Home Care Service of NSW v Frenkel
[2006] NSWWCCPD 346
•15 December 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Home Care Service of NSW v Frenkel [2006] NSWWCCPD 346
APPELLANT: Home Care Service of NSW
RESPONDENT: Marisa Frenkel
INSURER:GIO Workers Compensation (NSW) Limited
FILE NUMBER: WCC10096-05
DATE OF ARBITRATOR’S DECISION: 7 December 2005
DATE OF APPEAL DECISION: 15 December 2006
SUBJECT MATTER OF DECISION: Injury; substantial contributing factor; section 9A of the Workers Compensation Act 1987; causation; incapacity
PRESIDENTIAL MEMBER: Acting Deputy President Anthony Candy
HEARING:On the papers
REPRESENTATION: Appellant: McLean Lawyers
Respondent: Stacks Goudkamp Solicitors
ORDERS MADE ON APPEAL:
1.The decision of the Arbitrator dated 7 December 2005 is confirmed.
2.The appellant employer is to pay the costs of the respondent worker of the appeal.
BACKGROUND TO THE APPEAL
Mrs Marisa Frenkel (‘the worker’) came to Australia in 1973 from Uruguay. In 1986 she began work for Home Care Service of NSW (‘the employer’) as a homecare aide. In 1987 she was promoted to the position of service co-ordinator. This work involved the use of a computer from 1994 or 1995 onwards.
On 22 April 2003 while walking during her lunch break the worker fell and broke her left wrist. This was surgically treated. She was off work for a period and workers compensation was paid. After her return to work she noted that she was favouring her left arm and developed pain in her neck and right arm. At that time she had some physiotherapy to her neck. In August 2003 she reported neck and right arm pain to the employer and consulted her doctor about these problems. She was then working on a graduated light duties program.
On 14 November 2003 the worker again fell and suffered some bruising to her left wrist which she said increased the pain in her neck and right arm.
In March 2004 the worker requested a decrease in her working week to four days per week rather than the nine day fortnight which she had previously worked. She saw Professor Milton Cohen, a rheumatologist, on 10 June 2004 at the request of her general practitioner, Dr Panaretos.
Dr Panaretos had given the worker certificates for suitable duties but full hours from 16 January 2004 onwards; however, the worker became totally unfit and was so certified from 24 July 2004 to 21 August 2004. She resumed on suitable duties with reduced hours from 21 August 2004.
She again saw Professor Cohen on 9 December 2004 at which time she was working 15 hours a week in accordance with Dr Panaretos’ certificates, being five hours a day, three days per week.
The workers compensation insurer of the employer, GIO Workers Compensation (NSW) Limited (‘GIO’), wrote to the worker on 17 March 2005 in relation to a claimed injury of 28 August 2003 declining liability from 1 April 2005. The reason given in that letter was that the injury was not related to her employment. This was based on the opinions provided by two orthopaedic surgeons, Dr Machart and Dr Bodel.
Following this letter from GIO the worker saw solicitors who wrote on 1 April 2005 to GIO requesting that it review the decision to decline liability and seeking copies of medical reports in the possession of GIO, including those of Drs Bodel and Machart.
The GIO replied on 21 April 2005 advising that it had reviewed the matter and that the declinature would remain. Reports as sought were forwarded separately.
An Application to Resolve a Dispute was lodged with the Commission on 27 July 2005 and registered the following day. In this, weekly payments of compensation were sought from 1 April 2005 at the rate of $334.10 per week. The dates of injury were specified to be “1994 to date, 22.04.03 and 14.11.03”. The circumstances of the first injury relied on were described as “nature and conditions of employment” from 1994 to date. Injury was said to be to “the neck, right shoulder and arms”. The Application was referred to a Commission Arbitrator who held a conciliation conference on 16 September 2005 at which tentative agreement as to settlement was reached. However, on 18 November 2005 the Arbitrator was advised the matter had not settled and, accordingly, written submissions were sought from the parties so that the matter might be determined on the papers. Such submissions were duly lodged and on 7 December 2005 the Arbitrator decided the matter in favour of the worker.
It is against the decision of the Arbitrator dated 7 December 2005 that the employer now seeks leave to appeal by Application lodged on 29 December 2005.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 7 December 2005 records the Arbitrator’s orders as follows:
“1. That the Respondent pay the Applicant weekly compensation at the rate of:
· $328.90 per week from 1 April 2005 to 25 June 2005 under s40 of the Workers Compensation Act 1987
· $328.90 per week from 22 August 2005 to 30 September 2005 under s40 of the Workers Compensation Act 1987
· $334.10 per week from 1 October 2005 under s40 of the Workers Compensation Act 1987,
such weekly payments to continue in accordance with the provisions of the Workers Compensation Act 1987.
2.That the Respondent pay the Applicant’s s60 expenses upon production of accounts or receipts.
3.That the Respondent pay the Applicant’s costs as agree or assessed.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are:
· Whether the Arbitrator erred in finding that the worker had suffered injury.
·Whether the Arbitrator erred in finding that the worker’s employment was a substantial contributing factor to such injury.
·Whether the Arbitrator erred in finding that any incapacity suffered by the worker was causally related to any injury suffered by her.
· Whether the incapacity was less than that found by Arbitrator.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the 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
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 award of weekly compensation to date is in excess of $5,000.00 and this entire amount is at issue on the appeal. Accordingly the provisions of section 352(2) of the 1998 Act are satisfied.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
Accordingly, leave to appeal is granted.
EVIDENCE
Evidence on Behalf of Worker
I will not repeat what I have already said in relation to the background to this appeal, which is taken in part from the proof of evidence of the worker dated 22 June 2005. The worker did however state that after starting to use computers she slowly developed pain in her neck and right shoulder which radiated into her fingers. She related the fall of 22 April 2003 and the treatment which she received in relation to that injury. She said her pain had got worse in August 2003 and she took some time off work and reported neck and right arm pain to her employer. She underwent physiotherapy and was recommended to do strengthening exercises at a gym. She was referred to a Mr Sam Borenstein, a psychologist, in relation to the management of the pain she was having. She complained that, following her request for a decrease in her working hours to four days per week in March 2004, her workload was not decreased and she was essentially doing her former nine days work in eight days. In August 2004 she was off work for about four weeks after doing some editing of timesheets, which she said had caused extreme pain in her right arm. She had only seen Dr Panaretos and Professor Cohen in relation to her injuries, apart from the psychologist. At the time of her statement she said she was only fit to work five hours per day, three days per week, in accordance with restrictions outlined in various medical certificates. She did say that she rarely left work on time and was therefore working more than was recommended in those certificates. She complained that she had constant neck pain, her neck was stiff, she had pain in her right shoulder and neck and shoulder pain radiated into her right little finger. She described it as being like an electric shock. She said she had pins and needles in the fingers of her right hand and those fingers were numb, particularly in the morning. She had pain in the middle of her right wrist and had difficulty driving for prolonged periods and difficulty sleeping.
Attached to the Application to Resolve a Dispute is a certificate of Dr Panaretos dated 24 March 2005 which certified the worker fit to work five hours a day three days per week taking regular breaks from computer use and with a restriction as to weights to be lifted and time spent sitting. The diagnosis was said to be “right cervico-bracial syndrome” and the management plan was said to be “feldenkrais, psychologist for pain management”. The doctor was of opinion that the worker’s employment was a substantial contributing factor to the injury.
Professor Cohen saw the worker at the request of her general practitioner on 10 June 2004. That doctor has a puzzling note that the worker “lost” (my emphasis) a workers compensation claim for her current problem after incurring her second fall in November last year. There is no other mention of this elsewhere. It may well be that the doctor dictated ‘lodged’ rather than ‘lost’.
Professor Cohen obtained a history that the worker had complained of pain in the right side of her neck, right arm and hand since commencing computer-based work some ten years before. This was not treated specifically, although there was some ergonomic adjustment to her workplace. In April the preceding year she had fallen fracturing her left wrist, requiring operative reduction. During that time it was necessary for her to use her right limb to a greater extent which was associated with worsening of symptoms. She had fallen again in November the preceding year onto both hands which she said stirred up her complaints. Professor Cohen considered that the worker’s problems were fundamentally referred pain from the cervico thoracic spine. The underlying nature of the problem was explained to the worker, namely that it was not progressive or intrinsically dangerous but had “major nuisance value”. Professor Cohen thought that Feldenkrais therapy was indicated and he encouraged the worker to use analgesia before she suffered pain rather than in response to it. He thought that her current work duties were satisfactory.
Professor Cohen saw the worker again on 9 December 2004. She told him that she had been off work during July 2004. During that time her pain had tended to settle to some extent. She had had a three week holiday period when she was not working and again noticed reduction in pain but no change in pain evoked by activity. At the time he saw her she was working five hours a day three days a week. The doctor expressed the opinion that there had been no nett change over the preceding six months in relation to pain experienced. He thought the worker tended to report optimistically, especially to her employers, but the fact remained that activity evoked pain had not changed. She said her sleep had improved and she was taken Nurofen Plus but not in a pre-emptive way, as the doctor had advised. On examination the signs were as previously recorded. Repetitive movements of the fingers were associated with a feeling of reduced power in the right hand and earlier fatiguability than the left hand. The right median nerve at the elbow and wrist was found to be mechanically sensitive. Professor Cohen considered that the worker continued to be a very good cognitive-behavioural therapist for herself but her neuropathic pain syndrome was unchanged. He thought she had reached a plateau of comfort and function and it was unreasonable to expect her to increase her hours at work. At the current hours she was working her non-work life remained significantly compromised. He said that he would not be supportive of any increase in her work hours.
It appears that Professor Cohen did not see the worker again however, on 12 May 2005 he reported to the worker’s solicitors enclosing his two earlier reports and commenting on the reports of Dr Bodel dated 10 January 2005 and Dr Machart dated 24 February 2005. Professor Cohen repeated his earlier expression of opinion that it was unreasonable to expect the worker to increase her hours from the current five per day on 3 days a week and he supported the work restrictions as certified by Dr Panaretos.
The Application to Admit Late Documents was made in relation to certain documents, including a certificate of Dr Panaretos dated 18 August 2005 in which he expressed the opinion that the worker had reached maximum medical improvement and was fit for permanently modified duties from 22 August 2005, namely five hours per day, three days per week with 20 minutes per half hour maximum use of computer.
Evidence on Behalf of Employer
In a Reply lodged in the proceedings the employer raised seven matters as follows:
·The injuries of 22 April 2003 and 14 November 2003 were confined to the worker’s left arm and wrist.
·The injury to the worker’s right arm and neck was reported on or about 28 August 2003.
·The worker had recovered from the effects of any injury she sustained as a result of her employment.
·The worker’s employment was not a substantial contributing factor to any injury she may have sustained.
·The worker was not incapacitated as alleged or at all.
·The worker had not at all material times been ready, willing and able to undertake appropriate alternative work.
·The worker was capable of earning in the open labour market at least as much as she was earning when employed by the employer.
A number of medical reports were attached to the Reply however, the Arbitrator has excluded from consideration certain of these reports pursuant to the WorkersCompensationRegulation 2003. I will refer only to the reports which were admitted in evidence.
Dr Bodel, an orthopaedic surgeon, saw the worker on 10 January 2005. He noted that she had suffered a fractured left wrist which had been fixed with wires. The worker told Dr Bodel that over a period of time she had begun to develop increasing neck, right shoulder and arm pain because she was favouring that side to protect the left side. These symptoms had been reported in August 2003 and she had gone to her doctor. She was off work for about a month at that time and was treated with medication and Feldenkrais physiotherapy treatments. She also did a gymnasium-based program of strengthening exercises. She was also given medication and local heat. Later she was seen by Professor Cohen who had advised continuing tablets for her pain. She did return to work on light duty activity initially four hours a day, three days a week and had upgraded to five hours a day, three days a week. Her work station had been modified which she said had helped. The worker continued to complain of pain in the neck and right arm. She had shooting pain and electric shock feeling in the right arm. Prolonged head down posture could aggravate the pain and strenuous or repetitive use of the right arm also aggravated the pain. On examination Dr Bodel found tenderness in the trapezius muscle at the base of the neck on the right-hand side and slight restriction of neck movement. There was complaint of discomfort on resisted shoulder movement on the right but there was no restriction of movement of the right arm. There was no wasting of the arms and no objective sign of radiculopathy or nerve root tension. There was slight weakness of grip strength in the left hand. Dr Bodel said that he could find no objective sign of structural damage in the neck or right arm which would explain her complaints. He thought she should be capable of her pre-injury level of office-based work activities from the point of view of her neck and right arm complaints. In a separate report Dr Bodel assessed the Whole Person Impairment of the worker at 0%. Dr Bodel went on to say that “A finding of a 0% Whole Person Impairment does not indicate that there was no accident or that there are no on-going complaints”.
Dr Govind, specialist occupational physician, saw the worker at the request of the insurer on 19 April 2004 (report 22 April 2004). Dr Govind told the worker that the objectives of his seeing her were to facilitate her return to work. Dr Govind obtained a history of neck and right arm pain in perhaps mid or late 2002. This pain was described as “nondescript, prevalent at work, particularly with computer activities with symptoms abating over the weekend”. The treatment she had had was largely conservative, comprising proprietary medications as required. There was a history of the fracture to the left wrist on 22 April 2003 with subsequent re-injury on 14 November 2003. Following this latter injury there was no time away from work. In relation to the right wrist, Dr Govind was of opinion that a formal patho-anatomical diagnosis was not feasible. He thought it a truism to say that the worker’s complaints of chronic right wrist pain were of uncertain aetiology. The neck pain that she complained of may implicate the underlying cervical joints and/or capsular attachments. He noted that the worker remained at work undertaking normal duties with no particular physical restrictions but periodic rest breaks were recommended. Dr Govind thought that from an IMC (Injury Management Consultancy) perspective no further action was required.
Mr Borenstein, clinical psychologist, saw the worker on 13 September 2004, (report 14 September 2004). He obtained a history of injury to the left wrist in April 2003 as well as injury to the right side of the neck and shoulder after computers were brought in. She said that these complaints spanned some eight to ten years. She had pins and needles as well as tingling. Following the injury of April 2003 she had relied heavily on her right side and so her symptoms tended to worsen. She told the psychologist that in reducing her hours to four days per week she had been following a longstanding plan. She complained however that her workload was still the same. She was attending Feldenkrais therapy at that time, twice weekly. The worker related that it was the computer which had caused many of her problems. She said she could use the computer for 15 to 20 minutes before having to stop. The psychologist considered that the worker suffered from chronic pain condition for which she was achieving some benefits by undertaking Feldenkrais therapy. She was on a return to work program with workplace modifications. The psychologist thought she had suffered her initial injury to her right side no doubt a product of working on the computer and these symptoms had worsened following the injury on 22 April 2003 to her left wrist. She had never fully recovered with regard to the effects of the injury in April 2003 particularly with respect to the right-sided symptoms. The psychologist considered she was highly motivated to return to her pre-accident self but needed to learn some psychological strategies to assist her in more effective pain management and pacing with regard to her return to work. Mr Borenstein considered that the worker required something in the order of six sessions of psychological assistance in order to reduce chronic pain.
Attached to the reply are a number of workers compensation claim forms, together with an Injury/Incident Assessment Form dated 28 August 2003 signed on behalf of the employer. In response to the question “Where did injury occur?” has been written the following:
“Repetitive injury caused by length of time spent at computer now compounded by injury to left wrist.”
In response to the question “Has worker suffered a previous similar injury?” is written:
“Have experienced ongoing problems with neck, shoulders and tingling down right arm into fingers.”
In response to the question “How did injury/incident occur?” is written:
“Over time due to time spend at computer and on the phone.”
It does not appear that a workers compensation claim was made at this time in respect of this injury. Part of this Injury/Incident Assessment Form, it appears, was completed by the worker however it is not completely clear what part falls into this category.
A number of medical certificates from Dr Panaretos are also attached to the reply. These may, I think, be summarised as follows:
(a)from 16 February 2004 to 24 June 2004 the worker was certified fit for suitable duties with full hours;
(b)from 24 July 2004 to 21 August 2004 the worker was certified as totally unfit;
(c)from 21 August 2004 to 11 September 2004 the worker was certified fit for suitable duties, four hours per day three days per week;
(d)from 11 September 2004 to 24 June 2005 the worker was certified fit for suitable duties, five hours per day three days per week.
A number of rehabilitation reports are also attached to the reply. In the initial assessment report dated 4 March 2004 the worker had given a history of intermittent pain in her right little finger, arm and cervical spine over a number of years which she attributed to repetitive use of a computer whilst at work. The worker said she had not sought treatment for those symptoms in the past however pain had increased following her left wrist fracture which she attributed to compensating for her left wrist.
The rehabilitation provider noted on 21 October 2004 that the worker was on annual leave from 24 October 2004 until 19 November 2004 and a revised return to work plan was prepared. It was proposed that the worker upgrade to five hours per day four days per week on Monday 29 November 2004. The worker was to attend Dr Panaretos for medical review on 27 November 2004 prior to such upgrade. The rehabilitation provider, however, noted that the worker did not upgrade and remained on five hours per day three days per week. Dr Panaretos was contacted and advised that he felt that he was unable to provide a certificate to support an upgrade in view of the worker’s return to work with an increase in pain. He thought her injury was chronic and may result in her having to perform permanent modified duties. The worker advised that she was just coping with the hour shift she was performing and felt that it would aggravate her condition if she upgraded her hours further. On 5 April 2005 the rehabilitation provider wrote to the employer advising that GIO had asked it to cease rehabilitation involvement as the claim had been finalised and declined.
WORKER’S SUMBISSIONS BEFORE THE ARBITRATOR
It was submitted on behalf of the worker that there were three separate injuries which were advised to the employer. It was submitted that the injuries were causally related to work and the ongoing incapacity resulted from those injuries as supported and certified by Dr Panaretos. It was further submitted that the worker had worked until 22 September 2005 when the employer advised that he would no longer provide suitable duties. Since that time the worker had done no work. Submissions were made as to the worker’s entitlements to weekly payments compensation at the maximum rate pursuant to section 38 or section 40.
EMPLOYER’S SUBMISSIONS BEFORE THE ARBITRATOR
The employer conceded that the worker sustained injury to her left wrist and arm in April 2003 and November 2003. The employer also conceded that the worker reported injury to her right arm on or about 28 August 2003. The claim for compensation was accepted and paid up to 1 April 2005. The employer’s substantial submissions were:
·The worker had not put on evidence to allow the Arbitrator to conclude that the worker had a continuing incapacity resulting from injury arising out of or in the course of employment.
·The worker did not sustain an injury as serious as she alleges.
·The worker had recovered from the effects of such injury as she did sustain and since at least 1 April 2005 had not been incapacitated.
·If there were incapacity it was of such minor nature that it did not compromise the worker’s ability to earn on the open labour market and did not result in a reduction of her weekly earnings within the meaning of section 40 of the 1987 Act.
·The applicant had not at all material times been ready, willing and able to undertake the full range of work that was within her capacity.
Criticism was made of the opinions of Dr Panaretos and Professor Cohen. It was submitted that Professor Cohen did not specifically link his diagnosis of incapacity resulting from neuropathic pain affecting the right cervico-brachial region to the worker’s employment. At best it is said one is left to infer such connection from the history taken. The employer seizes upon Professor Cohen’s opinion that the underlying nature of her problem was not progressive or intrinsically dangerous but had major nuisance value.
The employer principally relied upon the report of Dr Bodel, an orthopaedic surgeon and Approved Medical Specialist. It is said that the history he took was consistent with the objective facts. It was submitted that there was no evidence of treatment or reporting of injury to corroborate the worker’s assertion that she had been experiencing problems with her right arm and neck over a period of years. Reliance was placed upon the opinion of Professor Cohen in June 2004 that the worker was fit for the 4 days work per week that she was then working. It was further submitted that there was no explanation of the worker’s diminishing capacity to engage in work. There was also no investigation recommended into the worker’s complaints and the only treatment prescribed was a non-prescription drug, Nurofen Plus. The employer submitted that the worker was on annual leave from 24 October 2004 to 19 November 2004 during which time she travelled overseas. She was to have attempted to upgrade her hours upon her return however this did not occur and reference was made to what was said by Caroline Brown, the rehabilitation consultant, in a document dated 3 December 2004. It was submitted that the worker did not genuinely seek rehabilitation for her pre-injury working hours. The employer submitted that the worker’s refusal to upgrade her activities was associated with her perceived unfair treatment, namely that she complained that although her work was downgraded to eight days work per fortnight she was still in fact required to perform the equivalent of nine days work. This was said to be the industrial issue referred to in a report of Dr Panaretos dated 21 August 2004. It was also said that the limitation imposed on the worker’s ability to undertake her work was in fact self-imposed.
It was submitted that the worker had recovered from the effects of injury by 1 April 2005 and has no incapacity. Alternatively if she had such incapacity, then it was minor only and of nuisance value.
THE ARBITRATOR’S DECISION
The Arbitrator considered the medical opinion and concluded that Professor Cohen’s diagnosis represented a plausible explanation of the worker’s symptoms. The Arbitrator preferred the evidence of Professor Cohen rather than that of Dr Bodel. This was based in part on the fuller history taken by Professor Cohen.
As to the aspect of causation, the Arbitrator recognised that the worker bore the onus of establishing that the condition which she had found that the worker suffered, as described by Professor Cohen, was causally related to her employment. She set out that Dr Panaretos believed that her employment was a substantial contributing factor to injury but noted that that doctor did not set out the basis on which he formed that opinion. The Arbitrator accepted that Professor Cohen did not expressly link his diagnosis with the worker’s employment. Nonetheless, the Arbitrator considered that on a fair reading of Professor Cohen’s three reports he did hold the view that the cause of the worker’s current condition was the longstanding pain in the neck and right arm exacerbated by falls at work in 2003. The Arbitrator was satisfied that the employment was a substantial contributing factor to the injury.
As to incapacity, the Arbitrator took note of the views of Dr Panaretos, her treating general practitioner, who had seen her over an extended period and noted that his opinion was supported by the worker’s treating rheumatologist. The Arbitrator considered that the worker was not fit to return to work pre-injury hours of employment.
The Arbitrator then set out the steps prescribed in Mitchell v Central West Health Service (1997) 14 NSWCCR 526, at 529 to 530. Probable earnings were found to be $875.83 being the figure urged by the employer rather than that urged on behalf of the worker. The Arbitrator found the worker capable of only working 15 hours per week in accordance with the certificates of Dr Panaretos which was also Professor Cohen’s opinion. Thus, the Arbitrator found that the worker was able to earn $417.00 per week which is the hourly rate of $27.80 x 15. The difference so found was in excess of the maximum statutory rate and, accordingly, there was an award in accordance with that rate. The Arbitrator did not make an award in respect of the period from 26 June 2005 to 21 August 2005 since she did not have a medical certificate in respect of that period. The Arbitrator considered whether a reduction was warranted having regard to the factors which may affect the exercise of the discretion to do so. The Arbitrator said that having considered all relevant factors she had decided not to exercise her power to vary the worker’s weekly entitlement.
EMPLOYER’S SUBMISSIONS ON APPEAL
The prime submission made on behalf of the employer is that the Arbitrator erred in finding that the worker suffered an injury to which the employment was a substantial contributing factor. It is further submitted that the worker had not discharged the onus of proving the necessary causal connection between such injury as had been found and the worker’s employment. It is submitted that the Arbitrator adopted her own opinions to fill a lacuna left by what is described as the “unsatisfactory evidence in the worker’s case”.
The employer submits that the worker had the capacity to work at least 4 days a week as she was doing in the year 2004. It is said that there was no evidence which might explain why the worker’s capacity to engage in employment had deteriorated after that time. It is said that the Arbitrator accepted that the worker’s doctors had not provided an explanation for this and that the Arbitrator had advanced her own explanation as to this. It is submitted that it was not open to the Arbitrator to advance her own explanation and accept that in the absence of evidence allowing that conclusion. On the basis that the worker should have been found to have been fit for four days normal work, this would at best lead to a finding that the award of weekly compensation would be based upon the loss of one day per fortnight only since the worker’s pre-injury employment was a nine day fortnight.
WORKER’S SUBMISSIONS ON APPEAL
The worker submits that the Arbitrator did not err in finding that she sustained an injury to which employment was a substantial contributing factor and reliance is placed upon the comment of Deputy President Fleming in Knight v Eyles Nominees Pty Ltd [2004] NSWWCCPD 73 (‘Knight’) at paragraph 40:
“Interference with an Arbitrator’s discretionary judgment 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.”
The worker submits that no such miscarriage has occurred.
The worker submits that the onus of proving the necessary causal connection between injury and incapacity employment was discharged and points out that the Arbitrator comprehensively considered all the material admitted in the proceedings in coming to the conclusion that the worker’s employment was a substantial contributing factor to her incapacity. This is said to be the view of the worker’s treating doctors, Professor Cohen and Dr Panaretos. It is said that it was open to the Arbitrator to prefer the opinions of the treating doctors over those of the employer. Reliance is placed upon the decision of Acting Deputy President Handley in Cine San Marco Pty Ltd v Ayres [2005] NSWWCCPD 160 at paragraph 31. Reliance is also placed on the decision of the same Acting Deputy President in Turrell Pty Ltd v Fernandes [2005] NSWWCCPD 149 at paragraphs 41 and 42. In both cases the Acting Deputy President cites the passage from Knight which is set out above.
As to incapacity, the worker relies on the certificates of Dr Panaretos, together with the opinion of Professor Cohen in his reports. It is submitted that the worker’s own evidence, together with the medical evidence provided, the Arbitrator has sufficient evidence to reach the conclusion made.
DISCUSSION AND FINDINGS
This appeal is pursuant to section 352(5) of the 1998 Act by way of a review of the decision appealed against. I gratefully adopt what was said by Deputy President Byron in Mayne Group Limited v Roberts & Faulding Health Care Pty Ltd [2005] NSWWCCPD 15:
“39.A Presidential Member on appeal has a specific and limited role in the review of the decision of an Arbitrator. The review is not a rehearing, nor is the Presidential Member dealing with the matter de novo, nor is he or she arriving at a fresh decision based upon all of the evidence available at a later time (Cole & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616). The powers of the Presidential Member to revoke the decision pursuant to section 352(7) of the 1998 Act and substitute a new decision in its place, are exercisable only where it is demonstrated that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172). Alternatively, the Presidential Member may remit the matter back to the Arbitrator concerned or to another Arbitrator for determination in accordance with any decision or directions made.”
Injury
The Court of Appeal in McMahon v Lagana & Anor [2004] NSWCA 164 held that the decision as to employment being a substantial contributing factor to an injury is a finding of fact and is a matter of impression and degree (at paragraph 32).
There is no doubt that the worker suffered at least two injuries. This appears to have been conceded by the employer. What is not conceded is that there was an injury to her right arm and neck as a result of the worker’s employment. So far as the injury of 22 April 2003 was concerned, there is no statutory requirement that the employment be a substantial contributing factor to that injury since it is a recess claim to which section 11 of the 1987 Act applies (see section 9A (4) of the 1987 Act). The circumstances of the fall of 14 November 2003 are obscure but that injury is conceded. It is clear that the worker reported an injury to her neck and right arm in August 2003 which was said to have been compounded by an injury to her left wrist. In my view it was clearly open to the Arbitrator to find that the worker had suffered such an injury as a result of the nature and conditions of her work from 1994 or thereabouts onwards and that it was as a result of the injury she suffered in April 2003 which caused additional strain to her right arm and neck. I do not consider that the Arbitrator erred in finding, so far as it was necessary to do so, that employment was a substantial contributing factor to the injury to the worker’s right arm and neck.
Causation
As Walker J said in Jackson v Work Directions Australia Pty Ltd (1998) 17 NSWCCR 70 at 83:
“50.The Court can take a robust and pragmatic approach to the facts even though medical science cannot arrive at a definite or a more probable conclusion: see March v Stramare Pty Ltd (1991) 171 CLR 506 at 514.
51.In making my decision I may be assisted by the medical evidence but I cannot simply transfer my task as a trier of fact to the medical witnesses: see Ramsey v Watson (1961) 108 CLR at 645.”
His Honour also referred to the Court of Appeal decision of KooragangCementPtyLtdvBates (1994) 10 NSWCCR 796 in which, he said, the judges of the Compensation Court were advised to take a commonsense approach to the question of causation in asking whether a worker’s injury was the result of his employment.
As I have earlier indicated, the opinion of Professor Cohen was criticised in that he is said not to have made a connection between the worker’s employment and the condition which he thought she suffered in the relevant legal sense. The question of causation was a matter for the Arbitrator; however she was required to have regard to all of the evidence, both medical and lay, in relation to this. It was open, in my opinion, to the Arbitrator to find such causal connection upon a consideration of all the evidence, including the worker’s own evidence and that of the doctors concerned. The Arbitrator has not erred in doing so.
Incapacity
It is submitted that the worker has no relevant incapacity or, if she does, then it was limited to one day per fortnight. It seems that the thrust of this submission in relation to incapacity is that there was no explanation as to why her capacity to engage in employment had deteriorated in 2004. Dr Panaretos was clearly of the view that it had and he was supported in this by Professor Cohen. The explanation given by the worker in her proof of evidence is that in August 2004 she was off work for four weeks after editing some timesheets which she said caused the extreme pain in her right arm. In my opinion it was clearly open to the Arbitrator to prefer the worker’s evidence and that of her doctors to that relied on by the employer in relation to her incapacity. The Arbitrator has not erred in finding partial incapacity as she has done.
DECISION
The decision of the Arbitrator dated 7 December 2005 is confirmed.
COSTS
The appellant employer is to pay the costs of the respondent worker of the appeal.
Anthony Candy
Acting Deputy President
15 December 2006
I 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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