Mistral Plantations Pty Ltd v McIntyre
[2005] NSWWCCPD 65
•13 July 2005
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Mistral Plantations Pty Ltd v McIntyre [2005] NSWWCCPD 65
APPELLANT: Mistral Plantations Pty Ltd
RESPONDENT: Patricia McIntyre
INSURER:QBE Workers Compensation (NSW) Ltd
FILE NUMBER: WCC18995-03
DATE OF ARBITRATOR’S DECISION: 2 June 2004
DATE OF APPEAL DECISION: 13 July 2005
SUBJECT MATTER OF DECISION: Two separate unrelated injuries resulting in partial incapacity
PRESIDENTIAL MEMBER: Acting Deputy President Robin Handley
HEARING:On the papers
REPRESENTATION: Appellant: In-House Legal Department, QBE Workers Compensation (NSW) Ltd
Respondent: Lee Sames Egan, Solicitors
ORDERS MADE ON APPEAL: The decision of the Arbitrator, dated 2 June 2004, is revoked and the following decision is made in its place.
(1) The Appellant, Mistral Plantations Pty Ltd, is to pay the Respondent, Ms McInytre, weekly compensation for partial incapacity arising from the injury to her back and leg, commencing from 25 October 1999, the deemed date of injury.
(2) The matter is remitted to the Arbitrator at first instance to determine the rate of weekly compensation payable in accordance with this decision and the provisions of the Workers Compensation Act 1987.
(3) No order is made as to the costs of this appeal.
BACKGROUND TO THE APPEAL
On 25 June 2004, Mistral Plantations Pty Ltd (‘Mistral’), the Appellant, sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) in respect of a decision dated 2 June 2004.
The Respondent to the Appeal is Patricia McIntyre.
Ms McIntyre was born in Brisbane on 1 March 1951 and is aged 54. After having three children, she remained at home until the youngest was aged about 2, in 1983. From then until 1994, she worked in a bakery packing bread rolls. However, from April 1991, she also worked casually for Mistral as a nut picker on its macadamia plantation during the season from about April to October each year. As a result, from 1991 until 1994, her work at the bakery was on the night shift from about 11pm to about 3am five days a week. Then from July 1997, Ms McIntyre also worked casually during the season for Agrimac International Enterprises Pty Ltd (‘Agrimac’), a macadamia processing and export facility, sorting macadamia nuts during processing. While working for both Mistral and Agrimac, she worked for Mistral from 6.30am until 2.30pm, finishing 30 minutes earlier than the usual 3pm finishing time, in order to start her shift at Agrimac at 3pm where she worked until 8pm.
Ms McIntyre’s work for Mistral mainly involved picking up nuts left on the ground by the mechanical harvester, putting them into a bucket, and carrrying the bucket to and emptying it into a large orange box called a lug. The bucket of nuts could be quite heavy, weighing up to about 20 kilograms. The farm hands collected the lugs and took them to the dehusking and sorting shed.
Ms McIntyre’s evidence is that by November 1998, she was experiencing increasing low back pain as a result of leaning over at work (statement of 20 November 2002). She had experienced low back pain for a number of years but had not consulted a doctor about it. When, in November 1998, she consulted her family doctor, Dr Shane Delaney, about her back pain, he told her that there was not much she could do about it. Then, on 25 June 1999, she injured her left shoulder and neck when using a hand picker that was “like an old-fashioned lawn mower that had to be pushed by hand so that the horizontally rotating fingers would pick up the nuts and dumps [sic] them onto a receptacle at the front of the picker”. As a result of the shoulder and neck injury, Ms McIntyre had time off work from 26 June 1999 and received workers compensation payments in respect of that injury. She stated that she later tried to return to work on a couple of occasions but was “not able to do the full duties and there is no light duties at Mistral”. As a result, she became less fit and noticed her low back pain becoming worse.
On 23 July 1999, Ms McIntyre notified Mistral of her back injury. In October 1999, she again consulted Dr Delaney about her low back pain that was “now radiating severely to my left hip”. She ceased work because of her back injury on 25 October 1999. It is this injury, which Ms McIntyre claims is as result of the nature and conditions of her employment with Mistral since 1991, that is the subject of the current proceedings.
On 11 April 2001, Ms McIntyre’s application for compensation in respect of her shoulder and neck injury was filed in the Compensation Court of NSW. Terms of settlement were agreed between the parties on 18 September 2001 including the payment of compensation pursuant to section 66 of the Workers Compensation Act 1987 (‘the 1987 Act’) of $4,000 in respect of 10% permanent impairment of Ms McIntyre’s neck and $7,500 in respect of 10% loss of use of her left arm at or above the elbow, together with $8,500 in respect of pain and suffering pursuant to section 67 of the 1987 Act.
On 10 April 2002, Ms McIntyre lodged a claim for permanent impairment of her back and for consequent pain and suffering. The claim for permanent impairment was resolved following a medical examination by an Approved Medical Specialist, Dr M Long, who certified that Ms McIntyre had a 13% permanent impairment of the back and 15% loss of efficient use of the left leg at or above the knee. However, the parties were unable to resolve Ms McIntyre’s claim for non-economic loss. On 1 January 2004, the Arbitrator ordered Mistral to pay Ms McIntyre $20,000 in respect of pain and suffering pursuant to section 67 of the 1987 Act. The Arbitrator found that on the deemed date of 25 October 1999, Ms McIntyre received an injury to her back and an associated injury to her left leg arising out of or in the course of her employment as an agricultural worker with Mistral. The Arbitrator apportioned the lump sum of $20,000 as to $7,500 in respect of past pain and suffering and as to $12,500 in respect of future pain and suffering.
On 4 December 2003, Ms McIntyre lodged an ‘Application to Resolve a Dispute’ in respect of weekly benefits compensation following a claim made on 17 September 2003 in respect of the period 23 July 1999 to date and continuing. The Application alleged that the Insurer, QBE Workers Compensation (NSW) Ltd (‘QBE’), had not made a decision within 21 days of the claim being lodged. In its ‘Reply’, Mistral stated there was no dispute, all payments to date having been made.
On 27 April 2004, having attempted to resolve the dispute between the parties by conciliation without success, the Arbitrator conducted an arbitration hearing, following which he made the determination set out below. No oral evidence was given at the arbitration hearing, which comprised oral submissions from the parties’ solicitors.
THE DECISION UNDER REVIEW
The Certificate of Determination, dated 2 June 2004, records the Arbitrator’s orders as follows:
“1. That the Respondent pay the Applicant weekly compensation in the sum of $535.18 per week from the 23 July 1999 for twenty six weeks and thereafter at the statutory rate in respect of the injury to her back and left leg at or above the knee less payments of weekly compensation in respect of the injury to her neck and left arm.
2. That the Respondent pay the Applicant’s costs as agreed or assessed.”
In his ‘Statement of Reasons for Decision’, the Arbitrator found that while Ms McIntyre suffered a frank injury to her left shoulder (on 25 June 1999), her back injury “grew gradually worse over time and is therefore the result of the nature and conditions of the Applicant’s working conditions”. The Arbitrator found that Ms McIntyre “is totally incapacitated for work as a result of her back and leg injury”.
The Arbitrator concluded:
(1) Ms McIntyre is deemed to have received an injury to her back arising out of or in the course of her employment as a labourer by Mistral;
(2) employment was a substantial contributing factor to her injury;
(3) she was totally incapacitated for work as a result of her injuries from 23 July 1999;
(4) her probable weekly earnings but for the injury, had she continued to be employed in the same or comparable employment, are $535.18 per week; and
(5) she has already been paid compensation at the full statutory rate in respect of her shoulder injury.
ISSUES IN DISPUTE
The issues in dispute in the appeal are:
(1) Whether Ms McInyre is totally or partially incapacitated for work as a result of the injury to her back and leg?
(2) Whether Ms McIntyre, having sustained two separate injuries in the course of her employment:
(a)in the case of total incapacity as a result of the injury to her back and leg, is entitled to an award of weekly compensation as a result of that injury; or
(b)if partially incapacitated because of the injury to her back and leg, is entitled to two separate payments of weekly compensation in respect of two separate partial incapacities, the other being in respect on the injury to her shoulder and neck?
(3) In the case of (2)(b), what is the amount of compensation to which Ms McIntyre was entitled, and should Mistral be credited for weekly payments made voluntarily in respect of the shoulder and neck injury since June 1999?
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘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.”
I have had regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by Ms McIntyre’s solicitors that the appeal can proceed to be determined on the basis of these documents. I also note Mistral’s submission that the parties should be permitted to make oral presentations. However, given that I have the benefit of extensive written submissions from both parties in relation to this appeal, 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.
Neither party sought to adduce fresh evidence.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act. The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act. With regard to section 352(2), the amount of compensation at issue is weekly compensation that, according to Mistral, amounts to $81,615 in respect of the period from 23 July 1999 to 2 June 2004, and continuing, and represents 100% of the amount awarded in the Arbitrator’s decision. The section 352(2) threshold having been met, I am satisfied that I should grant leave to appeal and therefore do so.
SUBMISSIONS
Both parties agree that in his earlier determination in respect of the payment of compensation for permanent impairment to Ms McIntyre’s back and leg, dated 1 January 2004, the Arbitrator determined a deemed date of injury in respect of her back of 25 October 1999. Ms McIntyre’s solicitor therefore conceded that, in the current matter, the Arbitrator has erred in awarding weekly compensation in respect of the injury to Ms McIntyre’s back and left leg from 23 July 1999. The award should commence from 25 October 1999.
Mistral’s solicitor drew attention to the payment schedule that showed that Ms McIntyre had been paid her full entitlement at the maximum rates applicable since 1999. Mistral’s solicitor submitted:
“a worker is not entitled to two separate payments of weekly compensation where a worker is suffering from total incapacity as a result of one injury because there cannot be several distinct partial incapacities. It is submitted that this is clear from the Court of Appeal decision in Sydney City Council v Ince [(1989) 16 NSWLR 690 (‘Ince’)].
A finding of total incapacity amounts to a determination that there is no capacity to engage in employment. It is therefore impossible to find that there exists in a worker another distinct incapacity for work as required by the authorities before two separate weekly payments of compensation are payable.
Having concluded that the Respondent/Worker had been paid at all relevant times her maximum statutory entitlement the Arbitrator should have determined that the Respondent/Worker was not entitled to further payment of weekly compensation.”
Alternatively, having found Ms McIntyre was totally incapacitated for work as a result of the injury to her back and leg, Mistral should have been given credit for the weekly compensation already paid to Ms McIntyre. In later submissions, Mistral’s solicitor said that upon further consideration of the Arbitrator’s Statement of Reasons, it appeared he had concluded “that there is one incapacity which has resulted from two injuries”.
Mistral’s solicitor submitted that no adequate reasons have been given for the decision. For example, it is not clear what the Arbitrator meant when he stated “I find that the balance of probabilities is in favour of the Applicant”, and he overlooked the real issues that were raised by the parties.
Ms McIntyre’s solicitors submit that the overwhelming balance of medical evidence supports the contention that Ms McIntyre is partially incapacitated as a result of her shoulder and neck injury. In his previous determination concerning the payment of compensation in respect of permanent impairment, the Arbitrator found that Ms McIntyre notified Mistral of her back injury on 23 July 1999 but first ceased work because of the back injury on 25 October 1999. Although Mistral have voluntarily paid weekly compensation to Ms McIntyre in respect of her shoulder and neck injury, no such payments have been made to Ms McIntyre in respect of the injury to her back and leg. (I note that the transcript of the arbitration hearing on 27 April 2004 records that Ms McIntyre’s solicitors contended that her back injury gave rise to a partial incapacity to work.)
In their submissions on this appeal, Ms McIntyre’s solicitors discuss the principles applicable as a result of the NSW Court of Appeal decision in Ince, referring, in particular, to the decision in Doudie v Kinneil Cannel & Coking Co [1947] AC 377 (‘Doudie’). Doudie is authority for the principle that a worker who suffers from a partial incapacity and receives a second injury rendering him totally incapacitated, is entitled to be paid his full entitlement in respect of the partial incapacity and his full entitlement in respect of total incapacity. However, both parties agree that (pursuant to Alcan Australia Ltd v Jordan (1995) 11 NSWCCR 475 (‘Alcan’)) a worker must not be placed in a better position financially than that resulting from pre-injury earnings. Thus, Ms McIntyre’s solicitors contend the cap in respect of Ms McIntyre’s weekly compensation is the figure of $534.60 agreed between the parties in June/July 2000 as the then current weekly wage rate for such a worker.
With regard to the Arbitrator’s finding that the balance of probabilities favoured Ms McIntyre, her solicitors contended that he was applying the relevant test in determining that Ms McIntyre was incapacitated as a result of her back injury, thereby entitling her to a second award. The incapacity arising from the back injury and, if established, the entitlement to an award in respect of that injury were the only matters for determination by the Arbitrator. It would have been inappropriate for the Arbitrator to adjust his award in the context of voluntary payments by Mistral to Ms McIntyre in respect of her shoulder/neck injury. However, Ms McIntyre’s solicitors conceded that Mistral should be credited with the payments made in respect of the shoulder/neck injury.
EVIDENCE
It was established in the Arbitrator’s first determination concerning Ms McIntyre on 1 January 2004 (file number WCC 1940-2002) that the injury to her back and leg arose out of or in the course of her employment by Mistral as an agricultural worker as a result of the nature and conditions of her employment. While Ms McIntyre notified Mistral of this injury on 23 July 1999, the Arbitrator found the deemed date of injury to be 25 October 1999, this being the date she first ceased work because of the injury. The Arbitrator’s determination dated 1 January 2004 and his findings in that matter were not and are not disputed by the parties.
The injury to Ms McIntyre’s back was the second injury she received during the course of or arising out of her employment by Mistral, the first injury being a frank injury to her left shoulder and neck that occurred on 25 June 1999. There is no dispute that Mistral voluntarily paid Ms McIntyre weekly compensation in respect of the first injury from 25 June 1999. A schedule of payments is attached to the ‘Reply to Application to Resolve a Dispute’ filed by Mistral in this matter and dated 23 April 2004.
In her statement of 20 November 2002, Ms McIntyre said that after the first injury on 25 June 1999, she “tried to return to work a couple of times but I was not able to do the full duties and there is [sic] no light duties at Mistral”. Her evidence suggests she had a partial incapacity for work as a result of the first injury. After Ms McIntyre notified Mistral of the second injury on 23 July 1999, it appears, although it is not very clear from any of the file evidence, that she continued to try working, but did not work after 25 October 1999, the deemed date of injury.
The Arbitrator found Ms McIntyre to be “totally incapacitated for work as a result of her back and leg injury”. He made this finding “after reading the medical evidence and her own statements”. In her statement dated 20 November 2002, Ms McIntyre states “I don’t believe there is any job that I could do bearing in mind my past work history”. Unfortunately, the Arbitrator does not specify the particular medical evidence upon which he relies.
An examination of the file documents reveals various medical reports over the period 2000 to 2004. Dr Alan Searle, Consultant Orthopaedic Surgeon, in a report dated 7 March 2002, states that because of her low back injury, Ms McIntyre “is permanently unfit for her pre-injury employment and from a practical point of view is unemployable”. The Medical Assessment Certificate issued on 13 August 2003 by the Approved Medical Specialist, Dr Michael Long, says nothing about her capacity for work. Her family doctor, Dr Shane Delaney, issued two WorkCover Medical Certificates dated 6 April 2004, one in respect of “lumbar spine injury” and one in respect of “L Shoulder/cervical spine injury”. Both certificates state that Ms McIntyre is “fit for suitable duties from 1/4/04 to 1/7/04”.
Dr John Maloney, Consultant Orthopaedic Surgeon, in a report dated 22 April 2002, states Ms McIntyre:
“might be able to perform various light duty jobs in her field of expertise, e.g. nut picker, [sic] she probably would be wise to avoid normal duties as performed in this industry over the past 10 years.”
In a supplementary report of the same date, he says:
“I would think it unlikely that Ms McIntyre will be fit to return to her normal duties as a nut picker and now that her lower back is causing her significant impairment I believe it is unlikely that she will return to gainful employment in the future.”
There are a number of ‘Return to Work’ forms dated November 2000 to June 2001 signed by Dr Delaney certifying Ms McIntyre is fit to return to work for between two and four hours a day on five days a week. There are also rehabilitation reports and plans for the period August 2000 to May 2001 with a view to Ms McIntyre returning to at least part-time sedentary work. A report by Dr Roger Parkington, Consultant Orthopaedic Surgeon, dated 9 July 2001, states Ms McIntyre is “fit enough to do the relatively sedentary work of a macadamia nut sorter”. A report by Dr Michael Lim, Consultant Occupational Physician, dated 4 July 2001, states:
“The prognosis is poor. Due to the combination of ongoing spinal pain and chronic depression, I expect that Mrs McIntyre will not be able to return to the workforce for the remainder of the year.”
Mention is made under the heading ‘Background’, above, of Ms McIntyre’s also working casually for Agrimac. Information obtained from the payroll officer at Agrimac, detailed in a letter from the insurer’s solicitors dated 30 June 2000 to Ms McIntyre’s solicitors, confirmed that she was employed by Agrimac from 30 July 1977 until 1 October 1997, from 6 May 1998 until 22 October 1998, and from 19 May 1999 until 28 July 1999.
With regard to the amount of Ms McIntyre’s weekly wages prior to her injuries in 1999, according to her solicitors (letter of 4 July 2000), she was paid $350.75 for the 25 hours per week she worked for Agrimac and $465.39 for the 36 hours per week she worked for Mistral. Applying section 42(7) of the 1987 Act, Ms McIntyre’s then current weekly wage rate was the sum of $465.39 and $350.75 multiplied by 40 and divided by the 61 hours she worked, giving a figure of $535.18 per week. Ms McIntyre’s solicitors calculated that the difference between the rate paid by Mistral of $491.25 and the correct rate payable pursuant to section 36 of the 1987 Act (the weekly payment in respect of total incapacity during the first 26 weeks), was an additional $43.93.
DISCUSSION AND FINDINGS
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, Mistral 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.
In their submissions, both parties cited the NSW Court of Appeal decision in Ince. In that decision, Clarke JA, delivering the judgment of the Court, cited the House of Lords decision in Doudie as establishing the relevant principle that “has been continuously applied” in NSW (at 698). The principle is that where a worker receiving weekly compensation for partial incapacity as a result of an injury, suffers a second unrelated injury at a later date and becomes totally incapacitated for work as a result, liability for partial incapacity in respect of the first injury does not cease because of the later totally incapacitating second injury. Similarly, where a worker suffers a second unrelated injury that results in partial incapacity for work, whether in the same or different employment, compensation is payable by the employer in respect of that incapacity. Each state of partial incapacity gives rise to a separate continuing award: Holmes v Civil & Civic Pty Ltd (1970) 72 SR (NSW) 583. However, a worker who is entitled to two separate awards for partial incapacity from two separate injuries must not be placed in a better financial position than their pre-incapacity position (see Alcan).
The first issue I must determine is whether the Arbitrator made an error of fact in deciding that Ms McIntyre was totally incapacitated for work as a result of her injuries from 23 July 1999. Firstly, the parties agree, rightly, that the deemed date of injury in respect of her back is 25 October 1999, as found by the Arbitrator in his previous determination dated 1 January 2004 in respect of the payment of compensation pursuant to section 67 of the 1987 Act. Thus, liability for weekly payments in respect of her back injury will be treated as commencing from 25 October 1999 and not 23 July 1999.
Secondly, I am sympathetic to Mistral’s solicitor’s submission in relation to the adequacy of the Arbitrator’s reasons about Ms McIntyre’s capacity for work. It is not clear what the Arbitrator means when he says in his Statement of Reasons at paragraph 26 that he finds “the balance of probabilities is in favour of the Applicant”. Nor does he explain how the medical evidence and Ms McIntyre’s statements support a finding that she is totally incapacitated for work as a result of the back and left leg injury.
In my view, the medical evidence, while establishing that she is not fit for her pre-injury employment with Mistral, indicates, nevertheless, that she may be capable of suitable light work. This is apparent from the reports of her family doctor, Dr Delaney, together with those of Dr Searle, Dr Maloney, and Dr Parkington. I am also not satisfied that Ms McInyre’s statements of 20 November 2002 and 29 September 2003 establish more than that she is subject to various physical limitations, albeit unpleasant and difficult to cope with, as a result of her back and leg injury, and that this condition causes her pain. Indeed, even Ms McIntyre’s solicitor contended at the arbitration hearing, in oral submissions, that her incapacity for work because of this injury is partial (transcript of arbitration hearing, page 3). I note that the test to be applied in determining whether a worker is partially incapacitated is that of whether a worker is physically unable to do some of things which, when uninjured, the worker could do, as a result of which the worker’s ability to sell his or her labour in the relevant labour market is adversely affected: Summerson v Alcan Australia Ltd (1994) 10 NSWCCR 571. In my view, this is what the evidence establishes in respect of Ms McIntyre’s back and leg injury.
I therefore conclude that the medical evidence supports a finding that Ms McIntyre is partially incapacitated for work as a result of the injury to her back and left leg and that the Arbitrator made an error in the exercise of his discretion when he found Ms McIntyre to be totally incapacitated because of this injury.
It is clear from the discussion of the relevant law above, that Ms McIntyre is entitled to a separate award in respect of the partial incapacity arising from the injury to her back and leg. That award, and any award in respect of the injury to her left shoulder and neck, must not, when combined, place Ms McIntyre in a better financial position than she would have been had she not been injured. Moreover, in determining what is now payable, credit must be allowed to Mistral for such weekly compensation as has already been paid voluntarily in respect of the injury to her left shoulder and neck.
In my view, the appropriate course is to remit the matter to the Arbitrator to determine the weekly compensation payable to Ms McIntyre in respect of the partial incapacity arising from the injury to her back and leg in accordance with the provisions of the 1987 Act.
DECISION
The decision of the Arbitrator, dated 2 June 2004, is revoked and the following decision is made in its place:
(1) The Appellant, Mistral Plantations Pty Ltd, is to pay the Respondent, Ms McInytre, weekly compensation for partial incapacity arising from the injury to her back and leg commencing from 25 October 1999, the deemed date of injury.
(2) The matter is remitted to the Arbitrator at first instance to determine the rate of weekly compensation payable in accordance with this decision and the provisions of the Workers Compensation Act 1987.
COSTS
No order is made as to the costs of this appeal.
Robin Handley
Acting Deputy President
13 July 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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