Grafton Aged Care Home Pty Limited v Wilkes

[2004] NSWWCCPD 16

WORKERS COMPENSATION COMMISSION

APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Grafton Aged Care Home Pty Ltd v Wilkes [2004] NSW WCC PD 16

APPELLANT:  Grafton Aged Care Home Pty Ltd

RESPONDENT:  Doreen Joy Wilkes

INSURER:GIO Workers Compensation (NSW) Ltd

FILE NUMBER:  WCC12236-03

DATE OF ARBITRATOR’S DECISION:          19 November 2003

DATE OF APPEAL DECISION:  25 March 2003

SUBJECT MATTER OF DECISION:                Respondent Incorrectly named, Weight of Evidence.

PRESIDENTIAL MEMBER:  Dr Gabriel Fleming

HEARING:On the Papers

REPRESENTATION:  Appellant:  Shaw McDonald Pty Ltd, Solicitors

Respondent: Thompson Wheelahan & Hampshire, Solicitors

ORDERS MADE ON APPEAL:  The Certificate of Determination issued by the Commission on 19 November 2003 is amended to correctly identify the Respondent as ‘Grafton Aged Care Home Pty Ltd’. 

The decision of the Arbitrator is confirmed.  The Appellant is ordered to pay the costs of the appeal.

BACKGROUND

1. On 11 December 2003 Grafton Aged Care Home Pty Ltd (‘the Appellant Employer’) filed an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission.  Doreen Joy Wilkes is the Respondent Worker to the appeal (‘the Respondent Worker’).

1. The appeal is against the following decision, set out in the Certificate of Determination, dated 19 November 2003:

1.“That the Respondent [the employer] pay the Applicant [the worker] weekly compensation at the rate of $246.79 from 29 August 2002 to 18 November 2003 under section 40 of the Workers Compensation Act 1987.

2.Such weekly payments to continue in accordance with the provisions of the Act.

3.That the Respondent pay the Applicant’s section 60 of the Workers Compensation Act 1987 expenses on production of accounts or receipts from the Applicant’s General Practitioner.

4.That the Respondent pay the Applicant’s costs as agreed or assessed.”

1. A ‘Statement of Reasons for Decision’ (‘the Reasons’) is attached to the Certificate of Determination.

1. The application before the Arbitrator was determined on the basis of the written evidence and submissions of the parties, without a formal hearing.

ISSUES IN DISPUTE

1. The Appellant Employer identifies a number of issues in dispute in the appeal.  The first is that the employer is incorrectly named in the Certificate of Determination and thus the orders are unenforceable. 

1. In addition, critical issues in the dispute include whether or not Ms Wilkes is able to perform her normal pre-injury duties, and whether any alleged inability is due to her employment with the Appellant Employer.  The Appellant Employer claims that the evidence relied upon by the Arbitrator, being the report of Dr Silva, does not support the conclusions reached on these issues. 

1. The Appellant Employer, purported to “. . . seek a stay under s120 of the Workers Compensation Regulation 2003, on payment of the Award in this matter” (letter dated 8 December 2003 and accompanying the Application to Appeal). This application is misconceived. Clause 120 of the Workers Compensation Regulation 2003 applies to decisions of the Registrar in relation to costs as that clause comes under Part 19, Division 4 of the Regulation. It has no application to a decision of an Arbitrator pursuant to section 350 of the 1998 Act.

ON THE PAPERS REVIEW

1. The Appellant Employer submits that the appeal should be dealt with by way of formal hearing.

1. The Respondent Worker submits that the entirety of the matter, both the application for leave and the substantive appeal, may be dealt with on the papers.

1. 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.

1. I note that the Appellant Employer purports, in both the ‘Appellant’s Submission on the Appeal’ and the ‘Response to the Submissions of the Respondent’ on the appeal, to “reserve the right to make further submissions”.  It is not clear to me why further submissions, if thought to be necessary, were not filed with either of these documents.  Similarly the Respondent Worker asserts ‘the right to make further submissions’.  No such ‘right’ exists, and indeed Practice Direction No. 6 directs the parties to file all relevant submissions with the application to appeal, or the reply to the appeal.  Practice Direction No. 6 puts the parties on notice that, where leave is granted, the Presidential Member may “proceed to determine the substantive appeal on the papers or may give directions as to the future conduct of the appeal including whether further submissions, an oral hearing, or both, are required”.   

1. This is not a matter of great complexity where questions of law and fact need to be amplified by further submissions.  The issues in the appeal are, to my mind, very clear.  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

1. An application to appeal against an Arbitrator’s decision must 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.

   (8)In this section, decision includes an award, interim award, order, determination, ruling and direction.

1. The appeal was lodged on 11 December 2003, within 28 days of the Arbitrator’s decision, dated 19 November 2003, and therefore in compliance with section 352(4) of the 1998 Act.

1. The amount at issue in the dispute exceeds $5000.  Although not stated clearly, it appears that the entirety of the amount awarded by the Arbitrator is at issue in the Appeal and on this basis I find that the requirements of section 352(2) (a) and (b) are met.

EVIDENCE AND SUBMISSIONS

1. The evidence that was before the Arbitrator is before me on the appeal. 

1. The facts are set out in the Arbitrator’s decision and it is not necessary to repeat them in full here. 

1. In summary, Ms Wilkes was employed as a recreation officer at the Grafton Nursing Home, operated by the Appellant Employer, since 1993.  On 7 February 2000, when she was at work, she injured her shoulders and elbows when lifting a heavy table.  She took time off work and subsequently returned on restricted duties, in particular, she was not required to push wheelchairs (a task previously included in her normal duties). 

1. Ms Wilkes settled a claim against the Appellant Employer for compensation for permanent impairment (section 66 of the Workers Compensation Act 1987 (‘the 1987Act’), pain and suffering (section 67 of the 1987 Act) and medical expenses (section 60 of the 1987 Act) by filing agreed terms of settlement in the Compensation Court of NSW on 12 August 2002.

1. Ms Wilkes continued to be employed on restricted duties at the Grafton Nursing Home until 30 August 2002, when her employment was terminated.  Ms Wilkes maintains that she continues to be unable to resume the full range of her pre-injury duties because of her impairment/injury.  She claims that suitable duties have not been provided to her.

1. On 3 October 2002 Ms Wilkes made a claim on the Appellant Employer for payment of compensation from 30 August 2002 at the rate of $246.79 per week, and continuing, plus ongoing medical expenses.  The Appellant Employer refused the claim on the basis that Ms Wilkes did not have an injury that was compensable under the Workers Compensation Acts (the 1987 and 1998 Acts).

1. Ms Wilkes gave evidence of a number of unsuccessful applications for suitable employment, that she made following her termination from Grafton Nursing Home (statement attached to Application to Appeal).

1. Ms Wilkes relies upon the medical reports of her treating General Practitioner Dr Harding, Specialist Surgeon Dr Miller, Physiotherapist Andrew Weatherstone, Orthopaedic Surgeon Dr Hefner and Orthopaedic Surgeon Dr Stabler.  Drs Harding and Miller specifically concur on the fact that Ms Wilkes continues to be unfit for the full range of her pre-injury duties.  Dr Harding notes that Ms Wilkes is not able to push heavy wheelchairs.

1. The Appellant Employer relies upon the medical reports of Dr Silva, Orthopaedic Surgeon and submits that the Arbitrator has reached conclusions that purport to be, but are not in fact, supported by Dr Silva’s report.  To this end it is necessary to set out the “Diagnoses and Opinion” found in Dr Silva’s most recent report, dated 16 May 2002, in full.

1.   “The history obtained since the last visit is listed above.

2.   I think the incident at work while lifting a table on 07/02/00 probably aggravated pre-existing developmental and degenerative changes in the cervical spine.  I do not think she has any work-related local pathology in the shoulders or the elbows and I think the vague aches she experiences in the shoulders and elbows are radiating pains from the region of the cervical spine from age-related and developmental degenerative changes in the cervical spine.  There is no point therefore in giving cortisone injections to the shoulder joints or the elbows. 

3.   The orthopaedic problems noticed are some stiffness in the neck, which could be explained on the basis of age-related and developmental changes in the cervical spine but some work-related aggravation is probable.

4.   This lady is not disabled but she has a mild residual aggravation of pre-existing changes in the cervical spine described as developmental partly and partly age-related.

5.   She has had some cortisone injections presumably with local anaesthetic given by her treating specialist but I do not think they are indicated as far as the right shoulder pain and right elbow are concerned because those aches and pains are probably coming from the neck.

6.   The prognosis could be improved by her doing her own remedial exercises.  She is exempted from heavy pushing and lifting wheelchairs and that is reasonable.

7.   The present condition could be described as a mild continuing residual aggravation of degenerative changes in the neck due to age and developmental conditions.

8.   There are no permanent disfiguring scars.

9.   The patient remains fit for normal duties of a recreational officer as she did before the alleged incident and it is reasonable for her not to push heavy wheelchairs.

10.  There is no indication for surgery or any injections or continuing medical attention of physiotherapy but she should do the remedial exercises on her neck, which she knows to do.”

DISCUSSION AND FINDINGS

Correct Name of the Respondent

1. The correction of the name of the Respondent on the Certificate of Determination is a matter which, in my view, could have been addressed by way of application to the Registrar to correct an ‘obvious error’ pursuant to section 294(3) of the 1998 Act and in accordance with Commission Practice Direction No. 4.  Given that the issue is addressed in detail in the Arbitrator’s reasons, where the Respondent is correctly identified, this is not a matter that goes to the substance or fairness of the Arbitrator’s decision.  It is a matter that I will now correct by way of orders made on the appeal.

Evidence

1. The Arbitrator’s ‘Findings and Reasons’ are set out at paragraphs 25-32 of the Reasons. 

1. The Arbitrator, found that:

   ·     Ms Wilkes was unable to perform her pre-injury duties and her employment was terminated on 30 August 2002 for that reason. 

   ·     Ms Wilkes has made endeavours to find suitable employment but has been unable to do so.

   ·     The injury occurred on 7 February 2000 and at this time GIO was the relevant insurer.

   ·     “There is no evidence that the applicant’s employment since 30^th June has been a substantial contributing factor to the Applicant’s injury”.

   ·     Ms Wilkes pre-injury earnings were $246.79 per week.

   ·     “On the basis of Dr Silva’s report I am not satisfied that it is necessary for the Applicant to have further physiotherapy or acupuncture but she should be allowed to have regular medical consultations with her General Practitioner.”

2. No express finding as to the Appellant Employer’s liability for the Worker’s claim has been made, although this conclusion must clearly be drawn from the Reasons and orders. 

1. The Arbitrator’s finding in relation to the Worker’s ongoing employment being a ‘substantial contributing factor’ to her injury is not clearly expressed in relation to the matters claimed.  The Worker’s claim was that her ongoing incapacity arose from a discreet incident on 7 February 2000, which continues to cause her incapacity.  I assume that this finding rules out any claim that the ‘nature and conditions’ of her work, on restricted duties, were an ongoing source of her incapacity.  

1. In my view the reasoning in the report of Dr Silva, and in particular his conclusions as set out above, is not clear.  His conclusions do not obviously fit together.  On balance, I accept that he found that the incident on 7 February 2000 “. . .aggravated pre-existing developmental and degenerative changes in the cervical spine” (Conclusion 2 of his report) and that “some work-related aggravation is probable”(Conclusion 3 of his report) in relation to Ms Wilkes’ current symptoms. 

1. While finding that Ms Wilkes was fit for normal duties, Dr Silva also acknowledged that “. . . it is reasonable for her not to push heavy wheelchairs”  (Conclusion 9 of his report).

1. The reports of Dr Harding, Dr Hefner and Dr Miller support these findings.

1. The Arbitrator was entitled to rely upon the report of Dr Silva and did not err in making the relevant findings on the basis of the evidence.  Having said that, it is my view that the Reasons would have benefited from a more comprehensive discussion of the evidence that was before the Arbitrator, in particular the medical evidence going to the specific issues in dispute.

DECISION

1. The Certificate of Determination issued by the Commission on 19 November 2003 is amended to correctly identify the Respondent as ‘Grafton Aged Care Home Pty Ltd’. 

1. The decision of the Arbitrator is confirmed.

COSTS

1. The appeal has been unsuccessful and costs fall to be determined in accordance with section 345 of the 1998 Act.  That section provides, relevantly, as follows:

345     Costs penalties where appeal unsuccessful

(1)On an appeal from the Commission constituted by an Arbitrator to the Commission constituted by a Presidential member:

(a)if the appellant is the claimant and is unsuccessful on the appeal, the Commission must not make an order for the payment of the appellant’s costs on the appeal by any other party to the appeal, or

(b)if the appellant is an insurer (other than a licensed insurer that maintains a statutory fund under the 1987 Act) and is unsuccessful on the appeal, the Commission may order the insurer to pay to the Authority for payment into the WorkCover Authority Fund an administration fee of $1,000 or such other amount as may be prescribed by the regulations.

(2)If the appellant in any such appeal is a licensed insurer that maintains a statutory fund under the 1987 Act and is unsuccessful on the appeal:

(a)the insurer’s costs on the appeal, and

(b)the costs of any other party to the appeal that the insurer is ordered to pay,

are not to be paid out of the statutory fund.

(3)If an appeal concerns lump sum compensation, weekly payments of compensation or medical expenses compensation, the appellant is considered to be unsuccessful on the appeal unless the decision on appeal results in a change in favour of the appellant in the amount awarded or ordered to be paid in the decision appealed against of at least $5,000 (or such other amount as may be prescribed by the regulations) and at least 20% of the amount awarded or ordered to be paid.

(4)An administration fee that an insurer is ordered to pay is recoverable as a debt due to the Authority.

(5)The Registrar is to notify the Authority of an order to an insurer under this section to pay an administration fee.

1. The Appellant is ordered to pay the costs of the appeal.

Dr Gabriel Fleming

Deputy President  

25 March 2004

I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DR GABRIEL FLEMING, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE