Department of Ageing Disability & Home Care v Goldstone
[2006] NSWWCCPD 78
•9 May 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Department of Ageing Disability & Home Care v Goldstone [2006] NSWWCCPD 78
APPELLANT: Department of Ageing Disability & Home Care
RESPONDENT: Ian Goldstone
INSURER:Treasury Managed Fund
FILE NUMBER: WCC8535-05
DATE OF ARBITRATOR’S DECISION: 20 September 2005
DATE OF APPEAL DECISION: 9 May 2006
SUBJECT MATTER OF DECISION: Extension of time for making an Appeal; application of sections 4, 9, 9A, 11A, 38, 40, and 60 of the WorkersCompensation Act 1987; sufficiency of reasons for decision.
PRESIDENTIAL MEMBER: Acting Deputy President Kevin O’Grady
HEARING:On the papers.
REPRESENTATION: Appellant: Vardanega Roberts
Respondent: Jones Staff & Co
ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 20 September 2005 is confirmed.
The Appellant is to pay the Respondent’s costs of the Appeal.
BACKGROUND TO THE APPEAL
On 21 October 2005 the Department of Ageing Disability and Homecare (‘the Appellant’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’(‘the Application’) in the Workers Compensation Commission (‘the Commission’) against a decision, dated 20 September 2005.
The Respondent to the Appeal is Ian Goldstone (‘the Respondent’).
The Respondent was, at all relevant times, employed by the Appellant as an Acting Manager of a Group Home. The Respondent alleges that he suffered psychological injury in the course of that employment on 22 July 2003.
The Respondent ceased work on 22 July 2003 and remained off work until a date in late 2003 at which time he returned to employment on restricted duties with the Appellant. That work continued until April 2004 up to which date the Respondent received wages and payments under section 40 of the Workers Compensation Act 1987 (‘the 1987 Act’) from the Appellant and its Insurer.
The Respondent’s restricted duties ceased in April 2004 following which he received advice from the Appellant that his position was no longer available.
The Respondent was paid weekly benefits pursuant to the 1987 Act thereafter up until 14 January 2005. Liability for such weekly payments was from the last mentioned date, denied by the Appellant and liability for medical expenses (section 60 of the 1987 Act) was denied from 10 December 2004.
The Respondent filed an Application to Resolve a Dispute with the Commission on 3 June 2005 seeking orders with respect to his entitlement to weekly benefits and medical expenses. The date of injury specified in the Application was 22 July 2003, the “injury description” was “psychological – see reports attached”. The Application included a description of “how injury occurred” as follows – “Applicant informed of allegation which was made against him – see his statement”.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’ dated 20 September records the Arbitrator’s orders as follows:
“1. That the Respondent pay the Applicant weekly compensation at the rate of:
(a) $626.15 per week from 15 January 2005 to 5 May 2005 under s38 of the Workers Compensation Act 1987
(b) $328.90 per week from 5 May 2005 to 15 July 2005 under s40 of the Workers Compensation Act 1987.
2.The Respondent pay the Applicant’s section 60 expenses on production of accounts and/or receipts.
3.The Respondent pay the Applicant’s costs as agreed or assessed. I certify that this matter was complex and proceeded directly to Arbitration.”
The Arbitrator’s reasons for the Determination (‘Reasons’) set out above were given on 20 September 2005.
ISSUES IN DISPUTE
The issues in dispute in the appeal are:
(i)Whether the Arbitrator failed to fairly or properly consider the issue of “injury” (section 4 and section 9 of the 1987 Act).
(ii)Whether the Arbitrator erred in law in the manner of her application of section 9A of the 1987 Act.
(iii)Whether the Arbitrator erred in law by failing to give appropriate weight to the totality of the medical evidence.
(iv)Whether the Arbitrator erred in her determination that it was unnecessary to consider section 11A of the 1987 Act.
(v)Whether the Arbitrator erred in law in failing to properly consider and correctly apply section 38 and section 38A of the 1987 Act.
(vi)Whether the Arbitrator erred in her application of section 40 of the 1987 Act with respect to her determination “of the amount the Respondent was able to earn in suitable employment”.
(vii)Whether the Arbitrator erred in her determination that section 60 expenses incurred after 15 January 2005 were reasonably necessary for the treatment of the Respondent’s compensable injury.
The issues enumerated above are more fully set forth in the Appellant’s Statement of Grounds for Appeal (see paragraph 3(a) – (g) inclusive).
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
The Appellant in paragraphs 5 and 6 of its Application submits that this matter is not capable of determination on the papers.
The Respondent in his “Submissions Regarding Oral or Paper Hearing” submits that the “question of leave to appeal” may be dealt with on the papers but proceeds to submit that should such leave be granted he seeks to be heard on the appeal proper by way of “oral argument”.
Having regard to Practice Directions Numbers 1 and 6, and the documents that are before me, 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
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
Section 352(4) of the 1998 Act provides:
“(4)An appeal can only be made within 28 days after the making of the decision appealed against.”
Rule 77 of the Workers Compensation Commission Rules 2003 (‘the Rules’) governs procedural requirements with respect to appeals against an Arbitrator’s decision. Sub-rule (8) of rule 77 provides:
“(8)The Commission constituted by a Presidential Member may, if a party satisfies the Presidential Member, in exceptional circumstances, that to lose the right to seek leave to appeal would work demonstrable and substantial injustice, by order extend the time for making an appeal.”
The Appellant’s Application was filed with the Registry of the Commission on 21 October 2005. The Decision was made, in terms of section 352(4) of the 1998 Act, on 20 September 2005. It can be seen that the Appellant’s Application is in breach of the time requirements in that it was filed three days after expiration of the period fixed by the 1998 Act and the Rules (rule 77(1)).
The Appellant’s Application includes a document headed “Reasons For Late Lodgement”. That document notes that the Appellant received the Arbitrator’s ‘Reasons’ on 10 October 2005. It further notes that “a request for an extension of time was provided to the Registrar on 10 October 2005”. It is further noted that “an unregistered copy of the Appeal has been forwarded to the Respondent’s Solicitors”. The Appellant contends in that document that “given the nature of the Appeal, there would be demonstrable and substantial injustice should the right to seek leave to appeal be lost”. I treat this document as an application for extension of time which application is permitted by the provisions of rule 77(8) quoted above.
The principles relevant to the exercise of discretion to extend time were considered by the High Court of Australia in Gallo v Dawson (1990) 93 ALR 479. Those principles have been discussed and applied in numerous decisions of the Commission (see for example Alexandru v State Rail Authority NSW [2004] NSWWCC PD 54).
Having regard to the very brief period by which the time limitation was breached, the conduct of the Appellant in promptly serving a copy of relevant documents upon the Respondent and the nature of the litigation, I am of the view that “exceptional circumstances” within the meaning of rule 77(8) exist in the present matter.
The Appellant has raised substantial issues for determination in its Application and I am of the opinion that, should the Appellant lose the right to seek leave to appeal, demonstrable and substantial injustice in terms of rule 77(8) would likely occur.
The amount of compensation at issue on the appeal exceeds the sum of $5,000 and is at least 20 per cent of the amount awarded in the decision appealed against and thereby the subject matter of the appeal meets the threshold requirements of section 352(2) of the 1998 Act as to quantum which must be met before a grant of leave to appeal may be made by the Commission.
I formally order that time to apply for leave to appeal be extended to 21 October 2005 and note that the requirements of section 352(2) of the 1998 Act have been satisfied. Having regard to the subject matter of the appeal and the arguments raised I order that leave be granted to the Appellant to appeal to the Commission.
EVIDENCE AND SUBMISSIONS
The evidence before the Arbitrator comprised the following:
(i)That documentary evidence which is summarised in paragraph 13 of the Arbitrator’s “reasons”.
(ii)The oral evidence of the Respondent which is recorded in the transcript of the proceedings which took place on 8 September 2005.
(iii)A statement by the Respondent which was before the Arbitrator addressed the issue of “injury” at page 2 where he stated:
“The incident that caused my condition happened on 22 July 2003 when I was told by Mr Santos, the Assistant Manager of Accommodation Services, that an allegation had been made against me by one of the client’s [sic] of the service that I had sexually abused him.”
(iv)The “condition” there referred to was described in a medical certificate signed by Dr Ho and dated 22 July 2003 as “illness”. The subject of diagnosis was addressed in the various medical reports which were in evidence including Dr Bauer (report 10 May 2005) who expressed the view that the Respondent:
“had experienced an acute anxiety and depressive disorder that was a direct result of the allegations that had been made against him in the workplace on 22 July 2003.”
(v)Dr Cassidy, Consultant Psychiatrist, (report dated 24 February 2005) noted:
“The history that I was provided with indicates that Mr Goldstone was functioning satisfactorily in his role in of [sic] clinical patient care. The accusation was then made and when he was informed of this accusation he immediately developed depressive acute distress and subsequent depressive symptoms.”
(vi)Dr Cassidy went on to state:
“His deterioration is clearly temporally related to the accusations made against him.”
(vii)Dr Cassidy’s diagnosis was that of adjustment disorder with depressed mood and alcohol abuse. Dr Cassidy noted that the alcohol abuse commenced after the onset of his depressive symptoms.
(viii)Dr Snowden, Injury Management Consultant, in his report of 5 January 2004 expressed the view (at page 11):
“As mentioned, it was felt that Mr Goldstone was very unlikely to be able to return, for psychological reasons to direct patient care in the foreseeable future.”
(ix)Dr Kaplan, Psychiatrist, in his report of 17 October 2003 recorded:
“Mr Goldstone reacted to allegations of sexual abuse made against him with symptoms of anxiety and depression, dominated by ruminations, loss of confidence, anger, insomnia, some abuse of alcohol, feelings of failure, powerlessness and social withdrawal.”
(x)Dr Kaplan went on to state:
“Since the allegations have been dismissed, there is a noted improvement in his mood, which he attributes to the anti-depressant.”
(xi)Dr Kaplan stated, as at the date of that report, that the Respondent:
“needs a careful re-entry back to workplace and will probably not be able to do care work again.”
(xii)Correspondence was before the Arbitrator which is pertinent to the Respondent’s reliance upon section 38A of the 1987 Act.
Material relied upon by the Appellant which was before the Arbitrator included –
(i)A report from Mr Gregory Sawyer, Psychologist dated 16 September 2003. Mr Sawyer, at page 8 of that report states:
“Mr Goldstone was advised of this allegation on 22 July 2003. The allegation was serious and significant but was clearly at odds with Mr Goldstone’s high ethics and code of conduct and he has emotionally decompensated, manifesting significant features of anxiety and depressed mood.”
(ii)Reports of Dr Kaplan including the report dated 17 October 2003 above mentioned (relied upon by the Respondent), a report dated 8 December 2003 and a further report dated 20 October 2004. Dr Kaplan’s finding in the earlier two reports was “that he had an Adjustment Disorder as a result of accusations made against him at work.” In the latter report Dr Kaplan observed that Mr Goldstone was “involved in a workplace dispute”, that he “has a V-Code Disorder”, and noted that such disorders are described as conditions of clinical interest that do not constitute a psychiatric disorder. Dr Kaplan in that last report expressed the view that Mr Goldstone was “fit to return to full duties immediately.”
(iii)Dr Peter Young, Psychiatrist in his report dated 31 March 2004 records a history that Mr Goldstone experienced some distress as a result of the allegation made in July of 2003. Dr Young recorded that:
“Mr Goldstone was clear in that the predominant stressor was not the allegation itself but, in his perception, it was the manner in which the complaint was dealt with by the Department that caused him to experience stress.”
(iv)Dr Young agreed with Dr Kaplan’s conclusion that Mr Goldstone had reacted to allegations of sexual abuse laid against him with symptoms of anxiety and depression. Dr Young went on to state:
“The most significant stressful aspect of this was Mr Goldstone’s perception that was [sic] mishandled by the Department.”
The Arbitrator at paragraphs 31 to 35 inclusive of her Reasons summarises the evidence adduced at the hearing with respect to the Respondent’s claim for medical expenses and the Appellant’s countervailing evidence.
The Arbitrator also had before her documentary evidence relating to the nature of the complaint made against the Respondent (email dated 22 July 2003) as well as a document signed by an Officer of the Appellant Department Mr Brett Thomas which related to the conduct of investigations of the complaint, the outcome of those investigations and final recommendations.
DISCUSSION AND FINDINGS
Section 352(5) of the 1998 Act provides:
“(5)An appeal under this section is to be by way of review of the decision appealed against.”
Such a proceeding is not an “appeal” in the strict sense nor is it a hearing de novo. As stated by Dr Fleming in Mayne Health Group t/as Nepean Private Hospital v Sarah Sandford [2002] NSWWCCPD 6:
“The ‘review’ is by way of rehearing where the powers of the Commission to confirm, revoke or substitute a new decision are exercisable only where it can be demonstrated that the original decision of the Arbitrator is affected by ‘… some legal factual or discretionary error’ [Allesh v Maunz [2000] HCA 40 (3 August 2000)].”
The Appellant’s grounds of appeal have been enumerated in abbreviated form in paragraphs 10 and 11 above. In support of those grounds the Appellant in its Application (at pages 4, 5 and 6 thereof) has included seventeen numbered submissions headed “Appellant’s Outline of Submissions”. The format of the Appellant’s documentation is such that it is proposed to deal with each of the enumerated submissions following which the grounds of appeal are to be addressed.
Submission 1
It is said by the Appellant that the “Arbitrator incorrectly stated that the first issue to be determined is whether the Respondent suffered injury within the meaning of section 11A(3) of the 1987 Act.” It is clear upon a reading of the Arbitrator’s Reasons as a whole that her statement at paragraph 37 thereof had the purpose of crystalising the issue which had been raised having regard to the facts and the manner in which the proceedings were conducted by the parties at the hearing. The Arbitrator had earlier in her Reasons (at paragraphs 8 and 10) made reference to the issues in dispute and those sections of the 1987 Act which were of particular relevance to the Application before her.
Section 11A(3) of the 1987 Act provides:
“(3)A ‘psychological injury’ is an injury (as defined in section 4) that is a psychological or psychiatric disorder. The term extends to include the physiological affect of such a disorder on the nervous system.”
It can be seen that the aforementioned subsection expressly incorporates the statutory definition of ‘injury’ (section 4 of the 1987 Act) in the definition of ‘psychological injury’. The Arbitrator’s process of reasoning required a consideration of the primary definition of ‘injury’ as well as the balance of the elements in the subsection.
The Arbitrator proceeded to consider the medical evidence before her and (at paragraph 40 of her Reasons) concluded that, as a matter of fact, the Respondent “did suffer a psychiatric or psychological disorder”. Such finding necessarily constitutes a finding of ‘injury’ in terms of section 4 of the 1987 Act. I am not persuaded that the Arbitrator erred in approaching the issues in dispute in the manner she did in the course of her Reasons as put by the Appellant in this submission.
Submission 2
The Appellant correctly submits “that the primary issue is whether the Respondent suffered injury within the meaning of section 4 and section 9 of the Act”. It is submitted that the Respondent failed to discharge the onus of proof with respect to his suffering “injury in the course of or arising out of the communication to him of a complaint of improper sexual conduct on 22 July 2003 as alleged.” The Arbitrator (specifically at paragraphs 51 and 56 of her Reasons) made an explicit finding of fact that the Respondent’s injury arose as a result of the communication to him of allegations against him, that those events arose out of and in the course of his employment, that there was both a causal and temporal relationship between the injury and the employment and that the Respondent’s injury was caused by the communication to the Respondent during a telephone conversation of the allegations made against him on 22 July 2003. Those conclusions of fact followed a balanced and careful analysis of the evidence before her. That evidence comprised material more than adequate to support her conclusions and I am not persuaded that the Appellant has established error on her part in particular with regard to “onus of proof” and the availability of evidence in support of her conclusions.
Submission 3
This submission appears to go to the question of “weight of evidence” with respect to the Arbitrator’s conclusion that the ‘injury’ occurred on 22 July 2003. That finding of the Arbitrator is of fundamental significance having regard to the argument put by the Appellant at the hearing that liability for any ‘injury’ proven would be negated by reason of the operation of section 11A of the 1987 Act.
The submission ignores the analysis of the evidence with respect to the immediate onset of symptoms suffered by the Respondent on 22 July 2003 and the need for treatment on that day. That evidence as evalued by the Arbitrator led to the conclusions of fact stated in paragraph 56 of the Reasons. Those matters are summarised in the last several phrases of that paragraph:
“…I am satisfied that the Applicant’s injury was caused by the communication to the Applicant during a telephone conversation of the allegations made against him on 22 July 2003 as opposed to being caused as a result of the investigation process or even advice that there was to be an investigative process on 23 July 2003.”
I am not persuaded by matters raised in this submission that any error in any relevant sense has been committed by the Arbitrator.
Submission 4
This submission again challenges conclusions of fact upon the basis that the Respondent failed to discharge the onus of proof. For the reasons as above stated I am of the view that there was ample evidence before the Arbitrator in support of her conclusions of fact and I am not persuaded that any error has been demonstrated with respect to the Arbitrator’s “finding about the primary issue”.
Submission 5
This submission appears to have two elements. Firstly it is put that the Arbitrator’s reasoning was deficient in paragraph 40 of her Reasons in that the question of ‘injury’ was not addressed (section 4 and section 9). The Arbitrator in that paragraph was addressing the question of ‘diagnosis’ in the statutory context of section 11A(3) of the 1987 Act. I have earlier dealt with the matters raised for determination by that subsection and I am not persuaded that any error has been demonstrated with respect to the Arbitrator’s process of reasoning or conclusions of fact. Secondly it is submitted that “ the stated existence of one of the symptoms of PTSD” does not provide sufficient or adequate reason to find a “work-related injury”. Again I am not persuaded that any error has been demonstrated as to the Arbitrator’s reasoning process nor as to her conclusions of fact.
Submission 6
It is stated in this submission that the Arbitrator (at paragraph 51) “… ignores the evidence of pre-existing obsessional personality traits (Dr Kaplan report 17 October 2003)” when the elements of section 9A of the 1987 Act were addressed. Contrary to that submission it is clear (paragraph 40 of Reasons) that the evidence of Dr Kaplan has been considered by the Arbitrator. It must also be noted that Dr Kaplan at page 4 of his report of 17 October 2003 stated:
“However, it needs to be stated that the substantial cause of his Adjustment Disorder is the allegations that were laid against him.”
That statement immediately followed Dr Kaplan’s stated view that the Respondent “appears to have obsessional personality traits.” I am of the view that there was ample evidence from Dr Kaplan (leaving aside the balance of the material before the Arbitrator) to found the conclusions reached by the Arbitrator with respect to the operation of section 9A of the 1987 Act. This submission fails to demonstrate any error in a relevant sense on the part of the Arbitrator.
Submission 7
This submission suggests error on the part of the Arbitrator with respect to her evaluation of the medical experts’ evidence in the Respondent’s case (Drs Cassidy and Bauer). A decision maker in the Arbitrator’s position is not, in principle, constrained to accept the opinion of a Medical Specialist in preference to an opinion expressed by a General Practitioner. The Arbitrator’s evaluation of the evidence is demonstrated in her plainly stated Reasons and her conclusions as to fact have been reached by the proper exercise of her discretion as to the value and weight of the evidence before her. I am not satisfied that any error in a relevant sense has been demonstrated by this submission.
Submission 8
It is put in this submission that the Arbitrator erred in failing “to provide any or adequate reasons for her rejecting the evidence of Dr Young …”. It was stated by Meagher JA in Beale v GIO of NSW (1997) 48 NSWLR 430 at 443 “Reasons need not necessarily be lengthy or elaborate” but “relate to the function to be served by the giving of reasons”. When needing to refer to relevant evidence “there is no need to refer to [it] in detail, especially in circumstances where it is clear that the evidence has been considered”. [This line of reasoning was cited by Santow JA in Haris v Bulldog’s Rugby League Club ([2006] NSWCA 53 17 March 2006 unreported)]. As I have noted above the Arbitrator in delivering her Reasons has addressed the totality of the evidence and in my view has sufficiently revealed her process of reasoning as required by law.
It is further submitted that the Arbitrator’s suggested failure to correctly apply Dr Cassidy’s opinion as to attribution of injury was such that “… it was not open for her to conclude at paragraph 61 that section 11A had no application to the facts of this case. The failure to apply section 11A constitutes an error of law in the circumstances.” The only allegation of injury made by the Respondent at the hearing was that which occurred at the time of allegations made on 22 July 2003. It was the Appellant, in its conduct of its defence, that raised the provisions of section 11A. The defence was put, in the alternative to the other matters raised and recorded by the Arbitrator, as being a bar to recovery by the Respondent given that the injury, being one satisfying the statutory definition in section 11A(3) was one which fell within the ambit of section 11A(1).
As noted above an express finding of fact was made by the Arbitrator that the Respondent had suffered an injury on 22 July 2003. At paragraph 61 of her Reasons the Arbitrator stated:
“Given the finding that the Applicant’s injury was caused by the communication to the Applicant during a telephone conversation of the allegations made against him on 22 July 2003 as opposed to the investigation process or advice that there was to be an investigative process, it is unnecessary in my view to consider the section 11A defence. The Applicant suffered his injury not only before any investigation was commenced but also prior to being advised that there was to be an investigation.”
Those findings of fact were followed in paragraph 62 by the Arbitrator’s conclusion:
“…I find that regardless of the effect of the investigative steps taken by the Respondent, the allegations as originally notified to him and their non withdrawal were work related events which entitle the Applicant to workers compensation and are not affected by section 11A.”
In my view, those findings of the Arbitrator negate any relevance of section 11A (save, perhaps, as to exercise of discretion under section 40 of the 1987 Act addressed hereunder). Having regard to the facts as found I am not persuaded that there has been any error of fact or law with respect to the Arbitrator’s conclusion (at paragraph 61) that “… it is unnecessary in my view to consider the section 11A defence.”
Submission 9
This submission is a criticism of the Arbitrator’s reference to the well established principle that entitlement to compensation under the 1987 Act is not negated nor extinguished by reason of supervening non work related incapacity so long as incapacity from the subject injury persists. It is said by the Appellant that reference to the authorities is “not helpful”. I am of the view that, given the Arbitrator’s conclusions of fact stated in paragraph 63 of her Reasons it was imperative to address the matters of principle which were raised by the authorities cited in that paragraph and paragraphs 64 and 65.
This submission also challenges the Arbitrator’s conclusions as to incapacity however nothing put by the Appellant establishes error on the part of the Arbitrator with respect to her findings on this question.
Submission 10
This submission ignores the Arbitrator’s finding that the relevant injury was sustained on 22 July 2003 and the conclusion that it was “unnecessary … to consider the section 11A defence”. Nothing stated in this submission, in my view, establishes in any relevant sense an error on the part of the Arbitrator.
Submission 11
The Appellant submits that “the operation of section 11A does not depend upon the Appellant’s compliance with the requirements imposed by statutes as stated at paragraph 68”. As noted above the Arbitrator had concluded that it was unnecessary to “consider the section 11A defence”. That the Arbitrator was correct in so concluding has also been addressed earlier. It was reiterated by the Arbitrator in paragraph 68 that:
“the question of whether the investigation was a disciplinary matter and if it was, whether it was reasonable are matters that do not require any findings as I take the view that the investigation did not wholly or predominantly cause the Applicant’s psychiatric injury.”
Such observation is consistent with the Arbitrator’s earlier findings and her process of reasoning disclosed throughout her Reasons.
The Arbitrator’s notation in paragraph 68 of the statutes there mentioned and the guidelines and her conclusion that she was not satisfied that the Appellant “did prove that the requirements in this legislation were complied with particularly in respect of the notice or advice to be provided to the Applicant” would, in my view be relevant to a consideration of the question as to whether the Commission is dealing with ‘reasonable action’ in terms of section 11A. The Arbitrator did not conclude as suggested in this submission that the operation of section 11A, on the facts as found, was in some way dependent upon proof of compliance with the requirements of the Acts cited and the guidelines.
Submission 12
This submission does not appear to be apposite to the appeal and I disregard it.
Submission 13
This submission challenges the determination by the Arbitrator that the Respondent was, for a period, entitled to benefits pursuant to section 38 of the 1987 Act. It also challenges the Arbitrator’s findings with respect to the requirements of section 38A of the 1987 Act. The Arbitrator’s finding as to partial incapacity is to be found at paragraph 75 of her Reasons. The Arbitrator proceeds (between paragraphs 76 and 86) to consider the aforementioned provisions and their application having regard to her factual findings. The conflict highlighted in this submission between the medical views expressed in evidence constitute a factual dispute which required adjudication by the Arbitrator. In my view the Arbitrator has fairly dealt with the totality of the relevant evidence and has applied appropriate questions of principle in determining the Respondent’s entitlement pursuant to section 38 of the 1987 Act.
Submission 14
This submission seeks to challenge the Arbitrator’s conclusions with respect to the requirements of section 38A(2)(d). The uncontroverted evidence before the Arbitrator was that the Respondent’s engagement by the Appellant on restricted duties came to an end in April of 2004 and that since that time the Respondent had been “applying for other positions outside the Department and within the Department, so far without success.” (See Statement of Respondent made 17 May 2005.) It was, in my view, open to the Arbitrator to conclude that the provisions of the aforementioned subsubsection had been complied with notwithstanding the absence of evidence as to the particular dates of such applications for employment. It is reasonable to infer that any such application for suitable work would have occurred only after termination of the Respondent’s position on restricted duties in April 2004. It is noted by the Arbitrator at paragraph 18 of her Reasons that “the Applicant obtained employment on 16 July 2005.” It can be seen that, bearing in mind the date of the Respondent’s Statement which was before the Arbitrator that the “six or seven” job applications were, on the probabilities, made between the date of termination of restricted duties and the date of that Statement. The Arbitrator’s Reasons appear to infer such conclusion had been reached by her when adjudicating the question of the relevance of section 38 of the 1987 Act.
Submission 15
It is put on behalf of the Appellant that the Arbitrator failed to properly determine the Respondent’s entitlement pursuant to section 40 of the 1987 Act having regard to the steps set out by the NSW Court of Appeal in the authorities cited.
It is plain from the terms of paragraphs 88 and 89 of the Arbitrator’s Reasons that she has had regard to the matters enunciated by the NSW Supreme Court Court of Appeal in Mitchell v Central West Health Service (1997) 14 NSWCCR 257 (‘Mitchell’). The Arbitrator in paragraphs 90 to 98 inclusive addressed each step enunciated in Mitchell and I am of the view that the reasoning process and conclusions of fact revealed in those paragraphs demonstrate no error of relevance. With respect to the Arbitrator’s reasoning concerning the general discretion to be exercised pursuant to section 40(1) of the 1987 Act (see paragraph 98 of her Reasons) I note in passing that the Arbitrator had (at paragraph 67) concluded:
“any exacerbation of the injury caused to the Applicant by the investigation does not justify a reduction of what in the absence of those injuries would be a proper award for partial incapacity resulting from the compensable injuries for which the Respondent is liable.”
That finding, it is plain, led the Arbitrator to the conclusion that “on balance I have decided to exercise that discretion by making no reduction given the opinion expressed by Dr Bauer and the evidence of the Applicant.” (See paragraph 98 Reasons.)
Submission 16
This submission challenges the Arbitrator’s conclusion as to the Respondent’s ability to earn (determined as being $500.00 per week) in terms of section 40(2)(b). The very wide discretion bestowed upon the decision maker by the provisions of section 40 of the 1987 Act has been exercised by the Arbitrator in the present case by “taking all the evidence into account and doing the best I can I find that the Applicant may have been able to work in some sort of clerical position or in an administrative position within the disability services area that did not involve client care with an earning capacity of, say $500.00 per week.” (See paragraph 96 of Reasons.) In approaching the question of quantification of ability to earn in this way I am of the view that the Arbitrator has met the requirements of the 1987 Act and the provisions of section 40 and section 43A in particular. The Arbitrator has characterised the “suitable employment” for which the Respondent is suited and has addressed the evidence as a whole which embraces factors such as the Respondent’s age, education skills and work experience. In my view no error in a relevant sense has been demonstrated by the Appellant so far as the Arbitrator’s determination of “ability to earn” is concerned.
Submission 17
This submission seeks to challenge the Arbitrator’s conclusions with respect to the Appellant’s liability pursuant to section 60 of the 1987 Act. The terms of the Arbitrator’s findings with respect to the medical expenses claim is as follows:
“The Applicant’s medical and related expenses include as a result of treatment, services or assistance are reasonably necessary for the compensable injury.”
It was upon the basis of that finding that the Arbitrator made the decision in subparagraph 2 of paragraph 105 of her Reasons:
“2.The Respondent pay the Applicant section 60 expenses on production of accounts and/or receipts.”
Such general order embraces those expenses which were found, as a matter of fact to be reasonably necessary for treatment of the compensable injury. That decision is founded upon the Arbitrator’s acceptance of the evidence of Dr Bauer and Dr Cassidy. (See paragraph 101 of Reasons.) It was, in my view, open to the Arbitrator to accept the evidence of the treating Doctors with respect to the need for treatment and its relevance to the compensable injury and I am not satisfied that the Appellant has established any error in a relevant sense regarding the Arbitrator’s conclusions.
It can be seen from the matters which I have set out above that I am of the view that the Appellant’s submissions, in their totality, should be rejected. Those submissions addressed the issues raised in the “grounds” enumerated in paragraph 3(a) to (g) of the Appellant’s Statement of Grounds for Appeal. It follows that, in rejecting the submissions in support of those grounds I conclude that the Appellant has failed to make out the grounds as enunciated in the aforementioned paragraph 3.
DECISION
The appeal is unsuccessful. The decision of the Arbitrator dated 20 September 2005 is confirmed.
COSTS
The Appellant is to pay the Respondent’s costs of the appeal.
Kevin O’Grady
Acting Deputy President
9 May 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O’GRADY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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