NSW Department of Education and Training v Sanders

[2004] NSWWCCPD 89

WORKERS COMPENSATION COMMISSION

APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:NSW Department of Education and Training v Sanders [2004] NSW WCC PD 89

APPELLANT:  NSW Department of Education and Training

RESPONDENT:  Margaret Sanders

INSURER:GIO Australia Limited

FILE NUMBER:  WCC12301-03

DATE OF ARBITRATOR’S DECISION:          13 July 2004

DATE OF APPEAL DECISION:  17 December 2004

SUBJECT MATTER OF DECISION: Inadequacy of reasons for decision; error in finding of personal injury; failure to consider section 10(1D) of the Workers Compensation Act 1987.

PRESIDENTIAL MEMBER:  Deputy President Gary Byron

HEARING:On the papers.

REPRESENTATION:  Appellant: Turks Legal

Respondent: Brydens Law Office

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

The Appellant Employer is to pay the costs of the appeal.

THE APPEAL

1. On 29 October 2001 Margaret Sanders, the Respondent Worker, was driving to work.  She states that she entered a roundabout, turned her head to the right and felt a sharp pain on the left side of her neck, in her left shoulder, her left arm and her left hand and fingers.  She describes the pain as intense.  Mrs Sanders says that she did not proceed to work but immediately returned home. 

1. Ms Sanders notified the Appellant Employer, the NSW Department of Education and Training of her injury, on the same day.  She lodged a claim with the Insurer, GIO Australia Limited, on 23 April 2003 for $21,000 for permanent impairment and $25,000 for pain and suffering.  Her claim was rejected.  On 17 July 2003 Ms Sanders lodged an Application to Resolve a Dispute in the Workers Compensation Commission and on 13 July 2004 an Arbitrator made a decision in her favour in relation to the questions of injury and liability only.  On 10 August 2004 the Appellant Employer lodged in the Commission an appeal against the decision of the Arbitrator.  The substantive dispute remains before the Arbitrator for finalisation if necessary, following the determination of this appeal.

ISSUES IN DISPUTE

1. The issues in dispute in the appeal are:

   ·Whether the Arbitrator failed to give adequate reasons for her finding that Ms Sanders suffered a personal injury as opposed to the aggravation of an existing disease, and whether she erred in making that finding

   ·Whether the Arbitrator erred by failing to consider section 10(1D) of the Workers Compensation Act 1987 (the 1987 Act), as to whether the injury arose out of a medical or other condition of the worker, in determining whether section 10(1) should apply.

JURISDICTION

1. Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).

1. In this matter I am satisfied that:

   ·The appeal is filed within 28 days of the decision appealed against (section 352(4) of the 1998 Act).  The appeal was lodged in the Commission on 10 August 2004;

   ·The amount of compensation at issue on the appeal is at least $5,000 (section 352(2)(a) of the 1998 Act);

   ·No amount was awarded in the decision appealed against and therefore section 352(2)(b) of the 1998 Act has no application (Mawson v Fletchers International Exports Pty Limited [2002] NSW WCC PD 5), and

   ·No new evidence is submitted in the appeal (section 352(6) of the 1998 Act).

2. Leave to appeal is granted.

ON THE PAPERS REVIEW

1. Section 354(6) of 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.”

2. 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. 

SUBMISSIONS

1. The Appellant Employer has submitted:

·The Arbitrator’s reasons are confined to “paragraph 21 leading to the findings contained in paragraph 22”.

·The Arbitrator failed adequately to address the relevant issues, being whether the injury was in the nature of a personal injury or the aggravation of a disease process, in that no consideration was given to the mechanism of injury and the nature of the pathology present.  The reasons are insufficient to determine the actual basis of the findings made.

·Even if the Arbitrator determined that Ms Sanders suffered a personal injury on the journey to work, she failed to consider the operation of section 10(1D) in determining whether the personal injury resulted from the medical or other condition of the worker.

·The decision “is against the authority of the decision in Trindall v Birralee Pre School Aboriginal Corporation (1994) 10 NSWCCR 768 in rejecting the submissions made in that regard.”

·The Arbitrator should have found that the injury suffered was in the nature of an aggravation of a disease as distinct from a personal injury. Even if that part of the decision is upheld, “the operation of section 10(1D) is such that the deeming provision of section 10(1) does not apply and there should be an award in favour of the applicant employer.”

1. The Respondent Worker has submitted:

·The injury suffered is a “frank injury” sustained by Ms Sanders while on her journey to work.  There is no dispute that it occurred on her way to work.  Compensation payments were made until the receipt of a medico-legal report by Dr Chang.  Detailed submissions were made to the Arbitrator and the weight of the evidence supports the fact that Ms Sanders suffered a frank injury while travelling to her place of work.

·Ms Sanders was asymptomatic prior to the injury, which involved the sudden onset of pain while negotiating the roundabout.  On 16 August 2002, Dr Yiannikas diagnosed the injury as “severe left median nerve lesion”.

·The Arbitrator correctly stated that Ms Sanders suffered a personal injury within the first “leg” of section 4 and 10(1) of the 1987 Act, on 29 October 2001.

·The facts and “characterisation of the case are supported by the evidence and found the conclusions reached by the arbitrator.”

·The Arbitrator’s decision should not be disturbed unless on review it is found to be affected by an error of law, fact or discretion (Allesch v Maunz (2000) 203 CLR 172; Mayne Health Group t/a Nepean Private Hospital v Sandford [2002] NSW WCC PD 6; Wyong Shire Council v Paterson [2004] NSW WCC PD 45 at paragraph 15).

·The Arbitrator’s reasons are adequate and must be read in conjunction with the material referred to in the statement of reasons for decision. The Arbitrator referred to the submissions of the parties, and the rejection of aspects advanced by the Appellant Employer provides sufficient guide as to the path followed by the Arbitrator. She rejected the application of section 10(1D) of the 1987 Act by finding an absence of symptoms prior to the injury and finding that a frank injury was sustained on the journey to work. The Arbitrator deals clearly with the issues raised and is not required to restate “submissions which have been made in writing and which are known to the parties.” The reasons of the Arbitrator are logical and no error of law has been made.

DISCUSSION AND FINDINGS

Adequacy of Reasons

1. An Arbitrator has a statutory duty to provide adequate reasons for decision.  Section 294(2) of the 1998 Act and Rule 73 require the Commission to provide reasons for decision in the determination of a dispute.  (See also Absolon v NSW TAFE [1999] NSWCA 311 and YG v Minister for Community Services [2002] NSWCA 247). Failure to provide adequate reasons is not only a breach of an Arbitrator’s statutory and common law obligations, it is an error of law (Sydney Water Corporation Ltd v Aqua Clear Technology, Supreme Court of NSW, per Rolfe J, (P/L 55047/96) 17 December 1996; Dennis Willcox Pty Limited v Federal Commissioner of Taxation (1988) 79 ALR 267). If the failure is established, it may be a ground to revoke the decision made. An Arbitrator is not required to give lengthy and detailed reasons for decision, nor to recite and analyse in detail the content of the evidence and submissions. The standard by which adequacy of reasons must be determined is relative to the nature of the decision itself and the decision-maker (see discussion in Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSW WCC PD 6 and Fraternity Bowling & Recreation Club Ltd v Sartor [2004] NSW WCC PD 47). The Commission is not a court and its proceedings are conducted with as little formality and technicality as the proper consideration of the matter permits (see Objectives of the Commission in section 367 of the 1998 Act).  Fundamentally, the reasons given must be capable of conveying adequately to the parties, the basis upon which the Arbitrator came to the decision that was made.

1. In this matter the Arbitrator took into account the evidence submitted by the parties, including a consideration of the medical evidence.  While Dr Conrad found “no evidence of pre-existing degenerative disease or previous accidents and therefore this impairment and loss relates directly to the accident of the 29^th October 2001”, Dr Chan reported that, “Both the CT scan and the MRI show osteoarthritis affecting the cervical joints.”  The Arbitrator acknowledged that Dr Chan went on to say “....the pre-existing condition is not related whatsoever to her work with the Department of Education and Training.”  The Arbitrator set out in her reasons, a number of medical reports that she considered, including that of Dr Fernandes, Dr Yiannikas, Dr Sachinwealla, Dr Rail and Dr Sing.  She also referred to a report dated 7 April 2003 from Dr Ng, Ms Sanders’ treating doctor, who indicated his belief that the injury was sustained as stated by Ms Sanders.  The Arbitrator took all of the medical evidence into account and preferred the medical evidence put forward by Ms Sanders, finding that it was all “consistent”.  The Arbitrator also accepted Ms Sanders' account of what occurred on the journey to work, although this is not in dispute between the parties.

2. The Arbitrator weighed up the evidence, as she was required to do, and arrived at her decision based upon that evidence and the weight of that evidence.  The reasons are quite succinct, and not lengthy and detailed.  However, a reading of the reasons as a whole (Beale v GIO (NSW) (1997) 48 NSWLR 430 at 444; Minister for Immigration and Multicultural Affairs v Wu Shan Liang (1996) 185 CLR 259) in the context of the evidence provided and the submissions made, would adequately convey to the parties who are acquainted with the circumstances of this matter, the basis upon which the Arbitrator came to her decision. I find that the reasons of the Arbitrator are adequate and that this ground of appeal is not made out.

Finding of Injury

1. Whether or not there is an adequacy of reasons, the Appellant Employer submits that the Arbitrator’s finding that this was a frank injury rather than the result of an existing medical condition, was incorrect and against the evidence and the authorities. 

1. The Arbitrator found as a fact that Ms Sanders was “asymptomatic prior to the event”.  She found further that the injury was a personal injury arising out of or in the course of employment (s 4(a) of the 1987 Act), and that the injury was sustained on a journey to which section 10 of the 1987 Act applies, and therefore arose out of or in the course of employment (section 10(1) of the 1987 Act).

1. There is no dispute between the parties as to the events that occurred, nor that Ms Sanders was on a journey to work.  A personal injury need not be sustained in an accident such as a collision or other overtly traumatic event, but need only amount to a trauma “due to one or a series of happenings, or as trauma aggravating or accelerating disease, or as disease aggravated or accelerated by the effects of trauma, or as a disease alone contracted in the course of the employment and to which the employment was a contributing factor.” (TheCommissioner for Railways v Coates [1960] WCR (NSW) 88 per McClements J at 103). The injury as described by Ms Sanders was a “happening” and therefore may be sufficiently categorized as “trauma” to qualify as personal injury.

1. Liability for the injury was accepted and compensation was paid until Dr Chan’s report of 

31 October 2002 was provided, some twelve months after the relevant journey.  His opinion is substantially at odds with that of the consistent medical evidence produced by Ms Sanders.  Notwithstanding that Dr Chan found a pre-existing condition, he referred to an “aggravation, meaning the accident she had with Department of Education and Training”.  He went on to say that this had healed after six months and the prognosis “is good”.

1. However, the medical evidence provided by Ms Sanders is not only consistent, as the Arbitrator has said, it is clear.  Dr Conrad, in one of his reports dated 3 April 2003 states:

“Further to my report regarding Mrs Sanders.  As a result of her accident of the 29^th October 2001 she has sustained a:

·        15% permanent impairment of her neck, and a:

·        20% permanent loss of efficient use of the left arm at or above the left elbow taking into account losses below the left elbow and to include the hand to account for her left radiculopathy.

There is no evidence of pre-existing degenerative disease or previous accidents and therefore this impairment and loss relates directly to the accident of the 29^th October 2001, which can be said to be a substantial contributing factor to her impairment and loss.”

1. References to an unrelated carpel tunnel syndrome condition aside, the medical reports provided in evidence, support the existence of her frank injury, and the cause and extent of it. 

1. The Arbitrator was entitled to prefer the medical evidence put forward by Ms Sanders, over the evidence submitted by the Appellant Employer, notwithstanding the significant divergence of opinion, diagnosis and prognosis that exists between the two sets of evidence.

1. The balance of the evidence is clearly in favour of Ms Sanders.  The findings and decision of the Arbitrator are consistent with the decision in Trindall v Birrelee Pre-School Aboriginal Corporation (1994) 10 NSWCCR 768 and the authorities cited in that case, in which it was found “that it was the trauma of the rear end collision which rendered his asymptomatic neck and back to become symptomatic and therefore was an injury simpliciter, personal injury received on a journey to work.”  Similarly, in the instant case, Ms Sanders suffered an injury simpliciter when she turned her head while negotiating a roundabout on the way to work.

1. In the circumstances, the Arbitrator was not required to take into account the provisions of section 10(1D) of the 1987 Act.

1. I find that the Arbitrator did not err in preferring the evidence put forward by Ms Sanders and that her finding of a frank injury is soundly based on the evidence before her.

Conclusion

1. I find that the Arbitrator’s decision contains no error of fact, law or discretion.  Consequently, the appeal must fail.         

DECISION

1. The decision of the Arbitrator is confirmed.

COSTS

1. The Appellant Employer is to pay the costs of the appeal.

Gary Byron

Deputy President  

17 December 2004

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

ASSOCIATE