Buhler v Email Ltd & Anor

[2008] NSWWCCPD 135

WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE

COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Buhler v Email Ltd & Anor [2008] NSWWCCPD 135

APPELLANT:  Fiona Buhler

FIRST RESPONDENT:  Email Ltd

SECOND RESPONDENT  Julia Ross Human Directions Ltd

FIRST RESPONDENT INSURER:  Self insurer

SECOND RESPONDENT INSURER:                Allianz Australia Workers Compensation (NSW) Ltd

FILE NUMBER:  WCCA1-004180-08

DATE OF ARBITRATOR’S DECISION:          6 August 2008

DATE OF APPEAL DECISION:  19 November 2008

SUBJECT MATTER OF DECISION: Treatment of the evidence; injury; disease; section 16 of the Workers Compensation Act 1987

PRESIDENTIAL MEMBER:  Acting Deputy President Robin Handley

HEARING:Determined on the papers

REPRESENTATION:  Appellant:                   Bateman Battersby Lawyers

FirstRespondent:      Rankin & Nathan Lawyers

Second Respondent:   Vardanega Roberts Solicitors

ORDERS MADE ON APPEAL:  The decision of the Arbitrator dated 6 August 2008 is confirmed.

There is no order as to the costs of this appeal.

BACKGROUND

1. On 2 September 2008, Fiona Buhler (‘the Appellant’) sought leave in the Workers Compensation Commission (‘the Commission’) to bring an appeal against the decision of an Arbitrator dated 6 August 2008. The Respondents to the appeal are Email Ltd (‘the First Respondent’) and Julia Ross Human Directions Ltd (‘the Second Respondent’, also referred to as ‘Julia Ross Recruitment’). The First Respondent filed a ‘Notice of Opposition’ to the appeal on 30 October 2008 and the Second Respondent on 17 October 2008.

1. Ms Buhler, who is aged 37, was employed as a Vocational Training Adviser: (1) by Email Ltd from 11 May 1998 to 29 June 2001, (2) by Julia Ross Recruitment from 30 June 2001, and (3) by the Department of Education and Training (‘the Department’, the third respondent in the original proceedings) from 29 September 2001. In the case of the Ms Buhler’s employment with both Email Ltd and Julia Ross Recruitment, she was actually working within the Department as a Vocational Training Adviser in the New Apprenticeships Centre, and she continued to work in this capacity after commencing her employment with the Department. Ms Buhler continues to work as a Vocational Training Adviser for the Department although in a different position.

1. According to a statement made by Ms Buhler on 21 September 2006, she first suffered neck pain on 2 April 2001 after completing a large volume of paperwork. Although she experienced neck pain that night, she still went to work next day. However, she had to leave work early and go home. She reported the injury to Email Ltd on 4 April 2001. Ms Buhler consulted her family doctor, Dr Chamberlain, on 7 April 2001. She used Nurofen and a heat pillow and had five or six physiotherapy sessions. She stated that she took one day off. On 2 May 2001, Ms Buhler first made a claim for workers compensation in respect of the incident on 2 April 2001.

1. Ms Buhler has suffered neck pain since that time which, she says, “is easily aggravated” by workplace activities. On 20 November 2006, she claimed compensation under section 66 of the Workers Compensation Act 1987 (‘the 1987’) for permanent impairment of her neck (25%), loss of efficient use of her left arm at or above the elbow (10%), and loss of efficient use of her right arm at or above the elbow (5%) as a result of an injury on 2 April 2001, and as a result of the nature and conditions of her employment from 11 May 1998 to date and continuing (later amended to 11 May 1998 to 28 September 2001). She also claimed

   $17, 500.00 under section 67 for pain and suffering.

1. On 3 June 2008, the Commission registered Ms Buhler's ‘Application to Resolve a Dispute’ in respect of her claim for compensation for permanent impairment and pain and suffering against, initially, all three employers. On 9 July 2008, the Arbitrator conducted a teleconference with the parties. As a result of an amendment to her claim, Ms Buhler discontinued her application in respect of the Department.  On 22 July 2008, conciliation having proved unsuccessful, the Arbitrator conducted an arbitration hearing, at the conclusion of which she reserved her decision. Reasons for her decision were published on 6 August 2008 with the Certificate of Determination.

THE DECISION UNDER REVIEW

1. The ‘Certificate of Determination’, dated 6 August 2008, records the Arbitrator’s orders as follows:

“1. Award for the First Respondent.

2. Award for the Second Respondent.
3. No order as to costs.”

1. In the Statement of Reasons for her decision, the Arbitrator identified the issues in dispute as being (1) whether Ms Buhler suffered an injury in the course of her employment with the First or Second Respondent, (2) if so, what was the nature of the injury, and (3) what is the date of injury or deemed date of injury? The Arbitrator said, at paragraphs 33 to 44:

“33.The medical evidence in support of the Applicant’s first proposition, that she suffered an injury on 2 April 2001, is summarised as follows:

a. Dr Isbister opined that Ms Buhler suffered a ‘musculoligamentous strain injury to her neck, symptoms of which have persisted with the type of clerical work that she has been performing’. The diagnosis (at page 5) was ‘musculoligamentous strain of her neck (consistent with fibromyalgia). Dr Isbister assessed Ms Buhler under the Table of Disabilities and the date of injury was listed as “April 2001”. 

b. On 12 April 2004 Dr Searle opined that the ‘general nature and conditions and obligations of this lady’s employment in April 2001 and preceding that date have led to the development of a musculo-ligamentous strain of the neck and aggravation of her pre-existing but previously symptomless cervical spondylosis. With the continuation of the aggravating work these problems have become chronic and cause a moderately severe degree of disability’. 

c. Dr Searle also issued a supplementary report on 12 April 2004 in which, on page 4 he does agree that the condition is consistent with aggravation by the nature and conditions of her work. He also posed a significant question:  ‘Why the employer or insurer should have no liability beyond 1/6/01 is not explained, particularly in view of the fact that she was continuing the same sort of work’.  

34.This evidence is not, in my view, sufficient for the Applicant to discharge the onus of proof upon her that she suffered an injury on 2 April 2001.  Her own medical evidence, that supplied by Dr Searle, supports the view that the nature and conditions of her employment, including on 2 April 2001, led to her musculo-ligamentous strain in the neck and/or the aggravation of the cervical spondylosis.  The strain was short-lived.  The Applicant was not incapacitated as a result of it, being absent from work for only one day on her own evidence.  She did not seek medical treatment after June 2001 until some time in October 2002.  Any condition which had been aggravated by the conditions at work in April 2001 was clearly only temporary.  There was no pathology associated with an injury on that day.  There were symptoms, but no pathology leading to a diagnosis of injury as a result of anything that occurred at work on 2 April 2001. 

35.I therefore find that the Applicant did not suffer an injury on 2 April 2001.

36.The medical evidence in support of the Applicant’s second proposition is summarised as follows:

a. Dr Searle put an alternative diagnosis, that there was an aggravation of her pre- existing but previously symptomless cervical spondylosis as a result of the nature and conditions of employment to 2 April 2001.  

37.While it be the case that there was an aggravation of a disease process as a result of the employment of Ms Buhler, as will be discussed below, if there was such an aggravation of the disease process, the deemed date of injury cannot be 2 April 2001 but is some time after September 2001 during the Applicant’s employment with the Department of Education and Training.

38.I make this finding on the basis of the Applicant’s own evidence that the conditions of her employment have not changed significantly between each of the employers, until October 2006 when she started travelling less. Up until that time, the Applicant’s evidence is that her pain was aggravated by activities at work, including sitting at a computer, lifting packages, travelling in cars and/or planes and repetitive accounts work. Each of these activities occurred in the employment of the Department of Education and Training (as well as the other two employers) and pursuant to s.16 of the 1987 Act, ‘compensation is payable by the employer who last employed the worker in employment that was the substantial contributing factor to the aggravation...’ of the disease condition.

39.I therefore find that the Applicant did not suffer an injury as a result of the nature and conditions of her employment to 2 April 2001 and/or the aggravation of a disease process, resulting in incapacity on 2 April 2001.  

40.The medical evidence in support of the Applicant’s third proposition that the nature and conditions of employment from 1998 until September 2001 caused an injury, is not summarised because there is no such evidence.  The Applicant could not point to any such evidence and there is none.  There is no reason at all as to why the period of employment which could have contributed to the Applicant’s condition should be artificially terminated at September 2001 when the evidence is so clearly indicative of the fact that the employment conditions did not change until October 2006.  

41.I therefore reject the submission of the Applicant that her injury was as a result of the nature and conditions of her employment and/or the aggravation of disease process up until September 2001.  

42.The result is that the Applicant has not discharged the onus of proof upon her that she suffered an injury on 2 April 2001 and/or as a result of the nature and conditions of employment from 1998 to 2 April 2001 or September 2001.  If there is an injury, it is the aggravation of the pre-existing cervical spondylosis and the deemed date of injury is beyond September 2001.  As stated above, this is because the employment conditions have remained the same at least until October 2006 and there is evidence that there were aggravations in October 2001, 2003 and 2004.  These aggravations were subsequent to the employment of the Applicant by either the First or Second Respondents.  Such a diagnosis is consistent with the diagnoses of both Dr Searle and Dr Hagan, noting Dr Hagan thought the problem was largely constitutional in nature with aggravations from time to time as a result of the conditions of employment.

43.Given these findings, and given the discontinuance of any claim against the Third Respondent, I make no findings in respect of the date of injury.  

44.There should be an award for the First Respondent and the Second Respondent in these proceedings.”

ISSUES IN DISPUTE

1. The grounds of appeal stated by the Appellant are, first, that the Arbitrator erred in finding that Ms Buhler did not sustain injury on 2 April 2001, or, alternatively, second, the Arbitrator erred in finding that Ms Buhler did not sustain injury due to the nature and conditions of her employment. The parties' submissions are discussed below.

ON THE PAPERS REVIEW

1. Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘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 before me, and the submissions by the parties that the appeal can 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. 

1. None of the parties sought to adduce fresh evidence.

LEAVE

1. Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act. The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act. With regard to section 352(2), I am satisfied that the amount of compensation at issue exceeds the $5,000 threshold (section 352(2)(a)) and, because no compensation was awarded by the Arbitrator, the 20% threshold (section 352((b)) does not apply (Mawson v Fletchers International Exports Pty Ltd [2002] NSWWCCPD 5, at paragraph 22). Accordingly, I am satisfied that the section 352 threshold has been met, and I grant leave to appeal.

SUBMISSIONS

1. The Appellant contends that the Arbitrator’s finding that Ms Buhler did not sustain injury on 2 April 2001 is contrary to the disparate but overlapping unanimous views expressed in the three medico-legal opinions supporting the proposition that an injury occurred in April 2001. The Arbitrator failed to explain why she rejects Dr Searle's finding of musculo-ligamentous strain in April 2001, Dr Isbister’s finding of musculo-ligamentous strain in 2001, and Dr Hagan’s finding of injury in 2001 resulting in the 4% permanent loss of use of the left arm at or above the elbow. The Arbitrator thereby made both an error of fact and law by failing to acknowledge that injury due to the nature and conditions of employment can constitute personal injury due to a disease of gradual onset or aggravation of disease.

1. The First Respondent submits that the Appellant is endeavouring to circumvent the statutory code in respect of disease type injuries. It contends there is no evidence that any discrete injury occurred on 2 April 2001. Rather, the medical evidence is consistent with the aggravation of an underlying condition by the nature and conditions of Ms Buhler’s work. The Arbitrator found, correctly, at paragraph 42 of her Statement of Reasons, that “[i]f there is an injury, it is the aggravation of the pre-existing cervical spondylosis and the deemed date of injury is beyond September 2001.” This was consistent with the opinions of Dr Searle and Dr Hagan. The First Respondent notes that the Arbitrator found that the strain was short-lived. While there were symptoms, there was no pathology leading to a diagnosis of injury as a result of anything that occurred at work on 2 April 2001 (paragraph 34). This finding was consistent with the Arbitrator’s award in favour of the First Respondent on the claim for permanent impairment.

1. The Second Respondent submits that the Arbitrator did not err in finding that there was no injury due to the nature and conditions of Ms Buhler’s employment between 1998 and 29 September 2001. Such a finding was open to her on the evidence. In any event, the Appellant’s case is at best that a musculo-ligamentous injury occurred on 2 April 2001, which is prior to Ms Buhler’s commencing employment with Julia Ross Recruitment. Alternatively, the Second Respondent submits that Ms Buhler sustained injury due to the nature and conditions of her employment. However, although Ms Buhler reported an injury on 4 April 2001, after some sessions of physiotherapy and after resuming normal duties, she made no further complaints of pain or aggravation of any condition either during the remainder of her employment with Email Ltd or during her employment with Julia Ross Recruitment. The factual evidence does not support the contention that there was an aggravation of a disease process at any time after April 2001.

1. The Second Respondent states that the Appellant did not present evidence to the Arbitrator to support a finding of the aggravation of a disease, which would attract the provisions of section 16 of the 1987 Act. However, if Ms Buhler had been found to have aggravated a disease of gradual process, then, the deemed date of injury would be April 2001, being when she reported the musculo-ligamentous injury.

DISCUSSION AND FINDINGS

1. Pursuant to section 352(5) of the 1998 Act, the role of a Presidential Member on appeal is to conduct a review of the decision appealed against. As stated above, the issue is whether the Arbitrator erred in finding that Ms Buhler neither sustained a discrete injury on 2 April 2001 nor sustained injury due to the nature and conditions of her employment.

1. I have reviewed the Arbitrator’s Statement of Reasons. The Arbitrator undertook a careful analysis of the relevant medical evidence, in particular that of Dr Peter Isbister, Orthopaedic Surgeon, Dr Alan Searle, Orthopaedic Surgeon, and Dr Brian Hagan, Surgeon. She found that Ms Buhler suffered a short-lived musculo-ligamentous strain in the neck on 2 April 2001, caused by the nature and conditions of her employment, which resulted in her being absent from work for one day. The Arbitrator found there was no pathology associated with an injury on 2 April 2001 - only symptoms. She noted that the Applicant had presented evidence of aggravations of her pre-existing cervical spondylosis in October 2001, 2003 and 2004, while she continued to work in the same position as a Vocational Training Adviser. These were not pressed at the hearing because of the discontinuation of her claim against the Department. These claimed aggravations occurred outside the period of the claim as limited by the Applicant in the course of the proceedings, from 11 May 1998 to 28 September 2001.

1. The Arbitrator found no evidence to support the Applicant’s third contention that the nature and conditions of Ms Buhler’s employment from 1998 until September 2001 caused an injury. Noting that Ms Buhler’s employment conditions did not change after she commenced employment by the Department, the Arbitrator found there was no reason why any contribution to Ms Buhler’s condition should have terminated at September 2001.

1. In terms of the definition of ‘injury’ in section 4 of the 1987 Act, the Arbitrator therefore concluded that the applicant had failed to discharge the onus of proof to establish that she suffered either a discrete injury on 2 April 2001, or an ‘injury’ comprising the aggravation of a disease (s 4(b)(ii)), specifically as a result of her conditions of employment between 1998 and September 2001. Having found that Ms Buhler did not suffer an injury in the course of her employment, it was not necessary for the Arbitrator to consider the application of s 9A of the 1987 Act, whereby no compensation is payable unless the person’s employment was a substantial contributing factor to the injury.

1. I am not satisfied that the Arbitrator’s reasoning evidences any error of fact or law. The findings she made were clearly open to her on the evidence. The Appellant having failed to establish her grounds of appeal, the appeal must be dismissed and the decision of the Arbitrator must be confirmed.

DECISION

1. The decision of the Arbitrator dated 6 August 2008 is confirmed.

COSTS

1. There is no order as to the costs of this appeal.

Robin Handley

Acting Deputy President  

19 November 2008

I, MARIE JOHNS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ROBIN HANDLEY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE