McCabe Terrill Lawyers v A
[2009] NSWWCCPD 46
•30 April 2009
| WORKERS COMPENSATION COMMISSION | ||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||||
| CITATION: | McCabe Terrill Lawyers v Lavery [2009] NSWWCCPD 46 | |||||
| APPELLANT: | McCabe Terrill Lawyers | |||||
| RESPONDENT: | Priscilla Coline Marie Lavery | |||||
| INSURER: | Gallagher Bassett Services Workers Compensation NSW Pty Ltd | |||||
| FILE NUMBER: | A1-8022/08 | |||||
| DATE OF ARBITRATOR’S DECISION: | 13 January 2009 | |||||
| DATE OF APPEAL DECISION: | 30 April 2009 | |||||
| SUBJECT MATTER OF DECISION: | Incapacity; evidence required; Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 | |||||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | |||||
| HEARING: | On the papers | |||||
| REPRESENTATION: | Appellant: | Sparke Helmore Lawyers | ||||
| Respondent: | In person | |||||
| ORDERS MADE ON APPEAL: | The Arbitrator’s determination of 13 January 2009 is revoked and the matter is remitted to a different Arbitrator to be determined afresh. | |||||
| Each party is to pay her or its costs of the appeal. | ||||||
BACKGROUND
Ms Lavery commenced employment as a solicitor with McCabes Lawyers (‘the appellant’), who have been wrongly sued as McCabe Terrill Lawyers, on 24 May 1999. The correct legal entity of the appellant is dealt with under “Other Matters” at paragraph [90] below. Her duties required her to use a dictaphone and desktop computer to assist in legal matters involving insurance and commercial law and, at times, to attend the Compensation Court of NSW at 88 Goulburn Street, Sydney. Her hours were Monday to Friday, 8.30am to 5.30pm, but she worked extensive overtime.
On or about 16 June 1999, Ms Lavery became aware of stiffness in her neck and right shoulder and pain radiating into her right arm. On 18 June 1999, a door struck her right arm as she entered a lift at the Compensation Court. Her symptoms were reported to the office manager (Ms Brisbane) on or about 23 June 1999, but she remained at work performing her normal duties.
On 5 July 1999, Ms Lavery submitted an “Employee’s Compensation Claim” (‘the claim form’), though she remained at work with no loss of time. Her employment was terminated on 9 July 1999.
Her claim was accepted and compensation payments commenced.
In 2004, Ms Lavery sought lump sum compensation in respect of a permanent impairment of her neck and permanent loss of efficient use of her right arm at or above the elbow. That claim was referred to an Approved Medical Specialist (‘AMS’) who assessed her on 3 February 2005 and issued a Medical Assessment Certificate (‘MAC’) on 23 February 2005 assessing her to have nil permanent impairment of her neck and a 10% permanent loss of efficient use of her right arm at or above the elbow as a result of her injury with the appellant. As a result of the MAC, the appellant has paid lump sum compensation in the sum of $8,000.00 in respect of the 10% loss of use determined by the AMS pursuant to a Certificate of Determination dated 30 March 2005.
Gallagher Bassett Services Workers Compensation NSW Pty Ltd (‘Gallagher Bassett’), the appellant’s workers compensation insurer, denied liability for weekly compensation and medical expenses in a notice dated 15 September 2008. As required under the legislation, weekly compensation continued until 28 October 2008.
In an Application to Resolve a Dispute (‘the Application’) registered in the Commission on 9 October 2008, Ms Lavery, acting on her own behalf, sought ongoing weekly compensation from 16 September 2008 at the statutory rate for an injured worker with one dependant child (Nathan Tye born on 14 July 1990). The Application alleged a date of injury of 16 June 1999 and provided an injury description of “myofascial pain syndrome right shoulder, right arm” as a result of “working long hours (55-60 per week) also accident with lift door”.
At the teleconference on 13 November 2008, the Arbitrator amended the Application by consent to include injury to the head and neck and to allow reliance upon the whole of the period of Ms Lavery’s employment with the appellant from 24 May 1999 to 9 July 1999. I infer that this amendment was intended to introduce an allegation of injury as a result of the nature and conditions of the worker’s employment, though the exact duties relied upon were not pleaded. That is of no consequence as it is agreed that the duties relied upon are those set out at [1] above.
In a Reply filed in the Commission on 30 October 2008, the appellant denied liability on the grounds set out in its notice previously served on 15 September 2008, namely, Ms Lavery:
(a)was fit for her pre injury duties;
(b)had no incapacity for work as a result of her work injury;
(c)required no further treatment in relation to her work injury;
(d)had no entitlement to weekly compensation, and
(e)had no entitlement to compensation in respect of medical expenses.
The Commission listed the matter for hearing before a Commission arbitrator on Thursday 18 December 2008. On that day Ms Lavery represented herself and counsel represented the appellant. The Arbitrator heard no oral evidence, but each side made lengthy submissions dealing with the various issues in dispute.
In a reserved decision delivered on 13 January 2009, the Arbitrator made an award in favour of Ms Lavery. The Commission’s formal determination is set out in a Certificate of Determination of that date, which provides:
“1. An award in favour of the Applicant, pursuant to s40 of the 1987 Act, in the amount of $453.20 being the statutory rate for a single worker with one dependent child from 28 October 2008 to date and thereafter continuing in accordance with the provisions of the Act.
2.The Respondent to pay expenses incurred pursuant to s60 of the 1987 Act including the cost of a computer in the amount of $871.75.
3.The Respondent to pay the costs of the Applicant as agreed or assessed.”
By an appeal filed on 10 February 2009, the appellant seeks leave to appeal the arbitrator’s determination.
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 disputed that the monetary thresholds in section 352 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.
ON THE PAPERS
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.”
The Appellant has requested the opportunity to make oral submissions, but has presented no argument as to why the matter cannot be determined on the papers. Ms Lavery consents to the matter being dealt with on the papers.
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.
THE EVIDENCE
Lay evidence
Ms Lavery relies on her statement of 6 October 2008. Her evidence in that document may be summarised as follows:
(a)she suffers work related constant and debilitating pain in her right shoulder, right arm and neck dating since June 1999 that has been overwhelmingly diagnosed as myofascial pain syndrome;
(b)she has been through a series of treatments that have included medication, physiotherapy, massage therapy, osteopathy, acupuncture, and a gym program, none of which were successful in eliminating the constant pain;
(c)in May 2000, she worked as a volunteer at the Fiji Legal Aid Commission on a “full-time” basis for approximately two months. Despite there being no computer on her desk, reduced hours, long breaks, and having assistance with house hold duties, she struggled with her pain and did not cope well;
(d)in 2001, she commenced studies for a Masters of Law in Human Rights. Because of her studies being hampered by her constant pain, she received an extension of approximately one year in order to complete her course and she graduated in July 2003;
(e)in September 2005, she attended at the Royal North Shore Hospital Pain Clinic ADAPT program for three weeks to learn how best to manage her pain;
(f)from mid 2003 until mid 2007 she was unable to obtain suitable paid employment, but did part time (approximately 18 hours per week) unpaid pro bono human rights work from her home. She was able to cope with that work except when she tended to increase her hours, which “only led to exasperation [sic] of pain” which was frustrating because then she would not be able to work at all for a week and, sometimes, weeks at a time;
(g)from 27 August 2007 to 12 September 2007 she worked part time for three days per week (Monday, Tuesday and Wednesday) at Navado Lawyers. Despite using voice-activated software, she found that working three days straight was “extremely counter productive to managing” her pain and led to an “unbearable, unmanageable intensity of pain” that further affected her ability to work and live on a day-to-day basis;
(h)in November 2007, she obtained part time employment with LJ Rickard Solicitors, working twenty-four hours a week spread over Monday, Tuesday and Thursday. If she had severe pain, she would not work those days but would spread her hours over the week and work from home if she was not well enough to drive or make herself look presentable for the office. She struggles with these hours and often has “exasperation [sic] of pain, tunnel vision and a migraine” but does not want to lose her job by decreasing her hours;
(i)she requests the Commission to reinstate her entitlement to weekly benefits and related expenses from 16 September 2008 as she is not capable of performing her pre-injury duties and has an incapacity for work as a result of her work injury, and
(j)she also seeks an order that she be reimbursed for the cost of a computer required as part of her rehabilitation for voice recognition and also panadol tablets as claimed in a reimbursement form posted to Gallagher Bassett on 29 October 2007.
Ms Lavery completed a claim form on 5 July 1999 in which she described her accident as follows:
“Working long hours putting stresses on body – problems started approximately 16/6/99. Also hit by a lift door at Workers Compensation Court on 18/6/99.”
She described her injuries as:
“ Stiff neck, shoulder, pain radiating into arm (pins and needles).”
In a “Register of Injuries and Treatment” form, completed by Ms Brisbane on 25 June 1999, it was recorded that Ms Lavery reported her injury on 23 June 1999 in the following terms:
“Working long hours, putting stresses on body – started approx 16/6/99. Was also hit by lift door at Workers Comp Crt – 18/6/99 which has agravated [sic] injury”
The injury or condition was described as:
“Stiff neck & shoulder & pain radiating into arm”
Ms Lavery was advised to seek massage treatment. Ms Lavery reported she had taken a hot bath which relieved her injury slightly.
Under “Remarks”, the following entry appears:
“Reassessed workstation changed chair & moved computer from corner of desk to centre which has improved injury, also advised Priscilla to dictate using L hand & R hand.”
Ms Lavery continued her normal duties until her employment was terminated on 9 July 1999.
Medical evidence
Ms Lavery came under the care of her general practitioner, Dr Papamichos, though exactly when is unclear as there is no report from this doctor. The AMS (Dr Bates) has summarised Dr Papamichos’ involvement in Ms Lavery’s treatment in his MAC of 23 February 2005. Dr Papamichos arranged for a course of physiotherapy that, according to the history taken by Dr Bates, she felt improved her facial pain and headache, but did not solve the neck and shoulder problems.
Dr Papamichos referred Ms Lavery to Dr Watson, neurosurgeon, for nerve conduction studies on 30 June 2000. Those studies were within normal limits. He also referred her to Dr Noll, orthopaedic surgeon, who reported on 29 March 2001. Dr Noll recorded that her symptoms included pain on the right side of the neck, upper shoulder and scapular region, with radiation down the dorso-lateral aspect of the right arm to the forearm. She complained that her pain was “fairly persistent” but aggravated when sitting at a computer and when driving. Physiotherapy and massage therapy provided little benefit.
Cervical and right shoulder x-rays performed on 9 August 1999, and an ultrasound of the right shoulder on the same date, revealed no abnormality. A CT scan of the cervical spine on 30 August 1999 showed no significant vertebro-discal pathology. Dr Noll referred to an MRI scan of the cervical spine of 9 March 2001 and noted that it was “essentially normal”. On examination, Dr Noll found Ms Lavery’s neck movement to be full but rotation to the right with extension reproduced the upper scapular/shoulder pain of which she complained. He found slight tenderness on palpation of the upper trapezius on the right side and right shoulder movements to be slightly restricted and painful. He thought that despite the relatively normal MRI scan, Ms Lavery did have pain that emanated from her cervical spine and may also have accounted for the pain referred to her right arm.
Ms Lavery also came under the care of Dr Howe, rheumatologist, in 1999, Professor Cameron, rehabilitation physician, in 2002, and Dr Harrison, orthopaedic surgeon, in 2003. Apart from one report in May 2008 from Professor Cameron, no other reports are in evidence from that doctor and no reports have been tendered from Drs Howe, Harrison or Papamichos, but their opinions are summarised at pages 12 and 13 of the very detailed and helpful report from Dr Bates. Dr Howe apparently considered that Ms Lavery had muscular discomfort following her use of a dictaphone but he expected that she would have settled by October 1999. Professor Cameron apparently diagnosed myofascial pain syndrome in August 2002 and strongly recommended that she remain at work and that she undertake all activities that were reasonable. In January 2004, Professor Cameron apparently diagnosed Ms Lavery as having chronic pain and declared her fit for modified legal duties at the level of six hours per day, three days per week with some restriction in lifting weights. Dr Bates also had access to a report from Dr Papamichos dated 1 November 2002 in which he apparently recorded that he felt Ms Lavery’s pain was real, that it was disabling, and that she had a poor prognosis. Dr Papamichos also felt that she was fit for light duties as a solicitor with minimal keyboard and manual activities, if possible.
Dr Bates describes a report from Dr Harrison of 25 September 2003 as being “meticulous and detailed”. Dr Harrison apparently found a slight restriction of active elevation and rotation of the right shoulder, but no evidence of wasting. In respect of the neck, he found a free range of motion with some pain on brachial stretching. He apparently described her as having persisting vulnerability to pain and her disability as “subjective pain with alteration of confidence and functional efficiency”. He assessed her as having an 8% impairment of her neck and a 15% loss of efficient use of her right arm at or above the elbow.
Dr Bates’ report includes a comprehensive history from Ms Lavery and details of his findings on examination. He noted that after Ms Lavery ceased work and underwent physiotherapy and, later, osteopathy, she found that her facial and headache pains occurred only rarely and that her arm symptoms had also improved. Ms Lavery suggested that six hours work on three days a week, certified as appropriate by her doctor, would be “acceptable and manageable”. Dr Bates recorded that she was having no treatment apart from very occasional periods of anti-inflammatory medication, which she did not enjoy because of their side affects.
Dr Bates recorded her complaints of constant right neck, shoulder and scapular discomfort. She described that region as “not feeling right”. In association with that discomfort she felt intense pain at various sites at various times. The pain improved as a result of physiotherapy, osteopathy and some massage therapy she later received at Ballina. At its worst, her right arm felt heavy and tingled all the way down the fingers. She described feeling as though her arm would not follow her brain, that her coordination was out of kilter and that manual activities could not be carried out as fast or as efficiently as she felt her brain wanted them to be.
In terms of her work history, Dr Bates noted that after graduation she worked as a lawyer in Broken Hill for one year and then for one and a half years in Taree. She then lectured in law in China for one year before returning to Australia and starting with the appellant in May 1999.
Under “Summary of Injuries and Diagnosis”, Dr Bates recorded “chronic right cervico-brachial pain syndrome” in response to an acute overuse situation. He agreed with Dr Papamichos that Ms Lavery’s pain was real and that it was disabling. It appeared to him that her chronic pain symptoms were entirely due to the right shoulder and right upper limb soft tissues. Those symptoms suggested that her pain was perceived to have altered her right arm coordination and manual dexterity. Despite the lack of objective signs, he felt that she had a 10% loss of efficient use of her right arm at or above the elbow.
The insurer referred Ms Lavery to Konekt Australia Pty Ltd (‘Konekt’), rehabilitation providers, in May 2005 for the purpose of vocational counselling. In a “closure report” dated 8 March 2006, Melinda Ottley, rehabilitation counsellor, recorded that Dr Papamichos had placed the following restrictions on Ms Lavery in his certificate:
(a)no carrying with the right arm/hand;
(b)no lifting with the right arm/hand;
(c)no pushing with the right hand/arm;
(d)no pulling with the right hand/arm;
(e)not to tolerate arm above shoulder height;
(f)keying and typing at own discretion, and
(g)include one hour lunch break.
Though initially referred to Konekt on 9 May 2005, Ms Lavery was unable to make herself available for the initial vocational counselling meeting until 24 May 2005. At that time Ms Lavery refused to sign an information consent form or a job seeking plan. She indicated that she was only available one day per week for job seeking and would not agree to set meeting times, stating that she preferred to attend during a specified day at a time when she felt like it. Notwithstanding the completion of a twelve session supervised gym based strengthening program, a three month independent gym membership and the completion of a twelve week ADAPT program with Royal North Shore Hospital, Ms Lavery’s functional status had not changed since August 2004. Ms Lavery frequently advised Konekt that she was going on holidays and therefore unavailable for fortnightly job seeking meetings and was often observed to be aggressive and use inappropriate language when liasing with Konekt’s staff.
Konekt noted several barriers to Ms Lavery returning to employment. Some of those barriers included:
(a)she continued to report constant pain and having difficulty in maintaining her medical restrictions whilst performing household chores and activities of daily living;
(b)her current passive pain management techniques;
(c)her well documented history of non compliance with Konekt’s job seeking program, having often advised that she had “no interest” in participating in job seeking activities;
(d)a reported reduced labour market within her area of identified vocations, which Konekt felt was contrary to current job vacancies and labour market information;
(e)Ms Lavery was unhappy with the average remuneration for advertised positions comparable to her pre injury position;
(f)Ms Lavery presented as guarded and visibly distressed when liasing with Konekt staff;
(g)Ms Lavery had undergone previous occupational rehabilitation and job seeking assistance;
(h)Ms Lavery frequently terminated job seeking meetings if she did not agree with the advice offered, and
(i)Ms Lavery requested a change of Konekt consultant on three occasions.
The insurer advised Konekt to close Ms Lavery’s file on 23 February 2006 due to her repeated non-compliance with job seeking activities.
Ms Lavery was examined by Dr Robin Mitchell, injury management consultant, at the request of the insurer on 11 September 2006. Under “Diagnosis”, Dr Mitchell noted “Ms Lavery has a high level of pain throughout her neck and right upper limb in the absence of any clinical evidence of an injury at this time. He felt that there was no indication that Ms Lavery would require or benefit from any future treatment and he felt her prognosis was good if she maintained a sensible physical activity program and she avoided any obvious aggravating activities such as the maintenance of any fixed postures or the carrying out of any particularly arduous or awkward handling. He thought she was medically fit to undertake any form of sensible work for which she is suitably trained, on a full-time unrestricted basis. He then added:
“To avoid any further aggravation of her right arm or neck, she should carry out all activities in the manner recommended by WorkCover for all people involved in any form of manual work including clerical activities.
She should carry out all manual handling work below mid-chest height and within 500mm of the body trunk, to avoid unreasonable loading of the soft tissues of the neck and upper limbs; she should avoid fixed postures by undertaking posture change on a frequent basis throughout the day; and she should carry out gentle mobilisation and stretching on a regular basis.”
Dr Mitchell noted Dr Papamichos’ recommendation – that Ms Lavery only work for six hours a day three days a week with the restrictions noted in paragraph [37] above – and stated that, in the absence of any discernable injury, those precautions seemed to be without medical foundation and for her to avoid using her arm for any activity could lead to further problems through disuse and a reduction of normal blood supply. Further, Dr Mitchell added that, provided the duties performed were medically reasonable and safe to undertake, there was no justification to reduce the hours of work as suggested by Dr Papamichos because such a reduction would “only lead to her having more difficulty finding work than would otherwise be the case”.
Dr Mitchell prepared an “Earning Capacity Report – Section 40 Assessment” on 25 September 2006 (‘the section 40 assessment’). At that time Ms Lavery was house sitting at McMahons Point, but her permanent home address was in Ballina where she shared a house with a friend. In the Application in the current proceedings, Ms Lavery gave her postal address as a residence at McMahons Point. She did not give a residential address in her statement. Under “Educational History”, Dr Mitchell noted that Ms Lavery completed a Masters of Law in Human Rights from Queens University, Belfast. That course was conducted primarily by correspondence but required some attendance in Ireland. Ms Lavery also lived in China as some stage and speaks “advanced Mandarin”. The report also referred to Ms Lavery’s work with legal aid in Fiji and her “senior level work with the United Nations”. No details were provided about her work with the United Nations.
Ms Lavery described her current interests as being human rights and related social activities.
Under “Treatment”, it was noted that Ms Lavery had previously received physiotherapy treatment for six months and had attended a gymnasium, all of which were “a little helpful”. The report also referred to her ADAPT program at the Royal North Shore Hospital and to the discharge report in respect of that program dated 10 November 2005, which indicated that apart from high fear avoidance and high catastrophic thinking, her problems on entry to the clinic were quite mild. The authors noted, significantly, that Ms Lavery was “not using medication even at the start of the [ADAPT] program”. The discharge report also contained bicycle ergometer readings that indicated that Ms Lavery raised her heart to only 92 beats per minute and produced a power output of only 37 watts, which Dr Mitchell did not consider to be a “significant effort”.
Under “Current Symptoms”, it was noted that Ms Lavery said she had episodes of pain for up to one week with a “lump” or muscle spasm appearing in her neck. That pain sometimes developed into migraine pain. Since she attended the pain clinic, her symptoms were better controlled. She reported difficulty in using a computer mouse, which she related as a “huge” problem, but she could sit and read without discomfort.
Under “Functional Status”, Ms Lavery stated that she had a 2 kilogram lifting limit on the basis of medical advice, but she could lift more. At the pain clinic she was able to repeatedly lift 4.5 kilograms. Ms Lavery’s endurance for working with her arms at shoulder height was evaluated at the ADAPT program to be identical on her uninjured left side as it was on her right side. Similarly, the weights she could carry with her injured and uninjured arms were found to be identical. Dr Mitchell concluded that Ms Lavery was “intentionally limiting her performance, whether from belief about the risk of injury or otherwise”. He could find no obvious medical cause for her ongoing high level of claimed symptoms, in the absence of any obvious clinical injury”.
In terms of Ms Lavery’s fitness for work, Dr Mitchell repeated the conclusions in his report of 11 September 2006, namely, that Ms Lavery was “clearly medically fit to undertake any form of sensible work for which she is suitably trained, on a full-time unrestricted basis”. That would include being fit to perform work as a lawyer that is physically light but involves a large amount of reading and research, which Ms Lavery should be able to perform even accepting the level of complaint she expresses.
Ms Lavery said that she had been applying for part time legal work and said that she was interested in work as a lawyer (especially human rights or legal aid lawyer), advocate or work in foreign affairs in a diplomatic job. Dr Mitchell felt that Ms Lavery could work full time in a range of positions including a lawyer, mediator (after training), advocate and public servant.
Mr Brown, occupational psychologist, prepared a separate report dated 25 September 2006, entitled “Psychological Assessment”. Ms Lavery described her symptoms as being episodes of pain that lasted for up to one week and were sometimes associated with migraines. She also complained that her right arm was “slower” than the left, which caused problems with typing because her left hand moved more quickly than her right hand. It was Ms Lavery’s belief that she should not use a computer mouse at all and, according to Mr Brown, she appeared to be unaware of the principles of good mouse technique. Ms Lavery said she preferred to work as a human rights lawyer or in the diplomatic service. In addition to her legal skills, Mr Brown noted that she had a very high level of English literacy, highly developed conversational skills, skills in planning and organising her work, and an excellent understanding of business and finance.
Mr Brown assessed the following occupations to be suitable for Ms Lavery: lawyer, mediator, conveyancer or real estate agent. Working as a lawyer, Ms Lavery could use a dictaphone in her left hand, or use a handset or voice recognition software. In this manner, she could work full-time. The wage identified for a lawyer was $1,865.00 per week.
Gallagher Bassett referred Ms Lavery to Dr Dalton, specialist in rehabilitation medicine, on 17 October 2006. In his report of 1 November 2006, Dr Dalton noted that Ms Lavery complained of pain affecting the entire posterior aspect of her right shoulder girdle of variable intensity. She attended the gym three times a week and did yoga once a week. She did not like using the stationary bike, but coped with the rowing ergometer. Ms Lavery accepted that she has chronic pain and that her condition is permanent. She took no medication other than occasional panadol.
Under “Diagnosis and Opinion”, Dr Dalton thought that Ms Lavery’s symptoms were suggestive of a regional myofascial pain syndrome, but she did not present with typical clinical findings associated with such a condition in that there was no increased sensitivity to palpation or movement and her pain appeared to be constant and not primarily related to movement or posture, though she reported an intolerance of sustained static posture. He thought Ms Lavery was very pain and disability focused and that there was an inconsistency with her reported loss of function and chronic disability, and her ability to exercise in the gym and carry out other activities. She did not present with the clinical features of a neuropathic pain disorder. There was no hyperalgesia or allodynia and she did not have evidence of trigger points or the typical tenderness irritability associated with myofascial pain syndrome. He accepted that, given her chronic history, Ms Lavery’s tolerance of prolonged computer based work was likely to be limited in the foreseeable future. Nevertheless, he added that she should be able to work full-time with the only reasonable restriction being that she should be allowed to have regular changes of posture. He thought that sustained computer based tasks would likely exacerbate her symptoms and that the use of voice activated software, a headset or other aid, should assist. He found no reasonable basis for the suggestion that she could only work six hours a day, three days per week. There was a wide range of work Ms Lavery was capable of performing, including her pre- injury employment as a lawyer.
Professor Cameron reviewed Ms Lavery on 2 May 2008 and reported to Dr Papamichos on 11 May 2008, having previously examined her in October 2003. He recorded that she continued to complain of generalised pain in her right upper extremity and in her head with some migraines. She was working twenty-four hours per week as a solicitor and had been doing so for six months. Her medication was paracetamol “as required”. Professor Cameron recommended that Ms Lavery continue working as a solicitor with her current hours and duties. In his view, it would be difficult for her to increase those hours. He thought that no specific treatment was required.
The only direct evidence from Dr Papamichos is in the form of four medical certificates dated 18 September 2007, 15 December 2007, 12 March 2008 and 18 July 2008. Each certificate contains the same diagnosis, namely, “myofascial pain syndrome (R) neck/trapezius/ (R) right arm”. He declared Ms Lavery fit for suitable duties for eight hours per day three days per week. Instead of identifying any specific restrictions, the doctor stated “use voice activated software headset and microphone”.
The appellant also relies on evidence from Dr Bodel, orthopaedic surgeon, who has examined Ms Lavery on several occasions. His latest report is dated 7 May 2008. He recorded that when Ms Lavery started with the appellant “there was a huge backlog of work” and that her workstation was relatively antiquated with a “large older styled dictaphone”. She also stated that the phone and computer were inappropriately set up and that her chair was of poor quality which all contributed to the onset of her symptoms. Within a few months of ceasing work she noticed that her symptoms had improved by approximately 40%, though she was left with an “annoying ache”. Her current work arrangements were very flexible. She usually tried to work on Monday, Tuesday and a Thursday, but if her symptoms were too severe she could work on other days or even on the weekend. She found using a voice-activated system to help a little. Keyboard activities caused migraine and she also got “tunnel vision”. She felt that she was struggling with the current level of work, which included family law work, probate, crime and general litigation.
Dr Bodel felt that any soft tissue injury caused by the nature and conditions of her work between May and July 1999 had long since resolved. On examination, he found no objective sign of musculoskeletal pathology to explain her ongoing complaints or that would prevent her from performing her full-time pre injury work in the law. He added:
“It would be prudent [for Ms Lavery] to take care with office based work activities and computer work in order to prevent the risk on any increasing symptoms. The use of a voice activated computer system will also assist her in that undertaking.
She should be capable of a trial of normal duties.”
In response to the question of whether he considered Ms Lavery fit for her pre injury employment, Dr Bodel stated:
“This lady should be fit for unrestricted work in the legal profession for which she has the appropriate levels of skill and training.
She should be able to cope with that work on a full-time basis.”
THE ARBITRATOR’S REASONS
In a Statement of Reasons (‘Reasons’) delivered on 13 January 2009, the Arbitrator made the following observations and findings:
(a)during the course of the arbitration it was suggested to Ms Lavery that the proceedings be adjourned to enable her to obtain legal representation. Ms Lavery declined that suggestion and stated that she wished to proceed with the arbitration (Reasons, at [5]);
(b)Ms Lavery referred to clinical notes from Dr Papamichos. Notwithstanding that a Direction for Production had been issued on that doctor by the appellant, no notes had been produced. In light of the non-production of any notes, Ms Lavery was again given the opportunity to either adjourn or discontinue the proceeding and again she declined to do so. The arbitrator formed the view that though Ms Lavery was “clearly anxious and in obvious distress throughout the conference and the arbitration”, she was capable and competent to make the decision to proceed (Reasons, [8]);
(c)she was convinced that Ms Lavery suffers from chronic pain syndrome as a direct consequence of the injuries sustained with the Appellant in 1999 and that she only has a capacity to work twenty-four hours per week as a solicitor, or in any similar position (Reasons, at [22]);
(d)Ms Lavery earns $750.00 per week in her current position, but has a capacity to earn at least $50.00 per hour for a twenty-four hour week ($1,200.00). The difference between that figure and her probable earnings before her injury ($1,863.00 per week) exceeds the statutory rate and the Arbitrator saw no reason to exercise her discretion to reduce the difference (Reasons, at [23]);
(e)Ms Lavery was entitled to payment of reasonable and necessary medical and related expenses (Reasons, at [24]), and
(f)a laptop computer was essential to assist Ms Lavery’s rehabilitation and its acquisition was reasonable and necessary (Reasons, at [25]).
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a)failing to decide the matter on the balance of probabilities, with the worker having the onus of proof;
(b)failing to address the appellant’s argument that the evidence relied upon by the worker did not comply with the test for an expert medical opinion explained in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 (‘Makita’) and in South Western Area Health Service v Edmonds [2007] NSWCA 16; (2007) 4 DDCR 421 (‘Edmonds’);
(c)in considering extraneous matters that were not in evidence before her;
(d)in finding the worker to be incapacitated for full time work as a solicitor, and
(e)in finding that the cost of a laptop computer was a reasonably necessary medical expense in the absence of any evidence supporting that view.
SUBMISSIONS, DISCUSSION AND FINDINGS
Ground One
It is submitted on behalf of the appellant, that:
(a)it was erroneous for the Arbitrator to conclude that if she were to find in favour of the Appellant, it would be tantamount to a credit finding against Ms Lavery;
(b)in order to accept the Appellant’s submissions, the Arbitrator did not have to be convinced that Ms Lavery “had consciously wilfully misled her treating practitioners for over nine years” (Reasons, at [22]);
(c)the issue of whether Ms Lavery has genuine pain may or may not be consistent with a finding in her favour. It is possible to have pain without it necessarily being connected to an injury that occurred almost ten years earlier. Similarly, it is possible to have ongoing symptoms from an injury and to be still capable of working full-time, and
(d)the Arbitrator’s “consideration” did not refer to any positive expert medical evidence supporting a finding in favour of Ms Lavery on the balance of probabilities. The inference to be drawn from the Arbitrator’s reasons is that she did not approach the issues from the correct legal perspective.
Ms Lavery has apparently prepared and filed her Notice of Opposition to Appeal Against Decision of Arbitrator, but has attached to that document submissions that have been prepared in two parts. Part A appears to have been prepared by Ms Lavery, but counsel prepared Part B. The following submissions have been made on her behalf:
(a)Ms Lavery has discharged her onus of proof on the balance of probabilities;
(b)the arbitrator’s reference to “I would have to be convinced Ms Lavery had consciously and wilfully misled her treating practitioners” was a reference to an acceptance, both by the Arbitrator and by treating medical practitioners, of Ms Lavery’s subjective complaints of pain leading to an inability to work at her pre-injury level;
(c)the issue of credit involved an acceptance or otherwise of Ms Lavery’s complaints of pain and it was open to the Arbitrator to accept those complaints;
(d)the Arbitrator accepted Ms Lavery’s experience of subjective pain as “real” and incapacitating;
(e)the critical question is Ms Lavery’s ability to earn her comparable earnings of $1,863.00 gross per week;
(f)Ms Lavery’s treating doctors accepted her subjective complaints stemming from the injury;
(g)the “critical question” of incapacity and its economic effect was not fully explored at the arbitration and the Arbitrator failed to apply the maximum amount prescribed by section 40(2)(a) of the 1987 Act;
(h)Ms Lavery did not get a chance to talk about or have explained to her the steps in Mitchell v Central West Area Health Service (1997) 14 NSWCCR 527 (‘Mitchell’) relating to the calculation of compensation for partial incapacity;
(i)when assessing Ms Lavery’s ability to earn in suitable employment, the Arbitrator did not take into consideration the fact that Ms Lavery currently pays for her own CLE and Practicing Certificate expenses totalling approximately $1,300.00 per annum, and
(j)the Arbitrator has approached the problem from the correct legal perspective and made a principled determination which was open to her on the facts.
Before dealing with the parties’ submissions, there are some preliminary matters that must require comment. The Arbitrator and the parties have failed to consider the principles stated by Jordan CJ in Aitkin v Goodyear Tyre & Rubber Co (Aust) Ltd (1945) 46 SR (NSW) 20 (‘Aitkin’). When a worker is currently working, his or her earnings are prima facie evidence of his or her ability to earn. It was therefore not open for the Arbitrator, in the absence of an appropriate finding, to determine Ms Lavery’s ability to earn to be $50.00 per hour for 24 hours per week when she is in fact paid $31.25 per hour. Neither side submitted on that approach and this requires that the matter be re-determined.
In Aitkin, Jordan CJ said (at 23):
“If, however, it is proved that his actual earnings are not a proper test, because there is some reason unconnected with his earning power which makes them lower than they should be, the other alternative, what he is ‘able to earn’, must be adopted. This is so where it is shown that he is deliberately taking lower-paid work than he could get, or is idling and on this account receiving less than he could be reasonably expected to obtain, or where his actual earnings have been compulsorily reduced by something unconnected with his injury or general earning power: Jones v Amalgamated Collieries; but, if the compulsory outside influence, instead of reducing, increases his actual earnings beyond what his injury would make him otherwise capable of earning, his actual earnings must be taken as the basis: Heaney v B A Collieries. If, however, he is not earning anything, or, for some good reason, what he is earning cannot be treated as a proper basis, regard must be had to the alternative basis provided by the section – what he is ‘able to earn’.”
The Court of Appeal considered and applied Aitkin in Pira Pty Ltd t/as Langdon & Bartley v Tucker (1996) 14 NSWCCR 26 (‘Tucker’) where Beazley JA said (at 31 and 32):
“In Aitkin, Jordan CJ held that the test to be applied in determining the rate of compensation to be awarded under section 11 for partial incapacity was, prima facie, the person’s actual earnings unless it is proved that the worker’s actual earnings are not a proper test, because there is some reason unconnected with the worker’s earning power which makes them lower than they should be.
Jordan CJ stated at 22 that this will occur where a worker is ‘deliberately taking lower paid work than he could reasonably be expected to get, or is idling...or if his actual earnings are compulsorily reduced by something unconnected with his injury or general earning power’. These are instances, or examples, only and do not represent an exhaustive list of the circumstances in which it will be inappropriate to apply the ‘prima facie’ test.
It is clear, not only from the statement of Jordan CJ but also from the manner in which this Court applied the test in Ludowici, that as a first step, one has to approach the matter on a prima facie basis and only move from that basis if the evidence establishes that the actual earnings are not, in the circumstances of the case, a proper test.”
The reference to Ludowici is a reference to JC Ludowici & Son Ltd v Cutri (1992) 26 NSWLR 580. In that case, Kirby P (as his Honour then was) held (at 593):
“Where the worker is earning, the average weekly amount produced thereby is normally to be taken as the paragraph (b) component of the equation. It is only otherwise where the decision maker concludes that the worker is able to earn more than that sum in some suitable employment. Then, but only then, is a notional sum taken into account.”
In assessing whether Ms Lavery’s current earnings are a “proper test” of her earning capacity, I note the evidence is that she is a highly educated woman with undergraduate and post graduate qualifications in law, is bilingual, has skills in planning, an excellent understanding of business and finance, and that her medical evidence has not attempted to explain why it is she is restricted to working only 24 hours per week as a solicitor. In these circumstances, it may well be open to find that her current earnings do not properly reflect her ability to earn, but as this issue has not been considered or argued by the parties I make no final determination about it.
There are further difficulties with this case that prevent me from re-determining the matter.
First, the critical question is not as simple as the question posed by Ms Lavery’s counsel in his submissions at [62(e)] above. The question is whether Ms Lavery has an incapacity for work and, if so, whether an economic loss has resulted from that incapacity (Arnotts Snack Products Pty Ltd v Yacob (1985) 155 CLR 171 and Ric Developments Pty Ltd t/as Lane Cove Poolmart v Muir [2008] NSWCA 155). More specifically, in the present case a determination must be made as to whether Ms Lavery’s actual earnings are a proper measure of her ability to earn. If they are not, then it will be necessary to determine her ability to earn. The dispute will then focus on whether Ms Lavery is fit for full time work as a solicitor without restriction (Dr Bodel) but is intentionally limiting her work performance (Dr Mitchell), or is restricted to selected duties for 24 hours per week (Dr Papamichos), or is fit for full-time selected duties with a limited tolerance for prolonged computer based work (Dr Dalton). In determining that dispute, it is essential that all the evidence (lay and expert) be considered.
Second, it should always be borne in mind that a finding of incapacity requires an application of a legal standard to the facts found. The Arbitrator or Presidential member must be satisfied, on the balance of probabilities, having regard to the whole of the evidence that, as a result of the work injury, the worker has an incapacity in the labour market reasonably accessible to him or her. The medical evidence is an important (often critical) part of the evidence on that issue, but it is not the only evidence that is relevant to the determination.
A medical expert is normally required to provide an explanation for his or her opinion. However, an expert does not have to explain every opinion (see Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157 (‘Red Bull’) at [88]-[89], and Giles JA in Adler v Australian Securities and Investments Commission [2003] NSWCA 131 at [631] – cited in Paino v Paino [2008] NSWCA 276 at [65]). As Weidberg and Dowsett JJ observed (at [89]) in Red Bull, “Some propositions may be so fundamental in a particular discipline as to be treated as virtually axiomatic.” For example, in the context in which the Commission operates, a doctor may not have to explain why a person with an accepted work related lumbar disc prolapse and resulting permanent impairment will be unfit for work requiring heavy lifting. The answer will usually be obvious. However, where the dispute concerns the connection between a more unusual condition, where the worker has no objective signs, and an alleged incapacity as a result of an inability to perform a relatively simple and common task, the Commission will usually be aided by an explanation of the basis for the doctor’s assertion that a significant restriction exists. In the absence of such an explanation, the doctor’s opinion will be of limited, if any, probative value.
In the present case, I agree that there are significant deficiencies in Ms Lavery’s medical case. It may well be that Ms Lavery’s doctors accept her subjective complaints and have based their conclusions on that acceptance, but they have not said so. The absence of an explanation for their conclusions does not necessarily defeat her claim, but it certainly makes the acceptance of her allegations more problematic. On the other hand, Dr Papamichos’ certificates were not the only expert evidence in the case and not the only evidence on incapacity. The Arbitrator was entitled to consider Ms Lavery’s evidence as to her continuing symptoms and the restrictions that resulted from those symptoms together with the evidence from Dr Bates (that she has a 10% permanent loss of efficient use of her right arm at or above the elbow as a result of her injury) in support of a conclusion that, on the balance of probabilities, Ms Lavery was and is incapacitated as a result of her injury. As the case must be re-determined and as there are several issues that have not been considered or argued, I express no view on whether she was right to accept that evidence.
Third, the Arbitrator failed to apply the maximum rate in section 40(2)(a) and this must be addressed.
Fourth, the parties have not properly addressed on the steps in Mitchell. The submission that Ms Lavery is not entitled to rely on Mitchell on appeal is incorrect. On review, a party is entitled to rely on a legal argument not presented at the arbitration provided the other party is not prejudiced and has had the opportunity to response. The additional arguments on incapacity presented on behalf of Ms Lavery have not prejudiced the appellant and it is appropriate for them to be raised.
Last, on the face of it, the appellant appears to have tendered more than one “forensic medical report,” in breach of clause 43 of the Workers Compensation Regulation 2003 (‘the Regulation’). Whilst Ms Lavery has not taken this point, the terms of clause 43 are clear and this issue must be considered at the re-determination.
In light of the above analysis and the fact that the matter must be re-determined, it is not necessary or appropriate for me to make findings on the remainder of the appellant’s submissions.
Ground Two
It is submitted on behalf of the appellant that:
(a)the medical certificates from Dr Papamichos made no comment as to whether Ms Lavery’s employment was a substantial contributing factor to the incapacitating condition nominated as “myofascial pain syndrome R neck/ R trapezius/ R arm” and the connection between the alleged condition and the restriction of hours of work is unexplained;
(b)the report of Professor Cameron of 11 May 2008 represented the only potential expert evidence supportive of Ms Lavery on the issues of causation and incapacity. On the issue of causation, Professor Cameron was unwilling to give support as he expressed Ms Lavery’s condition to be of “uncertain aetiology”;
(c)Professor Cameron did support Ms Lavery’s restriction of hours, as recommended by Dr Papamichos. However, he did not provide a basis for his view. In the absence of any reasoning process to explain why that was his opinion, his view was no more than a bare ipse dixit (Makita), and
(d)there is no medical evidence to explain why, because of any work related condition, Ms Lavery could function as a solicitor for three days per week but not five days per week. Given that the injury occurred almost ten years before hand and the incapacitating pain has no identifiable pathological basis, expert medical evidence on this point is critical to the case. By failing to explain the basis for his view on incapacity, Professor Cameron’s report fails the Makita test and leaves the worker with no supportive expert opinion on this issue.
It is submitted on behalf of Ms Lavery that:
(a)the appellant’s reliance on Makita and Edmonds is misplaced. Makita is authority for the proposition that a tribunal of fact is not bound to accept the opinion of an expert merely because there is no opposing opinion. It reminds the fact finder that the basis of any expert opinion and the reasoning used to arrive at a particular conclusion should be revealed. The ratio in Makita supports the Arbitrator’s determination to reject the Appellant’s experts;
(b)in Edmonds, the expert’s conclusions were rejected as a bare ipse dixit because there was no historical basis to connect the injury to the work activities. The situation is quite different in Ms Lavery’s case where the injury was reported and accepted by treating practitioners and liability for the injury not disputed. The insurer accepted incapacity over a long period of time, and
(c)an AMS has conclusively established Ms Lavery’s disability as permanent. There is an undisputed history of over use of the right arm (on a workstation up to sixty hours per week as well as a frank event (the crushing incident in the lift)) which provided the necessary history to validate the permanent loss and the conclusion concerning chronic incapacity.
The relevance of Makita and the shortcomings in Ms Lavery’s medical evidence have been discussed above. The submission that the evidence did not refer to employment being a substantial contributing factor to the condition of myofascial pain syndrome is misconceived. First, employment has to be a substantial contributing factor to the injury, not the incapacity. Second, the appellant never disputed that employment was a substantial contributing factor to the injury. Last, the assessment by Dr Bates that Ms Lavery has a permanent 10% loss of efficient use of her right arm as a result of her injury provides conclusive evidence that her condition (at least so far as her right arm is concerned) is work related, though it does not necessarily mean that she has an incapacity for work.
Ground Three
It is submitted on behalf of the appellant that:
(a)Ms Lavery was self represented at the arbitration and chose not to give oral evidence. During her submissions she repeatedly referred to matters not in evidence, and
(b)at paragraph [22] of her Reasons, the Arbitrator referred to “the presentation of the worker during the course of the conference/arbitration”. In circumstances where the worker did not give sworn evidence, her presentation was an irrelevant consideration and the Arbitrator’s reliance upon it constituted an error of law. The Arbitrator gave no indication during the course of the arbitration that this would be an important consideration and the appellant was neither given an opportunity to address her nor asked to comment upon it. Therefore, the Arbitrator’s error has led to a denial of procedural fairness. Ms Lavery’s presentation at the arbitration should not have been considered as evidence of her capacity for work as this is a medical issue which is not supported by any evidence.
It is argued on behalf of Ms Lavery that:
(a)Ms Lavery did not directly choose “not to give oral evidence”, but expressed a desire to clarify any matters for the Arbitrator (T13.15). She would have given sworn oral evidence, if required or indicated as necessary by the Arbitrator;
(b)the appellant chose not to seek to cross examine Ms Lavery;
(c)the Arbitrator was entitled to take Ms Lavery’s demeanour into account on a credit issue. That issue arose when the Arbitrator had to decide whether the pain alleged was real and incapacitating, and
(d)the Arbitrator’s impressions were properly taken into account as evidence. An Arbitrator’s finding about a witness is not susceptible to review unless a glaring inconsistency is revealed by other evidence or incontrovertible facts. The appellant has revealed no such inconsistency.
Whilst the Arbitrator referred to Ms Lavery’s “presentation” during the course of the conciliation and arbitration as a matter that, among other things, she considered “in particular” in reaching her conclusion (Reasons, at [22]), it is difficult to know exactly what it was about Ms Lavery’s presentation that the Arbitrator took into account, especially where Ms Lavery did not give evidence and was not cross-examined. An Arbitrator is entitled to take into account a witness’s demeanour when assessing his or her evidence, but should exercise caution when doing so in circumstances where the witness has not given oral evidence. If demeanour is a factor in an Arbitrator’s determination, the basis upon which it is thought to be relevant should be stated.
The approach to be adopted when the demeanour of a witness outside the witness box becomes an issue was discussed in Chaina v Alvaro Homes Pty Ltd [2008] NSWCA 353 (‘Chaina’) and Government Insurance Office of New South Wales v Bailey (1992) 27 NSWLR 304 (‘Bailey’). As Chernov JA observed (at [25]) in Chaina (referring to Kirby P in Bailey) “‘fairness and commonsense’ are the touchstone in the determination of whether the judge’s observations should have been disclosed to the party in question”. If a judge intends to act on observations of a witness out of sight of counsel he or she should disclose those observations to counsel and give an opportunity for submissions to be made. Where, however, the judge makes observations of matters that are clear for all to see there is generally no such obligation. Counsel for the appellant had every opportunity to observe and comment upon Ms Lavery’s demeanour. The Arbitrator’s comment involved no procedural unfairness, but was of limited, if any, relevance in the circumstances of the case.
Ground 4
The appellant submits that:
(a)the comprehensive section 40 assessment concluded that Ms Lavery was fit for full-time work as a solicitor. Dr Dalton agreed and specifically stated that the restriction to part time work was unreasonable. Dr Bodel agreed that Ms Lavery should be able to cope with work as a solicitor on a full-time basis, and
(b)the only expert medical opinions potentially contrary to the above were those of Dr Papamichos and Professor Cameron. That evidence was hopelessly flawed. In the alternative, they offer such weak support that they are overwhelmingly outweighed by the contrary medical evidence noted above.
It is submitted on behalf of Ms Lavery that:
(a)review based on an Arbitrator’s error of fact should be limited to an inspection of whether such glaring inconsistencies of fact are contained in the evidence;
(b)the finding of incapacity was open to the Arbitrator notwithstanding the expert opinions marshalled against Ms Lavery;
(c)the Arbitrator made no error in rejecting the opinions of the appellant’s doctors;
(d)Ms Lavery’s claim is supported by Dr Bates, Dr Papamichos and Professor Cameron;
(e)Dr Mitchell suggested that Ms Lavery should avoid unreasonable loading of the soft tissues of the neck and avoid fixed postures and in his second report he did not address Ms Lavery’s endurance, or the need to take breaks or to work on alternating days, and
(f)Dr Dalton accepted that the “chronic history” made it likely that computer based work tolerance would be limited. His view as to permanence was inconsistent with the view expressed by the AMS.
The issues raised in these submissions must be re-determined.
Ground 5
It is submitted on behalf of the appellant that:
(a)Ms Lavery purchased a laptop computer only ten days after she attended a rehabilitation assessment on 26 February 2007 during which she did not request a computer or suggest that she required her own computer in order to use the software, and
(b)there is no medical evidence to support the contention that a home laptop computer is reasonably necessary as a section 60 expense. The cost of a laptop computer does not fall within the definition of “occupational rehabilitation service” in section 59 of the 1987 Act. If it is to be construed as “medical or related treatment” under section 60 of the 1987 Act then there would need to be some medical evidence to demonstrate that it is reasonably necessary and there is no such evidence.
It is submitted on behalf of Ms Lavery that:
(a)the definitions in section 59 of the 1987 Act contemplate “assistance in arranging vocational re-education or training”;
(b)the appellant accepted that voice recognition software was a suitable aid to assist in the restoration of Ms Lavery’s pre injury earning capacity. The additional expense was conceded by the appellant if there was medical evidence to say it was reasonably necessary. The appellant’s medical evidence confirms its therapeutic utility in the present circumstances, and
(c)Ms Lavery said that she uses it “around everywhere” (T10.15). The Arbitrator’s decision that it was “reasonably necessary” in order to give practical effect to the recommendation for the voice activated software was logical and correct.
On the recommendation of Ms Steel, physiotherapist, in her report of 26 February 2007, the appellant paid for the cost of voice recognition software as a reasonably necessary rehabilitation expense in order to assist Ms Lavery obtain employment. There is no evidence that a laptop computer is reasonably necessary as a section 60 expense and the Arbitrator erred in allowing it.
OTHER MATTERS
The named appellant is not a legal entity. In Ms Lavery’s claim for lump sum compensation (Matter No 11488-04), she identified her employer as Terry McCabe, Peter Kapp, Chris Wood and Colin Pausey trading as McCabes Lawyers. The employer’s then solicitor did not dispute that pleading. At the request of the Commission in the present proceedings, the appellant’s current solicitors have advised by letter dated 29 April 2009 that the insured partners of McCabes Lawyers in 1999 were “McCabe, Wood, Pausey, Moss, Curll” and that the name on the “current policy is now ‘McCabe Terrill Lawyers Pty Ltd’”. Unless a service company employed Ms Lavery, the partners of McCabe Lawyers at the date of the injury are the proper respondents to the Application and they should be named, as they were in the claim for lump sum compensation. It is not relevant that the former employer is now known as “McCabes Terrill Lawyers Pty Ltd” and it should never have been named.
CONCLUSION
Having conducted a review on the merits (per Spigelman CJ in State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249; (2007) 5 DDCR 287 at [28]), I am of the view that the Arbitrator erred in her approach to the section 40 assessment and the allowance of the laptop computer. However, because of the unsatisfactory state of the evidence, I am not in a position to re-determine the matter and it must be re-determined by a different Arbitrator in accordance with the reasons in this decision.
I strongly urge Ms Lavery to obtain legal representation well before the next arbitration. It would not be appropriate for me to provide an advice on evidence, but it is obvious that the evidence (expert and lay) must be brought up to date and served prior to the next arbitration. The parties may also find it helpful to seek access to the Commission’s previous file in this matter (Matter No 11488-04).
DECISION
The Arbitrator’s determination of 13 January 2009 is revoked and the matter is remitted to a different Arbitrator to be determined afresh.
COSTS
Each party is to pay her or its costs of the appeal.
Bill Roche
Deputy President
30 April 2009
I, TUYET WALLIS, 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
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