Doyle v Q Catering Riverside Pty Ltd (formerly known as Caterair Airport Services (Sydney) Pty Ltd)
[2009] NSWWCCPD 14
•9 February 2009
| WORKERS COMPENSATION COMMISSION | ||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||||
| CITATION: | Doyle v Q Catering Riverside Pty Ltd (formerly known as Caterair Airport Services (Sydney) Pty Ltd) [2009] NSWWCCPD 14 | |||||
| APPELLANT: | Augustina Doyle | |||||
| RESPONDENT: | Q Catering Riverside Pty Ltd (formerly known as Caterair Airport Services (Sydney) Pty Ltd) | |||||
| FIRST INSURER: | Cambridge Integrated Services Pty Ltd | |||||
| SECOND INSURER: | Allianz Australia Workers Compensation (NSW) Limited | |||||
| FILE NUMBER: | A1-5191/08 | |||||
| DATE OF ARBITRATOR’S DECISION: | 13 October 2008 | |||||
| DATE OF APPEAL DECISION: | 9 February 2009 | |||||
| SUBJECT MATTER OF DECISION: | Section 40 Workers Compensation Act 1987 | |||||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | |||||
| HEARING: | On the papers | |||||
| REPRESENTATION: | Appellant: | Maurice Blackburn | ||||
| Respondent: | Ellison Tillyard Callanan | |||||
| ORDERS MADE ON APPEAL: | Paragraph two of the Arbitrator’s determination of 13 October 2008 is revoked and the matter is remitted to a different Arbitrator for re-determination of the applicant worker’s claim for weekly compensation. Paragraphs one and three of the Arbitrator’s determination are confirmed. Costs of the second arbitration are at the discretion of the Arbitrator who determines the matter. | |||||
| The respondent employer is to pay the appellant worker’s costs of the appeal. | ||||||
BACKGROUND
The appellant worker, Ms Doyle, worked for the respondent employer, Caterair Airport Services (Sydney) Pty Ltd (now known as Q Catering Riverside Pty Ltd) (‘Caterair’), as a catering assistant from September 1996 until 25 October 2007. In the course of her employment she sustained injuries to her right shoulder and arm on 29 September 2001 and 28 January 2003, to her right foot and ankle on 10 September 2004, and to her lower back and right leg on 7 September 2007.
In respect of her right shoulder injury, on 27 June 2008 Ms Doyle settled a claim for lump sum compensation in the sum of $8,000.00 under the Table of Disabilities in respect of an agreed 10% permanent loss of efficient use of her dominant right arm at or above the elbow as a result of her September 2001 injury.
She filed an Application to Resolve a Dispute (‘the Application’) in the Commission on 4 July 2008 claiming weekly compensation in the sum of $770.00 from 25 October 2007 to date and continuing and lump sum compensation in respect of a 3% whole person impairment as a result of the injury to her right foot and ankle on 10 September 2004. For reasons that were never explained, the claim for weekly compensation was amended at the arbitration to date from 14 December 2007.
The claim for lump sum compensation in respect of the 2004 injury was resolved between the parties and the claim for 3% whole person impairment as a result of the right leg injury was discontinued by consent (T24.39).
The matter was listed for arbitration on 18 September 2008 when the only issue before the arbitrator was Ms Doyle’s claim for weekly compensation from 14 December 2007 as a result of her shoulder injuries (T4.12). No claim was pressed in respect of the back and right leg injuries that occurred on 7 September 2007.
The arbitrator heard lengthy submissions but took no oral evidence. In a reserved decision delivered on 13 October 2008 the arbitrator found in favour of Ms Doyle in respect of a closed period of weekly compensation and made the following orders in a Certificate of Determination of that date:
“1. The parties agree to discontinue proceedings in respect of the lump sum claim pursuant to Section 66 of the Workers Compensation Act 1987, and the requirement to lodge a notice of discontinuance is dispensed with. I note the parties agree to exchange a Complying Agreement in respect of the lump sum claim.
2.That the Respondent pay the Applicant weekly benefits compensation pursuant to Section 40 of the Workers Compensation Act 1987 as follows:
·At the rate of $270 per week from 14 December 2007 to 6 March 2008 with an award for the Respondent thereafter, in respect of weekly benefits compensation.
3. That the Respondent pay the Applicant’s costs as agreed or to be assessed.”
By an appeal filed with the Commission on 3 December 2008, Ms Doyle seeks leave to appeal the arbitrator’s determination.
LEAVE TO APPEAL
Monetary Threshold
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
It is not disputed that the monetary thresholds in section 352(2) of the 1998 Act are met.
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
I grant leave to appeal.
ON THE PAPERS
Section 354(6) of 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 submissions 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.
THE EVIDENCE
Ms Doyle was born in the Philippines in 1952 and is currently 56 years old. She came to Australia in 1985 and worked in various nursing homes as a nurses’ aide for approximately five years. She then had a period out of the workforce while she cared for her daughter, Catherine Maureen, born on 24 September 1989, and returned to the workforce when she started with Caterair in 1996. Whilst her general classification was as a catering assistant, her initial duties were in the “dish-wash” department where she worked for six months until she was transferred to duties requiring her to clean the interior of aircrafts and to deliver goods to them. Essentially, her duties required her to lift and carry goods onto aircraft. She found those duties to be difficult and to often cause pain in her back and shoulders.
On 29 September 2001, she injured her right shoulder whilst lifting boxes containing twelve two-litre bottles of water. Whilst her shoulder was painful, she continued to work in the hope that the pain would resolve. She remained at work until 3 October 2001 when she had one day off and submitted a claim form alleging an injury to her right shoulder as a result of lifting “heavy silver equipment”.
She attended a local general practitioner at the Marrickville Family Medical Centre, who referred her for physiotherapy at the Marrickville Rehabilitation Centre with Mr Bong Lee. She was unfit for work from 3 October 2001 until 5 October 2001 and then fit for suitable duties with no heavy lifting or prolonged elevation of her right arm. He diagnosed a right shoulder sprain as a result of “lifting heavy objects”. In a later certificate, undated but presumably prepared in mid October 2001, Ms Doyle’s condition was certified as right shoulder sprain and “tear of supraspinatus”.
In a later certificate from the same medical centre dated 7 December 2001, Ms Doyle’s condition was certified as “supraspinatus rotator cuff inflammation”. The last medical certificate in this period was dated “7/1/01”, but presumably should have been dated 7 January 2002. That certificate recommended that Ms Doyle remain on suitable duties for four hours a day, five days a week with no heavy or repetitive lifting.
According to Ms Doyle’s statement of 5 November 2007, she remained on light duties for 3 to 4 months but felt pressure from her workmates to return to fulltime work. In addition, Ms Doyle was suffering financially as she was no longer able to work on weekends while on light duties. Therefore, she returned to her normal duties though she did not feel as though she had substantially recovered from her shoulder injury (Ms Doyle’s statement 5 November 2007, paragraph 11).
Ms Doyle was referred to Dr Petchell, orthopaedic surgeon, who saw her on 7 December 2001 and 15 February 2002. In his report of 15 February 2002 to Dr Chu, Dr Petchell noted that Ms Doyle’s pain persisted and that she had not been helped by physiotherapy. She was still taking panadeine forte and voltaren. On examination, Ms Doyle had a good range of movement with flection to 180º and external rotation to 80º. However, her “Hawkin’s impingement sign remained into positive”.
In a separate report of the same date to Caterair’s workers compensation insurer, Dr Petchell stated Ms Doyle’s right shoulder ultrasound was suggestive of an “intrasubstance tear of the supraspinatus with impingement”. He believed that an MRI scan of her right shoulder was warranted to “further delineate the state of her supraspinatus tendon”. A hand written note on his report records “Approved 7/5/02”. No MRI scan is in evidence.
Dr Petchell outlined to Ms Doyle the risks and benefits of a subacromial corticosterorid injection. She was not keen to undertake that procedure because she had a bad experience with a corticosterorid injection in her foot. He added, “certainly with Ms Doyle’s current degree of symptoms surgery would be an option.” He also noted that Ms Doyle was hesitant about returning to full duties because she was experiencing quite a degree of discomfort when she performed those duties prior to her having two weeks off work. Dr Petchell recommended that she avoid any activities that reproduced pain in her shoulder including duties involving overhead lifting.
Ms Doyle continued her normal duties until 28 January 2003 when she again injured her right shoulder whilst “lifting 15 boxes of water” (see Ms Doyle’s claim form dated either 13 February or 13 March 2003). The Employer’s Report of Injury form describes this injury in the following terms:
“lifting box of water bottles onto aircraft
weighed approx 18kgs”
Ms Doyle ceased work on 31 January 2003 and attended on Dr Braga, her usual general practitioner at the Marrickville Family Medical Centre, on 7 February 2003. He declared her unfit for work from 31 January 2003 until 28 February 2003. In his initial WorkCover medical certificate dated 7 February 2003, Dr Braga referred to Ms Doyle having lifted fifteen 18kg boxes at work on 28 January 2003. He diagnosed a re-exacerbation of her shoulder injury and declared her to be unfit until 28 February 2003.
On 7 February 2003 Ms Doyle underwent an ultrasound of her right shoulder, which revealed findings consistent with a partial intrasubstance tear of the supraspinatus. By comparison with the ultrasound performed in October 2001 (not in evidence, but referred to by Dr Bodel) the appearances where “essentially unaltered”.
In a certificate dated 27 February 2003, Dr Rajendran, general practitioner at the same practice as Dr Braga, declared Ms Doyle to be fit for suitable duties for six hours a day, five days a week with a lifting limit of up to 2.5kg from 1 March 2003 until 14 March 2003. He also noted that she was not to elevate her right arm above her head.
Dr Rajendran issued a further light duties certificate on 27 March 2003 declaring Ms Doyle fit for suitable duties from 1 April to 13 April 2003 for eight hours per day, five days a week with a lifting limit up to 7kg, no overhead elevation of the right arm and a ten minute rest every four hours. On 24 April 2003, Dr Rajendran certified Ms Doyle fit for pre-injury duties.
Ms Doyle states that surgery was recommended for her shoulder but she declined. She says that she remained on light duties for approximately 3 to 4 months before returning to her normal duties.
On 10 September 2004, Ms Doyle injured her right ankle and heel when a falling cart struck the back of her right heel. She had approximately one week off work and then returned on light duties for about three months. Her treatment consisted of physiotherapy arranged by Dr Ma, a general practitioner at a different practice, who Ms Doyle saw at the request of Caterair. She states that this injury never resolved and that it left her with a lump at the back of her heel, which causes her pain when pressure is applied and causes difficulty with standing for prolonged periods.
In March 2007, Ms Doyle’s “symptoms were getting worse” and Caterair again sent her to Dr Ma (see Ms Doyle’s statement 5 November 2007, paragraph 16). At this time she had no time off work and continued with her usual duties.
On 7 September 2007, a trolley again struck her right leg and lower back. She attended on Dr Ma who provided a certificate dated 7 September 2007. The doctor diagnosed a soft tissue injury/bruising to the right lower back and right heel and declared Ms Doyle to be fit for suitable duties with a restriction on lifting (up to 5kg) and repetitive bending/twisting for normal hours up to 10 September 2007.
Ms Doyle was finding work “so difficult” that she discussed with her husband the possibility of resigning from her employment with Caterair. She then spoke with “Rita” from Caterair’s Human Resources who indicated that she could give notice or could simply take time off to recover and then return to work. Rita said that prior to taking time off work Ms Doyle was “required” to attend Dr Ma to obtain a “final certificate” because a final clearance was required prior to any annual leave benefits being paid. Ms Doyle then attended on Dr Ma who she understood provided a final certificate on 13 September 2007 indicating that she was fit for pre-injury duties. Ms Doyle strongly disagrees with this certificate and now states that she did not realise that such a certificate was not necessary (Ms Doyle’s statement 5 November 2007, paragraph 18).
Ms Doyle ultimately decided that she could not return to work because of her injuries and she resigned by letter dated 24 September 2007. That letter reads:
“I Augustina Doyle wish to tender my resignation from Caterair. I would like to finish my employment on a date to be agreed upon by the management of Caterair and myself.”
Ms Doyle said that she assumed that it was well known that she resigned because the last injury clearly indicated to her that she could no longer perform the work and she was fearful of suffering further injuries in the workplace, particularly from trolleys (Ms Doyle’s statement 5 November 2007, paragraph 19).
As at the date of her statement, 5 November 2007, Ms Doyle did not have a regular general practitioner, but Caterair had regularly sent her to Dr Ma. Otherwise she attended a doctor at Marrickville Family Medical Centre.
In the last paragraph of her statement, Ms Doyle said that she continued to suffer from pain and restrictions in her right shoulder, right ankle and, to a lesser extent, her back. The injuries have caused her difficulties in performing her domestic activities. She also suffers from significant interference with her sleep as she is often woken by pain and finds it difficult to become comfortable. She also has difficulty shopping and carrying shopping bags. She finds it hard travelling for long distances in motor vehicles and the injuries have had an effect on her confidence.
At the request of her solicitor, Dr Bodel, orthopaedic surgeon, examined Ms Doyle on 6 November 2007. In a report of that date, Dr Bodel took history of Ms Doyle injuring her right shoulder in September 2001 and January 2003. He recorded that after each injury she remained on light duties for a number of months but on each occasion was able to return to normal duties.
Dr Bodel also recorded that Ms Doyle injured her right foot and ankle when a cart struck her foot in 2004. She told Dr Bodel that her “shoulder and her foot and ankle slowly deteriorated over time and she was again seen by Dr Ma in March 2007”. In September 2007 she was again struck by a trolley and injured her lower back and right leg. She was again put on light duties and had great difficulty walking. She found the work “increasingly difficult and soon after that resigned”. She told Dr Bodel that she did not feel that she was fully fit for work though she had been told that a “final certificate was provided”.
Under “Current Complaints”, Dr Bodel recorded the following:
(a)pain and stiffness in the region of the right shoulder;
(b)intermittent lower back pain aggravated by prolonged sitting or bending;
(c)dull ache in the region of the right ankle posterolaterally and slight swelling at the insertion of the Achilles tendon into the calcaneus, and
(d)her ankle pain was aggravated with prolonged standing and walking.
Her treatment consisted of analgesic medication and home based exercises.
Under “Activities of Daily Living”, Dr Bodel recorded that Ms Doyle had “some difficulty with household maintenance and cleaning activities” but she could do light housework.
On examination Dr Bodel noted Ms Doyle to have a reduced range of shoulder movement on the right with impingement but no instability. There was also weakness on resisted shoulder movement. He also noted tenderness at the lumbosacral junction and a slight restriction of lateral bending and rotation of the thoracic spine. There was tenderness in the region of the insertion of the achilles tendon to the right calcaneus with slight swelling at that point. There is also slight wasting of the right calf which was half a centimetre smaller than the left calf.
In respect of the investigations made available to him, Dr Bodel noted that an ultrasound performed on 11 October 2001 indicated supraspinatus tendonitis of the right shoulder and an ultrasound on the same shoulder on 7 February 2003 revealed evidence of “tendonitis but an intact rotator cuff.” An ultrasound on 22 October 2007 of the right calf revealed an “organising haematoma in the subcutaneous tissue but no evidence of deep venous thrombosis or rupture of the Achilles tendon.”
Dr Bodel concluded that Ms Doyle had rotator cuff pathology in her right shoulder with associated pain and stiffness in that shoulder together with minor mechanical symptoms in her back. She also had residual stiffness of ankle dorsiflexion in the right ankle. Dr Bodel added:
“This lady’s overall prognosis is reasonable from a musculoskeletal point of view and she should be capable of a return to her pre-injury style of work should it be available to her.”
Dr Bodel also noted that Ms Doyle’s shoulder symptoms had improved since she ceased work.
In a separate report dated 6 November 2007, Dr Bodel assessed Ms Doyle to have a 10% permanent loss of efficient use of her right arm at or above the elbow due to the effects of her September 2001 injury. He also assessed her to have a 3% whole person impairment as a result of the right lower extremity injury that occurred in 2004. As noted above, lump sum compensation in respect of these assessments has been paid.
Ms Doyle’s solicitor wrote to Dr Bodel on 17 January 2008 in the following terms:
“We thank you for your letter dated 6 November 2007.
We kindly ask you to clarify your opinion that our client is fit for her pre-injury style of work from a musculoskeletal point of view.
Our client’s pre-injury duties involve lifting boxes of drinks and other consumables and carrying them. Are you of the view that our client is fit for this work on a full time basis or does she have any restrictions in terms of the hours that she can work and the weight that she can carry or lift?
We look forward to hearing from you.”
Dr Bodel replied on the same day as follows:
“Thank you for your letter of 17 January 2008 regarding your client, Ms Doyle.
At the time of my assessment on 06 November 2007 I felt that this lady had the potential to be able to upgrade to full time pre-injury duties.
I note in your referral [an] indication that this included activities, ‘lifting boxes of drinks and other consumables and carrying them’.
At the time of my assessment this lady was probably fit for part time light duty activities with a 10-12kg lifting limit initially and over a period of three to four months she may be able to upgrade [to] full time pre injury duties.”
If she is able to so she should be able to upgrade to full time work in a permanently modified basis with a 15kg lifting limit as the maximum overall limit.
Her clinical findings are such that a trial of return to normal work should be possible on the basis of the pathology which is present.
The long term difficulty that she would have would be repetitive use of the arms overhead and that should be avoided even if she were back at normal duties.”
The Arbitrator’s Reasons
The Arbitrator published his Statement of Reasons for Decision (‘Reasons’) on 13 October 2008. The Arbitrator noted and found:
(a)it was not disputed that Ms Doyle injured her shoulder in 2001 and 2003 and she had already been paid lump sum compensation under section 66 of the 1987 Act in respect of a 10 permanent loss of efficient use of her right arm at or above the elbow (Reasons, paragraph 18);
(b)Ms Doyle’s present claim relating to weekly benefits compensation was pursued only in respect of incapacity resulting from the injury to the right arm and shoulder (Reasons, paragraph 20);
(c)Ms Doyle’s work with Caterair was a “heavy job” and she was having difficulties with her employment as a result of her injuries (Reasons, paragraph 23);
(d)Ms Doyle’s probable earnings but for her injury were $770.00 per week (Reasons, paragraph 38);
(e)Ms Doyle accepted the sum of $25,000.00 upon her resignation. He was not persuaded that Ms Doyle’s resignation was as a result of her shoulder injury (Reasons, paragraph 39);
(f)as Ms Doyle is right hand dominant and has a permanent impairment of the right shoulder, alternative duties such as food preparation, or as a retail sales assistant may not be appropriate work in her circumstances and, given her specific lifting and overhead use restrictions as set out by Dr Bodel “quite a number of potential job options would not be available to her in the open labour market” (Reasons, paragraph 40);
(g)Ms Doyle had been fit for normal duties on a full time basis for the period from 24 April 2003 to at least September 2007 regarding her accepted right shoulder and arm injuries (Reasons, paragraph 44);
(h)he was persuaded by the submission made by Caterair that the reason for the lack of medical certification to substantiate Ms Doyle’s claim of on-going incapacity is that there is no support for that contention (Reasons, paragraph 45);
(i)at paragraph 47 of his Reasons the Arbitrator found:
“I have considered all the available evidence. On balance, taken as a whole the evidence is not inconsistent with a finding that, in respect of the right arm and shoulder injury, the applicant was fit for normal duties from 24 April 2003 to the time of her resignation and departure on 13 December 2007 with the exception of a 3 to 4 month period from 6 November 2007 (being the date referenced in Dr Bodel’s report) where the applicant had only partial incapacity, after which, according to Dr Bodel she could upgrade to full time pre-injury duties or to full-time permanently modified work with a 15kg overall lifting limit. I so find.”
(j)in reaching this conclusion the Arbitrator took into consideration that there was no complaint of an arm or shoulder problem in evidence before him subsequent to 24 April 2003, with Ms Doyle working in her normal pre-injury duties over those years and the certificate for full clearance of 13 September 2007 related to the factors unrelated to the right arm/shoulder. He was satisfied that, with the exception of the period from 6 November 2007 to 6 March 2008, that Ms Doyle had been at all material times fit “for pre-injury duties” (Reasons, paragraph 48);
(k)the Arbitrator considered the authorities of Pira Pty Ltd v Tucker (1996) 14 NSWCCR 26 and Aitkin v Goodyear Tyre and Rubber Co (Aust) Ltd (1995) 46 SR(NSW) 20 and noted that the appropriate amount to be considered in section 40(2)(b) is prima facie the worker’s actual earnings unless it is established that those earnings are not a proper test (Reasons, paragraph 49);
(l)in the period from 14 December 2007 to 6 March 2008, Ms Doyle could reasonably secure earnings of $500.00 per week serving beverages in a café or in some similar work within her specified restrictions (Reasons, paragraph 51);
(m)deducting $500.00 from $770.00 gave a difference of $270.00 per week. There were no reasons that required the exercise of the section 40 discretion to reduce that amount (Reasons, paragraph 56), and
(n)Ms Doyle was entitled to an award of weekly compensation under section 40 of the 1987 Act in the sum of $270.00 per week from 14 December 2007 to 6 March 2008 with an award for the respondent thereafter “in respect of weekly benefits compensation”.
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a)finding that Ms Doyle had no incapacity or could earn her pre-injury earnings as at 6 March 2008;
(b)in interpreting the opinion of Dr Bodel, and
(c)in failing to provide adequate reasons as to how Ms Doyle’s capacity ceased, or that she was able to earn her pre-injury earnings, and in drawing an inference that due to the lack of medical certificates subsequent to Ms Doyle’s termination of employment, that she was not incapacitated.
Submissions
The following submissions were made on behalf of Ms Doyle:
(a)Dr Bodel stated that Ms Doyle would always be left with a 15kg lifting limit with additional restrictions in respect of repetitive or overhead work;
(b)the arbitrator accepted (at paragraph 40 of his Reasons) that quite a number of potential job options would not be available to Ms Doyle in the open labour market. The arbitrator accepted Dr Bodel’s evidence as to Ms Doyle’s physical restrictions. In these circumstances the arbitrator fell into error by then finding that Ms Doyle’s incapacity ceased on 6 March 2008;
(c)nothing of significance occurred on 6 March 2008. Ms Doyle did not re-enter the workforce and did not have a clearance to return to work;
(d)the Arbitrator did not find that there was any basis to conclude that an entitlement to partial incapacity benefits had ceased;
(e)Ms Doyle was not consulting any doctors for treatment and that is why she did not produce any medical certificates beyond September 2007, and
(f)Caterair failed to produce any medical evidence as to Ms Doyle’s ongoing medical restrictions.
It was submitted on behalf of Caterair that:
(a)the Arbitrator considered all of the evidence “taken as a whole” (Reasons, paragraph 47);
(b)by allowing a three to four month period from 6 November 2007 of partial incapacity, the Arbitrator was giving Ms Doyle the benefit of doubt in the absence of any other evidence;
(c)in so far as the right shoulder and arm are concerned, there is no evidence that Ms Doyle performed other than her normal duties from 24 April 2003 until the cessation of her employment via voluntary redundancy in December 2007;
(d)there is no evidence that in the time leading up to the cessation of her employment that Ms Doyle’s duties involved “lifting boxes of drinks and other consumables and carrying them” as submitted by Ms Doyle’s solicitor to Dr Bodel. There is no evidence of the weights Ms Doyle was required to lift nor of any requirement of repetitive use of her arms overhead;
(e)Ms Doyle has not seen Dr Bodel since 6 November 2007 and she adduced no other evidence as to her ongoing symptoms or capacity;
(f)Dr Bodel’s initial report stated that Ms Doyle was capable of a return to her “pre-injury style of work”, and
(g)the Arbitrator came to his ultimate determination on a consideration of all of the evidence as well as the available inferences.
DISCUSSION AND FINDINGS
To understand the Arbitrator’s approach it is necessary to consider his Reasons in more detail.
At paragraph 44 he noted that Ms Doyle continued to work in what he described as her “usual” or “normal” duties after seeing Dr Ma on 8 March 2007. He then referred to the September 2007 back injury and the certificate of 13 September 2007 that certified Ms Doyle “fit for pre-injury duties” with no restrictions stipulated. He observed that prior to that certificate, Ms Doyle had been certified fit for normal duties since 24 April 2003 in respect of her “right arm/shoulder”. He therefore concluded that Ms Doyle had “been fit for normal duties on a full-time basis for the period from 24 April 2003 to at least September 2007 regarding only her accepted right shoulder and arm injuries sustained on 27 September 2001 and 28 January 2003.” The Arbitrator’s reference to “normal duties” must be seen as a reference to Ms Doyle’s usual duties with Caterair, as opposed to “any” duties.
The Arbitrator accepted that there was an inference to be drawn in Caterair’s favour from the lack of provision of any further medical certificate to substantiate Ms Doyle’s claim of ongoing incapacity. The inference was said to be that “there is no support for that contention” (Reasons, paragraph 45).
He then considered Dr Bodel’s evidence at paragraph 46 of his Reasons.
The Arbitrator concluded, at paragraph 47 of his Reasons, that the evidence was not inconsistent with a finding that, so far as Ms Doyle’s shoulder was concerned, she was fit for “normal duties” from 24 April 2003 to the time of her “resignation and departure on 13 December 2007” with the exception of a three to four month period from 6 November 2007 after which she could upgrade to “full-time pre-injury duties or to full time permanently modified work with a 15kg overall lifting limit”. The Arbitrator took into account the submission that there was no complaint of an arm or shoulder problem in evidence subsequent to 24 April 2003 and she had certificates, relating to her other injuries, giving her a full clearance.
At paragraph 48 the Arbitrator expressed his satisfaction that Ms Doyle was “fit for pre-injury duties” with the exception of the four-month period from 6 November 2007 to 6 March 2008 when she was, based on Dr Bodel’s evidence, partially incapacitated.
The Arbitrator’s reasoning discloses an error in his approach to the assessment of Ms Doyle’s entitlement to weekly compensation.
The test for incapacity is conveniently summarised in the text Workers Compensation in New South Wales, second edition, by C P Mills, where the author said, at 285:
“The question is whether the injury has left the worker in such a position that in the open labour market his earning capacity is less than it was before the injury (Williams v Metropolitan Coal Co Ltd (1948) 76 CLR 431 per Starke J), and it is not limited to the effect on his capacity for his former work (per Dixon J). In Ball v Hunt [1912] AC 496, Lord Loreburn had said that there is incapacity when a man has a physical defect which makes his labour unsaleable in any market reasonably accessible to him, and there is partial incapacity when such a defect makes his labour saleable for less than it would otherwise fetch: see Commissioner for Railways v Agalianos (1955) 92 CLR 390 per Dixon CJ.” (emphasis added)
In Alexander v Ashfield Municipal Council, CA 78/81, 27 October 1982, Hutley JA observed:
“Capacity is diminished, even though in selected instances the worker can earn as much as he did before, if there are fields from which he is excluded, by reason of the injury, in which he laboured at the time of injury.”
Campbell JA (Rein J agreeing) quoted the above passages, with apparent approval, in Ric Developments t/as Lane Cove Poolmart v Muir [2008] NSWCA 155.
Dr Bodel said Ms Doyle “may” be able to upgrade to full time pre-injury duties. Whether that was right or not is not disclosed in the evidence because Ms Doyle never attempted such an upgrade, as she had already ceased work. The Arbitrator’s conclusion seems to have assumed that Dr Bodel’s optimistic prognosis had become a reality by 6 March 2008. There was no basis for that assumption. That left Dr Bodel’s alternative scenario, namely, that if Ms Doyle could not upgrade to her pre-injury duties she “should” be able to upgrade to full time work on a permanently modified basis with a 15kg lifting limit. That was also based on an untested assumption. Even assuming that Dr Bodel’s second scenario was correct, the Arbitrator failed to consider the consequences of such a restriction on Ms Doyle’s earning capacity in the labour market reasonably accessible to her. Though she had been performing her usual duties until she resigned that did not indicate fitness without restriction on the open labour market. Ms Doyle’s evidence was that she was “finding work difficult” (paragraph 18 of her statement) and that she strongly disagreed with Dr Ma’s assertion that she was fit for work.
The Arbitrator failed to acknowledge the difference between actual earnings (whilst employed) and ability to earn (whilst unemployed). When a worker is employed, his or her actual earnings will be prima facie evidence of ability to earn (Aitken v Goodyear Tyre & Rubber Co (Aust) Ltd (1945) 46 SR (NSW) 20). However, once that employment ceases, the Commission is then required to determine what the worker is able to earn in suitable employment in the labour market reasonably accessible to that worker (Hamilton v Shelton Iron, Steel and Coal Co (1926) 96 LJKB 295 at 301, applied in Steggles Pty Ltd v Aguirre (1988) 12 NSWLR 693).
The Arbitrator accepted that Ms Doyle’s work with Caterair was “heavy” (Reasons, paragraph 23). That finding was open on the evidence and is supported by the two claim forms in evidence that state that the box of water bottles Ms Doyle lifted when she sustained her injury in 2003 weighed 18kgs. Ms Doyle’s claim form suggests that she lifted 15 such boxes on the day of her injury. It is also supported by Ms Doyle’s evidence that her duties required her to lift and carry goods onto aircraft and that she found those duties difficult (Ms Doyle’s statement, paragraphs four and five). Caterair tendered no material to contradict this evidence.
That evidence, together with the evidence that Ms Doyle has a permanent 10% loss of efficient use of her dominant arm, and the evidence from Dr Bodel of a restriction that would prevent her from performing work requiring lifting above 15kg, suggests that Ms Doyle has a disability that will restrict her ability to find and retain suitable employment in the labour market accessible to her. Dr Bodel also referred to Ms Doyle having a long-term difficulty with repetitive use of her arms overhead. The evidence did not disclose if her duties with Caterair required overhead work, but the Arbitrator failed to properly consider the impact of this restriction, and the other restrictions noted above, on Ms Doyle’s ability to earn in the open labour market.
The fact that Ms Doyle performed her usual duties until she resigned was not determinative of her claim for weekly compensation, though it was certainly a relevant factor in assessing the claim. The Arbitrator placed great emphasis on that fact, but failed to adequately acknowledge Ms Doyle’s evidence of continuing pain and stiffness in her right shoulder (see Dr Bodel’s report of 6 November 2007, page three) and that she was finding work so difficult that she discussed resigning with her husband (Ms Doyle’s statement, 5 November 2007, paragraph 18). This evidence contradicts the Arbitrator’s assertion (at paragraph 48 of his Reasons) that there was no complaint of an arm or shoulder problem in evidence before him subsequent to 24 April 2003.
The Arbitrator was required to assess Ms Doyle’s ability to earn in the labour market reasonably accessible to her having regard to the whole of the evidence, including the nature of injury and disability, her age, education and training, her work experience and the fact that she has not had the benefit of any rehabilitation training. The Arbitrator failed to properly undertake that exercise and failed to explain why her incapacity ceased on 6 March 2008.
The Arbitrator also erred in drawing an adverse inference from Ms Doyle’s failure to tender any medical certificates to substantiate her claim. The principle in Jones v Dunkel (1959) 101 CLR 298 (‘Jones v Dunkel’) is summarised in Cross on Evidence, seventh Australian edition 2004, at [1215], as follows:
“First, that unexplained failure by a party to give evidence, to call witnesses, or to tender documents or other evidence or produce particular material to an expert witness may, not must, in appropriate circumstances lead to an inference that the uncalled evidence would not have assisted that party’s case:…
The significance to be attributed to the fact that a witness did not give evidence will in the end depend upon whether, in the circumstances, it is to be inferred that the reason why the witness was not called was because the party expected to call him feared to do so. But there will be circumstances in which it has been recognised that such an inference is not available or, if available, is of little significance. The party may not be in a position to call the witness.”
Jones v Dunkel “licences, but does not compel, the drawing of inferences when a witness is not called” (per Campbell JA in Howell v Macquarie University [2008] NSWCA 26 at [98]).
Ms Doyle’s failure to tender any certificates from a general practitioner was explained in the evidence. She said she did not have a regular general practitioner. There was no evidence that she had seen a general practitioner between November 2007 and the date of the arbitration. Dr Bodel noted that her treatment consisted of analgesic medication and home based exercises, which implies that she was not seeing a doctor for treatment at that time. Whilst the state of the evidence was most unsatisfactory, it was not open to the Arbitrator to infer that there was no support for Ms Doyle’s “contention” of an ongoing incapacity. The support for Ms Doyle’s contention came from the uncontested evidence of Dr Bodel that as a result of her injury she has a permanent loss of use of her dominant arm and that that loss restricted her ability to engage in heavy work. That is the only work for which she is qualified and the only work she has ever performed.
Whilst Dr Ma certified Ms Doyle fit for work on 13 September 2007, that evidence was not determinative of the issues before the Arbitrator. The evidence is that Ms Doyle was “required” to attend that doctor by Caterair (Ms Doyle’s statement 5 November 2007, paragraph 18). Further, Dr Ma’s certificate referred only to the bruising injury to the low back and right heel/calf. It is not known what history he took about her shoulder injury, or if he even examined Ms Doyle’s right shoulder. His certificate was of limited, if any, probative value.
For the above reasons, the Arbitrator’s approach has tainted the whole of his determination and the matter must be re-determined.
OTHER MATTERS
The Arbitrator seems to have assumed that Ms Doyle’s “resignation and departure” from Caterair was on 13 December 2007. The evidence on this issue, as with all other issues in this case, was most unsatisfactory. Ms Doyle’s letter of resignation was dated 24 September 2007, but said she wanted to finish work on a date agreed with management. The letter from Caterair dated 25 October 2007 stated that Caterair employed Ms Doyle “between 20 September 1996 and 25 October 2007”. The last payslip in evidence was dated 19 September 2007 and covered the period 10 September to 16 September 2007. It included payments for annual leave and long service leave, which implies that Ms Doyle last worked on 16 September 2007. The Application initially claimed weekly compensation from 25 October 2007, but was amended at the arbitration, without explanation, to claim from 14 December 2007. Ms Doyle’s statement of 5 November 2007 seems to have been written after she ceased work. Therefore, the Arbitrator’s assumption that Ms Doyle resigned and departed from Caterair on 13 December 2007 is most unlikely to be correct. This issue, along with several other important issues, will need to be clarified at the re-determination.
The Arbitrator referred to Ms Doyle having taken a redundancy upon the termination of her employment. Though a redundancy was referred to in submissions (T5.52 and T20.13) and it seems to have been agreed that Ms Doyle did receive a redundancy, there was no evidence as to when the redundancy was paid or in what circumstances. It is difficult to determine what, if any, weight the Arbitrator attached to the redundancy, but he referred to it as a possible explanation for Ms Doyle having resigned (Reasons, paragraph 45). In the absence of evidence, it is difficult to see what weight, if any, should have been given to the redundancy. The next Arbitrator may be assisted if evidence is called on this issue at the re-determination.
CONCLUSION
Having conducted a review on the merits (per Spigelman CJ in State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249; (2007) 5 DDCR 287 at [28]), I am of the view, for the reasons given in this decision, that the Arbitrator erred in his approach to the assessment of Ms Doyle’s entitlement to compensation under section 40 of the 1987 Act.
Because of the unsatisfactory state of the evidence, I am unable to re-determine the matter and the case will be remitted to a different Arbitrator for that purpose. No doubt careful consideration will be given to the preparation and presentation of the case at the re-determination. I note that the lay and medical evidence is now over 12 months out of date and, at the least, that evidence will have to be brought up to date, expanded and clarified. In addition, precisely why Ms Doyle abandoned any claim based on her 2004 and 2007 injuries is unclear. It may be prudent for Ms Doyle to retain experienced counsel at the re-determination.
DECISION
Paragraph two of the Arbitrator’s determination of 13 October 2008 is revoked and the matter is remitted to a different Arbitrator for re-determination of the applicant worker’s claim for weekly compensation.
Paragraphs one and three of the Arbitrator’s determination are confirmed. Costs of the second arbitration are at the discretion of the Arbitrator who determines the matter.
COSTS
The respondent employer is to pay the appellant worker’s costs of the appeal.
Bill Roche
Deputy President
9 February 2009
I, TUYET WALLIS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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