Chhong Heng Taing t/as the Arcade Pharmacy v Gauci
[2010] NSWWCCPD 90
•24 August 2010
| WORKERS COMPENSATION COMMISSION | ||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||||
| CITATION: | Chhong Heng Taing t/as The Arcade Pharmacy v Gauci [2010] NSWWCCPD 90 | |||||
| APPELLANT: | Chhong Heng Taing | |||||
| RESPONDENT: | Mary Rose Gauci | |||||
| INSURER: | Guild Insurance Limited | |||||
| FILE NUMBER: | A2-7914/08 | |||||
| ARBITRATOR: | Mr C Tanner | |||||
| DATE OF ARBITRATOR’S DECISION: | 9 April 2010 | |||||
| DATE OF APPEAL DECISION: | 24 August 2010 | |||||
| SUBJECT MATTER OF DECISION: | Section 16 Workers Compensation Act 1987; evidence of disease; Part 18 Rule 4(4) of the Workers Compensation Commission Rules 2006, substitution of party to proceedings. | |||||
| PRESIDENTIAL MEMBER: | Deputy President Kevin O’Grady | |||||
| HEARING: | On the papers | |||||
| REPRESENTATION: | Appellant: | Leigh Virtue & Associates | ||||
| Respondent: | Lamrocks | |||||
| ORDERS MADE ON APPEAL: | The decision of the Arbitrator dated 9 April 2010 is confirmed. | |||||
| The appellant is to pay the worker’s costs of the appeal. | ||||||
BACKGROUND TO THE APPEAL
Mary Rose Gauci (‘the worker’) alleged that she received injury on 4 November 2004 whilst in the course of her employment with Chhong Heng Taing (‘the appellant’) trading as The Arcade Pharmacy. On that date the worker, who was employed as a pharmacy assistant, alleged injury whilst throwing boxes of stock from the ground floor of her workplace to a fellow employee who was positioned at a landing on a staircase.
The worker made a claim for lump sum compensation pursuant to section 66 of the Workers Compensation Act 1987 (‘the 1987 Act’) in August 2008. That claim was in respect of an alleged seven per cent whole person impairment (‘WPI’) by reason of disability in the left and right upper extremities. A dispute arose concerning the worker’s entitlement to the compensation claimed, and an Application to Resolve a Dispute was registered with the Commission on 3 October 2008.
A Reply was filed on behalf of the appellant by Messrs Leigh Virtue and Associates, solicitors acting as the employer’s representative, the insurer’s representative and, as stated in that Reply, on behalf of “Specialised insurer” of the respondent to the Application which was then cited as Arcade Pharmacy Pty Limited. The relevance of that description of the worker’s employer is discussed below. On 22 October 2008 a Dispute Management Officer of the Commission, acting in accordance with authority delegated by the Registrar, referred the medical dispute for assessment by Dr Philippa Harvey-Sutton, an Approved Medical Specialist (‘AMS’). Dr Harvey-Sutton issued a Medical Assessment Certificate (‘MAC’) on 10 December 2008. That MAC certified whole person impairment (WPI) of nine per cent in respect of injury to the worker’s right and left upper extremities.
The appellant brought an appeal against the assessment certified by Dr Harvey-Sutton pursuant to section 327 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’). The Registrar referred the matter to an Appeal Panel for review. The MAC of Dr Harvey-Sutton was confirmed by the Appeal Panel. That decision and reasons for same were published on 20 March 2009.
On 22 April 2009 a Certificate of Determination concerning the dispute was issued from the Commission. That determination made orders concerning payment by the appellant to the worker of lump sum compensation in the sum of $11,250 being in respect of nine per cent WPI in accordance with Dr Harvey-Sutton’s MAC together with costs as agreed or assessed.
An appeal was made against the Commission’s Determination pursuant to section 352 of the 1998 Act. That appeal, which came before me, was upheld and the orders made as found in the Certificate of Determination dated 22 April 2009 were revoked. A further order was made which provided for remitter to an Arbitrator for determination of any application the appellant may wish to bring pursuant to section 289A(4) of the 1998 Act. That direction enabled the appellant to seek leave of the Commission to rely upon any previously unnotified matter or matters in its defence of the worker’s claim. The relevant facts and circumstances that gave rise to those orders are to be found in the Reasons which were published with the orders made on appeal in matter A1-7914/08. The order of remitter then made included a direction that the Arbitrator, to whom the matter was assigned, was to make directions as to the further conduct of the proceedings.
The worker’s Application came before Arbitrator Duncombe and a teleconference was conducted by her on 29 September 2009. The Commission’s record reveals that Mr Macken, the appellant’s solicitor, advised the Arbitrator that “the Respondent was not the correct legal entity and therefore both worker and insurer were in issue.” Mr Macken was not able to confirm the correct identity of the worker’s employer at that time. The Arbitrator made a number of directions for production as sought on behalf of the appellant and the matter was set down for a further teleconference to be held on 11 November 2009. It was intended to address all outstanding matters on that date.
During the course of the teleconference conducted on 11 November 2009 a number of directions were made by the Arbitrator however the question as to the correct description of the worker’s employer was not resolved nor was any order made with respect to the respondent’s entitlement or otherwise to rely upon matters not previously notified.
The confusion concerning the correct description of the worker’s employer was compounded when, on 14 December 2009, a direction was made that the Application was to be amended to delete the name of the respondent as it appeared on the Commission’s record, and that two respondents be named being the present appellant as well as an entity described as “The Taing Family Trust”. The matter had been fixed for conciliation/arbitration before the Arbitrator on 5 February 2010. On that date the matter was listed before Mr Craig Tanner, Arbitrator. On that occasion efforts were made to resolve the preliminary question which remained outstanding concerning the appellant’s entitlement to rely upon matters not previously notified. Those efforts continued without there being a resolution of the dispute nor of the procedural matters which had impeded progress of the hearing up to that time. Arbitrator Tanner made detailed directions concerning the further conduct of proceedings. The matter was set down for further hearing on 19 February 2010.
The matter was again listed before Arbitrator Tanner on 19 February 2010 on which occasion the Commission was informed that the worker’s employer at the relevant time was Mr Chhong Heng Taing who was then trading as The Arcade Pharmacy. In the circumstances the worker elected to proceed against Mr Taing alone. Agreement was reached between the parties as to the issues in dispute. Those issues were identified by the Arbitrator and are discussed more fully below. The arbitration hearing concluded on that day and a Certificate of Determination issued on 9 April 2010.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 9 April 2010 records the Arbitrator’s orders as follows:
“1. The Respondent is ordered, pursuant to s.66 of the Workers Compensation Act
1987, to pay $11,250.00 to the Applicant in respect of 9 % whole person impairment that results from injury to the Applicant’s right shoulder on 4 November 2004, including causally-related pathology in her left shoulder, as assessed by Dr Philippa Harvey-Sutton AMS.
2. The Respondent is ordered to pay the Applicant’s costs as agreed or assessed.
Certification as to Costs:
I certify that the matter is complex and that the fees of the Applicant’s legal representatives shall be subject to an increase of 30 %.”
The Certificate of Determination was accompanied by a Statement of Reasons for Decision (‘Reasons’).
ISSUES IN DISPUTE
The appellant asserts that there is no requirement that specific grounds of appeal be raised given that the Commission’s task on appeal is to “decide the true and correct view [of the evidence]”. That assertion is made in complete disregard of practice and procedural requirements as found in the Commission’s Practice Direction No 6 dated 15 November 2007. The submissions provided in support of this appeal do not identify with any precision those errors of law or of fact which may require review. The narrative of complaint which appears at [8] of those submissions is unhelpful.
The appellant, following receipt of a copy of the transcript, has filed supplementary submissions under cover of correspondence dated 16 June 2010. Those submissions again fail to identify with any precision the suggested error or errors to be found in the Arbitrator’s decision. It is to be noted that the appellant states in that document that reliance is placed upon those submissions made on its behalf before the Arbitrator. Following a consideration of those matters put at the hearing and the content of submissions, it appears that the issues in dispute in the appeal are whether the Arbitrator erred:
(1) in “reversing the onus of proof” concerning facts in dispute including the occurrence of injury; causation and factual matters relevant to consideration of the application of the provisions of section 9A of the 1987 Act;
(2) in drawing inferences adverse to the appellant founded upon its failure to adduce certain evidence and upon the appellant’s failure to cross-examine the worker concerning matters in dispute;
(3) in finding that the worker had received an “injury simpliciter” and in the manner of application of the “disease provisions” to the facts;
(4) in finding that the evidence did not support the conclusion that the worker had present in her shoulder an “underlying degenerative disease” before 20 January 2005;
(5) in finding that the worker’s employment after 20 January 2005 had not aggravated a disease process;
(6) in the manner of reasoning concerning the state of the evidence of Dr Faithfull, and
(7) in determining the worker’s entitlement by reference to a medical Assessment Certificate made “in respect of different parties and different evidence”.
ON THE PAPERS REVIEW
Section 354(6) of the 1998 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”.
The worker has submitted that this appeal can proceed to be determined on the basis of the documents presently before the Commission. The appellant has submitted that “this matter should be given an oral hearing.” The appellant’s submission is not in any way elaborated.
The Commission has a discretion to proceed, in an appropriate case, without conducting a hearing. That discretion is enlivened in circumstances where the Commission “is satisfied that sufficient information has been supplied” (See Fletcher International Exports Pty Limited v Barrow and anor (2007) 5 DDCR 247; [2007] NSWCA 244 (at [94])).
The Commission has before it all that evidence which was presented before the Arbitrator, a transcript of the proceedings conducted before him on 19 February 2010 in which the submissions put on behalf of the parties are recorded, detailed Reasons for Decision furnished by the Arbitrator, together with written submissions put on behalf of each of the parties to this appeal. In the circumstances, having regard to the submissions of the parties and to Practice Directions Nos 1 and 6, I am satisfied that I have sufficient information to proceed “on the papers”, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
LEAVE
The parties agree that the threshold requirements as prescribed by section 352 of the 1998 Act are met. In the circumstances, and having regard to the matters raised on this appeal, I conclude that it is appropriate that leave be granted to proceed with the appeal and I so order.
EVIDENCE
The evidence which was before the Arbitrator is summarised by him at [33] of Reasons. It is to be noted that the Application to Resolve a Dispute referred to by the Arbitrator dated 17 December 2009 is an amended Application filed on behalf of the worker pursuant to directions earlier made. That document differs to the Application originally filed in October 2008 only with respect to the description of the worker’s employer. Whilst two entities were named in that document as respondents to the Application, the worker discontinued proceedings as against the second named respondent at the hearing. That course was adopted given the apparent agreement between the parties that the worker’s employer at relevant times was Chhong Heng Taing t/as The Arcade Pharmacy. The documents attached to that amended Application are identical to those attached to the original Application. The Reply referred to by the Arbitrator in his summary of the evidence is described as a “Reply to Amended Application to Resolve a Dispute”. The appellant’s solicitors had earlier filed a Reply to the original Application on 21 October 2008. The later Reply has all those documents originally relied upon by the appellant together with additional material including correspondence from the appellant’s solicitors dated 24 December 2009 which particularises those matters in dispute. Also included in the material attached to that second Reply are the clinical notes and records of Dr Singh, Mr O’Reilly and Dr Duckworth.
The worker’s evidence
A copy of a statement made on 26 August 2007 by the worker was in evidence before the Arbitrator. It is there stated that the worker had been employed by the respondent for a period of 10 years and had been working on a full time basis for approximately two years before an injury occurred on 4 November 2004. Prior to that date the worker had no problems with her health nor had she made any compensation claims. The worker describes the circumstances of her injury which occurred as she was throwing boxes of stock, each weighing four kilograms, to a fellow worker who was standing above her on a stairway landing. As she lifted one particular box from the ground the worker felt “something go in [her] right shoulder”. She experienced immediate severe pain in her shoulder. The incident was reported by the worker to the owner of the business, Mr Taing. The worker remained at work and experienced continuing pain. The worker ceased work for holidays in January 2005, however the condition of her shoulder did not improve. She consulted Dr Singh on 20 January 2005. It is stated that following that consultation a WorkCover medical certificate was presented to her employer certifying that she was fit for suitable duties with no lifting over five kilograms and not to perform overhead work. A workers compensation claim form was completed by the worker in the month of January 2005.
The worker continued performing light duties and consulted Mr Anthony O’Reilly, chiropractor. The worker believed that all treatment expenses were paid by her employer’s insurer, Guild Insurance.
The pharmacy business was sold on 31 March 2005 and the worker’s employment was taken up by the incoming proprietor. Medical certificates were presented by the worker to the new owner. The worker continued performing her duties however she continued to experience pain in her shoulder. The worker’s status was altered by the new owner to that of a casual employee working two days per week. The worker was not required to do any lifting or carrying as was particularised in her medical certificates.
A short time after sale of the business the worker obtained concurrent employment working for a medical practitioner as a casual receptionist two days per week. The worker continued with that arrangement until January 2007 in which month she underwent surgery to her right shoulder at the hands of Dr Frederick Hoe. The worker was absent from employment between 30 January 2007 and 26 March 2007. She was paid weekly compensation by her employer’s insurer during that period. Upon her return to work her hours were altered to a three day week working three hours per day.
The worker details the pain, discomfort and restriction that she experienced in her right shoulder. It is stated that she is right handed and that following her shoulder injury she used her left arm for “virtually everything”. It is stated that the worker experienced pain and discomfort in the left shoulder.
The worker relied upon medical reports provided by Dr Richard Deveridge dated 30 August 2007 and 18 October 2007. The first of those reports contains a detailed history concerning the subject injury and the worker’s subsequent treatment. It is also recorded that since approximately the beginning of 2007 the worker had been aware of gradual onset of left shoulder pain, particularly “on reaching”. Dr Deveridge diagnosed the worker’s condition, which he attributed to the work injury that occurred on 4 November 2004, as follows:
“1. Right shoulder pain and restricted motion – due to chronic bursitis, rotator cuff tendonitis with partial thickness tears.
2. Left shoulder joint pain and restricted motion – this has not been investigated to date, but there are clinical features of bursitis and rotator cuff tendonitis.
3. Neck pain and stiffness – due to chronic musculoligamentous cervical strain injury.”
The evidence of Dr Deveridge includes an impairment assessment relating to both the left and right upper extremities. It was that assessment that formed the basis of the worker’s claim in respect of lump sum payment.
The worker relied upon a report of Dr Milton L. Cohen dated 3 June 2008. Dr Cohen was consulted by the worker following referral by her general practitioner, Dr Singh. That report records a detailed history which included the following notation:
“For the last eighteen months and especially the last six she has also had pain in the left shoulder region, radiating to the left arm associated with sensitivity to touch. This has been managed with a neck brace and pillow modification”.
It was Dr Cohen’s opinion that the worker’s “pectoral girdle pain” was a referred phenomenon from the cervicothoracic spine. Dr Cohen also expressed the view that he did not consider that the shoulder or periarticular structures were the anatomical origin of the worker’s complaints. It was Dr Cohen’s view that anxiety played a role in the worker’s presentation.
The worker relied upon a copy of her claim form with respect to permanent impairment which had been forwarded to Guild Insurance Limited in March 2008. Also attached to her Application was a copy of correspondence dated 19 September 2008 from Guild addressed to the worker’s solicitors in which reference is made to an assessment by Dr Faithfull of whole person impairment as contained in a report dated 9 September 2008, a copy of which was provided. That correspondence included an offer of settlement of the lump sum claim in the sum of $2,500 being in respect of two per cent whole person impairment.
Appellant’s evidence
The appellant relied upon the content of correspondence from its solicitors to the worker’s solicitors dated 24 December 2009 which had been forwarded in accordance with directions made by the Commission. That correspondence constituted a belated notice concerning those matters in dispute as is required by the provisions of section 74 of the 1998 Act. The reasons for denial of liability were stated to be:
“1. Your client has not sustained injury.
2. Any medical condition from which your client suffers is not causally connected to injury alleged.
3. Employment is not a substantial contributing factor to the injury.
4. In the alternative, if your client has sustained injury (which is denied) such injury is in the nature of a disease process and the employer nominated is not the last employer for whom your client has carried out work to the nature of which such disease is due.”
A report from Dr Frederick Hoe, the worker’s treating orthopaedic surgeon, dated 2 April 2008 was attached to the appellant’s Reply. That report concerned a consultation which had taken place on that day. Dr Hoe recorded that the worker had continued to experience problems of pain in the neck and right upper limb as well as associated dizziness and nausea. It was also recorded that pain radiates into “the other shoulder”. It was Dr Hoe’s opinion that the worker “continues to have what now could be called chronic pain syndrome with other associated symptoms”. Dr Hoe recorded that the worker had found her job as a receptionist in a general practice quite demanding and noted that she had to pull out heavy filing cabinets. That practitioner suggested a complete rest from work for “a couple of weeks”.
A report by Dr Don Faithfull, orthopaedic surgeon, dated 9 September 2008 was attached to the Reply. Dr Faithfull recorded a history of injury and subsequent treatment and noted that the worker had developed neck pain with bilateral shoulder pain a short time following surgery which was conducted on 30 January 2007. Dr Faithfull’s diagnosis was that the worker suffered a soft tissue injury to her right rotator cuff with bursitis which, following surgery, had become more generalised symptoms in the form of a chronic pain syndrome.
The appellant relied upon two reports from Dr Seamus Dalton dated 27 July 2007 and 27 August 2007. The worker had been referred to Dr Dalton by her general practitioner. Dr Dalton recorded relevant history and, in his first report, suggested the option of a pain management program. Dr Dalton expressed the view that there was a risk that the worker would become too protective of her arm and develop a “secondary capsulitis”. Dr Dalton recorded that the worker had denied having any prior history of shoulder problems. The view was also expressed that the worker appeared to be depressed and anxious which, in Dr Dalton’s view, was compounding her problems. In the second of those reports Dr Dalton noted that the worker was employed as a medical receptionist performing 20 to 22 hours work each week and that she was “encountering difficulties pulling the heavy file drawers although she feels that her small stature is an issue and that causes her to have to reach further forwards”.
A number of radiological studies of the worker’s neck and right shoulder were also attached to the Reply. An ultrasound of her right shoulder conducted by Dr David Ho dated 2 February 2005 included the following conclusion:
“There is thickening of the subacromial bursa. Mild focal tendinosis is present in the middle third of the distal supraspinatus tendon, extending from its deep surface”.
The clinical records of Dr Singh, Dr O’Reilly and Dr Duckworth, which had been produced in response to a notice requiring production, were attached to the appellant’s Reply. Those records are voluminous and have been the subject of submissions made before the Arbitrator at the hearing and in the course of written submissions in support of this appeal. The contents of those records, where relevant, are addressed below.
THE ARBITRAL PROCEEDINGS
The worker’s submissions before the Arbitrator
The following matters were put on behalf of the worker at the hearing:
(a) The Commission would be satisfied as to the fact of injury and its circumstances. The occurrence of injury was reported to the employer at the time of its occurrence. No evidence had been called on behalf of the appellant to “rebut that assertion”. The reports of Dr Singh contain a record of injury to the shoulder during consultation on 20 January 2005. Such injury was noted to be work related during a second consultation with Dr Singh. The delay in seeking treatment and failure to identify the injury as being work related on the first occasion the worker attended Dr Singh would not give rise to any doubt as to the truth of the matters reported by the worker and recorded by her general practitioner.
(b) The only evidence before the Commission concerning causation of injury to the left shoulder is to be found in the evidence of Dr Deveridge. The appellant’s assertion is that the left shoulder condition is related to “a degenerative or disease-type condition”. There is no evidence to support such an assertion.
(c) There is no evidence before the Commission to support the appellant’s suggestion that the worker’s subsequent employment aggravated a disease process. Nothing to be found in Dr Singh’s clinical notes suggests any antecedent symptoms in either shoulder.
(d) The finding by the AMS is binding upon the parties.
The appellant’s submissions before the Arbitrator
The following matters were raised on behalf of the appellant at the hearing:
(a) The MAC did not name the employer. In those circumstances no order can be made against the appellant founded upon the MAC.
(b) The appellant was not bound to adduce evidence in denial of the worker’s allegation of injury. Payment of compensation is not an admission of liability. The worker’s credit is “very much in issue”. The records of Dr Singh concerning consultation on 20 January 2005 records pain in right shoulder for a period of two months. It was not until the following consultation that the worker advised Dr Singh of the alleged relationship between injury and work.
(c) The worker suffers from a condition being bursitis and has rotator cuff tendonitis. Anything that may have occurred, which is in dispute, on 4 November 2004 was not a substantial contributing factor “to whatever this condition is”. Tendonitis is a “recognisable disease”. The worker’s evidence is that her condition has worsened. The worsening of the worker’s condition is evidenced by notations in Dr Singh’s clinical notes where it is recorded on 2 April 2007 that the worker was unable to cope with four hours a day five days a week. An entry in Dr Singh’s notes dated 9 June 2007 records duties involving filing cabinets and binders and right shoulder pain. Those duties “are aggravating her right shoulder”.
(d) Reference is made to the report of Dr Hoe dated 24 November 2006. It is there recorded that the worker’s pain “at rest is worse”. Counsel stated that such notation is “classic of a disease process”. Reference is made to the notes of Mr O’Reilly where it was recorded on 9 June 2007 that the worker had a fall onto her right shoulder. It was put that the worker is experiencing “progression of simply a disease process or an ongoing underlying problem”. Reference was made to the report of Dr Dalton dated 29 August 2007 where it is noted that the worker was encountering difficulties pulling the heavy file drawers.
(e) The opinion of Dr Faithfull would not be accepted as he “didn’t have the clinical records of Dr Singh”. Dr Faithfull did not have “the correct history”.
(f) The only claim before the Commission is one for a lump sum. Having regard to the decision in Stone v Stannard Brothers Launch Services Pty Ltd [2004] NSWCA 277; (2004) 1 DDCR 701 (‘Stone’), the date of “injury is the date of the section 66 Claim, which is 2008, and, at that time, the worker has been employed by two subsequent employers”. There is no onus upon the employer. Reliance was placed upon the decision of Fletcher International Exports Pty Ltd v Barrow and anor [2007] NSWCA 244; (2007) 5 DDCR 247 (‘Barrow’).
Following the appellant’s submissions, counsel appearing on behalf of the worker put a number of matters in reply. Included amongst the matters raised was a suggestion that the appellant had had an opportunity to raise the question of “disease” with its medical expert Dr Faithfull. It was also stated that such may have in fact occurred. That suggestion in the course of submissions prompted counsel appearing on behalf of the appellant to seek to re-open his case and to seek an adjournment for the purpose of calling Dr Faithfull to rebut the suggestion made by the worker’s counsel. Following an exchange between the Arbitrator and counsel it was common ground that Dr Faithfull had not been requested to provide any supplementary report on the issue raised by counsel, being the relevance of disease. The appellant persisted with its application for an adjournment with a view to calling Dr Faithfull in evidence. That application was refused by the Arbitrator.
The Arbitrator’s Reasons
The Arbitrator’s Reasons which accompanied his Certificate of Determination are both careful and comprehensive. Given the protracted history of the claim the Arbitrator (between [1] and [30]) summarised the background to the claim and the course of the litigation up until the date of hearing. Particular attention was given by the Arbitrator in that summary to the various amendments of the Application concerning the description of the worker’s employer. Attention is also given to the manner in which the nominated insurer, Guild Insurance Limited (‘Guild’), managed the claim brought by the worker and the subsequent actions taken on behalf of Guild by its solicitors. I note in passing that it is incorrectly stated at [6] that Guild did not provide a report of Dr Faithfull to the worker and that no offer was made. As noted above at [30] the worker had received both a copy of that report and an offer of settlement under cover of letter from that insurer dated 19 September 2008.
At [31] the Arbitrator enumerated the issues which required determination being a dispute concerning the occurrence of injury; an issue as to whether employment was a substantial contributing factor to injury within the meaning of section 9A of the 1987 Act; whether the pathology affecting the worker’s left shoulder was causally related to the injury to her right shoulder, and the questions as to whether the condition of the applicant’s shoulders was a disease and as to the liability of a subsequent employer to compensate the worker given the operation of section 15 and section 16 of the 1987 Act. The Arbitrator also noted the submission raised on behalf of the appellant that the MAC of Dr Harvey-Sutton was made in respect of a party other than the appellant and could not constitute a basis upon which a determination of entitlement could be made. It was the appellant’s argument that the worker should be referred for assessment by an AMS other than Dr Harvey-Sutton.
Following a summary of relevant evidence including that of the worker, Dr Faithfull, the records of Dr Singh, and noting the absence of any evidence called to rebut the worker’s evidence concerning the occurrence of injury on 4 November 2004, the Arbitrator concluded (at [64]) that the worker “sustained a personal injury, within the meaning of section 4(a) of the 1987 Act to her right shoulder, during the course of her employment with the respondent on 4 November 2004”. The Arbitrator further found that the worker had experienced a “sudden or identifiable pathological change… consistent with an injury simpliciter”.
Reference was made by the Arbitrator to the worker’s evidence concerning injury and the relevant medical evidence and concluded that the injury to the worker’s right shoulder had occurred in circumstances where employment was a substantial contributing factor to its occurrence. The Arbitrator accepted the evidence of Dr Deveridge as to the causal nexus between the frank injury on 4 November 2004 and the subsequent symptoms experienced by the worker in her left shoulder.
The Arbitrator proceeded to address the appellant’s argument concerning the presence of a disease process which it alleged had been experienced by the worker and which had been aggravated by employment other than that performed with the appellant. The appellant’s arguments were summarised and the evidence relied upon was noted. The Arbitrator proceeded to address relevant authority including the decision of the high court in Zickar v MGH Plastic Industries Pty Ltd [1996] HCA 31; (1996) 187 CLR 310. The Arbitrator proceeded to note (at [84]) his earlier finding that the worker suffered an injury simpliciter on 4 November 2004 and that, accordingly, the appellant was liable to compensate the worker in respect of incapacity and impairment that results from such injury. The Arbitrator observed that the question of whether the worker suffered a subsequent aggravation of her shoulder condition after leaving the employ of the appellant was academic “given that the [appellant] has sought neither to assert a separate personal injury in subsequent employment, nor to join any subsequent employer in order to seek apportionment pursuant to section 22 of the 1987 Act”. The Arbitrator proceeded to address the question of aggravation “in contemplation of the possibility” that his earlier conclusions were incorrect. Reference was again made to relevant authority, the arguments raised on behalf of the appellant were addressed and the conclusion was reached (at [99]) that the worker had not suffered a “further injury” nor the aggravation of a disease.
The Arbitrator’s reasons for refusing the appellant’s application for an adjournment are expressed between [100] and [104]. The history of the proceedings was again briefly summarised and the nature of proceedings before the Commission as regulated by the legislation and the rules was discussed. The observation was made that the respondent had elected to proceed without expert evidence which might relate to issues raised in argument and in those circumstances the appellant was not entitled to an adjournment to secure further evidence following closure of its case and conclusion of submissions.
The Arbitrator proceeded to deal with the argument raised by counsel at the hearing concerning the status of the MAC issued by Dr Harvey-Sutton. The history of the claim as managed by the insurer was again summarised briefly and the conclusion was reached that the fact that the appellant’s description was incorrectly recorded earlier did not in any way affect the “reliability of Dr Harvey-Sutton’s assessment”. The Arbitrator concluded that the issue of the MAC disposed of the question referred for assessment and thus there is no “current dispute as to the extent of whole person impairment that has resulted from the injury sustained by the [worker] on 4 November 2004”. The Arbitrator found no basis for a further referral for assessment and proceeded to enter an award in favour of the worker in respect of the impairment as assessed by Dr Harvey-Sutton.
SUBMISSIONS, DISCUSSION AND FINDINGS
As earlier noted the appellant has placed reliance upon those submissions put before the Arbitrator at the hearing. I have attempted to summarise those arguments at [38] above. In addition to those arguments the appellant in submissions on this appeal has made broad complaints concerning the Arbitrator’s factual findings and his application of relevant principle. It is intended to address those issues in dispute as enumerated by the Arbitrator at [31] of Reasons, and an attempt is to be made to address argument as advanced on behalf of the appellant both at the hearing and in submissions on this Appeal. As I have earlier observed this task has not been assisted given the very broad and non-specific form of submissions which have been advanced on behalf of the Appellant.
Injury
The Appellant disputes the worker’s allegation concerning the occurrence of injury. It is suggested in argument that the worker’s credit is in issue. The appellant, by inference, asserts that the worker is not to be believed concerning her allegation of injury. It is the appellant’s complaint that the Arbitrator has erred in reversing the onus of proof concerning the occurrence of such injury. That submission must be rejected. It is clear from the Arbitrator’s reasons that he accepted the worker as a witness of truth. The challenge, such as it was, to the worker’s credit was founded upon suggested inferences given her delay in seeking treatment and the contents of Dr Singh’s notes. The Arbitrator rejected those arguments. His conclusions were open to him on the evidence. It is also clear that the Arbitrator, when evaluating the evidence as a whole, has taken into account the worker’s statement that she had reported the incident to Mr Taing on the day of its occurrence. The Arbitrator (at [55]) observed that it would be “inconceivable that, if Mr Taing did dispute the [worker’s] account of her injury and her report thereof, Mr Macken would fail to tender evidence that would have such a material bearing on Mr Taing’s interests”. The Arbitrator proceeded to note that no explanation had been provided for the absence of evidence from Mr Taing. Reference was made by the Arbitrator to the decision of the High Court of Australia in Jones v Dunkell [1959] 101 CLR 298 (‘Jones’) before drawing an inference from Mr Taing’s failure to give evidence in response to the worker’s allegation of injury that he had “no evidence to tender to the contrary”. Having regard to the decision in Jones there is no doubt that the failure to call Mr Taing may have led the Arbitrator to draw an inference that his evidence would not have assisted the appellant’s case. There is no specific argument raised by the Appellant concerning the manner in which the Arbitrator expressed the inference which he drew as appears at [55] of Reasons. Having reviewed the state of the evidence I am of the opinion that the Arbitrator’s finding in the course of Reasons that he was comfortably satisfied as to the reliability of the [worker’s] evidence was open to him. I reach that conclusion bearing in mind the failure to call Mr Taing in evidence and the available inference that such evidence would not have assisted his case.
During the course of submissions before the Arbitrator, fleeting reference was made to the decision of Department of Education v Sinclair [2005] 4 DDCR 206; [2005] NSWCA 465 (‘Sinclair’) and it was put that the fact that compensation had been paid to the worker was “irrelevant”. Upon the assumption that this submission was intended to convey that payment of compensation should not be taken as an admission of liability, the Appellant appears to place reliance upon that which was stated by Spigelman CJ in Sinclair at [88]-[93]. Whilst there has been no specific challenge to the Arbitrator’s reasoning concerning this matter, the Arbitrator did make reference to payment of weekly compensation as being “further evidence which indicates that the [appellant] accepted [the occurrence of injury]” (at [58]). The observations made by the Arbitrator concerning payment of compensation were made after stating his conclusion that the applicant’s evidence concerning injury should be accepted. The Arbitrator’s observation concerning payment of compensation benefits, in the circumstances of this matter, do not, in my view, conflict with the views as expressed by the Chief Justice in Sinclair.
The Application of Section 9A
The Arbitrator addressed the question of the relevance of section 9A of the 1987 Act to the facts at [65] and [66] of Reasons. The Arbitrator made reference to the expert medical evidence. The Arbitrator reached the conclusion that “the evidence does not support a finding other than that the [worker’s] employment with the [appellant] was a substantial contributing factor to the injury which she sustained to her right shoulder on 4 November 2004”. It is reasonable, in my view, to infer that the Arbitrator has concluded that the only evidence as to causation of injury is that to be found in the expert medical evidence. That evidence established that the injuries to both arms, and the resultant disability, was received in the course of, and was causally related to, the worker’s employment. There being no other causal factor the inevitable conclusion was that the employment was a substantial contributing factor to injury. I reject the appellant’s argument that, in some way, the Arbitrator has “reversed the onus of proof”. The Arbitrator had addressed the only evidence relevant to the issue which was before the Commission and his conclusion with respect to the question of ‘substantial contributing factor’ was open to him and it is one with which I agree.
The relevance of the “disease provisions”
The appellant, both before the Arbitrator and on this Appeal, has attempted to persuade the Commission that the facts of this matter are such that, notwithstanding a finding of injury whilst employed by the appellant, liability to pay compensation is avoided by reason of the application of the “disease provisions” of the legislation. Nowhere in its submissions has the appellant explicitly stated which section or sections of the legislation were relied upon, however it is reasonably clear that the appellant has intended that the provisions of section 15 and/or section 16 of the 1987 Act should be taken as being relevant to determination of the question of liability. Those sections are each distinct in their wordage and have application in circumstances where relevant matters of fact are established. No lucid argument has been advanced concerning the relevance of either section. Whilst a general, and glib, suggestion is made that a relevant disease is evidenced by the suffix ‘itis’, with reference to tendonitis, no argument has been advanced concerning the operation of either section having regard to the state of the evidence.
It is faintly suggested in submissions that the worker, as at November 2004, had an underlying degenerative process present in her right shoulder. I note immediately that there is no evidence to support such an assertion. The state of the evidence and the general thrust of the submissions raised concerning this subject leads to the inevitable conclusion that section 15 of the 1987 Act can have no application in this matter. It seems that the appellant’s argument founded upon section 16 suggests that a disease process suffered by the worker had been aggravated by reason of the injury in November 2004 and that subsequent aggravations of that disease process had occurred. The Arbitrator has rejected that argument. The Arbitrator at [73] of Reasons observed that there was no evidence to establish the existence of “an underlying degenerative disease” and had earlier found that the worker had experienced a “sudden or identifiable pathological change” in the shoulder when injured on 4 November 2004. That event was characterised as “injury simpliciter”.
The Arbitrator stated (at [86] of Reasons) that “the [appellant’s] case that the [worker] suffered aggravation of her condition by reason of her employment with subsequent employers has been crafted from an analysis of the clinical notes and reports of those who treated the [worker]”. The Arbitrator proceeded to make reference to the appellant’s arguments based upon the evidence of Dr Hoe and Dr Singh concerning the suggested “aggravation” and observed (at [91] of Reasons) “the mere fact that the clinical notes record complaints of shoulder symptoms in 2007, does not establish that the symptoms in question were caused by the applicant’s work (for a different employer) at that time, as distinct from reflecting the ‘inevitable progression’ of the applicant’s bursitis and tendonitis which resulted from her injury of 4 November 2004”. The Arbitrator’s rejection of the appellant’s argument concerning the suggested aggravation of an underlying degenerative process was plainly open to him and is a conclusion with which I agree. The facts with which the Commission is here dealing concern a worker who was asymptomatic until the occurrence of the injury in November 2004. The worker has experienced symptoms since the occurrence of that injury and has favoured her injured right shoulder. A consequence of favouring that limb has, in the opinion of Dr Deveridge, caused disability in the left shoulder by reason of overuse. Whilst the worker has, from time to time, complained of difficulty and experience of pain in certain circumstances, including activities undertaken in employment subsequent to her employment with the appellant, there is no evidence before the Commission that such activity has caused aggravation of the pathology which had arisen by reason of the subject injury. The Arbitrator has found that the worker’s injury had “not been made worse by work for any subsequent employer” (at Reasons [90]) and, again, that is a conclusion with which I agree. The Arbitrator has made appropriate reference to authority when he observed (at [93] of Reasons):
“Relevant in this regard is Windeyer J’s differentiation (in Darling Islands Stevedoring and Lighterage Co Ltd v Hussey (1959) 102 CLR 482) between manifestation and causation: between revelation and genesis.”
The Arbitrator’s reasons concerning the evidence of Dr Faithfull
The appellant has made a generalised complaint alleging error on the part of the Arbitrator in his assessment of the evidence of Dr Faithful. The terms of that submission are such that it is difficult to isolate the error or errors alleged. The argument as stated on behalf of the appellant is as follows (at [8f] of submissions):
“The Arbitrator has erred in making findings and determinations adverse to the Appellant by reference to the medical evidence of Dr Faithfull (including by reference to the absence of a further report from Dr Faithfull) particularly in circumstances where the Arbitrator has refused the Appellant the opportunity of calling Dr Faithfull to give evidence and the opportunity of adjourning the proceedings to obtain a further report from Dr Faithful.”
It appears that the appellant’s complaint, in part, concerns the Arbitrator’s reasoning concerning the worker’s suggestion that a report of Dr Faithfull may not have been tendered by the appellant. That matter, and the appellant’s adjournment application, is dealt with at [103] and [104] of Reasons. At [103] the Arbitrator recorded that the appellant’s solicitor had advised the Commission that no “further report” had been obtained by Dr Faithful. That notation makes clear, in my view, that the Arbitrator has accepted the assurance given by the appellant’s solicitor and it cannot be suggested that the Arbitrator had accepted the earlier argument raised on behalf of the worker that such a supplementary report might have been obtained. It appears that the worker at the hearing accepted that assurance (transcript 24-25), and Counsel appearing for the worker did not pursue the matter in his submissions in reply. I reject the appellant’s argument which suggests error on the part of the Arbitrator in the manner of his evaluation of the evidence of Dr Faithfull and, more particularly, I reject any suggestion in the appellant’s submission that the Arbitrator has drawn an adverse inference against the appellant as was initially suggested on behalf of the worker in the course of submissions.
It is correct that the Arbitrator was critical of the manner in which the appellant presented it’s case having regard to the attempt made on it’s behalf to raise an argument concerning aggravation of an underlying degenerative process. That criticism, which is to be found at [104] of Reasons, is relevant to the adjudication by the Arbitrator of the appellant’s adjournment application. The “finding” made by the Arbitrator founded upon that criticism related not to the question of the appellant’s liability but to the discrete question as to whether the adjournment application had any merit. The application to adjourn was refused for those reasons which appear at [104], where reference is made to the nature of proceedings before the Commission and the history of the litigation during which no effort had been made by the appellant to supplement it’s expert evidence concerning the suggested “aggravated” degenerative process. I agree with the Arbitrator’s reasons and his conclusion that the appellant’s adjournment application was without merit and should be refused.
The status of the Medical Assessment Certificate of Dr Harvey-Sutton
The MAC issued by Dr Harvey-Sutton on 10 December 2008 came into being at a time when the worker’s employer was described in the proceedings as “Arcade Pharmacy Pty Limited”. As earlier noted, the correct description of the worker’s employer at all relevant times was ascertained and agreed to between the parties many months after the conduct of Dr Harvey-Sutton’s medical assessment. It was the appellant who brought to the notice of the Commission that there had been a mis-description and it was upon the basis of that information that the record was corrected by consent before the Arbitrator at the hearing on 19 February 2010.
It is the appellant’s submission that, in the event that injury is proven, there should be a further medical assessment conducted by an AMS other than Dr Harvey-Sutton. The appellant’s argument concerning the force and effect of Dr Harvey-Sutton’s MAC is to be found at Transcript page 7. It was asserted that “the [worker] had sued the wrong entity completely”. It was put that the Commission “can’t make orders in respect of [the appellant], when my client didn’t form part (sic) of the MAC”. The question which arises from such a submission is whether, by reason of the amendment made by consent concerning the description of the employer, the MAC of Dr Harvey-Sutton binds the parties to these proceedings, including Mr Taing whose identity took the place of Arcade Pharmacy Pty Limited as the respondent to the worker’s application seeking compensation.
The Arbitrator dealt with the question raised between [105] and [111] of Reasons. No attempt has been made on this Appeal to address those reasons expressed by the Arbitrator for his ultimate conclusion as (found at [111]) that Dr Harvey-Sutton’s assessment is “conclusively presumed to be correct” and “has disposed of the question referred to her for assessment. There is therefore no current dispute as to the extent of whole person impairment that has resulted from the injury [as alleged].” That conclusion was reached following consideration by the Arbitrator of the erroneous description of the employer and its correction by amendment. The appellant, in supplementary submissions placed reliance upon the decision of the Commission in Superior Formwork Pty Limited v Livaja [2009] NSWWCCPD 158 (‘Livaja’). It is argued, adopting what was said in Livaja, that an MAC “is only conclusively presumed to be correct with respect to the proceedings for the purpose of which the certificate has been obtained”. It is further argued that the MAC “was issued when the current appellant was not even a party to the proceedings and when issues which are a necessary pre-condition to the referral to an AMS had not yet been determined by the Commission”. It was further asserted that the “current proceedings” had not “commenced until the appellant was named as a party”. In conclusion it is put that “anything occurring before [joinder of Mr Taing] (including the issuing of the certificate) cannot be binding on a party added to the proceedings at a later date”.
The appellant’s argument concerning the status of Dr Harvey-Suttons MAC must be rejected. The employer, however described from time to time, has at all times been represented by Mr Macken. The Reply included a notation that it had been filed by Mr Macken’s firm on behalf of the employer, the employer’s representative and the specialised insurer. Whilst that endorsement in the Reply is, to an extent, confusing, it is clear that Mr Macken’s instructions had emanated from both the employer of the worker and the specialised insurer (section 177A of the 1987 Act). There has never been any doubt during the conduct of these proceedings that Mr Macken’s appearance before the Commission had been made, in part, with a view to protecting the interests of the specialised insurer, Guild.
It is surprising that there was a delay of many months before those represented by Mr Macken were in a position to advise the Commission of the correct description of the worker’s employer. Once the relevant description was ascertained, an appropriate amendment was made by consent. What occurred at that time was not, in my opinion, the addition of a new party to the proceedings but rather the substitution, by amendment, of the correct description of the employer for an erroneous description. The present circumstances raise issues similar to those which were addressed by the High Court in Bridge Shipping Pty Limited v Grand Shipping SA (1991) 173 CLR 231 (‘Bridge Shipping’). The Court in Bridge Shipping, when addressing the question as to whether particular rules of Court applied to the factual circumstances of that matter, drew a distinction between the joinder of an additional party to the proceedings and the substitution of a party where a mistake had been made as to the name of that party (see discussion per McHugh J at p 259-261). I consider that the Arbitrator was correct when he observed (at [106] of Reasons) that the argument advanced on behalf of the appellant “seeks to elevate form over substance”.
I conclude that the effect of the amendment of the description of the worker’s employer constitutes the substitution of a party for another party rather than the addition of a party to the proceedings as is discussed in Bridge Shipping . Attention must be given to Part 18, Rule 4(4) of the Workers Compensation Commission Rules 2006 (‘the Rules’) which provides:
“(4)If the Commission orders that a party be substituted for another party or a former party, all things done in the proceedings before the making of the order have effect in relation to the new party as if that party were the old party, unless the Commission otherwise orders.”
The incorrect identification of the employer in these proceedings and the subsequent substitution of Mr Taing has the consequence, having regard to both general principle concerning consequences of mistaken identity in the naming of a party and the operation of Part 18, Rule 4(4) of the Rules, that Mr Taing is, unless an order is otherwise made, bound by any order earlier made in the proceedings. The dispute concerning alleged whole person impairment has been referred by order of the Commission to an AMS and a MAC has been issued. The 1998 Act provides that the assessment certified by Dr Harvey-Sutton concerning the degree of permanent impairment of the worker as a result of the subject injury is conclusively presumed to be correct (section 326(1)). Mr Taing is bound by the presumption as prescribed in that sub-section. I agree with the Arbitrator’s conclusion that the appellant’s argument that a further MAC should be conducted has no basis. The entry of an award in favour of the worker in accordance with that MAC was correct.
It may be seen that, having conducted a review on the merits, I have concluded that the determination made by the Arbitrator was true and correct. The Appeal is unsuccessful and the Arbitrator’s determination and orders are to be confirmed.
DECISION
The decision of the Arbitrator dated 9 April 2010 is confirmed.
COSTS
The appellant is to pay the worker’s costs of the Appeal.
Kevin O’Grady
Deputy President
24 August 2010
I, MARGOT UNDERCLIFFE CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O’GRADY, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
2
8
0