Icontact Optometrists Pty Limited v Cross
[2006] NSWWCCPD 106
•1 June 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Icontact Optometrists Pty Limited v Cross [2006] NSWWCCPD 106
APPELLANT: Icontact Optometrists Pty Limited
RESPONDENT: Shirley Cross
INSURER:QBE Workers Compensation (NSW) Limited
FILE NUMBER: 17407-04
DATE OF ARBITRATOR’S DECISION: 24 May 2005
DATE OF APPEAL DECISION: 1 June 2006
SUBJECT MATTER OF DECISION: Incapacity; section 40 Workers Compensation Act 1987; prior award of Compensation Court under section 66 of Workers Compensation Act 1987.
PRESIDENTIAL MEMBER: Acting Deputy President Anthony J. Candy
HEARING:On the papers
REPRESENTATION: Appellant: QBE In House Legal
Respondent: Firths: The Compensation Lawyers
ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 24 May 2005 is confirmed.
The appellant employer is to pay the costs of the respondent worker.
BACKGROUND TO THE APPEAL
Shirley Cross (‘the worker’) was employed by Icontact Optometrists Pty Limited (‘Icontact’) on 17 July 2000 as a receptionist/sales clerk. While so employed she suffered an injury to her back on 6 December 2000. She returned to work in late December 2000 and worked until 15 January 2001 when she ceased because her back pain had deteriorated. A claim was made for workers compensation on Icontact’s insurer and weekly compensation was paid to her up to 24 June 2003 when liability was declined on the basis of Professor Oakeshott’s report of 12 March 2003.
The worker had commenced proceedings in the Compensation Court of New South Wales which were heard on 26 May 2003 with judgment being given on 25 or 26 July 2003. O’Toole J in the Compensation Court awarded the worker lump sum compensation representing 10% impairment of her back under section 66 of the Workers Compensation Act 1987 (‘the 1987 Act’).
When the insurer declined liability to make further payments of compensation the worker was residing at 6 Swordfish Avenue, Raby, which is a suburb in the Campbelltown area. The address of the employer is given in the documents lodged with the Workers Compensation Commission (‘the Commission’) as Unit 1, 1 Cambridge Street, Penshurst. It is not entirely clear whether this was the address at which the worker was employed. In February 2004 the worker moved to Lake Heights which is said to be a suburb of Wollongong, approximately 8 kilometres from the centre of that city.
The worker had performed some training with Elegance Eyewear Boutique (‘Elegance’) in January 2002. She began working for them on 5 August 2002 working fourteen hours a week at $10.00 per hour. Elegance was situated in Campbelltown. This employment was terminated on 5 August 2003, when Elegance took on another member of staff so that the services of the worker were not required. The worker had also obtained some work with Knebel Kitchens as a showroom consultant but says that her employment was terminated after she had been sent for a medical examination. Since 5 August 2003 the worker has not found employment but has made some attempts to obtain suitable employment.
The worker commenced proceedings to recover weekly and medical compensation in the Commission and it is against the determination of the Arbitrator dated 24 May 2005 that Icontact now seeks leave to appeal.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 24 May 2005 records the Arbitrator’s orders as follows:
“1.The Respondent is to pay the Applicant weekly benefits compensation at the rate of $180.00 per week from 25 June 2003 to date and continuing pursuant to section 40 of the Workers Compensation Act 1987.
2.The Respondent is to pay the Applicant’s section 60 expenses arising from the injury to her back on the production of accounts, receipts, and/or the HIC Notice of Charge.
3.The Respondent is to pay the Applicant’s costs as agreed or assessed.”
ISSUES IN DISPUTE
The issues in this appeal may I think be fairly summarised as follows:
(a)Was the Arbitrator correct in finding that the worker was partially incapacitated?
(b)Did the Arbitrator err in concluding that the worker was not able to earn as much as she could have earned if uninjured?
(c)Did the Arbitrator wrongfully fail to exercise her discretion under section 40 of the 1987 Act?
ON THE PAPERS REVIEW
Icontact seeks an oral hearing on the basis that the Determination by the Arbitrator was not on the papers but rather the worker gave evidence and therefore there should be an oral hearing of the appeal. It is also submitted that an oral hearing would enable both parties to deal with competing submissions in a manner which is more satisfactory than exchanging written submissions. It is said that the amount of the award in favour of the worker is a very substantial amount and that in disputes where serious injury is alleged and an amount of compensation is very large, then justice and procedural fairness indicate that an oral hearing should take place. These arguments are not in my opinion persuasive.
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 agreement of the respondent/worker, 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. The parties have had an opportunity to refer to the relevant evidence, both lay and medical, and to make submissions in relation to that evidence.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
The amount of compensation at issue was approximately $18,000.00 as at the date of the Arbitrator’s decision, not taking into account the worker’s entitlement to section 60 expenses. The whole of this amount is said to be in issue in the appeal. Section 352(2) is thus satisfied and leave to appeal is granted.
EVIDENCE AND SUBMISSIONS
The Worker’s Evidence
A statement of the worker of 17 September 2004 was before the Arbitrator. She relates her employment history prior to commencing employment with Icontact. She sets out what her duties involved, namely banking, cash handling, telephone enquiries, dealing with the customers, data entry, invoicing, stock-taking, diary management and opening and closing the shop. She relates suffering an injury on 6 December 2000 and continuing working until 15 January 2001 when her back pain deteriorated. She sets out her employment with Elegance. She says that Elegance was very considerate towards her disability. She was allowed to sit and rest frequently if required and her duties involved cleaning shelves, selling sunglasses, booking people in for eye checks, banking and sweeping the floor. She says she worked fourteen hours per week, namely seven hours per day on Monday and Tuesday. She says that by the end of Tuesday she was physically exhausted and would rest for the following five days prior to returning to work the following Monday. She said she experienced difficulty doing this job because there was only the employer working with her. When she had performed the work trial in January 2002 there had been an additional employee to help with the workload. Since 5 August 2003 she has not worked but has made numerous attempts at obtaining suitable employment and she attaches a list of employers from whom she has made enquiries about suitable employment. She says that she is only fit for work on a part-time basis and has physical restrictions because of her back. She attaches a Notice of Past Benefits from the Health Insurance Commission dated 22 October 2003 in relation to the sum of $1,619.05 which has been claimed by the Health Insurance Commission. It appears that the sum of $600.00 was received from the insurer, being 10% of the sum awarded under section 66, and the balance of $1,019.05 is outstanding. The bulk of the medical services set out in the Health Insurance Commission notice relates to attendances on Dr M. Playford from 3 April 2001 to 5 September 2002. There is also a substantial sum for CT investigations and there is also a small sum for a pathology test of 28 June 2001.
The Arbitrator noted that a number of matters had been agreed. These are as follows:
(i) The worker’s pre-injury earnings were in the amount of $480.00 per week.
(ii)The worker was found by O’Toole J on 26 July 2003 to have a 10% impairment of the back.
(iii)That the worker suffered an injury to which her employment was a substantial contributing factor.
(iv)The worker had a capacity to earn no less than $140.00 per week over the period of the claim.
The worker gave evidence on 4 March 2005. Her evidence supplements her written statement. She said her working capacity had diminished since she had worked for Elegance and she gave evidence as to the location of Lake Heights, her present place of residence. She said she had ceased attempting to find other work because she had not the money to do so but she said she was still looking in the papers.
She was cross-examined by counsel on behalf of Icontact. She was cross-examined as to what her duties with Icontact were. She gave evidence of the banking which she did in the course of her employment and also taking telephone enquiries. She said that when she was typing she was sitting crookedly and under the desk where she was working there was a photocopier and a fax machine. Only sometimes would she do data entry work and typing. She gave evidence about opening two small roller doors on the premises since she was the first employee to arrive in the morning. She said she had not been having any medical treatment that year (2005) because her doctor was so far away at Moorebank and also because the insurer had ceased paying compensation. She said she could not return to work at Elegance because it was too far away. She was asked whether she could go back to her old job with the employer, Icontact, and replied that it wasn’t made available to her after she injured her back. She said she would try to do so but she was not sure whether she would be able to go back to her old work.
Medical Evidence
The Arbitrator set out the medical evidence in some detail. There is no point in my repeating this. A brief summary of the views of the doctors is as follows:
·Dr Berry 5 December 2001 – lumbosacral strain – aggravated by work – resulting in mid back pain – work related – permanently unfit for certain types of work – 15% back impairment.
·Dr Wallace 8 January 2003 – musculoligamentous strain at lumbar spine – musculoligamentous [strain] at her thoracolumbar spine – not fit to return to full pre-injury duties as a receptionist – 17% back impairment – 5% loss of use of the left leg – 10% loss of use of the right leg – 15% loss of use of sexual organs.
·Professor Oakeshott 12 March 2003 – no objective clinical evidence of any physical injury or underlying pathology caused at work causing any incapacity – complete and permanent recovery from any injury at work.
·Dr Trevitt 10 December 2004 – soft tissue injury and aggravation of degenerative changes – aggravation by work has ceased – 10% impairment of back related to degenerative changes – fit for light and varied activities on a full-time basis – ideally partly sedentary and with freedom to move about as she wished – symptoms unlikely to change.
The employer sought to rely on the documents produced by Dr Salmon in response to a Notice to Produce Documents. These were received by the Arbitrator and reference was made to them by counsel for the employer.
Dr Salmon first saw the worker at the request of her local doctor on 16 May 2001. She complained of having back pain for five months. She told Dr Salmon of the injury in December 2000 and the further injury in January 2001. When she saw him in May 2001 she said she had mid back pain which was much more severe than the low back pain which had settled. Dr Salmon thought she had a musculoskeletal injury of her thoracic spine. He arranged for an MRI to be carried out and also referred her for pain management counselling. She continued to see Dr Salmon on a regular basis.
On 26 March 2003 Dr Salmon saw her with complaints much as they had been in the past. She continued to attend Pilates and was working 14 hours per week and coping. The last report of Dr Salmon is that of 19 May 2003. The worker’s syndrome was said to be unchanged. She continued to complain of tingling and numbness in the legs and soles of the feet. She was attending physiotherapy. She was working 7 hours a day twice a week but prolonged standing exacerbated her pain. Her syndrome and her management were discussed in detail and she was to continue her current management.
THE DECISION OF THE ARBITRATOR
Because of the large number of submissions made by Icontact in relation to asserted errors on the part of the Arbitrator, it is I think desirable to set out in some detail what the Arbitrator decided.
Firstly she noted that neither party had filed a copy of the award of O’Toole J in the related proceedings in which an award for 10% permanent impairment of the worker’s back was made. The issues for the Arbitrator were said to be:
·Was the worker totally or partially incapacitated for work as a result of her injuries?
·For what period was she totally incapacitated?
·For what period was she partially incapacitated?
·In respect of any period of partial incapacity for work, what are the probable earnings (section 40(2)(a)), what amount is the worker able to earn in suitable employment (section 40(2)(b)) and was the worker seeking suitable employment during any period of partial incapacity (sections 38, 38A and 52A).
The Arbitrator decided that the worker was partially incapacitated from 25 June 2003. The Arbitrator applied the decision of Mitchell v Central West Area Health Services (1997) 14 NSWCCR 526 (‘Mitchell’) in determining the amount to which the worker was entitled under section 40. The Arbitrator went through each of the steps set out in that decision and found probable earnings were as agreed, namely $480.00 per week and found that the average weekly amount that the worker would be able to earn in suitable employment was $300.00 per week which is considerably in excess of the figure which was urged on behalf of the worker. That figure was computed on the basis of 25 hours per week at $12.00 per hour. The mathematical difference was $180.00 per week. The only matter which remained was to consider whether there were any factors which would cause the amount so arrived at to be reduced according to the circumstances of the case. This is the so-called discretion aspect of the exercise. The Arbitrator did not think that there were any external factors or a deliberate intention to increase the likely award of compensation such as to warrant the exercise of discretion to lower this amount. Accordingly, the Arbitrator entered an award at the rate of $180.00 per week from 25 June 2003 to date and continuing. She also found that the employer was liable to pay the worker’s reasonable section 60 expenses without attempting to quantify these. It appears that sections 38, 38A and 52A had no application and the reference to them in the list of issues in dispute is obscure.
SUBMISSIONS ON APPEAL, DISCUSSION AND FINDINGS
An appeal against the decision of the Commission constituted by an Arbitrator is, by reason of section 352(5) of 1998 Act, by way of review of the decision appealed against. Such review has been held to be by way of re-hearing and not a hearing de novo. Accordingly, it is necessary to demonstrate some error on the part of the Arbitrator in a matter of law, fact or discretion. It is not to the point that the Presidential Member hearing the appeal decides that he or she might have come to a different conclusion on the facts of the case.
Extensive submissions have been made on behalf of Icontact and it is convenient to deal with those related to the first two grounds of appeal together. The question of the exercise of the section 40 discretion will be considered separately.
The findings of the Arbitrator which are attacked relate to her finding of incapacity, the medical evidence in support of it and the nature of the workers’ pre-injury employment. It is said that the Arbitrator did not carefully examine what the worker’s pre-injury duties were, did not discount the opinions of Drs Berry and Wallace, did not look at the issue of there being two separate injuries only one of which was relied on, misstated part of Dr Salmon’s report of 19 May 2003 and placed some reliance on the award of O’Toole J in coming to her conclusion regarding incapacity. It is also said that the Arbitrator erred in not accepting the opinion of Professor Oakeshott and Dr Trevitt.
In my view, the answers to these attacks are as follows:
(a)The Arbitrator had regard to the worker’s evidence as to her duties and the symptoms she had. The Arbitrator also relied on the opinions of Drs Berry, Wallace and, perhaps more importantly, that of Dr Salmon. Although the Arbitrator did paraphrase Dr Salmon’s conclusion regarding fitness for work saying that “at that stage 14 hours work per week was probably the limit of her capacity”, this was not substantially different from what Dr Salmon had in fact said, namely “she is working seven hours per day, twice per week, but the prolonged standing exacerbates her pain”. In any event, the determination of the Arbitrator was not in accordance with the supposed expression of opinion by Dr Salmon.
(b)Although the opinion of Dr Berry is criticised because of its age, that opinion was but one of three medical opinions which supported the worker to some extent. It is further submitted that the opinion of Dr Wallace ought to be discounted because he had found a greater degree of impairment than that found by O’Toole J. By the same token the opinions of Professor Oakeshott and Dr Trevitt are also at variance with the award of O’Toole J and it cannot, it appears to me, be relied on consistently with the decision of the Compensation Court.
(c)It is said that the Arbitrator erred in regarding the award of O’Toole J as a factor on which she was entitled to place weight in reaching her conclusions regarding the extent of the worker’s partial incapacity. This is said to be an error of law or fact. No authority is cited for this and I think there is no substance in this line of attack. It goes without saying that the determination to be made under the former section 66 of the 1987 Act as to impairment of the back is quite a different question from that which is required to be answered in finding incapacity within the meaning of section 33 of the same Act. In my opinion, the Arbitrator clearly appreciated this and did not regard the award of the Compensation Court as finally determining the question of incapacity but, rather, was merely a factor to be taken into account. I consider that she did not err in doing so.
(d)The acceptance or rejection of medical opinion is a matter for the Arbitrator. It is not uncommon for medical experts to disagree. When one takes into account the evidence of the worker, both in her statement and that given at the arbitration hearing, it is in my view perfectly open to the Arbitrator to prefer the opinions of the worker’s medical specialists, including the opinion of Dr Salmon, which was relied on for a different purpose by the employer.
(e)Icontact relies on there being two injuries and one only being relied on by the worker. For the worker it is said that there was only one injury and the second was an aggravation of that injury. The worker also submits that this was not put in issue by cross-examination of the worker and I think there is a great deal of merit in that submission. It is clear that the worker suffered injury in December 2000 and whether what happened thereafter is a further injury or an aggravation of the original injury, it would be something for which the employer would be liable. I note that the period of risk of the relevant insurer extended over both dates. It is not clear that the Arbitrator was asked to determine this question and, it appears to me that it is too late now for the employer to seek to rely on this argument.
I do not think that Icontact has demonstrated any error of fact, law or discretion on the part of the Arbitrator in finding the worker partially incapacitated and not able to earn as much post-injury as she could have pre-injury.
The remaining ground of appeal relates to the Arbitrator’s failure to exercise the discretion which it is said she ought, under section 40, to reduce the amount of compensation awarded pursuant to section 40(1) so that the sum awarded bears “such relation to the amount of that reduction as it may appear proper in the circumstances of the case”. Icontact identifies certain factors which it is said ought to have led the Arbitrator to exercise the discretion given by section 40(1). These are:
(a)relocation to an area from which travel to work was more difficult than before;
(b) the absence of continuing treatment; and
(c)not having looked for work in the six-month period preceding the arbitration.
The Arbitrator stated at paragraph 43 that there was no reasonable evidence of external factors or of a deliberate intention to increase the likely amount of compensation such as to warrant the exercise of her discretion to lower the amount of compensation awarded. The worker answers the criticisms of Icontact as follows:
(i)she was only a short drive from Wollongong which is a substantial metropolitan city;
(ii)she could not herself afford to pay for treatment after the insurer declined liability; and
(iii)the worker was still looking for work in newspapers but had ceased driving around looking for work.
I am not persuaded that the worker’s living at Lake Heights has made her employment opportunities less than when she was living at Raby. The Arbitrator was correct, in my view, in accepting the worker’s statement as to why she was not having treatment. As to the third matter, not looking for work: firstly, there is evidence that she was, although perhaps not as actively as she might; secondly there is authority that the failure to seek work is not a matter which is required to be considered at the discretion stage of section 40 of the 1987 Act. In Mitchell the Court of Appeal considered an appeal by the worker from a decision of Egan A-J. His Honour had had regard to the Applicant in that case having made no attempt to seek certain kinds of work and commented that the worker was sitting back waiting on the result of the proceedings or waiting for the CES to hand him a job on a platter. The Court allowed the appeal from the decision of Egan A-J and the following passage in the Court’s judgment is relevant (at 534):
“The discretion [under section 40] is a broad one and it is proper to refrain from endeavouring to define its outer limits. Nevertheless it may be possible to identify a situation where a discretion has miscarried because of reference to an extraneous factor: see R v. Australian Broadcasting Tribunal; Ex Parte 2HD Pty Ltd (1979) 144 CLR 45 at 49. In our view this can be done here, not only because the reasoning discloses a punitive element, but because self-induced diminution of earning capacity lies squarely within the exercise required to be carried out at what we have identified as the second stage. The matters to which Egan A-CCJ referred go directly to the ‘worker’s ability to earn in the general labour market reasonably accessible to the worker’ and are therefore required (by section 40(3)(a)) to be taken into account in the section 40(2)(b) exercise. In consequence, there can be no justification for taking them into account in the additional discretionary phase.”
The principle in Mitchell appears to be equally applicable to the worker’s change of address, however it is not necessary to decide the matter on that basis.
In my view the appellant employer has not demonstrated any error on the part of the Arbitrator in failing to exercise her discretion to reduce the amount of compensation which she awarded pursuant to section 40(1).
DECISION
The decision of the Arbitrator dated 24 May 2005 is confirmed.
COSTS
The appellant employer is to pay the costs of the respondent worker.
Anthony J. Candy
Acting Deputy President
1 June 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ANTHONY J. CANDY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE