Inghams Enterprises Pty Limited v Gago
[2006] NSWWCCPD 295
•6 November 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Inghams Enterprises Pty Limited v Gago [2006] NSWWCCPD 295
APPELLANT: Inghams Enterprises Pty Limited
RESPONDENT: Olga Gago
INSURER:Self insurer
FILE NUMBER: WCC19386-05
DATE OF ARBITRATOR’S DECISION: 27 March 2006
DATE OF APPEAL DECISION: 6 November 2006
SUBJECT MATTER OF DECISION: Leave to Appeal; Section 352(2)(a) of the Workplace Injury Management and Workers Compensation Act 1998
PRESIDENTIAL MEMBER: Acting Deputy President Anthony Candy
HEARING:On the papers
REPRESENTATION: Appellant: Leigh Virtue & Associates, Solicitors
Respondent: White Barnes, Solicitors
ORDERS MADE ON APPEAL: 1. Leave to appeal is refused.
2.The Appellant employer is to pay the costs of the Respondent worker.
BACKGROUND TO THE APPEAL
Mrs Olga Gago (‘the worker’) came to Australia from East Timor in approximately 1994. In 1998 she began working for Inghams Enterprises Pty Limited (‘the employer’).
It appears that the work which she did was process work involving at times the lifting of crates of chicken meat. Whilst so engaged she claimed to have injured her neck and left arm on or about 15 April 2005. The worker saw her general practitioner Dr Sellathurai with a history of developing pain over the lateral aspect of her cervical spine the previous day. She related that to her lifting a heavy tray load of chicken liver while at work. Dr Sellathurai certified her fit for suitable duties from 13 May to 31 May 2005 and then certified her unfit for work from 18 May 2005 to 20 May 2005 and fit for suitable duties from 23 May 2005 to 15 June 2005.
The employer wrote to the worker on 13 May 2005 acknowledging receipt of a notification of injury to her neck and shoulders which was reported, it was said, on 20 April 2005. Provisional liability for the reasonable costs of medical treatment for that injury was accepted pursuant to section 280 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
It appears the worker took three days off work on holidays. It is not clear that any suitable duties were ever given to her however on 7 July 2005 her manager saw her and told her that she was to see her doctor and get a clearance for normal duties. If this did not happen then she need not bother coming back to work. She was further told that unless she was fully fit for employment there would be no light duty employment for her. The worker accordingly ceased work on 7 July 2005 returning to normal duties on 8 August 2005.
Dr Ronald F Clark, orthopaedic surgeon, saw the worker at the request of her general practitioner on 26 May 2005. He obtained the history that she had been lifting an object weighing around 24kgs with the aid of a colleague on 15 April 2005 when she experienced pain in the left side of her neck. She underwent a short course of physiotherapy but with ongoing neck pain. She described symptoms around the base of her neck on both sides with frequent headaches and a feeling of weakness in her arms. She continued to work on normal duties which still required bending and packing in a cold environment. The doctor saw X-rays dated 21 April 2005 which were reported as showing moderate narrowing at C5/6 although this was minimal in nature. Dr Clark considered that an MRI of the cervical spine was required and this was performed on 14 June 2005. This revealed a moderate broad based and left postero-lateral protrusion at C5/6. This the doctor thought may have occurred as described on 15 April 2005 while at work. He noted that her symptoms were slowly improving. He thought she was fit for work of a selected light nature.
The employer had the worker seen by Dr Kim Edwards, a surgeon, on 5 July 2005. The worker told the doctor she had been lifting crates of liver with the help of another worker. She thought she may have done so on about three occasions. Approximately two days later she said she noticed pain in the left side of her neck. On Friday (? 15 April 2005) she did overtime and felt more pain. She went to first aid and an ice pack was applied. After work that day she went to see Dr Sellathurai. She had returned to work the following Monday and continued working. The pain varied in severity. She described the pain as being like a migraine. She had asked for some holidays for three days hoping that this would help but it did not. She said she had more pain when she returned to work. Dr Edwards considered that the MRI of 14 June 2005 showed a left sided C5/6 disc protrusion with minor encroachment on the left C6 nerve root. Dr Edwards considered that the history she gave did not describe any injury. The activity she described that she was lifting crates of liver with the help of another worker did not appear to be significant. He did not think any liability existed for her treatment. Accordingly the employer on 6 July 2005 wrote to the worker denying liability in respect to her claim for compensation. Section 9A of the Workers Compensation Act 1987 (‘the 1987 Act’) was relied on as well as section 4 of the same Act. Reliance was placed on the report of Dr Edwards dated 5 July 2005.
An ‘Application to Resolve a Dispute’ was registered with the Workers Compensation Commission (‘the Commission’) on 14 November 2005. In that application reliance was placed on an injury occurring on the 15 April 2005 together with “nature and conditions of employment”. The period of weekly compensation … … from 7 July 2005 to 8 August 2005 at a claim figure of $650 per week. In addition medical, hospital and related expenses were sought in a sum which was said to be in excess of $300.
The Reply lodged on behalf of the employer on 28 November 2005 specified that “all issues in dispute for the reasons disclosed in documents and evidence.” Attached to that Reply were the reports of Dr Edwards of 5 July 2005 and the report of Dr McGroder of 19 May 2005 and a claim for compensation made by the worker dated 21 June 2005. It is unnecessary to again deal with Dr Edwards’ opinion. Dr McGroder who is a consultant occupational health physician, saw the worker at the request of the employer on 19 May 2005. The worker was employed in the “Tray Pack Section”. The doctor said that she rotated through the various stations and her work involved packing onto the conveyor and occasionally she had to lift crates, which was done as a two person lift. These could weigh up to 15kgs. Dr McGroder was told that the worker was on selected duties until two days ago. She was rotating hourly through packing small pieces of chicken, loading trays and placing stickers on the finished product. Dr McGroder considered that the worker most likely had a musculo-ligamentous strain and possibly enthesophehy, which the doctor described as “attachment inflammation”. The doctor thought that the cause of this was unclear and appeared to come on during the course of her work while she was lifting when she may have jerked her neck in the process. He thought she reacted in a reasonable and consistent manner at examination on that day. Dr McGroder considered that the selected duties that she was doing appeared suitable for her. He thought however a musculo-ligamentous strain should have settled by that time.
The claim form completed by the worker referred to a date of injury of 15 April 2005 which was reported to a leading hand. She had sought first aid on the site and ceased work on 18 May resuming on 20 May 2005. She described what happened as follows: “When lifting crate and packing on carousel.”
There was a conciliation/arbitration hearing before a Commission Arbitrator on 9 March 2006. On this occasion the worker gave evidence and was cross examined. The Arbitrator found in favour of the worker in respect of the closed period claimed. It is against that determination of the Arbitrator that leave to appeal against the decision of the Arbitrator was lodged on 5 April 2006. This Application was rejected on the grounds that reasons were not attached addressing why the leave application of appeal should not be determined on the papers. The Application was re-lodged on 10 April 2006.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 27 March 2006 records the Arbitrator’s orders as follows:
“1.That the Respondent pay the Applicant weekly compensation at the rate of $611.25 per week from 7 July 05 until 8 August 05 under s.38 of the Workers Compensation Act 1987 with credit for any compensation already paid.
2.That the Respondent pay the Applicant’s section 60 of the Workers Compensation Act 1987 expenses on production of accounts and receipts.
3. The Respondent to pay the Applicant’s costs as agreed or assessed.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are:
– Whether the amount at issue on the appeal is at least $5,000.
– Whether the Arbitrator made jurisdictional errors.
–Whether the Arbitrator failed to afford the employer natural justice and procedural fairness.
– Whether the Arbitrator ought to have disqualified herself for bias.
–Whether the Arbitrator erred in failing to give reasons for refusing to admit certain documents which were sought to be relied on by the employer.
–Whether the Arbitrator erred in considering as evidence that which was not evidence.
– Whether the worker had given a consistent history to various specialists.
–Whether the views expressed by Dr Clark satisfied the standard by which the worker was required to discharge the onus of proof.
–Whether the Arbitrator erred in discounting the views expressed by the employer’s doctors.
–Whether the Arbitrator gave adequate reasons for finding that the worker’s employment was a substantial contributing factor to her injury.
–Whether the Arbitrator erred in finding that the worker was incapacitated for work at all for the period claimed.
ON THE PAPERS REVIEW
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.”
The employer seeks a hearing of the appeal on the basis that the matter involves complex issues including jurisdictional issues. The worker submits that the appeal may be decided solely on the basis of the written Application and the Notice of Opposition lodged.
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the worker 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. The submissions made on behalf of the employer in this regard I consider are entirely without merit.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352(2) of the 1998 Act.
This provides as follows:
“The Commission is not to grant leave to appeal unless the amount of compensation at issue on the appeal is both:
(a)at least $5,000 (or such other amount as may be prescribed by the regulations), and
(b)at least 20% of the amount awarded in the decision appealed against.”
In relation to this the employer makes the following submission:
“While the order for the payment of compensation does not quantify the compensation payable the amount at issue in the appeal exceeds $5,000 and represents 100% of the sum awarded, so that the threshold requirements of s.352(2) of the Workplace Injury Management and Workers Compensation Act 1998 (the WIM) are satisfied so as to require the granting of leave.”
The worker submits that the amount at issue on the appeal is not greater than $5,000 and the employer is wrong in asserting that it does. The total of compensation awarded was said to be $2,794.28 being a period of four weeks and four days at $611.25 per week. 7 July 2005 was a Thursday and it appears that the worker returned to work on Monday 8 August 2005. Thus the period is four weeks and two working days. The calculation made on behalf of the worker is approximately correct if a little high on my calculations.
The amount ordered in respect of section 60 expenses is entirely un-quantified. No attempt has been made by the employer to establish what those section 60 expenses were. The bald assertion that the amount at issue on the appeal exceeds $5,000 cannot, it seems to me, be supported. No authorities are relied on by the employer despite a statement in the Application for Leave to Appeal that a list of authorities and copies of unreported decisions are attached.
The legislative intent expressed in section 352(2)(a) of the 1998 Act is clearly that relatively small awards of compensation shall not be subject to appeal. In Grimson v Integral Energy [2003] NSWWCPD 29 at [30] Deputy President Fleming said the following:
“The preferred interpretation, in my view, is that the Commission, constituted by a Presidential Member, may grant leave only to appeal against a decision of an Arbitrator where there is an amount of compensation at issue on the appeal that is (a) at least $5,000, and, if a monetary award has been made, (b) at least 20% of that award. The ‘… amount of compensation at issue on the appeal’ is determined by reference to the amount of any monetary award made by the Arbitrator or, where no monetary award is made, the amount of the claim as particularised by the Applicant.”
The onus is on the employer to establish that the monetary threshold is met before leave to appeal may be granted. This has not been done in this case. Accordingly leave to appeal is refused.
DECISION
Leave to Appeal is refused.
COSTS
The Appellant employer to pay the costs of the Respondent worker of the appeal.
Anthony Candy
Acting Deputy President
6 November 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.
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