Dizon v HPM Industries Pty Limited
[2010] NSWWCCPD 15
•18 February 2010
| WORKERS COMPENSATION COMMISSION | ||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||||
| STATUS: This decision has been the subject of a reconsideration in Dizon v HPM Industries Pty Limited (reconsideration) [2010] NSWWCCPD 23 | ||||||
| CITATION: | Dizon v HPM Industries Pty Limited [2010] NSWWCCPD 15 | |||||
| APPELLANT: | Josephine Dizon | |||||
| RESPONDENT: | HPM Industries Pty Limited | |||||
| INSURER: | Allianz Australia Workers Compensation (NSW) Limited | |||||
FILE NUMBER: ARBITRATOR: | A1-4386/09 Mr P Molony | |||||
| DATE OF ARBITRATOR’S DECISION: | 25 September 2009 | |||||
| DATE OF APPEAL DECISION: | 18 February 2010 | |||||
| SUBJECT MATTER OF DECISION: | Nature of ‘review’ pursuant to section 352 Workplace Injury Management and Workers Compensation Act 1998; application of Jones v Dunkel (1959) 101 CLR 298. | |||||
| PRESIDENTIAL MEMBER: | Acting Deputy President Snell | |||||
| HEARING: | On the papers | |||||
| REPRESENTATION: | Appellant: | Gerard Malouf & Partners | ||||
| Respondent: | Sparke Helmore | |||||
| ORDERS MADE ON APPEAL: | The decision of the Arbitrator dated 25 September 2009 is revoked, and the following decision is made in its place: (i) Award for the Appellant Worker in a sum of $116.24 per week from 10 November 2008 to date and continuing pursuant to section 40 of the 1987 Act. (ii) The Respondent Employer is to pay the Appellant Worker’s medical and related expenses pursuant to section 60 of the 1987 Act in respect of her neck and upper limbs. (iii) The matter is to be remitted to the Registrar for referral to an approved medical specialist, for assessment of whole person impairment resulting from the injury suffered by the Appellant Worker, due to the nature and conditions of her employment from 1996 to August 2006 (deemed date of injury August 2006), in respect of her cervical spine, right upper limb, and left upper limb. (iv) The approved medical specialist is to have access to the Application to Resolve a Dispute, the Reply, and the Applications to Admit Late Documents lodged 22 July 2009,18 August 2009 and 27 August 2009, including the material attached to those documents. (v) The Respondent Employer is to pay the Appellant Worker’s costs. | |||||
| The Respondent Employer is to pay the Appellant Worker’s costs of this appeal. | ||||||
BACKGROUND TO THE APPEAL
On 23 October 2009 Josephine Dizon (‘the Appellant Worker’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 25 September 2009.
The Respondent to the Appeal is HPM Industries Pty Limited (‘the Respondent Employer’).
The Appellant Worker is now forty-two years of age, and is right hand dominant. She is married without children. She was educated in her native country, the Philippines, where she attended college and obtained qualifications in marketing and finance. She worked in the Philippines as a bank teller, and as a clerk with a company run by her sister, before coming to Australia with her family in 1995. In the same year she commenced working with the Respondent Employer as a process worker at its factory premises at Alexandria. Her statement describes the duties as “extremely repetitive”.
The Appellant Worker states she commenced to suffer symptoms in the arms, shoulders and neck, more so on the right hand side, in approximately 1999, and reported the problem. She states she was then moved to another section of the factory, but the duties remained repetitive, and her symptoms continued. She consulted a general practitioner, Dr Lee, on one occasion and was told to use a cream. She states she then moved to a job in “inventory control” counting stock. She says this remained repetitive, and was also associated with data entry and computer work. From November 2000 to August 2006 she performed inventory control work, but also process work and store jobs. The store work involved lifting components weighing up to ten kilograms each. She states the pain levels increased.
The Appellant Worker consulted a general practitioner, Dr Regozo, on 7 June 2005. His certificate of that date gives a diagnosis of “repetitive strain injury to right arm/right shoulder with cervicobrachial pain and lateral epicondylitis”. It certified her unfit from 7 to 8 June 2005, and thereafter fit for six hours per day, five days per week, with restrictions on lifting, and rotational and above shoulder use of the right arm. She lodged a claim form dated 10 June 2005. It appears the Respondent Employer’s insurer accepted liability on a voluntary basis. The Appellant Worker consulted Dr Biggs, an orthopaedic surgeon, on 11 August 2005, and he injected the right shoulder on two occasions, apparently without benefit. She also saw a pain management consultant, Dr Adler, between August 2005 and November 2006. There is a history that he administered nerve blocks to both shoulders, without benefit.
The Appellant Worker’s statement indicates that, after being certified fit for reduced hours and restricted duties, she carried out “partly clerical and productions work”. She refers to a conversation with the company nurse in July or August 2006, in which she was told if she could not resume normal duties she would be terminated. She states she informed the nurse she could not do so due to pain, and she was then made redundant. A medical history (of Dr Guirgis) indicates this was associated with closure of her department. She has not worked since.
Correspondence attached to the Application to Resolve a Dispute says the Respondent Employer made voluntary weekly payments until “on or around Oct/Nov 2006”. The Appellant Worker then brought proceedings in the Commission, which resolved on 2 April 2007. Those proceedings were discontinued, with the Respondent Employer agreeing to pay a sum of $150.00 per week from November 2006 on a continuing basis. The Respondent Employer subsequently issued a section 74 notice dated 21 October 2008, declining liability and advising weekly payments would cease six weeks thereafter. The notice raised issues going to ‘injury’, substantial contributing factor (s 9A of the Workers Compensation Act 1987 [‘the 1987 Act’]), incapacity and causation. A second section 74 notice was issued on 21 May 2009, in substantially similar terms, but additionally specifically denying liability in respect of sections 66 and 67 of the 1987 Act.
The Application to Resolve a Dispute in the current proceedings pleads injury to the neck and arms resulting from the Appellant Worker’s repetitive duties from 1996 to August 2006. It nominates a deemed date of injury of August 2006. It claims weekly compensation at a rate of $581.17 from November 2006 to date and continuing, and expenses pursuant to s 60 of the 1987 Act. It also claims lump sum compensation pursuant to s 66 in respect of 18% whole person impairment, and a sum of $18,500.00 pursuant to s 67. The arbitrator’s reasons note that the weekly claim for periods prior to 10 November 2008 was not pressed. It was stated at the arbitration hearing that voluntary payments at the rate of $150.00 per week had been made up to 10 November 2008 (T2.20).
An arbitration hearing was held on 8 September 2009. Both parties were represented by counsel. No oral evidence was adduced. Counsel addressed, and the arbitrator reserved his decision.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 25 September 2009 records the Arbitrator’s orders as follows:
1) Award for the Respondent.
2) No order as to costs.
The certificate was accompanied by thirteen pages of reasons (‘the reasons’).
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.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by both 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 was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
The amount of compensation at issue on the appeal easily exceeds the sum of $5,000.00 prescribed in section 352(2)(a) of the 1998 Act. As no sum was awarded section 352(2)(b) has no application (Mawson v Fletchers International Exports Pty Limited [2002] NSWWCCPD 5).
The threshold provisions in section 352 are satisfied, and I grant leave to appeal.
SUBMISSIONS
The arbitrator, at [23] of his reasons, identified the issue run by the Respondent Employer as whether the Appellant Worker had recovered from the effects of employment injury, such that any incapacity or impairment from which the Appellant Worker may suffer did not result from the injury. He set out the medical evidence in some detail. The Appellant Worker’s case was supported by reports from her general practitioner Dr Regozo, and an orthopaedic surgeon Dr Guirgis, qualified on her behalf by her solicitors. The Respondent Employer relied upon reports attached to its Reply from Dr Pillemer (orthopaedic surgeon), Dr Oakeshott (consultant surgeon), and an Earning and Vocational Assessment report the medical content of which was authored by Dr Menogue.
At [46] of the reasons the arbitrator described the reports of Drs Oakeshott and Menogue as being “consistent in their observations and their conclusions”, and said “I accept them.” At [50] the arbitrator again stated that he accepted the opinion of Dr Oakeshott, and continued “I find that any incapacity from which Ms Dizon now suffers does not result from the nature and conditions of her employment, and that she has recovered from the effects of that injury.” At [52] the arbitrator summarised his findings:
“· That from 10 November 2008 Ms Dizon has not been incapacitated as a result of her work injury.
· That Ms Dizon has no ongoing pathology relating to that injury and hence cannot assert an injury for the purposes of her permanent impairment claim.”
The Appellant Worker raises the following in her submissions on this appeal:
(i) The arbitrator erred in not attaching greater weight to the report and certificates of Dr Regozo, the Appellant Worker’s general practitioner.
(ii) The arbitrator erred in relying on observations by Drs Oakeshott and Menogue that were prejudicial, but should have borne little or no evidentiary weight.
(iii) Examples are Dr Oakeshott describing the Appellant Worker’s history giving as “if she was reading from a script”, and Dr Menogue’s reference to his observation of the Appellant Worker when she was not being formally examined.
(iv) The arbitrator described the reports of Drs Oakeshott and Menogue “importantly” as being “the most recent”. This was a factual error as the report of Dr Regozo post-dated that of Dr Oakeshott by “some 4 months”.
(v) The arbitrator, in accepting the views of Drs Oakeshott and Menogue that the Appellant Worker exaggerated, did not consider the comments of a psychologist, Kieran Fraser, which formed part of the Earning and Vocational Assessment report which also included the opinion of Dr Menogue.
(vi) The arbitrator inappropriately drew an inference pursuant to Jones v Dunkel (1959) 101 CLR 298, against the Appellant Worker, in respect of the absence of reports from Drs Biggs and Adler.
The Respondent Employer submits the arbitrator’s decision should be confirmed. It is submitted:
(i) The arbitrator adequately analysed the medical evidence, and his conclusion was correct.
(ii) In carrying out a review pursuant to s 352 of the 1998 Act, I should apply the principles, applicable to review of a discretionary judgment, set out the judgment of Kitto J in Australian Coal and Shale Emloyees’ Federation & Anor v The Commonwealth & Ors (1956) 94 CLR 621 (‘Australian Coal and Shale’) at 627.
(iii) The lack of weight the arbitrator attached to the report of Dr Regozo is explained by the arbitrator’s reference to a lack of detail in it going to matters such as dates of treatment, history and clinical findings from time to time, and treatment administered. The report, it is submitted, is based on a false premise in that Dr Regozo records a history of “ten years of unchanged repetitive duties”, which is not the history given by the Appellant Worker in her statement. Dr Regozo’s certificates were of little weight as they failed to explain the deterioration in the Appellant Worker’s capacity between 2005 and 2008.
(iv) The arbitrator referred to various observations by Drs Oakeshott and Menogue suggesting exaggeration and clinical inconsistencies. Such evidence was “properly expressed in light of their medical expertise”.
(v) An inference pursuant to Jones v Dunkel was properly drawn in the circumstances of the case, given the Appellant Worker carried the onus of proof and her evidence was “thin”. Reference is made to Manly Council v Byrne & Anor [2004] NSWCA 123 (‘Manly Council’) at [71].
DISCUSSION AND FINDINGS
The Nature of Review Pursuant to section 352
The Respondent Employer has made specific submissions on the principles that should govern how the review process pursuant to section 352 is carried out. It is appropriate to deal with this matter at the outset, as it is relevant to how I approach consideration of the appeal overall. The Appellant Worker’s submissions (which of course were lodged before those of the Respondent Employer) do not deal with this argument.
The Respondent Employer quotes the following passage from Australian Coal and Shale as setting out the principles I should apply in conducting this review:
“So, too, there are to be found in many of the cases decided upon the wider question as to the proper attitude of a court of appeal to any judgment given in exercise of a discretion, statements appearing to limit the function of the appellate court to correcting errors of principle. Yet in that wider area it is clear that such statements are not exhaustive. I shall not repeat the references I made in Lovell v. Lovell[1950] HCA 52; (1950) 81 CLR 513, at pp 532-534 to cases of the highest authority which appear to me to establish that the true principle limiting the manner in which appellate jurisdiction is exercised in respect of decisions involving discretionary judgment is that there is a strong presumption in favour of the correctness of the decision appealed from, and that that decision should therefore be affirmed unless the court of appeal is satisfied that it is clearly wrong. A degree of satisfaction sufficient to overcome the strength of the presumption may exist where there has been an error which consists in acting upon a wrong principle, or giving weight to extraneous or irrelevant matters, or failing to give weight or sufficient weight to relevant considerations, or making a mistake as to the facts. Again, the nature of the error may not be discoverable, but even so it is sufficient that the result is so unreasonable or plainly unjust that the appellate court may infer that there has been a failure properly to exercise the discretion which the law reposes in the court of first instance: House v. The King [1936] HCA 40; [1936] HCA 40; (1936) 55 CLR 499, at pp 504, 505.”
Australian Coal and Shale was a case dealing with the power to review a decision of a taxing officer, on a taxation of costs. In general terms, the above passage is consistent with the principles in House v The King (1936) 55 CLR 499 governing review on appeal of discretionary decisions.
It is clear, having regard to a number of decisions of the Court of Appeal, that my powers in conducting a review pursuant to s 352 are not constrained in the manner the Respondent Employer contends. Many of these decisions are reviewed in the joint judgment of Allsop P and Hoeben J (Beazley JA agreeing) in Sapina v Coles Myer Limited [2009] NSWCA 71 (‘Sapina’). After reviewing a number of authorities going to the nature of ‘review’ pursuant to section 352, their Honours said at [57]:
“Subsections s 352 (1) and (5) of the WIM Act make clear that the “appeal” is to be by way of review of the decision. The notion of “review of a decision” had been clearly held in the context of the former legislation and the WIM Act to be wider that an appeal strictly so-called and encompassing a reconsideration beyond correction of error. The decision under appeal is not to be ignored, but the task of the Presidential member is, as Spigelman CJ said in Chemler, “to decide whether the original decision is wrong [that is to] decide what is the true and correct view.” This requires the Presidential member to decide for himself or herself these matters. That does not mean that there must be a de novo hearing in each case. Cases such as Watson, Boston Clothing, Litynski and AGL v Samuels made plain that this was not so under s 36 and the terms of ss 3, 352 (7) and 354 make clear that no such broad ranging factual enquiry afresh is necessarily required. The terms of the WIM Act, ss 3 and 354 and the width of the powers in s 352 (7) make clear that the Presidential member has a wide choice available as to how he or she undertakes the task of deciding for himself or herself what is the true and correct decision. As Allsop P said in Cook v Midpart, error (or lack of it) by the Arbitrator will or may be relevant to the task of the Presidential member, but it does not define the task. There is, however, an important difference in the nature of the tasks of (a) coming to the view that an Arbitrator’s view was reasonable and (b) deciding for oneself that the view of the Arbitrator is the true and correct one. In a field where evaluation of injury and evidence of incapacity can lead to different views, both or all which could be reasonably held, it is important that the parties have available to them the skill and judgment of the Presidential member reaching his or her own view on the questions involved in the decision.”
It is necessary that I apply the principles identified in Sapina and State Transit Authority of NSW v Chemler [2007] NSWCA 249, in conducting this review.
The Competing Medical Evidence
No oral evidence was called at the arbitration hearing. The only statement put into evidence was that of the Appellant Worker. Her evidence on factual matters, such as her duties from time to time, and when she reported problems at work, is not challenged. The proceedings involved competing medical cases, and the arbitrator’s reasons essentially involved an analysis of those medical cases, with the ultimate result that he preferred the medical evidence of the Respondent Employer, particularly Drs Oakeshott and Menogue.
Dr Oakeshott expressed doubts about how the Appellant Worker gave her history to him, and commented on what he regarded as discrepancies between her movements on formal examination, as opposed to when the doctor observed her casually during the consultation. He noted over-reaction on examination, and complaints he regarded as non-anatomical. He did not identify any objective signs on examination. He concluded her symptoms were arising from factors other than the claimed employment injury.
Dr Menogue also observed inconsistencies between formal examination and casual observation of the Appellant Worker. He concluded “I found her examination most unconvincing and believe that she was uneconomic with the truth in all aspects of the history and also her explanation as to why she was unable to perform the movements described above.”
In considering the Appellant Worker’s medical evidence, the arbitrator described Dr Regozo’s report as “an unhelpful report being written entirely in response to questions from Ms Dizon’s solicitor”. The arbitrator thought it lacked details about various matters (described at [29] of the reasons). He noted Dr Guirgis had described clinical findings, on which his diagnosis was based, but neither Dr Oakeshott nor Dr Menogue had reported similar findings on their examinations (which post-dated Dr Guirgis’ examination). The arbitrator found the deterioration in the Appellant Worker’s symptoms since ceasing work in 2006 “totally unexplained”. He drew an inference the evidence of Drs Biggs and Adler would not have assisted Ms Dizon’s case”. This analysis (briefly described) led the arbitrator to the factual conclusion set out at [18] above.
The Appellant Worker’s statement described an onset of symptoms in the shoulders, arm and neck (more on the right) in approximately 1999. She said this was reported to her supervisor, a statement that is not contradicted. She consulted a general practitioner, Dr Lee, on one occasion, and that doctor told her to use a cream. There is no evidence from Dr Lee, but I would attach no particular significance to this, given the limited treatment involved. The duties prior to this onset are described at [7] of her statement, and involved testing product, using both hands and arms to press and push buttons of testers, holding down covers of testers, lifting trays of product and stamping labels onto product. She states she “continued this work repeatedly for about a year” before the onset of symptoms. This evidence of the duties is not contradicted.
The Appellant Worker’s duties after her report in 1999 are set out at [9] of her statement and involved packaging and assembly work that were repetitive. From December 1999 she worked in inventory control, those duties involved lifting and replacing stock to count it (described by her as “repetitive”), together with data entry and computer work. She says that from November 2000 these inventory control duties were combined with process work and store jobs. The store work involved lifting items up to ten kilograms. Again, this version of the Appellant Worker’s duties is not contradicted by any evidence from the Respondent Employer.
The next medical treatment obtained by the Appellant Worker was from Dr Regozo, who she initially consulted about the matter on 7 June 2005. The certificate of that date records the injury resulted from “repetitive rotational movements of the right shoulder/right arm”. Some care is necessary in interpreting Dr Regozo’s report dated 17 December 2008, as it is not always apparent precisely what point of time he is referring to. He does record a history of ten years of repetitive process work. This would be generally consistent with the Appellant Worker’s statement regarding her duties from time to time, between 1995 and 2006. I would infer, from where it appears in the report, that the history of these problems being “longstanding” was given at the first relevant consultation, on 7 June 2005.
The second certificate from Dr Regozo, dated 29 August 2005, stated the Appellant Worker was being referred to Dr Biggs and a rehabilitation provider. The diagnosis was unchanged.
No report from Dr Biggs is in evidence. However it is apparent Dr Oakeshott was furnished with a copy of a report from Dr Biggs, prior to reporting to the Respondent Employer’s solicitors. He refers to it. It appears Dr Biggs treated the Appellant Worker from 11 August 2005 to (?) 27 April 2006, and injected her right shoulder twice with cortisone, without benefit. On the initial consultation Dr Biggs recorded a two month history of right neck, shoulder and arm pain. “Dr Biggs considered that she had rotator cuff tendonitis and subacromial impingement of the right shoulder at this time.”
Dr Oakeshott’s report also records the Appellant Worker was under the care of the rehabilitation specialist Dr Adler from August 2005 to November 2006, although the source of this information is not apparent. During that time she is reported to have had two suprascapular nerve blocks into both shoulders, without benefit. Dr Oakeshott’s report sets out the various investigations carried out around that time. X-ray on 5 September 2005, ultrasound on the same date, ultrasound guided injection on 7 September 2005 and MRI on 10 March 2006 all refer to calcification in the right shoulder. An injection into the right shoulder on 17 May 2006 is reported as pulverising and aspirating the calcifications with a 23 gauge needle. Dr Regozo’s report states “after further investigations and opinions from specialists, she was noted to have chronic supraspinatus tendonitis with calcifications too”.
It would appear symptoms were apparent in the left shoulder by June 2006, as it was x-rayed on 28 June 2006 (no abnormality), and an ultrasound on the same date is said to have been reported as showing “a little bunching of the bursa in abduction”. Dr Regozo’s report describes the left shoulder symptoms as resulting from “compensating for the long, restrictive use of the right side”.
The next certificate from Dr Regozo is dated 9 August 2006, about the time of the Appellant Worker’s redundancy. The diagnosis at that point was “Repetitive strain injury to the right arm/right shoulder with cervicobrachial pain, rotator cuff tendonitis & impingement syndrome; right lateral epicondylitis, trapezial strain left side.” The doctor at that time considered the Appellant Worker fit for work four hours per day, three days per week, with restrictions of no lifting (except up to 5 kilograms occasionally), no forward, rotational and/or above shoulder movements of both arms/shoulders, rotate between ‘production’ and clerical activities every two hours, and allow stretching exercises five to ten minutes each hour. Similar restrictions are set out in Dr Regozo’s certificate dated 30 August 2006. The most recent expression of Dr Regozo’s opinion regarding the Appellant Worker’s capacity for work is in his report dated 17 December 2008:
“After 3 years of observing no improvement in pain and in movements of the shoulders, I strongly believe she would not be fit to any sustainable type of work.”
The Appellant Worker was examined by Dr Guirgis (at her own solicitors’ request) and he reported on 19 December 2007. Her complaints are set out on page three of the report, and effectively involve symptoms in the neck, both shoulders, arms and hands. The findings on examination are set out at pages three and four of that report. These included muscle guarding in the cervical spine, and “clinical evidence of irritability of the median nerve in the carpal tunnel with positive Tinel’s sign and Phalen’s test”. Dr Guirgis thought the Appellant Worker “unfit to be involved in activities that require applying stresses to the neck and arms particularly those of repetitive, dynamic or sustained loading nature”.
Dr Pillemer, orthopaedic surgeon examined the Appellant Worker at the request of the Respondent Employer’s solicitors on 28 May 2008. He described her as “a very determined person who insisted on giving me her history in great detail”. This is perhaps not inconsistent with Dr Oakeshott’s description of taking a history from her, although with a more kindly explanation. Dr Pillemer described the Appellant Worker’s presentation as “very interesting”. Like some later examiners, Dr Pillemer found “diffuse hypoaesthesia to pin prick of both upper limbs in a non-dermatomal distribution and varying on testing at different times”. He found voluntary inhibition of effort on testing with a grip strength meter. There was diffuse discomfort to “palpation throughout the cervical and upper thoracic region, and also in both trapezius areas”. However Dr Pillemer also found “some objective physical findings”. There was guarding in both trapezius areas, the right more than the left. There was discomfort on the left side elbow when extension was forced. There was definite but mild swelling along the medial border of the left wrist region.
Dr Pillemer concluded there was “a significant additional functional component (Abnormal Illness Behaviour)”. However he thought she did in fact have “an underlying problem”. He noted she came across as “a very well motivated person who pushed through with her work despite her symptoms, and there are features of her presentation which in my opinion indicate genuine ongoing symptoms”. The doctor thought one explanation may be “an underlying polyarthritic condition”, and a rheumatologist’s opinion would be helpful. However he thought thoracic outlet syndrome was the most likely cause of the symptoms. He suggested an opinion from a vascular surgeon, or a surgeon with a particular interest in thoracic outlet syndrome, may also be very helpful.
Dr Pillemer thought the Appellant Worker had “an underlying more generalised condition”, and that “the nature and conditions of her work will simply prove to be an aggravating factor of this underlying condition, and in my opinion would not be a substantial contributing factor to her ongoing symptoms”. Dr Pillemer thought the Appellant Worker “unfit for any type of employment at the present time due to both the “underlying condition” and the “significant functional component”. It does not appear the Appellant Worker was assessed by a rheumatologist or a vascular surgeon, following her examination by Dr Pillemer.
She was examined three months later, on 28 August 2008, by Dr Oakeshott, a surgeon. His examination is in many respects consistent with Dr Pillemer’s. He found diffuse symptoms in a non-anatomical distribution. There were non-organic signs. Restrictions of movement were not consistent. Unlike Dr Guirgis, Dr Oakeshott did not find muscle guarding in the neck. It is unclear whether Dr Oakeshott had access to Dr Pillemer’s report when he examined the Appellant Worker. He does not refer to it. He does not specifically comment on the presence (or absence) of the “objective physical findings” commented on by Dr Pillemer, nor does he comment on Dr Pillemer’s view that the most likely diagnosis was thoracic outlet syndrome. His ultimate conclusion was as follows:
“In summary, therefore, it is my opinion that there is no objective clinical evidence of any work-related injury or any injury to either arm, her neck or upper back that could be attributed to the nature and conditions of her work during the above timeframe.
It is my opinion that Ms Dizon’s present symptoms are now arising from factors other than any injury or disease that could be attributed to her work prior to August 2006 and that there is no evidence of any impairment arising there from.”
Dr Oakeshott does not identify the other factors that, in his view, may have been causing symptoms.
The Respondent Employer also relied on an Earning and Vocational Assessment report dated 31 July 2009. The report was prepared by Dr Menogue, a medical practitioner, together with Kieran Fraser, a psychologist. It is signed by both of them. The ‘Methodology’ section of the report on page 4 indicates paragraphs 12 to 24 were prepared by a vocational consultant (I infer the psychologist Mr Fraser), and paragraphs 3 to 11 were prepared by a medical consultant (Dr Menogue).
Dr Menogue set out a summary of the radiological reports, and concluded they revealed “evidence of mild tendinosis involving the right supraspinatus tendon but no other pathology demonstrated”. Dr Menogue said the physical “examination performed reveals evidence of significant inconsistency”. The restriction of left and right shoulder movements demonstrated on formal assessment was not repeated when the Appellant Worker was seated in the consulting room. She showed greater neck and shoulder movement when dressing and undressing, than on formal examination. Dr Menogue’s opinion was as follows:
“There is a straightforward temporal relationship between this woman’s neck, right shoulder and right upper limb discomfort and the work related events ultimately reported on 7th June 2005.
Mrs Dizon sees activities as a negative challenge that during the examination gives the appearance of functional impairment that is not actually present.
The conclusion reached from today’s assessment is that there is little functional impairment that is due to an organic basis in regard to her neck, right or left shoulder and that as stated any inability to perform neck or back movements is due to inorganic causes rather than any pathological process.”
As regards capacity for work, Dr Menogue concluded:
“Ms Dizon should avoid working with her arms out in front of her or overhead. It is likely that any repeated work requiring her arms to be out in front or overhead will result in a development of further neck or right shoulder pain.”
And:
“She is fit to work 8 hours per day, 5 days per week with the following workplace restrictions:
·Lifting restriction of 5 kg.
·Avoid work with arms out in front or overhead.”
Having regard to the examinations of the Appellant Worker by Drs Pillemer, Oakeshott and Menogue, I am satisfied the Appellant Worker exaggerated her symptoms on those occasions. This would not necessarily have been intentional. Dr Oakeshott effectively rejected the Appellant Worker’s complaints, having regard to his view they were essentially non-organic. However it is, of course, possible that there is a genuine underlying problem, the existence of which is to some extent masked by the florid presentation. It is significant that Dr Pillemer, whilst observing the exaggerated presentation, was able to find organic signs on examination, which he regarded as indicative of some genuine pathology.
The Appellant Worker developed a problem and reported it to her supervisor in 1999. This is unchallenged. She then continued carrying out duties that varied from time to time, but which in her version of events were moderately physical, and repetitive, until she lodged a claim form in 2005. As at June 2005 she was carrying out “repetitive work” in the packing section, spending half the day packing, and the other half “assembling products using a power hand screwdriver”. Her evidence on this is not contradicted. By the time she saw Dr Regozo on 7 June 2005 she clearly had symptoms, documented in the relevant certificate, in her right shoulder, arm and neck. The claim form dated 10 June 2005 described the body parts injured as “shoulder, arm, neck & palm mainly on right”. It is implicit in this description that there were some less severe symptoms on the left side.
Calcification in the right shoulder was apparent, on different radiological investigations, on 5 September 2005, 7 September 2005, 10 March 2006 and 17 May 2006. Dr Pillemer commented that the “calcium noted in the supraspinatus is certainly capable of producing localised shoulder symptoms, it is not capable of producing her widespread presentation.” The symptoms were causing her sufficient trouble that she underwent two cortisone injections into the right shoulder (by Dr Biggs), and injections into both shoulders (by Dr Adler). This was while she was continuing at work with the Respondent Employer.
After making a claim in June 2005, the Appellant Worker stated she was given reduced hours “which included partly clerical and productions work”. Clearly the left shoulder remained symptomatic while the Appellant Worker was still carrying out duties with the Respondent Employer, as it was the subject of an x-ray and an ultrasound on 28 June 2006. The ultrasound demonstrated an abnormality. Dr Regozo’s explanation, that the left shoulder became stiff from overuse compensating for the right shoulder, is perfectly plausible.
The Appellant Worker continued carrying out restricted duties with the Respondent Employer, until she was retrenched in August 2006. The history, in general, is consistent with a lady who has carried out moderately physical and repetitive duties for many years, whilst suffering symptoms. She describes deteriorating symptoms whilst doing so. After an injury was formally reported, she co-operated in the rehabilitation plan that was put in place, until she was retrenched. The Respondent Employer ultimately made voluntary payments of compensation until about 9 November 2008.
All of the medical practitioners who have reported in the case have identified some genuine organic problem, with the exception of Dr Oakeshott. The tenor of Dr Oakeshott’s report, for example his references to history taking from the Appellant Worker, suggests a degree of frustration on the doctor’s part in dealing with the Appellant Worker, to a point where objectivity may have been difficult to maintain. I find Dr Oakeshott’s report the least helpful, in assessing the matter.
Neither Dr Regozo nor Dr Guirgis refer to the exaggerated presentation on examination that was so apparent to the three doctors relied upon by the Respondent Employer. Such a presentation is consistent with the severe restrictions identified by the Appellant Worker at [23] to [27] of her statement. It is difficult to accept this florid presentation would not have been present also when the Appellant Worker was examined from time to time by Dr Regozo, and by Dr Guirgis. This leaves me with reservations about accepting the views of Drs Regozo and Guirgis, at least as regards the nature of incapacity.
I accept the opinion of Dr Menogue that there is a “straightforward temporal relationship between this woman’s neck, right shoulder and right upper limb discomfort and the work-related events ultimately reported on 7th June 2005”. It is clear the left shoulder was also symptomatic whilst the Appellant Worker was carrying out her duties with the Respondent Employer. I accept the opinions of Dr Regozo and Dr Guirgis as regards causation of the left shoulder and arm symptoms. The nature of the development of such symptoms, whilst carrying out physical and repetitive duties, can readily be viewed as falling within the ‘disease’ provisions of the 1987 Act. In Perry v Tanine Pty Ltd (1998) 16 NSWCCR 253 (‘Perry’) Burke J said:
“48 This concept of failure of some element of the body to cope with repetitive stress seems typical of carpal tunnel syndrome, many forms of rotator cuff lesion, problems of epicondylitis affecting elbows, tenosynovitis and a whole range of other problems affecting various joints, tendons, nerves and muscles of the body not infrequently presented to this Court in the industrial context.”
And:
“57 In general it seems to me that carpal tunnel syndrome is a failure of an area of the body to cope with repeated stress imposed upon it and reacts to that stress by developing swelling, pain and loss of function as a consequence. That seems to me to be classically a disease process. Where work is the source of the relevant stress it connotes to me that the worker has received injury either by the contraction or aggravation of a disease.”
Perry was referred to with apparent approval by Mason P in Fletcher International Exports Pty Ltd v Barrow & Anor [2007] NSWCA 244, 5 DDCR 247 at [60].
The evidence does not suggest the Appellant Worker suffered from such symptoms in her neck or upper limbs prior to their development whilst she was working for the Respondent Employer. She specifically denied any previous symptoms, in the history recorded by Dr Menogue. Dr Menogue commented “imaging performed at the time does not reveal evidence of any pre-existing cervical spondylosis or right shoulder degenerative change”. This would suggest the condition was caused by the Appellant Worker’s work with the Respondent Employer, rather than being an aggravation of a pre-existing condition. This also is consistent with the view on causation expressed by Dr Guirgis, who I accept on this point.
Dr Pillemer tentatively suggested such organic symptoms as the Appellant Worker suffered may be due to an underlying condition, such as polyarthritis or thoracic outlet syndrome. Dr Pillemer’s suggestions for further medical investigation, to follow up these possibilities, were not followed. None of the other doctors in the case have suggested the existence of the conditions, suggested by Dr Pillemer, as possibly representing pre-existing underlying conditions. On balance, I do not accept the presence of the pre-existing conditions suggested by Dr Pillemer as possibilities.
Thus I have arrived at the view the Appellant Worker suffered injury to the neck, shoulders and arms, being a disease contracted by her in the course of her employment. On the evidence that I have accepted, there was no cause for this injury other than the Appellant Worker’s employment duties with the Respondent Employer. It follows that this employment was both a contributing factor, and a substantial contributing factor to the injury.
The Application to Resolve a Dispute suggests a deemed date of injury (pursuant to the ‘disease’ provisions of the 1987 Act) of “August 2006”. Fixing a deemed date of injury pursuant to sections 15 or 16 (section 15 based on the findings I have made) was not addressed particularly during the arbitration hearing. The Appellant Worker’s duties had become “reduced hours and mixed duties” from when she completed her claim form dated 10 June 2005. However her statement indicates she continued to carry out work involving inventory control, process work and store jobs, until her termination in August 2006. As the Appellant Worker was losing time from work subsequent to 10 June 2005, this would potentially have given rise to an entitlement to weekly compensation, providing a loss of wages resulted from the time loss. Section 15(1) of the 1987 Act provides:
“1) If an injury is a disease which is of such a nature as to be contracted by a gradual process:
(a) the injury shall, for the purposes of this Act, be deemed to have happened:
(i) at the time of the worker’s death or incapacity, or
(ii) if death or incapacity has not resulted from the injury—at the time the worker makes a claim for compensation with respect to the injury, and
(b) compensation is payable by the employer who last employed the worker in employment to the nature of which the disease was due.”
Applying the corresponding provision in section 16(1) in Stone v Stannard Brothers Launch Services Pty Ltd [2004] NSWCA 277, Hodgson JA (Mason P agreeing) said:
“Berkeley Challenge shows that, if the claim under consideration is for weekly compensation based on incapacity, the relevant incapacity for the purposes of s.16(1)(a)(i) is incapacity giving rise to entitlement to weekly compensation. Thus, in such a case, incapacity first occurs when the physical incapacity results in some loss of wages, even if there had previously been incapacity in the Arnotts sense, not resulting in any loss of wages.”
The evidence does not necessarily indicate that there was loss of wages resulting from the reduced hours from June 2005 onwards, giving rise to an entitlement to weekly compensation. If not, then the first incapacity giving rise to an entitlement to weekly compensation was from the time of the termination, in August 2006. Given that this date is pleaded, and that no submissions to the contrary were made at the arbitration hearing, I find August 2006 to have been the deemed date of injury pursuant to section 15(1) of the 1987 Act.
Do Ongoing Symptoms Result From the Injury?
There is no suggestion, from the evidence of the Appellant Worker, that the symptoms have ever abated. Dr Guirgis described the condition as an “overuse syndrome (that) proved to be chronic with acute exacerbations and to be recalcitrant to treatment”. Dr Regozo referred to the “chronicity of illness”. Dr Pillemer’s views, at least on the issue of causation, I have not accepted. Dr Menogue did not consider there was a great deal wrong with the Appellant Worker organically (although he accepted some orthopaedic restriction). He described her condition as “now permanent and static”, and the prognosis as poor.
Dr Oakeshott rejected the existence of any causal nexus between the Appellant Worker’s ongoing symptoms, and work injury with the Respondent Employer. I have already expressed reservations regarding Dr Oakeshott’s opinion in the matter. He expressed the view the Appellant Worker may have had mild impingement syndrome in both shoulders, which could have caused calcific tendonitis in the right shoulder. He stated, “This would be then a constitutional condition.” He gave no medical explanation for this statement. Earlier in the report the doctor said “I was unable to identify any pre-existing condition in her neck, either arm or her back or any other part of her body that was aggravated, accelerated or exacerbated at work during the above timeframe.” It is relatively clear, from the tenor of Dr Oakeshott’s report overall, that he rejected the validity of the Appellant Worker’s complaints, having regard to how she gave her history, and signs of exaggeration on examination. The way in which Dr Oakeshott has expressed his conclusions (see for example the passage quoted at [43] above) leaves it unclear, in my view, whether he is simply rejecting the existence of symptoms for which there could be a rational explanation, or accepting the existence of some organically based symptoms, but suggesting there is some cause other than the work injury to explain them. If the latter, he offers no stated view on what, in his opinion, the alternative cause may be. I reject the opinion of Dr Oakeshott on this issue.
The preponderance of the medical evidence (Drs Regozo, Guirgis and Menogue) favours the proposition that the ongoing complaints result from the work injury, and have become chronic. This is the view I accept.
The Jones v Dunkel Inference
The arbitrator (at [30] of the reasons) drew an inference pursuant to Jones v Dunkel, that the evidence of Drs Biggs and Adler, who had treated the Appellant Worker, would not have assisted her case. He said he found the absence of reports from these doctors “troubling”, and that there was no explanation as to why evidence was not called from them. Both parties have referred to the decision of the Court of Appeal in Manly Council, in support of arguments the inference should not have been drawn (the Appellant Worker), or was properly drawn (the Respondent Employer).
The judgment of Campbell J (Beazley JA and Pearlman AJA agreeing) in Manly Council quotes a passage from Glass JA in Payne v Parker [1976] 1 NSWLR 191 as “widely recognised as stating correct legal principles. The passage says in part:
“Whether the principle can or should be applied depends upon whether the conditions for its operation exist. These conditions are three in number: (a) the missing witness would be expected to be called by one party rather than the other, (b) his evidence would elucidate a particular matter, (c) his absence is unexplained.”
Later in the same passage, dealing with whether the first of the conditions is satisfied, Glass JA said (omitting references):
“If the witness is equally available to both parties, for example, a police officer, the condition, generally speaking, stands unsatisfied. There is, however, some judicial opinion that this is not necessarily so. Evidence capable of satisfying this condition has been held to exist in relation to a party’s foreman, his safety officer, his accountant, his treating doctor.”
In Manly Council Campbell J at [71] to [72] concluded that, even if a witness was equally available to both parties, the first of the conditions identified by Glass JA, quoted above, could be satisfied if it would be “more natural” for one party to call the witness (in the Manly Council case it was a friend of the plaintiff and the friend’s mother being considered).
In the current appeal, the Appellant Worker submits an inference should not have been drawn, as reports from Drs Biggs and Adler could just as readily have been obtained and tendered by the Respondent Employer, as by her. Reference is made to the nature of proceedings in the Commission, and the ability of insurers to obtain reports from treating doctors.
The reference to a “treating doctor” in the passage quoted at [68] above, was in the context of common law proceedings, in which a plaintiff would have been at liberty to authorise provision of a report by his doctor to his solicitors. In such circumstances a defendant did not have any right to itself obtain such an authority, nor was it common practice for it to be given such an authority. In those circumstances, it was the plaintiff who could authorise the provision of a report by one of his treating doctors. Logically one would expect the plaintiff to call a treating doctor, as he was the party who could authorise the doctor to report about matters that would otherwise be confidential.
It is commonplace for employers (through their insurers) to obtain reports from treating doctors, as part of the claims management process. Section 65(20) of the 1998 Act provides a claim form may be prescribed by the Regulations, with provision in it for a form of authority for insurers or self-insurers to obtain information from treating doctors. Such a form has not, thus far, been prescribed, but claim forms in use regularly make use of an authority of this nature. The claim form, currently available from the web site of the WorkCover Authority of NSW, contains an “Authority to Release Medical Information” as part of its standard form. The claim form in the current appeal does not appear to contain such a provision. It would, however, not be unusual for an insurer to seek and obtain, from a claimant, an authority for the release of information from treating doctors. Clause 37 of the Workers Compensation Regulation 2003 accepts that an employer or insurer will potentially have reports from treating doctors, and provides for the provision of such material (along with other material) when an insurer disputes liability.
It is apparent, from Dr Oakeshott’s report at page 4, that he had in his possession material from Dr Biggs, documenting that doctor’s history, treatment and diagnosis in respect of the Appellant Worker. He was examining the Appellant Worker at the request of the solicitors for the Respondent Employer’s insurer, and I infer it was they or the insurer that placed him in possession of the material from Dr Biggs. There is no reference to such material in Annexure A to the insurer’s section 74 notices dated 21 October 2008 and 21 May 2009, declining liability, although it is material that ordinarily should have been furnished to the Appellant Worker at the time of the notices, in compliance with Clause 37.
It is apparent the Respondent Employer (through its insurer) had material, probably a report, from Dr Biggs. It is not apparent whether the Appellant Worker’s solicitors were in possession of a report from Dr Biggs, nor whether a copy of any such report was produced to the Appellant Worker by the insurer. I am not satisfied the Appellant Worker was the party one would expect to put such a report into evidence. The Respondent Employer could have included the report it had, in the material on which it relied, had it wished. Accordingly it was not, in my view, appropriate to draw an inference pursuant to Jones v Dunkel in respect of Dr Biggs.
The evidence does not indicate that either of the parties had a report from Dr Adler. One or other of them may have, the evidence is silent on the point. It is apparent both of the parties were probably in possession of an authority to obtain medical information from treating doctors, as both of them had done so (Dr Regozo on the part of the Appellant Worker’s solicitors, Dr Biggs on the part of the Respondent Employer). I would not expect a report to have been obtained and put into evidence by one party more than the other, in all of the circumstances. I would not regard it as appropriate to draw an inference pursuant to Jones v Dunkel against either party, in respect of Dr Adler.
The Respondent Employer also submitted that, even if Drs Biggs and Adler were equally available to both parties, an inference should be drawn as the Appellant Worker carried the onus, and the Appellant Worker’s evidence was “thin”. Reliance was placed on a passage in Manly Council at [72]. I reject that submission. It is true the Appellant Worker carried the onus of proof overall. However, as is pointed out above, the preponderance of the medical evidence favoured the contention the Appellant Worker suffered symptoms, at least in part caused by the work injury with the Respondent Employer. There was a clear temporal relationship between the Appellant Worker’s duties, and the onset of her symptoms (recognised by Dr Menogue, qualified on the Respondent Employer’s behalf). The evidence was not at a point where it was “thin’, such that one would necessarily expect evidence from Drs Biggs and Adler to have been tendered by the Appellant Worker, as opposed to the Respondent Employer.
It follows, from the above, that I have concluded the decision of the arbitrator (summarised at [19] above) was not the true and correct view. I have concluded the Appellant Worker suffers ongoing symptoms in her neck, shoulders and arms, resulting from the work injury I have found.
What is the Incapacity?
Assessment of incapacity requires some care, given the level of exaggeration demonstrated by the Appellant Worker when she was examined by Drs Pillemer, Oakeshott and Menogue. The case is brought on an orthopaedic basis, and the Appellant Worker has not relied on evidence or allegations of a psychiatric nature.
Dr Regozo in his report dated 17 December 2008, opined “I strongly believe she would not be fit to [sic] any sustainable type of work.” His last certificate dated 10 November 2008 described the Appellant Worker as “considerably [sic] unfit to work on a permanent basis”. Dr Guirgis’ report dated 19 December 2007 considered the Appellant Worker “unfit to be involved in activities that require applying stresses to the neck and arms particularly those of repetitive, dynamic or sustained loading nature as such activities would lead to the recurrence of symptoms, signs, incapacities and disabilities as described above.” The Appellant Worker’s statement would put her incapacity at a high level, but I do not accept it is as high as her statement would suggest, having regard to the tendency to exaggerate previously referred to.
Dr Pillemer, as at 28 May 2008, regarded the Appellant Worker as “unfit for any type of employment”, due to a combination of her “underlying condition”, together with a “significant functional component”. The functional component is not relied upon in the current proceedings. Dr Oakeshott did not proffer an opinion on incapacity per se, his opinion rather being based on his views on causation. Dr Menogue’s opinion, contained in the Earning Capacity Assessment report dated 31 July 2009, was that the Appellant Worker was unfit for her pre-injury work. He thought her fit for full-time work (although not a “reasonable amount of overtime”), subject to a lifting restriction of five kilograms, and not working “with arms out in front or overhead”.
Drs Regozo and Guirgis do not refer to the tendency to exaggerate on examination noted by the other doctors, and it is unclear the extent to which they have formed their views on incapacity based simply on the Appellant Worker’s presentation, without differentiating between those symptoms that are organically based, and those that are more probably associated with non-organic causes. I prefer the opinion of Dr Menogue on the issue of the Appellant Worker’s physical incapacity for work. The incapacity is partial. The symptoms have consistently been described as more severe in her dominant right arm and shoulder.
The Section 40 Entitlement
The upper limb of the section 40 equation (section 40(2)(a)) was agreed at $581.17.
The weekly claim was pressed only from 10 November 2008. The Appellant Worker has not been in employment since that time, and it is necessary to assess her ability to earn in some suitable employment (section 40(2)(b)). It is necessary that I have regard to the matters specified in section 43A of the 1987 Act (in so far as they are relevant) in assessing what is suitable employment for the Appellant Worker. In particular, section 43A(1)(b) is relevant in this matter, “the worker’s age, education, skills and work experience”.
The employment history, recorded in the Earning Capacity Assessment report, is that the Appellant Worker worked as a bank teller from 1987 to 1989 in the Phillipines. She subsequently worked as a “general clerk” from 1993 to 1995 with her “Sister’s non-life insurance company”. She was schooled to the equivalent of year 10 in the Philippines, and had studied banking and finance at university level in that country. That report also records she had attended a “Beginners computer course”. Her only employment in Australia was her factory work with the Respondent Employer, from 1995 to 2006.
The Earning Capacity Assessment report suggests the Appellant Worker may be fit to work as a bank worker, a call centre operator, or a general clerk. Having regard to the Appellant Worker’s educational background and work history, in my view becoming a bank worker is probably not viable. She has no relevant training in Australia, her computer skills are not of a particularly high standard, and she last had any employment in this field in excess of twenty years ago.
Work as a general clerk is another suggested option. With her limited work experience in Australia, it is unlikely this would be a suitable occupation for the Appellant Worker. She does not have advanced computer skills, her only experience in this occupation was working in a family company about fifteen years ago, she has never carried out work of this nature in Australia. It is noteworthy the Assessment report quotes an actual job advertisement for a position as a clerk. It includes the requirement “At least 5 years workplace experience with relevant references. Experience in the Financial Services Industry an advantage.” It is, in my view, unrealistic to assess the Appellant Worker’s ability to earn on the basis she would be able to work as a general clerk.
The third suggested occupation is that of call centre operator. The report states most such work is performed seated at a computer desk workstation. Again, an actual job advertisement for such a position is quoted. It involves work for a leading bank. It requires, amongst other things, “excellent communication skills”, “good computer skills”, and “fantastic phone mannerism”. It provides “Previous customer service in a similar role will be highly regarded”. The level of the Appellant Worker’s computer skills is not good, she has completed a beginners course in computers. She has no experience in a similar role in Australia, and indeed the last time she carried out any work other than factory work was about fifteen years previously, in the Philippines, for a company apparently run by her sister. This is not ‘suitable employment’ for the Appellant Worker having regard to her education, skills and work experience.
The Appellant Worker would probably, having regard to the working restrictions I have accepted, be fit for some factory work of a lighter nature, providing it did not involve lifting more than five kilograms, or working with the arms out in front or overhead. Some light assembly work may well be suitable. She has some experience in stores work with the Respondent Employer, and some stores positions may be suitable, providing the items being handled were relatively light. Whilst she would be fit for such work on a full-time basis, accepting Dr Menogue’s opinion on this point, such positions would probably not be widely available. The Appellant Worker would be likely to experience difficulties in obtaining and retaining such restricted work. When such a job came to an end she would be likely to experience greater than normal difficulty in obtaining further work of an appropriate nature. It is legitimate to take account of intermittency of employment from time to time, in assessing a worker’s ability to earn in some suitable employment: Summerson v Alcan Australia Ltd (1994) 10 NSWCCR 571. Such work, when she was able to obtain it, may well return the Appellant Worker earnings similar to those she would have been making with the Respondent Employer, $581.17 per week. However it is unlikely she would be able to obtain such work for more than eighty per cent of the time. When allowance is made for this factor, in my view the Appellant Worker’s ability to earn in some suitable employment is a sum of $464.93.
The difference between the upper and lower limbs of the section 40 equation is a sum of $116.24.
There are not any matters that would require a reduction of this sum, on a discretionary basis.
It follows there should be an award for the Appellant Worker in a sum of $116.24 from 10 November 2008 to date and continuing.
There should be a general award for the Appellant Worker pursuant to section 60 of the 1987 Act.
The matter should be remitted to the Registrar for referral to an approved medical specialist, for assessment of whole person impairment resulting from the injury suffered by the Appellant Worker, due to the nature and conditions of her employment from 1996 to August 2006 (deemed date of injury August 2006), in respect of her cervical spine, right upper limb, and left upper limb.
DECISION
The decision of the Arbitrator dated 25 September 2009 is revoked, and the following decision is made in its place:
(i)Award for the Appellant Worker in a sum of $116.24 per week from 10 November 2008 to date and continuing pursuant to section 40 of the 1987 Act.
(ii)The Respondent Employer is to pay the Appellant Worker’s medical and related expenses pursuant to section 60 of the 1987 Act in respect of her neck and upper limbs.
(iii)The matter is to be remitted to the Registrar for referral to an approved medical specialist, for assessment of whole person impairment resulting from the injury suffered by the Appellant Worker, due to the nature and conditions of her employment from 1996 to August 2006 (deemed date of injury August 2006), in respect of her cervical spine, right upper limb, and left upper limb.
(iv)The approved medical specialist is to have access to the Application to Resolve a Dispute, the Reply, and the Applications to Admit Late Documents lodged 22 July 2009,18 August 2009 and 27 August 2009, including the material attached to those documents.
(v)The Respondent Employer is to pay the Appellant Worker’s costs.
COSTS
The Respondent Employer is to pay the Appellant Worker’s costs of this appeal.
Michael Snell
Acting Deputy President
18 February 2010
I, EMMA LETHBRIDGE-GILL CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF MICHAEL SNELL, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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