Kasic v Skilled Warehouse Workforce (NSW) Pty Ltd
[2006] NSWWCCPD 195
•23 August 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Kasic v Skilled Warehouse Workforce (NSW) Pty Ltd [2006] NSWWCCPD 195
APPELLANT: Zoran Kasic
RESPONDENT: Skilled Warehouse Workforce (NSW) Pty Ltd
INSURER:CGU Workers’ Compensation (NSW) Ltd
FILE NUMBER: WCC 7227-05
DATE OF ARBITRATOR’S DECISION: 13 September 2005
DATE OF APPEAL DECISION: 23 August 2006
SUBJECT MATTER OF DECISION: Weight of evidence; causation
PRESIDENTIAL MEMBER: Acting Deputy President Robin Handley
HEARING:On the papers
REPRESENTATION: Appellant: Gerard Malouf & Partners, solicitors
Respondent: Leitch Hasson Dent, solicitors
ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 13 September 2005 is revoked and the matter is remitted to the Arbitrator for determination in accordance with the law and these reasons.
The Respondent, Skilled Warehouse Workforce (NSW) Pty Ltd, is to pay the Appellant, Mr Kasic’s costs in this appeal.
BACKGROUND TO THE APPEAL
On 7 October 2005, Zoran Kasic sought leave in the Workers Compensation Commission (‘the Commission’) to bring an appeal against the decision of an arbitrator dated 13 September 2005. The Respondent to the appeal is Skilled Warehouse Workforce (NSW) Pty Ltd (‘the Employer’). The Employer’s workers compensation insurer is CGU Workers’ Compensation (NSW) Ltd (‘CGU’).
Mr Kasic was born on 17 October 1971 and is aged 34. He commenced employment with the Employer as a general labourer and machine operator in early 2002. On 23 February 2004, Mr Kasic noticed pain in his left shoulder when lifting and packing heavy aluminium rods. He reported the injury to his supervisor and, on or about 16 March 2004, was examined by his general practitioner. Mr Kasic went back to work on light duties.
Mr Kasic also claims that between 23 February 2004 and 26 June 2004, he suffered an injury to his right shoulder due to the heavy lifting and bending which was part of the nature and conditions of his employment. In June 2004, he began to experience pain in his right shoulder which he reported to his general practitioner, and of which he notified the Employer on 24 June 2004.
On 18 February 2005, Mr Kasic lodged a claim with CGU for medical expenses and for compensation for permanent impairment and pain and suffering in respect of both shoulders. Although CGU disputes the degree of permanent impairment claimed by Mr Kasic in respect of the left shoulder, it accepts liability for that injury. However, CGU denies liability in respect of the right shoulder.
On 17 May 2005, Mr Kasic lodged an ‘Application to Resolve a Dispute’ with the Commission and, on 7 June 2005, the Employer lodged its ‘Reply’. On 26 July 2005, the Arbitrator conducted a teleconference with the parties. On 23 August 2005, conciliation having proved unsuccessful, she conducted an arbitration hearing. The Arbitrator gave her decision, set out below, on 13 September 2005.
THE DECISION UNDER REVIEW
The Certificate of Determination, dated 13 September 2005, records the Arbitrator’s orders as follows:
“1. That the Application to Resolve a Dispute be amended to specify the date of injury in relation to the right shoulder as the nature and conditions of employment from 23 February 2004 to 24 June 2004.
2. An award for the Respondent in respect of the claim for the Applicant’s right shoulder.3. No order as to costs.”
In her ‘Statement of Reasons for Decision’, the Arbitrator said that, having had regard to numerous inconsistencies in Mr Kasic’s evidence, she could not accept his evidence as reliable (paragraph 61). She also referred to inconsistencies in Mr Kasic’s medical evidence and said she preferred the contemporaneous medical report from his treating specialist over the retrospective medico-legal report (paragraph 62). The Arbitrator said the “weight of evidence supports a finding that an injury to the right shoulder occurred sometime in June 2004” (paragraph 63). She found that “any pain in the right shoulder occurring in March had been very minor in nature and resolved” (paragraph 64).
The Arbitrator found (at paragraph 66) that although Mr Kasic’s treating specialist attributed the injury to Mr Kasic’s right shoulder to overhead lifting, Mr Kasic:
“was not performing any such overhead work with the Respondent at this time. The evidence supports a finding that the Applicant had not been performing any work at all during this period. He had been sitting around or reading the paper during the period prior to the injury. I therefore find that the injury did not arise either out of or in the course of the Applicant’s employment with the Respondent.”
Earlier (at paragraph 22), the Arbitrator had referred to the evidence of James Woods, the Employer’s injury management co-ordinator, that there was no work on the Narellan site for a period of two months (from 5 May 2004 until 9 July 2004, due to a lack of parts). The Arbitrator found (at paragraph 65) that Mr Kasic agreed with this evidence, which was also confirmed by the clinical records of Mr Kasic’s general practitioner, Dr Christine Hua.
ISSUE IN DISPUTE
The issue in dispute identified by the Arbitrator was whether Mr Kasic suffered an injury to his right shoulder arising out of or in the course of his employment with the Employer. In the appeal, Mr Kasic’s solicitors submit the Arbitrator failed to give proper consideration and weight to Mr Kasic’s evidence, and failed to give adequate reasons for her decision. The parties’ submissions are discussed below.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) states:
“(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 before me, and the submission by Mr Kasic’s solicitors that the matter can be decided ‘on the papers’, the Employer being silent on this issue, 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.
Neither party sought to adduce fresh evidence.
LEAVE
Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act. The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act. With regard to section 352(2), I am satisfied that the compensation at issue, namely that claimed by Mr Kasic in respect of permanent impairment of his right shoulder and for medical expenses, exceeds $5,000 and constitutes 100% of the amount in dispute. I therefore grant leave to appeal.
SUBMISSIONS
Mr Kasic’s solicitors submit the Arbitrator failed to give proper consideration and weight to his evidence that the injury to his right arm resulted from the overuse of that arm as a result of the left arm injury. Dr Hua was of the view that, on or about 24 June 2004, Mr Kasic was suffering from such a right arm overuse injury. Mr Kasic’s solicitors submit that the Arbitrator:
“failed to give weight to the issue that ‘overuse’ can result from undertaking various duties and not only work duties. We further submit that ‘overuse’ injury to the Applicant’s right arm is a work injury whether the ‘overuse’ was a result of undertaking work duties or domestic duties.”
Mr Kasic’s solicitors also submit the Arbitrator mistakenly based her decision on Dr Burrows’ report dated 10 November 2004, where he referred to light duties undertaken “about 5 weeks ago which involved overhead lifting”. Mr Kasic’s solicitors submit Dr Burrows was referring to light duties undertaken in about September 2004 and not light duties in or about June/July 2004. They contend that the Arbitrator relied on Dr Burrows’ report of 10 November 2004 to support her findings that Mr Kasic’s injury resulted from overhead use, without proper basis.
Mr Kasic’s solicitors state the Arbitrator found the injury to Mr Kasic’s right shoulder could not be attributed to overhead lifting but:
“failed to attribute the right shoulder to any causative phenomena and as a result failed to give adequate reasons.
In the absence of any other cause the Arbitrator erred in not accepting the general practitioner’s opinion that the injury to the right shoulder was an ‘overuse’ injury caused by the Applicant’s disability in the left arm ...
The Arbitrator failed to take into account relevant consideration [sic] the need for the Applicant to use his right arm in every day situations and ‘over use’ his right arm due to the disability in his left arm. The over use did not have to be confined to the Applicant’s work.”
The Employer submits that if proof of causative phenomena is required, the onus lies with the applicant. The Arbitrator made specific findings on the inconsistencies in Mr Kasic’s evidence and was entitled to prefer other evidence. In view of the fact that Mr Kasic’s own treating specialist attributed the Applicant’s right shoulder injury to overhead lifting and not to overuse of the right arm secondary to the left shoulder injury, the Arbitrator was not bound to accept Dr Hua’s evidence. In any event, the Arbitrator did not find that the injury to the right arm resulted from overhead use.
The Employer notes Mr Kasic gave no evidence of either work or domestic duties that could have caused an overuse injury to the right arm. It submits that the only evidentiary basis for such a contention is Dr Hua’s certificates, and “he has not identified domestic duties (or indeed any specific type of work) as resulting in an overuse injury”.
EVIDENCE
The evidence before the Arbitrator included a statement from Mr Kasic dated 28 July 2005, an undated statement from James Woods, the Employer’s State Injury Management Co-ordinator, prepared in August 2005, medical certificates from his general practitioners, Dr Christine Hua and Dr Raymond Seeto, and their clinical notes, and medical reports from his treating specialist, Dr Greggory Burrows, Orthopaedic Surgeon, and Drs Stephen Rimmer, Orthopaedic Surgeon, and Peter Conrad, Surgeon. Mr Kasic and Mr Woods gave oral evidence at the arbitration hearing.
Relevantly, in his statement dated 28 July 2005, Mr Kasic said when he went back to work on light duties:
“I started relying on my right arm to do the majority of weight bearing at work and at home. From on or about June 2004 I commenced to feel pain in my right shoulder area.”
At the hearing, Mr Kasic said he first noticed some pain in his right shoulder when he started receiving physiotherapy in about April 2004 (transcript page 5). In cross-examination, he said that the physiotherapist was the only person to whom he mentioned the right shoulder pain at that stage (transcript page 8). He made no mention of this to Dr Rimmer, who examined him on behalf of CGU on 30 April 2004 (report dated 30 April 2004), nor to Dr Hua, who issued WorkCover medical certificates for Mr Kasic on 16 March 2004, 5 April 2004, and 20 April 2004. It was not until 24 June 2004, that Dr Hua notes “right shoulder strain” in the WorkCover medical certificate issued on that day. However, the Arbitrator noted the following entry in Dr Hua’s clinical notes dated 15 March 2004: “Now starting to get mild right shoulder pain as well.” The Arbitrator also referred to Dr Hua’s clinical notes where on 24 June 2004, Dr Hua recorded “Now experiencing right shoulder pain”, where on 1 July 2004, she recorded “increasing pain in right shoulder” and “still not doing anything at work”, and where on 15 July 2004, she recorded “back to assembling nuts and bolts feeling better now has something to do”.
There is also no mention of right shoulder pain by Mr Kasic’s treating specialist, Dr Burrows, in his earlier reports dated 31 March 2004, 5 May 2004, and 9 June 2004. Dr Burrows’ first mention of right shoulder pain is in his report dated 28 July 2004, where he recorded that Mr Kasic, “has had some trouble with his right shoulder and that shows some signs of impingement too”. In the second paragraph of his later report dated 10 November 2004, Dr Burrows commented:
“In July I noted the left shoulder had improved considerably with the injection and he was beginning to get some right shoulder discomfort with overhead use.”
This reference to “overhead use” has caused some confusion because the evidence of Mr Woods, the Employer’s State Injury Management Co-ordinator, is that between 5 May 2004 and 9 July 2004, Mr Kasic, while attending for light duties at Narellan, did very little work since there was little available for employees at that site. Mr Kasic confirmed this in oral evidence, and also that there was no lifting, although he said there was some putting together of nuts and bolts (transcript page 12). Mr Woods said in evidence that Mr Kasic would not have done any overhead work until early September 2004, because there was no overhead work at the Narellan site and it was not until early September that Mr Kasic was transferred to the Kimberley-Clark site (transcript pages 29 to 30).
Dr Burrows’ comment, above, should be read in conjunction with the fourth paragraph of that report, which states:
“Then he [Mr Kasic] was returned to full-time ‘light duties’ about 5 weeks ago which involved repeat overhead lifting but a lifting restriction of 10kgs. Since then Zoran has had increasing trouble with both shoulders.”
In my view, it is possible that Dr Burrows took insufficient care in the wording of his report, and that, as Mr Kasic’s solicitors suggest, Dr Burrows was referring to light duties undertaken by Mr Kasic approximately five weeks earlier, in September 2004. There being no other evidence that Mr Kasic was undertaking overhead work in July 2004, Dr Burrows’ comment should therefore be disregarded.
In his undated statement prepared in August 2005, Mr Woods referred to a conversation with Mr Kasic in June 2004 after he had been reviewed by Dr Burrows: “Mr Kasic stated to me that Dr Burrows had told him he also had a problem with the right shoulder.” When Mr Woods asked about the type of problem, Mr Kasic “simply stated that his right shoulder also felt sore and tired”, but did not know how this had happened. It was after this conversation, on 24 June 2004, that Mr Kasic presented Mr Woods with a medical certificate including reference to “right shoulder strain”. The workers compensation claim form completed by Mr Kasic in respect of the right shoulder, dated 29 July 2004, refers to a date of injury of 5 April 2004.
In cross-examination, Mr Woods was taken to Dr Burrows’ report dated 9 June 2004, which makes no reference to Mr Kasic’s right shoulder. Mr Woods said that his undated note of a conversation concerning Mr Kasic’s shoulders was a record of a telephone conversation with Mr Kasic that probably occurred at around this time. Mr Woods remembered a heated telephone conversation with Mr Kasic (transcript page 24) that probably took place on 9, 10 or 11 June 2004, but because there was no date on the file note, Mr Woods said he could not be sure. Mr Woods also acknowledged that the conversation recorded in the file note could have been with Dr Burrows and might have post-dated notification of the injury on 24 June 2004 (transcript page 22). In my view, given the uncertainty that surrounds this evidence, it should not be relied on, and Mr Woods’ opinion that Mr Kasic “was lining us up for the submission of his right shoulder claim” (transcript page 25) should be disregarded.
In his report dated 20 August 2004, Dr Rimmer, who had previously seen Mr Kasic on 30 April 2004, noted under the heading “History of Injury”:
“He also presents today having started to complain of similar pain in the right shoulder in April 2004. He attributes this to physiotherapy, which he was undertaking for his left shoulder.”
Similarly, in a report dated 11 February 2005, Dr Conrad, Surgeon, who examined Mr Kasic on 7 February 2005, recorded under the heading “History”, that “towards the end of April 2004 or early May 2004 he [Mr Kasic] started noticing similar pain in his right shoulder”. Dr Rimmer said he could not “establish a clear casual link between work and the onset of pain in his right shoulder”.
DISCUSSION AND FINDINGS
The role of the Presidential Member on appeal is to review the Arbitrator’s decision as a whole. The review is not a rehearing. In this case, Mr Kasic must demonstrate that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172; The King Island Company Limited v Deery [2005] NSW WCC PD 1) in order to enliven the Presidential Member’s power to interfere with the Arbitrator’s decision pursuant to section 352(7) of the 1998 Act. Where the weight accorded to the evidence by the Arbitrator is challenged, Deputy President Fleming’s comment in Knight v Eyles Nominees Pty Ltd [2004] NSW WCC PD 73, at paragraph 40, should be borne in mind:
“Interference with an Arbitrator’s discretionary judgement as to the weight of evidence should only be done where it is manifestly obvious that the discretion has so miscarried that it has not been exercised fairly and lawfully.”
The Arbitrator found, because of inconsistencies in Mr Kasic’s evidence, that it was unreliable. Nevertheless, she found (Statement of Reasons paragraph 63): “The weight of evidence supports a finding that an injury to his right shoulder occurred sometime in June 2004.” She found that any pain in the right shoulder occurring in March 2004 “had been very minor in nature and had resolved” (paragraph 64). Referring to Dr Burrows’ attribution of the right shoulder injury to overhead lifting, the Arbitrator said (at paragraph 66):
“I find on the evidence that the Applicant was not performing any such overhead work with the Respondent at this time. The evidence supports a finding that the Applicant had not been performing any work at all during this period. He had been sitting around or reading the paper at work during the period prior to the injury. I therefore find that the injury did not arise either out of or during the course of the Applicant’s employment with the Respondent.”
In my view, the Arbitrator’s reasoning is flawed and she made a discretionary error in her treatment of the evidence that led to an unfair outcome. The Arbitrator appears to have relied for her finding that the injury did not arise either out of or in the course of the Applicant’s employment with the Employer, on a comment by Dr Burrows, which should be disregarded. Whilst I agree there are inconsistencies in the medical evidence as to when any injury to the right shoulder occurred, I also agree with Mr Kasic’s solicitors’ submission that the Arbitrator failed to give proper consideration and weight to, in particular, the contemporaneous evidence of Dr Hua. Aside from Mr Kasic’s evidence, given the lack of consistency in the histories recorded by the specialists, Dr Hua’s evidence appears to be the most reliable evidence of what occurred. I note, however, that if Dr Burrows’ opinion is that an injury to Mr Kasic’s right shoulder was aggravated by overhead lifting in September 2004, it follows that there may also have been a later injury to be taken into account in any assessment. But, in my view, the evidence is just not sufficiently clear for me to make a finding on this.
In my view, the fact that Mr Kasic may not have been actively engaged in activities at work between 5 May 2004 and 9 July 2004 does not defeat his claim. In terms of compensation for permanent impairment, section 66(1) of the 1987 Act refers to the worker’s entitlement to compensation from the employer for “an injury that results in permanent impairment”; in relation to assessment of that permanent impairment, section 65(1) refers to “the degree of permanent impairment that results from an injury” (my emphasis). In the NSW Court of Appeal decision of Kooragang Cement Pty Ltd v Bates (1994) 10 NSWCCR 796, Kirby P considered the meaning of the words “results from” in the 1987 Act. Citing the dictionary meaning of “to arise as a consequence...”, he emphasised, at page 807, that the phrase “results from” should be given its ordinary meaning, noting that “[F]rom the earliest days of compensation legislation, it has been recognised that causation is not always direct and immediate”. He stated, at page 810:
“In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions.”
The fact that permanent impairment in relation to one part of the body or organ is caused by an injury to another part of the body or organ, does not defeat a claim for compensation for that permanent impairment. It is a matter of causation: did the permanent impairment result from the first injury? As stated, this is a question of fact to be determined on the basis of the evidence. (See, for example, the decision of Geraghty J in Mansell v RJ Goldsmith & Sons & Others (1996) 13 NSWLR 145, and that of the NSW Court of Appeal in Roads & Traffic Authority v Malcolm (1996) 13 NSWLR 272.)
Thus, the key issue is whether any permanent impairment of Mr Kasic’s right shoulder resulted from the overuse of his right arm as a consequence of the injury to the left shoulder, for which the Employer has accepted liability? If this question is answered in the affirmative, then there exists the necessary causal link to the original frank injury of 23 February 2004 that occurred in the course of Mr Kasic’s employment.
It is clear from the evidence that Mr Kasic performed light duty work until 5 May 2004, and continued to attend work through to 9 July 2004 and beyond, although he may not have been actively engaged in activities at work between 5 May 2004 and 9 July 2004. Dr Hua’s evidence is that Mr Kasic experienced right shoulder pain during this period, and Mr Kasic’s evidence is of his relying on his right arm to perform any weight bearing work after injuring his left shoulder and, impliedly, of his developing pain in the right shoulder as a result. I am not satisfied that the inconsistencies in Mr Kasic’s evidence are sufficiently serious to make that evidence unreliable. I am prepared to accept that Mr Kasic experienced pain in his right shoulder that, while at first relatively mild (Dr Hua’s clinical note dated 15 March 2004), increased in strength over the next few months, as noted by Dr Hua in her clinical notes in late June and early July 2004.
Moreover, Mr Kasic’s left shoulder injury is likely to have continued to affect the use of his right arm in the course of his daily activities even if he was not actively working: in his statement, Mr Kasic describes how the injuries to his left and right shoulders have affected his ability to drive and participate in ordinary domestic and recreational activities. In my view, there is sufficient evidence to support a finding that any permanent impairment of Mr Kasic’s right shoulder was a consequence of the injury to his left shoulder, noting that there is no evidence to suggest any other cause of the impairment of his right shoulder.
Thus, relying on Mr Kasic’s and Dr Hua’s evidence, I find that any permanent impairment of Mr Kasic’s right shoulder resulted from the injury to his left shoulder that arose in the course of his employment. Having so found, the appropriate course is for me to revoke the Arbitrator’s decision and remit the matter to the Arbitrator, in the first instance, for referral to an Approved Medical Specialist to assess the degree of any permanent impairment of Mr Kasic’s right and left shoulders in accordance with section 321 of the 1998 Act.
DECISION
The decision of the Arbitrator dated 13 September 2005 is revoked and the matter is remitted to the Arbitrator for determination in accordance with the law and these reasons.
COSTS
The Respondent, Skilled Warehouse Workforce (NSW) Pty Ltd, is to pay the Appellant, Mr Kasic’s costs in this appeal.
Robin Handley
Acting Deputy President
23 August 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ROBIN HANDLEY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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