Hadchiti v New South Wales Police Force (No. 1)
[2009] NSWWCCPD 87
•29 July 2009
| WORKERS COMPENSATION COMMISSION | ||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||||
| CITATION: | Hadchiti v New South Wales Police Force (No. 1) [2009] NSWWCCPD 87 | |||||
| APPELLANT: | Bernadette Hadchiti | |||||
| RESPONDENT: | New South Wales Police Force | |||||
| INSURER: | Allianz Australia Insurance Limited as agent for the TMF No. 3 | |||||
| FILE NUMBER: | A1-5055/08 | |||||
| ARBITRATOR: | Ms J Conley | |||||
| DATE OF ARBITRATOR’S DECISION: | 28 November 2008 | |||||
| DATE OF APPEAL DECISION: | 29 July 2009 | |||||
| SUBJECT MATTER OF DECISION: | Section 52A of the Workers Compensation Act 1987; worker not seeking suitable employment | |||||
| PRESIDENTIAL MEMBER: | Acting Deputy President Anthony Candy | |||||
| HEARING: | On the papers. | |||||
| REPRESENTATION: | Appellant: | Carroll & O’Dea Lawyers | ||||
| Respondent: | DLA Phillips Fox | |||||
| ORDERS MADE ON APPEAL: | The decision of the Arbitrator dated 28 November 2008 is confirmed. Each party is to pay her or its own costs of the appeal. | |||||
BACKGROUND TO THE APPEAL
Ms Bernadette Hadchiti (‘the worker’) was employed by the New South Wales Police Service in 1990. That body is now known as New South Wales Police Force and the Reply lodged on its behalf identifies it as such. Its possible misdescription is not said to be of any significance. Both are referred to in this decision as ‘the employer’ without distinguishing between them.
On 24 November 1992 the worker made a claim for workers compensation in which she said that she began to suffer pain in her right arm and shoulder as a result of her employment as a data entry operator. She had seen her general practitioner, Dr Salama, on 19 November 1992 and was referred to an orthopaedic surgeon, Dr Maniam. Later she consulted another general practitioner, Dr Chwah, and was referred to a number of other specialists. She was certified as being either unfit or fit for suitable duties for various subsequent periods by those doctors. She did however continue to work, on and off, at alternative duties until, on 24 August 1993, she submitted a further claim for compensation saying that she had felt numbness in her left hand and shoulder for the preceding three months. She complained of symptoms all over her joints, especially her chest, neck and the left hand. She took time off work from 17 August 1993 onwards and her services were terminated in September 1993.
It is not clear what payments of compensation, if any, were made. At some time liability to pay compensation was denied and accordingly the worker began proceedings in the Compensation Court, matter No. 5887 of 1994, seeking weekly and other compensation. On 5 September 1995 Davidson CCJ entered an award in favour of the worker in the sum of $120.00 per week from 6 September 1993 on the basis of partial incapacity as well as ordering the employer to pay the worker’s expenses under section 60 of the Workers Compensation Act 1987 (‘the 1987 Act’). Her claims under sections 66 and 67 in respect of impairment of her back and neck and loss of use of both hands and arms were dismissed.
Certain of the medical reports put in evidence were said to have been exhibits before his Honour although they post-date his Honour’s award. No reference was made by the parties to any later proceedings, however, the Compensation Court file which the parties inspected reveals that the employer sought in 1998 to reduce or terminate the award and the worker sought to increase the weekly payments. Both applications were dismissed on 31 July 1998. Nothing turns on this outcome. There the matter rested until 2006 and weekly and other payments continued to be made.
At the time of injury the employer was insured in respect of its liability under the 1987 Act and in these proceedings that insurer is identified as Allianz Australia Insurance Limited as agent for the TMF No. 3 (‘the insurer’). On 31 August 2006 the insurer gave the worker written notice that weekly payments of compensation were to cease from 26 September 2006 in accordance, it was said, with section 52A of the 1987 Act. Reliance was placed on a statement made by the worker to a rehabilitation consultant, Ms Amelia Pyke of Work Solutions Australia, in her report dated 15 June 2006 that the worker was not at work, was currently certified fit to perform suitable duties for 15 hours per week and had not completed any job seeking activities since 2002 as she did not have an appropriate vocational goal.
Further, the insurer denied liability for treatment in respect of the worker’s psychological condition based on section 9A of the 1987 Act and advised that the condition from which the worker was suffering was not related to her work injury of 17 August 1993.
On 23 February 2007 the worker’s solicitors wrote to the insurer making claims pursuant to sections 66 and 67 of the 1987 Act in respect of her back, neck, legs and arms, relying on a report of Dr Preston, a rheumatologist, dated 25 July 2006.
The insurer wrote to the worker care of her solicitors on 10 July 2007 advising that it had decided to decline liability for her injury pursuant to sections 4, 9, 33 and 66 of the 1987 Act. It is not clear that there was any earlier response to the letter of 23 February. Liability for ongoing medical treatment was also denied.
The worker’s solicitors again wrote to the insurer on 6 August 2007 making a further claim pursuant to sections 66 and 67 in respect of impairment of the neck and the left arm at or above the elbow in accordance with the report of Dr Drew Dixon, an orthopaedic surgeon, dated 13 April 2007. This claim was declined by letter of 18 September 2007.
On 24 September 2007 the employer’s solicitors wrote to the worker’s solicitors advising that no offer of settlement would be made in accordance with an attached notice pursuant to section 74 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’). The notice was, it appears, that of 18 September 2007.
The worker’s solicitors lodged an Application to Resolve a Dispute in the Workers Compensation Commission (‘the Commission’) on 2 July 2008 in which the worker relied on the nature and conditions of her employment from 1989 to 6 September 1993. Her injury was described as “RSI, Fibromyalgia”. The description of how the injury occurred is as follows:
“Applicant initially felt pain in the right hand and forearm in her duties as a Data Entry Operator. Her duties involved repetitive computer data entry. Pain continued to develop in the right arm and shoulder. Subsequently, similar pains in the left hand, arm and shoulder developed. Further, pain proceeded to the neck, shoulder and chest region.”
Weekly compensation from 26 September 2006 was claimed, together with lump sums in respect of loss of use of the worker’s left arm at or above the elbow (20%) and impairment of her neck (10%) and pain and suffering compensation.
The employer lodged a Reply on 24 July 2008 which denied that the worker had suffered an injury and also relied on section 9A of the 1987 Act, notwithstanding the finding of injury by Davidson CCJ and the fact that section 9A was not enacted at the date of injury and does not have retrospective operation. This was subsequently abandoned. In respect of the section 66 and 67 claims, the employer denied that there was any permanent loss of use because of the injuries alleged. In respect of weekly benefits the employer denied that the worker had any ongoing incapacity for employment as a result of her work pursuant to section 33 of the Act and the decision of the High Court in Calman v Commissioner for Police (1999) HCA 60. Specific reliance was placed on section 52A of the 1987 Act. The employer also advised the Commission in its Reply that it had lodged an application (5845-08) for termination/variation of the award of Davidson CCJ and requested that the applications be heard together.
This request was agreed to by the Registrar and the proceedings were referred to a Commission Arbitrator. A teleconference was held on 3 September 2008 and a conciliation/arbitration arranged for 24 September 2008. That was adjourned in order that the parties might inspect the Compensation Court file and the conciliation/arbitration was rescheduled for 12 November 2008. On that occasion the Arbitrator took addresses on behalf of the worker and employer and reserved her decision.
On 28 November 2008 the Arbitrator found in favour of the employer in these proceedings and, accordingly, dismissed its application in 5845-08. However, the claim for permanent impairment was remitted to the Registrar for referral to an Approved Medical Specialist (‘AMS’).
It is from this decision of the Arbitrator in relation to weekly payments that the worker now seeks leave to appeal.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 28 November 2008 records the Arbitrator’s orders as follows:
“1. Award for the Respondent for the claim for weekly compensation.
2.The Application to Resolve a Dispute is amended to specify the claim for lump sum compensation to be for 10% permanent impairment of the neck and 10% loss of efficient use of the left arm at or above the elbow.
3.The claim for lump sum compensation for permanent impairment of the left arm at or above the elbow and the neck in respect of an injury occurring due to the nature and conditions of employment from 1989 to September 1993 is to be remitted to the Registrar for referral to an AMS for assessment of the degree of permanent impairment if any.”
[The Arbitrator then listed the documents to be included in the referral to the AMS.]
ISSUES IN DISPUTE
The issues in dispute in the appeal all relate to the Arbitrator’s finding that the employer was entitled to rely on the provision of section 52A of the 1987 Act to cease payments of weekly compensation. The grounds are:
· The decision was not supported by evidence.
· The Arbitrator took into consideration irrelevant matters.
· The Arbitrator ignored relevant evidence.
·The Arbitrator erred in reversing the onus of proof in relation to the application of section 52A.
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 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
There is no dispute that the appeal was filed within time and the monetary compensation at issue on the appeal meets the thresholds in section 352(2) of the 1998 Act. Accordingly, leave to appeal is granted.
EVIDENCE
The Worker’s Evidence
A four page statement by the worker dated 5 November 2007 was relied on. There are a number of inaccuracies in it when compared with the contemporaneous medical records in evidence. She dates her complaints as starting in June 1993 with severe right hand pain in August 1993. It was then that she said she saw Dr Salama and was referred to Dr Maniam. It was then also that she was placed on suitable duties at work. Those duties caused her symptoms to worsen so that she developed pain in her hands, arms, shoulder [sic], neck, back and chest. In September 1993 she took a week off sick for what her general practitioner had thought was influenza and was dismissed on 6 September 1993 as there was not sufficient work available.
In July 1994 she had completed an interpreting course at TAFE for which she was provided with a scribe. She said she was unable to continue with the next level of study and was unable to gain employment in that field. In 2003 she said she undertook a course at the University of New South Wales, Institute of Languages. She progressed to the end of the course but was unable to sit for the examinations because of stress. She said she did volunteer work at a radio station which involved talking for one hour. During 2005 and 2006 she also did volunteer work at Liverpool Hospital but she had to stop because of vertigo. She gained employment as a sales representative but was unable to complete her first week because the position required writing and telephoning. She had remained unemployed since that time.
She said she had good health prior to June 1993 and did not take a sick day or holiday until then. Again this appears inconsistent with the documentary evidence available. In 1994 she said she had become depressed and was placed on Prozac and in 1996 she started to experience panic attacks and was prescribed a drug called Kalma.
She was on a disability pension and could not afford any treatment. She then described a fall which she had in a supermarket in June 2004. She lists the medications, twenty-four in all, which she was taking at the time of the statement She said she was seeing a psychologist once a month and experienced pain in her hands, arms, fingers, wrists, neck, shoulder, chest, jaw, legs, feet, back, stomach as well as vertigo. She described restrictions with most if not all of her activities. She had difficulty focussing when reading. Writing or typing had to be done in stages with regular intervals [sic]. Sometimes she was able to bend and other times she found it difficult to even wear socks. On occasions she felt numbness, burning and tingling in her hands, arms, legs and shoulders as well as a sharp pain in her chest. She was unable to pursue her main recreations of dancing, volleyball and playing cards. She had no energy for hydrotherapy, had tried a number of different anti-inflammatory drugs and she also had physiotherapy but at that time was having neither of these latter two treatments. She said the most beneficial treatments were hydrotherapy, alternative medicine and seeing a psychologist. Around September 2006 the insurer had stopped payment for those treatments and in August 2006 the insurer also stopped paying for Work Solutions. She said the rehabilitation program with CRS Australia (‘CRS) was closed in February 2006 since the insurer had requested this. She had attended psychiatrists, Dr Ali and Dr Younan. Her self-esteem since the workplace injury had been dramatically reduced. She felt unable to work, unable even to study, felt like a failure and there was no reason for her to live. She felt constantly anxious and isolated. She did her own housework, although it was not easy, and had difficulty doing ironing, vacuuming and did not make her bed except to change the bed sheets. Her brother helped her with shopping and hospital visits when required.
She said she suffered an “amplification of sensory perception”. She woke at night with the ticking of a clock, her eyes were sensitive to light so that she required sunglasses and an umbrella, her skin was very tender to touch, she was limited in what she could wear and was sensitive to many smells such as carpet and detergent. She was physically and emotionally exhausted and feeling stressed by the constant need to adapt to everyday life in addition to persistent muscle pain. She said she felt exhausted for at least 12 hours after moderate exertion or effort.
She continued to see her treating doctors who are identified as Dr Brian Ngu, her general practitioner and Dr Susan Connor, a gastroenterologist and hepatologist. She attended the Pain Medicine and Research Centre at Liverpool Hospital and a dietician at that hospital.
Reports and certificates from a large number of doctors are in evidence including some of those tendered in the proceedings before Davidson CCJ, both in 1995 and 1998. Some medico-legal reports were rejected by the Arbitrator as being in excess of the permitted medico-legal reports. It is not necessary for the purposes of this decision to deal with the reports in evidence at length. The treating doctors, in general, support to varying degrees the claim by the worker that she had an incapacity as a result of her work-related injury. Dr Maniam in December 1992 diagnosed early repetitive strain injury. Dr Williamsz, an ear, nose and throat surgeon, saw the worker at the request of her general practitioner, Dr Salama, and reported to that doctor on 16 December 1992. The complaints made to that doctor related to the worker having a heaviness at the back of her head and a tendency to feel faint, following a flight four years before. She complained of severe tiredness and said she could not move for more than 15 minutes without fatigue. Although she was referred to a Dr Macauley there is no report from that doctor in evidence.
Dr Chwah, when he saw the worker in January 1993, thought that she could have an “inflammatory musculo ligamentous condition” which would have been aggravated by her work. Dr Marabani, a rheumatologist, diagnosed fibromyalgia CRS when she saw the worker in March 1993, encouraged the worker “strongly” to continue working and tried to dispel the notion held by the worker that she would become crippled. Dr Salama in August 1993 diagnosed repetitive sustained [sic] injury. Dr Kirsh, an orthopaedic surgeon who saw the worker in 1993 said that he could not explain her pain but she was to have an EMG. Because of her depression she had been referred to psychiatrists, Drs Ali and Younan. Dr Ali had previously seen the worker in 1989 when she was suffering from headaches and insomnia.
Dr Mahony saw the worker in May 1996 at the request of Dr Assad. He diagnosed cervical and low lumbar strains with nerve root irritation affecting the worker’s upper and lower limbs. Dr Rozario, a rheumatologist, examined the worker at the request of Dr Khan in July 2004 and expressed the opinion that the worker’s symptoms were suggestive of a fibromyalgia type syndrome. Dr Rozario recommended a whole body scan and some pathology tests to exclude other disorders before making that diagnosis, however the worker indicated that she did not wish any further investigations done. On 6 July 2006 a general practitioner, Dr Diep, certified the worker fit for suitable duties, being for three hours per day, five days per week. He also referred her for a course of acupuncture with a diagnosis of chronic myofascial strain. The worker began to consult another general practitioner, Dr Nguy who considered that her symptoms were consistent with repetitive strain injury and fibromyalgia.
A rheumatologist, Dr Preston, saw the worker at the request of her solicitors on 25 July 2006. At the time that Dr Preston saw her she was having acupuncture and hydrotherapy. The worker had had problems with her jaw since 1993 and was attending Westmead Hospital for review. She had symptoms of depression in 1995 and panic attacks in 1996 and she had seen psychiatrists, including Drs Ali and Younan, in respect of this. At that time she was seeing a psychologist, who was not identified but who was, it appears from his reports, Mr J Michael Mezaleigue.
She complained of pains everywhere, particularly in her neck, which were constant and worse when she bent her neck forwards. She had pains in her arms both in muscles and joints. She complained of pain in her low back which was intermittent but could be very severe. It had been worse over the preceding weeks without obvious cause. The worker did not inform Dr Preston of the fall which she had in the supermarket in June 2004 and specifically denied accidents or injuries which were other than work-related. She complained of pain in both legs and intermittent paraesthesiae in her arms and legs. She said her back pain was worse with activity as were symptoms in her arms, including any repetitive work. Neurological examination of the upper limbs was normal.
Dr Preston agreed that the clinical features on examination were consistent with a diagnosis of fibromyalgia. The worker stated a history that she was keen to return to work on a full-time basis and thought she may be able to work in security, monitoring security camera information. She had also considered work as a marriage celebrant. Dr Preston thought that the worker’s anxiety disorder may be a limiting factor in her return to full-time employment. Dr Preston then made assessments of impairment and loss of use of the worker’s back, neck, right leg, left leg, right arm and left arm.
Dr Peter Conrad, an orthopaedic surgeon, had seen the worker at the request of her former solicitors on 2 September 2004. His diagnosis was that she had chronic neck and back strains and bilateral chronic tenosynovitis of each arm. As with of Dr Preston no history of the fall in June 2004 was given to this doctor. Dr Conrad assessed impairment of her neck, back and loss of efficient use of her left and right arms.
Mr Mazaleigue, the psychologist previously referred to, first saw the worker in April 2005 at the request of Dr Bishay. He referred to the worker’s “good pre-morbid psychosocial history” and was apparently not informed of the worker consulting Dr Ali prior to her work injury. He recommended eight further counselling sessions to achieve an improvement in her symptoms so that she could benefit from subsequent training/study/rehabilitation. In July 2005 he reported to the insurer after the eight sessions of counselling. The worker’s progress had plateaued and she had reverted to being overwhelmed by adjustment issues. Thus he recommended six further sessions with additional counselling as the need arose. On a date which is not stated Mr Mazaleigue wrote at her request setting out that her disorder had been influenced by financial, medico-legal and legal issues. He noted that she had been “gravely affected” by feeling misled by a treating medical specialist in a report of April 2005 which was not consistent with his earlier expression of opinion. This incident was he said a “highly significant factor in the exacerbation of her depressive symptoms in particular”. It is unclear what this refers to or why it was included in the documentary evidence relied on by the worker.
He wrote to the worker’s general practitioner, Dr Nguy, in September 2007 advising that he had been dealing with more severe episodes. He said that he would review her progress after six sessions and inform him of the need for further counselling.
A report from a psychologist, Mr Colin Bass, was in evidence. He had seen the worker on 4 October 1994 in order to assess her employability and reported to the solicitors for the employer on 25 January 1995. He records that she completed a standardised psychological test under protest and could not continue further. He thought she had an “extraordinary concern about a broad spectrum of medical conditions”. She would not accept the negative results of two recent medical checkups and was then seeing five or six doctors. His conclusion was that “[h]er alleged incapacity [was] the direct result of self-reinforcement achieved through going to new and different doctors, and through obtaining specialist referrals.”
The worker relied on part of the report of Ms Pyke of 15 June 2006 referred to earlier, being the last six pages and thus omitting the statement from the worker on which the insurer relied in purporting to terminate the liability for weekly payments. The employer has however attached a complete copy to its Reply. It is convenient to deal with it as part of the employer’s evidence.
The worker relied on two reports of CRS, being a Vocational Assessment Report of 27 October 2005 written by a rehabilitation counsellor, Ms Geraldine Callan, and a Return to Work Plan of 19 December 2005 written by an occupational therapist, Ms Melinda Stopa. There was an assessment of the worker on 27 October 2005 and a further assessment on 4 November 2005 where the worker sought to be re-trained as a Marriage Celebrant and was advised by a Ms Symons that the training course for a Marriage Celebrant did not need the obligations imposed by the Workers Compensation Act.
She advised the CRS consultant that she had approached Liverpool Hospital to gain a volunteer position and was awaiting a response to her application. A number of barriers to return to work were identified in this report namely the nature of her injury, the inability of her pre-injury employer to offer her suitable duties, psychosocial barriers to employment, restrictive capacities for work, limited employment background and limited transferable skills and job-seeking skills. The comment is made in the report that “Ms Hadchiti reported little belief that CRS Australia will locate suitable employment enabling her maintain safe and durable work”.
Suggested employment positions are listed in the appendix. They are Usher/Tour Guide, Museum or Gallery Attendant, Customs Inspector Trainee, Cosmetic Consultant (Sales Demonstration) and Sales Assistant. The vocations identified in the Return to Work Plan are as Cosmetic Consultant (Sales Demonstration) and Sales Assistant. Ms Stopa has recorded that the worker said she was not interested in returning to work in those goals as she wished to be re-trained in a new field.
The Employer’s Evidence
The employer relied on a report of Dr Stephen Potter dated 23 September 2007 and it is not necessary, in my opinion, to deal with that in any great detail for the purposes of this appeal. Dr Potter had seen the worker earlier at the request of Dr Smith for the insurer. He was thus a qualified specialist rather than a treating doctor as appears to have been assumed at the consideration/arbitration before the Arbitrator. His opinion was that there was no physical injury to explain the pain which the worker had in every part of her body. He thought she was fit for normal duties and had no impairment or loss of use of any part of her body as claimed.
Dr Breit, an orthopaedic surgeon, also reported at the request of the insurer. His report is dated 2 June 2006. He had seen the worker the preceding day. He expressed the opinion that there was no relationship between the worker’s employment and her injury, denied that work was a substantial contributing factor to her injury or that she had any limitation of return to her pre-injury employment. Dr Breit similarly failed to find any impairment or loss of use as claimed by the worker. The conclusions of both doctors that there was no injury are, of course, inconsistent with what Davidson CCJ had decided.
A number of letters to the worker from the insurer, being by way of notices under the workers compensation legislation have already been referred to. There is a document also included which is headed “Dispute Form to Technical Area” dated 22 August 2006. Three medical certificates are summarised as follows:
Period
RestrictionsFitness Hours/Day Main From 2/7/2006 To 1/10/2006 Selected Duties 3 Hr 5 days per week WCMC attached From 2/4/2006 to 1/7/2006 Selected Duties 3 Hr 5 days per week WCMC attached From 2/1/2006 to 1/4/2006 Selected Duties 3 Hr 5 days per week WCMC attached
There appears a statement in the paragraph which follows the above which is as follows:
“Is the worker on an approved rehabilitation plan?
Yes – Job Search Assistance
This is the 3rd rehab provider on this claim as the IW take it upon herself to request this, it was approved by AAL with restrictions as initial assessment, Vocational assessments have been completed & IW will not agree to anything. Rehab currently on hold until a decision is made on the status of the claim.”
The report from Ms Pyke of Work Solutions Australia is dated 15 June 2006. The worker was seen on 31 May 2006 for initial assessment and then again on 13 June 2006 for vocational review. The worker was said to have been diagnosed by her treating doctor, Dr Diep, with chronic myofascial strain in neck, upper limbs and lower back in accordance with the certificate dated 30 March 2006 which does not appear to be in evidence. Ms Pyke records that Dr Diep advised on 31 May that the worker had only been consulting him for a few months and that she was fit for work 15 hours a week as previously indicated. She could perform work that did not exceed 5 kilograms lifting not including repetitive bending, pulling, pushing, use of either arms, or excessive walking. Under the heading “Current Work Status” appears the statement on which the employer relied in purporting to terminate weekly payments pursuant to section 52A of the 1987 Act. The worker completed a test described as an “Oswestry Disability Index” scoring a disability index of 70% indicator. Ms Pyke thought that the worker perceived herself as “crippled”. The limitations which the worker said she had are as follows:
· Walking no more than 1 kilometre
· Sitting no more than 30 minutes
· Standing no more than 30 minutes
· Lifting light weights causes extra pain
· Sleeping less than 2 hours per night because of pain
· Travelling causes extra pain
The worker reported severe pain when she did “any activity” asked such as taking out the garbage and washing up. Other necessary household duties caused an increase in her pain.
Under the heading Vocational Options it is noted that the only options which would be suggested were those which did not require re-training; these were:
· Transport Services Officer
· Usher
· Door Person
· Tour Guide.
A number of other options were considered but deemed inappropriate. They are as follows:
· Real Estate Evaluator – requires a course to be undertaken
· Security Guard – requires one week training to be undertaken
· Marriage Celebrant – requires formal training
·Interpreter/Translator – the worker was interested in working for SBS. She would have to complete her interpreter course at Level 2 and had only completed Level 2.
·Call Centre – refused by worker as she would be unable to use a switchboard because of the repetitive nature of that work
·Receptionist – the worker again refused saying she could not perform delicate tasks
A number of vocational options were suggested and as with CRS a number of barriers to return to work are identified. Relevantly, the barriers identified were:
·Motivation/Compliance – Ms Hadchiti has refused previous rehabilitation duty vocational options presented. Ms Hadchiti also seems focused on Rehabilitation Providers finding her work.
·Re-training – Ms Hadchiti has a strong focus on retraining, even though it has been made clear Allianz will not pay for retraining.
·Legal issues – Ms Hadchiti presented as very litigious focussed stating that all conversations are recorded in writing and presented to her solicitor.
·Language/Culture – Ms Hadchiti is from a Non English Speaking Background and may not be understood if she speaks quickly over the phone.
·Work Experience – Ms Hadchiti has not worked in a job for longer than a month for the last thirteen years and consequently has lost a great deal of skill base and physical conditioning.
A number of recommendations were suggested by Ms Pyke and she noted the worker refused to perform work that required “anything to do with the hands”.
The employer relied on the District Court Statement of Claim issued by the worker against the operator of supermarket following the fall she had on the premises on 2 June 2004. Her injuries were particularised as follows:
“(i) injury to the low back;
(ii)injury to the right leg;
(iii)injury to the left shoulder;
(iv)injury to the left hip;
(v)injury to the right hip;
(vi)injury to the cervical spine;
(vii)L4/5 disc protrusion with disc extrusion; and
(viii)injury to the left arm.”
A claim for loss of earnings was made together with a claim for domestic assistance.
Those proceedings were settled on 13 March 2008 by a consent judgment in the plaintiff’s favour in the sum of $45,000.00 inclusive of costs.
REASONS OF DAVIDSON CCJ
As I have earlier indicated, his Honour delivered a judgment in matter No. 5887 of 1994 on 5 September 1995 and the employer relied on a transcript of those reasons. The transcript of his Honour’s reasons in the proceedings brought in 1998 was not obtained. His Honour initially noted that the worker was an intelligent young woman capable of undertaking tertiary education who had difficulty in adjusting to Australian life. She had consulted a psychiatrist, Dr Ali, between 1989 and 1990 some thirty-one times. (It appears that Dr Ali gave evidence in the proceedings, however, since neither party has sought to rely on this, I have not had regard to it.) His Honour noted that the worker had problems in gaining employment and had worked for nine months with the Arab Australia Bank three days a week before she commenced work with the employer in July 1990 as a clerical officer doing data entry. The worker had commenced to feel heaviness in her right hand in August 1992 and those symptoms continued until, in November 1992, she was unable to continue with her work. The worker was, his Honour said, induced to fill in a claim form which had been relied by the employer in those proceedings. She saw doctors, was referred to rehabilitation advisers and was placed on light duties, however the symptoms in the right hand persisted although to a lesser extent initially. In February 1993 she was given further light duties answering telephone enquiries. These duties involved her using both hands. From that time her symptoms began to extend to other parts of her body including her jaw and her chest. By August 1993 the worker had widespread aches and pains and similar pains in her left hand as in her right. Those pains had persisted ever since.
His Honour noted that the evidence was relatively extensive involving a large number of doctors both for the purposes of treatment and giving evidence in the case and did not set out at length the contents of those reports. There was psychiatric evidence in respect of claimed “anxiety, depression and irritability” from Drs Ali and Shand.
In respect of the worker’s physical symptoms, the worker’s evidence was that of Drs Stuckey, Patrick and Maniam. In addition, the early opinion of one of the insurer’s doctors, Dr Smith, was relied on by the worker.
The employer relied on Dr Shand’s opinion as well as those of a number of other doctors who are not specified and oral evidence from the worker’s supervisor.
His Honour noted that the worker’s doctors found little, if anything, on objective clinical examination to explain the worker’s extensive symptomatology, however, Drs Stuckey and Patrick, among others, clearly accepted that the worker was genuine and that there was a medical condition afflicting her. The employer’s doctors, not finding any objective clinical signs’ had concluded that there was nothing wrong with her and there was no basis for the symptoms which she claimed.
In respect of the psychiatric evidence, the worker submitted that the worker had a psychological effect as a consequence of either physical injury or the perception of such injury. His Honour noted the worker’s need to see Dr Ali in 1989 and 1990 and concluded that she was a person that was susceptible to psychological difficulties.
His Honour found that since early 1993 the worker had been complaining of pain in a great number of parts of her body which probably had no physical basis but this was not done by way of conscious exaggeration by the worker. He thought that the extension of her symptomatology probably reflected her psychological vulnerability which had already been demonstrated.
His Honour came to the conclusion the worker did suffer an injury as a consequence of the work she performed throughout 1992 which affected her right arm and in a minor way her neck. The worker then, as a result of the work she was doing in 1993, suffered an injury to her left arm probably by reason of the difficulty she was then having with her right arm. His Honour preferred the evidence of Drs Stuckey and Patrick to that of the employer’s doctors whom he thought had ignored the complaint of tenderness in the arms by the worker. Although finding an injury his Honour could not give it a precise medical description which he thought was not material. However, her symptomatology he thought “far exceeded” the extent caused by the injuries she suffered. The symptoms other than in her arms and neck could only be explained on psychological grounds.
As to the worker’s psychological claim, he did not think that the worker had made out a case and he noted that Dr Ali had agreed in cross-examination that the worker was not incapacitated from a psychiatric point of view. Other factors his Honour thought confused the psychological position so that one could not unravel it from them and conclude that her psychological condition resulted from her injury while employed.
His Honour found a partial incapacity pursuant to section 40 of the 1987 Act and awarded $120 a week as the difference between her probable earnings uninjured and her ability to earn. In the exercise of his discretion he declined to reduce that actual difference, although he noted that there were pre-existing psychological problems.
His Honour was not satisfied that the tenderness of which the worker complained translated into loss of efficient use of the arms or impairment of the neck. His Honour also doubted that the impairment or loss of use for which percentages had been given should be regarded as permanent since the psychological aspect clouded the position.
SUBMISSIONS BEFORE THE ARBITRATOR
Reliance was placed by the worker on documentary evidence relating to her attending an initial interview on 4 October 2005 at CRS. Action to return the worker to employment was proposed with “expected date of achievement” of 30 July 2006. The vocational options which the worker had explored included her volunteer work at Liverpool Hospital in order to gain work experience and references.
Counsel for the worker submitted that the worker had “gone out and found a rehabilitation provider”, Work Solutions, in order to assist her back into the workforce and therefore there was a contemporaneous record of the worker doing volunteer work at Liverpool Hospital at the time of the section 52A Notice which was seeking suitable employment in terms of section 38A. The statement by the worker in the Work Solutions’ report of 15 June 2006 that the she had not completed any job seeking activities since 2002 was described as a bland statement not consistent with the worker’s employment history obtained by Ms Pyke. Counsel for the worker then dealt with a situation which would arise if the payments were found to have been not validly terminated pursuant to section 52A. The worker sought a review of the award in the proceedings brought as there was no specific form prescribed for this.
On behalf of the employer it was submitted that the application filed by the worker simply sought to reinstate the award of his Honour and was not an application for a review by reason of a change of circumstances. There was no statement from the worker which addressed the section 52A issue. The employer had discharged its onus by the worker’s statement recorded in the report of Work Solutions. At that time the worker was much worse than she had been as a result of many additional physical and psychological problems. Since these developed after she had left her employment then it could not be said that they arose out of or in the course of that employment. Reliance was placed on what the worker told a doctor, Dr Younan, related in his report of 29 September 1997 that “She had previously lost interest in her normal pursuits and she used to push herself to perform minor actions”. This was, it is submitted, not indicative of someone who is out looking for work or who was capable of any employment. Since she received the award in the Compensation Court she had regarded herself as being totally incapacitated. Reliance was also placed on the particulars filed in the District Court proceedings arising out of the fall in 2004 showing that she had made the same complaints in respect of that fall as she had made in respect of her work injury.
Counsel for the employer indicated that if he were unsuccessful in the proceedings brought by the worker then he would move on the employer’s application for a review of the award on the basis that there was a change of circumstances, being the worker’s worsening “gross psychological/psychiatric problems” and the fall in 2004. The employer made it clear that it sought only a termination or reduction in weekly payments and not an increase.
In response the worker’s counsel relied on Dr Younan’s statement in 2003 that the worker had ceased taking tranquillisers and denied any suggestion that the worker’s ability to work was in any way affected by her psychological condition. Counsel referred to what the psychologist, Mr Mazaleigue, had stated in his reports, namely that numerous attempts at rehabilitation had been unsuccessful and that gradually, over the preceding nine years, her depression appeared to have worsened. Although fibromyalgia was not a condition found by Davidson CCJ that did not mean that such a diagnosis was not related to her employment.
REASONS OF ARBITRATOR
The Arbitrator initially briefly summarised the effects of the award of Davidson CCJ but made no reference to the proceedings in 1998 since these were not brought to her attention and she had not inspected the Compensation Court file. The Arbitrator noted that the worker had been advised on 31 August 2006 that payments of weekly compensation would be discontinued after the required period of notice and the worker sought an order for reinstatement of weekly payments as well as lump sum compensation.
The employer had filed a Cross-Application, 5845-2008 seeking either termination or reduction of payments of weekly compensation awarded by his Honour in the event that the discontinuance pursuant to section 52A was found to be invalid. It had been agreed that if the weekly compensation had been validly discontinued then there was no basis for review under section 55 either by the worker or the employer.
The Arbitrator noted the issues to be determined in the proceedings as:
·Has the award or weekly compensation been validly discontinued pursuant to section 52A?
·Can the claim for lump sum compensation be referred to an AMS?
In coming to her decision the Arbitrator stated she had taken into account all of the medical reports except those of Dr Patrick dated 31 August 1995, Dr Taylor dated 9 January 1997 and Dr Dixon dated 13 April 2007. The worker was also given leave to rely on late evidence which she listed.
The Arbitrator noted that the burden of establishing the grounds for the basis of discontinuance under section 52A was on the employer relying on what was said by Burke CCJ in Camilleri v Western Sydney Area Health Service [2000] NSWCC 45; (2000) 20 NSWCCR 499 (‘Camilleri’). The Arbitrator referred to the concept of “the relevant time” defined in section 52A(2) and what had been said by Curtis CCJ in Hughston v Hughston & Sons Pty Ltd [1999] NSWCC 35; 1999) 18 NSWCCR 312. This concept had also been considered by Burke CCJ in Camilleri in which his Honour said, at [34] and [35]: “The intent may persist throughout the whole period but the active implementation of the intent may be intermittent” and “Reasonable efforts to obtain suitable employment in the period leading up to the relevant time with a persisting intent, suffice to discharge the obligation upon the worker”. The Arbitrator noted that there was no dispute that the worker was not suitably employed and the only issue was whether she was seeking suitable employment within the meaning of section 38A at the relevant time. On behalf of the worker it had been submitted that this could be inferred from the material before the Commission, including the statement of the worker. The worker had however made no reference at all to her efforts to seek suitable employment at the relevant time or at any stage and did not deny the allegations relied on by the employer in the Work Solutions’ report. The worker had been certified fit for suitable duties 15 hours per week, being 3 hours per day for 5 days a week.
The worker had been referred to CRS in 2005 for a Return to Work Plan in which the return to work goals were identified, the Arbitrator said, as part-time work as a cosmetic sales representative or retail sales consultant. The worker indicated she wasn’t interested in returning to work in those areas and sought to be retrained in a new field. There was however no evidence what happened as a consequence of that assessment and proposed training. The only evidence was that the case was closed in February 2006.
The worker had approached Work Solutions in June 2006 and Work Solutions recorded that she perceived herself as crippled and had pain on a severe level when she did any activity. She said she had been known to call an ambulance when her pain became intense because she had sometimes confused her pain with a heart attack. She refused to perform any work that required anything to do with her hands. The worker was focussed on the rehabilitation provider’s finding of work and she was described as being “very litigious focussed and wanted all conversations recorded and presented to her solicitor”.
As the Arbitrator correctly observed the evidence was “scant”. Work Solutions had been told by the worker that she had not engaged in any job-seeking activities for the preceding two years. The worker submitted that the years 2002 to 2004 were not relevant but the years 2005 and 2006 were, with which the Arbitrator agreed. There was no evidence from the worker that she herself had sought suitable employment from any potential employer and the only means by which it could be established that she was seeking suitable employment was if she were seeking or undertaking rehabilitation training. She had done volunteer work briefly at Liverpool Hospital however the worker did not say how long she was there, what she was doing or the aim of that work. The Arbitrator noted the worker had a history of not following through with the rehabilitation training, as was the case, she thought, with CRS. Having regard to the totality of the evidence, the Arbitrator did not think that the mere initial consultations with CRS and Work Solutions could be considered reasonable in the circumstances. She therefore found that the worker was not, at the relevant time, suitably employed nor was she taking reasonable steps to obtain suitable employment. Accordingly, the grounds relied on by the employer when ceasing payments were made out. Having come to this conclusion the Arbitrator considered that the application filed by the employer was “misconceived” and should be dismissed. The worker’s claim for lump sum compensation was remitted to the Registrar for referral to an AMS since an injury had been found Davidson CCJ and that issue was no longer open.
SECTION 52A GENERALLY
It is convenient at this time to set apart the relevant statutory provisions. Section 52A provides as follows:
“52A(1) Weekly payments of compensation in respect of partial incapacity for work are not payable for any period beyond the first 104 weeks of partial incapacity for work (whether or not any part of that period is compensated as if the incapacity for work was total) but only if one or more of the following paragraphs (referred to in this section as grounds for discontinuation) applies to the worker at the relevant time:
(a)the worker is not suitably employed (within the meaning of section 43A) and is not seeking suitable employment (as determined in accordance with section 38A),
(b)the worker is not suitably employed (within the meaning of section 43A) and has previously unreasonably rejected suitable employment (within the meaning of section 40(2B),
(c)the worker has sought suitable employment but has failed to obtain suitable employment primarily because of the state of the labour market (rather than because of the effects of the worker’s injury).
(2) The relevant time for the purposes of this section is the time at which the notice under section 54 of intention to discontinue payment of compensation pursuant to this section is given. The discontinuation of payments under this section has effect even if, after relevant time, none of the grounds for discontinuation applies to the worker.
(3) A worker is not entitled to a resumption of payment of weekly compensation for partial incapacity for work once payment is discontinued because of this section.
(4) The notice under section 54 of intention to discontinue payment of compensation pursuant to this section must be given. The notice can be given up to 6 weeks before the end of the 104 week period for which the worker has received or is entitled to receive weekly payments of compensation but cannot be given earlier than that.
(5) The fact that the worker becomes totally incapacitated for work after the relevant time does not affect the operation of this section in respect of partial incapacity for work.
(6) This section does not affect any entitlement to compensation under this Act in respect of any period of total incapacity for work.
(7) A period of partial incapacity for work does not count as part of the 104 weeks referred to in subsection (1) unless the worker received or was entitled to receive compensation for that period. Separate periods during which the worker received or was entitled to receive those payments are to be aggregated.
(8) If:(a)a claim for weekly payments of compensation is made by a worker after the earliest time at which a notice under section 54 to discontinue payment of compensation can be given under this section, or
(b)proceedings before the Commission involve a claim for weekly payments of compensation in respect of any period or incapacity for work that includes any period beyond the end of the 104 week period,
the notice under section 54 may (but need not) be given before payments are discontinued. If the notice is not given, the relevant time for the purposes of this section is the time at which payments are discontinued.
(9) This section does not apply to compensation for an injury received by a person as a worker employed in or about a mine.”
Section 38A provides as follows:
“38A(1) Application. This section provides for the determination of whether a worker is seeking suitable employment for the purposes of section 38 and section 52A (Discontinuation of weekly payments after 2 years).
(2) General Requirements. The worker is not to be regarded as seeking suitable employment unless:(a)the worker is ready, willing and able to accept an offer of suitable employment from the employer; and
(b)the worker has supplied the employer (or the insurer who is liable to indemnify 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, or that is in any other form and contains information that is reasonably sufficient in the circumstances to assist in determining what is suitable employment for the worker; and
(c)the worker has requested the employer (or such an insurer) to provide suitable employment or it is apparent from the circumstances that the worker is ready, willing and able to accept an offer of suitable employment from the employer; and
(d)the worker is taking reasonable steps to obtain suitable employment from some other person
Taking reasonable steps to obtain suitable employment includes seeking or receiving rehabilitation training that is reasonably necessary to improve the worker’s employment prospects.
(3) Notice of requirement relating to obtaining suitable employment from other person. The requirement under subsection (2)(d) does not apply unless the worker has been notified of the requirements in accordance with this subsection.
Such a notice;
(a) must be given in writing by the insurer or self-insurer concerned; and(b)must state that the worker is required to take reasonable steps to obtain suitable employment from some other person in order to remain entitled to compensation under section 38; and
(c)may set out particular reasonable steps that can be taken by the worker in order to satisfy that general requirement; and
(d)is subject to, and must comply with, any regulations and (subject to the regulations) any claims procedures notified by the Authority to insurers and self-insurers; and
(e)does not constitute an admission of liability by an employer or insurer under this Act or independently of this Act
The requirement under sub-section (2)(d) does not apply, and a notice is not to be given under this subsection, while action is being taken by or on behalf of the employer to arrange or explore the possibility of suitable employment with the employer.
(4) Notice not applicable when proceedings pending etc. If proceedings relating to the payment of compensation under section 38 or to the discontinuation of weekly payments under section 52A are before the Commission or the insurer or self-insurer has denied liability to pay any such compensation:(a)a notice is not to be given under sub-section (3), and the requirement under subsection (2)(d) applies without any such notice being given; and
(b)particular steps to satisfy that requirement that are set out in a notice previously given do not restrict the determination of the matter by the Commission.
(5) Workers treated as not seeking suitable employment. A worker is not to be regarded as seeking suitable employment if the worker has unreasonably refused an offer from any person of suitable employment or necessary rehabilitation training. A worker is also not to be regarded as seeking suitable employment if the worker:
(a)unreasonably refuses to have an assessment made of the worker’s employment prospects; or
(b)unreasonably refuses to co-operate in procedures connected with the provision or arrangement of suitable employment or rehabilitation training under the employer’s return-to-work program.
(6) Court Orders. An order of the Commission relating to the weekly payment of compensation:
(a)may be subject to conditions relating to the worker taking reasonable steps to obtain suitable employment during any weekly payments under section 38; and
(b)may include directions relating to the adjustment of the amount of weekly payments under section 38 for any future period of payments under section 40 when the worker obtains employment or when the period for payments under section 38 comes to an end.
(7)Definitions. In this section:
employer of a worker who is partly incapacitated for work means the employer liable to pay compensation to the worker in respect of the incapacity or, if there are 2 or more such employers, the employer so liable who last employed the worker;
refusal of an offer or to do a thing includes a failure to accept the offer or to do the thing;
rehabilitation training means training of a vocationally useful kind, and includes vocational re-education, work-trials, occupational rehabilitation services or treatment provided by way of rehabilitation;
suitable employment means suitable employment within the meaning of section 43A.”
Relevantly section 43A provides as follows:
“43A(1)For the purposes of Sections 38, 38A and 40:
suitable employment, in relation to a worker, means employment in work for which the worker is suited, having regard to the following:
(a) the nature of the worker’s incapacity and pre-injury employment;
(b) the worker’s age, education, skills and work experience;
(c) the worker’s place of residence;
(d) the details given in the medical certificate supplied by the worker;
(e) the provisions of any injury management plan for the worker;(f)any suitable employment for which the worker has received rehabilitation training;
(g) the length of time the worker has been seeking suitable employment; and
(h) any other relevant circumstances.”
Section 52A has had two separate incarnations, firstly as a result of the WorkCover Legislation Amendment Act 1996 the relevant part of which commenced on 12 January 1997 and, secondly, in the Workers Compensation Legislation Amendment Act 1998 which commenced on 1 August 1998. The section which is applicable is the later of the two. The transitional provisions in relation to these two versions of section 52A are to be found in clauses 14 and 15 of Part 4 of Schedule 6 of the 1987 Act.
Burke CCJ carried out a very detailed consideration of the statutory provisions in Sippel v Carey’s (Tamworth) Pty Ltd (2000) 19 NSWCCR 275 (‘Sippel’). Clarke A-JA similarly considered the statutory provisions in Royal Society of Welfare for Mothers & Babies v Bowers (2000) 20 NSWCCR 567.
Burke CCJ in Sippel said the following at [71]:
“Again in general, the circumstances triggering the operation of s 52A are where the worker has obstructed his return to work (refused suitable work), made no attempt to use his residual capacities or is a victim of economic circumstances, mostly geographic I would imagine, in there being little or no suitable work available in the area where he resides.”
His Honour in Camilleri at [42] gave the following summary of the legislation:
“Section 52 of the Workplace Injury Management & Workers Compensation Act 1998 (the 1998 Act) imposes an obligation on the employer to provide a return to work scheme for injured employees and s 57 of the 1998 Act imposes a correlative obligation of compliance on the worker. The thrust of the legislation is to return the partially incapacitated worker to remunerative employment. That requires the consensus of the two parties. The employer in this matter made extensive efforts to assist the applicant without ever obtaining any real co-operation from her. In the scheme of the legislation and on the facts of the matter I regard that as unreasonable.”
GROUNDS OF APPEAL
Ground 1
On behalf of the worker submissions are made separately in respect of the four grounds of appeal which are said to establish an error of law. It is not necessary in an appeal such as this under section 352 of the 1998 Act to find an error of law. Such appeal is by way of review of the decision appealed against. As Spigelman CJ said in State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249 (‘Chemler’) at [28] to [30]:
“28.The concept of a review on the merits is wider than the concept of an appeal in a judicial context. There is a well established line of authority on the use of the terminology of ‘review’ instead of ‘appeal’ with respect to the workers compensation system in this State which establishes the breadth of a review on the merits.
29.That line of authority is also inconsistent with a kind of restriction on the powers of a Presidential member for which the Appellant contents. (See Mansini v Director General of Education [1990] NSWCC 7; (1990) 6 NSWCCR 1 at pp4-20; Watson v Hanimex Colour Services Pty Limited (1992) 8 NSWCCR 190 at 199-206; Boston Clothing Co v Margaronis (1992) 27 NSWLR 580 at 584-585; Litynski v Albion Steel Pty Limited (1994) 10 NSWCCR 287 at 295-297, c/f 298-300; Aluminium Louvres & Ceilings Pty Limited v Zheng [2006] NSWCA 34 at [38]; South Western Area Health Service v Edmonds [2007] NSWCA 16 at [133]-[134].)
30.A Presidential member exercising a power to review a decision must decide whether the original decision is wrong or, as it is often put in the context of administrative appeals on merits, must decide what is the true and correct view. If s/he does so decide then s/he should substitute his or her own views, unless it is an appropriate case to remit. …”
Most recently, Allsop P and Hoeben J in Sapina v Coles Myer Limited [2009] NSWCA 71 carried out a comprehensive examination of all the authorities in relation to the nature of a review both before and after Chemler. Their Honours said at [57]:
“The notion of ‘review of a decision’ has been clearly held in the context of the former legislation and the WIM Act to be wider than an appeal strictly so-called and encompassing a reconsideration beyond correction of error. The decision under appeal is not to be ignored, but the task of the Presidential member is, as Spigelman CJ said in Chemler, ‘to decide whether the original decision is wrong [that is to] decide what is the true and correct view.’ This requires the Presidential member to decide for himself or herself these matters. That does not mean that there must be a de novo hearing in each case. Cases such as Watson, Boston Clothing, Litynski and AGL v Samuels made plain that this was not so under s 36 [of the Compensation Court Act] and the terms of ss 3, 352(7) and 354 make clear that no such broad ranging factual enquiry afresh is necessarily required. The terms of the WIM Act, ss 3 and 354 and the width of the powers in s 352 (7) make clear that the Presidential member has a wide choice available as to how he or she undertakes the task of deciding for himself or herself what is the true and correct decision. As Allsop P said in Cook v Midpart, error (or lack of it) by the Arbitrator will or may be relevant to the task of the Presidential member, but it does not define the task. There is, however, an important difference in the nature of the tasks of (a) coming to the view that an Arbitrator’s view was reasonable and (b) deciding for oneself that the view of the Arbitrator is the true and correct one. In a field where evaluation of injury and evidence of incapacity can lead to different views, both or all which could be reasonably held, it is important that the parties have available to them the skill and judgment of the Presidential member reaching his or her own view on the questions involved in the decision.”
The first ground asserts that the decision was not supported by the evidence, the only evidence available regarding the worker’s not seeking suitable employment being in the reports of CRS dated 27 October 2005 and 19 December 2005 and the report of Work Solutions dated 15 June 2006. The submissions recite what is shown in these reports. On the basis of these it was submitted there was uncontested evidence that:
“(a)The Appellant had limited transferable and job seeking skills which indicated that she was in need of retraining and rehabilitation assistance.
(b)The Appellant at the relevant time was actively pursuing rehabilitation, the second of which was instigated by the Appellant herself.
(c)Both of those programs were frustrated by the Insurer’s failure to assist.
(d)She had over 2005 and 2006 performed voluntary work in order to improve and update her skills and work experience.
(e)She had attempted work that proved unsuitable.”
It is said that the statement by Ms Pyke in the Work Solutions’ report which was inconsistent with the evidence in the worker’s case, particularly in relation to her activities in the nine month period leading up to that report, ought to have been rejected as an unfounded assertion.
In response the employer submits that although rehabilitation specialists organised by the employer had identified that the worker had suitable skills to attempt employment the worker was not interested in the same. When the worker was attending upon rehabilitation consultants, she did not actively engage in the process and was combative. She would not attempt any vocational goals identified for her and demanded she be re-trained in vocations requiring long-term training such as mortgage broking or real estate selling. The rehabilitation programs were not frustrated by the insurer’s failure to assist as the worker did not actively participate in the rehabilitation process and it is not clear why these consultations should have continued with the worker’s refusal to cooperate. As for the worker’s voluntary work, this was not upgraded in stages, was not in accordance with her certified capabilities of 15 hours per week and was not directed at attaining further employment, and thus failed to comply with section 43A of the Act. The worker has had, it is said failed to provide details of what work was allegedly undertaken by her at the hospital. The only evidence was that she had directed patients to appropriate wards. It is also said that the worker did not identify the specific work which she is alleged to have attempted unsuccessfully.
The question which the Arbitrator was required to answer was whether the employer had established that, at the general time the notice was given to the worker in August or September 2006, she was not taking reasonable steps to seek suitable employment in accordance with section 38A of the 1987 Act. No reliance was placed by the employer on sections 52A(1)(b) or 52A(1)(c), which deal with the unreasonable rejection of suitable employment and the state of the labour market, nor was it in dispute that the worker was not suitably employed. The worker relied on her voluntary work at Liverpool Hospital and her attendance on two rehabilitation providers, CRS and Work Solutions, as being “rehabilitation training” within section 38A(2) and its definition in section 38A(7) namely: “training of a vocationally useful kind, and includes vocational re-education, work-trials, occupational rehabilitation services or treatment provided by way of rehabilitation”. The worker says that the employer terminated her involvement with CRS and thus in effect frustrated her attempts at rehabilitation. This assertion by the worker goes unchallenged and unexplained by the employer except for a statement in the insurers dispute form dated 22 August 2006 that Work Solutions was the third rehabilitation provider and the worker takes it upon herself to request this. It is regrettable that there is no clear evidence of what brought about the cessation of CRS’s involvement.
The Arbitrator did not consider that “mere initial consultations” with rehabilitation providers were reasonable in the circumstances. The Arbitrator concluded that the worker refused retraining because she did not like the options presented.
If simply going to a succession of rehabilitation providers with no real willingness to agree to the suggestions made as to returning to work were sufficient to defeat the operation of section 52A, then the legislative intent, embodied in that section, that partially incapacitated workers should make reasonable efforts to return to paid employment and utilize their residual earning capacity or lose their entitlement to weekly compensation for partial incapacity, would be defeated. As a matter of course, it is to be expected that any rehabilitation would be preceded by an assessment and it would not be open, in my opinion, to an employer to pounce under section 52A at that time and say that the worker was not then receiving rehabilitation training. This case is however different in that there had been prior rehabilitation consultations and the conclusion which I would draw is that the worker was merely going through the motions with no real intention of co-operating in her rehabilitation. That was what in effect the Arbitrator decided. That conclusion is consistent with the evidence from the worker herself that she was “physically and emotionally exhausted and feeling stressed by the constant need to adapt to everyday life” and the score obtained on the Oswestry Disability Index by Work Solutions in either May or June 2006 indicating that she perceived herself as “crippled”. Section 52A has no application where the worker is totally incapacitated (subsection (6)) however no such claim was made. On the contrary, submissions by the employer that the worker was psychologically incapacitated were resisted by the worker. I would conclude that the worker had no real intention to return to any form of paid employment at all because she considered that, contrary to medical opinion, she was incapable of doing so. Thus I conclude that the worker was not seeking or receiving rehabilitation training by attending upon Work Solutions for an initial assessment and vocational review.
It remains to consider the work which the worker herself obtained, both voluntary and paid. The worker’s statement is somewhat vague as to this. She did refer to having done one hour at a radio station however it is unclear whether that was the extent of her involvement. It is similarly unclear when she commenced and ceased voluntary work at Liverpool Hospital and her statement that it was “during 2005 and 2006” is vague and possibly deliberately so. She did however tell Ms Callan of CRS on 27 October 2005 that her application to work at the hospital as a volunteer was being processed. She also referred to gaining employment as a sales representative and was unable to complete her first week. It is unclear whether this is a reference to her work for Avon in 2002 as she told Ms Pyke in June 2006 or an attempt, at some unspecified time, to work for a jeweller which she had to abandon since it caused an increase in her pain.
It was not disputed, although the relevant certificate from Dr Diep was not in evidence, that the doctor, as the worker’s general practitioner, had certified her fit to work 15 hours per week with considerable restrictions as to what she could do in terms of lifting, walking, standing and the like. A certificate from that doctor dated 6 July 2006 which is in those terms is, as I have earlier noted, in evidence covering the period 2 July to 1 October 2006. Accepting that the worker was performing voluntary duties as a concierge at Liverpool Hospital at the relevant time, what follows from this in terms of sections 38A, 43A and 52A? On behalf of the worker, it is said this constituted rehabilitation training and thus seeking suitable employment. Section 43A refers to a number of matters to which regard is to be had in determining what is “suitable employment” including the relevant medical certificate and the provisions of an injury management plan. The contents of the medical certificate were as already stated and while there appears no injury management plan in evidence, strictly so called, there is a Return to Work Plan written by Ms Stopa of CRS dated 19 December 2005 which proposed certain actions be taken including updating the worker’s job seeking skills, providing vocational counselling services and participating in a work trial. The work at the hospital was not in accordance with the medical certificate or the Return to Work Plan. Having had regard to these matters the work at the hospital could not, in my view, be seen as suitable employment or taking reasonable steps to obtain such employment. Similarly this voluntary work does not in my opinion constitute “rehabilitation training” since I cannot see that it was “reasonably necessary to improve the worker’s employment prospects” (section 38 A (2)) or “training of a vocationally useful kind’ (section 38A(7)).
Accordingly the first ground of appeal fails.
Ground 2
It is asserted that the Arbitrator took into consideration irrelevant matters, namely: that she worked for a few weeks for Avon in 2002 and ceased that work as she did not like the “sell” factor; the worker perceived herself as crippled; the worker was very litigious focussed and all of her conversation had to be recorded and presented to her solicitor and her presentation was inconsistent.
I am of the view that it is permissible to look at all of the evidence to ascertain whether the worker’s attempts to obtain suitable employment or seek rehabilitation training were genuine or not. The evidence which is objected to was contained in the report of Work Solutions on which the worker relied and to which the worker’s counsel drew the Arbitrator’s attention. The evidence was relevant in my view to section 43A, if not section 38A, as to her work experience and the length of time for which she had been seeking suitable employment. The reference by the Arbitrator at [35] of her reasons to the work for Avon is made only as a part of the worker’s work history and the comment at [40] that “the Applicant has done very little to seek suitable employment since 1993” appears, with respect, to be relevant to the question which the Arbitrator had to decide and is in accordance with the evidence. This ground is not in my opinion made out.
Ground 3
In this ground the worker asserts that the Arbitrator ignored relevant evidence. The Arbitrator does however refer at [43] to the volunteer work at the hospital and obviously took it into account. The Arbitrator does not appear to have referred to the radio station work in her reasons but this is not surprising since the worker’s counsel did not address on this. It was submitted that the Arbitrator should have taken into account the evidence that the insurer had refused assistance in the rehabilitation process. The Arbitrator dealt with this matter at [44] and [45] and referred to the worker’s history of not following through with rehabilitation training. She noted that the worker could and should have provided a statement of her efforts to obtain suitable employment but elected not to do so. The suggestion that the insurer or employer had refused assistance with rehabilitation was the worker’s perception of events and in my opinion not supported by the evidence. It may I think be reasonably inferred that, although it is alleged that the worker herself went out and located a rehabilitation provider, Work Solutions, it was not she who would be paying for its services but the employer or insurer.
An error by the Arbitrator in referring to the worker as having qualifications and having undertaken a course in interpreting is asserted. This is said to be inconsistent with the evidence of the worker that she had not been able to sit for exams at the end of a course. Davidson CCJ referred to interpreting as being one area of work which the worker said she could perform and the worker herself said in her statement that she had completed an interpreting course at TAFE in July 1994 but was unable to continue to the next level because of pain. The reference to the worker being unable to attempt an examination was, according to the worker’s own account, in 2003 after she had undertaken a course at the University of NSW. The remaining submissions in relation to this ground repeat those made in relation to ground 1 and do nothing further to advance the case sought to be made on behalf of the worker. In my opinion this ground is not made out.
Ground 4
It is said that the Arbitrator erred in reversing the onus of proof in relation to section 52A and was critical of the worker for not adducing evidence that she was seeking suitable employment. There was no application to cross-examine the worker as to her activities. The onus was on the employer not the worker and the only evidence that she was not seeking suitable employment was the assertion in the Work Solutions’ report which was inconsistent with the balance of the available evidence.
Although the employer did not seek to cross examine the worker no submission is made as to what is alleged to flow from this. It would appear to be an oblique reference to the rule in Browne v Dunn (1893) 6 R 67 (HL) which has been described as a rule of procedural fairness (Quadi v The Reject Shop [2008] NSWWCCPD 3 at [56]) giving the worker an opportunity to explain those matters on which the employer relied which were inconsistent with her evidence. I am unable to see that the absence of an application to cross examine, which may well have been opposed by the worker and refused by the Arbitrator, assists the worker’s case. The factual matters on which the employer relied in giving notice under section 52A and relevant to the issue of whether the worker was seeking suitable employment were clearly brought to the attention of the worker in the documents filed and she had an opportunity to adduce evidence and make submissions in reply. No application was made for the worker to give evidence to supplement her statement. She cannot now complain, in my view, that the employer did not give her such an opportunity by seeking to cross examine her.
The Arbitrator clearly recognised that the onus lay on the employer to establish on the balance of probabilities that the worker was not seeking suitable employment. Such evidence would ordinarily come from the mouth of the worker as is the case here through the worker telling others what efforts had been made to obtain suitable employment. The employer obtained an admission from the worker to Ms Pyke which if unexplained was sufficient to bring into operation the provisions of section 52A. The worker chose not to specifically respond to this admission or attempt to refute it. It was open to the Arbitrator to note this and draw the conclusion that the worker could not do so. This does not amount in my opinion to reversing the onus, but rather is a comment, properly made, as to the conclusions which should be drawn from the evidence. This ground also fails.
DECISION
Having reviewed the decision of the Arbitrator and having concluded that her decision was the true and correct one I confirm that decision of 28 November 2008 and dismiss the appeal. The lump sum compensation claimed by the worker remains outstanding and has been referred to an Approved Medical Specialist. Accordingly, the matter is remitted to the Arbitrator to make appropriate orders in relation to this and the costs of the proceedings before her.
COSTS
In relation to this appeal each party is to pay her or its own costs.
Anthony Candy
Acting Deputy President
29 July 2009
I, MARIE JOHNS CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ANTHONY CANDY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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