J Robins & Sons Group Pty Limited v Ly
[2006] NSWWCCPD 162
•26 July 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:J Robins & Sons Group Pty Limited v Ly [2006] NSWWCCPD 162
APPELLANT: J Robins & Sons Group Pty Limited
RESPONDENT: Le Phoung Ly
INSURER:Allianz Workers Compensation (NSW) Limited
FILE NUMBER: WCC1824-04
DATE OF ARBITRATOR’S DECISION: 8 July 2005
DATE OF APPEAL DECISION: 26 July 2006
SUBJECT MATTER OF DECISION: Date of injury; ‘disease’; weekly benefits compensation; incapacity for work.
PRESIDENTIAL MEMBER: Dr Gabriel Fleming
HEARING:On the Papers
REPRESENTATION: Appellant: Moroney Betts Solicitors
Respondent: Gajic & Co. Lawyers
ORDERS MADE ON APPEAL: Leave to appeal is granted.
The decision of the Arbitrator, dated 8 July 2005, is revoked and the following decision is made in its place:
The matter is remitted to the Arbitrator for a determination of Ms Ly’s entitlement pursuant to section 40 of the Workers Compensation Act 1987, in accordance with these reasons.
BACKGROUND TO THE APPEAL
On 5 August 2005 J Robins & Sons Pty Limited (‘the Appellant Employer’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 8 July 2005. The relevant workers compensation insurer is Allianz Workers Compensation (NSW) Limited. It acted for, and on behalf of, the Appellant Employer in the Commission proceedings.
The Respondent to the Appeal is Ms Le Phoung Ly, who worked as a process worker for the Appellant Employer from 1995 to 2003.
Ms Ly filed an ‘Application to Resolve a Dispute’ in the Commission on 29 January 2004. She sought weekly benefits compensation, lump sum compensation and section 60 expenses. She claims that she suffered an injury that arose out of and in the course of her employment with the Appellant Employer as a process worker in 1997. Ms Ly claims that the injury occurred when she was lifting a box of shoe soles from the factory floor and injured her neck and arms. She reported the injury to the Appellant Employer and to her General Practitioner the same day, 27 May 1997. She gradually returned to normal duties. She accepted a voluntary redundancy from the Appellant Employer on 9 May 2003.
The Appellant Employer denied liability for the claim for weekly benefits and medical expenses and the claim for lump sum compensation.
In relation to the claim for lump sum compensation, the ‘medical dispute’ was the subject of a Medical Assessment Certificate (‘MAC’) dated 1 September 2004, forwarded to the parties on 15 September 2004.
On 5 July 2005, the Applicant’s claim for weekly benefits and medical expenses was determined. The Commission issued a Certificate of Determination on 8 July 2005. It is this Certificate of Determination that is the subject of the appeal.
The Certificate of Determination dated 8 July 2005 also ordered that the matter be referred back to the Approved Medical Specialist for reassessment and a second MAC was issued on 20 July 2005. In a decision, dated 6 September 2005, the Arbitrator determined Ms Ly’s claim for lump sum compensation for permanent impairment. The decision on lump sum compensation is not the subject of this appeal.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 8 July 2005 records the Arbitrator’s orders as follows:
“The determination of the Commission in this matter is as follows:
1. That the Respondent [the Appellant Employer on appeal] pay the Applicant weekly compensation at the rate of:
i. $330.00 per week from 9 May 2003 to 7 March 2004,
ii. $464.00 per week from 8 March 2004 to 1 July 2004,
iii. $250.00 per week from 2 July 2004 to date and continuing.
2. That the Respondent pay the Applicant’s section 60 expenses on production of accounts or receipts.
3. That the matter be referred back to the AMS [Approved Medical Specialist] for reassessment in relation to the claim for lump sum compensation.
4. That the Respondent pay the Applicant’s costs as agreed or assessed.”
ISSUES IN DISPUTE
The Appellant Employer submits the Arbitrator erred in fact, law and/or the exercise of discretion on the following grounds:
1. That the worker’s injury was not the contraction or exacerbation or aggravation of a disease process.
2. That the worker’s injury was not caused by the nature and conditions of her employment.
3. That the worker suffered a frank injury on 27 May 1997.
4. That the “recurrences” of the worker’s symptoms after 27 May 1997 were not further frank injuries.
5. That the worker suffered an injury to her right arm on 27 May 1997.
6. The extent of the worker’s incapacity for work.
7. That the worker could only earn $10.00 per hour in suitable employment in the period 9 May 2003 to 7 March 2004.
8. That the worker’s actual earnings in the period 8 March 2004 to 1 July 2004 were $60.00 per week.
9. That the worker was incapacitated for work from 9 May 2003 to date and continuing as a result of the injury on 27 May 1997.
10. That the worker’s capacity to work for the period 8 March 2004 to 1 July 2004 was less than 20 hours per week.
Both parties have made extensive written submissions on the grounds of appeal.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act, which provides:
“352 Appeal against decision of Commission constituted by Arbitrator
(1)A party to a dispute in connection with a claim for compensation may, with leave of the Commission constituted by a Presidential member, appeal to the Commission as so constituted against a decision in respect of the dispute by the Commission constituted by an Arbitrator.
(2)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.
(3)If the Commission refuses to grant leave to appeal, the Commission must state reasons for the refusal in writing to the parties.
(4)An appeal can only be made within 28 days after the making of the decision appealed against.
(5)An appeal under this section is to be by way of review of the decision appealed against.
(6)Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.
(7)On appeal, the decision may be confirmed or may be revoked and a new decision made in its place. Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.
(8)In this section, decision includes an award, interim award, order, determination, ruling and direction.”
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
The whole of the award of weekly benefits to the worker is in issue. The appeal meets the threshold criteria in section 352(2) of the 1998 Act.
Leave to appeal is granted.
THE RELEVANT LAW
Section 4 of the 1987 Act; ‘injury.
The definition of ‘injury’ in section 4 of the Workers Compensation Act 1987 (‘the 1987 Act’) Act gives rise to the distinction between a simple injury (‘injury simpliciter’), sometimes called a ‘frank’ injury, and a ‘disease’ injury. This distinction has particular relevance for the purpose of determining, by the application of sections 15 and 16 of the 1987 Act, the date on which the injury is deemed to occur. The date of injury will determine liability as between different employers and, in the case of lump sum compensation, the method of assessment of a worker’s entitlement. Section 4 of the 1987 Act provides as follows:
“injury:
(a) means personal injury arising out of or in the course of employment,
(b) includes:(i) a disease which is contracted by a worker in the course of employment and to which the employment was a contributing factor, and
(ii) the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration, and
(c) does not include (except in the case of a worker employed in or about a mine to which the Coal Mines Regulation Act 1982 applies) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942 , or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
Section 4(a) of the 1987 Act: ’personal injury’
The leading authority on the ‘injury/disease’ issue is the decision of the High Court in Zickar v MGH Plastics Industries Pty Ltd (1996) 13 NSWCCR 680 (‘Zickar’) in which Toohey, McHugh, and Gummow JJ gave a joint judgement, with which Kirby J agreed. The case concerned a claim for compensation pursuant to the 1987 Act on the basis that Mr Zickar, whose cerebral aneurysm ruptured while he was at work, had suffered a compensable ‘injury’ pursuant to section 4 (section 4, as considered by the Court in Zickar, was in identical terms to the current provision). It was not disputed that the aneurysm Mr Zickar suffered from, prior to the rupture, was a disease. The question for determination was whether his ‘injury’ was categorised as a frank injury within section 4(a) of the 1987 Act, or a ‘disease’ within section 4(b). The High Court in Zickar found that:
· The definition of ‘injury’ must be read as a whole. If a ‘disease’ does come within the definition in section 4(b) of the 1987 Act it must have been contracted in the course of employment and employment must be a contributing factor (at 697).
· Sections 4(a) and 4(b) are not mutually exclusive and an injury within the meaning of 4(b) may also be an injury within the meaning of 4(a). However in considering section 4 the “first inquiry is whether there has been personal injury” (at 698 and Kirby J at 721).
· The term ‘personal injury’ must “be understood according to ordinary concepts” (at 698), sometimes described as being a “sudden or identifiable physiological change” (at 716). (This is sometimes referred to as a ‘frank injury’ or ‘injury simpliciter’). It should not be given a narrow meaning.
· “…paragraph [4](b) is designed to give an extended meaning to ‘injury’ by going beyond personal injury and to a disease in the circumstances prescribed” (at 698).
· Section 4 does not require that there be an ‘accident’ but that there be an ‘injury’. The injurious ‘event’ may arise from an internal or an external source. In Mr Zickar’s case the ‘event’ that constituted the ‘personal injury’ was the internal rupture of his cerebral aneurysm (at 701).
· The presence of a ‘disease’ does not preclude reliance upon section 4(a) where there is also an ‘event’ that meets the ordinary meaning of a ‘personal injury’ (at 703). A worker is entitled to recover if he or she comes within either limb of the definition of ‘injury’.
· The determination of “[w]hether, in the case of a progressive disease, leading inevitably to a sudden or identifiable pathological change, it can be said that such change constitutes a ‘personal injury’ is a question of fact and “can be left to determination on a case-by-case basis” (at 722).
Zickar has been applied in many cases, see for example: Manning v New South Wales Sugar Milling Co-Operative Ltd [2003] NSWCA 230 where a cardiac arrhythmia was found not to be a ‘personal injury’; Workcover Authority of NSW v Walsh [2004] NSWCA 186 where the ingestion of amphetamines caused a cardiac arrhythmia that was found to be a ‘personal injury’; Kennedy Cleaning Services v Petkoska [2000] HCA 45 (‘Petkoska’) which concerned the Workers Compensation Act 1951 (ACT) but affirmed the application of the reasoning in Zickar to a worker who had suffered a stroke at work. Mrs Petkoska, for some years prior, had suffered from rheumatic mitral valve disease, which is a condition of the heart. Gleeson CJ and Kirby J, after referring to Zickar, said (at 300 [39]):
“All of those cases require that consideration be given to the precise evidence, on a fact by fact basis, concerning the nature and incidents of the physiological change accepted at trial. If this evidence amounts, relevantly, to something that can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state, it may qualify for characterisation as an ‘injury’ in the primary sense of that word.”
The force of the authority of Zickar was reinforced in Petkoska where Gleeson CJ and Kirby J, at [47] said:
“…Zickar is a recent decision of the Court where, as the report indicates, the Court was specially reconstituted to ensure a decision of the entire Court. The point of principle was there reargued before the entire Court precisely to allow an authoritative decision to be given. It ought not to be reopened, especially in so short a time. No basis for doing so has been shown. In our view, the essential reasoning of the majority in Zickar was correct.”
The distinction between ‘personal injury’ and ‘disease’ is less important to the determination of an entitlement to compensation since the enactment of section 9A of the 1987 Act, which requires that no compensation is payable unless employment was a ‘substantial contributing factor’ to the injury. However the distinction remains important for the determination of liability pursuant to section 15 of the 1987 Act, which applies to a “disease, which is of such a nature as to be contracted by a gradual process” and to the determination of liability pursuant to section 16 of the 1987 Act, which applies to an injury that consists of “an aggravation, acceleration, exacerbation or deterioration of a disease”. Sections 15 and 16 only become relevant where the ‘injury’ is found to be a ‘disease’ within section 4 of the 1987 Act. It is possible that the application of the statutory provisions (particularly section 16 of the 1987 Act) may result in the setting of different dates of injury in relation to claims for weekly payments of compensation for incapacity and lump sum compensation for permanent impairment (Alto Ford Pty Ltd v Antaw (1999) 18 NSWCCR 246, cited with approval in Stone v Stannard Brothers Launch Services Pty Ltd [2004] NSWCA 277).
Section 4(b)(i) ‘disease’; Section 15 ‘of such a nature as to be contracted by a gradual process’.
As stated above the determination of whether an injury is an ‘injury simpliciter’ or a ‘disease’ is a question of fact to be determined on a case-by-case basis according to established principles (Zickar). It is not possible to set out hard and fast rules as to which conditions will satisfy either limb of the definition of ‘injury’ in section 4 of the 1987 Act. The pathology of any particular condition will vary according to the circumstances of the employment that are alleged to be causative and the idiosyncrasies of the individual.
Kirby J in Zickar referred, seemingly with approval, to the definition of ‘disease’ as “a pathological condition continuing to operate according to its pathological nature; Hockey v Yelland (1984) 157 CLR 124 at 135 quoting Darling Island Stevedoring & Lighterage Co Ltd v Hussey (1959) 102 CLR 482 at 496” (Zickar at page 715). Other definitions of ‘disease’ offered by the cases do not significantly extend this definition, and are similarly tautological.
It is established law that a ‘mental illness’ or ‘psychological injury’ may be brought within the definition of ‘injury’ in section 4 of the 1987 Act (Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 (‘Federal Broom’); Department of Education and Training v Cathryn Wendy Ingle [2003] NSWWCCPD 18; Jackson v Work Directions Australia Pty Ltd [1998] NSWCC 45; (1998) 17 NSWCCR 70; Thazine-Aye v WorkCover Authority (NSW) (1995) 12 NSWCCR 340; Zinc Corporation Ltd v Scarce (1995) 12 NSWCCR 566).
Where section 4(b)(i) is met then section 15 provides a mechanism for establishing the ‘date of injury’ so that compensation may be assessed. Section 15 does not establish an entitlement to compensation that is separate to the requirement to meet the definition of ‘injury’ in section 4 of the 1987 Act. Section 9A of the 1987 Act imposes the additional requirement that the employment be a ‘substantial contributing factor’ to the injury.
Section 15 of the 1987 Act refers to a ‘disease the nature of which is such as to be contracted by a gradual process’ and does not refer to the phrase ‘nature and conditions’ of employment. This latter phrase does not appear in the workers compensation legislation and it does not always accurately describe the nature of the injury for which compensation is claimed under the Workers Compensation Acts (the 1987 and the 1998 Act). The phrase ‘nature and conditions of employment’ is frequently used, but not synonymous with, either ‘disease’ or ‘aggravation of a disease’ or a ‘disease of gradual process’. As Neilson J has stated in Bowthorpe v Fred Clark Australia (a division of McIlwraith Pty Ltd) [2001] NSWCC 96:
“…the Workers Compensation Act speaks of injury and speaks of disease. It does not speak of ‘nature and conditions’. I have had cause in many judgments to point out that the words are not terms of art. They have been referred to by the Court of Appeal as ‘quaint’. I have repeatedly referred to them as ‘cant’.
…I had cause to comment on the use of the phrase “nature and conditions of employment” as long ago as Mirkovic v David’s Holdings Pty Ltd (1995) 11 NSW CCR 656. A worker must allege either injury or disease. He can, of course, allege both.”
In relation to the facts of that case, Neilson J also commented that:
“Both insurers seek costs against the applicant on the basis that the claim against them was frivolous or without proper justification. When I look at the medical evidence and consider the law there is no justification at all, let alone any proper justification, for bringing proceedings against the two insurers who moved that the proceedings against them be dismissed. If the applicant had turned his mind to the question of whether he had sustained any injury; that is, any sudden onset pathology prior to 1986 the answer would be no. If he turned his mind to whether his conditions were to be categorised as disease then he would realise it was only necessary to join the last insurer of the respondent and not insurers in the dim distant past.
It appears to me that this situation occurred because the worker’s legal advisers just thought about “nature and conditions” without thinking about the law. They therefore applied the lore.”
Clearly it is not always the case that an ‘injury simpliciter’ is alleged to have occurred in circumstances where there is also an underlying disease process (as for example in the ‘heart disease’ cases). In Australia Conveyor Engineering Pty Limited v Mecha Engineering Pty Limited (1998) 17 NSWCCR 309 (‘Mecha’), and Lyons v Master Builders Association of NSW Pty Limited (2003) 25 NSWCCR 422 the facts disclosed that the injury simpliciter initiated a degenerative disease process. In those circumstances, the Court found an injury simpliciter within section 4(a) of the 1987 Act. Consequently, there was no need to have recourse to sections 15 or 16 of the Act (this reasoning is to be preferred to the reasoning in Colliar and Colliar t/as Mid North Coast Mushrooms v Bulley (2000) 19 NSWCCR 302).
In Mecha, Powell J, referred to the ratio of Zickar in relation to the issue of ‘injury’ and ‘disease’ as follows:
“The effect of the decision of the majority is, thus, first that if there can be identified an incident which involves - either by being itself the change, or by bringing about the change - a physical change in the worker, then - even though that change may be no more than the culmination of a progressive disease, and not the product of some external force - that damage is to be regarded as an ‘injury’ within the meaning of par (a) of the definition of ‘injury’ in s 4 of the Act (at 324).
. . .
There thus having been an identifiable incident, which incident appears to have caused, at least, ligamentous injury to the lumbar spine segment, the sequelae of which involved pain, which was, for a time disabling, and which, in any event, has continued over the years, the decision of the majority in Zickar …would seem to dictate that, even if it be the fact that the result of the incident was merely that the worker’s pre-existing back condition was rendered symptomatic, he was nonetheless to be regarded as having sustained an injury within the meaning of par (a) of the definition of ‘injury’ ”(at 325).
In Rail Services Australia v Dimovski [2004] NSWCA 267 Hodgson J stated the position clearly, as follows:
“…the decision in Mecha is to be preferred. Section 16 applies only if the injury ‘consists in’ the aggravation etc of a disease. If there is an event that satisfies paragraph (a) of the definition of injury, and if that is the injury relied on and proved, the circumstance that it aggravated the disease and thus could have supported a case under paragraph (b)(ii) does not mean that this injury ‘consists in’ the aggravation of a disease.”
Section 4(b)(ii) of the 1987 Act: ‘aggravation, acceleration, exacerbation or deterioration’ of a disease; Section 16 of the 1987 Act
The leading authority on the meaning of the phrase ‘aggravation, acceleration, exacerbation or deterioration’ of a ‘disease’ is the decision of the High Court in Federal Broom; applied by the Court of Appeal in Cant v Catholic Schools Office (2000) 20 NSWCCR 88; see also the reference to Federal Broom in the Commission decisions of Marks v Ricegrowers’ Co-operative Ltd [2006] NSWWCCPD 46 (‘Marks’); State Transit Authority of NSW v Bailey [2005] NSWWCCPD 84.
In Marks, Acting Deputy President Lansdowne clearly summarised the facts of Federal Broom as follows:
“39. In Federal Broom the worker suffered the pre-existing disease of schizophrenia. She suffered a slight physical injury at work, which did not cause a long lasting bodily injury, but she became unable to work due to a delusional belief that she continued to suffer bodily injury. Her case was that her employment was a contributing factor in the ‘aggravation’ or ‘exacerbation’ of her disease by virtue of the physical accident causing the development of this new delusion. Her employer appealed to the High Court against decisions in her favour in the Compensation Court and Court of Appeal on the basis that it could not be said employment had caused an ‘aggravation, acceleration, exacerbation or deterioration’ of her pre-existing disease because it was only the symptoms of her disease (being delusions) that had worsened, not the underlying disease itself. The High Court rejected this view.”
In Federal Broom, Kitto J (with whom Taylor and Owen JJ concurred) said:
“The four substantives are not synonymous with each other and a court should assume that it is for the differing shades of meaning of which they are susceptible that the draftsman has chosen to employ them all. They are not all given their true force by asking simply whether the disease has been made worse” (at 634).
Windeyer J took a similar view, stating:
“the words have somewhat different meanings: one may be more apt than another to describe the circumstances of a particular case: but their several meanings are not exclusive of one another. The question that each poses is, it seems to me, whether the disease has been made worse in the sense of more grave, more grievous or more serious in its effects upon the patient. To say that a man’s sickness is worse or has deteriorated means in ordinary parlance, oddly enough, the same thing as saying that his health has deteriorated” (at p 639-640).
In regard to ‘exacerbation’ the Court was unanimous that it was the effect on the worker that was critical, as Kitto J said:
“As applied to a disease it is properly used to refer to effects which the disease produces in the victim rather than the advance of the disease itself to a more serious stage of its development.”
He also cited with approval the comment of Moffitt J in the Full Court of the Supreme Court of New South Wales, the decision in that Court being the subject of the appeal:
“There is an exacerbation of a disease where the experience of the disease by the patient is increased or intensified by an increase or intensifying of symptoms. The word is directed to the individual and the effect of the disease upon him rather than being concerned with the underlying mechanism.”
Whether an ‘injury’ that ‘consists in the aggravation, acceleration, exacerbation or deterioration’ of a ‘disease’ is a question of fact, to be decided in the instant case.
The application of the relevant law to the circumstances of this case is considered below.
CONSIDERATION OF THE ISSUES
Did the Arbitrator err in finding that the worker’s injury was not the contraction or exacerbation or aggravation of a disease process?
In her reasons for decision dated 5 July 2005, the Arbitrator determined the ‘threshold’ issue of whether or not Ms Ly’s injury was:
·due to a personal injury on 27 May 1997;
·was a disease of gradual process resulting from the nature and conditions of her employment; or
·was due to the aggravation (by the 27 May 1997 incident) of a disease process.
The determination of this issue was critical to the issue of liability as there was potentially more than one employer on risk for the relevant period. The Arbitrator found, in part, as follows:
“66.There is, in my view, convincing evidence that the Applicant suffered a frank injury on 27 May 1997 and that it was the lifting incident on that day which can be identified as bringing about the physical change in the Applicant. I find that the date of injury was 27 May 1997 and that the various recurrences since then have merely been symptoms of that pathology. Further I am satisfied that on the evidence the injury arose out of or in the course of her employment.
…
69.… I am satisfied on the evidence that there was an incident on 27 May 1997 which can be identified as involving either by itself being the change or by bringing about the physical change in the Applicant and that the damage from the incident is to be regarded as an injury under s 4 (a) of the 1987 Act.
70.… I do not consider it necessary to determine whether, notwithstanding there was a personal injury on 25 May 1997, the Applicant’s injury was a disease to which the provisions of section 15(1) of the 1987 Act applied or section 16(1) of the 1987 Act applied. However, for completeness, I will deal with some of the submissions put by the Respondent.
…
74.On consideration of the medical evidence in this case I find, on balance, that the Applicant’s injury is not a ‘disease’ as defined in section 4 (b) (i) of the 1987 Act but rather a personal injury arising from a lifting incident on 27 May 1997 . It follows that I do not consider the provisions of section 15 of the 1987 Act are applicable as the Applicant’s injury is not a disease of such a nature as to be contracted by a gradual process.
…
76…[O]n consideration of the medical evidence in this case I find that he Applicant’s injury did not consist of the aggravation, acceleration, exacerbation or deterioration of a disease in section 4(b)(ii). There is no evidence from the Applicant’s doctors, which suggests that the Applicant’s injury involved the aggravation, acceleration, exacerbation or deterioration of a disease. In reaching this decision I have also taken into account the history the Applicant gave to various doctors and her own statements.
…
78…I find that the date of injury was 27 May 1997 and that the various recurrences since then have merely been symptoms of the pathology caused in the 27 May 1997 incident. Further I am satisfied that on the evidence the injury arose out of or in the course of her employment.”
The Appellant Employer submits “…that the incident of 27 May 1997 consisted of the contraction of, or exacerbation or aggravation of, a disease process”. On this basis, it argues, section 15 or 16 of the 1987 Act deem the ‘date of injury’ to be the date of incapacity or date of claim, both of which were not 27 May 1997. If that is the case, then subsequent employers and insurers must be joined to the claim and no liability would rest with the Appellant Employer.
The Appellant Employer relied upon the reasoning of Burke J in Perry v Tanine Pty Limited t/as Ermington Hotel (1998) 16 NSWCCR 253 (‘Perry’) to support the assertion that Ms Ly’s injury was the aggravation of a disease. The worker in that case, Mr Perry suffered from carpel tunnel syndrome and His Honour, Judge Burke was called upon to determine whether this condition, as it occurred in Mr Perry, was an ‘injury simpliciter’(section 4(a) of the 1987 Act) or a ‘disease’ (section 4(b) of the 1987 Act). The resolution of this question was critical for the determination of liability as between the six respondents who had employed Mr Perry from 1986 to 1991 and beyond. Judge Burke referred at [45-47] to definitions of disease as follows
“45. The Macquarie Dictionary defines disease in these terms:
a morbid condition of the body, or of some organ or part; illness, sickness, ailment.
46.A rather indefinite set of criteria for the distinction sought to be drawn in
this matter.
47.Blakiston’s Gould Medical Dictionary has an entrancing mini thesis as its
definition:
1. The failure of the adaptive mechanisms of an organism to counteract adequately the stimuli or stresses to which it is subject, resulting in a disturbance in function or structure of any part, organ or system of the body. 2. A specific entity which is the sum total of the numerous expressions of one or more pathological processes. The cause of a disease entity is represented by the cause of the basic pathological processes in combination with important secondary causative factors.”
In Perry Judge Burke referred to Zickar and to various cases where the “vagaries” of the “dichotomy between personal injury and disease” were highlighted. In my view Perry does not depart from the established principles in Zickar. The most that can be taken from it, is that the determination of whether a particular condition amounts to an injury simpliciter or a disease will inevitably turn on the particular facts of the case. His Honour considered Mr Perry’s employment history and the medical evidence, but this consideration does not form part of the report of the case. Ultimately he found, presumably on the basis of Mr Perry’s evidence of how the injury occurred and the medical evidence of the pathology of Mr Perry’s injury, that carpel tunnel syndrome was “classically a disease process”. As with many workers compensation cases the decision in Perry turned on the application of settled principles (Zickar) to its particular facts.
The Appellant Employer also submits that the Arbitrator erred in the application of Mecha. It argues that Ms Ly’s claim can be distinguished from Mecha in that:
“In that case there was a true frank incident in the form of a fall by a worker that aggravated pre-existing degenerative changes because the incident caused a physical change in the worker. The Appellant employer submits that the present case can be distinguished on the basis that the incident on 27 May 1997 was not a frank injury but simply part of the worker’s normal duties. Further the Arbitrator accepted that the incident on 27 May 1997 brought about physical change in the worker although did not identify the nature of that change.”
If the Appellant Employer’s submission suggests otherwise, it is my view that, while the facts of Mecha are clearly different from this case, there is no principle laid down in Mecha that restricts a finding that an injurious event occurred, to incidents or factors that are outside a “worker’s normal duties”. Whether or not there was an injurious ‘event’ is a matter to be determined on the facts. Whether, as the Appellant Employer submits, Ms Ly already, on 27 May 1997, had a neck and arm injury, does not, without more, mean that she did not also suffer an injury simpliciter as claimed. The incident occurred while Ms Ly was at work, during her normal working hours, and is clearly within the meaning of the phrase ‘in the course of her employment’ which denotes a temporal relationship between the injury and the employment. The contribution of employment to her injury must then be considered pursuant to section 9A of the 1987 Act.
The Appellant Employer argues that the Arbitrator erred in her reliance upon the case of Hawkins v the Commonwealth of Australia (1966) 116 CLR 159 (‘Hawkins’). This is not a persuasive argument on appeal. The Arbitrator’s reference to Hawkins does not disclose any error. Her reference to Hawkins was cited only in relation to its particular facts and she stated, correctly in my view, that; “…it is sufficient to note that it is often dangerous to seek to extract legal principle from earlier decided cases where the facts or medical evidence are arguably similar in some respects”.
The Arbitrator set out the relevant evidence at [19]-[40] of the reasons and I do not repeat it in full here. The Arbitrator’s review of the evidence and her reasons for finding that Ms Ly suffered an injury on 27 May 1997 are found at [55] to [69]. She accepted Ms Ly’s evidence of a “lifting incident on that day which can be identified as bringing about the physical change in” Ms Ly. She was entitled to accept Ms Ly’s evidence and did not err in doing so.
The Arbitrator also found the medical evidence persuasive on the question of whether Ms Ly suffered an ‘injury simpliciter’ on 27 May 1997. Her reasons would have been assisted if she had clearly expressed her view of the medical evidence, in particular her view of the relative weight of the medical evidence and the reasons for her view, rather than simply setting out the medical opinion without comment. Notwithstanding this, it is apparent from the reasons that the ‘convincing evidence’ that Ms Ly suffered a ‘frank injury’ on the 27 May 1997 is:
·Her own account of the incident, including her report of pain, the sudden onset of the injury and the ongoing symptoms of pain and restricted movement from that date.
·The report of Ms Ly’s General Practitioner, Dr Tran, which recorded Ms Ly’s report of the incident on 27 May 1997, as attributed to “lifting heavy boxes” at work.
·The reports of Dr Foong, Dr Habib, Dr Reid and Dr Elliot which recorded a history of the lifting incident of 27 May 1997.
·The report of Dr Ellis, Approved Medical Specialist, which recorded the history of the incident of 27 May 1997.
The Appellant Employer submits that Dr Habib, for Ms Ly, opined that she had suffered a “disease that was contracted by her in the course of her employment”, in his report dated 23 December 2003 (sic-2004). However Dr Habib also opined, in his report of 4 August 2003, that “Mrs Ly did not suffer from neck or upper limb symptoms prior to 02/02/95 and in particular before the 27/05/97 work place incidence, therefore the above impairment /loss of function is substantially the result of the workplace incident of 27/05/89”. When read as a whole the evidence of Dr Habib does not support the Appellant Employer’s argument that the injury of 27 May 1997 was an aggravation of a disease.
The Appellant Employer also submits that:
“…The only other medical evidence addressing the issue of disease were the medical reports of Dr Wilding and Dr Mills. Dr Wilding did not consider the worker to be suffering from a disease of gradual process, although his opinion must be considered in light of Dr Wilding’s opinion that the worker only suffered temporary musculo-ligamentous strains which is inconsistent with the findings of the AMS which were accepted by the Arbitrator. Dr Mills did not address the issue of whether the injury suffered by the worker during the course of her employment with the Respondent was a disease, but simply opined that the worker did not sustain a disease of gradual onset or worsening of her condition since leaving the Respondent”.
The Appellant Employer’s submission does not assist its argument on appeal. Its own medical evidence did not address the argument that Ms Ly suffered an aggravation (etc) of a disease during the incident of 27 May 1997. I agree with Ms Ly’s submission that, if the Appellant Employer’s position was “the injury arose through a disease process. It bore the onus of establishing that allegation”.
In my view the evidence supports the Arbitrator’s findings. It was correct for the Arbitrator to approach the determination of ‘injury’, pursuant to section 4 of the 1987 Act, by first asking whether Ms Ly suffered an injury simpliciter. Having found that Ms Ly did suffer from an injury simpliciter on 27 May 1997, the Arbitrator was not obliged to proceed to ask whether this same ‘injury’ was a ‘disease’ or the ‘aggravation’ (etc) of a disease, within section 4(b) of the 1987 Act. The Arbitrator correctly considered section 4 of the 1987 Act, the relevant cases of Zickar and Mecha and their application to the facts of this particular case. She made findings based upon the evidence. She did not err in distinguishing Perry, as that case was determined on its particular facts and did not depart from decided authority.
Did the Arbitrator err in finding that the worker’s injury was not caused by the nature and conditions of her employment?
I refer to the consideration of the term ‘nature and conditions of employment’ set out above. The Arbitrator was under no obligation to refer specifically to this term. The Arbitrator found that Ms Ly suffered an injury simpliciter on 27 May 1997 and that “the various recurrences since then have merely been symptoms of that pathology”.
The Appellant Employer argues that the evidence of Dr Habib supports the contention that “at least part of the worker’s injury [was] caused by the nature and conditions of her employment. There is no reference to this aspect of Dr Habib’s opinion in the Statement of Reasons and the Arbitrator fell into error by failing to consider this medical evidence”.
Part of the Appellant Employer’s submission may be dealt with summarily. Having found that Ms Ly suffered a frank injury, followed by recurring symptoms of that injury, and giving her reasons for that finding, the Arbitrator did not need to give reasons for ‘not’ finding that Ms Ly suffered a ‘nature and conditions’ injury. I accept the Appellant Employer’s submission, to the extent that the Arbitrator’s reasoning is not clearly disclosed (as discussed above). But I am satisfied that, when reading the decision as a whole, it is clear that she preferred the evidence of Ms Ly and the medical evidence, of Dr Tran and Dr Habib, in particular Dr Habib’s opinion that Ms Ly continued to suffer symptoms of ‘cervico brachial syndrome’ over the years following the incident. These symptoms were referable to the injury simpliciter of 27 May 1997. Following the incident Ms Ly was off work and returned to light duties for a period. From August 1997 she resumed her normal duties. She did not identify any further incident or sudden events at work that precipitated her symptoms in the following years. She reported ongoing symptoms of neck and shoulder pain that intermittently required some form of treatment to give her some relief.
The question of whether Ms Ly’s ongoing pathology, her symptoms of neck and shoulder pain, were the result of an injury simpliciter or the result of a disease process was a question of fact to be determined by the Arbitrator. In my view the evidence was open to analysis in terms of section 4 of the 1987 Act, in different ways. This does not mean that the Arbitrator erred in finding injury simpliciter with ongoing symptoms. As set out above, this finding was open to her on the evidence. Having found that Ms Ly did not suffer a ‘disease’, whether contracted in the course of her employment or aggravated (etc) by her employment, the Arbitrator did not need to rely upon section 15 or section 16 in order to determine the date of injury or liability.
Did the Arbitrator err in finding that the worker suffered a frank injury on 27 May 1997?
This ground of appeal is repetitive and has been dealt with above.
Did the Arbitrator err in finding that the “recurrences” of the worker’s symptoms after 27 May 1997 were not further frank injuries?
This ground of appeal is repetitive and has largely been dealt with above. Ms Ly declared (statutory declaration dated 5 September 2003) that she had ‘numerous recurrences’ of neck and left arm pain following the incident of 27 May 1997. In her 2003 statement Ms Ly complained of pain in the neck and left arm and weakness in the left arm. In her statement of 6 April 2004 she described ‘constant’ pain in the left arm and neck and numerous ‘recurrences’ of pain since the injury on 27 May 1997. Significantly, she does not report any other distinct event similar to the one that caused the acute and sudden onset of pain that she experienced on 27 May 1997.
The Arbitrator’s finding that Ms Ly’s ongoing reports of pain were ‘symptoms’ of her injury was supported by the evidence and flows from the finding of injury by way of sudden onset. I agree with the submission made by Ms Ly’s legal representative, that:
“…The evidence before the Arbitrator clearly showed that whenever the worker experienced painful symptoms they were always at the same precise location as had been the initial injury. The insurer submitted that each of these was a fresh injury. The Arbitrator had to apply her common sense to the matter. She had to consider the probability that the worker could suffer a series of completely new and independent injuries - but always at the same location - or whether it was more likely that the initial injury at that point had effected a permanent change which lay at the root of the several later experiences of pain.”
Did the Arbitrator err in finding that the worker suffered an injury to her right arm on 27 May 1997?
The Arbitrator referred to the assessment of Dr Ellis, Approved Medical Specialist, as follows:
“The assessment of the AMS is conclusively presumed to be correct as to the degree of permanent impairment of the Applicant as a result of the injury. The AMS certified the Applicant as having a 10% permanent impairment of her neck in respect of injury on “27 May 1997 et seq” a 15% permanent loss of efficient use of her left arm at or above the elbow in respect of injury on “27 May 1997 et seq” and a 10% permanent loss of efficient use of her right arm at or above the elbow in respect of injury on “27 May 1997”. Dr Ellis noted that the Applicant “has exactly the same symptomatology and signs on her right shoulder as on the left shoulder but of lesser degree. This has been noted in the treating doctors reports since 1987-88” [sic; 1997-1998].”
The Appellant Employer submits that:
“Dr Ellis [Approved Medical Specialist] assessed the worker as having a 10% impairment of the right arm at or above the elbow in addition to assessments of the neck and left arm in his MAC. The Appellant employer conceded that Dr Ellis was entitled to make a finding of impairment of a body part not referred to him to examine.
However, the Appellant employer submits that the Arbitrator erred in attributing the right arm injury to the incident on 27 May 1997. The only evidence of the worker experiencing symptoms in her right arm was the MAC, which indicated that those symptoms did not commence until 1997-8 i.e. after 27 May 1997. Moreover, there was no evidence that the worker developed symptoms in her right arm as a result of overusing it due to the injury to her left arm on 27 May 1997.”
An AMS is empowered to report upon the ‘matters’ referred for assessment. These ‘matters’ are set out in section 319 of the 1998 Act and include “the degree of permanent impairment of the worker as a result of the injury”. The AMS is not restricted in the assessment of these ‘matters’ referred (Phillip John Carmody v Walter Merriman & Sons Pty Ltd [2003] NSWWCCPD 27; Fraczyk v Spicer Axle Australia Pty Ltd [2006] NSWWCCPD 20). Dr Ellis exercised his expert, clinical judgement to assess the degree of permanent impairment to Ms Ly’s right arm, if that ‘matter’ came within the assessment he was required to make, i.e. of the degree of permanent impairment as a result of the injury of 27 May 1997. Dr Ellis clearly took the view that the pain and symptoms in Ms Ly’s right arm were intimately related to the injury to the neck and left arm. His conclusion on the degree of permanent impairment of Ms Ly’s right arm was conclusively presumed to be correct and binding on the Arbitrator (pursuant to section 326 of the 1998 Act). It would not have been binding if the Arbitrator had found that Ms Ly did not suffer an injury to her right arm, or that such an injury did not arise out of or in the course of her employment. It was open to the Appellant Employer to appeal against the MAC to a Medical Appeal Panel in relation to this assessment, however it did not do so.
Taking into account the evidence of Dr Ellis, the Arbitrator’s conclusion on the cause of the injury to Ms Ly’s right arm was open to her (causation being a matter for determination by the Arbitrator, not the AMS (Wikaira v Registrar of the Workers Compensation Commission of NSW & Anor [2005] NSWSC 954). It is incorrect for the Appellant Employer to assert that the ‘only evidence’ of symptoms in Ms Ly’s right arm following the injury on 27 May 1997 was in the MAC. Dr Ellis refers, in the MAC, to numerous medical reports of pain and tenderness to Ms Ly’s right shoulder, e.g., Dr Lee, Ms Cashmere (Physiotherapist) and Dr Foong. Dr Habib’s report of 13 December 2004 reports that “over the years she continued to suffer from neck pain radiating to the shoulders and developed bilateral arm symptoms of heaviness and weakness”. The weight of this medical evidence attributed the development of symptoms in Ms Ly’s right shoulder to her injury of 27 May 1997.
The Arbitrator did not err in finding that Ms Ly suffered an injury to her right arm on 27 May 1997.
Did the Arbitrator err in finding that the extent of the worker’s incapacity for work?
The Arbitrator found that Ms Ly had an ongoing partial incapacity for work as a result of her injury. She then addressed the five steps set out in Mitchell v Central West Health Service (1997) 14 NSWCCR 257 to an assessment of Ms Ly’s entitlement to compensation pursuant to section 40 of the 1987 Act. She found that Ms Ly was capable of working 20 hours per week from 9 May 2003.
The Appellant Employer submits that the Arbitrator erred in this finding because:
·She accepted the evidence of Dr Habib, which was contradictory on Ms Ly’s capacity to work. She failed to address these contradictions in her reasons.
·She accepted the evidence of Dr Ellis as to her “impairments” and in doing so took into account an irrelevant consideration.
·She failed to consider and give reasons for rejecting the evidence of Dr Mills and Dr Wilding.
·She failed to give sufficient weight to the evidence that Ms Ly was working normal hours prior to accepting a redundancy in May 2003.
The Arbitrator did not refer to the report of Dr Habib dated 4 August 2003 in her reasons. She relied upon the report of Dr Habib dated 13 December 2004, which opined that Ms Ly was fit for light duties of five hours per day, four days per week. Dr Habib’s report of August 2003 does not, as asserted by the Appellant Employer, opine that Ms Ly is fit for her pre-injury duties. The report is clearly directed at an assessment of permanent impairment and recites, as history, not opinion, that “Mrs Ly was considered fit for her pre-injury duties without heavy lifting. She was able to work for 6 years in her pre-injury job after the 27/05/97 workplace accident”. When Dr Habib was required to give his own assessment of Ms Ly’s ability to work in suitable employment, which he did in his report of December 2003, he opined that she was restricted to 20 hours per week. The Arbitrator did not err in giving weight to Dr Habib’s opinion.
There is nothing in the Arbitrator’s reasons for decision to support the Appellant Employer’s contention that she did not appreciate the difference between the concept of impairment and incapacity. The report of the AMS, Dr Ellis, on the degree of permanent impairment suffered by Ms Ly was before the Arbitrator and, in my view, she was entitled to consider the extent of Ms Ly’s permanent impairment as relevant to an assessment of her capacity to work. If nothing else, this assessment provides a context in which the medical opinion of others as to her capacity for work may be considered. The weight of the MAC in relation to this issue will be a matter for the Arbitrator to determine, taking into account the whole of the evidence. Clearly the Arbitrator did not consider the MAC was binding on the issue of Ms Ly’s capacity to work.
The Arbitrator did not err in failing to consider the evidence of Dr Mills or Dr Wilding on the issue of the extent of Ms Ly’s incapacity for work. She set out the evidence on this issue at [93]-[108] in a short but comprehensive summary of the relevant evidence. She was not required to detail every piece of evidence before her. She referred to the contradictory medical evidence, sufficiently, as follows (at [103]):
“There is an obvious conflict on the medical evidence in relation to the Applicant’s capacity for work. In my view, I should give considerable weight to the assessment made by the AMS in this matter in regard to her impairment. I also prefer the opinions of Dr Habib, to the opinions of Dr Reid and Dr Elliott in relation to the issue of incapacity and restrictions at work. A significant factor that leads to this view is that the Respondent’s medical evidence discounts the reality of the Applicant’s impairment and condition and does not accord with my assessment of the extent of her continuing symptoms and disability. I do not accept that the Applicant is capable of performing her former duties without restrictions on either a full-time or part-time basis.”
The above finding on the medical evidence is consistent with the Arbitrator accepting Ms Ly’s own evidence and her view that Ms Ly “impressed me as being forthright and consistent, and I accept her as a truthful witness” (at [94]). The Arbitrator’s reasons would have benefited from expressly referring to the weight she attached to the fact that Ms Ly had been working normal hours prior to accepting voluntary redundancy in May 2003. However, this failure (as with other matters that were inadequately addressed in the reasons) does not amount to an error that would lead to a revocation of the decision. Accepting that Ms Ly was working normal hours in May 2003 does not mean that she retained a capacity to work normal duties when her employment with the Appellant Employer came to an end. Indeed the evidence is otherwise. Ms Ly reported to Dr Habib that she continued to work, despite her pain, until her redundancy. Ms Ly also reported concerns about losing her job because of her injury to the rehabilitation provider. The Arbitrator set out this evidence at [81-82] as follows:
“81. In a monthly Rehabilitation Progress Report dated 24 September 1997, from Cumberland Health and Research Centre it noted that the Applicant had been upgraded to full hours but continued to rotate between different duties and take pauses. Further, ‘Until 23/9/1997 it was believed that Ms Ly was managing well, and that physiotherapy treatment was maintaining the gains made and that overall Ms Ly was happy with her progress. However it appears that Ms Ly has misunderstood the purpose of rehabilitation and was concerned that she would lose her job if she did not improve. As a result she has not been reporting pain and discomfort’.
82. In the Case Closure Report dated 24 October 1997 from Cumberland Health and Research Centre, Trisha Cashmere, Physiotherapist, noted some changes were made to the work area and work process had been altered with more regular rotations between a variety of duties. Ms Cashmere reported that the Applicant had been performing her normal duties for 2 months and continued to perform a stretching program as required. It was noted that the Applicant occasionally experienced some discomfort but the Applicant indicated that this was manageable.”
Once Ms Ly left the employment of J Robins & Sons Group Pty Limited, where she had been doing basically the same manual tasks since 1995 (presumably with co-workers she knew well), the evidence supports a finding that her injury prevented her from working more than 20 hours of light duties per week.
Did the Arbitrator err in finding that the worker could only earn $10.00 per hour in suitable employment in the period 9 May 2003 to 7 March 2004?
The Arbitrator found that (at [108]):
“…During the period from 9 May 2003 until 7 March 2004 the Applicant was not in any form of employment. Her lack of English, training, workplace skills and experience would reduce, in my view, the labour market available to her. However I consider that she may have been able to work as a shop assistant or in some light process work on a part-time basis, earning, say $200 per week on the basis of working 20 hours a week at $10.00 per hour.”
The Appellant Employer submits the rate of $10 per week “…is less than the minimum wage and it would be illegal for any employer to pay the worker such a low rate” and further that “the appropriate finding ought to have been either that the worker had a capacity to earn at least $12.30 per hour”.
The Arbitrator correctly took into account Ms Ly’s level of English literacy, education, physical limitations and the labour market available to her, when deciding her ability to earn in suitable employment. However, the Arbitrator’s reasons appear to be infected with a clear error of fact, as submitted by the Appellant Employer and acknowledged by Ms Ly’s legal representative. During the period 8 March 2004 to 1 July 2004, Ms Ly worked for “Three Cleaners” for nine hours per week. However she did not earn only $66 as found by the Arbitrator; she earned $15 per hour, a total of $135 per week. In my view the Arbitrator’s error in relation to this later period (8 March 2004 to 1 July 2004) influenced her finding on the amount that Ms Ly was able to earn in the earlier period (9 May 2003 to 7 March 2004).
The Appellant Employer submits that the Arbitrator may rely upon specialised knowledge, gained by virtue of the nature of the jurisdiction, in order to arrive at an estimate of Ms Ly’s ability to earn. The extent to which an Arbitrator can rely upon ‘specialised knowledge’ was considered in BHP Steel (AIS) Pty Limited v Barbour [2004] NSWWCCPD 75, where I said:
“24. In ICI Australia Operations Pty Limited & 1 Ors v The WorkCover Authority of New South Wales [2004] NSWCA 55 (‘ICI’) the Court of Appeal (McColl JA, Mason P and Meagher JA concurring) referred to “a strong line of authority” that supported the claim that a Judge of the Dust Diseases Tribunal was “entitled to rely upon knowledge acquired as a member of a specialised tribunal” (at paragraph 219). Judges of the former ‘Workers Compensation Commission’ were also entitled to rely upon such knowledge in relation to, for example; conditions of employment and rates of pay (Bryer v Metropolitan Water Sewerage & Drainage Board (1939) 39 SR (NSW) 321); general knowledge of silicosis in order to form an opinion on the facts as they related the disease to injury (Tame v Commonwealth Collieries Pty Ltd (1947) 47 SR (NSW) 269).
25. In ICI, the Court referred to Cross On Evidence where the distinction between:“... ‘general expertise which enables the specialist tribunal to understand quickly the evidence before it and to draw appropriate inferences from the evidence, repeated and specialist knowledge which permits it to assert the existence of a particular fact.’ In the latter case, according to Cross, ‘it is not proper for the tribunal to act upon such specialised knowledge without disclosing it to the parties and affording them the opportunity to rebut it or qualify by argument or by adducing evidence of the existence of that particular fact or by assigning a different significance to it’.”
26. The Commission is a statutory tribunal, not a court (Orellana Fuentes v Standard Knitting Mills Pty Ltd & Anor [2003] NSWCA 146). It has only those powers that are conferred by statute. Section 354(2) of the Workplace Injury Management and Workers Compensation Act 1998 provides that the Commission “is not bound by the rules of evidence but may inform itself on any matter in such manner as the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits”. This does not mean that an Arbitrator may determine a dispute arbitrarily. Rule 70 of the Workers Compensation Commission Rules 2003 states that:
“When informing itself on any matter, the Commission is to bear in mind the following principles:
(a) evidence should be logical and probative,
(b) evidence should be relevant to the facts in issue and the issues in dispute,
(c) evidence based on speculation or unsubstantiated assumptions is unacceptable,
(d) unqualified opinions are unacceptable.”27. In my view the circumstances in which an Arbitrator could claim to rely upon the ‘general knowledge of the Commission’ are extremely limited. As Cross describes, the expertise of the Commission, through its Arbitrators, lies more in the ability to quickly analyse the evidence and draw the appropriate conclusions relevant to the statutory workers compensation framework. The proof of issues such as ‘injury’ and ‘causation’ must be discharged on the basis of evidence that complies with Rule 70. It would not be open to the Arbitrator to find, for example, that the worker suffered pain from an injury arising from the nature of his work, although the evidence was that he did not complain of it, simply on the basis that many people did not complain. Nor would it be permissible for an Arbitrator to find that a worker’s injury was long standing, when the evidence was of sudden onset, simply on the basis that ‘in general’ people did not complain of mild symptoms. These are not matters within the general knowledge of a specialised tribunal, but matters that must be decided on evidence in accordance with Rule 70 of the Commission’s Rules (Wallaby Grip (BAE) Pty Ltd (in Liq) v Macleay Area Health Service (1998) 17 NSW CCR 355).”
It was also considered in Whittaker v Abacus Security and Surveillance Pty Limited [2006] NSWWCCPD 86 (‘Whittaker’) as follows:
“37. A Commission Arbitrator must determine the dispute before them according to law and to the evidence presented. While Arbitrators clearly have a level of knowledge and expertise gained from the specialised nature of the Commission’s work, it is not open to an Arbitrator to meet gaps in a party’s case by reliance upon ‘official notice’ in lieu of evidence of matters such as labour market and wages information. These are not matters that are so widely known as to be common knowledge, either in the community at large, or within a specialised tribunal. It is for the party relying upon a claim that certain employment and remuneration are available to the worker, to submit evidence in relation to that claim. This is not an onerous task…”
While there is no dispute over the finding that Ms Ly might have been able to work as a process worker or shop assistant during this period (and the evidence clearly supports this finding) I can find no evidentiary basis for the Arbitrator’s finding that Ms Ly could earn $10.00 per hour doing this work. There is no reference to evidence of the award rate of pay for such work, nor the ‘minimum wage’ as suggested by the Appellant Employer. The Appellant Employer’s submission that the hourly rate should be found to be $12.30 per hour is, without anything more in terms of evidence to support this figure, as arbitrary as the rate of $10.00 per hour.
In my view, as I said in Whittaker, above, it is not an onerous task for a party to submit evidence of the amount that it alleges a worker can earn in suitable employment. Unfortunately, in this matter, that evidence is also not before me on appeal, so I cannot substitute an appropriate rate. To make an arbitrary determination would be to repeat the Arbitrator’s error. This task must be remitted back to the Arbitrator for determination in accordance with these reasons.
Did the Arbitrator err in finding that the worker’s actual earnings in the period 8 March 2004 to 1 July 2004 were $60.00 per week?
As noted above, the Arbitrator made a clear error of fact in finding that Ms Ly earned $66 per week as a cleaner in this period, rather than $135 per week. Ms Ly’s legal representative concedes that this ground of appeal “is justified”. The Appellant Employer is correct to assert that the “correct finding is that the worker’s actual earnings in the period 8 March 2004 to 1 July 2004 were $135.00 per week”.
Did the Arbitrator err in finding that the worker was incapacitated for work from 9 May 2003 to date and continuing as a result of the injury on 27 May 1997?
The Appellant Employer submits that:
“The worker continued in her pre-injury employment for approximately a further 6 years following the incident on 27 May 1997. The Arbitrator failed to give any reasons for the finding that the injury on 27 May 1997 (…) caused an incapacity for work which failed to reveal itself for 6 years. Moreover, the Arbitrator failed to given any reasons for the rejection of the evidence discussed above.
The Appellant employer submits that if the worker had any incapacity for work, it was caused by the cumulative effect of the disease process, nature and conditions of employment or a series of frank injuries. Accordingly, an award of weekly benefits compensation should be made against the insurer of the Respondent (EMI rather than Allianz Australia Workers Compensation (NSW) Limited) or subsequent employer.”
The issue of the finding of an injury simpliciter has been considered above.
I have set out above the Arbitrator’s reference to the evidence of Ms Ly’s rehabilitation provider Cumberland Health and Research Centre (paragraphs [81 to 82] of the Arbitrator’s reasons). The evidence is that Ms Ly continued to work in her pre-employment duties for a number of reasons: she was fearful of losing her job, she was able to make minor alterations to her duties to accommodate her injury, she engaged in ‘stretching’ to assist her to keep working and she tolerated ongoing pain and discomfort. The rehabilitation reports were in September 1997 and October 1997. The Arbitrator’s findings on the medical evidence are discussed above. She was entitled to prefer the evidence submitted on behalf of Ms Ly and gave reasons why she considered the medical evidence submitted by the Appellant Employer to be less persuasive. As noted above, she considered that the Appellant Employer’s medical evidence “discounts the reality of the Applicant’s impairment and condition and does not accord with my assessment of the extent of her continuing symptoms and disability”.
The Arbitrator did not err in finding that Ms Ly was incapacitated for work from 9 May 2003 to date and continuing as a result of the injury on 27 May 1997.
Did the Arbitrator err in finding that the worker’s incapacity to work for the period 8 March 2004 to 1 July 2004 was less than 20 hours per week?
The Appellant Employer submits that:
“The Arbitrator found that the worker has a more reduced capacity for work in the period 8 March 2004 to 1 July 2004 when she was working for a cleaning company. The worker only performed 15 hours of work per week in this employment and earned $135.00 per week (although the Arbitrator incorrectly stated the actual earnings to be $60.00 per week). The Arbitrator accepted the worker’s actual earnings truly represented her capacity for work. This is inconsistent with the Arbitrator’s findings that the worker had a capacity to work 20 hours per week.
The Arbitrator only considered the worker’s actual earnings in this period rather than the worker’s ability to earn in some suitable employment. This approach is an error of law - see, for example, J C Ludowici & Sons Limited v Cutri (1992) 26 NSWLR 580.”
Ms Ly’s legal representative submits “the complaint in respect of this matter does appear to be justified and that the amount Ms Ly could earn during this period was $200.00”. It submits that Order 1(ii) should be revoked and replaced with:
That the Respondent [Employer] pay to the Applicant weekly compensation at the rate of:
i …
ii. $330.00 per week from 8 March 2004 to 1 July 2004.
The Arbitrator erred in finding that Ms Ly’s incapacity for work for the period 8 March 2004 to 1 July 2004 was less than 20 hours per week. This is a matter that must be addressed by the Arbitrator when the matter is remitted to her. Whether she accepts Ms Ly’s submission as to the figure of $200 will be a matter for her, on the evidence, as discussed above.
DECISION
The decision of the Arbitrator, dated 8 July 2005, is revoked and the following decision is made in its place:
The matter is remitted to the Arbitrator for a determination of Ms Ly’s entitlement pursuant to section 40 of the Workers Compensation Act 1987, in accordance with these reasons.
COSTS
Section 345 of the 1998 Act provides as follows:
“345 Costs penalties where appeal unsuccessful
(1)On an appeal from the Commission constituted by an Arbitrator to the Commission constituted by a Presidential member:
(a)if the appellant is the claimant and is unsuccessful on the appeal, the Commission must not make an order for the payment of the appellant’s costs on the appeal by any other party to the appeal, or
(b)if the appellant is an insurer (other than a licensed insurer that maintains a statutory fund under the 1987 Act) and is unsuccessful on the appeal, the Commission may order the insurer to pay to the Authority for payment into the WorkCover Authority Fund an administration fee of $1,000 or such other amount as may be prescribed by the regulations.
(2)(Repealed)
(3)If an appeal concerns lump sum compensation, weekly payments of compensation or medical expenses compensation, the appellant is considered to be unsuccessful on the appeal unless the decision on appeal results in a change in favour of the appellant in the amount awarded or ordered to be paid in the decision appealed against of at least $5,000 (or such other amount as may be prescribed by the regulations) and at least 20% of the amount awarded or ordered to be paid.
(4)An administration fee that an insurer is ordered to pay is recoverable as a debt due to the Authority.
(5)The Registrar is to notify the Authority of an order to an insurer under this section to pay an administration fee.”
The Appellant Employer has been partly successful on the appeal. It is not clear at this point whether the outcome of the appeal, being effectively the Arbitrator’s re-assessment of Ms Ly’s section 40 entitlements, will result in a change in the amount awarded of at least $5000 and at least 20% of the amount awarded to be paid. The parties have not made submissions on the costs of the appeal and in the circumstances I do not propose to make an order in relation to costs. The parties are urged to come to an agreement on the issue of costs that is in accordance with the statutory provisions. In the event that they are unable to do so an application may be made.
Dr Gabriel Fleming
Deputy President
26 July 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DR GABRIEL FLEMING, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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