Knight v Eyles Nominees Pty Ltd
[2004] NSWWCCPD 73
•27 October 2004
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Knight v Eyles Nominees Pty Limited t/as Processed Forest Products [2004] NSW WCC PD 73
APPELLANT: William John Knight
RESPONDENT: Eyles Nominees Pty Ltd t/as Processed Forest Products
INSURER:Allianz Australia Workers’ Compensation (NSW) Limited
FILE NUMBER: WCC7773-2003
DATE OF ARBITRATOR’S DECISION: 10 September 2003
DATE OF APPEAL DECISION: 27 October 2004
SUBJECT MATTER OF DECISION: Interpretation and weight of evidence; Discretion of Arbitrator; Fitness for pre-injury employment.
PRESIDENTIAL MEMBER: Dr Gabriel Fleming, Deputy President
HEARING:On the Papers
REPRESENTATION: Appellant: David Weston & Co.
Respondent: Hicksons Lawyers
ORDERS MADE ON APPEAL: The decision of the Arbitrator, namely: “Award in favour of the Respondent in respect of the Applicant’s claim for weekly payments of compensation”, is revoked.
The parties are to submit draft orders to give effect to the findings set out in this decision, on or before 5 November 2004.
THE APPEAL
On 9 October 2003 William John Knight (the Appellant/ Mr Knight) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (the Commission) against a decision dated 10 September 2003.
The Respondent to the Appeal is Processed Forest Products (the Respondent). The Respondent filed submissions in Reply to the appeal on 15 December 2003.
The relevant insurer is Allianz Australia Workers’ Compensation (NSW) Limited (the insurer).
The appeal concerns a claim by Mr Knight for weekly compensation in respect of an injury to his left hand involving ‘Reflex Sympathetic Dystrophy’ or ‘Complex Regional Pain Syndrome’, sustained on 22 May 2002, when employed by the Respondent.
On 12 March 2003, Mr Knight lodged an ‘Application to Resolve a Dispute’ in the Commission. A teleconference was held between the parties on 7 July 2003, and a second teleconference was held on 17 July 2003 at which the parties agreed that the matter could be determined on the papers. The Arbitrator gave directions extending time for the parties to file a ‘Statement of Agreed Facts and Issues’, and a ‘Statement of Past Benefits’. The Appellant was directed to file written submissions by 31 July 2003, and the Respondent by 8 August 2003.
The Appellant submits that the decision of the Arbitrator should be revoked and a new decision, that Mr Knight is entitled to weekly compensation, be made in its place. The Respondent submits the Arbitrator’s decision is correct and should be confirmed.
THE ARBITRATOR’S DECISION
The ‘Certificate of Determination’ and attached ‘Statement of Reasons’ (the reasons) dated 10 September 2003, record the Arbitrator’s decision as follows:
1.“Award in favour of the Respondent in respect of the Applicant’s claim for weekly payments of compensation.
2.That the Respondent pay the Applicant’s expenses pursuant to section 60 of the Workers Compensation 1987 [sic] on production of accounts and or receipts, including but not limited to the following:
Delwood Medical Centre $489.50
Dr Rodney Pattinson $165.00
Kesby’s Pharmacy (paid by the Respondent) $ 10.55
Metropolitan Psychological Centre $641.00
3.That the Respondent pay the Applicant’s costs as agreed or assessed.”
The Arbitrator commented that there was no dispute as to whether work was a substantial contributing factor, as the Respondent conceded this point. The Arbitrator found however, that Mr Knight ceased to be incapacitated for work on 15 August 2002 because Dr Haynes opined he was fit for pre-injury duties, and Dr Pattinson and Dr Crawford found him to have a full range of movement, without dysaesthesia or skin tenderness, in the left arm and hand. Also persuasive was that Ms Davidson, Occupational Therapist, found he had a strong grip and could lift 10kg, and had a range of motion suitable for all normal functioning activities.
The Arbitrator noted that there was no report in evidence to assist him in understanding why Delwood Medical Centre had placed suitable duties restrictions on Mr Knight. The Arbitrator also noted that Dr Pattinson and Dr Crawford did not indicate the restrictions placed on Mr Knight were necessary.
The Arbitrator found that Mr Knight’s medical expenses were reasonable, were incurred in an attempt to control his pain, and were a separate issue to the question of capacity for work.
ISSUES IN DISPUTE
The Appellant states the grounds of appeal as follows:
“1.The Arbitrator erred in the interpretation of the medical reports filed with the application and in particular in finding that the applicant was fit for pre-injury duties and had ceased to be incapacitated for work from 15th August 2002.
2.That the Arbitrator erred in not finding that the applicant was permanently disabled.
3.That the Arbitrator accordingly erred in failing to continue weekly benefits based upon a permanent incapacity or at least a semi permanent incapacity for work.”
The Appellant does not appeal against the Arbitrator’s orders 2. and 3. in relation to medical expenses and costs.
ON THE PAPERS REVIEW
The Appellant submits that the leave application may be determined on the papers, but makes no submission in regard to the substantive appeal.
The Respondent makes no submissions as to whether the appeal may be determined on the basis of the written submissions.
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.”
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
Leave to appeal is granted
No new evidence is submitted by either party on appeal.
EVIDENCE AND SUBMISSIONS
Relevant Facts
I have before me the Arbitrator’s decision, the evidence that was before the Arbitrator and the parties’ submissions on appeal.
Mr Knight began working as a forklift driver for Eyles Nominees Pty Limited t/as Processed Forest Products, on 27 May 2001. On 21 May 2002, he suffered an injury to his non-dominant left hand when a bar slipped in a winch, jarring his hand. On 22 May 2002, Mr Knight attended Dellwood Medical Centre and was seen by Dr Asar, after which he took a number of days off work and continued taking analgesic medication. By letter dated 31 May 2002, the insurer informed Mr Knight, without admission of liability, that provisional weekly workers compensation payments would be made from 22 May 2002 to 31 May 2002, as well as the payment of medical expenses up to $500. The insurer also advised that an Injury Management Plan would be created. Mr Knight returned to work for about a month in June 2002 but took time off when the pain in his hand became too great.
On 16 July 2002, Dr Asar of Dellwood Medical Centre declared Mr Knight unfit for work, and fit only for suitable duties from 17 July 2002 . However, upon return to work Mr Knight found that the Respondent had no suitable duties to offer, so he was sent home, and did not return to work. Dr Robert Scragg of Dellwood Medical Centre continued to issue Workcover medical certificates declaring Mr Knight fit for suitable duties until 22 December 2002, however the Respondent had no such duties to offer.
On 15 August 2002, Mr Knight was examined by Dr Haynes on behalf of the Respondent, who opined that he was physically fit for pre-injury duties on a full time basis, and that he had no assessable loss of use of the left hand or arm.
On 17 September 2002, the insurer informed Mr Knight that his benefits would cease from that date, and liability for his claim had been denied pursuant to section 33 of the Workers Compensation Act 1987 Act. The insurer stated that “the injury you have received has not caused you further incapacity for work, and that you are now fit for your pre-injury duties. Our opinion is based on Dr Haynes’ medical report dated 15 August 2002”. The insurer made provisional weekly payments from 22 May 2002 until 17 September 2002.
On 19 September 2002 Mr Knight saw Dr Rodney Pattinson after being referred by Dr Robert Scragg. Dr Pattinson opined that Mr Knight displayed symptoms of early reflex sympathetic dystrophy, and referred him to Dr Matthew Crawford, a specialist in regional pain syndrome. Dr Crawford saw Mr Knight on 11 October 2002 and opined that there was reduced power in the fingers of his left hand, and a multidisciplinary pain assessment was required. Dr Crawford recommended Nortriptyline as a nightly analgesic medication, and referred him to psychologist Brian Kearney, occupational therapist Judith Davidson, and physiotherapist Stephanie Mossman.
On 18 December 2002, the Respondent terminated Mr Knight’s employment, citing that he had been on unpaid leave for more than three months and his position could not be kept available indefinitely.
Mr Knight claims he made some attempts to engage in alternative forklift and truck driving work following the cessation of his benefits, but could not continue due to pain in his hand and arm. He also claims to have responded to some delivery driver advertisements, without success. Mr Knight remains unemployed.
Appellant’s Submissions
The Appellant submits that the Arbitrator erred in finding that Mr Knight suffered no restriction in relation to his wrist function, based on the fact that neither Dr Pattinson nor Dr Crawford indicated that restrictions were necessary. The fact that neither doctor indicated restrictions, ought not to be taken to mean none were necessary. Given the further treatment that Dr Pattinson, Dr Crawford and Mr Matthew recommended, it is clear that the left hand exhibited a condition requiring further review and assessment.
The Appellant submits that the Arbitrator erred in suggesting that the negative sensory nerve conduction studies were inconsistent with early reflex sympathetic dystrophy. The Arbitrator failed to refer in her decision to relevant comments of Dr Pattinson, indicating that Mr Knight engages in regular physiotherapy, has cold fingers, and exhibits symptoms of early reflex sympathetic dystrophy. Ms Davidson opined that the Appellant’s major problem was in his hand. The sensory nerve conduction studies are not inconsistent with this finding.
The Appellant submits that the Arbitrator erred in commenting only on the findings of the doctors that indicated the Appellant had a full range of movement, but did not comment on the findings of those same doctors when they noted the Appellant displayed symptoms consistent with reflex sympathetic dystrophy.
The Appellant submits that the Arbitrator erred in finding the Appellant fit for pre-injury duties. The Reports of Dr Pattinson and Dr Crawford do not suggest such fitness, and instead indicate the Appellant has a condition requiring a ‘multidisciplinary assessment of pain’. The suggestion the Appellant is fit for pre-injury duties is untested, with the only suggestion coming from Dr Haynes, who does not set out the nature of those duties. The Arbitrator therefore erred in placing too much weight on the report of Dr Haynes, as his report should not have been preferred over those of Dr Crawford, Dr Pattinson and Judith Davidson.
Respondent’s Submissions
The Respondent submits that “the Arbitrator had sufficient evidence to find the applicant capable of pre-injury duties. She was correct in finding that all of the medico legal opinion found the applicant to have a full range of movement in the left hand. She was correct in finding that Dr Pattinson and Ms Judith Davidson found the applicant to be able to lift and lower 10kg in weight. These were the findings which lead [sic] the Arbitrator to find the applicant fit for pre-injury duties.”
The Respondent submits that it is the Arbitrator’s responsibility to determine the Appellant’s residual earning capacity, and that she had sufficient evidence to find that the Appellant had full capacity from 15 August 2002.
The Respondent submits that the Arbitrator did not err in relying on the report of Dr Haynes, as he was the only doctor who addressed the issue of incapacity. Neither Dr Crawford nor Dr Pattinson made mention of incapacity in their reports. Dr Haynes noted the Appellant had no swelling, wasting or deformity of the limb, and had a full range of movement. In his expert opinion, the Appellant was fit for pre-injury duties, and the Arbitrator was entitled to rely on such opinion.
The Respondent submits that the Appellant has a residual earning capacity of at least the amount he was earning at 17 July 2002, when he was first declared fit for pre-injury duties.
No new evidence has been submitted in support of the submissions made in this appeal, so the appeal should be dismissed.
DISCUSSION AND FINDINGS
An Arbitrator’s decision should not be disturbed unless, on review, it contains an error of law, fact or discretion (Allesch v Maunz (2000) 203 CLR 172, Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSW WCC PD 6).
The error must be such that, but for it, a different decision would have been made (Section 294 of the 1998 Act; YG & GG v Minister for Community Services [2002] NSWCA 247; Absolon v NSW TAFE [1999] NSWCA 311).
The errors alleged by the Appellant are largely matters of discretionary judgement by the Arbitrator, on the basis of her view of the evidence before her. As with any exercise of discretion by an administrative decision maker, this discretion must be exercised lawfully and fairly, taking into account the scope of the discretion and the objects of purpose for which it is conferred. To succeed on the grounds of appeal the Appellant must demonstrate that the Arbitrator has failed to exercise her discretion fairly and lawfully.
The Arbitrator determined this matter ‘on the papers’. This was not a case where she heard oral evidence and came to her decision on the basis of a discretionary judgement as to the witnesses’ credit. The Arbitrator briefly set out the relevant documentary evidence in her reasons for decision. She then set out her consideration of that evidence and the weight that she attended to the various medical reports.
Interference with an Arbitrator’s discretionary judgement as to the weight of evidence should only be done where it is manifestly obvious the discretion has so miscarried that it has not been exercised fairly and lawfully. In my view this is such a case. The Arbitrator has not, in her reasons, given a fair or accurate account of the evidence that was before her.
The Arbitrator referred to the evidence that Mr Knight suffered a “reflex sympathetic dystrophy injury to his left hand and, as a result of that injury he has a continuing incapacity for work and pain of a permanent nature”. Having recited the evidence, the Arbitrator then failed to state whether she accepted or rejected this claim.
The Arbitrator accepted Mr Knight’s evidence “that he experienced pain as a result of the injury”. She did not then discuss the result of this pain in terms of his ability to resume his pre-injury duties. The Arbitrator’s reasons do not refer at all to what Mr Knight’s pre-injury duties were. Nor do the reasons refer to the evidence of how his left hand pain, which is attributed to his work injury, impacts upon his ability to return to those pre-injury duties.
The following matters are relevant to the ultimate finding on incapacity:
·It is not disputed that Mr Knight suffered an injury to his left hand at work on 21 May 2002 and that his work was a substantial contributing factor to his injury.
·The weight of medical evidence (Drs Scragg, Pattinson and Crawford) is that Mr Knight now suffers from ‘complex regional pain syndrome’ in his left hand as a result of the injury to his left hand. Dr Scragg describes the condition as ‘sympathetic dystrophy’ in the left hand. Dr Haynes was “unable to account for the ongoing symptoms” in Mr Knight’s left hand.
·The weight of evidence indicates that Mr Knight does not have clinical signs of injury to his left hand, other than pain. Upon examination he has a full range of movement and normal grip.
·The Arbitrator accepted Mr Knight’s evidence that he experienced pain as a result of his injury.
The Arbitrator did not accurately set out the evidence of Ms Davidson, Occupational Therapist, who conducted an occupational assessment of Mr Knight. Ms Davidson documented Mr Knight’s ‘Main Complaint’ as follows:
·“Pain in left hand rated as 1-2/10 on average and when he does not use the hand.
·Pain in his left hand rated as 7-8/10 on the worst day in the past month.
·Pain aggravated by mowing the front and back lawns on the same day. Each section of the yard takes about 30 minutes and if he does it on 2-3 consecutive days, there is not a major problem but he cannot do them the same day.
·Pain aggravating with a lot of pruning in the garden but if he does it for 5 minutes with his left hand on a regular basis, he finds that sustainable.
·Pain aggravated by cold.
·The pain is mainly across the radial surface of the hand especially along the second metacarpal and on each side of it. This is an area where he hit his hand in the original injury.”
Ms Davidson also outlines Mr Knight’s pre-injury duties in some detail. He was working full time for ‘Processed Forest Products’ as a fork-lift and truck driver. She reported that:
· “80% of the work is forklift driving for which he has to use his left hand on the spinning knob. He believes that this is the only type of forklift available for the type of job which he does involving very heavy loads. The other 20% of the job is deliveries in a manual vehicle, which includes assisting the retailer or wholesaler to unload the goods if they need it. If the retailer or wholesaler has no forklift then the load is manually unloaded.”
Ms Davidson found Mr Knight to be “friendly and co-operative” with her assessment and concluded that there was no indication of any “malingering or symptom magnification”.
In weighing Dr Haynes’evidence on this issue she has given a selective account of the evidence of Drs Patterson and Crawford, and of Ms Davidson, Occupational Therapist. Dr Haynes does not state what Mr Knight’s pre-injury duties were, however he concludes that Mr Knight is fit to perform them. Dr Haynes’ report is brief. He had no investigations before him. He did not have the benefit of Ms Davidson’s report. In my view it was unfair and unreasonable of the Arbitrator to find Dr Haynes’ opinion that Mr Knight was fit for his pre-injury duties was more persuasive than the totality of the other evidence that was before her. This was an error of discretion and the result is that she has made a decision that is against the weight of the evidence. I am satisfied that the Arbitrator’s error is such that her decision should be revoked.
The weight of evidence supports the conclusion that Mr Knight remains unable to return to his pre-injury duties because of ongoing pain in his left hand. This pain has been diagnosed as ‘complex regional pain syndrome’. It is the direct result of the incident at work on 21 May 2002. On his own account he can use his left hand for one to two hours at a time before his pain becomes prohibitive. He has tried to return to work since his injury and has not been able to sustain working the forklift and driving the truck for more than one to two hours.
I accept Mr Knight’s evidence that, since his injury, he has tried to return to other forms of employment, including office work and light deliveries. When working for one to two hours over a period of three days his hand became “too sore to continue”. He has also sought out delivery work and has been unable to obtain it. He states that Centrelink could only recommend a sheltered workshop. There is no other evidence as to his capacity to earn in suitable employment.
I am satisfied that the evidence supports the conclusion that Mr Knight is not fit for all of his pre-injury duties. I find that he continues to be partially incapacitated for work as a result of his injury. The evidence, such as it is, suggests that he is fit to do light work with lifting restrictions of 10kg (Dr Scragg, December 2002) and no repetitive use of his left hand. However, I am satisfied that he has been unable to find any work of this kind. He is fifty-three years old and has no formal training. He continues to have pain and require medication. At the current time the amount that Mr Knight can earn in suitable employment is nil. Hopefully, with retraining or general improvement in his condition, he will ultimately be able to return to useful work.
Mr Knight’s entitlement to weekly compensation falls to be determined in accordance with section 40 of the 1987 Act.
In the leading case of Mitchell v Central West Health Service (1997) 14 NSWCCR 527 (‘Mitchell’) the Court of Appeal (Mason P, Beazley JA and Grove A-JA) at 529, set out five steps for determining entitlement pursuant to section 40 of the 1987 Act, as follows:
“...the Court is required:
1. To determine the weekly amount the worker would probably have been earning if uninjured (section 40(2)(a))…
2. To determine ‘the average weekly amount that the worker is earning or would be able to earn in some suitable employment from time to time after the injury’ (section 40(2)(b)). Section 40(3) provides that the determination of this amount is subject to the following:
‘(a)the determination is to be based on the worker’s ability to earn in the general labour market reasonably accessible to the worker;
(b)the determination is to be made having regard to suitable employment for the worker within the meaning of section 43A.’…
3. To subtract the figure derived from 2. from the figure derived from 1. (section 40(2)).
4. To decide whether and to what extent the reduction calculated as above bears ‘such relation to the amount of that reduction as may appear proper in the circumstances of the case’ (section 40(1))…
5. To make an award in the amount arrived at in Step 4.”
There is insufficient evidence before me as to his pre-injury earnings to enable me to determine Mr Knight’s exact entitlement to weekly compensation, based on the findings that I have made about injury and incapacity. Mr Knight has already received some compensation during the relevant period and, on his own admission, he has done some casual work. There is also nothing before me as to the exercise of discretion in relation to the appropriate award, described in point 4 of the Mitchell test above.
I therefore direct the parties to file draft orders to give effect to the findings that I have made in this decision within seven days. Following that, I will issue orders to finalise the matter.
In summary, my findings are:
·The Arbitrator has erred in the exercise of her discretion. Her decision is against the weight of the evidence, and amounts to a failure to fairly and lawfully determine the dispute. The decision is therefore revoked.
·On 21 May 2002, Mr Knight suffered an injury to his left hand in the course of his employment with the Respondent. His employment was a substantial contributing factor to this injury. He continues to be incapacitated as a result of the injury.
·At the current time, the average weekly amount that Mr Knight is able to earn in some suitable employment is nil.
·The Respondent is liable for the Applicant’s claim for weekly compensation pursuant to section 40 of the Workers Compensation Act 1987.
I note that the Arbitrator’s orders in relation to the payment of medical expenses pursuant to section 60 of the Workers Compensation Act 1987, and the payment of costs, remain on foot.
DECISION
The decision of the Arbitrator, namely: “Award in favour of the Respondent in respect of the Applicant’s claim for weekly payments of compensation”, is revoked.
The parties are to submit draft orders to give effect to the findings set out in these reasons, on or before 5 November 2004.
Dr Gabriel Fleming
Deputy President 27 October 2004
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
31
4
0