O'Brien Glass Industries Ltd v Lisa Mary Pisani and Ors(Schedule of Parties Attached)
[2019] VSCA 61
•20 March 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2018 0080
| O’BRIEN GLASS INDUSTRIES LTD | Applicant |
| v | |
| LISA MARY PISANI & ORS (SCHEDULE OF PARTIES ATTACHED) | Respondents |
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| JUDGES: | KYROU and McLEISH JJA and ALMOND AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 23 October 2018 |
| DATE OF JUDGMENT: | 20 March 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 61 |
| JUDGMENT APPEALED FROM: | [2018] VSC 294 (Daly AsJ) |
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ACCIDENT COMPENSATION – Application for leave to appeal – Workplace injury – Recurrence of soft tissue injury – Employment significant contributing factor to injury – Injury resolved but for ongoing susceptibility – Caldipp Pty Ltd v Delov [2002] FCAFC 352 – Opinion of medical panel – No sufficient basis to quash opinion of medical panel – Accident Compensation Act 1985, ss 5, 82, 91E, 93, 93A, 93B, 93C – Adequacy of reasons – Workplace Injury Rehabilitation and Compensation Act 2013, s 313(2) – Leave to appeal granted – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J Gorton QC with Mr R Kumar | Thomson Geer |
| For the First Respondent | Mr P Solomon QC with Mr L Allan | Shine Lawyers |
KYROU JA:
I agree with Almond AJA.
McLEISH JA:
I have had the advantage of reading in draft the reasons prepared by Almond AJA. I agree with him, for the reasons he gives, that leave to appeal should be granted, but that the appeal should be dismissed.
ALMOND AJA:
On 6 June 2018, an associate judge in the Trial Division dismissed an originating motion brought by the applicant, O’Brien Glass Industries Ltd, against Lisa Pisani and members of a medical panel (‘Panel’) for an order quashing the opinion of the Panel in respect of certain medical questions and remitting those questions to a differently constituted medical panel for reconsideration.
The applicant seeks leave to appeal against the associate judge’s decision on two grounds. First, the associate judge erred in finding that it was open to the Panel to conclude that compensable incapacity can persist after an injury had fully resolved. Secondly, the associate judge erred in concluding that the Panel’s reasons for its opinion were sufficient. Ms Pisani resisted the application. The Panel did not take any part in the hearing of the application (or at trial).
In my opinion, for the reasons that follow, leave to appeal should be granted but the appeal should be dismissed.
Background
Ms Pisani was born on 8 September 1981 and, as at the date of the opinion of the Panel, was aged 35 years.
From 1 September 2011, Ms Pisani was employed by Australian Staffing Agency Pty Ltd (‘ASA’) and worked as a data entry operator. In the course of her work, she developed pain in her hands and wrists which gradually became worse. She ceased work on 23 September 2011 and was treated conservatively by her general practitioner. The Panel recorded a history from Ms Pisani that her symptoms had settled over a period of three months and that she felt that her hands and wrists had returned to normal by around December 2011.
On 30 January 2012, Ms Pisani commenced employment with the applicant. She was employed as a full-time auto technician. The Panel recorded that Ms Pisani had no pain in her hands and wrists while working with the applicant until 10 April 2012.
On 10 April 2012, Ms Pisani was replacing a car windscreen on her own for the first time. The Panel recorded that she felt a sudden pain and loss of strength in both wrists while holding the replacement windscreen, which she estimated weighed approximately 20 kg, and that she had completed the task but had not been able to complete any further work that day. Ms Pisani did not return to work with the applicant after 10 April 2012.
On 28 September 2012, Ms Pisani completed workers injury claim forms in which she alleged injury by way of ‘bilateral hand pain’ said to have occurred:
(a)in the course of her employment as a data entry operator with ASA; and
(b)in the course of her employment with the applicant while fitting a windscreen on a car on 10 April 2012.
Both those claims were rejected.
Ms Pisani commenced proceedings in the Magistrates’ Court in which ASA was named as the first defendant and the applicant as the second defendant. By an order made on or about 24 November 2016, a magistrate referred certain medical questions for determination by a medical panel.
The Panel examined Ms Pisani on 31 January 2017. On 3 March 2017, it gave a ‘Certificate of Opinion’ and a statement of its ‘Reasons for Opinion’.
In substance, the Panel was of the opinion that:
(a)Ms Pisani’s employment with ASA was a significant contributing factor to soft tissue injuries to her left and right wrists, which had resolved;
(b)Ms Pisani had an incapacity for work as a data entry operator between 23 September 2011 and December 2011 which resulted from and was materially contributed to by the soft tissue injuries she had suffered to her wrists;
(c)Ms Pisani’s employment with the applicant was a significant contributing factor to the recurrence of the soft tissue injuries to her left and right wrists which had now resolved; and
(d)Ms Pisani had an incapacity for work from 10 April 2012 to 21 March 2014 which resulted from and was materially contributed to by the injuries she had sustained to her wrists in the course of her employment as an auto technician with the applicant.
In its ‘Reasons for Opinion’, the Panel gave reasons first in relation to Ms Pisani’s employment as a data entry operator, and then in relation to her employment with the applicant as follows:
The Panel considered the relationship of the alleged [ASA] Physical Injuries to [Ms Pisani’s] employment with [ASA]. The Panel noted that [Ms Pisani] said that the pain in the hands and wrists first occurred in the first 2 weeks of the duties of 8 hours a day of keyboard typing. The Panel considered that the sustained volume of typing significantly contributed to soft tissue injuries of the wrists. The Panel therefore concluded that [Ms Pisani’s] employment with [ASA] on or about 23 September 2011 was in fact a significant contributing factor to soft tissue injuries of both wrists.
The Panel accepted [Ms Pisani’s] account that the pains in the wrists and hands resolved completely during December 2011 and prior to commencement of employment with the [applicant]. She undertook and passed a pre-employment health screen prior to working with the [applicant]. The Panel therefore concluded that [Ms Pisani] has no ongoing medical condition attributable to the injuries sustained in employment with [ASA] and that the [ASA] Physical Injuries had resolved prior to her employment with the [applicant].
The Panel therefore concluded that [Ms Pisani] did not have a work capacity for the [ASA] pre-injury employment as a data entry operator from 23 September 2011 to December 2011 and this incapacity for pre-injury employment resulted from and was materially contributed to by the soft tissue injury of the left wrist and the soft tissue injury of the right wrist sustained with [ASA].
The Panel considered the relationship of the alleged [applicant] Physical Injuries to [Ms Pisani’s] employment with the [applicant]. The Panel noted that [Ms Pisani] said that on 10 April 2012 she had sudden onset of pain in both hands and wrists while holding a windscreen that she said weighed about 20kg. The Panel considered that this incident was probably a recurrence of the soft tissue injuries of the wrists that were sustained during employment with [ASA].
The Panel accepted [Ms Pisani’s] clear description of the onset of bilateral hand and wrist pain while holding a heavy object while she was at work with the [applicant] and therefore concluded that [Ms Pisani’s] employment with the [applicant] on 10 April 2012 was in fact a significant contributing factor to the recurrence of a soft tissue injury of the left wrist, now resolved, and the recurrence of the soft tissue injury of the right wrist, now resolved.
The Panel noted that [Ms Pisani] said that her wrist and hand pains had not fully resolved since 10 April 2012, but her symptoms did alter and eased in 2014 although the pain ‘still triggers off’ on occasions. The Panel considered the usual natural history of a soft tissue injury of the wrists and also noted the imaging results of the wrists, in particular the MRI of the left wrist 9 October 2013 and the MRI of the right wrist 10 October 2013 which showed no significant abnormality in either wrist. The Panel concluded that the physical component of the recurrence of the soft tissue injury of both wrists had fully resolved by 10 October 2013 notwithstanding [Ms Pisani’s] complaints of ongoing pain symptoms.
The Panel considered the nature of the [applicant] Physical Injuries in conjunction with [Ms Pisani’s] pre-injury employment duties with the [applicant] which involved lifting, holding, and manoeuvring glass car windows weighing around 20kg. The Panel considered that because this work had significantly contributed to the [applicant] Physical Injuries, that re-introduction of the same work might cause a recurrence of the same medical condition even though the injuries had resolved by 10 October 2013. The Panel considered that this propensity for re-injury existed from the date of the injury at least up until 21 March 2014.
The Panel therefore concluded that [Ms Pisani] did not have a work capacity for her [applicant] pre-injury employment as an auto technician from 10 April 2012 to 21 March 2014. The Panel also concluded that this incapacity for pre-injury employment as an auto technician resulted from and was materially contributed to by the recurrence of the soft tissue injury of the left wrist, now resolved, and the recurrence of the soft tissue injury of the right wrist, now resolved.
The Panel has concluded that [Ms Pisani’s] injuries have resolved and that any incapacity for work had ceased by 21 March 2014 and therefore the Panel concluded that [Ms Pisani] had no inability arising from an injury with [ASA] or the [applicant] to return to her pre-injury employments as a data entry operator or an auto technician between 21 March 2014 and the date of the Panel examination.[1]
[1]Emphasis added.
In May 2017, the applicant commenced a proceeding in the Trial Division seeking judicial review of the Panel’s opinion.[2]
[2]ASA did not seek to review the Panel’s opinion.
The associate judge characterised the grounds of review essentially as follows:
(a)whether there can be any compensable incapacity for work beyond the date on which an injury is found to have resolved;[3]
(b)whether the Panel’s findings with respect to the level of risk that Ms Pisani’s soft tissue injuries would reoccur if she returned to her employment with the applicant was sufficient to justify a finding of compensable incapacity for work;[4] and
(c)whether the Panel took into account the factors referred to in s 5(1B) of the Accident Compensation Act 1985 (‘Act’) in determining whether there was a causal relationship between Ms Pisani’s employment with the applicant and her injuries and, if so, whether that employment was a significant contributing factor to her injuries.[5]
[3]O’Brien Glass Industries Ltd v Pisani [2018] VSC 294 [23]–[24] (Daly AsJ).
[4]Ibid.
[5]Ibid.
The associate judge found that:
(a)there can be a compensable injury for work beyond the date on which an injury is found to have resolved and it was therefore open to the Panel to conclude that there remained a residual incapacity, notwithstanding its opinion that the injuries had resolved;[6]
(b)the Panel considered the risk of recurrence of the same medical condition was real or significant, which was sufficient to justify a finding of compensable incapacity for work;[7] and
(c)the Panel adequately took into account the matters set out in s 5(1B) of the Act, giving reasons which were sufficient to enable the associate judge to conclude that the Panel had not fallen into error in determining whether Ms Pisani’s employment was a significant contributing factor to her injuries.[8]
[6]Ibid [52], [58]–[63].
[7]Ibid [63].
[8]Ibid [65]–[78].
Proposed grounds of appeal
The applicant seeks leave to appeal on two proposed grounds:
1The primary judge erred by failing to conclude that the … Panel’s finding that compensable incapacity persisted after the relevant injury had fully resolved was not open, illogical, and consequential upon legal error, and instead concluding that for the purposes of the [Act] and, in particular an entitlement to weekly payments of compensation:
(a)there need not necessarily be a temporal nexus between an injury and a resulting incapacity for work;
(b)there need not be an incapacity for work which results from, or is materially contributed to by, a persisting compensable injury.
2The primary judge erred in concluding that the statement of reasons of the … Panel was sufficient to comply with its statutory obligation pursuant to s 313(2) of the Workplace Injury Rehabilitation and Compensation Act 2013.
Applicable legislation
It was common ground that the relevant date of injury was 10 April 2012 and that Ms Pisani’s entitlement to weekly payments fell to be determined in accordance with the following provisions of the Act.
5 Definitions
(1)In this Act unless inconsistent with the context or subject-matter—
…
current work capacity, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to his or her pre-injury employment but is able to return to work in suitable employment;
…
incapacity includes—
(a)in relation to industrial deafness, inability to engage in the worker’s own or other suitable employment because of an immediate and substantial risk of increasing the industrial deafness to a level of material disability;
(b)a disfigurement that is sufficient to affect the earning capacity of a worker or a worker’s opportunities for employment;
injury means any physical or mental injury and, without limiting the generality of that definition, includes—
(a) industrial deafness;
(b)a disease contracted by a worker in the course of the worker’s employment (whether at, or away from, the place of employment);
(c)a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease;
…
no current work capacity, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to work, either in the worker’s pre-injury employment or in suitable employment;
…
…
(1B)In determining for the purposes of this Act whether a worker’s employment was a significant contributing factor to an injury—
(a) the duration of the worker’s current employment; and
(b) the nature of the work performed; and
(c) the particular tasks of the employment; and
(d)the probable development of the injury occurring if that employment had not taken place; and
(e) the existence of any hereditary risks; and
(f) the life-style of the worker; and
(g) the activities of the worker outside the workplace—
must be taken into account.
…
82 Entitlement to compensation
(1)If there is caused to a worker an injury arising out of or in the course of any employment, the worker shall be entitled to compensation in accordance with this Act.
…
…
91E Definitions applicable in this Division
In this Division —
…
first entitlement period, in relation to a claim for compensation in the form of weekly payments made by a worker—
…
(b)if the claim is made on or after 12 November 1997, means an aggregate period not exceeding 13 weeks (whether or not consecutive) in respect of which a weekly payment has been paid or is payable to the worker;
…
second entitlement period, in relation to a claim for compensation in the form of weekly payments made by a worker—
…
(c)if the claim is received by the Authority or self-insurer on or after 1 January 2005, means an aggregate period of 117 weeks (whether or not consecutive) after the expiry of the first entitlement period in respect of which a weekly payment has been paid or is payable to the worker;
…
93 Compensation in weekly payments
If a worker’s incapacity for work results from, or is materially contributed to by, an injury which entitles the worker to compensation, the compensation shall be in the form of weekly payments subject to and in accordance with this Part.
93A Weekly payments in first entitlement period
…
(3)In relation to a claim by a worker for compensation in the form of weekly payments first made in respect of the injury to which the claim relates on or after 5 April 2010, the worker is entitled, subject to and in accordance with this Part and Part VIIB, while incapacitated for work during the first entitlement period, to weekly payments—
(a)if the worker has no current work capacity and no current weekly earnings, at the rate of—
(i)95 per cent of the worker’s pre-injury average weekly earnings, less the deductible amount; or
(ii) twice the State average weekly earnings—
whichever is the lesser;
(b)if the worker has a current work capacity, at the rate of—
(i)the difference between 95 per cent of the worker’s pre-injury average weekly earnings, less the deductible amount and the worker’s current weekly earnings; or
(ii)the difference between twice the State average weekly earnings and the worker’s current weekly earnings—
whichever is the lesser.
93B Weekly payments in second entitlement period
…
(3)In relation to a claim by a worker for compensation in the form of weekly payments first made in respect of the injury to which the claim relates on or after 5 April 2010, the worker is entitled, subject to and in accordance with this Part and Part VIIB, while incapacitated for work during the second entitlement period, to weekly payments—
(a)if the worker has no current work capacity and no current weekly earnings, at the rate of—
(i)80 per cent of the worker’s pre-injury average weekly earnings, less the deductible amount; or
(ii)twice the State average weekly earnings—
whichever is the lesser;
(b) if the worker has a current work capacity or has no current work capacity but has current weekly earnings, at the rate of—
(i)the difference between 80 per cent of the worker’s pre-injury average weekly earnings, less the deductible amount and 80 per cent of the worker’s current weekly earnings; or
(ii)the difference between twice the State average weekly earnings and 80 per cent of the worker’s current weekly earnings—
whichever is the lesser.
93C Weekly payments after the second entitlement period
(1)Subject to section 93CD, a worker’s entitlement to compensation in the form of weekly payments under this Part ceases upon the expiry of the second entitlement period unless the worker—
(a)is assessed by the Authority or self-insurer as having no current work capacity and likely to continue indefinitely to have no current work capacity; or
(b)is a pre-12 November 1997 claimant who has a serious injury.
…
The applicant’s submissions on appeal
The applicant directed the Court to reasons of the Panel showing that Ms Pisani had developed symptoms in her hands and wrists in her previous employment with ASA in September 2011, which had resolved prior to commencing employment with the applicant, and that on 10 April 2012, in the course of her employment with the applicant, Ms Pisani had suffered a recurrence of those soft tissue injuries. The applicant accepted that the recurrence of the soft tissue injuries was a compensable injury for the purposes of the definition of ‘injury’ in s 5 of the Act.
In its reasons, the Panel said that the physical component of the recurrence of the soft tissue injuries had ‘fully resolved’ by 10 October 2013. Notwithstanding this conclusion, the Panel reasoned that, at least up until 21 March 2014, there was a risk that the re-introduction of Ms Pisani’s pre-injury duties might cause a further recurrence of the same medical condition, with the result that Ms Pisani remained incapacitated for her pre-injury employment as an auto technician until 21 March 2014.
The applicant conceded that if an injury causes an increased susceptibility to further damage being sustained, or to greater symptoms being experienced than would otherwise have been the case, then that increased susceptibility can result in an incapacity for employment. For this proposition, the applicant cited Asioty v Canberra Abattoir Pty Ltd,[9] where the High Court concluded that the compensable injury resulted in an enhanced ‘susceptibility’ to dermatitis. The applicant submitted that in such circumstances, it cannot be said that the compensable injury has ‘fully resolved’. Further, the applicant submitted that it follows from s 93 of the Act that for there to be an entitlement to weekly payments, a worker’s ongoing incapacity must result from or be materially contributed to by a compensable injury. The applicant submits this cannot be the case if the injury has ‘fully resolved’.
[9](1989) 167 CLR 533 (‘Asioty’).
In the context of a ‘recurrence’, the applicant submitted that a worker may have an underlying predisposition to a type of injury and may then have a recurrence of the injury from which he or she recovers and then returns to his or her pre-injury state of underlying predisposition to that type of injury. The applicant accepted that the worker may even have an ongoing incapacity for that type of work by reason of a predisposition to injury in that type of employment. But, so the applicant submitted, if the episode of injury has ‘resolved’, then that recurrence cannot be causative of any ongoing incapacity associated simply with the underlying predisposition.
The applicant focused in particular on two statements in the reasons of the associate judge. The first statement is at paragraph 52 of the reasons:
the contention that incapacity can only result from a subsisting injury or underlying condition, or a likelihood of recurrence which is likely or probable, amounts to an impermissible gloss on the statute and the authorities …
The second statement is at paragraph 57 of the reasons:
In the current case, I doubt whether it matters whether the susceptibility to further injury arises from an underlying condition, or, as found by the Panel in the current case, a history of recurrence of injury.
The applicant submitted that there is no support in the authorities for the proposition that there need not be a temporal nexus between the existence of compensable injury and resulting incapacity. Each case relied on by the associate judge involved a persisting, compensable condition which is to be directly contrasted with the present case in which the Panel explicitly found that the physical component of Ms Pisani’s injuries had fully resolved. The applicant submitted that neither Re Wakep Pty Ltd (in liq) v Kattelus[10] nor Caldipp Pty Ltd v Delov[11] supports the proposition that a fully resolved compensable injury can nonetheless result in incapacity. In both cases the reasoning in Asioty was applied.
[10][1990] FCA 435.
[11][2002] FCAFC 352 (‘Caldipp’).
The applicant submitted that the present case is not analogous to Asioty, where the worker suffered from an underlying constitutional dermatitis condition which was liable to flare up if he performed work as a slaughterman but abated after he ceased. Once there had been a flare-up of the underlying condition, it became more recalcitrant and difficult to treat. The applicant submitted that the abatement of symptoms in Asioty did not preclude a finding of a more permanent aggravation, that is a finding of persisting, compensable injury whereas here, the Panel specifically found that the relevant injury had ‘fully resolved’ by 10 October 2013 and then went on to find incapacity for work between 11 October 2013 and 21 March 2014 on the basis of the fully resolved bilateral wrist injuries. The applicant submitted that in light of the first finding the second finding was not open, was illogical and reflected a failure to properly apply the causative requirement between injury and incapacity. The applicant submitted that the associate judge erred by not so finding.
The applicant also submitted that the associate judge erred in finding that the Panel gave sufficient reasons for its opinion.[12] The applicant submitted that the Panel was required to give sufficient detail to enable a reviewing court to determine whether there was an error of law. The applicant pointed to the ‘seemingly contradictory statements’ of the Panel, first that Ms Pisani’s injuries had resolved, and second, that there was an incapacity contributed to by these injuries up until at least 21 March 2014. The applicant also submitted that the date of 21 March 2014 used by the Panel ‘had no apparent factual or medical significance’.
[12]Section 313(2) of the Workplace Injury Rehabilitation and Compensation Act 2013 required the Panel to give ‘a written statement of reasons for that opinion’.
Ms Pisani’s submissions on appeal
Ms Pisani submitted that no legal error was involved in the Panel’s opinion that she continued to have an incapacity for work for a period after the resolution of her injuries. She submitted that the medical opinion was unexceptional and, absent some error of law, was not open to challenge.
Ms Pisani submitted that the finding of the Panel that she had an incapacity for work that resulted from, or was materially contributed to by, the injuries arising out of her employment with the applicant was an expert medical opinion on a question of fact. She contended that reference to decided cases, and in particular to expressions used in those cases to explain the application of the statutory provision to other facts and circumstances, is unhelpful.
Ms Pisani submitted that the applicant’s argument finds no support in the text of the Act and that s 82(1) of the Act is the applicable gateway provision to compensation payable under the Act, which is engaged if there is an injury arising out of or in the course of any employment caused to a worker. If engaged, the worker may be entitled to various forms of compensation that are payable under the Act. She submitted that the Act prescribes two requirements for the entitlement to compensation in the form of weekly payments:
(a) the worker must have an incapacity for work; and
(b)the worker’s incapacity must result from, or be materially contributed to by, an injury which entitles the worker to compensation (being an injury arising out of or in the course of any employment).
In this case, Ms Pisani submitted that both conditions were engaged and that the Panel formed the opinion that there was an incapacity for work because of the propensity for re-injury. The Panel also formed the opinion that this incapacity resulted from and was materially contributed to by the recurrence of the soft tissue injuries to Ms Pisani’s wrists, which the Panel had identified as injuries sustained during her employment with the applicant.
Ms Pisani submitted that the applicant’s concession that if an injury causes an increased susceptibility to further damage being sustained or to greater symptoms being experienced than would otherwise have been the case, then that increased susceptibility can result in an incapacity for employment, is fatal to the applicant’s case.
Ms Pisani submitted that the associate judge was correct in accepting her submissions that the terms of the Act imposed no requirement for the relevant injury to be subsisting for there to be incapacity, and the question of incapacity is a matter which is solely within the ambit of the Panel’s responsibilities.
Finally, Ms Pisani submitted that there is no difficulty in understanding the Panel’s reasons. The Panel explained that her injuries that had resolved were subject to a real risk of recurrence, which risk was a cause of incapacity until 21 March 2014. She submitted that the applicant’s submission that the Panel made seemingly contradictory statements is the product of the applicant’s failure to take account of the difference between injury and incapacity.
Analysis
The scheme of the Act relevant to this matter can be briefly summarised. Section 82(1) provides for an entitlement to compensation in accordance with the Act if a worker sustains an ‘injury arising out of or in the course of any employment’.
‘Injury’ means any physical or mental injury and includes a recurrence of any pre-existing injury or disease.[13]
[13]The Act s 5 (definition of ‘injury’).
There are some qualifications to the general entitlement.
If the injury is a recurrence of a pre-existing injury or disease, there is no entitlement to compensation unless the worker’s employment was a significant contributing factor to the injury.[14]
[14]Ibid s 82(2C)(c).
In determining whether a worker’s employment was a significant contributing factor to an injury, a medical panel is required to take into account the matters set out in paragraphs (a)–(g) of s 5(1B) of the Act.
There is a distinction drawn in the Act between injury and incapacity.[15]
[15]Ibid s 5 (definitions of ‘injury’ and ‘incapacity’).
If a worker’s incapacity for work results from an injury which entitles the worker to compensation (i.e. an injury arising out of or in the course of any employment), compensation is payable in the form of weekly payments at specified rates depending on whether a worker has current work capacity or no current work capacity.[16]
[16]Ibid ss 93A(3), 93B(3).
If a worker has no current work capacity, the worker is paid at a higher rate.[17]
[17]Ibid.
For present purposes, there are two periods during which a worker may be entitled to weekly payments. The first entitlement period is an aggregate period not exceeding 13 weeks during which the worker is incapacitated for work.[18] The second entitlement period is an aggregate period of 117 weeks after the expiry of the first entitlement period during which the worker is incapacitated for work.[19] The aggregate length of these respective entitlement periods (130 weeks) becomes relevant later in these reasons.
[18]Ibid s 91E (definition of ‘first entitlement period’, para (b)).
[19]Ibid s 91E (definition of ‘second entitlement period’, para (c)).
The reasons of the Panel must be considered against this legislative framework.
It is obvious from the reasons that the Panel is familiar with the legislative scheme. It not only refers to the legislation but approaches the relevant issues and employs language which reflects a knowledge and understanding of the Act.
In respect of each employer, the Panel first addressed the fundamental requirement of s 82(1) of the Act; that for there to be any entitlement to compensation there must be an injury arising out of or in the course of the worker’s employment.
In connection with Ms Pisani’s work as a data entry operator, the Panel noted that Ms Pisani suffered pain in the hands and wrists which occurred while she was undertaking keyboard typing in her employment with ASA and that the sustained volume of typing significantly contributed to her soft tissue injuries of the wrists, and concluded that her employment was a significant contributing factor to those injuries.
The Panel accepted Ms Pisani’s account that the pains in her wrists and hands had resolved completely during December 2011 and prior to commencement of employment as an auto technician with the applicant. The Panel concluded that Ms Pisani had no ongoing medical condition attributable to injuries sustained in employment as a data entry operator and that those injuries had resolved prior to employment with the applicant as an auto technician.
The Panel then considered the question of capacity for work and concluded that Ms Pisani did not have a work capacity as a data entry operator from 23 September 2011 to December 2011 and, evidently mindful of the requirements of s 93 of the Act, concluded that the incapacity for work resulted from and was materially contributed to by the soft tissue injuries of the wrists.
In connection with Ms Pisani’s work as an auto technician, the Panel noted that on 10 April 2012 she had a sudden onset of pain in both hands and wrists while she was at work holding a windscreen estimated to weigh about 20 kg, and that this was probably a recurrence of the soft tissue injuries previously sustained. The Panel concluded that Ms Pisani’s employment with the applicant was a significant contributing factor to the recurrence of a soft tissue injury of the left wrist (followed by the words ‘now resolved’), and the recurrence of the soft tissue injury of the right wrist (also followed by the words ‘now resolved’). The Panel then recited the history as recounted by Ms Pisani. Ms Pisani had said that her wrist and hand pains had not fully resolved since 10 April 2012; that her symptoms did alter and ease in 2014, although the pain ‘still triggers off’ on occasions. The Panel considered the natural history of soft tissue injuries of the wrists and noted the results of imaging showed no significant abnormality in either wrist. The Panel concluded that the physical component of the recurrence of the soft tissue injuries of the wrists had ‘fully resolved’ by 10 October 2013, notwithstanding Ms Pisani’s complaints of ongoing pain symptoms.
The Panel then considered the question of Ms Pisani’s capacity for work by considering the nature of the work she was required to perform as an auto technician which involved lifting, holding and manoeuvring glass car windows weighing around 20 kg. The Panel considered that because this work had previously significantly contributed to Ms Pisani’s soft tissue injuries, reintroduction of the same work might cause a (further) recurrence of the same medical condition even though the injuries had resolved by 10 October 2013 and that this propensity for re-injury existed from the date of the injury (10 April 2012) up until at least 21 March 2014. The Panel concluded that Ms Pisani did not have work capacity as an auto technician from 10 April 2012 to 21 March 2014 and that this incapacity for work resulted from and was materially contributed to by the recurrence of the soft tissue injury of the left wrist ‘now resolved’ and the recurrence of the soft tissue injury of the right wrist ‘now resolved’.
Finally, the Panel concluded that, Ms Pisani’s injuries having resolved and any incapacity for work having ceased by 21 March 2014, she had no inability arising from the injuries to return to her employment either as a data entry operator or as an auto technician.
Unsurprisingly, the applicant has seized on the expressions where they occur in the Panel’s reasons for opinion to the effect that the soft tissue injuries had resolved or ‘fully resolved’ and relies upon them as a basis for saying that it is not open or that it is illogical to say that there is an incapacity if the injury is resolved or ‘fully resolved’.
For her part, Ms Pisani submitted that the Court should not be overly literal or strictly grammatical in understanding the reasons for opinion; that the Panel obviously meant that the resolution was subject to a real risk of recurrence which caused incapacity until at least 21 March 2014.
In my view, the latter approach is to be preferred. Under a forensic gaze the reasons of the Panel might be better expressed, but it would be wrong to construe its reasons like a statute or a contract. Taking into account the whole of the opinion and its context and not dwelling too closely on isolated words, leads to the following narrative.
The Panel described the original injury as having ‘resolved’ after a period of incapacity. It nonetheless was described as recurring subsequently.
The further injury described as a ‘recurrence’ of the original injury, also ‘resolved’, save that in the Panel’s opinion there remained an underlying susceptibility (‘propensity for re-injury’), such that the reintroduction of the same work might cause a further recurrence. That susceptibility continued for a period from the date the injuries recurred on, 10 April 2012, until at least 21 March 2014, after which, in the opinion of the Panel, Ms Pisani had no further incapacity for work.
It seems to me that the words ‘resolved’ and ‘fully resolved’ insofar as they relate to the injuries which recurred when Ms Pisani carried out her work as an auto technician must be construed in a manner that accommodates her condition of ongoing susceptibility to further recurrence which continued until at least 21 March 2014. As a consequence, these injuries should be regarded as resolved but for an ongoing susceptibility to further recurrence until 21 March 2014.
In Caldipp, Higgins J with whom Madgwick J largely agreed, considered the circumstances of a worker (Mr Delov) who suffered a condition of underlying fibromyalgia, which caused him pain and fatigue which was not caused by work duties but was exacerbated by those duties producing symptoms to a disabling degree.[20] Higgins J observed that it was not merely the pain and fatigue that the worker suffered that constituted the incapacity but ‘the continuing susceptibility to suffer those symptoms. That incapacity was itself the result … of the employment’.[21]
[20][2002] FCAFC 352 [16], [22].
[21]Ibid [61].
Whilst each case turns on its facts, the underlying reasoning in Caldipp is apposite. Here, Ms Pisani suffered an injury in the course of performing her work in the nature of a recurrence of the original injury and she continued to suffer from a susceptibility to further recurrence until 21 March 2014, which the Panel regarded as sufficiently debilitating to constitute incapacity for work for that period.
In the circumstances, it is unnecessary to determine whether there can be incapacity beyond the date that an injury has, without qualification, resolved.
It follows that the applicant has not made out the first proposed ground of appeal.
Adequacy of reasons
Before this Court the applicant submitted that its argument as to the adequacy of the Panel’s reasons comes down to this: if the Court is left in any doubt as to whether the Panel has approached the matter on a mistaken view of the law, then that is enough to say that the Panel’s reasons are inadequate. I am not satisfied that the Panel has approached the matter on a mistaken view of the law in light of the Panel’s reasons as they should be understood. It seems to me that the reasons are adequate to expose the process of reasoning by which the Panel formed its opinion.
Something was sought to be made of the fact that the Panel did not sufficiently elaborate on why the incapacity continued until 21 March 2014 or ceased on that date.
During argument, Ms Pisani conceded that the date of 21 March 2014 was not a sensible date to be addressed in respect of the injury suffered while she was working as an auto electrician.
It will be recalled that part of the statutory inquiry is to determine whether a worker is entitled to weekly payments during the first entitlement period, being an aggregate period not exceeding 13 weeks, and the second entitlement period being an aggregate period of 117 weeks after the expiry of the first entitlement period in respect of which a weekly payment is being paid or is payable to a worker. The date 21 March 2014 happens to be 130 weeks after the date of the injury originally suffered while Ms Pisani worked as a data entry operator. The sensible date for the question with respect to the date of injury for Ms Pisani’s work as an auto electrician is 8 October 2014 or 130 weeks from 10 April 2012, being the date upon which she suffered a recurrence of the original injury. It is very likely that the Panel addressed itself to the wrong date, which had the consequence that Ms Pisani potentially received payment for fewer weeks than she might otherwise have been entitled. Neither the applicant nor Ms Pisani is seeking to make anything of a potentially foregone entitlement in this application. The applicant points to the incorrect date merely as an aspect of its argument that the reasons of the Panel are inadequate.
Whilst there probably has been an error made with respect to the dates, the fact that the question of foregone entitlement is not being pursued and the fact that the reason for the error is apparent when one understands the timeframes imposed by the Act for the determination of weekly payments, make the reasons, if not flawless, explicable. In my view, there is not a sufficient basis in the circumstances of this case to quash the Panel’s opinion. The associate judge was correct to find that the statement of reasons was sufficient and, by implication, that it complied with s 313(2) of the Workplace Injury Rehabilitation and Compensation Act 2013.
Conclusion
It follows from these reasons that the associate judge was correct to decline to make an order quashing the opinion of the Panel as sought by the applicant.
Accordingly, whilst leave to appeal should be granted, the appeal should be dismissed.
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SCHEDULE OF PARTIES
O’BRIEN GLASS INDUSTRIES LTD Applicant
and
LISA MARY PISANI First Respondent
A/PROF LYNDEN ROBERTS Second Respondent
A/PROF PETER GIBBONS Third Respondent
DR DIANE NEILL Fourth Respondent
DR JOHN CRONIN Fifth Respondent
DR JOHN KING Sixth Respondent
2
2
0