Farm Pride North Pty Ltd t/as ACM Eggs v Deaves
[2007] NSWWCCPD 182
•22 August 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE
COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Farm Pride North Pty Ltd t/as ACM Eggs v Deaves and Anor [2007] NSWWCCPD 182
APPELLANT: Farm Pride North Pty Ltd t/as ACM Eggs (in the interest of Employers Mutual NSW Ltd)
FIRST RESPONDENT: Dianne Deaves
SECOND RESPONDENT: Farm Pride North Pty Ltd t/as ACM Eggs (in the interest of QBE Workers Compensation (NSW) Ltd)
FILE NUMBER: WCC16984-06
DATE OF ARBITRATOR’S DECISION: 6 February 2007
DATE OF APPEAL DECISION: 22 August 2007
SUBJECT MATTER OF DECISION: Whether a ‘disease’; liability in respect of the aggravation of a ‘disease’; sections 4 and 16(1) of the Workers Compensation Act 1987
PRESIDENTIAL MEMBER: Acting Deputy President Robin Handley
HEARING:On the papers
REPRESENTATION: Appellant: Sparke Helmore Lawyers
First Respondent: Armstrongs Solicitors
Second Respondent: Moray & Agnew Solicitors
ORDERS MADE ON APPEAL: 1. The decision of the Arbitrator, dated 6 February 2007, is revoked and the following decision is made in its place:
“(1) The Respondent in the interest of QBE is to pay the Applicant weekly compensation from 21 October 2006 to 30 November 2006 at the rate of $571.68 per week and from 1 December 2006 to 14 January 2007 at the rate of $597.60 per week.
(2) The Respondent in the interest of QBE is to pay the Applicant section 60 expenses upon production of accounts and/or receipts and/or HIC Notice of Charge.
(3) The Respondent in the interest of QBE is to pay the costs of the Applicant as agreed or assessed.”2. The Second Respondent is to pay the costs of the Appellant and the First Respondent in this appeal.
BACKGROUND TO THE APPEAL
1.On 6 March 2007, Farm Pride North Pty Ltd t/as ACM Eggs (‘ACM Eggs’) (in the interest of Employers Mutual NSW Ltd) (‘EMI’ – ‘the Appellant’) sought leave in the Workers Compensation Commission (‘the Commission’) to bring an appeal against the decision of an arbitrator dated 6 February 2007. The Respondents to the appeal are Dianne Deaves and QBE Workers Compensation (NSW) Ltd (‘QBE’).
2.Ms Deaves was born on 30 January 1958 and is aged 49. She has been employed as a process worker at farm premises at Dora Creek since about 1994. Ms Deaves claims that on 19 July 2006 she injured her hands and arms when grading, sorting and packing eggs in the course of her employment. On 25 July 2006, she made a claim for workers compensation in respect of this injury. ACM Eggs’ workers compensation insurer was EMI up to 4 pm on 19 July 2006 and QBE from 4 pm on 19 July 2006. On 11 October 2006, EMI notified Ms Deaves that it denied liability for her claim and, on 22 December 2006, QBE also denied liability. Ms Deaves returned to work on normal duties on 15 January 2007.
3.On 2 January 2007, Ms Deaves’ solicitors lodged an amended ‘Application to Resolve a Dispute’ with the Commission in respect of her claim for weekly compensation from 19 October 2006 to date and continuing, and for medical, hospital or related expenses. On 23 January 2007, conciliation having proved unsuccessful, the Arbitrator conducted an arbitration hearing. On 6 February 2007, the Arbitrator made his decision in the terms set out below.
THE DECISION UNDER REVIEW
4.The ‘Certificate of Determination’, dated 6 February 2007, records the Arbitrator’s orders as follows:
“1. The Respondent in the interest of EMI is to pay the Applicant weekly compensation from 21st October 2006 to 30th November 2006 at the rate of $571.68 per week and from 1st December 2006 to 14th January 2007 at the rate of $597.60 per week.
2. The Respondent in the interest of EMI is to pay the Applicant section 60 expenses upon production of accounts and/or receipts and/or HIC Notice of Charge.
3. The Respondent in the interest of EMI is to pay the costs of the Applicant and QBE as agreed or assessed.”
5.In the Statement of Reasons for his decision, the Arbitrator noted that at the commencement of the hearing, it was agreed that the period in respect of which Ms Deaves sought weekly compensation was from 21 October 2006 to 14 January 2007, and that there was no dispute that Ms Deaves was incapacitated for work during this period. It was also conceded by both EMI and QBE that, during the period of incapacity, Ms Deaves suffered from carpal tunnel syndrome.
6.The Arbitrator rejected the opinion of Dr Murray Stapleton, Hand, Plastic and Reconstructive Surgeon, dated 26 September 2006, that Ms Deaves’ bilateral carpal tunnel syndrome was genetically predetermined and had not been aggravated by her employment. The Arbitrator relied instead on Ms Deaves’ evidence and a report dated 27 November 2006 provided by Dr Roland Hicks, an Orthopaedic Surgeon specialising in hand and wrist surgery, who stated that in his opinion Ms Deaves’ employment was a “significant aggravating factor” of her condition. The Arbitrator therefore found that Ms Deaves’ carpal tunnel syndrome arose out of her employment with ACM Eggs, and that her employment was a significant contributing factor to her injury (paragraph 41).
7.The Arbitrator found that Ms Deaves “did suffer a frank injury, namely, carpal tunnel syndrome on 19th July 2006 which was brought on by the requirement to stamp 2900 cartons without a break because of the failure of the stamp guns” (paragraph 45). He also found that Ms Deaves “did sustain an aggravation, acceleration or exacerbation of the disease after the frank injury on 19th July 2006” (paragraph 49). However, the Arbitrator found that her employment after 19th July 2006 was not a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration of her carpal tunnel syndrome, because the frank injury on 19th July 2006 “was of such severity that even limited use of the Applicant’s hands was going to re-activate the symptoms, whether in the course of work or otherwise” (paragraph 52).
ISSUES IN DISPUTE
8.The issues in dispute in the appeal are whether the Arbitrator erred in fact or law in finding that Ms Deaves suffered a frank injury on 19th July 2006, whether the Arbitrator erred in law in his application of section 16(1)(b) of the Workers Compensation Act 1987 (‘the 1987 Act’), and whether the Arbitrator made an error of law or discretion in ordering the Appellant to pay QBE’s costs. The parties’ submissions on these issues are discussed below.
ON THE PAPERS REVIEW
9.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.”
10.Having regard to Practice Directions Numbers 1 and 6, the documents before me, and the submissions by the Appellant and QBE that the appeal can be determined on the basis of these documents, Ms Deaves’ solicitors having made no submission on this issue, 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.
11.Neither party sought to adduce fresh evidence.
LEAVE
12.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 amount of compensation at issue is at least $5,000 and comprises the whole of the amount awarded in the decision appealed against. Accordingly, I am satisfied that the section 352 threshold has been met, and I grant leave to appeal.
SUBMISSIONS
13.The Appellant’s first ground of appeal is that the Arbitrator erred in finding (at paragraph 40) that “the applicant suffered a frank injury on 19th July 2006”. The Appellant submits that there was no medical evidence to support a finding of frank injury, as distinct from an onset of symptoms. It was not open to the Arbitrator to infer the occurrence of the injury, and characterise its nature, solely on the basis of Ms Deaves’ complaints. QBE submits there was ample evidence to enable the Arbitrator to make a finding of frank injury on that day. While Ms Deaves had been performing the same sort of work for 12 years, she had never before been required to stamp approximately 3000 boxes manually as a result of the stamping machine breaking down. It was whilst performing this activity that her symptoms developed.
14.Ms Deaves’ solicitors submit that it was open to the Arbitrator to make such a finding as the work performed by Ms Deaves on 19 July 2006 was different from her normal duties and produced an immediate onset of symptoms. Ms Deaves’ solicitors state that while at the hearing they submitted that the facts “sat more comfortably with the concept of personal injury rather than the concept of disease”, they concede it was open to the Arbitrator to find either personal injury or disease given his fundamental findings that this was a disease process (paragraph 49, and see also the fourth ground of appeal, below).
15.The Appellant’s second ground of appeal is that the Arbitrator made an error of fact or law or both in finding that Ms Deaves suffered a frank injury on 19 July 2006 and that this finding was supported by Dr Hicks’ report. The Appellant submits while Dr Hicks’ report supports a finding that Ms Deaves suffers from carpal tunnel syndrome and that her employment was a substantial contributing factor to that condition, it does not support a finding that Ms Deaves suffered a frank injury as opposed to the aggravation of carpal tunnel syndrome as a disease. Rather, Dr Hicks’ report is consistent with Ms Deaves having suffered an injury by way of the aggravation of a disease.
16.QBE submits that Dr Hicks’ report must be read in conjunction with the other evidence and, in particular, with Ms Deaves’ evidence, which does not reveal a history of any symptoms prior to 19 July 2006. Moreover, there is no evidence of any aggravation/deterioration or further injury to her bilateral carpal tunnel syndrome subsequent to 19 July 2006. Mr Deaves’ solicitors submit that the Arbitrator’s findings tend to support a finding of the aggravation of a disease rather than a frank injury, although it was open to the Arbitrator to find that the work performed on 19 July 2006 caused a rapid change of pathology in Ms Deaves’ arms, thereby causing symptoms. That rapid change in pathology could be found to be a personal injury.
17.The Appellant’s third ground of appeal is that the Arbitrator made an error of fact or law or both in purporting to distinguish the circumstances of Ms Deaves’ case from those of Perry v Tanine Pty Ltd [1998] NSWCC 14 (‘Perry’). In Perry, at 57, Burke J stated that, generally, in the case of carpal tunnel syndrome, where repeated stress at work causes swelling, pain and loss of function, this seems to indicate a disease process, implying that the worker receives the injury either by the contraction or aggravation of a disease. While His Honour was stating a general proposition and, therefore, one which was capable of being displaced by specific facts, the Appellant submits that, in Ms Deaves’ case, there was no medical or other evidence to do so. Indeed, the Arbitrator described the work performed by Ms Deaves on 19 July 2006 as “an excessively repetitive process” (paragraph 52).
18.QBE submits the Arbitrator’s interpretation of the decision in Perry was correct. Ms Deaves was not undertaking her normal duties at the time of the injury and those activities on 19 July 2006 were brought on by a breakdown of machinery which necessitated manual stamping that lead to the onset of symptoms. Ms Deaves’ solicitors make no specific reference to the Arbitrator’s discussion of the decision in Perry.
19.The Appellant’s fourth ground of appeal is that the Arbitrator gave inconsistent and illogical reasons in characterising Ms Deaves’ carpal tunnel syndrome as a frank injury for some purposes and as a disease process for others, namely in relation to the aggravation of Ms Deaves’ carpal tunnel syndrome by work after 4 pm on 19 July 2006. At paragraph 49, he concluded that Ms Deaves “did sustain an aggravation, acceleration or exacerbation of the disease after the frank injury of 19th July 2006”. The Appellant submits this finding “both defies logic and squarely contradicts the expert evidence of Dr Hicks who makes no such differentiation”.
20.QBE refutes this ground of appeal. The Arbitrator was correct in finding a frank injury and there was no evidence of any aggravation subsequent to 4 pm on 19 July 2006. Thus, there could be no finding implicating QBE as the subsequent insurer. Ms Deaves’ solicitors concede it was open to the Arbitrator to find either personal injury or disease. However, his “fundamental findings were that this was a disease process”.
21.The Appellant’s fifth ground of appeal is that the Arbitrator erred in his application of section 16(1)(b) of the 1987 Act. The Appellant submits the Arbitrator applied the statutory requirement that employment be a substantial contributing factor to the whole of Ms Deaves’ symptom complex rather than to just the injury. Moreover, once the preconditions to the operation of section 16(1)(b) have been established, the deeming provision operates to determine the date of injury in all cases: liability falls on “the employer who last employed the worker in employment that was a substantial contributing factor to the aggravation” etc. ACM Eggs was the sole employer both before and after 19 July 2006 and the proper application of section 16(1)(b) required a finding that the injury was deemed to have occurred on 25 July 2006, which, on the evidence, was the date of first incapacity, as well as the date Ms Deaves made her claim for compensation.
22.QBE submits the Arbitrator’s approach was appropriate and there was no error of law. Ms Deaves’ solicitors submit that if the Arbitrator’s finding that this was a disease process are not disturbed on appeal, then they support the Appellant’s submissions on the application of section 16.
23.The Appellant’s sixth and final ground of appeal is that the Arbitrator erred in failing to afford the Appellant the opportunity to be heard on the question of costs or, alternatively, failed to properly exercise his statutory discretion in ordering the Appellant to pay QBE’s costs. In particular, the Arbitrator did not invite or hear any submissions on costs and, therefore, did not afford the Appellant procedural fairness. The two respondents declined to make any submission on this issue.
DISCUSSION
24.The first four grounds of appeal question the Arbitrator’s finding that Ms Deaves suffered a frank injury on 19 July 2006. The principal evidence before the Arbitrator comprised Ms Deaves’ statement dated 23 October 2006 and reports from Dr Stapleton and Dr Hicks. The facts as to Ms Deaves’ work and the incident on 19 July 2006 do not appear to have been in dispute. There was also no dispute that, on 19 July 2006 and subsequently, Ms Deaves was suffering from bilateral carpal tunnel syndrome. The issues to be decided by the Arbitrator were whether Ms Deaves suffered an injury – the carpal tunnel syndrome - in the course of her employment with ACM Eggs (section 4 of the 1987 Act) and, if so, whether her employment was a substantial contributing factor to the injury (section 9A of the 1987 Act). The Arbitrator also had to determine whether, if there was an injury, the injury was a frank injury or a disease and, in the latter case, whether, in particular, the aggravation of a disease.
25.Section 4 of the 1987 Act defines ‘injury’ as follows:
“In this Act –
"injury" -
(a) means personal injury arising out of or in the course of employment;
(b) includes -
(i) A disease which is contracted by the worker in the course of employment and to which the employment was a contributing factor; and
(ii) The aggravation, acceleration, exacerbation or deterioration of any disease, within the employment was a contributing factor in the aggravation, acceleration, exacerbation or deterioration;”
26.If there was such an injury and the injury comprised the aggravation of a ‘disease’ in terms of section 4(b)(ii), then section 16(1)(b) of the 1987 Act would apply. Section 16(1) states:
“(1) If an injury consists in the aggravation, acceleration, exacerbation or deterioration of a disease:
(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 that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration.”
27.Thus, if rather than a frank injury, the Arbitrator had found Ms Deaves’ carpal tunnel syndrome to be the aggravation of a disease, the injury would be deemed to have happened on the day on which she became incapacitated for work. The evidence was that despite the injury, Ms Deaves continued to work normal shifts until 24 July 2006, and became incapacitated for work on 25 July 2006. As a result of the application of section 16(1), QBE would then be liable as the employer’s workers compensation insurer at that time.
28.Ms Deaves’ evidence was that on the morning of 19 July 2006, the machine that stamped a ‘use by’ date on the egg cartons was not working. She therefore date stamped the cartons by hand. After manually date stamping approximately 2,900 cartons in the course of an hour without a break, Ms Deaves (statement paragraph 6):
“felt pins and needles, numbness and a burning sensation in both hands and radiating into the arms. The right was worse than the left.”
29.After the lunch break on that day, Ms Deaves did no further manual date stamping and returned to her normal duties for the remainder of her shift. She continued to experience pain in her hands, but thought it would get better overnight. However, she said that during her shift on the next day, when she continued with her normal duties, the pain in her hands and arms, and the pins and needles going up her arm were worse. She saw her local doctor, Dr Omar Shariff, on Saturday 22 July 2006, and his certification stated that she was incapacitated for work from 25 July 2006 (WorkCover NSW Medical Certificate dated 25 July 2006, and see transcript of the hearing at p 10).
30.Dr Hicks first examined Ms Deaves on 11 October 2006 at the request of another doctor who was part of the same practice as Dr Shariff, and for whom Dr Hicks prepared a report of the same date. Dr Hicks subsequently provided a report dated 27 November 2006 at the request of Ms Deaves’ solicitors. He diagnosed bilateral carpal tunnel syndrome, noting there had been no previous history of wrist or hand symptoms. Under the heading ‘Treatment and Progress’, Dr Hicks stated:
“Mrs Deaves’ hand symptoms were due to bilateral carpal tunnel syndrome which had been significantly aggravated by the repetitive nature of her work as outlined above. Her symptoms were less severe on the days on which she did not work. Her normal nerve conduction studies in July did not exclude this diagnosis. Approximately 10% of patients have clinical carpal tunnel syndrome but normal Nerve conduction studies, as normal conduction in the larger fibres will mask any compromise in the smaller nerve fibres ...”
31.Under the heading ‘Opinion’, Dr Hicks said:
“I consider that her work has been a significant aggravating factor as outlined above in the body of the report. She has recently undergone surgery on her right carpal tunnel [performed by Dr Hicks on 1 November 2006], with in the short term, good symptomatic relief.”
32.In his report dated 26 September 2006 for EMI, Dr Stapleton also diagnosed carpal tunnel syndrome. He said that carpal tunnel syndrome is a genetically predetermined problem caused by inadequate space beneath the carpal ligament through which the median nerve passes:
“Employment is not a substantial contributing factor to Ms Deaves’ condition. This needs explanation. I have no doubt that the symptoms arose when Ms Deaves was stamping egg cartons which was unusually requiring flexion of both wrists. That does not indicate that the work duties have injured her ...
To put it another way, Ms Deaves has the propensity, genetically predetermination [sic], of carpal tunnel syndrome at some time in her life, probably performing some action or other, that is when symptoms will first appear and that is what I believe to be the current situation.”
33.I note that whether employment was a substantial contributing factor to Ms Deaves’ injury does not appear to be in issue in this appeal. Rather the principal issue is the Arbitrator’s finding that the injury was a frank injury and not a disease. At the arbitration hearing, counsel for the Appellant (EMI) submitted that it was a disease and counsel for QBE submitted that it was a frank injury. Ms Deaves’ solicitor made no submission on this issue except to say that the injury “first manifested itself on 19 July 2006” (transcript p 6).
34.In his Statement of Reasons (at paragraph 44), the Arbitrator found Ms Deaves’ symptoms commenced after her having been manually date stamping egg cartons for a period of one hour, and that she had never experienced such symptoms in the past. He therefore found that she suffered a frank injury brought on by the date stamping. The Arbitrator had previously rejected Dr Stapleton’s opinion that carpal tunnel syndrome is genetically predetermined, preferring Dr Hicks’ opinion that Ms Deaves’ employment was a “significant aggravating factor to her carpal tunnel syndrome” (paragraph 41).
35.Dr Hicks expresses no opinion on whether Ms Deaves suffered a frank injury on 19 July 2006. However, his opinion that Ms Deaves’ work “aggravated” her condition is, in my view, suggestive of the condition being a disease rather than a frank injury. Dr Stapleton also clearly considered the condition to be a disease. There is, therefore, in my view, no specific medical evidence to support the Arbitrator’s finding of frank injury. The other evidence on which he sought to rely was Ms Deaves’ statement that she had not previously experienced such symptoms when performing her normal duties over a period of 12 years. There is no dispute that the extra-ordinary work performed by Ms Deaves in manually date stamping the egg cartons caused the symptoms, which endured after her one hour of stamping work. Her evidence is that on the afternoon of Wednesday 19 July and on Thursday 20 and Friday 21 July 2006 she did no further manual date stamping and performed her normal duties. While the pain eased slightly overnight on the 19/20 July, Ms Deaves experienced severe pain at the end of each shift of her normal duties, with a burning sensation in the palm of both hands and pins and needles going up her arms.
36.Ms Deaves said she went to see her local doctor, Dr Shariff, on 22 July 2006. He prescribed anti-inflammatories and certified her unfit for work on that day. On Monday 24 July 2006, Ms Deaves again went to work and advised her supervisor of her disability. A review of the WorkCover NSW Medical Certificates issued by Dr Shariff indicates, although not entirely clear, that she was initially fit for pre-injury duties, unfit for work on 25 July 2006, and fit for suitable duties from 28 July 2006.
37.At the hearing and in its submissions on the appeal, the Appellant referred to the Compensation Court of NSW decision in Perry v Tanine Pty Ltd [1998] NSWCC 14. In this decision, at paragraph 57, Judge Burke said:
“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.”
38.The Arbitrator interpreted His Honour’s statement as meaning that although “in general” carpal tunnel syndrome is a disease, this can be displaced by specific facts (paragraph 43). Because Ms Deaves experienced symptoms after one hour of date stamping, having never previously experienced such symptoms, with her symptoms continuing after her lunch break when she returned to her normal duties, he said, “[i]t seems clear to me that the Applicant did suffer a frank injury ... brought on by the requirement to stamp 2900 cartons without a break” (paragraph 45). The Arbitrator did not refer to the medical evidence in this regard nor cite any medical evidence in support of this finding.
39.The distinction between a frank injury, sometimes referred to as an injury simpliciter, and a ‘disease’ falling within paragraph (b) of the definition of ‘injury’ in section 4 of the 1987 Act, is in many respects an artificial one. In particular, the courts have on occasion drawn a distinction between what have been characterised as a series of microtraumata – of minor frank injuries - in the course of a worker’s employment, and the aggravation of a disease due to the nature and conditions of the worker’s employment. The distinction may be important in particular cases because of the provisions in the 1987 Act determining the date of injury for the purposes of the compensation scheme.
40.Ms Deaves’ case is one where the distinction is important, although in this instance there is no suggestion of a series of microtraumata. If the incident that occurred on the morning of 19 July 2006 is characterised as a frank injury, then the date of injury is within the period to 4 pm on that day in respect of which EMI is liable. If the incident is characterised as the aggravation of a disease, then, pursuant to section 16(1)(a) of the 1987 Act, the injury is deemed to have happened at the time of incapacity – which occurred on 25 July 2006, and therefore within the period in respect of which QBE is liable, with, pursuant to section 16(1)(b), QBE being liable as the last employer in employment that was a substantial contributing factor to the aggravation.
41.In the NSW Court of Appeal decision in Grate Lace Pty Ltd v Theiss Watkins White (Constructions) Pty Ltd (1995) 12 NSWCCR 365, at 367-368, Kirby P noted that in the case of some injuries, determining which employer is liable in workers compensation law has always been difficult and contentious. Parliament therefore stepped in to provide a “semi-arbitrary formula”, capable of being applied simply by all those involved, for determining the employer (and insurer) primarily liable to pay compensation to the worker. His Honour said, at 369, that in some cases, it will be thought that this results in an apparent injustice to an employer; in other cases the employer will escape liability:
“Looking at compensation cases overall, substantial justice will be done. Uncertainty of workers’ entitlements will be reduced. The costs of litigation will be contained. It is the duty of the Court to give effect to these sensible statutory objectives ...”
42.In the NSW Court of Appeal decision in P & O Berkeley Challenge Pty Ltd v Alfonso (2000) 20 NSWCCR 554, Priestley JA also commented on the arbitrariness of the legislation:
“Section 15 and s 16 reduce the need to analyse in detail at what stage in the gradual process of disease injuries, the stage of an injury, or incapacity, for the purposes of the Act, has been reached. The price paid for this is the imposition of rules which cannot altogether eliminate some arbitrariness in their operation.”
43.In the present case, on the basis of the evidence of Dr Hicks and Dr Stapleton, I am satisfied on the balance of probabilities that Ms Deaves suffers from a disease, namely carpal tunnel syndrome. The fact that Ms Deaves’ symptoms arose from a single incident does not, in the absence of other supporting evidence, displace the medical evidence, which also accords with the view expressed by Burke J in Perry. Thus, the Arbitrator made an error of fact in his decision by deciding that Ms Deaves suffered a frank injury.
44.I note the Arbitrator’s finding, at paragraph 49, where he stated: “it must be concluded the Applicant did sustain an aggravation, acceleration or exacerbation of the disease after the frank injury of 19th July 2006.” (He subsequently found, at paragraph 53, that Ms Deaves’ “employment after 19th July 2006 was not a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration of her carpal tunnel syndrome”, a finding that does not appear to be in dispute in the appeal.) I agree with the Appellant’s submission in relation to the fourth ground of appeal to the extent that this finding of what amounts to ongoing aggravation of her condition in the course of employment is more suggestive of the incident on 19 July 2006 being the aggravation of a disease rather than a frank injury.
45.As indicated above, I am satisfied on the evidence that Ms Deaves suffers from a disease, namely carpal tunnel syndrome, which was latent and asymptomatic until 19 July 2006, when the aggravation caused by the repetitive manual stamping caused the onset of symptoms. The consequence of this finding is that section 16(1) of the 1987 Act must be applied in determining the date of injury and where liability lies. Because QBE was at risk in respect of the period after 4 pm on 19 July 2006, and Ms Deaves’ incapacity arose, and the injury is deemed to have happened in that period, liability falls on QBE.
46.The above discussion addresses the first five grounds of appeal. The sixth and final ground of appeal concerns the Arbitrator’s award of costs. I note from the transcript of the hearing that the Arbitrator did not invite any submissions on the question of costs and no submissions were proffered by the parties. Both Respondents declined to make any submissions on this issue in the appeal. In the circumstances, there being no suggestion of any untoward conduct by the parties or other factors bearing on the award of costs, it is appropriate for QBE, on whom liability falls, to pay Ms Deaves’ costs in relation to the proceedings before the Arbitrator and of the appeal, and to pay EMI’s costs of the appeal.
DECISION
47.The decision of the Arbitrator, dated 6 February 2007, is revoked and the following decision is made in its place:
“1. The Respondent in the interest of QBE is to pay the Applicant weekly compensation from 21 October 2006 to 30 November 2006 at the rate of $571.68 per week and from 1 December 2006 to 14 January 2007 at the rate of $597.60 per week.
2. The Respondent in the interest of QBE is to pay the Applicant section 60 expenses upon production of accounts and/or receipts and/or HIC Notice of Charge.
3. The Respondent in the interest of QBE is to pay the costs of the Applicant as agreed or assessed.”
COSTS
48.The Second Respondent is to pay the costs of the Appellant and the First Respondent in this appeal.
Robin Handley
Acting Deputy President
22 August 2007
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.
ASSOCIATE
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