Hua v Freedman Electronics Pty Ltd - [2011] NSWWCCPD 60

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Hua v Freedman Electronics Pty Ltd [2011] NSWWCCPD 60
APPELLANT:		Hang Hua
RESPONDENT:		Freedman Electronics Pty Ltd
INSURER:		CGU Workers Compensation (NSW) Ltd
FILE NUMBER:		A1-8807/10
ARBITRATOR:	Mr C Tanner
DATE OF ARBITRATOR’S DECISION:		30 May 2011
DATE OF APPEAL DECISION:		28 October 2011
SUBJECT MATTER OF DECISION:		Partial incapacity; assessment where worker is working; s 40 Workers Compensation Act 1987; application of principles in Aitkin v Goodyear Tyre & Rubber Co (Aust) Ltd (1945) 46 SR (NSW) 20
PRESIDENTIAL MEMBER:		Deputy President Bill Roche
HEARING:		On the papers
REPRESENTATION:		Appellant:	Zhang Shijing
Respondent:	Gillis Delaney Lawyers
ORDERS MADE ON APPEAL:		Paragraph 6 of the Arbitrator’s determination of 30 May 2011 is revoked and the assessment of the appellant worker’s entitlement to weekly compensation is remitted to another Arbitrator for re-determination in accordance with this decision. All other orders made in the Arbitrator’s determination of 30 May 2011 are confirmed. The respondent employer is to pay the appellant worker’s costs of the appeal, as agreed or assessed.

BACKGROUND

The appellant worker, Hang Hua, started work for the respondent employer, Freedman Electronics Pty Ltd, as an assembler in January 1999. The respondent makes speakers, microphones and power supplies. Ms Hua alleged that she injured her neck, shoulders, arms, back and legs as a result of heavy duties she performed in the course of her employment from 1999 until 3 or 4 December 2009.
Ms Hua stopped work on 4 December 2009. In April 2010, RehabDynamics, an approved rehabilitation provider, assessed suitable duties (light assembling, soldering and making boxes while seated) to be appropriate, and proposed a graded return to work plan. Ms Hua returned to work under that plan on 14 April 2010, working four hours per day for three days per week, but did not progress beyond 12 hours per week.
Her claim was initially accepted and the insurer paid weekly compensation until 23 July 2010. The insurer denied compensation beyond that date based on evidence from Dr Bornstein, orthopaedic surgeon, who examined Ms Hua on 3 June 2010. Dr Bornstein stated that Ms Hua had no objective evidence of disability or impairment and that she was as fit for work as she had been prior to the alleged incident.
Ms Hua claimed weekly compensation from 24 July 2010 to date and continuing, lump sum compensation in the sum of $9,625 in respect of an alleged seven per cent whole person impairment as a result of injury to her cervical spine, and hospital and medical expenses.
The issues for determination before the Arbitrator were whether:
(a)     Ms Hua received an injury and, if so, the nature of that injury;
(b)     employment was a substantial contributing factor to the injury, and
(c)     Ms Hua was and is incapacitated and, if so, the extent of that incapacity and her entitlement to compensation.
The Arbitrator accepted that Ms Hua’s duties required her to sit for prolonged periods and lean forward toward her workbench, with her neck bent constantly. She was also required to use both arms and shoulders repetitively and forcefully. He found that, as a result of performing those duties on 3 and 4 December 2009, she suffered a muscular strain to her back, neck, shoulders and arms, and he remitted her claim for lump sum compensation to the Registrar for referral to an Approved Medical Specialist (AMS) for assessment. The AMS was also asked to “provide a general medical opinion regarding whether any restrictions or limitations should, as a result of strain injuries sustained on 4 December 2009, currently apply to the applicant’s duties”.
In support of her claim for weekly compensation, Ms Hua relied on assessments from several doctors who assessed her to be fit for suitable duties for either 12 or 15 hours per week. She had been working on suitable duties with the respondent for between eight and 12 hours per week since 14 April 2010, and remained on those duties at the date of the arbitration on 1 March 2011. The respondent relied on Dr Bornstein’s evidence that Ms Hua had suffered no injury and was fit without restriction.
After a detailed review of the evidence, the Arbitrator noted that Ms Hua’s treating doctors had been “mystified by the discrepancy between” her complaints and the investigations. Those investigations included x-rays, CT scans, MRI scans, ultrasounds, nerve conduction tests and a bone scan, none of which revealed any “remarkable” pathology.
Accepting that Ms Hua suffered a muscular strain affecting her neck, back, shoulders and arms, the Arbitrator said it could be expected that she required a limited period of rest in the immediate wake of her injuries. He got a “sense” that Ms Hua was “dictating whether she should return to work, and the timing and terms thereof”.
As Ms Hua had suffered merely strain injuries, the Arbitrator said that certification of her as unfit for work four months after she had initially stopped work had to be “regarded with circumspection”. After noting (at [110]) that Dr Wong had certified Ms Hua fit for light duties on 22 January 2010 and Dr Lam’s certification a few days later that she would be able to return to normal duties on 8 February 2010, he viewed with “circumspection” the certification from Dr Tan and Dr Lam that subsequently stated Ms Hua was totally unfit through February, March and April 2010.
The Arbitrator added that the unreliable nature of the certificates issued by Dr Tan and Dr Lam from February to April 2010 was “also indicated by the medico-legal opinion” from Dr Conrad, who “is known by all who practise in the workers compensation field to be generous in his assessments as to incapacity and impairment”. He noted inconsistencies between the assessments for fitness for work provided by Dr Conrad, Dr Lam and Dr Tan.
The Arbitrator said that Dr Conrad provided no explanation for limiting Ms Hua’s hours of work to 15 per week and that it was no more than a “bare ipse dixit”. He said that “similar reservations” applied to the opinions of Dr Woo. The Arbitrator felt it was implausible that, more than a year after sustaining a muscle strain, Ms Hua was able to work no more than 12 hours per week. A further cause for doubt about Dr Lam’s reliability was her lifting restriction (without explanation) of 1 kg from July 2010 where Dr Conrad had set a restriction of 5 kg and Dr Tan a limit of 3 kg.
While noting that Dr Bornstein considered Ms Hua to be fit for her pre-injury duties, the Arbitrator said he accepted that she required “continuing restrictions of the kind recommended by Dr Conrad”, but saw no reasons why Ms Hua should not have been working normal hours from the first week of February 2010.
After noting that Ms Hua had been on suitable duties for 12 hours per week since mid-April 2010, the Arbitrator said (at [122]) that the return to work plan prepared by RehabDynamics envisaged a gradual upgrading of her hours to her pre-injury level of 40 per week by 16 July 2010. However, Ms Hua had not attempted an upgrade and there was no evidence of the effect of such an upgrade. The Arbitrator added (at [123]):
“Accepting that the applicant has residual complications associated with her strain injuries, it would be fair to allow for a limited period each week, as an average, in respect of time needed for rest and treatment in relation to her condition. I regard two hours per week as accommodating the applicant’s needs for time off on an ad hoc basis. She can expect her earnings to reduce to $608 per week.”

Probable earnings but for the injury were agreed at $640 per week. After allowing a loss of two hours per week at $16 per hour, the Arbitrator assessed Ms Hua’s ability to earn to be $608. The difference between probable earnings and ability to earn was $32 per week. He saw no reason to reduce that amount in the exercise of his discretion and he determined that the monetary value of Ms Hua’s earning capacity from 24 July 2010 had been “subject to a diminution of $32 per week” and he made an award in her favour in that amount from that date to date and continuing.
The Arbitrator expected that, in the wake of his decision, the parties would resume discussions regarding Ms Hua’s “actual resumption of normal work duties, and transition to her pre-injury tasks”. After noting that there was no recent specialist opinion regarding Ms Hua’s current capacity, and to “facilitate discussions regarding the applicant’s duties”, he requested the AMS to provide a “general medical opinion as to suitable duties” that would be appropriate in mid-2011. He gave the parties leave to seek further orders that might be appropriate in light of the AMS’s opinion. He made a general order for the payment of medical expenses under s 60 of the Workers Compensation Act 1987 (the 1987 Act).
The Commission issued a Certificate of Determination on 30 May 2011 in the following terms:
“The Commission determines:
1. The applicant is determined to have sustained injury, within the meaning of section 4 of the Workers Compensation Act 1987 (the 1987 Act), to her neck, back, shoulders and arms, on 4 December 2009, as a result of repetitive lifting of speakers.
2.   The applicant’s employment with the respondent is determined to be a substantial contributing factor to the injury described in Order 1 above.
3.   Award for the respondent in respect of the claim that the applicant sustained injury to the body parts referred to in Order 1 above, by reason of the nature and conditions of her employment from 2005 to 4 December 2009.
4.   The dispute as to whether whole person impairment has resulted from injury to the applicant’s cervical spine on 4 December 2009, is remitted to the Registrar in order that it be referred to an Approved Medical Specialist (AMS) for assessment.
5.   The materials to be provided to the AMS are:
(a)               Application to Resolve a Dispute and all attachments;
(b)               Reply and all attachments;
(c)               Report of Dr Bornstein dated 16 November 2010;
(d)Documents attached to the Applications to Admit Late Documents lodged by the applicant on 13 January 2011, 28 January 2011 and 17 February 2011; and
(e)               Statement of Leonie Foran dated 17 February 2011.
6. The respondent shall, with effect from 24 July 2010, pay weekly compensation to the applicant, pursuant to section 40 of the 1987 Act, at the rate of $32 per week, to date and continuing.
7. The respondent shall, pursuant to section 60 of the 1987 Act, pay the applicant’s medical expenses relating to treatment of her neck, back, and upper limbs, resulting from strain injuries to those body parts on 4 December 2009.
8.   The AMS shall be requested to provide a general medical opinion regarding whether any restrictions or limitations should, as a result of strain injuries sustained on 4 December 2009, currently apply to the applicant’s duties.
9.   The respondent is ordered to pay the applicant’s costs as agreed or assessed.
Certification as to Costs
I certify that the matter was complex and that the fees of the legal representatives of the parties shall be subject to an uplift of 30 per cent.”
The Approved Medical Specialist (AMS), Dr Rosenthal, assessed Ms Hua on 15 June 2011 and issued a Medical Assessment Certificate (MAC) on 17 June 2011, in which he assessed her to have a whole person impairment of six per cent as a result of the injury to her cervical spine on 4 December 2009. Responding to the Arbitrator’s request, Dr Rosenthal also commented on Ms Hua’s restrictions for work.
In a post-MAC teleconference on 22 July 2011, the parties agreed to settle Ms Hua’s claim for lump sum compensation under s 66 of the 1987 Act in the sum of $8,250. The Arbitrator gave the parties liberty to apply in respect of Ms Hua’s continuing entitlement to weekly compensation.
Ms Hua has appealed the Arbitrator’s finding that she is only entitled to an award under s 40 of $32 per week.

PRELIMINARY MATTERS

Monetary threshold

It is not disputed that the appeal meets the monetary thresholds in s 352(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).

Time

As Ms Hua lodged her appeal on 2 August 2011, well outside the 28-day time limit in s 352(4) of the 1998 Act, she has applied for an extension of time to appeal. In support of her application, it has been submitted:
(a)     Ms Hua learnt of the decision through her former legal representative. Though she “asked for an appeal”, her former legal representatives refused to apply for an appeal;
(b)     Ms Hua contacted many solicitors, but was not able to find a solicitor “capable to accept her case and make the appeal within the time limitation”;
(c)     Ms Hua was referred to her current solicitor in early July and instructed him on 14 July 2011;
(d)     her current solicitor only got to review her “complete case file” on 19 July 2011. They attended the post-MAC teleconference on 22 July 2011;
(e)     the appeal has “a real chance to succeed” because the overwhelming medical evidence supports her claim, and Ms Hua would suffer substantial injustice if time to appeal is not extended, and
(f)      the extension of time to appeal will cause no prejudice to the respondent because the issue in dispute can be determined on the papers and “largely based on the existing evidence”.
The respondent opposes the extension of time to appeal because:
(a)     Ms Hua has not demonstrated “exceptional circumstances”;
(b)     a refusal to grant an extension of time will not result in a “demonstrable and substantial injustice” as the appeal is without merit;
(c)     Ms Hua has not provided an adequate explanation for the delay;
(d) there is no chronology outlining the crucial dates relevant to the matters relied on in [22] above and the facts cannot be properly evaluated. There is no documentary evidence supporting the events set out at [22] above;
(e)     at the post-MAC teleconference on 22 July 2011, Ms Hua’s solicitor did not say that he had been retained to file an appeal;
(f)      the appeal was not filed until 3 August 2011, more than two weeks after the worker’s current solicitor was retained, and
(g)     the appeal has no prospects of success.
Pursuant to a direction issued by me on 7 October 2011, Ms Hua has filed a statement dated 12 October 2011 in which she confirmed that she asked her former solicitor to appeal the Arbitrator’s decision, but he was reluctant to do so as he needed more time to further assess the case. Though it is not expressly dealt with in her statement, I infer that she asked her solicitor to appeal in early June 2011. After this conversation, Ms Hua looked for a new solicitor. She contacted Keddies and was told that their Mandarin-speaking solicitor would contact her when he returned from holidays. He did not contact her within the 28-day timeframe in which to appeal. Most of the other solicitors she contacted were not interested in representing her on an appeal.
On 17 June 2006, Ms Hua’s former solicitor advised her that he would not “make the appeal” for her. In early July 2011, Ms Hua was receiving a massage and her therapist gave her the details of her current solicitor, Mr Zhang. She tried to see him but he was not in and she made an appointment for the following week. She saw Mr Zhang on 14 July 2011.
Ms Hua also tendered a letter from her former solicitors, Unilegal, dated 17 June 2011 addressed to her and written in Mandarin with no translation.
In response to Ms Hua’s statement, counsel for the respondent, Mr Callaway, submitted that the statement lacks dates, detail of the mode of Ms Hua’s inquiries, and the number and identity of the solicitors contacted. He said that the letter from Unilegal compounded Ms Hua’s failure to provide an adequate explanation for her delay in appealing.
An extension of time in which to appeal is governed by Pt 16.2 r 12 of the Workers Compensation Commission Rules 2011 (the Rules), which provides:
“(12) The Commission constituted by a Presidential member may, if a party satisfies the Presidential member, in exceptional circumstances, that to lose the right to seek leave to appeal would work demonstrable and substantial injustice, by order extend the time for making an appeal.”
The question of extending time to appeal was considered by McHugh J in Gallo v Dawson [1990] HCA 30; 93 ALR 479 (Gallo) at 480. His Honour observed that, in order to determine whether the strict application of time limits will work an injustice, it is necessary to have regard to:
(a)     the history of the proceedings;
(b)     the conduct of the parties;
(c)     the nature of the litigation;
(d)     the consequences for the parties of the grant or refusal of the application for the extension of time;
(e)     the prospects of the applicant succeeding in the appeal, and
(f)      the fact that, upon expiry of the time for appealing, the respondent has a vested right to retain the judgment unless the application for extension of time is granted.
For the following reasons, I am satisfied that exceptional circumstances exist that justify the extension of time to appeal in this matter:
(a)     while the appeal is out of time by several weeks, Ms Hua has provided an explanation for the delay in lodging the appeal;
(b)     though it is unsatisfactory that Ms Hua’s current solicitor has tendered a letter written in Mandarin without a translation, the content of that letter is not critical in determining whether time should be extended;
(c)     though Ms Hua’s new solicitors could and should have acted more promptly in filing the appeal after they received the file on 19 July 2011, by that time the appeal was already outside the 28-day time limit. The further delay was not grossly excessive and has not prejudiced the respondent;
(d)     as the appeal will not affect the orders made at the teleconference on 22 July 2011, it is of no consequence that the solicitors did not mention at the teleconference (as they should have) that they had instructions to appeal;
(e)     the appeal has reasonable prospects of success and I am satisfied that to lose the right to appeal would work a demonstrable and substantial injustice to Ms Hua, and
(f)      there is no prejudice to the respondent.
Time to appeal is extended until 2 August 2011.

Fresh evidence

Ms Hua seeks to introduce as “new evidence” on appeal WorkCover medical certificates from Dr Lam dated 17 March 2011, 29 April 2011 and 20 July 2011. In support of this application, it has been submitted on behalf of Ms Hua that:
(a)     the certificate of 20 July 2011 was not available at the time of the arbitration;
(b)     the other certificates were not submitted because Ms Hua thought that the Arbitrator would make a decision “very soon” and her submitted medical evidence would be sufficient to persuade the Arbitrator;
(c)     the “evidence was accredited by WorkCover NSW which carries a higher weight than other general medical reports”;
(d)     if the new evidence is admitted, it will significantly reinforce the weight of the evidence for Ms Hua and the determination will “probably be altered”;
(e)     the evidence is credible;
(f)      significant prejudice will be occasioned to Ms Hua if it is not admitted, and its admission will not prejudice the respondent, and
(g)     the principles of natural justice will be violated if the evidence is not admitted because the Arbitrator based his decision on incomplete or incorrect information.
The respondent seeks to introduce as “new evidence” on appeal the MAC issued by Dr Rosenthal on 17 June 2011. It has submitted that:
(a)     the MAC was not available and could not reasonably have been obtained before the proceedings were determined by the Arbitrator;
(b)     the evidence is credible as it is from an Approved Medical Specialist and has not been appealed;
(c)     the Arbitrator noted (at [126]) that there was no recent specialist opinion regarding Ms Hua’s capacity and, to facilitate discussions regarding Ms Hua’s duties, he requested the AMS to provide a general medical opinion as to suitable duties appropriate for Ms Hua in mid-2011. The AMS confirmed the Arbitrator’s assessment of Ms Hua’s capacity to engage in full-time suitable duties and, without placing any restriction on the worker’s lifting capacity, only said that she should avoid work in prolonged fixed postures and prolonged repetitive work, and
(d)     the evidence updates the evidence regarding the worker’s capacity.

The admission of “fresh evidence” or “additional evidence” on appeal is governed by s 352(6) of the 1998 Act, which provides as follows:
“(6) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission. The Commission is not to grant leave unless satisfied that the evidence concerned was not available to the party, and could not reasonably have been obtained by the party, before the proceedings concerned or that failure to grant leave would cause substantial injustice in the case.”
Both applications to rely on fresh evidence on appeal are refused.
Dr Lam’s additional certificates are in exactly the same form as her certificates of 20 July 2010, 19 August 2010 and 21 September 2010, which were in evidence at the arbitration. They add nothing to the evidence that was before the Arbitrator and there is no injustice if they are not admitted.
While the MAC postdates the arbitration and is clearly relevant to Ms Hua’s entitlement to weekly compensation from 17 June 2011, as I have determined that the matter must be re-determined in any event, there is no injustice if the document is not admitted on appeal. Moreover, allowing the introduction of the MAC into evidence on appeal without giving Ms Hua’s doctors the opportunity to respond to it would be unfair. At the re-determination, each side will be free, subject to the Commission’s Rules and the Workers Compensation Regulation 2010, to tender such further evidence as they consider necessary.

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 Nos 1 and 6, the documents that are before me, and the submissions 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 were initially whether the Arbitrator erred in:
(a) failing to accept the opinions of Drs Lam, Tan, Woo and Sun regarding Ms Hua’s fitness for work, and
(b) failing to give adequate reasons for finding on an “ad hoc basis” that two hours per week accommodated Ms Hua’s need for time off.
I listed the matter for teleconference on 7 October 2011 and directed the parties to Aitkin v Goodyear Tyre & Rubber Co (Aust) Ltd (1945) 46 SR (NSW) 20 (Aitkin). At the teleconference, Mr Zhang submitted that the Arbitrator had erred in not applying the principles in Aitkin. I issued a direction requiring further written submissions on that issue and on the Arbitrator’s finding that the appellant worker was incapacitated for two hours per week in the absence of evidence to that effect.
Each side has filed additional submissions dealing with the above matters and those submissions are considered below.

SUBMISSIONS

Ms Hua’s original submissions were essentially that the Arbitrator’s finding was against the weight of the medical evidence, which was to the effect that Ms Hua was only fit for restricted light duties of between 12 to 15 hours per week. Next, it was submitted that the Arbitrator failed to give adequate reasons for his finding that Ms Hua was unfit for two hours per week.
In further written submissions filed on 12 October 2011, Mr Zhang repeated the submission he made at the teleconference that the Arbitrator erred in not applying the principles in Aitkin. Those principles are that, when a worker is currently working, his or her earnings are prima facie evidence of ability to earn unless it is proved that the worker’s actual earnings are not a proper test. He submitted that Ms Hua was not idling and that her fear of returning to work was reasonable.
Mr Callaway conceded that the Arbitrator should have considered Aitkin. At the teleconference, he submitted that the Arbitrator had effectively applied the principles in Aitkin, though he had not expressly referred to it. In his further written submissions, he referred to the Arbitrator’s decision at [118] where the Arbitrator said he “could see no reason why the applicant should not have been working normal hours from the first week in February 2010”. Having made that finding, it was submitted that a proper application of Aitkin “would have forced the conclusion that the ‘prima facie’ test would not assist the worker” because the Arbitrator’s view of the evidence would have “inevitably established that the actual earnings were not a proper test”.
Mr Callaway added that, even if the Arbitrator had accepted Dr Conrad’s evidence that Ms Hua was fit for 15 hours per week, Aitkin would not have assisted the worker, as 15 hours represented a 25 per cent increase on the actual hours. In the result, the Arbitrator’s failure to consider Aitkin should not of itself lead to the appeal being upheld. It follows that, if the Arbitrator’s factual findings relating to the worker’s level of incapacity and the hours she can work are not disturbed on appeal, the worker’s actual earnings would not be regarded as indicative of her ability to earn.

DISCUSSION AND FINDINGS

It is appropriate to consider the Aitkin point first. It is not disputed that, at the time of the arbitration, Ms Hua was still working for the respondent employer on suitable duties for restricted hours. In these circumstances, it was incumbent on the Arbitrator to apply the principles in Aitkin. His failure to do so was an error.
In Aitkin, Jordan CJ said (at 23):
“If, however, it is proved that his actual earnings are not a proper test, because there is some reason unconnected with his earning power which makes them lower than they should be, the other alternative, what he is ‘able to earn’, must be adopted. This is so where it is shown that he is deliberately taking lower-paid work than he could get, or is idling and on this account receiving less than he could be reasonably expected to obtain, or where his actual earnings have been compulsorily reduced by something unconnected with his injury or general earning power: Jones v Amalgamated Anthracite Collieries Ltd; but, if the compulsory outside influence, instead of reducing, increases his actual earnings beyond what his injury would make him otherwise capable of earning, his actual earnings must be taken as the basis: Heaney v B A Collieries Ltd. If, however, he is not earning anything, or, for some good reason, what he is earning cannot be treated as a proper basis, regard must be had to the alternative basis provided by the section – what he is ‘able to earn’.”
There is no evidence that, while on suitable duties with the respondent, Ms Hua was “deliberately taking lower-paid work” or was “idling” or that her earnings had been reduced by something unconnected with her injury.
The last report in evidence from RehabDynamics is from Rigan Wong, occupational therapist, dated 14 April 2010. Ms Hua reported she was able to perform light assembling, soldering and making boxes in a seated position. The return to work plan was explained to her and she understood the medical restrictions and obligations. The worker agreed to the return to work goal and participation in the return to work program. The anticipated completion of the rehabilitation plan was 31 July 2010. Ms Wong made no hint that Ms Hua was avoiding work or idling.
Ms Hua’s statements do not deal with her rehabilitation plan or her return to work on suitable duties. In her statement of 27 January 2011, she listed her hours of work from 13 April 2010 to 4 November 2010, but said nothing about the work she performed or whether she had been asked to work extra hours. Her statement of 23 September 2010 makes no mention at all of her rehabilitation or return to work plan.
Dr Tan noted in his report of 28 June 2010 that Ms Hua was working four hours per day on three days per week. He did not anticipate any barrier to her return to work plan.
Dr Fu, rheumatologist, reported on 31 August 2010 that Ms Hua was working half a day for three days per week doing light duties, but she still found it extremely painful folding paper boxes and opening plastic bags; these tasks seemed to reproduce the pain in her right arm, right neck, and upper back.
Dr Bornstein recorded on 3 June 2010 that Ms Hua was working three days per week doing half-days, but he thought she was as fit now as she was prior to the alleged incident. The Arbitrator did not accept this evidence.
This evidence does not suggests that Ms Hua was avoiding the light duties offered to her or, as the Arbitrator stated, that she was “dictating whether she should return to work, and the timing and terms thereof”. While the Arbitrator reviewed the medical evidence, he did not do so in the context of the principles discussed in Aitkin.
Contrary to the respondent’s submission, the Arbitrator’s statement (at [118]) that he could see no reason why Ms Hua should not have been working normal hours from the first week of February 2010 did not mean that a proper application of Aitkin “would have forced the conclusion that the ‘prima facie’ test would not assist the worker”. There was a very logical and compelling reason why Ms Hua was not working full-time from April 2010, namely, she was on a return to work plan under the supervision of a rehabilitation specialist. That plan adopted the recommendations of her treating doctors.
The proper application of Aitkin required a consideration of whether the worker’s actual earnings were a proper measure of her earning capacity and whether the worker was deliberately avoiding work or idling. The Arbitrator did not consider Ms Hua’s entitlement to weekly compensation in that context.
The respondent’s submission that, even if the Arbitrator had accepted Dr Conrad’s evidence, that would not have assisted the worker because Dr Conrad assessed Ms Hua to be fit for suitable duties for 15 hours per week, not the 12 hours under the rehabilitation plan, misses the point. Ms Hua was working the hours provided to her under the plan prepared by an approved rehabilitation provider. She was not avoiding work or idling. Nor were her earnings while on the rehabilitation plan reduced because of a reason unconnected with her employment.
The respondent’s case at the arbitration was not that Ms Hua was idling or avoiding work on the rehabilitation program, but that she had not suffered any injury and had no restrictions. The Arbitrator found that she had suffered an injury and that she was incapacitated for her old job. The next question was the quantification of that incapacity.
The Arbitrator noted (at [122]) that the respondent had provided suitable duties for 12 hours per week since mid-April 2010 and that RehabDynamics envisaged an upgrading of Ms Hua’s hours to five per day on four days per week by 14 June 2010. He added:
“A gradual upgrade of this kind is customary when facilitating a resumption of duties after a long period of absence. That 20-hour week was to last until 14 June 2010. A continuing gradual upgrade to 30 hours per week from 15 June to 15 July 2010, would have been reasonable, if not generous to the applicant, allowing for restoration of her pre-injury 40-hour week with effect from 16 July 2010.”
There is no evidence that RehabDynamics planned to increase Ms Hua’s hours to 30 per week and the basis for the Arbitrator’s comment to that effect is unclear. While the return to work plan may have envisaged a gradual upgrading of hours over time, that did not happen. Why it did not happen is not explained in the evidence, but, as noted above, there is no suggestion in the reports from RehabDynamics that Ms Hua was doing anything other than actively participating in the return to work plan. I assume that her participation continued until, according to Mr Zhang’s submissions, Ms Hua’s employment was terminated shortly after the Arbitrator’s decision.
The Arbitrator added at [123]:
“A difficulty in this matter is that the applicant has not attempted upgraded duties, and there is no evidence of the effect of such an upgrade. Accepting that the applicant has residual complications associated with her strain injuries, it would be fair to allow for a limited period each week, as an average, in respect of time needed for rest and treatment in relation to her condition. I regard two hours per week as accommodating the applicant’s needs for time off on an ad hoc basis. She can expect her earnings to reduce to $608 per week.”

There are two errors in this statement. First, as Mr Zhang has submitted, there is no basis in the evidence for finding two hours per week to accommodate Ms Hua’s need for time off “on an ad hoc basis”. The evidence was that Ms Hua was either fit for part-time work for 12 or 15 hours per week, or fit without restriction. Second, it ignores the fact that Ms Hua was working and her actual earnings provided prima facie evidence of her ability to earn.
It follows that the Arbitrator’s decision cannot stand. As both sides wish to tender additional evidence, and as the respondent has terminated Ms Hua’s employment since the arbitration and her ability to earn after that date will have to be assessed on the open labour market, the proper course is for the matter to be remitted to another Arbitrator for re-determination of the worker’s entitlement to weekly compensation.

OTHER MATTERS

Four other matters arise. Though I have not based my decision on them, as the parties have made no submissions on them, I make the following observations.
First, the Arbitrator said (at [111]) “Dr Peter Conrad is known by all who practise in the workers compensation field to be generous in his assessments as to incapacity and impairment”. That comment was inappropriate. Arbitrators are required to assess the evidence on its merits, without any preconceived notions of “all who practise in the workers compensation field” about whether a particular qualified medical specialist is “generous”.
Second, the Arbitrator decided the question of Ms Hua’s entitlement under s 40 without informing the parties of the unusual approach he intended taking and without giving them the opportunity to be heard. Given the nature of the “injury” dispute, it is understandable that counsel focused on that issue in their submissions. While Ms Hua’s counsel touched on incapacity (at T12.15), counsel for the respondent made no submissions on it. In these circumstances, if the Arbitrator was minded to determine the case as he did, procedural fairness required that he give the parties the opportunity to be heard.
Third, the pleadings filed by the worker’s former solicitors are completely meaningless. They allege that Ms Hua suffered her injuries as a result of “the nature and conditions of the employment from 01/01/2000 to date and continuing”. The Commission has repeatedly held that such pleadings are worthless. The profession is reminded that, if it is alleged that a worker received an injury because of activities over time, such as repetitive lifting, that allegation should be made clear in the Application to Resolve a Dispute and in the particulars in support of the initial claim for compensation. The claim should also state if the injury is alleged to be a disease injury under s 4(b)(i) or s 4(b)(ii) of the 1987 Act, or if it is a personal injury under s 4(a) of that Act. Though it was not clear from the Application to Resolve a Dispute, the disease provisions were not relied on in this case.
Last, the Arbitrator said that Dr Conrad’s opinion that Ms Hua was fit for suitable duties for 15 hours per week was no more than a “bare ipse dixit” and, presumably, though he did not expressly say so, not entitled to any weight. If that was the Arbitrator’s opinion, it was incorrect. It is common for doctors to provide only brief statements about fitness for work. That does not render the opinion of no weight, though it may carry less weight than a more detailed and reasoned opinion from another specialist.
Dr Conrad’s opinion was based on the history he took from Ms Hua of her continuing symptoms and the effect those symptoms had on her, his findings on examination, an examination of the radiological investigations, and his expertise as a medical specialist. His opinion about her fitness for work was entitled to be considered and weighed with the other evidence on that issue.

CONCLUSION

For the reasons stated above, the award under s 40 must be revoked and remitted to another Arbitrator for re-determination. At the re-determination, the parties will be at liberty to tender such further evidence as is appropriate under the rules. As neither party has challenged any other part of the decision, all other orders are confirmed.
Last, the preparation of this case has left a lot to be desired. The parties will no doubt consider the state of the evidence prior to the next hearing. At the least, I would have thought that the medical evidence will have to be brought up to date and further evidence obtained from Ms Hua as to her current circumstances. I strongly urge Ms Hua to retain counsel experienced in workers compensation matters well before the next hearing.

DECISION

Paragraph 6 of the Arbitrator’s determination of 30 May 2011 is revoked and the assessment of the appellant worker’s entitlement to weekly compensation is remitted to another Arbitrator for re-determination in accordance with this decision.
All other orders made in the Arbitrator’s determination of 30 May 2011 are confirmed.

COSTS

The respondent employer is to pay the appellant worker’s costs of the appeal, as agreed or assessed.

Bill Roche

Deputy President
28 October 2011

I, CATHRINE LOREN, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE