Marcus v Ready Workforce Pty Limited
[2007] NSWWCCPD 199
•19 September 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Marcus v Ready Workforce Pty Limited [2007] NSWWCCPD 199
APPELLANT: Mariam Marcus
RESPONDENT: Ready Workforce Pty Limited
INSURER:QBE Workers Compensation (NSW) Limited
FILE NUMBER: WCC18395-06
DATE OF ARBITRATOR’S DECISION: 2 May 2007
DATE OF APPEAL DECISION: 19 September 2007
SUBJECT MATTER OF DECISION: Assessment of ability to earn; sections 40(2)(b) and 43A of the Workers Compensation Act 1987; consideration of the evidence
PRESIDENTIAL MEMBER: Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION: Appellant: Galluzzo Andriano Solicitors
Respondent: Holman Webb Lawyers
ORDERS MADE ON APPEAL: The Arbitrator’s decision dated 2 May 2007 is confirmed.
No order as to costs of the appeal.
BACKGROUND TO THE APPEAL
Mariam Marcus (‘the Appellant Worker/Ms Marcus’) was born in Syria on 5 July 1965 and is currently 42 years old. She came to Australia in November 1987. In 1989 she started work as a Process Worker. This was her first job, as she had not been employed in her country of birth.
In October 2003 she started work with Ready Workforce Pty Limited (‘the Respondent Employer/Ready’), a labour hire company. That company hired her services as a Process Worker to Melosi’s, a company at Wetherill Park. Her duties involved packing and lifting meats, which required her to work in a refrigerated section. Between October and August 2004 she worked an average of 18.79 hours per week at Melosi’s.
On 22 June 2004, Ms Marcus was lifting 12-kilogram boxes of ham onto pallets when she felt her right shoulder click and then developed pain in the shoulder, neck and shoulder blade. Her injury was reported and she attended on her family doctor, Dr Nguyen, who referred her for investigations and specialist assessment with Dr Guirgis and Dr Rail.
Her claim for compensation was accepted and she was paid voluntary compensation until 9 February 2007.
On 27 December 2006 an Application to Resolve a Dispute (‘the Application’) was registered in the Workers Compensation Commission (‘the Commission’) in which Ms Marcus alleged injury to her right shoulder and neck, and carpal tunnel syndrome in her right hand as a result of the nature and conditions of her employment and as a result of lifting boxes of ham on 22 June 2004. She claimed weekly compensation from 22 June 2004 to date and continuing plus lump sum compensation.
The matter was listed for conciliation and arbitration before a Commission arbitrator on 28 March 2007. In a decision delivered on 2 May 2007 the Arbitrator accepted that Ms Marcus injured her right shoulder and neck on 22 June 2004 but found that her carpal tunnel syndrome was not work related. She ordered Ready to pay weekly compensation in the sum of $376.55 per week from 12 August 2004 to 8 February 2007 and in the sum of $35.15 per week from 9 February 2007 to date and continuing.
Ms Marcus seeks leave to appeal the Arbitrator’s findings and orders in respect of the carpal tunnel syndrome and the amount of weekly compensation from 9 February 2007.
LEAVE TO APPEAL
Monetary Threshold
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
It is not in issue that the thresholds in section 352(2) are satisfied.
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
I grant leave to appeal.
PRELIMINARY MATTERS
Section 354(6) of 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 Numbers 1 and 6, 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.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 2 May 2007, records the Arbitrator’s orders as follows:
“1. That the Respondent pay to the Applicant weekly compensation at the rate of $376.55 from 12 August 2004 to 8 February 2006 pursuant to s.40 of the Workers Compensation Act 1987, with credit to the Respondent for payments made.
2. That the Respondent pay to the Applicant weekly compensation at the rate of $376.55 from 9 February 2006 to 8 February 2007, pursuant to s.38 of the Workers Compensation Act 1987, as adjusted after the first 26 weeks and with credit to the Respondent for payments made.
3. That the Respondent pay to the Applicant pursuant to s.40 of the Workers Compensation Act 1987 weekly compensation at the rate of $35.15 from 9 February 2007 to date and continuing in accordance with the provisions of the Act.
4. That the Respondent pay the Applicant’s medical and treatment expenses pursuant to s.60 of the Workers Compensation Act 1987 in respect of injury to the Applicant’s right shoulder and neck.
5. That the Respondent is not liable for the payment of medical and treatment expenses pursuant to s.60 of the Act in respect of the Applicant’s right carpal tunnel syndrome.
6. That the Respondent pay the Applicant’s costs as agreed or assessed. The matter is certified as complex. The costs should be increased for both parties by 15% due to this complexity.
7. That the assessment of impairment as a result of injury to the right shoulder and cervical spine be referred to the Registrar for referral to an Approved Medical Specialist. Such referral should exclude any assessment in respect of the right carpal tunnel syndrome.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator failed:
(a)to properly consider sections 43A(1) and 40(3)(a) of the Workers Compensation Act 1987 (‘the 1987 Act’) when making her assessment of Ms Marcus’ ability to earn under section 40(2)(b) of that Act (‘assessment of ability to earn’), and
(b)to take into account the disease provisions in respect of the right carpal tunnel syndrome (‘carpal tunnel syndrome’).
REVIEW
The nature of a review and the role and function of a Presidential member on appeal has been considered in many cases in the Commission. In The King Island Company Limited v Deery [2005] NSWWCCPD 1 it was held at [19]:
“19. A Presidential Member on appeal has a specific and limited role in the review of a decision of an Arbitrator. The review is not a rehearing. The Presidential member is not dealing with the matter de novo and is not arriving at a fresh decision based on all of the evidence available at a later time (Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616). The powers of the Presidential Member to revoke the decision pursuant to section 352(7) of the 1998 Act and to substitute a new decision in its place, are exercisable only where it is demonstrated that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172). Alternatively, the Presidential Member may remit the matter back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions made.”
The nature of a review was considered by the Court of Appeal in Aluminium Louvres & Ceilings Pty Limited v Zheng [2006] NSWCA 34 where Bryson JA said at [38]:
“A review is a different process to an appeal and the matters which may be considered and the manner in which they may be considered are somewhat wider. See Boston Clothing Co Pty Ltd v. Margaronis (1992) 27 NSWLR 580 at 584 (Kirby P). An attack, on review or otherwise, on an Arbitrator's discretionary decision in controlling procedure may be based on the test stated in House v. R (1936) 55 CLR 499 at 504 - 505; but that is not the only basis on which the Presidential member may act. The powers of a Presidential member on review are somewhat wider and extend to power to reopen consideration of a matter of which an Arbitrator has disposed; the manner in which the powers of the Presidential member are to be exercised is itself the subject of discretion of the Presidential member.”
This passage was recently quoted with approval by McColl JA in South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 at [134] (‘Edmonds’). To describe the relative weight and relevance of the expert evidence as “a discretionary decision which could only be disturbed on House v The King principles” was described by McColl JA as “an over-generalisation” (at [133]).
Before an Arbitrator’s decision will be revoked on review it must be demonstrated that it contains or has resulted from an error of fact, law or discretion. The error must be such that, but for it, a different decision should have been made (see Snow Confectionary Pty Ltd v Askin [2004] NSWWCCPD 56; Section 294 of the 1998 Act; YG & GG v Minister for Community Services [2002] NSWCA 247; Absolon v NSW TAFE [1999] NSWCA 311).
I intend to apply the above principles in the matter before me.
SUBMISSIONS AND FINDINGS
Assessment of Ability to Earn
In her Statement of Reasons for Decision (‘Reasons’) at paragraphs 109 and 110 the Arbitrator found Ms Marcus to be fit to work as a cosmetic sales assistant or pharmacy assistant for 20 hours per week at $17.03 per hour, giving a total of $341.40. Deducting this figure from the probable earnings uninjured of $376.55 leaves $35.15, which is the amount the Arbitrator awarded from 9 February 2007 to date and continuing.
Ms Marcus submits that in reaching the above figure ($341.40) the Arbitrator did not properly consider the following provisions in section 43A(1):
(a)her “age, education, skills and work experience” (section 43A(1)(b));
(b)her “place of residence” (section 43A(1)(c)), and
(c)other “relevant circumstances” (section 43A(1)(h)).
Ms Marcus has only ever worked as a Process Worker. It is therefore argued that retraining will be necessary, as she has no skills or work experience in the area of cosmetic sales, pharmacy assistant or receptionist.
It is submitted that the Arbitrator ought to have taken judicial notice of the fact that the Fairfield/Liverpool area has a high unemployment rate and that Dr Nguyen has attached travel restrictions of 30 minutes to Ms Marcus’ medical certificates.
It is argued that Ms Marcus’ limited skills in English is a highly relevant consideration in determining whether the occupations Mr Hiscox, Senior Rehabilitation Consultant qualified by the Respondent Employer, suggested would be suitable for her were in fact suitable. As a result, it is argued that the Arbitrator has erred in either not considering or not placing appropriate weight on this issue. As was noted in Snow Confectionary Pty Ltd v Askin [2004] NSWWWCPD 56 at [25], “physical capability alone does not make that work ‘suitable employment’ within the meaning of section 43A of the 1987 Act”.
The Respondent Employer submits that:
(a)the Functional and Vocational Assessments completed by Mr Hiscox (reports dated 31 and 19 October 2006) identified three occupations that were within Ms Marcus’s capabilities;
(b)after arriving in Australia Ms Marcus spent 13 months studying English. Her English was considered sufficient for conversational purposes and she had the capacity to learn English language skills specific to a particular job;
(c)Ms Marcus has recently completed a Cosmetic Consultant Diploma with the Cosmetic Training Centre qualifying her to seek work with specialist cosmetic retailers;
(d)the occupations of a cosmetic sales assistant, pharmacy assistant, and receptionist were identified as the occupations most suited to Ms Marcus’ employment capabilities;
(e)Mr Hiscox considered the general labour market reasonably accessible to Ms Marcus, and
(f)the Arbitrator considered all relevant factors applicable in the application of sections 40 and 43A of the 1987 Act.
Ms Marcus’ submission that the Arbitrator did not properly consider section 43A of the 1987 Act is incorrect. At paragraph 105 of her Reasons the Arbitrator carefully dealt with the terms of section 43A, as they applied to Ms Marcus. She also considered the evidence of Mr Hiscox (Reasons, paragraph 26 bullet point 10) who noted that Ms Marcus “has predominantly applied manual skills to complete work tasks” but “more recently she has completed training in retail cosmetics and has an aspiration to work within the beauty industry” (Mr Hiscox 31 October 2006, page four).
At paragraph 108 of her Reasons the Arbitrator considered the evidence of Mr Hiscox that Ms Marcus could work as a cosmetic sales assistant, pharmacy assistant or receptionist and Dr Davis’ evidence that such work was not suitable. She also considered Dr Guirgis’ opinion in his report of 19 February 2007 that Ms Marcus was fit for the work of a receptionist, sales assistant in pharmacy or as a beauty consultant “provided they involved minimal use of the computer in a Graduated Return to Work program recommending [sic] to start with 4 hours per day 5 days per week and then increasing gradually within her pain tolerance”. Dr Guirgis’ reference to work as a beauty consultant was incorrect as Mr Hiscox recommended cosmetic sales assistant. I do not think this error is of any significance.
She then concluded that she preferred and accepted the evidence of Mr Hiscox and Dr Guirgis over that of Dr Davis (Reasons, paragraph 109). Ms Marcus submits that Dr Guirgis only addressed Ms Marcus’ physical capacity to perform the jobs identified and did not consider the other requirements dictated by the definition of suitable employment in section 43A. It is further argued that to suggest that Ms Marcus could obtain employment as a cosmetic sales assistant, pharmacy assistant or receptionist “defies the reality of the situation in which the Applicant now finds herself” (Appellant Worker’s submissions in reply, paragraph 5(ii)). This submission is a reference to Ms Marcus’ previous work experience as a process worker and her limited English.
The evidence of Ms Marcus’ English skills is set out in Mr Hiscox’s report of 19 October 2006. At page five of that report he stated:
“Ms Marcus rates her English literacy and fluency as poor. However, her English language skills are sufficient for conversational purposes. It would be expected that Ms Marcus has the capacity to learn English language skills specific to a job, for example, in a retail position where the types of written and spoken English language are limited and repetitive, for this same reason, it is expected that Ms Marcus could work in elementary clerical positions such as in a meet and greet Receptionist role.”
As Ms Marcus did not give oral evidence the assessment of her English skills has to be made on the basis of the written material. I note that in none of her three statements did Ms Marcus make any mention of having difficulty with her English nor did she state that her English had been or was likely to be a restricting factor in her obtaining suitable employment. None of her medical examinations were conducted with an interpreter present. Whilst Dr Davis noted that Ms Marcus had “considerable difficulty when attempting to understand a number of questions” (Dr Davis 9 March 2007, page seven), no other examiner seems to have noted any difficulty with her ability to communicate in English. Ms Marcus is fluent in Arabic and French (see Mr Hiscox’s report 19 October 2006, page two) and studied English after arriving in Australia. Ms Marcus told Mr Hiscox that she “enjoys reading English texts” (report 19 October 2006, page three). Whilst she completed a Cosmetic Consultant Diploma with the Cosmetic Training Centre, it is not known how long this course took or how comprehensive it was.
In all the circumstances it was open to the Arbitrator to accept Mr Hiscox’s evidence that Ms Marcus could work in the areas he identified. He did not suggest that further formal training in English was necessary but merely that Ms Marcus had the capacity to learn such language skills specific to, for example, a retail position. The Arbitrator’s acceptance of his evidence discloses no error.
I do not accept Ms Marcus’ submission that the Arbitrator should have taken judicial notice of the fact that the Fairfield/Liverpool area has a high unemployment rate. Whilst the Commission is an expert tribunal and is taken to have some knowledge of wage rates in general (see Akawa Australia Pty Ltd v Cassells (2003) 25 NSWCCR 385 at 392 and ICI Australia Operations Pty Limited v WorkCover Authority of New South Wales [2004] NSWCA 55; (2004) 60 NSWLR 18 at [219] - [232]), that does not extend to making assumptions about a specific and limited labour market which may or may not have different levels of employment to the rest of the Sydney metropolitan area. The question of the availability of the suitable work identified by Mr Hiscox was addressed in his reports where he said at page two of his report of 31 October 2006 that:
“The above occupations have been determined to exist within a geographical area accessible by Ms Marcus by car (eg Liverpool, Fairfield, Parramatta, Smithfield and Wetherill Park). Job availability for these types of jobs are [sic] between medium and high, with the high staff turnover rate and seasonal factors combining to enhance job prospects in the retail industry.”
It follows that the Arbitrator was not in error in finding that Ms Marcus’ capacity to earn in some suitable employment to be the sum of $341.40 per week.
Carpal Tunnel Syndrome
Ms Marcus submits:
(a)whilst she experienced right carpal tunnel syndrome in 1999, she consulted Dr Rail and did not require further treatment;
(b)when she started work at Melosi’s, which was in a cold environment requiring repetitive and quick movements, her symptoms recurred and were controlled by medication but progressively got worse following the injury on 22 June 2004;
(c)there is no dispute that she now has carpal tunnel syndrome in her right wrist;
(d)she has a personal injury, being carpal tunnel syndrome, and the injury arose during the course of her duties at Melosi’s. The Arbitrator therefore should have determined whether her employment caused an aggravation, acceleration, exacerbation or deterioration of the disease of carpal tunnel syndrome;
(e)there was no evidence of any other cause of the aggravation, acceleration, exacerbation or deterioration of the injury. The Arbitrator did not give specific reasons in relation to this issue. The fact that her condition has continued to deteriorate despite not working is irrelevant to the application of the disease provisions, as long as the employment aggravated, accelerated, exacerbated or caused a deterioration of the disease, and
(f)she experienced the symptoms of carpal tunnel syndrome in 2003, when she was working for the Respondent Employer.
Ready submits:
(a)Dr Papatheodorakis stated in 2004 that employment was not a substantial contributing factor to the condition of carpal tunnel syndrome;
(b)Dr O’Neill concluded in 2006 that carpal tunnel syndrome was constitutional and not related to Ms Marcus’ employment;
(c)the Arbitrator reasoned that the condition of carpal tunnel syndrome would have developed anyway and that is evidenced by the fact that the condition worsened despite no employment since February 2006;
(d)there were inconsistencies in Ms Marcus’ history about when her carpal tunnel symptoms developed. One history suggested that her symptoms did not develop until after the injections in her right shoulder in 2005. Other histories suggested that the symptoms started well before that time, and
(e)the Arbitrator concluded that Ms Marcus had not discharged the onus of proof to establish injury, either as the result of the exacerbation of a pre-existing disease (either on 22 June 2004 or as a result of the employment conditions), or as a direct result of the nature and conditions of her employment (Reasons, paragraph 59).
The Arbitrator carefully considered the evidence on this issue. Her finding essentially amounted to a finding that she was not satisfied that Ms Marcus’ carpal tunnel syndrome had been caused or exacerbated by her employment (Reasons, paragraph 59). In the alternative, the Arbitrator found, having regard to the opinions of Drs O’Neill and Mears, who she preferred over Dr Guirgis, that Ms Marcus’ employment was not a substantial contributing factor to her carpal tunnel syndrome.
Ms Marcus has not established that the Arbitrator’s decision has resulted from some error of fact, law or discretion. There were good reasons why the Arbitrator was not satisfied that the condition of carpal tunnel syndrome was not work related. At paragraph 58 of her Reasons she referred to some of the inconsistencies in the evidence. In addition to those inconsistencies, I note that in her statement of 21 March 2006 at paragraph 13 Ms Marcus said that after seeing Dr Rail and taking medication for her carpal tunnel syndrome in 1999 she did not feel pins and needles again until after her injury in 2004. At paragraph two of her statement of 18 September 2006 she said, “about one month after starting work for Ready Work Force at Melosi, I noticed pain and pins and needles in both my hands”. Ms Marcus attended on her general practitioner on 6 November 2003. The notes from that doctor indicate that she complained of pain in the forearms (right greater than the left) and that the diagnosis was “mild rsi” (see clinical notes from Fairfield Chase Medical Centre, entry 6 November 2003), not carpal tunnel syndrome.
The Arbitrator referred to the fact that Dr Guirgis did not give a whole person impairment assessment as a result of the carpal tunnel syndrome until 2006. That fact was not of itself significant or decisive. What was more important was that in Dr Guirgis’ report of 4 March 2005 he did not suggest that the carpal tunnel symptoms were work related. In his report of 20 February 2006 he said that the nature of her duties “triggered” a “re-activation of her right carpal tunnel syndrome” (Dr Guirgis 20 February 2006, page one). That conclusion depended on an acceptance of a history that Ms Marcus’ carpal tunnel symptoms increased whilst working at Melosi’s. In light of Ms Marcus’ inconsistent histories as to when the carpal tunnel symptoms increased, the Arbitrator was well justified in declining to accept Dr Guirgis’ opinion. Her conclusion on this issue discloses no error of fact, law or discretion.
It is wrong to suggest that because Ms Marcus has carpal tunnel syndrome she has therefore sustained an ‘injury’ within the meaning of the 1987 Act. The issue before the Arbitrator was whether the condition of carpal tunnel syndrome had been caused by or arose out of her employment (section 4(a) of the 1987 Act) or, in the alternative, whether her employment had caused an aggravation, acceleration, exacerbation or deterioration of any disease (section 4(b) of the 1987 Act). The Arbitrator addressed those issues and determined that Ms Marcus had not discharged the onus of proof. At paragraph 59 of her Reasons she said:
“There is insufficient evidence before me to enable the Applicant to discharge the onus of proof required to establish that she suffered an injury, being carpal tunnel syndrome to the right arm, either as the result of the exacerbation of a pre-existing disease (either on 22 June 2004 or as a result of the employment conditions) or as a direct result of the nature and conditions of her employment with the Respondent. I therefore find that the Applicant did not suffer an injury to her right arm/wrist, being carpal tunnel syndrome arising out of or in the course of her employment with the Respondent.” (emphasis added)
Whilst the Arbitrator did not expressly refer to the words ‘aggravation, acceleration or deterioration’, it is clear that in making the above finding she was addressing the disease provisions of the 1987 Act and that she was not satisfied that Ms Marcus had established injury under either section 4(a) or section 4(b)(ii) of that Act. That finding was open to her and discloses no error.
It is not correct to say that there was no evidence of any other cause of the aggravation, acceleration, exacerbation or deterioration of the carpal tunnel syndrome. There was. It is found in the reports of Drs O’Neill and Mears who both concluded that Ms Marcus’ carpal tunnel symptoms were constitutional. The Arbitrator accepted their evidence. It was open to
her to do so. In addition, Dr Papatheodorakis stated that Ms Marcus’ employment was not a substantial contributing factor to the carpal tunnel syndrome.
The Arbitrator gave very clear and specific reasons for not accepting the condition of carpal tunnel syndrome as being work related or, in the alternative, not accepting that employment was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration of the condition:
(a)having analysed all the evidence, she was not satisfied that the condition arose out of or in the course of Ms Marcus’ employment (Reasons, paragraph 57);
(b)the condition was in existence in 1999 (Reasons, paragraph 57);
(c)the condition was in existence again in 2003 (Reasons, paragraph 57);
(d)the condition has continued to deteriorate, despite not working for more than a year (Reasons, paragraph 57);
(e)there were inconsistencies in the evidence as to when the carpal tunnel symptoms commenced (Reasons, paragraph 58);
(f)there was insufficient evidence to enable Ms Marcus to discharge the onus of proof (Reasons, paragraph 59), and
(g)she preferred the evidence of Drs O’Neill and Mears to that of Dr Guirgis (Reasons, paragraph 63).
The Arbitrator’s finding that the condition was in existence in 2003 was not correct. The general practitioner’s clinical notes are clear that Ms Marcus presented with mild repetitive strain injury, not carpal tunnel syndrome. That error is of no consequence as the correct reading of the notes does not advance Ms Marcus’ case. All of the other findings made by the Arbitrator were open to her on the evidence and disclose no error of fact, law or discretion.
Conclusion
The Arbitrator’s conclusions and findings were open on the evidence and have not resulted from any error of fact, law or discretion.
DECISION
The Arbitrator’s decision dated 2 May 2007 is confirmed.
COSTS
No order as to costs of the appeal.
Bill Roche
Deputy President
19 September 2007
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
0
8
0