Berry v Department of Education and Training
[2007] NSWWCCPD 75
•5 March 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Berry v Department of Education and Training [2007] NSWWCCPD 75
APPELLANT: Julie Berry
RESPONDENT: Department of Education and Training
INSURER:GIO General Limited
FILE NUMBER: WCC7878-06
DATE OF ARBITRATOR’S DECISION: 1 September 2006
DATE OF APPEAL DECISION: 5 March 2007
SUBJECT MATTER OF DECISION: Weight of evidence
PRESIDENTIAL MEMBER: Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION: Appellant: MacMahon Associates
Respondent: Rankin & Nathan
ORDERS MADE ON APPEAL: Time to appeal is extended to 12 October 2006.
The decision and orders of the Arbitrator dated 1 September 2006 are confirmed.
No order as to costs of the appeal.
BACKGROUND TO THE APPEAL
On 12 October 2006 Julie Berry (‘the Appellant Worker/Ms Berry’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 1 September 2006.
The Respondent to the Appeal is the Department of Education and Training (‘the Respondent Employer/the Department’).
Ms Berry was born on 25 March 1955 and has worked for the Respondent Employer as a teacher at West Wallsend High School for approximately 26 years.
On 30 August 2000 she was driving home from school when she was involved in a serious car accident. She was conveyed by ambulance to John Hunter Hospital where she was admitted for four days suffering from severe dyspnoea as a result of a fractured sternum and chest wall pain.
As a result of her injuries Ms Berry was unable to attend work until November 2000 when she returned to her normal duties. She was again off work from March 2001 to November 2001. She returned to work for three days per week in 2002. After an unsuccessful attempt at fulltime duties for a short period in 2003 she returned to and continued work for three days per week up to the date of the Arbitration hearing on 18 August 2006.
Liability for her claim was accepted and weekly compensation and medical and hospital expenses were paid up to 10 0ctober 2005. By letter from GIO General Ltd (‘GIO’) dated 31 August 2005 liability was declined on the basis of medical evidence from Dr Silver dated 25 January 2005.
An Application to Resolve a Dispute (‘the Application’) was registered in the Commission on 23 May 2006. The Application sought weekly compensation in the sum of $340.90 from 11 October 2005 to date and continuing plus lump sum compensation in respect of the following:
·15% permanent impairment of the back;
·20% permanent impairment of the neck;
·5% permanent loss of use of the left leg at or above the knee;
·5% permanent loss of use of the right leg at or above the knee, and
·15% permanent impairment of sexual function.
A claim was also made for hospital and medical expenses.
By its Reply filed on 5 June 2006 the Department disputed injury, incapacity, whether the claimed medical expenses were reasonably necessary and whether Ms Berry had suffered any permanent impairments or losses as alleged or at all.
The claim could not be resolved and proceeded to arbitration when Ms Berry gave oral evidence and each side made submissions. In a reserved decision the Arbitrator found in favour of the Respondent Employer on all issues save for the injury to Ms Berry’s neck, which was conceded by the Department.
Ms Berry seeks leave to appeal from the Arbitrator’s decision.
LEAVE TO APPEAL
Monetary Threshold
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’).
The quantum in issue on the appeal is in excess of $5,000.00 and therefore the threshold in section 352(2)(a) of the 1998 Act is satisfied. No award of compensation has been made in this case but the Arbitrator’s findings would result in the Respondent Worker receiving no compensation (save for her injury to her neck which is to be assessed by an Approved Medical Specialist (‘AMS’) and therefore the second limb of section 352(2) does not apply (see Mawson v Fletchers International Exports Pty Ltd [2002] NSWWCCPD 5).
Time
The appeal was initially filed on 29 September 2006, within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act. However, the Registrar rejected the appeal because, having been lodged on an out-of-date form, it failed to attach submissions as to whether or not leave to appeal and the appeal should be determined on the papers and whether or not fresh evidence was to be relied upon on appeal. The letter rejecting the initial appeal papers was dated 5 October 2006 and was received by the Appellant Worker’s solicitor on 9 October 2006. The appeal was filed again (using the correct form) on 12 October 2006.
An extension of time in which to appeal can be granted in certain limited circumstances. Part 16 Rule 16.1(11) of the Workers Compensation Commission Rules 2006 (‘the 2006 Rules’) provides:
“(11) The Commission constituted by a Presidential member may, if a party satisfies the Presidential member, in exceptional circumstances, that to lose the right to seek leave to appeal would work demonstrable and substantial injustice, by order extend the time for making an appeal.”
The question of extending time to appeal was considered by Justice McHugh in Gallo v Dawson (1990) 93 ALR 479 where his Honour said at 480:
“The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194-5; 70 ALR 185. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871 at 872; Hughes at 263-4, Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has ‘a vested right to retain the judgment’ unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201.”
The Appellant Worker submits that the appeal was originally filed in time but rejected because of an administrative error by her solicitor. It is argued that the refusal to extend the time to appeal will result in a demonstrable and substantial injustice to Ms Berry as the appeal is in relation to a wage claim and a claim for lump sum compensation.
The Respondent Employer makes no submissions on this issue.
In all the circumstances and having regard to the fact that the appeal was originally filed in time, I believe that strict compliance with the 28 day time limit would result in demonstrable and substantial hardship to the Appellant Worker and I therefore extend the time to appeal until 12 October 2006.
I grant leave to appeal.
PRELIMINARY MATTERS
Section 354(6) of 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.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 1 September 2006, records the Arbitrator’s orders as follows:
“1.Award for the Respondent with respect to the Applicant’s claim pursuant to s66 of the Act with respect to injury to the back, left leg, right leg and sexual organs.
2.Award in favour of the Respondent with respect to the Applicant’s claim for weekly compensation from 11 October 2005.
3.No order as to costs.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a)finding that Ms Berry was not partially incapacitated for work;
(b)finding that Ms Berry had not suffered an injury to her back, legs or sexual organs;
(c)failing to take into consideration Ms Berry’s neck injury when determining whether she suffered an incapacity for work, and
(d)failing to give proper weight to the medical evidence regarding Ms Berry’s neck injury.
SUBMISSIONS
The Appellant Worker submits:
a)the Arbitrator’s decision is affected by legal, factual and/or discretionary error in that she found Ms Berry was not partially incapacitated for work and that she had not suffered an injury to her back, legs or sexual organs;
b)in finding that the Appellant Worker had no incapacity for work the Arbitrator was in error because she failed to take into consideration the effect of Ms Berry’s accepted neck injury on her capacity to work;
c)Ms Berry’s evidence was that she was unable to work full time due to constant pain in her neck and back. Her attempt to return to work full time in 2002 was unsuccessful “due to an emotional breakdown relating to her pain she experienced” (Appellant Worker’s submissions paragraph 11);
d)the Arbitrator failed to give proper weight to the medical evidence regarding Ms Berry’s neck injury;
e)the Arbitrator failed to adequately consider the report of Robyn Douglass, clinical psychologist, who stated in her report of 10 April 2002 that Ms Berry had been unable to manage her pain which included a dull ache all the time in her neck;
f)Dr Rabone, occupational physician, who saw Ms Berry on behalf of the insurer on 22 April 2003, accepted that Ms Berry’s neck pain was related to the accident and that her symptoms would worsen if she increased her work from three days per week;
g)Professor Fearnside, neurological surgeon, opined in his report of 2 February 2006 that Ms Berry suffered significant injuries to both her neck and low back in the subject accident and that it was unlikely that she would be able to increase her hours and she would continue to experience chronic pain;
h)both Dr Russo and Professor Fearnside were of the view that the late onset back pain related to the subject car accident;
i)Dr Russo felt that there was no question that Ms Berry had facet joint pain secondary to the car accident;
j)the Arbitrator’s decision should be revoked and an award made in favour of the Appellant Worker from 11 October 2005 to date and continuing pursuant to section 40 of the Workers Compensation Act 1987 (‘the 1987 Act’), and
k)the matter should be referred to an AMS for determination as to whether Ms Berry has suffered any permanent impairment of her back, legs and sexual organs.
The Respondent Employer submits:
a)the Arbitrator’s determination does not demonstrate any legal, factual or discretionary error;
b)in reaching her conclusions the Arbitrator specifically considered the evidence before her, including evidence from Professor Fearnside, Dr Tan, CT scans, Dr Russo’s reports and certificates and reports from Dr Russo Kwa. She then contrasted and compared that medical evidence with the reports of Drs Silver, Rabone and Messmer and preferred the opinions of Drs Silver and Rabone to those of Drs Fearnside and Kwa, and
c)it was a matter for the Arbitrator to determine what weight she placed upon the medical and factual evidence.
ARBITRATOR’S REASONS
In a carefully prepared and detailed Statement of Reasons for Decision (‘Reasons’) the Arbitrator considered the evidence and concluded that:
a)there was no “reasonably contemporaneous evidence of any complaints in relation to the lower back” (Reasons, paragraph 45) and no complaints of back pain for at least six months and possibly 10 months (Reasons, paragraph 47);
b)the bone scan done in June 2001 and the CT scan done in August 2001 revealed degenerative changes. The fact that the Ms Berry had not improved for 4 ½ years, despite being off work for at least 18 months before a return to work on only three days per week, was “supportive of the conclusion that degenerative changes are responsible for any pain she may be having” (Reasons, paragraph 46);
c)she preferred the opinions of Drs Silver and Rabone that Ms Berry’s back complaints were not “as a result of the motor vehicle accident” (Reasons, paragraph 47);
d)Ms Berry did not sustain any injury to her back as a result of the motor vehicle accident on 30 August 2000 (Reasons, paragraph 48);
e)any injury to Ms Berry’s legs was as a result of referred pain from her back and any loss of sexual function could only arise as a result of injury to her back. Therefore, Ms Berry did not suffer any injury to her legs or any loss of sexual function as a result of the motor vehicle accident on 30 August 2001 (Reasons, 49);
f)Dr Kwa, Ms Berry’s general practitioner, certified her as fit for suitable duties for three days per week since he took over management of her condition in January 2003 but his report of 16 May 2006 did not provide a clear reason for his continued certification, simply noting that she has been working for three days per week with a one hour break and no computer work and that her incapacity was the result of injuries sustained in the accident (Reasons, paragraph 53), and
g)on the balance of probabilities the Respondent Employer’s evidence was to be preferred in relation to the Appellant Worker’s capacity for full time work as a teacher. Considering the duties performed by Ms Berry and the fact that she could manage sitting down for some time at work at most times during the day if required, Ms Berry has a capacity to perform her pre injury duties (Reasons paragraph 59).
REVIEW
The nature of a review and the role and function of a Presidential member on appeal has been considered in many cases in the Commission. In The King Island Company Limited v Deery [2005] NSWWCCPD 1 it was held at [19]:
“19. A Presidential Member on appeal has a specific and limited role in the review of a decision of an Arbitrator. The review is not a rehearing. The Presidential member is not dealing with the matter de novo and is not arriving at a fresh decision based on all of the evidence available at a later time (Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616). The powers of the Presidential Member to revoke the decision pursuant to section 352(7) of the 1998 Act and to substitute a new decision in its place, are exercisable only where it is demonstrated that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172). Alternatively, the Presidential Member may remit the matter back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions made.”
Before an Arbitrator’s decision will be revoked on review it must by demonstrated that it contains or has resulted from an error of fact, law or discretion. The error must be such that, but for it, a different decision should have been made (see Snow Confectionary Pty Ltd v Askin [2004] NSWWCCPD 56; Section 294 of the 1998 Act; YG & GG v Minister for Community Services [2002] NSWCA 247; Absolon v NSW TAFE [1999] NSWCA 311).
I intend to apply the above principles in the matter before me.
Ms Berry’s Evidence
Ms Berry’s evidence was set out in her statements of 11 January and 4 August 2006 (her letter of 25 July 2006 not being admitted into evidence) and in her oral evidence at the Arbitration hearing on 18 August 2006. In summary her evidence was that:
a)as a result of her injuries she can only stand or sit for short periods and is “restricted in bending, writing on the blackboard, reaching, computer use, carrying, walking up stairs etc” (statement, paragraph eight);
b)sexual intercourse is restricted as is walking inclines, exercising and dancing (statement, paragraph nine);
c)she has difficulty with housework and gardening (statement, paragraph 10);
d)it is emotionally draining dealing with pain and bouts of depression and she has trouble sleeping as a result of her injuries (statement, paragraph 11);
e)when she stopped taking pain killers she had pain in her neck and left side of her lower back. In this period she had physiotherapy and resumed work on restricted duties in mid November 2000 (statement, paragraph 12);
f)she worked restricted duties and hours in 2001 and was unable to cope physically and mentally with full time duties which she attempted for three weeks in 2002 (statement, paragraphs 13 and 14);
g)two sessions with a pain specialist to “deaden nerves” in her lower back were unsuccessful (statement, paragraph 15);
h)from 2003 she has been working three days per week;
i)her duties as a food technology teacher are very physical with long periods of standing and “constantly leaning over to supervise” children and bending down to get things out of the oven (transcript, page five line nine);
j)her duties require her to teach a practical subject which involves reaching and stretching to write on a whiteboard, sitting to use a computer, bending to remove students cookery from ovens, carrying text books and equipment, helping students with projects, and working at a desk (statement, 4 August 2006);
k)her emotional well being is “frequently jeopardised throughout the school day” and has lead her to feal “overwhelmed, depressed, teary, nauseated and shaky” (statement, 4 August 2006);
l)she did not think she would be able to work full time because of a combination of her emotional stability and the stress level of the job while she has “constant back pain and neck pain” (transcript, page five line 57);
m)she was determined not to put herself through the period where she was depressed and she could see that if she worked five days per week that it “could be a possibility that she could suffer from depression and stress and that type of thing again” (transcript, page six line three), and
n)she has not had further treatment because her general practitioner told her there was nothing else that could be done and her physiotherapist told her that “it was nerve and not muscular” (transcript, page six line 10).
Medical Evidence
The first medical report in evidence is from Dr Young, medical officer with the GIO Medical Services, dated 25 October 2000. He took a history of the car accident on 30 August 2000 and that Ms Berry fractured her sternum on the steering wheel. That injury resulted in her being admitted to John Hunter Hospital for four days. He also recorded that Ms Berry developed constant pain in her neck, which radiated towards her right shoulder and was associated with a restricted range of neck movement. There were no symptoms suggesting nerve root irritation into her arms. Ms Berry was having physiotherapy for her neck and still had minor chest pain when she coughed. On examination the doctor found Ms Berry to have a full range of movement of her neck, but with a complaint of pain on extremes of movement. Dr Young diagnosed a soft tissue injury and fractured sternum. He thought her prognosis was guarded but he expected a full recovery. He took no history of Ms Berry suffering any back injury or pain as a result of the car accident.
Dr Messmer, general surgeon, examined Ms Berry for the GIO on 24 January 2001. He took a detailed history of the accident and its immediate aftermath. He noted that on her discharge from hospital Ms Berry took strong pain controlling tablets. She started to wean herself off that medication after two weeks and as she did so she noticed she was suffering from “significant pain at the back of her neck” (Dr Messmer, 24 January 2001, page three). Physiotherapy was arranged with Glen Aveling of Kurri Kurri and was continuing as at 24 January 2001. Under ‘current status’ Dr Messmer provided an extensive list of Ms Berry’s complaints, which related exclusively to her neck and chest. On examination he found her to have a restricted range of movement of her neck. He recorded no complaint of back injury or pain and did not examine Ms Berry’s back. He thought she was capable of continuing to work three hours per day for five days per week and, if she wore a cervical collar, she could progressively extend to a full day over a period of three to four weeks (page five). He described the long-term prognosis as good.
On 18 June 2001 Ms Berry underwent a bone scan which revealed mild early degenerative changes in the lower lumbar spine and increased uptake over the left sacroiliac joint which was consistent with increased mechanical stress reaction or mild sacroiliitis. The scan was addressed to Dr Collis, Ms Berry’s general practitioner.
A CT scan was performed on 28 August 2001 (again at the request of Dr Collis), which showed an L4/5 protrusion with calcification of the nucleus and annulus with no nerve root compression.
Dr Collis referred Ms Berry to Dr Russo at the Hunter Pain Clinic in March 2002 because of her neck and back pain. Dr Russo took a history that Ms Berry felt sore “all over for one month” after the car accident. After one month she noticed pain in her neck and “approximately ten months later developed left buttock pain/low back pain on the left hand side” (Dr Russo, report 7 March 2002). On examination she was tender over C2/3 and L5/S1 facet joints. He diagnosed “facetal arthropathy in the lumbar area” and a similar problem in the cervical area, though, he considered that the latter could also have been due to myofascial pain.
In April 2002 Ms Berry was referred to Robyn Douglass because of anxiety and stress. In her report of 10 April 2002 Ms Douglass recorded that Ms Berry injured her sternum, neck and right hip in the car accident. She took no history of a back injury.
On 16 April 2002 Ms Berry underwent a short acting medial branch block to the L5/S1 facet joint at the hands of Dr Russo with short-term reduction in her. On 4 June 2002 a medial branch radiofrequency neurotomy of the L5 and S1 facet joint was performed without any change in her symptoms. A second neurotomy was performed which reduced her symptoms by 25%.
In his report of 16 August 2006 Dr Russo set out the history noted at [36] above and stated under ‘prognosis’ at page two:
“Typically, I see two types of zygapophyseal joint injuries. One is a traumatic arthropathy and in that circumstance there is generally lifelong, ongoing low back pain secondary to pain from the damaged facet joint. The second group I see are patients who have an impaction of the facet joint with subsequent pain reduction but on radiofrequency neurotomy there is relief of pain and relief of muscle spasm and unlocking of the impaction such that their pain does not recur even when the nerve has regrown when the radiofrequency neurotomy has lost its effect. Therefore, their pain does not necessarily come back. Given the dynamics of her motor vehicle crash, she is placed exactly mid way in probability between these two possibilities. What is not at question is that she has had facet joint pain secondary to the motor vehicle crash. There is a 50% chance that she is likely to end up in the category with long term ongoing pain.” (emphasis added)
Dr Russo thought Ms Berry was capable of working three days per week but that it was unlikely she would be capable of full-unrestricted duties 40 hours per week.
On 2 September 2002 Ms Berry was examined by Dr Rabone on behalf of the GIO. He took a history that she developed pain in her left hip and left leg “about 6 months after the accident”. He did not understand how Ms Berry’s low back pain was related to her motor vehicle accident as the pain came on six months after the accident and “that does not imply a causal relationship”. He suspected that Ms Berry had degeneration in her low back of unknown cause, but possibly with a work connection because her work as a teacher involved use of her back. He noted that the calcification of the discs suggested a long-standing problem. Whilst he felt that there was a basis for denying the low back claim, he added that that would require “an external medical appointment”.
In his report of 22 April 2003 Dr Rabone again expressed the opinion that the Ms Berry’s back pathology was unrelated to her motor vehicle accident. He accepted that if Ms Berry increased her hours her symptoms would worsen.
Dr Silver examined Ms Berry for the GIO on 20 January 2005 (report 25 January 2006) and took a history that “six to seven weeks after the motor vehicle accident, the pain spread from the left side of her neck down the left side of her back into the left side of the low back” (page four). In Dr Silver’s opinion the onset of back pain several weeks after the accident was inconsistent with a musculo-skeletal injury having occurred in that accident (page eight). Further, the late onset of pain which, according to Ms Berry, has remained unchanged for almost four and a half years was not compatible with her having incurred neck and back injuries at the time. The doctor felt that in light of the calcification present on the CT scan, Ms Berry had only minor pre-existing degenerative disease. Bearing in mind that Ms Berry maintains a household, does the shopping, housekeeping and looks after five adults, the doctor found little evidence that Ms Berry was physically incapacitated as she claimed. He felt that she had recovered from her fractured sternum and any soft tissue injury that may have resulted from the accident and that she had adopted a sick role that has been supported without question by her general practitioner. She was considered fit for work without restrictions.
Dr Fearnside, neurological surgeon, examined Ms Berry on 2 February 2006 and recorded that she developed neck and low back pain “within days of the accident” and then developed a gradual onset of left thigh pain and, more recently, right-sided sciatica. He also noted that Ms Berry had no history of prior neck or low back pain or of other accidents or aggravations that might have contributed to her situation. In his opinion Ms Berry sustained significant soft tissue injuries to her neck and low back in the accident. He thought it unlikely that she would be able to increase her hours of work “if she is comfortable with 3 days per week” (page four).
Ms Berry’s current general practitioner, Dr Kwa, prepared a report on 16 May 2006. He took over her care in January 2003 when Dr Collis left Kurri Kurri. His report does not disclose what history he took about the onset of Ms Berry’s symptoms. He appears to have assumed that all of her complaints were the direct result of the car accident without forming his own independent view on whether that was in fact the case. In respect of her neck injury he noted that it was “mild, mainly soft tissue” and that no x rays of her neck had been done. In respect of the ‘back injury’ he noted there was an L4/5 mild disc protrusion. He said that Ms Berry was gradually rehabilitated to allow her to work three days per week of her normal work with a one-hour break and no computer work. He then added: “her incapacity to do normal pre-injury duties was the result of the injuries she sustained following the motor vehicle accident”.
Dr Silver again examined Ms Berry on 27 June 2006 when she reported that her symptoms remained the same as they had been in January 2005. He felt that her continuing neck and back symptoms were the “manifestations of a functional somatic syndrome that is not the sequel of the motor vehicle accident” (page nine) and that the examination findings were of “florid abnormal illness behaviour” with no organic basis for support (page 10).
Dr Fearnside was asked to comment on Dr Silver’s report of 25 January 2006 and did so in a report dated 22 July 2006. Dr Fearnside conceded that he was reliant upon Ms Berry for her “self report of her symptoms” and that he had not seen any x-rays. However, he was satisfied that her complaints were “consistent with injuries sustained in the subject motor vehicle accident”.
DISCUSSION AND FINDINGS
Back Injury
As noted by the Arbitrator, there was no reasonably contemporaneous evidence of any complaints by Ms Berry of low back pain immediately after the car accident. The evidence was that those complaints started either six months (Dr Rabone, 2 September 2002) or ten months (Dr Russo, March 2002) after the accident. Dr Fearnside’s history of back pain developing within days of the accident was incorrect and seriously diminished the weight to be attached to his conclusions. He did not attempt to explain the delayed onset of Ms Berry’s back and leg symptoms. That delay was noted in Dr Silver’s report of 25 January 2005, which had been sent to him for comment.
The evidence of Dr Young and Dr Messmer was clear. They recorded no complaint of back pain by Ms Berry when they saw her in October 2000 and January 2001 respectively. The conclusions expressed by Dr Silver were cogent, well reasoned and based on an accurate history. They were also supported by Dr Rabone’s opinion in his April 2003 report where he said that Ms Berry’s back pathology was unrelated to the accident. It was open to the Arbitrator to accept those conclusions and she did.
Whilst Dr Russo did have a history of the delayed onset of back pain he made no attempt to explain how the symptoms that developed 10 months after the accident could be said to have resulted from it. In a case where the connection between the back pain and the accident was a critical issue, the absence of an explanation of why he believed there was such a connection was a serious flaw in his report. In these circumstances the Arbitrator was not in error in not accepting his opinion, especially in the light of other evidence, which she found more persuasive.
No evidence was tendered from Dr Collis, Glen Aveling (physiotherapist) or from the John Hunter Hospital. Dr Kwa’s report did not set out when the back and leg symptoms started but merely assumed that those symptoms had resulted from the motor vehicle accident. His report was therefore of no probative value on this issue.
Incapacity
It was conceded that Ms Berry injured her neck in the motor vehicle accident. Having found that Ms Berry sustained no injury to her back or legs (Reasons, paragraph 50) the Arbitrator posed this question: “Was the Applicant incapacitated for work at any time from 11 October 2005 as result of the injury as alleged?” The ‘injury as alleged’ could only have been a reference to the accepted neck injury. The Arbitrator then analysed the evidence on that issue. I therefore reject the Appellant Worker’s submission that the Arbitrator did not take into consideration Ms Berry’s neck injury when considering her fitness for work. The Arbitrator clearly did take that evidence into account in her Reasons from paragraphs 52 to 60 inclusive, and concluded that there was no incapacity.
The Arbitrator felt that Dr Kwa’s report of 16 May 2006 did not provide any clear reason for his conclusion that Ms Berry was only fit to work for three days per week. I agree with the Arbitrator’s conclusion. Dr Kwa took over Ms Berry’s care from Dr Collis. At that time Ms Berry was only working three days per week. It seems that Dr Kwa merely continued that regime without independently assessing or certifying appropriate restrictions based on his own findings on examination. That being so his opinion was of limited probative value (see Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42 at [84]; (2005) 2 DDCR 271; and South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 at [130] to [140]) and the Arbitrator was entitled to prefer other evidence. Dr Kwa’s opinions were further undermined once the Arbitrator found that the back and leg complaints had not resulted from the motor vehicle accident.
The Arbitrator made only a brief reference to the evidence of Ms Douglass (Reasons paragraphs 28 and 54). However, that evidence was four years old at the time of the Arbitration hearing. Ms Douglass’ reference to the Appellant Worker being unable to manage her pain was a reference to her condition in 2002. The Arbitrator had to determine incapacity as at October 2005. I do not believe the Arbitrator was in error in not placing any particular weight on Ms Douglass’ report.
The Appellant Worker places considerable weight on Dr Rabone’s opinion in his report of 22 April 2003 that Ms Berry’s symptoms would increase if she increased her hours of work. However, that opinion was some years old at the date of the hearing and had been superseded by additional more up-to-date evidence. In addition, Dr Rabone thought that it was appropriate for Ms Berry to increase her hours of work in the last term of 2003. That was not done. The Arbitrator considered Dr Rabone’s evidence, along with the other evidence in the case, including Ms Berry’s oral evidence, and concluded that Ms Berry was fit for work without restriction. That finding was open on the evidence.
The Appellant Worker also relies on Dr Fearnside’s evidence that it was unlikely Ms Berry would be able to increase her hours of work “if she is comfortable with 3 days per week at the moment” (Dr Fearnside, 2 February 2006, page four). This opinion was based on Ms Berry’s subjective complaints and an acceptance of Ms Berry’s assertion that she injured her back in the motor vehicle accident. The last assumption is contrary to the Arbitrator’s finding. The assessment of Ms Berry’s complaints and their impact on her ability to work was a matter for the Arbitrator to assess having regard to all the evidence. The Arbitrator’s approach to the assessment of Ms Berry’s capacity for work was open to her on the evidence.
Conclusion
I do not believe the Arbitrator’s decision or findings are affected by any error of fact, law or discretion. Her conclusions were based on a sound and detailed analysis of the evidence and were, in my view, correct.
DECISION
The Arbitrator’s decision and orders made on 1 September 2005 are confirmed.
COSTS
No order as to costs of the appeal.
Bill Roche
Deputy President
5 March 2007
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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