McCarron v Franklins Ltd

[2005] NSWWCCPD 94

WORKERS COMPENSATION COMMISSION

APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:McCarron v Franklins Ltd [2005] NSW WCC PD 94

APPELLANT:  Patricia McCarron

RESPONDENT:  Franklins Ltd

INSURER:Allianz Australia Services Pty Ltd

FILE NUMBER:  WCC9882-03

DATE OF ARBITRATOR’S DECISION:          11 August 2004

DATE OF APPEAL DECISION:  23 August 2005

SUBJECT MATTER OF DECISION:                Decision by Arbitrator ‘on the papers’ against objection by the Applicant; whether a breach of procedural fairness.

PRESIDENTIAL MEMBER:  Acting Deputy President Robin Handley

HEARING:On the papers

REPRESENTATION:  Appellant: Gerard Malouf & Partners, Barristers and Solicitors

Respondent: Sparke Helmore Lawyers

ORDERS MADE ON APPEAL:  The decision of the Arbitrator is confirmed.

No order is made as to the payment of the costs of this appeal.

BACKGROUND TO THE APPEAL

1. On 8 September 2004, Patricia McCarron sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) in respect of a decision dated 11 August 2004.

1. The Respondent to the Appeal is Franklins Ltd.

1. Ms McCarron was born on 13 March 1950 and is aged 55. At the relevant time in late 2000, she was employed as a “fixture filler” (a shelf packer, fixing and placing goods on shelves) at Franklins’ store at Drummoyne. On 24 November 2004, she suffered pain in her left arm and shoulder after lifting and carrying stock. She reported this to the Assistant Manager of the store but continued working. She first sought treatment for the condition from her general practitioner in early December 2004. Over the next few months, Ms McCarron had various investigations and treatments and was ‘off work’.

1. On 1 February 2001, Ms McCarron lodged a claim for weekly compensation. She returned to work on light duties for reduced hours until being told not to return to work in October 2002. Since then she has been unemployed. Ms McCarron received weekly payments for partial and total incapacity until 16 October 2002, after which Franklins denied any further liability.

1. On 13 May 2003, the Commission received Ms McCarron’s ‘Application to Resolve a Dispute’ in respect of both her claim for weekly compensation from 17 October 2002 to date and continuing, Franklins having denied liability, and her claim for compensation for permanent impairment and pain and suffering, in respect of which Franklins had not made a decision. Franklins’ ‘Reply’ was received on 29 May 2003.

1. On 18 September 2003, the Arbitrator conducted a teleconference with the parties at which she directed Ms McCarron to submit to medical assessment of permanent impairment by an Approved Medical Specialist. On 28 October 2003, Ms McCarron was examined by Dr Roger Rowe, Orthopaedic Surgeon, who issued a Medical Assessment Certificate on 18 December 2003. Dr Rowe assessed the total amount of permanent impairment of Ms McCarron’s neck at 10% which was totally due to a pre-existing condition, Dr Rowe assessed the permanent loss of efficient use of her left arm at or above the elbow at 10% of which he assessed half due to the injury on 24 November 2000 and half due to a pre-existing condition, and he assessed the permanent loss of efficient use of her right arm at or above the elbow at 10% which was totally due to a pre-existing condition.

1. On 14 January 2004, Ms McCarron’s solicitors lodged an appeal against the Medical Assessment Certificate with the Commission. On 4 June 2004, the Registrar struck out the appeal on the basis that she was not satisfied that grounds for the appeal existed pursuant to section 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).

1. On 7 July 2004, a different Arbitrator conducted a further teleconference with the parties and decided to determine the matter ‘on the papers’ without holding a further conference or formal hearing. Franklins consented to this but Ms McCarron did not. On 11 August 2004, the Arbitrator issued the decision set out below.

THE DECISION UNDER REVIEW

1. The Certificate of Determination, dated 11 August 2004, 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. Respondent to pay the Applicant lump sum $3,750 pursuant to s66 of the Act in respect of 5% loss of efficient use of the left arm at or above the elbow, in accordance with the Medical Assessment Certificate of Dr Roger Rowe issued on 18 December 2003.

3. Respondent to pay the Applicant’s costs as agreed or assessed.”

1. In the Arbitrator’s ‘Statement of Reasons for Decision’, he summarised the resolution of the issues in dispute as follows:

“• On 24 November 2000, Patricia McCarron received an injury to her left arm arising out of or in the course of her employment as a packer with Franklins Limited.
• Patricia McCarron’s employment was a substantial contributing factor to the injury to her left arm.
• Patricia McCarron did not receive an injury to her right arm and neck arising out of or in the course of her employment with Franklins Limited.
• Patricia McCarron was not totally or partially incapacitated for work as a result of her injury to the left arm from 17 October 2002 to date.”

ISSUES IN DISPUTE

1. The issues in dispute before the Arbitrator were, first, whether Ms McCarron suffered an injury arising out of or in the course of her employment with Franklins, second, whether her employment was a substantial contributing factor to any such injury, third, whether she was totally or partially incapacitated for work as a result of that injury, fourth, for what periods, and fifth, what was her entitlement to weekly compensation, if any, in respect of those periods.

1. In relation to the Appeal, Ms McCarron’s solicitors submit that Ms McCarron was denied procedural fairness because she was not given the opportunity to present oral evidence. The parties’ submissions are discussed more fully below.

ON THE PAPERS REVIEW

1. Section 354(6) of the 1998 Act states:

“(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.”

1. I have had regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions by the parties. Ms McCarron’s solicitors submit that as a result of various matters raised in her medical evidence, the matter is not suitable to be dealt with on the papers and Ms McCarron should be given the opportunity to present oral evidence in support of her case. Franklins submits the matter should be dealt with ‘on the papers’, noting that Ms McCarron’s solicitors have not indicated exactly what further oral evidence is going to be provided and remembering that Ms McCarron has already provided a statement.

1. Having considered these submissions, 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

1. 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 first lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act. With regard to section 352(2), the amount of weekly compensation at issue exceeds $50,000 and comprises more than 20% of the amount awarded by the Arbitrator in the decision appealed against. Accordingly, I am satisfied that the section 352 threshold has been met, and I grant leave to appeal.

FRESH EVIDENCE

1. Fresh evidence on appeal is governed by section 352(6) of the 1998 Act, which states:

“(6)     Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.”

1. Practice Direction No.6 sets out the process for seeking leave of the Commission to give ‘new evidence’ on appeal. It provides as follows:

“New Evidence

Where a party seeks leave to give new evidence in relation to the decision appealed against, that party must serve a copy of the new evidence on the other parties to the dispute when serving the Application or Opposition.

In general, the Commission will allow new evidence to be introduced only where it can be demonstrated that the new evidence could not reasonably have been obtained by the party and tendered in proceedings before the Arbitrator and that failure to allow the new evidence would cause a substantial injustice in the circumstances of the individual case.”

1. Practice Direction No.6 also provides that if new evidence is sought to be relied upon, the Application or Opposition to the Appeal must contain:

   “ -a schedule of the new evidence,
     -a copy of the new evidence,
     -a brief outline of the new evidence and the reasons why it was not given in the
      proceedings before the Arbitrator, and
     -submissions why the new evidence should be admitted.”

2. Ms McCarron’s solicitors submit that Ms McCarron “should be given the opportunity to present oral evidence in support of her case”. However, they have not provided a supplementary statement from Ms McCarron, nor outlined what that evidence might encompass, nor explained why a supplementary statement was not provided by Ms McCarron after the issuing of the Medical Assessment Certificate on 18 December 2003 and before the teleconference conducted by the Arbitrator with the parties on 7 July 2004. I am also not satisfied that failure to allow the new evidence would cause a substantial injustice to Ms McCarron. Thus, I deny leave to introduce new oral evidence from Ms McCarron.

SUBMISSIONS

1. In the original submissions lodged by Ms McCarron’s solicitors, they submit:

“The Applicant should have been given the opportunity to present oral evidence in view of the opinion of Dr Rowe, which was accepted by the Arbitrator, that any incapacity alleged by the Applicant was due to non-organic element [sic] in her presentation. The Applicant was not granted procedural fairness and it is submitted that the Arbitrator should have referred the Applicant for a psychological assessment, which would have assisted in grounding the claim for incapacity. There is clearly conflicting medical opinions on the issue of injury.”

In further submissions, Ms McCarron’s solicitors set out her claim for weekly compensation.

1. Franklins submit Ms McCarron’s solicitors have “not provided any evidence or suggestion that the Commission was not satisfied that sufficient information had been supplied to it in connection with the proceedings”. Moreover, they have “not indicated exactly what further oral evidence was going to be provided, remembering that a statement from the Applicant had been filed in any event”. Franklins also submit that:

“the Arbitrator’s finding that Ms McCarron was not totally or partially incapacitated for work from 17 October 2002 to date was based on a careful weighing-up of the competing medical evidence, including the AMS certificate itself.”

EVIDENCE

1. At the time of Ms McCarron’s injury while working for Franklins, she was working full-time, packing shelves from 6.30am to 3.15pm on Monday to Friday, earning $501.70 per week. She had worked for Franklins since 1 March 1990. Her employment was terminated with effect from 17 October 2002. At that time, her weekly wage was apparently $516.70. She also worked on a part-time basis for Edenglassie Retirement Village as a dining room supervisor for four hours on Saturdays and Sundays every second weekend, earning approximately $90. She has apparently not done this work since 6 September 2001 (Dr Harvey’s report dated 3 February 2003).

1. Ms McCarron provided a statement dated 23 September 2003. She described the treatment she has had for her condition including physiotherapy, hydrotherapy and injections. After some time off work after the injury, she returned to work on light duties for four hours a day on five days a week but had to reduce this due to increasing pain. She stated that as a result of the injury, she has problems doing menial, day-to-day tasks and continues to suffer pain and discomfort from raising her arms, doing repetitive tasks and lifting. She suffers lowered self-esteem because “of how depressed I get, seeing that there isn’t anything that can be done to help me. I am easily aggravated and annoyed and sometimes take it out on my husband” (paragraph 32 of her statement).

1. Ms McCarron relied upon a number of medical reports in support of her claim. Her general practitioner, Dr SP Pastras provided a report dated 5 May 2003:

“In summary, Mrs McCarron developed adhesive capsulitis of her left shoulder which evolved into a bilateral cervico-brachial syndrome involving her neck and both shoulders with pain stiffness parasthesia and reduced function of her neck shoulder [sic] and radiating into both arms.

She has no past history of this problem and it appears caused by her activities as a Packer employed by Franklins. Despite multiple modalities her condition has become chronic with permanent deficit allowing her light duties with no lifting over 5 kg, avoiding repetitive pushing and pulling and as per Dr Adler’s advice to avoid elevating her left arm over 60 degrees in a repetitive fashion.

It appears she will need long term physical therapies, ie. Physiotherapy, supervised hydrotherapy or gym programs, medications and probable Orthopaedic specialist review for further intra articular injections or manipulations.”

1. Ms McCarron’s rehabilitation specialist, Dr Robert Adler, Consultant in Pain Management and Musculoskeletal Medicine, provided a number of reports. In his report dated 19 July 2003, he said that at the time he first assessed Ms McCarron in November 2001:

“I felt that there had arisen a right hand carpal tunnel syndrome, causing Mrs McCarron to overuse her left arm and thereby developing a left shoulder capsulitis. Despite development of this injury, she had continued with heavy lifting, giving rise to deterioration. I felt that there was a significant contribution from ongoing work related aggravation.”

1. Dr Adler last reviewed Ms McCarron in November 2002 when he “recommended that she was not fit to elevate her arm above sixty degrees, to perform repetitive forceful pushing/pulling, or lift loads of more than 5kg”.

1. Dr Howard Stenning, Practitioner in Musculoskeletal Medicine, in a report dated 28 August 2002, diagnosed chronic soft tissue damage and chronic pain state affecting Ms McCarron’s neck and both shoulders. In respect of the left shoulder, he also diagnosed tendonitis, capsulitis, impingement syndrome and carpal tunnel syndrome. He said Ms McCarron has a permanent injury and her occupation has been a substantial contributing factor.

1. Franklins also provided a number of medical reports in support of their case. Dr FJ Harvey, Orthopaedic Surgeon, in a report dated 3 February 2003, stated that Ms McCarron:

“could have had some underlying shoulder pathology originally. She may have had a mild capsulitis. At the present time however I don’t believe that her condition has a basis in organic disease.”

Dr Harvey said strenuous activity could have played some part in the development of a capsulitis of the shoulder. However, the condition is:

“mainly constitutional in nature. Her present presentation is not of a patient with capsulitis. I don’t think her very widespread complaint of pain and tenderness can be explained on the basis of any physical disease.”

1. Dr Peter Aldridge, Injury Management Consultant, in a report dated 11 June 2002, diagnosed adhesive capsulitis of the left shoulder. He said this condition may take one to four years to resolve “but the majority of cases do settle with time … permanently modified duties is the preferred rehabilitation option”. However, having seen a surveillance video of Ms McCarron with episodes dating from 10 to 15 September 2002 (a video made by Colgan and Associates Pty Ltd, accompanying their report dated 20 September 2002), Dr Aldridge commented:

“in stark contrast to the findings on examination in June, it seems that, three months later, Mrs McCarron has unlimited and free use of both her shoulders and upper limbs …

From my viewing of the video, it would seem that Mrs McCarron had absolutely no signs of residual capsulitis or limitation of the left shoulder and should be fit for full duties.”

1. Dr Philip Haynes, Consultant Occupational Physician, in a report dated 5 February 2003, said:

“Diagnosis: The information available to me today suggested she had previous adhesive capsulitis affecting her left shoulder. I am unable to account for alleged widespread symptoms in her neck, upper back and in both shoulders and arms on any organic basis.

Attributability: In my opinion Mrs McCarron is not suffering from any genuine work related condition.

I note she was diagnosed as having adhesive capsulitis in late 2000. This is a common constitutional condition affecting middle aged women. I am rather doubtful that there was ever any work related component in regard to the adhesive capsulitis. In any case such a condition should have resolved over a 12 month period.

Mrs McCarron in now alleging symptoms which involve the neck, upper back and both arms. I do not believe that any genuine work injury has caused these alleged symptoms.”

1. The Approved Medical Specialist, Dr Roger Rowe, Orthopaedic Surgeon, in his Medical Assessment Certificate dated 18 December 2003, stated:

“My assessment, based on all the information available and my own examination of her is that she developed frozen shoulder precipitated by the nature of her work on 24 November 2000. This has improved but has left her with mild residual symptoms. The development of similar pathology in the right shoulder about one year later is totally unrelated to her employment as is the subsequent development of widespread neck and upper back symptoms. It is noted that her right shoulder and neck symptoms have not been subjected to any investigation at all.”

Dr Rowe said the report prepared by Colgan and Associates Pty Ltd “supports the view that there is a non-organic element in her presentation”. Dr Rowe’s assessment of the degree of permanent impairment affecting Ms McCarron is set out in paragraph 6 above.

DISCUSSION AND FINDINGS

1. The role of the Presidential Member on appeal is to review the Arbitrator’s decision as a whole. The review is not a rehearing. In this case, Ms McCarron must demonstrate that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172; The King Island Company Limited v Deery [2005] NSW WCC PD 1) in order to enliven the Presidential Member’s power to interfere with the Arbitrator’s decision pursuant to section 352(7) of the 1998 Act.

1. Ms McCarron’s solicitors’ principal submission is that she was denied procedural fairness because the Arbitrator did not afford her the opportunity of presenting oral evidence. It is not in dispute that while Franklins agreed at the teleconference to the matter being dealt with by the Arbitrator ‘on the papers’, Ms McCarron’s solicitors did not do so. The Arbitrator referred to this in his Statement of Reasons but said that, nevertheless, in all the circumstances of the case, he was satisfied that the documents before him were sufficient to enable him to exercise his functions under the 1998 Act without holding any further conference or formal hearing. Franklins submits that Ms McCarron’s solicitors have not indicated what further oral evidence was going to be provided, remembering that a statement from Ms McCarron dated 23 September 2003 had been provided.

1. Section 354(6) of the 1998 Act, which empowers the Commission to make a decision ‘on the papers’ without holding a conference or formal hearing, is quoted in paragraph 13 above. The Commission’s Practice Direction Number 1 sets out the factors that may be relevant to such a decision. These include:

“•Whether one or both parties have requested a decision on the papers.
•Whether there are questions as to the credit of the applicant or a witness.
•The financial or other ramifications of the dispute for any party.
•The complexity and substance of the legal and factual issues involved.”

1. Rule 77(3) of the Workers Compensation Commission Rules 2003, states that a party applying for leave to appeal against the decision of an Arbitrator must include with the application full details of the arguments to be put in favour of the review and any new evidence in respect of which leave is sought to be given on an appeal pursuant to section 352(6) of the 1998 Act. I note that Ms McCarron’s solicitors have said in their submissions that Ms McCarron “should have been given the opportunity to present oral evidence in view of the opinion of Dr Rowe, which was accepted by the Arbitrator, that any incapacity alleged by the Applicant was due to non-organic element [sic] in her presentation”. However, her solicitors have not explained what the character of the excluded evidence might have encompassed, and as I have already indicated above in relation to Ms McCarron’s solicitors’ application for leave to introduce new evidence, there is nothing in their submissions to indicate that a substantial injustice might have been done to Ms McCarron as a result of her not being permitted to give oral evidence before the Arbitrator. In particular, Ms McCarron’s solicitors had the opportunity to seek leave to file a supplementary statement from Ms McCarron after the Medical Assessment Certificate was issued on 18 December 2003 and before the teleconference conducted by the Arbitrator with the parties on 7 July 2004, but did not seek to do so.

1. I note that in making his decision, the Arbitrator took into account Ms McCarron’s statement of 23 September 2003, to which he refers in his Statement of Reasons. I have also reviewed the medical evidence, outlined above. The Arbitrator’s Statement of Reasons indicates that he properly weighed the medical evidence and Ms McCarron’s evidence in reaching his decision (Michael Badaoui v Email Limited [2003] NSW WCC PD 6, at paragraph 25), and I am not satisfied in the circumstances of the case that there was any breach of procedural fairness or that the Arbitrator made a discretionary error in deciding to determine the matter on the papers.

1. Ms McCarron’s solicitors also submit that the Arbitrator should have referred Ms McCarron “for a psychological assessment which would have assisted in grounding the claim for incapacity”. I note that it is not the Commission’s responsibility to seek to make a party’s case. If Ms McCarron’s solicitors considered it was necessary to arrange a psychological assessment, it was open to them to do so and, if necessary, seek leave for the late admission of the resultant report. Certainly, there was conflicting medical opinion on whether Ms McCarron had an ongoing incapacity for work as a result of the injury she received in the course of her employment with Franklins. However, it is part of the role of the Commission to weigh up such evidence and make appropriate findings on material questions of fact with a view to applying the relevant law and reaching a considered decision. In my view, there is nothing to suggest the Arbitrator made any error in so doing.

1. I am not satisfied that Ms McCarron’s solicitors have made out their grounds of appeal, nor that there was any legal, factual or discretionary error made by the Arbitrator, whose decision must, therefore, be confirmed.

DECISION

1. The decision of the Arbitrator is confirmed.

COSTS

1. No order is made as to the costs of this appeal.

Robin Handley

Acting Deputy President  

23 August 2005

I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ROBIN HANDLEY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

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