Kosovic v Star City Pty Limited
[2010] NSWWCCPD 107
•7 October 2010
| WORKERS COMPENSATION COMMISSION | |||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||||
| CITATION: | Kosovic v Star City Pty Limited [2010] NSWWCCPD 107 | ||||||
| APPELLANT: | Ibrahim Kosovic | ||||||
| RESPONDENT: | Star City Pty Limited | ||||||
| INSURER: | Self-insured | ||||||
| FILE NUMBER: | A1-8763/09 | ||||||
| ARBITRATOR: | Ms J. David | ||||||
| DATE OF ARBITRATOR’S DECISION: | 15 April 2010 | ||||||
| DATE OF APPEAL DECISION: | 7 October 2010 | ||||||
| SUBJECT MATTER OF DECISION: | Assessment of the evidence, failure to determine incapacity; lack of reasons | ||||||
| PRESIDENTIAL MEMBER: | Acting Deputy President Lorna McFee | ||||||
| HEARING: | On the papers | ||||||
| REPRESENTATION: | Appellant: | Martin Bell & Company | |||||
| Respondent: | George Mallos, Lawyer | ||||||
| ORDERS MADE ON APPEAL: | The decision of the Arbitrator dated 15 April 2010 is confirmed. | ||||||
| No order as to costs of the appeal. | |||||||
BACKGROUND TO THE APPEAL
On 12 July 2008, the appellant worker, Ibrahim Kosovic, was working for the respondent employer, collecting dirty plates from an express window for stacking in a dishwasher when he fell. Mr Kosovic has not worked since.
The Application to Resolve a Dispute (the Application) registered in the Commission on 28 October 2009 recorded injury to the “right elbow, right upper extremity, lower back and lumbar spine, right leg, anxiety and depression”.
The claim advanced was for:
(a) continuing payments of weekly compensation from 11 September 2008, and
(b) medical expenses and lump sum payments pursuant to ss 60, 66 and 67 of the Workers Compensation Act 1987 (the 1987 Act).
The employer, a self-insurer, in a s 54 notice dated 10 October 2009, disputed liability on the grounds that:
(a) Mr Kosovic had recovered from his physical injuries and was fit for his pre-injury duties without restriction, and
(b) the alleged psychiatric injury was not related to the fall on 12 July 2008.
Amendments to the claim, including injury to the cervical spine, right shoulder and carpal tunnel syndrome, were subsequently withdrawn, and the injuries were confined to the “lumbar spine, cervical spine, right upper extremity (elbow), anxiety and adjustment disorder”.
The matter was listed for arbitration on 25 March 2010. The issues at the hearing involved:
(a) the employer’s application for leave to raise a previously un-notified issue, that Mr Kosovic did not suffer any injury at work on 12 July 2008, and the exercise of discretion under s 289A(4) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act);
(b) a determination as to what injuries were suffered on 12 July 2008, and
(c) a determination as to total or partial incapacity for work as a result of injuries suffered on 12 July 2008.
Both parties were represented by counsel at the hearing and Mr Kosovic was cross-examined at length.
THE DECISION UNDER REVIEW
In a reserved decision, delivered on 15 April 2010, the Arbitrator:
(a) allowed the employer to dispute injury;
(b) found that Mr Kosovic suffered injury to his right upper extremity (elbow) and lumbar spine on 12 July 2008;
(c) found against Mr Kosovic in respect of injury to his cervical spine and psychiatric injury, and
(d) found against Mr Kosovic in respect of his claim for continuing incapacity, finding no incapacity beyond 5 August 2008.
The Commission issued a Certificate of Determination on 15 April 2010 in the following terms:
“The Commission determines:
1. That the Applicant is to discontinue the claim for carpal tunnel syndrome. The requirement to lodge a Notice of Discontinuance is dispensed with.
2. Award for the Respondent in relation to the Applicant’s claimed injury to his cervical spine and for anxiety and adjustment disorder resulting from his fall at work on 12 July 2008.
3. That the Respondent is to pay the Applicant weekly benefits compensation of $788 under sections 33, 36 and 37 of the 1987 Act in respect of total incapacity for work from 12 July 2008 to 5 August 2008.
4. That the Respondent is to pay the Applicant’s reasonable and necessary medical expenses under section 60 of the 1987 Act in respect of injuries to his right upper extremity (elbow) and lumbar spine arising out of the fall on 12 July 2008.
5. That the Respondent is to pay the Applicant’s costs as agreed or assessed.
Directions
As a result of the above determination, the following directions are made:
1. The matter is to be referred to the Registrar for appointment of an Approved Medical Specialist (AMS).
2. Leave is given to both parties to lodge and serve on the other party within 7 days a list of the documents produced by the Respondent on 18 March 2010 that are requested to be forwarded to the AMS.
3. If there is dispute in relation to which of the produced documents are to be forwarded to the AMS, a further teleconference is to be organised within 14 days at a time convenient to both parties and the Arbitrator to settle the list of documents.”
In an appeal filed on 11 May 2010, Mr Kosovic seeks leave to appeal the Arbitrator’s determination and findings relating to incapacity after 5 August 2008 and the costs order. The determination and findings on injury are not challenged.
ON THE PAPERS REVIEW
Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions 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 TO APPEAL
Monetary threshold
Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of s 352 of the 1998 Act.
In respect of the monetary thresholds, s 352(2) provides:
“(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.”
The “amount at issue” must be determined by reference to the amount of compensation at issue in the proceedings before the Arbitrator at first instance (Sheridan v Coles Supermarkets Australia Pty Limited [2003] NSWWCCPD 3).
Mr Kosovic’s claim for weekly payments of compensation from 11 September 2008 on a continuing basis (to age 66, which is the entitlement under the legislation) is in excess of $5,000 and also more than 20 per cent of the closed period awarded.
The employer does not address the submission on behalf of Mr Kosovic that the amount of compensation claimed and at issue is in excess of $64,000, but submits that the threshold is not met “because there is no evidence on which the Arbitrator would have been able to find a continuing award of any sort after 5 August 2008”.
To contend that the monetary threshold which must be met before the appeal can proceed, may be fixed by reference to evidentiary considerations and a possible outcome of the very appeal for which leave is sought is misconceived and rejected.
I am satisfied that the monetary thresholds in s 352(2) are satisfied.
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with s 352(4) of the 1998 Act.
I grant leave to appeal.
FRESH EVIDENCE
Neither party has sought to tender any fresh or additional evidence on appeal.
ISSUES IN DISPUTE
The grounds of appeal advanced by the appellant are that the Arbitrator erred in failing to:
a) determine the question of incapacity after 5 August 2008;
b) award weekly payments after 5 August 2008, and
c) consider and determine an uplift of costs application.
Submissions are attached to the Notice of Opposition filed on behalf of the employer, addressing each ground of appeal.
I propose referring to the opposing submissions in the discussion of the appeal.
EVIDENCE
Mr Kosovic
Mr Kosovic’s evidence is set out in a statement dated 17 July 2009, which is relevant to the issues is set forth:
“(a) I was born in Zenica in Bosnia in 1957 and I came to Australia in 1991.
(b) I did 12 years schooling before studying clinical science and journalism.
(c) Soon after arriving in Australia I worked for Boks Aluminium Windows before commencing work as a steel fixer.
(d) I worked as a steel fixer up until February 2000 when unfortunately I suffered a nasty injury to my left shoulder and to some extent my neck. I saw Dr Drew Dixon and was appropriately compensated for that injury.
(e) After an appropriate period of rehabilitation, I returned to the workforce doing fairly light factory work through an agency.
(f) On 12 November 2007 I got a job with Star City Pty Ltd as a steward in the stewarding department. Stewarding is a glorified name for kitchen help and in that role I was required to fill dishwashers, sweeping floors at the end of shift and mopping at the end of a shift and emptying rubbish bins together with other assignments that might be given. I would work in various places and during one shift I might work in two or three places. My average pay per fortnight was $1,450.00 and I would generally work afternoon shift commencing at 3:00 pm or 5:00 pm finishing between 12:00 midnight and 2:00am.
(g) My neck up until the injury on 12 July 2008 had been reasonably non-problematic. To the best of my recollection I had not seen a doctor in relation to my neck for some years. However my left shoulder had been a problem but not so much of a problem to stop me from doing this type of work. Prior to this accident I had no problems of any consequence in my lower back or right leg. There was a short complaint in relation to my low back immediately following the 2000 injury. The 2000 injury essentially affected my left shoulder, left upper limb and to a limited extent my neck.
(h) On 12 July 2008 I was working at the Pitt Stop staff dining area in the washing up area. There was an express window and I was required to take the used plates from the express window and stack them in the dishwasher. The dishwasher did not have a closed waste pipe straight to the drain. Rather the water would flow from the dishwasher straight into the drain which was situated approximately 1.5 metres away. When the dishwashing was constant the water tended not to drain directly into the drain from the dishwasher but would accumulate. When it accumulated the floor surface necessarily became wet. When the floor surface became wet it became slippery. There were no mats. There was no friction creating a [sic] surface applied. It just became a wet slippery floor.
(i) As I proceeded to take plates and cutlery from the express window to the dishwasher I slipped off both feet down onto my right elbow and lower back. I immediately felt terrible pain in my right elbow and my right arm and the lower back and right leg. I had pain and numbness in my right leg from my back and I also had pain from my leg striking the tiled concrete. I had pain in my neck.
(j) I was assisted to my feet by Daniel. I was unable to see my doctor who I have seen for the last 17 years until Monday morning. On Monday morning I saw him at the earliest convenience. I was very keen not to lose my job and notwithstanding the terrible pain I suffered I was given a 4 hours per day 4 days per week light duty certificate from 18.07.08 to 29.07.08. I was told by my supervisor that no such work was available.
(k) The symptoms that I suffered since the accident are as follows:
· severe pain in my right elbow and arm;
·pain and restriction of movement in my back with referred pain and numbness into my right leg;
· pain in my neck;
· anxiety;
· panic attacks; and
· depression.
(l) I am very concerned that I have developed a fear in relation to returning to the kitchen because of the trauma suffered. My general practitioner referred me to a psychologist. I saw Dr Salu Dean for the first time on 6 August 2008.
(m) In October 2008 I was certified fit for suitable duties and I was looking for work within my capacity. Prior to being certified fit for suitable duties, I was actually looking for work in the hope that I might find something light. I live in a home with one income and it is very difficult to survive.”
Mr Kosovic was cross-examined extensively as to the injuries to his left shoulder, neck and lower back that he sustained when working as a steel fixer in 2000, after which he was unemployed for many years, and for which he was awarded damages in the sum of $350,000.
Mr Kosovic’s various accounts of pain distribution in the neck and both arms and alleged consequential depression and incapacity recorded in the medical evidence associated with those proceedings, and in particular the reports of Drs Ainscough, Dixon and Revai, were the subject of interrogation and comparison with his complaints of injury and consequential depression the subject of these proceedings.
The issues on appeal are confined to incapacity findings and costs, and reference to the transcript in detail is not necessary. The relevant assertion of incapacity, from the fall at work on 12 July 2008, was pain in the right elbow, lower back and fear of returning to the kitchen, which cumulatively were Mr Kosovic’s explanation for rejecting the employer’s offer (at a meeting on 5 August 2008) of light duties polishing cutlery, which offer was not referred to in his statement.
I observe that Mr Kosovic disputed the suggestion that psychiatric symptoms alone prevented his return to work and he somewhat disingenuously revealed that his resume for job applications to date referred to his problems with his right elbow, shoulder, neck, back and depression.
The transcript discloses that many of Mr Kosovic’s responses were volatile and quick tempered and that, counsel continually interrupted each other and engaged in intemperate exchanges which were not appropriate.
Medical Evidence
Medical evidence relevant to the issues on appeal and relied on by Mr Kosovic were the medical certificates provided by Dr Goyal (the treating general practitioner) and his report dated 7 August 2008, radiology reports from Drs Cohen, Sachinwalla, McGlone and Houang, and reports from the orthopaedic surgeon, Dr Dixon, dated 13 July 2009.
The initial medical certificates refer to a right elbow injury and a soft tissue injury to the lumbosacral spine. Dr Goyal certified Mr Kosovic fit for suitable duties (non-repetitive and without bending, pushing and pulling) as from 19 July 2008 (a week after the injury). However, Dr Goyal then certified Mr Kosovic unfit for work on 5 August 2008 due to an acute anxiety syndrome after a meeting at work.
In a report dated 7 August 2008, Dr Goyal stated (in explanation for the changed certification) that Mr Kosovic was unfit for work as a result of his psychological condition. He makes no reference to any physical injury causing incapacity. Subsequent certificates are in the same terms. The certificate dated 9 October 2008 certifies Mr Kosovic fit for suitable duties and records no restrictions.
The radiological reports refer to:
(a) the suggestion of a small focal tear or some degeneration due to lateral epicondylitis identified on ultrasound of the right elbow and mild tendinopathy identified on MRI;
(b) a broad-based disc bulge with some ligamentum flavum and facet point hypertrophy and associated degenerative facet joint disease at the L3/4 level contributing to mild central canal narrowing. A broad-based disc buldge at L4/5 levels was identified on CT scan and MRI of the lumbosacral spine, and
(c) multiple small protrusions centrally at C3/4, C4/5, broad-based protrusion at C5/6, C6/7, arthropathy of apophyseal joints at C4/5 and C5/6 identified on MRI of the cervical spine.
Dr Dixon records a history of a jarring injury to the right elbow and shoulder, and neck together with a strain injury to the lower back associated with right sciatica on 12 July 2008. He notes a previous injury to the left shoulder in 2000.
Dr Dixon accepted, without qualification, that Mr Kosovic’s continuing complaints of physical symptoms had prevented his return to employment, he was not informed of any psychiatric symptoms.
Dr Dixon quantified a residual whole person impairment of 23 per cent (right shoulder 8 per cent, cervical spine 5 per cent, lumbar spine 7 per cent, right elbow 6 per cent) and considered his prognosis for returning to work guarded (as he did in 2001, when he assessed Mr Kosovic for his damages action).
The reports relied on by the employer are from the orthopaedic surgeon, Dr Hitchen, dated 19 August 2008 and 2 September 2008, and a report from the psychiatrist, Dr White, dated 1 October 2008.
Dr Hitchen diagnosed soft tissue injuries to the right elbow and lower back, associated with an aggravation of symptoms arising from pre-existing lumbar spondylosis.
He noted amplified pain behaviour in response to examination and considered that any soft tissue injuries sustained, including an aggravation of an underlying process, would resolve within six weeks of the event.
Unlike Dr Dixon, he directly addressed fitness for work, stating that Mr Kosovic would be physically fit for normal duties by the end of August 2008. He noted that Mr Kosovic was “somewhat disgruntled regarding his treatment at the workplace and this may prove a barrier to returning to work”. No whole person impairment was assessed.
As at 2 September 2008, Dr Hitchen confirmed that the radiological investigations did not reveal any significant traumatic pathology that could cause long-term disability, but did show degenerative changes in the lumbar spine, present for some time.
From an orthopaedic perspective, Dr Hitchen believed Mr Kosovic was fit to return to work on normal duties.
From a psychiatric perspective, Dr White endorsed Dr Hitchen’s views on incapacity, and found no symptomatic, cognitive, behavioural or psychosocial criteria for any mental illness, merely abnormal illness behaviour associated with personality dysfunction. In answer to an enquiry as to why he did not return to the light duties position offered in a meeting, Mr Kosovic informed Dr White, “I have [a] fear of the kitchen I was on the floor in dirty water. What is next? I would lose my life.” When asked to expand on this statement, Mr Kosovic made no reference to physical injuries preventing him from polishing cutlery, which was the light duties position offered on 5 August 2008.
ARBITRATOR’S DECISION
The Arbitrator granted leave to the employer to raise the previously un-notified issue, that Mr Kosovic did not suffer any injury at work on 12 July 2008. Her exercise of the discretion under s 289A(4) of the 1998 Act is outlined in detail at [12] – [21].
The Arbitrator noted the parameters of the dispute, that Mr Kosovic had suffered similar injuries and symptoms prior to the fall in July 2008 in respect of the lumbar spine, cervical spine and anxiety and depression and consequential inability to work. The Arbitrator isolated each claimed injury to consider causation by reference to the evidence before her. She then considered the incapacity issue by reference to the medical evidence dealing with that issue.
She found that on 12 July 2008 Mr Kosovic:
(a) did not suffer an injury to his neck (at [45] of her Reasons);
(b) suffered a soft tissue injury to his lumbar spine (at [63] of her Reasons);
(c) suffered a soft tissue injury to his right upper extremity (elbow) (at [73] of her Reasons), and
(d) did not suffer anxiety and depression (at [86] of her Reasons).
In addition, the Arbitrator made the following finding regarding incapacity at [94]:
“Total incapacity from 12 July 2008 to 5 August 2008 in the amount of $788 per week pursuant to sections 34, 36 and 37 of the 1987 Act.”
The Arbitrator at [95] of her Reasons awarded s 60 expenses for the injuries to the right upper extremity (elbow) and lumbar spine, and remitted the lump sum assessment claims to the Registrar for referral to an Approved Medical Specialist.
ARBITRATOR’S REASONS
The Arbitrator at [88] to [90] identified the evidence of Drs Goyal, Hitchen and White on incapacity in order to determine incapacity caused by the injuries she had found, that is, injury to the right elbow and lower back.
She considered that the opinions of Drs Hitchen and White (which I have outlined above) supported the employer’s contention that two soft tissue injuries resulting from a fall would be unlikely to result in the total incapacity Mr Kosovic claimed.
The Arbitrator at [92] noted Dr Goyal’s statement in his report dated 7 August 2008 that he had certified Mr Kosovic unfit on 5 August 2008 because Mr Kosovic was then suffering from stress and anxiety after a meeting at work.
The Arbitrator concluded that, as she had found that Mr Kosovic did not suffer from a psychiatric condition causally related to his injury, the certificates of fitness after 5 August 2008 did not apply to the injuries she found.
DISCUSSION
First ground of appeal
The appellant asserts that the Arbitrator:
· failed to determine incapacity after 5 August 2008;
· failed to consider the medical evidence of incapacity in the reports of Drs Goyal, Dixon, McGlone and Houang, and
· failed to provide adequate reasons for the closed period award.
No argument in support of those assertions is advanced.
The medical evidence of incapacity in the reports of Drs Goyal, Dixon, McGlone and Houang is not identified.
Nor is the alleged inadequate reasoning process identified.
The transcript at T63.50 records counsel’s assertion of Mr Kosovic’s entitlement to continuing weekly payments. No analysis of the medical evidence on incapacity nor submissions in support of the claim for incapacity was advanced.
I have considered the reports of Dr Dixon. Dr Dixon does not address fitness for work in direct terms, only implicitly by reference to a poor prognosis for a return to work and an assessment of whole person impairment. The Arbitrator’s omission of reference to this comment is not, in my view, error.
It cannot be said that Dr Dixon’s reports were not considered. The Arbitrator, when considering the injury issues referred in detail to Dr Dixon’s opinion at [32], [33], [34], [48], [49], [50], [65], [66], [67] and [68].
Having identified correctly at [88] that only two injuries (that is the right elbow and back) were relevant to his incapacity since 12 July 2008, the Arbitrator was then obliged to consider the evidence relevant to those injuries. Dr Dixon’s comment concerning Mr Kosovic’s poor prognosis for a return to work and whole person impairment (an inference regarding incapacity) was not confined to an assessment of the right elbow and back.
Dr Dixon’s comment was based on, in addition to the found injuries, Mr Kosovic’s complaints relating to his neck (an injury found not to relate to the July 2008 fall) and injury to the right shoulder and bilateral carpal tunnel syndrome (injuries which were withdrawn from the Application).
To put it briefly, it cannot be said that there was an opinion on incapacity from Dr Dixon for the Arbitrator to consider and I accept the employer’s submissions to that effect.
The appellant’s assertion that the radiological evidence in the reports of Drs McGlone and Houang discloses incapacity is without foundation. The Arbitrator’s omission of reference to this evidence when determining incapacity is not error.
The absence of direct medical opinion by the radiologists on the issue would have required the Arbitrator to, presumably, rely on her own general knowledge and interpret radiological findings, which interpretation would have been fundamentally flawed.
In the circumstances, the analysis required was in relation to the opinions of Drs Goyal, Hitchen and White, all of whom confined their opinions on incapacity to assessment of the right elbow and back, which opinions disclosed no real dispute to be reconciled. The employer’s submissions correctly identify the Arbitrator’s analysis (at [88] to [92]) of that medical evidence.
The Arbitrator, in those paragraphs, notes Dr Hitchen’s opinion concerning resolution of soft tissue injuries within six weeks (that is, end of July 2008), and that amplified pain behaviour and psychiatric symptoms affected his return to work, which opinion is consistent with the history recorded by Dr White and the opinion of Dr Goyal as to why Mr Kosovic did not return to work.
The assertion that the evidence of Dr Goyal was not considered is wrong. The Arbitrator accepted the opinion of Dr Goyal, the treating general practitioner, as to precisely when Mr Kosovic’s fitness for work was not affected by the right elbow and back injury. As I have previously noted, Dr Goyal made no reference to any physical injury causing incapacity in his report dated 7 August 2008, when it seems he was asked by the employer for an explanation for the certificate of unfitness, when he had previously provided light duties certificates.
As I have observed, the Arbitrator, when giving reasons for her conclusions as to injury and incapacity, analysed the evidence in a manner which separated the evidence into compartments. Notwithstanding that methodology, her assessment is balanced regarding Mr Kosovic’s claim for incapacity.
The most fundamental requirement that the statement of reasons must satisfy is that the losing party must be able to understand why he lost. In my opinion, the reasons satisfy the statutory requirements. The Arbitrator’s reasons, although brief, are stated sufficiently and comply with the duty to provide reasons. The nature of an Arbitrator’s duty to give reasons was dealt with by Byron DP in Jennifer Tyack formerly t/as Country Kidz v Cain [2007] NSWWCCPD 119 (Cain):
“The Arbitrator must not only note the relevant evidence and give reasons for findings made, but where the evidence is disputed, he must give a clear explanation of the reasons why some evidence is preferred over other evidence (Mayne Group Limited v Mikhail [2006] NSWWCCPD 249 at [41]. See also, Misfud v Campbell (1991) 21 NSWLR 725 at 728; Bright v Joodie Holdings No 2 Pty Ltd [2005] NSWCA 134, and Hume v Walton [2005] NSWCA 148).
In the High Court Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56 at [64], Kirby J said:
‘The more significant the decision the clearer the duty may be, the clearer the reasons should be the clearer the consequences will be for the breach. Some decisions cry out for a clear explanation...Especially is this so where the legislature has recognised the need and imposed a duty to give reasons and where the decision is very important for the person affected and for others close to that person.’
The duty to give reasons in the Commission is prescribed by statute at section 294(2) of the 1998 Act and at Rule 15.6 of the 2006 Rules.” (at [102]-[104])
Cain was cited with approval by Snell ADP ( as he then was) in Guardian Group Australia Pty Ltd v Chhay [2008] NSWWCCPD 98 at [90]. Snell ADP also provided the following helpful summary in Singh v FTW Products Pty Ltd [2007] NSWWCCPD 230:
“To succeed in having the decision set aside on this ground Mr Singh must demonstrate not only that the reasons are inadequate, but that their inadequacy discloses that the Arbitrator has failed to exercise his statutory duty to fairly and lawfully determine the application (YG & GG v Minister for Community Services [2002] NSWCA 247; Absolom v NSW TAFE [1999] NSWCA 311; ADCO Constructions Pty Ltd vFerguson [2003] NSWWCCPD 21). The standard by which the adequacy of reasons must be determined is relative to the nature of the decision itself and the decision-maker (Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSWWCCPD 6). An Arbitrator’s reasons should be read as a whole and it is not for a Presidential Member on review to comb through the Arbitrator’s findings and reasons in search of error (Beale v GIO (NSW) (1997) 48 NSWLR 430 at 444; Minister for Immigration and Multicultural Affairs v Wu Shu Liang [1996] HCA 6; (1996) CLR 259). It is not necessary for an Arbitrator to refer to every piece of evidence (Yates Property Corporation Pty Limited (in Liq) v Darling Harbour Authority (1991) 24 NSWLR 156; Ainger v Coffs Harbour City Council [2005] NSWCA 424).” (at [62]-[63])
To the extent that it was necessary for the Arbitrator to explain the basis on which she determined the incapacity claim, at [91] she acknowledged (that is, accepted) the employer’s submission, which she noted was supported by Drs Hitchen and White, that two soft tissue injuries resulting from a fall would be unlikely to result in the total incapacity Mr Kosovic claimed. Her reference to the evidence of Drs Hitchen and White as to “amplified pain behaviour” and “voluntary symptom amplification” discloses a further matter she considered relevant to the incapacity claim.
The Arbitrator accepted the treating general practitioner’s opinion (and not Dr Hitchen’s certification until the end of August 2008) on the obvious basis that the treating doctor is likely to have a longitudinal perspective in relation to Mr Kosovic’s condition, a knowledge that spanned the pre and post injury periods, uncontaminated, or less contaminated, by the litigation process. The transparency of that finding did not oblige her to spell out that detail of her reasoning process for the closed period award.
As I have observed, no submissions on the application of ss 36, 38 and 40 of the 1987 Act to Mr Kosovic’s claim were advanced at the hearing nor in support of the appeal. The onus of proof that a worker is totally or partially incapacitated lies with the worker. The onus was not discharged at the hearing or on appeal. There was no failure to determine the question of incapacity after 5 August 2008, merely an adverse finding on the issue, with adequate reasons. This ground of appeal fails.
Second ground of appeal
The appellant asserts a failure by the Arbitrator to award weekly payments as claimed from 11 September 2008 (when weekly payments ceased).
The assertion is not accompanied by argument in support, merely the assertion that the Arbitrator:
·failed to consider incapacity after 5 August 2008, and
·failed to provide adequate reasons.
In all significant respects this is the same contention advanced in ground one, and I reject this ground of appeal, for the reasons I have expressed above.
Third ground of appeal
An application seeking a 30 per cent uplift of costs was made by the worker’s counsel (T64.5), which was opposed. The argument advanced in support was that the case was complicated due to the changed defence and the pre-existing injury, which required analysis of chronology and pathology. Those submissions are repeated in the appeal.
A matter may be certified complex for the purposes of Schedule 6, Table 4, item 4 of the Workers Compensation Regulation 2003.
The Arbitrator did not address the application in her decision. I will.
Implicit is the suggestion that the uplift is appropriate because the employer, by its conduct in amending its Reply introduced material requiring preparation which was unreasonable for the appellant.
The changed nature of the Reply does not indicate complexity. The appellant was aware of the injuries he suffered in 2000, and the documents relating to his damages action were in the possession of his solicitors prior to the amendment, as the same legal firm represented him in both proceedings. In addition, there was no need for further witnesses or evidence to be obtained to respond to the amended Reply.
The volume of additional documented material (which I have read) does not demonstrate complexity.
Having regard to the substance of the issues between the parties, the evidence did not generate, in my opinion, factual issues of more than usual complexity.
I am not persuaded that it is appropriate to certify the matter as complex. There are no circumstances which justify an uplift of costs.
CONCLUSION
The decision of the Arbitrator dated 15 April 2010 is confirmed.
.
COSTS
No order as to costs of the appeal.
Lorna McFee
Acting Deputy President
7 October 2010
I, MELANIE CURTIN, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF LORNA MCFEE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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