Best Western Coachmans Inn Motel v Tobin
[2005] NSWWCCPD 80
•9 August 2005
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Best Western Coachmans Inn Motel v Tobin
[2005] NSWWCCPD 80
APPELLANT: Best Western Coachmans Inn Motel
RESPONDENT: Frances Mary Tobin
INSURER:QBE Workers Compensation (NSW) Ltd
FILE NUMBER: WCC11968-03
DATE OF ARBITRATOR’S DECISION: 21 May 2004
DATE OF APPEAL DECISION: 9 August 2005
SUBJECT MATTER OF DECISION: Injury pursuant to section 4 of the Workers Compensation Act 1987 and adequacy of reasons.
PRESIDENTIAL MEMBER: Acting Deputy President Deborah Moore
HEARING:On the papers
REPRESENTATION: Appellant: QBE In-House Legal
Respondent: Whitelaw McDonald
ORDERS MADE ON APPEAL: (1) Clause 1 of the Arbitrator’s decision dated 21 May 2004 is revoked and the following clause is substituted in its place:
“1. Award in favour of the Respondent (Best Western Coachmans Inn Motel) in respect of the claim for weekly benefits.”
(2)The Arbitrator’s decision is otherwise confirmed.
(3)No order is made as to costs of the Appeal.
BACKGROUND TO THE APPEAL
Frances Mary Tobin (‘the Respondent Worker’) was employed by Best Western Coachmans Inn Motel (no other details available) (‘the Appellant Employer’) as a casual house maid/kitchen maid working approximately 15 – 20 hours per week. She commenced employment on 11 September 2000.
On 16 November 2000, she was retrieving cleaning items from a storeroom when she stood suddenly and struck her head on a steel doorframe.
She complained of symptoms in her head, neck and left arm thereafter.
She consulted Dr Blackwood of the Busby Medical Practice on 21 November 2000 with neck pain. She had some treatment and radiological investigations thereafter, but took no time off work.
In September 2001 she changed jobs, and began working as a permanent part-time employee in the catering department of St Vincent’s Private Hospital at Bathurst (‘SVPH’). She claimed that this was easier than her previous position because no heavy work was involved.
On 8 October 2002 at SVPH, as she described it, she “…took a turn at work and collapsed”. She did not resume work thereafter.
Liability for medical expenses had been accepted by the Appellant Employer’s Insurer, QBE Workers Compensation (NSW) Limited (‘QBE’) following the incident on 16 November 2000. Following the incident on 8 October 2002, the Respondent Worker lodged a claim. QBE denied liability for weekly and medical benefits claiming that “…your current employer is now liable for your workers compensation entitlements”. QBE was co-incidentally also the insurer for SVPH. Following further investigations by QBE, on behalf of the Appellant Employer, liability was denied on 28 March 2003 on the grounds that “… your employment is no longer a substantial contributing factor to your current condition, any aggravation to your pre-existing degenerative condition with our insured on 16/11/2000 has since ceased.”
The Respondent Worker filed an ‘Application to Resolve a Dispute’ on 8 July 2003 seeking weekly compensation from 9 October 2002 to date and continuing, medical expenses and permanent loss compensation. The date of injury was recorded as “16 November 2000 and nature and conditions of employment until 5 September 2001…”, but the ‘nature and conditions’ claim was subsequently abandoned.
The Appellant Employer replied listing as the issues in dispute: “section 9A, section 68A, Medical [sic] Quantum”.
The claim under section 66 of the Workers Compensation Act, 1987 (‘the 1987 Act’) was referred to Dr Kenneth Hume, an Approved Medical Specialist, who examined the Respondent Worker on 16 December 2003 and prepared a report apparently on the same date. He found the Respondent Worker had a 4.5% permanent impairment of her neck and a 4.5% permanent loss of efficient use of her left arm at or above the elbow, after deducting 10% from his total assessment for a pre-existing condition.
A teleconference was scheduled on 17 February 2004. On that date, it appears that consent orders in accordance with Dr Hume’s Medical Assessment Certificate (MAC) were filed. As to the balance of the claim, the Arbitrator noted as follows:
“Weeklies and s.60 to be decided on the papers.”
He then directed the Respondent Worker to file written submissions by 8 March 2004 and the Appellant Employer by 29 March 2004. Both parties complied with this direction and filed written submissions.
A Certificate of Determination was issued on 21 May 2004. The Arbitrator determined as follows:
“1. The Respondent pay the Applicant weekly compensation as follows;
For the period 8 October 2002 – 7 April 2003, $263.96 per week.
For the period 8 April 2003 to date and continuing, $237.56 per week.2. The Respondent pay the Applicant reasonably necessary medical expenses.
3. The Respondent pay the Applicant’s costs as agreed or assessed.”
The Appellant Employer lodged an ‘Application to Appeal Against Decision of Arbitrator’, with accompanying submissions, on 16 June 2004. There are 14 grounds of appeal listed, many of them incorrect and by way of comment on the Arbitrator’s determination, but in summary they appear to be as follows:-
(a)The Arbitrator erred in finding that the Respondent Worker was totally incapacitated for employment from 8 October 2002 as a result of injury on 16 November 2000, such finding being against the weight of the evidence.
(b)The Arbitrator erred in failing to identify the nature of the injury causing the alleged incapacity and/or its relationship to the incident on 16 November 2000.
(c)The Arbitrator erred in finding that dizziness or vertigo (a possible cause for the Respondent Worker’s ‘collapse’ on 8 October 2002) was not a major cause of the incapacity and further, that such symptoms were related to the injury on 16 November 2000.
(d)The Arbitrator has not determined the Respondent Worker’s correct weekly benefits entitlement by, inter alia, failing to establish the relevant current weekly wage rate and/or failing to exercise his discretion under section 40(1) of the 1987 Act.
(e)The Arbitrator has failed to provide reasons or adequate reasons for his determination.
The Respondent Worker in her submissions dated 30 June 2004 stated that the determination of the Arbitrator was supported by the evidence and that there was no error in his findings to justify revoking the decision.
The Appellant Employer filed further brief supplementary submissions in response to the Respondent Worker’s submissions, essentially re-affirming its submissions that errors of fact and law have been made by the Arbitrator as evidenced in the earlier submissions accompanying the Appeal Application.
LEAVE TO APPEAL
The appeal was filed in time, and satisfies all the criteria set out in section 352 of the Workplace Injury Management & Workers Compensation Act 1998 (‘the 1998 Act’) and leave to appeal is granted.
ON THE PAPERS REVIEW
The Appellant Employer submits that there should be an oral hearing because “…such matters are best dealt with by way of an oral hearing”.
The Respondent Worker quite properly points out that at the teleconference on 17 February 2004, the parties were offered a hearing date for oral evidence but both parties agreed that the matter could be dealt with by the Arbitrator ‘on the papers’. The Respondent Worker submits that all the available evidence was before the Arbitrator and “it is difficult to see how an oral hearing at that time, or indeed now, could further advance the matter.”
I agree. My task on appeal is concerned with claimed error, of law, fact and/or discretion, not with the hearing of evidence and determination of the matter at first instance.
As Deputy President Fleming said in Ross v Zurich Workers Compensation Insurance [2002] NSW WCC PD7:
“A Presidential Member has a specific and limited role in the review of a decision… it is not an ‘appeal’ in the strict sense, as the Commission can receive further evidence. Similarly, it is not a ‘re-hearing’ of the matter where the Commission is re-exercising the power of the Arbitrator at first instance by hearing the matter ‘de novo’ and coming to a fresh decision based on all the evidence available at that later time…”
I am also mindful of the Commission objective to provide a timely and cost effective resolution of disputes.
Having carefully read the Arbitrator’s reasons, all the evidence before him, and the submissions on appeal, I am satisfied that I have sufficient information within the meaning of section 354 of the 1998 Act and in accordance with Practice Direction 1 to proceed ‘on the papers’, and that this is the appropriate course in the circumstances.
SUBMISSIONS AND EVIDENCE
The real issue from the Appellant Employer’s perspective in this case is whether or not the ‘turn’ experienced by the Respondent Worker on 8 October 2002 leading to her ceasing work altogether was in any way related to her injury with the Appellant Employer on 16 November 2000. The Respondent Worker had complained to SVPH that she felt “quite dizzy” and had “collapsed”.
The Appellant Employer, when declining liability on 28 March 2003, relied on reports from Dr Porges, Consultant Orthopaedic Surgeon, dated 18 December 2001 and 20 November 2002, and reports from the Respondent Worker’s treating rehabilitation physician, Dr Sophia Lahz, dated 5 December 2002 and 13 February 2003.
Dr Porges had seen the Respondent Worker in December 2001, noting that she was working 20 hours per week at SVPH. He recorded her “Present Complaints” as including intermittent discomfort in the lower cervical spine, with some radiation to the left shoulder and arm. She complained of discomfort in the neck if she attempted to rotate her neck. He then noted “since about December 2000, she has been aware of occasional blurriness of vision, but has not had any specific investigations for this”. No complaint of dizziness or vertigo was made at that time.
As to her ‘Capabilities’, he recorded:
“In her present work there is no heavy lifting as she is not involved in the lifting of patients, etc but only in helping with their food. She finds that she can cope with this work, although she has some twinges of pain and occasionally (my emphasis) needs to take analgesic medication”.
He concluded that “she is not having any period of incapacity and there is no indication that she will need to have any time away from work”. He concluded that she was fit for her present employment.
In his report of 20 November 2002, Dr Porges recorded the Respondent Worker’s continuing history that “On 8.10.02 she states that she was admitted to Bathurst Base Hospital after a ‘dizzy spell’”. A CT of her brain following that event was reported as normal. He recorded her present complaints as follows:
“She complains of dizziness, particularly if she lies down or she looks up. The pain
in the cervical area does not seem to be as severe as it was and she does not
specifically complain of this pain (my emphasis). She states that she is having
8 Panamax tablets per day, together with Nurofen tablets”.
He concluded that she was fit to work and that:
“I do not believe that she has incapacities sufficient to prevent her working. The dizziness seems a rather strange symptom and I feel it is largely psychological and undoubtedly would be influenced by the high dose of analgesic medication that she is allegedly having. I note that she states that she is constantly having the maximum dose of Panadol, and that certainly could have side effects”.
Curiously, in November 2001, the Respondent Worker was recorded as only occasionally needing analgesic medication and experiencing “some twinges of pain” only. In a letter to the Respondent Worker dated 22 October 2002, QBE noted that: “All medical treatment has ceased back in March 2002”. This is consistent with various reports from Dr McCreery, the Respondent Worker’s General Practitioner. He recorded in his report dated 25 February 2003 addressed to QBE that the Respondent Worker had not been seen in relation to “her arm ache and neck pain” between October 2001 and August 2002. On the latter occasion, (August 2002) he noted:
“She suffered from continuing neck pain and headache, dizziness, difficulty sleeping, blurring of vision and a strange sensation of rain falling especially at night. Some of these may have been reactive, but there seemed little doubt that the neck pain and headaches related to her injuries”.
Dr Lahz saw the Respondent Worker at the request of McCreery in late November 2002. She noted in her report dated 5 December 2002 the history of the injury on 16 November 2000, and the complaint of constant neck pain and left arm pain. She noted that the Respondent Worker had not worked since 8 October 2002 and that:
“On this day, she experienced an episode of giddiness at work, and collapsed. Her legs felt weak, and she could not walk. Her speech was slurred. She was aware of a spinning sensation within her head”.
Dr Lahz then said:
“Mrs Tobin says that episodic attacks of giddiness commenced in July 2002. Giddiness is positional, and develops on bending over, looking upwards, rolling over in bed and moving from lying to sitting… She has an appointment with Dr Bryan the ENT surgeon next week”.
Dr Lahz opined that the Respondent Worker’s symptoms were “consistent with benign positional vertigo (BPV). The relationship of these to the work related accident is unclear because the symptoms did not develop until July 2002, nearly 18 months after the incident”. Further, she said “the reason for the development of BPV in her case is unclear”.
There was no suggestion in this report that the symptoms either possibly or probably were related to the injury in November 2000. As to her capacity for work, Dr Lahz recorded “unfortunately, she feels ‘incapable’ of work at the moment, with the main concern being recurrent attacks of giddiness. If these symptoms improve, it would be worthwhile looking at a graduated return to work programme, although progress may ultimately be restricted by neck pain”.
In her report of 13 February 2003, Dr Lahz noted ongoing symptoms of neck and left arm pain and “she also continues to experience episodic positional vertigo. She has apparently seen Peter Bryan the ENT Surgeon, whom she says, diagnosed vertigo secondary to vestibular problems. I have explained this to her along the lines of ‘inner ear disruption of nerves’”.
Nowhere does Dr Lahz suggest that this condition is related to the injury on 16 November 2000. No report from Dr Bryan was provided to the Arbitrator.
The Respondent Worker in her statement dated 9 December 2002 said this: “I also have problems with vision and I get dizzy spells… Dr Bryan says the dizzy spells may be vertigo, caused from arthritis in my neck”.
SVPH reported in a letter to QBE dated 28 February 2003 as follows:
“On the 8th October 2002, whilst walking down a corridor, she appeared to suffer an
attack of dizziness. Our staff assisted Ms Tobin to sit down… then drove Ms Tobin
directly to her General Practitioner’s surgery… we have not seen Ms Tobin in
employment since. She has produced no certificated medical evidence to us at any
time to justify her absence from the work place… her employment with St
Vincent’s terminated by frustration of contract on 5th February 2003.
At no stage did Ms Tobin suggest she had injured herself whilst in our employ and
in fact stated to both the Facility General Manager and myself on separate
occasions that she had not incurred injury in our employ”.
The medical certificate issued by Bathurst Hospital on 8 October 2002 certified the Respondent Worker as “unfit from 8/10/02 and will be fit to resume work on 12/10/02”. The diagnosis was “collapse”.
Dr McCreery recorded in an undated report to QBE that: “In October 2002 Frances saw my associate, Dr C Marshall because of continuing symptoms and they concluded that it was not possible for her to continue working at St Vincent’s Private Hospital due to her injuries”. There was no further comment as to what those ‘injuries’ were.
Dr Lahz on 5 December 2002 felt “It is too early to conclude that she is permanently unfit for any work”. On 13 February 2003 she recorded:
“Frances feels incapable of resuming work, and ideally would choose medical retirement as her preferred option. Frances is not at all keen on vocational rehabilitation, and is in fact quite concerned that the insurance company will seek to rehabilitate her into some kind of work place! I think that any attempts in this direction are likely to be spectacularly unsuccessful. I say this on the basis of her age (50), poor education, her lack of work skills and absence of motivation”.
The only doctors to have seen the Respondent Worker during the course of her employment at SVPH were Drs McCreery and Porges. Dr McCreery saw the Respondent Worker on 26 October 2001 with “persistence of her arm ache and neck pain”. It appears he saw her approximately three weeks later when x-rays and a CT Scan of her cervical spine were ordered, and she was then referred to a physiotherapist. She was next seen in August 2002. Dr Porges saw her in December 2001 at which time, she complained of neck and left arm symptoms but no dizziness.
Dr Lahz’ description of the symptoms surrounding the ‘collapse’ at work on 8 October 2002 in her report of 5 December 2002 do not implicate neck or left arm pain as in any way causative. Dr Lahz, apparently in agreement with Dr Bryan, diagnosed BPV secondary to vestibular problems. The Respondent Worker’s view as to what Dr Bryan apparently told her is not of any assistance in the absence of a report from Dr Bryan.
There is no doubt that this event precipitated the Respondent Worker’s incapacity. She worked continuously after the injury on 16 November 2000 until 8 October 2002, albeit with some ongoing complaints of neck and left arm pain. Dr McCreery had certified her fit to continue in her work on 21 November 2000.
The symptoms of giddiness appear to have developed around July 2002 according to Dr Lahz. Those and other symptoms Dr McCreery recorded in his consultation in August 2002 as being “reactive”. Dr Porges opined that perhaps they were psychological or related to significant analgesic intake. Dr Burgess, qualified on behalf of the Respondent Worker opined that the Respondent Worker suffered from “a cervico thoracic spinal injury… with cervical spondylitis and neuralgia affecting her… left arm”. He then said “she also has more global symptoms which I feel can accompany the syndrome complex of this type of neck injury and is typical of the global range of effects of the so called ‘whiplash syndrome’.”
Dr Hume, AMS, recorded in his report of 16 December 2003, under the heading “General History” that the Respondent Worker suffered from neck pain since the accident on 16 November 2000 together with “problems with her vision on and off since the injury”. There was no reference to giddiness or dizziness. He simply recorded that “she found light work at a hospital and continued in that work until 8/10/2002, when she collapsed at work”. Her present, ie. November 2003 complaints included, inter alia, “dizzy turns, her legs get wobbly at times” and “intermittent problems with vision”. His diagnosis was that the injury on 16 November 2000 caused “some aggravation of pre-existing and possibly symptomless cervical disc degeneration”. He went on to say: “I consider it improbable that all of Mrs Tobin’s present symptoms can be attributed to the alleged injury,” and that “I do not consider that Mrs Tobin’s symptoms and signs are consistent with the after-effects of the alleged bump on the head”.
Dr Rowe examined the Respondent Worker on behalf of the Appellant Employer on 1 September 2003. In this report dated 19 September 2003, he records the incident of 8/10/02 as follows:
“On 8 October 2002 she said that she fell down at work at St Vincent’s from what
she thinks was a dizzy spell. From her description it may have been a fainting
episode. She consulted a doctor at Bathurst Base Hospital and has remained off
work since”.
He noted her main complaint at the time of consultation was “dizziness”.
He noted that the Respondent Worker “…was able to continue normal duty for another two years until she had some form of fainting or dizzy episode on 8/10/2000 [sic]…” He concluded:
“Her presentation at this stage is not that of orthopaedic or musculo skeletal pathology. Thus her current presentation is not a reflection of any abnormality in her neck or arms. She does have evidence of some degenerative change in the lower cervical spine… Her current presentation is either a reflection of non-organic factors or possibly has an ear, nose and throat or neurological basis”.
It is noted that the Respondent Worker was apparently referred to a neurologist, Dr Hammond, at Orange. No report from him was in evidence. Dr Rowe noted that “she said that QBE did pay for her to attend one consultation with Dr Hammond. She has also attended an ear, nose and throat specialist and it was he who apparently advised that she be assessed by a neurologist”.
THE ARBITRATOR’S FINDINGS AND REASONS
Was there then sufficient evidence to connect the incident on 8 October 2002 with the injury on 6 November 2000, such that any consequential incapacity could be attributed to that earlier incident? And was the incident on 8 October 2002 a further manifestation or continuation of the injury on 16 November 2000 such that it could be regarded as a substantial contributing factor to the Respondent Worker’s injuries and consequent incapacity?
The reports to which I have referred above are all that were available to the Arbitrator. Reports from Dr Bryan and Dr Hammond may well have been helpful.
The Arbitrator’s “findings and reasons” are contained in one paragraph, (paragraph 19) of his reasons. It is appropriate to reproduce the entire paragraph at this point because it also deals with other issues the subject of appeal. He said:
“I find that the Applicant suffered an injury during her employment with the Respondent and that the employment was a substantial contributing factor to the injuries now complained of. The impact of the incident in November 2000 was, as recorded by her treating Doctor, so severe in terms of medication and repetitive complaints over time, that it would be difficult to allocate such a serious deterioration either to that incident, or the triggering of what was otherwise an asymptomatic degenerative back [sic] problem. The Applicant’s Statement is not challenged, and therefore I am satisfied on her evidence, and by lack of evidence from the Respondent under section 9A(2)(d) of the 1987 Act, that her injuries were, substantially contributed to by the employment with the Respondent, and that her incapacity for work is as asserted by the Applicant, supported by the medical evidence relied upon by the Applicant. I accept the Applicant’s history of events, and the Applicant’s medical evidence on the back [sic] and left arm injuries, supported on the low degenerative factor by Dr Hume’s MAC in relation to the Respondent’s assertion that the condition was the substantial contributing factor to the Applicant’s injury. There is no probabtive evidence that the employment at St Vincent’s Hospital was the substantial contributing factor to the Applicant’s injuries. I also accept the Applicant’s assertion that she battled on in her work, took excessive medication for pain, until she found that she should not continue with her duties. I am satisfied that dizziness or vertigo may have been a contributing, but not major, cause of that. I do not accept the Respondent’s assertion that the Applicant’s incapacity was caused exclusively by the vertigo complaint as there is factual evidence of the Applicant, and supportive probative medical evidence of continuing incapacity from the complaints arising out of the November 2000 incident.”
He has not identified the Respondent Worker’s injury, nor any reasons as to why the employment with the Appellant Employer was a substantial contributing factor to “the injuries” (again not identified) now complained of, nor indeed the consequent incapacity.
The various references by the Arbitrator to the Respondent Worker’s injury to her ‘back’ is I think an obvious error. Neither party has taken issue with it, and the ultimate finding that the Respondent Worker received an injury to her neck and left arm is clearly supported by the evidence.
The reasoning in the second sentence is difficult to understand. The Arbitrator appears to suggest that “it would be difficult” to attribute any deterioration to the injury in November 2000, but then goes on to assert that “…her incapacity for work is as asserted by the Applicant, supported by the medical evidence relied upon by the Applicant”.
The incapacity, Dr Lahz suggests, as discussed in paragraphs 31 and 38 above, is due more to the Respondent Worker’s age, lack of skills and motivation, and/or “recurrent attacks of giddiness”.
The statement that:
“I accept the Applicant’s history of events, and the Applicant’s medical evidence on the back [sic] and left arm injuries, supported on the low degenerative factor by Dr Humes’ MAC in relation to the Respondent’s assertion that that condition was the substantial contributing factor to the Applicant’s injury.” Again, it is difficult to interpret.
Presumably, the Arbitrator was rejecting the Appellant Employer’s assertion that the Respondent’s Worker’s ‘degenerative’ neck condition was the substantial contributing factor to the Respondent Worker’s injuries. I am satisfied that the bulk of the medical evidence supported the proposition that the substantial contributing factor to the injury to the neck and left arm was indeed the injury on 16 November 2000, and the Arbitrator’s apparent ‘finding’ that the degenerative changes were not ‘substantial’ is supported by evidence.
Similarly, there was ample evidence that the Respondent Worker’s employment at SVPH did not contribute to her injuries and again, I can find no error in that aspect of the Arbitrator’s findings. His reasons were adequate and I am not satisfied he erred in fact or law.
I cannot say the same about the following statement by the Arbitrator:
“I also accept the Applicant’s assertion that she battled on in her work, took excessive medication for pain, until she found that she could not continue with her duties. I am satisfied that dizziness or vertigo may have been a contributing, but not major, cause of that. I do not accept the Respondent’s assertion that the Applicant’s incapacity was caused exclusively by the vertigo complaint as there is factual evidence of the Applicant, and supportive probative medical evidence of continuing incapacity from the complaint’s arising out of the November 2000 incident”.
That inability to “continue with her duties” was in relation to her employment with the Appellant Employer. She ceased work with SVPH precisely because of an episode of dizziness or vertigo, not because of any complaint of neck or left arm pain. The reason the Respondent Worker ceased work was because of her ‘collapse’ at work. The reason for the ‘collapse’ must be speculative. There is nothing in the medical evidence to suggest that the injury on 16 November 2000 caused or contributed to the ‘collapse’ other than the suggestion it may have been as a consequence of excessive analgesic intake. But again, there is conflicting evidence on that aspect of the claim as to how much and for how long the Respondent Worker had been taking medication. The Worker herself stated she ceased work at SVPH because “I took a turn at work and collapsed”. Dr Lahz and by inference Dr Bryan attributed this to vertigo secondary to vestibular problems.
The Arbitrator, in paragraph 17, when summarising the Appellant Employer’s medical evidence says:
“Dr Rowe’s report of 19 September 2003 is relied upon as outlined in the
Respondent’s written submissions. He concludes that the Applicant has no
pathology to justify her complaints, and that those complaints may be sourced from
a number of areas, neurological, ear, nose or throat. There is no further evidence on
those suggestions”.
Clearly, he had either ignored or overlooked other aspects of Dr Rowe’s reports and the reports of Dr Lahz, including her reference to Dr Bryan’s alleged diagnosis. Indeed, the Respondent Worker herself stated that Dr Bryan had told her that “the dizzy spells may be vertigo, caused from arthritis in my neck”. Again, there was no suggestion in other medical evidence that any alleged ‘arthritis’ resulted from the injuries sustained on 16 November 2000.
The Arbitrator has ignored or overlooked a number of other medical reports on the connection of these ‘symptoms’ with the injury on 16 November 2000, in particular, Dr Lahz, Dr Porges and Dr Hume. Dr Burgess’ report was unhelpful since he offered no particular medical diagnosis in respect of the “global symptoms” to which he referred.
The evidence was clear that the Respondent Worker could not continue her duties at SVPH because of the episode of ‘giddiness’. There is evidence in support of the Arbitrator’s findings that “…there is factual evidence of the Applicant, and supportive probative medical evidence of continuing incapacity from the complaints arising out of the November 2000 incident”, and I see no error in that aspect of his determination.
But was there any evidence that such incapacity resulted in any economic loss to the Respondent Worker?”
The second part of paragraph 19 deals only with the section 60 claim. Nowhere in that entire paragraph does the Arbitrator consider the weekly benefits claim, make any findings or provide any reasons for his determination on that aspect of the claim.
In paragraph 20, under the heading “SUMMARY” he says:
“20. In summary the resolution of the issues in dispute is as follows:
Weekly Benefits Claim:
·On 16 November 2000, the Applicant received an injury to her neck and left arm arising out of or in the course of her employment with the Respondent.
·The Respondent’s employment was a substantial contributing factor to her injury.
·“The Applicant was totally incapacitated for work as a result of her injuries from for [sic] the period 8 October 2002 until 7 April 2003, and is entitled to weekly compensation in accordance with the Applicant’s written submissions.
·The Applicant was partially incapacitated for work from 8 April to date and continuing at the rate of $237.56, in accordance with the Applicant’s written submissions”.
Medical Expenses Claim:
The entitlement for medical expenses has been established.”
The Arbitrator gave no reasons as to why he found the worker partially incapacitated as at 8 April 2003 nor is there any evidence that he exercised his discretion nor considered the requisite steps in determining an award under section 40 of the 1987 Act in accordance with the Court of Appeal’s decision in Mitchell v Central West Health Service (1997) 14NSW CCR 526, and has erred in law.
It is clear from the Arbitrator’s determination that he adopted the Respondent Worker’s written submissions as to her entitlement to weekly benefits. However, those submissions to the Arbitrator dated 27 February 2004 were to the effect that the Respondent Worker was in fact totally incapacitated for work from 8 April 2003 to date and continuing, and the award was calculated in accordance with section 37 of the 1987 Act.
The Respondent Worker’s submissions to the Arbitrator dated 27 February 2004 were that the Worker’s average weekly earnings with the Appellant Employer were $263.96 per week. The Respondent Worker said:
“….Should the Arbitrator come to the conclusion that the Applicant is or was totally incapacitated for section 36 purposes from the date claimed, being 8 October 2002 then the maximum weekly award would be 26 weeks at $263.96 being from 9 October 2002 to 8 April 2003 and then pursuant to section 37 at 90% of that amount from 9 April 2003 to date and continuing. The maximum payment pursuant to section 37 would be $237.56.”
The Arbitrator has committed an error of fact in adopting the figures provided by the Respondent Worker pursuant to section 37 of the 1987 Act, but referring to the Respondent Worker as “partially incapacitated”, and an error of law in finding that the Respondent Worker was partially incapacitated but awarding her weekly benefits pursuant to section 37 of the 1987 Act.
The Appellant Employer and did not challenge the accuracy of these figures in its submissions to the Arbitrator.
Annexed to the Respondent Worker’s submissions to the Arbitrator, was a Group Certificate from SVPH. It disclosed gross earnings for the period 6 September 2001 to 30 June 2002 of $15,288.00, an average (over 42.5 weeks) of $359.71 per week, significantly greater than her earnings with the Appellant Employer.
Accepting the Arbitrator’s findings on the evidence, as I do, that the Respondent Worker had some continuing incapacity as a result of the injury to her neck and left arm on 16 November 2000, there was clearly no economic incapacity certainly from the time she commenced employment with SVPH on or about 6 September 2001 until she ceased on 8 October 2002.
CONCLUSION
Nothing in the medical evidence before the Arbitrator, in my opinion justifies his finding that the Respondent Worker “suffered an injury during her employment with the Respondent [Best Western Coachmans Inn Motel] and that that employment was a substantial contributing factor to the injuries now complained of”.
There is insufficient evidence to connect the incident on 8 October 2002 with the injuries sustained on 16 November 2000 with the Appellant Employer.
It follows then that the Arbitrator’s finding that the Respondent Worker was totally incapacitated for employment from 8 October 2002 as a result of injury on 16 November 2000 was against the weight of the evidence. Similarly, in my opinion the Arbitrator erred in law in finding that the ‘dizziness’ or ‘vertigo’ was not a major cause of the incapacity, since clearly that was the only reason the Respondent Worker ceased work. The Arbitrator’s implied findings that such symptoms were related to the injury on 16 November 2000 were again against the weight of the evidence. The Arbitrator drew inferences of fact that were neither reasonable nor supported by the evidence, and in so doing, erred in law; and in particular, his finding that “dizziness or vertigo may have been a contributing, but not major cause of the Respondent Worker’s inability to continue with her duties”. There was sufficient evidence to suggest other causes for the Respondent Worker’s ‘dizziness’
At the time of the incident, on 8 October 2002, the Respondent Worker appeared to be coping with her duties with SVPH, and but for the ‘collapse’, the reasons for which remain speculative, it is open to conclusion that the Respondent Worker would have remained in the employ of SVPH without suffering any economic incapacity.
For the reasons referred to above, there have been errors of law and fact on the part of the Arbitrator in relation to the weekly benefits award, both in his failure to apply the steps in Mitchell, and in the exercise of his discretion as to the calculation of the Award for partial incapacity pursuant to section 40 of the 1987 Act, having found that the Respondent Worker was partially incapacitated from 8 April 2003.
In my opinion, the Arbitrator’s findings and reasons are inadequate such as to amount to an error of law. I am satisfied that the Appellant Employer has demonstrated not only that the reasons are inadequate, but that their inadequacy sufficiently demonstrates that the Arbitrator failed to exercise his statutory duty to fairly and lawfully determine the Application (see YG & GG v Minister for Community Services [2002] NSWCA 247 and Absolon v NSW TAFE [1999] NSWCA 311).
No issue was taken by the Appellant Employer as to the Arbitrator’s findings on the section 60 claim, such that that aspect of the Arbitrator’s decision is confirmed.
DECISION
(1) Clause 1 of the Arbitrator’s decision dated 21 May 2004 is revoked and the following clause is substituted in its place:
“1. Award in favour of the Respondent (Best Western Coachmans Inn Motel) in respect of the claim for weekly benefits.”
(2) The Arbitrator’s decision is otherwise confirmed.
COSTS
No order is made as to costs of the appeal.
Deborah Moore
Acting Deputy President
9 August 2005
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DEBORAH MOORE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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