Hakim v Inghams Enterprises Pty Ltd
[2005] NSWWCCPD 148
•6 December 2005
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Hakim v Inghams Enterprises Pty Ltd [2005] NSW WCC PD 148
APPELLANT: Amina Hakim
RESPONDENT: Inghams Enterprises Pty Ltd
INSURER:Inghams Enterprises Pty Ltd
FILE NUMBER: WCC 8814-04
DATE OF ARBITRATOR’S DECISION: 13 October 2004
DATE OF APPEAL DECISION: 6 December 2005
SUBJECT MATTER OF DECISION: Weight of evidence, adequacy of reasons
PRESIDENTIAL MEMBER: Acting Deputy President Robin Handley
HEARING:On the papers
REPRESENTATION: Appellant: Galluzzo Golotta Andriano, Solicitors
Respondent: Leigh Virtue & Associates, Solicitors
ORDERS MADE ON APPEAL: The decision of the Arbitrator is confirmed.
No order is made as to the costs of this appeal.
BACKGROUND TO THE APPEAL
On 3 November 2004, Amina Hakim sought leave in the Workers Compensation Commission (‘the Commission’) to bring an appeal against the decision of an arbitrator dated 13 October 2004. Mrs Hakim was born in Fiji on 15 June 1970 and is aged 35. She is married with three children, aged 16, 14 and 6, and migrated to Australia in 1989.
The Respondent to the Appeal is Inghams Enterprises Pty Ltd, by whom Mrs Hakim was employed first, in 1996, as a casual worker and then from 1997 as a permanent full-time process worker. Her employment was terminated on 9 August 2004.
On 1 December 2003, Mrs Hakim complained to the first aid person at work about pain in her wrists and shoulders. On 18 May 2004, she experienced pain in her lower back that she reported to her supervisor. On 8 January 2004, Mrs Hakim made a claim for workers compensation in respect of her wrists, arms, neck and shoulder. Inghams initially accepted liability in respect of her wrists (letter dated 4 February 2004) but, by letter dated 21 May 2004, denied any further liability. Mrs Hakim made another claim on 26 May 2004 in respect of her lower back.
On 4 June 2004, the Commission registered Mrs Hakim’s ‘Application to Resolve a Dispute’. The Application was in respect of a claim for weekly compensation of $607.74 per week from 21 May 2004 to date and continuing, and for medical, hospital or related expenses of $5,000. Inghams lodged a ‘Reply’ on 21 June 2004. On 25 August 2004, the Arbitrator conducted a teleconference with the parties. On 6 October 2004, conciliation having proved unsuccessful, the Arbitrator conducted an arbitration hearing, giving an ex tempore (oral) decision at the conclusion of the hearing.
THE DECISION UNDER REVIEW
The Certificate of Determination, dated 13 October 2004, records the Arbitrator’s orders as follows:
“1. That there be an Award in favour of the respondent in respect of the applicant’s claims for
a. weekly payments of compensation; and
b. expenses under section 60 of the Workers Compensation Act 1987.
2. That there be no order as to costs.”
The Arbitrator gave oral reasons for his decision at the conclusion of the arbitration hearing, setting out the facts and discussing the medical evidence tendered by the parties, examining each doctor’s diagnosis and opinion in turn. The Arbitrator concluded as follows:
“I have preferred the respondent’s medical evidence to the applicant’s, putting aside the psychiatric evidence for the moment, because whatever the applicant may be feeling, the weight of medical opinion is that it is not based on any injury, and whatever may be the limitations of medical science [inaudible], is unable to find any objective basis for what the applicant has complained about. It’s at that level that the applicant fails to persuade the Commission that she’s entitled to compensation. So there will be an award for the respondent.”
ISSUES IN DISPUTE
The principal issue dealt with by the Arbitrator in his decision was whether Mrs Hakim received an injury arising out of or in the course of her employment by Inghams. In the appeal, the issues raised by Mrs Hakim’s solicitors are whether the Arbitrator made errors of law in relation to the weight accorded to the evidence or the adequacy of his reasons. The parties’ submissions are discussed more fully below.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) states:
“(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.”
I have had regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions of the parties. While both parties sought to reserve the right to make further submissions once the transcript of the arbitration hearing became available, neither party has subsequently sought to do so. Having considered the relevant documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
Neither party sought to adduce fresh evidence.
LEAVE
Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act. The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act. With regard to section 352(2), the amount of compensation at issue exceeds $5,000 and is 100% of the amount in dispute, the Arbitrator having made an award in favour of Inghams. I am therefore satisfied that the section 352 threshold has been met, and I grant leave to appeal.
SUBMISSIONS
Mrs Hakim’s solicitors submit the Arbitrator failed to give adequate reasons for his decision, which is against the weight of evidence and fails to address or adequately address the substantial merits of the case. In particular, they submit the Arbitrator failed to take into account adequately or at all the medical opinions they sought to rely on, instead relying on Inghams’ medical evidence “in circumstances where those opinions were in conflict with the Applicant workers evidence”.
Inghams’ solicitors submit there is no inadequacy in the Arbitrator’s reasons, which “clearly and appropriately set out the basis of the Arbitrator’s determination”. Moreover, the Arbitrator’s decision is consistent with the weight of evidence. There is no basis for the assertion that the Arbitrator failed to adequately address the substantial merits of the case. The Arbitrator, having considered all the relevant medical evidence, and balanced the evidence relied on by each party, was clearly entitled to prefer Inghams’ medical evidence, and did so in “an entirely appropriate and clearly reasoned manner”. There was no error of law by the Arbitrator.
EVIDENCE
In her undated statement filed in June 2004, Mrs Hakim said that when she became a permanent employee in 1997, her duties involved pricing chicken products that were already packed and wrapped. She said that in 2000, she hurt her back when pricing whole chickens. The symptoms resolved shortly after she returned to work three to four weeks later.
In approximately February 2002, her division was relocated to distribution, where there was a different system for pricing chicken pieces. The chicken pieces were delivered packed and wrapped in boxes. Apparently, the contents of each box - packages of chicken pieces weighing approximately 3 kgs to 15 kgs - were unloaded, weighed and priced, and repacked in another box. At first, Mrs Hakim and her colleagues rotated duties every two hours to ease the load; later, this was reduced to half hourly.
In May 2003, Mrs Hakim said she started to feel pain in her wrists, shoulders and neck. She reported this to the first aid person who arranged physiotherapy for her two to three times a week in the treatment room at work. Mrs Hakim also took painkillers and sleeping pills. The “pain calmed down until November 2003 where [sic] it started again at a more intense level”. This affected her ability to perform her home duties, and the Panadeine Forte caused gastric problems because of her ulcers. On 1 December 2003, she spoke to the first aid person and subsequently consulted her family doctor, Dr Nguyen, who recommended she should not lift more than 3 kgs, and later advised she should avoid repetitive lifting. Her “duties involved hand scanning approximately 4,000 boxes a day”.
On 18 May 2004, while putting labels on boxes, she felt an onset of pain in lower back. She reported this to her supervisor. When Mrs Hakim saw Dr Nguyen on 20 May 2004, he certified her unfit for work until 25 May 2004.
Mrs Hakim said she continues to get pain in her wrists, shoulders, back and neck, for which she takes medication. She has ongoing disabilities because of her injury and believes she is “unable to perform my pre-injury duties”. She consulted Dr Ali, a Psychiatrist, because she became very depressed as a result of her inability to care for her family.
Mrs Hakim also gave evidence at the arbitration hearing. In answer to a question in cross-examination, she said it was her hands, shoulder, back and neck that stop her working (arbitration hearing transcript page 35). She first injured her back at work in 2000 when she consulted her doctor about this and had physiotherapy at work (arbitration hearing transcript pages 39 to 40), even though she did not make a workers compensation claim in respect of the injury.
Mrs Hakim said she became depressed as a result of pressure at work and because of the restrictions on what she could do both at work and at home (arbitration hearing transcript page 50). She acknowledged that her husband also became depressed because of this.
Turning to the medical evidence, in his ex tempore decision, the Arbitrator gave details of Mrs Hakim’s family doctor, Dr Van Nguyen’s clinical notes, that include reference to the physiotherapist, Leanne Murray, who treated her (arbitration hearing transcript page 110 to 113). The Arbitrator appears to have made a careful analysis of these notes and there seems to be no utility in my repeating that analysis here. Mrs Hakim’s solicitors tendered a report dated 7 May 2004 from Dr Antonio Fernandes, Mrs Hakim’s treating Plastic and Reconstructive Surgeon who specialises in hand surgery, from Dr Sheikh M Habib, Orthopaedic Surgeon, dated 23 July 2004, and from Dr Ishrat Ali, Consultant Psychiatrist, dated 15 July 2004. Dr Fernandes stated that his “impression of her symptoms are that she has symptoms of tenosynovitis but more so muscle pain at the insertion of the tendon”. Dr Habib diagnosed extensor enthesis – lateral humeral epicondylitis of the right elbow, "mild right DeQuervains lesion (stenosing tendovaginitis)", early osteoarthritis of the right first carpo metacarpal joint, and lumbar discopathy. He found Mrs Hakim to be permanently unfit for her pre-injury duties but fit for a variety of other duties. Dr Ali found Mrs Hakim to have mild symptoms of depression that was the direct result of her accident at work.
The Arbitrator then considered the medical evidence tendered by Inghams. The report relied on by Inghams when it decided to decline further liability is that of Dr Kim Edwards, Surgeon, dated 20 May 2004. Dr Edwards found evidence of “exaggeration or fabrication”, and concluded there was no objective evidence of any organic disability; in particular, no evidence of “de Quervains tenosynovitis, carpal tunnel syndrome or tendonitis”. In his opinion, she has not suffered any injury at work and does not have any work-related disability.
Dr Lloyd Hughes, Consultant Orthopaedic Surgeon, provided a report dated 15 July 2004. He stated that Mrs Hakim:
“exhibits gross illness behaviour rather than any objective clinical evidence of any physical disorder or disability. She is not in my opinion suffering from any physical disorder and she is not suffering from any injury related to her previous work as a process worker.”
Dr John Roberts, Consultant Forensic Psychiatrist, in a report dated 16 August 2004, said:
“Mrs Hakim has not one clinical symptom of a nervous condition, she has no symptomatology of heightened inappropriate anxiety, she has no evidence of any cognitive impairment, there is no evidence of any reactive states, psychosis or any diagnostic entity.”
Dr Robert Smith, Surgeon, provided a report dated 13 September 2004. He said Mrs Hakim “demonstrated impossible inconsistencies that negate her alleged symptoms completely”. While recognising that her work activities may have caused some temporary aches and pains, his view was that she had not sustained any genuine work-related injury. He considered her fit for normal duties as a “price marker”.
Dr Stephen Potter, Rheumatologist, in a report dated 30 September 2004, found Mrs Hakim has widespread pain that follows “no known anatomical pathway”. He found abnormal illness behaviour, and no rheumatic disease or aggravation of a pre-existing complaint. He considered Mrs Hakim fit to work normal duties.
DISCUSSION AND FINDINGS
The role of the Presidential Member on appeal is to review the Arbitrator’s decision as a whole. The review is not a rehearing. In this case, Mrs Hakim must demonstrate that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172; The King Island Company Limited v Deery [2005] NSW WCC PD 1) in order to enliven the Presidential Member’s power to interfere with the Arbitrator’s decision pursuant to section 352(7) of the 1998 Act.
Mrs Hakim’s solicitors’ submissions are directed, in particular, to the weight accorded to the evidence by the Arbitrator. Thus, what is challenged is the Arbitrator’s exercise of his discretionary judgment. As Deputy President Fleming stated in Knight v Eyles Nominees Pty Ltd [2004] NSW WCC PD 73 at paragraph 38, to succeed on this ground of appeal, “the Appellant must demonstrate that the Arbitrator has failed to exercise her discretion fairly and lawfully”. The Deputy President emphasised, at paragraph 40:
“Interference with an Arbitrator’s discretionary judgement as to the weight of evidence should only be done where it is manifestly obvious that the discretion has so miscarried that it has not been exercised fairly and lawfully.”
(See also Babylon Property & Cleaning Services Pty Ltd v Hormoz [2005] NSW WCC PD 21, especially at paragraphs 10 to 23.)
Mrs Hakim’s solicitors submit the Arbitrator failed to take into account the medical evidence they sought to rely on. Having examined the transcript of the arbitration hearing, in my view, his analysis of the medical evidence is painstaking, and I note that his recitation of the relevant medical findings and opinions is more extensive than my brief summary above. The Arbitrator found that the weight of medical opinion was that there was no objective basis for Mrs Hakim’s complaints and supported the view that Mrs Hakim’s condition was not based on any injury. He was not, therefore, persuaded, on the balance of probabilities, that she had suffered an injury at work.
Having reviewed the medical evidence, I agree with Inghams’ submission that the Arbitrator’s decision is consistent with the weight of evidence, and I reject Mrs Hakim’s solicitors’ submission that he failed to address the substantial merits of her case. In my view, the Arbitrator gave adequate reasons for his decision, there being nothing to indicate that he failed to exercise his duty fairly and lawfully to determine the application (see Mayne Health Group t/as Nepean Private Hospital v Sarah Sandford [2002] NSW WCC PD 6, and YG & GG v Minister for Community Services [2002] NSWCA 247).
I am not persuaded that the Arbitrator made any legal, factual or discretionary error, and his decision must therefore be confirmed.
DECISION
The Arbitrator’s decision is confirmed.
COSTS
No order is made as to the costs of this appeal.
Robin Handley
Acting Deputy President 6 December 2005
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ROBIN HANDLEY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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