Lenton v Greater Taree City Council
[2006] NSWWCCPD 80
•10 May 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Lenton v Greater Taree City Council [2006] NSWWCCPD 80
APPELLANT: Dennis Lenton
RESPONDENT: Greater Taree City Council
FIRST INSURER: GIO Workers Compensation (NSW) Limited, on risk for the Respondent for all relevant times to 31.12.01
SECOND INSURER: StateCover Mutual Limited, on risk for the Respondent from 01.01.02 to date
FILE NUMBER: WCC 5932-04 and WCC 6773-04
DATE OF ARBITRATOR’S DECISION: 26 April 2005
DATE OF APPEAL DECISION: 10 May 2006
SUBJECT MATTER OF DECISION: Failure to comply with workplace injury management plan and entitlement to weekly payments of compensation thereafter; partial incapacity.
PRESIDENTIAL MEMBER: Acting Deputy President Martin
HEARING:On the Papers
REPRESENTATION: Appellant: Whitelaw McDonald
First Insurer: Rankin Nathan Lawyers
Second Insurer: Phillips Fox Lawyers
ORDERS MADE ON APPEAL: 1. The decision of the Arbitrator dated 26
April 2005 is revoked.
2. Both Matter numbers 5932-04 and 6773-04 are remitted to another arbitrator for determination afresh.
3. Greater Taree City Council is ordered to pay the costs of the appeal. Costs to be shared equally between the two insurers.
BACKGROUND TO THE APPEAL
On 12 May 2005, Dennis Lenton (‘Mr Lenton’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 26 April 2005.
The Respondent to the Appeal is Greater Taree City Council (‘Taree Council’). Mr Lenton suffered a number of injuries whilst working at Taree Council and therefore two workers compensation insurers are involved. GIO Workers Compensation (NSW) Limited (‘GIO’) was on risk for all relevant times up to 31 December 2001. StateCover Mutual Limited (‘StateCover’) was on risk from 1 January 2002.
Mr Lenton was born on 29 December 1943 and is 62 years old. He is married and claims no dependents. He commenced employment with Taree Council on 11 January 1982. Having started out as a labourer he was later promoted to Team Leader. Mr Lenton claimed injury to his neck in March 1992, 1 November 1993, 14 March 1994, 20 September 1994, 8 November 1994 and 25 February 2002. After this last injury Mr Lenton was on and off work until he stopped work sometime in June 2002. Compensation was initially paid by StateCover, who wrote to Mr Lenton on 14 April 2003 stating, “we have declined your claim because in our opinion your continuing incapacity for work is no longer related to your pre-injury employment”. StateCover then wrote to Mr Lenton’s solicitor on 8 May 2003 stating that after a review of their denial “current medical evidence confirms that your client’s condition is constitutionally degenerative in nature rather than the result of any work-related incident. Any aggravation of his condition has long since ceased”. Compensation was paid to 28 April 2003.
In 1999 Mr Lenton commenced proceedings in the then Compensation Court of NSW in respect of injuries which resulted in a Consent Award for lump sum compensation. This Award included the sum of $1,666.67 in respect of 12.5 per cent permanent impairment of the neck, taking into account as agreed, a one third deduction pursuant to section 68A of the Workers Compensation Act 1987 (‘the 1987 Act’).
Sometime in June/July 2003 Mr Lenton commenced proceedings in the Commission against Taree Council naming StateCover alone as the insurer. Although I do not have access to those proceedings there is correspondence suggesting this was Matter No: 9747-03. Further correspondence suggests these proceedings were discontinued with the intention of commencing again, but with GIO included.
On 7 April 2004 Taree Council commenced proceedings in the Commission against Mr Lenton for failure to comply with the workplace injury management plan. This is Matter No: 5932-04 and involves StateCover alone as insurer. On 28 April 2004 Mr Lenton commenced proceedings against Taree Council for weekly compensation, medical expenses and lump sum compensation. This is Matter No: 6773-04. These proceedings involve both GIO and StateCover.
On 20 May 2004 a telephone conference was held between the parties and a delegate of the Registrar where a recommendation was made that the matter be “joined with matter no. 6773-04 for an Arbitrator to determine”.
On 18 January 2005 the Arbitrator held a teleconference with the parties in Matter No: 6773-04 and directed that Matter No: 5932- 04 be joined to this matter and they both be heard together on 14 March 2005.
At the teleconference on 18 January 2005 reference was made to the Medical Assessment Certificate of Permanent Impairment which resulted from an assessment by Professor Higgs on 27 September 2004. The Professor certified that Mr Lenton had a further 11.5 per cent permanent impairment of his neck pursuant to section 66 of the 1987 Act as a result of injury prior to 1 January 2002 and a 2 per cent whole person impairment causally associated with the consequences of injury occasioned on 25 February 2002.
The Arbitrator noted at this teleconference that GIO agreed to pay Mr Lenton for this further 11.5 per cent permanent impairment and would prepare a section 66A agreement pursuant to the 1987 Act. This agreement was lodged in the Commission on 8 June 2005. The Arbitrator further noted that StateCover wanted the issue of the 2 per cent whole person impairment before her at the hearing prior to determining the issue of substantial contributing factor pursuant to section 9A of the 1987Act.
THE DECISION UNDER REVIEW
Although both matters were heard together only one Certificate of Determination was issued. The ‘Certificate of Determination’ in Matter No: 6773-04 dated 26 April 2005 records the Arbitrator’s orders as follows:
“1. Award for the Respondent [Taree Council] in respect to the weekly payments from 8 May 2003.
2. The Respondent [Taree Council] to pay the Applicant [Mr Lenton] pursuant to section 60, $465.04.
3. No order as to costs.”
The Arbitrator found at paragraph 29 of the Decision that:
“the Respondent [Taree Council] has made all reasonable steps in relation to the determination of suitable duties as defined by s 43 [sic] in respect to the Applicant’s [Mr Lenton’s] injury management plan. This has included but not limited to offering assistance in respect to his alleged claustrophobia. Such assistance was declined by the Applicant and in any event subsequently assessed by Dr Lowy as simply exaggerated behaviour”.
The Arbitrator found at paragraph 30 of the Decision that:
“there is no medical opinion that gives permanent total incapacity. All provide restrictions which vary from permanently modified pre injury duties to 4 hours a day in clerical or semi-sedentary duties”.
The Arbitrator found at paragraph 31 of the Decision that:
“the Applicant [Mr Lenton] was offered suitable duties which involved work as an internal courier, mail sorter and basic data entry. The Applicant [Mr Lenton] did not attempt to give these tasks a go. Dr Straughan, Prof. Higgs and the Vocational Capacity Centre opined that such duties were suitable for him. Dr Lowy indicated that his reluctant [sic] for clerical duties was the only thing stopping him attempting such duties”.
Anthony Surety, Personal Manager at Taree Council, gave evidence as well as providing a written statement. The Arbitrator found that; “the evidence from Mr Surety was convincing in so far as the Applicant [Mr Lenton] had stated his true intention as to never returning to work”.
Mr Lenton provided a written statement and gave oral evidence. In his oral evidence he told of how he recently bought a campervan and this was for when he retired at age sixty six. The Arbitrator found that; “such behaviour in purchasing a campervan is consistent with an intention of going travelling and non engagement with work as expressed to Mr Surety. Such activity is also inconsistent with total incapacity”.
The Arbitrator found that Taree Council “continued to offer suitable duties” and “should the Applicant [Mr Lenton] begin to participate in an injury management plan, his entitlement would return”.
The Arbitrator found for Mr Lenton in respect to the section 60 expenses:
“I support this finding based on Prof Higgs’ view that there has been a 2% deterioration of whole person impairment resulting from the injury on the 25/2/02.”
The Arbitrator summarised the “resolution of the issues in dispute as follows”:
· On 25/2/02, Dennis Lenton received an injury to his neck arising out of or in the course of his employment as a team leader with Greater Taree City Council.
· Dennis Lenton was totally incapacitated for work as a result of his injuries for which he has been compensated.
· Dennis Lenton was partially incapacitated for work as a result of injuries from 25/2/02 for which he has been compensated.
· Dennis Lenton is disentitled to weekly benefits because of an unreasonable failure to comply with the requirements of workplace injury management effective from the 16/9/03
· Dennis Lenton’s following medical and related expenses amounting to $465.04 incurred as a result of treatment, services or assistance that were reasonably necessary for the compensable injury.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
All parties submit that the appeal may be determined on the papers and having regard to the submissions, evidence and documents that are before me, 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.
With regard to section 352(2) of the 1998 Act, Taree Council submits that as Mr Lenton’s appeal is in relation to costs and failure to make a general order for medical expenses, the Commission has no jurisdiction to hear an appeal. StateCover relies on the decisions of this Commission in Grimson v Integral Energy [2003] NSW WCC PD 29 and Tran v AP Facilities Pty Limited [2004] NSW WCC PD 3.
Mr Lenton’s appeal does not only concern the issue of costs and failure to make a general order for medical expenses, but entitlement to payment of weekly compensation. Accordingly the decision clearly has the potential to put the amount of compensation claimed by Mr Lenton in issue (Sheridan v Coles Supermarkets Australia Pty Limited [2003] NSW WCC PD 3).
I find that the amount of compensation at issue on the appeal exceeds $5,000 and meets the threshold test in section 352 (2) of the 1998 Act and accordingly grant leave to appeal.
FRESH EVIDENCE
No party asks that fresh evidence be considered
MATTER NO. 5932-04 - WORKPLACE INJURY MANAGEMENT PLAN
ISSUES IN DISPUTE
The issues in dispute identified by Mr Lenton are summarised below.
The Arbitrator erred in:
Ground 1
· taking into account Mr Lenton’s conduct in declining light duties in late 2002 at a time when StateCover was still paying compensation;
Ground 2
· failing to take into account that the correspondence denying liability made no mention of Mr Lenton’s failure to participate in light duties or the workplace injury management plan;
Ground 3
· failing to take into account that Mr Lenton had been certified as unfit for work for all periods after 28 April 2003;
Ground 4
· failing to take into account that Mr Lenton’s general practitioner was not a party to the workplace injury management plan;
Ground 5
· failing to properly consider section 43A of the Workers Compensation Act 1987 (‘the 1987 Act’), and
Ground 6
· failure to properly consider Mr Lenton’s evidence in relation to his purchase of a campervan and therefore made a finding against the weight of the evidence.
EVIDENCE, SUBMISSIONS, DISCUSSIONS AND FINDINGS
The role of the Presidential Member on appeal is to review the Arbitrator’s decision as a whole. The review is not a rehearing. For Mr Lenton to succeed he must demonstrate that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz [2000] 203 CLR 172).
I note that at the time of preparing Mr Lenton’s submissions, the transcript was not available and the right to make further submissions on receipt of the transcript was sought. No further submissions have been received from Mr Lenton other than in response to submissions made by Taree Council about leave to appeal.
Ground 1
Mr Lenton submits that the Arbitrator took into account his conduct in declining light duties at a time when compensation was still being paid. Taree Council in the interests of StateCover submit that the Arbitrator considered the evidence properly. The Arbitrator in her Statement of Reasons for Decision (‘the Decision’) does refer to Mr Lenton’s conduct in declining light duties throughout 2002 and the beginning of 2003 at a time whilst Mr Lenton was being paid weekly compensation. However in paragraph 25 of the Decision, the Arbitrator sets out the evidence she had before her in regard to Mr Lenton’s failure to participate in light duties after compensation stopped on 28 April 2003. In particular, the Arbitrator refers to the evidence of Mr Surety, personal manager for Taree Council, who gave both oral evidence and provided a written statement. The Arbitrator found that the evidence of Mr Surety “was convincing in so far as the Applicant [Mr Lenton] had stated his true intention as to never returning to work”. The Arbitrator accepted the date of a letter written by Mr Surety, 16 September 2003, as the effective date for ‘unreasonable failure to comply with the requirements of workplace injury management’. In that letter of 16 September 2003, Mr Surety wrote:
“Thanks for calling in to see me last week. It was good to have a chance to talk to with you. I was, however, extremely disappointed in some of the things you said that reflect your attitude, especially in your statement that you don’t wish to work and just want to collect your compo [sic] payment each week until your 66. The legislation in NSW requires employers to have in place a rehabilitation/return to work programme for injured workers. Council has in place such a programme, and in our letter of 15 August 2003 we invited you to participate in that programme. The offer still remains open.”
It is clear the Arbitrator considered the conduct of Mr Lenton both before and after the date compensation was paid to and accordingly this ground of appeal is not made out.
Ground 2
Mr Lenton says the Arbitrator did not take into account that the correspondence from StateCover denying liability, made no mention of his failure to participate in the workplace injury management plan. I have referred to the contents of the correspondence from StateCover dated 14 April 2003 and 8 May 2003 in paragraph 3 above and there was no mention of Mr Lenton’s failure to participate in the workplace injury management plan. At paragraph 21 of the Decision the Arbitrator refers to StateCover’s correspondence of 8 May 2003 denying liability:
“the insurer declined the Applicant’s [Mr Lenton] claim on the 14 April 2003 after receiving a report from CRS that the Applicant [Mr Lenton] refused to attend. The letter provided the reason for declinature as resulting from their opinion that the Applicant’s [Mr Lenton] incapacity for work was no longer related to his pre injury employment”.
Although not stated in the letter, this notice was presumably given pursuant to section 54 of the 1987 Act.
Chapter 3 of the 1998 Act deals with workplace injury management. Section 57 of the 1998 Act provides as follows:
“57. (1) If a worker fails unreasonably to comply with a requirement of this Chapter after being requested to do so by the insurer, the worker has no entitlement to weekly payments of compensation during any period that the failure continues, subject to subsection (2).
(2) A worker’s entitlement to weekly payments does not cease under this section until the insurer (emphasis added) has given the worker written notice to that effect, together with a statement of the reasons for the entitlement ceasing and the action that the insurer considers the worker must take to be entitled to the resumption of weekly payments.
(3) The resumption of weekly payments does not entitle the worker to weekly payments for the period in respect of which the worker had no entitlement to weekly payments”.
Subsection (1) of section 57 is subject to subsection (2), which states that the insurer is to give written notice. The correspondence to Mr Lenton from StateCover dated 14 April 2003 and the further correspondence to Mr Lenton’s solicitor dated 8 May 2003 makes no mention of a failure to comply with the workplace injury management plan. As referred to in paragraph 29 above, the Arbitrator has taken the date of a letter written to Mr Lenton by Mr Surety as the effective date for “unreasonable failure to comply with the requirements of workplace injury management”. In that letter of 16 September 2003 Mr Surety makes no reference to entitlement to weekly payments of compensation ceasing and the action Mr Lenton must take to be entitled to the resumption of weekly payments. The letter was written by Mr Surety and not the insurer as required by subsection (2) of section 57.
In paragraph 18 above I set out the Arbitrator’s summary of “the resolution of the issues in dispute”. This summary is in effect a summary of the Arbitrator’s findings. The finding that: “Dennis Lenton is disentitled to weekly benefits because of an unreasonable failure to comply with the requirements of workplace injury management effective from the 16/9/03” demonstrates a clear error in the application of the legislation. Mr Lenton was not provided with written notice as provided for in subsection (2) of section 57 of the 1998 Act. Accordingly I find that this ground is made out.
Ground 3
Mr Lenton submits the Arbitrator failed to take into account that he had been certified as unfit for work for all periods after liability was denied on 28 April 2003. The Arbitrator at paragraph 30 of the Decision found that; “there is no medical opinion that gives permanent total incapacity. All provide restrictions which vary from permanently modified pre injury duties to 4 hours a day in clerical or semi-sedentary duties”. Dr Love’s short report of 13 May 2002 talks of Mr Lenton’s inability to return to labouring duties. The medical certificates of Dr Love vary, however the majority of certificates for 2003 and the certificates of 2004 and 2005 certify him as ‘unfit to work”, with his fitness to work to be reviewed at a later date.
Dr Hopcroft, Mr Lenton’s treating orthopaedic surgeon, in his last report dated 20 May 2003 states that Mr Lenton “is totally incapacitated to return to the workforce in the labouring position that he has undertaken for the past 21 years and I believe in fact that he is unfit for a return to work”. As opposed to this the Arbitrator had the reports of Professor Higgs and Dr Straughan. Professor Higgs assessed Mr Lenton on 27 September 2004 for the purpose of providing a Medical Assessment Certificate of Permanent Impairment. In the report resulting from that assessment he states:
“my consideration of all of the evidence has caused me to conclude that the Worker is only fit to undertake part-time working activities of a restricted suitable nature. The worker is fit for work of a clerical and/or supervisory nature. Whatever work is undertaken by the Applicant, it should be the case that the Applicant avoids all working activities that are known to aggravate symptoms. In particular, the Applicant should avoid any work that requires frequent endeavours to extend the neck and repetitive rotation movements of the neck. It can also be recommended that the Applicant does avoid any work that requires the use of the upper limbs in an elevated position above shoulder height. In regard to the descriptive part-time it is my opinion that the Applicant is probably only fit to work for one-half of five working days during any working week”.
Dr Straughan in his report of 17 March 2003 states:
“He is fit to perform, for his normal hours, selected duties that are mainly between waist and shoulder height, that do not involve him working in fixed static postures or constantly looking up or down for long periods with his neck either flexed or extended, where he works from a fairly even surface and where he can sit, stand and move around as his symptoms might dictate”.
Dr Straughan in his report of 21 June 2004 states:
“However I would consider him fit to perform, for his normal hours, permanent modified duties, no more aggressive than his normal daily living activity at home, where he can sit, stand and move around frequently, work from an even surface at his own pace, that allow him frequent breaks of 10 minutes or so per hour. I would certainly consider Mr Lenton capable of undertaking those filing, internal courier and sorting letters as indicated in your letter to me”.
The Arbitrator also had before her the report of Dr Ghabrial, orthopaedic surgeon, dated 16 June 2003 where he states:
“It is highly likely that he will continue with his present disabilities and remains unfit for activities involving heavy lifting, excessive bending and excessive twisting, as well as excessive use of the right uper limb above the shoulder level”.
At paragraph 24 of the Decision the Arbitrator referred to the opinion of Dr Hopcroft noting that; “he believed him [Mr Lenton] totally unfit to return to the workforce in labouring and in fact was unfit for a return to work”. Strictly speaking there was “no medical opinion that gives permanent (emphasis added) total incapacity”, however given the medical evidence detailed above, the Arbitrator was incorrect when finding that all medical opinions “provide restrictions which vary from permanently modified duties to 4 hours a day in clerical or semi-sedentary duties”. I am satisfied that this finding is not supported by logically probative evidence and this amounts to an error of fact. The question is does this fatally affect the Arbitrator’s decision. As Deputy President Byron found in John Robinson t/as Robinson’s Pharmacy v King [2005] NSW WCC PD 39, (‘Robinson’):
“The weight and relevance of the evidence is a matter in the discretion of the Arbitrator, upon due consideration of that evidence. In circumstances where it can be demonstrated that the Arbitrator has failed to exercise his discretion fairly and lawfully, the decision may be overturned. The circumstances in which this occurs are where the Arbitrator has acted upon a wrong principle, allowed irrelevant considerations to influence his decision, made a material mistake as to facts or has failed to take into account relevant and material considerations, (House v The King (1936) 55 CLR 499 at 504-505; Norbis v Norbis (1986) 161 CLR 513 at 520 and Re National Roads and Motorists Association Ltd [2003] FCAFC 206).”
It was for the Arbitrator to consider and weigh the evidence at the Arbitration. Although it could be said that her reasons were brief, she was entitled to prefer the evidence of Dr Ghabrial, Dr Straughan and Professor Higgs. In my view, the Arbitrator found that Mr Lenton was partially incapacitated after liability was denied on 28 April 2003. Given the totality of the evidence referred to above, this finding was open to the Arbitrator. This error in making the finding of fact does not amount to an error of law and accordingly this ground of appeal is not made out.
Ground 4
Mr Lenton submits that the Arbitrator failed to take into account that his general practitioner, Dr Love, was not a party to the workplace injury plan. At the bottom of all the medical certificates that were before the Arbitrator there is a paragraph that appears to be signed by Mr Lenton stating:
“I nominate Dr Love as my nominated treating doctor. I consent to my nominated treating doctor, my employer, the insurer, other treating practitioners, rehabilitation providers and WorkCover NSW exchanging information for the purposes of managing my injury and workers compensation claim. I understand this information will be used by WorkCover and its insurers to fulfil their functions under the workers compensation legislation”.
The Arbitrator had before her a number of reports from CRS Australia and it clear that some of those reports refer to a goal being established in consultation with Dr Love, Mr Lenton and a representative of Taree Council. I find on the evidence that this ground of appeal is not made out.
Ground 5
Mr Lenton says that the Arbitrator failed to properly consider section 43A of the 1987 Act. The Arbitrator made the following findings:
“In respect to compliance with the injury management plan, I find for the Respondent [Taree Council]. Section 48 places a positive onus on the injured worker to make all reasonable efforts to return to work with his pre-injury employer as soon as possible having regard to the nature of the injury. Section 49 places a onus on the employer to consider suitable duties as defined by s43 of the 1987 Act. This includes the nature of incapacity, age, education, skills and work experience. I find that the Respondent has made all reasonable steps in relation to the determination of suitable duties as defined by s43 in respect to the Applicant’s [Mr Lenton] injury management plan. This has included but not limited to offering assistance in respect to his alleged claustrophobia. Such assistance was declined by the Applicant and in any event subsequently assessed by Dr Lowy as simply exaggerated behaviour”.
“I take into consideration the limited labour market of the geographical area and find that the Respondent [Taree Council] provides the strongest and most direct link for the Applicant [Mr Lenton] to a return to suitable work and that this opportunity has been unreasonably rejected by the Applicant [Mr Lenton]”.
The evidence that the Arbitrator took into account included:
· On 25 November 2002 Mr Lenton was certified fit for 20 hours per week suitable duties by Dr Love. On 24 February 2003 CRS Australia (‘CRS’) conducted a visit with Mr Lenton to review potentially suitable duties offered in Taree Council’s library. They were offered on a part time basis for up to 15 hours per week. At the completion of the visit Mr Lenton disclosed to CRS that he suffers from a form of claustrophobia and felt that it would make it very difficult for him to work in a basement area.
· CRS made an offer of counselling assistance to Mr Lenton to learn management strategies to cope with his panic order condition, however Mr Lenton indicated to CRS that he did not wish to see a counsellor at the present time because of his psychological state.
· A medical report of Dr Eva Lowy, Psychologist, dated 9 September 2003 stating that Mr Lenton was fit for work from a psychological perspective and that Mr Lenton exaggerated his psychological symptoms alleged to occur in confined spaces.
· The evidence of Mr Surety, personal manager for Taree Council, that Mr Lenton did not wish to work and wanted to collect compensation to age 66.
Again having regard to Robinson’s case and having considered the evidence that was before the Arbitrator and the transcript of the proceedings, I can see no error and I find that it was reasonably open to the Arbitrator to make the findings that she did in relation to section 43A of the 1987 Act.
Ground 6
Mr Lenton says that the Arbitrator made a finding against the weight of the evidence by not properly considering his evidence in relation to the purchase of a campervan. The Arbitrator found:
“The Applicant gave evidence that he had recently purchased a campervan for the purpose of visiting camping grounds and nature reserves. He stated that this was for when he retired at 66. However, such behaviour in purchasing a campervan is consistent with an intention of going travelling and non-engagement with work as expressed to Mr Surety. Such activity is also inconsistent with total incapacity”.
During his oral evidence Mr Lenton was questioned as to why he purchased a motor home at age 59 when he was not due to retire until age 65. At page 37 of the transcript Mr Lenton replied; “they would be a lot dearer and not only that, this was a good buy. It’s a really good buy, this car”.
In Robinson’s case Deputy President Byron also found:
“However, in making an assessment of the matter, the Arbitrator’s decision must be read as a whole, (Beale v GIO (NSW) (1997) 48 NSWLR 430 at 444), and without combing it for error, (Minister for Immigration and Multicultural Affairs v Wu Shan Liang (1996) 185 CLR 259)”.
Although the Arbitrator did not clearly say so, I am of the view that she did not accept Mr Lenton’s evidence in so far as his reasons for buying a campervan. After consideration of the transcript of the proceedings and the evidence before the Arbitrator, I am of the view that it was reasonable for the Arbitrator to arrive at this decision and I find no error in doing so.
Whilst not raised by the Appellant as a submission of appeal, it is apparent on review that the Arbitrator’s reasons for decision are less than adequate. The Arbitrator in her summary of findings refers to one injury on “25/2/02”. Although Mr Lenton suffered a number of injuries whilst working at Taree Council, Matter No: 5932-04 involving compliance with the workplace injury management plan and brought by Taree Council in the interests of StateCover, involved the injury on 25 February 2002 alone. The Arbitrator then went on to refer to Mr Lenton being “totally incapacitated for work as a result of his injuries for which he has been compensated” and “partially incapacitated for work as a result of injuries from 25/2/02 for which he has been compensated”. As referred to above the Arbitrator had before her Matter No: 6773-04 as well as Matter No: 5932-04. Matter No: 6773-04 brought by Mr Lenton involved injuries in March 1992, 1 November 1993, 14 March 1994, 20 September 1994, 8 November 1994 and 25 February 2002.
As President Justice Sheahan discussed in Ayse Cakir v Western Sydney Area Health Service t/as Parramatta Linen Service [2004] NSWWCCPD 1, (‘Cakir’): “Arbitrator’s of the Commission have a common law and statutory obligation to provide adequate reasons for their decisions and failure to do so constitutes an error of law and may be a ground to set aside the Arbitrator’s decision”. President Justice Sheahan further stated in Cakir’s case that: ‘the purpose of giving reasons is to enable the parties to understand why the decision has been made’. The Arbitrator appears to have confused the findings in the two matters and in my view the parties are not able to see the reasoning behind the Arbitrator’s Decision or for that matter clearly understand why the decision has been made.
For the reasons above I am of the view that the Arbitrator’s error in the application of the legislation regarding section 57 of the 1998 Act is such that it is inappropriate to uphold her decision. Further the Arbitrator’s failure to provide adequate reasons for her decision in my view constitutes an error of law.
Whilst Taree Council, in the interests of StateCover sought the following orders in matter No: 5932-04:
“1 Award in favour of the Applicant;
2.The Respondent to pay the Applicant’s costs;
3.The Respondent is to participate and fully comply with the work hardening program and return to the employ of the Applicant performing full time duties that do not involve action including lifting over a 10 kg weight limit, standing maximum of 30 minutes, no riding in trucks/plant or other rough vehicles and avoidance of manual labour including use of crowbars, shovels, mower and line trimmers, by 1 May 2004;
4.Should the Respondent fail to comply with order 3 above, that he be fined $5,500, pursuant to Section 92 the 1998 Act [sic]; and any other orders that are deemed appropriate by the WCC in the circumstances.”;
there are a number of outstanding issues to be dealt with between the parties (see sections 305 to 319 of the 1998 Act) and it is appropriate that this matter be remitted for determination afresh.
MATTER NO. 6773-04 – WEEKLY COMPENSATION BENEFITS, PERMANENT IMPAIRMENT AND MEDICAL EXPENSES
As previously stated, at the teleconference on 18 January 2005 the Arbitrator directed that the two matters be heard together. In Matter No: 6773-04 Mr Lenton sought weekly compensation, medical expenses and lump sum compensation. It is clear from the Decision and the Certificate of Determination that the Arbitrator concerned herself almost entirely with Matter No: 5932-04 involving the workplace injury management plan, although she issued the Certificate of Determination in Matter No. 6773-04.
ISSUES IN DISPUTE
The issues in dispute in Matter No: 6773-04 identified by Mr Lenton are summarised below. The Arbitrator erred in:
Ground 1
·failing to properly consider Mr Lenton’s entitlement to weekly payments of compensation;
Ground 2
·failing to find and order that Mr Lenton is entitled to 2 per cent whole person impairment;
Ground 3
·failing to amend Mr Lenton’s Application to claim a general order for medical expenses and thereafter make that order;
Ground 4
·failing to correctly exercise her discretion in relation to costs, and
Ground 5
·failing to record in the decision, the agreement reached between GIO and Mr Lenton in relation to the further 11.5 per cent permanent impairment of the neck
EVIDENCE, SUBMISSIONS, DISCUSSIONS AND FINDINGS
Ground 1
Mr Lenton in Matter No: 6773-04 sought weekly compensation from 28 April 2003 when liability was denied. Mr Lenton claimed injury to his neck in March 1992, 1 November 1993, 14 March 1994, 20 September 1994, 8 November 1994 and 25 February 2002. As stated above it is clear on reading the Decision that the Arbitrator concerned herself almost entirely with the workplace injury management plan. The Arbitrator has failed to consider Mr Lenton’s entitlement to weekly compensation, except to the extent that she considered him partially incapacitated from 28 April 2003. I have referred to the Arbitrator’s summary of findings in paragraph 52 above. The only injury referred to is that on 25 February 2002. As stated in paragraph 53 the Arbitrator appears to have confused the findings in the two matters.
At paragraph 36 of the Decision the Arbitrator made this finding; “I find that should the Applicant begin to participate in an injury management plan, his entitlement would return”. It appears that the Arbitrator in this finding considered Mr Lenton was entitled to weekly compensation subject to compliance with the injury management plan. Mr Lenton submits in his appeal that he is entitled to receive weekly benefits of compensation pursuant to section 37 or alternatively section 40 of the 1987 Act. StateCover submits that the Arbitrator was correct in her decision about the workplace injury management plan and makes no alternative submissions about Mr Lenton’s entitlement to weekly compensation. GIO submits that as Mr Lenton’s claim for weekly compensation centres on injury during StateCover’s period of risk they need make no submissions in regard to weekly compensation. As there are two insurers involved with injuries occurring during both their periods of risk the issue of liability between insurers needs to be addressed as does the issue of apportionment.
Again for the reasons referred to in Caker’s case, in my view the parties are not able to see the reasoning behind the Arbitrator’s Decision or for that matter clearly understand why the decision has been made. I find that the Arbitrator’s reasons are inadequate. The Arbitrator has not dealt with liability, apportionment in relation to injury, incapacity and entitlements to weekly compensation and has erred in law. This ground has been made out.
Ground 2
Mr Lenton says the Arbitrator failed to make a finding and appropriate order in regard to the 2 per cent whole person impairment. In support of his submissions Mr Lenton refers to the following finding of the Arbitrator:
“I find for the Applicant [Mr Lenton] in respect of the s60 expenses. I support this finding on Prof [sic] Higg’s view that there has been a 2% deterioration of whole person impairment resulting from the injury on the 25/2/02”.
It is clear that the Arbitrator accepted Professor Higgs evidence in so far as it was the basis of her finding in respect of the section 60 expenses. Professor Higgs provided a medical assessment certificate of 2 per cent whole person impairment and stated as follows:
“my consideration of all the medical evidence has caused me to conclude that the Applicant’s [Mr Lenton] additional neck impairment is probably, as distinct from possibly, causally associated with the frank injury that occurred on 25/2/02”.
Section 326 of the 1998 Act provides that the degree of permanent impairment is conclusively presumed to be correct. StateCover at the teleconference on 18 January 2005 asked that the issue of 2 per cent whole person impairment be dealt with before the Arbitrator at the hearing. In their Notice of Opposition to Mr Lenton’s appeal, StateCover have stated that:
“Nowhere in her decision has the Arbitrator made reference to the Appellant’s [Mr Lenton] employment having been a substantial contributing factor to the Appellant’s assessed WPI level of 2%”.
On looking at the submissions made by StateCover at the hearing of this matter, they did not make any submissions on the issue of substantial contributing factor pursuant to section 9A of the 1987 Act, even though Dr Straughan was of the opinion that Mr Lenton’s employment was no longer “a substantial contributing factor to his current clinical condition”. The Arbitrator made no findings as to the issue of substantial contributing factor and made no order in relation to whole person impairment. In her consideration of the medical evidence in the Decision the sole reference to substantial contributing factor is as follows:
“Dr Love is the Applicant’s [Mr Lenton] General Practitioner and provided medical certificates. There are five in the Applicant’s evidence dated 11/7/03, 8/9/03, 24/11/03, 12/3/04 and 10/3/05. All show a diagnosis of cervical spondylosis, the first indicated that it was his opinion that employment was a substantial contributing factor”.
Mr Lenton further submits that the Arbitrator did in fact make a finding of substantial contributing factor when she stated in her summary of findings that: “On 25/2/02, Dennis Lenton received an injury to his neck arising out of or in the course of his employment as a team leader with Greater Taree City Council”.
The Arbitrator although making this finding provided no reasons as to how she came to this decision. The Arbitrator in the Decision referred to the two reports of Dr Straughan and quoted from those reports, but without mention of the sentence referred to above where the doctor provides an opinion as to substantial contributing factor. Again it is not possible to see how the Arbitrator reached her decision. Having reviewed the evidence before the Arbitrator I find the reasons are inadequate. The Arbitrator has not dealt with the issue of substantial contributing factor and failed to make an appropriate order in regard to whole person impairment. Accordingly this ground of appeal has been made out.
Ground 3
Mr Lenton says the Arbitrator was in error in not making a general order for medical expenses. At the hearing of this matter Mr Lenton’s solicitor asked that the Application be amended to include a general order for medical expenses to which the Arbitrator replied, “okay”. There are receipts and invoices on which the Arbitrator made her order. An Arbitrator is entitled to find that an employer is liable to pay a worker for medical or related treatment, in accordance with section 60 of the 1987 Act. An employer, however will not be liable to pay the worker’s section 60 expenses until they have been incurred and properly verified (Water Taxis combined Pty Limited and Harbour Taxi Boats Pty Limited v Wells [2004] NSW WCC PD 30). An additional concern is that the Arbitrator again failed to address the issue of liability and apportionment between the insurers so far as responsibility for medical expenses. In my view the Arbitrator erred in failing to make a general order for payment of medical expenses and in failing to determine liability between the two insurers for the medical expenses that she ordered to be paid.
Ground 4
Mr Lenton says the Arbitrator failed to properly exercise her discretion in relation to costs. The Arbitrator gave no reasons as to why no costs were ordered. In my view the Arbitrator erred in failing to provide reasons why no costs were awarded to Mr Lenton when he was successful in obtaining an order pursuant to section 60 of the 1987 Act.
Ground 5
Finally Mr Lenton says that the Arbitrator in her decision failed to note the agreement as to permanent impairment of the neck that was reached with the GIO. A section 66A agreement has now been filed and in my view this issue is no longer relevant.
CONCLUSION
Matter No: 6773-04 is not straight forward as liability between GIO and StateCover is to be determined, together with the issue of substantial contributing factor. Accordingly it is not appropriate that I deal with this matter. The Arbitrator has erred in her determination of both Matter No: 5932-04 and Matter No: 6773-04 and accordingly I revoke her decision dated 26 April 2005. I will not remit the matter to the original Arbitrator as she has expressed views in relation to preferring the evidence of the personnel manager of Taree Council, Mr Surety, over Mr Lenton. For these reasons I am of the view that both matters be remitted to another Arbitrator for determination afresh with this decision.
DECISION
1. The decision of the Arbitrator dated 26 April 2005 is revoked.
2.Both Matter numbers 5932-04 and 6773-04 are remitted to another arbitrator for determination afresh.
COSTS
Greater Taree City Council is ordered to pay the costs of the appeal. Costs to be shared equally between the two insurers.
Julian Martin
Acting Deputy President
10 May 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JULIAN MARTIN, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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