Campbelltown Catholic Club Limited v Steele
[2005] NSWWCCPD 131
•11 November 2005
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Campbelltown Catholic Club Limited v Steele [2005] NSW WCC PD 131
APPELLANT: Campbelltown Catholic Club Limited
RESPONDENT: Linda Steele
INSURER:QBE Workers Compensation (NSW) Limited
FILE NUMBER: WCC19772-2004
DATE OF ARBITRATOR’S DECISION: 17 March 2005
DATE OF APPEAL DECISION: 11 November 2005
SUBJECT MATTER OF DECISION: Date of Injury, weight of evidence; ‘substantial contributing factor’.
PRESIDENTIAL MEMBER: Dr Gabriel Fleming, Deputy President
HEARING:On the papers
REPRESENTATION: Appellant: QBE In-House Legal
Respondent: Jones Staff &Co
ORDERS MADE ON APPEAL: The decision of the Arbitrator is confirmed.
BACKGROUND TO THE APPEAL
Linda Steele was employed by the Campbelltown Catholic Club as a full time bar person from 1994 until 2004. Ms Steele claims to have injured her back and left leg as a result of the nature of her work, including heavy lifting of coins from poker machines and glass racks, standing on cement floors, being exposed to drafts, and bending and swivelling when making drinks at the bar. She has made a claim for weekly benefits, medical expenses and lump sum compensation in relation to an injury she alleges arose in the course of her employment.
Ms Steele seeks an order that she has suffered a 25% permanent impairment of the back and a 10% loss of use of the left leg at or above the knee. She also seeks compensation for pain and suffering. Her claim is premised upon the finding that the ‘date of injury’ is prior to 1 January 2002 and therefore falls to be assessed according to the Table of Disabilities, rather than on a Whole Person Impairment basis.
The employer has denied liability for her claim and as a result she has filed an ‘Application to Resolve a Dispute’ in the Commission.
QBE Workers Compensation (NSW) Limited (‘the Appellant/the Insurer’) is the workers compensation insurer for the employer and acted for and on behalf of the employer in the Commission proceedings.
The dispute went before a Commission Arbitrator who engaged the parties in a conciliation process. The parties were unable to settle the dispute and the Arbitrator made a decision on two threshold issues relevant to the claim for lump sum compensation for permanent impairment on 17 March 2005. The Arbitrator determined that:
a)The Applicant has suffered an injury during the course of her employment which was a substantial contributing factor;
b)The date of injury for the purpose of any Permanent Impairment assessment is the 14th November 2001.
The Insurer has appealed against that determination. It seeks to have the determination revoked and an order that it is not liable to pay Ms Steele compensation made in its place. The appeal relates only to whether the Arbitrator erred in making the two orders set out above. The assessment of Ms Steele’s permanent impairment, if any, must yet be made by an Approved Medical Specialist (‘AMS’).
Ms Steele has filed submissions in reply to the appeal arguing that the Arbitrator’s decision was correct and should be confirmed.
The Arbitrator also determined Ms Steele’s weekly benefits and medical expenses on 28 October 2005 and issued written reasons for that decision. He found in favour of Ms Steele. That decision is not the subject of this appeal.
LEAVE TO APPEAL
I am satisfied that the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) are met and therefore leave to appeal is granted.
ON THE PAPERS REVIEW
Both parties submit the appeal cannot be determined on the papers.
The Appellant submits that if I decide to proceed ‘on the papers’ it “reserves the right to make further written submissions”. The Appellant should be aware of Practice Directions Numbers 1 and 6, issued by the President of the Commission. It is clear from the Practice Directions that the Appellant is required to make all the submissions it relies upon at the time of filing the appeal. There is no denial of procedural fairness to a party who is advised of the Commission’s procedures, but does not comply with them.
I do not accept the parties’ submission that the factual and legal issues in this matter are of such complexity that an oral hearing is required. The issues of ‘worker’, ‘substantial contributing factor’ and ‘date of injury’ are issues that are commonly raised in this jurisdiction and on which there is much legal authority. Neither party has sought to adduce fresh evidence on appeal. The facts of the case are contained in the written materials before me, which include all the evidence and submissions that were before the Arbitrator, the transcript of the arbitration and extensive submissions on appeal. Presidential review is concerned with ‘error of law fact or discretion’ by the Arbitrator and is not a hearing de novo of the dispute (Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSW WCC PD 6, Ross v Zurich Workers Compensation Insurance [2002] NSW WCC PD 7).
I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding a conference or formal hearing, and that this is the appropriate course in the circumstances (section 354(6) of the 1998 Act).
ISSUES IN DISPUTE
The Appellant submitted eight ‘grounds of appeal’ as follows;
1.“The Arbitrator erred in law in failing to make reference in his Statement of Reasons to the Respondent/Worker’s oral evidence (‘The Oral Evidence Error’).
2.That the Arbitrator erred in law by failing to give adequate Reasons occasioned by reason of his failure to record or refer to the Respondent/Worker’s oral evidence [‘The Inadequate Reasons Error’].
3.The Arbitrator erred in law and/or fact in regarding Dr Rushworth as having made a significant concession with regard to the relationship between the Respondent/Worker’s work activities on 14th November 2001 and her alleged injury to the back and left leg [‘The Concession Error’].
4.The Arbitrator erred in law and/or fact in concluding that employment was a substantial contributing factor to any injury the Respondent/Worker may have suffered [‘The Substantial Contributing Factor Error’]
5.The Arbitrator erred in fact and/or in law by failing to make a finding of the disease from which the Respondent/Worker was suffering before the alleged aggravation on 14th November 2001 [‘The Disease Error’].
6.The Arbitrator erred in fact in finding in favour of the Respondent/Worker regarding injury and substantial contributing factor when such findings were against the evidence and the weight of the evidence [‘The Weight of Evidence Error’].
7.In the alternative and in the event that this appeal fails in relation to the issues regarding injury and substantial contributing factor that the Arbitrator erred in law and in fact when he found that the deemed date of injury was 14th November 2001 [‘The Date of Injury Error’].”
These grounds and the submissions made by both parties in relation to them are considered in detail below.
CONSIDERATION
The Oral Evidence Error
The Appellant argues that the Arbitrator erred in failing to refer to the worker’s oral evidence in the written reasons.
The Appellant submits, “ The Arbitrator does not record the fact that the Respondent/Worker gave oral evidence and was questioned by the Applicant/Employer’s legal representative”. This assertion is not entirely correct. The Arbitrator refers to the ‘oral evidence’ as follows:
· At paragraph 16 a) i) of the reasons the Arbitrator states that the Applicant submitted he should rely upon Ms Steele’s statement “and her oral evidence given at the Arbitration”.
· At paragraph 17a) of the reasons the Arbitrator refers to “the Applicant’s own evidence that she undertook heavy work. The Respondent has not taken the opportunity to contest this evidence which is certainly persuasive having regard to the repeated lifting of up to 1,000 coins from ankle height.”
The transcript of the Arbitration records the sworn evidence given by Ms Steele (at pages 1-8 and 17-18). The evidence for both parties was mostly contained in the documents.
The Appellant’s submission that the Arbitrator may have “made notes [of the oral evidence] but has mislaid them by the time it came to the preparation of his reasons or perhaps he had in fact made a note of them but regarded them of being of so little importance that they did not warrant a mention in his Statement of Reasons” is trite and unfounded. This is not a considered submission as to error, but appears to be an ill–considered and thinly disguised slur against the Arbitrator personally. It is inappropriate, without foundation and does not reflect well on the Appellant’s legal representative. No doubt the Appellant appreciates that the discussion that occurs in the ‘conciliation’ phase of proceedings in the Commission is not formal, sworn evidence, and is not recorded or otherwise transcribed.
The fact that the Arbitrator has recorded the parties’ submissions “in some detail” does not suggest that he did not also consider the brief oral evidence recorded at the arbitration. This alleged error, i.e. the “failure to refer to the worker’s oral evidence” appears to be in effect an expression of ‘inadequate reasons’ as a ground of appeal. This is discussed below.
The Arbitrator’s decision must be read as a whole (Beale v GIO (NSW) (1997) 48 NSWLR 430 at 444) and without combing it for error (Minister for Immigration and Multicultural Affairs v Wu Shan Liang (1996) 185 CLR 259). It is not necessary for an Arbitrator to recite all of the evidence in the written reasons. In any event I am satisfied that the Arbitrator in this matter did sufficiently identify the fact that the oral evidence of the worker was before him and he has taken it into account.
The Appellant has not established that the Arbitrator’s reference, or alleged non-reference, to the oral evidence given by Ms Steele amounted to an error of law, fact or discretion. This ground of appeal is not made out.
The Inadequate Reasons Error
The Appellant argues that the Arbitrator’s “failure to refer to the Respondent/Worker’s oral evidence” renders the reasons inadequate. This is largely a repeat of the ground of appeal relied upon above and has been dealt with.
The duty of an Arbitrator to give adequate reasons has been discussed in many Commission decision, see for example, Wyong Shire Council v Paterson [2004] NSW WCC PD 45; Department of Education and Training v Ingle [2003] NSW WCC PD 18; Phelan v Jasper Asset Pty Ltd [2005] NSW WCC P 90.
I agree with Ms Steele’s submissions that the reasons are adequate. They comply with section 294 of the 1998 Act and Rule 73 of the Workers Compensation Commission Rules 2003 in that they: set out the relevant findings of fact, the applicable law and the reasoning process for the conclusions reached. This ground of appeal is not made out.
The Concession Error
The Arbitrator accepted Ms Steele’s evidence that she “did heavy work”. The report of Dr Rushworth ‘conceded’ that Ms Steele’s employment would be a ‘substantial contributing factor’ to her injury if she had been undertaking heavy work prior to the development of her symptoms.
The Appellant submits the Arbitrator erred in “regarding Dr Rushworth as having made a significant concession”. The Insurer argues that Dr Rushworth, whose report was filed and relied upon by the Appellant itself, was given an incorrect history of the injury and therefore “the “concession” did not advance the Respondent/Worker’s case”.
The Arbitrator found, as a matter of fact, based upon Ms Steele’s own evidence, that her work was ‘heavy’ (at paragraph 17 of the reasons). Having made this finding he was entitled to consider Dr Rushworth’s report as it related to that issue. It is not, as the Insurer submits, “quite clear” that Dr Rushworth was given an incorrect history vis a vis whether Ms Steele was doing heavy work.
This ground of appeal is not made out.
The Substantial Contributing Factor Error
The Arbitrator found that Ms Steele’s employment was a ‘substantial contributing factor’ to her injury.
The Insurer submits that:
“Regarding the issue in relation to s.9A the Applicant/Employer submits that if it is alleged that there was some injury to the back as a result of what appears to have been a cerebral accident which occurred on 14th November 2001 employment should not be regarded as being a substantial contributing factor to such an injury i.e. the injury was not occasioned by reason of employment in any sense because the cerebral accident did not arise out of and was not in the course of the Respondent/Worker’s employment.”
This submission does not address the evidence nor refer to any of the matters which section 9A of the 1998 Act sets out for consideration.
The Arbitrator accepted that Ms Steele did heavy work. He expressly accepted Dr Rushworth’s report, which, it should be remembered, was filed by the Respondent. There were a number of other medical reports in evidence before the Arbitrator, including X-ray and MRI reports showing injury to the back. Dr Lam, who reported in May 2004, opined that her employment was a ‘substantial contributing factor’ to her injury, as did Dr McKechnie, who reported in March 2003.
I agree with Ms Steele’s submission that there was sufficient evidence to support the finding by the Arbitrator that Ms Steele’s employment was a substantial contributing factor to her injury.
This ground of appeal is not made out.
The Disease Error
The Insurer argues that the Arbitrator erred in fact and/or in law by failing to make a finding of the disease from which the Respondent/Worker was suffering before the alleged aggravation on 14th November 2001.
The Insurer submits that it “appears that the Arbitrator has come to the conclusion that s.16 applies”. In fact the Arbitrator states clearly, at paragraph 17(e) of the Reasons, that he “has come to the view that this is a Section 16 injury”.
The Insurer submits further that:
“The Arbitrator does not make clear what if any disease the Respondent/Worker was suffering from at the time of the aggravation which he found to have taken place. Presumably he regarded the Respondent/Worker as suffering some sort of disease in the back, possibly degenerative changes.
It is submitted that it was not open to the Arbitrator to conclude that there was an aggravation of a disease on 14th November 2001. There was no evidence to this effect and the only evidence was a reference to the nature and conditions of employment. Dr McKechnie appears to regard the Respondent/Worker as having suffered her injury in January 2001 however the Arbitrator made no such finding and must be taken to have rejected that opinion.
It is submitted that it was clear beyond dispute that the Respondent/Worker ceased her duties on 14th November 2001 and went off work because of the cerebral accident and the symptoms therefrom (which did not include the back). It is further submitted that the evidence is clear beyond dispute that she continued to be off work until early 2002 because of those non work related symptoms.”
This ground of appeal has some merit. The Arbitrator does not explain his finding that Ms Steele suffered a ‘disease’ nor detail what evidence he has relied upon to make this finding. He does not review the plethora of medical evidence that was before him indicating what he considered to be probative instead referring only to the report of Dr Rushworth, without elaboration. However, having reviewed the evidence that was before the Arbitrator I am satisfied that a finding that Ms Steele suffered a ‘disease’ was open to him on the evidence. The evidence supports a finding that Ms Steele suffered ‘degenerative disc disease’ and that the incident on 14 November 2001 aggravated this disease.
The following evidence is relevant and persuasive on this issue:
· In her statement Ms Steele described the development of back pain from January 2001.
· Ms Steele did ‘heavy work’ including lifting and bending. She also stood for long hours during her shifts.
· Ms Steele described an incident on 14 November 2001, during a normal shift, where she lost sensation in her hand, had pain in her eye and slurring of speech. This has been described as the ‘cerebral incident’.
· There is clinical evidence, X-Ray and MRI, that Ms Steele has “degenerative disc disease”. On 12 November 2001 Ms Steele had a CT Scan that revealed disc bulge at L4/5 and L5/S1. On 7 December 2001 Ms Steele had an MRI scan which showed “a degree of disc dehydration and degeneration”.
· Ms Steele states that she has had leg and back pain since 14 November 2001.
· Dr Lam, Pain Medicine Specialist, opined that Ms Steele had “lumbar spinal pain with a component of musculoskeletal and neuropathic pain”. He considered her condition was aggravated/exacerbated by her employment as a bar attendant at the Campbelltown Catholic Club.
· Dr McKechnie, Neurosurgeon, first reviewed Ms Steele on 29 November 2001. He reported, on 25 March 2003, a history of the development of back pain associated with Ms Steele’s work, from twelve months prior to his first review of Ms Steele. Ms Steele reported to Dr McKechnie that she had developed pain in the left hip and down the left leg at the time of the ‘cerebral incident’ on 14 November 2001.
· Dr Michael is Ms Steele’s treating General Practitioner. He reported on 30 July 2003. He states that Ms Steele had presented with increasing back pain over the twelve months to November 2001.
· Dr Rushworth reported on 22 December 2003 that Ms Steele suffered “symptomatic degenerative arthropathy of her lower lumbar spine, possibly aggravated by ‘heavy work’”.
While the medical evidence describes Ms Steele’s back pain in various terms it is possible to generally categorise her condition as ‘degenerative disc disease’. The evidence supports the conclusion that this ‘disease’ suffered by Ms Steele was aggravated or exacerbated by her employment. An AMS must now assess the degree of permanent impairment, if any that Ms Steele now has.
This ground of appeal is made out to the extent that the Arbitrator did not give adequate reasons for finding that Ms Steele suffered from a disease and did not make sufficient and relevant findings of fact. These findings are critical for the referral of the ‘medical dispute’ to an AMS. However on review of the decision I have arrived at the result submitted by Ms Steele, i.e. she suffered from the ‘degenerative disc disease’, which was aggravated or exacerbated by her employment.
The Weight of Evidence Error
The Insurer argues that Ms Steele has not suffered a work related injury. It points to the fact that Ms Steele ‘s complaints as a result of the incident on 14 November 2001 were not about her back and leg, but were pain in her right eye and slurred speech, with a history of blackouts over a period of three to four years.
The Insurer also argues under this ‘ground’ that the Arbitrator erred in finding that Ms Steele’s employment was a substantial contributing factor to her injury. This is a repetitive submission and has been dealt with above.
The Insurer claims that Ms Steele gave Dr McKechnie, Neurosurgeon, a history of back pain from 1998 and at least for over twelve months prior to November 2001, without reference to a specific injury but stating “that the pain initially commenced when she was performing her duties at work”.
The Appellant submits that:
“. . . it is not clear how the Arbitrator gained the impression that the Respondent/Worker had been repeatedly lifting bags containing up to 1000 coins at some time shortly prior to the episode on 14th November2001. This is not referred to in the Respondent/Worker’s Statement but may have been referred to in oral evidence. At the present time the Applicant/ Employer is unable to make any submissions regarding the origin of this information and reserves its right to make further submissions in this regard once a copy of the transcript of the Respondent/Worker’s oral evidence is received”.
I agree with Ms Steele’s submission that this claim by the Insurer is simply not correct. In fact it is an unmeritorious submission for the following reasons:
· Ms Steele’s statement, dated 9th March 2004, and filed with the ‘Application to Resolve a Dispute’ in the Commission on 2 December 2004 states the “ main problem is the clearance of the poker machines and lifting stools. The coins are in a tray at ankle level. You pull the tray out and put it on a trolley at knee height, it can hold from 1-1000 coins and be very heavy”.
· Ms Steele first made her claim for compensation in February 2002. It is now nearly four years since the first claim. For the Insurer to assert that it does not now know the nature of Ms Steele’s duties and whether or not she was, in fact, lifting up to 1000 coins at a time is remarkable.
· The transcript of the arbitration was provided to the parties under cover of a letter dated 28 April 2005. The transcript at pages 17 and 18 refers to the lifting of coins in some detail, including clearing up to 208 machines in a single shift. The Insurer has had nearly seven months to review the transcript of evidence and seek leave to make further submissions in relation to it. It has not done so.
This ground of appeal is not made out.
The Date of Injury Error
Ms Steele, in her application to the Commission, identifies the ‘date of injury’ as:
(i)From 22/9/94 to 31/12/01
(ii)In about January 2001
(iii)On 14/11/01.
The Arbitrator found that it was deemed to occur, pursuant to section 16 of the 1987 Act, on 14 November 2001.
Ms Steele’s evidence is that she suffered back pain for the first time in about January 2001. Following the incident at work on 14 November 2001 she was in hospital for investigation for two days. She then returned to work for a few days but had back pain and had to go off work until 4 December 2001. Following that date she was on pre-arranged holiday leave until 5 February 2002.
The Appellant argues that the date of injury should be 7 February 2002, being the date the claim for compensation was made. Although Ms Steele stated that she was off work and on holidays after November 2001 she did not make a claim until February 2002.
The Arbitrator’s reasons demonstrate that he correctly identified the legal issues relevant to a determination of the date of injury and considered carefully the relevant authorities.
The evidence supports a finding that Ms Steele was doing her usual work, which was ‘heavy’ prior to the ‘cerebral incident’ on 14 November 2001. She has consistently claimed that she had back pain following that incident, aside from and in addition to the other neurological symptoms she suffered. She had time off work to investigate the cerebral incident but also stated that she could not resume her normal duties because of her back pain. She reported that her back pain had been developing over several months, if not longer, and the medical evidence is that it was aggravated or exacerbated by her employment. Thus the first occasion where Ms Steele was incapacitated for work as a result of her back pain was 14 November 2001. She did not resume her usual duties until her return from holiday leave in February 2002. However Ms Steele did not claim weekly compensation for incapacity until notifying the Employer of injury on 7 February 2002. Provisional liability payments were made from that date to 14 March 2002.
The Arbitrator discusses two lines of authority on how to determine the “time of the workers . . . incapacity” as that phrase is used in section 16 of the 1987 Act. Her refers specifically to the Court of Appeal decision in P&O Berkeley Challenge Pty. Ltd. v Alfonzo & Ors (2000) 49 NSWLR 481 (‘P&O’) and the Compensation Court decision of Davis v State Rail Authority (NSW)(2001) 21 NSW CCR 322 (Davis). The Arbitrator preferred the decision in Davis, which considered that the ‘time of the workers incapacity’ in section 16 referred to the “incapacity to engage in pre-injury work either partially or totally”.
The Arbitrator purported to follow P&O, as a binding authority of the Court of Appeal. He found that, having accepted Dr Rushworth’s opinion that “the injury which gives rise to a claim for Permanent Impairment . . . brought about an incapacity, in the nature of a Permanent Impairment, just prior to the development of symptoms and therefore on or about the 14th November 2001”.
The Arbitrator was correct to rely upon P&O. Priestly JA, in P&O found that the ‘incapacity’ referred to in section 16 was “the kind for which a worker establishes an entitlement to weekly payments of compensation”.
It is not clear whether Ms Steele claimed compensation for the time between 14 November 2001 and her departure on annual leave on 4 December 2001. She stated that she was “off work” during this time. The Insurer submits that she first claimed some compensation from 7 February 2002 onwards, and these were met “from 14 March 2002 on an interim liability basis only”. In any event Ms Steele’s evidence, which the Arbitrator accepted, supports the conclusion that she suffered an injury on 14 November 2001, being an aggravation or acceleration of degenerative disc disease, to which her employment was a substantial contributing factor, and for which she was entitled to weekly payment of compensation. She was incapacitated for work as of that date.
Section 16 of the 1987 Act is directed to the determination of when the injury occurred. It is not necessary that this be at the same time as compensation was actually claimed, although as Fitzgerald JA noted in P& O (at paragraph [50]), this is likely to be the same date. It is sufficient that the injury gave rise to incapacity that gives rise to an entitlement. The Court of Appeal in Stone v Stannard Brothers Launch Services [2004] NSWCA 277, Handley J (at para 7) also noted that “[T]he evident purpose of s 16(1)(a) is to fix a precise date for a s 16 injury. Where the worker claims or could claim weekly compensation for incapacity the section enables this to be done. Where the worker suffers gradually increasing incapacity but makes no claim for weekly compensation the section cannot do this”. .
In this matter, had Ms Steele not been incapacitated, in that she had continued after 14 November 2001 to work with her back pain, then the date of injury would be when she first became ‘incapacitated for work’. She did not continue to work because the injury for which she has now claimed compensation caused her incapacity. The injury is therefore deemed to have occurred, pursuant to section 16 of the 1987 Act, on 14 November 2001. Her permanent impairment, if any, will therefore fall to be assessed under the Table of Disabilities.
This ground of appeal is not made out.
DECISION
The decision of the Arbitrator is confirmed.
COSTS
The Appellant is unsuccessful on the appeal. Division 3 of Part 8 of the 1998 Act governs the award of costs in the Commission.
The appropriate order is that the Appellant pay the costs of the appeal.
Dr Gabriel Fleming
Deputy President
11 November 2005
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DR GABRIEL FLEMING, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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