Georgandas v Meteora Contractors Pty Ltd
[2005] NSWWCCPD 36
•16 May 2005
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Georgandas v Meteora Contractors Pty Ltd [2005] NSWWCCPD 36
APPELLANT: Spiros Georgandas
RESPONDENT: Meteora Contractors Pty Ltd
INSURER:GIO Workers Compensation (NSW) Ltd
FILE NUMBER: WCC18691-03
DATE OF ARBITRATOR’S DECISION: 10 June 2004
DATE OF APPEAL DECISION: 16 May 2005
SUBJECT MATTER OF DECISION: Whether the Arbitrator failed to take into account all the relevant evidence; section 40 of the Workers Compensation Act 1987.
PRESIDENTIAL MEMBER: Acting Deputy President Robin Handley
HEARING:On the papers
REPRESENTATION: Appellant: Slattery Thompson Solicitors
Respondent: Moray & Agnew Solicitors
ORDERS MADE ON APPEAL: The decision of the Arbitrator is confirmed.
No order is made as to the costs of the appeal.
BACKGROUND TO THE APPEAL
On 16 June 2004, the Appellant, Spiros Georgandas, sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) in respect of a decision dated 10 June 2004.
The Respondent to the Appeal is Meteora Contractors Pty Ltd (‘the Respondent’).
Mr Georgandas was born on 13 June 1972 and is aged 32. He has no dependants. From 2 February 1991 to early February 2003, when his employment was terminated, Mr Georgandas was employed as a carpenter and joiner by Meteora Contractors. He claims that on 12 August 2002 he injured his back and neck while lifting heavy beams on a construction site. He notified his boss, Jim Georgalis of this on that day. Mr Georgandas ceased work from 18 September 2002.
On 13 November 2002, Mr Georgandas lodged a compensation claim with GIO Workers Compensation (NSW) Ltd (‘the Insurer’) for weekly benefits and medical expenses in relation to an injury to his neck and back, which was duly paid. In a WorkCover Medical Certificate dated 28 January 2003 ticked ‘final’, Mr Georgandas’ treating doctor, Dr A Hor, diagnosed “neck-back strain injury” and certified him as fit to resume his pre-injury duties from 29 January 2003. Dr Hor made no mention of Mr Georgandas suffering from depression, although Dr Hor had referred him to a consultant psychiatrist, Dr Takas, who first saw Mr Georgandas on 3 January 2003 and who reported on this to Dr Hor on 14 January 2003. On 28 January 2003, the Insurer stopped weekly compensation payments.
On 22 October 2003, Mr Georgandas sought further treatment from Dr Hor who issued a further WorkCover Medical Certificate ticked ‘progress’ in respect of “neck injury”, stating that Mr Georgandas was fit for suitable duties from 22 October 2003 to 12 December 2003. Dr Hor did not explain why his assessment differed from that in the Certificate dated 28 January 2003. Dr Hor subsequently issued further WorkCover Medical Certificates certifying Mr Georgandas as fit for selected duties.
On 1 December 2003, Mr Georgandas lodged an ‘Application to Resolve a Dispute’ with the Commission in respect of a claim for weekly compensation benefits of $1100 per week from 22 October 2003, to date and continuing. The Application did not refer to any claim in respect of medical or other treatment expenses. On 15 December 2003, the Insurer’s solicitors lodged a ‘Reply’ stating that the Respondent “disputes that the worker has suffered any incapacity or disability as a result of any alleged work injury” and that “[a]ny incapacity or disability suffered by the worker is not the result of any injury arising out of or during the course of his employment with the respondent”. On 25 May 2004, the parties attended a conciliation conference / arbitration hearing conducted by the Arbitrator. The parties were unable to reach a settlement of their dispute.
THE DECISION UNDER REVIEW
The Certificate of Determination, dated 10 June 2004, records the Arbitrator’s orders as follows:
“1. The Respondent is not liable for the Applicant’s claim for weekly compensation benefits.
2. No order as to costs.”
The Arbitrator summarised the resolution of the issues in dispute as follows:
“Weekly Benefits Claim:
*On 12 August 2002, Spiro Georgandas received an injury to his neck and back arising out of or in the course of his employment as a carpenter/joiner with Meteora Contractors P/L.
*Spiro Georgandas was partially incapacitated for work as a result of his injuries from 18 September 2002 to the 28 January 2003 and during that period was paid his full entitlement to weekly compensation benefits by the Respondent.
*During Spiro Georgandas’ period of alleged partial incapacity for work from 29 January 2003 the average weekly amount that he would have been able to earn in some suitable employment would be the sum of $600.00 gross per week which is equivalent to the Applicant’s pre-injury earnings.”
ISSUE IN DISPUTE
The issue in dispute is whether the Arbitrator erred in failing to take into account relevant medical evidence that, according to Mr Georgandas’ solicitors, supports a finding of incapacity.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions by both parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
Neither party sought to adduce fresh evidence.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act, which provides:
“352Appeal against decision of Commission constituted by Arbitrator
(1)A party to a dispute in connection with a claim for compensation may, with leave of the Commission constituted by a Presidential member, appeal to the Commission as so constituted against a decision in respect of the dispute by the Commission constituted by an Arbitrator.
(2)The Commission is not to grant leave to appeal unless the amount of compensation at issue on the appeal is both:
(a)at least $5,000 (or such other amount as may be prescribed by the regulations), and
(b)at least 20% of the amount awarded in the decision appealed against.
(3)If the Commission refuses to grant leave to appeal, the Commission must state reasons for the refusal in writing to the parties.
(4)An appeal can only be made within 28 days after the making of the decision appealed against.
(5)An appeal under this section is to be by way of review of the decision appealed against.
(6)Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.
(7)On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.
(8)In this section, decision includes an award, interim award, order, determination, ruling and direction.”
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, namely weekly compensation benefits, amounts to at least $5,000. The Arbitrator found the Respondent was not liable for Mr Georgandas’ claim for weekly compensation benefits from 29 January 2003.
Thus, the appeal meets the threshold requirements of section 352 and I am satisfied that I should grant Mr Georgandas leave to appeal.
SUBMISSIONS
Mr Georgandas’ solicitors submit that there was evidence before the Arbitrator, namely reports by Dr Maxwell and Dr Hor, to enable him to make a finding of incapacity, and that the Arbitrator failed to take into account Dr Takas’ notes indicating that Mr Georgandas “had recovered from any depression”. The relevance of the latter part of this statement is not otherwise explained. Mr Georgandas’ solicitors also submit that the Arbitrator, having expressed the view that “the applicant was an honest and hardworking man”, and indicated at the conciliation / arbitration that “he was prepared to make an award in favour of the applicant”, “altered his original view without expressing his reasons for his change of mind”.
The Respondent’s solicitors submit that the Arbitrator “properly considered all relevant medical evidence relied upon by both parties in the proceedings”, including the issues raised by Dr Takas’ clinical notes. They strongly disputed that the Arbitrator had indicated at the conciliation / arbitration that “he was prepared to make an award in favour of the applicant” or had expressed an “original view” contrary to the findings subsequently contained in his decision. They submitted that the Arbitrator was correct in finding upon the weight of medical and factual evidence that Mr Georgandas had not suffered from a total or partial incapacity for work since 28 January 2003.
EVIDENCE
According to a letter from the Respondent’s accountants dated 28 January 2004, Mr Georgandas’ gross weekly wage at the time of the termination of his employment was $600. In Mr Georgandas’ solicitors’ submissions, his claim is stated to be for weekly compensation benefits of $1100 from 22 October 2003 to date and continuing, although the transcript of the arbitration indicates that the parties agreed that Mr Georgandas’ probable gross weekly earnings were $600, and this is reflected in the Arbitrator’s Statement of Reasons.
The course of events leading up to Mr Georgandas’ claim for compensation are set out under the heading “Background” above. As stated there, in addition to the claimed work injuries, Mr Georgandas’ treating doctor, Dr Hor, referred him to Dr Takas, a consultant psychiatrist and psychotherapist. Dr Takas, in what appears to be his first report to Dr Hor dated 14 January 2003, says that Mr Georgandas:
“presented with a constellation of symptoms and signs most likely consistent with severe major depression with secondary psychosis … he presented with all the classical symptoms of major depression … ”
In a later letter to Dr Hor dated 7 August 2003, Dr Takas says that he is “very pleased with his [Mr Georgandas’] progress”. Dr Takas’ clinical notes also indicate improvement in Mr Georgandas’ condition through 2003 and, on 12 February 2004, he records that Mr Georgandas “feels very well” although Dr Takas notes that Mr Georgandas is to continue on the medication Zoloft.
DISCUSSION AND FINDINGS
The role of the Presidential Member on appeal is to review the Arbitrator’s decision as a whole. The review is not a rehearing. In this case, Mr Georgandas must demonstrate that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172; The King Island Company Limited v Deery [2005] NSW WCC PD 1) in order to enliven the Presidential Member’s power to interfere with the Arbitrator’s decision pursuant to section 352(7) of the 1998 Act.
I reject Mr Georgandas’ solicitor’s submission that during the course of the arbitration the Arbitrator expressed a view on the evidence that might be favourable to Mr Georgandas. The transcript of the arbitration gives no indication of this and, in particular, the Arbitrator does not express the view that “the applicant was an honest and hardworking man”. There is, however, no transcript of the preceding conciliation, which, in accordance with the Commission’s procedures was not recorded. Nevertheless, there is no evidence that the Arbitrator changed his view.
In relation to the Arbitrator’s treatment of the medical evidence, his Statement of Reasons refers to, discusses and takes into account both Dr Hor’s and Dr Maxwell’s reports, and also the reports to Dr Hor from Dr Takas as well as Dr Takas’ clinical notes. I therefore reject Mr Georgandas’ solicitor’s submission that the Arbitrator failed to take into account Dr Takas’ clinical notes.
The Arbitrator’s discussion of the medical evidence in his Statement of Reasons (paragraph 20, page 4), includes the following:
“It is of interest to note that when on 12 November 2002 the Applicant first obtained a WorkCover Medical certificate from Dr Hor the doctor provided certification to the effect that the Applicant was unfit for his pre-injury duties from 18 September 2002 to the 4 December 2002 but there is no evidence to indicate that the claimant had consulted Dr Hor about his work injury until the very day that that first certificate was issued. It, therefore, appears that Dr Hor merely accepted a contention by the Applicant that he had been unfit for work since 18 September 2002 and to some extent Dr Hor’s views in relation to the Applicant’s work capacity must be open to doubt. According to the claimant’s statement he has still not resumed any form of work since 18 September 2002 and has not even tried work.
The Respondent has declined all liability to afford the Applicant the payment of any further weekly benefits not only because of the fact that the treating Dr Hor had certified the Applicant to be fit for his pre-injury duties from 29 January 2003 but also because of the existence of medical records produced by way of Direction from the psychiatrist Dr George Takas. In reports to Dr Hor of the 14 January 2003 and the 7 August 2003 Dr Takas to whom the Applicant had been referred by Dr Hor expresses the view that the Applicant was suffering from major depression with anorexia, lack of motivation etc. The doctor recommended medication and in his second report to Dr Hor, Dr Takas expressed the view that such medication is working. It is the Respondent’s contention that it was this apparent depression condition that was the cause of the Applicant not resuming work when cleared by Dr Hor and it is interesting to note that in his report of 10 February 2004 the orthopaedic specialist Dr John Stephen who had examined the Applicant under reference from the Respondent’s solicitor expressed the view that the Applicant “appeared to me to be anxious quite possibly depressed …” Furthermore, in a detailed letter of the 26 November 2002 addressed to the Respondent’s insurer the Director of the Respondent Company namely Jim Georgalis refers to the fact that back in September 2002 he believed that the Applicant was displaying signs of depression …
Another ground relied on by the Respondent is that in his reports of 10 February 2004 (x 2) the orthopaedic specialist Dr John Stephen expressed the view that the Applicant’s ‘physical impairment was very slight indeed’ and went on to express the view that other factors were operating. The doctor writes as follows:
‘Purely from a physical point of view, there is little in the way of impairment. There is more in the way of incapacity than impairment, largely the result of psychological factors rather than those of physical impairment. Purely from the physical point of view, Mr Georgandas is fit to work as a carpenter. Having said this, I am quite convinced that he would never get back to the type of work in which he was involved before for the reasons mentioned above, most of which are non physical.’
I believe that Dr Stephen’s reports are well reasoned and note that he did have the opportunity of actually examining the Applicant’s x-rays of the thoracic and cervical spines dated 4 December 2002 where he could see no abnormalities as was the situation, of course, with the radiologist concerned. The doctor’s physical examination of the Applicant failed to reveal any objective signs to support the Applicant’s complaints …”
The Arbitrator concluded (paragraph 20, page 6 of his Statement of Reasons):
“None of the evidence of a lay or medical nature would suggest that this Applicant has been totally incapacitated at any point in time since the injury occurred and there is no evidence before me that would indicate that this Applicant would have any entitlement under Section 40. Based on all the evidence before me I take the view that the Applicant has not discharged the onus of proving that he has any entitlement to the payment of further weekly benefits and this would still be the situation even if I accepted the opinions of Dr Hor and Dr C Murray-Maxwell. I believe that the Applicant has been quite capable of earning his pre-injury salary of $600.00 gross per week since 29 January 2003. There is no claim for the payment of Section 60 expenses …”
In my view, there is nothing to suggest, and the Appellant has not demonstrated, any legal, factual or discretionary error by the Arbitrator. His Statement of Reasons includes a clear and well-reasoned discussion of the relevant medical evidence, both that tendered by Mr Georgandas and the Respondent.
DECISION
The decision of the Arbitrator is confirmed.
COSTS
No order is made as to the costs of this appeal.
Robin Handley
Acting Deputy President
16 May 2005
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ROBIN HANDLEY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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