Overall v Central Sydney Area Health Service

[2005] NSWWCCPD 44

WORKERS COMPENSATION COMMISSION

APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Overall v Central Sydney Area Health Service [2005] NSW WCC PD 44

APPELLANT:  Florence Overall

RESPONDENT:  Central Sydney Area Health Service

INSURER:TMF Workers Compensation managed by GIO General Ltd

FILE NUMBER:  WCC 19136-03

DATE OF ARBITRATOR’S DECISION:          26 March 2004

DATE OF APPEAL DECISION:  30 May 2005

SUBJECT MATTER OF DECISION: Whether an injury is a disease contracted by a gradual process: section 15(1) of the Workers Compensation Act 1987.

PRESIDENTIAL MEMBER:  Acting Deputy President Robin Handley

HEARING:On the papers

REPRESENTATION:  Appellant: Watkins Tapsell Solicitors and Barristers

Respondent: Turks Legal

ORDERS MADE ON APPEAL:  1. The decision of the Arbitrator is revoked and the matter is remitted to the Arbitrator with the following directions:

(1) The Appellant, Ms Overall’s back injury is not a ‘disease’ to which section 15(1) of the Workers Compensation Act 1987 applies.

(2)   The Appellant’s back injury arose from the nature and conditions of her employment with the Respondent between 1995 and 4 August 2003.

(3)    No order is made as to the costs of the appeal.

BACKGROUND TO THE APPEAL

1.On 23 April 2004, Florence Overall (‘the Appellant’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) in respect of a decision dated 26 March 2004.

2.The Respondent to the Appeal is the Central Sydney Area Health Service (‘the Respondent’).

3.Ms Overall, who was born on 23 February 1956 and is aged 49, is employed as an administrative officer at Concord Repatriation General Hospital, where she has worked since 1990. Ms Overall states that she first suffered back pain in early 1995 as a result of constantly sitting down doing computer work. She told her manager, who referred her to the staff medical officer, who in turn referred her to a physiotherapist. She was later provided with a new ergonomic chair. She continued to suffer a “sore” back but persisted in working and put up with it. Around September 2002, Ms Overall consulted her treating doctor because her back was still sore. She provided the WorkCover Certificate given to her by her doctor to the Occupational Health and Safety section at the Hospital who asked her to complete a claim form. Ms Overall states that when asked by the rehabilitation co-ordinator, she told her that she had first experienced back pain around 1995 but had aggravated it in September 2001. The co-ordinator inserted the date 1 September 2001 on the claim form. The form is dated 18 September 2002. Ms Overall completed a second claim form in respect of stress and anxiety dated 27 September 2002 and a third claim form dated 6 November 2003 in respect of an injury to the right shoulder in November 2002 of which she notified the Hospital in an Accident Report dated 25 February 2003.

4.By letter dated 8 October 2002, TMF Workers Compensation (‘the Insurer’) declined liability for Ms Overall’s claim in respect of “psychological injury”. By letter dated 9 December 2002, the Insurer accepted liability for the injury dated 1 September 2001 and agreed to pay weekly compensation and medical and other treatment expenses. However, by letter dated 25 March 2003, the Insurer notified Ms Overall that it decided to decline liability on the ground that there was no total or partial incapacity for work resulting from her injuries. Ms Overall’s solicitors responded by letter dated 31 March 2003 stating:

“Our client’s claim is in respect of injury to her back, neck and shoulder due to the nature and conditions of her employment with Concord Hospital from March 1994 to date and continuing.”

By letter dated 17 November 2003, the Insurer declined liability for Ms Overall’s claim in respect of the injury to her right shoulder.

5.Ms Overall has filed two ‘Applications to Resolve a Dispute’ with the Commission, both on 8 December 2003. The first Application (matter number WCC 17950-2003) involves a claim for medical expenses associated with a psychological injury. The second application (matter number WCC 19136-2003) involves a claim for weekly benefits, medical expenses, and permanent impairment and pain and suffering in respect of injuries to her back and right shoulder. In the second Application, Ms Overall’s solicitors state that the injury occurred as a result of the “nature and conditions of employment”.

6.The Arbitrator conducted a teleconference with the parties with respect to one Application on 18 February 2004 and was informed by the parties of another Application and of the Respondent’s Notice of Motion that the two Applications be heard together. At a second teleconference on 1 March 2004, the parties agreed that the two Applications should be amalgamated and the Arbitrator should determine the ‘deemed’ date of her back injury ‘on the papers’.

THE DECISION UNDER REVIEW

7.          On 26 March 2004, the Arbitrator made an Order containing the following Directions:

“1. The date of injury for the physical injury alleged by the Applicant to have been incurred as a result of the nature and conditions of employment with the Respondent is 4 August 2003, the date of the claim for compensation (s. 15(1)(a)(ii)).

2. Leave is given to the Applicant to discontinue applications WCC 19136-03 and the related application WCC 17950-03 on or before 13 April 2004. If notice of discontinuance is not received on or before 13 April 2004 the applications will be dismissed.”

8.In the Statement of Reasons for her decision, the Arbitrator, having recited the background to the Applications, gave her reasons as follows:

“(5). Although the Applicant claims that the date of injury to her back was 1 September 2002, there is no evidence to support a frank injury occurring on that date. Dr Endrey-Walder in his report dated 16 June 2003 states that:

‘Ms Overall gradually developed discomfort and pain in her low back in 1995. She attributed this at the time to the poor design of her work station. … There was no other incident or accident involving her low back at that time either at or away from work … Although there was slowly progressive worsening of her back discomfort over the following years, Ms Overall remained at work in her usual duties until September 2002.’

(6). In her statement filed in the second application, the Applicant states that:

‘When I was filling out the form I was speaking with Brenna Clode, who was the rehab co-ordination [sic]. She asked me the date I had aggravated my back and I said September 1995 some time, but had aggravated it in September 2001. She put down 1^st of September 2001 on the form. I should have said something to her about the date she put on the form, but I just let it go.’

(7). The Applicant’s own evidence, plus the evidence of Dr Endrey-Walder outlined in paragraph 4 above support the conclusion that the Applicant’s claim in relation to the back injury is properly a claim as a result of the nature and conditions of her employment with the Applicant [sic] from some time in 1995 until the date the claim was made, 4 August 2003. There was no frank injury to the back in September 2001.”

9.Applying section 15(1) of the Workers Compensation Act 1987 (‘the 1987 Act’), the Arbitrator determined the date of injury in respect of Ms Overall’s back to be:

“(9). … 4 August 2003, the date the Applicant first made a claim on the Respondent in relation to that alleged injury.

(10)       As a result of this finding, I must also find that the claim has not been duly made as there is no medical evidence to support a claim for whole person impairment with respect to the injury to the back.

(11)     In all the circumstances outlined above, it is appropriate that the Commission allow the Applicant time for these matters to be discontinued. There can be a fresh application, if the Applicant chooses, in relation to all these matters, when the appropriate evidence has been obtained to support the claims.”

ISSUES IN DISPUTE

10.       The issues in dispute in the appeal are:

(1) Whether it was open to the Arbitrator to find that Ms Overall’s “injury is a disease which is of such a nature as to be contracted by a gradual process” so that section 15(1) of the 1987 Act applies.

(2) If Ms Overall suffered an ‘injury’ that is not a disease within the meaning of section 15(1), and she suffered her injury as a result of the nature and conditions of her employment, what is the date of injury?

11.Ms Overall’s solicitors also contended that the “Applicant’s claim is duly made under section 66 of the Workers Compensation Act 1987 and assessment in respect of whole person impairment is not appropriate”, and that these “proceedings should not have been determined in the absence of all documents being produced to the Commission”.

ON THE PAPERS REVIEW

12.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.”

13.Having regard to Practice Directions Numbers 1 and 6, the documents before me, and the submissions by both parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.

14.Neither party sought to adduce fresh evidence.

LEAVE

15.Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act, which states:

“352    Appeal against decision of Commission constituted by Arbitrator

(1)       A party to a dispute in connection with a claim for compensation may, with leave of the Commission constituted by a Presidential member, appeal to the Commission as so constituted against a decision in respect of the dispute by the Commission constituted by an Arbitrator.

(2)       The Commission is not to grant leave to appeal unless the amount of compensation at issue on the appeal is both:

(a)at least $5,000 (or such other amount as may be prescribed by the regulations), and

(b)       at least 20% of the amount awarded in the decision appealed against.

(3)       If the Commission refuses to grant leave to appeal, the Commission must state reasons for the refusal in writing to the parties.

(4)       An appeal can only be made within 28 days after the making of the decision appealed against.

(5)       An appeal under this section is to be by way of review of the decision appealed against.

(6)       Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.

(7)       On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.

Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.

(8)       In this section, decision includes an award, interim award, order, determination, ruling and direction.”

16.The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act. With regard to section 352(2)(a), the compensation sought by Ms Overall exceeds $5,000. With regard to section 352(b), as Deputy President Byron held in Mawson vFletchers International Exports Pty Ltd [2002] NSW WCC PD 5, at paragraph 22, and for the reasons he stated, the subparagraph (b) “qualification or condition does not and cannot meaningfully apply to a decision” where an award of compensation has not been made. Thus, I am satisfied I should grant leave to appeal.

SUBMISSIONS

17.Ms Overall’s solicitors submitted that “the operation of section 15(1) is confined to the definition of disease prescribed by section 4(b)(i) of the Act” – that is “a disease contracted by the worker in the course of employment and to which employment was a contributing factor”. They sought to distinguish an injury from a disease and submitted that Ms Overall was seeking compensation for a lower back injury “sustained from the nature and conditions of her employment and not from the gradual onset of disease”. They noted “that a claim arising from the nature and conditions of one’s employment is often not characterised by a single incident”. The Respondent’s solicitors responded that the Arbitrator’s finding that Ms Overall’s condition was a disease to which section 15(1) applies is consistent with, and supported by the medical evidence. There is no medical evidence of a frank injury to the back in 1995.

18.In the event that section 15(1) does not apply, Ms Overall’s solicitors submitted that she notified her employer of the injury in 1995 when she reported her back pain to her manager, saw the staff medical officer and was provided with an ergonomic chair. At the very latest, notification took place in September 2001. The Respondent’s solicitors submit that, being a claim in respect of an injury arising from the nature and conditions of work, the deemed date of injury must be the last date of Ms Overall’s employment to the nature of which her injury is due. Neither of her applications alleged any frank injury in 1995. If the Arbitrator’s finding that the deemed date of injury is 4 August 2003 (the date on which the Hospital and its insurer were notified of her claim for weekly benefits), then the deemed date of injury should be 17 March 2003, the date the Appellant ceased work in the Sterilising Department at the Hospital as a result of her alleged physical and/or psychological injuries.

19.Ms Overall’s solicitors also submitted that her injuries fall within section 66 of the 1987 Act and should therefore be assessed in respect of individual bodily impairment and not whole person impairment. The Respondent’s solicitors submitted that this ground is misconceived and must be dismissed. If Ms Overall has any entitlement to lump sum compensation, which is disputed, then that entitlement must, by operation of law, be assessed in terms of whole person impairment. However, the Commission lacks jurisdiction to determine such a claim since Ms Overall’s solicitors have not yet served the necessary medical evidence containing an assessment of whole person impairment.

20.Lastly, Ms Overall’s solicitors submitted that the Commission’s decision should be postponed to allow for full production of documents sought from the Respondent Insurer in respect of Concord Hospital. The Respondent’s solicitors submit that all required documents had been produced, that Ms Overall’s solicitors had access to these or could have obtained such access, and could have made submissions concerning these or sought leave to do so. Yet they did not do so. In these circumstances, there was no denial of procedural fairness.

21.The Respondent’s solicitors also submitted that if Ms Overall’s solicitors had filed an Election to Discontinue Proceedings in respect of matters WCC 19136-03 and WCC 17950-03, dated 13 April 2004, copies of which had been served on the Respondent’s solicitors by the Appellant’s solicitors, then there would be no proceedings on foot.

EVIDENCE

22.There is no evidence of Ms Overall suffering a frank injury to her back in 1995. However, I accept her evidence (as per her statement dated 24 October 2003) that, at that time, she was suffering back pain as a result of her employment and that she gave verbal notice of this to her employer when she complained of back pain to her manager, was referred for physiotherapy and provided with an ergonomic chair. I also accept her evidence of a progressive worsening of her condition over the ensuing years, leading up to her being off work for about three months from 20 February 2003. Although in her claim form dated 18 September 2002, the stated date of injury is 1 September 2001, I accept Ms Overall’s evidence that this date was inserted by the rehabilitation co-ordinator. Once again, there is no evidence of a frank injury occurring at that time. Rather, it seems Ms Overall was aware of a gradual worsening of her back pain. This continued during the time she remained working in the Sterilising Department at Concord Hospital. She transferred from the Sterilising Department to the Human Resources section at the Hospital in August 2003.

23.In the reasons for her decision, the Arbitrator refers to a report by Dr Endrey-Walder dated 16 June 2003. As the Respondent’s solicitors point out, although this report was on Dr Endrey-Walder’s and Dr PD Funnell’s practice letterhead, the report was in fact by Dr Funnell. In this report, obtained by Ms Overall’s solicitors, and quoted by the Arbitrator, Dr Funnell stated:

“Ms Overall gradually developed discomfort and pain in her low back in 1995. She attributed this to the poor design of her work station …There was no other incident or accident involving her low back at that time either at or away from work … Although there was slowly progressive worsening of her back discomfort over the following years, the Appellant remained at work in her usual duties until September 2002.”

24.The Respondent’s solicitors also referred to a report by a Surgeon, Dr David Johnson, dated 14 June 2003, prepared at their request. Dr Johnson considered that Ms Overall:

“is suffering from a stress related condition in relation to interpersonal conflict at work and perhaps due to other psychological problems and she is now appropriately under the care of Dr Smith, Psychiatrist. … I don’t think the claim is consistent. I think most of the symptoms are psychosomatic and this is the opinion of her NTD [nominated treating doctor] Dr Mina of Burwood.”

25.A perusal of the WorkCover NSW Medical Certificates completed by Dr H Mina shows that on a number of occasions Dr Mina diagnoses both low back pain and “anxiety with psychosomatic symptoms” (for example, certificates dated 9 September 2002 and 13 September 2002) and attributes Ms Overall’s problems to stress at work and an increase in workload.

DISCUSSION AND FINDINGS

26.The Commission has no record of the filing of Election to Discontinue Proceedings forms in respect of the two matters. Had such forms been lodged before the date of appeal (23 April 2004), then those proceedings would no longer be on foot and the Commission would have no jurisdiction in this appeal.

27.As is well established, the role of a Presidential member when hearing an appeal is “by way of review of the decision appealed against” (section 352(5) of the 1998 Act) and is not a rehearing. The powers of the Presidential member “are exercisable only where it is demonstrated that the decision of the Arbitrator is affected by some legal, factual or discretionary error” (Deputy President Byron in The King Island Company Ltd v Deery [2005] NSW WCC PD 1 citing Allesch v Maunz (2000) 203 CLR 172).

28.Firstly, with regard to the medical evidence, while the evidence indicates Ms Overall was also suffering from stress, there was sufficient evidence for the Arbitrator to find that Ms Overall suffered back pain over the period 1995 to 2003 due to the nature and conditions of her employment.

29.However, secondly, having reviewed the evidence relied upon by the Arbitrator in her decision and considered the submissions of the parties, I am satisfied that she made a legal error in her decision by applying section 15(1) of the 1987 Act. I agree with the submission made by Ms Overall’s solicitors that section 15(1) does not apply in Ms Overall’s case because her injury is not a ‘disease’ as defined in section 4(b)(i) of the 1987 Act, but rather an ‘injury’ arising out of the nature and conditions of her employment.

30. Section 15(1) of the 1987 Act states:

“15(1) If an injury is a disease which is of such a nature as to be contracted by a gradual process:

(a) the injury shall, for the purposes of this Act, be deemed to have happened:

(i)       at the time of the worker’s death or incapacity, or

(ii)       if death or incapacity has not resulted from the injury – at the time the worker makes a claim for compensation with respect to the injury, …”

31.      The definition of ‘injury’ in section 4 of the 1987 Act states relevantly:

“injury –

(a) means personal injury arising out of or in the course of employment;

(b) includes –

(i)          a disease which is contracted by a worker in the course of employment and to which the employment was a contributing factor; and

(ii)        the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation; and …”   

32.Ms Overall’s solicitors refer to the distinction between injury and disease drawn by the Privy Council in Slazengers (Aust) Pty Ltd v Burnett [1951] AC 13 (‘Slazengers’) and to the Oxford Concise Medical Dictionary definition of disease which excludes a disorder resulting directly from physical injury. For a condition to constitute a disease, one would expect to see medical evidence to support this.

33.It was open to the Arbitrator to find, and in my view she found correctly (paragraph 7 of her Statement of Reasons, quoted above) that Ms Overall’s claim in relation to her back injury is “properly a claim as a result of the nature and conditions of her employment”. The Arbitrator did not, however, go on to consider whether the inury was a ‘disease’. She appears to have assumed that having found that there was no frank injury and that the injury arose out of the nature and conditions of Ms Overall’s employment, that section 15(1) therefore applied. As a result, she applied section 15(1) when she had not established that the injury was a ‘disease’ of such a nature as to be contracted by a gradual process. In my opinion, in Ms Overall’s case, the medical evidence does not support such a finding.

34.Having determined that section 15(1) of the 1987 Act does not apply, the question then arising is what is the date of injury? As already stated, there is no evidence of frank injuries occurring in 1995 or 2001. However, the evidence supports a finding that Ms Overall’s back pain arose out of the nature and conditions of her employment between 1995 and when she ceased performing work that aggravated her back condition. Ms Overall’s evidence suggests that her back condition arose during the time she worked in the Sterilising Department at Concord Hospital, which ended in August 2003 when she transferred to the Human Resources section at the Hospital. I note that Ms Overall’s solicitors lodged her claim for compensation with the Respondent on 4 August 2003. I therefore find that Ms Overall’s injury arose in the course of her employment between 1995 and 4 August 2003.

DECISION

35.The decision of the Arbitrator is revoked and the matter is remitted to the Arbitrator with the following directions:

(1)The Appellant, Ms Overall’s back injury is not a ‘disease’ to which section 15(1) of the Workers Compensation Act 1987 applies.

(2)The Appellant’s back injury arose from the nature and conditions of her employment with the Respondent between 1995 and 4 August 2003.

COSTS

36.No order is made as to the costs of this appeal.

Robin Handley
Acting Deputy President  
  30 May 2005

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

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