Milakovic v Ajax Cleaning Company Pty Ltd
[2006] NSWWCCPD 352
•19 December 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Milakovic v Ajax Cleaning Company Pty Ltd [2006] NSWWCCPD 352
APPELLANT: Dajana Milakovic
RESPONDENT: Ajax Cleaning Company Pty Ltd
INSURER:Allianz Australia Workers Compensation (NSW) Limited
FILE NUMBER: WCC3667-05
DATE OF ARBITRATOR’S DECISION: 6 December 2005
DATE OF APPEAL DECISION: 19 December 2006
SUBJECT MATTER OF DECISION: Medical Assessment Certificate; causation; adequacy of reasons.
PRESIDENTIAL MEMBER: Acting Deputy President Anthony Candy
HEARING:On the papers
REPRESENTATION: Appellant: Keddies Litigation Lawyers
Respondent: Sparke Helmore Lawyers
ORDERS MADE ON APPEAL: (1) The decision of the Arbitrator dated 6 December 2005 is confirmed.
(2)No order as to costs of the appeal.
BACKGROUND TO THE APPEAL
Mrs Dajana Milakovic (‘the worker’) was employed by Ajax Cleaning Company Pty Ltd (‘the employer’) as a cleaner. While so employed she alleges that she suffered injury on 20 December 1999. She initially sought treatment at Royal Prince Alfred Hospital the same day and later attended her local medical practitioner. I will deal with those matters in greater detail later.
A workers compensation claim was not submitted until 20 May 2004, however, at least one workers compensation medical certificate was obtained by the worker dealing with her unfitness for a period from 23 December 1999. The worker was seen by a specialist in musculo-skeletal and rehabilitation medicine, Dr David Manohar on 14 July 2004 at the request of her general practitioner, Dr Marinkovich. Dr Manohar continued to see her until it appears 10 November 2004.
Dr Peter Conrad, orthopaedic surgeon, saw the worker at the request of her solicitors on 16 September 2004. I will deal with that doctor’s reports in greater detail later. Dr Conrad assessed impairment of the worker’s neck as well as loss of efficient use of each arm and also impairment of her back. On 1 October 2004 the worker’s solicitors wrote to the employer making a claim in accordance with Dr Conrad’s reports. This was was referred by the employer to its workers compensation insurer, Allianz Australia Workers’ Compensation (NSW) Limited, (‘Allianz’) which in due course arranged for the worker to be seen by Dr David Bornstein, orthopaedic surgeon, on 26 October 2004 and Dr Mastoianni, consultant occupational physician, on 18 November 2004.
In the formal claim for compensation made by the worker on 20 May 2004 the injury was said to have happened at 6 p.m. when the worker was removing a recycling bin from an office as part of her work duties. She says that she reported it to her supervisor, Niki Rumenovic. The treating doctor was said to be Dr Lilia Rodriguez. The injury suffered was to the worker’s back and a prior neck injury in 1992 was referred to. I infer that the claim made on behalf of the worker was not accepted and, accordingly, her solicitors lodged an Application to Resolve a Dispute on 9 March 2005, registered 10 March 2005. In that Application lump sum compensation was sought amounting to $74,500.00, together with weekly payments of compensation from 21 December 1999 to 18 July 2000 and from 28 February 2001 to date and continuing. Two dependent daughters were claimed. The injury was said to have been to the neck, left arm, right arm and back and the circumstances of the injury are described as follows:
“During the course of her employment, the applicant was removing a recycling bin weighing approximately 100kgs from the office out to the lift area (which is approximately 15 metres away) when she felt a sharp pain in her back, shoulder blades, neck and in the chest area.”
A Reply was lodged on behalf of the employer on 31 March 2005 which raised the failure of the worker to make a claim for compensation within the time limit provided by the workers compensation legislation, as well as denying injury and the losses claimed. The dispute was referred to a Commission Arbitrator who conducted a telephone conference on 19 May 2005 and a conciliation arbitration hearing on 21 June 2005. At that hearing the Arbitrator held that the claim was not statute barred and referred the question of lump sum compensation to an Approved Medical Specialist (‘AMS’).
The examination by the AMS took place on 14 September 2005. A Medical Assessment Certificate (‘MAC’) dated 14 September 2005 was duly issued in that the AMS found impairments and losses as follows:
“Neck 16%
Left arm at or above the elbow 3%
Right arm at or above the elbow nil
Back 8% less 1/10th = 7.2%”An arbitration hearing was held on 17 November 2005 when the worker gave evidence and was cross-examined. At the conclusion of addresses by the legal representatives of the parties the Arbitrator gave his decision and reasons. He determined that the worker was entitled to weekly compensation for the period 23 December 1999 to 29 December 1999. There was otherwise an award in favour of the employer. The employer was also ordered to pay section 60 expenses for the same period as that for which weekly payments of compensation had been ordered.
It is against the determination made by the Arbitrator that the worker now seeks leave to appeal by Application lodged on 20 December 2005.
THE DECISION UNDER REVIEW
The Certificate of Determination dated 6 December 2005 records the Arbitrator’s orders as follows:
“1.I find the Applicant suffered a strain to her thoracic spine when pushing a bin at work on 20 December 1999.
2.I find that she was totally incapacitated thereby between 23 December 1999 and 29 December 1999.
3.There will be an award in favour of the Applicant in the sum of $240.01 per week from 23 December 1999 to 29 December 1999 pursuant to s37.
4.There will be an award in favour of the Applicant in respect of expenses incurred pursuant to s60 of the 1987 Act between 23 December 1999 and 29 December 1999.
5.There will be an award in favour of the Respondent in relation to the claim for lump sum pursuant to s66 and 67.
6.The Respondent will pay the Applicant’s costs as agreed or assessed.”
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.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
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 amount at issue on the appeal for weekly payments of compensation and lump sum compensation pursuant to section 66 and 67 exceeds $5,000.00 and all of that sum is at issue.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
Accordingly, leave to appeal is granted.
EVIDENCE
Worker’s Evidence
A statement of the worker dated 5 September 2004 was relied on. In that, the worker related suffering an injury on 20 December 1999. She says she felt a sharp pain between her shoulder blades and in her chest area and experienced some form of allergy, shakes and shivers throughout her body. Her supervisor was advised. Her supervisor took her to the sick bay in order to allow her to recover and advised her to go home. The worker called her husband who then took her to Royal Prince Alfred Hospital where she was kept overnight and released the following day. On 22 December 1999 she attended Fairfield Chase Medical and Dental Centre and was seen by Dr Gulisano who it is said provided her with a medical certificate certifying her unfit for work until 24 December 1999. She later obtained other certificates from other doctors. She set out in her statement the complaints she had at that time. She did not work from 23 December 1999 until the beginning of August 2000 and then worked with difficulty and worked reduced hours until 13 February 2001 when she ceased working. She related a motor vehicle accident in 1992 when she said she suffered injury to her neck in respect of which she received nominal compensation only. She said she had no ongoing restriction or disability referable to that injury. At the date of her statement she was being seen by Dr Marinkovich.
A supplementary statement of the worker dated 29 June 2005 was later admitted in evidence. In that statement she referred to her education in Serbia prior to coming to Australia and her work as a sewing machinist until 1992 when she said she started working for the employer She described the medication that she was taking at that time and said that she had been sent by Dr Manohar for physiotherapy and had eight sessions of this. She said she used to crochet while travelling to work on the train, however, she was unable to do this as she was unable to find a comfortable sitting position. She said that following her injury in December 1999 she had returned to work on 19 July 2000 however had difficulty completing her duties and subsequently ceased work on 27 February 2001.
As I have earlier indicated, the worker gave evidence at the arbitration hearing on 17 November 2005. She said that she had not sought any medical treatment for the injury she suffered in 1999 from 2000 to 2004. She said she was taking medication, namely Digesic, Panadeine Forte and Naprosyn. She said that she had been and was suffering pain mostly between the shoulder blades and her neck. She said that at times these areas were more painful and at other times less painful but the pain was always there. It prevented her from working. She was asked about the pain which she complained of in her lower back. She said she had some small pain but was not taking so much notice about it and thought it would gradually disappear. She explained her failure to obtain medical attention from 2000 to 2004 on the basis that doctors had told her that the pain would be “constantly” but “nothing serious”.
She said she had seen Dr Gulisano and Dr Haddad and was given certificates which she sent to her boss. She said that he wrote on those “I’m not accepting this”. She said that for that reason from the beginning everything went “upside down” and she did not think of compensation. She thought she would be fine in the long run but never was. She was shown a certificate dated 7 January 2000 which she said had “Not acceptable” written on it. She gave evidence about the dependency of her daughters aged 16 and 23 as well as her husband who was not employed but had had a worker’s compensation claim. She denied that she had suffered any injuries in 2004. She said that she had not been looking for any other jobs because she was not feeling well. (This question appears to have been put on the basis that she was then working on a part-time basis. I have had difficulty in understanding that this was the case.)
Cross-Examination
The worker agreed that she had continued work from July 2000 to February 2001. When she found she was unable to continue work she made no claim for compensation. She was cross-examined as to what she told the staff at Royal Prince Alfred Hospital on 20 December 1999.
Medical Evidence
Dr Conrad saw the worker on 16 September 2004. She described an accident at work on 20 December 1999 when she told him she was moving a very heavy recycling bin full of paper which she thought may have weighed about 100 kgs. She had to pull this 50 metres or thereabouts from the office to the lift. She said she felt pain in her neck, thoracic spine and chest which was reported to the employer. She told the doctor that she had returned to the employer doing light duties but stopped in February 2000 when her neck and thoracic spine pain deteriorated. She said she had not worked since that time. She continued to have pain in her neck and thoracic spine – worse when she was standing or sitting for long periods of time and in particular if she did her own housework such as ironing, vacuuming, making beds or shopping. She said her husband had to help her with the heavier part of her housework. She took tablets and continued to have physiotherapy. Dr Conrad had regard to radiologists’ reports of 23 June and 25 June 2004. Dr Conrad was of opinion that as a result of her accident at work she had sustained an injury to her neck resulting in a disc prolapse and she had ongoing neck pain and muscle spasm present. She also had thoracic spine strain and required conservative treatment, including physiotherapy. Dr Conrad thought she was not fit for full-time heavy duty cleaning such as she had been doing but might be able to do light cleaning work starting at 12-15 hours per week as part of a structured rehabilitation program where she was able to stand or sit at will, not lifting anything more than 5 kilograms in weight or doing repetitive bending or lifting. He thought she should not use heavy industrial vacuum cleaners or polishers and should not lift or manoeuvre heavy bins. He thought she might need about 6 hours per week of home care assistance. In a separate report Dr Conrad assessed impairment of the neck and back and loss of use of the left and right arms.
There are a number of medical certificates attached to the application. Dr Rodriguez certified on 23 December 1999 that the worker suffered from a thoracic spine strain the cause of which was the removal of a 100 kilo recycling bin. The treatment suggested was rest and Digesic and the worker was certified unfit for work from 23 December 1999 with a review to take place on 29 December 1999. Dr Gulisano saw her on 29 December 1999 and gave her a certificate of unfitness up to 3/1/2000 on the basis that she was suffering from a medical condition. This is not a workers compensation certificate. On 5 January 2000 another doctor at the same medical practice, Dr Haddad, certified her unfit for work from 5 to 7 January 1999 [sic] on the basis of “backache at thoracic region”. Written across this certificate is an incomplete word within two lines which is “..EPTABLE.” Dr Marinkovich saw her on 1 July 2004 and certified her fit for light duties only on the basis of C6/7 disc pathology. This certificate is also not a workers compensation certificate.
A number of reports of Dr David Manohar are also attached to the Application. He first saw her on 14 July 2004 at the request of Dr Marinkovich. She complained of mid-dorsal ache and paraesthesia extending down both arms to the fingers. She said she had constant interscapular pain. She gave a history of moving a 100 kg recycling bin from the office to the elevator which developed back pain, chest pain and paraesthesia in both arms. She said there was a hot and cold reaction. She was seen at Royal Prince Alfred Hospital and later consulted Dr Rodriguez and Dr Haddad. She was treated with Digesic, hot showers and rest. She said she worked until February 2001. Dr Manohar reviewed radiological investigations which included a CT scan showing a small central disc protrusion at C6/7 level. He thought she had chronic myofascial pain and advised her to trial OxyContin daily for a week. Dr Manohar saw her again on 28 July 2004. On this occasion he prescribed additional OxyContin for a two week period. The worker was seen again on 11 August 2004 and said she had mid-dorsal ache which had been eased with the OxyContin however she still had difficulty lifting her arms. Dr Manohar advised her to undergo physiotherapy. She was seen again on 22 September 2004 when she complained of pain in her lumbo sacral region extending to both sacroiliac joints. Her pain was worse on the left side and extended down the left leg to the heel. She said the symptoms were increasing and aggravated by physiotherapy. Dr Manohar advised her to undergo an MRI scan in order to assess the discs and nerve roots. He saw her again on 6 October 2004 when she was complaining of pain in her lumbar region and also cervico-thoracic junction ache extending to both shoulders. The MRI scan showed an L5/S1 disc desiccation with a contained annular tear in the right postero lateral region with a broad-based disc protrusion which he thought could be irritating the ligaments providing pain. He recommended infiltration under appropriate imaging. Dr Manohar reported again on 10 November 2004. There was complaint of pain in neck and stiffness in the upper interscapular region. The worker complained of slight pain in the back, the symptoms having improved with oral medication. She was then taking OxyContin at night and during the day which eased her symptoms. She said therapy was not a benefit to her. The suggested infiltration was discussed however the worker preferred to continue with oral medical.
The worker relied on a report of Dr Mastroianni who had seen the worker at the request of Allianz on 18 November 2004. She told that doctor that she had worked until February 2001 and had left the employer thinking that her pains would resolve if she stopped work. She had not worked since. She gave a history of the injury when she was pulling a recycling bin. She said she had physiotherapy and had resumed working in August 2000 on normal duties until the following February when she left the company. Over the years she said she continued to see a doctor. Of the treatment prescribed by Dr Manohar she considered that physiotherapy was not helping but analgesia gave her temporary relief. Overall, she did not feel that she was any different. She complained of pain in the lower back, dorsal spine and neck. Pain in the neck and dorsal spine was constant while the lower back pain was intermittent. Her symptoms were aggravated by bending or sitting. She described pins and needles affecting her arms from the shoulders to the hands which were global in distribution. When active during the day she was “OK”. The pins and needles were mainly felt in the evening when she rested. She told Dr Mastroianni that she was married and her husband worked. She said she managed her domestic chores and was not that disabled. Dr Mastroianni considered that various investigations showed evidence of disc disease in the cervical and lumbosacral spine. He thought, based on the history given by her, that work was a substantial contributing factor to the development of her condition. He thought she was fit to work as a cleaner providing she exercised back care in heavy lifting. He thought the prognosis was favourable and that there had been no deterioration in her condition over the preceding five years. That doctor assessed permanent impairment of the neck and back at 10% each with zero loss of efficient use of the right and left arms.
Employer’s Evidence
A report of Dr Mastroianni dated 14 January 2005 was relied on. In this the doctor considers Dr Manohar’s recommendation regarding infiltration of the L4/L5 and L5/S1 facets. Dr Mastroianni’s opinion was that the worker’s presentation and clinical findings did not justify diagnostic blocks.
The employer also relies on its undated letter to Allianz in which it sets out the details of the worker’s employment which may be summarised as follows:
10/09/1996 Commenced work.
17/06/1999 Terminated.
23/09/1999 Reinstated.
12/01/2000 Terminated.
03/01/2001 Reinstated.
08/03/2001 Ceased employment.The employer advised that the worker’s average weekly earnings were $276.35 with an award rate at the time she ceased employment of $15.30. A facsimile transmission dated 6 October 2004 was relied on in which the employer advised Allianz that that was the first time they had heard about the case. Nothing was ever reported to the employer. No accident happened to the worker while she was employed. The facsimile enclosed a copy of a letter of 1 October 2004 making a claim for lump sum compensation. The employer also relied on a claim form dated 20 May 2004 completed by the worker. I have already dealt with this in paragraph 4.
Two reports of Dr Bornstein were relied on dated 28 October 2004 and 26 April 2005. Dr Bornstein first saw the worker on 26 October 2004. He obtained a history that the employer was the only company for which the worker had worked since she had been in Australia. She told him she was unemployed and was not looking for work. She had resigned on 27 February 2001. She told Dr Bornstein that her treatment consisted of physiotherapy and OxyContin and a month ago had an injection of some sort. Her current complaints were of constant pain and stiffness with paraesthesia affecting both her arms and two areas of the thoracic spine as well as the lumbar region. She took tablets virtually every day. The worst time for her was at night. She could not get comfortable sitting or lying. Dr Bornstein reviewed the radiological investigations and thought the MRI scan of the lumbar spine of 25 September 2004 showed an annular bulge and tear at L5/S1 level. The ultrasound of her shoulders of 25 June 2004 was normal, X-rays of the back of 23 June 2004 showed negligible scoliosis convexed to the left and a cervico thoracic CT scan was normal other than for a small protrusion which indented the cord in a central direction of the C6/7 level. The scan of the thoracic spine was normal. The doctor considered that she had a small protrusion at the C6/7 level in her back [sic] and also degenerative disease and an annular tear at the lumbo sacral junction of her back. He thought that the problems in the lumbar spine were almost certainly constitutional since the changes there were no different to what one generally sees in the population. So far as the neck was concerned, she had some minor changes in the area but it was noted that the pain in the area would cause upper back pain but not cause lower thoracic back pain. There was no evidence of neuropathy affecting either of her upper limbs and the radiology did not define any reason why she would experience the symptoms extending into her arms. He accepted that she had some neck ache and backache as a consequence of the lesions shown on radiology. It was his view that these lumbar lesions were constitutional rather than related to injury going back to 1999. so far as the neck was concerned there was some potential that this could be related to the original injury.
In a report of 26 April 2005 Dr Bornstein assessed the impairment of the neck and back both at 8%. He did not think there was any loss of use of the left and right arm. He considered that the impairment of the back was constitutional in its entirety, however, having no evidence that the impairment of the neck was not caused by the incident under discussion, he would therefore attribute this to the injury in question.
The Employer’s Report of Injury dated 12 January 2000 was relied on. The injury was said to have happened on 23 December 1999 [this is obviously incorrect]. It was said that notice was given of this on 10 January 2000. The injury is described as follows:
“Red in face and chest and shaking chest pain.”
It was said that the face and chest were the parts of the body affected. The employer indicated that it did question the validity of the claim on the basis that the worker had only just touched the bin when the reaction occurred. No back problem was mentioned at that time. The worker’s hours were said to be 5 to 11.30 p.m. or 5.30 to 8.45 p.m. Monday to Friday. The worker ceased work on 20 December 1999. The employer has answered the question “Has the worker resumed work?” as follows “Wanted to come to work – then changed her mind ‘resigned’.” The worker’s average working hours were said to be 22 per week.
The Royal Prince Alfred Hospital notes were relied on by the employer. The nursing assessment upon presentation at 10:17 p.m. on 20 December 1999 was:“At work and bent over and felt pressure in chest and pins and needles over body 2 - 3 / 24 ago.”
Further on, a history is given of flushing and tightness in throat and a neck rash that developed over the neck and body while cleaning that day about 4 hours before. She said it felt like a heart attack and she felt that she would die. Elsewhere it is recorded that there was a history of central chest pain associated with a blotchy rash and she had central chest pain in a prominent component radiating to the back. Later the worker gave a history through an interpreter of:
“Cramping/squeezing epigastric pain radiated to the neck – tight feeling around the neck sweaty. Developed palpitation. Onset of rash around the neck. Rash does not only come up at work and also comes up at home usually last 15 to 20 minutes.”
A number of radiological reports were relied on by the employer. There is a plain X-ray reported on by Dr Graham Shirtley of the chest and thoracic spine. This had been requested by Dr Gulisano and was performed on 22 December 1999. The next report from a radiologist is that of Dr Csillag dated 23 June 2004, being of a CT scan of the thoracic spine which was said to be “negative examinations”. There is a report of the same date, however the first page only, in respect to the cervical spine, thoracic spine and a CT scan of the cervical spine. The X-ray of the thoracic spine was said to show “a shallow thoracic scoliosis concave to the right centred at about T9-10”. The CT scan of the cervical spine was said to show a small central posterior disc protrusion at C6-7 which indented the anterior aspect of the dura that caused minor deformity in the anterior aspect of the cord. The radiological investigations of 23 June 2004 were performed at the request of Dr Marinkovich.
There is a left shoulder ultrasound reported on by Dr Shirtley dated 25 June 2004, again referred by Dr Marinkovich. No abnormality was noted in relation to either shoulder. The last radiological report is an MRI of the lumbosacral spine performed on 27 September 2004 and reported on by Dr Sachinwalla. This had been referred by Dr Manohar. The radiologist’s comment is:
“At the L5/S1 level there is disc desiccation with relative preservation of the intervertebral disc space height and a contained annular rupture on the right postero-laterally associated with a broad based small profile disc protrusion but no encroachment on the adjacent neural structures. No other significant structural change is seen”.
The documents produced under Direction for Production by Dr Rodriguez consist of one entry only of 28 May 2004 which is as follows:
“Pain ?years of Work related wanted to proceed as workcover advice cannot help. Pain at interscapular region painful shoulders and neck movements Naprosyn advice to go to GP.”
There was originally typed a figure prior to “years” however this has been crossed out and a word written in which is not clear. Despite strenuous efforts by the solicitors for the employer to obtain under Direction for Production the records of Dr Mark Marinkovich, no documents were ever produced by him. On 21 June 2005 Dr Marinkovich wrote to the solicitors for the employer seeking details in accordance with Schedule 3 of the National Privacy Principles and also seeking the written consent of the worker and a cheque for production expenses in the sum of $290.00.
The employer also relied on documents served by the Health Insurance Commission in relation to Medicare items incurred by the worker and said to be related to the injury in question. These show, among other things, attendances of the worker on Dr Gulisano on 22, 23 and 29 December 1999; X-rays by Dr Shirtley on 22 and 29 January 1999 including a CT of the chest with contrast on 29 December 1999; attendances on Dr Rodriguez on 23 and 24 December 1999; and attendance on Dr Haddad on 5 January 2000. There is a complete gap in terms of medical treatment between 5 January 2000 and 13 May 2004 when the worker first attended Dr Marinkovich.
ARBITRATOR’S REASONS
The Arbitrator noted that radiology demonstrated that there was a disc protrusion in the neck and that the worker’s case had some support from the doctors. The Arbitrator was of the view that, because a disc protrusion had been demonstrated in 2004, it did not mean that worker was suffering any incapacity or any difficulty. The Arbitrator was of the opinion that Dr Conrad did not sufficiently consider the fact that there was no treatment between 2000 and 2004. The Arbitrator noted the worker’s statement that she had constant pain between her shoulder blades which was of such severity over the period 2000 to 2004 that she could not work. He did not accept her reasons as to why she did not seek treatment if that were the case.
The Arbitrator referred to the Royal Prince Alfred Hospital documents and set out, essentially, the relevant parts of the histories given on that admission. The Arbitrator said that he could not be satisfied on the evidence before him that the protrusion shown on radiological investigation, not being discovered until 2004, arose as a result of the incident at work on 20 December 1999. There was however some evidence of incapacity evidenced by the medical certificate of Dr Rodriguez dated 23 December 1999, described as a thoracic spine strain. The Arbitrator entered an award, as I have earlier indicated, for the period 23 to 29 December 1999. Otherwise there was an award for the employer.
SUBMISSIONS
Submissions by the Worker
The grounds of appeal are not specifically stated and are mixed with submissions made, however, it appears to me that there are three grounds of appeal relied on, namely:
·The Arbitrator erred in failing to consider and accept the MAC as required by section 326 of the 1998 Act.
·The Arbitrator erred in finding that there should be an award for the employer for the period after 29 December 1999.
·The Arbitrator erred in failing to provide reasons as required by section 294(2) of the 1998 Act and rule 73 of the WorkersCompensationCommissionRules 2003.
In respect of the first of these grounds, it is submitted that once the Arbitrator had identified injury he was bound to accept that the impairment suffered by the applicant was as assessed by the AMS. Reference is made to the decision of Phillip JohnCarmody v Walter Merriman & Sons Pty Ltd [2003] NSWWCCPD 27 (‘Carmody’) from which the following passage is cited: “This medical assessment is entirely a matter for the Approved Medical Specialist, who has the medico-legal reports from both parties before him or her, and has frequently had the benefit of a personal examination of the worker”.
There was no submission made in relation to the alleged error in finding for the employer for the period after 29 September 1999.
So far as the failure to provide reasons is concerned, the submission is simply made that the Arbitrator has failed in his statutory duty to provide reasons for his decision.
Submissions by the Employer
So far as the first ground of appeal is concerned, the employer submits that the question of injury is one to be determined by an Arbitrator in accordance with Bavros v D H K Manufacturing Pty Limited (WCC19834-2003). The employer submits that the Appeal Panel in question stated that “injury was a question that should (emphasis added) be determined before the matter was referred to by AMS”. It is said there was no requirement that the matter must be heard on the issue of injury prior to referral to an AMS. The employer submits that the worker was aware from the outset that injury was in issue and the worker was fully aware of the outstanding issues.
So far as the failure to provide reasons is concerned, the employer submits that the Arbitrator’s decision was based on the evidence before him and it was a matter for the worker to produce evidence in support of her claim sufficient for the Arbitrator to find in her favour. It is said the worker failed to provide such evidence.
DISCUSSION AND FINDINGS
Section 352(5) of the 1998 Act provides that:
“An appeal under this section is to be by way of review of the decision appealed against.”
It should be noted that such review is not a hearing de novo but, rather, it is necessary for the appellant to demonstrate that the decision of the Arbitrator is vitiated by error of law, fact or discretion (Mayne Health Group t/as Nepean Private Hospital v Sarah Sandford [2002] NSWWCCPD 6 (‘Sandford’)).
The Effect of the MAC
Section 326 of the 1998 Act provides:
“(1).An assessment certified in a medical assessment certificate pursuant to a medical assessment under this Part is conclusively presumed to be correct as to the following matters in any proceedings before a court or the Commission with which the certificate is concerned:
(a)the degree of permanent impairment of the worker as a result of an injury,
(b)whether a proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality,
(c)the nature and extent of loss of hearing suffered by a worker,
(d)whether impairment is permanent,
(e)whether the degree of permanent impairment is fully ascertainable.
(2).As to any other matter, the assessment certified is evidence (but not conclusive evidence) in any such proceedings.”
Deputy President Fleming in Jopa Pty Limited t/as Tricia’s Clip-N-Snip v Edenden [2004] NSWWCCPD 50 at paragraph 27 said this:
“However the issue of an MAC does not equate to a determination of dispute by the Commission. There are obvious reasons why the legislature would have intended that the ultimate determination of the matter rests with an Arbitrator. There may be a number of issues in dispute between the parties which, while not medical issues, must be agreed, or determined by an Arbitrator, in order to finally resolve the matter. These may include issues of liability and associated claims for compensation by way of weekly benefits and medical expenses. Procedural fairness, the filing of evidence and compliance with the procedural requirements of the Workers Compensation Acts (‘the 1987 Act and the 1998 Act’) may also need to be considered.”
A case similar to the present one was that of Issott v North Sydney Leagues Club Ltd t/as Seagulls Club [2005] NSWWCCPD 38. In that case, notwithstanding an AMS finding that there was a degree of permanent impairment as a result of injury, there was an award made in favour of the employer, which decision was upheld on appeal. In relation to this, Acting Deputy President Moore said the following, at paragraphs 54 to 56:
“54.The Appellant Worker submits that in certifying as to the degree of permanent impairment, the AMS certifies the degree of impairment is as a result of injury, and that accordingly, if there were no injury, there would be no impairment.
55.However, the ‘injury’ can only ever be that which is asserted by the parties. For example, a worker might state ‘I fell off the truck and injured my knee’. The employer might say ‘his mates told us he injured his knee playing football on the weekend’. There may be no dispute that the worker has an injured knee – one injury is compensible, the other is not.
56.The task of the AMS is medical, and is to resolve a medical dispute between the parties. Unless specifically requested, it is not the role of the AMS to determine whether injury occurred, or occurred in the course of employment or any other of the multiplicity of questions that can arise in determining ‘injury’ within the meaning of the 1987 Act.”
In Davies v Bisaxa Pty Ltd t/as Sir Joseph Banks Nursing Home [2006] NSWWCCPD 103, Acting Deputy President Roche, as he then was, at paragraph 30 said the following:
“The question arises as to whether the assessment by the appeal panel without more is binding on the parties in the present claim for weekly compensation. In my opinion the answer is ‘no’. ‘Issues of injury’ and ‘causation’ are matters for the Commission to determine. The extent to which a MAC is binding on the parties was considered by the Commission in Jopa Pty Limited t/as Trichia’s Clip-N-Snip v Edenden [2004] NSWWCCPD 50….”
See also Connor v Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2006] NSWWCCPD 124.
The decision of Deputy President Fleming in Carmody was relied on by the worker. In that case an MAC which went beyond the matters which had been referred for determination by the AMS was held to be nonetheless binding on the parties. This decision appears to have been made per incuriam of regulation 223 of the Workers Compensation Regulation 2003. Even if Carmody were correctly decided, which I doubt, it does not assist the worker in this case. In the light of the authorities referred to I am of opinion that this ground is without substance. The question as to the nature of the injury suffered was one for the Arbitrator.
As to the ground that the Arbitrator erred in finding in favour of the respondent in respect of the period after 29 December 1999 as I have earlier indicated, no submissions were made in relation to this and I think it falls to be determined in accordance with the decision on the other two grounds of appeal.
Reasons
The worker submits that the Arbitrator has failed to provide adequate reasons for his decision.
It has long been recognised at common law that a court or tribunal has an obligation to provide reasons for its decision. A similar statutory requirement exists in relation to determinations made by the Workers Compensation Commission. As was said by Deputy President Fleming in Sandford at [44] to [46]:
“44.The standard by which the ‘adequacy’ of reasons may be determined is relative to the nature and context of the decision made and the decision-maker. There are a number of authorities in relation to judicial review of decisions of federal administrative tribunals that support this proposition and which are have relevance to a consideration of the nature of review of Arbitrators decisions in the Commission (see for example, Collector of Customs v Pozzolanic (1993) 43 FCR 280; Minister for Immigration and Multicultural Affairs v Wu Shu Liang (1996) 185 CLR 259 (‘Liang’); Minister for Immigration and Multicultural Affairs v Yusuf; (2001) 10 ALR 1).
45.The Commission is not a court and its objectives are to provide a dispute resolution process that is fair and cost effective for the parties to a workers compensation dispute. Proceedings are conducted with as little formality and technicality as the proper consideration of the matter permits. The content of statements of reasons for decision reflect this process and should not on review, be “construed minutely and finely with an eye keenly attuned to the perception of error” (Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287). This is not to say that decisions should not be soundly based nor that the reasons should not be capable of conveying clearly the matters required by Rule 41 (set out above). As Kirby J observed in relation to a decision of the Refugee Review Tribunal in Liang, the decision-maker’s reasons will remain the ‘only insight into the considerations which were, or were not, taken into account in reaching the decision’.
46.To succeed on the ground of ‘inadequate reasons’ it will be necessary for the Appellant to demonstrate not only that the reasons are inadequate but that the inadequacy sufficiently demonstrates that the Arbitrator has failed to exercise his or her statutory duty to fairly and lawfully determine the application. The Court of Appeal in YG & GG v. Minister for Community Services [2002] NSWCA 247 (26 July 2002), Hodgson JA, noted that,
‘… In adequate reasons do not without more show that the decision involved error: the inadequacy must be such as to warrant the inference that the Tribunal has not exercised its jurisdiction in accordance with law: see Absolon v NSW TAFE [1999] NSWCA 311.… In my opinion, a question whether there is a deficiency of reasons, and whether that deficiency warrants an inference that a tribunal has not exercised its jurisdiction in accordance with law, is a matter of judgment, and in borderline cases, minds may reasonably differ’ (at paragraphs 37 to 38)”
The reason given by the Arbitrator in determining that the injury suffered by the worker was of limited duration was her failure to seek treatment for a period in excess of four years. In the light of her complaints and her alleged inability to work during this period such failure to seek medical attention the Arbitrator considered this adversely affected the worker’s case. With that conclusion I am entirely in agreement. It is difficult to know what further reasons the Arbitrator could have given in relation to this issue other than those which he gave. Because reasons are shortly stated does not mean that they are inadequate. In my opinion this ground of appeal fails.
DECISION
The decision of the Arbitrator dated 6 December 2005 is confirmed.
COSTS
No order as to costs of the appeal.
Anthony Candy
Acting Deputy President
19 December 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ANTHONY CANDY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
0
10
0