Central Coast Area Health Service v Clara Evans
[2004] NSWWCCPD 10
•25 February 2004
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Central Coast Area Health Service v Clara Evans [2004] NSWWCCPD 10
APPELLANT: Central Coast Area Health Service
RESPONDENT: Clara Evans
INSURER:NSW Treasury Managed Fund
FILE NUMBER: WCC9810-2003
DATE OF ARBITRATOR’S DECISION: 6 November 2003
DATE OF APPEAL DECISION: 25 February 2004
SUBJECT MATTER OF DECISION: Whether injury occurred out of or in the course of employment pursuant to section 4 of the Workers Compensation Act 1987,
Application of section 9A of 1987 Act,
Errors of law and fact
PRESIDENTIAL MEMBER: Dr Gabriel Fleming
HEARING:19 February 2004
REPRESENTATION: Appellant: Hunt & Hunt Lawyers
Respondent: RL Whyburn & Associates
ORDERS MADE ON APPEAL: The following decision of the Arbitrator is revoked:
“ a.The Respondent is to pay the Applicant weekly compensation at the rate of $933.30 per week from 28 November 2002 to 24 February 2003.”
The following decision is made in its place:
“a. That the Respondent pay the Applicant weekly compensation at the rate of $933.30 from 28 November 2002 to 13 December 2002 under section 36 of the Workers Compensation Act 1987.
BACKGROUND
1.On 26 November 2003, Central Coast Area Health Service (‘the Appellant Employer’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission. The decision appealed against was made on 6 November 2003.
2.The Respondent to the Appeal is Ms Clara Evans (‘the Respondent Worker’).
3.The Respondent Worker filed submissions in Reply to the Appeal on 19 December 2003.
4.The matter was referred to me for review on 20 January 2004.
5.The parties made written submissions and further, oral submissions, at a hearing on 19 February 2004.
THE DECISION UNDER REVIEW
6.The Certificate of Determination, dated 6 November 2003, records the Arbitrator’s orders as follows:
“ a.The Respondent is to pay the Applicant weekly compensation at the rate of $933.30 per week from 28 November 2002 to 24 February 2003.
b.The Respondent is to pay the Applicant’s expenses pursuant to Section 60 of the Workers Compensation Act upon production of account or receipts.
c.The Respondent is to pay the Applicant’s costs as agreed or assessed.”
7.The Arbitrator found that the Central Coast Area Health Service was liable to pay Ms Evans workers compensation. A causal connection could be established between an injury to her knee as a result of falling from her car on 28 November 2002, and her employment as a clinical nurse specialist at Wyong Mental Health Acute Care and Access Team.
8.The Arbitrator found that Ms Evans’ employment was a substantial contributing factor to her injury.
9.The Appellant Employer disputes the workers’ entitlement to compensation under section 4 of the Workers Compensation Act 1987 (‘the 1987 Act’), and submits that the Arbitrator erred in his interpretation of the law and calculation of the award.
ISSUES IN DISPUTE
10.The issues in dispute in the appeal may be summarised as follows:
Did the Arbitrator err in finding that:
·the worker suffered an ‘injury’ arising out of or in the course of her employment in accordance with section 4 of the 1987 Act;
·the worker’s employment was a substantial contributing factor to her injury, in accordance with section 9A of the 1987 Act;
·sections 15,16 and 17 of the 1987 Act applied to this matter, and that
·there was evidence to support the worker’s claim to compensation for total incapacity from 28 November 2002 to 24 February 2003?
11.The parties did not seek to tender new evidence on the appeal.
12.The Arbitrator determined the matter on the papers. The evidence and submissions that were before the Arbitrator are also before me on appeal.
LEAVE TO APPEAL
13.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 & Workers Compensation Act 1988 (‘the 1998 Act’), which provides:
352 Appeal against decision of Commission constituted by Arbitrator
(1) A party to a dispute in connection with a claim for compensation may, with leave of the Commission constituted by a Presidential member, appeal to the Commission as so constituted against a decision in respect of the dispute by the Commission constituted by an Arbitrator.
(2) The Commission is not to grant leave to appeal unless the amount of compensation at issue on the appeal is both:
(a)at least $5,000 (or such other amount as may be prescribed by the regulations), and
(b) at least 20% of the amount awarded in the decision appealed against.
(3) If the Commission refuses to grant leave to appeal, the Commission must state reasons for the refusal in writing to the parties.
(4) An appeal can only be made within 28 days after the making of the decision appealed against.
(5) An appeal under this section is to be by way of review of the decision appealed against.
(6) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.
(7) On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
(8) In this section, decision includes an award, interim award, order, determination, ruling and direction.
14.The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
15.The Appellant Employer disputes the amount of the award and submits that Ms Evans is not entitled to any compensation. The amount in dispute is $933.30 per week for 13 weeks, totalling $12,132.90. This amounts to more than $5000.
16.The amount is also more than 20% of the amount awarded in the decision appealed against, as it constitutes 100% of the award.
17.The appeal meets the threshold requirements pursuant to section 352(2)(a) and (b) of the 1998 Act.
18.Leave to appeal was granted on 27 January 2004.
EVIDENCE AND SUBMISSIONS
19.Ms Evans has been employed by the Central Coast Area Health Service as a nurse since 1992. At the time of the alleged injury she was employed as a clinical nurse specialist at Wyong Mental Health Acute Care and Access Team in Wyong.
20.Ms Evans stated that on 27 November 2002 she was rostered to work a double shift at the Accident and Emergency Department of Wyong Hospital from 8.30 am until 11pm, following which she returned to the Acute Care centre and continued work until 1.30 am on 28th November. She was called into work on the ‘morning shift’ from 8.30 am on 27th November because “one of the morning staff was off work sick”. She was required to make a ‘home assessment’ and then attend the accident and emergency ward at Wyong Hospital. At the start of her regular shift at 3pm on the same day she dealt with a man who was suicidal. At the end of her second shift she was then required to update her case notes and “put all the information on the board for the next day”. She stated that she worked continually, without a break and without food for the whole of her time at work.
21.She then drove for twenty five minutes to her home and parked her car on the concrete area in front of her driveway, on the edge of a grassed area within the boundary of her home. As she got out of the car she put her foot on the lawn and fell. She hit her left knee on a sandstone block in the garden.
22.She claims that she fell, and injured her knee, because she had been working such a long shift and was extremely fatigued. Ms Evans believes she would not have injured herself had she not been suffering from extreme fatigue, and thus felt light-headed and had difficulty concentrating.
23.On the morning of the 28th November 2002 Ms Evans attended her doctor and had her knee x-rayed. She required crutches to walk and was prescribed painkillers and anti-inflammatory medication. She was unable to work from 28 November 2002 to 24 February 2003. She claimed compensation for total incapacity from 28 November 2002 to 30 January 2003 and then partial incapacity until 24 February 2003 (‘Applicant’s submissions to Arbitrator’ dated 2 October 2003). She incurred medical expenses for three visits to her doctor, one visit to another doctor, and approximately $300.00 in medication.
24.The Appellant Employer submits that there was insufficient evidence before the Arbitrator to conclude that Ms Evans’ injury was causally related to her employment. The Appellant Employer points to Ms Evans’ evidence (in her statement of 5 December 2002) that she had dizzy episodes for about 2 weeks prior to the incident and had vertigo on plane trips to and from Brisbane. She was prescribed medication for nausea.
25.The Appellant Employer submits that the Arbitrator erred in his interpretation of sections 15, 16 and 17 of the 1987 Act in that he failed to appreciate the nexus between these sections and the requirements of section 4 of the 1987 Act in relation to establishing an ‘injury’ that arose “out of or in the course of employment’. The Appellant employer submits that the worker has failed to establish that an injury occurred during her employment.
26.The Appellant Employer submits that the Arbitrator, correctly, found that the worker’s state of exhaustion did not amount to an ‘injury’ for the purpose of section 4 of the 1987 Act. The Arbitrator then purported to find that the worker’s state of exhaustion led to her suffering an injury at her home, and that her employment was a ‘substantial contributing factor’ to this injury. The Appellant Employer submits that this is an error of law in the application of sections 4 and 9A of the 1987 Act.
27.The Appellant submits that the Arbitrator erred in his reliance upon Kooragang Cement Pty Ltdv Bates (1994) 35 NSWLR 452 (‘Kooragang’). The worker in that case had suffered a clear ‘injury’ whilst at work, the issue in dispute being the relationship of this earlier incident to his subsequent death from a heart attack. The Appellant Employer submits this may be distinguished from the current claim, as Ms Evans did not suffer any ‘injury’ at her place of work.
28.The Appellant Employer submits that the Arbitrator erred in his reliance upon facts that were not supported by medical evidence. The worker submitted medical evidence in the arbitration proceedings, covering only part of the period for which she claimed incapacity. The Appellant submits that the certificate of 20 January 2003 did not give details of diagnosis or treatment and that it did not include “information that is reasonably sufficient in the circumstances to assist in the determination of the claim”, pursuant to section 65(i)(c) of the 1998 Act.
29.The Respondent Worker submits there has been no error made by the Arbitrator and that the decision should stand. The Arbitrator has satisfied himself, in accordance with the test of causation in Kooragang. Even if the Arbitrator has incorrectly interpreted sections 15, 16 and 17 of the 1987 Act, the Respondent Worker submits, these are not essential to his reasoning or the premises of his decision.
30.The Respondent Worker submits the Arbitrator has not misinterpreted sections 4 and 9A of the 1987 Act.
31.The basis of the Respondent Worker’s submissions are that the Arbitrator had sufficient evidence before him to make a decision and that no errors were made. The Arbitrator did not misinterpret or misapply either Kooragang or sections 4 and 9A of the 1987 Act. The Arbitrator recognised that the worker suffered no injury at work before injuring herself at home. He equated this matter with instances of injuries of delayed manifestation, in an attempt to establish the causal link between her fatigue at work and the injury at home.
32.The Respondent submits that the medical certificate of 20 January 2003 provides adequate proof of the facts and dates asserted in the claim. The Respondent refers to the Arbitrator’s decision in relation to the adequacy of the certificate. Specifically the Respondent relies on paragraph 54 of the Arbitrator’s Statement of Reasons, which states “I reject the Respondent’s argument that the medical certificate of 20 January 2003 is inadequate. Clearly it relates to the injury of 28 November 2002.”
DISCUSSION AND FINDINGS
Injury arising in the course of employment
33.The Appellant Employer must demonstrate that the Arbitrator erred in fact, law or discretion, in order to justify interference with the Arbitrator’s decision, upon review by a Presidential Member (Mayne Health Group t/as Nepean Private Hospital v Sarah Sandford [2002] NSW WCC PD 6). The failure to make a decision on the basis of logically probative evidence, and the misinterpretation of statutory provisions, are errors of law.
34.The critical issue in this case is ‘causation’, namely the link between employment and injury. This must be determined on the facts of each case (Kooragang). The Appellant Employer submits that the Arbitrator erred in finding that the worker suffered an ‘injury arising out or in the course of her employment’ in accordance with section 4 of the 1987 Act, which provides as follows:
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) . . . .
35.The ‘personal injury’ in contention is Ms Evans’ was originally diagnosed as ‘torn cartilage in left knee’, by Dr Orgias on the WorkCover Medical Certificate dated 2 December 2002. Following x-rays, the diagnosis was of “internal” or soft tissue damage to the knee. Extreme fatigue and lack of food, which allegedly caused Ms Evans to become ‘light headed’, are said by her to be factors precipitative of the injury.
36.The phrase ‘arising out of . . employment’ connotes a causal connection between the work and the injury (Nunan v Cockatoo Docks & Engineering Co Pty Ltd (1941) 41 SR (NSW) 119). This may be contrasted with the concept of an injury that occurs ‘in the course of employment’, connoting a temporal connection between the injury and the employment (Hatzimanolis v ANI Corporation Limited (1992) 173 CLR 473 (‘Hatzimanolis’)).
37.The facts of this matter do not support a claim that the injury occurred ‘in the course of’ Ms Evans’ employment, and she does not contend that they do. Ms Evans had left her place of work and driven to her home. She was inside the boundary of her home when the incident occurred that gave rise to her injury. The injury occurred outside of her working hours, away from her place of work and not in an “interlude or interval within an overall period or episode of work” (Hatzimanolis at 483). Ms Evans also does not contend that the injury occurred on a prescribed ‘journey’ for the purposes of the Workers Compensation Acts.
38.The question of whether Ms Evans’ injury arose out of her employment is one of causation. In March v Stramare (E.& M.H.) Pty Ltd ( 1991) 171 CLR 506 at 524, Deane J referred to the test of causation as follows: “ The question whether conduct is a “cause” of injury remains to be determined by a value judgement involving ordinary notions of language and common sense”.
39.Causation must be proven on the balance of probabilities. It is not sufficient for a worker to show that it is merely possible that the injury was caused by her employment (Seltsam Pty Limited v McGuiness [2000] NSWCA 29). This will be a matter for determination on the evidence of each case.
40.The Arbitrator correctly identified (at paragraph 37 of the Reasons) the relevant question to be answered, namely “was it the Applicant’s extreme fatigue and lack of sustenance which caused or substantially caused injury?” In answer to this question the Arbitrator relied upon the facts as set out in the worker’s statements of 5 December 2002 and 29 April 2003 to support a positive finding that Ms Evans’ injury arose from her employment. There was no contradictory evidence put by the Employer and the Arbitrator was entitled to accept the unchallenged evidence of Ms Evans.
41.It is relevant, and un-contradicted, that Ms Evans was in fact required by her employer to work the seventeen-hour shift that she did. The consequent fatigue and dizziness from lack of sustenance she experienced was a direct consequence of the nature of her employment. She was rostered to work the morning shift to replace another worker, following which she then worked her own full shift. Given the nature of her work and the fact that she was attending a seriously mentally ill person, it was obviously not possible for her to simply leave at the allotted end of her shift.
42.The Appellant Employer points to the alleged differences between Ms Evans’ statements of 5 December 2002 and 29 April 2003. Both statements describe Ms Evans’ travel home by car in the early morning of 28 November 2002, and her fall from the car as she was getting out at her home. The latter statement expressly attributes Ms Evans’ injury to “the extraordinarily long day that [she] worked without food or refreshment” (paragraph 14). Ms Evans’ claims she was fatigued, light headed and lacked concentration because she had not eaten for seventeen hours while at work. She claims she had parked her car in the same location many times previously and would have been able to manage the fall from the car if she had not been in this state.
43.The Arbitrator did not err in taking both of Ms Evans statements into account. Ms Evans’ view of the circumstances of her injury is relevant to the determination of the dispute. The rules of evidence do not apply in the Commission. It is for the Arbitrator to consider the whole of the evidence and to come to a view on its relevance and weight, and the extent to which it is logically probative to the issues to be determined (Workers Compensation Commission Rules 2003, Rule 70).
44.There was evidence that Ms Evans had episodes of dizziness in the two weeks prior to the incident, however no expert medical evidence was submitted by either party. This was not the subject of any evidence or submissions by the employer.
45.In my view, the determination of the relationship between Ms Evans’ employment and her injury is a difficult matter involving careful judgement as to the weight and relevance of the available evidence and the application of the statutory test. I agree with the Arbitrator’s comment that this matter is ‘somewhat of a unique case’. I am satisfied that Ms Evans has proven that the causal connection between her employment and her injury is beyond a mere possibility, and is in fact a probability. Taking all of the evidence into account and applying the ‘common sense’ test of causation, on the balance of probabilities, I am satisfied that it was open to the Arbitrator to find that Ms Evans’ injury ‘arose out of’ her employment as a nurse with the Central Coast Area Health Service.
46.The Arbitrator did not err in the application of section 4 of the 1987 Act to the particular facts of this case.
Employment was a Substantial Contributing Factor
47.Having found that Ms Evans suffered an ‘injury’ in accordance with the Workers Compensation Acts, the Arbitrator must then determine whether her employment was a ‘substantial contributing factor’ to that injury, in accordance with section 9A of the 1987 Act, which provides as follows:
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 section 10, 11 or 12 applies.
48.The Arbitrator, at paragraph 46 of the Reasons, refers to sections 15, 16 and 17 of the 1998 Act. In my view these provisions have no relevance to Ms Evans’ claim. Ultimately, however, the Arbitrator placed no reliance upon these provisions in the determination of the matter.
49.Similarly the Arbitrator’s analogy between Ms Evans’ case and a person suffering a head injury at the workplace is irrelevant. The cases of Jadoul v Qantas Airways [2001] NSWCC 175 (‘Jadoul’) and Smith v Australian Woollen Mills Ltd (1933) 50CLR 504 deal with injuries which were found to have been sustained at the place of employment (this is not to deny the relevance of these cases to broader issues). It is uncontested that Ms Evans’ only injury was that to her knee, which occurred when she fell from her car at her home.
50.The Arbitrator referred to the leading case of Mercer v ANZ Banking Group [2000] NSW CA 138 (‘Mercer’), which is relevant to the application of section 9A of the 1987 Act. It is not clear to me what principle the Arbitrator extracted from Mercer as he refers only to an extract of the Minister’s Second Reading speech on the Bill that amended the 1987 Act in relation to section 9A. In Mercer Mason, P. stated (at paragraph 32) that:
“The requirement that employment be a contributing factor to the injury is not equivalent to the expression arising out of the employment. It is not easy to apply a causation requirement to a provision which continues to define ‘injury’ as including injury arising in the course of employment. However, work has to be found for all of the words used, unless this proves an impossible task. Section 9A (3)(a) does not preclude this, because it goes no further than deeming employment not to be a substantial contributing factor to an injury ‘merely because’ the injury arose in the course of the worker's employment etc”
51.Recent cases illustrate conflicting interpretations of the Mercer case. In Jadoul, Burke J, stated (at paragraph 21) that “I am bound by the decision in Mercer and that I take to require that the concept of substantial contributing factor is to be regarded as, at least, no more onerous than the concept of arising out of the employment. If injury arises out of the employment then the employment is necessarily a substantial contributing factor to the injury”.
52.This interpretation of Mercer was expressly, albeit briefly, rejected by the Court of Appeal, (Mason P, with whom Meagher JA and Handley JA agreed), in the more recent case of ICM Agriculture Pty Ltd v Perry [2002] NSW CA 257. Such an approach is also inconsistent with the express words of Section 9A (3)(a) which states that a finding the injury arose out of or in the course of employment is not, in itself, a basis for a finding of substantial contributing factor.
53.The word ‘substantial’ must be given its normal meaning, and, as Meagher JA noted in Dayton v Coles Supermarkets Pty Limited [2001] NSWCA 153 at paragraph 16, “this word is a plain English word which is understood by anyone who is not a judge”.
54.Employment need not be the only substantial contributing factor to Ms Evans’ injury. Other causative factors may operate. It is sufficient if it is ‘a’ substantial contributing factor that is “more than minimal” (Mercer). In most cases it remains a question of impression and degree on the facts of the instant case (Dayton v Coles Supermarkets Pty Limited [2001] NSWCA 153 at paragraph 25).
55.The Arbitrator considered that “the coincidence of the length of the Applicant’s shift, her lack of opportunity to have anything to eat and an extremely stressful and demanding occupation, to my mind establish a substantial connection between the Applicant’s injury and her employment”.
56.There was no evidence before the Arbitrator to contradict Ms Evans’ claims that: she had been required to work a seventeen hour shift without food and without a break; the tasks that she had performed had been extremely stressful and included dealing with patients with severe mental illness; and at the time of her fall she felt fatigued and light headed, which she attributed to her long working hours and lack of sustenance.
57.There was no medical evidence to suggest that her fall could be attributed to other causes.
58.There was no evidence of other factors that may have contributed to Ms Evans’ injury, however, common sense would suggest that one contributive factor may have been simply that she lost her balance when she attempted to get out of her car. Her evidence was that she had a ‘back sack’ with a strap that got caught on the end of the steering wheel lock of the car and this entanglement led to her falling. It was her inability to “manage the situation far better when [she] began falling out of the car” that she attributed to fatigue and light-headedness, caused by her long and stressful working hours. Whether or not the injury would have occurred anyway, regardless of her employment, is a relevant factor. However, in this instance there is no evidence to support the likelihood that Ms Evans would have fallen when alighting from her car at this particular time and place. There is, for example, no evidence to suggest that the place where she parked the car was in disrepair or unsafe for other reasons, and therefore contributed to her injury. Her evidence was that she frequently parked her car in this place and that on this occasion her state of fatigue contributed to her fall.
59.Weighing all the evidence and taking into account the matters set out in section 9A of the 1987 Act I am satisfied that the Arbitrator did not err in finding that Ms Evans’ employment was a substantial contributing factor to her injury. The Arbitrator’s brief reasons canvass the matters described above and refer to the length of Ms Evans’ shift, “her lack of opportunity to have anything to eat and an extremely stressful and demanding occupation”. The evidence is sufficient to support a finding that her employment had a more than minimal, a real and a substantive, contribution to her injury.
Amount of the Award
60.Ms Evans, in her statement dated 5 December 2002, stated that the “soft tissue injury” to her knee was improving gradually at that time. She had attempted to return to work, but was not able to “do [her] work properly”. In her statement of 29 April 2003 she states that she was off work due to her injury from 28 November 2002 to 24 February 2003.
61.There were a number of medical certificates before the Arbitrator to support Ms Evans’ claim for compensation. The first, dated 28 November 2002, is a WorkCover Medical Certificate which certifies that she was unfit to work from 29 November 2002 to 1 December 2002. The second, also a WorkCover Medical Certificate, dated 2 December 2002, certifies Ms Evans unfit for work from 2 December 2002 to 16 December 2002. A third WorkCover Medical Certificate, dated 13 December 2002 certifies Ms Evans fit for her pre-injury duties from 13 December 2002. All of these certificates identify the injury to Ms Evans’ knee as the reason for her unfitness.
62.A fourth medical certificate dated 20 January 2003, not in the form of a WorkCover Medical Certificate, is in evidence. This certificate states that Ms Evans was unfit for her normal duties until 30 January 2003. It was issued by Gosford Hospital Outpatients and does not include information required by section 65 of the 1998 Act.
63.The Arbitrator rejected the employer’s submission that this latter certificate was inadequate. However, in my view the Appellant Employer’s submission is clearly correct and this certificate does not meet the requirements of the 1998 Act. The medical certificate does not, for example, make any reference to what illness or injury Ms Evans was suffering on 20 January 2003. In the face of a WorkCover Medical Certificate dated 13 December 2002, which states that she was fit for work on that day in relation to her knee injury, it is not clear, as the Arbitrator states, that the January certificate relates to that same injury.
64.The Arbitrator has made an award of compensation for total incapacity for the period 28 November 2002 to 24 February 2003. This was not what Ms Evans claimed. She claimed for total incapacity for the period 28 November 2002 until 30 January 2003, and then partial incapacity from 31 January 2003 to 24 February 2003 (Applicant’s submissions dated 2 October 2003). Despite this, the Respondent Worker submits that the Arbitrator’s reasons for the award of weekly compensation for total incapacity from 28 November 2002 - 24 February 2003 are correct.
65.In my view the Arbitrator has erred in finding that the evidence supported an award of weekly compensation for total incapacity from 28 November 2002 – 24 February 2003. The WorkCover Certificate dated 13 December 2002, which certifies Ms Evans as fit for work; her statement on 5 December 2002 that she was recovering and had already at that time attempted to return to work; and the fact that the injury was a relatively non-serious ‘soft tissue’ injury, cumulatively support a finding that the award should not extend beyond 13 December 2002.
66.The amount of the weekly award rate of $933.30 does not appear to be in dispute on appeal.
67.On the evidence and submissions in the appeal it appears that the Arbitrator has erred in the making of an award for total incapacity for the whole of the period 28 November 2002 to 24 February 2003.
68.The Arbitrator’s decision should be set aside in relation to the period of the award. The evidence before the Arbitrator, and before me on appeal, does not support an award of compensation outside the period of 28 November 2002 to 13 December 2002.
DECISION
The following decision of the Arbitrator is revoked:
“ a.The Respondent is to pay the Applicant weekly compensation at the rate of $933.30 per week from 28 November 2002 to 24 February 2003.”
The following decision is made in its place:
“a. That the Respondent pay the Applicant weekly compensation at the rate of $933.30 from 28 November 2002 to 13 December 2002 under section 36 of the Workers Compensation Act 1987.
Dr Gabriel Fleming
Deputy President
25 February 2004
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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