MATTER OF DECISION: Weight of evidence; treatment of evidence and submissions on incapacity for work
PRESIDENTIAL MEMBER: Acting Deputy President Robin Handley
HEARING:On the papers
REPRESENTATION: Appellant: Leigh Virtue & Associates, Solicitors
First Respondent: Moray & Agnew, Solicitors
Second Respondent: Rankin & Nathan, Solicitors
ORDERS MADE ON APPEAL: The decision of the Arbitrator is confirmed.
No order is made as to the costs of this appeal.
BACKGROUND TO THE APPEAL
On 20 September 2004, Julie Bautista sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) in respect of a decision dated 23 August 2004.
The First Respondent to the Appeal is Chubb Security Services Ltd (‘Chubb’). The Second Respondent is James Milson Nursing Home (‘the Nursing Home’).
Ms Bautista was born on 12 March 1961 and is aged 44. She is a single mother with two dependent children now aged 16 and 9. Ms Bautista started working for Chubb in about 1995. Her job involved counting cash, both notes and coins. She stated that in about September 1999, her neck, upper back and left dominant arm became painful and this affected her ability to work. Ms Bautista notified Chubb and submitted a claim for workers compensation which was accepted. She was referred for treatment and put on light duties. She claimed that by about July 2000, the pain had become constant and severe and she was having difficulty performing light duties.
After 18 July 2000, Chubb reduced her position to that of a casual employee working two days a week, and stopped paying her weekly compensation. Chubb has not accepted liability for any medical or related expenses since about 21 August 2000 when she was certified as being able to resume her normal duties. In early 2001, Chubb closed its Beaconsfield office where Ms Bautista worked and offered her a transfer to either Lane Cove or Springfield. She declined the offer because these locations were further from her home, and resigned from that employment with effect on 2 April 2001.
After leaving Chubb’s employment, Ms Bautista had several short term, part-time jobs before starting work for the Nursing Home as a casual nursing assistant on 24 February 2003. Her work included some lifting in the course of assisting patients and making beds. Ms Bautista stated the work aggravated the pain in her neck, back and left arm, and she also developed pain in her right arm. She said she was unable to continue with this work because of the pain, and left on 20 April 2003.
By letter dated 30 June 2003, Ms Bautista’s solicitors lodged a claim with Chubb for weekly compensation and medical, hospital or related expenses. By letter dated 2 July 2003, they also lodged a similar claim with the Nursing Home. On 9 October 2003, Ms Bautista’s ‘Application to Resolve a Dispute’ was registered by the Commission. The Application referred to injuries suffered on 20 September 1999. 5 June 2000 and due to the nature and conditions of her employment. The Arbitrator conducted teleconferences with the parties on 3 February 2004 and 7 April 2004, when he referred Ms Bautista for medical assessment by an Approved Medical Specialist. She was examined by Dr John Raorty, Orthopaedic Surgeon, on 2 June 2004, whose Medical Assessment Certificate was issued by the Commission to the parties on 29 June 2004. On 19 July 2004, the Arbitrator conducted a further teleconference with the parties. On 2 August 2004, conciliation having proved unsuccessful, the Arbitrator conducted an arbitration hearing, following which, on 23 August 2004, he made the determination set out below.
THE DECISION UNDER REVIEW
The Certificate of Determination, dated 23 August 2004, records the Arbitrator’s orders as follows:
“1. Award in favour of the First Respondent in respect of the Applicant’s claim for weekly payments of compensation.
2. That the Second Respondent pay the Applicant weekly compensation at the rate of $253.58 for 6 weeks in respect of the period from 21 April 2003 to 1 June 2003 under s38 of the Workers Compensation Act 1987, namely $1521.48.
3. That the First Respondent is liable under s60 of the 1987 Act for any unpaid medical and associated expenses for treatment that was reasonably necessary in the period from 5 June 2000 up to 21 August 2000, upon production of receipts or statements.
4. That the Second Respondent is liable under s60 of the 1987 Act for any unpaid medical and associated expenses for treatment that was reasonably necessary in the period from 13 April 2003 to 1 June 2003, upon production of receipts or statements.
5. That the First Respondent pay the Applicant’s costs as agreed or assessed.”
The Arbitrator summarised the resolution of the issues in dispute as follows:
“Weekly Benefits Claim:
• On 5 June 2000, Julie Bautista received an injury being chronic overuse syndrome arising out of or in the course of her employment as a money counter with Chubb Security Services Limited.
• In the period 24 February 2003 and [sic] 20 April 2003, Julie Bautista suffered an aggravation of her injury, being a disease, arising out of or in the course of her employment with James Milson Nursing Home.
• In each case, Julie Bautista’s employment was a substantial contributing factor to the injury.
• Julie Bautista was partially incapacitated for work with Chubb Security Services Limited as a result of her injuries from 26 June 2000 to 24 August 2000, but there is no evidence that her earnings were reduced.
• Julie Bautista was partially incapacitated for work after leaving the employ of James Milson Nursing Home as a result of the aggravation of her injuries from 21 April 2003 to 1 June 2003.
• Julie Bautista’s probable weekly earnings, but for the injury, had she continued to be employed in the same or some comparable employment, are $253.58 per week.
• She was not suitably employed in the period of her partial incapacity to work.
• Julie Bautista is therefore entitled to weekly payments for the period of partial incapacity for work from 21 April 2003 to 1 June 2003 of $1521.48.Medical Expenses Claim:
• the First Respondent is liable under s60 of the 1987 Act for any unpaid medical and associated expenses for treatment that was reasonably necessary in the period from 5 June 2000 up to 21 August 2000, upon production of receipts or statements; and
• the Second Respondent is liable under s60 of the 1987 Act for any unpaid medical and associated expenses for treatment that was reasonably necessary in the period from say one week prior to her resignation, 13 April 2003, to 1 June 2003, upon production of receipts or statements.”
ISSUES IN DISPUTE
The issues in dispute in the appeal concern whether Ms Bautista was partially incapacitated for work after 18 July 2000. Ms Bautista’s solicitors identified nine grounds of appeal asserting errors of law and fact by the Arbitrator in his treatment of the evidence, submitting that he failed to have proper regard to the evidence filed and the submissions made on behalf of Ms Bautista, failed to properly apply the provisions of the Workers Compensation Act 1987 (‘the 1987 Act’) in determining her entitlement to weekly compensation, and failed to give adequate reasons for his decision. Chubb rejects these submissions. The Nursing Home submits that the award against it should be revoked because there is no relevant evidence to support a finding that Ms Bautista was incapacitated as a result of any injury/aggravation arising out of her employment with the Nursing Home. The parties’ submissions are discussed more fully below under the heading “Submissions, Discussion and Findings”.
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.”
I have had regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions by the parties. Ms Bautista’s solicitors submit that because the issues in this matter are complex and the compensation involved is very substantial, Ms Bautista should be given the opportunity to present a detailed review of the law as it applies to the peculiar factual circumstances of this case at an oral hearing. Both Chubb and the Nursing Home submit that the Appeal can be determined ‘on the papers’.
Having considered these submissions, 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 first 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), Ms Bautista’s solicitors claim that the amount of weekly compensation at issue to date, in the case of Chubb, would be approximately $110,000 plus an ongoing entitlement of $24,000 per annum, and in the case of the Nursing Home, would be approximately $40,000 plus an ongoing entitlement of $24,000 per annum. On this basis, I am satisfied the amount of weekly compensation at issue exceeds $5,000 and comprises more than 20% of the amount awarded by the Arbitrator in the decision appealed against. Accordingly, the section 352 threshold has been met, and I grant leave to appeal.
EVIDENCE
Minutes of a meeting held at Chubb’s premises on 18 July 2000, between William Bull, Manager, Louise Warren, Cashroom Supervisor, Orlando Xabregas, Rehabilitation Co-ordinator, and Ms Bautista, and apparently signed by all four, record that the meeting discussed the restrictions on Ms Bautista’s ability to work, for example:
“1. No lifting over 5 kg
2. Avoid forceful pushing and pulling
3. No repetitive or prolonged use of left arm above shoulder level”
as well as her changing her employment:
“Julie has decided to put in her resignation going from permanent into two day a week casual.
Julie gave the reason for this because of her family, she is a single parent, with two children, and her son is going into high school and she has decided to only work Monday and Wednesday, 6.30 hours per day. This will start from Monday 24th July 2000.
It was explained to Julie that once she became casual her make up pay would cease, she will only receive her Grade 2 casual rate per hour.”
By letter dated 18 July 2000 addressed to Chubb, Ms Bautista confirmed her resignation from a permanent position and her wish to continue in casual employment for 2 days a week.
In her statement dated 22 July 2003, Ms Bautista said the light duties provided by Chubb:
“10. … still caused me pain particularly the writing which was very repetitive.
11. By about July 2000 the pain in my neck, upper back and left arm was constant and severe. I found I was having difficulty with even the lighter work offered me by Chubb …
13. In about July 2000 Chubb moved me from 5 days per week to 2 days per week. My salary was reduced accordingly however I did not receive any make up pay from Chubb. I understood that the change in my hours of employment was solely as a result of my injuries and me being unable to carry out full employment. I do recall a meeting at the time with some managers of Chubb although no member of my union was present. In that meeting I recall discussing with my managers my injuries and the problems I was having carrying out my work duties and my domestic activities.”
Ms Bautista stated that when she working full-time for Chubb she was earning between $810 and $820 per week gross. She said she resigned her position with Chubb in 2001 because of her injuries, at the time when the Beaconsfield office, where she worked, closed and she was offered a transfer to either Lane Cove or Smithfield. She continues to suffer “pain, stress and disability” which affect virtually all her recreational, domestic and employment activities. She said that when she obtained employment as a casual assistant with the Nursing Home, she found the work, which involved helping patients in and out of bed, and making beds, aggravated the injuries to her neck, upper back and left arm and, after about two months, she could not continue with it. Since then, “the pain I suffer in my neck, upper back, left arm and right arm has remained constant”.
A letter from the Nursing Home, dated 20 May 2003, stated that Ms Bautista was employed there from 24 February 2003 to 20 April 2003 during which she worked a total of 144 hours for which she was paid $2,282.22 gross.
Both Ms Bautista’s solicitors and Chubb filed medical evidence. The Nursing Home did not file any medical evidence other than WorkCover certificates. Ms Bautista’s solicitors filed two reports from Dr Peter Conrad, Surgeon, dated 5 March 2004. Dr Conrad said Ms Bautista sustained “a neck strain, left shoulder strain and a back strain” as a result of the heavy repetitive work she performed for Chubb. Her condition was temporarily aggravated by her work at the Nursing Home. He concluded that she was not fit to return to work as a cash counter or nurse in a nursing home, but she might be able to do 12 hours a week of light duty cleaning work with restrictions.
Chubb relied upon a report from Dr Hugh Marsden, Consultant Surgeon, dated 27 October 1999, and reports from Dr David Millons, Surgeon, dated 1 March 2004 and 19 April 2004. Dr Marsden said there was no reason to believe that Ms Bautista’s work would “give rise to any significant disorder of the lumbosacral spine or the left upper limb as a primary causative factor”. He considered Ms Bautista might have been naturally fatigued in the course of her employment, but this could be expected to resolve completely after rest. He was unable to find any “organic basis for the alleged continuing and progressive work-related complaint either at the lower back or at the left elbow”, and considered Ms Bautista “at present physically fit to resume her work without restriction”.
In his principal report of 1 March 2004, Dr Millons said:
“I can find little convincing evidence to substantiate Mrs Bautista’s complaints of ongoing neck and upper limb problems since 1999. She describes fairly fast, repetitive work at Brambles/Chubb, counting money. She could have developed some muscle strain around her neck and left upper limb at that time.”
Dr Millons noted “some very early degenerative change in the neck which would be consistent with a lady of her age”, a possible “supra-spinatus tear” in the left shoulder that “could be degenerative and need not necessarily relate to her work”, and possibly “some early degenerative changes in the lower lumbar region as a result of her age”. He concluded:
“I am not convinced that there is any quantifiable impairment of the neck or back which would reflect her time at Chubb or James Milson Nursing Home. There may be some minor irritability at the left shoulder which has come about as a result of the normal processes of attrition. Her work does not appear to be a substantially aggravating factor.”
Chubb also submitted a report dated 13 July 2000 from Dr Frank Beard, the treating doctor to whom she was sent by Chubb. Dr Beard said that on 26 June 2000, he had diagnosed a “soft tissue injury to the neck, left shoulder and scapulo-thoracic regions” that he attributed to an incident “in early June 2000” when Ms Bautista lifted a heavy satchel from the ground while at work. He recommended physiotherapy and appropriate restricted duties, and considered this problem was likely to fully resolve with no resultant permanent disability. However, her employment with Chubb was a substantial contributing factor to this injury. Dr Beard noted Ms Bautista had suffered a similar injury in 1999 that had “fully resolved when seen on 28th October 1999”. In WorkCover certificates dated 24 July 2000 and 7 August 2000, Dr Beard diagnosed “neck/left arm pain” and said Ms Bautista was fit for suitable duties with restrictions on lifting, pushing, pulling and elevating her arms. In a WorkCover certificate dated 21 August 2000, Dr Beard diagnosed “resolved neck & left arm pain” and said she was fit for her pre-injury duties.
The Nursing Home wrote to Ms Bautista on 5 August 2003 denying liability for her workers compensation claim and basing this decision in part on a WorkCover certificate from Dr Andrew Tuan Anh Le, her treating general practitioner, dated 7 May 2003. Dr Le referred to the date of injury as 5 June 2000, stated that it occurred counting money, and diagnosed “left rotator cuff injury from over used [sic]”. He stated Ms Bautista was fit for suitable duties from 7 May 2003 to 7 August 2003 with restrictions on lifting more than 2 kgs, and avoiding repetitive use of the upper limbs. Ms Bautista’s solicitors also relied upon another WorkCover certificate from Dr Le dated 16 April 2004, in which he diagnosed “Bilateral rotator cuff injury” and stated Ms Bautista was unfit for work from 16 April 2004 to 16 July 2004. Dr Le did not, in this later certificate, specify how the injury occurred or the date of injury.
Following a teleconference with the parties on 7 April 2004, the Arbitrator referred Ms Bautista for assessment by an Approved Medical Specialist (‘AMS’) requesting that the AMS address a number of specific questions. The AMS, Dr John Raorty, Orthopeadic Surgeon, in a Medical Assessment Certificate issued on 29 June 2004, disagreed with Dr Conrad’s opinion but agreed with the opinion expressed by Dr Millons. Dr Raorty said, in his opinion, Ms Bautista had not sustained:
“any neck strain at all, nor has she any strain in the region of the left shoulder or back strain. Her condition is a syndrome as an expression of pain. There is no physical evidence of any localised strain in the above areas.”
In answer to specific questions posed by the Arbitrator, Dr Raorty said Ms Bautista’s “overuse syndrome did arise out of her employment and the conditions of her occupation as a cash counter”. Her employment was therefore a contributing factor. He said: “There was no evidence that she had any previous condition which could have been aggravated. There was a deterioration of the overuse syndrome due to her employment.” Although not clear, the wording of Dr Raorty’s certificate suggests his comments about overuse syndrome apply principally to Ms Bautista’s left arm and shoulder. However, he found: “Examination of the right shoulder, right elbow, right wrist presented similar findings [to those of the left] to a lesser extent.”
In terms of the periods during which Ms Bautista was totally or partially incapacitated for work, Dr Raorty said:
“She was totally disabled in as much as she would not have been able to resume her previous work as a money counter involving repetitive use of the left arm but she would have been quite fit to participate in any other work outside these restrictions. Her work at the James Milson Nursing Home would have been a temporary aggravating factor.”
When reading this opinion, which is non-conclusive and to be treated as evidence pursuant to section 326 of the 1998 Act, earlier statements by Dr Raorty that he disagreed with the opinion expressed by Dr Conrad and agreed with opinions expressed by Dr Millons should be borne in mind.
SUBMISSIONS, DISCUSSION AND FINDINGS
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, Ms Bautista 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] NSW WCC PD 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.
As stated above, the issues in dispute concern whether Ms Bautista was partially incapacitated for work after 18 July 2000. There seems to be no dispute that Ms Bautista suffered an injury, namely chronic overuse syndrome, arising out of or in the course of her employment with Chubb and that her employment was a substantial contributing factor to that injury. Similarly, there appears to be no dispute that Ms Bautista suffered a temporary aggravation of that chronic overuse syndrome arising out of or in the course of her employment by the Nursing Home to which her employment was a substantial contributing factor. What is in dispute is whether Ms Bautista was incapacitated for work after 18 July 2000 when she resigned from her permanent position with Chubb and became a casual employee, and whether the temporary aggravation of her condition as a result of her employment with the Nursing Home caused incapacity after 20 April 2003 when she left that employment.
Ms Bautista’s solicitors’ first ground of appeal is that the Arbitrator erred in not accepting Ms Bautista’s unchallenged evidence, preferring to rely on inferences drawn from the documents. Chubb submits that it was reasonably open to the Arbitrator to reach his conclusions by reference to the evidence before him including documents and medical reports.
In my view, it was open to the Arbitrator to reach his conclusions on the basis of the evidence that was before him. With regard to the meeting between Ms Bautista, Mr Bull, Ms Warren and Mr Xabregas on 18 July 2000, two contemporaneous documents – the minutes of the meeting, signed by all parties, and Ms Bautista’s letter of resignation – contradict Ms Bautista’s statement, made three years later, as to what happened and the reasons for her transferring from a full-time position to working casually two days a week. The contemporaneous medical reports from Dr Beard, albeit that he was the doctor to whom Ms Bautista was referred by Chubb, also indicate Ms Bautista’s injury was nearing resolution. In a WorkCover certificate dated 21 August 2000, he diagnosed “resolved neck & left arm pain” and said she was fit for her pre-injury duties. There is no other contemporaneous evidence. Ms Bautista’s solicitors contend that her evidence was not challenged and criticise the Arbitrator for drawing inferences from the other documents. The transcript of the arbitration hearing shows that these matters were raised in submissions before the Arbitrator and that Chubb challenged Ms Bautista’s version of events at the meeting on 18 July 2000. In my view, there is nothing to suggest that the Arbitrator denied Ms Bautista procedural fairness or made any other error of law in his treatment of the evidence before him.
The second ground of appeal is that the Arbitrator erred by finding that while Ms Bautista suffered injury, she suffered no ongoing partial incapacity. Ms Bautista’s solicitors submit it is her unchallenged evidence that since suffering injury “she has suffered a substantial partial incapacity for employment”. Chubb denies that her evidence on this was unchallenged – “it seriously challenged” her evidence, and the finding was reasonably available on the evidence, particularly that of Dr Millons. The Nursing Home submits there was no contemporaneous medical evidence to support the Arbitrator’s finding that Ms Bautista was incapacitated for work as a result of any temporary aggravation of her condition arising out of her employment by the Nursing Home.
The third, related ground of appeal is that the Arbitrator erred by finding Ms Bautista was not totally or partially incapacitated for work after 21 August 2000. Ms Bautista’s solicitors submit that despite Ms Bautista’s unchallenged evidence, the Arbitrator seems to have decided Ms Bautista was not incapacitated because of a lack of contemporaneous medical evidence. Chubb submits the Arbitrator’s finding was open to him on the evidence and was clearly supported by the opinion of Dr Millons.
With regard to the second and third grounds of appeal, the Arbitrator found Ms Bautista was partially incapacitated for work as a result of the injury she suffered while working for Chubb, but that this partial incapacity had ceased on 24 August 2000. This is in accord with Dr Beard’s WorkCover certificate dated 21 August 2000. It is clear that Chubb challenged Ms Bautista’s evidence as to there being ongoing incapacity and relied on the medical evidence to the contrary, particularly that of Dr Millons. The Arbitrator preferred the opinion of Dr Raorty that, during this period, Ms Bautista was fit to participate in any work not involving repetitive use of the left arm.
With regard to her condition while working for the Nursing Home, the Arbitrator relied on Dr Raorty’s opinion that Ms Bautista suffered a temporary aggravation, which seems to accord with the other evidence including the contemporaneous WorkCover certificate issued by Dr Le on 7 May 2003, who found her fit for suitable duties subject to restrictions. Lacking other contemporaneous evidence, the Arbitrator found Ms Bautista was partially incapacitated for work for a period of six weeks after leaving her employment at the Nursing Home, basing this on the medical evidence as to the time she took to recover from the injuries suffered in September 1999 and June 2000 – four to eight weeks, and having regard to Dr Le’s WorkCover certificate dated 7 May 2003. The evidence of Dr Millons and Dr Raorty also supported findings as to the conclusion of the periods of partial incapacity. Thus, I am not persuaded that the Arbitrator erred in relation to his findings on the cessation of the periods of incapacity.
The fourth ground of appeal is that the Arbitrator failed to draw inferences in accordance with the principles of Jones v Dunkel (159) 101 CLR 298 from the Nursing Home not lodging Dr Pillemer’s report and from Chubb not calling evidence from its employees as to what occurred at the meeting held on 18 July 2000. Chubb submits that the principles of Jones v Dunkel have limited application because of the Commission’s procedures. In the absence of further evidence from Ms Bautista as to what happened at the meeting on 18 July 2000, there was no need to call any further evidence other than to rely on the minutes of the meeting. The Nursing Home does not address Dr Pillemer’s report in it submissions.
I note that pursuant to section 354 of the 1998 Act, the Commission is not bound by the rules of evidence. It is, of course, bound by the principles of procedural fairness and must give parties the opportunity to address evidence against them (Aluminium Louvres & Ceilings Pty Ltd v Zheng [2004] NSW WCC PD 26 (‘Zheng’), at paragraph 25). In my view, Ms Bautista’s solicitor made use of this opportunity during the course of the arbitration hearing when he made submissions to the Arbitrator concerning the meeting on 18 July 2000 and in relation to the Nursing Home’s not filing a report from Dr Pillemer, who, apparently, examined Ms Bautista at the request on the Nursing Home on 10 February 2004. In my view, it is clear from his Statement of Reasons, that the Arbitrator took these submissions into account when deciding what weight to accord the evidence. I am not persuaded that there was any breach of procedural fairness and I reject the fourth ground of appeal.
The fifth ground of appeal is that the Arbitrator erred by preferring the minutes of the meeting of 18 July 2000 to Ms Bautista’s sworn evidence. Ms Bautista’s solicitors note that she was at the meeting without representation, and that she is a manual worker and immigrant to Australia. Moreover, there is no evidence that she was involved in the creation of the minutes. Chubb contends this submission ignores the contents of the resignation letter signed by Ms Bautista.
As I have already stated, I am not persuaded that the Arbitrator erred in his treatment of the evidence concerning this meeting.
The sixth ground of appeal is that the Arbitrator erred by finding that Ms Bautista’s incapacity caused by her employment by the Nursing Home did not extend beyond 1 June 2003. Ms Bautista’s solicitors submit the permanently modified duties for which Dr Le found her to be fit involve significant restrictions, including a limit on lifting more than 2 kgs and a permanent restriction to avoid repetitive use of the upper limbs. Moreover, there was no evidence before the Arbitrator that there are many retail or clerical positions where such restrictions would pose no difficulty. Chubb submit the conclusions drawn by the Arbitrator were reasonably open to him on all the evidence, particularly the opinion of Dr Millons. The Nursing Home notes that Dr Le certified Ms Bautista fit for suitable duties from 7 May 2003 to 7 August 2003, but does not comment on her capacity for employment between 21 April 2003 and 6 May 2003.
I note that Ms Bautista’s solicitors incorrectly assert that Dr Le’s certificate of 7 May 2003 stated that she “has reached maximum medical improvement and is fit for permanently modified duties”. Dr Le did not tick this line of the certificate. Rather he only ticked the line that stated Ms Bautista was “fit for suitable duties”. It is true that restrictions on lifting more than 2 kg and requiring that she avoid repetitive use of the upper limbs are significant. However, the Arbitrator also relied on the medical evidence as to the temporary nature of the aggravation. Again, I am not persuaded that the Arbitrator erred in his treatment of the evidence.
The seventh ground of appeal is that the Arbitrator erred by not properly applying the provisions of Part 3, Division 2 of the 1987 Act in relation to weekly compensation. In particular, the Arbitrator failed to address the steps required by section 40 of the 1987 Act and failed to take into account the evidence that Ms Bautista “suffers from permanent impairments and loss of use”. Ms Bautista’s solicitors submit it is clear that she suffers from an ongoing partial incapacity. Chubb submits the Arbitrator’s findings were reasonably open to him on the evidence.
The Arbitrator found, in my view correctly, that section 38 applied in respect of the period of partial incapacity following Ms Bautista having left the employment of the Nursing Home. Given his findings concerning the period between 18 July 2000 and 21 August 2000, he made no error in his application of the law in respect of that period.
The eighth ground of appeal is that the Arbitrator erred by finding that Ms Bautista’s probable earnings but for injury were $253.58. Ms Bautista’s solicitors submit the Arbitrator failed to take into consideration that she was incapacitated for a significant period during the financial year ending June 2000. A more appropriate indicator of her pre-injury earnings would be her Group Certificate for the previous financial year. Chubb submits the Arbitrator’s finding was reasonably available on the evidence and consistent with Ms Bautista’s decision to resign in July 2000 and work only two days a week in order to care for her children.
The Arbitrator’s finding of probable earnings was based on her working 2 days a week for the Nursing Home at a rate of $15.84875 per hour. This gives a figure of $253.58 for 16 hours work. The Arbitrator derived this information from the Nursing Home’s letter dated 20 May 2003. As Chubb contends, Ms Bautista’s working two days a week is consistent with her casual employment with Chubb after 18 July 2000 and before her resignation on 2 April 2001. The Arbitrator’s finding was open to him on the evidence and I am not persuaded he made any error in this regard.
The ninth ground of appeal is that the Arbitrator denied Ms Bautista procedural fairness by making findings based on reasoning that was not the subject of submissions nor addressed by the Arbitrator during the course of the hearing. Chubb submits the findings made by the Arbitrator were supported by the evidence and reasonably open to him on the evidence. Ms Bautista had ample opportunity to place evidence and submissions before the Arbitrator and there is no basis for suggesting she was denied procedural fairness.
Essentially, I agree with Chubb’s submission. There is nothing to indicate that the Arbitrator failed to accord Ms Bautista procedural fairness in his treatment of the evidence and submissions. In my view, there is sufficient logically probative evidence to support his findings, and his Statement of Reasons adequately explains his reasoning process. As Deputy President Fleming said in South Western Area Health Service v Edmonds [2005] NSW WCC PD 18, at paragraph 25, referring to Zheng:
“The relative weight and relevance to be given to evidence is a matter for the discretion of the Arbitrator … It is only where the Arbitrator can be said to have failed to exercise his discretion fairly and according to law that his decision should be overturned.”
This is not such an occasion, and the decision of the Arbitrator must therefore be confirmed.
DECISION
The decision of the Arbitrator is confirmed.
COSTS
No order is made as to the costs of this appeal.
Robin Handley
Acting Deputy President
26 August 2005
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.
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