Hightower v Department of Ageing, Disability & Home Care
[2008] NSWWCCPD 111
•3 October 2008
| WORKERS COMPENSATION COMMISSION | ||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||||
| CITATION: | Hightower v Department of Ageing, Disability & Home Care [2008] NSWWCCPD 111 | |||||
| APPELLANT: | George Hightower | |||||
| RESPONDENT: | Department of Ageing, Disability & Home Care | |||||
| INSURER: | Allianz Australia Insurance Limited | |||||
| FILE NUMBER: | WCC2579-08 | |||||
| DATE OF ARBITRATOR’S DECISION: | 27 June 2008 | |||||
| DATE OF APPEAL DECISION: | 3 October 2008 | |||||
| SUBJECT MATTER OF DECISION: | Incapacity; weight of DVD evidence; entitlement to weekly compensation | |||||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | |||||
| HEARING: | On the papers | |||||
| REPRESENTATION: | Appellant: | Slater & Gordon | ||||
| Respondent: | DLA Phillips Fox | |||||
| ORDERS MADE ON APPEAL: | For the reasons given in this decision, the Arbitrator’s determination of 27 June 2008 is confirmed. | |||||
| Each party is to pay his or its own costs of the appeal. | ||||||
BACKGROUND
George Hightower was born in the United States of America in 1950 and is currently 58 years old. He obtained degrees in psychology from Berkeley University in California and worked in medical and health care before coming to Australia in 1992. After working at the Prince of Wales Hospital as the executive officer in psychiatry and then for the Garvan Institute of Medical Research, he commenced work with the Department of Community Services as a policy adviser. On a date not revealed in the evidence, he started work in a similar position with the Department of Ageing, Disability and Home Care (‘the Respondent Employer/the Department’).
On 2 May 2005, Mr Hightower sustained injury when a chair collapsed and he fell heavily onto his back. His condition deteriorated and he underwent surgery to his lumbar spine on 23 March 2006. He returned to work on a graduated return to work program three days per week for six hours per day from July 2006. His hours increased over time and by mid 2007 he was working in his pre-injury duties (which are essentially clerical and sedentary) for 28.5 hours per week: 6.5 hours on Monday, Wednesday and Friday and 4.5 hours on Tuesday and Thursday. His pre-injury hours were 35 per week.
By letter dated 3 March 2008, the Department’s workers compensation insurer, Allianz Australia Insurance Limited, declined Mr Hightower’s claim on the basis that he was no longer incapacitated for work. As a result, the insurer ceased weekly compensation payments on 14 April 2008. It based its denial on medical evidence and DVD evidence that showed Mr Hightower engaged in activities said to be inconsistent with his presentation to several medical experts.
On 9 April 2008, Mr Hightower filed an Application to Resolve a Dispute (‘the Application’) in the Commission seeking weekly compensation for the lost 6.5 hours per week in the sum of $252.66 from 14 April 2007 to date and continuing.
A Commission Arbitrator heard the matter on 4 June 2008 and, in a reserved decision delivered on 27 June 2008, made an award in favour of the Department.
By an appeal filed on 24 July 2008, Mr Hightower seeks leave to appeal the Arbitrator’s decision.
LEAVE TO APPEAL
There is no dispute that the monetary thresholds in section 352 are satisfied or that the appeal has been filed in time.
I grant leave to appeal.
ON THE PAPERS
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.
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether Mr Hightower continues to be incapacitated and whether, contrary to the Arbitrator’s finding, he has an entitlement to weekly compensation.
EVIDENCE
Mr Hightower came under the care of Dr Crawford, pain management specialist, in October 2005, following referral by his local doctor, Dr Walton. At that time, Mr Hightower experienced significant back and leg pain. Physiotherapy was of marginal benefit. His medication included naprosyn, panadeine forte and prothiaden. He felt that the prothiaden helped him sleep, though he was only sleeping three to four hours per night and that was often intermittent and was affecting him mentally (see Dr Crawford’s report, 9 January 2008, page two). Dr Crawford recorded that Mr Hightower was becoming fatigued and felt that his energy had been “zapped completely”.
Dr Crawford also recorded that Mr Hightower continued to exercise regularly. This included going to the gym four to five times per week, cycling for about 30 minutes with a sprint every 12 minutes, and swimming for 80 laps. It is unclear how often Mr Hightower swam. In early January 2006, Dr Crawford described Mr Hightower’s exercise program as “fairly rigorous”.
In early May 2006, Mr Hightower underwent partial L3/4 laminectomies with rhizolysis of the L3 and L4 nerve roots. The surgery did not relieve his pain and he was subsequently prescribed endone. He was only sleeping one or two hours at night and felt completely exhausted. Dr Crawford changed his anti-depressant medication to mirtazapine and Mr Hightower was slowly phased back into work.
In January 2007, Mr Hightower had ceased his anti-depressant medication, as he had noticed an increase in his weight. He still took pegabalin, digesic and endone.
On 15 March 2007, Dr Crawford recorded that a cognitive behavioural pain management program had been of some help and Mr Hightower had “actually performed very well in the process and was seen on many occasions being quite physically active such as playing a game of tennis” (Dr Crawford, 9 January 2008, page four).
By mid 2007, Mr Hightower was working five days per week: 6.5 hours on Mondays, Wednesdays and Fridays, and 4.5 hours on Tuesdays and Thursdays. He still had significant sleep disturbance and would wake many times with pain and discomfort. He still used digesic (up to two per day) and took endone on the rare occasion. He also took the anti-depressant efexor (150mg per day). He had tried quetiapine to help him sleep, but found he was far too groggy the next day so he intermittently took temazepam instead. His daily routine included walking for one and a half hours and hydrotherapy for one hour.
On 6 December 2007, Mr Hightower had further review with Dr Crawford. The doctor recorded that Mr Hightower undertook his own gym program. While he could walk some distance, he could not jog and had major fatigue. Mr Hightower said he was “going to the gym 2-3 hours 5 days per week and getting into the pool and doing 80 laps each day” (page four). It is unclear if his gym program was in addition to the 80 laps. He described his sexual dysfunction and lack of sleep as his major problems, though his sleep had improved since starting on clonazepam 2mg at night. His other medication included; digesic (up to five per week), endone (up to two per week) and cialis (for sexual dysfunction).
On examination on 6 December 2007, Dr Crawford found forward flexion to be restricted to 40 degrees, with minimal rotation in each direction. He observed marked muscle spasm from L3 to L5 and straight leg raising of 40 degrees bilaterally. There was a reduction in reflexes in the left ankle and left knee.
Dr Crawford concluded that Mr Hightower was suffering from failed back surgery syndrome with neuropathic pain in his back, buttocks and both legs. He recorded Mr Hightower’s “major concerns” to be “his loss of physical fitness, his inability to play high grade tennis and go jogging and major difficulty with sexual activity”. According to Dr Crawford, the major cause of Mr Hightower’s incapacity was his pain and general fatigue. On the question of incapacity, Dr Crawford stated (at page five):
“There is no doubt that George Hightower has had significant periods off work related to his persistent pain and dysfunction since 2 May 2005. The major cause for his incapacity has been his high pain levels and general fatigue. Fatigue was the major cause of needing to have time off, particularly when he was forced to move out from his apartment at … and move into an apartment at …. George has had other periods of incapacity to work. These were times when there were particularly heavy physical demands upon his time, both at home and in the work situation and he needed a period of rest to recover such that he could continue with his return to work programme. He had periods being totally unfit for work from 22 March 2006 for a period of 2 months or so prior to work. Other times should be considered partial incapacity. I do not believe that George Hightower is either partially or totally unfit for his pre-injury employment. He has shown repeatedly that he is able to work at pre-injury duties, although at reduced hours. Even so, I believe that he sustained a permanent impairment as a consequence of the injuries that he suffered at work on 2 May 2005.”
Whilst Dr Crawford referred to the attendance on 6 December 2007 as Mr Hightower’s last, that must be incorrect because Mr Hightower did not move house until 13 December 2007.
At page six, Dr Crawford concluded that Mr Hightower’s persistent pain limited his physical activity and that it was:
“most unlikely that he will return to his pre-injury duties in that it seems he is looking for a compensation settlement which will allow him to cease his current employment and move on to something else where he is in control of the type of work that he does, and when he chooses to do so”.
Mr Hightower also relies on reports from Dr Pillemer dated 8 and 23 March 2007, and 5 April 2007. In his report of 8 March 2007, Dr Pillemer recorded that Mr Hightower was having difficulty with a pain management course, as he was “mentally and physically exhausted”. Mr Hightower complained of severe pain in his low back and left leg. His symptoms were constant, severe and aggravated by any activity. Sitting and standing for long periods would aggravate his symptoms. He felt that the surgery did not help him. Dr Pillemer also recorded that Mr Hightower was “very restricted” and had to be “very careful with any heavy lifting”.
On examination, Dr Pillemer noted that Mr Hightower undressed and dressed very slowly and carefully, and had a moderate restriction of low back movement in all directions. Reflexes were present and equal, but there was some blunting of sensation to pinprick of his left foot. There was 1.5cm of wasting of the left thigh.
On the question of fitness for work, Dr Pillemer recorded that Mr Hightower was due to return to his restricted duties on restricted hours at the completion of his pain management course. Apart from saying that Mr Hightower was able to continue with those duties, Dr Pillemer made no other comment on fitness for work. Other than the decrease in hours, it is not clear in what way Mr Hightower’s duties were restricted.
The only other relevant medical evidence relied on by Mr Hightower is a WorkCover certificate from Dr Walton, general practitioner, dated 30 August 2007, certifying Mr Hightower fit for permanently modified duties from 3 September 2007. The only modification noted on the certificate is the restriction in hours of work to 6.5 on Monday, Wednesday and Friday and 4.5 on Tuesday and Thursday.
The Department relies on reports from Professor Fearnside, neurological surgeon, dated 21 June 2007 and 29 January 2008. Mr Hightower complained that one of the main causes of his continuing disability was fatigue. He had great difficulty sleeping and he only slept two or three hours each night, but would then wake with pain. As a result, he experienced severe daytime fatigue. He was trying rivotril and avanza, in addition to other pain relieving medication.
Professor Fearnside recorded that Mr Hightower was working “5 hours per week” (presumably this should be five hours per day) and that his sitting tolerance was about 30 minutes. His job involved a great deal of computer work and sitting. He made assessments of people with disabilities and liaised with various agencies.
In respect of activities of daily living, Professor Fearnside recorded that Mr Hightower attempted all domestic chores with some difficulty and that any activity that required bending would aggravate his symptoms. He could manage light shopping, but pushed the trolley home with his purchases. His lack of sleep was a major concern to him.
On examination, Mr Hightower could flex his lumbar spine to touch his knees. The lumbar lordosis was decreased and there was “moderate severe paraspinal muscle guarding” on forward flexion and on straightening. Neurological examination revealed weakness of dorsiflexion and eversion of the left ankle, though power was otherwise normal in the legs. There was 1cm of wasting of the left thigh.
Professor Fearnside felt there was an organic basis for Mr Hightower’s symptoms and objective evidence of radiculopathy. He did not believe Mr Hightower was exaggerating or feigning his condition and there was no inconsistency on examination. He added that Mr Hightower was fit to continue work as a policy officer, though he was struggling with his duties. Why he was said to be struggling was not explained. After acknowledging the fatigue Mr Hightower suffers because of his reduced sleep, the doctor concluded, “Therefore, Mr Hightower remains partially incapacitated to work, although he is working full-time”. This last statement was incorrect, as Mr Hightower was working reduced hours.
His second report comments on a DVD in which Mr Hightower is seen engaged in activities between 3pm and 8pm on 13 December 2007. Professor Fearnside described the DVD as showing Mr Hightower walking backwards and forwards along a footpath carrying a number of items including pots with palms and other plants, wheeling a trolley containing stacked cartons down a decline, assisting in unloading a van containing cartons and furniture, carrying items of furniture, repetitively turning, twisting and flexing while at the rear of a truck, and lifting cartons from the rear of the truck onto a trolley.
As the DVD tendered in evidence at the arbitration could not be located, I issued a Direction on 17 September 2008 that a copy was to be prepared by the Department and forwarded to Mr Hightower’s solicitor for verification. That was done and on 26 September 2008 the Commission received a copy of the DVD, certified by Mr Hightower’s solicitor by letter dated 24 September 2008 as a true copy of the DVD tendered in evidence. That letter and the DVD have been placed with the Commission’s appeal file.
I have viewed the DVD. It shows Mr Hightower engaged in moving house on 13 December 2007 between 1.32pm and 8.27pm. He is filmed engaging in the following activities:
(a)lifting and carrying several large pot plants (some over 1.8 metres in height);
(b)wheeling a trolley with four boxes stacked on it down a sloping path;
(c)bending from the waist to lift a pot plant;
(d)wheeling a trolley with a small timber cabinet on it;
(e)bending from the waist to lift two small bags from the ground;
(f)lifting and carrying a timber cabinet;
(g)climbing into the back of a truck;
(h)moving various objects to the back of a truck;
(i)bending from the waist for about 50 seconds while arranging items in the back of a truck;
(j)lifting boxes from the back of a truck and bending to place them onto a trolley on the ground, and
(k)wheeling a trolley with what appeared to be a washing machine or fridge on it.
Whilst the DVD starts at 1.32pm, the first activity (lifting pot plants) is at 3.13pm and the last (wheeling the washing machine or fridge) at 8.26pm. At all times his movements appear to be reasonably free and unrestricted.
After viewing the DVD, Professor Fearnside expressed the opinion that the DVD showed Mr Hightower working for an afternoon and evening at moderately heavy manual work, which he would not have thought he would have been able to manage at all having regard to his complaints at examination in June 2007. He speculated that it was possible that Mr Hightower had improved between June and December 2007. He felt it was difficult to reconcile Mr Hightower’s “self-report” and the physical findings with the video. As a result, he concluded that Mr Hightower “has little in the way of ongoing symptoms as a consequence of the injury”. The DVD did not support Mr Hightower’s presentation and Professor Fearnside thought he was fit for work with no restrictions on his conditions of employment. Professor Fearnside reduced his assessment of whole person impairment from 14% to 12%.
In response to the video, Mr Hightower prepared and tendered an unsigned statement with a fax date of 31 March 2008. This statement was, along with his statement of 29 August 2006, adopted and signed by Mr Hightower on the day of the arbitration. I will not recite the whole of the statement, but I have read it and take it into account in the review of this matter. Mr Hightower states that he suffers from chronic pain that dramatically affects him on a daily basis, both physically and psychologically. He said that he must:
“cognitively remain vigilant at all times in exercising cognitive behavioural modifications and pain management techniques, particularly at work where I must take (medically prescribed) regular stretching and walking exercises at thirty minute intervals. Just getting through the day at times can be extremely difficult dealing with the pain along [sic, alone] notwithstanding coping with a serious sleep disorder which often makes me fatigued and anxious.”
Mr Hightower complains that the insurer has shown only minimal support in assisting or accommodating his recovery and rehabilitation and at one stage denied renewal of his health club membership for four months.
In respect of the DVD, Mr Hightower said:
“The video is extremely misleading and disingenuous if taken purely on its prima facie value only. I have been under video surveillance and photographed by investigators on behalf of the insurer on numerous occasions for nearly three years and to no avail as there has been nothing damaging or worthwhile to note as my situation is entirely genuine and I have absolutely nothing to hide. However, serious circumstances at times, dictate serious actions and sometimes we find ourselves in situations that require unadvisable actions, actions that we would not normally do if alternative or viable options existed.”
He added that he moved to a new apartment on 13 December 2007 because he had been required to vacate his previous accommodation. Because of his limited finances, he could only afford to pay for two men with a small truck to move his possessions. Because of his emotional isolation, the only help he had was from a female friend. As a result, he was “literally forced to assist” otherwise he “would not have been able to pay the removalists’ costs”. He stated that the DVD failed to show:
(a)that he limited the items he lifted to “lighter items”, which included large plants that were not very heavy;
(b)he took six endone tablets during the course of the move to cope with the pain and discomfort;
(c)the day after the move he could not move;
(d)he was off work for one week following the move, and
(e)it took him one month to recover.
ARBITRATOR’S DECISION
The Arbitrator reviewed the evidence and concluded that Professor Fearnside provided the only medical opinion in relation to whether Mr Hightower would have been able to perform the activities shown in the DVD with his level of disability. Given that Professor Fearnside had initially supported Mr Hightower’s work restrictions, the Arbitrator found his evidence compelling.
She conceded that it was possible that Mr Hightower could have performed the activities in the DVD by taking sufficient endone and enduring an increase of symptoms afterwards (Statement of Reasons for Decision (‘Reasons’), paragraph 42). She also noted that it was “conceivable that such activities may not be inconsistent with the level of incapacity the Applicant claims, however Dr Crawford does not address this issue. The medical evidence before me is insufficient to enable me to make such a finding”. The Arbitrator accepted the evidence of Professor Fearnside that Mr Hightower was and is fit for his pre-injury duties with no restrictions (Reasons, paragraph 43).
SUBMISSIONS
Mr Hightower submits:
(a)Professor Fearnside based his second report on the DVD and did not re-examine Mr Hightower or have the benefit of Mr Hightower’s further statement about the effect of the activities on 13 December 2007. His opinion is therefore flawed;
(b)Dr Crawford recorded on 6 December 2007 (seven days before the DVD) that Mr Hightower undertook extensive physical exercise in the gym for his back. Notwithstanding this, Mr Hightower continues to complain of fatigue and difficulty sleeping;
(c)the DVD provided no basis upon which Professor Fearnside could conclude that Mr Hightower’s problems with fatigue and sleep had resolved;
(d)notwithstanding being able to perform heavy exercise regimes in the gym, Mr Hightower still has problems with fatigue;
(e)it is not Mr Hightower’s case that he is unable to perform his job because of an inability to lift, and the DVD does not show Mr Hightower performing any activities other than those he explained to Dr Crawford he did in the gym, and
(f)as a result, the Arbitrator’s decision is flawed.
The Department submits:
(a)other than Mr Hightower’s subjective complaints regarding fatigue, there is no evidence of any incapacity by reason of an inability to work a 35 hour week;
(b)against Mr Hightower’s subjective and self serving evidence is the evidence in the DVD;
(c)the only objective evidence adduced regarding Mr Hightower’s incapacity was the DVD, which demonstrated that Mr Hightower suffered no fatigue that precluded him from moving home over a five hour period;
(d)none of Mr Hightower’s doctors were given an opportunity to review and comment on the DVD. Therefore, their opinions were provided in a vacuum and on the basis of Mr Hightower’s subjective complaints and their opinions were of limited probative effect;
(e)Mr Hightower did not volunteer to Dr Crawford that he was capable of performing five hours of heavy manual removalist work;
(f)the Arbitrator was correct to prefer Professor Fearnside’s evidence, and
(g)the Arbitrator made no error of fact, law or discretion.
DISCUSSION AND FINDINGS
Whilst it is accepted that Mr Hightower suffered a significant injury on 2 May 2005 and that he continues to experience symptoms as a result of that injury, the evidence in support of his claimed incapacity is extremely limited and, in many respects, unsatisfactory. It is largely dependent on Mr Hightower’s statements with no analysis of the physical requirements of his work and no attempt to match those requirements with Mr Hightower’s capacity in order to determine his fitness. Dr Crawford’s statement that he did not believe Mr Hightower was “either partially or totally unfit for his pre-injury employment” is difficult to interpret and is unhelpful. His further statement that it is unlikely that Mr Hightower will return to his pre-injury duties, as “it seems he is looking for a compensation settlement” is equally unhelpful.
Whilst there are several references to Mr Hightower suffering from fatigue as a result of insomnia due to his pain, there is no evidence of the potential impact of his gym programme (2-3 hours per day five days per week) on his level of fatigue. If fatigue is the main reason for his inability to work 35 hours per week, it is surprising that he has been able to engage in such a rigorous exercise program.
The certificate from Dr Walton of 30 August 2007 is of limited assistance, as the doctor provided no explanation for the restrictions she placed on Mr Hightower’s hours of work. Whilst Mr Hightower states that his doctors have indicated that swimming and conditioning was essential for his rehabilitation, none of the experts in the case suggest that a program of 2-3 hours per day five days per week was or is reasonable or necessary. More importantly, so far as the current application is concerned, none of the medical experts suggest that Mr Hightower should work reduced hours in order to be able to attend a gym or hydrotherapy program.
Dr Pillemer’s evidence was equally unhelpful and has not advanced Mr Hightower’s case that he is only capable of working 28.5 hours per week. Dr Pillemer’s evidence is merely that Mr Hightower is able to continue with his restricted duties. He offered no opinion on why Mr Hightower would not be able to work 35 hours per week, or, in the alternative, why he should be restricted to 28.5 hours.
Professor Fearnside took a similar approach in his report of 21 June 2007. He essentially accepted Mr Hightower’s complaints and, as a result, accepted that he could only work restricted hours. Unlike the other experts in the case, however, Professor Fearnside noted that Mr Hightower’s job involves computer work and sitting, that is, that it is essentially a sedentary occupation. Whilst there is evidence that Mr Hightower has difficulty sitting for prolonged periods, there is no evidence that his job prevents him from standing and stretching from time to time during the course of the working day. Mr Hightower’s evidence is that he stretches and walks every 30 minutes at work (see [37] above). There is no evidence that he is restricted to the hours set by Dr Walton because of his trouble with prolonged sitting.
Professor Fearnside based his support for Mr Hightower in the report of 21 June 2007 on an acceptance of his presentation. After viewing the DVD, Professor Fearnside concluded that the activities shown did not support Mr Hightower’s presentation and that he was fit for work as a policy officer with the Department and he would place no restrictions on his conditions of employment. Given the nature of the case Mr Hightower presented, Professor Fearnside’s additional evidence is persuasive and, as the Arbitrator noted, compelling.
It was not necessary for Professor Fearnside to re-examine Mr Hightower or to have had access to his further statement before providing his further opinion. It was relevant and probative evidence that provided a strong basis for finding in favour of the Department on the issue of whether Mr Hightower could work 35 hours per week.
The fact that Mr Hightower undertook extensive physical exercise in the gym is not to the point. The precise detail of his gym program is not known. In any event, that is not the question in issue. The question is whether he has established that he is unable to perform his pre-injury duties for 35 hours per week. The evidence that he is not able to work 35 hours per week is based on an acceptance of his assertion to that effect, but without any logical analysis or consideration of the evidence or the issues. The acceptance of that assertion is undermined in circumstances where he has been observed to engage in activities inconsistent with his presentation to the medical experts.
There is no doubt that the activities demonstrated in the DVD, in particular Mr Hightower’s ability to bend, lift and carry, without any apparent restriction, were inconsistent with his presentation to the medical experts where he said that any activity that required bending would aggravate his symptoms and he could manage light shopping. That being so, once the basis for acceptance of Mr Hightower’s case was undermined, the acceptance of Professor Fearnside’s opinion was appropriate and reasonable.
I have carefully considered Mr Hightower’s evidence in his second statement (see [39] and [40] above). I do not accept that he only lifted light items on 13 December 2007. The DVD showed him lifting items of various shapes and sizes, most of which would have been heavier than the light shopping he told Professor Fearnside he could manage. Even accepting that Mr Hightower took medication during the course of the move on 13 December 2007, and that it took him some time to recover, the activities in the DVD are inconsistent with his claim that he is only able to work restricted hours because of fatigue.
I do not accept the submission that the DVD provided no basis upon which Professor Fearnside could conclude that Mr Hightower’s problems with fatigue and sleep had resolved. Mr Hightower’s case that he can only work 28.5 hours per week is based almost entirely on his assertion to that effect. The acceptance of that assertion depended on an acceptance of his credit. The DVD seriously undermined his credit and, in the absence of persuasive expert evidence supporting his claim that he can only work 28.5 hours per week, it undermined his claim for weekly compensation.
Even if it is accepted that Mr Hightower continues to experience fatigue as a result of his injury, the evidence does not support a finding that the fatigue has reduced his ability to work in his pre-injury position by 6.5 hours per week. The mere allegation of fatigue does not support a finding that a worker is only fit to work reduced hours. Many other factors must be considered, such as the nature of the work involved, the nature of the injury, the restrictions resulting from that injury, and the extent to which the employer is able to accommodate the worker’s restrictions. Mr Hightower’s evidence addressed none of these issues.
I have had due regard to the medical evidence that reveals clear objective evidence that Mr Hightower does have continuing symptoms as a result of his injury. In particular, I note the evidence of reduced reflexes in his left ankle (noted by Dr Crawford), the wasting in his left leg (noted by Dr Crawford, Dr Pillemer and Professor Fearnside) and the paraspinal muscle guarding and weakness of dorsiflexion and eversion of the left ankle (noted by Professor Fearnside). Whilst this evidence supports a finding that Mr Hightower’s injury continues to affect him physically, it does not establish and I do not accept that he is unable to perform his pre-injury clerical duties for 35 hours per week. As a result, he has no current entitlement to weekly compensation.
CONCLUSION
It follows that I do not accept Mr Hightower’s submission that the Arbitrator’s conclusion is flawed. Having conducted a “review on the merits” (per Spigelman CJ in State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249; (2007) 5 DDCR 287 at [28]), I am comfortably satisfied that the Arbitrator’s decision is correct and, for the reasons given above, I agree with it.
It should be noted that this decision does not affect Mr Hightower’s other entitlements to compensation, such as lump sum compensation, and hospital and medical expenses under section 60 of the Workers Compensation Act 1987.
DECISION
For the reasons given in this decision, the Arbitrator’s determination of 27 June 2008 is confirmed.
COSTS
Each party is to pay his or its own costs of the appeal.
Bill Roche
Deputy President
3 October 2008
I, TUYET WALLIS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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