Diab v NRMA Ltd - [2014] NSWWCCPD 2

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Parramatta City Council v Harrison [2014] NSWWCCPD 2
APPELLANT:	Parramatta City Council
RESPONDENT:	Raymond Harrison
INSURER:	GIO General Limited
FILE NUMBER:	A1-015159/12
ARBITRATOR:	Mr D Nolan
DATE OF ARBITRATOR’S DECISION:	24 September 2013
DATE OF APPEAL DECISION:	21 January 2014
SUBJECT MATTER OF DECISION:	Section 4(b)(ii) of the Workers Compensation Act 1987; aggravation of disease; s 9A of the Workers Compensation Act 1987; employment substantial contributing factor to injury; evidence of incapacity; duty to give reasons for decision
PRESIDENTIAL MEMBER:	Deputy President Kevin O'Grady
HEARING:	On the papers
REPRESENTATION:	Appellant:	Edwards Michael Lawyers
Respondent:	Carrol & O’Dea Lawyers
ORDERS MADE ON APPEAL:	1. Paragraphs 1, 2, 4, 5 and 6 of the Certificate of Determination (undated) which was issued following the hearing on 23 September 2013 are confirmed. 2. Paragraph 3 of the Certificate of Determination is revoked and the following findings and order are made: “the applicant was, as a result of the injury, partially incapacitated for work between 28 November 2011 and 2 February 2012. The respondent failed to provide the applicant with suitable employment during that period. An award is made in favour of the applicant pursuant to s 38 of the Workers Compensation Act 1987 at the rate of $952.19 per week from 28 November 2011 to 2 February 2012.” 3. The appellant is to pay the respondent’s costs of the appeal.

BACKGROUND

This appeal concerns a challenge to an award entered by Arbitrator Denis Nolan in favour of Mr Raymond Harrison, an employee of Parramatta City Council (the appellant). It was Mr Harrison’s allegation that the duties performed by him in the course of his employment between 2007 and 2011 had aggravated a degenerative condition in his cervical spine, giving rise to incapacity. It is necessary that, by way of background, detail of Mr Harrison’s occupational history with the appellant is summarised.
Mr Harrison commenced employment with the appellant in 2001 as a casual cleaner/labourer and later as an offsider. He became a permanent employee in 2007. In that year, he commenced work as a truck driver, driving garbage trucks, street sweepers and rubbish trucks. Mr Harrison experienced neck pain when operating and driving a street sweeper. He had some short absences from work because of pain and discomfort. Thereafter, in 2007, he was absent from work for 16 weeks because of painful neck symptoms. He was examined by Dr Ahmed Saafan on behalf of the appellant and he sought treatment from his general practitioner, Dr H S Misra.
Upon his return to work, Mr Harrison performed duties picking up litter in Parramatta Mall for approximately two weeks, following which he went off work again, being absent between 20 September 2007 and 17 December 2007.
Upon his return to work, Mr Harrison resumed driving the street sweeper machine which had been equipped with a camera, the purpose of which was to eliminate some of the neck movements during Mr Harrison’s operation of the machine. Mr Harrison did not find the camera of great utility in reducing his neck rotation whilst driving.
Following consultation between trade union representatives and the appellant, Mr Harrison’s duties were changed. He became an offsider team member. His duties involved picking up rubbish and cleaning drains.
On 27 May 2010, Mr Harrison injured his neck whilst travelling in a truck which had struck a gutter at speed. He consulted Dr Misra and remained off work for approximately three weeks, during which time he was paid compensation benefits.
Upon return to work, Mr Harrison performed light duties for a short period after which he worked on the crew concerned with illegal dumping. The lifting duties in that work caused neck pain.
In late 2011 Mr Harrison was assigned to work operating a Glutton machine, a powerful vacuum cleaner designed to clean streets. That work was performed over four or five hours each day.
On 2 November 2011, Mr Harrison stumbled and fell whilst operating the Glutton machine. The machine ran over his right heel. He consulted Dr Misra, following which a compensation claim was made and accepted by the appellant.
Mr Harrison continued with his work operating the Glutton machine at which time he experienced pain in his right elbow, right arm and neck. He was treated by Dr Misra and referred to Dr Charles New, orthopaedic surgeon.
Mr Harrison experienced continuing pain which he reported to his employer. On 28 November 2011, he received a letter from the appellant informing him that restricted duties could not be provided and that he was required to go on leave until he was declared fit to return to normal duties.
Mr Harrison remained off work thereafter until 8 May 2012 during which period he received sick leave, annual leave and long service leave payments. He also received payment from the appellant for a number of weeks which was paid from a “special account”. A workers compensation claim in respect of this absence from work was declined by the appellant.
The dispute concerning entitlement to compensation benefits came before the Arbitrator for conciliation/arbitration on 23 September 2013. The matter proceeded to hearing and the Arbitrator delivered his determination on that day ex tempore. A Certificate of Determination was issued on 24 September 2013, which recorded the following determination:
“The Commission determines:

1. The Application to Admit Later Documents, namely reports by Dr Abeyarante and Dr Harvey-Sutton, apparently filed by the Respondent on 29 May 2013 (but not brought to the Arbitrator’s or the Applicants counsel’s attention until the hearing) is granted and the documents attached thereto are admitted into evidence. The Applications to Admit Late Documents filed by the Applicant on 10 and 11 April 2013 are granted and the documents attached thereto are admitted into evidence.
2.   The Commission finds that the Applicant suffered injuries to his cervical Spine by way of aggravation of a disease from 2007 to date, and on 27 May 2010 to his cervical spine, in the course of his employment with the Respondent and that the Applicant’s employment with the Respondent was a substantial contributing factor to such injuries.
3. I further find that the Applicant was partially incapacitated for work from 28 November 2011 to 8 May 2012 deemed total because the employer failed to provide suitable employment, pursuant to section 38 of the Workers Compensation Act 1987.
4. The Respondent shall pay the Applicant’s reasonable expenses under section 60 of the Workers Compensation Act 1987 on production of accounts, receipts or Medicare charge.
5.   The Respondent to pay the Applicant’s costs as agreed or assessed.
6. I certify this matter complex pursuant to Schedule 6 of the Workers Compensation Regulation 2010 for the Applicant and the insurer, as it involved issues of injury s4, substantial contributing factor s9A, regulation 49 in relation to admission of report within a report of same specialty, medical/factual causation including aggravation of a disease, multiple body parts, and injury dates, entitling the parties to 20% uplift.”

PRELIMINARY MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time as found in the provisions of ss 352(3) and 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) have been met.
The parties consent to the matter being heard “on the papers”. Having regard to Practice Directions No’s 1 and 6 and the documents that are before me, I am satisfied that I have sufficient information to proceed without holding any conference or formal hearing as is permitted by s 354(6) of the 1998 Act.

MATTERS IN DISPUTE

The grounds of appeal relied upon by the appellant suggest that the Arbitrator erred in finding that:
(a)     Mr Harrison received injury;
(b)     Mr Harrison’s employment was a substantial contributing factor to injury;
(c)     Mr Harrison was incapacitated as a result of injury, and
(d)     Mr Harrison was incapacitated as a result of such injury beyond 2 February 2012 or, alternatively, beyond 15 February 2012.
The appellant also suggests error on the Arbitrator’s part “in placing undue weight upon the certificates of Dr Misra”. Error is also suggested in that the Arbitrator “placed undue weight upon matters of little or no relevance, in particular in relation to the Arbitrator’s perception of [the appellant’s] conduct and attitude towards [Mr Harrison]”.
It is further suggested that the Arbitrator erred in failing to give adequate reasons for his determination of the dispute.
I note that the grounds of appeal make reference to the Arbitrator’s failure to “enter an award for a monetary amount” based upon the findings made. It is clear that the appellant places no reliance on appeal upon those circumstances; also it is agreed that, should Mr Harrison be found on appeal to be entitled to an award of weekly compensation, the proper quantification of such entitlement gives rise to no dispute.

THE ARBITRATOR’S DETERMINATION

As earlier noted, the Arbitrator stated his reasons for his determination of the dispute on the day of hearing immediately following submissions which had been put on behalf of each party. Notwithstanding the manner in which the allegation of injury was particularised in the application filed by Mr Harrison, the Arbitrator noted that the “key submission [concerning injury] relates to the street cleaning or use in particular of a Glutton machine …” (at T44).
It was common ground that the evidence demonstrated that, as found on the radiological studies, Mr Harrison suffered from a “marked degree of disc degeneration at C5/6, C6/7, C7/T1, moderate degree C3/4, minor degree C4/5, sclerosis right facet joint C3/4, C4/5 osteophytic protrusions right foramen C4/5, osteophytic protrusions left foramen C6/7, sclerosis right facet joint C1/2, sclerosis left facet joint C7/12”.
In the course of his reasons, the Arbitrator made reference to the evidence of the experts relied upon by each party, including the content of certificates issued by Dr Misra and the opinions expressed by Dr E D Price, occupational health physician, Dr Charles New, orthopaedic surgeon, Mr John Huston, occupational therapist, Dr Mahima Abeyaratne, occupational medicine, Dr Paul Miniter, orthopaedic surgeon, and Dr P L Harvey-Sutton, consultant occupational physician.
It must be said, as has been observed by the parties in submissions on this appeal, that the reasoning of the Arbitrator which follows his consideration of the evidence lacks clarity. It is nonetheless clear that the Arbitrator had accepted the evidence of Dr New relating to Mr Harrison’s “change of duties” concerning the Glutton machine. It was Dr New’s opinion that the change of duties “has resulted in the left arm pain noting [Mr Harrison’s] pre-existing complaint”.
The Arbitrator found that the underlying cervical condition had been aggravated by the nature of the duties performed operating the Glutton machine (at T55).
The Arbitrator proceeded to state his conclusion that Dr Misra was “in the best position … to assess whether a worker has an injury which is ongoing”. Dr Misra’s view was that Mr Harrison was “fit for suitable duties and not fit for a full return to work” (at T56). The Arbitrator appears to have, at that point in his Reasons, expressly rejected the opinions of Dr Harvey-Sutton and Dr Price concerning capacity for work. The following finding was then made (at T56):
“[h]aving regard, therefore, to the facts which are not disputed, that the worker has an underlying constitutional condition of the neck, I find that that constitutional condition has been aggravated by the nature and conditions of Mr Harrison's employment, namely using the Glutton machine in having to turn his neck.”
The Arbitrator, following further consideration of the evidence, in particular that of Dr Harvey-Sutton and Dr Price, stated (at T57):
“… I find [Mr Harrison] suffered injury under s 4 and that the work was a substantial contributing factor in [sic] s 9 [sic, 9A] to the aggravation of his neck condition.”
Consideration was then given by the Arbitrator to the question of Mr Harrison’s entitlement to weekly compensation. It was acknowledged by the Arbitrator that the evidence of Mr Huston suggested that Mr Harrison was fully fit to return to work in February 2012 and that Dr Harvey-Sutton and Dr Price suggested that any entitlements ceased in “late April [2012]” (at T57).
The Arbitrator noted Dr Misra’s evidence as found in the Workcover medical certificates tendered by Mr Harrison and again stated that that practitioner was “in the best position to assess when [Mr Harrison is] incapacitated and when [he is] not incapacitated” (at T57).
The Arbitrator preferred the opinion of Dr Misra and concluded that compensation was payable in respect of the “whole of the period” and that “he should be paid as if he was totally incapacitated for that period” (at T58).
The transcript at this point records exchanges between the Arbitrator and counsel concerning appropriate orders. It is there recorded that the parties agreed that the relevant current weekly wage rate was $950 (at T58). It was also stated by the Arbitrator that his finding as to incapacity was that Mr Harrison was partially incapacity during the entire period of the claim. It seems that, despite the suggested agreement as to relevant wage rates, there remained some doubt as to quantum of the relevant weekly amounts (at T60).
Ultimately it was recorded that the appellant “did not dispute” that the relevant current weekly wage rate was $952.19. Notwithstanding that agreement, no formal order was made concerning Mr Harrison’s entitlement to weekly compensation. That omission is reflected in the Certificate of Determination noted at [13] above.
It was stated by the Arbitrator during exchanges with counsel (at T61) that his finding was one of partial incapacity. A further finding was said to have been made that “the employer didn’t provide suitable duties” and that the incapacity was thus “deemed to be total”.
That last finding undoubtedly concerned the provisions of s 38 of the Workers Compensation Act 1987 (the 1987 Act) (in its form prior to the 2012 amendments to the legislation). Following these exchanges, the transcript comes to an end, the Arbitrator having been recorded as stating that he was to “go off the record”. No subsequent resumption of proceedings took place, it seems, before issue of the Certificate of Determination.

RELEVANT LEGISLATION

The Arbitrator’s determination concerned the application of ss 4, 9A and 38 of the 1987 Act as that legislation stood prior to the 2012 amendments to the legislation. Those sections provided:
“4Definition of ‘injury’
(cf former s 6 (1))
In this Act:
injury:
(a)  means personal injury arising out of or in the course of employment,
(b)  includes:
(i)  a disease which is contracted by a worker in the course of employment and to which the employment was a contributing factor, and
(ii)  the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration, and
(c)   does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.
9ANo compensation payable unless employment substantial contributing factor to injury
(1) No compensation is payable under this Act in respect of an injury unless the employment concerned was a substantial contributing factor to the injury.
(2) The following are examples of matters to be taken into account for the purposes of determining whether a worker’s employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination):
(a)  the time and place of the injury,
(b) the nature of the work performed and the particular tasks of that work,
(c) the duration of the employment,
(d) the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment,
(e) the worker’s state of health before the injury and the existence of any hereditary risks,
(f)  the worker’s lifestyle and his or her activities outside the workplace.
(3)     A worker’s employment is not to be regarded as a substantial contributing factor to a worker’s injury merely because of either or both of the following:
(a) the injury arose out of or in the course of, or arose both out of and in the course of, the worker’s employment,
(b)  the worker’s incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or workplace rehabilitation service as referred to in Division 3 of Part 3, or the worker’s death, resulted from the injury.
(4)    This section does not apply in respect of an injury to which section 10, 11 or 12 applies.
38Partially incapacitated workers not suitably employed—special initial payments while seeking employment
(1)     Entitlement
If:
(a)a worker is partially incapacitated for work as a result of an injury, and
(b)  the worker is not suitably employed during any period of that partial incapacity for work,
the worker is to be compensated in accordance with this section during each such period as if the worker’s incapacity for work were total.
(2)     Maximum period of entitlement
The maximum total period for which the worker may be so compensated is 52 weeks.
(3)     Rate of compensation
When a worker is so compensated, the compensation is payable at the relevant rate prescribed by this Act for the period of incapacity concerned. However, after the first 26 weeks of incapacity, the rate is the greater of the following rates:
(a)  80% of the worker’s current weekly wage rate (that is, 80% of the rate prescribed by this Act for the first 26 weeks of incapacity),
(b)  the statutory indexed rate (that is, the rate prescribed by this Act for a period of incapacity after the first 26 weeks).
(4)     Worker to seek suitable employment
Compensation is not payable to a worker in accordance with this section during any period unless the worker is seeking suitable employment during that period (as determined in accordance with section 38A).”

SUBMISSIONS ON APPEAL, DISCUSSION AND FINDINGS

Whilst the appellant enumerates eight separate grounds of appeal, it is clear that the fundamental challenges concern the Arbitrator’s findings of injury, incapacity and his finding as to the application of s 9A.
Ground 6(i) suggests error “in finding that [Mr Harrison] suffered injury within the meaning of s 4(b) (i) [sic] of the 1987 Act”. It is apparent that the appellant has mistakenly referred to s 4(b)(i). Mr Harrison had placed reliance upon s 4(b)(ii) in that he alleged that his incapacity resulted from aggravation of the pre-existing degenerative condition affecting his cervical spine. Whilst the Arbitrator made no express reference to the section of the Act relevant to his finding of injury, it is clear that the injury found concerned such an aggravation.
The relevant aggravation, as found by the Arbitrator, appears to concern the circumstances prevailing on 27 May 2010 (noted at [6] above), the nature of his duties from 2007 and, more particularly, operation of the Glutton machine (T53, T55 and & T56). Those findings are encapsulated in paragraph [2] of the Certificate of Determination.

The appellant relied upon Raulston v Toll Pty Ltd [2011] NSWWCCPD 25 to argue that:
“the preponderance of the evidence was so overwhelmingly contrary to the findings made by the Arbitrator and that, in reaching the conclusions he did, the Arbitrator gave undue weight to some aspects of the evidence and too little weight to other aspects of the evidence, leading him to conclusions which were erroneous.” (submissions on appeal at [7])
The appellant, following a helpful analysis of the evidence and the manner in which Mr Harrison’s case was presented before the Arbitrator, suggests that any symptoms experienced by reason of work conditions prior to taking up work on the Glutton machine have no relevance to the incapacity as found by the Arbitrator. Whilst the appellant is incorrect to submit that no allegation of injury to the arm or elbow was made (refer Application to Resolve a Dispute, Part 4) it is correct in submitting that Mr Harrison had recovered from any “aggravation” that may have occurred causing incapacity prior to commencement of work on the Glutton machine. The relevance of the arm and elbow symptoms, having regard to the evidence of Dr New, appears, in my view, to be that such symptoms are in some unexplained manner associated with the aggravation of the degenerative condition of the neck caused by work on that machine.
Given the manner in which the Arbitrator has expressed his reasoning, it is unclear as to whether a finding was made that the incapacity as found following November 2011 was, in part, causally related to work performed before Mr Harrison commenced work on the Glutton machine. That deficiency in the reasons as expressed demonstrates, in my view, that the Arbitrator has failed, as he is obliged, to state adequate reasons for his determination of the dispute (cf Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 per Meagher JA at 443).
In the circumstances, I find on this appeal that ground 6(viii), which asserts error in failing to give such reasons, must be upheld. Such finding on appeal does not inevitably lead to remitter for fresh hearing: s 352(7) of the 1998 Act. In the present circumstances, I consider it appropriate that a determination as to whether any relevant error is otherwise made out may be made on this appeal.
Returning to the challenge to the finding of injury, the Arbitrator has placed reliance upon the evidence of Dr Misra as found in his Workcover NSW medical certificates dated 20 March 2012, 27 April 2012 and 19 June 2012. The evidence of Dr New was also accepted by the Arbitrator as establishing injury by way of aggravation of “underlying condition” by work on the Glutton machine (T55).
It is clear, as argued by the appellant, that Mr Harrison’s only allegation of injury is that his degenerative cervical spine had been aggravated by work he performed. Such aggravation had, on his case, occurred on a number of occasions and on each such occasion, including the November 2011 aggravation, had subsequently settled. This undisputed fact has led the appellant to characterise the nature of the injury alleged as one of “symptomatic aggravation”. I accept the appellant’s submission concerning the manner in which the claim was presented before the Arbitrator as found at [12] of submissions as follows:
“At no point did the worker submit and, more importantly, there is no medical evidence which establishes, that the constitutional degenerative condition of the worker’s neck, noting that he is 62 years of age, was accelerated or otherwise permanently aggravated or deteriorated by his employment with the Appellant. Rather, the case apparently put by the worker was that his work caused a symptomatic exacerbation of the underlying constitutional condition as distinct from having any impact on the underlying pathology or its progression.”
The appellant, very properly in my view, concedes that an “aggravation” injury may be made out when all that is demonstrated is that a disease suffered by a worker is made “more grave, more grievous or serious in its effects upon the patient”. That concession is founded upon matters stated by the High Court in Federal Broom Company Pty Ltd v Semlitch [1964] HCA 34; 110 CLR 626 (Semlitch). Subsequent authority established that there is relevant “aggravation” or “exacerbation” of a disease if, as a result of work, the symptoms become more serious to the sufferer of the disease (see discussion by Burke J in Cant v Catholic Schools Office [2000] NSWCC 37; 20 NSWWCCR 88).
The appellant argues that the neck symptoms experienced by Mr Harrison in November 2011 represented “manifestation not causation, revelation not genesis” in the sense discussed by Windeyer J in Darling Island Stevedoring and Lighterage Co Ltd v Hussey [1959] HCA 55; 102 CLR 482. It is accepted by the appellant that the question as to whether, in the present circumstances, there has been a relevant aggravation is one of fact (submissions at [19]).
Relevant authority is cited by the appellant in support of the proposition that a worker with such a degenerative condition who experiences pain when carrying out work may not, on the evidence, be found to have suffered a relevant aggravation.
The Arbitrator’s reasoning concerning the finding of injury is stated in submissions to be “by no means clear” in that he has referred to evidence, when reaching his conclusion as to the occurrence of injury, which suggests that, by reason of Mr Harrison’s pre-existing condition, certain work activities should be avoided.
The thrust of the appellant’s argument (found at submission [25]) is that the preponderance of the evidence establishes no more than that Mr Harrison suffers a constitutional condition, that certain activities should be avoided, and that any symptoms experienced by him demonstrate no more than the existence of that condition and that there has been no relevant aggravation.
The evidence specifically cited in support of that argument is that of Dr Miniter, Dr Abeyaratne, Dr Harvey-Sutton, and Dr Price (in his report reproduced by Dr Harvey-Sutton in her report).
The state of the evidence in support of Mr Harrison’s allegation of “aggravation” is less than satisfactory. Support may be gleaned from the evidence of Dr New and from the contents of the medical certificates issued by Dr Misra. Mr Harrison had been referred to Dr New by Dr Misra in 2011 by reason of the onset of symptoms including neck discomfort and left arm pain down to his elbow (Dr New’s report of 14 December 2011).
In his report, Dr New expressed his “confusion” having been advised that Mr Harrison’s circumstances, investigated by a doctor on behalf of the appellant, had not been treated as a “workers compensation claim”. Whilst the manner in which Dr New expressed his opinion is less than plain, it is tolerably clear that he disagreed with the proposition that this is “not a workers compensation claim” as “this appears to be an exacerbation of a pre-existing condition”. It is also tolerably clear that Dr New, in his report, treats the “significant left arm pain” as being associated with such “exacerbation” given the statement at the foot of the report that:
“[i]t would be my contention that it is this change in duties [to the Glutton machine] from the history taken that has resulted in the left arm pain noting his pre-existing complaint.”
The earliest certificate issued by Dr Misra which is in evidence is dated 21 January 2012. That document is not a Workcover medical certificate, but is in the following terms:
“THIS IS TO CERTIFY that
I [sic] Employee of Parramatta council started using industrial vacuum cleaner in September/October 2011. He slowly started developing pain in R shoulder and elbow. Many times he told supervisor and kept on working as told. On 27/10/11 he complained to Mr Peter Sims again and he informed the patient is required to work on that machine.
On 2/11/11 Glutton ran over the R heel causing pain and bruising.
Exam on 20/01/12 still there is small bruise on the medial side of R tendoachillis.
Patient has been referred to Specialist Dr Charles New for opinion and investigation.
21/01/12.”
The Workcover medical certificates in evidence are dated 20 March 2012, 24 April 2012 and 19 June 2012. The form of those certificates complies with the detail found in Appendix 1 to Workcover’s “Medical Practitioners Guide to Workcover” (undated) which, as stated in that document, had been produced to provide information to medical practitioners “about the injury management system in NSW”. That guide includes the following statement of the role of medical practitioners:
“Medical certification outlining [the practitioner’s] diagnosis, management plan, opinion on whether injury is work related and [the patient’s] capacity for work. This is an important document for ensuring a worker receives their due entitlements and for ensuring return to work or treatment is not delayed.”
Specifically concerning medical certificates the guide states: “[a] properly completed medical certificate should be sufficient evidence to commence payment of weekly benefits and approve[d] medical expenses [for the patient]”.
The certificates in evidence each contain considerable detail and I observe that such detail is not always to be found in certificates issued by treating practitioners. Each certificate notes the “date of injury” as being 18 November 2011 (wrongly stated to be 2012 in the March 2012 certificate). The “diagnosis” is stated as:
“increasing pain in R elbow and R shoulder following use of Glutton industrial cleaner, complained to Mr Simms on 19 October 2011, complained again on 27 October 2011, also saw new industrial Safety Officer on 8 November 2011. Also pain in right neck.”
Those certificates include the following concerning “management plan”:
“Dr Mahina Abeyaratne report recommends suitable working. I agree with this plan of work and recommend him to work with [sic] the recommended plan.”
The first certificate stated that “as from 21 March 2012, Mr Harrison was ‘fit for suitable duties’”.
It is put by the appellant (at [31] of submissions) that “… the evidence produced by the worker was not sufficient to discharge the onus of proof which rests upon him, and that the Arbitrator’s findings in relation to ‘injury’ were erroneous”. As earlier noted, the Arbitrator’s conclusion concerning injury is founded upon his acceptance of the evidence of Dr New and, in particular, the content of Dr Misra’s certificates. The appellant argues that such evidence carries little or no weight. It is put that Dr Misra’s statement found in the certificates concerning capacity for work should be characterised as no more than a “bare ipse dixit” as was discussed by Heydon, JA (as he then was) in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705. The appellant also relies upon the decision of the Court of Appeal in South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16; 4 DDCR 421 in support of its argument that such evidence should have no weight.
Notwithstanding the shortcomings found in the evidence of Dr New and Dr Misra, it is clear that each of those expert witnesses had taken into account the onset of symptoms following performance of work involving the Glutton machine. Both of the experts were of the opinion that those symptoms prevented Mr Harrison from performing all the duties required of him.
The Arbitrator’s conclusion as to the occurrence of injury should not, in my view, be disturbed on this appeal. The evidence of Dr New and Dr Misra permits such a conclusion and the question as to the weight to be ascribed to that evidence is one for the Commission. Ground 6(i) must be rejected.

Section 9A

It is argued that the evidence before the Arbitrator does not establish “that s 9A had been satisfied”. It is noted by the appellant that the only expert medical evidence concerning the question as to whether employment was a substantial contributing factor to injury was that of Dr Price who expressly stated that Mr Harrison’s work “as part of the cleansing team is not a substantial contributing factor to any aggravation or flare up of his condition”. It is also argued that such a view may be inferred from the evidence of Dr Harvey-Sutton.
The appellant’s arguments must be rejected. The evidence of Dr New and Dr Misra clearly implicates the performance of work on the Glutton machine as being causative of the appearance of the symptoms described. Acceptance of such evidence inevitably leads to a conclusion that the injury is causally related to the employment. Those duties were the only factor giving rise to the disabling symptoms, thus it follows that employment was a substantial contributing factor to the injury being aggravation of the underlying degenerative cervical condition. Ground 6(ii) is rejected.

Incapacity

Ground 6(iii) and 6(iv) challenge the Arbitrator’s findings that Mr Harrison was partially incapacitated and that such incapacity persisted “beyond 2 February 2012, or alternatively at the latest 15 February 2012”. I accept the appellant’s argument that the present facts concern “symptomatic aggravation”, that is aggravation of the underlying degenerative condition giving rise, not to a worsening or deterioration of that condition, but rather, as considered in Semlitch, that the consequences of the condition have become more serious. Any resulting incapacity would come to an end once such exacerbation of symptoms ceased.
On the present facts, the symptoms which prevented Mr Harrison from performing his duties on the Glutton machine involved pain in his elbow and shoulder/arm and perhaps a worsening of neck pain. The evidence, as argued on behalf of the appellant, suggests that those symptoms had resolved earlier than, as it seems was found by the Arbitrator, the date of his return to work on 9 May 2012.
Mr Harrison had been examined by Dr Saafan on behalf of the appellant in July 2007 following aggravation of his neck symptoms whilst carrying out work involving repetitive movements. Ms Vicki Tillott, occupational therapist, in her assessment report, made on 6 August 2007, had recorded that Mr Harrison was, in Dr Saafan’s opinion, “fit for permanently modified duties with the restriction of non-repetitive [sic] tasks”. Dr Saafan advised against duties involving “high repetition of neck rotation”.
The evidence establishes that Dr Saafan’s precautionary approach had been disregarded when Mr Harrison was required to work using the Glutton machine. The evidence also establishes that the disabling symptoms, that is, pain in the elbow and shoulder, had “recovered” as at the date of Dr Abeyaratne’s examination of Mr Harrison recorded in his report dated 2 February 2012. The cessation of those symptoms as noted in Dr Abeyaratne’s report demonstrates, as argued by the appellant, that any incapacitating consequences of the work on the Glutton machine had come to an end.
I reject the submission put by Mr Harrison that the “tenor” of the appellant’s correspondence dated 28 November 2011 and the “absence of any evidence with respect to efforts made to return [Mr Harrison] to employment” demonstrate that “it was clear that the incapacity extended through to the end of the period claim [sic] by the final certificate issued by [Dr Misra]”. I note that the latest certificate is dated 19 June 2012, some weeks after Mr Harrison’s return to work. That certificate states that Mr Harrison is fit for pre-injury duties from 20 June 2012. I find on this appeal that the earlier certification by Dr Misra that Mr Harrison was fit for suitable duties reflected, not the persistence of relevant symptoms, but rather a need, as perceived by Dr Saafan in 2007, to restrict the duties of Mr Harrison with a view to avoidance of aggravation of his condition.
It follows that, in so far as it appears that the Arbitrator has found incapacity up to 8 May 2012, such conclusion was reached in error. I find that relevant incapacity resulted from the work operating the Glutton machine and that Mr Harrison remained so incapacitated between 28 November 2011 and 2 February 2012.

Suggested error “in taking into account matters of little or no relevance”

This complaint, found in ground 6(vi), suggests error of fact and law in that the Arbitrator had been “influenced by an adverse and unfounded perception that the conduct of the appellant and the insurer towards [Mr Harrison] was unfair”. Reference is made to the observations made by the Arbitrator between T52.20-34 and T27.20-28 (sic T57.20-28). Those observations concern the Arbitrator’s view of the appellant’s letter dated 28 November 2011 suspending Mr Harrison and his view of the insurer’s response to the claim.
The appellant’s suggestion of relevant error must be rejected. The Arbitrator’s observations, whilst to some extent being critical of the conduct of both the appellant and its insurer, cannot be perceived, in my view, as being matters which have been incorrectly taken into account by him when determining the merits of the application. I have earlier expressed my view that the appellant had apparently disregarded the views of Dr Saafan when Mr Harrison was required to work on the Glutton machine in 2011. Both the appellant and its insurer appear, as perceived by the Arbitrator, to have disregarded the apparent difficulty experienced by Mr Harrison at that time. I am not persuaded that the Arbitrator’s observations concerning these matters demonstrate that irrelevant matters have been taken into account leading to relevant error. Ground 6(vi) fails.

CONCLUSION

I have found that the reasons as expressed by the Arbitrator have given rise to doubt as to the basis upon which he has made findings of injury and incapacity. Such failure constitutes error in that he has failed to provide adequate reasons for his decision. I have found on this appeal that the Arbitrator’s finding as to injury should not be revoked, but that his finding as to incapacity, as seems to have been made, requires amendment on this appeal. Appropriate orders appear below.
The Arbitrator’s failure to make orders as to Mr Harrison’s weekly entitlement to compensation constitutes error and must be corrected on this appeal. The parties have agreed that the relevant current weekly wage rate is $952.19. The Arbitrator’s finding concerning the appellant’s failure to provide suitable employment during partial incapacity is to be confirmed. Orders as to Mr Harrison’s entitlement to weekly benefits appear below.

DECISION

Paragraphs 1, 2, 4, 5 and 6 of the Certificate of Determination (undated) which was issued following the hearing on 23 September 2013 are confirmed.
Paragraph 3 of the Certificate of Determination is revoked and the following findings and order are made:
“the applicant was, as a result of the injury, partially incapacitated for work between 28 November 2011 and 2 February 2012. The respondent failed to provide the applicant with suitable employment during that period. An award is made in favour of the applicant pursuant to s 38 of the Workers Compensation Act 1987 at the rate of $952.19 per week from 28 November 2011 to 2 February 2012.”

COSTS

Mr Harrison has successfully opposed the appeal concerning his receipt of injury and entitlement to weekly compensation, albeit in respect of a period shorter than that found by the Arbitrator. In the circumstances it is appropriate that an order be made that the appellant pay Mr Harrison’s costs of the appeal

Kevin O'Grady
Deputy President

21 January 2014

I, KATHRYN CAMP, 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