Cargill Australia Ltd v Madigan
[2007] NSWWCCPD 10
•12 January 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION
CONSTITUTED BY AN ARBITRATOR
CITATION:Cargill Australia Ltd v Madigan [2007] NSWWCCPD 10
APPELLANT: Cargill Australia Ltd
RESPONDENT: Jodie Madigan
INSURER:Allianz Australia Workers’ Compensation (NSW) Ltd
FILE NUMBER: WCC3725-06
DATE OF ARBITRATOR’S DECISION: 22 June 2006
DATE OF APPEAL DECISION: 12 January 2007
SUBJECT MATTER OF DECISION: Treatment of the evidence as to causation and obtaining suitable employment; section 9A of the Workers Compensation Act 1987
PRESIDENTIAL MEMBER: Acting Deputy President Robin Handley
HEARING:On the papers
REPRESENTATION: Appellant: Walkom Lawyers
Respondent: Walsh & Blair Lawyers
ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 22 June 2006 is confirmed.
The Appellant, Cargill Australia Ltd is to pay the Respondent, Ms Madigan’s costs of this appeal.
BACKGROUND TO THE APPEAL
On 20 July 2006, Cargill Australia Ltd (‘Cargill’) sought leave in the Workers Compensation Commission (‘the Commission’) to bring an appeal against the decision of an arbitrator dated 2 June 2006. The Respondent to the appeal is Jodie Madigan. Cargill’s workers compensation insurer is Allianz Australia Workers’ Compensation (NSW) Ltd (‘Allianz’).
Ms Madigan was born on 18 August 1974 and is aged 32. She has a dependent son aged 12. In October 2003, Ms Madigan commenced employment at Cargill’s meat processing unit in Wagga Wagga, initially as a labourer and later as a slicer. Her duties included lifting cuts of meat. She claims that on or about 10 September 2004, she began to notice pain in her lower back and left buttock radiating down the outside of her left leg. Towards the end of 2004, she also began to experience pain in her right shoulder and left index finger. She notified Cargill of her injury on 6 May 2005 and made a workers compensation claim. Initially, Ms Madigan was placed on light duties but, on 28 June 2005, Cargill informed her that it no longer had suitable duties for her. By letter of the same date, Allianz informed her that it denied further liability with effect from 23 June 2005.
On 10 March 2006, the Commission registered Ms Madigan’s ‘Application to Resolve a Dispute’ in respect of her claim for weekly compensation from 28 June 2005 to date and continuing and for medical, hospital or related expenses. On 31 March 2006, the Commission received Allianz’s ‘Reply’. On 19 May 2006, an Arbitrator conducted a teleconference with the parties and, on 30 May 2006, conciliation having proved unsuccessful, he conducted an arbitration hearing. The Arbitrator’s decision, dated 22 June 2006, is set out below.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 22 June 2006, records the Arbitrator’s orders as follows:
“1. There will be an award for the Applicant for weekly workers compensation at the rate of $661.90 per week in respect of the period 28 June 2005 to 27 June 2006 pursuant to Section 38 and thereafter at the rate of $413.40 per week being the maximum statutory rate for a worker with one dependant child.
2. The Respondent is to pay the Applicant’s Section 60 expenses in the sum of $1,701 otherwise general order [sic].
3. The Respondent is to pay the Applicant’s costs as agreed or assessed.”
In the Statement of Reasons for his decision, the Arbitrator said (at paragraph 33):
“It is clearly undisputed that the Applicant suffers from a serious back injury. The issue remains as to whether or not that injury occurred whilst in the employ of the Respondent and just as importantly whether the nature of the employment was a substantial contributing factor to the injury.”
Having discussed the medical evidence, the Arbitrator concluded (at paragraph 39):
“Accordingly I am satisfied that the Applicant did suffer an injury in the course of her employment with the Respondent and that the injury is best described as a large central left posterolateral disc prolapse with evidence of [sic – on] MRI scanning of nerve root compression, worse on the left side.”
The Arbitrator discussed the meaning of the phrase “substantial contributing factor” and said he was satisfied that Ms Madigan’s work with Cargill, particularly following the change in workload on its entry into the Japanese market, was a substantial contributing factor to her injury.
The Arbitrator found Ms Madigan was fit for restricted or modified duties and would benefit from retraining. In relation to section 38A of the Workers Compensation Act 1987 (‘the 1987 Act’), he found that she “would be ready, willing and able to accept an offer of suitable employment”.
The Arbitrator found that at the time of the injury Ms Madigan was earning $827.37 gross per week and, therefore, was entitled to 80% of that amount for the period 28 June 2005 to 27 June 2006. Thereafter, Ms Madigan was entitled to weekly compensation for partial incapacity for work in accordance with the principles in Mitchell v Central West Health Service (1997) 14 NSWCCR 527: (1) her earnings but for the injury would have been $827.37 per week; (2) she would be able to earn $350 per week in suitable employment, and she had sought such employment but had not been able to obtain it; (3) her loss of income because of the injury was therefore $477.37 per week; and (4) the Arbitrator decided not to use her discretion to reduce that amount. Ms Madigan was therefore entitled to the maximum statutory rate for a single worker with one dependent child of $413.40 per week in respect of the period after 27 June 2006.
The Arbitrator also found Ms Madigan’s claimed medical expenses of $1,701 were reasonably necessary for the compensable injury.
ISSUES IN DISPUTE
Allianz submits the Arbitrator erred in his treatment of the evidence, by finding in favour of Ms Madigan on the issue of causation, and, in particular, by failing to apply or to properly apply sections 9A and 38A of the 1987 Act. The parties’ submissions on these issues are discussed below.
ON THE PAPERS REVIEW
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 that are 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.
Neither party sought to adduce fresh evidence.
LEAVE
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 is at least $5,000 and comprises more than 20% of the amount awarded by the Arbitrator. Accordingly, I am satisfied that the section 352 threshold has been met, and I grant leave to appeal.
SUBMISSIONS, DISCUSSION AND FINDINGS
The role of the Presidential Member on appeal is to review the Arbitrator’s decision as a whole. The review is not a rehearing. In this case, Allianz must demonstrate that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172; The King Island Company Limited v Deery [2005] NSWWCCPD 1) in order to enliven the Presidential Member’s power to interfere with the Arbitrator’s decision pursuant to section 352(7) of the 1998 Act. Where the weight accorded to the evidence by the Arbitrator is challenged, Deputy President Fleming’s comment in Knight v Eyles Nominees Pty Ltd [2004] NSWWCCPD 73, at paragraph 40, should be borne in mind:
“Interference with an Arbitrator’s discretionary judgement as to the weight of evidence should only be done where it is manifestly obvious that the discretion has so miscarried that it has not been exercised fairly and lawfully.”
Grounds 1 to 3: whether the injury arose out of or in the course of employment
Allianz submits the Arbitrator’s finding that Ms Madigan received an injury to her back, leg, right arm and left index finger on 6 May 2005 arising out of or in the course of her employment with Cargill was not supported by any evidence, and the Arbitrator failed to provide adequate reasons for so finding, and failed to address inconsistencies in the evidence concerning the onset and development of symptoms arising from Ms Madigan’s low back condition.
Allianz contends Ms Madigan’s claim was essentially one based on the “nature and conditions” of her employment, without relying on a specific incident as giving rise to her injuries. It submits the Arbitrator erred in finding that the injury occurred on 6 May 2005. Ms Madigan’s solicitors state that it was open to the Arbitrator to make such a finding, noting that 6 May 2005 was the last date upon which Ms Madigan performed work of the type that contributed to her injury. Moreover, even if the Arbitrator made such an error, as Allianz itself recognised, this was an error that can be corrected without rejecting the Arbitrator’s decision.
In my view, the medical evidence supporting the claim points to the injury being one attributable to the nature and conditions of Ms Madigan’s employment. Dr Christopher Thien, Neurosurgeon, in a report dated 28 October 2005, diagnosed “a large central/left posterolateral disc prolapse with evidence on MRI scanning of nerve root compression worse on the left side”, and attributed the cause of the injury “to be the result of the work Jodie does”. Dr Peter Macneil, Surgeon, in a report dated 24 November 2005, stated Ms Madigan’s injuries “are due to the repetitive strain involved with the tasks she was carrying out as a Meat Slicer at Cargill Foods”. Thus, it is clear there was no specific incident to which the injury can be attributed. Ms Madigan’s solicitors correctly point out that 6 May 2005 was the last date on which she performed the work of a slicer to which the Arbitrator found the preponderance of the medical evidence, excepting that of Dr Adrian Van der Rijt, Orthopaedic Surgeon (report dated 3 June 2005), attributed the injury.
In my view, nothing turns on the Arbitrator’s error in nominating 6 May 2005 as the date of injury in his summary at paragraph 47 of his Statement of Reasons. It is clear from his discussion of the evidence that he found the causation of the injury to be the nature and conditions of her employment with Cargill. I am satisfied that there was sufficient evidence to support such a finding, including that of her general practitioners, Dr Julie Son (Progress Notes dated 10 September 2004) and Dr Thien Trinh (Progress Notes dated 18 April 2005, undated entry attributed by Dr Trinh (in his report dated 29 June 2005) to 6 May 2005). The Arbitrator also discussed the evidence of Ms Madigan’s treating Orthopaedic Surgeon, Dr Matthew Howard (report dated 26 August 2005) who found causation difficult to assess and referred her to Dr Thien. The Arbitrator also discussed the evidence of Dr Van der Rijt, noting that Dr Thien rejected Dr Van der Rijt’s opinion, and Dr Macneil, who recognised the possibility that there may have been some degenerative changes prior to the injury but, nevertheless, concluded that the “the injuries to the discs [L4/5 and L5/S1] were caused by the repetitive strains involved in Ms Madigan’s work at Cargill”.
I am satisfied that the Arbitrator properly addressed the relevant evidence, including apparent inconsistencies, and gave adequate reasons for his decision in accordance with his obligation under section 294(2) of the 1998 Act and Rule 73 of the Workers Compensation Commission Rules 2003 in effect at the time of the Arbitrator’s determination (now Rule 15.6 of the Workers Compensation Commission Rules 2006). I therefore reject the first three grounds of appeal.
Ground 4: whether employment was a substantial contributing factor to the injury
Allianz submits the Arbitrator erred in finding that Ms Madigan’s employment was a substantial contributing factor to her low back condition, and failed to properly consider evidence as to the nature of her work duties and the evidence as to the development of her symptoms. Ms Madigan’s solicitors reject this submission and contend there was ample evidence to support the Arbitrator’s finding.
I note the Arbitrator refers to the nature of Ms Madigan’s duties and the development of her symptoms at paragraph 3 of his Statement of Reasons, relying, it would seem, on a description provided by Ms Madigan in her Statement dated 22 February 2006. She also gave oral evidence about the nature of her duties and symptoms at the arbitration hearing (see pages 10 to 16 of the transcript). The Arbitrator also refers to Ms Madigan’s symptoms at paragraph 16, and to her duties and symptoms at paragraphs 32 and 33. At paragraph 39, the Arbitrator discussed the meaning of the phrase “substantial contributing factor”, and then went on to consider the issue of capacity.
I am satisfied that the Arbitrator properly considered the relevant evidence in finding that Ms Madigan’s employment with Cargill was a substantial contributing factor to the injury (as required by section 9A of the 1987 Act), and I therefore reject this ground of appeal.
Ground 5: treatment of expert evidence
Allianz submits the Arbitrator ought to have found Ms Madigan’s medical evidence had no probative value according to the criteria set out in Makita (Australia) Pty Ltd v Sprowles (2001) NSWCA 305 (‘Makita’) and, accordingly, the Arbitrator erred by finding that Ms Madigan did suffer an injury to her lower back caused by or arising out of her employment with Cargill.
Ms Madigan’s solicitors respond that the Arbitrator correctly applied the criteria set out in Makita in deciding that the expert medical opinions relied upon by Ms Madigan were based upon reliable evidence establishing the factual basis upon which those opinions were given.
I note that at paragraph 38 of his Statement of Reasons, the Arbitrator referred to Makita and “the need for expert witnesses to reveal the factual and intellectual basis of their opinions”. He then goes on to discuss Dr Van der Rijt’s opinion in conjunction with that of Dr Thien. Allianz contends that Dr Thien’s report does not provide any detailed explanation of the factual or intellectual basis for his opinion that the nature of Ms Madigan’s work duties was the cause of her injury.
Dr Thien’s report records Ms Madigan’s description of her work activities. Under the heading “Comment”, Dr Thien responds to Dr Van der Rijt’s report, particularly on the question of the cause of Ms Madigan’s disc prolapse and her symptoms. That response is clearly relevant to Dr Van der Rijt’s opinion on the issue of causation. In my view, Dr Thien provided a sufficient explanation for his opinion to enable an evaluation of his conclusions. I note Allianz is similarly critical of the other medical reports provided by Ms Madigan. While the opinions in these reports on the issue of causation are generally briefly stated, they do record Ms Madigan’s description of her work activities and make a connection between those activities and the injury. I am therefore not satisfied that there is a sufficient basis to establish this ground of appeal.
Ground 6: the effect of the change of workload
Allianz submits the Arbitrator erred by placing significant weight on a purported change in Ms Madigan’s workload. Ms Madigan made no mention of this change in her statement dated 22 February 2006 and her reference to this change in the course of her oral evidence was unsatisfactory and uncorroborated by other evidence. Only Dr Thien referred to this change in his history, and the Arbitrator should have rejected Dr Thien’s opinion, such a history not having been recorded by other doctors whose evidence was tendered.
Ms Madigan’s solicitors submit it was open to the Arbitrator, who had the advantage of observing Ms Madigan during extensive cross-examination and accepted her as a witness of credit, to find that change in her workload contributed to the causation of her injury.
I have reviewed the transcript of Ms Madigan’s oral evidence at pages 14 to 16 where, in cross-examination, she gave evidence of how there was a change in the nature of her work as a slicer about August/September 2004 when Cargill entered the Japanese market and the type of meat being processed became heavier and more marbled with fat. This is consistent with the history recorded by Dr Thien in his report.
In my view, there is nothing to suggest that the Arbitrator’s discretionary judgement as to the weight to be attributed to the evidence has so miscarried that it has not been exercised fairly and lawfully. I therefore reject this ground of appeal.
Ground 7: the effect of the injury to the right shoulder and left index finger
Allianz submits the Arbitrator’s finding that Ms Madigan’s incapacity was due in part to the injury to her right shoulder and left index finger was contrary to her own evidence – which was that these conditions had settled and neither would affect her ability to find work in the open labour market, and unsupported by the medical evidence before the Arbitrator.
Ms Madigan’s solicitors submit there is no foundation to Allianz’s assertion that the Arbitrator found her incapacity was due in part to the injury to her right shoulder and left index finger. It is clear that the Arbitrator found her incapacity for work resulted from the low back injury, and he only made passing reference to the injuries to her right shoulder and left index finger.
I have reviewed the Arbitrator’s discussion of the evidence and it is clear from paragraph 39 of his Statement of Reasons, quoted above, and the paragraphs that follow, that the Arbitrator considered the principal injury and principal cause of Ms Madigan’s incapacity to be the back injury. I agree with Ms Madigan’s solicitors that the Arbitrator’s reference to an injury to her right shoulder and left index finger in the paragraph 47 summary is a passing reference only and is not an error that would have had any effect on the Arbitrator’s ultimate decision. I therefore reject this ground of appeal.
Ground 8: whether Ms Madigan took reasonable steps to obtain suitable employment
Lastly, Allianz submits that the Arbitrator’s finding that Ms Madigan did seek suitable employment in accordance with section 38A(2)(d) of the 1987 Act was contrary to and against the weight of evidence. Allianz contends that Ms Madigan’s attempts to actively seek suitable employment fall far short of her obligation under section 38 of the 1987 Act, as the Arbitrator acknowledged when he commented that her “efforts to find suitable employment might be a little questionable” (paragraph 44 of his Statement of Reasons).
Ms Madigan’s solicitors criticise the selectivity of this quotation and draw attention to the complete sentence from which it is taken:
“Whilst the Applicant’s efforts to find suitable employment might be a little questionable I am satisfied on balance that she has applied for at least one job, has been conscientious in seeking out positions in the local newspaper and indeed has endeavoured to use her limited computer skills to set up her own business all of which I feel is sufficient to conclude that the Applicant has taken reasonable steps to obtain reasonable employment, she having been denied the opportunity of rehabilitation retraining.”
Ms Madigan’s solicitors submit this passage demonstrates the Arbitrator adverted to the question of whether the applicant’s evidence satisfied the evidentiary burden in regard to section 38, and there was ample evidence to support his finding that it had.
The Arbitrator clearly took the view that Ms Madigan required rehabilitation training to better equip her with the skills needed to obtain suitable employment, for example in computer skills. I am satisfied there was evidence to support the Arbitrator’s finding, namely Ms Madigan’s oral evidence at the arbitration hearing (transcript pages 3 to 5, 9 to 10), to which the Arbitrator was referring in the passage quoted above. I am therefore not satisfied that I should interfere with the exercise of the Arbitrator’s discretionary judgement, and I reject this ground of appeal.
My having rejected the grounds of appeal, the Arbitrator’s decision must be confirmed.
DECISION
The Arbitrator’s decision dated 22 June 2006 is confirmed.
COSTS
The Appellant, Cargill Australia Ltd is to pay the Respondent, Ms Madigan’s costs of this appeal.
Robin Handley
Acting Deputy President
12 January 2007
I 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.
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