Issott v North Sydney Leagues Club Ltd t/as Seagulls Club
[2005] NSWWCCPD 38
•16 May 2005
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Issott v North Sydney Leagues Club Ltd t/as Seagulls Club [2005] NSW WCC PD 38
APPELLANT: Jannette Issott
RESPONDENT: North Sydney Leagues Club Ltd t/as Seagulls Club
INSURER:GIO Workers Compensation Ltd
FILE NUMBER: WCC 12506-03
DATE OF ARBITRATOR’S DECISION: 25 May 2004
DATE OF APPEAL DECISION: 16 May 2005
SUBJECT MATTER OF DECISION: Weight of evidence; determination of ‘injury’ under section 4 of the Workers Compensation Act 1987, and binding nature of Medical Assessment Certificate of an Approved Medical Specialist.
PRESIDENTIAL MEMBER: Acting Deputy President Moore
HEARING:On the papers
REPRESENTATION: Appellant: Whitelaw McDonald Solicitors & Attorneys
Respondent: Turks Legal
ORDERS MADE ON APPEAL: The decision of the Arbitrator is confirmed.
No order as to costs.
BACKGROUND TO THE APPEAL
Jannette Issott, (‘the Appellant Worker’), was employed by North Sydney Leagues Club Limited (Seagulls Club), (‘the Respondent Employer’), as a casual waitress from 28 August 2001 to 14 September 2002. She worked approximately 20 hours per week in shifts ranging from three to four hours.
She claims she developed symptoms in her neck within the first month of her employment and that these symptoms became so severe as a result of her work duties on 1 September 2002, that she was ultimately forced to cease work on 14 September 2002. She has not resumed any employment.
She made a claim on the Respondent Employer’s insurer, and liability was initially accepted for payment of weekly benefits and section 60 expenses. Liability was then declined from 12 December 2002 on the grounds that “your employment is not a substantial contributing factor under section 9A”.
On 23 July 2003, the Appellant Worker filed an Application to Resolve a Dispute seeking reinstatement of weekly benefits and section 60 expenses and subsequently, permanent loss compensation.
At a teleconference on 4 November 2003, directions were made as to the further conduct of the matter, including appointment of an Approved Medical Specialist (‘AMS’), production of certain documents and the service of various reports and statements.
The matter was listed for an arbitration hearing on 2 April 2004. In addition to documentary evidence, sworn evidence was adduced from the Appellant Worker, and for the Respondent Employer, Catherine Forbes and Kathy Edwards.
A Certificate of Determination was issued on 25 April 2004. The Arbitrator entered an award in favour of the Respondent Employer having determined that the Appellant Worker did not receive an injury arising out of or in the course of her employment with Seagulls Club.
The Appellant Worker lodged an appeal against the Arbitrator’s decision on 21 June 2004. Briefly, the Appellant Worker submits that the Arbitrator did not properly consider the definition ‘injury’ in section 4(b)(ii) of the Workers Compensation Act 1987, (‘the 1987 Act’) and further failed to address the allegation of ‘nature and conditions of employment’ despite it being pleaded as a cause of the Appellant Worker’s injury.
The second ground of Appeal claims that the Arbitrator erred in finding that he was not bound by the assessment made by the AMS, Dr Ashwell, pursuant to section 326 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
The Respondent Employer submits that there has been no error and that the decision should stand.
ON THE PAPERS REVIEW
Both parties have agreed to the Appeal being determined on the papers. Having carefully read all of the documents before me, including the transcript of proceedings before the Arbitrator and the evidence that was before him in those proceedings, and taking into account the submissions made by both parties, I am satisfied that I have sufficient information to proceed ‘on the papers’, and that this is the appropriate course in the circumstances.
LEAVE TO APPEAL
The appeal was filed within time. The amount of compensation at issue on Appeal in this matter exceeds $5,000.00 and is at least 20% of the amount sought in the claim. In Mawson v Fletchers International Exports Pty Limited [2002] NSW WCC PD 5, Deputy President Byron determined that “the ‘decision’ in each instance is not restricted to an ‘award’”. No amount was awarded in the present case, but in view of the above decision, for practical purposes, the amount sought in the present claim satisfies the preliminary threshold requirements of section 352(2).
Leave is granted to appeal
SUBMISSIONS AND EVIDENCE
The power of a Presidential Member of the Commission on Appeal to revoke a decision is exercisable only when it can be demonstrated that the decision of the Arbitrator is affected by a legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172).
The Appellant Worker argues that the Arbitrator erred in determining she had not suffered an injury within the meaning of section 4 of the 1987 Act.
The Appellant Worker submits that, in determining that there was incontrovertible medical evidence that she suffered from a severe degenerative condition in her neck for a long time, the Arbitrator failed to properly address the impact of her ‘nature and conditions’ allegation on that condition.
She submits that the Arbitrator failed to enquire whether ‘any symptoms she currently experiences’ were as a result of her underlying condition or arose as the result of an aggravation, acceleration, exacerbation or deterioration caused by her employment.
The onus is on the Appellant Worker to establish that she suffered ‘injury’ within the meaning of section 4 of the 1987 Act. In this case, she claimed both injury simpliciter on 1 September 2002 and ‘from 28 August 2001 to 1 September 2002’.
As the Respondent Employer quite properly submits, the first fact-finding investigation for the Arbitrator is to determine what employment the Appellant Worker carried out. The Arbitrator noted (paragraph 19):
“At the hearing the focus of the Application revolved around the 1 September 2002. There was no specific incident on that date giving rise to the injuries claimed in these proceedings. Rather, the Applicant says that by virtue of the duties she performed on that day, her pain in the neck became much worse”.
An examination of the transcript suggests that there was considerable focus on that particular day. Nevertheless, the Appellant Worker also gave clear evidence that she noticed symptoms about a month after she started work and that “it was just on going” (pages 4 and 5 of the transcript).
As to her duties, under cross-examination, the Appellant Worker disputed that she was rotated throughout her shift, and stated, “when you are on the salad bar, that’s all you do all night – the salad bar” (page 16 transcript). She described the salad bar work as more arduous than other activities since it involved considerable bending and lifting (pages 3 and 4 transcript).
The Arbitrator was certainly cognisant of the Appellant Worker’s duties as she described them. Whilst there was conflicting evidence as to the rotation of tasks, the Arbitrator appears to have accepted the Appellant Worker’s description of her work in the salad bar. He states (paragraph 19 of his reasons) “In short, she says her duties in the char grill required her to continually retrieve steel tubs containing various salad foods, fill bowls and then bend down to replace each tub from where she got it”. Whilst it might be argued that this was in the context of her work on 1 September 2002, the Arbitrator does go on to state, “She says that it was very busy on Father’s Day night in September 2002 and she had to do this type of work [my emphasis] during the whole shift”. He was clearly mindful of the Appellant Worker’s own description of her duties in the salad bar of the char grill in general: she maintained she spent most of her shifts in this type of employment.
Having said that, the Respondent Employer’s lay witnesses, particularly Ms Gloria Zanen disputed the nature of the Appellant Worker’s duties. Whilst conceding that the work in the salad bar “is more physical in lifting and carrying bowls” (paragraph 8 of statement), Ms Zanen stated the Appellant Worker, “would only perform this duty on rare occasions”.
Ms Kathy Edwards stated, “There was a system of rotation... to ensure the duties are varied, eg, a waitress working four nights per week might do one night on the salad bar, one night taking orders, one night on meals and one night on clearing and re-setting”.
Clearly, there was a dispute as to the particular duties the Appellant Worker performed in the ‘nature and conditions’ of her employment.
It is not sufficient for a worker to merely cite the duties, i.e, ‘nature and conditions of employment’ in grounding an allegation of ‘injury’. Similarly, an allegation of ‘on going symptoms’ does not of itself constitute an ‘injury’. There must be clear evidence of aggravation, exacerbation, acceleration or deterioration by those duties to constitute ‘injury’.
In this case, the Appellant Worker gave evidence that within the month of commencing employment, she noticed ‘neck’ symptoms that remained on going with varying degrees of severity until 1 September 2002 when she was struck with severe pain that ultimately led to her incapacity.
She relied on evidence of Dr Ghabrial and radiological material only. (The report of Dr Chakravarty, Gastroenterologist, did not lend any weight to the substantive issue). There was no report from her treating General Practitioner or Chiropractor. The clinical notes suggest she was referred to specialists in Brisbane but no reports were submitted.
The Respondent Employer relied on statements and oral evidence from a number of other employees, together with medical reports of Dr Blue and Dr Watson, and clinical notes from the Robina Parkway Medical Centre. Dr Ashwell, the AMS, issued his report and certificate on 8 January 2004 and that material was also before the Commission.
The Arbitrator’s Reasons make detailed reference to all of this evidence. In short, the Arbitrator noted that the medical imaging reports clearly showed advanced degenerative changes in the Appellant Worker’s neck.
That was not really disputed by the parties. The impact of the ‘nature and conditions’ of her employment and/or any incident on 1 September 2002 on those changes was very much at issue.
Did the Arbitrator err in failing to consider whether the symptomotology that he found to be proven was the result of the ‘nature and conditions’ of employment or a specific injury?
Whilst it is fair to say that the Arbitrator’s consideration of the ‘nature and conditions’ claim is perhaps a little inadequate, it is not such that the decision should be set aside. As Deputy President Fleming found in Wyong Shire Council v Paterson [2004] NSW WCC PD 45, “The Arbitrator’s decision must be read as a whole (Beale v GIO (NSW) (1997) 48 NSWLR 430 at 444) and without combing it for error (Minister for Immigration and Multicultural Affairs v Wu Shan Liang (1996) 185 CLR 259)”. The Arbitrator did not clearly discuss ‘the nature and conditions’ claim in terms of his finding as to injury, but the reasons for his ultimate finding are evident from reading the decision.
The Arbitrator set out at length his reasons for rejecting the opinion of Dr Ghabrial and accepting those of Dr Blue and Dr Watson, and quoted from those reports. Dr Blue opined, “I would sincerely doubt on her given history that these waitressing activities even caused temporary aggravation of her long-term pre-existing C5/6 disc degeneration”. Dr Watson also referred to her long-standing C5/6 disc degeneration and said, “This is constitutional pathology and is unrelated to her employment. There is nothing from her history to suggest that there has been an aggravation nor do I believe there was a temporary aggravation of this pre-existing pathology”.
The Appellant Worker had given no history to Dr Blue of symptoms occurring within one month of starting work, only that she developed neck pain on 1 September 2002, which she attributed to a busy shift with excessive lifting.
A similar history was given to Dr Watson, although he did record a past history of neck symptoms while living in Coffs Harbour. Nothing was said by the Appellant Worker as to the ‘nature and conditions’ of her employment other than on 1 September 2002 upon which a medical examiner may have reached a different conclusion.
No doctor took a detailed description of duties other than Dr Watson. He reported thus:
“On 1 September 2002, the lady developed neck pain. She attributes this to the fact that she was required to do excessive lifting of containers full of plates. It would appear that these containers were approximately two metres long and about half a metre deep. She attributes the pain she was experiencing also to getting steel buckets or containers which contained salads out of refrigerators and had to put them in a fixed position onto a table…”
This accords to some extent with the Appellant Worker’s description of her duties in various sections of the char grill (pages 3 & 4 of the transcript), although the suggestion to Dr Watson was that these duties were carried out on 1 September 2002. Dr Watson nonetheless was of the view that such tasks would not constitute even a temporary aggravation of the pre-existing pathology.
While Dr Ghabrial obtained a history of symptoms developing “around mid 2002”, his conclusion that “I believe that the injury of 28 September 2001 as well as the ‘nature and conditions’ of her employment, with the aggravation of 28 September 2002 is the cause of her present problems and disabilities” is unsound, not simply because of the apparent confusion with dates, but because of his scant treatment of the nature and conditions allegation. He simply records, “she worked as a waitress in a major leagues club, performing heavy activities being an extremely busy place”. No statement as to the nature of the duties was given.
Nothing in either the Appellant Worker’s own evidence nor that of the Respondent Employer’s witnesses suggested that the Appellant Worker undertook “heavy” activities either on 1 September 2002 or generally. They may have been “repetitious” and involve a “jerking motion” and she may have been “busy” (transcript page 3), but the Appellant Worker adduced no evidence that such activities as she described caused an aggravation, acceleration, exacerbation or deterioration of her symptoms.
In the absence of such evidence, it is surprising that the Appellant Worker now complains that the Arbitrator did not address this issue. It seems to me that it was rather the Appellant Worker who failed to address this issue in the substantive proceedings, given the lack of evidence from her treating doctors and chiropractor.
There was no medical evidence to support the Appellant Worker’s contention that the ‘nature and conditions’ of her employment aggravated, accelerated or exacerbated symptoms, other than that of Dr Ghabrial whose report was flawed for the reasons stated above. Dr Ashwell accepted that, “The injury of 1 September 2002 would have only caused exacerbation of the pre-existing degenerative change”. But as to the history, even he only recorded, “Onset of pain…after carrying a wide container full of dirty dishes…”.
But as the Arbitrator quite clearly states (paragraph 52 of his Reasons) “later in his report he says that the advanced degeneration “could have been aggravated by the work situation as with any other activities” (the Arbitrator’s emphasis).
Again, there is no clear evidence that the Appellant Worker’s particular work duties either on 1 September 2002 or over the entire period of her employment did in fact aggravate her condition.
The Arbitrator refers to the clinical records noting that (paragraph 30 of his Reasons) “The Medical Centre records do not say anywhere that the Applicant Worker’s symptoms are work related”. Additionally, the Arbitrator particularly referred to the unreliability of the Appellant Worker’s evidence in certain respects (paragraphs 37, 38, 39 & 40 of his Reasons) and concluded (paragraph 41 of his Reasons) “On balance, I have some doubt as to whether the events alleged to have occurred on 1 September 2002 actually occurred”.
In summary then, the Arbitrator in my opinion quite properly considered section 4(b) of the 1987 Act. The Appellant Worker submits that the Arbitrator failed to distinguish between injury simpliciter and an aggravation, acceleration or exacerbation and has not considered whether the symptomotology he found to be proven was the result of the nature and conditions or a specific injury.
The Appellant Worker’s own evidence did not point to a specific injury, only to a specific increase in symptoms. The Arbitrator quite clearly dealt with the Appellant Worker’s evidence of the nature and conditions of her employment (paragraph 19 of his Reasons) and in accepting the opinions of Drs Blue and Watson specifically rejected the symptomotology as a result of the nature and conditions of employment (paragraph 30) and implicitly dealt with the issues raised in section 4(b) of the 1987 Act. On the evidence before him, it was open to him to do so. The Appellant Worker had failed to adduce sufficient evidence to establish either an injury on 1 September 2002 or an aggravation in the context of section 4(b) of the 1987 Act.
For the reasons stated, there has been no failure by the Arbitrator to address the issue as to whether there was an injury by way of aggravation, acceleration, exacerbation or deterioration of a pre-existing disease.
In my opinion, the Appellant Worker has not demonstrated any legal, factual or discretionary error by the Arbitrator on this issue, and accordingly, that aspect of the Appeal must fail.
Was the Arbitrator bound by the Approved Medical Specialist’s findings as certified?
As to the second ground of Appeal, the Appellant Worker submits that the Arbitrator was bound by the Approved Medical Specialist’s findings as certified, and erred in not doing so.
Under section 326(1) of the 1998 Act.
“An assessment certified in a medical assessment certificate pursuant to a medical assessment under this Part is conclusively presumed to be correct as to the following matters in any proceedings before a court or the Commission with which the certificate is concerned:
(a) the degree of permanent impairment of the worker as a result of an injury,
(b) whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality,…”
Part 7 of the 1998 Act deals with medical disputes. The Appellant Worker submits that section 319 defines ‘medical dispute’ to include, inter alia, “(a) the worker’s condition (including the worker’s prognosis, the aetiology of the condition and the treatment proposed or provided)”.
The Appellant Worker submits that, in the present case, there was a clear dispute, and that the AMS had power to assess any and all of the matters referred to in section 319 of the 1998 Act.
Dr Ashwell determined a dispute, issued a Medical Assessment Certificate (‘MAC’) and determined the Appellant Worker suffered a 4% whole person impairment. That, the Appellant Worker submits, is binding, and the Arbitrator therefore erred in making a finding (no injury) inconsistent with that certificate.
The Appellant Worker submits that in certifying as to the degree of permanent impairment, the AMS certifies that the degree of impairment is as the result of injury, and that accordingly, if there were no injury, there would be no impairment.
However, the ‘injury’ can only ever be that which is asserted by the parties. For example, a worker might state “I fell off the truck and injured my knee”. The employer might say “his mates told us he injured his knee playing football on the weekend”. There may be no dispute that the worker has an injured knee – one injury is compensible, the other is not.
The task of the AMS is medical, and is to resolve a medical dispute between the parties. Unless specifically requested, it is not the role of the AMS to determine whether injury occurred, or occurred in the course of employment or any other of the multiplicity of questions that can arise in determining ‘injury’ within the meaning of the 1987 Act.
In the present case, the referral for medical assessment to Dr Ashwell states, “the matter is referred to you for examination assessment of the worker for whole person impairment…” The question “has the worker suffered an injury under section 4 of the Workers Compensation Act 1987?” was not put to the AMS.
As the Respondent Employer quite properly submits, “clearly the AMS does not have all the evidence produced by the parties such as oral evidence… The issues of fact such as whether in fact there was an incident or the exact nature of the employment is the domain of the Arbitrator”.
In my opinion, the Arbitrator did not err in any way in his determination of the issue of ‘injury’, nor was he bound by the assessment made by Dr Ashwell pursuant to section 326 of the 1998 Act. As the Arbitrator rightly stated (paragraph 54 of his Reasons):
“In this instance Dr Ashwell’s certificate is conclusive evidence about the matters in sub-section 326(1), but is not conclusive evidence on the fundamental question of whether the Applicant has suffered an ‘injury’ within the meaning of section 4 of the Workers Compensation Act 1987. That is a question for the Arbitrator to decide based on the totality of the evidence”.
DECISION
The decision of the Arbitrator is confirmed.
COSTS
No order is made as to costs.
Deborah Moore
Acting Deputy President
16 May 2005
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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