Far West Area Health Service v Timmins
[2006] NSWWCCPD 155
•19 July 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Far West Area Health Service v Timmins [2006] NSWWCCPD 155
APPELLANT: Far West Area Health Service
RESPONDENT: Debbie Rose Timmins
INSURER:NSW Treasury Managed Fund
FILE NUMBER: WCC 3845-05
DATE OF ARBITRATOR’S DECISION: 6 July 2005
DATE OF APPEAL DECISION: 19 July 2006
SUBJECT MATTER OF DECISION: Sections 38 and 40 of the Workers Compensation Act 1987
PRESIDENTIAL MEMBER: Acting Deputy President Julian Martin
HEARING:On the papers
REPRESENTATION: Appellant: Everingham, Solomons Solicitors
Respondent: Hunt & Hunt Lawyers
ORDERS MADE ON APPEAL: Paragraph 1 of the Arbitrator’s decision dated 6 July 2005 is revoked and the following orders are substituted:
1.That Far West Area Health Service pay Mrs Debbie Rose Timmins weekly compensation pursuant to section 40 of the Workers Compensation Act 1987 as follows:
(a)$328.90 per week from 20 January 2005 to 31 March 2005;
(b)$334.10 per week from 1 April 2005 to 30 September 2005;
(c)$340.90 per week from 1 October 2005 to 31 March 2006;
(d)$347.90 per week from 1 April 2006 to date and continuing pursuant to section 40 of the Workers Compensation Act 1987.
2. Paragraphs 2 and 3 of the Certificate of Determination of 6 July 2005 are confirmed.
3. No order is made as to costs of the appeal.
BACKGROUND TO THE APPEAL
On 28 July 2005 Far West Area Health Service (‘Collarenabri Hospital’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 6 July 2005.
The Respondent to the Appeal is Debbie Rose Timmins (‘Mrs Timmins’).
Mrs Timmins was born on 20 January 1962 and commenced employment with Collarenabri Hospital in 1988 as a kitchen hand/domestic. Prior to commencement with Collarenabri Hospital, Mrs Timmins had no problems with either of her knees and in fact had no prior workers compensation claims.
On 27 May 2003 on finishing her shift, Mrs Timmins was walking out of the back stairs at Collarenabri Hospital to take some rubbish to the bin when she fell onto both knees. She felt immediate pain in her right knee and, to a far lesser extent, her left knee. She has had continuing problems with both knees since the injury. The day after the accident Mrs Timmins attended her general practitioner, Dr Allan. She then had 4 weeks off work, as previously arranged for a holiday and then returned to work at normal duties, but with difficulty.
On 12 September 2003, Dr Holt, orthopaedic surgeon, performed an arthroscope on the right knee. Mrs Timmins was then off work until 30 September 2003 when she returned to work at Collarenabri Hospital on light duties. On 14 October 2004 Dr David Hayes, orthopaedic surgeon, performed bilateral knee arthroscopy and lateral release after which Mrs Timmins was certified unfit for work and remained off work.
On 8 December 2004 the insurer for Collarenabri Hospital sent Mrs Timmins a letter denying liability stating that her employment was not a substantial contributing factor. Medical expenses were paid to 10 December 2004 and weekly payments of compensation to 20 January 2005.
Proceedings were commenced in the Commission on 10 March 2005 and an Arbitration hearing took place on 9 June 2005 which resulted in a Certificate of Determination being issued.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 6 July 2005 records the Arbitrator’s orders as follows:
“(1) That the Respondent pay the Applicant weekly compensation at the rate of $583.80 from 20 January 2005 to 2 June 2005 and thereafter 80% of that amount under Section 38 of the Workers Compensation Act 1987.
(2)That the Respondent pay the Applicant’s Section 60 of the Workers Compensation Act 1987 expenses [sic] on production of accounts or receipts.
(3)That the Respondent pay the Applicant’s costs as agreed or assessed.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are:
1.whether the Arbitrator erred in finding that Mrs Timmins injured both knees on 29 May 2003;
2.whether the Arbitrator failed to properly consider the medical evidence of Dr Hayes and provide adequate reasons for rejecting that evidence; and
3.whether the Arbitrator erred in awarding the worker weekly compensation pursuant to Section 38 of the Workers Compensation Act 1987 (‘the 1987 Act’).
ON THE PAPERS REVIEW
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 submission by both of the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
LEAVE
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act. As the appeal involves an ongoing award of weekly compensation, the amount at issue clearly meets the threshold test in section 352(2) of the 1998 Act and I grant leave to appeal.
FRESH EVIDENCE
Neither party asks that fresh evidence be considered.
EVIDENCE
Collarenabri Hospital state that at the time of preparing submissions, the transcript was not available and therefore sought leave to make further submissions on receipt of the transcript. A copy of the transcript was forwarded to both parties on 5 September 2005 and no further submissions have been received by either party.
Medical Evidence
Dr Allan provided a medical report dated 24 January 2005 where she states:
“I first saw Mrs Timmins on 28 May 2003 in relation to this injury.
She reported that the previous day she was walking down the steps on the way out of the building after her shift at work. She missed her footing on a step and fell down 3 steps landing on the bitumen at the bottom. She reported landing heavily on both knees but that the right one was far worse than the left.”
On examination Dr Allan noted that Mrs Timmins had “…a markedly swollen and tender right knee…a moderately tender left knee”.
Dr Allan continued that “Mrs Timmins also has had difficulties with her left knee since the fall, but they were initially overshadowed by the problems with the right.”
In the same report Dr Allan states:
“There is absolutely no question that the fall at work has been the contributing factor to the continuing problems with both knees. I have been Mrs Timmins’ GP for two years prior to the injury, and she has been attending that practice for the whole of her life. There is no mention anywhere in her notes of any difficulties with her knees prior to the fall.”
Dr Brian W. Holt, Knee Surgeon, provided three medical reports. Dr Holt takes a history of injury to the right knee only and in his second report dated 15 September 2003 refers to the arthroscope that he performed on 12 September 2003 and states it showed “…a full thickness, articular cartilage lesion in the retropatellar surface.” Dr Holt continues “…these injuries would be consistent with a direct blow to the knee especially the full thickness injury to bare bone on the retropatellar surface.”
Dr A.G. Hopcroft, general surgeon (orthopaedics), saw Mrs Timmins at the request of her solicitors and has provided a report dated 16 February 2005 resulting from a medical examination on the same date. Dr Hopcroft takes a history of injury to both knees. The doctor states “…this patient has suffered significant injury mainly to her right knee but also to her left in the work related fall onto both knees that occurred on 27 May 2003”.
Dr Hopcroft in the same report goes on to state:
“I believe that the responses to questions put to Dr David Hayes by the TMF Western Regional Centre [Collarenabri Hospital’s insurer] in his response of 30/11/04 fails to take into account the acute findings found at arthroscopy by the earlier surgical intervener.
I believe it is more probable than not that a significant component of the damage found in this patient’s right knee and which is clinically obvious in the left was caused by the fall due to the impaction of the patellofemoral joint and the twisting injury suffered.”
Collarenabri Hospital tendered four medical reports of Dr David Hayes, orthopaedic surgeon. Dr Hayes operated on both Mrs Timmins’ knees and the first report he prepared is dated 16 August 2004 which was before the surgery. Dr Hayes takes a history of injury to the right knee but notes “Ms Timmins stated that her left knee has had some mild symptoms until two to three months prior to seeing me when her pain in the left knee became worse, and the same on the right knee.”
Dr Hayes in the same report states:
“The current problem is one of trauma induced exacerbation of pre-existing degenerative condition predominantly affecting the patello femoral joints of both knees.
The prognosis is, at best, fair. I believe there will be a continuation of symptoms as the trauma usually results in some permanent reduction in function and increase in pain. I do not believe that Mrs Timmins will resolve her pain levels to what they were before her injury.”
Dr Hayes continues in that same report to state that “…this still may not allow her to work in all of the normal duties of a kitchen hand and would be due to the underlying disease process rather than the work related injury.”
The second report of Dr Hayes is dated 14 October 2004 and is addressed to Dr Allan and sets out the details of the surgery of that same date.
The third report of Dr Hayes is dated 30 November 2004 and states as follows:
“In response to your questions:
1. Has any aggravation that might have occurred to her right knee on 29 May 2004 [sic] ceased? Yes.
2. Has any aggravation from her work to her left knee ceased? Yes.
3.Are her current symptoms in either or both knees substantially due to a fall at work on 29 May 2004? [sic] No.”
The final report from Dr Hayes dated 19 March 2005 states “…in answer to your question, the underlying disease process of both her knees is a degenerative process.”
SUBMISSIONS
Finding that Mrs Timmins injured both knees on 29 May 2003.
The Arbitrator at paragraph 27 of the Decision found that Mrs Timmins injured both knees. Collarenabri Hospital in effect challenges the finding of injury to the left knee. They point to the following evidence in support of their submission:
·The claim for compensation dated 22 July 2003 refers to injury to the right knee alone.
·Dr Brian Holt in his report of 29 July 2003 takes a history of injury to the right knee only.
·Dr Hayes in his report of 16 August 2004 takes a history of injury to the right knee on 29 May 2003.
The Arbitrator had before him the statement of Mrs Timmins dated 16 February 2005 and at paragraph 20 of the Decision refers to the statement which says:
“…On 27 May 2003 I had finished my shift and I was walking out of the back stairs at Collarenabri Hospital to take some rubbish to the bin. I fell onto both knees as I was trying to protect my chest, for which I had prior surgery. I felt immediate pain in my right knee and to a far lesser extent, my left knee. Since this injury I have had continual problems with both of my knees.”
The Arbitrator also in paragraph 20 of his Decision refers to the medical report of Dr Allan dated 24 January 2005. In addition to that which I have quoted above in paragraphs 15 to 18, Dr Allan in that same report refers to the findings of Dr Hayes’ arthroscopies and states:
“The latter findings are consistent with the initial mechanism of injury of a direct fall onto both knees. Dr Hayes’ findings in the left knee are consistent with direct trauma injury to the left kneecap. Dr Hayes’ findings in the right knee show a continuation of the initial injury, that is full thickness patella cartilage lesion and a deterioration in the osteoarthritis component in the medial compartment.”
The issue of whether Mrs Timmins injured both knees on 29 May 2003 whilst employed by Collarenabri Hospital was a question of fact for the Arbitrator. In my view there was strong evidence in support of the Arbitrator’s finding that Mrs Timmins injured both knees at Collarenabri Hospital on 27 May 2003. This includes:
·The contemporaneous evidence of Dr Allan who saw Mrs Timmins the day after the accident. This doctor took a history of injury to both knees and noted on examination that the right knee was markedly swollen and tender and that the left knee was moderately tender.
·Dr Allan was the only doctor to provide an opinion on Dr Hayes’ findings resulting from the arthroscopies of both knees. Dr Allan’s opinion is that those findings are consistent with direct trauma to both knees.
Dr Hayes’ Evidence
Collarenabri Hospital submit that Dr Hayes was in the best position to ascertain the cause of Mrs Timmins’ ongoing incapacity and symptoms and further that he has set out in great detail his findings and opinions in a number of reports that were before the Arbitrator.
Collarenabri Hospital further submits that Dr Hayes in his first report of 16 August 2004 took a detailed history of the incident and the treatment received by Mrs Timmins up to his first involvement on 2 August 2004.
I do not accept this submission. Dr Hayes in his report of 16 August 2004 states “allegedly there was a patella defect and a lateral femoral condyle injury diagnosed at the time of surgery.” Under the heading Investigations there is no mention of Dr Holt’s findings at arthroscopy of the right knee which he performed on 12 September 2003.
Further, on reading Dr Hayes’ report of 16 August 2004 under the heading History, he does not record that Mrs Timmins had no previous problems with her knees before the injury on 27 May 2003.
In paragraph 26 above I have set out in full the report of Dr Hayes which is dated 30 November 2004. In that very brief report the doctor has stated that the aggravation resulting from the injury to both Mrs Timmins’ knees have ceased. This is inconsistent with what the doctor said in his report of 16 August 2004 which I have quoted above in paragraph 23. In that report the doctor was of the opinion that the symptoms from the trauma induced exacerbation will continue as that trauma usually results in some permanent reduction in function and increase in pain. There is no explanation from Dr Hayes in regard to this inconsistency.
The weight to be given to Dr Hayes’ opinion was a question in the discretion of the Arbitrator. As Deputy President Byron found in John Robinson t/as Robinson’s Pharmacy v King [2005] NSW WCC PD 39, (‘Robinson’):
“The weight and relevance of the evidence is a matter in the discretion of the Arbitrator, upon due consideration of that evidence. In circumstances where it can be demonstrated that the Arbitrator has failed to exercise his discretion fairly and lawfully, the decision may be overturned. The circumstances in which this occurs are where the Arbitrator has acted upon a wrong principle, allowed irrelevant considerations to influence his decision, made a material mistake as to facts or has failed to take into account relevant and material considerations, (House v The King (1936) 55 CLR 499 at 504-505; Norbis v Norbis (1986) 161 CLR 513 at 520 and Re National Roads and Motorists Association Ltd [2003] FCAFC 206)”.
The Arbitrator was entitled to discount the evidence of Dr Hayes and for the reasons I have referred to above I can see no error on his part in so doing.
Collarenabri Hospital submits that the Arbitrator has not disclosed any reasoning process by which the parties can understand why the Arbitrator did not accept Dr Hayes.
It is apparent that the Arbitrator’s reasons are brief, however, he has referred to the relevant evidence and in my view has articulated “the essential grounds upon which the Decision rests” (Soulemezis v Dudley [Holdings] Pty Ltd [1987] 10 NSWLR 247).
On having carefully read the medical evidence and other documentary material that was before the Arbitrator and the Reasons for Decision, I am of the opinion that the Arbitrator has adequately explained his reasoning for not accepting the evidence of Dr Hayes. It is to be remembered that the parties themselves are acquainted with the circumstances surrounding Mrs Timmins’ claim.
Awarding Compensation Pursuant to Section 38 of the 1987 Act
The Arbitrator in paragraph 28 of the Decision found that “…the Respondent, being unable to find suitable duties for the Applicant, is liable to pay her weekly compensation pursuant to section 38 of the 1987 Act.” In paragraph 30 of the Decision the Arbitrator found that “…the Applicant is partially incapacitated for work and the Respondent is not able to offer her suitable duties.”
Collarenabri Hospital submit the Arbitrator failed to consider the provisions of section 38(4) of the 1987 Act which states that the benefits of section 38 do not apply unless the worker is seeking suitable employment in accordance with section 38A of the 1987 Act.
Section 38A of the 1987 Act sets out the determination of whether a worker is seeking suitable employment and specifically that the worker is “…ready, willing and able to accept an offer of suitable employment from the employer” and that the worker has supplied the employer “with a medical certificate with respect to the worker’s partial incapacity for work, being a medical certificate that is in or to the effect of a form approved by the Authority.”
Mrs Timmins submits that it was common ground between the parties that the employer was no longer able to provide light duties and that she had fulfilled her mutual obligations of seeking suitable employment.
This is not entirely correct. The best evidence is that contained in the two reports of CRS Australia which were prepared by Korine Reynolds, Rehabilitation Consultant and tendered into evidence by Collarenabri Hospital. The first report refers to a meeting on 30 November 2004. Mrs Timmins was in attendance along with Korine Reynolds, Dr Allan and two representatives of Collarenabri Hospital. The meeting discussed suitable duties but was finalised with the notation that there was to be a Functional Capacity Evaluation and a Vocational Assessment in January 2005 and that Dr Allan would certify Mrs Timmins unfit for work until the results of the assessments were available.
The second report of CRS Australia is dated 10 December 2004 and refers to the surgery on 14 October 2004 and that Mrs Timmins was certified unfit for work following this. This report also states that on 8 December 2004 the insurer advised CRS Australia that workers compensation was being denied and accordingly instructed CRS Australia to close the occupational rehabilitation case.
It is apparent that after this surgery Mrs Timmins did not return back to work and in fact the only medical certificate in evidence is that tendered by Collarenabri Hospital from Dr Allan which states the worker is unfit to work from 13 December 2004 to 21 January 2005.
In her medical report of 24 January 2005, Dr Allan states that she last saw Mrs Timmins on 21 January 2005 and provides an opinion that she is fit for restricted duties.
There is no evidence of Mrs Timmins being ready, willing and able to accept an offer of suitable employment from Collarenabri Hospital after liability was denied on 8 December 2004. Also there is no evidence of Mrs Timmins supplying either the employer or the insurer with a medical certificate with respect to partial incapacity for work after liability was denied on 8 December 2004.
Accordingly, I find the Arbitrator’s determination in awarding compensation pursuant to section 38 of the 1987 Act constitutes an error of law. This finding having been made, I am of the view that it is preferable in the circumstances that I revoke paragraph 1 of the Certificate of Determination and substitute a new decision in its place (Chubb Security Australia Pty Ltd v Trevarrow [2004] NSWCA 344).
I have taken this view as the evidence before the Arbitrator was documentary and I have read the material in detail together with the submissions of both parties at the Arbitration, which were recorded in the transcript, and their further written submission on appeal.
Notwithstanding the error in relation to section 38 of the 1987 Act, for the reasons above I am of the opinion that the Arbitrator’s conclusions of fact with respect to the issue of injury are well founded and should stand.
Section 40 Entitlement
The Court of Appeal in Mitchell v Central West Health Service (1997) 14 NSWCCR 527 (‘Mitchell’) held that section 40 of the 1987 Act requires the Tribunal to undertake a five step process.
The five steps in assessing entitlement pursuant to section 40 of the 1987 Act are as follows:
(1)Determination of the weekly amount the worker would probably have been earning if uninjured;
(2)Determination of the amount that the worker is earning or would be able to earn (subject to subsection 40(3) and section 43A);
(3)Subtraction of the figure in (2) from the figure in (1);
(4)Exercise of the discretion contained in subsection (1) of section 40; and
(5) Make an award in the amount arrived at by step (4).
Both parties agree that Mrs Timmins is partially incapacitated and that compensation was paid to 20 January 2005. It was further agreed by both parties that the probable earnings but for injury were $642.05 per week (see page 7 of the transcript).
Accordingly at step (1) I find that Mrs Timmins’ probable earnings but for injury are $642.05 per week for all material times.
The Amount the Worker is earning, or would be able to earn
Collarenabri Hospital submitted at the arbitration hearing that Mrs Timmins could do reception type work as a court officer or process work and that jobs are available in the area for approximately $400 per week and therefore any loss of wages ought to be assessed under section 40 at approximately $200 per week (see paragraph 24 of the Decision).
In her Opposition to Appeal Mrs Timmins submits that on the open labour market her capacity to earn in employment reasonably available to her is in the vicinity of a range between $250 and $320 gross per week and that the duties she was performing prior to the surgery on 14 October 2004 were in effect a “sheltered arrangement”.
Korine Reynolds records in the CRS Australia report of 7 December 2004 that Mrs Timmins had performed filing on a suitable duties plan without success.
At the time of the Arbitration, Mrs Timmins had not returned to work after her employment was terminated by Collarenabri Hospital. When considering the second step in section 40 of the 1987 Act I am required to take into account section 43A of the 1987 Act.
This section directs that I look to various matters in identifying ‘suitable employment’. In looking at Mrs Timmins’ statement of 16 February 2005, she left school at the age of 16. She then worked for one year at a butcher shop and then at the post office for a further three years. She then worked as a telephonist at Collarenabri up until she commenced employment with Collarenabri Hospital.
Mrs Timmins lives at Collarenabri in north western New South Wales which has a population of approximately 500 people. The closest large town is Moree which is approximately 1½ hours drive away. It is apparent that opportunities for restricted employment on the labour market reasonably accessible to Mrs Timmins would be less frequent than in a larger town.
Taking into account the restricted class of work for which Mrs Timmins can now compete, her work experience since leaving school at the age of 16 and her place of residence, I find that Mrs Timmins’ ability to earn in some suitable employment is $250 per week for all material times.
The amount at step (3) after subtracting the figure at step (2) from step (1) is $392.05 per week.
Section 40 Discretion
Having found the amount at step (3), sub-section (1) of section 40 of the 1987 Act requires the Tribunal to consider whether there are reasons for the exercise of the discretion to reduce that amount. In Australian Wire Industries v Nicholson (1985) 1 NSWCCR 50 the Court of Appeal held that at this stage all facts had to be examined and this included such matters as “…retirement, other supervening illnesses or injuries, the personal employment history of the worker, and so on.”
Having read the transcript, medical reports and other material before the Arbitrator I can see no reason for the exercise of the discretion in this matter as Mrs Timmins was well motivated before her injury and after her return to work on light duties on 30 September 2003.
At step (5) the amount is $392.05 per week which is greater than the statutory maximum for a worker with no dependents. Accordingly I intend to enter an award at the maximum rate from 20 January 2005 pursuant to section 40 of the 1987 Act.
DECISION
For the reasons referred to above, I revoke paragraph 1 of the Arbitrator’s Decision dated 6 July 2005 and the following decision is made in its place:
1.That Far West Area Health Service pay Mrs Debbie Rose Timmins weekly compensation pursuant to section 40 of the Workers Compensation Act 1987 as follows:
(a) $328.90 per week from 20 January 2005 to 31 March 2005;
(b) $334.10 per week from 1 April 2005 to 30 September 2005;
(c) $340.90 per week from 1 October 2005 to 31 March 2006;
(d) $347.90 per week from 1 April 2006 to date and continuing pursuant to section 40 of the Workers Compensation Act 1987.
2.Paragraphs 2 and 3 of the Certificate of Determination of 6 July 2005 are confirmed.
COSTS
No order is made as to costs of the appeal.
Julian Martin
Acting Deputy President
19 July 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JULIAN MARTIN, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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