Kumar v Bartter Enterprises Pty Ltd
[2006] NSWWCCPD 31
•1 March 2006
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Kumar v Bartter Enterprises Pty Ltd [2006] NSWWCCPD 31
APPELLANT: Rajinder Kumar
RESPONDENT: Bartter Enterprises Pty Ltd
INSURER:GIO Workers Compensation (NSW) Ltd
FILE NUMBER: WCC6792-04
DATE OF ARBITRATOR’S DECISION: 11 October 2004
DATE OF APPEAL DECISION: 1 March 2006
SUBJECT MATTER OF DECISION: Section 4 of the Workers Compensation Act 1987; chronic pain syndrome; abnormal illness behaviour; incapacity for work
PRESIDENTIAL MEMBER: Acting Deputy President Michael Sassella
HEARING:On the papers
REPRESENTATION: Appellant: Buttar Caldwell & Company
Respondent: Rankin & Nathan Solicitors
ORDERS MADE ON APPEAL: The decision of the Arbitrator is confirmed.
The costs of the appeal in this matter are to be paid by the Respondent Employer.
BACKGROUND TO THE APPEAL
On 8 November 2004 the Appellant Worker, Rajinder Kumar (‘Mr Kumar’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 11 October 2004.
The Respondent Employer to the Appeal is Bartter Enterprises Pty Ltd (‘Bartter Enterprises’).
Mr Kumar is aged 38, having been born in Punjab, India on 3 February 1968. He completed high school education in India and then became a jewellery maker, working for his father. In 1986 he was shot in the face when the jewellery shop he worked in was burgled.
He went to New Zealand in 1989 and became a citizen in 1993. In New Zealand he worked in a wood factory and in a bakery. In 1994 he came to Australia and obtained citizenship. He moved to Griffith and commenced work at Bartter Enterprises on 24 July 1995.
Mr Kumar was employed in the firm’s processing plant where his duties included lifting tubs of chicken from a line onto metal pallets, cutting and trimming chicken fillets and packing chicken into tubs which he then had to move. Mr Kumar said that these tubs weighed about 30 kg when full, had to be lifted down from a three-feet high conveyor belt, and were normally moved by two workers.
In 1998 Mr Kumar complained of headaches. He was examined and diagnosed with transverse myelitis. He was given a lumbar puncture from which he says he “made a reasonable recovery” after a period of resulting lumbar pain.
Between 9 and 31 August 2001 Mr Kumar’s evidence is that he lifted the full tubs alone and did so all of each work day. On 29 August 2001 Mr Kumar noticed soreness in his back. The back pain persisted until 3 September 2001 and after that date. On that date he was assigned to work in the fillet room where heavy lifting was not required.
On 7 September 2001 he was working in the packing room when he felt severe back pain. He reported this to his supervisor. He saw a nurse who gave him a certificate for light duties for the next two weeks. The symptoms remained. He saw his general practitioner, Dr T Samuel, who certified him as unfit for work from 10 to 14 September 2001.
On 19 September 2001 Mr Kumar returned to full duties and he worked until approximately 7 February 2002. He did not return to work again until he attempted a graduated return to work under a rehabilitation plan on 20 May 2002. This lasted for two days. Mr Kumar said he was ceasing work because his back, right shoulder, right elbow and both wrists were too painful to permit him to continue. He has continued to provide WorkCover certificates stating that he is unfit for work.
On 7 November 2003 Mr Kumar’s employment was terminated.
On 11 September 2001 Mr Kumar lodged a claim for workers compensation stating that he had had to lift, unassisted, 30 kg tanks for three days and this was the cause of his backache.
On 20 August 2002 Mr Kumar’s solicitors claimed compensation under sections 66 and 67 of the Workers Compensation Act 1987 (‘the 1987 Act’) citing injuries to the neck, back, right arm and both legs. A later claim under sections 66 and 67 appears to have been made relating to Mr Kumar’s sexual functioning. GIO responded stating that this claim was premature but never formally made a decision rejecting the claim. On 5 June 2003 Mr Kumar lodged with the Commission an Application to Resolve a Dispute (matter number 10696-03). A teleconference was held on 13 October 2003. The matter did not settle. The Arbitrator, who was a different arbitrator from the Arbitrator in the present matter, requested that Mr Kumar be referred to two AMSs for “assessment of permanent impairment dispute”. The parties had agreed on Drs J Bodel and F Breslin as AMSs acceptable to both of them. Dr Bodel assessed Mr Kumar’s orthopaedic impairments. Dr Breslin assessed Mr Kumar’s permanent loss of efficient sexual function. Mr Kumar appealed against Dr Breslin’s medical assessment certificate. An Appeal Panel upheld Mr Kumar’s appeal. A teleconference in the matter was held on 22 September 2004. This was convened by the same Arbitrator who had previously been involved. The matter settled. The Arbitrator issued a Certificate of Determination – Consent Orders under section 294 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) recording the discontinuance of the proceedings.
In making the above claim Mr Kumar alleged that the injuries were not just to the back but they were also to the neck, right arm above elbow, right leg above knee and left leg above knee.
Mr Kumar received weekly compensation until 28 November 2003 and reimbursement for reasonable and necessary medical expenses until 24 October 2003. GIO Workers Compensation (NSW) Ltd (‘the Insurer’) denied liability as of those dates. The Insurer based its decision on medical evidence stating that Mr Kumar was suffering only from degenerative disease that was not work related.
On 15 April 2004 Mr Kumar filed with the Commission an Application to Resolve a Dispute in which he sought weekly compensation of $517.99 commencing on 1 December 2003 and ongoing, and compensation for medical and associated expenses in an amount of $5,000. Injuries were said to be to the neck, back, right arm, right leg, left leg and to sexual function.
Bartter Enterprises replied on 12 May 2004 alleging that Mr Kumar was not injured at all, that he was not incapacitated for work, and that the medical expenses were not reasonably necessary and were not recoverable under the legislation.
On 29 July 2004 Mr Kumar’s solicitors served and lodged a wages schedule detailing a difference of $569.22 being the difference between his actual weekly earnings (nil) and comparable weekly earnings ($569.22). This was said to be payable from 1 December 2003. A schedule of medical and related expenses totalling $3,318.00 was also filed itemising pharmaceuticals, medical consultations and travel costs associated with medical treatment.
On 7 September 2004 an Arbitrator conducted a conciliation conference which did not result in an agreed outcome. She therefore proceeded to make a determination. A transcript of that hearing exists and discloses the following matters of relevance:
· Mr Kumar in cross examination said that he had had the full range of injuries listed above in paragraph 15 since the date of injury, despite referring only to a back injury in his original compensation claim.
· Mr Kumar then said that his right arm had been troublesome since 1998 and that he had not injured it further in 2001.
· Mr Kumar’s case was based on him suffering from chronic pain syndrome caused by the symptoms that developed from Mr Kumar’s duties on 7 September 2001.
· Mr Kumar argued that he was totally incapacitated for work as of 1 December 2003.
· Mr Kumar further argued that, if he was found to be partially incapacitated, he should receive the maximum weekly compensation under section 40 of the 1987 Act because he had attempted rehabilitation which had been unsuccessful.
· Bartter Enterprises argued that Mr Kumar’s back was the only part of his body said to be injured at the time of the compensation claim in 2001. The other parts of the body were mentioned only from 2002 onwards. By that time Mr Kumar was said to have ceased work.
· Bartter Enterprises argued that there was little support from the medical experts for Mr Kumar suffering from chronic pain syndrome and relied on the report of the Approved Medical Specialist (‘AMS’), Dr James G Bodel, obtained in the earlier proceedings. This report was attached to Bartter Enterprises Reply to Application to Resolve a Dispute.
· Bartter Enterprises further stated that it is difficult to argue that Mr Kumar suffers from chronic pain syndrome when his presentation is inconsistent – Mr Kumar’s presentation was much worse when he saw doctors to whom he had been referred than it was when he was subject to surveillance. The inference was that a person with genuine chronic pain would present the same way at all times.
· Bartter Enterprises argued that at best Mr Kumar merited a very small award under section 40 of the 1987 Act.
THE DECISION UNDER REVIEW
The Certificate of Determination, dated 11 October 2004, records the Arbitrator’s orders as follows:
“1. Award for the Respondent for weekly payments from 30.10.2003.
2. Respondent to pay unpaid medical expenses and travelling incurred before 30.10.2003.
3. The Respondent to pay the Applicants (sic) costs as agreed or assessed.”
The Arbitrator’s Statement of Reasons for Decision included the following findings and reasoning:
· Mr Kumar’s medical expenses totalled $3,318.
· Mr Kumar suffered an injury on 28 August 2001, ie a mild impairment of the back and neck.
· Mr Kumar received compensation up to 30 October 2003.
· Mr Kumar last worked in May 2002.
· Mr Kumar grossly exaggerated his symptoms at his medical examinations.
· Mr Kumar may have been unfit for work for some time but his symptoms should have abated by “this time” [presumably 30 October 2003] and he should be fit for work. Mr Kumar appeared to have made no attempt to find work since his weekly payments stopped on 30 October 2003.
· The Insurer was not liable for weekly payments since 30 October 2003.
· The Insurer was liable for any unpaid medical expenses incurred prior to 30 October 2003.
In summary the Arbitrator wrote regarding the weekly compensation claim that on 29 August 2001 Mr Kumar received injuries to his neck, back, right arm, left leg, right leg and sexual organs which arose out of or in the course of his employment. Mr Kumar was partially incapacitated for work as a result of his injuries from 29 August 2001 to 30 October 2003. Mr Kumar has been paid weekly compensation of $441.90 up to 30 October 2003.
In summary, as regards Mr Kumar’s medical expenses, the Arbitrator wrote “Rajinder Kumar’s following medical and related expenses incurred as a result of treatment, services or assistance that were not reasonably necessary for the compensable injury.” This paragraph has obvious problems. The expenses would not be recoverable if they were, as the Arbitrator here says, “not reasonably necessary”. The Arbitrator also failed to list what were the “following medical and related expenses”. Mr Kumar has not appealed the Arbitrator’s order in respect of section 60 expenses and therefore her order in this respect is not part of this appeal.
GROUNDS OF APPEAL
On 8 November 2004 Mr Kumar sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Commission citing the following grounds of appeal:
1.The Arbitrator erred in finding that the Applicant’s “symptoms should have abated by this time [30 October 2003] and he should be fit for work”.
2.This finding is not supported by the medical evidence.
3.The Arbitrator found that there was a considerable degree of embellishment and fabrication. This behaviour can be explained by chronic pain and illness behaviour as diagnosed by Dr Dalton.
4.The Arbitrator does not address the diagnosed condition of abnormal illness behaviour in her reasons but merely finds exaggeration and fabrication based upon the report of Dr Bodel. Even though Dr Bodel notes exaggeration and fabrication he does find an assessable orthopaedic loss in both the back and the neck. As an orthopaedic surgeon he would not be qualified to diagnose illness behaviour.
5.Again, Dr Wan explains the gross symptoms in his diagnosis of chronic pain syndrome.
6.In the absence of addressing the pain syndrome/illness behaviour it was not open to the Arbitrator to find that the Applicant had no compensable incapacity.
7.The findings of the Arbitrator go against the weight of the medical evidence and are not reasonable.
8.The Applicant claims weekly payments from 1 December 2003 to date and continuing which would mean any continuing award would entitle the Applicant to monies in excess of the threshold.
Bartter Enterprises responded to those grounds on 25 November 2004 making the following points:
· As regards numbers 1 and 2 in paragraph 23 above, Bartter Enterprises stated that these matters are disputed by Bartter Enterprises.
· As regards number 3 in paragraph 23 above, Bartter Enterprises stated that the assertion is disputed. The videotape of Mr Kumar shows a completely different physical behaviour from that displayed at medical examinations and at the arbitration hearing. This difference in behaviour is not explained by chronic pain and illness behaviour as diagnosed by Dr Dalton as is contended by Mr Kumar. Bartter Enterprises submits that this is not a medical diagnosis but merely a descriptive term.
· As regards number 4 in paragraph 23 above, Bartter Enterprises argued that Dr Dalton had not diagnosed “abnormal illness behaviour”. He had simply used descriptive terms. Mr Kumar complained that Dr Bodel, an orthopaedic surgeon, was not qualified to diagnose “illness behaviour” but then sought to rely upon an alleged diagnosis of “illness behaviour” and “abnormal illness behaviour” by Dr Dalton who is a sports physician.
· As regards numbers 5 to 7 in paragraph 23 above, Bartter Enterprises submitted that the term “chronic pain syndrome” as used by Dr Wan was a descriptive term only and not a medical diagnosis. Dr Wan’s opinion could be discounted following the receipt of Dr Bodel’s binding AMS assessment. Dr Bodel assessed minor impairments of 5% of the neck and 5% of the back. Bartter Enterprises submitted that it is reasonable to conclude, as the Arbitrator did, that a person with such minor impairments and who had grossly exaggerated his symptoms at medical examinations and at the arbitration hearing, and who had displayed a considerable degree of embellishment and fabrication, did not have an incapacity for work. Bartters argued that it was clear that the Arbitrator had regard to the medical opinions of Mr Kumar’s doctors, including those of Drs Dalton and Wan, and that the Arbitrator chose not to accept Mr Kumar’s medical evidence, which she was entitled to do.
ISSUES IN DISPUTE
The only issue in dispute in this appeal is, “Did the Arbitrator err in finding that Mr Kumar’s symptoms should have abated by 30 October 2003 and in not addressing the diagnosis of chronic pain syndrome and abnormal illness behaviour?”
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 submission by Mr Kumar 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.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act. The amount at issue was $23,827.54 as at 19 November 2004. By now it would be considerably higher. It is also 100% of the award. Section 352(2) of the 1998 Act is therefore satisfied.
Leave to appeal is granted.
DISCUSSION AND FINDINGS
The power of a Presidential Member of the Commission on Appeal to revoke or change a decision is exercisable only when it can be demonstrated that the decision of the Arbitrator is affected by a legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172).
At the same time, however, not every factual, legal or discretionary error will necessarily result in a change to, or revocation of, the decision of the Arbitrator. As Deputy President Fleming said in Mayne Health Group t/as Nepean Private Hospital v Sarah Sandford [2002] NSW WCC PD 6 it is not accepted that an appeal will be successful where there is an error of law, error of fact or error in the exercise of a discretion unless that error ultimately affects the fairness and lawfulness of the decision and the proper exercise of the Arbitrator’s powers.
Did the Arbitrator err in finding that Mr Kumar’s symptoms should have abated by 30 October 2003 and in not addressing the diagnosis of chronic pain syndrome and abnormal illness behaviour?
Mr Kumar’s submissions appear to be on firm ground in suggesting that the Arbitrator failed to deal in any clear way with Mr Kumar’s chronic pain syndrome or abnormal illness behaviour and whether such a condition caused him to be incapacitated for work. When her Reasons for Decision are read literally she appears to have taken account of only Mr Kumar’s orthopaedic condition and made findings based on that condition. The Arbitrator should have explicitly addressed Mr Kumar’s argument that it was the chronic pain syndrome or abnormal illness behaviour that prevented Mr Kumar from working and that this condition was a sequela of the orthopaedic injury that arose out of or in the course of Mr Kumar’s employment.
This was an error of law. It is necessary to consider whether the error affected the fairness and propriety of the Arbitrator’s decision.
The Arbitrator found Mr Kumar’s orthopaedic injury to be minor. This decision was open to her on the available medical evidence and was not challenged in the grounds of appeal.
It is necessary, however, to consider the evidence regarding chronic pain syndrome and abnormal illness behaviour. Dr Christopher Thien, a neurosurgeon, saw Mr Kumar on 8 and 15 February 2002 and on 4 April 2002 at the instigation of Dr Steenkamp, Mr Kumar’s general practitioner. He concluded in reports dated 6 April 2002 that Mr Kumar had significant pain but also secondary conversion symptoms. He took a history which suggested that there had been a strong temporal relationship between Mr Kumar’s increased work for Bartter Enterprises and the onset of his lower back pain. The pain had settled after a period of light duties in November 2001 but had returned in January 2002 when Mr Kumar recommenced normal duties. He diagnosed the cause of pain as lower back strain which was not serious and would resolve over time. He identified a certain level of functional overlay. His prognosis was that the lower back pain would respond to treatment but a major factor was Mr Kumar’s unhappy situation with his employer. There is an inconsistency between Dr Thien’s history and that of Mr Kumar’s general practitioner who in a report dated 15 April 2002 stated that Mr Kumar resumed normal duties on 26 September 2001.
Dr Tai Tak Wan, a physician in rehabilitation medicine, saw Mr Kumar on 13 July 2002 at the instigation of Mr Kumar’s solicitors. In a report dated 12 August 2002 he diagnosed chronic pain syndrome in Mr Kumar’s neck, shoulders and upper and lower back. This was most likely secondary to Mr Kumar’s work related injuries in 2001. He also demonstrated features of depression. Dr Wan considered it likely that Mr Kumar would continue to suffer from pain and impairment. He said that the symptoms were unlikely to change in the next several months. He recommended a structured rehabilitation program and a graduated return to work together with referral to a rehabilitation physician experienced in managing chronic pain syndrome. He made other recommendations including the intervention of a psychologist and a psychiatrist.
Dr Ishrat Ali, a psychiatrist, saw Mr Kumar on 11 July 2002 at Mr Kumar’s solicitors’ instigation. He saw evidence of anxiety and depressive features and diagnosed adjustment disorder with mixed emotional features. The injury at work “appeared” to be directly responsible for the symptoms.
Dr Thomas P Davis, a surgeon, saw Mr Kumar on 22 October 2002 at the request of the Insurer. Dr Davis noted a number of inconsistencies in Mr Kumar’s presentation when examined. These included that Mr Kumar appeared to sit comfortably throughout the examination but was not able to get onto the examination couch because of pain. Dr Davis also “suspected” a considerable amount of fabrication and embellishment. This included inability to make any significant movement in any direction in the cervical spine. There was also no significant movement in the shoulder with active movement and Mr Kumar resisted any attempt at passive movement. Dr Davis considered that Mr Kumar may have aggravated pre-existing degenerative changes in his lumbosacral spine producing a musculoligamentous strain of the paravertebral lumbar muscles because of his work but this condition could reasonably be expected to have resolved. He made no non-orthopaedic diagnosis.
Dr Davis later saw Mr Kumar on 24 July 2003 and repeated his views on Mr Kumar’s alleged fabrication and embellishment. He concluded that Mr Kumar’s employment was not a significant contributing factor to his current condition. Any work related aggravations of degenerative conditions had ceased with his cessation of work. He was, however, not fit for any type of physical work because of his alleged pain.
Dr Seamus E Dalton, a sports physician, saw Mr Kumar at Dr Steenkamp’s instigation on or about 11 December 2002. In his report Dr Dalton commented that Mr Kumar displayed a lot of pain behaviour during the assessment. He said that Mr Kumar really presents with quite profound chronic pain and illness behaviour. He thought there could be some underlying symptoms because of cervical and/or lumbar facet joint pathology but that any meaningful assessment was hampered by marked pain and illness behaviour. He recommended pain management counselling, cognitive behaviour therapy and a comprehensive exercise program.
Dr Sheikh M Habib, a surgeon, saw Mr Kumar on 5 May 2003 at the request of Mr Kumar’s solicitor. He diagnosed a secondary chronic pain syndrome involving the neck, right shoulder and low back with moderate psychological overlay. He recommended extensive psychological counselling and anti-depressant pharmacology, referral to a pain clinic and a steroidal injection in the right shoulder. He thought Mr Kumar should be able to return to work on light physical duties after pain management and psychological counselling.
Dr Brett A Todhunter, an anaesthetist and pain specialist, saw Mr Kumar on or about 12 June 2003 at Mr Kumar’s solicitors’ request. He wrote that Mr Kumar was very severely disabled by pain and had developed much fear and avoidance. He suggested cognitive behavioural pain management.
Dr Robert J Oakeshott, a physician, saw Mr Kumar on 15 August 2003 at the request of Bartter Enterprises’ solicitors. He commented on Mr Kumar’s inconsistent presentation and exaggeration much as Dr Davis had done. He wrote that Mr Kumar’s symptoms arise from factors other than the physical injuries allegedly caused at work. He did not have work related injuries that could account for the widespread symptoms. There was a significant non-organic component. There were symptoms and alleged disability in the absence of any objective demonstrable clinical abnormality. He labelled this “functional somatic syndrome”. He did not see Mr Kumar’s employment as a contributing factor. Dr Oakeshott later viewed a surveillance videotape taken on 13 and 14 February 2003 and 23 May 2003 and commented in a letter dated 3 November 2003 that Mr Kumar’s ability to walk and move his neck was in marked contrast to what he had demonstrated for Dr Oakeshott on 15 August 2003. He said that Mr Kumar did not have a work related injury.
Dr Doran Samuell, a psychiatrist, saw Mr Kumar on or about 24 August 2003 at the request of Bartter Enterprises’ solicitors. Dr Samuell was influenced by Mr Kumar not having sought psychiatric or psychological assistance and by his not having been in need of psychotropic medication. His opinion was that Mr Kumar’s psychological reaction had not been impairing. He considered that, although Mr Kumar’s pain may have caused him some irritation and distress, the psychological reaction in itself had not been a source of any impairment. He disagreed with Dr Ali’s assessment (see paragraph 38, above).
Dr James G Bodel, an orthopaedic surgeon, examined Mr Kumar on 9 December 2003. Dr Bodel saw Mr Kumar in his capacity as an AMS in the earlier proceedings. In the medical assessment certificate issued by Dr Bodel under section 325 of the 1998 Act he commented on the medically inconsistent nature of Mr Kumar’s clinical presentation but found the presence of impairment related to Mr Kumar’s work accident that had stabilised and was permanent. Dr Bodel assessed that no part was attributable to pre-existing injury. Dr Bodel assessed a 5% overall permanent impairment in the neck and a 5% permanent impairment in the back. He regarded these impairments as attributable to Mr Kumar’s work in general. He described the condition as minor chronic musculoligamentous discomfort. There was no clinical evidence of any loss of efficient use of the right arm, or of the right or left leg. Dr Bodel also viewed the surveillance videotape and described it as showing a person fitting Mr Kumar’s description walking away from the camera on 13 February 2003 at a steady pace and without a limp, standing erect and at times moving his head from side to side. He was also twisting his upper body a little without any sign of distress. Later the same day he was seen walking freely. Dr Bodel also observed that the video surveillance showed that on 14 February 2003 Mr Kumar walked a considerable distance over a period of time. The footage from 23 May 2003 showed Mr Kumar moving his head freely from right to left. He walked with a slight right sided limp and Dr Bodel was of the opinion that the characteristics of the limp were not entirely organic. Dr Bodel proceeded to write:
“This videotape confirms that at the time it was shot this gentleman was capable of walking in a near normal manner, at a slow pace and was seen to stand erect. He moved his head and neck freely from time to time.
This video footage therefore is very different to the clinical presentation that I observed when I examined him. You will recall that I asked if he was ever able to move more freely than he demonstrated at the time that I examined him and he indicated that he was not. There does appear therefore to be a significant difference between his clinical observations today and those recorded at other times.”
Dr Bodel commented on the medical reports by the other doctors. In the course of this he made the following comments in relation to any chronic pain syndrome or abnormal illness behaviour.
· He notes Dr Samuell’s report (paragraph 45, above) but says it is outside his area of expertise and makes no comment on it.
· He notes Dr Thien’s observation (paragraph 36, above) that the major factor prolonging Mr Kumar’s illness was the unhappy situation with his employer.
· He notes Dr Ali’s report (paragraph 38, above) but says it is a psychiatric report which is outside his level of expertise.
· He discusses Dr Wan’s report (paragraph 37, above) but refers only to Dr Wan’s findings regarding the intensity of Mr Kumar’s pain and Dr Wan’s impairment ratings. He does not refer to Dr Wan’s comments on chronic pain syndrome.
· He discusses Dr Habib’s report (paragraph 42, above) but discusses only Dr Habib’s orthopaedic diagnosis and his impairment ratings. There is no mention of Dr Habib’s diagnosis of chronic pain syndrome.
Dr Bodel, therefore, expressed no view on Mr Kumar’s chronic pain syndrome or abnormal illness behaviour. There is nothing in the papers before me to suggest that Mr Kumar appealed against Dr Bodel’s assessment.
In accordance with section 326 of the 1998 Act Dr Bodel’s assessment, that Mr Kumar’s only impairments were of the back and neck, and only to the extent of 5% in each bodily system is, therefore, conclusively presumed to be correct. The Arbitrator was justified in finding that there were impairments affecting only the neck and back and that these were minor.
I note that the Arbitrator, in paragraph 19 of the Reasons for Decision, did examine the reports by Drs Habib, Dalton, Ali and Wan and their references to chronic pain and illness behaviour. She could be said, therefore, to have considered these views but to have preferred the views of Drs Thien, Davis, Samuell, Oakeshott and Bodel which concentrated on the orthopaedic condition or, in Dr Samuell’s case, found no impairing psychological reaction. She did not, however, explain her preference.
There is other documentary evidence that may help further flesh out what was happening with Mr Kumar. The rehabilitation provider wrote in a report dated 16 April 2003 that Mr Kumar told it that when he returned to work in May 2002 under a rehabilitation program he was given hard jobs to do. This is inconsistent with the rehabilitation plan signed by Mr Kumar, Dr Steenkamp, an employer representative and the rehabilitation co-ordinator in May 2002. Mr Kumar was to work only three hours a day and not lift over 7.5 kg. There was to be no bending, pushing, pulling, twisting or squatting in his duties. The duties were to bone chicken, load the bones, trim fillets, remove tendons and check fillets for bones. He was to stretch half-hourly. There is no evidence that Bartter Enterprises departed from these restrictions. In addition, rehabilitation progress notes dated 6 February 2003 quote Mr Kumar as saying that the conditions at Bartter Enterprises are too cold for him to contemplate a return to work. The same notes state that “Rajinder does not want to return to work and does not have any intention of trialling suitable duties”. Mr Kumar made no mention of having been required to do hard work when he attempted a return to work in May 2002.
It is unfortunate that none of the medical experts who suggested or diagnosed that Mr Kumar suffers from chronic pain syndrome, abnormal illness behaviour, or any similar non-organic condition, have been shown the surveillance videotape for comment. It would have been helpful to have their views on whether the degree of activity seen in the video was consistent with their diagnoses. I find, however that there was sufficient evidence that those doctors who examined Mr Kumar and later viewed the surveillance video were satisfied that Mr Kumar’s conduct when not under scrutiny by medical experts was inconsistent with him suffering from chronic pain syndrome. I find that Bartter Enterprises’ submission that such a syndrome would operate on a continuous rather than on an intermittent basis is well founded.
I should comment on the reports that may appear at variance with the above findings.
· Dr Thien’s report (see paragraph 36, above) identifies an unhappy situation with his employer as influencing Mr Kumar. This supports the notion that Mr Kumar has more control over his situation that has been submitted on his behalf.
· Dr Wan (see paragraph 37, above) diagnosed a chronic pain syndrome. I have made findings above concerning that condition. Dr Wan also referred to features of depression. However, there is no evidence to suggest that Mr Kumar has a depressive disorder that arose out of or in the course of his employment. Indeed, not even Dr Wan says that there is such a causal link.
· Dr Ali’s diagnosis of anxiety disorder (see paragraph 38, above) is provided in a report that is notable for its brevity and lack of explanation for his diagnosis of anxiety disorder. Dr Samuell, the other psychiatrist who saw Mr Kumar, disagreed with Dr Ali’s diagnosis.
· Drs Dalton (see paragraph 41, above) and Habib (see paragraph 42, above) diagnosed a chronic pain syndrome. I have made findings above concerning that condition.
· Dr Todhunter (see paragraph 43, above) finds severe disablement by pain. However, the video evidence, as recorded by Drs Bodel and Oakeshott, and the other evidence above in paragraph 51, cast doubt on that finding.
The material in paragraphs 46 and 50-53, above, lead me to the conclusion that it was open to the Arbitrator to find as she did on the material that was before her. Addressing the grounds of appeal, I find that the Arbitrator did not err in finding that Mr Kumar’s symptoms should have abated by 30 October 2003. She could find with justification that Mr Kumar was not suffering from an incapacitating chronic pain syndrome and that the minor nature of his physical injuries meant that they were not incapacitating.
I find that the Arbitrator had material before her sufficient to justify a finding that there was considerable embellishment and fabrication in Mr Kumar’s presentation. Almost all of the medical experts agree on this point.
I find that, although the Arbitrator did not address specifically in her findings the conditions of chronic pain syndrome or illness behaviour, there was material before her to justify the findings she did make. The Arbitrator’s error of law ultimately did not affect the fairness and lawfulness of her decision and the proper exercise of her powers.
OBVIOUS ERROR
The Arbitrator appears to have misconstrued the terms of the letter from the Insurer dated 20 October 2003 (see paragraph 14, above). In that letter the Insurer notified Mr Kumar that it had decided to cease paying compensation benefits because Mr Kumar’s injury was said to be no longer work related and because Mr Kumar’s employment was not a substantial contributing factor pursuant to section 9A of the 1987 Act. The Insurer advised that it was ceasing payment of medical and related expenses from 25 October 2003 and weekly compensation from 1 December 2003. The Arbitrator’s understanding was that compensation for medical expenses and weekly compensation payments both ceased on 30 October 2003. These obvious errors were not raised by either party as matters for appeal. In accordance with section 294(3) of the 1998 Act the parties are at liberty to approach the Registrar seeking a correction of these apparent obvious errors.
DECISION
The decision of the Arbitrator is confirmed.
COSTS
I consider that the costs of the appeal in this matter are to be paid by the Respondent Employer.
Although Mr Kumar did not succeed in his appeal there were sufficient problems with the Arbitrator’s Certificate of Determination and Statement of Reasons for Decision to encourage an appeal by Mr Kumar in order to have the decision reviewed.
Michael Sassella
Acting Deputy President
1 March 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF MICHAEL SASSELLA, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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