Ooi v NEC Business Solutions Limited
[2006] NSWWCCPD 131
•26 June 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
REPORTED DECISION: Ooi v NEC Business Solutions Limited (2006) 5 DDCR 461
CITATION:Ooi v NEC Business Solutions Limited [2006] NSWWCCPD 131
APPELLANT: Leay Ceng Ooi
RESPONDENT: NEC Business Solutions Limited
INSURER:CGU Workers Compensation (NSW) Limited
FILE NUMBER: WCC5574-05
DATE OF ARBITRATOR’S DECISION: 10 May 2005
DATE OF APPEAL DECISION: 26 June 2006
SUBJECT MATTER OF DECISION: Medical Assessment Certificates; credit findings; procedural fairness
PRESIDENTIAL MEMBER: Acting Deputy President Michael Snell
HEARING:On the papers
REPRESENTATION: Appellant: Beilby Poulden Costello
Respondent: Blake Dawson Waldron
ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 10 May 2005 is revoked and the following order made:
Award for the Respondent.
No order is made as to costs of the appeal.
BACKGROUND TO THE APPEAL
On 7 June 2005 Leay Ceng Ooi (‘the appellant’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 10 May 2005.
The Respondent to the Appeal is NEC Business Solutions Limited (‘the respondent’).
The appellant was employed by the respondent from 23 April 1990 as a senior administrative officer, working full time.
The appellant’s claim form is dated 8 October 2003, a copy is annexed to the respondent’s Reply. It described the date of injury as 26 September 2003, and said that was the date from which she “began medical leave”. It said “The injury has occurred over a long period of data entry and typing. The injury also relates to the anxiety of trying to continue this work”. The parts of body injured are described as “Right hand, neck, nerves, Rt shoulder”. A section of the document is headed “Other similar injuries” and says “Please provide details of work and non-work related injuries to the same part of the body including date, employer, insurer, etc.” That question has been responded to with an entry “N/A”. The respondent denied liability as from 24 November 2003.
The appellant’s claim as pleaded in her Application to Resolve a Dispute (registered 2 April 2004) (‘the Application’) was for weekly benefits from 26 September 2003 on a continuing basis, a general order pursuant to section 60 of the Workers Compensation Act 1987 (‘the 1987 Act’), and lump sums pursuant to section 66 (based upon 25% whole person impairment) and 67 (alleged as 50% of a most extreme case) of that Act. The allegation of injury was based upon the nature and conditions of the appellant’s employment from 1990 to 2003, involving “repetitive keyboard application”. By way of “Injury Description” the Application referred to the report of Dr Champion annexed. In fact there were three reports of Dr Champion annexed to the Application, dated 4 February 2004, 13 March 2004 and 22 March 2004. The symptoms described in the most comprehensive of those reports (13 March 2004) involved the neck, upper back, right shoulder and right upper limb. That doctor described the appellant’s symptoms as being “absolutely characteristic of a work related neck and arm pain syndrome, typical of the keyboard application context (and there was a lot of numerical keying which was important).”
The Reply filed by the respondent put in issue incapacity, lump sum entitlement, and whether there was any causal relationship between the appellant’s condition and her employment with the respondent. The last of these effectively put in issue the question of ‘injury’.
The appellant was examined by Dr Bodel, an approved medical specialist (‘the AMS’), on 8 November 2004. A medical assessment certificate was issued on 25 January 2005 (‘the MAC’). The MAC certified the appellant to suffer from 8% permanent impairment of the neck, and 4% permanent loss of use of the right arm at or above the elbow, as a result of injury prior to 1 January 2002. It further certified to 2% whole person impairment (due to cervical spine and right upper extremity injury) as a result of injury after 1 January 2002. At paragraph 7(l) of the MAC Dr Bodel certifies that no proportion of the permanent loss of efficient use or impairment is due to any pre-existing injury, abnormality or condition (at page 6.7).
The matter proceeded to an arbitration hearing on 9 April 2005. Both parties were legally represented. Neither party made application to call oral evidence, or to cross-examine any of its opponent’s witnesses. The matter was dealt with on the basis of the documentary material filed by the parties, and the arbitrator heard oral addresses. The respondent also relied upon written submissions which had been made available to the appellant’s legal representative on the morning of the arbitration (T2.10 to 2.35)
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 10 May 2005 records the Arbitrator’s orders as follows:
“1. Award for the Respondent in respect of the Applicant’s claim for weekly
benefits.
2. Award for the Respondent in respect of the Applicant’s claim in relation
to medical and related expenses.
3. Award for the Respondent in respect of the Applicant’s claim for non
economic loss.”The arbitrator’s reasoning is to be found at paragraphs 36 to 42 of his Reasons for Decision. He held that, notwithstanding the MAC, the issue of causation, being whether the appellant’s condition resulted from her work activities with the respondent, fell to be determined by him. He reasoned an AMS cannot decide issues of credibility or questions of fact, as opposed to clinical findings and opinions. He noted an evaluation of the appellant’s credibility had to be done on the documentary material, the appellant having given no oral evidence. He then proceeded to consider contradictions in the documentary material, particularly in histories given by the appellant for different purposes. He concluded that, as a result of conflicts of evidence which he identified, he was persuaded the histories and mechanism of injury given by the appellant to various doctors were not credible and accurate. The word “not” has been omitted from the first sentence in paragraph 42 of the Reasons, but the arbitrator’s meaning is clear, in context. As a consequence of this finding on credit, the arbitrator concluded he was not persuaded the impairments found by Dr Bodel related to injury arising out of or in the course of the appellant’s employment with the respondent. In his summary of his findings, at paragraph 43, he found the appellant did not receive injury arising out of or in the course of her employment, employment with the respondent was not a substantial contributing factor, and the impairments found by Dr Bodel in the MAC were due to a motor vehicle accident in which the appellant had been involved on 24 January 2001.
ISSUES IN DISPUTE
The issues in dispute in the appeal are:
(i)Whether the arbitrator’s finding on ‘injury’ was against the evidence or the weight of the evidence.
(ii)Whether the arbitrator erred in failing to apply “fact as found by the AMS”, which was conclusively presumed to be correct. In the alternative, did the arbitrator err in finding such fact “rebutted” in the absence of contrary evidence.
(iii)Whether the arbitrator erred in how he applied sections 326 and 327 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’). In the alternative, whether he gave adequate reasons for how he applied these provisions.
(iv)Whether the arbitrator erred in his consideration of evidence relating to the appellant’s activities in “Mr Johnstone’s home”.
(v)Whether the arbitrator erred in failing to give adequate consideration to “the contents of Dr Champion’s medical report as relevant information”.
(vi)Whether the arbitrator erred in failing to make enquiry in regard to certain facts.
(vii)Whether the arbitrator erred in denying the appellant procedural fairness in dealing with evidence adverse to the appellant which was “not flagged beforehand”, and in not giving the appellant sufficient opportunity to present evidence in reply to such adverse evidence.
The respondent, in its Notice of Opposition, takes issue with the various grounds raised by the appellant, and contends the decision of the arbitrator should be confirmed.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act, 1998 (‘the 1998 Act) provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Neither party has sought leave to adduce fresh evidence. The appellant has submitted the appeal can be decided solely on the basis of the written material. The respondent submits the appeal can be decided solely on the basis of the written material, but says it wants to be heard if the appeal is not going to be dismissed. This submission by the respondent is inappropriate, and I put it to one side for the purpose of considering whether to deal with the matter ‘on the papers’. Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the appellant that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The appellant failed totally in the claim she brought. The quantum of compensation sought, both by way of weekly payments and lump sum compensation, greatly exceeded the sum of $5,000.00 prescribed in section 352(2)(a). That threshold is satisfied (see Mawson v Fletchers International Exports Pty Ltd [2002] NSWWCCPD 5).
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
The respondent takes no issue with the proposition that the threshold requirements in section 352 of the 1998 Act are satisfied, but submits leave should not be granted as the appeal does not manifest “sufficient prospects of success to justify a hearing on the merits”. Having regard to the matters the appellant seeks to agitate on this appeal, the importance of the matter to the appellant, and the overall circumstances, I am satisfied it is appropriate that leave be granted, and I do so.
EVIDENCE AND SUBMISSIONS
The Application had annexed to it two statements of the appellant. One was dated 19 March 2004. It described the appellant first noticing aches and pains in her hands, arms and shoulders “around end 2001”. She goes on “working at typing and data entry became increasingly difficult and gradually my neck and shoulder became affected”. She described difficulty around the home “doing chores like washing up, ironing, etc.”. She said a “return to full time work seems unlikely at this point in time”. The second statement is undated and unsigned. It describes the appellant being advised by her doctor she had “developed a repetitive stress injury that affects my neck, wrists, right hand and my right shoulder. These pains began to occur more than a year ago and got worse in August/September 2003.” She described multiple other problems and stated her doctor had referred her to a psychologist and psychiatrist.
Whilst the above statements contain little information regarding the precise duties which were alleged to have caused injury to the appellant, the three reports of Dr Champion annexed to the Application contain a more detailed history. The more comprehensive report of 13 March 2004 contains a history of a change in the appellant’s work role “about August 2001”, when she was assigned to “Accounts Payable attending to 80 suppliers and contractors. This involved a great deal of data entry. There was considerable increase in right hand numeric keying and application of a calculator as well as mouse work (index finger more than middle finger). These work applications were constant.” Other duties are also described. Dr Champion records a history of onset “In late 2001 she began to feel pain in the right side of her neck, burning at the top of her right shoulder, with some soreness and tiredness in that right arm. The onset had been gradual with loss of strength, also pins and needles.” The history goes on to relate periodic treatment, time off work, various forms of leave. By September 2003 “the pains were worse”, and the work had intensified. “She described crippling pain in the right shoulder girdle…” Dr Champion specifically records “There was nothing much in her past medical history or family history.” He made a diagnosis of “right cervicobrachial pain syndrome with neuropathic features”. He thought she had acquired this condition in the course of her employment with the respondent, specifically noting “It was soon after her change in her work role in about August 2001 that she began to experience the neck, right shoulder and arm pains and parasthesia.” In his report of 4 February 2004 Dr Champion says “She is unfit for her former work. It would be difficult for Ceng to perform effectively any kind of work.” The report of 22 March 2004 assesses the appellant as suffering permanent 25% whole person impairment resulting from these injuries. None of these reports indicate Dr Champion was ever made aware of any complaints to these body parts, prior to the onset of symptoms referred to above.
The appellant put on further material which was utilised at the arbitration hearing, annexed to an Application to Admit Late Documents filed 21 July 2004. There were three undated merit awards presented to the appellant by the respondent. There was a further report of Dr Champion dated 20 April 2004, commenting on plain x-rays and ultrasound of the right shoulder. He regarded this radiological material as being strongly supportive of the appellant’s claim, and said the “shoulder disorder is associated with quite significant pathology consistent with her work related causal influences…” There was also a longer statement of the appellant dated 15 July 2004, giving considerable detail of her duties with the respondent. The statement also is critical of various people from the respondent who provided statements to a firm of investigators.
The respondent’s Reply had considerable material attached to it. There is an investigation report from Milne & Associates dated 21 October 2003. There are statements by a number of witnesses dealing with the appellant and her workload. Some of this material would suggest, if accepted, that the appellant’s duties did not involve great amounts of data entry (see page 13 of the report). Significantly, the investigation report included a statement of the appellant dated 13 October 2003, which assumed some importance. The copy statement attached to that report is not signed, although no point was taken about this, during the arbitration hearing. Indeed the appellant’s legal advisor submitted on the basis that the appellant relied upon that statement, saying “It provides a better outlook than some of our statements I should say.” (T10.30). Paragraphs 24 to 29 of the statement describe the appellant’s duties between 2001 and 2003. At paragraph 35 the statement records “I have not suffered any other injuries that I recall and I have never submitted a claim prior to this. I have not suffered from any similar type injuries that I presently have.” (sic). At paragraph 37 the appellant sets out how she became very busy in 1999 when another employee was sick. She describes then becoming run down, seeing her doctor, and being told she suffered from “chronic fatigue syndrome”. She describes attending a massage centre in Parramatta for massage to her neck, shoulders and back. It is unclear just when this occurred, but the chronological sequence places it between 1999 and 2001. At paragraph 47 she says “At the end of 2001 due to working on the computer all day except to put documents around, my right shoulder, right arm, neck and back were very painful.” The statement goes on to describe the appellant’s work, complaints, and some interpersonal friction subsequent to that point in time.
There was medical evidence attached to the reply. A report of Dr Meares dated 5 November 2003, by way of past history (at page 1.6) records a history of chronic fatigue syndrome in 2003. At page 2.5 Dr Meares records “She gives no history of prior injury.” At page 3.4 Dr Meares says he cannot reach a diagnosis, but expresses the view the appellant’s employment was not a substantial contributing factor to the pain she complained of in her right arm. Dr Meares thought she would be fit for her pre-injury duties, but qualified this by saying this would depend on work evaluation. There is also a report of a psychologist Mr Haralambous, Ultimately the appellant, on the arbitration hearing, did not rely upon any allegation of psychological or psychiatric injury. As a consequence the respondent did not rely upon the report of Mr Haralambous (T9).
The respondent filed an Application to Admit Late Documents on 27 August 2004, which had annexed to it two statements, D.R. Johnstone dated 17 June 2004, and the appellant dated 15 June 2004. The reasons in support of that Application state “The attached statements were part of a file at GIO CTP in relation to a claim made by Mr Johnstone.” Mr Johnstone’s statement described how, after a motor vehicle accident in January 2001, he had difficulty doing things around his house due to a back injury. These things included laundry, ironing, hanging out washing, vacuuming and general household chores. It goes on “I consider myself very lucky to have friends like Ms L.C. Chung and others who come to my home and spend a lot of time helping me. Ms Chung often spends her whole weekend helping me and stays overnight in the spare room. She also helps me with my weekly shopping at the local supermarket.”
The second statement, described as being that of the appellant, is in the name of “Ms Leay Ceng Chung of 11/2 Fairway Close, Manly Vale”. This is the same address given by the appellant in her claim form upon the respondent, dated 3 October 2003, and is also recited as the appellant’s address in the report of Dr Champion dated 21 April 2004. Notwithstanding the discrepancy in surnames, the arbitration hearing proceeded on the basis the appellant and “Leay Ceng Chung” were one and the same person. In addressing the arbitrator in respect of the material relating to the motor accident of January 2001, the appellant’s legal representative from time to time used the names “Ms Ceng” and “Ms Ooi” interchangeably (see T11 to T14). The statement of 15 June 2004 says the appellant was a passenger in a motor vehicle driven by Mr Johnstone when it was involved in a motor vehicle accident in January 2001. It says “We were both injured in that accident. Mr Johnstone more severely than I.” It says “I myself will spend sometimes up to 10 or 12 hours in a week, mostly over the weekend and sometimes during the week helping Mr Johnstone with vacuuming, hanging out washing, and keeping the house generally tidy. I also help Mr Johnstone with his weekly shopping i.e. food, etc. If there is any lifting required, Mr Johnstone has other friends do it for him.”
On 30 July 2004 the arbitrator who then had conduct of the matter had made a request for medical assessment by an AMS, to assess the permanent impairment dispute. The parties had agreed upon Dr Bodel as the AMS who was to carry out the assessment. The parties were, by that point in time, alive to a potential issue regarding the motor vehicle accident in January 2001. The request for medical assessment notes “The parties may rely on further documents which are yet to be produced by GIO CTP and Dr Sooy. The party that seeks to rely on those documents will file those documents after they have been produced.” Dr Bodel examined the appellant on 8 November 2004. The documentation he had access to is listed at page 4.9 of his report, and consisted only of the reports of Dr Champion, Dr Meares and Mr Haralambous which had been attached to the Application and Reply. On this occasion, the appellant gave a history which included mention of the January 2001 motor vehicle accident. Dr Bodel records the appellant’s history regarding onset of symptoms at her work place in the following terms:
“This lady states that she began to develop a gradual onset of pain in the neck and right shoulder and right arm in about October 2001. She associated this with the nature and conditions of her work in general, particularly the right-handed keyboard activity. She initially put up with the discomfort and continued with her normal duties.
In March 2002 she took a period of annual leave and was off work for about 52 days. She did not make a formal claim for compensation at that time and with that rest from work her symptoms improved. She states that she never completely recovered however and she was at that time treated with Voltaren, acapuncture, massage and herbal treatments. She also had some intermittent physiotherapy which helped.
She went back to her normal duties and the pain worsened.” (at page 2.6 to 2.8)
Dr Bodel records this history from the appellant regarding the motor accident:
“This lady reports a past history of an injury to the neck in a motor vehicle accident in January 2001. She had x-rays taken at that time and was treated with acapuncture. She reports that there was a compulsory third party claim in relation to that injury and that has settled. She also reports that her neck resolved before the onset at work in October 2001.” (at page 3.5)
There was a second Application to Admit Late Documents filed by the respondent on 4 February 2005. Annexed to it were documents produced under direction by the compulsory third party section of the GIO (‘the third party documents’). They relate to a motor vehicle accident of 24 January 2001, apparently the same accident referred to in [23] and [24] above. The motor vehicle claim form is in the name of Leay Ceng Chung of 3/2 Fairway Close, Manly Vale. It indicates the author is also known by the name “Ooi”. The statutory declaration at the conclusion of the document is dated 15 April 2002. The appellant’s legal representative, at the arbitration hearing, accepted the third party documents related to the appellant. She was a passenger in a vehicle driven by Mr Johnstone when it was involved in a rear end collision.
The injuries described at Q.24 of the appellant’s motor vehicle claim form are “Whiplash injuries Neck and Shoulder pain Headaches Frequent neck and shoulder muscular spasms Injury to left knee”. Question 34 of the motor vehicle claim form asks “Have you had any other injuries or illnesses - before or since the accident - to the same part(s) of your body?” The box “No” is ticked. The “Medical Certificate” which forms part of the motor vehicle claim form is signed by Dr Sooy, on 12 April 2002, and refers to a date of examination of 12 April 2002. The injuries it describes as occurring in the motor accident are “Whiplash injury Cx spine O/E limited active movement Neck stiff (left) knee sore can’t fully extend due to pain. X-rays non revealing i.e. essentially normal” It says the appellant was unfit to work from 24 January 2001 to early February 2001, thereafter fit to resume normal duties, no restrictions.
The third party documents also include a report of Dr Sooy dated 4 September 2002, addressed to the third party insurer. Dr Sooy recites the history of the motor accident of 24 January 2001 and the resulting injuries. He describes his examinations of the appellant in respect of those injuries, on 25 January 2001, 27 March 2002, and 12 April 2002. The doctor’s comments on the examination of 12 April 2002 are:
“On examination of 12 April 2002, patient was asked to actively move her neck. All movements were somewhat limited. Patient stated at the time of examination that her cervical spine was sore on awakening, she complained of pain at the dorsal aspect at the base of her neck, which radiated into both shoulders. She told me that she had sought treatment by both acupuncturist and massage therapists, that she had taken nurofen, panadeine, panadol and valium, all provided by other practitioners, without apparently any beneficial effect. She did admit to some temporary relief.”
The report of Dr Sooy goes on to also describe anxiety and left knee symptoms since the motor accident. The doctor then gives this diagnosis in respect of the motor accident injuries:
“Initial injuries to the cervical spine; whiplash and trauma to left knee. The patient seen on 12 April 2002 has complained of considerable loss of movement and pain in her cervical spine, pain in her left knee is relieved by magnets and a bandage. A degree of anxiety is still present since the accident on the 24 Januray (sic) 2001.”
That report does not suggest Dr Sooy was given a history of symptoms from the motor accident resolving prior to October 2001. It does not suggest Dr Sooy was told the appellant had a gradual onset of pain in the neck, right shoulder and right arm in about October 2001, which she associated with the nature and conditions of her work.
The third party documents include a statutory declaration of the appellant dated 15 April 2002, the substance of which I will reproduce in its entirety:
“My reasons for late lodgement of claim for injury are as follows:
At the time of the accident my injuries appeared slight, but since I was spending the night with friends at Gosford, I visited a local GP, Dr Donald Sooy of Gosford on the day after the accident; who determined that I had received some whiplash injury to my neck and my left knee.
Since that time I have experienced many headaches and bouts of muscular spasms on my neck and shoulder and have had many sessions with my own GPs (Dr L Konduru of Warringah Medical Centre, Dr PK Aw of Dundas Clinic); neither of these doctors who were treating me for my aches and pains were aware of the motor car accident as I had never discussed this matter with them until quite recently. It is only recently that Dr Konduru became aware of my involvement in the motor accident and felt it may relate to my medical problems at this time. To confirm this I made a trip recently to Gosford to see Dr D Sooy again on 27 March 2002, who did in fact confirm that my injuries relate to the motor car accident on the 24 January 2001. Therefore it was recommended that I lodge a claim under the Green Slip Insurance.”
The third party documents contain a letter from the third party insurer to the appellant dated 28 January 2003, enclosing a deed of release, in the sum of $3,500.00. There is handwriting on that letter, apparently the appellant’s, saying “Dear Virginia, Document duly signed. Yours faithfully, Leay Ceng Chung”. There is the first page of an “Agreement for Release & Indemnity” between the appellant and the third party insurer, reciting the facts of the accident of 24 January 2001, and providing for payment of $3,500.00 to the appellant.
DISCUSSION AND FINDINGS
Grounds 2 and 3 of the Notice of Grounds of Appeal are related. It is claimed in 2 that the arbitrator erred in that “fact as found by the AMS was not conclusively presumed, and that that fact “conclusively presumed was incorrectly rebutted by the Arbitrator without contrary evidence”. Ground 3 claims error in that the arbitrator failed to consider or adequately consider sections 326 and 327 of the 1998 Act, and to give adequate reasons in this regard. These grounds require consideration of how the arbitrator dealt with the MAC, and whether he failed to give it appropriate status, having regard to section 326.
Section 326 provides:
“326 (1) An assessment certified in a medical assessment certificate pursuant to a medical assessment under this Part is conclusively presumed to be correct as to the following matters in any proceedings before a court or the Commission with which the certificate is concerned:
(a)the degree of permanent impairment of the worker as a result of an injury,
(b)whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality,
(c) the nature and extent of loss of hearing suffered by a worker,
(d) whether impairment is permanent’
(e) whether the degree of permanent impairment is fully ascertainable.
(2) As to any other matter, the assessment certified is evidence (but not conclusive evidence) in any such proceedings.”
Section 327 deals with appeals against medical evidence. I do not need to set out those provisions, for current purposes.
The appellant’s argument on this point is, in many ways, a simple one. Dr Bodel, in the MAC, certified the appellant’s injury, being the nature and conditions of her employment from 1990 to 26 September 2003, had resulted in a loss of use or impairment, as described at [7] above. This is conclusively presumed to be correct pursuant to section 326(1)(a). Furthermore he had certified no proportion of the permanent loss or impairment was due to any pre-existing injury, abnormality or condition. This is conclusively presumed to be correct pursuant to section 326(1)(b). Consequently it is argued (at paragraph 8 of the appellant’s submissions) “that finding must give rise to a conclusive presumption that the impairment is the result of an injury within the meaning of s.4 of the 1987 Act and s.4 of the 1998 Act” It is submitted the “only legally permissible means by which the conclusive presumption” may be rebutted is by way of appeal pursuant to section 327 of the 1998 Act. This submission, if correct, would have the consequence that the issues of injury and causation which were between the parties, had been conclusively determined by the MAC.
There have been a number of presidential decisions dealing with the effect of a binding MAC. Joppa Pty Ltd t/as Tricia’s Clip-n-Snip v Edenden [2004] NSWWCCPD 50 (‘Joppa’) involved an application by a worker for lump sum compensation pursuant to sections 66 and 67 of the 1987 Act. An arbitrator referred the matter to two AMS’s, to assess the relevant permanent impairments. MACs were issued by each of these doctors. Subsequently the Director of Professional Services, purportedly acting as delegate of the Registrar of the Commission, issued a Certificate of determination setting out a final determination in the matter consistent with the MACs, without further reference to the arbitrator. In dealing with the status of the MACs, and whether they were capable of finally determining the matter (as the Certificate of Determination suggested they had), Fleming DP said:
“However the issue of a MAC does not equate to a determination of the dispute by the Commission. There are obvious reasons why the legislature would have intended that the ultimate determination of a matter rests with an Arbitrator. There may be a number of issues in dispute between the parties which, while not medical issues, must be agreed, or determined by an Arbitrator, in order to finally resolve the matter. These may include issues of liability and associated claims for compensation by way of weekly benefits and medical expenses. Procedural evidence, the filing of evidence, and compliance with the procedural requirements of the Workers Compensation Acts (‘the 1987 Act and the 1998 Act”) may also need to be considered.” (at [27])
Issott v North Sydney Leagues Club Ltd t/as Seagulls Club [2005] NSWWCCPD 38 (‘Issott’) involved a claim for weekly compensation, lump sums pursuant to section 66 and 67 of the 1987 Act, and medical expenses. The worker’s claim for lump sum compensation was referred to an AMS, which issued a MAC certifying the worker had 4% whole person impairment due to the injury. After a subsequent arbitration hearing, the arbitrator entered an award in favour of the employer, finding the worker had not suffered ‘injury’ within the meaning of the Act. It was asserted on appeal that this demonstrated error, due to the conclusive presumption of correctness in section 326(1) of the 1998 Act. In rejecting this argument, Moore ADP said:
“55. However the ‘injury’ can only ever be that which is asserted by the parties. For example, a worker might state “I fell off the truck and injured my knee”. The employer might say “his mates told us he injured his knee playing football on the weekend”. There may be no dispute that the worker has an injured knee- one injury is compensable, the other is not.
56. The task of the AMS is medical, and is to resolve a medical dispute between the parties. Unless specifically requested, it is not the role of the AMS to determine whether injury occurred, or occurred in the course of employment, or any other of the multiplicity of questions that can arise in determining ‘injury’ within the meaning of the 1987 Act.”
Moore ADP concluded:
“In this instance Dr Ashwell’s certificate is conclusive evidence about the matters in sub-section 326(1), but is not conclusive evidence on the fundamental question of whether the Applicant has suffered an ‘injury’ within the meaning of section 4 of the Workers Compensation Act 1987. That is a question for the Arbitrator to decide based on the totality of the evidence.”
The appellant submits at paragraph 14 of its Submissions that Issott “is erroneous in law”, although no particular reasons are proffered for that assertion. Alternatively, it is submitted it is distinguishable on the basis that, in Issott, the Respondent was able to provide the Commission with oral evidence contrary to the position of the Applicant. In Issott oral evidence was in fact called from the worker, and from lay witnesses in the employer’s case. It is not apparent how this makes it distinguishable. If the appellant’s argument set out at [35] above is correct, then it would not matter whether evidence adduced at an arbitration hearing was oral or documentary. The MAC would be decisive on questions of ‘injury’ and ‘causation’ in any event.
In Davies v Bisaxa Pty Ltd t/as Sir Joseph Banks Nursing Home [2006] NSWWCCPD 103 (‘Davies’) there were substantial issues between the parties as regards causation. The worker’s application for lump sum compensation was referred to an AMS, which produced a nil finding, based upon the issue as to causation. That finding was the subject of an appeal pursuant to section 327 of the 1998 Act, to an Appeal Panel, constituted pursuant to section 328. It substituted a finding of 4% loss of efficient use of the left leg “attributable to this injury”. The Appeal Panel issued a fresh MAC to this effect, in substitution for the earlier one. A consent award was entered between the parties, consistent with this MAC. Meanwhile a second Application was on foot in the Commission claiming weekly compensation for the same injury. The second Application was determined by an arbitrator, who entered an award in the employer’s favour, finding against the worker on the question of causation. Roche ADP dealt with an argument regarding whether the arbitrator erred, in that the MAC (in its final form) had conclusively dealt with the question of causation:
“The question arises as to whether the assessment by the Appeal Panel without more is binding on the parties in the present claim for weekly compensation. In my opinion the answer is ‘no’. Issues of ‘injury’ and ‘causation’ are matters for the Commission to determine.” (at [30])
The question was again considered by Roche ADP, in Connor v Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2006] NSWWCCPD 124 (‘Connor’). Again, it was a matter where there was a substantial issue between the parties on the question of ‘causation’. The Application sought weekly compensation, medical expenses, and lump sums pursuant to sections 66 and 67. Again there was a MAC issued by an AMS, an appeal of this certificate to an Appeal Panel pursuant to section 327 of the 1998 Act, and a substituted certificate issued by the Appeal Panel. Again there was an award in the employer’s favour based upon a finding by the arbitrator on causation, notwithstanding the MAC to the contrary. Roche ADP refers to the judgment of Neilson J in Lyons v Master Builders Association of NSW (2003) 25 NSWCCR 423 (‘Lyons’), where Neilson J held that ‘injury’ means both the injurious event (the work event or incident) and the pathology arising from that event. Roche ADP continues:
“Therefore the determination of the issue of ‘injury’ requires not only an examination of whether the ‘injurious event’ occurred in compensable circumstances but also whether the pathology found to exist (if any) has been caused by the work event. These are both threshold liability issues to be decided by the Commission not by an AMS or an Appeal Panel. Employment must be a substantial contributing factor to the work event and to the pathology found before liability arises under the legislation. The determination of these issues requires a consideration of all of the factual and legal issues in the case. It is not simply a medical question.” (at [48])
The Commission’s jurisdiction is conferred by section 105 of the 1998 Act, in the following terms:
“105 (1) Subject to this Act, the Commission has exclusive jurisdiction to examine, hear and determine all matters arising under this Act and the 1987 Act.”
Chapter 7 Part 10 Division 1 of the 1998 Act deals with the constitution of the Commission. It is constituted by arbitrators, presidential members, and in some circumstances the Registrar. It is not constituted by an AMS or an Appeal Panel. Roche ADP in Connor considered the interrelationship between the exclusive jurisdiction of the Commission, and the role of an AMS producing a MAC pursuant to Chapter 7 Part 7 of the 1998 Act:
“51. This section (section 293) makes it clear that the ‘determination of the dispute’ is to be made by the Commission not by an AMS or an Appeal Panel. That determination can only be made after considering all the evidence relevant to all issues touching on liability. The Commission has “exclusive jurisdiction to examine, hear and determine all matters arising under this Act and the 1987 Act” (see section 105 of the 1998 Act) (emphasis added). To find that the Commission is bound to make an award in the terms of a MAC before all liability issues have been determined would be to strip the Commission of its exclusive jurisdiction to determine all matters arising under the relevant legislation.
52. Whilst the arbitrator was entitled to have regard to the MAC (including the reasons in the MAC) in determining the injury and causation questions, that is, in determining whether the Appellant Worker’s claimed incapacity and impairment resulted from the incident on 2 March 1998 or from some other non-work related event or circumstance, she was not bound to make an award in the terms of the MAC if in her opinion the Appellant Worker had not sustained a compensable injury within the terms of the legislation and consistent with the relevant legal authorities.” (at [52])
In the current case, it was necessary, as the arbitrator stated at paragraphs 36 to 37 of his Reasons, for him to determine the issues before him regarding injury and causation. This approach was consistent with the legislative framework and authorities discussed above. If he reached (as he did) a decision on causation adverse to the appellant, the effect of this was to find the appellant had not suffered ‘injury’ in the relevant sense. Had the appellant succeeded on the threshold issue of ‘injury’, the MAC of 25 January 2005 would represent evidence conclusively presumed to be correct as to the matters specified in section 326 of the 1998 Act. Thus I do not accept the submission made by the appellant at paragraph 8 of her submissions, that the effect of the MAC of 25 January 2005 was that “that finding must give rise to a conclusive presumption that the impairment is the result of an injury within the meaning of s.4 of the 1987 Act and s.4 of the 1998 Act”. The description of the contents of the MAC certificate, in that passage of the appellant’s submissions, as a “finding” highlights the difficulty in this part of the appellant’s argument. It was not a matter for the AMS to make findings, but rather to certify in respect of the matters properly asked of him. That certification would have effect consistent with section 326 of the 1998 Act.
The making of findings on questions such as ‘injury’ remained a matter for the arbitrator, in exercising the exclusive jurisdiction conferred upon the Commission pursuant to section 105 of the 1998 Act. Logically, this had to be so. For the arbitrator to be satisfied the appellant had suffered an ‘injury’ within the meaning of the legislation, involved a consideration not only of medical issues, but also questions of fact based upon all of the evidence, including matters such as the work duties carried out by the appellant, and the onset of the appellant’s various symptoms. In the circumstances it also involved a consideration of questions of the appellant’s credit, this being an issue clearly raised by the respondent in its submissions. These factual matters were not matters for the AMS to decide.
The appellant develops an argument at paragraphs 9 to 12 inclusive of its submissions, regarding section 327 of the 1998 Act. The gravamen of that argument appears to be that section 327 provides mechanics for the appeal of a MAC to an Appeal Panel, constituted pursuant to section 328. Section 327 sets out various mechanical provisions regarding, amongst other things, grounds and time limits. It is submitted a finding of a lack of credit on the appellant’s part would not be sufficient to constitute a ground for appeal pursuant to section 327(3). Accordingly it is said this finding of a lack of credit is insufficient to “rebut” the “presumption in s.326 of the 1998 Act” (the conclusive presumption of correctness contained in section 326(1)). This argument is, in my view, misconceived. The fact finding process engaged in by the arbitrator did not involve rebutting the presumption described in section 326(1), nor did it involve a consideration of whether there were grounds for appeal within section 327. Rather, although it was valid for the arbitrator to consider the MAC (together with other evidence properly before him) in deciding questions of ‘injury’ and ‘causation’, the MAC did not constitute a decision on ‘injury’, which the arbitrator was bound to adopt. Accordingly, questions of whether grounds of appeal could be made out for the purposes of section 327 simply do not arise.
The third of the grounds of appeal asserts the arbitrator failed to give adequate reasons, and failed to determine the matter according to law in his consideration of sections 326 and 327 of the 1998 Act. For the reasons already expressed, I am of the view the manner in which the arbitrator approached the operation of section 326 (and in so far as it is relevant, section 327) was a correct one. An arbitrator’s duty to give reasons is dealt with in Rule 73 of the Workers Compensation Commission Rules 2003 (‘the Rules’), which I shall not reproduce here. “It is not necessary, nor appropriate, for a Commission Arbitrator to give lengthy reasons for decision. Provided that Rule 73 is complied with, the reasons will be adequate, notwithstanding they do not set out the statutory provisions at length, nor specify and examine all relevant judicial authority on the matters decided.” (Fleming AP in Barbour v BHP Steel Pty Limited [2004] NSWWCCPD 42 at [44]). In my view reasons given by the arbitrator, for dealing with the status of the MAC as he did, clearly satisfied the duty placed upon him by Rule 73. He set out his understanding of the applicable law on the point, in compliance with Rule 73(1)(b); he was not under any obligation to more fully set out the statutory provisions and authorities which led to that understanding.
The fourth ground of appeal claims the arbitrator erred in taking into account irrelevant considerations, and not taking into account relevant considerations. The nominated instances of these alleged errors involve two areas, the activities carried out by the appellant at Mr Johnstone’s home, and the arbitrator’s alleged failure to consider the “content of Dr Champion’s medical report as relevant information”. As previously noted, there were in fact four reports of Dr Champion before the arbitrator. I assume it is asserted this failure potentially applied to all of them, that is, Dr Champion’s views in their entirety as presented by the appellant to the arbitrator.
The appellant’s argument regarding her activities in Mr Johnstone’s home asserts the arbitrator considered such activities in a general sense, which was irrelevant, and failed to consider what she did exactly, which would have been relevant. Neither of the parties called any oral evidence, nor sought to cross-examine its opponent’s witnesses. Accordingly the arbitrator was left to deal with the evidence regarding the appellant’s activities at Mr Johnstone’s house on the basis only of the written material. He dealt with such activities with as much specificity as that written material permitted.
The significance of the appellant’s activities at Mr Johnstone’s house arise from a potential inconsistency between the appellant’s statement of 19 March 2004 (described at [18] above), and of 15 June 2004 (described at [23] above). The first of these was attached to the appellant’s Application in the Commission, the second was attached to the respondent’s Application to Admit Late Documents dated 27 August 2004. The arbitrator considered these two statements at paragraph 39 of his Reasons, saying:
“In the earlier of the statements the Applicant recounts in the workers compensation context difficulties that she has around her house doing household chores like washing up and ironing. However in her statement of some 12 weeks later made presumably to support a claim for care by Mr Johnstone in his motor vehicle accident claim, the Applicant says that she provides some 10 to 12 hours a week assistance to Mr Johnstone by vacuuming, hanging out washing and keeping the house generally tidy and doing his weekly shopping. This, as the Applicant’s solicitor points out, is in addition to running her own household and caring for her teenage son. The two statements clearly cannot stand together and there has been no adequate explanation from the Applicant that allows me to reconcile their differences.”
The appellant’s statement of 15 June 2004 in fact speaks of her spending “up to 10 or 12 hours in a week” carrying out the activities described at Mr Johnstone’s house. Notwithstanding this, in my view, looked at in context, the arbitrator has not unfairly quoted the passages referred to in paragraph 39 of his Reasons. The appellant’s argument regarding the arbitrator’s treatment of this material is at paragraphs 15 to 17 of her submissions. The points made in this regard are:
(i) The arbitrator was obliged to allow the appellant an opportunity to proffer an explanation regarding reconciliation of the perceived inconsistencies between the two statements.
(ii) The Commission (presumably the arbitrator, who constituted the Commission at the relevant time) should have made his own enquiries regarding any nuances which may have shed light on the issues of time, sense and context in the statements. Such enquiries would, it is argued, have extended to details about the domestic chores involved, such as the degree of automation (and self-propulsion) and weight of Mr Johnstone’s vacuum cleaner, the specific unpaid tasks carried out, and whether Mr Johnstone had a dishwasher. Failure to make such enquiries is said to constitute an error of law.
(iii) The arbitrator should have engaged in a more careful analysis of whether the statements were truly mutually exclusive, that is, they could not both be true at the same time and in the same sense.
The first of these assertions effectively amounts to a claim the appellant was denied procedural fairness, in that she was not given an opportunity to address, in explanation of the perceived inconsistency in the statements, or to adduce evidence which may have explained, to a greater or lesser extent, any inconsistency.
The two statements were only twelve weeks apart. On the face of it they are inconsistent. It is at least strange, if the contents of both statements were true, that a person who was having difficulty doing her own domestic chores would spend up to ten to twelve hours per week doing someone else’s. Both statements were given at a time when the appellant was not working, allegedly due to the effects of the work injury. The statement of 15 June 2004 was attached (along with Mr Johnstone’s statement of 17 June 2004) to an Application to Admit Late Documents filed by the respondent on 27 August 2004. That application included an assertion the statements attached to it were “part of a file at GIO CTP in relation to a claim made by Mr Johnstone”. It is likely that application and the statements were served upon the appellant’s solicitors shortly after the time of filing. The appellant’s legal representative took no objection to such material being used by the respondent on the arbitration hearing.
The appellant’s legal representative was clearly on notice of the use the respondent would seek to make of this material. That representative had been placed in possession of “Respondent’s Written Submissions” on the day of the arbitration hearing, before it commenced. Before the arbitrator commenced hearing oral submissions, he satisfied himself the appellant’s legal representative had a copy of that document, and enquired whether the appellant’s legal representative wanted further time to consider the submissions. The arbitrator was advised no such time was required (T2.5 to 2.35). The “Respondent’s Written Submissions” dealt with the significance of the statements regarding work at Mr Johnstone’s house, at paragraphs 3.3 to 3.9. That the appellant was given an opportunity to give an explanation is demonstrated by the fact that her legal advisor addressed the arbitrator in respect of the statement of 15 June 2004 (at T13.45).
In addition, after the arbitrator heard oral submissions from the respondent’s legal representative, the appellant’s legal representative had an opportunity to further address, which he availed himself of (T36.50 to 39.25). Amongst other things, his submissions in reply touched upon the appellant’s credit, and the significance of the motor vehicle accident of 24 January 2001 (T37).
The contrast between the statements of the appellant dated 19 March 2004 and 15 June 2004 must have been apparent from when the appellant or her legal advisor first became aware of the second of these statements. In these circumstances, it was clearly a matter for the appellant and her legal advisor, to put on any further material, by way of explanation, if this could be validly done. The appellant did not seek to adduce any further evidence to deal with this point. To pick up on the examples given by the appellant in her submissions on this appeal, it would have been perfectly possible for her to file and serve an Application to Admit Late Documents, with a further statement of the appellant, dealing with questions such as whether Mr Johnstone had a dishwasher, the nature of the vacuum cleaner used at Mr Johnstone’s house, and so on, if such evidence would have been helpful to her cause. Similarly, if desired the appellant could, through her legal advisor, have sought to give oral evidence, to explain any inconsistencies or discrepancies. The arbitrator specifically asked the appellant’s legal advisor whether he wished the appellant to give some evidence, and was told there was no such application (T1.40).
The appellant had taken a decision, for whatever reason, not to put on such further evidence, or seek to give oral evidence. It cannot now be validly asserted the arbitrator was under an obligation to embark on an enquiry of his own, for the purpose of adducing evidence from the appellant, in the way suggested in paragraph 17 of the appellant’s submissions. The respondent, in its submissions on this appeal, rightly points out that if the arbitrator had sought to “enter the arena” in this way, it would have been “potentially inviting reviewable error by both parties”. This deals with the fourth and fifth of the appellant’s grounds.
The point that the arbitrator should have engaged in more careful analysis of the statements in the circumstances, to determine whether they were “mutually exclusive”, does not, in my view, have merit. The arbitrator’s term was that they “cannot stand together”. This was, in my view, a reasonable and understandable response to their contents. Whilst it is true there could have been some explanation for the difference between the two documents, the arbitrator accurately observed “there has been no adequate explanation from the Applicant that allows me to reconcile their differences”. The weight and relevance to be given to evidence before an arbitrator is a matter in the discretion of the arbitrator, and should not be overturned unless it can be shown he failed to exercise that discretion fairly and according to law (South Western Sydney Area Health Service v Edmonds [2005] NSWWCCPD 18, Westpac Banking Corporation v Kilby & Bananacoast Credit Union Ltd [2005] NSWWCCPD 24). In my view, the approach taken by the arbitrator to this evidence, was well open to him, and does not demonstrate appealable error.
The appellant claims the arbitrator erred in failing to consider relevant information, being “the content of Dr Champion’s medical report”. Paragraph 22 of the arbitrator’s Reasons involves an acknowledgement by the arbitrator that the appellant relied upon the various reports of Dr Champion, which he identifies. At paragraph 26 the arbitrator notes the submission on the appellant’s behalf, that both Drs Champion and Bodel found the appellant’s employment to be a significant contributing factor to her injury. At paragraph 31 the arbitrator notes the respondent’s submission that Dr Champion had proceeded on a factually incorrect basis, in that he was given an incorrect history regarding effects of the appellant’s motor vehicle accident. It is clear the arbitrator was aware of the reports of Dr Champion, and the reliance the appellant placed upon them. He did not recite the contents of such reports, but there was no obligation upon him to do so. The arbitrator’s reasoning process is adequately exposed in his ‘Findings and Reasons’. He identifies various unexplained inconsistencies in the evidence, and as a consequence concludes he is not persuaded the histories and mechanisms of injury given by the appellant to the various doctors are credible and accurate. Such a finding clearly deprives the medical evidence relied upon by the appellant of much or all of its persuasive power, thereby leading to the arbitrator’s conclusion that the appellant has not discharged her onus of proving “injury’. This is consistent with the decision of the NSW Court of Appeal in Makita (Australia) Pty Ltd v Sproules (2001) 52 NSWLR 705 (‘Makita’). There is no basis for the assertion the arbitrator failed to consider the evidence of Dr Champion.
The sixth of the grounds of appeal relied upon states:
“The appellant was denied procedural fairness and natural justice:
There are issues relating to “contrary” evidence adverse to the Appellant which were not flagged beforehand.
The appellant was not given sufficient or adequate opportunity to present evidence in respect to the above-said issues.”
In support of this ground, the appellant’s submissions make a number of assertions which are not, by and large, supported by the transcript of the arbitration hearing. It is said the appellant was given “practically speaking, no time” to comment on the case being made against her. It is said she had a “few minutes” to review the respondent’s documents before the hearing, and this was the first time she “had the opportunity to look at them, to address any issues arising out of them as flagged during the hearing, particularly during the Respondent’s oral submissions.” The difficulty with this is that the documents which were held by the arbitrator to be injurious to the appellant’s credit were attached to two Applications to Admit Late Documents filed on 27 August 2004 and 4 February 2005. There was no objection taken by the appellant to the use of such documents on the arbitration hearing. One would have expected objection to be taken to their use if, as is submitted in the appeal, they had only been made available to the appellant a few minutes before commencement of the arbitration. It was not suggested on the appellant’s part, at the arbitration hearing, that this material had not been appropriately served. As referred to at [53] above, the appellant’s legal advisor was furnished with a copy of the “Respondent’s Written Submissions” before oral addresses commenced, and specifically informed the arbitrator he required no additional time. Even if the material attached to the Applications to Admit Late Documents was only made available to the appellant and her legal advisor on the morning of the arbitration hearing (and there is no evidence to this effect), it was used by the respondent without objection, there was no suggestion by the appellant at the time that the material took her by surprise, and the arbitrator’s offer of further time was refused.
It also should be noted the third party documents became available to the parties pursuant to a Direction for Production addressed to GIO CTP Claims, which was returnable on 18 August 2004. The file of the Commission indicates that, when such documents were produced, the appellant was given first access to the material, commencing 28 September 2004. The Commission file confirms a facsimile transmission to this effect was forwarded by the Commission, to the appellant’s solicitor, on 27 September 2004. Thus the appellant, through her solicitor, had access to the third party documents from that time, over six months prior to the arbitration hearing on 19 April 2005.
Any suggestion the appellant was given insufficient opportunity to consider matters raised by the respondent in its oral submissions, similarly does not appear to be borne out by the transcript. At the conclusion of the respondent’s submissions the appellant’s legal advisor asked “Could I grab some instructions…” to which the arbitrator replied “Yes, certainly.” (T35.30) At that stage it is about 12.30 (T35.50). The arbitrator observed that, “if we’re not finished by 1.00, I’ll have to break and get a key…” (T35.40). After some other discussion, the appellant’s legal advisor commenced addressing in reply, saying “I [inaudible] finished by 1.00.” There is no suggestion from the transcript, that there was any undue pressure put on the appellant or her legal advisor by the arbitrator, to respond to matters raised in the respondent’s oral submissions with inappropriate haste, nor that the legal advisor was not given an opportunity to take instructions from the appellant herself, before addressing in reply. There is no valid basis for asserting there was a denial of procedural fairness in such circumstances.
This leaves the first (and most general) ground of appeal, that the arbitrator erred in his finding on ‘injury’, that finding being against the weight of the evidence. The appellant’s submissions do not specifically address this ground. As a starting point, it is worth remembering the appellant carried the onus of making out her case:
“If the plaintiff’s case is left so full of holes that the necessary facts cannot be found or inferred then the relevant part of the claim must fail, because the plaintiff bears the ultimate onus of proof. In some matters there may be a shifting of the evidentiary onus (eg Watts v Rake (1960) 108 CLR 158) but the ultimate persuasive onus remains with the plaintiff.” (Brown v Lewis [2006] NSWCA 87 at [83])
Given the nature of the case the plaintiff sought to make on ‘injury’, relying upon the ‘nature and conditions’ of her work, it was at least necessary for her to establish the nature of the duties she carried out, and that the symptoms and impairments of which she complained resulted from such duties. The nature of the duties she carried out was the subject of dispute. The history she gave to Dr Champion (described in more detail at [19] above) was of a change in her duties in August 2001, such that thereafter she undertook a “great deal of data entry”. She dated the onset of her symptoms from “towards the end of 2001”. The appellant also relied upon the report of the AMS, Dr Bodel, and clearly the arbitrator was entitled to have regard to that evidence in deciding the matter. Dr Bodel recorded a history of duties involving “a variety of office based work activities, mainly data entry work but also accounting and computer work. There is also writing and phone related work and a lot of signing. She also reports that a lot of the computer work required right-handed use of the numeric keypad.” He was told of a “ a gradual onset of pain in the neck and right shoulder and right arm in about October 2001. She associated this with the nature and conditions of her work in general, particularly the right-handed keyboard activity.” The appellant’s statement of 15 July 2004 (attached to her Application to Admit Late Documents filed 21 July 2004) contains much detail regarding the appellant’s work responsibilities. It includes a reference to a change in her duties in mid 2001, when the processing of multiple invoices was added to her “already heavy workload”.
The material annexed to the respondent’s Reply included an investigation report of Milne & Associates Pty Limited, to which a number of statements were annexed. One of these was a statement of Les Smoker, the state manager for the respondent. His description of the appellant’s duties indicates computer work would amount to about two hours per day, but not constant. “There was no time that she was consistently inputting data into the computer.” Whilst it was to some extent a question of degree, there was an issue between the parties regarding how intensive the appellant’s work was, and in particular how constant and intensive her use of a computer keyboard was.
The support on causation the appellant received from Dr Champion was based upon a history of the appellant having an onset of symptoms towards the end of 2001, that is, a matter of months after the change in duties she told Dr Champion about. The support she received from Dr Bodel on this topic was based upon a history of an injury to her neck in a motor vehicle accident in January 2001, which resolved, and was followed by a subsequent onset of neck, right shoulder and right arm pain in about October 2001, which she associated with the nature and conditions of her work.
The historical basis for the support on causation which the appellant received from Drs Champion and Bodel, was severely compromised by the third party documents. The arbitrator, at paragraphs 40 and 41 of his Reasons, correctly identified the significant discrepancy between Dr Bodel’s history regarding resolution of the motor accident symptoms, and the contents of Dr Sooy’s report of 4 September 2002, addressed to the third party insurer.
The arbitrator also, in my view validly, at paragraph 39 of his Reasons, contrasted the statements of the appellant dated 19 March 2004 and 15 June 2004, noting the apparent inconsistency was unexplained. There were other inconsistencies the arbitrator did not specifically comment upon in the “Findings and Reasons” passage of his Reasons, which could have caused further credit difficulties for the appellant. Neither the workers compensation claim form dated 8 October 2003, nor the appellant’s statement to an investigator dated 13 October 2003, referred to the motor vehicle accident of January 2001, notwithstanding that information regarding prior injuries was sought in both of these documents. On the other hand, the motor accident claim form, the subject of a statutory declaration by the appellant dated 15 April 2002, denies the appellant had suffered any other injury, before or since the motor accident, to the same parts of her body the subject of the motor accident claim. This is notwithstanding her history, to a number of doctors, of an onset of symptoms in her neck, right shoulder and right arm, in late 2001,which she associated with the nature and conditions of her work.
Based upon the inconsistencies he identified at paragraphs 39 and 40 of his Reasons, the arbitrator concluded he could not be persuaded the histories and mechanism of injuries given by the appellant to various doctors were accurate. In my view this conclusion was well open to the arbitrator. The effect of this conclusion was to deprive the medical evidence which supported the appellant’s case on ‘causation’ of any weight (Makita, particularly at [85]). The consequence of this was that the appellant could not discharge the onus which she carried, of proving her case on ‘injury’.
For the foregoing reasons, I am not persuaded the appellant’s argument that the arbitrator’s decision on ‘injury’ was against the weight of the evidence. It was a decision well open to him on the evidence. I am not satisfied the appellant has demonstrated appealable error.
FORMAL ORDERS AND FINDINGS
The failure by the appellant to discharge the onus of proof means that the appellant failed in the entirety of her claim and the respondent is entitled to an award in its favour on all issues. The formal orders made by the Arbitrator do not reflect this fact and constitute an error, which must be corrected on appeal. To give proper give effect to the findings made, the order should be “ Award for the respondent”.
DECISION
The decision of the Arbitrator dated 10 May 2005 is revoked and the following order made:
“Award for the respondent.”
COSTS
No order as to costs of the appeal.
Michael Snell
Acting Deputy President
26 June 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF MICHAEL SNELL ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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