Morgan v Coles Myer Limited
[2005] NSWWCCPD 64
•7 July 2005
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Morgan v Coles Myer Ltd [2005] NSW WCC PD 64
APPELLANT: Gail Morgan
RESPONDENT: Coles Myer Ltd
INSURER:Coles Myer Ltd
FILE NUMBER: WCC 19752-03
DATE OF ARBITRATOR’S DECISION: 31 May 2004
DATE OF APPEAL DECISION: 7 July 2005
SUBJECT MATTER OF DECISION: Whether employment was a substantial contributing factor - sections 9A and 16 of the Workers Compensation Act 1987, and adequacy of reasons.
PRESIDENTIAL MEMBER: Acting Deputy President Robin Handley
HEARING:On the papers
REPRESENTATION: Appellant: White Barnes, Solicitors
Respondent: Lander & Rogers, Lawyers
ORDERS MADE ON APPEAL: The decision of the Arbitrator is confirmed.
No order is made as to the costs of this appeal.
BACKGROUND TO THE APPEAL
On 28 June 2004, Gail Morgan sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) in respect of a decision dated 31 May 2004.
The Respondent to the Appeal is Coles Myer Ltd.
Ms Morgan was born on 15 May 1955 and is aged 50. She commenced employment with Coles Myer as a permanent casual meatpacker at its Bi-Lo supermarket at Shellharbour Square in or about November 2001. Ms Morgan states that in about January 2003, she spoke with the Occupational Health and Safety person together with her union representative and told them of her concerns in relation to her arms and wrists. She noticed that the pain in her wrists and hands continued to get worse and, on 12 February 2003, she told her supervisor. On 25 February 2003, she went to see a general practitioner, Dr Bartle, who said he thought she had carpal tunnel syndrome and referred her for nerve conduction tests that were conducted on 5 March 2003. On 7 March 2003, Ms Morgan saw her usual general practitioner, Dr Drastik, who confirmed the test results showed she was suffering from carpal tunnel syndrome and referred her to an Orthopaedic Surgeon, Dr Deshpande. Ms Morgan saw Dr Deshpande on 28 March 2003 and he gave her a note stating that she was suffering from “(R) carpal tunnel syndrome”. Ms Morgan gave the note to her supervisor on 29 March 2005 and, on 31 March 2003, completed a formal incident report.
By letter dated 10 April 2003, Coles Myer notified Ms Morgan of provisional acceptance of liability. It arranged for her to be examined by Dr Murray Stapleton, Hand Surgeon, on 6 May 2003, and Dr Philip Truskett, General Surgeon, on 20 June 2003 for the purpose of them preparing medico-legal reports. While both diagnosed bilateral carpal tunnel syndrome, neither considered the condition to be work-related. By letter dated 26 June 2003, Coles Myer declined any further liability from that date. By letter dated 16 July 2003, Ms Morgan’s solicitors sought a reconsideration of Coles Myer’s decision.
The dispute not having been resolved, on 17 December 2003, Ms Morgan’s solicitors filed an ‘Application to Resolve a Dispute’ with the Commission in respect of her claim for weekly compensation payments of $415.55 since 26 June 2003 and continuing, together with medical, hospital or related expenses amounting to approximately $3,000. On 13 January 2004, Coles Myer filed its ‘Reply’. The Arbitrator conducted a teleconference with the parties on 15 April 2004 and, on 11 May 2004, conducted an arbitration, conciliation having proved unsuccessful. The Arbitrator gave an ex tempore decision at the end of the arbitration hearing and, on 31 May 2004, a Certificate of Determination, as set out below, was issued.
THE DECISION UNDER REVIEW
The Certificate of Determination, dated 31 May 2004, records the Arbitrator’s orders as follows:
“1. The Application is dismissed.
2. No order as to costs.”
In his ‘Statement of Reasons for Decision’, the Arbitrator noted the parties had provided a Statement of Agreed Facts. Included among these agreed facts are the following:
“5. The worker has been diagnosed and suffers from Bilateral Carpal Tunnel Syndrome.
6. If her employment with the respondent is found to be [sic] significant contributing factor, the parties agree that the right sided Carpal Tunnel Release is reasonably necessary treatment in accordance with section 60.
7. The applicant’s average weekly earnings are $353.”
The Arbitrator found the reports of Dr Stapleton and Dr Truskett to be “comprehensive and consistent in their firm conclusions that the applicant’s injury is carpal tunnel syndrome which is not a work-related condition but constitutional in nature”. The Arbitrator preferred these reports to those of Dr Deshpande that “lack consistency and are not as comprehensive”. The Arbitrator concluded that Ms Morgan’s employment by Coles Myer was not a substantial contributing factor to her injury, nor was it a substantial contributing factor to the alleged aggravation of her condition as contended by her Counsel as an alternative ground.
ISSUES IN DISPUTE
The issues in dispute in the appeal are:
(1) whether Ms Morgan’s employment by Coles Myer was a substantial contributing factor to her bilateral carpal tunnel syndrome, or alternatively,
(2) whether that employment was a substantial contributing factor to the aggravation of her condition.
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 Morgan’s solicitors that the appeal can proceed to be determined on the basis of these documents. I note Coles Myer states that it “does not consent to this matter being dealt with on the papers” but does not explain why. 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.
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. Even though the Arbitrator made an ex tempore decision on 11 May 2004, Rule 77(2) of the Workers Compensation Rules 2003 states that a decision is made in respect of a dispute when the Commission issues a Certificate of Determination in respect of the dispute. Thus, the 28 day period within which an appeal must be lodged runs from the date of the Certificate, which was 31 May 2004.
With regard to section 352(2), Ms Morgan’s solicitors assert that the amount of compensation at issue, $353.00 per week since 30 June 2003 plus medical expenses, exceeds $5,000. No compensation was awarded in the decision appealed against and 100% of the claim is at issue. I am therefore satisfied that the threshold in section 352(2) has been met and grant leave to appeal.
FRESH EVIDENCE
Fresh evidence on appeal is governed by section 352(6) of the 1998 Act, which provides as follows:
“(6) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.”
Practice Direction No.6 sets out the process for seeking leave of the Commission to give ‘new evidence’ on appeal. It provides as follows:
“New Evidence
Where a party seeks leave to give new evidence in relation to the decision appealed against, that party must serve a copy of the new evidence on the other parties to the dispute when serving the Application or Opposition.
In general, the Commission will allow new evidence to be introduced only where it can be demonstrated that the new evidence could not reasonably have been obtained by the party and tendered in proceedings before the Arbitrator and that failure to allow the new evidence would cause a substantial injustice in the circumstances of the individual case.”
Practice Direction No.6 also provides that if new evidence is sought to be relied upon, the Application or Opposition to the Appeal must contain:
“ -a schedule of the new evidence,
-a copy of the new evidence,
-a brief outline of the new evidence and the reasons why it was not given in the
proceedings before the Arbitrator, and
-submissions why the new evidence should be admitted.”
Ms Morgan’s solicitors seek the admission of two additional medical reports from Dr R Deshpande, Orthopaedic Surgeon, dated 30 May 2003 and 4 June 2003, together with letters from Coles Myer to Dr Deshpande dated 10 June 2003 and 26 June 2003. The solicitors state that they were unaware at the time of the arbitration hearing that these documents had been produced and they did not gain access to the documents until after the conclusion of the arbitration hearing on 11 May 2004. Their client would be significantly prejudiced if the reports are not admitted. Coles Myer already had the documents in its possession.
Coles Myer object to the documents being admitted. It contends these documents were readily available at the hearing and, in any event, add nothing to the evidence of Dr Desphande that was already before the Arbitrator.
The admission of new or fresh evidence in an appeal has been considered by the Commission in a number of cases and the principles are well established: see, for example, Shipman Pty Ltd v Matters [2003] NSW WCC PD 19, McMahon v Laguna and Lavella t/as the Vessel “Nimble II” [2003] NSW WCC PD 22. The factors that weigh in favour of the exercise of the discretion to admit fresh evidence in an appeal include:
• if the request is refused, a substantial injustice will result to the party who seeks to have the evidence admitted;
• the evidence could not have been discovered, with reasonable diligence, at the time of the original proceedings; and
• the evidence is of such probative value that there is a high degree of probability that it would lead to a different outcome in the case.
Factors weighing against the exercise of the discretion include:
• the interest in the finality of the litigation and the importance of the successful party being able to rely on the outcome of the proceedings;
• the prejudice, if any, that may result to the other party, particularly if the fresh evidence raises new arguments in the appeal; and
• the intention of the legislative scheme in relation to the nature of the proceedings.
With regard to the intention of the legislative scheme, it should be noted, in particular, that section 352(5) of the 1998 Act provides that “[a]n appeal under this section is to be by way of review of the decision appealed against” – the appeal is not a rehearing of the matter. The Presidential Member’s role is to review the decision of the Arbitrator, and the Presidential Member may only revoke, substitute or remit in relation to that decision (section 352(7)) where it can be demonstrated that the decision is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172, Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSW WCC PD 6).
An examination of the Commisson’s file shows that an Access Order was faxed to Ms Morgan’s solicitors on 5 May 2004 notifying them of an access period from 6 to 12 May 2004 in respect of a packet of documents produced by Dr Deshpande. Why her solicitors did not take advantage of this is not clear. However, it appears that the documents at issue could have been obtained by Ms Morgan’s solicitors and tendered at the arbitration hearing.
Three reports from Dr Deshpande were in evidence before the Arbitrator: those of 28 March 2003, 2 May 2003 and 4 November 2003. Having reviewed the documents at issue, I am not satisfied that they add anything to the evidence already before the Commission. Essentially, Dr Deshpande covers similar ground to that in his other three reports which are in evidence. I am therefore not satisfied that any prejudice would be caused to Ms Morgan by my not admitting the documents. In my opinion, the documents are not of such probative value that their admission might lead to a different outcome, nor would any substantial injustice result to Ms Morgan if admission is refused. I therefore refuse leave to admit the additional documents.
SUBMISSIONS
Ms Morgan’s solicitors identified six grounds of appeal:
“A. The Arbitrator erred in declining to accept the view of the worker’s treating doctor, Dr Deshpande.
B. The Arbitrator erred in accepting the evidence of Dr Stapleton in the absence of appropriate supportive material for the view expressed.
C. The Arbitrator erred in failing to take into account the totality of the evidence in reaching his conclusions.
D. The Arbitrator erred in failing to provide full and proper reasons for the conclusions of fact and law he arrived at.
E. The Arbitrator misdirected himself as to the state of the evidence in the matter.
F. The Arbitrator misapplied the appropriate case law and statute law in determining whether the Applicant’s condition was work related.”
With regard to Ground A, Ms Morgan’s solicitors submit that a reading of Dr Deshpande’s reports show some depth of reasoning rather than a lack of consistency. Moreover, as Ms Morgan’s treating doctor, he is in a superior position to make an assessment rather than a medico-legally qualified doctor. Coles Myer submit the inconsistency in Dr Deshpande’s reports is obvious on the face of the reports and “it is clear that Dr Deshpande changed his opinion”. Moreover, having examined Ms Morgan on 28 March 2003, he does not appear to have examined her again, and is therefore in no superior a position to that occupied by Coles Myer’s doctors.
With regard to Ground B, Ms Morgan’s solicitors submit that Dr Stapleton failed to address her employment in any detail: “He appears to have completely discounted the onset of Ms Morgan’s symptoms coinciding with the repetitive nature of her work.” Moreover, neither Dr Stapleton nor Dr Truskett explains the scientific basis for his opinion about carpal tunnel syndrome. Coles Myer submit that Dr Stapleton referred to the exact nature of Ms Morgan’s duties and his report contains a more detailed history than Dr Deshpande’s reports. Dr Stapleton’s opinion that carpel tunnel syndrome is not work related is consistent with Dr Deshpande’s opinion that “the exact cause of carpel tunnel syndrome is unknown”. Dr Stapleton’s opinion that most women present with carpal tunnel syndrome at the age of menopause is consistent with Dr Truskett’s opinion that the condition predominantly affects women in their 40s and 50s. Dr Deshpande also conceded that the condition “mostly affects females”. Coles Myer note that no body of medical evidence had been presented to support his opinion that the condition can be work related.
With regard to Ground C, Ms Morgan’s solicitors submit the Arbitrator failed to consider Ms Morgan’s evidence as a whole. He did not address her statement nor the medical report of Dr Govind. Coles Myer rejects this submission and states that while it is true that the Arbitrator did not address the report of Dr Govind, this is hardly surprising since Dr Govind did not address the threshold issue of whether Ms Morgan’s employment was a substantial contributing factor to her injury.
With regard to Ground D, Ms Morgan’s solicitors submit that the Arbitrator failed to provide adequate reasons for his decision, which constitutes an error of law. The Arbitrator failed to address substantial material concerning Ms Morgan’s day to day duties, the fact that she had no symptoms prior to her commencing employment with Bi-Lo, the onset and escalation of symptoms while at work, and the decrease in symptoms since ceasing work. Coles Myer rejects this submission. It contends the Arbitrator took into account all the evidence before him, carefully considered the arguments presented by the parties, and gave a detailed review of the medical evidence before reaching his ultimate conclusion which was a factual decision based on the evidence before him.
With regard to Ground E, Ms Morgan’s solicitors submit there was no evidence to support the Arbitrator’s finding that the condition would have occurred anyway. The Arbitrator does not seem to have considered the evidence as to the evolution of her condition in the course of her employment and its partial regression after cessation of employment. Coles Myer notes the Arbitrator concluded correctly that there was insufficient evidence of any relevant aggravation.
With regard to Ground F, Ms Morgan’s solicitors submit the Arbitrator did not follow a common sense evaluation (Vescio v Top Form Concrete Pty Ltd (1996) 13 NSWCCR 255) of the causal chain by failing to take into account Ms Morgan’s duties, symptoms and the regression of those symptoms once she ceased work. The Arbitrator misapplied the test in Mercer v ANZ Banking Group Ltd (2000) 48 NSWLR 740 (‘Mercer’), where the NSW Court of Appeal held that employment must be ‘a’ substantial contributing factor. Coles Myer contends that the Arbitrator correctly applied the test in Mercer.
EVIDENCE
The relevant evidence before the Arbitrator in relation to the principal issues comprised:
• a statement from Ms Morgan dated 29 August 2003.
• medical reports from Dr Deshpande, treating Orthopaedic Surgeon, dated 28 March 2003, 2 May 2003 and 4 November 2003.
• a medico-legal report by Dr Murray Stapleton, Hand Surgeon, dated 6 May 2003.
• a medico-legal report by Dr Philip Truskett, Surgeon, dated 23 June 2003.
• a medico-legal report by Dr Jayantilal Govind, Occupational Physician, dated 11 February 2004.
In her statement dated 29 August 2003, Ms Morgan said that in January 2003,
“my duties included repetitive packing, wrapping, labelling, cleaning, lifting trolleys and trays, reaching and other repetitive movements which were undertaken in a cool room which is approximately 12oc. I was not provided with any protective clothing to circumvent the cold temperature.”
She said she had not worked since 2 June 2003, having been certified by her treating doctors as “completely unfit for my pre-injury duties”. She continued:
“27. … to have pain and discomfort in my wrist/arms and elbow. I suffer from numbness, discolouration, swelling pain, tightness, tingling, stiffness and loss of strength in both hands. I experience a weak and brittle feeling in both wrists.
28. My upper arms and shoulder blades are often stiff and painful.
29. I have pain and stiffness in my right elbow and the elbow is sore to touch.
30. …
31. I now have difficulty performing tasks around the house with general housework and gardening. I experience pain and discomfort playing with my grandchildren and when I have to write or use my fingers for food preparation and cooking etc. Brushing my hair, putting on jewellery or applying makeup can aggravate the pain and discomfort I experience.
32. I often wake at night with pain and numbness in my hands, upper arms and shoulders and I have to sit up for a period (usually in an arm chair) until the pain subsides. Sometimes I am awake for hours because of the pain and discomfort.”
In his report of 28 March 2003, Dr Deshpande stated:
“This meat packer is suffering from (R) Carpal Tunnel Syndrome. It is highly probable that this is related to her work at Bi-Lo.”
In his report of 2 May 2003, he said:
“I believe that her work as a meat packer is a major contributing factor in the causation of the bilateral carpal tunnel syndrome and it appeared on activity of her hands which is [sic] involved in meat packing causing synovitis in the flexor tendons thus causing carpal tunnel syndrome.”
In his report of 4 November 2003, Dr Deshpande said:
“Carpal tunnel syndrome is a common condition, mostly affecting females. The exact cause of carpal tunnel is unknown, however, I believe that the repeated activity produces synovitis in the carpal tunnel and if there is any anatomical variation in the carpal tunnel this compromises the median nerve to produce carpal tunnel syndrome.
Therefore I felt that her repeated activities and working in the cold storage area was aggravating her carpal tunnel syndrome. I also believe it may have contributed to some extent in the causation of her condition.”
Dr Deshpande recommended a right carpal tunnel decompression “which would treat the condition successfully and this [sic] enable her to return to normal duties”.
Dr Stapleton, in his report of 6 May 2003, said Ms Morgan was of the age [then 47]:
“when most people present with carpal tunnel syndrome, namely at the age of menopause, and patients present with this condition at this age whether they work or whether they do not.
There is no association between Mrs Morgan’s current condition and her employment. She would have the problem whether she worked or whether she did not.”
Dr Stapleton noted that Ms Morgan’s task of wrapping meat “requires the wrist to be flexed and that puts added pressure on an already compromised median nerve”. In his opinion, the “findings on examination confirm the existence of carpal tunnel syndromes on both sides”. However:
“Employment is not a substantial contributing factor. Carpal tunnel syndrome is not a work-related condition … There is no relationship between Mrs Morgan’s current incapacity and her employment … She needs surgical decompression on both sides and thereafter she should be able to return to pre-injury duties without restriction.”
Dr Truskett, in his report of 23 June 2003, said:
“The symptoms are in keeping with bilateral carpal tunnel syndrome.
Carpal tunnel syndrome is due to compression of the median nerve as it passes through the carpal tunnel from the forearm to the wrist. It is due to probable thickening of tissues in this region.
It is a common condition which occurs predominantly in women in their 40s and 50s.
There does not appear to be a convincing association between the working conditions and the development of this condition. It may be secondary to repetitive wrist trauma but this does not appear to be the case when discussing the working environment of Mrs Morgan. [Earlier in his report, he describes Ms Morgan being required to lift trays of meat, place pieces of meat onto smaller trays, stack these, and cover the trays with ‘glad wrap’.]
Her carpal tunnel syndrome is therefore considered to be of a constitutional nature and not work-related.
Her working environment cannot be considered to be a substantial contributing factor.
Currently she is probably incapable of performing tasks that require repetitive hand movement, as this will cause discomfort. [Dr Truskett states earlier in his report that Ms Morgan “now has less symptoms in her left hand”.]
She would be well advised to have a bilateral surgical carpal tunnel decompression. If this is performed, then she is likely to have a complete recovery without long term sequelae. Her condition is not work-related.”
Dr Govind, in his report dated 11 February 2004, gave the most detailed description of Ms Morgan’s daily duties. These include retrieving pre-cut meat, transferring meat onto smaller meat trays and wrapping the meat trays with ‘gladwrap’. He notes the motion of wrapping requires manual dexterity. Dr Govind said:
“Mrs Morgan was unable to recall any specific acutely traumatic event or a frank injury. She reported that it may have been in late January or early February 2003 when she had become aware of the insidious onset of a tingling sensation, primarily affecting the right thumb, index and little fingers. Initially, the sensory aberration was well-confined, but progressively, the discomfort amplified in terms of frequency, duration, intensity and extent. Pain gradually migrated proximally, to affect the right wrist and the flexor aspect of the right forearm, up to and including the medial aspect of the right elbow.”
He said:
“(12.1.a) With respect to the right hand, the clinical features are indicative of,
*right carpal tunnel syndrome,
*possible medial epicondylitis and,
*supraspinatus tendinitis.
(12.1.b) With respect to the left hand, there is no diagnosable work related injury. Previously experienced symptoms suggestive of carpal tunnel syndrome have spontaneously regressed and physical findings are ‘normal’.”
In relation to Ms Morgan’s capacity to return to pre-injury employment, Dr Govind said:
“Temporarily, given that she remains symptomatic and there are positive physical findings, Mrs Morgan remains unfit for her pre-injury duties. Having regard to the tasks, biomechanics of the right arm extremity, a premature return would result in escalating levels of right arm pain.
However, should she proceed to carpal tunnel decompression and should the various other entheses be adequately attended, there is then a potential for her to return to her pre-injury employment.”
DISCUSSION AND FINDINGS
At the arbitration hearing, there appears to have been agreement between the parties that the Arbitrator should focus on the threshold issues, namely whether Ms Morgan’s employment by Coles Myer was a substantial contributing factor to her bilateral carpal tunnel syndrome, or whether her employment was a substantial contributing factor to the aggravation of that condition.
Section 9A(1) of the Workers Compensation Act 1987 (‘the 1987 Act’) states:
“(1) No compensation is payable under this Act in respect of an injury unless the employment concerned was a substantial contributing factor to the injury.”
Section 16(1) provides that “[i]f an injury consists in the aggravation, acceleration, exacerbation or deterioration of a disease …”:
“(b) compensation is payable by the employer who last employed the worker in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration.”
The parties have referred to the NSW Court of Appeal decision in Mercer. In that case, Mason P, with whom Meagher and Beazley JJA agreed, said:
“26. The term ‘substantial’ may have various shades of meaning. Having regard to the context, it may mean ‘large or weighty’ or ‘real or of substance as distinct from ephemeral or nominal’ (Tillmanns Butchery Pty Ltd v Australasian Meat Industry Employees Union (1979) 42 FLR 331 at 348 per Deane J; Wong v Silkfield Pty Ltd (1999) 73 ALJR 1427 at [27]).
27. Here the word ‘substantial’ qualifies ‘contributing factor’. Obviously it is the extent of the causal link which is at issue. Bishop CCJ [at first instance] recognised this. At [29] of his judgment he held that the meaning to be adopted was that ‘substantial’ meant ‘more than minimal, large or great’. In my view, that was the correct approach, remembering that word is used in the relative sense, recognising that other causative factors may be present. Section 9A does not require that the employment must be ‘the’ substantial contributing cause, nor does it attempt to exclude predisposition or susceptibility to a particular condition: cf University of Tasmania v Cane (1994) 4 Tas R 156.”
In Dayton v Coles Supermarkets Pty Ltd [2001] NSWCA 153, Meagher JA, in the NSW Court of Appeal, held that an employment related contributing factor that is minor in comparison to a non-employment related contributing factor cannot be regarded as ‘substantial’. The Court emphasised that what constitutes a ‘substantial’ contributing factor is a question of fact for the judge.
In Ms Morgan’s case, the Arbitrator concluded that her employment was not a substantial contributing factor to her condition, nor did it aggravate her condition. He considered the evidence of Drs Stapleton, Truskett and Deshpande, preferring the reports of Drs Stapleton and Truskett which he found to be more persuasive – they were comprehensive and consistent and reinforced one another. He found Dr Deshpande’s reports lacked consistency and were not comprehensive. In my view, this was a conclusion the Arbitrator was entitled to draw. Dr Deshpande’s reports appear to be based upon one examination of Ms Morgan on 28 March 2003. His reports of 28 March 2003 and 2 May 2003 lack detail as to why Ms Morgan’s employment was a major contributing factor to her condition. In his report of 4 November 2003, he appears to have modified his opinion, speaking of her employment aggravating her condition and saying that “it may have contributed to some extent in the causation of the condition”. In this report, he also acknowledges that carpal tunnel syndrome “is a common condition mostly affecting females”. While the exact cause is unknown, he believes repeated activity can lead to the condition.
Drs Stapleton and Truskett consider that carpal tunnel syndrome is constitutional in nature, predominantly affecting women around the time of menopause, and not work related. Dr Truskett recognises that the condition of her left hand has improved. He says that performing repetitive hand movements will cause discomfort. All three doctors agree that surgical decompression is likely to lead to a complete recovery.
It is true that the Arbitrator does not refer to Dr Govind’s report dated 11 February 2004. This is perhaps unfortunate since the report is a comprehensive one, albeit that it does not address the question of causation. In particular, Dr Govind notes the regression of symptoms in Ms Morgan’s left hand and says that her premature return to work “would result in escalating levels of right arm pain”.
Ms Morgan’s solicitors contend that the Arbitrator failed to address her statement. It is true that he does not specifically discuss her statement. However, the Arbitrator’s focus was on whether her employment was a substantial contributing factor and he appears to have impliedly accepted the evidence of her employment, focusing instead on the medical evidence of the three specialists as to causation. This may be because her statement lacks detail on the worsening of her condition and does not, for example, say that the condition of her left hand has improved since she ceased work.
Generally as to the adequacy of reasons required for such a decision, I am guided by the decision of Deputy President Fleming in Mayne Health Group t/as Nepean Private Hospital v Sarah Sandford [2002] NSW WCC PD 6 (‘Mayne’), at paragraphs 45 to 48. The Deputy President said Arbitrators have a statutory obligation to provide adequate reasons for decisions and that failure to do so constitutes an error of law. She stated, at paragraph 46:
“The standard by which the ‘adequacy’ of reasons is determined is relative to the nature and context of the decision made and the decision-maker.”
The Commission’s statements of reasons for decisions reflect the fact that it is not a court and that its objectives are to provide a fair and effective dispute resolution process, with proceedings conducted with as little formality and technicality as the proper consideration of the matter requires. On a review, the content of a statement of reasons should not 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). Furthermore, the Deputy President said, at paragraph 48, that to succeed on the ground of inadequate reasons requires:
“that the inadequacy sufficiently demonstrates that the Arbitrator has failed to exercise his or her duty to fairly and lawfully determine the application.”
(See YG & GG v Minister for Community Services [2002] NSWCA 247.)
In my view, a consideration of the evidence indicates there was ample medical evidence to support the Arbitrator’s finding that Ms Morgan’s employment was not a substantial contributing factor to her condition pursuant to section 9A of the 1987 Act. Indeed, the medical evidence suggests the condition was constitutional. Even Dr Deshpande, in his report dated 4 November 2003, seemed to retreat to a position that Ms Morgan’s employment “may have contributed to some extent in the causation of her condition”, but his firmer opinion was that “her repeated activities and working in the cold storage area was aggravating her carpal tunnel syndrome”.
The more difficult question, pursuant to section 16 of the 1987 Act, is, therefore, whether her employment was a substantial contributing factor to the aggravation of her condition. In my view, there was some evidence that Ms Morgan’s condition was aggravated by repetitive hand movements. Ms Morgan having ceased her work as a meat packer, Dr Truskett found (23 June 2003) that she had “less symptoms in her left hand”, and Dr Govind (11 February 2004) found that her left hand symptoms had “spontaneously regressed and physical findings are ‘normal’”. Moreover, there is evidence that repetitive hand movements would aggravate the condition. Dr Truskett considered Ms Morgan “probably incapable of performing tasks that require repetitive hand movement, as this will cause discomfort”. Dr Govind stated that a “premature return [to work] would result in escalating levels of right arm pain”.
The question is, if Ms Morgan’s employment is a contributing factor to the aggravation of her condition, is it substantial? In my view, the answer is ‘no’. There is sufficient evidence to find that Ms Morgan’s employment may have aggravated her condition, but the evidence does not, in my opinion, establish that the aggravation caused was ‘substantial’ – any aggravation appears to have been of a lesser level, such, in the case of the left hand, that the symptoms “have spontaneously regressed” (see Dr Govind, 11 February 2004).
I note that the issue of aggravation does not appear to have been raised by Ms Morgan’s solicitors before the arbitration hearing. Neither the medical evidence – of Drs Deshpande, Stapleton and Truskett - nor Ms Morgan’s evidence addresses this in any depth. Had there been more convincing evidence to support this contention, then the outcome might have been different. However, the evidence presented by Ms Morgan’s solicitors does not, in my opinion, lend support to a finding that her employment was a substantial contributing factor to the aggravation of her condition.
Specifically addressing the grounds of appeal identified by Ms Morgan’s solicitors, I do not consider that the Arbitrator erred in his treatment of Dr Deshpande’s evidence, nor that of Drs Stapleton or Truskett. In my view, the Arbitrator did take Ms Morgan’s evidence into account. It is true that he did not refer to Dr Govind’s report but I am not satisfied that his failure to do so indicates that he was not aware of this evidence given that it did not address issues of causation that were the principal focus of the Arbitrator. Even if the Arbitrator had been unaware of this report, I do not think it would have made any difference to the outcome.
With regard to the adequacy of the Arbitrator’s reasons, bearing in mind what has been said in cases such as Mayne, I do not consider the Arbitrator’s ‘Statement of Reasons for Decision’ to be so inadequate as to amount to an error of law. They discuss the evidence upon which he relied, his findings on material questions of fact and the applicable law in such a way that his reasoning process is understandable to the reader. While I agree that his Reasons are not as comprehensive as they could be, nevertheless, they are adequate.
With regard to Grounds E and F, I note that Ms Morgan’s statement does not mention any regression of her symptoms nor does it give any specific detail about the evolution of her condition while still in employment. For example, there is no indication of what particular activities gave her problems or caused her pain or discomfort. I am satisfied there was sufficient medical evidence to support the Arbitrator’s findings and there is nothing to indicate that he misapplied the law.
In conclusion, I am not satisfied that the Arbitrator’s decision was affected by any legal, factual or discretionary error such that my power to interfere with his decision would be enlivened.
DECISION
The decision of the Arbitrator is confirmed.
COSTS
No order is made as to the costs of this appeal.
Robin Handley
Acting Deputy President
7 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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