Linfox Australia Pty Ltd v Martin
[2006] NSWWCCPD 264
•9 October 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Linfox Australia Pty Ltd v Martin [2006] NSWWCCPD 264
APPELLANT: Linfox Australia Pty Ltd
RESPONDENT: Elaine Martin
INSURER:Allianz Australia Workers Compensation (NSW) Limited
FILE NUMBER: WCC 10890-04
DATE OF ARBITRATOR’S DECISION: 26 October 2005
DATE OF APPEAL DECISION: 9 October 2006
SUBJECT MATTER OF DECISION: Sections 4 and 9A of the Workers Compensation Act 1987
PRESIDENTIAL MEMBER: Acting Deputy President Julian Martin
HEARING:On the papers
REPRESENTATION: Appellant: Moray & Agnew Solicitors
Respondent: COX Lawyers
ORDERS MADE ON APPEAL: 1. The decision of the Arbitrator dated 26 October 2005 is confirmed.
2. Linfox Australia Pty Ltd to pay Elaine Martin’s costs of the appeal.
BACKGROUND TO THE APPEAL
On 23 November 2005 Linfox Australia Pty Ltd (‘Linfox’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 26 October 2005.
The Respondent to the Appeal is Elaine Martin (‘Mrs Martin’).
Mrs Martin was born on 1 October 1949 and is 57 years of age. She claims no dependents.
After completing her School Certificate, Mrs Martin attended East Sydney Technical College where she did a Hotel and Catering Management course over a period of 3 years. She then worked in the catering industry for approximately 18 months until she married.
After raising a family, Mrs Martin enrolled in a basic office skills course in 1991 with a view to returning to paid employment. She then went on to do her Higher School Certificate, before commencing an accounting degree which she did not complete.
Whilst studying, Mrs Martin worked for a number of employers in their accounting sections, before commencing with Mayne Nickless Limited in the year 2000 as a financial/administrative supervisor. Mayne Nickless Limited was taken over by Linfox in February 2003.
The job at Mayne Nickless Limited and later Linfox involved using a keyboard continuously to enter data into the system. This involved mainly the right hand.
In late 2002 Mrs Martin noticed pain in her right wrist and right thumb, however, she continued to work. In May 2003 she first consulted her general practitioner, Dr Lam, about the condition and continued working until 26 September 2003 when she was certified unfit for work. After one week off work, Mrs Martin returned to light duties, six hours a day.
In October 2003 Mrs Martin was referred to specialist hand surgeon, Dr Yee, who operated on her right thumb on 28 November 2003. She remained off work and was paid weekly payments of compensation until liability was denied on 20 January 2004.
Mrs Martin attempted a return to work for 7 or 8 days in February 2004, however, she was made redundant due to a restructuring of the company. She has remained off work except for a period of 6 or 7 weeks of light work at the end of 2004 and a further 4 weeks of light work in mid 2005. This was work with Beak & Johnson, who employs Mrs Martin’s husband.
Proceedings for weekly compensation and medical expenses were lodged in the Commission on 19 July 2004 and an arbitration hearing took place on 29 August 2005. A Certificate of Determination was issued on 26 October 2005 and Linfox have appealed from that decision.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 26 October 2005 records the Arbitrator’s orders as follows:
“1.Respondent to pay the Applicant weekly payments compensation pursuant to s36 of the Workers Compensation Act 1987 (the 1987 Act) for the period from 20 January 2004 to 17 February 2004 (4 weeks) and for the period 1 March 2004 until 30 June 2004 (16.4 weeks) and for the period 1 July 2004 until 31 August 2004 (8.9 weeks) - at the rate of $918.09 gross per week - agreed to total $3,672.36 and $15,056.68 and $8,171.00 for the respective periods - and, if relevant, credit is to be provided in connection with any amounts already paid.
2.Respondent to pay the Applicant weekly payments compensation pursuant to s38 of the 1987 Act for the period from 1 September 2004 to 29 November 2004 - and is entitled to claim 8.6 weeks at $918.09 gross per week and then for 3.4 weeks at 80% thereof with such sums agreed to total $7,895.57 and $2,497.20 for the respective periods - and, if relevant, credit is to be provided in connection with any amounts already paid.
3.Respondent to pay the Applicant weekly payments compensation pursuant to s40 of the 1987 Act the sum of $318.09 per week for the period commencing 30 November 2004 and continuing - and, if relevant, credit is to be provided in connection with any amounts already paid.
4.Respondent to pay the Applicant’s reasonable and necessary treatment and related expenses under s60 of the 1987 Act upon production of accounts or receipts.
5.Respondent to pay the Applicant’s costs as agreed or assessed.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are:
“1.whether the Arbitrator erred in finding injury within the meaning of section 4 of the Workers Compensation Act 1987 (‘the 1987 Act’);
2.whether the Arbitrator erred in finding that employment was a substantial contributing factor within the meaning of section 9A of the 1987 Act; and
3.that the Arbitrator erred in finding that the aggravation, acceleration, exacerbation or deterioration of the disease was continuing.”
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.”
Mrs Martin submits that the matter can be dealt with ‘on the papers’, however Linfox submit that as the matter involves complex issues, an oral hearing is necessary in order to “develop his arguments”.
Having regard to Practice Directions Numbers 1 and 6 and the 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.
As the matter involves a continuing award of weekly compensation, it clearly satisfies the monetary threshold and accordingly I grant leave to appeal.
FRESH EVIDENCE
Neither party seeks to introduce fresh evidence.
PRELIMINARY
As a result of the efforts of the Arbitrator and the parties, agreement was reached at the arbitration hearing on the following matters:
§The quantum of weekly payments of compensation from 20 January 2004 to the date of the arbitration hearing and continuing if Mrs Martin was successful;
§A general order for section 60 medical expenses if Mrs Martin was successful;
§That the issue of injury was to be considered under sections 4(b)(ii), 16 and 9A of the 1987 Act;
§That the deemed date of injury for the purpose of section 16 of the 1987 Act is 26 September 2003.
There was no oral evidence at the arbitration hearing, the matter being dealt with by way of oral submissions which were recorded.
EVIDENCE AND SUBMISSIONS
Section 4 of the 1987 Act
The Arbitrator made the following finding at paragraph 53 of the Decision:
“Having regard to the operation of s4(b)(ii) and s16 of the 1987 Act I find the Applicant suffered injury in the nature of an aggravation, acceleration, exacerbation or deterioration of a disease with a deemed date of injury being 26 September 2003.”
Linfox submit that this finding was against the weight of the evidence. In support of this submission reference is firstly made to Dr David Johnson, who examined Mrs Martin on 20 November 2003 at the request of Linfox.
The Arbitrator made the following comments at paragraphs 40 and 41 in relation to Dr Johnson’s evidence:
“Under the Heading “Conclusion” Dr Johnson noted: “This is not a work-related condition but is constitutional degenerative arthritis of the first metacarpal joint. There was no specific work injury and she would probably have developed the condition whether she was working or not.” In giving this opinion it is apparent that Dr Johnson does not state that the Applicant would have developed the symptoms and manifestations of pain and swelling and other symptoms whether she was working or not but instead appears to limit his opinion to the condition (in his opinion - constitutional degenerative arthritis) as a whole and he does not comment upon whether or not the Applicant’s employment duties played a role in the bringing on of symptoms or whether her employment activities may have exacerbated, accelerated or caused a deterioration of the underlying condition.
In answer to the question “Has she aggravated a pre-existing condition and if so, has the aggravation now ceased?” Dr Johnson advises: “there is no history today of any specific work-related injury other than doing her normal work on a keyboard and computer. I cannot find definite evidence of work-related aggravation. The substantial cause of her condition is constitutional degenerative arthritis”. It is apparent that Dr Johnson qualifies his opinion as to the kind of evidence he could find. I am of the view that in giving his opinion Dr Johnson has not ruled out the likelihood that the Applicant’s work on computer keyboard and numeric keypad could have aggravated the underlying disease resulting in pain and swelling symptoms that were not present prior to the Applicant’s performance of her employment duties. He makes no or no specific comment regarding whether in his opinion her employment activities may have exacerbated, accelerated or caused a deterioration of the underlying condition.”
Linfox submit that the Arbitrator has read into Dr Johnson’s express opinion “things that are not there” as Dr Johnson has “in fact clearly ruled out the likelihood” of work-related aggravation, having expressly said that he could find no evidence of same.
I do not agree with this submission of Linfox, as Dr Johnson in my view does qualify his opinion when after taking a history of keyboard and computer work, comments that there is no “definite evidence” and then goes on to state the “substantial cause of her condition is constitutional degenerative arthritis”. Clearly that is the substantial cause, but the question is, was there an ‘aggravation, acceleration, exacerbation or deterioration of a disease’. As Windeyer J stated in the leading authority on the meaning of the phrase ‘aggravation, acceleration, exacerbation or deterioration’ of a ‘disease’, Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 (‘Federal Broom’):
“the words have somewhat different meanings: one may be more apt than another to describe the circumstances of a particular case: but their several meanings are not exclusive of one another. The question that each poses is, it seems to me, whether the disease has been made worse in the sense of more grave, more grievous or more serious in its effects upon the patient. To say that a man’s sickness is worse or has deteriorated means in ordinary parlance, oddly enough, the same thing as saying that his health has deteriorated” (at p 639-640)
In further support of this submission, Linfox next refer to Dr Richard Honner’s evidence. Dr Honner examined Mrs Martin at the request of Linfox on 21 September 2004. The Arbitrator at paragraphs 42 and 43 made the following comments in relation to Dr Honner’s evidence:
“I am of the view that the matters expressed in Dr Honner’s reports dated 23 September 2004 do not advance the Respondent’s case very far if at all. Dr Honner only examined the Applicant after her operation and in his main report deals primarily with her then current presentation and capacity for work.
Dr Honner - in the short “Assessment of Impairment” report (presumably prepared to assist the Respondent in an assessment of any claim under s66 of the 1987 Act) - states his opinion as follows: “In my opinion, all of this 10% whole person impairment is due to underlying constitutional and degenerative arthritic changes at the base of the right thumb and none of it is due to her work at Linfox”. Despite a consistent history being provided in other reports and the clinical notes that the Applicant was asymptomatic prior to commencing in her role as financial supervisor and also that prior to the operation the Applicant presented with marked swelling and pain in and around the right thumb and wrist Dr Honner provides no or no sufficient reasons to support the Respondent’s contention that the Applicant’s employment duties with the Respondent did not contribute to an aggravation or exacerbation or deterioration or acceleration of the underlying condition, whether temporary or otherwise.”
In my view it was open to the Arbitrator to make the comments he did in relation to Dr Honner’s evidence. Dr Honner in his report of 23 September 2004 provided the following diagnosis:
“The diagnosis is arthritic degenerative changes at the base of the right thumb which became symptomatic while she was working at Linfox in about May 2003. There was no specific injury at work.”
In a supplementary report of the same date the doctor assessed 10% whole person impairment but was of the view that:
“In my opinion, all of this 10% whole person impairment is due to underlying constitutional and degenerative arthritic changes at the base of the right thumb and none of it is due to her work at Linfox.”
As stated above, the question in the case is ‘aggravation, acceleration, exacerbation or deterioration of a disease’ and in this regard Dr Honner is silent.
Further, in support of the submission that the finding was against the weight of the evidence, Linfox refer to the evidence of Dr McGroder, Approved Medical Specialist, who examined Mrs Martin on 19 January 2005. At paragraph 45 of the Decision the Arbitrator made this statement:
“In considering the answers provided by Dr McGroder in the Medical Assessment Certificate to the first two questions asked of Dr McGroder it is open to conclude that Dr McGroder may not have fully considered the extended definition of injury provided by s4(b)(ii) of the 1987 Act. Also, the present application concerns a claim relating to an injury alleged to give rise to an incapacity for work as compared to an injury resulting in a claim [for] whole person impairment for which the AMA guides for permanent impairment that Dr McGroder cites are principally directed.”
Linfox submit that Dr McGroder specifically deals with the questions of injury and incapacity and therefore the Arbitrator misconceives the content of the doctor’s opinion.
Dr McGroder in his report diagnoses “Mrs Martin has osteoarthritis of the CMC joint of her right hand. This is not an injury but a constitutional condition.” The doctor then sets out the reasons for his opinion:
“Mrs Martin clearly has significant osteoarthritis of the CMC joint and this was severe enough to warrant surgery. Allegedly the surgery had not resulted in any improvement in her condition. I agree with the reports of Dr D Johnson of the 20.11.03 and Dr R Honner of the 23.9.04 that the arthritis is a constitutional problem and not work related. This condition is common in middle-aged women and usually affects the dominant hand as is the case here. I could find no studies that suggested arthritis of the CMC joint was a problem in keyboard operators. There is a case for the condition occurring occupationally as a result of repetitive trauma to the area but this was not the case with this lady. Keyboard work was only part of her job although it was the job on which she spent most of her time. Whilst some pain may have been manifest while keyboarding this would not have been a cause or an aggravation of the condition. Aggravation is defined in AMA 5 as “a factor(s) (eg. physical, chemical, biological or medical condition) that adversely alters the course or progression of the medical impairment. Worsening of a pre-existing medical condition or impairment”. That is not the case here. Similarly there is no case for acceleration, exacerbation or deterioration. I note in reports from her treating GP, Dr Lam, and her treating surgeon, Dr Yeo, that they acknowledge her problems are due to CMC arthritis, and suggest that it is due to her work by way of aggravation. I would disagree with this for reasons that have been outlined above. Whilst the condition may have become manifest when working it by definition was not aggravated.”
In my opinion the Arbitrator was correct to comment that “it is open to conclude that Dr McGroder may not have fully considered the extended definition of injury provided by s4(b)(ii) of the 1987 Act”. As Kitto J said in Federal Broom on the meaning of the phrase ‘aggravation, acceleration, exacerbation or deterioration’ of a ‘disease’:
“As applied to a disease it is properly used to refer to effects which the disease produces in the victim rather than the advance of the disease itself to a more serious stage of its development.”
Dr McGroder appears to be limiting his opinion to the definition of aggravation as defined in ‘AMA 5’. This is particularly so having regard to the last sentence quoted above (paragraph 33) where the doctor acknowledges “the condition may have become manifest when working”.
As Deputy President Byron stated in John Robinson t/as Robinson’s Pharmacy v King [2005] NSWWCCPD 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 53 at 520 and Re National Roads and Motorists Association Ltd [2003] FCAFC 206).”
Having considered the transcript of submissions, the medical evidence and other documentary material, I find that Linfox has not “demonstrated that the Arbitrator has failed to exercise his discretion fairly and lawfully”.
Linfox submit that the Arbitrator “in analyzing the question of injury does not embark upon any detailed analysis of the worker’s medical evidence”. In support of this submission reference is made to paragraph 44 of the Decision where the Arbitrator made this comment:
“Leaving to one side the opinions of the Applicant’s treating doctors who are of the view that the applicant’s condition was aggravated by employment factors and having regard to the medical evidence of Dr Johnson and Dr Honner upon which the Respondent relies, including the opinion provided by Dr McGroder, I am not satisfied that the Respondent’s doctors completely exclude the possibility that the work of the nature performed by the Applicant could have aggravated an underlying osteoarthritis condition or caused an increase in symptoms or manifestation of the condition. That is to say I note it is their opinion that in the case of this Applicant her work was not a substantial contributing factor to the Applicant’s underlying condition but I do not accept that their opinions go as far to establish, for example, that it is not possible for osteoarthritis to ever be aggravated by repetitive actions or by actions of the kind that the Applicant was required to perform in carrying out her employment duties.”
Linfox submit that the question of whether this constitutes an injury within the ambit of Federal Broom requires a more considered analysis than that provided by the Arbitrator, particularly in light of the opinions of Dr Johnson, Dr Honner and Dr McGroder.
The Arbitrator did provide a summary of Mrs Martin’s medical evidence in the section of his Decision headed “The Applicant’s Medical Evidence and other evidence”. At paragraph 47 of the Decision (section headed FINDINGS AND REASONS) the Arbitrator referred to the evidence of Dr Yee, the treating hand surgeon:
“When commenting upon the Applicant’s work duties and the relationship to her condition Dr Yee, the Applicant’s treating orthopaedic surgeon states in his report dated 12 May 2004: “…there is no doubt that any action including flexion extension, abduction or adduction at the thumb can aggravate her symptoms and cause her symptoms related to her degenerative changes to be worse”.
As Meagher JA stated in Beale v GIO of NSW (1997) 48 NSWLR 430 at 443:
“…[r]easons need not necessarily be lengthy or elaborate [but]…relate to the function to be served by the giving of reasons…there is no need to refer to [relevant evidence] in detail, especially in circumstances where it is clear that the evidence has been considered.”
I am satisfied that the Arbitrator did, in a well-reasoned Decision, provide adequate reasons.
Substantial Contributing Factor
Linfox submit that the weight of the evidence was against the finding made by the Arbitrator “that the Applicant’s employment was also a substantial contributing factor to the Applicant’s injury”. The Arbitrator addressed this issue at paragraphs 58, 59 and 60 of his Decision:
“As found above I am satisfied there is a causal link between employment and the injury giving rise to the incapacity and later surgery. There is little doubt the Applicant’s underlying constitutional condition is one substantial contributing factor to the injury and having regard to the matters above mentioned and the sub-sections of s9A I am on balance satisfied the specific circumstances and factors relating to this matter support the finding that the Applicant’s employment was also a substantial contributing factor to the Applicant’s injury.
I am satisfied that it is not likely that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if the Applicant had not been carrying out the particular employment duties with the Respondent. The investigations show that the Applicant has a fairly widespread osteoarthritic condition however it was not until she had been carrying out her employment duties with the Respondent that involved considerable and at times continual repetitive actions using her right thumb and hand for the purpose of computer keyboard and numeric data pad entry over many months that symptoms in her right hand and thumb first manifested and then worsened to the extent that they became incapacitating. Significantly her symptoms were confined to her right thumb, hand and forearm whereas investigations showed a widespread underlying condition.
I have had regard to the nature of the work performed by the Applicant for the Respondent and the particular tasks of that work and the duration of that work and I am satisfied that had the Applicant not been performing such tasks or had not performed such tasks for the length of time that she did that she would not have suffered the injury as previously found or the incapacity arising therefrom.”
The Arbitrator referred to the decision of Deputy President Byron in NSW Police Service v Kehoe [2004] NSWWCCPD 40 (‘Kehoe’s case):
“In order to establish that employment was a substantial contributing factor to the injury there must be a causal connection between the injury and the work that the injured worker was required to do (Stanton-Cook v TAFE Commission (NSW) [1997] 17 NSWCCR 632). The degree of causal connection is less than is required to establish that the injury arose out of the employment (Farrelly v Qantas [2001] NSWCC 162). There may be more than one substantial contributing factor, but nevertheless, the employment factor must be substantial and not minor in relation to the other factors (Mercer v ANZ Banking Group Limited [2000] 20 NSWCCR 70, and Dayton v Coles Supermarkets Pty Ltd [2001] 22 NSWCCR 46). In the instant case, it is well established on the evidence that the injury arose in the course of employment; it was connected to the employment, and occurred wholly within the circumstances of employment. The effect of section 9A(3) of the 1987 Act is that a finding that an injury arose in the course of employment is not of itself, determinative. It is however, a relevant consideration (Supair Pty Ltd v Sweeney [2000] 20 NSWCCR 514).”
Linfox in support of this submission state that the Arbitrator was required to consider the detailed medical opinions, including that of Dr McGroder. It is further submitted that Dr Yee “falls short of supporting a substantial contribution”.
Mrs Martin submits in reply that the Arbitrator is required to consider not only the medical evidence, but analyse “the work that the injured worker was required to do”. (Kehoe’s case)
At paragraph 25 of the Decision the Arbitrator referred to Mrs Martin’s evidence contained in her statement:
“The Applicant’s statement recounts that in her role as financial/administrative supervisor she was responsible for payroll, accounting functions and invoicing, journals, and preparing all necessary information for profit and loss statements. Amongst other things she states ‘I performed these functions by myself and the line of work involved having to use a keyboard continuously to enter data into the system. This task primarily involved having to use a numeric pad on the keyboard, which I used my right hand to do. …In regards to the injury to my right hand, I began to notice pain in my right wrist and lower thumb in late 2002. At this point I experienced a throbbing ache in that area and did not do anything about it at that point in time. I attempted to manage the pain by simply applying a heat pack to it, which I used to enable me to sleep at night…I continued working with the pain which gradually grew worse and my right hand got weaker. I found that I was unable to carry any heavy weights in my right hand and on occasions I would be carrying files in my right hand and it would give way causing me to drop the files on the ground…I eventually approached my General Practitioner, namely Dr Lam about the pain in my right hand in May 2003.”
I am satisfied that the Arbitrator has given due consideration to “the weight and relevance of the evidence” and that it was open to him to find that Mrs Martin’s employment was a substantial contributing factor to the injury.
The Arbitrator considered the work that Mrs Martin was doing and its effect on her right hand and thumb. He considered the medical evidence in detail and took into account the sub-sections of section 9A of the 1987 Act. The Arbitrator also took into consideration the evidence that the symptoms were localized to the right hand, thumb and forearm, whilst the investigations showed ‘a widespread underlying condition’.
The Arbitrator in considering the evidence had regard to the authorities referred to in Kehoe and importantly did not simply conclude, that because the injury arose out of or in the course of employment, this determined the employment was a substantial contributing factor. He “considered the necessary and significant causal linkage to be present such that the “merely because” prohibition was not contravened” (Chubb Security Australia Pty Ltd v Trevarrow [2004] NSWCA 344).
Continuing Aggravation
Linfox submit that it was incumbent upon the Arbitrator to deal with the question of whether there was ongoing aggravation in the context of his determination resting upon symptomatic (rather than a pathological) effects of the work. It is submitted that the medical evidence overwhelmingly supports the proposition that any aggravation was temporary. In support of this submission it is pointed out that because both Dr Johnson and Dr Honner considered that the whole of Mrs Martin’s incapacity is not work-related, it follows that any aggravation was of temporary duration only.
In reply Mrs Martin submits that all of the medical evidence is to the effect that she continues to be incapacitated and symptomatic.
I do not agree with the submission of Linfox that the medical evidence overwhelmingly supports the proposition that the aggravation was temporary. Dr Lam is of the view that the prognosis is very guarded and she will never be able to perform at the same level of competence as before. Dr Honner is of the opinion that the prognosis generally is poor and she is fit for selected clerical duties with the left hand and only limited light work with the right hand.
Dr McGroder is of the opinion Mrs Martin could not perform tasks that require repetitive use of the right thumb as well as sustained gripping involving the right thumb.
Dr Yee, the operating surgeon, was of the opinion that in the long term her pain should settle down although occasionally weakness of grip strength is reported. Interestingly the doctor was of the view that she is able to return to her pre-injury employment. I note that in her statement Mrs Martin states:
“I saw Dr Yee on 17 February 2004 and requested that I be able to return to work. This came after I was approached by my manager who was pleading for me to return back to work because she was going away on holidays. Dr Yee reluctantly authorized me to return back to work. I worked for the following seven days and on the eighth day I was informed by my employer that my position was being made redundant due to the restructuring of the company.”
Mrs Martin continued in her statement to set out her ongoing disabilities which are clearly inconsistent with her return to work.
Mrs Martin further submits that Linfox failed to make any submission at the arbitration hearing in relation to the question of ongoing incapacity because the parties had agreed on the quantum of ongoing weekly payments if she was successful (see paragraph 21 above). At page 18, point 45, of the transcript Linfox stated:
“…there is no issue as far as the respondent is concerned to the fact that the applicant suffers a significant impairment. The only real issue is whether or not that impairment has arisen out of or during the course of her employment subject to the provisions of section 18 [sic 16] of the Workers Compensation Act. To that end, we have already agreed with the applicant the appropriate orders and awards that should be applied should the Commission be satisfied that the impairment suffered by the applicant arises out of her employment with the respondent.”
Linfox set out their position on the issues to be determined by the Arbitrator. In any event the medical evidence is clear that the aggravation, acceleration, exacerbation or deterioration is continuing and I find accordingly.
DECISION
For the above reasons the decision of the Arbitrator dated 26 October 2005 is confirmed.
COSTS
Linfox Australia Pty Ltd is to pay Elaine Martin’s costs of the appeal.
Julian Martin
Acting Deputy President
9 October 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.
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