Damalas v Skiadopoulos
[2005] NSWWCCPD 106
•8 September 2005
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Damalas v Skiadopoulos [2005] NSW WCC PD 106
APPELLANT: George Damalas
RESPONDENT: Dennis Skiadopoulos
INSURER:GIO Workers Compensation (NSW) Ltd
FILE NUMBER: WCC4826-04
DATE OF ARBITRATOR’S DECISION: 9 September 2004
DATE OF APPEAL DECISION: 8 September 2005
SUBJECT MATTER OF DECISION: Reliance by arbitrator on “specialised knowledge”; no evidence for arbitrator’s decision.
PRESIDENTIAL MEMBER: Acting Deputy President Lansdowne
HEARING:On the papers
REPRESENTATION: Appellant: Slattery Thompson
Respondent: Sparke Helmore
ORDERS MADE ON APPEAL: (1) The decision of the Arbitrator is confirmed.
(2) No order as to the costs of the appeal.
BACKGROUND TO THE APPEAL
The appellant is Mr George Damalas (‘the Appellant’). He seeks leave to appeal the decision of an arbitrator (‘the Arbitrator’) given orally on 2 September 2004 and confirmed by Certificate of Determination dated 9 September 2004. The Arbitrator dismissed Mr Damalas’ application for compensation for permanent impairment of his right wrist due to a carpal tunnel condition and medical expenses. The respondent to the appeal is Mr Dennis Skiadopoulos (‘the Respondent’). The insurer is GIO Workers Compensation (NSW) Ltd (‘the Insurer’).
Mr Damalas alleges that he suffered an injury to his right wrist on 15 October 2000 at a time when he was employed by the Respondent as a taxi driver. Mr Damalas said in his oral evidence at the arbitration that he injured his right wrist and his back while extricating a heavy suitcase from the trunk of the cab, the suitcase having become stuck. He said he gave written notice to the Respondent of the incident by leaving a note in the taxi. Some of this account is inconsistent with Mr Damalas’ application, filed in March 2004. In the application the date of injury is given as 19 October 2001 and the date of notice of the injury as 19 October 2003. The application as filed claims an injury to the back, although the monetary claim (in the application 3% whole person impairment or $3750) appears to only relate to the wrist injury, supported by a medical report from Dr Bentivoglio dated 11 November 2003. The Appellant’s representative confirmed at the arbitration that the only claim related to the injury to the right wrist (transcript page 10 line 55) and medical expenses related to that condition (transcript page 34 line 46). The application was amended to add a claimed injury to the right wrist and to claim $7500 for 10% permanent loss of efficient use of the right arm below the elbow (transcript page 35).
The reply filed by the Insurer on behalf of the Respondent opposed the claim on a number of grounds. In addition, at the teleconference on 29 June 2004 the Insurer flagged that the Respondent also denied that the Appellant was a ‘worker’ within the meaning of the Workers Compensation Act 1987 (‘the 1987 Act’) and the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’). This issue was set down for initial determination on 6 August 2004. On the preceding day the Insurer for the Respondent conceded this issue, and by consent the Arbitrator held on 6 August 2004 that the Appellant was a worker within the meaning of both Acts. The Arbitrator listed the matter for further arbitration on 2 September 2004 in relation to causation, and other contested issues of liability, rather than acceding to the parties’ suggestion that the claim be sent to an Approved Medical Specialist for assessment. The Arbitrator also ordered the Respondent to pay the Appellant’s costs of the conciliation/arbitration of 6 August 2004.
As indicated, Mr Damalas gave evidence at the arbitration on 2 September 2004 and the parties made submissions. The evidence of the Respondent was contained in a written statement in which, amongst other matters, he disputed receiving notice of the alleged injury at the time. Counsel for the Insurer, representing the Respondent, submitted that the Appellant had not established that an injury occurred on 15 October 2000. He pointed to the discrepancies in accounts given by Mr Damalas at different times as to the date of the alleged injury, the absence of any record of contemporaneous complaint by Mr Damalas to his doctors, and the fact that Mr Damalas continued working. In the alternative, if the injury was found proved, the Respondent submitted that the Appellant had failed to give notice of the injury within time to the Respondent and, further, had failed to establish that the incident was causally related to the carpal tunnel syndrome reported three years later. The Arbitrator made an award for the Respondent, giving oral reasons, subsequently transcribed.
THE DECISION UNDER REVIEW
The Certificate of Determination, dated 9 September 2004 records the Arbitrator’s orders as follows:
“1. Award for the Respondent.
2. No order for costs save that order made in favour of the Applicant on 6 August 2004.”
In his reasons the Arbitrator accepted the Appellant’s evidence that he suffered an injury to his right wrist in the way he described. The Arbitrator’s finding stated the injury occurred on 19 October 2000, although in fact in the last of his several statements and at his evidence at the hearing the Appellant alleged the incident occurred on 15 October 2000. He also accepted the Appellant’s evidence that he gave notice of the injury to the Respondent by leaving a note in the glove box of the taxi shortly after it occurred (which was denied by the Respondent), and that he told his general practitioner, Dr Hoar, about the incident when he saw him a few days later, although there is no record of the injury in Dr Hoar’s notes of that consultation (transcript pages 45 and 46). The Arbitrator continued: “I accept that Mr Damalas suffered an injury and I accept that he was an honest man. However, a difficulty arises when trying to establish or trying to link up, I should say, the condition from which he says he complained in 2000 to the condition that was eventually diagnosed by Dr Bentivoglio” (transcript page 47 lines 6-12). The Arbitrator recited the Appellant’s evidence that after he picked up the suitcase he noticed his third and fourth fingers (later corrected by the Arbitrator to fourth and fifth fingers) were a bit numb and two weeks later started to cramp up but did nothing about it until tests done on 5 November 2003 reported carpal tunnel syndrome. The Arbitrator then stated:
“Carpal tunnel symptomatology always connects with the thumb and the first and the second fingers. This being a specialist’s jurisdiction, I believe I’m entitled to rely on my specialised knowledge of such a condition to accept (counsel for the Insurer’s) submission as to that diagnosis. But that is not the reason for my difficulty in accepting the carpal tunnel condition from which he now suffers is not related to his injury.” (transcript page 47 lines 47-54 emphasis added)
Immediately after the passage quoted above the Arbitrator continued as follows:
“I find that the applicant’s diagnosis, if you like, that a fortnight after the accident it was something that would go away was correct. I can infer nothing more-indeed, the applicant doesn’t say anything more- than that he needed no treatment and it did not require even reporting on over the next three years. He makes no mention in his statement of it continuing to give him any problems, and, much as I’d like to assist him, I find that he has not established on the probabilities that whatever it was that happened to him when he did injure himself back in October of 2000 was not [sic] related to the condition that was diagnosed by Dr Bentivoglio in November of 2003.”
The Arbitrator then discussed the reports by Dr Bentivoglio, the orthopaedic surgeon relied on by the Appellant. The Appellant had filed three reports from Dr Bentivoglio. The first, dated 11 November 2003, was attached to the Appellant’s application but was also included in documents produced by Dr Bentivoglio under direction. The signed copy of the report of 11 November 2003 attached to the application reads as follows:
“Since my report to you dated 2 October 2003 this gentleman has had nerve conduction studies performed on his right upper limb. They show that he has borderline compression of the median nerve at the level of his wrist. He stated that he did injure his wrist in the incident when he lifted suitcases out of a taxi in October 2000. Using the American Medical Associations Guidelines for the Evaluation of Permanent Impairment (4th edition) he would have 2 or 3% whole person impairment as a result of the development of a minor carpal tunnel lesion in his right wrist secondary to this incident.”
The Appellant subsequently filed two further reports by Dr Bentivoglio, one dated 7 May 2004 and one dated 8 July 2004. The report dated 7 May 2004 assesses the Appellant’s permanent loss of efficient use of his right upper limb below the elbow as 15%. The report dated 8 July 2004 assesses this loss as to two thirds (ie. 10%) relating to “the October 2000 incident” and one third “as a result of constitutional problems with his right wrist.” The Arbitrator referred to the report dated 8 July 2004 and Dr Bentivoglio’s copy of the report dated 11 November 2003 (being the copy contained in the documents produced under direction) in this portion of his reasons.
The Arbitrator found that the report of 11 November 2003 was the first occasion that Dr Bentivoglio had mentioned the incident of October 2000, there being no reference in his notes to being told about it before. The Arbitrator then concluded as follows:
“In any event, the support that he seeks to give in (the report of 8 July 2004) that two-thirds of the current disability relates to the October 2000 incident I reject, and I reject it because there is absolutely no information given by Dr Bentivoglio as to the details or the particulars of the injury or the parts of the wrist that were injured, no examination, no referring to what the constitutional problems that he mentions in (the report) are, how the prior problems with the fusion of the wrist impinge upon this diagnosis. I find a three line, indeed three word report to be insufficient to support the applicant’s case in these circumstances. Therefore, with some regret, I find that there will be an award in favour of the respondent, and there will be no order as to costs. (The Arbitrator then confirmed his order for costs made 6 August 2004) (transcript page 49 lines 15-28).
ISSUES IN DISPUTE
The Appellant seeks leave to appeal this decision on the following basis:
“The applixcant [sic] gave evidence that he had numbness in his 4th and 5th little fingers of his right hand. The respondent counsel made a submission that this evidence displayed the classic symptoms of RSI injury and not that of a traumatic injury.
The arbitrator said that he could rely upon his own experience in this area and accepted the respondent’s counsel’s submission and he rejected Dr Bentivoglio’s report of 8 July 2004 and accepted Dr Bornstein’s report dated 10th June 2004, submitted by the respondent.
We say that the arbitrator had no evidence to accept that the applicant’s injury was more likely than not unrelated to the incident of 15th October 2000 and based his decision upon his own independent medical knowledge.
We submit that the arbitrator has no authority to rely upon his own medical experience based upon other cases he has seen or heard and must decide this case upon the medical evidence before him only.”
Thus there are two grounds to the Appellant’s appeal. The Appellant asserts that the Arbitrator had no evidence upon which to base his conclusions and, further, that he was in error in reaching his decision upon his own medical knowledge, rather than the medical evidence in the case. The Respondent opposes the appeal on the basis that the Arbitrator weighed up all the evidence including Dr Bornstein’s report dated 10 June 2004 and that the decision is consistent with the medical and oral evidence.
ON THE PAPERS REVIEW
Section 354(6) of 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 submission by the Respondent that the appeal can proceed to 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. The Appellant did not oppose this course.
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, which provides:
“352Appeal 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.
Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.
(8)In this section, decision includes an award, interim award, order, determination, ruling and direction.”
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
The amount in issue, $7500, exceeds the threshold amount set by paragraph (a) of sub-section 2. In relation to paragraph (b), no amount was awarded on the application. A number of Commission decisions by Presidential members, commencing with Mawson v Fletchers International Exports Pty Limited [2002] NSW WCC PD 5, have held that paragraph (b) is not applicable to appeals against decisions in which no award is made.
Accordingly, I grant leave to appeal.
EVIDENCE AND SUBMISSIONS
The evidence before me consists of the following:
The application, reply and other documents admitted by the Arbitrator and numbered by him
Transcript of the arbitration and the Arbitrator’s decision
Submissions in support of the appeal
Submissions in opposition to the appeal
DISCUSSION AND FINDINGS
Evidence to support the Arbitrator’s decision
As is evident from the portions of the Arbitrator’s reasons quoted earlier, the Arbitrator was not satisfied that the Appellant had established that carpal tunnel syndrome diagnosed in November 2003 was causally related to the incident involving the wrist in October 2000. The medical evidence in support of this causal connection was contained solely in the reports of Dr Bentivoglio quoted earlier. The Respondent tendered medical records produced by the Appellant’s general practitioner, Dr Hoar, and Dr Bentivoglio that showed no record by those doctors of any problem with the right wrist reported after the incident until November 2003. The Appellant in cross-examination appeared to agree with the suggestion put to him by counsel for the Insurer that he had not complained to his general practitioner of a problem with his wrist until November 2003 (there being no record of complaint until then) but in re-examination affirmed his evidence contained in his statement of 11 August 2004 that he complained to Dr Hoar two days after the incident about his wrist and back. The medical records produced by Drs Hoar and Bentivoglio contained considerable medical information about multiple other problems suffered by the Appellant, including major degenerative disc problems in his back, a previous fracture of his right wrist in 1967, knee and shoulder problems, injuries occasioned in a car accident in 1996 and surgery on his hips in 2001.
The Respondent also obtained medical evidence, in the form of a report from another orthopaedic surgeon, Dr Bornstein, dated 10 June 2004. Dr Bornstein accepted that the nerve conduction study showed carpal tunnel syndrome but was of the view that “the wrist is totally constitutional and totally unrelated to the injury incident”. He included in his report his view that:
“Carpal tunnel syndrome is a constitutional idiopathic disorder and is unrelated to employment or trauma in the vast majority of cases-greater than 99.5%....My colleagues have often expressed the contrary view and attributed at least aggravation of the condition to work. This is not supported in the literature or by the known facts when the condition occurs in non-working people.”
The Appellant submits that there was no evidence before the Arbitrator on the basis of which he could conclude that the Appellant had failed to establish a causal relationship between carpal tunnel syndrome in 2003 and injury in 2000. This is not correct. There was ample evidence, in particular the long lapse of time without significant complaint and Dr Bornstein’s report, to support the Arbitrator’s view. This ground of appeal is not made out.
Reliance on “specialised knowledge”
The Appellant also asserts that the Arbitrator erred in relying on his own specialised knowledge, rather than the evidence, in reaching his conclusions. The Arbitrator certainly expressed doubts about the diagnosis of carpal tunnel syndrome on the basis of what he described as his specialised knowledge. He immediately went on to say, however, that that was not the basis on which he dismissed the application. In my view it is clear from his reasons that he dismissed the application because he did not consider the causal connection between carpal tunnel syndrome and the injury to be established. In expressing his decision in this way he accepted the current diagnosis of carpal tunnel syndrome, which was of course agreed by both medical experts. As set out above, there was ample evidence on the basis of which he could well conclude that the evidence in support of a causal connection, being only Dr Bentivoglio’s brief report, was outweighed by other evidence in the case. I do not consider that this ground of appeal is established.
It is important to note, however, that had the Arbitrator reached his decision on the basis of his own “specialised knowledge” then that may have been an error. While there is a line of authority that members of a specialist jurisdiction, such as judges of the Compensation Court and Dust Diseases Tribunal, can, in some circumstances, rely on “specialised knowledge” there are limits on such reliance. In Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42 (‘Hevi Lift’) the Court of Appeal overturned a decision of the Compensation Court for inappropriate reliance by the trial judge on his knowledge of back complaints derived from his experience on the Court to infer how, in the absence of any identified factual basis, a doctor formed his opinion that an injury was causally related to the worker’s work. Reliance on specialised knowledge by a judge of the Dust Diseases Tribunal was also discussed, and in that case upheld, in an earlier decision of the Court of Appeal ICI Australia Operations Pty Limited & Ors v The Workcover Authority of New South Wales [2004] NSWCA 55 (‘ICI’).
ICI was applied to the Commission by Deputy President Fleming in BHP Steel (AIS) Pty Limited v Barbour [2004] NSW WCC PD 75. In that case the employer argued that the arbitrator had gone beyond the evidence and formed his opinion on the relationship between the worker’s employment and his injury on the basis of “the general knowledge and experience of the Commission” or his own opinions. DP Fleming held that this had not been the case, but stated that “the circumstances in which an Arbitrator could claim to rely upon the ‘general knowledge of the Commission’ are extremely limited” (paragraph 27). She emphasised that the expertise of the Commission through its arbitrators lies in their ability to “quickly analyse the evidence and draw the appropriate conclusions relevant to the statutory workers compensation framework” but that proof of issues such as injury and causation must be discharged on the basis of evidence that complies with Rule 70 of the Workers Commission Rules 2003.
In this case, it is difficult to see how it would have been appropriate for the Arbitrator to reach a conclusion on the basis of his own specialised knowledge as to carpal tunnel syndrome when that opinion differed from the medical evidence tendered by both parties. Both orthopaedic surgeons expressed the view that the Appellant suffered carpal tunnel syndrome, although he experienced symptoms in his fourth and fifth fingers, and only disagreed as to whether the injury was related to his work. The Arbitrator was adopting a submission put to him by counsel for the Insurer, but, nevertheless, in my view, if he was proposing to rely on his own opinion in accepting that submission it would have been appropriate to specifically identify that to the parties and give them the opportunity to rebut it by submission or further evidence (see the decision of McColl J.A. in Hevi Lift at paragraph 93).
For the reasons given earlier, however, I do not consider that the Arbitrator reached his conclusion on this basis, and so this ground of appeal is not established.
DECISION
As neither ground of appeal is established the decision of the Arbitrator is confirmed.
COSTS
In a case where the worker is unsuccessful on appeal section 345 of the 1998 Act prohibits the Commission from ordering payment of the Appellant’s costs by any other party to the appeal. I do not consider it appropriate to make any order as to the costs of the appeal.
Robyn Lansdowne
Acting Deputy President
8 September 2005
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ROBYN LANSDOWNE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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