Director General of Education and Training v Pomeroy
[2007] NSWWCCPD 56
•20 February 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Director General of Education and Training v Pomeroy [2007] NSWWCCPD 56
APPELLANT: Director General of Education and Training
RESPONDENT: Amanda Jane Louise Pomeroy
INSURER:NSW Treasury Managed Fund (IMC)
FILE NUMBER: WCC7544-05
DATE OF ARBITRATOR’S DECISION: 9 February 2006
DATE OF APPEAL DECISION: 20 February 2007
SUBJECT MATTER OF DECISION: Weight of evidence; causation and shifting evidentiary onus.
PRESIDENTIAL MEMBER: Acting Deputy President Robert Harrington
HEARING:On the papers
REPRESENTATION: Appellant: Moray and Agnew Solicitors
Respondent: MacMahon Associates
ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 9 February 2006 is confirmed.
The Appellant (Department of Education) to pay the Respondent’s (Ms Pomeroy’s) costs of the appeal.
BACKGROUND TO THE APPEAL
On 9 March 2006 the Director General of Education and Training (‘Department of Education’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 9 February 2006.
The Respondent to the Appeal is Amanda Jane Louise Pomeroy (‘Ms Pomeroy’).
Ms Pomeroy was born on 22 September 1955. According to the medical history, she has been a teacher since 1981, initially a class teacher and then as the assistant principal.
Ms Pomeroy has since approximately 1982 been working at the Niland SSP school in Blackett. The school caters for children with learning disabilities and emotionally disturbed children.
On 13 March 2003 whilst attempting to restrain a violent student Ms Pomeroy sustained injuries to her back and neck.
The Department of Education initially accepted liability in respect Ms Pomeroy’s injuries and paid Ms Pomeroy weekly compensation and medical expenses.
The Department of Education arranged for Ms Pomeroy to be examined by Dr Christine Harris (occupational physician) on 6 September 2004. Based on Dr Harris’s opinion, the Department of Education denied liability in respect to Ms Pomeroy’s injuries beyond 28 September 2004.
On 19 May 2005 Ms Pomeroy filed in the Commission an Application to Resolve a Dispute (‘Application’). Ms Pomeroy claimed continuing weekly compensation payments from 12 October 2004, together with medical hospital or related expenses together with lump sum compensation.
Ms Pomeroy’s claim for lump sum compensation was the subject of a referral to an Approved Medical Specialist (‘AMS’). The AMS issued a Medical Assessment Certificate (‘MAC’) dated 12 September 2005 which certified that Ms Pomeroy had a 0% Whole Person Impairment (‘WPI’) in respect of her injuries.
Ms Pomeroy’s claim came before a Commission Arbitrator on 9 February 2006. Ms Pomeroy gave evidence and was not cross-examined. The Arbitrator delivered his decision on 9 February 2006.
Ms Pomeroy was successful in her claim. The Department of Education, seeks leave to appeal the Arbitrator’s decision.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 9 February 2006 records the Arbitrator’s orders as follows:
“1. Respondent pay the Applicant weekly compensation for the period 12 October 2004 to date pursuant to section 40 of the 1987 Act and thereafter in accordance with the 1987 Act.
2. Respondent pay the Applicant’s medical expenses pursuant to section 60 of the 1987 Act.
3. Respondent pay the Applicant’s cost as agreed or assessed.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are:
· whether the Arbitrator based his decision on logical and probative evidence;
· whether the Arbitrator placed sufficient weight on the Department of Education’s
evidence, and
· whether the Arbitrator misdirected himself in respect to the test of causation.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the parties 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.
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.
The appeal concerns the entirety of Ms Pomeroy’s entitlement to compensation and the various claims exceed $5,000 in value; as such the requirements of section 352 (2) (a) and (b) of the 1998 Act are satisfied.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
Leave to appeal is granted.
EVIDENCE AND SUBMISSIONS
Evidence
There is very little factual dispute between the parties. The agreed or not contested facts can be distilled as follows:
1. Ms Pomeroy sustained an injury to her neck and back on 13 March 2003 when she was attempting to restrain a student who was fighting with another student.
2. Liability was accepted by the Department of Education. Ms Pomeroy was paid weekly compensation payments and her medical expenses were met until liability was denied on 28 September 2004.
3. Ms Pomeroy had degenerative changes in her neck and back prior to her work injury and her work injury consisted of an aggravation of those degenerative changes.
4. Ms Pomeroy continues to be at least partially incapacitated for work. The Department of Education asserts that that partial incapacity relates to the degenerative changes rather than any work aggravation of the degenerative changes in her neck and back.
The only issue left between the parties is whether Ms Pomeroy’s continuing incapacity relates to the work aggravation of the underlying degenerative condition of her neck and back or whether it relates to the pre-existing degenerative condition solely.
Submissions
The Department of Education’s submissions on appeal are as follows:
1. The Arbitrator erred in law in finding that the incapacity alleged arose as a consequence of the injury found to have occurred on 13 March 2003.
2. The Arbitrator failed to base his decision on logical, probative evidence in that he:
(a)gave insufficient weight to the expert evidence of the AMS, Dr Lowy, as contained in his medical assessment certificate dated 12 September 2005, Dr Bornstein, orthopaedic surgeon, dated 15 April 2005 and Dr Harris dated 6 September 2004;
(b)based his findings on an incorrect assumption with respect to the facts, describing incapacity to a back injury in circumstances where the worker’s main complaint related to the neck, and
(c)based his findings on an incorrect assumption with respect to the facts, accepting no prior complaints, but ignoring previous treatment and histories.
Ms Pomeroy’s submissions on appeal are as follows:
1. An appeal is not a hearing de novo. The Department Of Education has failed to identify any legal, factual or discretionary error in respect to the Arbitrator’s decision.
2. The Department of Education’s assertion that the Arbitrator’s finding that Ms Pomeroy’s ongoing incapacity arose as consequence of the work injury was an error of law, is misconceived. At best the Arbitrator’s finding, if found to be erroneous, could only amount to an error of fact not law.
3. The relevant findings of the Arbitrator, which the Department of Education seeks to overturn on appeal, were not findings which raise issues of law. The findings were factual findings, which were open to the Arbitrator on the evidence.
The Arbitrator’s Decision
The Arbitrator having correctly identified the issues to be determined examined the lay evidence and medical evidence in detail. The Arbitrator made a specific finding that Ms Pomeroy was a truthful witness. He noted that Ms Pomeroy gave evidence and was not cross-examined.
In relation to the medical evidence the Arbitrator noted that on one side, Dr Harris and Dr Bornstein did not support Ms Pomeroy’s claim in respect of continuing work related incapacity and on the other side, Drs Kefalas, Casolin and Endry-Walder supported Ms Pomeroy’s claim. The Arbitrator, also considered the medical evidence of the AMS Dr Lowy, the Department of Education submits, that the AMS did not support Ms Pomeroy’s claim.
In respect of the medical issue the Arbitrator made the following relevant findings [32]:
“I preferred the opinion of Drs Kefalas, Casolin and Endry-Walder as to incapacity in a range of dates for the period immediately after injury to October 2004 (Dr Casolin) and up to recent times (Drs Kefalas and Endry-Walder). There is consistency of the Applicant’s complaints of pain and symptoms, which on the Applicant’s case, not rebutted by the Respondent’s case, relate to the injury in March 2003.”
Earlier in his decision the Arbitrator said the following in respect of the Department of Education’s medical evidence [30 – 31]:
“Interestingly, Dr Casolin disagrees in October 2004 with Dr Harris’s assessment in September 2004 that the Applicant could return to pre- injury duties. This is within a close timeframe, and I am surprised that Dr Harris’s view is so different from Dr Casolin. I prefer Dr Casolin’s conservative view given the more expansive history, and focus on injury and pain management at that time.
Dr Bornstein presents the stronger case for the Respondent, although he seems reluctant to provide a prognosis for the worker in his report. I find that perplexing, and it does not advance the Respondent’s case. He certainly finds no pathology linking injury to employment.”
DISCUSSION AND FINDINGS
Review
The nature of a review and the role and function of a Presidential member on appeal has been considered in many cases in the Commission. In The King Island Company Limited v Deery [2005] NSWWCCPD 1 it was held at [19]:
“19. A Presidential Member on appeal has a specific and limited role in the review of a decision of an Arbitrator. The review is not a rehearing. The Presidential member is not dealing with the matter de novo and is not arriving at a fresh decision based on all of the evidence available at a later time (Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616). The powers of the Presidential Member to revoke the decision pursuant to section 352(7) of the 1998 Act and to substitute a new decision in its place, are exercisable only where it is demonstrated that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172). Alternatively, the Presidential Member may remit the matter back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions made.”
Before an Arbitrator’s decision will be revoked on review it must be demonstrated that it contains or has resulted from an error of fact, law or discretion. The error must be such that, but for it, a different decision should have been made (see Snow Confectionary Pty Ltd v Askin [2004] NSWWCCPD 56; Section 294 of the 1998 Act; YG & GG v Minister for Community Services [2002] NSWCA 247; Absolon v NSW TAFE [1999] NSWCA 311).
The Department of Education’s contentions on appeal, must be considered within the parameters governing appeals, set by the 1998 Act as applied in these decisions.
The gravamen of the Department of Education’s complaints about the Arbitrator’s decision, as I understand it, is that the medical evidence against Ms Pomeroy’s claim should have been preferred by the Arbitrator over the medical evidence which supported Ms Pomeroy’s claim. It would seem to me that the driving force behind the Department of Education’s submissions in this regard, is their reliance on AMS, Dr Lowy’s opinion. On one view of Dr Lowy’s certificate/report he rejects any relationship between Ms Pomeroy’s work injury and her continuing incapacity. For reasons set out below, it is my opinion, that Dr Lowy’s opinion as to the causation of Ms Pomeroy’s continuing incapacity is not so clear.
Before considering Dr Lowry’s MAC, the status of the certificate must be considered. The status of a MAC and whether it binds the Commission in respect of issues of causation has now been dealt with in a number of Presidential decisions. For example the question was considered by Roche ADP, in Connor v Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2006] NSWWCCPD 124 (‘Connor’). In that decision the Deputy President said the following in relation to the status of a MAC [51- 52]:
“This section (section 293) makes it clear that the ‘determination of the dispute’ is to be made by the Commission not by an AMS or an Appeal Panel. That determination can only be made after considering all the evidence relevant to all issues touching on liability. The Commission has “exclusive jurisdiction to examine, hear and determine all matters arising under this Act and the 1987 Act” (see section 105 of the 1998 Act) (emphasis added). To find that the Commission is bound to make an award in the terms of a MAC before all liability issues have been determined would be to strip the Commission of its exclusive jurisdiction to determine all matters arising under the relevant legislation.
Whilst the arbitrator was entitled to have regard to the MAC (including the reasons in the MAC) in determining the injury and causation questions, that is, in determining whether the Appellant Worker’s claimed incapacity and impairment resulted from the incident on 2 March 1998 or from some other non-work related event or circumstance, she was not bound to make an award in the terms of the MAC if in her opinion the Appellant Worker had not sustained a compensable injury within the terms of the legislation and consistent with the relevant legal authorities.”
The authorities make it clear that the AMS’s MAC is only binding on the Commission with respect to the assessment of whole person impairment. In respect to issues of causation and incapacity the MAC should be scrutinised and given the same weight as any other relevant medical evidence, which is before the Commission.
Relevant to this appeal, Dr Lowy’s diagnosis and opinion contained on page 9 of the MAC was as follows:-
“Ms Pomeroy is experiencing non-specific dorsal pain and stiffness which she attributes to her workplace injuries, the first of which was in March 2003. Clinical examinations recorded in the file, and at today’s examination are consistent with some strain/contusion to the dorsal aspect of her body; involving her neck and back.
Imaging studies demonstrate degenerative changes in her cervical spine, thoracic spine and lumbar spine. These changes are consistent with her chronic symptoms.
However importantly there are no symptoms or signs of radiculopathy in any of her four limbs. Neurological examination has been normal as recorded by Dr Kefals, Dr Ganora and myself today.
The diagnosis is symptomatic multi-level spondylosis (affecting all three regions of her spine).
Ms Pomeroy’s clinical presentation is consistent. There is no embellishment of pain or behaviour.
I consider Ms Pomeroy’s spondylolosis arises out of constitutional factors, but not attributed to her work or the incidents at the school. [Including March 2003]”
Dr Lowy’s opinion in respect of the pre-existing spondylosis (degenerative changes in Ms Pomeroy’s back and neck) is consistent with all of the medical evidence, which was placed before the Commission in relation to this matter. The real issue, vis-à-vis causation is not whether Ms Pomeroy had pre-existing spondylosis or degenerative changes but whether those changes were aggravated and made symptomatic by the work injury. It is my opinion that the AMS, Dr Lowy does not address this issue, or, if he does, his opinion is equivocal. The doctor accepts Ms Pomeroy is a truthful person who does not embellish. He therefore accepts her history that she was pain free prior to the injury and has had continuing pain following the injury. He also accepts that “Clinical examination…at today’s examination are consistent with some strain/contusion to the dorsal aspect of the body; involving the neck and back.” It would seem to me, therefore, that Dr Lowy’s MAC in respect to the issue of the causation of Ms Pomeroy’s ongoing incapacity is, as between the parties, neutral as it does not address the relevant issue as to causation or alternatively to give some support to Ms Pomeroy’s contention that her continuing symptoms are explained by ‘a strain/contusion to the dorsal aspect of her body, superimposed upon multilevel spondylosis.
Before considering the other medical evidence that the Department of Education relies upon, it is necessary to consider the relevant legal framework within which the evidence should be assessed. The following three cases, Murray v Shillingsworth [2006] NSWCA 367 (‘Murray’), Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705(‘Makita’) and Watts v Rake (1960) 108 CLR 158 (‘Watts’) provide some assistance in the evaluation of the conflicting medical evidence as to causation.
Murray is a recent decision of the Court of Appeal dealing with section 9A of the Workers Compensation Act 1987 (‘the 1987 Act’). The worker in that case was disabled as a result of a massive cerebral haemorrhage (stroke). It was common ground that the cerebral haemorrhage could not have occurred in the absence of a significant pre-existing condition. Although the court was considering issues in respect of Section 9A the decision is pertinent in respect of issues as to causation. Relevantly Einstein J said in response to a submission by the employer’s counsel, that the worker must establish that the work injury substantially contributed to the underlying pre-existing disease rather than substantial contribution to the aggravation of the underlying disease, the following [63-64]:-
“These submissions are misconceived. They fail to recognise that in the circumstance concerning an integer dealt with by s 4(b) (ii) [such as an aggravation of a disease] the only compensation is for the effect of the aggravation and not for the effect of the original non - aggravated disease.
His Honour approached the question of construction upon the basis that the case was put as an acceleration or aggravation or deterioration of a pre-existing atherosclerotic condition in which the substantial contributing factor had to relate to the acceleration or aggravation, and not to the underlying condition. There was no error in this approach. The fact that the work-caused dehydration was sufficient to "tip the balance" and was on the evidence, found to satisfy the requirement that it be shown that the employment concerned was a substantial contributing factor to the injury.”
In Makita Heydon JA examined the role, and the requirements of an expert witness when providing assistance to a court or tribunal of fact. Heydon JA quoted with approval the dicta of Lord President Cooper:
“In Davie v The Lord Provost, Magistrates and Councilors of the City of Edinburgh 1953 SC 34 at 39-40, Lord President Cooper, in a case concerning liability for damage to dwelling houses allegedly caused by blasting operations in the course of constructing a sewer, said:
‘…Their duty is to furnish the Judge or jury with the necessary scientific criteria for testing the accuracy of their conclusions, so as to enable the Judge or jury to form their own independent judgment by the application of these criteria to the facts proved in evidence. The scientific opinion evidence, if intelligible, convincing and tested, becomes a factor (and often an important factor) for consideration along with the whole other evidence in the case, but the decision is for the Judge or jury. In particular the bare ipse dixit of a scientist, however eminent, upon the issue in controversy, will normally carry little weight, for it cannot be tested by cross-examination nor independently appraised, and the parties have invoked the decision of a judicial tribunal and not an oracular pronouncement by an expert.’”
In Watts the High Court was called upon to consider the shifting evidentiary burden in respect of the plaintiff’s claim for damages, in a situation where his injuries were more significant because of a pre-existing condition. Although the claim in Watts’ was a claim for damages the principles in Watts were considered in respect of a workers compensation claim by the Court of Appeal in Archer v Richard Crookes Construction Pty Ltd (1997) 15 NSWCCR 297 (‘Archer’). Although on the facts of Archer’s case, the Court of Appeal did not consider it appropriate to apply the Watts’s principles, it is clear from the decision that the court was of the opinion that in the appropriate case, the Watts’ principles were relevant to a statutory claim for compensation under the1987 Act. The undisputed facts in respect of Ms Pomeroy’s injury and claim, clearly falls within the “presumptio hominis” (natural presumption) referred to in Watts. As Menzies J explained the rule at [8]:
“Prima facie, where a plaintiff was in apparent good health before an accident and is in bad health thereafter, the change would be regarded as a consequence of the accident and it is for the defendant to prove that there is some other explanation for it, eg, that the plaintiff has aggravated his condition by some unreasonable act or omission.”
Ms Pomeroy sustained an injury to her back and neck, the injury being an aggravation of her underlying degenerative condition. The evidence established, and the Arbitrator accepted that prior to the injury of 13 March 2003 Ms Pomeroy‘s back and neck were asymptomatic. The Department of Education accepted the occurrence of the injury. The Department of Education accepted that as a result of the injury Ms Pomeroy was incapacitated for over year and a half before denying liability. Ms Pomeroy’s uncontradicted evidence was of continuing symptoms and partial incapacity for work following the injury of 13 March 2003. Further Ms Pomeroy had support, from medical experts, that the continuing incapacity resulted from the effects of the work injury. Ms Pomeroy medical expert’s consisted of Dr Endrey-Walder (surgeon), Dr Casolin (rehabilitation provider) Dr Ganora (consultant in Rehabilitation Medicine). In those circumstances, it was incumbent upon the Department of Education to provide clear, expert medical evidence that explained its contention that, one and a half years after Ms Pomeroy’s injury the effects of the injury ceased, and her ongoing symptomatology was caused by the underlying degenerative changes in her neck and back.
Dr Christine Harris (consultant occupational physician), whose evidence the Department of Education relied upon relevantly, said in relation to the issue of causation.
“I feel that overall her condition is one of degenerative changes with age. There may have been a temporary aggravation due to the incident she described on the 13/3/2003. However, any aggravation following this incident has long ceased and ongoing symptomatology, I feel, is as a result of the underlying degenerative changes and probably a complex regional pain syndrome.”
The doctor’s opinion is inconsistent with the Department of Education accepting liability for over a year and a half. Additionally the doctor does not explain her opinion but only provides the ‘bare ipse dixit.’ Further the doctor’s diagnosis includes ‘a complex regional pain syndrome’. As I understand complex regional pain syndrome, it is a level of pain more excessive then would be expected, given the underlying pathology. This syndrome, is usually triggered by an injury. Given that the Department of Education, accepted for more than a year and a half that Ms Pomeroy’s pain and incapacity resulted from her work injury, it would seem more probable that the work injury caused the complex regional pain syndrome. In any event, the doctor does not provide any explanation as to the probable cause of the complex regional pain syndrome. It would seem to me, therefore that Dr Christine Harris’s evidence, falls short of the evidence which would be required of the Department of Education in discharging the Watts evidentiary onus and the evidence does not comply with what is expected of an expert witness under Makita’s principles.
The only other medical evidence relied upon by the Department of Education was the report of Dr Bornstein (orthopaedic surgeon), (15 April 2005) relevantly Dr Bornstein records:
“She presents as a disabled person who appears to be in significant discomfort but there has been no specific cause of the pain found. It is suggested for completeness that an MRI scan be carried out of her thoracic spine. I cannot advance the cause for her complaints and disability currently depends upon her statement of discomfort which I was unable to confirm by clinical examination.”
Later in the report, the doctor records:
“Diagnosis-I do not have a clinical diagnosis for her complaints of pain. Unfortunately the investigations, she has had to date, failed to reveal any evidence of pathology that would reasonably cause such pain.
Opinion of what caused condition-The patient attributes this to an incident where she fell whilst scuffling with a child during the course of her employment. She may have sustained a back strain at the time, but I really could not find any objective evidence to support this at the present time.”
Later in his report under ‘Prognosis’ the doctor records:
“It is not possible to give a prognosis in the absence of a diagnosis, and there is no diagnosis at this time.”
Dr Bornstein’s opinion, in essence is that he does not accept Ms Pomeroy’s complaints. The complaints, in his opinion, are disproportionate to any radiologically established pathology. For Dr Bornstein’s opinion to have any weight, Ms Pomeroy would have to be rejected as a witness of truth. No attack was made by the Department of Education on Ms Pomeroy’s credit and as I have already recorded the Arbitrator made a positive finding that Ms Pomeroy was a witness of credit. In those circumstances, in my opinion, Dr Bornstein provides little or no assistance to the Department of Education in discharging their evidentiary onus that the aggravating effects of the injury had ceased by October 2004.
The Arbitrator had evidence from Dr Endrey-Walder and Dr Casolin that the incapacitating effects of injury were continuing. The medical evidence together with the uncontested evidence of Ms Pomeroy attesting to the continuation of her neck and back symptoms, combined with the problems as set out above in respect of the Department of Education’s expert medical evidence dealing with the issue of causation in respect to Ms Pomeroy’s ongoing incapacity, establishes, in my opinion, that the Arbitrator’s decision in respect to the issue of causation contained no legal or factual error. I therefore reject grounds 1 and 2(a) of the Department of Education’s grounds of appeal.
The Department of Education, submitted that the Arbitrator erred in deciding that Ms Pomeroy’s neck and back was asymptomatic before the work injury. There is, in my opinion, no basis for this submission. Ms Pomeroy was not cross-examined. Her uncontradicted evidence was that she had no problems with her back or neck prior to the work injury. The Department of Education suggested an x-ray that was taken on 2 August 1999 of Ms Pomeroy’s cervical spine would establish earlier neck complaints. This assertion was never put to Ms Pomeroy. Further it is clear from the AMS’s report/certificate that the x-ray was taken in respect of a left shoulder complaint by Ms Pomeroy.
The final matter, which is raised by the Department of Education, was that the Arbitrator’s decision only refers to Ms Pomeroy’s back. The Department of Education submits that Ms Pomeroy’s main complaint was in respect of her neck, as such, the Arbitrator fell into error.
There was evidence before the Arbitrator, that Ms Pomeroy’s back complaints incapacitated her, as such, the Arbitrator’s ultimate finding that “the Applicant (Ms Pomeroy) was partially incapacitated for work as a result of her injuries from 12 October 2004 to date was open to him, and the Department of Education has not established any legal or factual error by the Arbitrator in respect of this finding.
The failure of the Arbitrator to refer to Ms Pomeroy’s neck, in some paragraphs of his decision headed ‘Findings and Reasons’ and ‘Summary’ would seem to be an oversight by the Arbitrator. Ms Pomeroy at all times maintained that she injured her neck and back. The Arbitrator found that she was a witness of truth. The Arbitrator accepted Ms Pomeroy’s medical experts who supported her contention that the continuing neck and back problems related to the work injury. The Department of Education, accepted, at least initially that Ms Pomeroy injured her neck and back. The claim at all times was disputed by the Department of Education, on the basis that the aggravating effects of the injury had ceased by October 2004 and this was rejected by the Arbitrator. The Department of Education, at no stage attempted, in their resistance of Ms Pomeroy’s claim, to differentiate between Ms Pomeroy’s neck and back. Given the Arbitrator’s acceptance of Ms Pomeroy’s evidence and the acceptance of her medical case the Arbitrator would have to have provided clear reasons if his ultimate finding was that Ms Pomeroy did not injure her neck or alternatively that the ongoing incapacity was not related in part to the neck injury and continuing symptoms coming from the neck. The Arbitrator gave no such reasons and he failed to make any finding in respect to Mrs Pomeroy’s claim vis-à-vis her neck. It follows therefore that whether the Arbitrator’s failure to include the neck in his ‘Summary’ and the ‘Findings and Reasons’ was an oversight or whether he deliberately excluded the neck then that deliberate exclusion or oversight would amount to a reviewable error on appeal. Firstly the Arbitrator’s failure to give any reason as to the exclusion of the neck would amount to a reviewable error and secondly; the Arbitrator’s exclusion of the neck injury, given the Arbitrator’s acceptance of Ms Pomeroy and her medical evidence would be against the weight of the evidence.
It is incumbent upon me, therefore, on appeal to make a formal finding that; Ms Pomeroy as a result of the work injury on 13 March 2003 suffered an injury to her neck and back and that her ongoing incapacity results from injury to her neck and back. This finding does not affect the Arbitrator’s ultimate determination, nor the Certificate of Determination dated 9 February 2006.
DECISION
The decision of the Arbitrator dated 9 February 2006 is confirmed
COSTS
The Appellant (Department of Education) to pay the Respondent’s (Ms Pomeroy’s) costs of the appeal.
Robert Harrington
Acting Deputy President
20 February 2007
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ROBERT HARRINGTON, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
2
8
0