Brooks v Department of Education and Training
[2006] NSWWCCPD 263
•6 October 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Brooks v Department of Education and Training [2006] NSWWCCPD 263
APPELLANT: Maria Bozena Brooks
RESPONDENT: Department of Education and Training
INSURER:NSW Treasury Managed Fund (IMC)/GIO Workers Compensation (NSW) Ltd
FILE NUMBER: WCC3670-04
DATE OF ARBITRATOR’S DECISION: 6 September 2005
DATE OF APPEAL DECISION: 6 October 2006
SUBJECT MATTER OF DECISION: Sections 4 and 9A of the Workers Compensation Act 1987
PRESIDENTIAL MEMBER: Acting Deputy President Robert Harrington
HEARING:On the papers
REPRESENTATION: Appellant: Higgins & Higgins solicitors
Respondent: Moray & Agnew solicitors
ORDERS MADE ON APPEAL: 1. The decision of the Arbitrator dated 6 September 2005 is confirmed.
2. No order as to the costs of the appeal.
BACKGROUND TO THE APPEAL
On 4 October 2005 Maria Bozena Brooks (‘Ms Brooks’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 6 September 2005.
The Respondent to the Appeal is the Department of Education and Training (‘Department of Education’).
Ms Brooks was born on 16 October 1954. She is 51 years old. Ms Brooks commenced teaching with the Department of Education in July 1977.
Between 1991 and 1996 Ms Brooks applied for and was granted leave without pay by the Department of Education because of illness. The illness in respect of which leave was requested was unrelated to the illness the subject of this claim. In 1997 Ms Brooks was appointed to Cranebrook High School. Ms Brooks’ place of residence was some distance from the school as a result of which she had to commute, each week, a distance of approximately 550 km.
In 1998, Ms Brooks was diagnosed as suffering from diabetes mellitus. Ms Brooks had difficulty in managing her diabetes while working as a full-time teacher. In about 2000 she made an application to the Department of Education to reduce her teaching load by 20%. The Department of Education did not respond to this request, it would seem, and by 2001 her condition had deteriorated to the extent that she made an application to the Department of Education to reduce her teaching load by 40%.
On 10 December 2001 Ms Brooks lodged a claim for compensation with her employer’s workers compensation insurer, NSW Treasury Managed Fund (IMC)/GIO Workers Compensation (NSW) Ltd (‘GIO’). It would appear that it was about this time that the Department of Education agreed to reduce Ms Brooks’ teaching load by 40%. In addition to the 40% reduction it would seem Ms Brooks’ workload was further reduced by the removal of the need for her to carry out roll call or playground duties.
According to Ms Brooks’ statement, she was able to make up the 40% reduction in her income which flowed from the 40% reduction in her workload by using other entitlements such as sick leave in the period December 2001 to December 2003.
Ms Brooks’ accumulated sick leave was exhausted by November 2003. This is the explanation, I believe, as to why Ms Brooks’ claim for continuing weekly compensation commences on 25 November 2003. Although in Ms Brooks’ statement there is no reference to the receipt of weekly compensation payments it would seem that the GIO did accept liability and pay some compensation, probably section 60 expenses only. In a letter dated 25 November 2003 to Ms Brooks from Bill Chambers, TMS, Scheme Manager, Workers Compensation, he relevantly advised Ms Brooks that:
“We have carefully considered your claim for ongoing workers compensation
benefits following the injury you sustained on 07/08/2001. We have decided that
we will cease paying your compensation benefits under Section 9A Workers
Compensation Act.
We advise that we will stop paying:
·Reasonable and necessary medical, hospital, and so said expenses from 25/11/03.
·Weekly compensation benefits from 25/11/03, although our records state you have not actually lost any time from this injury.”
Ms Brooks’ claim having been rejected by the workers compensation insurer, she filed in the Commission an ‘Application to Resolve a Dispute’ which bears a Commission date stamp of 1 March 2004. In that application, Ms Brooks alleged that she suffered injury, on 21 August 2001, 7 August 2001, 30 November 2000, 27 March 1998 and nature and conditions of employment from July 1977 to 2003. Ms Brooks described the injury as: “Aggravation of Diabetes condition by travel and duties. See medical report attached.” Ms Brooks described how the injury occurred as follows: “Travel and treating [sic] duty structure prohibited required treatment regime, aggravating conditions.”
Ms Brooks’ claim for compensation was heard before a Commission Arbitrator on 7 July 2005 and the Arbitrator’s ‘Statement of Reasons for Decision’ (the Arbitrator’s decision) was delivered on 6 September 2005. Ms Brooks was unsuccessful before the Commission Arbitrator and it is in respect of this decision, that Ms Brooks seeks leave to appeal.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 6 September 2005 records the Arbitrator’s order as follows:
“1. An award for the respondent in relation to the claim for weekly benefits and medical expenses.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are:
·Whether Ms Brooks suffered injury (section 4 of the Workers Compensation Act 1987 (‘the 1987 Act’)).
·Whether Ms Brooks’ partial incapacity resulted from such injury.
·Whether Ms Brooks’ work was a substantial contributing factor to her injury (section 9A of the 1987 Act).
ON THE PAPERS REVIEW
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.
LEAVE
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 whole of Ms Brooks’ entitlement to weekly compensation is in issue. Ms Brooks claims weekly compensation in the sum of $500 per week plus medical expenses the amount of compensation that is in issue on appeal, therefore, in this matter exceeds $5,000 such that section 352(2)(a) is satisfied. As the whole of Ms Brooks’ entitlement to compensation is at issue, section 352(2)(b) is satisfied.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
EVIDENCE AND SUBMISSONS
Factual dispute at Arbitration
Before the Arbitrator there was very little factual dispute between the parties. The following facts were not seriously disputed:
·Ms Brooks has type 1 diabetes mellitus which was first diagnosed in 1998.
·Ms Brooks needs to maintain a careful regime of exercise, diet (including eating snacks between meals), monitoring her blood glucose levels and regular insulin injections in order to control the symptomatic effects of diabetes.
·Ms Brooks’ diabetes was not caused by employment with the Department of Education.
·Ms Brooks is presently working 60% of the normal working week of a teacher.
·In order to control her diabetes the doctors agree (including Professor Hall who examined Ms Brooks, on behalf of the Department of Education) that she should live close to her work and that the present workload (60% of the normal working week) is appropriate to allow her to properly and effectively administer the treatment in order to control her diabetes.
·If Ms Brooks does not scrupulously maintain her regime of treatment then she will suffer the side-effects of diabetes which are many and varied and include in the short term is hypoglycaemic episodes and in the long-term peripheral neuropathy and acceleration of cardiovascular disease.
·That diabetes is a disease.
There is also no dispute, based on the medical evidence (Professor Hall accepts the proposition) before the Arbitrator, that when Ms Brooks was working a full time workload and travelling long distances to school, her inability to properly maintain her treatment regime resulted in an aggravation of the diabetic condition.
Before the Arbitrator Ms Brooks’ claim for compensation was not in respect of periods of incapacity following the initial diagnosis in 1998. Nor was the claim in relation to the periods of incapacity as a result of the increased symptoms immediately after being diagnosed with diabetes when she was working full time, negotiating a reduced working week with the Department of Education and unable to maintain the strict treatment regime. Ms Brooks’ claim for compensation starts in 2003. Her claim before the Arbitrator, in effect, was that as a result of the aggravation of her diabetes by work activities, she is now only capable of working 60% of a normal working week. In order to be successful in her claim, Ms Brooks bore the onus of establishing that the requirement to work reduced hours resulted from a relevant aggravation of the disease rather than the disease itself.
This issue was considered by the Arbitrator at paragraph [19] of her decision in which posed the following test as to injury and causation:
“Whether or not pathology of a disease has been accelerated there is a relevant aggravation or exacerbation of the disease for the purpose of the S.4 definitions if the symptoms and restrictions emanating from it have increased and become serious to the injured worker (Federal Broom Company v Semlitch (1964) 110 CLR 629 at 639 per Windeyer J.). It does not follow that in every case, that a worker with a pre-existing injury or condition who carries out work and as a result suffers symptoms such as pain will have suffered an aggravation. In Federal Broom Co Windeyer J posed a four step test as to the question of “an aggravation, acceleration, exacerbation or deterioration of a disease”. The four steps are as follows:
·Was the applicant suffering from a disease?
·If so, was there an aggravation, acceleration, exacerbation or
deterioration of it?
·If so was the employment a contributing factor?
·If so, did a total or partial incapacity for work result from such
aggravation, exploration, exacerbation or deterioration?”
The Arbitrator, at paragraph [34] of her decision, concludes:
“There has from time to time been an exacerbation of symptoms amounting to ‘aggravation’ in the relevant sense. Professor Hall agrees that previous aggravation would have arisen from a situation when work conditions were difficult-he does not specify when this was. The evidence is that the symptoms which amount to an aggravation have fluctuated and not been permanent. They appear to have generally resolved when Ms Brooks has been able to adhere to her treatment regime, although, according to the medical evidence, her diabetes remains “brittle.”
The Arbitrator’s decision was that Ms Brooks’ partial incapacity for work did not result from any work injury but resulted from the disease itself. As employment was not a causative factor in respect Ms Brooks’ incapacity and claim for compensation, it follows, therefore, that her employment could not been a substantial contributing factor to her incapacity. However, notwithstanding the finding as to injury, the Arbitrator went on to consider section 9A and found that Ms Brooks’ employment was not a substantial contributing factor.
The parties’ submissions on appeal
Ms Brooks submits, in essence, that:
·The unchallenged evidence established that when she was working full time she was unable to maintain the rigorous treatment regime which resulted in her diabetes being aggravated. Therefore, the Arbitrator’s decision was against the weight of the evidence.
·The Arbitrator, given the unchallenged lay evidence, misapplied and failed to heed the weight of the medical evidence.
·The Arbitrator erred in law in her application of section 9A of the 1987 Act to the unchallenged evidence.
The Department of Education, in essence, submits that:
·Ms Brooks’ inability to adequately manage her treatment regime because of the demands of full time teaching resulted in a temporary aggravation of her diabetes.
·Any aggravation of her diabetes resulting from working full time as a teacher had resolved long before the period for which compensation was claimed, that is 25 November 2003 to date and continuing.
·To the extent that it was necessary, the Arbitrator properly addressed the issues pertaining to section 9A of the 1987 Act.
DISCUSSION AND FINDINGS
Relevant legislation
Ms Brooks’ entitlement to workers compensation depends on two provisions of the 1987 Act, namely the definition of “injury” in section 4 and section 9A. Those provisions are as follows:
4 Definition of “injury”
In this Act:“injury”:
(a) means personal injury arising out of or in the course of employment,
(b) includes:
(i) a disease which is contracted by a worker in the course of employment and to which the employment was a contributing factor, and
(ii) the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration, and(c) does not include (except in the case of a worker employed in or about a mine to which the Coal Mines Regulation Act 1982 applies) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.
9A No compensation payable unless employment substantial contributing factor to injury
(1) No compensation is payable under this Act in respect of an injury unless the employment concerned was a substantial contributing factor to the injury.
(2) The following are examples of matters to be taken into account for the purposes of determining whether a worker’s employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination):(a) the time and place of the injury,
(b) the nature of the work performed and the particular tasks of that work,
(c) the duration of the employment,
(d) the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment,
(e) the worker’s state of health before the injury and the existence of any hereditary risks,
(f) the worker’s lifestyle and his or her activities outside the workplace.(3) A worker’s employment is not to be regarded as a substantial contributing factor to a worker’s injury merely because of either or both of the following:
(a) the injury arose out of or in the course of, or arose both out of and in the course of, the worker’s employment,
(b) the worker’s incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or occupational rehabilitation service as referred to in Division 3 of Part 3, or the worker’s death, resulted from the injury.(4) This section does not apply in respect of an injury to which s 10, 11 or 12 applies.
Section 4 - injury
In relation to the issue of injury Ms Brooks submits that the Arbitrator erred:
·as the unchallenged evidence established that when she was working full time she was unable to maintain the rigorous treatment regime which resulted in her diabetes being aggravated; and
·misapplied and failed to heed the weight of the medical evidence.
Ms Brooks has type 1 diabetes. The medical evidence establishes that diabetes is an inability of the body to produce insulin. Insulin is a hormone that is needed to convert sugar (glucose), starches and other food into the energy needed for daily life. Ms Brooks needs to self-administer insulin and thereafter ensure that her blood sugar levels are appropriate and, if not, to take remedial action such as eating snacks between meals. If Ms Brooks fails to keep her blood sugar levels under control she may suffer from short term complications such as hyperglycemial or hypoglycemia, and in the long-term complications such as cardiovascular disease, retinopathy (blindness), neuropathy (nerve damage).
In order to succeed in her claim before the Arbitrator, Ms Brooks had to establish that employment made the disease worse. As Windeyer J in Federal Broom Company v Semlitch (1964) 110 CLR 629 said:
“The question that each [aggravation, acceleration, exacerbation] poses is, it seems to me, whether the disease has been made worse in the sense of more grave, more grievous or more serious in its effect on the patient.”
Ms Brooks also had to establish that her incapacity results from the aggravation or deterioration of the condition. In order to determine whether the Arbitrator erred in relation to this issue, the medical evidence must be considered as, in my opinion; the issue will be determined by the medical evidence rather than the lay evidence.
Before the Arbitrator, and before me, is a large quantity of Ms Brooks treating doctors’ medical reports. The majority of these reports have no relevance to the issues to be determined on appeal. Having read the reports I summarise hereunder, what I consider to be the relevant reports in respect of the issues to be determined on appeal:
·Dr Y. Okumura, report dated 5 January 2002: “it is hoped that Maria is able to teach at Katoomba High School with 0.4 support. It is my opinion that high school teaching is likely to be a permanent aggravation but is able to be managed with a help… As noted above, the initial presentation may have been more severe due to her work conditions. Certainly, the course of Maria’s illness is aggravated by the working conditions.”
·Dr K Park (endocrinologist), report dated 4 August 2003; “She was finding it extremely difficult to maintain full time work as a teacher and thus, I suggested that she take leave from work for a few months. During this time she did make a tremendous improvement in her diabetes and her general health returned in optimal. The diabetes control, as well as her leg pain and weakness improved. Thus, in November 2001 I agreed with Dr Okumura that Ms Brooks should return to school with maximal loading of 0.6 spread over five days with exceptions from playground and roll call duties.”
·Dr S. Swaraj (endocrinologist) report dated 16 December 2003: “I am also confident that over the next few months she should achieve the excellent glycaemic control that the pumps can sometime afford in patients with brittle diabetes. While her work as a teacher was not the cause of her diabetes, there is no doubt in my opinion that the unforgiving work schedule (teachers in her situation can frequently often have to work through lunchtime) contributed to her poor glycaemic control soon after her diagnosis and thus contributed to her painful neuropathic symptoms and lipodystrophy. On a brighter note, the pump affords significant hope for good long-term control and stability, and my strong recommendation to the Department of Health, would be to afford her a further five months of a 0.6 load in order for her to learn to use the pump most effectively.”
·Dr Y. Okumura , general practitioner, report dated 20 January 2004: “Maria was about to resign from her teaching position, but her specialist advised her to take a long service leave and return to work part-time. This was because of wild fluctuations of her blood sugar level arising from the nature of duties as a teacher. These BSL fluctuations caused lethargy and difficulty concentrating. Maria was not able to stick to strictly regular mealtimes or times for post exercise, due solely to the unpredictability of duties that arise with teaching. Currently, Maria is trialling insulin pump to see if her glycaemic control is any better. Maria is managing 0.6 loading teaching at Katoomba High School. This loading is considered permanent, and Maria is thought not to be fit to work full time.”
Additionally there were reports from Dr N Hitchens (consultant neurologist) and Dr J. England (consultant physician cardiologist). These reports dealt with the treatment of Ms Brooks, rather than the medico-legal issues.
Overall, the expert medical evidence relied upon by Ms Brooks merely states conclusions without explaining the basis of the conclusions and as such is of little value in determining the issues. As Lord President Cooper, in Davie v The Lord Provost, Magistrates and Councillors of the City of Edinburgh [1953] SC 34 at 39-40 (a case concerning liability for damage to dwelling houses allegedly caused by blasting operations in the course of constructing a sewer) said:
“Their duty is to furnish the Judge or jury with the necessary scientific criteria for testing the accuracy of their conclusions, so as to enable the Judge or jury to form their own independent judgment by the application of these criteria to the facts proved in evidence. The scientific opinion evidence, if intelligible, convincing and tested, becomes a factor (and often an important factor) for consideration along with the whole other evidence in the case, but the decision is for the Judge or jury. In particular the bare ipse dixit of a scientist, however eminent, upon the issue in controversy, will normally carry little weight, for it cannot be tested by cross-examination nor independently appraised, and the parties have invoked the decision of a judicial tribunal and not an oracular pronouncement by an expert.”
I am, however, of the opinion that Ms Brooks’ doctors’ reports establish that Ms Brooks’ type 1 diabetes is incompatible with a full time teaching load. These reports, on the other hand, do not establish that, as a result of any work induced aggravation, acceleration or exacerbation of her diabetes, Ms Brooks is only capable of 60% of the workload. When Dr Okumura opines that high school teaching is likely to be a permanent aggravation, he is, in my opinion, confirming, only, that Ms Brooks will be unable to control her diabetes if engaged in a full teaching workload. He is not saying that full-time work as a teacher has caused an aggravation of the disease. Dr Swaraj’s opinion, is that full time work duties make it difficult for Ms Brooks to maintain her glycaemic control. However, when Ms Brooks is not teaching, or teaching reduced hours, Ms Brooks is able to maintain glycaemic control. As such, any aggravation of the diabetes caused by full time teaching hours, was of limited duration. Once Ms Brooks re-established glycaemic control, which she has generally managed to maintain since being on reduced hours, the exacerbation caused by work activities, ceased. Dr Parks’ opinion, is, I believe, that because of her pre-existing diabetes and her past inability to maintain glycaemic control whilst working as a full time teacher, Ms Brooks needs to work the reduced (60%) workload so that she can maintain glycaemic control. This is an opinion that, Mrs Brooks’ inability to work full-time is the result of the pre-existing disease of diabetes not because of any work exacerbation of the diabetic disease.
The Department of Education’s, medico legal evidence consists of reports of Dr Kuo (occupational physician) and Professor Hall (physician). The doctors accept that if Ms Brooks is unable to implement her treatment regime whilst working full time there will be an exacerbation of her symptoms. The doctors do not accept that her need to work 60% of a normal teaching week is related to any work aggravation of the disease, to the contrary they are of the opinion that the need to work 60% of normal teaching week is because of the underlying diabetic disease.
The medical evidence establishes, in my opinion that in the past Ms Brooks may have had symptomatic aggravations of the diabetic disease whilst working as a full-time teacher. Ms Brooks is not claiming past closed periods of compensation as result of that symptomatic aggravation of her diabetes. Instead, she is claiming a permanent and ongoing incapacity for teaching to the extent of 40% of per normal teaching week. In order to be successful in her claim Ms Brooks would have to establish that as result of work activities her diabetes has been aggravated, accelerated, exacerbated [or deteriorated] permanently. The medical evidence does not support this proposition. The medical evidence, overwhelmingly in my opinion, establishes that because of the pre-existing underlying diabetic disease Ms Brooks is unable to work full-time. The medical evidence establishes that this inability arises because with full-time teaching, Ms Brooks is unable to properly manage her treatment regime.
It follows, therefore in my opinion that the Arbitrator was correct in finding that Ms Brooks had failed to establish that her incapacity for full-time teaching resulted from a work injury. Her inability to work as a full-time teacher results from a disease (diabetes) unrelated to work. In relation to the submission that the Arbitrator failed to heed the weight of the medical evidence, I note that it is established that the weight and relevance to be given to evidence before an Arbitrator is a matter in the discretion of that Arbitrator (see for example, Westpac Banking Corporation v Kilby & Bananacoast Credit Union Ltd [2005] NSWWCCPD 24; South Western Sydney Area Health Service v Edmonds [2005] NSWWCCPD 18; Knight v Eyles Nominees Pty Limited t/as Processed Forest Products [2004] NSWWCCPD 73; Wingecarribee Shire Council v Wortz [2006] NSWWCCPD 111). I do not consider that the Arbitrator’s discretion in relation to the weight of the medical evidence has miscarried. As such, this aspect of Ms Brooks’ appeal must fail.
As noted at paragraph 22, the Arbitrator also found that work was not a substantial contributing factor to Ms Brooks’ partial incapacity for work. As I have found that Ms Brook’s work duties were not a causative factor in the development of her partial incapacity it follows that her work was not a substantial contributing factor to her partial incapacity. In the event that I am wrong in my assessment it falls upon me to consider Ms Brooks’ submission that the Arbitrator was in error in her application of section 9A to the facts of this case.
Section 9A - substantial contributing factor
Ms Brooks submits that the Arbitrator erred in law in her application of section 9A of the 1987 Act to the unchallenged evidence.
In relation to this ground of appeal Ms Brooks, in her submissions, refers to three decisions relevant to the issue of substantial contributing factor. The submissions mistakenly refer to Dayton v Coles Supermarket Pty Ltd (2001) 22 NSWCCR 46 (‘Dayton’) being a decision of a single Judge of the Compensation Court. At first instance, it was a judgment of Bourke CCJ, however, his decision was the subject of an appeal. The Court of Appeal upheld Bourke CCJ’s decision. There are now many decisions, by single judges and at appellate level dealing with the meaning of ‘substantial contributing factor’. In a search for guidance as to the meaning of these words, what fell from Meagher J in Dayton at paragraph [16] is probably the most helpful:
“Many judges have spent a great deal of time and difficulty analysing and pondering the meaning of the word “substantial”. But this word is a plain English word, which is understood by anyone who is not a judge. Nor have the endless judicial lucubrations on the word contributed to anyone’s understanding of it. And nobody in their senses would regard a course which could be correctly categorised as very ‘minor’ as ‘substantial’.”
The Arbitrator carried out a detailed analysis of the factors that she believed to be relevant to a consideration of section 9A at paragraphs [35] to [51] of her decision. Some of the factors considered by the Arbitrator would more correctly go to the issue of injury itself, however in my opinion this does not detract from her analysis. A summary of the factors that the Arbitrator took into account in reaching her decision that employment was not a substantial factor are as follows:
·The medical evidence established that diabetes was not caused by work factors, at best it was exacerbated by work factors.
·When Ms Brooks was first diagnosed as suffering from diabetes and continued to work full time she had not come to terms and accepted the extent of her illness. It was her lack of insight into her illness which was also a cause of her inability to properly manage her treatment regime, not just the need to work full time as teacher.
·Ms Brooks’ treatment regime is able to be integrated in a normal teaching school day. Ms Brooks’ present workload, which whilst only 60% of the previous workload, still requires her to work a full day teaching. Freed of playground and roll call duties Ms Brooks is able to integrate her treatment regime.
·Even with the reduced workload her symptoms of diabetes have fluctuated considerably since 2001 which would indicate that factors other than work are more influential to the disease.
·The Arbitrator concluded, based on the medical evidence, that the course of the disease had not been influenced by the work activities.
·The Arbitrator was of the opinion, that on one view of the medical evidence, the better control of her diabetes since 1998 was more consistent with Ms Brooks adhering strictly to her treatment regime, rather than of the effects of the reduced workload.
·Accepting some minor contribution by employment activities to the course of Ms Brooks’ diabetes, Ms Brooks, because of the underlying diabetes would have had to reduce her workload by a similar percentage in any event so as to manage the treatment regime.
The Arbitrator’s decision in respect of substantial contributing factor was open on the evidence. Further in my opinion Ms Brooks has not established that the Arbitrator’s reasons were inadequate or that she failed to exercise the statute duty to fairly and lawfully determine the application (YG & GG Minister for Community Services [2002] NSWCA 247).
Ms Brooks in her submissions relies on a decision of Deputy President Fleming of Agserv Pty Ltd v Featon [2005] NSWWCCPD 26. This case, if anything, highlights the problems Ms Brooks faces in attempting to overturn the Arbitrator’s decision. An appeal to a Presidential Member is not a hearing de novo. In that case, Ms Featon’s claim arising from the death of her husband was successful because the Arbitrator accepted Ms Featon’s medical evidence as to the cause of her husband’s death. Had the Arbitrator accepted the employer’s medical evidence, the decision may have gone the other way. Provided the Arbitrator had adequately explained the decision, a subsequent appeal by Ms Featon would also have been unsuccessful.
It follows therefore, that Ms Brooks’ ground of appeal in respect of the Arbitrator’s finding that employment was not a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration of her diabetes must be rejected.
Consequently, Ms Brooks’ appeal must fail and the decision of the Arbitrator must be confirmed.
DECISION
The decision of the Arbitrator dated 6 September 2005 is confirmed.
COSTS
No order as to the costs of the appeal.
Robert Harrington
Acting Deputy President
6 October 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ROBERT HARRINGTON, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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