Manojlovic v Astro Group Management Pty Limited
[2010] NSWWCCPD 21
•4 March 2010
| WORKERS COMPENSATION COMMISSION | ||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||||
| CITATION: | Manojlovic v Astro Group Management Pty Limited [2010] NSWWCCPD 21 | |||||
| APPELLANT: | Maria Manojlovic | |||||
| RESPONDENT: | Astro Group Management Pty Ltd | |||||
| INSURER: | QBE Workers Compensation (NSW) Limited | |||||
| FILE NUMBER: | A1-5585/09 | |||||
| ARBITRATOR: | Ms R Gurr | |||||
| DATE OF ARBITRATOR’S DECISION: | 10 November 2009 | |||||
| DATE OF APPEAL DECISION: | 4 March 2010 | |||||
| SUBJECT MATTER OF DECISION: | Weight of evidence, expert evidence, and Makita(Australia) v Sprowles [2001] NSWCA 305 | |||||
| PRESIDENTIAL MEMBER: | His Hon. Judge Keating, President | |||||
| HEARING: | On the papers | |||||
| REPRESENTATION: | Appellant: | Beston Macken McManis | ||||
| Respondent: | Curwoods Lawyers | |||||
| ORDERS MADE ON APPEAL: | The decision of the Arbitrator dated 10 November 2009 is revoked and the following decision made in its place: 1. The Respondent is to pay the Applicant weekly compensation pursuant to section 36 at the rate of $725.92 per week from 19 April 2009 to 2 June 2009. 2. The Respondent is to pay the Applicant weekly compensation pursuant to section 37 at the maximum statutory rate for a worker with no dependents from 3 June 2009 to date and continuing. 3. The Respondent is to pay the Applicant’s costs. | |||||
| The Respondent is to pay the Appellant’s costs of the appeal. | ||||||
BACKGROUND TO THE APPEAL
Mrs Manojlovic is employed by the Respondent, Astro Group Management Pty Limited, as a cleaner at the ‘DFO’ shopping centre at Homebush NSW. In addition to her full-time employment with the Respondent, Mrs Manojlovic also worked three hours per day five days a week at the University of Western Sydney as a cleaner. She is 51 years of age.
On 8 December 2008 at about 4.00 pm, whilst mopping up an area in the food court, which had been partially flooded during a sudden storm, Mrs Manojlovic slipped on the wet floor. Both her legs went from under her and she fell heavily injuring her head, neck, back, and both shoulders. In addition, she also alleges she has developed a secondary psychological injury. She has not returned to work since the accident.
Liability was initially accepted, however, on 16 April 2009 Mrs Manojlovic was notified by QBE Workers Compensation NSW Limited (‘the insurer’), by way of a section 74 notice, that further liability was declined on three bases. First, that the Respondent’s evidence indicated that the effects of the injury on 8 December 2008 had resolved and Mrs Manojlovic did not continue to suffer from any injury within the meaning of section 4 of the Workers Compensation Act 1987 (‘the 1987 Act’), secondly, that the worker was no longer incapacitated and finally, that any further treatment required was no longer reasonably necessary as a result of the injuries sustained.
In an ‘Application to Resolve a Dispute’ (‘the Application’) registered with the Commission on 16 July 2009, Mrs Manojlovic claimed weekly compensation and medical expenses from 3 April 2009 and continuing, in respect of injuries to the head, neck, back, both shoulders and psychological injury. She claims weekly compensation at the rate of $725.92 per week from 3 April 2009 to date and continuing.
On 24 July 2009 the Respondent filed a Reply disputing liability for the reasons relied upon in its section 74 notice of 16 April 2009. In addition the Respondent disputed whether Mrs Manojlovic:
·suffered any injury to her head, neck, back and both shoulders and subsequently, a psychological injury as a result of the alleged injury on 8 December 2008 whilst employed by the Respondent; and whether her employment is a substantial contributing factor to the alleged injury;
·was incapacitated to the extent alleged, or at all;
· was entitled to weekly payments of compensation, and if
so, at what rate, and
· complied with return to work obligations as required by the Act.
The Commission listed that matter for conciliation and arbitration on 15 October 2009.
At hearing, the Respondent conceded it no longer disputed that the worker had sustained an injury in the course of her employment. Neither party made any submissions either before the Arbitrator or on appeal on the question of whether the provisions of section 9A of the 1987 Act had been met. There was no oral evidence given at the arbitration hearing.
The Arbitrator reserved her decision and on 10 November 2009 she issued a Certificate of Determination and a written statement of reasons (‘Reason’) in which she made an award for the Respondent, essentially finding that the worker had recovered from the effects of the work injury in about April 2009 and/or the injuries from which she suffered were not incapacitating her.
THE DECISON UNDER REVIEW
In an appeal filed on 3 December 2009, Mrs Manojlovic seeks leave to appeal the Arbitrator’s determination.
The Certificate of Determination dated 10 November 2009 records the Arbitrator’s orders as follows:
“Award for the Respondent in relation to the claim for weekly payments”.
ON THE PAPERS
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.”
Having regard to Practice Directions 1 and 6 and the documents that are before me and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents I am satisfied that I have sufficient information to proceed “on the papers” without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
LEAVE TO APPEAL
Time
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.
Monetary threshold
There is no dispute that the quantum at issue on appeal meets the thresholds in section 352(2) of the 1998 Act.
Leave to appeal is granted.
THE EVIDENCE
The lay evidence
Mrs Manojlovic’s evidence is contained in an extremely brief and only partially adequate statement, much of which is in ‘point form’ with little explanatory detail dated 4 April 2009.
Mrs Manojlovic’s commenced employment with the Respondent, formerly known as Lions Cleaning Services Pty Limited, on 16 September 2005. She worked eight hours per day, five days a week, and five hours on Saturdays. She also worked concurrently for Quad Services (another cleaning company), three hours a day, five days a week also as a cleaner.
The worker’s duties are briefly listed as cleaning, placing rubbish in plastic bags, carrying packed plastic bags of rubbish to a central place, sweeping and vacuuming floors, cleaning chairs and toilets.
On 8 December 2008 she confirmed that the sliding doors at the entrance to the building had malfunctioned and were open during a heavy storm allowing a considerable amount of rainwater to build up on the floor. At about 4.00 pm Mrs Manojlovic was in the course of mopping the water from the floor when both her legs went from under her and fell heavily sustaining injuries to her lower back, neck, head and both shoulders. She remained at work until 5.30pm but did not undertake any further duties. She immediately sought treatment from Dr Zaki and the following day she attended her family physician Dr Todorovic. He arranged for her to have x-rays and subsequently referred her to Dr Giblin, an orthopaedic surgeon for further treatment.
Mrs Manojlovic briefly listed the treatment she had undergone including consultations with orthopaedic surgeon and psychiatrist, physiotherapy, home exercises, injections to her right shoulder and medication of Nurofen Plus, Valpam 5 and Straline tablets.
Mrs Manojlovic states that whilst she may be capable of doing some part time clerical work her education is extremely limited and her English remains poor. Physically she is unable to do any heavy lifting or carrying, bending, working at chest height, repetitive work or work involving prolonged standing, walking, sitting and other activities required of a cleaner.
She has a limited range of movement (not particularised) a 30 minute walking, standing and driving limit, cannot lift greater than 6-7 kg, has difficulty dressing (shoes and socks). She suffers depression and does not enjoy socialising.
The employer tendered the worker’s claim form dated 23 December 2008. The history of injury is consistent with her statement above. In answer to the question as to why the worker had not returned to work and whether there were any issues delaying or preventing a return to work, Mrs Manojlovic recorded:
“I have severe restriction in standing, sitting or walking for lengthy periods, heavy lifting and repetitive bending”.
The employer also relied on a factual investigation report of MJM investigations of 1 September 2009. The document contained a report prepared by Rosemary Craig, case manager, photographs of the accident location, a statement of duties, a report of the accident by the site supervisor James Hodzic dated 9 December 2008 and signed statements from Mr Brendon Riseley, a director of the Respondent, Mr Alfred Borg a maintenance handyman and Mr Hodzic
Mr Alfred Borg provided a statement dated 18 August 2009. Mr Borg is employed as a maintenance handyman at the DFO centre. Mr Borg had been summoned by radio to the location of the accident shortly prior to Mrs Manojlovic’s fall. He recalled watching Mrs Manojlovic mopping up the excess water and also saw her fall to the ground “and land heavily on her bottom”. He assisted her up with the assistance of a security guard known to him as ‘James’. Mr Borg recommended Mrs Manojlovic consult a doctor because of the way she had fallen, noting in particular, that she made a gasping noise as she hit the ground.
Mr James Hodzic provided a statement dated 18 August 2009. Mr Hodzic is a self-employed director of BH Security Services, which is contracted to provide security at the DFO site. Mr Hodzic witnessed the worker’s fall. There were four to five millimetres of water on the floor. He saw that Mrs Manojlovic was mopping the floor doing the best she could to reduce the excess water there. She was working very quickly when both her feet slipped out from under her and she went forwards and then landed on the ground. She landed on her left elbow and back. He stated that the mechanism of the fall was quite different to most falls that he had previously witnessed noting that both the worker’s feet came off the ground simultaneously. He believed that she might also have hit her head in the fall. He recalled her making a sound, a sort of a scream, as she landed. She refused ambulance assistance. She was visibly distressed and upset by the fall. Mr Hodzic had known the worker for two and a half years and described her as a hard worker.
Mr Hodzic also stated that he believed that there was “some sort of conflict” between Mrs Manojlovic and “Chris” over the use of particular cleaning staff. He said that Chris was an arrogant person who yelled at the staff and generally treated them poorly and regarded him as unprofessional. The worker had once mentioned to him that in her opinion this was not an effective way to work, she also made mention of his aggressive behaviour towards her.
In the accident report of 9 December 2008 Mr Hodzic said when Mrs Manojlovic fell she landed on her left elbow, back and left hip.
Mr Riseley provided a statement dated 24 August 2009. He is based in Melbourne and conceded that he is not familiar with Sydney personnel but he was aware of Mrs Manojlovic’s employment as a cleaner in the food court area.
The statement made by Mr Riseley appears to be in response to a series of questions that were put to him. The questions are not in evidence. Mr Riseley stated that his leading hand Harry Ballout had resigned shortly prior to the worker’s accident. After which he had contracted with TNT Services Pty Limited to provide an oversighting role to the cleaning services at the DFO centre. The overseer was a man identified only as “Chris”.
Mr Riseley was unaware of any complaints made by the worker regarding her duties, changes to her duties or any disputes about pay or conditions. She had never indicated to him she wished to leave her employment. He rejected the proposition that the worker was unhappy with the new staffing arrangements. Mr Riseley confirmed that Mrs Manojlovic worked Monday to Friday 10.00 am to 6.00 pm and on Saturday 1.00 pm to 6.00 pm and earned $1,200 per fortnight.
Mr Riseley confirmed that he had not spoken with the worker since her accident but did have a conversation with the worker’s daughter a day or so after the accident who informed him that Mrs Manojlovic would not be returning to work “for a long long time”. The worker had not previously reported any psychological injury or symptoms of anxiety or depression and gave no indication that she was not coping with the duties required of her.
Medical evidence
Mrs Manojlovic attended Dr Zaki, general practitioner, after she fell. He provided a medical certificate dated 8 December 2008 certifying that Mrs Manojlovic suffered from:
“neck, uupper, [sic] lower back and buttock pain associated with headache and
wil [sic] be unfit for work from 9/12/2008 to 10/12/2008 inclusive”.
Dr V Todorovic, general practitioner, provided a series of WorkCover medical certificates between 9 December 2008 and 15 April 2009. The certificates confirmed that Mrs Manojlovic was injured when she slipped on the wet floor on 8 December 2008. He diagnosed injuries to the head, neck and entire back and left shoulder. As at 30 December 2008, Dr Todorovic added that the worker was suffering an adjustment disorder with depressed mood.
No medical report was obtained from Dr Todorovic.
At the arbitration hearing, after much debate, two handwritten pages being extracts from Dr Todorovic’s notes were tendered by the Respondent. Only one entry from the notes was relied upon, that being a notation dated 27 March 2008. Part of the note is indecipherable. The notation includes the following:
“neck and back pain after MVA on 25 March 2000 (a driver of a car) [indecipherable] by another car. Prescribed Brufen 400 mg.”
The doctor’s clinical notes record that Mrs Manojlovic was seen on two other occasions on 12 November and 25 November 2008 for unrelated medical conditions. Between the entry on 27 March 2008 and the work accident on 8 December 2008 there is no reference to any complaints of neck or back pain.
On 20 January 2009 Dr J Hunjan reported on an MRI of the cervical and lumbar spine. He commented on a minor degree of cervical spondylotic disease and bulging at the C5/6 and C6/7 disc spaces. There was evidence of an annular tear at L4/5 and a moderate sized disc protrusion at L5/S1.
Dr Matthew Giblin, treating orthopaedic surgeon, saw Mrs Manojlovic for the first time on 21 January 2009, with the assistance of an interpreter. He recorded a history of neck, thoracic and lower back pain over two months. He recorded the history of falling after slipping on a wet floor. He noted the pain was quite profuse and particularly radiates down the left leg. He noted complaints of some pins and needles but found it difficult to determine where and whether it was radicular or not. He noted no past history of “this or similar problems”.
He noted on examination the worker sat rigidly and was very guarded. He recorded inconsistent on straight leg raising which was greater in the seated position than lying, particular on the left side. Dr Giblin concluded that Mrs Manojlovic’s symptoms were consistent with the accident but that there was an enormous amount of anxiety surrounding the situation and stated that “a diagnosis at that point was unclear”.
Dr M Cheung, radiologist undertook a regional bone scan on 29 January 2009. He reported an increased uptake at the C6/7 disc space. This was reported as non-specific but consistent with intervertebral degenerative joint disease.
Dr Matthew Giblin provided a report addressed to QBE dated 2 February 2009. It is a brief report stating:
“I received a call today from Dr Sekel who gave me a bit of background information that there was some conflict occurring prior to the injury, that the old employer is no longer there and they have a new employer and that Mrs Manojlovic elected not to take up employment with the new employer.
We both concur that we need to improve this lady’s sense of well being and get her back to some form of work.”
Dr Giblin prepared a further report dated 4 February 2009 addressed to Dr Todorovic. After noting the results of the MRI, Dr Giblin noted there were minor degenerative changes in her cervical spine, no disc disease but facet changes in her thoracic spine and a moderate sized disc protrusion at L5/S1. He recorded that Mrs Manojlovic was “very pain focused”. He prescribed hydrotherapy and physiotherapy. He concluded that she was unfit for cleaning work, at least in the immediate future, and suggested she could perform some light duties work, if it was available.
Dr Giblin stated:
“This lady’s injuries are consistent with the accident described, but she is very pain focused. I consider she has an aggravation of underlying degenerative changes of the cervical, thoracic and lumbar spine and the possibility of a disc protrusion at the L5/S1 level and the possibility of an annular tear at the L4/5 level.
Obviously the degenerative changes throughout the spine are pre-existing and at this stage she remains unfit for her pre-injury duties, but I would recommend some sort of light duties be found for her provided she can get to work.
Currently I have added hydrotherapy to her regime.
The prognosis for this lady’s recovery is difficult to interpret at this stage. I have only seen her on two occasions and haven’t seen how she responds to therapy. I would suggest however, a positive attitude be maintained towards her recovery and that a psychological review be performed in order to give advice as to how best to manage her personality so that she can be returned to work quickly.”
Mrs Manojlovic submitted to an ultrasound of the right shoulder on 27 February 2009. Dr A Chan reported evidence of an insertional tear involving the supraspinatus tendon. Fluid was seen within the subacrominal bursa.
Dr John Lose, an Occupational Medicine and Injury Management consultant, was retained by QBE for injury management consultancy. He prepared a report dated 12 March 2009. He noted that Mrs Manojlovic had not worked in either of her jobs since the fall and at the time of his examination she was certified totally unfit.
He recorded that she complained of constant neck and upper back pain and pain and discomfort in both shoulders, the right worse than the left. She also complained of pain in her low back and at time associated pain in left leg. He also recorded that in respect of psychological symptoms that she was very angry and bitter towards her employer and believed that the employer was trying to “force her out” and replace he with “cash employees”. She noted that she was depressed and emotional most days and was sleeping three to four hours per day.
In respect of a past history the doctor noted that the worker denied any previous significant injury, although she reported experiencing minor neck symptoms at work prior to the injury.
Following his physical examination and a review of the radiological findings, Dr Lose diagnosed degenerative cervical spine and degenerative rotatotor cuff disease in both shoulders, degenerative lumbar spine and an affective/adjustment disorder. He believes that the cervical spondylosis, particularly at C5/6 and C6/7, explained her neck and upper back symptoms. He also felt that her lower back symptoms were most probably due to an aggravation of degenerative lumbar disease. He ruled out the leg symptoms as being radicular on the basis that there was no evidence of nerve root compromise on MRI.
Dr Lose recorded that he had formed an “impression” based on referral notes (which are not in evidence) as well as Mrs Manojlovic’s account that the level of affective/adjustment disorder was more to do with a deteriorated relationship with her employer than the alleged work injury. He noted Mrs Manojlovic’s belief that before her injury her employer was “trying to get rid of her” because of a change in their employment strategy.
He recommended Mrs Manojlovic recommence work three hours a day, five days a week with a lifting limit of five kilograms, avoidance of repetitive bending, sitting no more than 20 minutes, regular postural change and mobilisation. He expected that that could occur from 23 March 2009 noting that she was to have a right shoulder injection on 19 March 2009. He felt that Mrs Manojlovic would be capable of dusting, wiping benches and tables, picking up light materials and limited sweeping.
Dr Todorovic referred Mrs Manojlovic to a consultant psychiatrist, Dr D Kecmanovic. Dr Kecmanovic prepared a report dated 15 March 2009. He obtained a consistent history of the accident and Mrs Manojlovic’s complaints of physical symptoms. He also recorded:
“Due to the pains, diminished activities and reduced life enjoyment the patient developed mental symptoms such as nervousness, depression, heightened anxiety, general uneasiness, poor sleep and concentration”
Dr Kecmanovic noted she had been taking psychotropic medication including Diazepam and Zoloft since 27 February 2009. Her anxiety had slightly subsided although her core symptoms remained deeply entrenched. He reported that the patient was depressed and anxious and concerned for her future. He opined that she was suffering from an adjustment disorder with depressed mood and anxiety. He provided counselling and recommended she continue with the medication.
On 19 March 2009 Dr Stephen Morris performed an ultrasound-guided injection of local anaesthetic into the right shoulder.
The employer relied on a medico-legal report dated 3 April 2009 prepared by Professor Frederick Ehrlich, a specialist in orthopaedics and rehabilitation. Dr Ehrlich obtained a history of accident consistent with the worker’s statement. She denied having any previous injuries of any kind. He noted that the worker left school at the age of 19 years having completed her high school but did not have any specific trade or professional training subsequently. Since coming to Australia in 1997 or 1998 her only employment has been in cleaning work.
Mrs Manojlovic reported widespread pain in her neck, arms, both shoulders and lower back. She stated that she felt unfit to return to work. On examination Professor Ehrlich observed that the worker was almost totally rigid. She was not prepared to flex or extend her neck beyond a nod nor was she prepared to turn her head from side to side. Professor Ehrlich had regard to the reports of the various radiological investigations. Professor Ehrlich was of the view that all of the radiological changes were of a type seen in many individuals approaching middle age, and were not indicative of trauma but, rather, of degenerative disease. He said:
“The most spectacular aspect here was this lady’s complete rigidity and unpreparedness to move almost any part of her body, yet it was noted during the undressing and dressing process that there was much more movement possible, both in her neck as well as in her upper limbs and in twisting her neck about. It is therefore my opinion that this lady does not produce any evidence of organic injury of the musculoskeletal system that is quite typical of what is found in individuals attempting to project an image of agony which, in this case, is inexplicable in organic terms.”
Professor Ehrlich was of the opinion that from a physical point of view the worker was fully fit to return to her former occupation without restriction. He found no evidence of any “specific organic aggravation of pre-existing degenerative changes”.
Dr James Bodel, orthopaedic surgeon, prepared a medico-legal report at Mrs Manojlovic’s solicitors’ request dated 11 June 2009. He noted a consistent history of injury and symptoms including the head and neck pain radiating over the top of the shoulders, pain in the lower part of the back and pain down the left leg. He noted no previous claims and recorded a history that Mrs Manojlovic had been previously quite well and had not been treated for any other illnesses. He noted that the worker was distressed, she was continuing to suffer from right sided occipital headache, she had pain on the right side of the neck, pain that spreads over the top of both shoulders and in the upper part of both arms. Head down posture or use of the arms overhead aggravated the pain. She also complained of pain in the lower part of her back, which radiated to the left leg and calf. Prolonged sitting, bending or lifting aggravated the back and left leg pain, however there was no evidence of nerve root irritation.
Dr Bodel conducted a physical examination and noted the outcome of the various radiological investigations. He diagnosed soft tissue injuries to the neck and back and both shoulders in the fall that occurred on 8 December 2008 and that Mrs Manojlovic had also developed a rotator cuff pathology and some additional structural damage in the discs in the lumbosacral area. He noted there was probably some pre-existing degenerative change but it was asymptomatic at the time of the fall.
Dr Bodel anticipated that it would take another 12 to 18 months before Mrs Manojlovic’s clinical condition had fully stabilised. Dr Bodel observed that the worker’s physical injuries had been complicated by the development of significant psychological disturbances as certified by her treating doctor, Dr Todorovic.
Dr Mark Kneebone, consultant psychiatrist, prepared a medico-legal report at Mrs Manojlovic’s solicitors’ request dated 16 June 2009. Dr Kneebone stated that the worker described a pervasively depressed and anxious mood characterised by tearfulness, low levels of energy, anhedonia, loss of appetite, five kilograms of weight loss, initial insomnia and impaired concentration. Dr Kneebone noted that the worker had not previously suffered from depression or anxiety following his examination he opined:
“Clinical impression
Following my assessment of Maria I felt that she was suffering from a major depressive disorder occurring in the context of a somatoform pain disorder associated with psychological factors and general medical condition. The latter includes tears of the supraspinatus tendons and an exacerbation of chronic degenerative intervertebral and disc disease affecting both the cervical and lumbosacral spine sustained in a fall at work on 8 December 2008. As a result of her pain, loss of mobility and depressive symptoms, Maria has been unable to negotiate a return to work and has lost her role as the chief breadwinner in the household.” (emphasis added)
In Dr Kneebone’s recommended much more aggressive treatment of her psychological and physical conditions. He assessed Mrs Manojlovic as having a 19% whole person impairment on the psychiatric impairment rating scale but cautioned that her condition was not permanent. In terms of incapacity he said:
“A suggested time frame for Maria returning to part time work is six to nine months with the goal of Maria eventually being able to return to full time work (up to 40 hours a week) in the medium to long term.”
ARBITRATOR’S REASONS
The Arbitrator placed little or no weight on the opinions of Dr Bodel and Dr Giblin in relation the alleged injuries to the cervical and lumbar spine injuries on the basis of neither of those doctors were provided with a history of a previous, non work related, motor vehicle accident, which appears to have occurred in March 2000.
Whilst the Arbitrator made no express finding in relation to the evidence of Drs Bodel and Giblin, I infer from the decision and her finding that the absence of a complete history “infects” the medical evidence that she disregarded their evidence.
The Arbitrator rejected Dr Todorovic’s evidence on a question of incapacity on the basis that he had not formed an independent view of her capacity for employment but merely reflected the worker’s own views.
The Arbitrator accepted Professor Ehrlich’s evidence that the worker’s incapacity had ceased by as early as April 2009. She concluded on the basis of all the evidence that the injuries to the worker’s neck and back consisted of soft tissue injuries being an aggravation of degenerative changes in her lumbar and cervical spine which had resolved to the extent that she was no longer incapacitated by them.
In relation to the alleged shoulder injuries, the Arbitrator rejected Dr Bodel’s evidence. She found that the doctor had failed to explain how the rotator cuff pathology arose as a consequence of the injuries sustained. She found the doctor’s report “manifestly deficient” and rejected it as failing to meet the requisite standard as discussed in Makita(Australia) v Sprowles [2001] NSWCA305 (‘Makita’). The Arbitrator found that at most, any injuries to the shoulder consisted of soft tissue injury. She also found that there was no evidence from any treating doctor after May 2009 in relation to the alleged shoulder injury. I infer the Arbitrator found no evidence of incapacity in relation to the shoulder injuries beyond May 2009.
The Arbitrator concluded that Mrs Manojlovic’s psychological condition was not a secondary injury arising from the physical injuries she received in a fall on 8 December 2008. The Arbitrator found that there was evidence of “significant difficulties” with the employer prior to the accident (at Reasons [52]) and although she accepted that there was no independent corroboration of that allegation she nevertheless noted that there had been no attempt made by the worker to refute the allegation. Based on the absence of a history of prior employment difficulties the Arbitrator rejected the psychiatric evidence on Makita grounds. Specifically, the Arbitrator rejected Dr Kneebone’s evidence on the basis that his diagnosis of a somatoform disorder was not causally related to the work injury.
The Arbitrator found that if the worker was incapacitated by reasons of a psychological condition it was not causally related to the injuries sustained on 8 December 2008.
ISSUES ON APPEAL
The Appellant has not expressly identified the grounds of appeal, however, doing the best I can from the submissions on appeal, the issues in dispute in the appeal are essentially limited to whether the Arbitrator erred in her assessment and treatment of the lay and medical evidence and in her application of the legal principles in Makita.
Mrs Manojlovic seeks to have the Arbitrator’s decision revoked and substituted by a new decision in favour of the worker, with a finding that she continues to suffer from the incapacitating effect so of the work injuries, both physical and psychological, and that she is entitled to an award for total incapacity from 19 April 2009 to date and continuing.
Appellant’s submissions
The Appellant’s submissions are poorly drafted and do not address express grounds of appeal. They are however summarised below and essentially allege that the Arbitrator erred:
(a) in erroneously concluding that the absence of a history of an unreported motor vehicle accident in 2000 undermined the weight to be attached to Dr Bodel’s conclusions, particularly, in respect of a diagnosis of structural damage to the lumbar spine;
(b) in rejecting Dr Giblin’s conclusion that there was a possible disc protrusion at L5/S1 and an annular tear at L4/5;
(c) if she rejected the worker’s evidence (that she was asymptomatic at the time of the accident), based on credit, she gave no reasons to explain the finding;
(d) by diminishing the weight attached to the psychiatric evidence on the basis of the Arbitrator’s own views (contrary to the expert medical opinion) that she could not have begun to suffer from the symptoms of a secondary psychological condition within three weeks of the injury;
(e) by attaching weight to the note from Dr Giblin of 2 September 2009 to the effect that the worker was disinclined to return to work because of workplace conflict and in failing to attach sufficient weight to the statement of Mr Riseley who denied any suggestion of any complaints or conflict involving the worker;
(f) in relying on the report of Dr Lose who reported a perception by the worker that her employer was “trying to get rid of her”. The basis for that observation in Dr Lose’s notes was not evident, nor was it clear whether it was an observation he derived from the worker as opposed to “referral notes” provided to him, but which are not in evidence
(g) in attaching significant weight to unsubstantiated reference to “conflict” in the workplace in the absence of evidence of conflict, in determining whether the applicant suffered from a psychological injury;
(h) in concluding that Dr Kneebone’s report should be rejected on Makita grounds;
(i) in concluding that Dr Todorovic, the treating general practitioner, had not formed an independent view;
(j) in relying on the findings of Professor Ehrlich to conclude that the worker was not incapacitated because Professor Ehrlich’s opinion was inherently unsatisfactory because he declined to offer definitive opinion about the incapacitating effects of the physical injuries, because they were overshadowed by non-physical aspects, and
(k) failing to recognise that Professor Ehrlich’s opinion supported the worker’s claim of incapacity by reason of the psychological squeal to the physical injuries sustained.
Respondent employer’s submissions
The Respondent’s submissions are summarised as follows:
(a)it was open to the Arbitrator to find that worker was not entirely asymptomatic at the time of her accident by reason of the reported complaints of neck and back pain following a motor vehicle collision in March 2000;
(b)it was open to the Arbitrator to find that the opinions of Drs Bodel and Giblin were undermined by the absence of a complete history of previous injuries;
(c)the Arbitrator was correct to reject Dr Kneebone’s opinion by reason of the absence of an explanation of the relationship between his diagnosis and the injury in December 2008. The Arbitrator was correct to reject it as failing to meet the standard required by Makita;
(d)the Arbitrator was correct to find that the worker was experiencing workplace conflict based on the statements of Mr Riseley, Mr Hodzic and the author of the MJM Investigations Australia Pty Limited report, which were not refuted by the worker;
(e)the observations of Dr Giblin in his report dated 2 February 2009 evidence the workplace conflict and demonstrate an incomplete history being given by the worker to medico legal providers;
(f)the Arbitrator did not misdirect herself in relation to the findings of psychological injury by reason of the fact that the condition arose “prima facie in an unusually short time”;
(g)Dr Lose who examined the worker as an injury management consultant considered she was fit to return to light duty manual work;
(h)based on the findings of Dr Lose and Professor Ehrlich, who concluded that the worker was projecting a disability and experienced pain which did not exist, it was open to the Arbitrator to find that the worker’s physical condition did not prevent her from returning to work;
(i)the Arbitrator was correct to reject Dr Todorovic’s evidence;
(j)The Arbitrator was correct to find that Dr Giblin considered the worker fit to return to work as he recommended “some sort of light duties work”;
(k)the Arbitrator was correct to accept Professor Ehrlich’s evidence for the reasons provided at [63] of her decision, and
(l)Professor Ehrlich does not conclude the worker’s condition is related to her alleged secondary psychological condition and his findings do not “bolster” the applicant’s claim.
DISCUSSION AND FINDINGS
Physical injuries
The Arbitrator relied on Makita in concluding that Drs Bodel’s and Giblin’s opinions were undermined because neither doctor had a complete history including the history of a previous car accident in 2000.
The Arbitrator concluded that in the absence of the history of a prior motor vehicle accident the opinions of both Dr Giblin and Dr Bodel should be rejected on the grounds that their evidence failed to meet the standard required for the acceptance of an expert’s opinion as stated in Makita.
In Makita Heydon JA (as he then was) said at [64]:
“The basal principle is that what an expert gives is an opinion based on facts. Because of that, the expert must either prove by admissible means the facts on which the opinion is based, or state explicitly the assumptions as to fact on which the opinion is based. If other admissible evidence establishes that the matters assumed are “sufficiently like” the matters established “to render the opinion of the expert of any value”, even though they may not correspond “with complete precision”, the opinion will be admissible and material: see generally Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 at 509-510; Paric v John Holland Constructions Pty Ltd [1985] HCA 58; (1985) 59 ALJR 844 at 846. One of the reasons why the facts proved must correlate to some degree with those assumed is that the expert's conclusion must have some rational relationship with the facts proved.”
In Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 (‘Paric’) it was argued that several medical experts had based their conclusions on inaccurate histories and, therefore, their opinions should not have been accepted. Samuels JA (Hutley and Priestley JJA agreeing) said, at 509-510:
“It is a question of whether the hypothetical material put to expert witness represents a fair climate for the opinions they expressed. I do not think there is any requirement that the matter put is precisely consonant with the material provided; and certainly it cannot be contended that there was no evidence upon which the opinions could be based.
Discrepancies may be fatal; in some cases even slight discrepancies maybe fatal; in other cases even broad departures are not likely to affect the force of the expert opinion. Moreover, it is for the tribunal of fact to assess this factual basis.”
The evidence clearly establishes that Mrs Manojlovic slipped and fell heavily whist rapidly mopping a flooded floor. The fall was witnessed by Mr Borg and Mr Hodzic, who described the worker’s both feet slipping from under her and her falling heavily striking her buttocks, back, left elbow and possibly her head. After the fall, Mrs Manojlovic complained of pain in the cervical, thoracic and lumbar spine with pain radiating to the left leg.
Dr Giblin concluded that she had aggravated underlying degenerative changes in her back and possibly suffered a disc protrusion at L5/S1 and possibly an annular tear at L4/5.
Dr Bodel diagnosed soft tissue injuries to the neck and back and both shoulders including the development of a rotator cuff pathology and structural damage to the disc in the lumbo-sacral area.
The clinical notes from Dr Todorovic recorded a history of the worker being involved in a motor vehicle accident in March 2000 and reporting to Dr Todorovic complaints of neck and back pain during a consultation on 27 March 2008.
Although a direction was issued to Dr Todorovic to produce his clinical notes and any medical reports relating to Mrs Manojlovic, only three pages of his hand written clinical notes were tendered commencing with the entry on 27 March 2008. There is no other documentary or oral evidence in relation to the March 2000 motor vehicle accident. Whether Mrs Manojlovic had made any further complaints of neck or back pain arising from that accident prior to March 2008 is unknown. Whether she received any treatment or underwent investigations to determine the extent of the injuries is also unknown.
After reporting the neck and back pain in March 2008 there were no other complaints of neck or back pain before the work accident on 8 December 2008. In the interim Mrs Manojlovic had seen Dr Todorovic on two occasions on 12 and 25 November 2008 for unrelated conditions that made no reference to continuation of the neck or back pain. I infer from that history that whatever the effects of the motor vehicle accident were on Mrs Manojlovic they were not of sufficient intensity to result in any incapacity, indeed Mrs Manojlovic had been able to work up to 55 hours per week in two jobs undertaking the work of a cleaner uneventfully for over eight months after reporting neck and back symptoms to Dr Todorovic.
The lay evidence supports a conclusion that any pain suffered by Mrs Manojlovic in March 2008 was of a relatively minor and transient nature. Mr Riseley stated that the worker had not complained that she was not coping with her duties and as noted, Mr Hodzic who had known her for two and a half years described her as a hard worker right up to the time she was injured.
In so far as the injury to the left shoulder is concerned Dr Bodel recorded the worker’s complaints of pain in the shoulder. He obtained a history that she had slipped and fallen heavily hitting the back of her head and neck area. He recorded that his physical examination disclosed mild impingement in each shoulder but without instability. Dr Bodel also had regard to the ultrasound of the left shoulder, which demonstrated evidence of a partial thickness tear and supraspinatus tendonitis in the left upper extremity and the ultrasound of the right shoulder which demonstrated evidence of an insertional tear involving the supraspinatus tendon and associated tendons.
Based on this evidence Dr Bodel concluded that Mrs Manojlovic suffered soft tissue injuries to both shoulders in the fall and developed rotator cuff pathology. The diagnosis is clearly explained by the physical findings supported by the radiological investigations. In my view the evidence amply supported Dr Bodel’s conclusions concerning the development of rotator cuff pathology in both shoulders, and I accept his evidence.
The fact Dr Bodel was not provided with the history of the worker’s involvement in a motor vehicle accident in March 2000 was irrelevant to his conclusion regarding the shoulder injuries, because Mrs Manojlovic made no complaints of any injuries to the shoulders arising from the motor vehicle accident.
The physical findings combined with the radiological investigations also provided ample support for the doctor’s conclusion that the worker had suffered soft tissue injuries to her neck and back, and caused additional structural damage to the lumbar discs in the presence of pre-existing asymptomatic degenerative changes. He was also satisfied that she had developed bilateral rotator cuff pathology.
Whilst it is undeniable that Dr Bodel did not take into account a complaint of pain in the neck and back eight months earlier, the absence of that history is not fatal to the acceptance of his opinion for a number of reasons. First, the entry in Dr Todorovic’s notes earlier in 2008 is the only evidence of pre-existing neck and back complaints. Dr Todorovic’s complete file of clinical notes was not tendered, although it had been produced pursuant to a Direction for Production. Only selected extracts from the notes commencing with the note in March 2008 were relied on. The available inference, which I draw, is that there was no evidence of complaints of neck or back symptoms prior to, or subsequent to, the entry in March 2008.
Second, Mrs Manojlovic saw Dr Todorovic on two further occasions between March 2008 and December 2008 for unrelated conditions but on neither of those occasions did she complain of neck or back pain. There is no suggestion that she sought to have any further medication prescribed for relief of neck or back symptoms.
Third, after the complaint of neck and back pain earlier in 2008 Mrs Manojlovic continued to undertake heavy physical work of a cleaner, fulltime with the respondent and part time with another employer concurrently. She did so without complaint and was regarded as a hard worker (Hodzic statement [37]). This history is inconsistent with the existence of any significant neck or back problems immediately prior to the accident.
Notwithstanding that the history recorded by Dr Bodel does not accord with complete precision with the facts proven, it is sufficiently like the facts proven to render the doctor’s opinion admissible and material (see Paric).
For the reasons above, I reject the Arbitrator’s description of Dr Bodel’s report as “manifestly deficient” and I am satisfied that the Arbitrator erred in concluding that Dr Bodel’s report failed to meet the standard required by Makita, and with the rejection of his evidence.
For the same reasons the Arbitrator erred in rejecting Dr Giblin’s opinion. Dr Giblin’s diagnosis is remarkably consistent with Dr Bodel. Dr Giblin considered that Mrs Manojlovic had aggravated underlying degenerative changes in the cervical, thoracic and lumbar spines and possibly suffered a disc protrusion at L5/S1 and an annular tear at L4/5 in the subject fall. His opinion is based on having seen Mrs Manojlovic in January 2009 and again in February 2009 when the results of her bone scan and MRI were available. Having regard to the radiological findings Dr Giblin found that Mrs Manojlovic’s injury were consistent with the accident described. Although he noted the presence of psychological influences and recommended a psychological review he was satisfied that she remained unfit for her pre-accident work but recommended light duties if they could be found for her. For the reasons given, I am satisfied that the absence of the history of the previous neck and back complaint recorded in Dr Todorovic’s notes, is not fatal to the acceptance of Dr Giblin’s opinion. In my view the facts relied upon by him informing the conclusions he did provided a fair climate for the acceptance of his opinion.
Although Professor Ehrlich’s report suffered from the same alleged deficiency that caused the Arbitrator to reject the evidence of Drs Bodel and Giblin, she accepted and relied on Professor Ehrlich’s opinion on the issue of incapacity. However, in Professor Ehrlich’s view all of the radiological changes evidenced in the worker’s neck and back in his opinion were typical of those of individuals approaching middle age and are not indicative of any trauma, but rather of degenerative disease. The doctor was clearly heavily influenced by the inconsistency between the worker’s range of movement when dressing and undressing when compared with those displayed on examination. He therefore opined that Mrs Manojlovic did not produce any evidence of organic injury to the musculoskeletal system.
Professor Ehrlich failed to explain why the worker’s complaints should not be regarded as an aggravation of the degenerative changes already present in the worker’s neck and back in circumstances where the worker was essentially asymptomatic and undertaking full time cleaning work for the Respondent and a concurrent part-time cleaning job for another employer, working in the evenings, until she fell in December 2008. Nor does he explain, or indeed refer to, the presence of a demonstrated disc protrusion at L5/S1 and the possibility of an annular tear at L4/5 or explain why those injuries should not be accepted as traumatically induced when the complaints of pain in the back occurred immediately after what has been described as a very heavy fall. For these reasons, I find Professor Ehrlich’s opinion unpersuasive. I prefer the evidence of Drs Bodel and Giblin to Professor Ehrlich on questions of causation and incapacity.
Dr Lose provided an opinion in relation to both the physical and psychological aspects of the worker’s claim. He accepted the demonstrated evidence of cervical spondylosis at C5/6 and C6/7, which would explain the worker’s neck and upper back symptoms. He also accepted, based on the ultrasound, the existence of a possible insertional tear of the supraspinatus. He considered the back symptoms most probably the result of an aggravation of degenerative lumbar disease. To that extent Dr Lose’s opinion is consistent with that of Dr Giblin and Dr Bodel. I do not however accept his opinion in relation to the worker’s psychological condition for reasons which I shall come to in due course.
Dr Lose stated that Dr Todorovic was supportive of his assessment that Mrs Manojlovic could return to suitable duties on a graded return to work program. The evidence in support of the submission is found at page 5 of Dr Lose’s report of 12 March 2009. He records that a note of a telephone discussion that day with Dr Todorovic during which Dr Todorovic is said to have indicated his support for the worker to return to work on reduced hours, three hours per day, five days a week, with a lifting limit of five kilograms, sitting limit of twenty minutes and regular postural change as from 23 March 2009. No medical report was obtained from Dr Todorovic concerning those matters. The hearsay report of Dr Todorovic’s opinion in Dr Lose’s report is in direct conflict with the WorkCover medical certificates Dr Todorovic issued. On 18 March 2009, that is, within six days of the alleged discussion with Dr Lose, Dr Todorovic issued a further medical certificate certifying the worker totally incapacitated to 21 April 2009 as a result of her physical and psychological injuries. On 15 April 2009 he issued the last medical certificate in a series of progress certificates again certifying the totally incapacitated to 21 May 2009.
In the circumstances I accept the most reliable evidence on Dr Todorovic’s opinion of the workers fitness for work, are the signed medical certificates issued by him and I accept them, in preference to the hearsay evidence in Dr Lose’s report, as confirmation of his view that the worker remained totally incapacitated at least to the date of his last certification in May 2009.
Having regard to all of the evidence I find Mrs Manojlovic suffered an aggravation of degenerative changes in the cervical, thoracic and lumbar spines and suffered a disc protrusion at L5/S1 and an annular tear at L4/5 when she fell heavily in the course of her employment on 8 December 2008 and that the aggravation is continuing and that her employment was a substantial contributing factor to these injuries.
The worker is 51 years old. She has no tertiary education and no particular skills. She has been employed as a cleaner since arriving in Australia in 1977. I believe her statement that she could attempt some light work is optimistic and a reflection of her stoicism.
For the reasons given, I find the worker is and has been totally incapacitated by reason of her physical injuries since 8 December 2008.
Psychological injury
The Arbitrator rejected the evidence linking the workers psychological condition to her injuries for two reasons. Firstly the psychiatrists failed to consider a history of conflict in the workplace prior to the injury, and secondly the development of symptoms within what the Arbitrator described as an unusually short period of time after the accident. The Arbitrator’s finding that the worker was experiencing significant conflict with her employer prior to the accident is not borne out by the evidence and it is not a finding that was open to her.
The evidence relied upon by the Arbitrator to make that finding comes from two sources. Firstly a note from Dr Giblin to QBE Insurance dated 2 February 2009. It refers to a telephone call, from a Dr Sekel providing “a bit of background information”. Precisely who Dr Sekel is and how he is involved in the case remains obscure. It was suggested that there had been workplace conflict prior to the injury concerning a “new employer” being appointed with whom Mrs Manojlovic was unwilling to work.
Secondly Dr Lose based his findings on an “impression” that the worker’s psychological condition was due to a deteriorated relationship with her employer, rather than from the effects the alleged work injury. An impression he formed from undisclosed referral notes and the worker’s alleged account that her employer was trying to get rid of her because of a change in employment strategy.
In contrast to the history relied upon by Dr Lose is the sworn evidence of Mr Borg who was unaware of any dissatisfaction by the worker with her employment and the evidence of Mr Hodzic who believed her to be a hard worker. Indeed, the conclusion reached by the Ms Craig an investigator retained by QBE was that the worker did not report any onset of symptoms relating to her alleged psychological condition during the period of her employment (MJM report-page 10). Also, against a conclusion that the worker’s psychological condition was due to workplace conflict, is her denial to Dr Kneebone, which I accept, that she suffered depression or anxiety prior to the fall and her statement to Dr Kneebone that she wished to return to work and provide for her family.
Whilst the worker made comment to Mr Borg that she disagreed with the management style of the new supervisor “Chris”, which is hardly surprising in the circumstances, that evidence falls well short of establishing a foundation to argue that her discontent, if I can call it that, had reached a point where it was effecting her willingness to continue in her employment let alone causing a psychological condition.
The employer submits that the existence of workplace conflict was evidenced by the comment by the worker’s daughter to Mr Riseley a day or so after the accident stating that her mother would not be back to work “for a long long time”. Given its proximity to the accident it is far more likely in my view that the worker’s daughter was then commenting on her mother’s physical condition rather than her psychological condition. If there had been any conflict in the workplace, I do not accept that had become a factor influencing the workers attitude to returning to work within a few days of the accident given the severity of her physical injuries.
For the forgoing reasons I reject the submission that the worker was experiencing workplace conflict prior to her injury on 8 December 2008.
The Arbitrator also erred in rejecting the opinion of Dr Kneebone by reason of the absence of a history of workplace conflict for the reasons discussed. Further, I believe that the Arbitrator was wrong to reject Dr Kneebone’s evidence as failing to meet the Makita test. Dr Kneebone took a comprehensive history of the physical and psychological sequel to the accident. He noted, correctly, that there was no evidence that the worker was suffering from depression or anxiety prior to the accident on 8 December 2008. He explained his opinion that the worker was suffering from a major depressive order on the basis that it was a somatoform disorder.
The Arbitrator concluded that by suggesting that the worker suffered from a somatoform disorder Dr Kneebone was not suggesting that it was caused by the work injury. Not only was that conclusion not open to the Arbitrator, the evidence is to the contrary. Dr Kneebone related the disorder to both psychological factors and Mrs Manojlovic general medical condition. He expressly included in the later the tears of the suprspinatus tendons and the exacerbation of the chronic degenerative intervertebral and disc disease affecting both the cervical and lumbosacral spine sustained in the fall at work on 8 December 2008. I am satisfied that Dr Kneebone has satisfactorily explained the reasons for his conclusions.
Dr Kneebone suggested that as of June 2009 the timeframe for the worker returning to part time work was six to nine months, with a goal of eventually being able to return to full time work (up to 40 hours a week) in the medium to long term. I infer from that that the doctor’s opinion was that the worker remained totally incapacitated for at least a further six to nine months before being permitted to gradually return to duties. In the absence of any contradictory psychiatric evidence on behalf of the employer, I accept Dr Kneebone’s opinion that Mrs Manojlovic suffered from a major depressive disorder as a consequence of the of the physical injuries sustained in the accident on 8 December 2008 and that she remains totally incapacitated as a consequence of her psychological condition.
I also accept Dr Kecmanovic’s opinion that Mrs Manojlovic suffered an Adjustment Disorder with Depressive mood and Anxiety in response to the physical injuries suffered. I reject the submission that his opinion carried no weight by reason of the absence of a history of workplace conflict.
For the reasons stated in this decision I find that worker suffered from a secondary psychological condition namely a Major Depressive Disorder as a consequence of the physical injuries sustained by her on 8 December 2008. I am satisfied that the worker is, and has been totally incapacitated from 8 December 2008, by reason of the psychological injury.
CONCLUSION
Having found that Mrs Manojlovic has been totally incapacitated for work from 19 April 2009, she is entitled to an award of compensation under sections 36 during the first 26 weeks of incapacity and thereafter under section 37of the 1987 Act.
Mrs Manojlovic’s has been totally incapacitated since the date of injury, 8 December 2008. She received voluntary compensation payment until liability was declined from 16 April 2009. Therefore for the period from 19 April 2009 to 3 June 2009, under section 36, Mrs Manojlovic is to be compensated at the current weekly wage rate as defined in section 42 and taking into account the provisions of section 42(7), noting that at the time of injury Mrs Manojlovic was employed under two contracts of service.
The wage records in his matter are limited to a wages schedule included in the Application, which nominates comparable or probable earnings of $725.92. No other field in the schedule was competed other than entry “n/a” where the award at pre-injury employment should be nominated and the hourly rate has been left blank. This is completely unsatisfactory.
I note that in submissions before the Arbitrator, Mr Batten, counsel for the Respondent, submitted that the worker had been paid compensation at the current weekly wage rate of $725.92 per week (T2.23). In the absence of evidence to the contrary I accept this as the weekly figure for the purposes of the calculation of the award under section 36 for the period from 18 April 2009 to 3 June 2009.
After the first 26 weeks of total incapacity, from 5 June 2009 to date and continuing, pursuant to section 37, Mrs Manojlovic is entitled to an award of compensation at the statutory maximum rate. At arbitration hearing, Mr de Meyrick, counsel for the worker conceded that the worker had no dependants (T14.14).
DECISION
The decision of the Arbitrator dated 10 November 2009 is revoked and the following decision is made in its place:
“1. The Respondent is to pay the Applicant weekly compensation pursuant to section 36 at the rate of $725.92 per week from 19 April 2009 to 2 June 2009.
2. The Respondent is to pay the Applicant weekly compensation pursuant to section 37 at the maximum statutory rate for a worker with no dependents from 3 June 2009 to date and continuing.
3. The Respondent is to pay the Applicant’s costs.”
COSTS
The Respondent is to pay the Appellant’s costs of the appeal.
His Hon. Judge Keating
President
4 March 2010
I, MELANIE CURTIN CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF HIS HONOUR JUDGE KEATING PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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