Irigaray v Joe Papandrea Wholesale Quality Meats Pty Limited
[2007] NSWWCCPD 81
•14 March 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Irigaray v Joe Papandrea Wholesale Quality Meats Pty Limited [2007] NSWWCCPD 81
APPELLANT: Elsa Irigaray
RESPONDENDENT: Joe Papandrea Wholesale Quality Meats Pty Limited
INSURER: Employers Mutual Indemnity (Workers Compensation) Limited
FILE NUMBER: WCC16390-05
DATE OF ARBITRATOR’S DECISION: 5 June 2006
DATE OF APPEAL DECISION: 14 March 2007
SUBJECT MATTER OF DECISION: Weight of evidence; Incapacity; Application of Section 40 of the Workers Compensation Act 1987
PRESIDENTIAL MEMBER: Acting Deputy President Deborah Moore
HEARING:On the papers
REPRESENTATION: Appellant: Doherty Partners
Respondent: Edwards Michael Moroney Lawyers
ORDERS MADE ON APPEAL: 1. Paragraphs 1 and 2 of the Arbitrator’s
‘Certificate of Determination’ dated 5 June 2006 are revoked.
2.Paragraph 3 of the Arbitrator’s’ Certificate of Determination’ dated 5 June 2006 is confirmed.
3.The matter is remitted to another Arbitrator for re-determination of all issues.
4.The Respondent is to pay the Appellant’s costs of the appeal.
BACKGROUND TO THE APPEAL
On 3 July 2006, Elsa Irigaray (‘the Appellant’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision of a Commission Arbitrator dated 5 June 2006.
The Respondent to the appeal is Joe Papandrea Wholesale Quality Meats Pty Limited (‘the Respondent’).
The Appellant was employed by the Respondent as a “retail assistant”. Her duties, she claimed, involved serving “… packaged meat to customers. I was also required to cut meat, package meat, place meat in the display counters and carry out general cleaning duties”. The Appellant initially commenced employment on a part-time basis in May 2002 but from about February 2004 worked 36.5 hours per week.
On 17 September 2004 whilst in the course of her employment, the Appellant fell through the floor of the Respondent’s premises to the premises below, a real estate agency, striking a desk and subsequently the floor sustaining injuries to her head, arms and legs. As a result of that incident, the Appellant was taken by ambulance to hospital and discharged approximately six hours later. She remained off work for approximately six or seven weeks and then resumed working two hours per day, three days per week with the Respondent.
The Appellant’s employment was terminated in March 2005.
The Appellant was paid weekly benefits compensation and medical expenses pursuant to the provisions of the Workers Compensation Act 1987 (‘the 1987 Act’) until 23 March 2005.
On 26 September 2005 the Appellant lodged an ‘Application to Resolve a Dispute’ in the Commission seeking weekly benefits compensation, medical, hospital or related expenses and permanent impairment/pain and suffering compensation pursuant to the provisions of the 1987 Act and of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
In its ‘Reply’ filed on 17 October 2005, the Respondent disputed the nature and extent of the Appellant’s injuries and disabilities, and any ongoing incapacity.
The parties attended a conciliation/arbitration hearing on 24 May 2006. On 5 June 2006 a ‘Certificate of Determination’ with an accompanying ‘Statement of Reasons’ was issued. The decision of the Arbitrator was as follows:
“1. Award for the Respondent as regards the Applicant’s claim for weekly benefits.
2. The Respondent to pay the Applicant’s reasonable medical expenses pursuant to section 60 of the Act upon production of accounts and/or receipts.
3. The Respondent to pay the Applicant’s costs as agreed or assessed.”
On 3 July 2006 the Appellant filed her appeal against the Arbitrator’s decision. On 25 July 2006 the Respondent filed a ‘Notice of Opposition to Appeal’.
The grounds of appeal and submissions in opposition will be dealt with below.
LEAVE TO APPEAL
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 amount at issue on appeal satisfies the threshold requirements in section 352(2)(a) of the 1998 Act. No award of compensation has been made (save for section 60 expenses) such that section 352(2)(b) does not apply. (See Mawson v Fletchers International Exports Pty Limited [202] NSWWCCPD 5).
The appeal was filed in time in compliance with section 352(4) of the 1998 Act.
Leave to appeal is granted.
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”.
Both parties submit that the matter is suitable for a determination ‘on the papers’. Having regard to Practice Directions numbers 1 and 6, all the documents that are before me, and the submissions by both parties on appeal, 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 ISSUES IN DISPUTE
The issues in dispute in the appeal can be summarised as follows:
·the Arbitrator’s reliance upon reports of Dr Lim, Occupational Physician, qualified by the Respondent;
·the Arbitrator’s apparent rejection of the evidence of Dr J Beer, qualified by the Appellant;
·the Arbitrator’s treatment of the evidence in relation to incapacity, and
·the Arbitrator’s assessment of the nature and extent of the Appellant’s
injuries.
In essence, the Appellant submits that the Arbitrator failed to give proper weight to the medical evidence in relation to the nature and extent of the Appellant’s injuries and her capacity for employment.
Briefly, the Arbitrator accepted that (paragraph 35) “… the Applicant cannot return to her pre-injury employment, she must be seen as suffering from some incapacity.” The Arbitrator concluded that, despite his finding on incapacity, (paragraph 37) “… I am not persuaded on the balance of probabilities that the Applicant has discharged the onus of satisfying me that finding employment poses any great difficulty.” The Arbitrator found that the Appellant was capable of performing a number of jobs identified as “suitable” in a vocational assessment report, and was thus able to undertake employment that earned her the same or greater than her pre-injury earnings. Accordingly, the Arbitrator concluded that the Appellant had “… no entitlement pursuant to section 40 of the Act.”
THE SUBMISSIONS ON APPEAL
The Appellant submits that the Arbitrator should not have had regard to a report of Dr Lim dated 23 March 2005. In a report dated 28 February 2005, Dr Lim opined as follows:
“Mrs Irigaray presented on 25 February 2005 with widespread areas of chronic pain affecting her right upper and lower quadrants of her posterior torso (including the right nape and right thigh). Her symptoms and the abnormal physical findings were indicative of a chronic pain disorder that was predominately psychosomatic.
It is reasonable to attribute her symptoms to the effects of the accident, viz:
·Multiple contusions.
·Psychological reaction to trauma and subsequent acute symptoms in various parts of her body.
Clinically, the physical effects of the accident have ceased:
· There was no evidence of any relevant physical lesion in the affected parts of her body (the small disc protrusions at C6/7, L4/5, and L5/S1 noted in the MRI were longstanding and did not correlate with her symptoms).
· The abnormal findings were subjective in nature, ie pain and tenderness.”
Dr Lim concluded:
“Unless it can be shown that Mrs Irigaray is malingering, the chronic pain disorder would be deemed to be causally related to her employment, please note that it was not my impression that she was malingering.”
As to her fitness for employment, Dr Lim said this:
“The physical findings on 25 February 2005 indicated that it is now time to offer Mrs Irigaray a graded programme of return to her normal duties. The physical injuries have healed and there is no medical reason why she should not be able to return to the duties of a shop assistant at a butcher’s shop.
The following restrictions may serve as a baseline:
·No heavy lifting, ie not to lift objects heavier than 10 kg.
·To avoid strenuous use of her arms held at or above shoulder level.
·Ideally she should be able to alternate between sitting, standing and walking during the course of her shift.”
In a report dated 23 March 2005 addressed to the Respondent’s insurer, Dr Lim made the following comments:
“Thank you for your letter dated 11 March 2005 in relation to Mrs Elsa Irigaray. I noted there were two video files in the DVD that you sent with the letter … the video clip I watched was of Mrs Irigaray at work on 18 February 2005 between 11:30am and 11:46am. I noted that she performed the duties of a shop assistant quite normally, showing no sign of distress or physical impairment. I also noted that the video clip was taken a week before I examined her.
The video clip of Mrs Irigaray performing her normal duties without any sign of hindrance or distress indicated the continuation of medical restrictions was neither appropriate nor necessary. I would withdraw the opinion I expressed in my previous report about the need for a return to work plan …
My opinion after watching the video clip is that Mrs Irigaray is currently fit for her normal duties, ie without physical restrictions or restrictions in work hours.
Mrs Irigaray does not have genuine ongoing work incapacity. I previously allowed her the benefit of doubt and explained her ongoing work capacity in terms of a chronic pain disorder. I would now interpret any claim of ongoing work incapacity to be contrived, ie an act of malingering.”
The Appellant submits that, at the time of Dr Lim’s second report, she was working for the Respondent two hours per day, three days per week, avoiding lifting more than two kilograms. The Appellant submits:
“The film and investigation reports (contrary to the rules) were not tendered in evidence yet a second report of Dr Lim was incorporated into the Respondent’s case … it was agreed between Counsel for each party and the Arbitrator that no reliance could be placed upon the second report as it was entirely based on the video and/or the investigation report.
Clearly, the Arbitrator placed a reliance upon Dr Lim’s second report despite his proper ruling that such a report could not be incorporated into the evidence.”
The Respondent takes issue with the Appellant’s assertion in this regard. Having viewed the transcript, the Respondent submits that:
“… The concession alleged by the Appellant was never made. It is clear from the transcript that the Respondent did rely upon the two reports to the extent disclosed by the transcript, that the Appellant was aware of such reliance and that the Appellant had opportunity to (and did) address the contents of the reports and the weight which should be attached to them.”
At the hearing before the Arbitrator, no oral evidence was given and Counsel for both parties made submissions recorded in the transcript. Counsel for the Respondent made detailed submissions in relation to both reports of Dr Lim contained at pages 5 to 7 of the transcript. At page 7 of the transcript, this exchange took place:
“(Counsel for the Respondent) … I deliberately left Dr Lim until last because I apprehend [Counsel for the Appellant] will make some remarks about the fact that the Applicant was attempting a return to work with the Respondent when she was, in effect, ambushed by somebody with a camera.
(Counsel for the Appellant) Is that in evidence? Is the film in evidence?
(Counsel for the Respondent) No.
(Counsel for the Appellant) I thought that was part of this set up. If you are going to rely on some video film, are you going to put the video film in?
(Arbitrator) I think that the normal – and I may have to hear submissions, but the normal approach by Arbitrators in these things is if you just get a commentary and no video you can’t put much weight on the commentary that’s my view.
(Counsel for the Appellant) Sure. But how can we regard it if we haven’t seen it?
(Counsel for the Respondent) Well, in the particular context of this case I don’t cavil with it because I am not placing a great deal of emphasis on Dr Lim other than in respect of his assessment of physical disability. But, in any event, as you say, he says he’s seen a video clip which shows 15 minutes of the Applicant at her suitable duties with the Respondent and that that observation causes him to change his mind and he concluded that she is manufacturing physical signs.”
Counsel for the Appellant commenced submissions at page 11 of the transcript. Counsel for the Appellant discussed the reports of Dr Lim at page 16 of the transcript and again at page 20. Counsel for the Appellant pointed out that the film was 15 minutes only of the Appellant performing work “… which, according to the return to work programme prohibits her from lifting more than two kilos.” (page 16).
Counsel for the Appellant submitted that Dr Lim’s opinion that 15 minutes of film effectively destroyed the Appellant’s credit such that he regarded her as a “malingerer” was “preposterous”. At page 20 of the transcript, Counsel for the Appellant said this:
“Just on Dr Lim… the only thing that is – once you change your mind – I mean, he sees her once, and we all know that people have days when their better and days when they are worse. She tells him that she is working in a butcher’s shop two hours a day. I mean, that’s what he sees on the film. What’s so surprising about any of it? It’s not explained, because we don’t see it. And what I said about Dr Lim’s opinion stands. It’s hopeless, it’s grossly inadequate for a medical surgeon.”
The transcript reveals that the Appellant’s submission that it was “agreed” that no reliance could be placed upon the second report of Dr Lim is incorrect. Despite the Arbitrator’s statement (page 7 transcript) that “… I may have to hear submissions …” on this issue, neither party specifically addressed the issue as to whether or not the second report of Dr Lim ought be admitted at all in the absence of the film upon which it is clear the report was based.
Although the Appellant expressed concern as to the admissibility of Dr Lim’s second report, the real issue is the relative weight given by the Arbitrator to that report. There was considerable medical evidence adduced by both parties which the Arbitrator also addressed, to which I will refer in more detail below.
The second ground of appeal raised by the Appellant relates to the medical reports of Dr Beer. The Arbitrator commented on his reports in paragraph 28 of his ‘Statement of Reasons’ in the following terms:
“The radiological examinations … do not substantiate that there is a basis for any major concern and the Respondent’s doctors say that what has been revealed is degenerative, rather than result of the frank incident on 17 September 2004. In this regard, I note that Dr Beer, upon whom she places primary reliance, expresses the view that the Applicant has sustained a soft tissue injury at the L4/5 and L5/S1 levels but has viewed x-rays only. Although his report postdates that of Dr Giblin, Dr Beer does not appear to have seen the M.R.I and bone scan referred to in Dr Giblin’s report of 13 May 2005. It is clear from the reports of Drs Smith, Lim and Edwards that they all had. The same is true of the AMS who lists various x-rays, scans and the MRI of 29 October 2004 as having been seen by him.
On this basis, Dr Beer appears to be at a diagnostic disadvantage.”
The Appellant submits that the Arbitrator’s interpretation of Dr Beer’s reports is wrong.
Dr Beer provided two reports dated 29 June 2005. On page 4 of his primary report under the heading “Investigations” he stated this: “Enclosed are copies of x-ray report see here today.” His second report of 29 June 2005 provided a whole person impairment assessment. In the Appellant’s Application, immediately following Dr Beer’s report, is a series of radiological investigations commencing with an MRI Scan dated 29 October 2004 addressed to Dr Giblin. Also apparently “enclosed” with Dr Beer’s report were a CT Scan of the brain dated 20 September 2004, an ultrasound dated 25 January 2005 and a bone scan dated 30 September 2004.
No comment is made by Dr Beer in his report as to the impact of these radiological examinations on his diagnosis. His reference is to “x-ray report” in the singular, such that it is by no means clear that he had indeed seen all the radiological material which he had “enclosed” with his report.
It was a question of interpretation by the Arbitrator, but again, the real issue is the weight of evidence ascribed by the Arbitrator to Dr Beer’s report.
As to the other grounds of appeal, the Appellant submits that the Arbitrator having found that the Appellant: “Does suffer an incapacity for employment which restricts her from returning to her pre-injury employment”, failed to identify the nature of her incapacity, “… which body parts are affected and how they are affected.”
In relation to the claim under section 40 of the 1987 Act, the Appellant identifies a number of claimed errors by the Arbitrator as follows:
“The Arbitrator makes much of the worker’s ability to find work in 2002 with ‘apparent ease’. This ignores the following matters:
(1) The work Mrs Irigaray found in 2002 was only of a part time nature for two years until she was made a fulltime employee.
(2) In 2002 Mrs Irigaray’s restriction in job searching was her lack of English, whilst since her accident she is further burdened by incapacity flowing from her right arm, neck and low back.
Any attack upon her motivation to seek employment is misguided. Her return to a rehabilitation trial was progressing satisfactorily until her employer withdrew the selected duties.
The Arbitrator’s statement (paragraph 29) that ‘she was working in her pre-injury employment on 18 February 2005 when the video was taken’ is a gross misstatement. She was in fact serving customers two hours per day, three days per week with a lifting restriction of two kilograms.”
As to the Appellant’s attempts to find employment, the Appellant makes the following submissions:
“As to [the Arbitrator’s] findings (paragraph 40(d) ‘that the Applicant does not provide a history of recent job searching (including obstacles met) which could enable her to meet the onus of proving, on the balance of probabilities, that she could not find employment now as easily as she did in 2002’ the following matters are relevant:
(i) This was not a submission raised by the Respondent nor canvassed by the Arbitrator at the Arbitration.
(ii) The Respondent’s expert evidence (VCC report 30 November 2005) [the Respondent’s Vocational Assessment Report] includes the following opinions:
(a) ‘Mrs Irigaray does appear to be motivated to return to work and is actively job seeking’.
(b) ‘Mrs Irigaray appears to have made genuine efforts to seek alternative employment’.
(c) ‘Referral to a vocational rehabilitation provider could assist her to locate employment through the provision of training in English and office related software’ (this has never been provided).
(iii) The Applicant was diligently pursuing her suitable selected duties when dismissed by the Respondent.”
In brief, the Appellant takes issue with the Arbitrator’s application of the principles set out in Mitchell v Central West Health Service (1997) 14NSWCCR 527 (Mitchell) in determining the Appellant’s claim pursuant to section 40 of the 1987 Act.
I will canvass the issues raised by the Appellant in her submissions more fully below when considering the Arbitrator’s ‘Statement of Reasons’.
The final ground of appeal raised by the Appellant is this:
“The Arbitrator appears doubtful that the worker fell four metres through a ceiling as the office next door. This flies in the face of the Ambulance Records which note a four metre fall as does the Registrar at Liverpool Hospital as does Mrs Irigaray in her statement as does Dr Giblin.
This approach is reflected in the heavy quoting of the reports of Doctors Smith, Edwards and Dr Lim’s irrelevant second report against the wrongly underweighted opinion of Dr Beer and the clear views of the treating doctor, Dr M Giblin.”
It is true that the Arbitrator did indeed express some doubt about the height of the fall. At paragraph 3 of his ‘Statement of Reasons’ he said this:
“The Applicant had the misfortune to suffer a surprising and somewhat spectacular accident when she fell through the floor of her employer’s storage room into the real estate agents premises below.
Although the fall has elsewhere been described as being about 4 metres, this would seem to be unlikely, especially as the Applicant’s statement (paragraph 25) states ‘I believe I fell approximately two and a half metres landing on my back onto an office desk.’
A fall of 4 metres would appear to be even less likely having regard to the fact that one would expect the desk to be raised from the floor.”
Again, the real issue is whether the Arbitrator’s suspicions as to the height of the fall add any real impact on his ultimate findings as to incapacity, that being the only issue in dispute (together with a claim for section 60 expenses) to be determined by him.
THE ARBITRATOR’S REASONS
The Arbitrator first considered the medical and other evidence before him and both parties’ submissions before concluding as follows:
“28.(a) I already said that this was an unusual matter, both as regards the injury itself and in other ways.
(b)The Applicant’s history of a strong work ethic and her having returned to work after her accident contrasts with the strong views of Doctors Smith, Edwards and Lim as to exaggeration. Their views have, moreover, apparently been derived at as a result of observations of voluntary and involuntary movements rather than as a result of any subjective process. The report of the AMS is closer to the views of the Respondent’s doctors than to those of Dr Beer, at least as regards levels of permanent impairment.
(c) It was submitted on behalf of the Applicant that Dr Edwards, in particular, was unsympathetic to Ms Irigaray, in his role as a Respondent’s doctor. I note however that the AMS specifically states that he is:
‘In agreement with the report made by Dr Kim Edwards … except I found limitation of movement of her right shoulder which is attributable to the injuries sustained on 17 September 2004’.
(d) The radiological examinations … do not substantiate that there is a basis for any major concern …
On this basis, Dr Beer appears to be at a diagnostic disadvantage [see paragraph 32 above].
29.As regards to the Applicant’s physical working capacity:
(a) She was working at her pre-injury employment on 18 February 2005 when the video was taken.
(b) Dr Beer concedes that, at the date of his report, the Applicant could ‘take up part time work on light duties’.
(c) Dr Giblin anticipates that by the time of this arbitration, the Applicant ‘should be back to some form of Sales Assistant work part-time provided it does not involve repetitive bending, heavy lifting or prolonged sitting or standing.’
(d) Dr Smith sees the Applicant as ‘fit for her usual duties as a Shop Assistant’.
(e)Dr Lim says ‘she does not have genuine ongoing working capacity’.
(f)Dr Lim says ‘the physical effects of the accident have ceased.’
(g) The AMS regards the soft tissue injuries arising from the accident as being ‘completely resolved’.
(h) Whilst the Applicant went back to her pre-injury employment for two hours a day, three days a week, the CRS Report attached to the Application contemplated a ‘return to pre-injury Sales Assistant duties on a full-time basis (same job/same employer) starting with suitable duties for 15 hours per week in November 2004.’
(i) The V.C.C Report does not however, see above, see the Applicant as being ‘currently capable of returning to her pre-injury job as a Sales Assistant in a butcher’s shop.’
30. Taking the Respondent’s case at its highest, the Applicant could return to her pre-injury employment on a fulltime basis. Alternatively, if the V.C.C Report limitations are accepted, she is capable of undertaking full-time employment pursuant to any of the V.C.C job match scenarios, resulting in no loss of income.
31. In relying on the limitation that V.C.C asserts, the Applicant is in no position, as it were, to have the best of both worlds, and assert that the remainder of the V.C.C Report as to the Applicant’s ongoing physical capacity for work is not correct. Apart from that, the V.C.C Report is somewhat more favourable to the Applicant than the views of the AMS and Doctors Smith, Edwards and Lim.
32. The V.C.C Report pre-dates the MAC by about four months, so the author did not have the benefit of reading the MAC. It is however a Functional Assessment which concentrates on different criteria to the assessment of Whole Person Impairment.
33. Any functional impairment of the right shoulder must of necessity have been taken into account by V.C.C in arriving at its job match recommendations and that the Applicant must be seen as capable of performing the nominated types of employment.
It is also the case that the thrust of the medical reports is not that the Applicant’s condition was likely to deteriorate but that it would continue to improve, or that she had recovered.
34. The Applicant’s statement (one of two) dated 16 October 2004 indicates that she returned from her native Uruguay to Australia ‘in 2002 with my husband’. In the same statement, the Applicant says that she found employment with the Respondent ‘in May 2002’. Starting off ‘working casual hours but from about February 2004, I worked the hours of 36.5 per week.’
It would appear to follow that at a time when she was 49 or 50 years of age, her English not being any better than it would be now, the Applicant (ignoring any employment that she might have had before this and as regards which I have no evidence) was able at worst to find employment within a few months of returning to Australia.
35. Whilst the Applicant urges upon me the difficulties which the Applicant might find in seeking further employment, these submissions are inconsistent with her history in 2002 and I note that the recommendations cover a relatively broad spectrum.
Given that I accept that the Applicant cannot return to her pre-injury employment, she must be seen as suffering from some incapacity. If, however, one accepts the appropriateness of the V.C.C recommendations, then the Applicant has the capacity to earn an amount equal to her probable earnings if she had remained in the employment of the Respondent.
36.I have carefully considered the Applicant’s submissions as regards the
number of hours per week for which the Applicant could work. I have already noted that 15 hours was thought to be appropriate in September [sic] 2004 whilst neither Dr Beer nor Dr Giblin assists the Applicant by amplifying the phrase ‘part-time’. Neither has been invited to review the V.C.C. Report and the Applicant is left with its job match findings which relate to full-time employment. Given the physical capacity to undertake fulltime employment, the outstanding issue for the Applicant is the capacity to find the employment. Whilst the Applicant has a solid work history, did return to her pre-injury employment and asserts that she has been looking for new employment, there is no real detail in evidence as to her job searching activity.
The prompt return to work is, at the same time, something of a two-edged sword. It is testimony not only of the Applicant’s work ethic but of her working capacity.
37. What is before me is the views as to exaggeration of Doctors Smith, Lim and Edwards and the comment by the AMS that he agrees with Dr Edwards, except to a limited extent.
Taking these factors into account, together with the apparent ease with
which the Applicant was able to find employment as a 49 year old, I am not persuaded on the balance of probabilities that the Applicant has discharged the onus of satisfying me that finding employment poses any great difficulty.
38. I do not intend to go through all the steps enunciated in [Mitchell] but deducting any one of the earning levels set out in the V.C.C job match from the probable figure of $500.00, results in their being no entitlement pursuant to Section 40 of the Act.”
In summary, the Arbitrator concluded at paragraph 40 that the Applicant:
(a)“Does suffer an incapacity for employment which restricts her from returning to her pre-injury employment.
(b)This incapacity of the Applicant does not restrict her from employment in any of the job match areas specified in the V.C.C Reports in evidence.
(c)The Applicant’s history does not suggest that there is any realistic or long-term impediment to her finding employment in one of the areas specified in the V.C.C Report.
(d)The Applicant does not provide a history of recent job searching (including obstacles met) which could enable her to meet the onus of proving, on the balance of probabilities, that she could not find employment as easily now as in 2002.
(e)Given the earning levels in the job match particulars, the Application of the principles in Mitchell’s case would result in the Applicant having no section 40 entitlements;
(f)The Applicant is entitled to recover her reasonable medical expenses pursuant to Section 60 on production of accounts and/or receipts. “
THE REVIEW
My role as Presidential Member on review of an arbitrator’s determination has been the subject of a number of decisions in the Commission. Most recently, as Deputy President Roche said in Berry v Department of Education and Training [2007] NSWWCCPD 75:
“28.The nature of a review and the role and function of a Presidential member on appeal has been considered in many cases in the Commission. In The King Island Company Limited v Deery [2005] NSWWCCPD 1 it was held at [19]:
“19. A Presidential Member on appeal has a specific and limited role in the review of a decision of an Arbitrator. The review is not a rehearing. The Presidential member is not dealing with the matter de novo and is not arriving at a fresh decision based on all of the evidence available at a later time (Coal & 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 to 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.”
29. Before an Arbitrator’s decision will be revoked on review it must by
demonstrated that it contains or has resulted from an error of fact, law or discretion. The error must be such that, but for it, a different decision should have been made (see Snow Confectionary Pty Ltd v Askin [2004] NSWWCCPD 56; Section 294 of the 1998 Act; YG & GG v Minister for Community Services [2002] NSWCA 247; Absolon v NSW TAFE [1999] NSWCA 311).”
These principles must be borne in mind in considering the issues raised on appeal.
THE EVIDENCE, DISCUSSION AND FINDINGS
The Weight of the Medical Evidence
It is clear from the Arbitrator’s ‘Statement of Reasons’ that he did place reliance on the reports of Dr Lim but also it must be said on reports of Doctors Smith, Edwards and a report from the Approved Medical Specialist (‘AMS’) Dr Michael Long dated 7 April 2006. The report of the AMS however was itself the subject of appeal by the Appellant at the time of the hearing before the Arbitrator.
The status of a Medical Assessment Certificate (‘MAC’) was considered by Deputy President Roche in Connor v Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2006] NSWWCCPD 124 where he said as follows:
“51. This section makes it clear that the ‘determination of the dispute’ is to be made by the Commission not by an AMS or an Appeal Panel. That determination can only be made after considering all the evidence relevant to all issues touching on liability. The Commission has “exclusive jurisdiction to examine, hear and determine all matters arising under this Act and the 1987 Act. (see section 105 of the 1998 Act) (emphasis added). To find that the Commission is bound to make an award in the terms of a MAC before all liability issues have been determined would be to strip the Commission of its exclusive jurisdiction to determine all matters arising under the relevant legislation.
52. Whilst the Arbitrator was entitled to have regard to the MAC (including the reasons in the MAC) in determining the injury and causation issues, that is, in determining whether the Appellant Worker’s claimed incapacity and impairment resulted from the incident on 2 March 1998 or from some other non work related event or circumstance, she was not bound to make an award in the terms of the MAC if in her opinion the Appellant Worker had not sustained a compensable injury within the terms of the legislation and consistent with the relevant legal authorities
As Acting Deputy President Harrington said in Director General of Education and Training v Pomeroy [2007] NSWWCCPD 56:
“33. The authorities make it clear that the AMS’s MAC is only binding on the Commission with respect to the assessment of whole person impairment. In respect to issues of causation and incapacity the MAC should be scrutinised and given the same weight as any other relevant medical evidence, which is before the Commission.”
Dr Long, like the other medical examiners, concluded that the Appellant “… Sustained extensive soft tissue injuries as a result of the fall …”. Dr Long found some restriction of movement in the Appellant’s right shoulder attributable to her injury but stated:
“… No other abnormal features were found. Further, it is expected that soft tissue injuries occurring on 17 December 2004 [sic] would have, by the date of this examination, completely resolved.”
As to the question of incapacity, Dr Long made these observations:
“Following her injury on 17 September 2004 she was off work for two months and then resumed light duties and she was then covered by insurance payments. Once the insurance payments ceased in March 2005 her employment was terminated.
She believed she is now capable of working up to four hours a day as a sales assistant.”
Unlike Dr Lim, Dr Long stated that the Appellant “… was co-operative and did not embellish her history.”
Dr Long considered that the Appellant:
“… Sustained extensive soft tissue injuries to her neck and lower back. These have resulted in ongoing posterior neck pain with radiation into the head causing headaches. The pain also radiates into her right shoulder where she has restricted movement because of pain. She also has continuing pain in her lower back which spreads to her buttocks and occasionally radiates into the posterior aspect of her legs … although apparently less severe than her neck pain it does interfere with her activity.”
This evidence then was clearly inconsistent with much of the opinion of Dr Lim.
As to the reports of Dr Lim, as I said earlier, the transcript did not reveal that the parties had agreed, as the Appellant asserts, “… That no reliance could be placed upon the second report …”. As to the video evidence, the Arbitrator made this observation at paragraph 17 of the ‘Statement of Reasons’:
“The circumstances and the nature of the Applicant’s injures are unusual. There are other unusual aspects of the matter such as the Respondent having made arrangements for the video taping of the Applicant, who had returned to work on a two hour, three days a week, basis at her work place. At the time, she appears to have been performing light duties in accordance with medical advice. The video has never been relied upon by the Respondent although it clearly was produced to one of its medico-legal experts, Dr Lim.”
I have already made reference to some extent to both reports of Dr Lim. What is apparent from those reports is this:
·Dr Lim’s initial diagnosis of “… a chronic pain disorder of which psychological factors were predominant” was a diagnosis inconsistent with all other medical reporters.
·Dr Lim’s “withdrawal” of his 28 February 2005 opinion contained in his report of 23 March 2005 was clearly based upon the video he had seen.
As to the first point, it was conceded by Counsel for the Respondent at the hearing before the Arbitrator that:
“Dr Lim, frankly, … is a little bit out in left field … [and proceeds] to make a diagnosis which in the context of all the other medical evidence is somewhat isolated, namely, that the Applicant, in fact, suffers a chronic pain disorder, and he attributes psychological factors to be predominant.” (See pages 5 and 6 transcript).
At page 6 of the transcript, this submission was made by Counsel for the Respondent:
“The point I want to make about this report of Dr Lim’s is, firstly, that he agrees with Dr Edwards and Dr Smith that there is no physical explanation for the complaints being made by the Applicant. He then goes on to make what is, in effect, a psychological diagnosis, which one would have to doubt his expertise to make, but we certainly rely on him in the sense of being consistent with the others that there was no physical sequelae of the accident at the time of that examination. We do not necessarily accept that his mode of opinion about a chronic pain disorder is correct.”
Dr Kim Edwards saw the Appellant at the request of the Respondent’s insurer on 21 July 2005. In his report of the same date Dr Edwards concluded that: “On examination today, I cannot find any convincing evidence of organic disability.” Dr Edwards went on to opine that: “There is evidence of exaggeration or fabrication …” and concluded that the Appellant was, at that stage, “… fit for her usual duties as a shop assistant”. Dr Edwards was of the opinion that the Appellant had some degenerative changes in her cervical and lumbar spines and any aggravation of those changes which may have been caused by her fall had ceased.
I note that Dr Edwards also makes reference to the report of Dr Lim of 23 March 2005 and to Dr Lim’s viewing of a “video clip of Mrs Irigaray at work on 18/2/05 …” Dr Edwards then quotes from Dr Lim’s report that “I noted that she performed the duties of a shop assistant quite normally, showing no sign of distress or physical impairment.” This suggests that Dr Edwards may well have been influenced by Dr Lim’s comments.
The Appellant was also seen by Dr A.L.G Smith on 22 December 2004 again at the request of the Respondent’s insurer. Dr Smith opined that: “Clinical examination demonstrates her to be in no distress” and concluded as follows:
“This woman gives a history that would suggest she suffered a fairly significant injury on the 17/9/04 falling through a roof three or four metres onto a desk which I think would produce an indelible memory. From an orthopaedic point of view, however, she has come to no harm.
She has degenerative disease affecting her neck and lumber spine … and I would be surprised if she did not aggravate these conditions in the fall …
It is conceivable she could have been sufficiently severely affected to be away from work for up to 6 or 8 weeks but after that I would have expected a significant amelioration and an ability to return to her job …
I think she is much better than she makes out she is.
I think that she would be able to return to her old occupation on a fulltime basis and she is fit for that at the moment.”
Dr Beer in his report dated 29 June 2005 considered that the Appellant:
“… Sustained soft tissue injuries to her neck and to her lumbar spine, incurring a degree of disc lesion in the lower cervical spine and the lower lumbar spine at the L4/5 and L5/S1 levels. She sustained a contusion to the brain in this accident as well … the main effects are due to the injury to her cervical spine and lumber spine …
I feel at the moment she is able to carry out part-time light duties if such can be found.
She is not fit to return to the previous duties she was carrying out. She should continue under the care of her local medical officer.”
Dr Matthew Giblin initially saw the Appellant at the request of her General Practitioner, Dr Mohan, on 25 October 2004, approximately six weeks after the accident. Dr Giblin, after arranging for an MRI and bone scan, noted that the MRI:
“… Confirmed a small right disc lesion at C6/7, but no nerve root pressure. She had a small broad based disc protrusion at L4/5 and L5/S1, but at neither level was there any significant nerve root pressure. In his report dated 13 May 2005 reassured her that her problem was not surgical and asked her to continue with physiotherapy and a back strengthening programme.”
Dr Giblin concluded that the Appellant suffered:
“… A soft tissue injury to her cervical and lumbar spine, consequent upon the fall … she remains fit for work that does not involved repetitive bending, heaving lifting or prolonged sitting or standing.
I anticipate that after a period of 12 – 18 months following her accident, she should be back to some form of Sales Assistant work part-time, provided it doesn’t involve repetitive bending, heavy lifting or prolonged sitting or standing.”
The consensus of medical opinion was to the effect that the Appellant had suffered soft tissue injuries to her cervical and lumbar spines in the fall on 17 September 2004. Drs Beer and Giblin were of the view that these injuries impeded her capacity to return to her previous duties with the Respondent. Drs Smith and Edwards disagreed, as did Dr Lim in his supplementary report.
Leaving aside for the moment the “vocational” evidence, and considering all the medical evidence, it is noted that the Arbitrator, notwithstanding the opinions of Drs Smith, Edwards and Lim, ultimately concluded that the Appellant “does suffer an incapacity for employment which restricts her from returning to her pre-injury employment”. The nature of the Appellant’s disabilities and consequent incapacity is not made entirely clear by the Arbitrator, but it seems he accepted the Appellant’s medical evidence to the effect that she suffered soft tissue injuries in the fall on 17 September 2004. Dr Long, the AMS, also considered that the Appellant had sustained an injury to her right shoulder in the fall, and assessed her as suffering “…. 3% WPI (right upper extremity)”.
This was a finding of fact open to the Arbitrator on the evidence before him.
The Appellant’s principal complaint is not so much the Arbitrator’s finding that she did indeed suffer an “incapacity for employment” but rather his finding that, notwithstanding that incapacity, she was not restricted in undertaking employment which would earn her the same or greater than her pre-injury employment with the Respondent.
It is the Arbitrator’s evaluation of the medical evidence, taken with the vocational evidence, and his assessment of the section 40 claim with which the Appellant is particularly aggrieved, and to which I will now turn.
The medical and vocational evidence and incapacity
The Arbitrator concluded that any physical incapacity the Appellant suffered did not restrict her from employment “in any of the job match areas specified in the V.C.C Reports in evidence.”
The Vocational Capacity Centre (V.C.C) prepared a series of reports described as functional and/or vocational assessments. There were four reports completed in November 2005 as a result of assessment of the Appellant on 16 and 17 November 2005. Ms Wild, Physiotherapist, apparently performed “the functional capacity testing” and a Mr Peter Defina, Clinical and Vocational Psychologist, conducted a vocational assessment.
In her report dated 30 November 2005, Ms Wild stated:
“The overall assessment concluded that Ms Irigaray is not currently capable of returning to her pre-injury job as a Sales Assistant in a butcher’s shop. This is as a result of her demonstrative inability to tolerate the physical demands of the job.”
However, it was further determined that Ms Irigaray is suitable for a range of other occupations including alternate sales assistant jobs, with restricted manual handling demands. It should be noted that it is considered that Mrs Irigaray may benefit from mutli-disciplinary pain management therapy to upgrade her functional capacity for employment and improve her coping skills.”
Some other relevant observations in this report are as follows:
“Despite a high level of pain focus behaviour, Ms Irigaray did demonstrate clinical signs of reduced neck, thoracic and lumbar spine mobility … Ms Irigaray demonstrated that she is currently not capable of performing the level of manual handling activity that is required in her pre-injury job.
Ms Irigaray demonstrated that she should be capable of returning to alternate work in the sedentary and semi-sedentary work categories as well as some occupations from the light work category. This would include alternate Sales Assistant jobs, with restricted manual handling demands. Ms Irigaray does appear to be motivated to return to work and is actively job seeking. It is considered that a multi-disciplinary pain management programme may be appropriate for Ms Irigaray. She does demonstrate clinical signs of restriction which would respond to appropriate and supervised exercise … It would be anticipated that Ms Irigaray may be capable of returning to the full range of her pre-injury duties following a successful outcome. However, further functional assessment would then be required to clarify her physical capabilities …
Ms Irigaray’s employment history is suggestive of adaptability and a willingness to undertake any form of employment that is available to her … Ms Irigaray reported that, while she wants to work, she is hampered by her experience of pain.”
Ms Wild concluded that Ms Irigaray’s “current physical and intellectual capabilities, would make her suitable for a number of jobs which did not require formal training such as Sales Assistant – food and drink products, office cashier, betting agency counter clerk, registry clerk or product assembler – light goods. Those occupations apparently paid somewhere between $500.00 and $600.00 per week. Ms Wild concluded that occupations such as a general clerk or receptionist may be available “with formal training”.
Mr Defina in his report dated 16 November 2005 made the following observations:
“In Ms Irigaray’s case, referral for multi-disciplinary pain management therapy may be of assistance in terms of upgrading her functional capacity for employment. Evidence has amounted that focused psychological intervention can improve pain management outcomes by helping pain patients learn self management techniques and build coping skills.
Ms Irigaray appears to have made genuine efforts to seek alternative employment. However, she reported a lack of success to date. She has skills and experience that would suit her for employment in a range of settings, including administrative, retail sales and process work. Referral to a vocational rehabilitation provider could assist her to locate employment through the provision of training and English and office related software, and access to work trial programmes.”
Mr Defina considered that the Appellant’s “… most suitable vocational options are likely to be found in the Elementary Clerical, Sales and Service Workers; and Labourers and Related Workers categories of the Australian Standard Classification of Occupations.”
Much of Mr Defina’s comments and observations mirrored those of Ms Wild in terms of identified “appropriate vocational choices.”
Thus it is clear that the V.C.C. Report identified sales, clerical and similar occupations as being “suitable” for the Appellant. However, it is also clear from the V.C.C Report that both Ms Wild and Mr Defina were of the view that either referral to a vocational rehabilitation provider and/or referral to multi-disciplinary pain management therapy could assist her to locate appropriate employment. Those comments were made in the context of a history from the Appellant that she had been actively seeking employment but had been unsuccessful as at the date of her assessment. I also note that Ms Wild considered that the Appellant would be suitable for Sales Assistant work “… with restricted manual handling demands”.
These comments are of some significance particularly in view of the Arbitrator’s finding that “The Applicant does not provide a history of recent job searching (including obstacles met) which could enable her to meet the onus of proving, on the balance of probabilities, that she could not find employment as easily now as in 2002.”
Dr Beer opined that the Appellant, as at June 2005 was “… able to carry out part-time light duties if such can be found.” Dr Giblin, in May 2005, considered that the Appellant “… remains fit for work that does not involve repetitive bending, heavy lifting or prolonged sitting or standing.” Many of the jobs identified by V.C.C. would clearly involve prolonged standing.
The Arbitrator, in accepting “… the appropriateness of the V.C.C recommendations” appears to have either overlooked or not adequately considered other evidence relative to his determination of the Appellant’s capacity for employment. For example, the Appellant relied upon a medical certificate from Dr Mohan dated 17 October 2005 certifying the Appellant “fit for suitable duties from 20/10/05 – 20/11/05”. In addition, the Appellant told Dr Long in April 2006 that she felt capable of working “… up to four hours a day as a sales assistant.”
In my view, the Arbitrator has taken an overly restrictive view of the evidence inconsistent with, as the Respondent pointed out in its ‘Notice of Opposition’, “… The objects, rules and informal nature of proceedings in the [Commission]”. For example, the Arbitrator’s criticism of both Dr Beer and Dr Giblin for failure to amplify “… the phrase ‘part-time’”. The Appellant had indicated that she was “coping” with the duties provided to her in March 2005 (two hours per day, three days per week) and that at the time she saw Dr Long, she felt capable of performing four hours per day.
Of particular concern is the Arbitrator’s statement that:
“Whilst the Applicant has a solid work history, did return to her pre-injury employment and asserts that she has been looking for new employment, there is no real detail in evidence as to her job searching activity.”
It is clear that the Appellant did not return to her pre-injury employment. She certainly returned to her prior employer but on restricted duties. There is considerable reference in the V.C.C. Reports to the Appellant’s attempts to obtain employment as at November 2005. For example, Mr Defina recorded this:
“I asked Ms Irigaray about her job seeking experiences since that time [March 2005]. She informed me that she had been seeking work as a sales assistant in various stores, such as a butcher, a delicatessen, fruit and vegetables, and a bakery. Some of the potential employers had been Spanish speaking. She has not been successful to date …
I enquired regarding Ms Irigaray’s current vocational aspirations. She replied that she would like any kind of work, but that employment would be difficult for her because she did not feel well. She averred that she would prefer to be employed because the days went faster when she was working, and she did not like to be dependent upon her husband for money”.
Ms Wild had also recorded that: “Ms Irigaray appears to have made genuine efforts to seek alternative employment however, she reported a lack of success to date.”
If the Arbitrator had some concerns as to any “real detail in evidence” of the Appellant’s job seeking activities, it was open to him, in accordance with the principles set out in Section 354 of the 1998 Act to “inform” himself on such a matter.
These comments are particularly pertinent to the Arbitrator’s conclusion that he was “not persuaded … that the Applicant has discharged the onus of satisfying me that finding employment poses any great difficulty (my emphasis).” There was considerable evidence that the Appellant had sought employment since ceasing with the Respondent and that she had been unsuccessful.
The Arbitrator’s ultimate findings appear to be based on two factors firstly, the “… views as to exaggeration of Drs Smith, Lim and Edwards …” and secondly, the “… apparent ease with which the Applicant was able to find employment as a 49 year old.”
The alleged “apparent ease” with which the Appellant obtained employment when she first arrived in Australia is irrelevant since it disregards her capacity to find employment in circumstances where the Arbitrator had determined that the Appellant suffered a physical disability.
The views of Drs Smith, Lim and Edwards as to “exaggeration” must be treated with caution. I have already made reference to my concerns as to the Arbitrator’s acceptance of Dr Lim’s opinion in light of the failure to tender the video evidence. Such assessments are to some extent subjective, although discrepancies on physical examination (as noted by Dr Edwards) are of course valid criteria. Dr Long, as I said previously, considered that the Appellant was “co-operative” on examination and did not “embellish her history.” That may be interpreted as her “work history”, but equally may be interpreted as to her history of symptoms having regard to the totality of his report. Moreover, those reports are in stark contrast to the Appellant’s medial evidence and indeed the V.C.C Report.
The role of Arbitrators in the context of their requirement to act “in accordance with equity, good conscience and the substantial merits of the case” was considered recently by the Court of Appeal in South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 (Edmonds). The Court also considered the issue of the weight to be given to expert evidence and the requirement that expert reports used in the Commission conform to common law standards of admissibility designed to ensure that they have probative value. McCole JA (with whom Giles JA and Tobias JA agreed) made the following pertinent observations:
“87.I have earlier set out the legislative framework in detail. To recapitulate briefly, the jurisdiction the Arbitrator was exercising under s 354 of the WIM Act required proceedings to be conducted with as little formality and technicality as the proper consideration of the matter permitted (s 354(1)). Section 354(4) provided that the Arbitrator was not bound by the rules of evidence but might inform himself on any matter in such manner as he thought appropriate and as the proper consideration of the matter permitted (s 354(2)), enabled him to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms, enabled informal hearings to be conducted. Section 354(6)) enabled him to dispense with a conference or hearing. Section 354 and other provisions give the Commission a wider range of discretionary choices about the procedure appropriate for a particular case than existed under earlier legislation: Aluminium Louvres & Ceilings Pty Limited v Xue Qin Zheng [2006] NSWCA 34 at [22] per Bryson JA (Handley JA and Bell J agreeing).
88. Provisions such as s 354 do not release the Commission from the obligation to apply rules of law in arriving at its decisions: see Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26 at 29 per Gleeson CJ and Handley JA. In Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 at [49], speaking of s 420 of the Migration Act 1958 (Cth) which is in like terms to s 354, Gleeson CJ and McHugh J said:
“49 [Such provisions] are intended to be facultative, not restrictive. Their purpose is to free tribunals, at least to some degree, from constraints otherwise applicable to courts of law, and regarded as inappropriate to tribunals. The extent to which they free tribunals from obligations applicable to the courts of law may give rise to dispute in particular cases, but that is another question.”
89. Even before case management had become entrenched in the Australian legal system, Deane J (with whom Fisher J agreed) said in Sullivan v Department of Transport (1978) 20 ALR 323 at 342-3 of a provision substantially similar to s 354 (s 39 of the Administrative Appeals Tribunal Act 1975 (Cth)) that its objectives would “ordinarily be best achieved by a ready identification of the issues ... in truth, in dispute between the parties” and that “[c]ircumstances may ... arise in which ... a statutory tribunal, in the proper performance of its functions, will be obliged to raise issues which the parties do not wish to dispute and to interfere, either by giving guidance or by adverse ruling, with the manner in which a particular party wishes to present his case”.
90. In Sue v Hill [1999] HCA 30; (1999) 199 CLR 462 (at [42]) Gleeson CJ, Gummow and Hayne JJ said of s 364 of the Commonwealth Electoral Act 1918 (Cth), another “substantial merits - without regard to legal forms or technicalities” clause, that “[such] [p]rovisions do not exonerate the court from the application of substantive rules of law and are consistent with, and indeed require the application of, the rules of procedural fairness.”
91. Having regard to the nature of the dispute the Arbitrator was assigned to determine and the fact his decision directly affected both parties’ private rights he was, in my view, prima facie obliged to act in accordance with the obligations of procedural fairness and natural justice discussed by Deane J in Australian Broadcasting Tribunal v Bondand Others [1990] HCA 33; (1990) 170 CLR 321 at 365 ff; see also Salemi v MacKellar (No 2) [1977] HCA 26; (1977) 137 CLR 396 at 419 per Gibbs J (as his Honour then was). He was also, accordingly, obliged “to observe the recognized standards of judicial fairness” (Testro Bros Pty Ltd v Tait [1963] HCA 29; (1963) 109 CLR 353 at 370 per Kitto J) and, in particular, that which required him to bring an impartial mind to the exercise of his decision-making function: see Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka [2001] HCA 23; (2001) 206 CLR 128 at [20] per Gleeson CJ, McHugh, Gummow and Hayne JJ; Australian Broadcasting Tribunal v Bondand Others (at 366 – 367) per Deane J.
92. The Commission recognises its obligation to afford the parties “procedural fairness”, albeit that it couples that proposition with the proviso that Arbitrators “are required to play an inquisitorial role in resolving disputes” and that the “procedural fairness” extended be “consistent with the “inherently inquisitorial character of the process and the objectives of the Commission’s Guidelines”.
Whilst my primary view is that there was no evidence to support the Arbitrator’s determination “… that finding employment poses any great difficulty”, if I am wrong, then I consider that the Arbitrator, in the proper performance of his function, should have raised this issue with the parties in accordance with principles of procedural fairness as set out by McColl JA in Edmonds.
The relative weight to be ascribed to expert medical opinion was also considered by McColl JA in Edmonds where she said as follows:
“130. In Hevi Lift (PNG) Ltd v Etherington at [84] I said (Mason P and Beazley JA agreeing) that “[a] court should not act upon an expert opinion the basis for which is not explained by the witness expressing it”. In so saying, I referred with approval (inter alia) to Heydon JA’s analysis of the admissibility of expert evidence in Makita (Australia) Pty Limited v Sprowles (at [59] – [82]). In that case (at [59]) Heydon JA cited with apparent approval Lord President Cooper’s statement in Davie v The Lord Provost, Magistrates and Councillors of the City of Edinburgh (1953) SC 34 at 39-40 that:
“... the bare ipse dixit of a scientist, however eminent, upon the issue in controversy, will normally carry little weight, for it cannot be tested by cross-examination nor independently appraised, and the parties have invoked the decision of a judicial tribunal and not an oracular pronouncement by an expert.”
131. This statement is apposite in the context of Commission hearings, and, indeed, is implicitly recognised in r 70. While it must be recognised that “[t]here is no legal right to cross-examine an applicant or other witness in the Workers Compensation Commission and decisions whether to allow cross-examination or to limit it are discretionary” (Aluminium Louvres & Ceilings Pty Limited v Xue Qin Zheng [2006] NSWCA 34 at [37]), the fact that cross-examination of an expert witness may be permitted indicates the desirability of expert reports conforming as far as possible to common law standards of admissibility designed to ensure they have probative value. Even if that is too stringent an approach in the face of s 354, as the rules recognise, evidence must be “logical and probative” and “unqualified opinions are unacceptable”
In my view, Dr Lim’s second report did not confirm to common law standards of admissibility since the evidence upon which it was based was not before the Arbitrator such that the report was of limited probative value.
The Arbitrator determined on the evidence before him that the Appellant did “… suffer an incapacity for employment which restricts her from returning to her pre-injury employment.” In those circumstances, the task of the Arbitrator was to then determine the impact of the Appellant’s reduced physical capacity for actually doing work in a labour market in which she was working or might reasonably be expected to work (see Arnott’s Snack Products Pty Limited v Yacob (1985) 155 CLR 171) from 23 March 2005. The Appellant was terminated on or about that date and had not obtained subsequent employment.
Whilst clearly in principle the Arbitrator was entitled to accept a medical opinion before him that, as at March 2005, the Appellant was fit for her pre-injury employment, the difficulty in the present case is that that report (Dr Lim) was based entirely on a video clip which was not in evidence. In rejecting the Appellant’s claim for weekly benefits from 23 March 2005, the Arbitrator has disregarded his own direction (page 7 transcript) that “… in these things if you just get a commentary and no video you can’t put much weight on the commentary.”
In accepting the opinion of the V.C.C. Report, to which he was entitled (although, as I have said, I regard that opinion as ‘qualified’), the Arbitrator has ignored the Appellant’s circumstances between the time her employment with the Respondent was terminated and the time of the V.C.C. assessment in November 2005, and has failed to properly consider the evidence as to the Appellant’s capacity to earn during that period in line with the principles set out in Mitchell.
For these reasons, the Arbitrator’s determination is flawed, and must be set aside.
In these circumstances, it is not necessary to address the Appellant’s other ground of appeal relating to the Arbitrator’s apparent rejection of the assertion that the Appellant fell four metres through the ceiling to the office below. If it were necessary for me to address this issue, I would not regard it as fatal in any way to the Arbitrator’s ultimate determination as to the Appellant’s partial incapacity. There was clearly no dispute between the parties that, whether the fall was two and a half or four metres, it was a significant event. The real issue was the physical consequence of that incident.
CONCLUSION
The Arbitrator’s reliance upon the report of Dr Lim dated 23 March 2005 as the basis for rejecting the Appellant’s claim for weekly benefits from that date was wrong for the reasons stated above, and amounts to an error of law.
Whilst the Arbitrator was prima facie entitled to accept the views of the Respondent’s qualified doctors and the V.C.C. Report (subject to the qualifications to which I have referred), he failed to properly consider the Appellant’s capacity for work particularly during the period March to November 2005 in circumstances where he had determined that the Appellant had suffered a partial incapacity for employment.
The Arbitrator considered erroneous evidence such as the Appellant’s unrestricted (in physical terms) capacity to find employment when she arrived in Australia, and failed to have regard to clear evidence not only as to the worker’s assertions as to her attempts to find employment, (see V.C.C Reports) but also her capacity to undertake fulltime employment (see report of Dr Long). If the Arbitrator considered that that evidence did not provide “real detail” as he said, or failed to address “obstacles met”, it was appropriate for the Arbitrator to raise this issue with the parties.
Given my views as to the report of Dr Lim dated 23 March 2005, in the absence of the video clip, I do not consider it appropriate for me to substitute my own decision as is permitted pursuant to the provisions of Section 352(7) of the 1998 Act. I think the appropriate course is to remit the matter to another Arbitrator for re-determination of all issues.
Whilst no issue is taken by either party on appeal to the Arbitrator’s determination that the Respondent ought pay the Appellant’s reasonable medical expenses pursuant to Section 60 of the 1987 Act, given that the issue of incapacity is to be re-determined, I think it is appropriate that the issue of Section 60 expenses ought also be left for re-determination.
DECISION
1. Paragraphs 1 and 2 of the Arbitrator’s ‘Certificate of Determination’ dated 5 June 2006 are revoked.
2.Paragraph 3 of the Arbitrator’s ‘Certificate of Determination’ dated 5 June 2006 is confirmed.
The matter is remitted to another Arbitrator for re-determination of all issues.
COSTS
The Respondent is to pay the Appellant’s costs of the appeal.
Deborah Moore
Acting Deputy President
14 March 2007
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DEBORAH MOORE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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