Medina Property Services Pty Limited v Santos - [2007] NSWWCCPD 47

WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION
CONSTITUTED BY AN ARBITRATOR
CITATION:Medina Property Services Pty Limited v Santos [2007] NSWWCCPD 47
APPELLANT:  Medina Property Services Pty Limited
RESPONDENT:  Maria Etelvina Santos
INSURER:QBE Workers Compensation (NSW) Limited
FILE NUMBER:  WCC4065-06
DATE OF ARBITRATOR’S DECISION:          19 June 2006
DATE OF APPEAL DECISION:  13 February 2007
SUBJECT MATTER OF DECISION: Factual error, section 9A of the Workers Compensation Act 1987.
PRESIDENTIAL MEMBER:  Acting Deputy President Michael Snell
HEARING:On the papers
REPRESENTATION:  Appellant: Diana Benk, QBE Workers Compensation – In House Legal
Respondent: Steve Masselos & Co

ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 19 June 2006 is confirmed.
The Appellant Employer is to pay the costs of the appeal.

BACKGROUND TO THE APPEAL

On 12 July 2006 Medina Property Services Pty Limited (‘the Appellant Employer’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 19 June 2006.

The Respondent to the Appeal is Maria Etelvina Santos (‘the Respondent Worker’).

The Respondent Worker was employed by the Appellant Employer as a cleaner, at the Medina Classic Apartments in Randwick. She commenced in this employment from about 1987, when she and her family came to Australia from her native Portugal. She would work five or six days per week. She said she began to notice symptoms in her right hand from about early 2002, and then similar problems in her left hand. She gave evidence that she reported the problem in November 2002, and stopped work in December 2002. She said she was off work until August 2003, when she started performing lighter housekeeping duties, on a part-time basis, at Medina Apartments in Darling Harbour. She ultimately was working seventeen hours per week carrying out these part-time light duties (T4 to 5). She claimed compensation; the claim form is dated 6 January 2003. The Appellant Employer initially accepted liability to pay compensation benefits. This included making voluntary payments pursuant to section 40 of the Workers Compensation Act 1987 (‘the 1987 Act), while she was on part-time duties (T5.25).

By letter of 8 April 2005 the Appellant Employer declined further voluntary liability as from 19 May 2005, relying upon a report it had obtained from Dr Muratore dated 30 March 2005, which indicated the Respondent Worker’s condition, in that doctor’s opinion, was of a purely constitutional nature. On 1 June 2006 the Appellant Employer advised the Respondent Worker there was insufficient work to keep her employed, and she should not return to work unless contacted. The Respondent Worker has not worked since that time.

The Application to Resolve a Dispute, registered on the Respondent Worker’s behalf on 16 March 2006, pleaded injury on 30 December 2002 (being the alleged date of notice), and described the injury as “The nature and conditions of the Applicant’s employment as a cleaner caused, aggravated, exacerbated and/or accelerated the injuries referred to above”. The injuries “referred to above” were “Left and right arms”. The wording of the allegation invokes the ‘disease’ provisions of the 1987 Act. The relief claimed was weekly compensation from 19 May 2005 on a continuing basis, an order for the payment of medical, hospital or related expenses pursuant to section 60 of the 1987 Act, and lump sum compensation pursuant to sections 66 and 67 of the 1987 Act, in respect of an alleged 21% whole person impairment.

The Reply filed on the Appellant Employer’s behalf on 5 April 2006 placed in issue ‘substantial contributing factor’ (section 9A), incapacity, earnings, the extent of the Respondent Worker’s residual earning incapacity, and liability pursuant to section 60.

The matter was listed for arbitration hearing on 14 June 2006. Both parties were represented by counsel. The Respondent Worker gave evidence and was cross-examined, both counsel addressed, and the arbitrator delivered an ex tempore decision. Towards the conclusion of the arbitration hearing, indeed after the arbitrator had announced his award, the Respondent Worker’s counsel discontinued the claim pursuant to sections 66 and 67 (T53). Thus the award related only to the claims for weekly compensation and section 60 expenses.

THE DECISION UNDER REVIEW

The ‘Certificate of Determination’, dated 19 June 2006 records the Arbitrator’s orders as follows:

“1.There is an award for the Applicant in respect of the Applicant’s claim for weekly compensation pursuant to s.40 of the Workers Compensation Act 1987, for the period from 19/5/2005 to date and continuing, at the statutory rate for a single worker with no dependants.
2.There is an award for the Applicant in relation to the Applicant’s claim for medical costs incurred to date, pursuant to s.60 of the Workers Compensation Act 1987.
3.The Respondent is to pay the Applicant’s costs as agreed or assessed

A brief statement of reasons for determination, in accordance with Rule 73 of the Workers Compensation Commission Rules 2003, is attached.”

The attached Statement of Reasons largely recited the formal orders, while noting “A sound recording of the reasons given is available to the parties.” Those reasons are transcribed, and are to be found commencing at T41.10 of the transcript.

ISSUES IN DISPUTE

The issues raised by the Appellant Employer in its Grounds of Appeal are:

(i)The arbitrator erred in finding the Respondent Worker had sustained injury, this finding being against the evidence and the weight of the evidence.
(ii)The arbitrator erred in finding employment to have been a substantial contributing factor, in that he failed to have proper regard to the meaning of the word “substantial”, and misinterpreted the decision of Mercer v ANZ Banking Group Limited (2000) 48 NSWLR 740 (‘Mercer’).
(iii)The arbitrator erred in finding the Respondent Worker’s ability to earn was limited to seventeen hours per week light duties as a room attendant and supervisor, as this was against the evidence and the weight of the evidence.

The Respondent Worker, in her Notice of Opposition to the appeal, contends the various findings referred to in the preceding paragraph were open to the arbitrator on the evidence, and that the arbitrator did not misinterpret Mercer.

The submissions in the Appellant Employer’s Application to Appeal are supplemented by Further Submissions, lodged under cover of letter dated 22 August 2006, after the transcript became available.

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.”

The Appellant Employer, at point 2.5 of its Application to Appeal, under the heading “Supporting Documentation”, submits the appeal can be dealt with on the basis of the written material only. However in the written submissions attached to that Application, the Appellant Employer submits there should be an oral hearing. In support of this, firstly it is submitted such a hearing would better enable the parties to deal with each others competing submissions. Secondly, it is submitted an oral hearing would give the Appellant Employer the opportunity to make supplementary submissions once transcript became available. Thirdly, it is submitted an analysis of the medical evidence, said to be central to the appeal, would be best dealt with on an oral hearing.

The second of these points made by the Appellant Employer has become irrelevant. The Appellant Employer made supplementary written submissions, after transcript became available. As regards the first and third points, I have the medical evidence, and transcript of the submissions relating to it, which were before the arbitrator. I also have the written material from both parties lodged in this appeal. The Respondent Worker submits the material is “not complicated”, and if leave to appeal is granted, the matter should be dealt with “on the papers”. The issues are relatively well confined, and the issues on the appeal are not unusually complex.

Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the Respondent Worker that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.

LEAVE

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 quantum of the weekly award of compensation exceeds the figure of $5,000.00 prescribed in section 352(2) of the 1998 Act, as is properly conceded by the Respondent Worker in her submissions. The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act. However the Respondent Worker submits section 352 provides a discretion, and leave to appeal should not be granted to the Appellant Employer, as the arbitrator’s decision was clearly available on the evidence.

On balance, the interests of justice are best served in my view, by granting leave to appeal, and considering the Appellant Employer’s appeal on its merits.

DISCUSSION AND FINDINGS

The Nature of the Review Process on Appeal

In approaching this appeal, it is necessary to bear in mind the role of a Presidential member in conducting a review pursuant to section 352(5) of the 1998 Act. In The King Island Company Limited v Deery [2005] NSWWCCPD 1 it was held:
“19. A Presidential Member on appeal has a specific and limited role in the review of a decision of an Arbitrator. The review is not a rehearing. The Presidential member is not dealing with the matter de novo and is not arriving at a fresh decision based on all of the evidence available at a later time (Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616). The powers of the Presidential Member to revoke the decision pursuant to section 352(7) of the 1998 Act and to substitute a new decision in its place, are exercisable only where it is demonstrated that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172). Alternatively, the Presidential Member may remit the matter back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions made.”
In Snow Confectionary v Askin [2004] NSWWCPD 56 (‘Snow Confectionary’) Fleming DP said:
“15. An Arbitrator’s decision should not be disturbed unless, on review, it is found to be affected by an error of law, fact or discretion (Allesch v Maunz (2000) 203 CLR 172, Mayne Health Group t/as Nepean Private Hospital v Sarah Sandford [2002] NSW WCC PD 6). The error must be such that, but for it, a different decision should 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 jurisdiction of a Presidential member on appeal is to “review” the decision of an Arbitrator. It is not intended that this review become a hearing de novo of the dispute (Mayne Health Group t/as Nepean Private Hospital v Sarah Sandford [2002] NSW WCC PD 6, Ross v Zurich Workers Compensation Insurance [2002] NSW WCC PD 7).
The review process is not restricted only to correcting error of the kind identified in House v R (1936) 55 CLR 499. In Aluminium Louvres & Ceilings Pty Limited v Zheng [2006] NSWCA 34 Bryson JA said:
“38 A review is a different process to an appeal and the matters which may be considered and the manner in which they may be considered are somewhat wider. See Boston Clothing Co Pty Ltd v. Margaronis (1992) 27 NSWLR 580 at 584 (Kirby P). An attack, on review or otherwise, on an Arbitrator's discretionary decision in controlling procedure may be based on the test stated in House v. R (1936) 55 CLR 499 at 504 - 505; but that is not the only basis on which the Presidential member may act. The powers of a Presidential member on review are somewhat wider and extend to power to reopen consideration of a matter of which an Arbitrator has disposed; the manner in which the powers of the Presidential member are to be exercised is itself the subject of discretion of the Presidential member.”

Injury

The first of the grounds of appeal relied upon by the Appellant Employer, contends the arbitrator erred in finding the Respondent Worker suffered injury arising out of or in the course of her employment. It is said such finding was against the evidence and the weight of the evidence. The list of “issues in dispute”, in the Appellant Employer’s Reply, did not actually place in issue the question of whether the Respondent Worker had suffered injury. It does not appear the Appellant Employer sought to amend its Reply during the course of the arbitration hearing, to place ‘injury’ in issue.

Notwithstanding this, the arbitration hearing was conducted on the basis ‘injury’ was a matter in issue. It was the first issue on which the Appellant Employer’s counsel addressed (T14.25). He made it clear such submissions went to the issue of whether the Respondent Worker had suffered injury, rather than the question of whether section 9A was satisfied (T20.50). The issue of ‘injury’ was approached largely as a medical issue, having regard to the divergence of medical opinion in the case, regarding whether the condition of carpal tunnel syndrome was related to the Respondent Worker’s work duties.

The Respondent Worker’s counsel also addressed on the issue of injury. The arbitrator dealt with the issue in his reasons, describing the “critical legal dispute between the parties at this stage” as being “the causation of the applicant’s injury and the link between her employment and that injury”. (T41.10)

It has been said “in the informal, less technical environment of the Commission it is not necessary or desirable to rely upon strict pleadings to define the issue between the parties”. However a party should be given notice of the case he is to meet, and be afforded procedural fairness: Far West Area Health Service v Radford [2003] NSWWCCPD 10. Notwithstanding the issue of ‘injury’ was not raised in the Reply, the parties have conducted the litigation on the basis it is a live issue, with no objection being raised to the Appellant Employer agitating it. The Respondent Worker does not take the point on this appeal. Accordingly, it would be inappropriate that I regard the Appellant Employer as precluded by its pleading, from raising the issue on this appeal.

In its submissions on the appeal, the Appellant Employer refers to Dr Patrick (a surgeon qualified in the Respondent Worker’s case) as supporting her position on causation. It is submitted the other doctor to support the causal connection is Dr Lyons (a treating hand surgeon). It is properly conceded the report of Dr Lyons addressed to the Appellant Employer’s insurer, dated 24 February 2003, which on its face expresses a contrary view, “appears to contain a typographical omission”. However it is submitted the views of Dr Lyons are “couched in negative terms”, and therefore “his opinion does not carry any significant weight”. The Appellant Employer notes Dr Dilley (also a treating hand surgeon) saw the Respondent Worker for the specific purpose of considering the advisability of surgery, and does not express any view on “injury” or section 9A of the 1987 Act. The Appellant Employer refers to material adduced on its behalf from Drs Harris, Rowe, Parameswaran and Muratore, all of whom formed the view the carpal tunnel syndrome suffered by the Respondent Worker was constitutional. It is then submitted “on an objective appraisal of all of the medical evidence it is clear that the preponderance of it must lead to the conclusion that the Respondent/Worker’s diagnosed carpal tunnel syndrome was unrelated to the nature and conditions of her employment”.

There was considerable evidence from the Respondent Worker on the nature of her employment duties, contained in her original statement of 8 April 2004, her supplementary statement of 13 June 2006, and her oral evidence. In reviewing the evidence on ‘injury’, the arbitrator set out in some detail the evidence of the Respondent Worker, regarding her employment duties with the Appellant Employer (at T41.50 to 42.35). The duties described are repetitive and physically strenuous. It is true, as is submitted on the Respondent Worker’s behalf, that such evidence was unchallenged.

When he came to review the medical evidence, the arbitrator noted Dr Patrick “took a good history and particularly noted the activities that the applicant had to undertake, the rapid, repetitive nature of the work…” (at T42.50). He said the report of Dr Lyons dated 6 April 2004 gave “clear support for the applicant that if not that work was the cause, it was at least partially responsible for her condition or the exacerbation of her condition” (at T44.25). In my view the arbitrator was correct to interpret Dr Lyons’ view in this way. The Appellant Employer criticises Dr Lyons for expressing his view in negative terms, and submits his opinion does “not carry any significant weight” as a consequence. Whilst Dr Lyons’ opinion may have been better expressed without the use of a double negative, it is apparent, in the report of 24 February 2003, that Dr Lyons regarded the Respondent Worker’s “heavy, repetitive tasks as a cleaner” as having “caused or at least exacerbated the current symptomatology”.

The arbitrator dealt in turn with the various medical reports on which the Appellant Employer had relied. He said (with justification) the report of Dr Harris, by implication, conceded the possibility other than constitutional factors had played a role, in the development of what Dr Harris regarded as a predominantly constitutional condition (at T43.45).

The arbitrator regarded the report of Dr Rowe as “deficient” due to the lack of a recorded detailed history of the employment activities the Respondent Worker undertook in her work with the Appellant Employer (at T44.5). The Appellant Employer, in its supplementary submissions, says Dr Rowe is a very experienced orthopaedic surgeon, and “he would have obtained a history sufficient for him to determine his opinion regarding causation”. Whether he did or not is not apparent from his report, or from any other evidence placed before the arbitrator. In my view the approach taken by the arbitrator is consistent with the decision of the NSW Court of Appeal in Makita (Australia) Pty Limited v Sproules (2001) 52 NSWLR 705:

“The basal principle is that what an expert gives is an opinion based on facts. Because of that, the expert must either prove by admissible means the facts on which the opinion is based, or state explicitly the assumptions as to fact on which the opinion is based. If other admissible evidence establishes that the matters assumed are ‘sufficiently like’ the matters established ‘to render the opinion of the expert of any value’, even though they may not correspond ‘with complete precision’, the opinion will be admissible and material: see generally Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 at 509-510; Paric v John Holland (Constructions) Pty Ltd (at 846; 87). One of the reasons why the facts proved must correlate to some degree with those assumed is that the expert’s conclusion must have some rational relationship with the facts proved.” (per Heydon JA at [64])

No attempt was made to prevent the report of Dr Rowe from being used. In my view it was valid that the arbitrator regarded it as being of limited persuasive weight, in the absence of some greater indication of the doctor’s understanding of the nature of the Respondent Worker’s employment duties, on which he based his views regarding causation.

The arbitrator referred to the report of Dr Parameswaran, noting it was a single report “back in 2003”, and that Dr Parameswaran at that stage suggested further studies be undertaken. There was no later report from that doctor (at T44.40). The arbitrator referred in some detail to the reports of Dr Muratore. He noted the earlier of these appeared to leave open the possibility the Respondent Worker’s condition was in part work related (at T44.50). He regarded the later report, of 30 March 2005, as lacking in convincing analysis, to explain the doctor’s opinion the Respondent Worker’s carpal tunnel condition was entirely constitutional.

Having reviewed the medical evidence, the arbitrator also regarded as significant the fact that the Respondent Worker’s condition had improved during the period from December 2002 to August 2003, while she was not working. Thus, the arbitrator noted the unchallenged evidence of the Respondent Worker’s duties, gave considered reasons for finding the medical evidence which supported the Respondent Worker’s case more persuasive than that which opposed it, and concluded:

“I would find on balance that it was – that on the balance of probabilities her condition was caused by her employment, there being, as I’ve noted, no significant opinion, detailed opinion, advanced as to what the constitutional factors were apart from the fact that the applicant was female, I think, and of an age. I personally don’t find her overweight.” (at T46.40)

A further factor the arbitrator did not refer to, although he could have, is that the Appellant Employer paid the Respondent Worker voluntary workers compensation benefits from December 2002 to May 2005. Implicit in such acceptance of liability was an acceptance the Respondent Worker had sustained injury, that is, that there was a causal link, either by way of cause or aggravation, between her employment duties and the carpal tunnel condition. The payment of compensation does not give rise to an estoppel, but it can operate, in an appropriate case, as an admission: APD Snack Foods v Vuic [1984] WCR 62; Anderson v Charles Sturt University (2002) 25 NSWCCR 407.

In my view, the way in which the arbitrator dealt with the question of “injury” does not demonstrate any error, which would justify my interference on review. He has considered the evidence overall, both medical and lay, and has expressed valid views for finding the medical evidence in the Respondent Worker’s case more persuasive than that which opposed it.

Section 9A – Substantial Contributing Factor

The Appellant Employer asserts two related errors, in how the arbitrator dealt with the issue of ‘substantial contributing factor’. Firstly, it is said he erred in his interpretation of Mercer. The error is said to be that he “appears to believe that in all circumstances the ‘level of causation’ required in relation to S.9A is lower than the ‘level of causation’ required to be established under S.4” (Appellant Employer’s Supplementary Submissions at [8]). The second error asserted is that the arbitrator “failed to have considered the provisions of S.9A(3)”, which provides:
“A worker’s employment is not to be regarded as a substantial contributing factor to a worker’s injury merely because of either or both of the following:
(a) the injury arose out of or in the course of, or arose both out of and in the course of, the worker’s employment,
(b) the worker’s incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or occupational rehabilitation service as referred to in Division 3 of Part 3, or the worker’s death, resulted from the injury.”
The Appellant Employer’s Reply raised section 9A in the following terms:
“The Respondent says that the Applicant’s employment is no longer a substantial contributing factor to her alleged ongoing symptoms.” (my emphasis)
To raise the issue in this way suggests the real issue the Appellant Employer was raising was whether there was an ongoing causal relationship between any injury the Respondent Worker had suffered, and any ongoing incapacity. Section 9A concerns itself with a different question, being the relationship between injury, and the work activity being carried out when the injury is sustained, “it is the strength of the causal linkage that is in question”: Mercer at [17]. In Mercer Mason P said:
“The worker correctly submits that the words ‘employment concerned’ in s 9A reinforces the view that it is the work activity in which the worker was engaged at the time of the injury that is relevant. The ultimate question is whether that activity or task was a substantial contributing factor to the injury, bearing in mind that the concept of a ‘substantial contributing factor to an injury’ is exegeted in subss (2) and (3) of s 9A.” (at [22])
This passage was quoted with approval in Workcover Authority v Walsh [2004] NSWCA 186 (‘Walsh’) at [91], and in Murray v Shillingsworth [2006] NSWCA 367 (‘Murray’) at [56]. If the strength of this causal linkage is sufficient to satisfy section 9A, then compensation is payable in respect of the injury. It remains necessary for a worker to demonstrate (in a weekly compensation claim) that incapacity for which compensation is sought results from the injury, but this is a question separate from the operation of section 9A.
Thus, although the Reply raises an issue regarding “substantial contributing factor” (the words used in section 9A), it may well be the issue being raised was one of whether incapacity resulted from injury, rather than a genuine issue pursuant to section 9A.
The question of whether section 9A was satisfied was raised only in passing by the Appellant Employer’s counsel, when addressing the arbitrator on the medical evidence. At one point, in an interchange, the arbitrator used the phrase “substantial cause” (apparently alluding to section 9A), and the Appellant Employer’s counsel made it clear his submissions were on the topic of ‘injury’, not section 9A (T20.50). Thereafter he alluded to section 9A only briefly, in reply, when he said:
“What you’ve got is four doctors. They’re all saying the same thing but they’re all giving an expression of opinion, i.e. that the applicant did not sustain an injury in the course of her employment and, if she did sustain an injury in the course of her employment as described in section 4, which is the case presented by the applicant, as it were, through Dr Patrick’s opinion, then employment – the opinion of the four doctors that I’m relying on is that the employment was not a substantial contributing factor – a substantial contributing factor – to that injury because it’s constitutionally based and it occurs over time, irrespective of work activities or force.”
Notwithstanding the reference to “substantial contributing factor”, this submission appears to relate to the question of whether, on medical evidence being urged upon the arbitrator, the Respondent Worker had sustained ‘injury’ at all.
There may be circumstances where a work event is a minor cause, along with other factors causing an injury, such that section 9A is not satisfied. In Dayton v Coles Supermarkets Pty Limited (2001) 21 NSWCCR 46 (‘Dayton’) Giles JA said:
“It is evident that, so far as his Honour had expressed a view as to the meaning of “substantial” in the abstract, it was not determinative to his conclusion. His reasoning was that the contribution of the stresses if they were employment factors, meaning as I understand it the contribution of the appellant’s employment as a factor in the causation of the appellant’s schizophrenia by reason of the stresses, was minor in comparison with the two other factors which he regarded as substantial, and did not amount to a substantial contributing factor. It was sufficient for his Honour’s conclusion that a contributing factor which was minor relative to other and substantial contributing factors was not a substantial contributing factor.
It may be the Appellant Employer, in the passage referred to at [42] above, was submitting that, if the arbitrator was satisfied work duties had played some causal role in the Respondent Worker’s carpal tunnel syndrome, the relative contribution was so minor that section 9A was not satisfied. However it is fair to say the operation of section 9A did not feature large in the conduct of the arbitration hearing.
The passage of the arbitrator’s reasons, which the Appellant Employer submits reveals error in the application of section 9A and the decision in Mercer, is at T46.50 to 46.55:
“So my decision in relation to liability is that the applicant’s condition of carpal tunnel syndrome arose out of her employment and, as I understand the authorities, certainly the leading case of Mercer v ANZ Banking Group established that the level of causation relevant for employment to be regarded as a substantial contributing factor is lower than that required to be established and found that the injury arose out of employment. And as I’ve determined that her condition arose out of the employment, I also find that the applicant’s work was a substantial contributing factor to the development of her carpal tunnel syndrome.”
The relevant passage in Mercer reads:
“32    In the present case Bishop CCJ held (at [31]) that the addition of the word “substantial” to “contributing factor” in s9A, combined with the provisions in subs (3), led to the conclusion that “a substantial contributing factor” is as stringent a concept as that of “arising out of” the employment, if not more so. I do not agree. The requirement that employment be a contributing factor to the “injury” is not equivalent to the expression “arising out of the employment”. It is not easy to apply a causation requirement to a provision which continues to define “injury” as including injury arising in the course of employment. However, work has to be found for all of the words used, unless this proves an impossible task. Section 9A(3)(a) does not preclude this, because it goes no further than deeming employment not to be a substantial contributing factor to an injury “merely because” the injury arose in the course of the worker’s employment etc.
33    This, in effect, was the view taken by Ashley J of the Supreme Court of Victoria in Popovski v Ericsson Australia Pty Ltd [1998] VSC 61 in construing s82(1) of the Accident Compensation Act 1985 (Vic), which gives a right of compensation to a worker caused “an injury arising out of or in the course of any employment and if the worker’s employment was a significant contributing factor”. His Honour said:
[51] I turn to the precise question which was determined in Favelle Mort v Murray - the meaning of the definition of “injury” in the legislation there under consideration. Barwick CJ, Stephen and Mason JJ all said that the requirement suggested by the words “to which the employment was a contributing factor” was less stringent than was suggested by the concept “arising out of” an employment. Mason J made the point that there was every reason for giving different words a different meaning. How do these conclusions bear, if at all, upon the words “to which the employment was a significant contributing factor”?
[52] In my opinion the following propositions may be stated: first, the present language by intention and effect requires a more substantial causal link between employment and injury than did the language considered by the High Court in Favelle Mort v Murray.
[53] Second, there remains a distinction between the concepts of injury “to which the employment was a significant contributing factor” and injury “arising out of” employment. What Mason J said in Favelle Mort v Murray about the use of different language holds good.
[54] Third, the requirement that injury “arise out of” employment remains more stringent than the requirement that employment be “a significant contributing factor” to injury. It is possible to envisage situations in which injury might not satisfy the former test yet would satisfy the latter test. It might be the case, to take an example, that a man struck directly by a bolt of lightning at his work place would not (consonant with the old authorities) suffer injury arising out of his employment; but that his employment - regardless that his duties did not require him to be at the critical place at the critical time - would, be a significant contributing factor to his injury.
34    In the present case Bishop CCJ agreed with the first two propositions, but disagreed with the third. It will be apparent that I am of a different view.” (per Mason P)
In Dayton Giles JA, after referring to certain of the passages in Mercer, including that quoted in the preceding paragraph said:

“With the utmost respect, I perceive some tension in these various observations, and have some difficulty in gaining from the decision clear guidance as to the meaning of the word ‘substantial’ in s 9A(1).” (at [24])

The above passage of Mercer at [32], is quoted in Walsh as authority for the proposition “that the requirement that employment be a contributing factor to the ‘injury’ was not equivalent to the expression ‘arising out of …the employment” (at [98]). In the recent judgment of the NSW Court of Appeal in Murray Einstein J set out the propositions established in Mercer, and described the above quoted passage, at [32] of the judgment of Mason P, as “the holding in Mercer that the requirement that the employment be a contributing factor to the injury is not equivalent to the expression ‘arising out of the employment’” (at [56]).

In the passage of the arbitrator’s reasons quoted at [46] above, he effectively says that, having found injury arising out of the Respondent Worker’s employment, it flows as a matter of course that the test of ‘substantial contributing factor’ contained in section 9A is also satisfied. Having regard to the above passage of Mercer, as explained in Walsh and Murray, the arbitrator’s reasoning in this regard must be regarded as erroneous.

However in my view this error is not such that, but for it, “a different decision should have been made”: Snow Confectionary. In a passage of his reasons, quoted at [34] above, the arbitrator made a finding, open to him on the evidence, that the condition of carpal tunnel syndrome from which the Respondent Worker suffered was “caused by” her employment. Consistent with this, any argument that the employment contribution was so minor that section 9A was not satisfied (see Dayton) could not succeed.

Beyond (possibly) an argument that section 9A was not satisfied as the employment contribution was so minor, the Appellant Employer did not raise, on the arbitration hearing, any other issues relating to an alleged failure to satisfy section 9A. In Supair Pty Limited v Sweeney (2000) 20 NSWCCR 514 Mason P said:

“I content myself with this final comment. Some of the paragraphs in s 9A(2), for example (a), are matters that will almost invariably be adverted to en passant. Without stating any absolute proposition, it ought to be incumbent upon a litigant in the Compensation Court who wants to run a serious issue relating to non-compliance with subsection 2 to flag that in submissions. It should not be left to uncertain inferences if there is a serious issue being raised. Rather, the point should be taken in evidence and flagged in submissions, then it is almost certain that it will be addressed by the trial judge and we will not be left having to infer one way or the other whether there has been a failure to advert to the relevant principle.” (at [22])

The only argument (possibly) raised by the Appellant Employer based on section 9A, was untenable on the factual finding made by the arbitrator on causation. There were no other matters raised by the Appellant Employer, said to go to a failure by the Respondent Worker to satisfy the requirements of section 9A. Accordingly, the conclusion that section 9A was satisfied should stand, and the error referred to above is not such that a different result should have been reached if not for the error.

The Respondent Worker’s Ability to Earn

The third argument raised by the Appellant Employer on this appeal, is that the arbitrator erred, in finding the ability to earn of the Respondent Worker in some suitable employment (section 40(2)(b) of the 1987 Act) “was limited to 17 hours per week of light duties as a Room Attendant and Supervisor, such finding being against the evidence and the weight of the evidence”.

In support of this ground the Appellant Employer, in its submissions, points to a number of expressions of opinion in the medical evidence utilised by it in the proceedings. It is submitted Drs Parameswaran, Muratore, Rowe and Harris support the proposition the Respondent Worker’s ability to earn exceeds that found by the arbitrator (at [9] to [23] of the written submissions). The Appellant Employer then refers to Dr Patrick, saying he regards the Respondent Worker as fit for light duty work, whilst placing “considerable restrictions on her activities”. It is noted that Dr Ziade provided certificates which “relate to 17 hours per week with no lifting, pushing or pulling”. It is submitted the “restrictions placed upon the Worker by Drs Patrick and Ziade in terms of the number of hours that light duty work could be performed are not in accordance with the main body of medical evidence” (at [26] of the written submissions).

The Appellant Employer further submits the Respondent Worker agreed, “she could work in a light duty capacity for 20 hours per week”. It is submitted the Respondent Worker is fit to perform work for at least 25 hours per week”.

The passage of cross-examination referred to in the submission above is at T7.5 to 7.10:

“Q. …And are you saying that there’s absolutely no way that you could do any more work than that now?
A. I wouldn’t be prepared to do 30 hours, not 30 hours.
Q. But you could do more than 17. Is that right?
A. Maybe I could do it till 20. That’s all.”

The Respondent Worker’s submissions say this passage of cross-examination did not represent agreement by the Respondent Worker that she could work twenty hours per week, rather she “merely considered it a possibility”. It is submitted this concession should be considered in the light of the evidence as a whole, including the medical evidence. The point is made that seventeen hours per week of light duties “was what was accepted by the employer (pursuant to medical certification) as appropriate hours for the worker between August 2003 and 15 May 2005”. It is noted the “worker was not challenged on her assertion that her condition had not changed in that time”.

The Respondent Worker’s evidence regarding her light duty work between August 2003 and May 2005 is at T5.15 to 6.10. She said she started on twelve hours per week, and built up to seventeen hours per week. Whilst on these reduced hours she was paid make up pay, until 19 May 2005. These aspects of her evidence were not the subject of challenge. She said, in cross-examination that her condition was “more or less” the same, as it had been in 2003 (T8.35). It was submitted on the Respondent Worker’s behalf, before the arbitrator, that the seventeen hours per week she had been working on light duty represented “a proper revelation of her ability to earn” (at T48.25). The Appellant Employer submitted the Respondent Worker “is able to work 30 hours a week, if not longer” (T49.50).

The passage of his reasons in which the arbitrator dealt with quantum of the weekly award is at T51.45 to 53.10. In so far as ability to earn was concerned, he noted when she was carrying out light duty work, it was “only up to 17 hours per week” (T52.15). He quoted a passage from the report of Dr Patrick dated 28 August 2003, which in part said “She presents as well motivated, and is coping reasonably with her current very part time, very light duties”. The arbitrator said there was no evidence before him the worker had ever done more than seventeen hours per week, whilst on light duties after developing the carpal tunnel syndrome, and “even though she makes some concession that she could do 20 hours, I’m not prepared to find that.” He then calculated the Respondent Worker’s ability to earn in some suitable employment on the basis she could carry out seventeen hours per week.

The finding of the arbitrator on this point does not reveal error, of the kind discussed in the decisions quoted at [20] to [22] above. There was ample evidence to justify the conclusion he reached. It was consistent with the restrictions placed upon the Respondent Worker by Dr Patrick, whose views he had accepted. It was consistent with the restriction as to hours placed upon the Respondent Worker by her general practitioner, Dr Ziade, in his certificates. It was consistent with the hours the Respondent Worker had actually worked, for so long as the Appellant Employer made light work available to her. I do not approach the issue afresh; I should only interfere with the decision of the arbitrator on the point, if the decision reveals error. In my view it does not. It was a finding open to the arbitrator on the evidence, it was a finding he was perfectly entitled to reach.

DECISION

The decision of the arbitrator dated 19 June 2006 is confirmed.

COSTS

The Appellant Employer is to pay the costs of the appeal

Michael Snell
Acting Deputy President
13 February 2007

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

ASSOCIATE