Dollin v Disability Enterprises Leura Pty Ltd
[2006] NSWWCCPD 280
•24 October 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Dollin v Disability Enterprises Leura Pty Ltd [2006] NSWWCCPD 280
APPELLANT: Jenny Dollin
RESPONDENT: Disability Enterprises Leura Pty Ltd
INSURER:Employers Mutual NSW Ltd
FILE NUMBER: WCC 8462-05
DATE OF ARBITRATOR’S DECISION: 10 May 2006
DATE OF APPEAL DECISION: 24 October 2006
SUBJECT MATTER OF DECISION: Entitlement to weekly compensation under section 40 of the Workers Compensation Act 1987
PRESIDENTIAL MEMBER: Acting Deputy President Robin Handley
HEARING:On the papers
REPRESENTATION: Appellant: In person
Respondent: Edwards Michael Moroney Lawyers
ORDERS MADE ON APPEAL: The Arbitrator’s decision is confirmed.
There is no order as to the costs of this appeal.
BACKGROUND TO THE APPEAL
On 18 May 2006, Jenny Dollin sought leave in the Workers Compensation Commission (‘the Commission’) to bring an appeal against the decision of an arbitrator dated 10 May 2006. The Respondent to the appeal is Disability Enterprises Leura Pty Ltd (‘DEL’). DEL’s workers compensation insurer is Employers Mutual NSW Ltd (‘EMI’).
Ms Dollin was born on 2 October 1951 and is aged 55. She commenced employment with DEL as an Assistant in Nursing on 23 April 2001. In January 2003, Ms Dollin developed pain in her left shoulder when bathing a patient in a nursing home. She notified DEL of her injury and claimed workers compensation. She had treatment, time off work, and returned to work on suitable duties. However, while at work on 27 March 2004, she developed pain in her right shoulder. Ms Dollin notified DEL and lodged a further claim for workers compensation. Initially, she received workers compensation but, by letter dated 4 April 2005, EMI notified her that it denied further liability on the ground that her injury was not work-related. Weekly compensation was discontinued from 18 April 2005.
On 2 June 2005, the Commission registered Ms Dollin’s ‘Application to Resolve a Dispute’ in respect of her claim for (1) weekly compensation, (2) medical, hospital and related expenses, and (3) compensation for permanent impairment and pain and suffering. After a teleconference with the parties on 16 August 2005, the Arbitrator referred Ms Dollin to an Approved Medical Specialist (‘AMS’), Dr James Scougal, Orthopaedic Surgeon, for assessment of permanent impairment.
The Commission issued Dr Scougal’s Medical Assessment Certificate (‘MAC’) on 26 September 2005. Dr Scougal found:
“The claimant has chronic soft tissue lesions [sic] each shoulder consistent with the presentation. The physical examination at this consultation indicates that neither shoulder demonstrated physical signs consistent with the diagnosis of chronic pericapsulitis or frozen shoulder. The physical signs which may have lead to that diagnosis earlier have resolved.”
Dr Scougal said the injuries at work in January 2003 and March 2004 were a substantial contributing factor to the lesions in the left and right shoulders respectively.
Dr Scougal assessed Ms Dollin as having a 4% whole person impairment in respect of each shoulder, with a nil contribution from any pre-existing injury or condition. On an appeal to the Registrar, on the ground that the MAC contained a demonstrable error, a delegate of the Registrar decided, on 23 January 2006, that “it does not appear that one of the grounds for appeal specified in subsection 327(3) exists”. On 15 March 2006, the Arbitrator conducted a further teleconference with the parties. On 9 May 2006, conciliation having proved unsuccessful, he conducted an arbitration hearing, at the conclusion of which he gave oral reasons for his decision.
THE DECISION UNDER REVIEW
The Certificate of Determination, dated 10 May 2006, records the Arbitrator’s orders as follows:
“1. That the Respondent pay the Applicant as lump-sum compensation under s 66 of the Workers Compensation Act 1987 $5,000 in respect of 4% whole person permanent impairment with respect to the injury to the right upper extremity on 27/3/04, and $5,000 in respect of 4% whole person permanent impairment with respect to the injury to the left upper extremity.
2. That the Respondent pay the Applicant’s medical expenses under s 60 of the Workers Compensation Act 1987 on production of accounts or receipts.
3. That the Respondent pay the Applicant weekly compensation of $220 from 4 April 2005 under s 40 of the Workers Compensation Act 1987. Such payments to continue in accordance with the Act.
4. That the Respondent pay the Applicant’s costs as agreed or assessed.”
In the Statement of Reasons for his decision given orally at the conclusion of the arbitration hearing, the Arbitrator found that Ms Dollin suffered the injuries at work and that work was a substantial contributing factor to her injury (transcript page 13). The Arbitrator found that “the weight of [medical] opinion favours the view that the applicant is capable of lighter work with lifting restrictions” (transcript page 14); she suffers a partial incapacity for work.
With regard to the steps prescribed by the NSW Court of Appeal in Mitchell v Central West Health Service (1997) 14 NSWCCR 527 (‘Mitchell’), the Arbitrator noted the parties had agreed that Ms Dollin would be able to earn $600 per week in comparable employment but for the injury. With regard to Ms Dollin’s capacity for work, the Arbitrator stated (transcript pages 15 to 16):
“I am satisfied that the applicant would need suitable recuperation periods during the week and is not capable of undertaking a strenuous full-time job. I do believe that the applicant would benefit, as I say, from the assistance of a vocational counsellor.
It should be noted that 8 per cent whole person impairment or 4 per cent for each upper extremity is not an insubstantial impairment, and I take that into account. On all the evidence, I consider the applicant could undertake 25 hours’ work per week, arranged in such a way so as to alleviate any strain on her shoulders and back, at $15.20 per hour, which I consider to be a reasonable and appropriate figure. That equates to $380 per week. Subtracting that figure from the comparable figure gives a figure of $220. I don’t consider that there should be any further deductions pursuant to section 41 [sic – section 40(1)] of the 1987 Act, and I therefore make an order in the amount of $220 per week.”
ISSUE IN DISPUTE
The principal issue in dispute before the Arbitrator was Ms Dollin’s capacity for work and whether she was entitled to weekly compensation. In her appeal, Ms Dollin states the Arbitrator’s decision is wrong and she is entitled to compensation. This submission and DEL’s response is discussed below.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) states:
“(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.”
I have had regard to Practice Directions Numbers 1 and 6, and the documents before me. Ms Dollin submits there should be an oral hearing. DEL submits the matter can be determined on the papers. Having considered these submissions, 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. With regard to section 352(2), I am satisfied that the compensation at issue – Ms Dollin contends that she is entitled to additional weekly compensation - exceeds $5,000 and constitutes at least 20% of the amount awarded in the decision appealed against. I therefore grant leave to appeal.
FRESH EVIDENCE
Fresh evidence on appeal is governed by section 352(6) of the 1998 Act, which provides as follows:
“(6) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.”
Practice Direction No 6 sets out the process for seeking leave of the Commission to give ‘new evidence’ on appeal. It provides as follows:
“New Evidence
Where a party seeks leave to give new evidence in relation to the decision appealed against, that party must serve a copy of the new evidence on the other parties to the dispute when serving the Application or Opposition.
In general, the Commission will allow new evidence to be introduced only where it can be demonstrated that the new evidence could not reasonably have been obtained by the party and tendered in proceedings before the Arbitrator and that failure to allow the new evidence would cause a substantial injustice in the circumstances of the individual case.”
Practice Direction No 6 also provides that if new evidence is sought to be relied upon, the Application or Opposition to the Appeal must contain:
“ -a schedule of the new evidence,
-a copy of the new evidence,
-a brief outline of the new evidence and the reasons why it was not given in the
proceedings before the Arbitrator, and
-submissions why the new evidence should be admitted.”
Ms Dollin seeks to introduce as fresh evidence a one page report on a MRI from Dr JM Ellis, Orthopaedic Surgeon, to Ms Dollin’s solicitors, dated 17 January 2006. Dr Ellis comments on the pathology in Ms Dollin’s shoulders. DEL submits that it is not appropriate for Ms Dollin to now seek to rely on this report, which was available to her solicitors before the arbitration hearing. Moreover, it submits there would have been no appreciable difference in the Arbitrator’s award had he had the benefit of the award given the matters considered within his discretion.
I agree with DEL’s submission. The Arbitrator’s principal focus was on Ms Dollin’s capacity for work and I doubt this report would have had any influence on the Arbitrator’s decision. It was available to Ms Dollin’s solicitors at the time of the hearing, there is no explanation as to why they sought not to rely on the report, and I am not satisfied that failure to allow this new evidence would cause Ms Dollin a substantial injustice. Leave to introduce this report as new evidence is therefore refused.
SUBMISSIONS, DISCUSSION AND FINDINGS
The role of the Presidential Member on appeal is to review the Arbitrator’s decision as a whole. The review is not a rehearing. In this case, Ms Dollin must demonstrate that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172; The King Island Company Limited v Deery [2005] NSWWCCPD 1) in order to enliven the Presidential Member’s power to interfere with the Arbitrator’s decision pursuant to section 352(7) of the 1998 Act. Where the weight accorded to the evidence by the Arbitrator is challenged, Deputy President Fleming’s comment in Knight v Eyles Nominees Pty Ltd [2004] NSWWCCPD 73, at paragraph 40, should be borne in mind:
“Interference with an Arbitrator’s discretionary judgement as to the weight of evidence should only be done where it is manifestly obvious that the discretion has so miscarried that it has not been exercised fairly and lawfully.”
Ms Dollin said she would not subject herself “to further depression derived from hopeless jobseeking”. She said she was injured at work and has not received proper compensation.
DEL submits the Arbitrator’s determination of weekly compensation under section 40 of the Workers Compensation Act 1987 (‘the 1987 Act’) was correct and should be confirmed.
Having reviewed the Arbitrator’s decision, I am satisfied the Arbitrator properly applied the steps prescribed in Mitchell in determining the weekly compensation to which Ms Dollin is entitled pursuant to section 40 of the 1987 Act. There is nothing to suggest that he made any error in finding that Ms Dollin is capable of working 25 hours a week, with lifting restrictions, in suitable lighter employment. I note Ms Dollin gave evidence at the arbitration hearing that she had applied for 48 administrative or clerical jobs, without success. She said she has had some previous experience of this type of work, for example, “doing data processing” at the Australian Bureau of Statistics; however, she said she was getting too depressed getting “unsuccessful letters all the time” (transcript page 7).
Ms Dollin’s counsel submitted that Ms Dollin has “significant restrictions in relation to her driving, which means it’s very difficult for her to access anywhere other than her local area” (transcript page 9). She also has problems travelling on the train for an extended period because of the problems with her shoulders. Her counsel submitted that although she could work for one or two days a week if she could get work, from a practical perspective she is unemployable.
I note the Arbitrator acknowledged the difficulties Ms Dollin’s experiences in travelling great distances and in driving; further that she lives in Katoomba in the Blue Mountains; also the difficulty “that people in mid-life” experience in finding employment. He suggested that Ms Dollin would benefit from vocational counselling. The Arbitrator said (transcript page 15):
“I have also noted Mrs Dollin’s varied work experience, and it is a relatively good CV. Mrs Dollin is clearly a capable and presentable woman. She is a person who has a variety of skills that could be applied in lighter industry and more sedentary type of work than the nursing work that she has done pre-injury. I have listened to her evidence today, and I am satisfied that she could undertake sedentary work, perhaps of a data processing nature, and I take the point that she has made that there is a crucial distinction between data entry and data processing. I consider that she does have useful experience. And notwithstanding the medical restrictions, the applicant should be able to find suitable employment within the Blue Mountains region.”
The Arbitrator noted there was no real issue with regard to the section 60 (medical expenses) claim. Further, I note that, pursuant to section 326 of the 1998 Act, the AMS’s assessment of Ms Dollin’s permanent whole person impairment is conclusively presumed to be correct.
In conclusion, I am not satisfied that the Arbitrator made any legal, factual or discretionary error in his decision, which must, therefore, be confirmed.
DECISION
The Arbitrator’s decision is confirmed.
COSTS
There is no order as to the costs of this appeal.
Robin Handley
Acting Deputy President
24 October 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ROBIN HANDLEY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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