Lin v Marwong Pty Ltd trading as Roman Printing
[2008] NSWWCCPD 17
•13 February 2008
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION
CONSTITUTED BY AN ARBITRATOR
CITATION:Lin v Marwong Pty Ltd t/as Roman Printing [2008] NSWWCCPD 17
APPELLANT: Ling Nu Lin
RESPONDENT: Marwong Pty Ltd t/as Roman Printing
INSURER:CGU Workers Compensation (NSW) Limited
FILE NUMBER: WCC6604-07
DATE OF ARBITRATOR’S DECISION: 26 October 2007
DATE OF APPEAL DECISION: 13 February 2008
SUBJECT MATTER OF DECISION: Interpretation of evidence; proper consideration of evidence; whether inference based on evidence; whether evidence disregarded without reason; whether failure to consider statutory test for incapacity; Arnott’s Snack Products Pty Ltd v Yacob (1985) 155 CLR 171; whether considerations fairly based on the evidence; whether failure to take into account relevant considerations.
PRESIDENTIAL MEMBER: Deputy President Gary Byron
HEARING:Determined on the papers
REPRESENTATION: Appellant: Wyatt Attorneys
Respondent: Sparke Helmore
ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 26 October 2007 is confirmed.
No order is made as to the costs of this Appeal.
BACKGROUND TO THE APPEAL
On 26 November 2007, Ms Ling Nu Lin, the Appellant Worker, sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 26 October 2007.
The Respondent Employer to the Appeal is Marwong Pty Ltd trading as Roman Printing.
The Insurer is CGU Workers Compensation (NSW) Limited.
Ms Lin migrated to Australia from China, eight years ago. She is 50 years old and has a daughter who is 21 years of age. Ms Lin has limited education and does not speak English.
In 2001 Ms Lin obtained employment as a process worker with Marwong. She remained in that employment until 24 August 2006. Her employment was terminated on that date because of a downturn in work.
On 20 October 2005, while working with Marwong, Ms Lin suffered an injury to her left big toe when a large roll of plastic fell onto her feet while she was operating a plastic wrapping machine. She consulted her general practitioner, Dr Andy Huang about the injury. An x-ray taken the next day revealed that Ms Lin had suffered an undisplaced fracture to the distal phalanges of her left big toe, with no evidence of deformity.
As a result of this injury, Ms Lin was absent from work for three months.
In December 2005 she completed a workers compensation claim form, and Marwong duly completed a report of injury. The Insurer then commenced weekly payments and paid the medical expenses that Ms Lin had incurred.
An x-ray taken on 17 November 2005 had revealed that the fracture of her left big toe was in a satisfactory position, with no bone callus at that point, but no deformity. A further x-ray taken on 11 January 2006 resulted in a report that included a statement that the fracture had almost completely closed; that the position was anatomical, and that the interphalangeal joint was normal in appearance.
On a date in February 2006, Ms Lin was certified as fit for suitable duties on restricted hours, and she returned to work. She claims that her duties were not modified in accordance with her treating doctor’s recommendation, and that she was required to undertake her normal duties. Ms Lin says that she was required to stand for long periods, which caused her pain, and that her big toe be became swollen and discoloured. Sometime in March 2006, Dr Huang certified her as fit for suitable duties for 4 hours per day, five days per week. The plan was to gradually increase her hours of duty to 6 hours per day. Ms Lin says that in the absence of modified duties being allocated to her, she continued to experience significant pain in her left big toe, while working.
Ms Lin consulted Dr Dave, an orthopaedic surgeon, on 25 May 2006, for the purpose of a medico-legal examination, as arranged by her solicitors. Dr Dave reported that Ms Lin told him that she had started on light duties during the previous week. She complained of pain and some stiffness of the interphalangeal joint, and said that she could not stand for long periods. Dr Dave reported that he found some tenderness on deep palpitation of the distal phalanges, full flexion and 20 degree extension of the metatarsal phalangeal joint. He assessed her as having suffered 2% whole person impairment as a result of her injury. He recorded no comment or opinion as to incapacity.
On 7 June 2006 her treating doctor referred her to an orthopaedic surgeon, Dr Alex Woo, who reported:
“She has made a good recover [sic] as far as the fracture is concerned, but she in [sic] still not able to work more than 5 hrs a day due to persisting pain in the big toe. I have asked her to see you for advice regarding how we can upgrade her to 7.5 hr a day. At the moment she is certified fit for 5 hrs/day, 5 days a week, but her employer is not able to provide work like that unless she can work 7.5 hrs a day.”
On 16 June 2006 Ms Lin was examined for medico-legal purposes by Dr Limbers, an orthopaedic surgeon, retained by the Insurer. At that time, she was still working 5 hours per day. She informed Dr Limbers that her left big toe was still sore and that she could not lift anything that was heavy. She added that she had difficulty carrying out her housework, that she could not walk properly, and that at night a blanket on her left foot caused her pain. Dr Limbers reported:
“Mrs Lin walked normally.
Inspection of the left big toe did not reveal any abnormality. There was a complaint of tenderness but movement at the interphalangeal joint and at the metacarpophalangeal joint was practically full when compared to the other big toe. There was slight discomfort on very firm pressure over the pulp of the big toe but otherwise no abnormality could be detected.”
Dr Limbers said that in his opinion, Ms Lin had no incapacity and was fit for pre-injury duties. He thought that no further treatment was appropriate.
Ms Lin consulted her treating orthopaedic surgeon, Dr Woo, once more, on 28 July 2006. Dr Woo’s report states:
“On examination there is no deformity in the left foot and big toe. Range of movement is normal. She has bilateral flat feet.
X-ray on 21/10.05 showed an essentially undisplaced fracture distal phalanx of the left big toe. X-ray on 7/6/06 showed union of the fracture with minimal deformity.
She has had complete union of the fracture she could continue to have pain for a long period of time. This is aggravated by bilateral flat feet.
She is now working 5 hours a day, 5 days a week. I would recommend her to gradually upgrade to her normal 7.5 hours a day over the next 2 months. She is to upgrade to 6 hours a day, 5 days a week from August.”
The Insurer issued a notice under section 74 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) on 10 August 2006. The Insurer advised that it was denying liability based on Dr Limbers’ report, and that Ms Lin’s weekly payments would cease on 23 August 2006, and that payment of her medical expenses would cease immediately.
Marwong terminated Ms Lin’s employment on 24 August 2006, on the basis that there was insufficient work available. Ms Lin claims that the real cause of this termination was her inability to undertake a full range of duties. Since that date, Ms Lin has continued to be fit to undertake suitable duties, as certified by her new treating doctor, Dr Lin. The relevant dates range from 16 August 2006 up to 15 November 2007. Initially she was not permitted to lift more than 7.5 kg or to stand or walk for more than 3 hours, and she was required to avoid uneven ground. The restriction imposed by Dr Lin, on standing or walking for more than 3 hours ceased to apply as from 16 February 2007.
The first three certificates report a diagnosis of a fracture of the left big toe, persistent pain and depression. The subsequent certificates report a diagnosis of a fracture of the left big toe and depression. The Arbitrator states at [14] of his Statement of Reasons for Decision (‘Reasons’) that from 16 April 2007 the fracture is reported to be to the right rather than to the left big toe. He states, “I have proceeded on the basis that this is an accidental slip.”
At [15] of his Reasons the Arbitrator says;
“Ms Lin says that she has continually been looking for work since her employment was terminated. In her supplementary statement she set out details of the efforts she has taken to obtain work. In her evidence to me she said that whenever a potential employer asked her age and whether she has a history of workers compensation claims, her chances of employment disappear. She said she was looking for work in which she would not have to stand for long periods.”
On 8 May 2007 Ms Lin’s solicitors asked the Insurer to review its decision to stop the weekly payments of compensation and the payment of medical expenses. However, the Insurer affirmed its decision on 7 August 2007.
Ms Lin lodged an ‘Application to Resolve a Dispute’ in the Commission on 30 August 2007, seeking payment of weekly payments of compensation from 24 August 2006 to date and continuing, together with lump sum compensation for permanent impairment. She also claimed medical expenses as, “Treatment, care or related expenses incurred or needed.” However, I note at pages 55 and 56 of the transcript of proceedings before the Arbitrator, that he was informed that there is no dispute about medical expenses.
The dispute was not settled, as the parties were unable to reach agreement. The matter proceeded to a hearing before the Arbitrator.
At [20] and [21] of his Reasons, the Arbitrator stated:
“20)At the conclusion of those discussions the parties agreed that the primary issue to be determined was whether or not Ms. Lin suffers any and what partial incapacity as a consequence of her injury. There was also agreement that I should amend the application to show the address of Ms Lin’s new solicitors.
21)There was agreement that the amount Ms. Lin would probably have been earning as a worker, but for the injury, had the [sic] she continued in employment with the employer was $525.00 a week. There was also agreement that I should remit the claim for lump sum compensation to the Registrar for referral to an AMS for assessment.”
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 26 October 2007 records the Arbitrator’s orders as follows:
“1.Amend Part 3.3 of the application to show that the Applicant is now represented by Wyatt Attorneys, of 276 Pitt St., Sydney – DX 1238 Sydney – Ph: 9262-7338 – Fax: 0262-7339 [sic].
2.Order the Respondent to pay the Applicant weekly payment compensation under s 40 at the rate of 325.00 [sic] for the period 24 August 2006 to 30 September 2006.
3.Award for the Respondent with respect to the claim for weekly payments thereafter.
4.The application is remitted to the Registrar for referral to an AMS for assessment of the injury to Ms Lin’s left lower extremity (a fracture to the distal phalanges of her left big toe) sustained on 20 October 2005.”
In this matter, Ms Lim states that she seeks leave to appeal the decision of the Arbitrator dated 19 October 2007 in which her application for weekly payments for incapacity under section 40 of the 1998 Act was granted but only for a closed period from 4 August 2006 to 30 September 2006, and nil thereafter. I note simply for the record, that 19 October 2007 was the date of the hearing before the Arbitrator, whereas the decision appealed against is dated 26 October 2007.
ISSUES IN DISPUTE
The grounds of appeal are:
1.The Arbitrator fell into error when interpreting the evidence of Dr Woo;
2.the Arbitrator failed when considering the evidence of Dr Woo to properly consider the evidence actually provided by that doctor;
3.the Arbitrator in determining that the Ms Lin was not incapacitated after 29 September 2006 based on the evidence of Dr Woo drew an inference which was not available from that evidence;
4.the Arbitrator disregarded the evidence of Dr Lin without proper reasons;
5.the Arbitrator failed to address or consider the statutory test for medical expenses in circumstances where injury was not disputed (note that this ground has been substantially amended in the body of the submissions on Appeal);
6.the Arbitrator took into account considerations that were not fairly open on the evidence, and
7.the Arbitrator failed to take into account relevant considerations.
Given the clear and precise nature of these grounds of appeal, and the concise nature of submissions in support of and in opposition to the Appeal, it is convenient to proceed to determine the matter, subject to the grant of leave, in accordance with the headings provided.
ON THE PAPERS REVIEW
Section 354(6) of the 1998 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.”
Ms Lin submits, “there is sufficient information such that the matter may proceed pursuant to s354 (6) ‘on the papers’.” It is further submitted that the transcript of the proceedings before the Arbitrator on 19 October 2007 should be included amongst the papers to be considered in the Appeal, “and the Appellant seeks the leave of the Commission to make further Submissions in support of this Appeal when that Transcript becomes available.”
On 17 December 2007 the Registrar wrote to Ms Lin’s solicitors in the following terms:
“We refer to the above matter and enclose a copy of the transcript of proceedings.
If you have indicated in your submissions on appeal that you have been unable to complete your grounds of and/or submissions on appeal for the reason that the transcript of proceedings had not been received by you at the date of lodgment, you are required to complete and lodge in the Commission, your final grounds of appeal and serve on all other parties to the appeal in accordance with Practice Direction No 6.
A copy of this letter has been sent to all other parties to the appeal.”
No further grounds of appeal or submissions on appeal have been filed in the Commission by or on behalf of Ms Lin.
A copy of the transcript and all of the evidence and submissions that were before the Arbitrator and taken into account by him, are before me in this Appeal.
Marwong states that it does not dispute that there is sufficient information to decide the matter on the papers pursuant to section 354(6) of the 1998 Act. Furthermore, it does not dispute that the transcript of the proceedings before the Arbitrator should be “included amongst the appeal papers.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission 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
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
Section 352(1) of the 1998 Act provides:
“A party to a dispute in connection with a claim for compensation may, with leave of the Commission constituted by a Presidential member, appeal to the Commission as so constituted against a decision in respect of the dispute by the Commission constituted by an arbitrator.”
There is no dispute that the monetary threshold requirements set out in section 352(2) (a) and (b) of the 1998 Act are met, and I find accordingly.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
Leave to appeal is granted.
EVIDENCE, SUBMISSIONS, DISCUSSIONS AND FINDINGS
Did the Arbitrator fall into appellable error when interpreting the evidence of Dr Woo?
Ms Lin refers to paragraph 6 of Dr Woo’s report dated 28 July 2006, where he said, “I would recommend her to gradually upgrade to her normal 7.5 hours a day over the next 2 months.”
She submits that the Arbitrator referred expressly to this passage of evidence at [10] of his Reasons and accepts the recommendation with regard to her incapacity at that time. However, she submits that there was “no evidence in support of the view as expressed by the Arbitrator that Dr Woo withdrew that support (after 30 September 2006) in the event, that the worker was unable to tolerate work while standing for 7.5 hours a day 5 days a week.”
Marwong disputes this proposition on the basis that Dr Woo’s report of 28 July 2006 clearly states, “I would recommend her to gradually upgrade her normal 7.5 hours per day over the next 2 months.” Marwong submits that it was open to the Arbitrator to find in accordance with Dr Woo’s opinion that Ms Lin “no longer suffered incapacity on 30 September 2006.”
.
Marwong further submits that the Arbitrator’s finding is supported by Dr Limbers, in his medico-legal report dated 16 June 2006. Dr Limbers considered that Ms Lin was suffering no incapacity at that time and was fit for pre injury duties.
Marwong submits that Dr Dave, qualified by Ms Lin, in his report dated 20 May 2006, did not provide an opinion as to her alleged incapacity. Accordingly Marwong submits that it was open to the Arbitrator to find that Ms Lin suffered no incapacity from 30 September 2006 on the basis of Dr Limber’s opinion, or the express opinion of Dr Woo that she should graduate to normal pre injury hours at 30 September 2006.
Marwong submits that no error on the part of the Arbitrator has been demonstrated.
Following a discussion of the relevant medical evidence in [28] – [33] of his Reasons, the Arbitrator concluded at [34] that in accordance with Dr Woo’s report, Ms Lin would have been fit for full duties without restriction as at the end of September 2006, and from that date, she would have had full capacity to undertake work in the marketplace. He went on to say at [35] that until that date, “she was partially incapacitated being fit for work 6 hours a day during August, and 6.75 hours in September.”
Ms Lin’s position is that Dr Woo made it clear that she would continue to suffer pain for a long period of time, but in recommending a progressive upgrade of her hours of work, he was not saying that she could return to her normal duties.
It is true that Dr Woo did not expressly say in his report of 28 July 2006, in gradually upgrading to her normal 7.5 hours each day over the “next two months”, that she would not be suffering any incapacity and could return to full duties. He made the point that at the date of the report, Ms Lin still had pain in the injured big toe. Notwithstanding what appears to be a prognosis of gradual recovery, he states “she could continue to have pain for a long period of time.” He does not elaborate on the degree of pain she would suffer, or to what extent it would diminish, over that time.
At the heart of this ground of appeal is whether the Arbitrator’s conclusion, based on Dr Woo’s report, that Ms Lin “would have been fit for full duties without restrictions as at the end of September 2006”, is inherent in Dr Woo’s recommendation that she should upgrade to “her normal 7.5 hours a day” by that time.
The Arbitrator observes at [28] of his Reasons that Dr Woo, in recommending an upgrade to normal hours of work by the end of September 2006, did not recommend any restrictions on standing, walking or lifting. He states at [29] of his Reasons that Drs Woo, Dave and Limbers, who are all orthopaedic surgeons, are consistent in their reports that Ms Lin’s fracture “has united in an anatomical position.” He further states, “Dr Limbers and Dr Lin report a greater range of movement than Dr Dave, who examined her earlier in her recovery. Dr Limbers, in June, thought her fit for normal duties.
The Arbitrator states at [30] of his Reasons that although Dr Lin, her second treating doctor, raises an issue of depression, there is no explanation for this diagnosis and it is at odds with other reports in which there is no mention of such a state. He goes on to say, “The lifting restriction specified by Dr Lin is similarly unexplained and does not reflect any earlier restriction. Dr Lin stopped specifying the restricts on Ms Lin’s standing and walking which are the heart of Ms Lin’s claims of incapacity, in mid February 2007.”
At [31] of his Reasons, the Arbitrator states, “Ms Lin [sic] evidence is that she still experiences difficulties standing for long periods. This is at odds with all the medical evidence.” At [33] he observes that there is no explanation as to why Dr Lin’s certificates are at odds with Dr Woo’s recommendation and the report of Dr Limbers. He says, “They impose new restrictions without explanation. I cannot reconcile them with Dr Woo’s conclusions or Dr Limbers’ report.”
In his letter of 7 June 2006 to Dr Woo, Dr Huang, Ms Lin’s first treating doctor says:
“Thankyou for seeing this lady who sustained fracture left big toe as a result of work related injury in 20/10.2005. She has made good recover as far as the fracture itself is concerned, but she in still not able to work more than 5 hours a day due to persisting pain in the big toe. I have asked her to see you for advice regarding how we can upgrade her to 7.5 hr a day. At the moment she is certified fit for 5 hrs/day, 5 days a week, but her employer is not able to provide work like that unless she can work for 7.5 hrs a day.” [Sic].
Dr Huang’s observation that she had made a good recovery as far as the fracture itself is concerned is supported by a range of medical reports that are in evidence in this matter. However, he relates the inability to work no more than 5 hours per day directly to the persistent pain in her big toe. The focus of his letter to Dr Woo is how Ms Lin can upgrade to 7.5 hours of work per day. Dr Woo’s letter of 28 July 2006 is a response to Dr Huang’s inquiry, and can reasonably be read as being framed in the same context as the inquiry that was made.
Her second treating doctor, Dr Lin has provided a series of certificates that restate the fact that she has suffered from a fractured toe, that she is in pain and further, that she suffers from depression. The diagnosis is repeated with some variation, on an ongoing basis, without further detail. However, it is true as the Arbitrator states, Dr Lin omitted from his certificates, any restrictions on standing or walking for more than three hours, as from the 16 January 2007.
Apart from this, there is no further medical evidence to indicate the progress or lack of progress made by Ms Lin after July 2006 or in particular, since the end of September 2006, in terms of incapacity and her ability or otherwise to resume normal hours and/or full duties. Apart from her consultations with Dr Lin, there is no specific evidence of any action taken or treatment given in relation to Ms Lin’s discomfort.
Ms Lin makes no mention of ongoing pain in her two statements made on 25 August 2007, other than to outline the injury and disabilities that she had suffered, and her inability to “stand/sit for extended periods.
At page 3, line 40 of the transcript of the proceedings before the Arbitrator, Ms Lin answered “No” to a question, indicating that her employment with Marwong required her to stand most of the time, pre and post injury, and in fact, that was what she was doing after she returned to work, albeit initially for 5 hours per day. (Apparently, she did undertake light duties of some kind, for some of the time). Ms Lin affirmed this in further evidence to the Arbitrator. Nevertheless, Ms Lin maintains that this requirement impeded her ability to work, but to what extent, she does not say. Notwithstanding that her employment ceased on 24 August 2006 because of an alleged downturn of work, there is no evidence of any objection being offered by her to Dr Woo’s plan for the resumption of her normal 7.5 working hours per day from the end of September 2006. Whether a stool could have been made available to her was apparently not canvassed in any detail before the Arbitrator. However, in submissions to the Arbitrator, her legal representative did maintain that to stand from time to time, from a sitting position, would itself be painful for her, even if a stool were provided. In this event of course, the difficulty would have general application and not be restricted to the workplace.
Dr Lin’s comment, “As stated” under “Management Plan”, in his various reports appear to refer to “the plan” mentioned at page 11 of the transcript which, according to Ms Lin’s legal representative, “….is old. It’s before the compensation payments ceased, but it does contain the same salient observation that you must have regard to, namely that it’s the constant standing that’s to be avoided.” However, there appears to have been no updated assessment of, or regime of treatment being undertaken by, Ms Lin, from what can be made of Dr Lin’s reports.
I note that the reports of Drs Pascoe and Stewart of Central Sydney Imaging do not refer to incapacity. These reports of 12 October 2005 and 17 October 2005 state, that there are no dislocations, that there is no significant bone joint or soft tissue abnormality, that the transverse fracture of the left great toe is in a satisfactory position, and again that while no significant bone callus was present there is no obvious abnormality. Dr Woo states on 28 July 2006 that Ms Lin still has pain, but recommends that she return to normal hours of duty of 7.5 hours per day in her employment with Marwong, over a period of two months
The Arbitrator acknowledged that Ms Lin continued to experience some degree of pain, but not such that it prevented her upgrading to normal hours at her usual employment, in accordance with Dr Woo’s recommendation.
Having regard to the evidence before him, and the context and circumstances of the exchange between Dr Huang, Ms Lin’s first treating doctor, and Dr Woo, it was reasonable for, and available to, the Arbitrator to interpret Dr Woo’s recommendation as he did. I am mindful in this regard, that Dr Woo is Ms Lin’s treating orthopaedic surgeon, and in making his recommendation, he was aware of her actual medical condition, the requirements and circumstances of Ms Lin’s work duties, and how she was, and would be, expected to carry them out. I also note that Dr Huang’s letter to which Dr Woo responded, was couched in terms of upgrading her hours to the normal 7.5 hours per week, and that her employer could not “provide work like that unless she can work 7.5 hrs a day.”
The question is not whether or not one agrees with the Arbitrator’s view, but whether it was reasonably available to him to arrive at that view, based on the evidence (Swain v Waverley Municipal Council [2005] HCA 4; (2005) 79 ALJR 249; 213 ALR 249). The High Court said in that case, per Gleeson CJ, “The question for an appellate court is whether it was reasonably open to the jury [sic] to make an assessment unfavourable to the respondent, not whether the appellate court agrees with it.”
Accordingly, I find that the Arbitrator has made no error as alleged, and this ground of appeal fails.
Did the Arbitrator fail to properly consider the evidence actually given by Dr Woo?
Ms Lin submits that the evidence of Dr Woo does not express the proposition that she was in fact fit for her pre-injury duties as at 30 September 2006. She further submits that Dr Woo does not support the view that she was not incapacitated for work on the open labour market, reasonably available to her from the time of her termination [on 24 August 2006] “in the circumstances, after 30 September 2006”. She submits that the Arbitrator did not adequately consider the veracity of her undisputed complaint of ongoing pain as a result of her fracture and its consequences upon her ability to sell her labour on the open labour market, after that date.
Marwong submits that Dr Woo’s report is the only medical report submitted by Ms Lin that is supportive of her contention that she suffers incapacity. It notes that Dr Dave’s report of 20 May 2006 provides no opinion that she suffers incapacity. At its highest, Ms Lin’s case is that she suffers incapacity as indicated in Dr Woo’s report. Marwong submits that it was open to the Arbitrator to accept Dr Woo’s recommendation that Ms Lin would be fit for full duties without restriction at the end of September, 2006, and from that point, she would have had full capacity to undertake work in the market place “in accordance with the decision in Arnotts Snack Products Pty Ltd v Yacob (1985) 155 CLR 171.”
The Arbitrator’s conclusions about Dr Woo’s recommendation have been dealt with above, and were considered in light of the evidence, the context in which Dr Woo’s recommendation was made, and the circumstances of the case. I am satisfied, as stated, that it was open to the Arbitrator to make the assessment that “Dr Woo’s report provides an explanation of the pain Ms Lin was suffering, and suggested a plan for her to return to full duties. Importantly, that plan did not include restrictions in standing, walking or lifting, but recommended a progressive upgrade to full hours.” Again, as stated, Dr Woo was Ms Lin’s treating orthopaedic specialist, and was aware at the time what Ms Lin’s duties entailed, and what would be required of her when she upgraded to “normal hours”. Ms Lin’s own evidence before the Arbitrator is that she was undertaking her usual duties, in a standing position, both pre and post injury. Upon return to work she worked for 5 hours per day (see transcript page 3, line 40). Dr Woo’s unqualified recommendation simply provided a plan for her to continue to do that, but graduating to 7.5 hours per day over a period of two months. Dr Woo was clear that she was experiencing a degree of pain, but nevertheless, he obviously considered that she could undertake her duties for a full 7.5 hours, being the normal working day. There was no evidence before the Arbitrator that she harboured or offered any objections to Dr Woo’s recommendation.
In her statement of 25 August 2007, Ms Lin lists the impediments to her ability to obtain employment on the open labour market, as:
·“My very limited English skills
·My prior workers compensation claim history
·My inability to stand/sit for extended periods
·My lack of tertiary education
·My lack of transferable skills
·No assistance for retraining and search for alternative work”
Ms Lin states that these factors are not exhaustive of the factors that impede her ability to obtain employment. At page 3, line 47 of the transcript she gives another reason, “They say I’m old …”. Ms Lin goes on to say in her statement that Centrelink has arranged English language lessons for her to improve her “job seeking skills”. The extent of the pain claimed by Ms Lin giving rise to her inability to “stand/sit” for extended periods, is obviously but one factor among a number that she puts forward as impeding her in her efforts to obtain other employment.
The Arbitrator’s decision in relation to the award of weekly payments of compensation for the closed period of 24 August 2006 to 30 September 2006 is not in issue.
Ms Lin is correct in submitting that Dr Woo does not express, in so many words, that she was in fact fit for her pre injury duties as at 30 September 2006. However, he was familiar with her medical condition enabling him to formulate a prognosis. He was familiar with the nature of the work she was employed to do and the manner in which she carried it out. Ms Lin gave evidence that she undertook this work, pre and post injury, while standing. Dr Woo was aware of her situation when he recommended an upgrade over two months, to normal 7.5 working hours per day. This recommendation was unqualified in that he imposed no restrictions on her capacity to do the work for this period of time by 30 September 2006. There was no strict requirement for Dr Woo to expressly state that Ms Lin would be fit for her pre injury duties as at 30 September 2006. Dr Woo’s plan was aimed at the length of time she could perform those duties, and the timeframe in which she could upgrade to normal hours of duty.
In the circumstances, it was reasonable for the Arbitrator to find that Ms Lin “would have been fit for full duties without restriction as at the end of September and from then, would have had full capacity to undertake work in the marketplace.”
I do not agree that the Arbitrator failed to consider the veracity of Ms Lin’s undisputed claim of ongoing pain. The Arbitrator acknowledged this at [32] of his Reasons. What he did not accept is that “she still experiences difficulties standing for long periods”. As previously indicated, Ms Lin’s own oral evidence before the Arbitrator was that she stood for substantial periods of time while working, both pre and post injury. This being so, she demonstrated no incapacity to carry out her work while standing, and was unimpeded by any discomfort she may have been experiencing. Moreover, she offered no objections to Dr Woo’s plan for her to increase her working hours from 5 hours per day to 7.5 hours per day, over a period of two months. Finally, I note that her second treating doctor, Dr Lin, lifted restrictions on “standing or walking for more than 3 hours”, in his certificates, as from 16 January 2007. What is equally or perhaps more relevant, is that this restriction did not apply to standing or walking for less than 3 hours, at least from 16 August 2006 to date. Notwithstanding Ms Lin’s claim, a reading of Dr Lin’s certificates leads to the conclusion that she could at least walk or stand for up to three hours at a time.
In my view the Arbitrator properly considered the evidence of Dr Woo, along with and in the context of, the other relevant evidence in this matter. Accordingly, I find no error on the part of the Arbitrator, as alleged.
Did the Arbitrator draw inferences, which were not available from the evidence in determining that Ms Lin was not incapacitated after 20 September 2006, based on Dr Woo’s evidence?
Ms Lin submits that Dr Woo “states a mere recommendation to gradually upgrade in her then employment role the suitability of which was also challenged by the worker in her oral evidence.” She states that there is no support in the opinion of Dr Woo for the proposition put by the Arbitrator to the effect that she was fit for employment on the open labour market after 30 September 2006.
She further submits that Dr Woo did not consider her prospects on the open labour market having regard to the pain arising from her injury as aggravated by her bi-lateral flat feet in any way other than, “she could continue to have pain for a long period of time”.
Ms Lin submits that the Arbitrator’s conclusion at [28] of his Reasons, “If this recommendation had been followed Ms Lin would have been working full hours by the end of September 2006”, is not based on any evidence. She states that by that date her employment had been terminated and full hours as suggested or recommended were not available in any event. Ms Lin submits that the Arbitrator did not properly consider her position on the open labour market.
Marwong submits:
“The respondent submits that [the Arbitrator’s] conclusion was open to him on the evidence as Dr Wu [sic] was the most recent report dated 28 July 2006 provided by a qualified specialist on behalf of the applicant. Accordingly, Dr Wu’s [sic] recommendation the applicant would be able to return to work in September 2006 was supported by all the other medical evidence apart from the WorkCover medical certificates. The respondent submits that [the Arbitrator] clearly outlined in paragraph 3 that he preferred Dr Wu’s [sic] recommendations that the applicant could return to work with no restrictions in standing, lifting, walking over Dr Lin’s medical assessment certificates which do not provide explanation as to the new restrictions imposed on the applicant’s employment. Accordingly, the respondent disputes that [the Arbitrator] drew inferences that were not evident on the face of Dr Wu’s [sic] report.”
Without canvassing the evidence again, it is clear that Dr Woo, with the benefit of his knowledge about Ms Lin, her medical condition and her employment circumstances, made the assessment that she was able to upgrade her working hours, over a period of two months to 30 September 2006, to 7.5 hours per day. He recommended this without qualification in terms of her capacity to undertake usual work duties. Ms Woo was already performing her pre injury duties for 5 hours per day, on her own admission. This plan represented an increase in the hours per day for which Ms Woo could continue to perform her normal duties. He formulated the plan, notwithstanding that he acknowledged that she might still experience a level of residual discomfort. Ms Lin apparently offered no objections to the plan.
In terms of the conclusion drawn by the Arbitrator at [28] of his Reasons, it is difficult to envisage what other conclusion could have been reached, having regard to the evidence available to the Arbitrator, and in particular, to Dr Woo’s recommendation. It is true that Ms Lin’s employment was terminated, allegedly because of a downturn in available work, and the work was therefore not available. There are suggestions, but no evidence to support them, that it was Ms Lin’s injury and workers compensation claim that led to the termination of her employment.
However, that does not alter the fact that on the basis of the available evidence, Ms Lin would have been fit and able to carry out the work, had she still been employed. Apart from the evidence already discussed, no further evidence pointing to incapacity beyond 30 September 2006 was put to the Arbitrator, or has been put to me. In the absence of incapacity, and upon his consideration of the evidence before him, the Arbitrator’s conclusions were reasonable and available. I find no error on the part of the Arbitrator.
This ground of appeal is not made out.
Did the Arbitrator disregard the evidence of Dr Lin without providing proper or relevant reasons?
Ms Lin submits that the certificates of Dr Lin were disregarded on the basis that they referred to depression. Depression was not part of the claim and reliance on that evidence was not relevant to the question before the Arbitrator. She submits further that Dr Lin’s certificates are not inconsistent with Dr Woo’s opinion as stated in paragraph [33] of the Arbitrator’s Reasons.
Marwong submits that it relies upon submissions made to the Arbitrator at page 6 of the transcript, where it was stated, “We do have before us medical certificates, but they do not assist the cause greatly because it appears that the medical certificates are merely just ticking the boxes and hasn’t really provided any meaningful opinion about incapacity.” It further submits that the Arbitrator’s findings at [33] of his Reasons, that the medical certificates do not provide any explanation for the increase in the applicant’s restrictions and alleged incapacity, is in accordance with those submissions. Marwong continues to submit that the medical certificates of Dr Lin are of little probative value.
Marwong submits further:
“In addition, the respondent submits that a decision based solely on the medical certificates would [sic] contrary to the decision of Makita v Sprowles which requires medical evidence to provide an explanation of the reasons in providing the opinion as to incapacity. The respondent submits that the medical certificates do not provide such an explanation as included by the arbitrator at paragraph 3 of the statement of reasons.”
In my view, the Arbitrator did not “rely’ on the reference of depression by Dr Lin in arriving at his decision. He was simply making the point at [30] and [33] that Dr Lin’s evidence was at odds with other medical evidence and that Dr Lin had imposed “other restrictions” without explanation or supporting comments.
Ms Lin has not provided any further evidence from Dr Lin, nor does Dr Lin provide any explanation for his diagnosis on any occasion. Little weight can be attached to this evidence when considered against the other medical evidence that was before the Arbitrator. The Arbitrator did not disregard the evidence of Dr Lin, as alleged. He briefly discussed what evidence there was, but attached relatively little weight to the medical certificates, for the reasons given.
In Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705, per Haydon JA at [59], it was made clear that the prime duty of experts in giving opinion evidence is to furnish the tribunal of fact with criteria enabling the evaluation of the validity of the expert’s conclusion. Without that elaboration, the expert’s opinion amounts to nothing more than a bare conclusion. In the instant case, the Arbitrator, through no fault of his, was afforded no opportunity to conduct the kind of evaluation of Dr Lin’s expert opinion, to which His Honour alluded. The point was affirmed by McColl JA (Mason P and Beazley JA agreeing), in Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA; (2005) 2 DDCR 271 at [84], where she held “…a court cannot be expected to, and should not act upon an expert opinion the basis for which is not explained by the witness expressing it.”
I find no error on the part of the Arbitrator. Accordingly, this ground of appeal fails.
Did the Arbitrator fail to address or consider the statutory test for incapacity and the need for medical treatment in circumstances where injury was not disputed?
Ms Lin submits that in [34] of his Reasons, the Arbitrator found that she was fit for her pre-injury employment at a time when such work was not available to her. Although the Arbitrator states “full capacity to undertake work in the marketplace” and relies on the authority of Arnott’s Snack Products Pty Ltd v Yacob (1985) 155 CLR 171 at 178 (‘Yacob’), that case is not authority for the conclusion proposed by him. Ms Lin submits:
“Yacob deals with the concept of incapacity having to be of an economic nature and does not justify a conclusion of mixed fact and law, to the effect that there is no longer any medical restriction, as decided erroneously by the Arbitrator. By omitting words which make it clear that the nature of the work undertaken is properly work which returns as much in terms of earnings to this worker the Arbitrator discloses an error in the way he considered the facts of this case.”
Ms Lin further submits that the Arbitrator did not consider at all the reasonableness or necessity for medical treatment or investigation as a result of this injury.
Marwong submits that Yacob states, “partial incapacity is determined by a finding that reduced physical capacity, by reason of physical disability, for actually doing work in the open labour market in which an employer [sic] was working or might reasonably be expected to work.” It submits that the Arbitrator correctly applied Yacob at [34] of his Reasons, as he found that in accordance with Dr Woo’s opinion, Ms Lin was fit to perform full duties without restrictions as at the end of September 2006. Applying the test in Yacob Ms Lin would have had full capacity “trying to take work in the market place and therefore suffers no incapacity.”
Incapacity is not limited to incapacity for pre-injury employment, but extends to incapacity on the open labour market reasonably accessible to a worker prior to the injury (Bruce v Grocan Ltd (1995) 11 NSWCCR 247 at 253). The Arbitrator found that Ms Lin bore no incapacity for pre-injury work from 30 September 2006. The Arbitrator drew from that, that Ms Lin “from then, would have had full capacity to undertake work in the marketplace.”
In Mills Workers Compensation New South Wales, (Lexis Nexis Butterworths: Chatswood), 2002 at page 2857, the following is noted:
“A classic test of ‘incapacity’ is contained in Ball v William Hunt & Sons Ltd [1912] 5 BWCC 459 at 462, where Lord Loreburn says:
‘In the ordinary and popular meaning that we are to attached to the language of this statute, I think there is incapacity for work when a man [sic] has a physical defect which makes his labour unsaleable in any market reasonably accessible to him, and there is partial incapacity for work when such a defect makes his labour saleable for less than it would otherwise fetch.’”
In Commonwealth v Murature (1995) 141 CLR 296 at 300-301, Jacobs J, said:
“It has always been recognised that ‘incapacity for work’, those words being taken to refer to physical incapacity, is only relevant where it produces an economic incapacity.”
Ms Lin does not put forward any evidence of incapacity to undertake work, per se. Her claim is that she cannot “stand/sit for extended periods”, or as put by her legal representative, to stand for long periods. However, her second treating doctor, Dr Lin says she cannot do so for more than three hours, which is close enough to half of Mrs Lin’s full working day.
In any event, while she puts this forward as one of a number of factors, in her opinion, that impede her efforts in obtaining other employment, she does not suggest that any suitable job that she could secure in the labour market will always or necessarily require her to stand or to “stand/sit” for extended periods of time. Nor is it suggested by her that this claimed difficulty would diminish her earning capacity. Indeed, she has identified her lack of English language skills as a major impediment to employment, and is undergoing a course of tuition through Centrelink in the hope that her employment prospects may be improved. Nevertheless, the Arbitrator considers that Ms Lin’s claim that she continues to experience difficulties standing for long periods of time is at odds with the medical evidence (see [31] of his Reasons). I note that the restrictions on standing or walking for more than 3 hours were lifted by her second treating doctor, Dr Lin, from 16 January 2007
The parties have cited Yacob in their submissions on appeal. In that case, it was held that the incapacity for work on which the right to workers compensation depends, is a physical incapacity for doing work in the labour market in which the worker was working or might reasonably be expected to work. The two issues for decision in relation to the question of incapacity are, identifying the labour market in which a worker was employed and the kind of work that he or she was doing or could reasonably be expected to do, and secondly, establishing the kind of work that he or she is physically able to do. It is entirely a practical consideration having regard to the realities of the labour market in which the worker is to be employed (Yacob).
However, the Arbitrator effectively found that Ms Lin would have suffered no incapacity “to undertake work in the marketplace”, having regard to the evidence before him. While the Arbitrator did not expressly set out or allude to the exercise proposed by the Court of Appeal in Yacob, given his earlier findings, he would have arrived at the same conclusion, had he done so.
The Arbitrator has made no error that is fatal to his decision in this matter. Accordingly, this ground of appeal fails.
In terms of the claim that the Arbitrator “did not consider at all the reasonableness or necessity for medical treatment or investigation as a result of this injury”, I note that the Arbitrator discharged his lawful obligations in considering the medical and other evidence that was before him, and took into account the submissions made by the parties. In any event, medical expenses were not in issue before the Arbitrator.
Did the Arbitrator take into account considerations that were not fairly open on the evidence?
Ms Lin submits that Dr Woo’s recommendation for a return to full duties at a place where such duties were not in fact available does not justify a finding that such duties were available elsewhere to her in her particular circumstances, following injury. Moreover, she says that she gave evidence, which was not challenged as to its honesty that she had sought employment diligently and was unable to obtain it because of the revelation of a history of injury in previous employment.
Marwong submits that the finding that Ms Lin was able to return to pre injury duties was supported by the evidence of Dr Woo, and therefore, no incapacity could be established on behalf of Ms Lin, due to any medical condition. It further submits that it was reasonable to find that Ms Lin did not suffer any incapacity in the open labour market.
At the time Dr Woo issued his plan, such duties were in fact available to Ms Lin. According to the evidence, Ms Lin’s employment was terminated because of a downturn in work, not involving any considerations of injury, incapacity or claim for compensation. Further, the Arbitrator did not accept Ms Lin’s evidence about her inability to stand for long periods, as it was, in his view, against the weight of the medical evidence, as already discussed. The labour market issue and the question of incapacity of Ms Lin have been dealt with.
I find no error on the part of the Arbitrator. This ground of appeal fails.
Did the Arbitrator fail to take into account relevant considerations?
Ms Lin submits that the reference to “disability” in [7] of the Arbitrator’s Reasons is an error and apparently is a reference to “incapacity”. She submits that the Arbitrator did not consider the possibility that disability as described or impairment as properly expressed by Dr Dave was permanent and could have an influence on his decision concerning economic incapacity. Furthermore, at [15] the Arbitrator noted relevant considerations, namely Ms Lin’s attempts to find suitable employment, but he did not incorporate these matters in his consideration and ultimate conclusion.
Marwong submits that Dr Dave in fact provides no opinion as to incapacity therefore his opinion should not be regarded as relevant in terms of assessing incapacity. It further submits that the Arbitrator outlined his reasons for concluding that Ms Lin no longer suffered incapacity, at [32] to [35] of his Reasons. The Arbitrator relied upon the report of Dr Woo that she was fit to return to pre injury employment “as at September 2006”, as discussed.
Marwong also submits that Ms Lin’s submissions on appeal are primarily based on her assertion that the Arbitrator’s decision is incorrectly grounded in his interpretation of Dr Woo’s opinion. Marwong submits:
“The respondent submits that Dr Wu’s [sic] report was a sufficient basis for [the Arbitrator] to determine the issue of incapacity as it was the only qualified medical opinion provided by the applicant in the application to resolve a dispute, to support a claim for incapacity. The respondent submits that [the Arbitrator] clearly outlined that he did not consider the medical certificates provided by Dr Lin to be a sufficient basis to determine the applicant’s [sic] suffers ongoing incapacity. Accordingly, the respondent submits that as Dr Dave failed to provide an opinion as to incapacity, the applicant’s case for ongoing incapacity essentially hinges on Dr Wu’s [sic] opinion.”
Marwong goes on to submit Dr Woo considered Ms Lin to be fit for pre injury employment at September 2006, and it was open to the Arbitrator to make a finding that she was only entitled to an award of a closed period of weekly compensation. Marwong concludes with the assertion, “… it is unreasonable for the appellant to make submissions that the arbitrator’s decision contains an error by accepting the opinion of the applicant’s treating orthopaedic surgeon, Dr Wu [sic] which was enclosed in the application to resolve a dispute.”
I substantially agree with Marwong with regard the Dr Dave’s report, and notwithstanding the Arbitrator’s use of the word “disability” instead of the term “incapacity” at [7] of his Reasons, I find no error that is fatal to his ultimate decision. The Arbitrator’s consideration of the medical evidence has already been discussed, and requires no further elaboration.
Insofar, as the Arbitrator’s failure to incorporate the matters to which the Arbitrator alluded at [15] of his Reasons, in his “consideration and ultimate decision”, Ms Lin does not indicate how this is an error such that it would lead to the revocation of the Arbitrator’s decision in this matter. In the circumstances, I can take this point no further.
This ground of appeal fails.
Conclusion
I am satisfied that it was open to the Arbitrator, on a proper consideration of all of the evidence, to conclude that Ms Lin suffered no physical incapacity from 30 September 2006, to undertake her pre injury employment, and to work in the open labour market reasonably accessible to her.
DECISION
The appeal is unsuccessful. The decision of the Arbitrator dated 26 October 2007 is confirmed.
COSTS
No order is made as to the costs of this Appeal.
Gary Byron
Deputy President
13 February 2008
I MARIE JOHNS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF GARY BYRON, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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