McAllister v Central West Group Apprentices
[2006] NSWWCCPD 243
•22 September 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:McAllister v Central West Group Apprentices [2006] NSWWCCPD 243
APPELLANT: Lee Brendon McAllister
RESPONDENT: Central West Group Apprentices
INSURER:GIO Workers Compensation (NSW) Ltd
FILE NUMBER: WCC 20744-04
DATE OF ARBITRATOR’S DECISION: 14 November 2005
DATE OF APPEAL DECISION: 22 September 2006
SUBJECT MATTER OF DECISION: Section 40 of the Workers Compensation Act 1987
PRESIDENTIAL MEMBER: Acting Deputy President Julian Martin
HEARING:On the papers
REPRESENTATION: Appellant: Messenger & Messenger
Respondent: Turkslegal
ORDERS MADE ON APPEAL: 1. Paragraphs 1, 2 and 4 of the Arbitrator’s Decision dated 14 November 2005 are revoked and the following orders are substituted:
“1.That Central West Group Apprentices pay Lee Brendon McAllister weekly compensation pursuant to section 40 of the Workers Compensation Act 1987 as follows:
(a)$148.10 per week from 12 October 2004 to 3 September 2005;
(b)$173.60 per week from 4 September 2005 to date and continuing pursuant to section 40 of the Workers Compensation Act 1987.
2.That Central West Group Apprentices pay Lee Brendon McAllister’s reasonable and necessary section 60 expenses on production of accounts and receipts.
4.That Central West Group Apprentices pay Lee Brendon McAllister’s costs as agreed or assessed.”
2.Paragraph 3 of the Certificate of Determination of 14 November 2005 is confirmed.
3.Central West Group Apprentices is to pay Lee Brendon McAllister’s costs of the appeal.
BACKGROUND TO THE APPEAL
On 9 December 2005 Lee Brendon McAllister (‘Mr McAllister’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 14 November 2005.
The Respondent to the Appeal is Central West Group Apprentices (‘Central West’).
Mr McAllister was born on 12 April 1984 and is 22 years of age. He claims no dependents.
On 13 May 2002 Mr McAllister commenced a 12 month traineeship with Central West as a landscape gardener.
On 9 December 2002 whilst operating a ride-on lawnmower, Mr McAllister struck his head on the branch of a tree, thereby injuring his neck and back. He stopped work and consulted a general practitioner and remained off work and in receipt of payments of weekly compensation.
In April 2003 Mr McAllister returned to work on and off for approximately three months in total, after which time he stopped working due to the pain. He continued to be off work at the time of the Arbitration hearing.
On 27 August 2004 the insurer of Central West wrote to Mr McAllister denying liability and advising that medical benefits will cease on 31 August 2004 and weekly benefits will cease on 12 October 2004.
Proceedings were commenced in the Commission on 17 December 2004 for weekly benefits, medical expenses and lump sum compensation for permanent impairment.
As a result of a teleconference on 13 April 2005, Mr McAllister was referred to Dr John Matheson, Approved Medical Specialist, on 25 July 2005 who certified that the injury to Mr McAllister resulted in no impairment.
An Arbitration hearing took place on 18 October 2005 and Mr McAllister has appealed from the decision following that Arbitration.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 14 November 2005 records the Arbitrator’s orders as follows:
“1.Award in favour of the Respondent in respect of the Applicant’s claim for weekly payments of compensation.
2.That the Respondent pay the Applicant’s expenses under s.60 of the Workers Compensation Act 1987 up to 30 June 2003 on production of accounts or receipts. Award in favour of the Respondent thereafter.
3.Award in favour of the Respondent in respect of the Applicant’s claim for lump-sum compensation under s.66 and s.67 of the Workers Compensation Act 1987.
4.No order as to costs.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are:
“1.whether the Arbitrator erred in failing to properly consider the medical evidence of Dr Stephenson;
2.whether the Arbitrator failed to give adequate reasons in relation to:
· not accepting the evidence of Mr McAllister about his pain and restrictions;
· why Mr McAllister’s incapacity ceased in mid 2003; and
· the significance of a later non-work related injury.”
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Central West submit that the matter can be dealt with ‘on the papers’, whilst Mr McAllister submits that the matter should not be dealt with ‘on the papers’ until a transcript has been received and thereafter final grounds of appeal submitted.
Both parties were provided with a copy of the transcript on 12 January 2006 and no further grounds of appeal have been received. Accordingly having regard to Practice Directions Numbers 1 and 6 and the documents that are before me, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
The amount of compensation at issue on the appeal is at least $5,000.00 (section 352(2)(a) of the 1998 Act).
No amount was awarded in the decision appealed against and therefore section 352(2)(b) of the 1998 Act has no application (Mawson v Fletchers International Exports Pty Limited [2002] NSWWCCPD 5)
Accordingly I grant leave to appeal.
FRESH EVIDENCE
Mr McAllister seeks to introduce fresh evidence in the form of a supplementary report of Dr Stephenson dated 27 February 2005 addressed to the solicitor for Central West. He submits that the Arbitrator has made no reference to this report in his Statement of Reasons for Decision, however, the matter may be clarified on receipt of the transcript.
Although there is no reference to this report in the Arbitrator’s Decision, it was admitted into evidence by the Arbitrator (transcript at page 5, point 40).
Accordingly it is not necessary to deal with the issue of fresh evidence.
EVIDENCE AND SUBMISSIONS
Report of Dr Stephenson dated 27 February 2005
Mr McAllister submits that the Arbitrator erred in failing to take into account the supplementary report of Dr Stephenson dated 27 February 2005. In support of this submission Mr McAllister states that this supplementary report of Dr Stephenson modified the doctor’s first report and as such should have been considered by the Arbitrator because he “mainly” relied on Dr Stephenson when making the finding that Mr McAllister was fit for his pre-injury duties.
Central West submit in reply that the failure to refer to the supplementary report does not disclose any appellable error because this further report did not alter the earlier opinion of Dr Stephenson, but only suggested that further opinion might be sought from a neurosurgeon on the issue of Mr McAllister’s capacity for employment. It is further submitted by Central West that Mr McAllister had the onus of proof on the issue of incapacity and relied on Dr Fearnside who gave no opinion on this issue and Dr Leu who was of the opinion that Mr McAllister was fit to perform his normal work.
Dr Stephenson, orthopaedic surgeon, provided a medico-legal report for Central West and in his first report dated 23 June 2004 provided a diagnosis that:
“There may have been some soft tissue strain to the back. I have seen some x-ray reports which are not remarkable.”
Dr Stephenson then provided an opinion that:
“Based on the current findings the worker appears fit for normal pre-injury duties without restrictions following correct industry standard lifting techniques and should be able to do that work in the future.”
Central West then provided Dr Stephenson with further medical reports and in particular a report of Dr Chen, radiologist, and a report of Dr Fearnside, neurological surgeon, dated 9 November 2004.
Dr Chen performed an MRI of the whole spine and reported on 30 August 2004:
“Focal T7/8 central disc protrusion impinging on cord. No evidence of cord odema or significant canal stenosis demonstrated.”
Dr Stephenson, having the benefit of these reports, then provided the supplementary report dated 27 February 2005, which was not referred to by the Arbitrator in his Decision. In this supplementary report Dr Stephenson states:
“My report of June 2004 relied on the available radiology at that time.
The new finding on MRI scan study in particular the report of Dr Fearnside may require your further attention to the medical opinion regarding fitness for employment, any incapacity, pre-injury work capacity and prognosis.
I notice these were the features mentioned in your request for a supplementary report.
Based on my findings 23/06/04, I am not able to resile from those at this time but having now seen the further medical data particularly the MRI scan, thoracic spine report and subsequent report of Dr Fearnside, I feel he may require further medical opinion that in my opinion should come from a Neurologist or Neurosurgeon in view of the report of Dr Fearnside.”
The Arbitrator in his decision stated:
“Considering all of the medical evidence the majority view is that the Applicant is capable of returning to pre-injury duties, albeit with some care. As Dr Stephenson notes in 2004, the Applicant appears fit for normal pre-injury duties so long as he follows normal industry lifting procedures. Dr Fearnside is more cautious in that he notes a modest restriction of daily activities. Dr Pik is unable to explain the patient’s symptoms, and Dr Leu has a similar view to Dr Stephenson in that the Applicant is capable of performing normal work with care.
The weight of opinion rests with the view that the Applicant did suffer an injury, however any incapacity arising from that injury has long since ceased. Dr Rikard-Bell suggests a recovery period of three to four months. This view is supported by Dr Matheson, the Approved Medical Specialist in this matter….
I am satisfied that the Applicant became fit for pre-injury duties at a time no later than mid-2003, based on my reading of the medical evidence. Any impairment or restrictions that he suffers from today do not arise from the work injury he suffered on 9 December 2002.”
As Deputy President Fleming stated in Knight v Eyles Nominees Pty Limited t/as Processed Forest Products [2004] NSWWCCPD 73 (‘Knight’):
“An Arbitrator’s decision should not be disturbed unless, on review, it contains an error of law, fact or discretion (Allesch v Maunz (2000) 203 CLR 172, Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSWWCCPD 6).
The error must be such that, but for it, a different decision would have been made (Section 294 of the 1998 Act; YG & GG v Minister for Community Services [2002] NSWCA 247; Absolon v NSW TAFE [1999] NSWCA 311).
The errors alleged by the Appellant are largely matters of discretionary judgment by the Arbitrator, on the basis of her view of the evidence before her. As with any exercise of discretion by an administrative decision maker, this discretion must be exercised lawfully and fairly, taking into account the scope of the discretion and the objects of purpose for which it is conferred. To succeed on the grounds of appeal the Appellant must demonstrate that the Arbitrator has failed to exercise her discretion fairly and lawfully….
Interference with an Arbitrator’s discretionary judgment as to the weight of evidence should only be done where it is manifestly obvious the discretion has so miscarried that it has not been exercised fairly and lawfully. In my view this is such a case. The Arbitrator has not, in her reasons, given a fair or accurate account of the evidence that was before her.”
I agree with the thrust of the submissions by Mr McAllister that the supplementary report of Dr Stephenson modified the original report and as such should have been considered by the Arbitrator. Dr Stephenson in his supplementary report qualifies his earlier report having regard to “…the available radiology at that time”.
The Arbitrator in his decision under the heading Findings and Reasons which I have referred to above at paragraph 30 refers to, in addition to Dr Stephenson’s initial report, the reports of Dr Pik and Dr Leu. Dr Pik, neurosurgeon saw Mr McAllister on 4 August 2004 on referral from Dr Cradock, general practitioner. Dr Pik was of the “…impression that Lee McAllister has spinal pain of undetermined aetiology”. He referred Mr McAllister to Dr Chen for MRI but there is no later report in evidence from Dr Pik commenting on the MRI.
Dr Leu is an occupational physician who saw Mr McAllister at the request of Central West on one occasion only, 10 December 2003. This is prior to the MRI of 30 August 2004.
The Arbitrator has also referred to Dr Rikard-Bell, general practitioner, who saw Mr McAllister for Central West on one occasion only and has provided a report dated 30 January 2003 which was also before the MRI scan.
The Arbitrator also refers to Dr Fearnside, neurological surgeon, and Dr Matheson, neurosurgeon. Both these doctors had access to the MRI scan when they examined Mr McAllister. Both doctors do not specifically comment on Mr McAllister’s capacity to work, however, Dr Matheson states:
“There is some consistency in his symptoms of complaints with some discomfort associated with Scheuermann’s disease but the notion that this will be persisting disabling pain over these years and prevent him doing any work is nonsense. He is clearly amotivational and has no interest in employment.”
Dr Matheson diagnosed thoracic Scheurmann’s disease and was of the opinion that “the injury was a minor vertical strain to the spine which has long since ceased”. The doctor found 5% whole person impairment but considered 100 per cent of this was due to pre-existing impairment.
Dr Fearnside was of the opinion that:
“On the balance of probability, the small T7/8 disc protrusion is likely to be post-traumatic and did occur as a result of the accident on 9/12/02.”
The doctor stated “he has a modest restriction of his activities of daily living.”
Central West referred Mr McAllister to a neurosurgeon, Dr Bookallil, on 31 March 2005. Although the Arbitrator refers to this doctor when summarizing Central West’s medical evidence, he does not refer to him when setting out his Findings and Reasons. Dr Bookallil had access to the MRI scan of 30 August 2004 and diagnosed a T7/8 disc protrusion that was directly related to the history of injury. Dr Bookallil’s opinion on incapacity was:
“I do not believe that Mr McAllister could return to pre-injury employment. He would be fit for light work and he would need to be re-educated into an appropriate position. His job would need to avoid lifting, carrying and bending.”
Mr McAllister was seen by Dr Burgess, orthopaedic surgeon, at the request of his solicitors. Dr Burgess first saw Mr McAllister on 17 February 2004 before the MRI scan of 30 August 2004. He next examined Mr McAllister on 20 September 2005 and noting the MRI scan was of the opinion that Mr McAllister “…is not fit to resume his pre-accident employment as a green keeper or in labouring job or in any job that involves specific stresses on his neck or back”. The doctor was of the opinion that Mr McAllister :
“suffers from cervical and mid thoracic spondylitis….It is more probable than not that his injuries were caused by the accident he suffered on 9th February 2002.”
Having regard to the medical evidence referred to above, it is apparent that the Arbitrator’s statement (set out in paragraph 30 above) that:
“Considering all of the medical evidence the majority view is that the Applicant is capable of returning to pre-injury duties, albeit with some care.”
is not well founded.
In my opinion the Arbitrator’s ultimate finding was manifestly against the weight of the evidence. To adopt the terminology used by Deputy President Fleming in Knight, the Arbitrator has not in his reasons given a fair or accurate account of the evidence that was before him.
The Arbitrator having erred it is necessary that his decision be revoked. Having made this finding I do not need to consider the further grounds of appeal.
It is appropriate, if possible, that a Presidential Member who upholds an appeal finally determines the matter (see Chubb Security Australian Pty Ltd v Trevarrow [2004] NSWCA 344 (‘Chubb’)). In this matter the parties agreed that the only issues were Mr McAllister’s section 40 entitlement, if any, after voluntary payments of compensation stopped and the entitlement to medical expenses. As credit is not an issue I am of the view that it is appropriate for me to determine these outstanding issues.
DISCUSSION AND FINDINGS
As both Dr Bookallil and Dr Burgess had the benefit of the MRI scan of 30 August 2004 when they examined Mr McAllister and specifically addressed the issue of incapacity, I find their opinions on this issue more convincing that the other doctors who examined Mr McAllister. Accordingly I find that Mr McAllister continues to be partially incapacitated for work as a result of the injury he suffered on 9 December 2002 whilst employed by Central West.
Section 40 Entitlement
The Court of Appeal in Mitchell v Central West Health Service (1997) 14 NSWCCR 527 (‘Mitchell’) held that section 40 of the 1987 Act requires the Tribunal to undertake a five step process.
The five steps in assessing entitlement pursuant to section 40 of the 1987 Act are as follows:
(1)Determination of the weekly amount the worker would probably have been earning if uninjured;
(2)Determination of the amount that the worker is earning or would be able to earn (subject to subsection 40(3) and section 43A);
(3)Subtraction of the figure in (2) from the figure in (1);
(4)Exercise of the discretion contained in subsection (1) of section 40; and
(5)Make an award in the amount arrived at by step (4).
Probable Earnings
At the Arbitration hearing Mr McAllister relied on a Wage Schedule that the probable earnings but for injury were $448.10 per week for the period 12 October 2004 to 3 September 2005 and $523.60 per week from 4 September 2005 to date. Central West, while conceding the probable earnings were based on the appropriate industry award, submitted that they are premised on Mr McAllister completing his traineeship, which was not completed due to his failure to finalise the theoretical component. It was further submitted that there was no evidence to suggest that this was due to his injury with Central West.
Although Mr McAllister did agree in cross-examination that he did not complete the theoretical component of his traineeship, he gave evidence that he did return to work on and off in 2003 for a period totaling approximately three months. This was gardening type work and Mr McAllister’s evidence was that when he was able to work a full week, he was paid $600 gross.
Accordingly I am of the opinion that Mr McAllister’s probable earnings but for injury are, on the probabilities, at least the amount reflected in the Wage Schedule filed on his behalf. I find that they are as follows:
· 12 October 2004 to 3 September 2005 $448.10 per week
· 4 September 2005 to date $523.60 per week
The Amount the Worker is earning, or would be able to earn
Central West submitted at the Arbitration hearing there are a number of areas where Mr McAllister could work. It was submitted that he had a significant residual capacity such as office work and in the area of computing.
It was submitted on Mr McAllister’s behalf that as he did not complete his School Certificate he was not qualified for office work and that he would have difficulty sitting for lengthy periods of time.
Mr McAllister’s evidence at the arbitration hearing was that he had difficulties returning to full-time gardening type work. Both Dr Burgess and Dr Bookallil are of the opinion that Mr McAllister is not fit for his pre-injury employment but fit for light work. When considering the second step in section 40 of the 1987 Act I am required to take into account Mr McAllister’s ability to earn in the labour market that is reasonably accessible to him (section 40(3)(a)) and have regard to suitable employment within the meaning of section 43A of the 1987 Act.
Section 43A of the 1987 Act directs that I look to various matters in identifying ‘suitable employment’. Mr McAllister left school before completing his School Certificate and has since the accident with Central West attended a computer course, which he did not complete as his computer broke down.
As part of Mr McAllister’s case management, he was referred to Hills Street Occupational Rehabilitation Service, for a vocational assessment in May and June of 2004. The resulting report dated 27 July 2004 was tendered in evidence by Central West. Danielle Hudson (Bachelor Social Work) who prepared the report was of the opinion that at the time of preparation a return to work plan was not recommended, however, services were required to assist Mr McAllister develop independent job seeking skills and gain a greater appreciation of the need for exploring alternative vocational options. The matter appears to have gone no further at this time, no doubt due to the insurer denying liability on 27 August 2004.
When considering the labour market that is reasonably accessible to Mr McAllister I note that he lives in Cowra in central western New South Wales. It is apparent that opportunities for restricted employment on the labour market reasonably accessible to him would be less frequent than in metropolitan Sydney.
Taking into account the restrictive class of work for which Mr McAllister can now compete, his work experience since leaving school and his place of residence, I find that Mr McAllister’s ability to earn in some suitable employment is as follows:
· 12 October 2004 to 3 September 2005 $300.00 per week
· 4 September 2005 to date $350.00 per week
The amount at step (3) after subtracting the figure at step (2) from step (1) is:
· 12 October 2004 to 3 September 2005 $148.10 per week
· 4 September 2005 to date $173.60 per week
Section 40 Discretion
Having found the amount at step (3), sub-section (1) of section 40 of the 1987 Act requires the Tribunal to consider whether there are reasons for the exercise of the discretion to reduce that amount. In Australian Wire Industries v Nicholson (1985) 1 NSWCCR 50 the NSW Court of Appeal held that at this stage all facts had to be examined and this included such matters as “…retirement, other supervening illnesses or injuries, the personal employment history of the worker, and so on.”
Having read the transcript, medical reports and other material before the Arbitrator I can see no reason for the exercise of the discretion in this matter. I note that during cross examination at the arbitration hearing, Mr McAllister was asked about a non work related incident in early 2005 when he broke his collarbone (clavicle). He fell whilst climbing through a window at his home, when he was locked out of the house. The event was not disclosed to the doctors who examined him in 2005, nor were any symptoms from the injury recorded. It was not submitted by Central West at the arbitration hearing that this was a matter that should be considered by the Arbitrator in the exercise of his discretion and accordingly I do not propose to take it into account.
At step (5) the amount is as follows:
· 12 October 2004 to 3 September 2005 $148.10 per week
· 4 September 2005 to date $173.60 per week
Having found that the Arbitrator’s determination on the issue of incapacity was flawed it follows that his determination that Central West pay Mr McAllister’s section 60 expenses up to 30 June 2003 only is also incorrect. Accordingly Mr McAllister is entitled to ongoing section 60 expenses.
DECISION
For the reasons referred to above, I revoke paragraphs 1, 2 and 4 of the Arbitrator’s Decision dated 14 November 2005 and the following decision is made in its place:
“1.That Central West Group Apprentices pay Lee Brendon McAllister weekly compensation pursuant to section 40 of the Workers Compensation Act 1987 as follows:
(a)$148.10 per week from 12 October 2004 to 3 September 2005;
(b)$173.60 per week from 4 September 2005 to date and continuing pursuant to section 40 of the Workers Compensation Act 1987.
2.That Central West Group Apprentices pay Lee Brendon McAllister’s reasonable and necessary section 60 expenses on production of accounts and receipts.
4.That Central West Group Apprentices pay Lee Brendon McAllister’s costs as agreed or assessed.”
Paragraph 3 of the Certificate of Determination of 14 November 2005 is confirmed.
COSTS
Central West Group Apprentices is to pay Lee Brendon McAllister’s costs of the appeal.
Julian Martin
Acting Deputy President
22 September 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JULIAN MARTIN, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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