Lithgow Services Pty Ltd v Walsh
[2011] NSWWCCPD 66
•17 November 2011
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| CITATION: | Lithgow Services Pty Ltd v Walsh [2011] NSWWCCPD 66 | ||||
| APPELLANT: | Lithgow Services Pty Limited | ||||
| RESPONDENT: | Kim Marie Walsh | ||||
| INSURER: | Cambridge Integrated Services t/as Xchanging | ||||
| FILE NUMBER: | A1–3487/11 | ||||
| ARBITRATOR: | Ms J Scott | ||||
| DATE OF ARBITRATOR’S DECISION: | 23 August 2011 | ||||
| DATE OF APPEAL DECISION: | 17 November 2011 | ||||
| SUBJECT MATTER OF DECISION: | Incapacity; aggravation of a disease; s 16 of the Workers Compensation Act 1987; sufficiency of reasons | ||||
| PRESIDENTIAL MEMBER: | Deputy President Kevin O'Grady | ||||
| HEARING: | On the papers | ||||
| REPRESENTATION: | Appellant: | Astridge & Murray | |||
| Respondent: | McIntosh McPhillamy & Co | ||||
ORDERS MADE ON APPEAL: | The decision of the Arbitrator as set forth in Statement of Reasons – Extempore Orders dated 29 August 2011 is confirmed subject to amendment being the deletion of the words and figures “section 36” which appear at [2(b)] of the orders and substituting “section 37”. The appellant is to pay Ms Walsh’s costs of the appeal. | ||||
BACKGROUND
Ms Kim Walsh was employed as a cleaner by Lithgow Services Pty Limited (the appellant) on 18 December 1998. She remained in that employ until 18 December 2004 at which time the appellant terminated her employment.
It is not in dispute that Ms Walsh received an injury in the course of that employment on 4 February 2004. On that day she was carrying out her duties at Wallerawang power station when she fell down a set of metal stairs causing injury to her neck. Ms Walsh was transported to Nepean Hospital, Penrith, by helicopter where radiological investigations were conducted following which she was discharged. It seems that, as a result of painful symptoms, she remained absent from her work until 15 March 2004 on which date she was certified by her general practitioner, Dr C A Suresh, as being fit for suitable duties. Ms Walsh underwent physiotherapy treatment and rehabilitation. On 20 September 2004 a medical certificate was issued by Dr Suresh at Ms Walsh’s request which certified that she was fit for pre-injury duties from that date.
The appellant lost the cleaning contract concerning the Wallerawang power station. That contract was taken over by another contractor, Tempo Services Limited (Tempo). Ms Walsh was employed by Tempo one week after termination of her employment by the appellant. Initially she continued her duties at Wallerawang power station following which she was transferred to Mount Piper power station. Ms Walsh alleges that she experienced disabling symptoms at all times following the injury in February 2004. By reason of those symptoms she ceased work on 16 January 2006 at which time she was certified by Dr Suresh as being unfit for work. She has not returned to any employment since that time.
In August 2008 Ms Walsh made a claim against the appellant for lump sum entitlement pursuant to ss 66 and 67 of the Workers Compensation Act 1987 (the 1987 Act). That claim was settled and an agreement pursuant to s 66A of the 1987 Act was entered into following which Ms Walsh was paid the sum of $8,750 in respect of seven per cent whole person impairment resulting from the injury received in February 2004.
Ms Walsh had been paid compensation benefits being weekly payments, medical and rehabilitation expenses before termination of her employment with the appellant. Following her cessation of work in January, 2006 Ms Walsh claimed weekly payments in respect of her alleged ongoing incapacity. Incapacity was denied by the appellant’s insurer and a notice of that denial was given to Ms Walsh in accordance with the provisions of s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 2 February 2011.
Ms Walsh filed an Application to Resolve a Dispute (Application) in May 2011. That Application came before Arbitrator Jennifer Scott for conciliation and arbitration on 11 July 2011 on which day the Application was adjourned, part heard, for further hearing on 23 August 2011. The Arbitrator, on the second day of hearing, granted leave to the appellant’s counsel to cross-examine Ms Walsh. Following submissions put on behalf of each party the Arbitrator delivered her determination orally. An award was entered in favour of Ms Walsh.
THE DECISION UNDER REVIEW
The Arbitrator’s Statement of Reasons and Extempore Orders are recorded in a document issued by the Arbitrator on 29 August 2011. The following matters are recorded:
“In this matter, an arbitration hearing was held on 11 July and 23 August 2011, where I, acting as Arbitrator, used my best endeavours to bring the parties to an agreed resolution of the dispute. The parties were unable to come to an agreement.
To ensure the parties received a timely determination of their dispute, the reasons for the orders set out below were given orally at the arbitration hearing
A sound recording of the reasons given is available to the parties.
The orders made are as follows:
1. Application is amended as follows:
(a)Part 4: delete injuries to both upper extremities (shoulders) and lumbar spine (back)
(b)Part 5.1: add dependants – Chelsea 6/3/93 and Tiarne 17/3/95
2. That the respondent pay the applicant weekly compensation from 16 January 2006 to date and continuing under section 37 of the Workers Compensation Act 1987 at the lesser of:
(a)The maximum statutory rate for a worker with two dependants, or
(b)$495.72 (being 90% of the section 36 [sic] rate of $550.80)
3. That the Respondent pay the Applicant’s costs as agreed or assessed. I certify this case to have a high level of complexity for both the Applicant and the Respondent and uplift costs by 30%.”
An appeal against the Arbitrator’s determination was filed with the Commission on 19 September 2011.
PRELIMINARY MATTERS
In accordance with the Commission’s usual practice, proceedings before the Arbitrator were to have been recorded. It seems that the recording equipment used during the hearing on 11 July 2011 failed to record by reason of technical malfunction and as a result there is no transcript available of proceedings which occurred on that occasion. A transcript (T) of proceedings conducted on 23 August 2011 has been produced and made available to each party.
That transcript records a brief description by the Arbitrator of matters which occurred on the first day of hearing. It appears that discussion had occurred in relation to “preliminary matters” and orders were made concerning the admission of certain expert evidence. That transcript also records that Ms Walsh had sought leave to amend her particulars of injury found at Part 4 of her Application. Leave was granted by the Arbitrator to delete reference to alleged injury to “both upper extremities (both shoulders)” and “lumbar spine (lower back)”.
The parties were informed by the Registrar of the absence of a transcript and each had been invited to put submissions concerning the future conduct of the appeal. Each party has provided submissions concerning the appeal generally but neither party has addressed the subject of the absence of a transcript.
ISSUES IN DISPUTE
The appellant challenges the Arbitrator’s findings of fact and also argues that there have been errors of law committed by her in the course of her reasoning. The “Grounds of Appeal” suggest error:
(a) in determining that Ms Walsh had suffered no injury with a subsequent employer within the meaning of s 16 of the 1987 Act;
(b) in determining that Ms Walsh’s employment with the subsequent employer was not a substantial contributing factor to the aggravation of Ms Walsh’s neck condition;
(c) in the manner of her exercise of discretion in failing to take into account the further aggravation with the subsequent employer and other non-work related medical restrictions and Ms Walsh’s ability to work when assessing her weekly entitlement to compensation;
(d) in finding that there was no work available on the open labour market reasonably accessible to Ms Walsh, and
(e) in failing to provide sufficient reasons for rejection of the appellant’s evidence and its submissions.
The above summary of the issues raised on this appeal has been taken from the appellant’s submissions at Part B where “Grounds for Appeal” are stated. It must be said that those “grounds” lack clarity and give rise to some confusion as to the precise complaint made concerning the Arbitrator’s reasoning and conclusions. That confusion may, in some respects, reflect the confusion which is apparent in the language adopted by the Arbitrator at the time her Reasons were delivered extempore.
ON THE PAPERS REVIEW
Section 354(6) of the 1998 Act provides:
“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.”
Each party has submitted that the appeal may be determined solely on the papers. Those submissions have been put notwithstanding the absence of a transcript of the first day’s proceedings. As noted earlier the Arbitrator has recorded those matters which took place before her on 11 July 2011. Notwithstanding the absence of the transcript, 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 to adopt.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to quantum and time as found in the provisions of s 352(3) and s 352(4) of the 1998 Act have been met.
THE ARBITRAL PROCEEDINGS
The amendment to Ms Walsh’s application noted at [10] above had the consequence that the only injury alleged in the proceedings was one to Ms Walsh’s cervical spine. The Arbitrator (at T1 and T2) recorded the issues which had been raised on behalf of the appellant. Regrettably that summary does not clearly record those matters which were said to be in dispute. It is reasonably clear that it was the appellant’s contention that Ms Walsh suffered a disease condition in her neck and that, on the facts, that disease had been aggravated by work performed by her whilst in the employ of Tempo subsequent to her employment with the appellant. It also appears that the appellant alleged that Ms Walsh had recovered from the effects of the injury received by her in February 2004 and that any resultant incapacity had ceased.
The transcript further records an agreement between the parties that Ms Walsh’s probable earnings but for injury were $550.80 per week (T2). I note that the agreed figure corresponds to that sum which is noted in the schedule of wages which appears at Part 5.2 of Ms Walsh’s Application. The documentary evidence which was admitted by the Arbitrator is summarised at T2. That evidence included all documents attached to the Application to Resolve a Dispute and those attached to the appellant’s Reply, as well as all those documents which had been the subject of applications seeking admission of late documents filed on behalf of each party. As recorded by the Arbitrator, no objection was taken to any of that documentary material.
A further application seeking leave to amend the Application was made on behalf of Ms Walsh. That amendment concerned the allegation that Ms Walsh has had, at relevant times, two dependent children. Leave was granted permitting that amendment.
An application was made on behalf of the appellant, as noted earlier, to cross-examine Ms Walsh. That application was granted and the evidence given by Ms Walsh is recorded between T7 and T16. A summary of that evidence appears below.
The evidence
Ms Walsh’s statements
There are two written statements made by Ms Walsh in evidence, dated 16 September 2010 and 12 August 2011. Ms Walsh stated that she commenced employment with the appellant on 18 December 1998 as a full-time cleaner. On 4 February 2004 she was injured in the course of that work whilst cleaning at Wallerawang power station when she fell down a set of metal stairs. She attempted to prevent the fall by grabbing a railing but landed heavily causing jarring to her neck. She immediately lost feeling in her arms and legs and suffered nausea. She also had a severe headache and pain in her neck and back. She was transported to Penrith Hospital where she was investigated and discharged. Other evidence suggests that she remained absent from her duties by reason of unfitness until 15 March 2004 at which time she resumed performing suitable duties. Her return to work was supervised by a rehabilitation provider from an organisation described as Work Force. Ms Walsh recommenced work on reduced hours and limited duties. Those hours were gradually increased. Ms Walsh stated that she consulted a rehabilitation physician, Dr Sophia Lahz and a physiotherapist, Ms Carol Stevens. She also consulted Penelope Walk, an occupational therapist, who provided counselling directed to her depression and management of pain.
Ms Walsh described the symptoms that she continued to experience following her return to work which included pain and restriction of movement in her neck as well as nausea and pain in her back. It was stated that she was involved in “team cleaning” and that her fellow workers were helping her with her work and that she only did the “lighter” duties. By reason of the illness of her supervisor, she was appointed as leading hand and assumed the supervisor’s role. That role required “less physical work”.
Ms Walsh stated that at no time did she return to the same duties performed prior to the injury in February 2004. As a leading hand she was able to delegate the heavier work. The supervisor’s position which she took on was described as being “lighter office style duties”. Ms Walsh did undertake some cleaning duties and relied on advice from her rehabilitation provider concerning the appropriate manner in which to carry out that work.
On 6 December 2004 the appellant terminated Ms Walsh’s employment following the cancellation of its contract concerning cleaning at the power station. One week later she commenced employment with Tempo for whom she worked as a cleaner firstly at Wallerawang power station and, after one week, at Mount Piper power station. At first the work performed was similar to the duties Ms Walsh had been performing for the appellant. As time went on she was allocated heavier duties. She experienced an increase in the pain in her neck, shoulders and lower back and worsening of her headaches. To enable her to manage the duties, which involved some heavy lifting and wiping of hand rails, Ms Walsh relied on increasing doses of pain killers which disturbed her sleep. She spent all her spare time “trying to recover to get to work”. Ms Walsh states that she reached a point where she could not manage the work. She consulted Dr Suresh who provided a certificate of unfitness for work dated 16 January 2006. She then ceased work.
Ms Walsh states that since cessation of work at Tempo her symptoms have “settled back down again but have never settled to the point where they were before the injury in February 2004”. It was stated that her symptoms were made worse with exertion and that she had difficulty driving. Her performance of home duties had been adversely affected and her sleep was disturbed by discomfort and pain.
Ms Walsh stated that since the injury in February 2004 she has not been able to perform her full pre-injury duties and that cleaning work, being physically demanding, caused an increase in pain. It was stated that she may be able to do some cleaning work for a day or two on limited hours but would not be able to perform that work on a full-time basis. Ms Walsh resides in Portland which is a village of 2,500 people in the central west of New South Wales where there is little employment. Ms Walsh stated that she carried out voluntary work one day per week for approximately 12 months in 2007 but found that such work caused an increase in her symptoms.
The second statement of Ms Walsh dated 12 August 2011 addresses the question of the dependency of her two daughters upon her earnings. Her eldest child Chelsea is a student who receives some income from casual work which is used by her as pocket money. The younger daughter, Tiarne, is a 16 year old student attending Lithgow High School. Before her injury and until Ms Walsh ceased work she had been the sole breadwinner in her household and has supported both daughters.
Ms Walsh’s medical evidence
There are two reports from Dr C A Suresh general practitioner of Portland dated 31 January 2008 and 29 July 2009. Those reports record that Dr Suresh had been consulted by Ms Walsh on 5 February 2004 with a history of a fall the previous day. Her attendance at Nepean Hospital is noted. Her symptoms are recorded as being headache and stiffness of the neck. Dr Suresh expressed a diagnosis of “soft tissue injury to the neck and shoulder”. Her treatment included physiotherapy and hydrotherapy. The first of those reports records “[Ms Walsh] consulted me on 20-9-04 and informed me that she was fit to resume her pre-injury duties which [sic] she was certified. Injuries of this kind have a poor prognosis and is [sic] likely to re-occur”.
Dr Suresh recorded that Ms Walsh had consulted him on 10 January 2006 for severe neck and shoulder pain which he stated was “likely to be related to her work”. He then certified Ms Walsh as being unfit for work. A large number of medical certificates issued by Dr Suresh are in evidence. Those documents, where relevant, are addressed below.
Ms Walsh relied upon two reports of Dr Peter Robertson Burgess, orthopaedic surgeon, dated 17 January 2006 and 2 July 2010. Dr Burgess examined Ms Walsh at the request of her solicitors for the purpose of providing an opinion concerning her capacity to work and had been requested to provide an assessment of any whole person impairment suffered by her as a result of the subject injury. Dr Burgess recorded a history which included a statement by Ms Walsh that she had had “no trouble with her neck and back” prior to the fall in February 2004. The circumstances of the injury are recorded and the first of those reports records Dr Burgess’s findings on physical examination and his summary of radiological investigations. The following opinion and prognosis was expressed:
“As a result of [Ms Walsh’s] fall it appears that she sustained injuries to her cervical, thoracic and lumbar spines and now has pain syndromes affecting each of these areas. Her problem appears to involve the facet joints, the discs, the local ligaments and muscles and she is intolerant of specific neck and back stresses and this disability will persist. Her management is to avoid these stresses.
She has increased her susceptibility to further injury and the rate of ‘wear and tear’ occurring in each area. There is no evidence of any pre-existing ‘wear and tear’ except in her cervical spine where there are slight changes at the C5/6 level but prior to her fall she had no symptoms relating to her spine whatsoever.”
Dr Burgess expressed the view that as at January 2006 he did not consider Ms Walsh “fit for her current job”. An assessment of whole person impairment was provided.
Dr Burgess records in his reports of 2 July 2010 that Ms Walsh had been “unable to find a job that suits her disability” and that she continues to suffer pain in her neck and her back. Following the notation of his physical examination Dr Burgess confirmed his earlier opinion and prognosis.
A report from Ms Belinda Wood, occupational therapist, dated 2 November 2004 is in evidence. That document includes a copy of a “case closure report” which records by way of comment that Ms Walsh had “returned to pre-injury duties”.
Ms Walsh relied upon a lengthy report of Dr Sophia Lahz, rehabilitation physician, dated 19 February 2008. That report includes detail of consultations which occurred on 8 April 2004, 13 April 2004 and 19 February 2008. Dr Lahz recorded that Ms Walsh’s neck symptoms are “essentially unchanged” since an examination which took place in 2004. Dr Lahz also recorded that the most significant problem experienced by Ms Walsh since the fall had been neck pain. The diagnosis of that problem was one of “mechanical neck pain – pre-existing asymptomatic degenerative changes in the cervical spine have been rendered symptomatic by the fall”. Dr Lahz also expressed the view that the complaints made by Ms Walsh concerning left shoulder pain are to be explained upon the basis of symptoms of pain referred from the neck “as opposed to reflecting a separate injury to the shoulder”. Dr Lahz did not accept that there was any injury to the lower back caused by the subject fall. It was Dr Lahz’s view that Ms Walsh “displays the typical features of a chronic pain syndrome”. A view was expressed that the “work incident of 4/2/04 has been a substantial contributing factor to the current condition of the neck”. It was also Dr Lahz’s view that the work incident of 2004 had resulted in permanent aggravation of pre-existing degenerative changes within Ms Walsh’s cervical spine and that “the work incident of 4/2/04 has been a substantial contributing factor to the current condition of the neck”. Concerning capacity for work, Dr Lahz stated “she is permanently unfit for any work in which she has either training or experience”.
A report from Dr Peter L Isbister, orthopaedic surgeon, addressed to the appellant’s insurer dated 1 February 2007, is in evidence. Dr Isbister had examined Ms Walsh at the request of the insurer and his report includes a diagnosis that Ms Walsh had pre-existing degenerative changes in her cervical spine and that she had suffered musculoligamentous spraining injury to her neck and her lower back when she fell. Dr Isbister also expressed the opinion that Ms Walsh had suffered an injury to her left shoulder in that fall which had resulted in restricted range of movement consistent with mild capsulitis of that joint. Dr Isbister further stated that Ms Walsh had suffered a temporary aggravation of the pre-existing neck condition and that, whilst she continues to suffer from neck pain, in his opinion he was unable to relate such pain to the subject injury. Dr Isbister further stated that, in his opinion, Ms Walsh’s employment “remains a substantial contributing factor to her left shoulder condition”.
Sundry documentary evidence
A copy of the appellant’s notice issued pursuant to s 74 of the 1998 Act is in evidence. That document includes the following assertion which is of significance to matters raised before the Arbitrator and which have been agitated on this appeal:
“Further, it is contended that any present disability, incapacity, impairment and/or requirement for treatment is due to subsequent injuries sustained after your employment with Lithgow Services Pty Ltd had ceased. In this regard, reliance is placed on the history you gave to Dr Lahz in her report dated 19 February 2008 that the work you performed once you commenced employment with your subsequent employer at Mount Piper, were [sic] much more physically demanding. We further note it was not until after you had been issued with a Final WorkCover Certificate certifying you fit for pre-injury duties (dated 20 September 2004), and after your employment had been terminated (16 December 2004) and you were working with a new employer at a different work site that you were issued with a further WorkCover Certificate certifying you unfit for work (10 January 2006).”
A copy of the appellant’s report of injury form addressed to its insurer includes detail of the relevant wage particulars required by the insurer for the purpose of determining quantum of weekly compensation. There is also in evidence a copy of relevant award rates issued by Industrial Relations, NSW Government. Particulars of the relevant award rates appear below.
A number of documents which are not directly relevant to the issues raised on this appeal were tendered on behalf of Ms Walsh which need not be noted.
Oral evidence of Ms Walsh
When cross-examined, Ms Walsh stated that following her return to work after the injury she had been assisted by fellow workers and that she did office work on a daily basis. The office work was covering her boss’s duties as he had been seriously ill and was not present at the workplace during the second half of 2004. That work included the assignment of staff to different jobs, preparation of rosters and associated clerical duties. Ms Walsh also stated that, following her transfer to Mount Piper power station whilst employed by Tempo there had, at first, been no change in the nature of her duties. Ms Walsh stated that her duties changed after a few months and that those duties were “heavier” involving the scrubbing of rails and switch rooms, hosing of buildings with large heavy hoses and the lifting of crates and other items. Ms Walsh agreed in the course of cross-examination that those duties were “heavier than what I had ever done”. She agreed that she had described it as “man’s work”. Ms Walsh agreed that she took “additional medications to counteract the increasing pain”. It was true, Ms Walsh stated in evidence, that after ceasing work at Tempo her symptoms had settled down but her condition had never returned to the state “before the injury in 2004”. Ms Walsh was unable to estimate how long it was after ceasing work with Tempo that her symptoms settled to a level similar to that experienced following injury during her employment with the appellant.
When re-examined by her solicitor, Ms Walsh stated that the main reason she stopped work in January 2006 was “because I was on pain medication all the time”. Her neck pain was the worst problem that she suffered at that time. When she reached her home after work she would take medication, go to bed and get ready to go to work the following day.
Further cross-examination was permitted by the Arbitrator during which she stated that she did not consider that she was able to return to the work that she was performing with the appellant following her return to work in 2004.
The appellant’s evidence
The appellant tendered in evidence a great many of the documents relied upon by Ms Walsh. A report of Dr Kim Edwards, surgeon, dated 4 July 2011 was admitted as a late document. That report includes a summary of relevant history, symptoms complained of by Ms Walsh, Dr Edwards’s findings on examination and a review of radiological investigations made available to him. It was Dr Edwards’s opinion that Ms Walsh had evidence of age related degenerative changes in her cervical spine. He expressed the view that she may have sustained a soft tissue injury to her cervical spine in the relevant fall. The effect of that injury would be “of limited duration, lasting a few days to a few months”. In Dr Edwards’s opinion any effect of the fall had, at the time of his examination, ceased. It was Dr Edwards’s opinion that Ms Walsh “would be physically capable of carrying out her previous duties as a cleaner”.
The appellant tendered the clinical notes of Ms Walsh’s general practitioner’s practice. Those records include a handwritten record of her attendances at that practice between March 1990 and a date, which appears to be 25 March 2011. Details of these records are, where relevant, addressed below. Those notes also include records relating to treatment received by Ms Walsh in relation to bilateral rotator cuff tendonitis in 2002, operative treatment in respect of a right carpal tunnel condition in 2005 and treatment in that year of a painful right hip.
Two reports from Dr Sophia Lahz dated 8 April 2004 and 14 April 2004 were tendered as late documents on behalf of the appellant. Dr Lahz records in those reports that Ms Walsh presented with neck pain which was associated with occipital headaches. Dr Lahz noted that radiological studies demonstrated that moderate spondylosis was present at C5/6 and the view was expressed that the relevant fall “has rendered these previously asymptomatic degenerative changes symptomatic”.
Submissions before the Arbitrator
It is recorded (at T24.46) that the fact of injury to Ms Walsh’s neck caused by the fall in 2004 had been accepted by the appellant.
The appellant’s counsel firstly addressed the issue of incapacity. The approach taken in argument makes it reasonably clear that reliance was placed upon the evidence of Dr Suresh, in particular the medical certificate issued by him on 20 September 2004, in support of the contention that any incapacitating effect of the fall had ceased before Ms Walsh commenced employment with Tempo. It was also argued that the evidence of Dr Burgess did not assist in determining the question of incapacity given that “[Dr Burgess is] inculpating two other parts of the body that are not part of these proceedings” (at T18).
It was argued that Dr Suresh’s certification of unfitness for work made in January 2006 related to “the work at Tempo” which was described as “quite heavy work”. The appellant’s case was that, having regard to Ms Walsh’s return to full-time duties in 2004, the evidence supports the submission that any incapacity resulting from the subject fall had ceased.
Reliance was placed by counsel upon the evidence of Dr Edwards and that of Dr Isbister as being further support for the argument that any incapacity resulting from the 2004 injury had ceased. Dr Isbister’s evidence that Ms Walsh was unfit for cleaning work was based, it was argued, on the consequences of work performed for Tempo.
It was argued that it may be inferred that incapacity had ceased following return to work in 2004 given the absence of complaint by Ms Walsh concerning her duties performed for the appellant and the evidence that no medical treatment had been obtained by her following her certification by Dr Suresh until she ceased work with Tempo in 2006.
Counsel accepted that the evidence established that the fall had aggravated pre-existing degenerative changes, being a disease, in her cervical spine. Having regard to that fact it was argued that the provisions of s 16 of the 1987 Act needed to be considered. The argument advanced lacks precision; however, it is reasonably clear that the appellant argued that Ms Walsh had received injury whilst employed by Tempo, being aggravation of underlying degenerative changes in her neck. If that is accepted, under the provisions of s 16, it was argued, Tempo was liable for the consequences of that injury.
Submissions on behalf of the appellant concluded with an alternative argument suggesting that, if earlier submissions were rejected, any incapacity suffered by Ms Walsh would be found to be partial incapacity for work. It was said that when determining any entitlement to weekly compensation, it is appropriate to take account of Ms Walsh’s other health problems and her domestic circumstances. It seems to be suggested in argument that those matters would be relevant to the exercise of the Arbitrator’s “discretion” under s 40 when assessing weekly entitlement. It was suggested that an appropriate sum for any award of weekly compensation was $200 per week.
In submissions put on behalf of Ms Walsh reliance was placed upon the evidence of Dr Lahz. Emphasis was placed upon the history, as recorded by that practitioner, of persistent symptoms following the subject fall. That evidence, it was argued, supports Ms Walsh’s allegation of ongoing incapacity resulting from the injury in 2004. It was also put that Dr Lahz had recorded no history of “any further or subsequent aggravation of a substantial contributing [sic] kind”. It was put that there is a distinction between “manifestation of symptoms” and “aggravation”. Reliance was placed upon Dr Lahz’s opinion concerning Ms Walsh’s incapacity for work being that she is permanently unfit for any work in which she has either training or experience.
Ms Walsh argued that “the work at Tempo has no bearing on this case”. The point was made that Dr Lahz does not “say that there is an aggravation caused by the work at Tempo”. It was put that the only aggravation of Ms Walsh’s underlying disease occurred in 2004. What occurred, it was argued, was that as suggested by Dr Suresh, the “problem” would “reoccur” following return to work.
The evidence of Dr Edwards would, it was argued, be rejected given that his opinion stands alone and contrasts with the views expressed by all other expert medical witnesses.
It was put that there was no medical evidence before the Arbitrator of injury by way of aggravation of the neck condition whilst working for Tempo.
It was Ms Walsh’s case that she was totally incapacitated. Reference was made to the decision of the Court of Appeal in Moran Health Care Services v Woods (1997) 14 NSWCCR 499 in support of a submission that a finding of total incapacity may be made notwithstanding the existence of evidence that the worker is able to undertake some work.
An alternative argument was advanced that, should partial incapacity be found, Ms Walsh would be entitled to the maximum statutory rate of weekly compensation given her significant limitations. There would, it was further put, be no justification on the evidence to adjust any weekly entitlement to compensation by taking into account, as a matter of discretion, any of Ms Walsh’s circumstances.
In response to a question put by the Arbitrator, Ms Walsh’s solicitor confirmed that the only injury alleged was one to the neck but that other symptoms described were related to that injury. In reply, that suggestion was challenged by the appellant and reference was made to the history of treatment of Ms Walsh concerning unrelated pain and disability as revealed in the general practitioner’s records.
The Arbitrator’s decision
The Arbitrator noted in the course of her extempore reasons (Reasons) that “[the appellant] accepts that there was an injury to neck” (at T53). It must be said that the Reasons lack clarity and are expressed in a confused manner. That confusion caused two separate interruptions to the delivery of the determination following which the Arbitrator had cause to withdraw, amend or reconsider matters earlier stated.
The first issue considered by the Arbitrator was the argument raised by the appellant that it was not liable for any proven incapacity following cessation of work in January 2006 given that Ms Walsh’s degenerative neck condition had been aggravated by work performed whilst in the employ of Tempo. The Arbitrator made a finding (at T54) that Ms Walsh received a frank injury on 4 February 2004 when she fell. The nature of that injury was found to be “both musculoligamentous injury and an aggravation to a pre-existing, previously asymptomatic, degenerative condition of the spine”.
The Arbitrator appears to have found that Ms Walsh’s symptoms “have not resolved” and that she “has not returned to her pre-injury condition” (T54).
The Arbitrator (at T54-55) noted the absence of any medical evidence suggesting the occurrence of “aggravation”, as argued by the appellant, caused by the work performed for Tempo. A finding was then made “that the injury, responsibility for the claim for weekly benefits does lie with [the appellant]”. It is implicit in that finding that the Arbitrator was satisfied that Ms Walsh was incapacitated following cessation of the Tempo employment in 2006.
The Arbitrator proceeded to consider the question of “incapacity” (T55). The evidence was briefly considered and the Arbitrator then stated:
“Taking into account then her medical condition, the restriction on her skills and age, and the geographical area of where she is living, I find that although she may be partially incapacitated and that there is some level of work she could do, according to Dr Suresh, with those restrictions that it be deemed total. That she would have trouble do [sic] anything without retraining and within the community in which she lives.”
There followed a confusing passage within those Reasons which was said to relate to “the issue of discretion”. The statement was made “in using my discretion I would not reduce the amount [sic] as a result of either the shoulder injury or back or husband’s condition” (T56.21).
The Arbitrator (at T57) pronounced orders providing for a weekly award in favour of Ms Walsh in the sum of $440.60 per week from 16 January 2006 and continuing together with costs. The transcript reveals further confusion following a question from counsel as to the section under which the award was made. Reference was made to “partial being total” which, the Arbitrator stated, would have to be withdrawn. The delivery of her determination was then interrupted by a short adjournment.
Upon resumption the Arbitrator made reference to Ms Walsh’s argument that she was totally incapacitated. It is clear that, again, confusion arose concerning the correct approach to be taken to a determination of any entitlement to weekly compensation. The proceedings were again interrupted by a short adjournment.
The Arbitrator resumed delivery of her determination. No further reasons were provided and the following was stated (T58-59):
“So we look at it will be which [sic] – 80 per cent of the, sorry 90 per cent of the section 36 rate or the maximum statutory rate, whichever is the less.
In this claim we have varying amounts depending on the, depending on the year. So I’ll make the order, because it’s quite complex. It will be that the worker be paid the maximum statutory rate for a worker with two dependents, or 80 per cent of the section 36 rate being $495.72, whichever is the less, for the period 16 January 2006 to date and continuing”.
SUBMISSIONS, DISCUSSION AND FINDINGS
This appeal is governed by the provisions of s 352 of the 1998 Act. The nature and scope of such an appeal is as provided by s 352(5):
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
The powers of the Commission upon conduct of such an appeal are defined by the provisions of s 352(7):
“On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.”
Three of the appellant’s “grounds” concern suggested erroneous findings with respect to the appellant’s arguments as to the relevance of s 16 of the 1987 Act (grounds (a), (b) and (e)). It is convenient to deal with those grounds first.
The thrust of the appellant’s argument concerning the relevance of s 16 was that the evidence supports a finding that an injury, consisting in the aggravation of a disease in terms of the section, had occurred arising out of or in the course of Ms Walsh’s employment with Tempo. The appellant’s argument, it must be said, was never lucidly stated before the Arbitrator. However it is reasonably clear that the argument was founded upon the suggested availability of inferences to be drawn from the evidence that such aggravation of a disease had occurred. The relevant provisions of s 16 are as follows:
“16 Aggravation etc of diseases—employer liable, date of injury etc
(cf former ss 7 (4A), (5), 16 (1A))
(1) If an injury consists in the aggravation, acceleration, exacerbation or deterioration of a disease:
(a) the injury shall, for the purposes of this Act, be deemed to have happened:
(i)at the time of the worker’s death or incapacity, or
(ii)if death or incapacity has not resulted from the injury—at the time the worker makes a claim for compensation with respect to the injury, and
(b)compensation is payable by the employer who last employed the worker in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration.”
As has been observed in numerous decisions of the superior courts, s 16 assumes the occurrence of injury. Its purpose includes providing the means of identifying a deemed date of injury as well as enabling identification of the employer liable to meet any liability. (See discussion in Crisp v Chapman (1994) 10 NSWCCR 492 per Mahoney A-P, as he then was, at 495).
I have set out the relevant finding made by the Arbitrator concerning this issue at [62] above. Before reaching that conclusion the Arbitrator had briefly summarised the medical evidence before her and stated:
“[T]hen lets look at whether then [sic] the later employer is responsible. In looking at the evidence before me, we do have a description of an increase in pain because of the more physical work. There is no evidence of an aggravation as such, and her treating doctors do not find any aggravation in any of the clinic notes or reports indicating that there has been an aggravation in 2006 resulting in then a further injury or an increase in injury” (at T54-55).
Having regard to the Arbitrator’s statement as set forth immediately above it is reasonably clear that she accepted that the appellant, to succeed in its argument concerning the relevance of the work with Tempo, was required to prove the occurrence of injury arising out of or in the course of that employment within the meaning of s 4 of the 1987 Act. It also seems that the Arbitrator was not satisfied that any opinion expressed by the expert medical witnesses addressed the question as to the existence or otherwise of an aggravation of Ms Walsh’s neck condition having resulted from the work performed for Tempo. That latter conclusion was plainly correct and the appellant has not argued otherwise.
The arguments advanced before the Arbitrator and on this appeal suggest that the following matters found in the evidence should be accepted and that those matters would form a reasonable basis to draw an inference that Ms Walsh received such injury in the course of employment with Tempo:
(a) Ms Walsh returned to work following the 2004 injury on 15 March 2004 and commenced a return to work program. She underwent rehabilitation and returned to full-time work in July 2004. Ms Walsh was certified fit for pre-injury duties at her own request on 20 September 2004;
(b) contemporaneous records demonstrate that Ms Walsh reported no difficulties with her work during 2004. In November of that year it was reported that Ms Walsh’s return to work was “safe and durable”;
(c) there was no evidence, other than a consultation in October 2004, that Ms Walsh consulted a general practitioner concerning “difficulties with work” until January 2006 at which time she presented with “severe neck and shoulder pain”. Ms Walsh has alleged significant incapacity since that date;
(d) after commencing with Tempo Ms Walsh’s duties “changed to heavy work as described in her statement”;
(e) the evidence establishes there was “a worsening of her neck condition” after Ms Walsh ceased work with the appellant. That worsening occurred during her employment with Tempo;
(f) Ms Walsh’s evidence, both in her statement and given before the Arbitrator, established that she suffered an increase in pain and a need to take greater medication as the work with Tempo “became heavier”;
(g) Ms Walsh described her duties with Tempo as being heavier than work performed with the appellant and described that work as “man’s work”.
It is argued that the Arbitrator’s conclusion that there had been no relevant aggravation demonstrates both an error of law and of fact. Reliance is placed upon the decision of the High Court in Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; 110 CLR 626
(Semlitch) and White v Sylvania Lighting Australasia Pty Ltd [2011] NSWWCCPD 7 in support of the proposition that “there is an aggravation of a disease if it is made more grave or more serious in its effects upon the patient” (at Part C.9 of submissions).
It was stated by Windeyer J in Semlitch (at 637):
“The question whether there has been an aggravation, acceleration, exacerbation or deterioration of a mental disorder is, I think, essentially one of fact. It is a question on which the opinion of psychiatrists may obviously be helpful. But the answer depends upon whether for the sufferer the consequences of his affliction have become more serious”.
The appellant’s argument appears to be limited to a contention that the Arbitrator’s conclusions were against the evidence. The arguments advanced, including the reliance upon the decision in Semlitch, do not suggest that the Arbitrator’s reasoning demonstrates an error of law. The question raised on those submissions is, adopting the words of Windeyer J in Semlitch (at 639) “whether the disease has been made worse in the sense of more grave, more grievous or more serious in its effects on the patient.”
Ms Walsh seeks to support the Arbitrator’s finding concerning the s 16 argument by reference to the evidence and appears to treat the appellant’s argument as being one concerning a suggested error of fact. Those submissions correctly assert that before the provisions of s 16 require consideration “it is necessary to determine whether as a finding of fact [Ms Walsh] suffered an injury within the meaning of s 4 of the 1987 Act. Only then, if the answer is affirmative, is it necessary to consider s 16”.
Reference is made in those submissions to Ms Walsh’s evidence concerning the immediate onset of symptoms following the fall and the persistence of those symptoms thereafter. The point is made that the evidence establishes that the symptoms experienced were constant but they “varied with activity”. The expert medical evidence relied upon by Ms Walsh is summarised and it is put that none of the practitioners expressed an opinion that the work at Tempo had caused an aggravation of her established condition. That established condition was a mechanical disorder involving the facet joints, the discs, local ligaments and muscles as well as aggravation of the underlying degenerative changes present in the cervical spine. Particular reliance is placed upon the evidence of Dr Lahz who had examined Ms Walsh twice in 2004 and subsequently in 2008. It is put “Dr Lahz had the history of heavier work with Tempo but was of the opinion that [Ms Walsh’s] neck injury was the same in 2008 as she observed in 2004.”
To succeed on this appeal the appellant must establish that the decision of the Arbitrator was affected by relevant error. I am of the opinion that, in rejecting the appellant’s argument concerning the relevance of s 16, the Arbitrator was correct. That is not to say that I consider that the Reasons expressed by her for so concluding were sufficient. I note that those Reasons are the subject of criticism on this appeal as outlined in submissions in support of ground (e) of Appeal. I will return to that subject below.
The factual matters relied upon by the appellant from which it seeks to draw an inference that injury had been received whilst in the employ of Tempo are not in dispute. It is common ground that, following a period of weeks during which she was totally incapacitated, Ms Walsh returned to work on a part-time basis on selected duties and underwent intensive
rehabilitation. She returned to “full-time” duties later that year until termination of her employment in December 2004. The evidence clearly establishes that Ms Walsh at no time following the subject injury returned to the demanding duties of a cleaner which she had performed prior to injury. The evidence establishes that she replaced her superior after which much of her work was clerical in nature. It is also unchallenged that the physical work which she did perform was done in a team environment and that Ms Walsh performed the lighter duties and received assistance from her fellow workers. Whilst it is correct, as submitted by the appellant, that Ms Walsh does not appear to have sought ongoing medical treatment prior to her ceasing work in January 2006, the evidence establishes that she experienced persistent disabling symptoms requiring regular medication. It is also clear from the evidence that when performing the heavy work with Tempo during the later stages of her employment with that organization, Ms Walsh experienced an increase in symptoms which prompted her to cease work. The appellant’s argument suggests that the increase in symptoms experienced at that time permits an inference that a relevant aggravation had taken place.
It must be remembered that the evidence concerning the nature of the injury suffered in February 2004 establishes, as appears to have been accepted by the Arbitrator, that it involved not only aggravation of underlying degenerative changes but caused a mechanical injury as described at [60] above. The likely consequence of such an injury, as expressed by Dr Suresh, was that any return to heavy work would likely cause a recurrence and worsening of symptoms. Such a phenomenon was described in submissions put on behalf of Ms Walsh as being a “manifestation” of symptoms causally related to the original injury as distinct from causation of symptoms by reason of an aggravation.
The appellant relies upon the authority of Semlitch in support of the proposition that there is “aggravation” of a disease if it is made more grave or more serious in its effects on the patient. Such proposition is clearly founded upon that which was stated by Windyer J in that matter (at 639).
The evidence establishes that there was, as anticipated by Dr Suresh, a recurrence of disabling symptoms which occurred at a time when Ms Walsh attempted work heavier than she had performed since the 2004 injury. In my view a proper understanding of the aetiology of Ms Walsh’s symptoms may be gained from an examination of the evidence of Dr Lahz who stated in her report dated 19 February 2008:
“Neck symptoms will persist indefinitely, fluctuating according to activity levels.
Attribution
The work incident of 4/2/04 has been a substantial contributing factor to the current condition of the neck.”
Ms Walsh’s vulnerability to fluctuation of symptoms depending upon her level of activity was demonstrated by her experience of increased symptoms whilst working with Tempo. She could no longer persist with her work. To adopt the words of Windeyer J in Darling Island Stevedoring and Lighterage Co Ltd v Hussey [1959] HCA 55; 102 CLR 482 (at 520) those facts demonstrate “manifestation not causation, revelation not genesis”. For these reasons I consider the Arbitrator’s conclusion that there had been no relevant “aggravation”, that is injury, with Tempo demonstrates no relevant error.
The fifth “ground” of appeal alleges error on the part of the Arbitrator in failing to provide sufficient reasons for her rejection of “the appellant’s evidence and submissions”. The appellant complains that the Arbitrator’s error concerned a failure to acknowledge arguments put on its behalf.
I have earlier (at [59] above) made reference to the state of the Reasons expressed by the Arbitrator. It is somewhat surprising that argument advanced concerning those Reasons is not expressed more broadly. I am of the view that the Arbitrator’s Reasons as expressed are plainly deficient given her failure to discharge her duty, as stated by Jordan CJ in Carlson v King (1947) 64 WN (NSW) 65 (at 66) to “make, or cause to be made, a note of everything necessary to enable the case to be laid properly and sufficiently before the appellate court if there should be an appeal”. I have reached that view given the absence of any reasons expressed by the Arbitrator for the finding made, following the second interruption to the delivery of her determination, of total incapacity.
In the circumstances it is necessary to consider the appellant’s specific complaints (at Part C.19 of submissions) to determine whether the decision appealed against was or was not affected by the Arbitrator’s error.
In my view none of the submissions summarised at Part C.19, said to have been put to the Arbitrator and disregarded by her, are persuasive. I have given my reasons for accepting that the Arbitrator’s ultimate decision was correct. In so far as my reasons do not fully deal with the arguments enumerated in those submissions, I make the following observations and findings:
(a) Dr Suresh’s evidence does not support the argument as to “aggravation” advanced by the appellant for the reasons stated at [85] above;
(b) if one accepts the suggestion that there was “greater incapacity” in 2006 than earlier whilst Ms Walsh was employed by the appellant, such fact does not negate the causal nexus between the 2004 injury and that incapacity for the reasons stated between [82] and [86] above;
(c) in my view no relevant inference may be drawn from the suggested absence of “real difficulties” until the period of subsequent employment. There had been a persistence of symptoms and the need for medication. It cannot be said that the evidence, as seems to be argued, establishes that there had been a recovery from the incapacitating effects of the 2004 injury;
(d) the “worsening” of Ms Walsh’s symptoms has been addressed at [85] above;
(e) the “commencement” date of incapacity, whilst relevant to a consideration of causation, is not determinative of that issue;
(f) any “other conditions” can only be argued as being relevant to the exercise of discretion pursuant to s 40 of the 1987 Act when determining quantum of weekly compensation.
Given my views concerning the arguments advanced I am not persuaded that the Arbitrator’s error in failing to fully address those matters has affected, in any relevant sense, the decision appealed against.
It is proposed now to deal with the remaining “grounds” of appeal. The third ground suggesting error is expressed as follows:
“c) The Arbitrator erred in the exercise of her discretion in failing to take into account the further aggravation with the later employer and the non-work related medical restrictions on the Worker’s ability to work in the assessment of her weekly entitlements.”
It is submitted that “any incapacity from which [Ms Walsh] suffers as a consequence of the injury on 4 February 2004 is at best partial”.
The appellant’s argument is not entirely clear; however, it seems to be suggested that the incapacity suffered by Ms Walsh is contributed to by non-work related disability. Accepting for the moment that there is evidence of such disability it is important to note two fundamental matters. The first is that, if such disability pre-dated the subject injury, it is of no relevance as argued by the appellant. That is so given that an employer takes a worker as he finds him (see discussion by Spigelman CJ in State Transit Authority of New South Wales v Chemler [2007] NSWCA 249; 5 DDCR 286 (at [40])).
The second matter arises in circumstances where such disability occurs after the subject injury. Such disability may only become relevant if there is a finding of partial incapacity flowing from the 2004 injury. The Arbitrator has found that Ms Walsh is totally incapacitated as a result of that injury. That much is clear given the reference to “Section 37” in the award. It seems, but again is not made clear in submissions, that the Arbitrator’s finding of total incapacity is challenged. It is thus necessary to examine the evidence to determine the correctness or otherwise of that finding.
Ms Walsh stated that she was not able to perform her pre-injury duties. She estimated her capacity for work by stating “I may be able to do [cleaning work] for a day or two on limited hours”. She described difficulty performing her home duties in the following terms:
“I can’t use the vacuum or hang out washing as it hurts my neck. I can only do things for maybe 10 minutes maximum, and then I have to stop. I take pain tablets daily, sometimes twice. I use a packet of Dolased every 10 days. My sleep is still affected from discomfort and pain. I have always been a very conscientious, hardworking person, and I’ve had to change my life so much. It has and still is very depressing. I can’t do most things without making my headaches, neck and back pain worse”.
Dr Lahz’s opinion concerning the extent of Ms Walsh’s incapacity is noted at [34] above. Dr Suresh issued a WorkCover NSW medical certificate dated 17 May 2010 stating Ms Walsh had been unfit to work from 10 January 2006.
The evidence of Dr Burgess summarised at [30] above is, in my opinion, of limited assistance concerning the question of the extent of any incapacity given that he has attributed her limitations concerning work to disabilities not only in Ms Walsh’s neck and shoulder, but also affecting her lower back.
Dr Edwards expressed the opinion that Ms Walsh was “physically capable of carrying out her previous duties as a cleaner”. Dr Isbister, whose diagnosis appears to focus upon a left shoulder injury, is of the opinion that Ms Walsh is unfit for her duties as a cleaner but would be fit for lighter activities should they be available.
Dr Lahz has had the advantage of examining Ms Walsh on three occasions between 2004 and 2008. It is clear that the Arbitrator preferred the evidence of Dr Lahz to that of Dr Edwards given the fact that Dr Edwards had examined Ms Walsh once only, years after the subject injury.
The finding of total incapacity made by the Arbitrator is supported by the evidence of Dr Lahz and the assessment made by Ms Walsh concerning her physical limitations. That finding, in my view, was open to her on the evidence notwithstanding Ms Walsh’s statement that she may be capable of performing duties as noted at [96] above. In reaching that view I have had regard to those matters stated by Mahoney P in Lawarra Nominees Pty Ltd v Wilson [1996] NSWSC 584; 25 NSWCCR 206 (at [29] and [30]):
“Normally, a court in determining whether a worker is totally or partially incapacitated will, in a practical sense, ordinarily consider two questions: what is the relevant labour market, i.e. what work was the worker doing or could he reasonably be expected to do; and of that kind of work, what is he physically able to do.
In considering the second of these, it is necessary to bear in mind that what is in question is capacity or incapacity ‘for work’. The legislation is not concerned merely in the abstract with work or work capacities as such. It is concerned with the capacity to do work of a particular kind or kinds and in a context which will produce income. I do not wish by what I say to narrow the scope of the inquiry to be undertaken in the assessment of capacity or of compensation. But in assessing whether a worker is wholly or partially incapacitated and to what extent, the Court will ordinarily not be concerned, for example, to determine in an artificial or theoretical situation what he could do if the work available to him would allow him to stand for a time, sit for a time, cease when the pain he suffers became unacceptable, and generally work as, in his condition, he would fairly wish to work. The Court does not, as it were, spell out according to the periods of time which could be spent at work in such a way and what he could do during those periods, the extent of his capacity for work. The exercise is, in my opinion, a more practical exercise. It involves the assessment of a capacity ‘for work’ having regard to the realities of the labour market in which he is to be engaged…”
Given my conclusion that the Arbitrator’s finding of total incapacity demonstrates no relevant error, the appellant’s arguments concerning the relevance of other disabilities must be rejected. Ms Walsh’s entitlement to weekly compensation in respect of her total incapacity is fixed by the legislation. There is no basis to argue that the Arbitrator had any “discretion” concerning quantification of those benefits.
The final “ground” to be considered is stated as follows:
“The Arbitrator erred in law in finding that there was no work available on the open labour market reasonably accessible to [Ms Walsh] when there was no such evidence before the Commission”
The appellant’s submissions do not identify with any precision the “finding” which is the subject of this “ground”. A careful reading of the Arbitrator’s Reasons does not reveal a finding in those terms stated in the “ground”. The Arbitrator had made some reference to the
availability of work at T55. It must be noted that at that stage of delivery of Reasons, the Arbitrator made a finding, later withdrawn, of partial incapacity. It was stated:
“Taking into account then her medical condition, the restriction on her skills and age, and the geographical area of where she is living, I find that although she may be partially incapacitated and that there is some level of work she could do, according to Dr Suresh, with those restrictions that it be deemed total. That she would have trouble do [sic] anything without retraining and within the community in which she lives.”
The appellant has made two short submissions as follows:
“There was no evidence from the Worker that she had sought and was unable to find suitable work in accordance with her doctor’s restrictions, or of the lack of employment opportunities for her.
The Arbitrator gave no indication that she had any specialist knowledge of the area or the availability of work in Portland or surrounding areas. She gave no adequate reasons as to why she determined that there was no suitable work reasonably available to the Worker other than the unsuitability of the voluntary work the Worker had undertaken.”
It appears that the complaint made relates to suggested findings relevant to entitlement pursuant to s 38 of the 1987 Act. The Arbitrator had, as earlier noted, withdrawn her “findings” concerning “partial deemed total” incapacity (T58) and had proceeded, following a short adjournment, to enter an award in respect of total incapacity. The arguments advanced, in my view, do not establish any error that has affected the Arbitrator’s decision and must, therefore, be rejected.
Each ground advanced on behalf of the appellant has been rejected and the appeal must be dismissed.
I note that the Arbitrator declined to calculate Ms Walsh’s weekly entitlement. The manner in which the award is expressed appears to contain two errors, neither of which has been addressed on this appeal. It should first be noted that there is some inconsistency between the manner in which the award was expressed when the determination was delivered (noted at [67] above) and the form of the order as recorded in the certified document set forth at [7] above. The difference is reference to the figure “80 per cent” in those Reasons and to the figure “90 per cent” as found at [2(b)] of the Certificate. It is clear, (given the terms of s 37), that the Arbitrator made a slip when delivering her Reasons.
The second matter which may require some attention concerns the appropriateness or otherwise of the sum of $495.72 as appears at [2(b)] of the Certificate. It is clear that that figure has been calculated by reference to the agreed probable earnings of Ms Walsh but for injury. The provisions of s 37 require attention to be given to the worker’s “average weekly earnings”. Mention in the Certificate of “the section 36 rate” is, again, an apparent slip made by the Arbitrator. The correct reference is to the provisions of s 37. I consider it appropriate on this appeal to correct the error concerning identification of the relevant section and an appropriate order appears below. Any difficulty arising from the Arbitrator’s reliance upon the “probable earnings” figure may require correction by the Arbitrator which may be effected by an appropriate application seeking reconsideration of the terms of her Award.
DECISION
The decision of the Arbitrator as set forth in Statement of Reasons – Extempore Orders dated 29 August 2011 is confirmed subject to amendment being the deletion of the words and figures “section 36” which appear at [2(b)] of the orders and substituting “section 37”.
COSTS
The appellant is to pay Ms Walsh’s costs of the appeal.
Kevin O'Grady
Deputy President
17 November 2011
I, CATHRINE LOREN, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O'GRADY, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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