Pioneer Plating Works Pty Ltd v Kotevski
[2006] NSWWCCPD 277
•23 October 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Pioneer Plating Works Pty Ltd v Kotevski [2006] NSWWCCPD 277
APPELLANT: Pioneer Plating Works Pty Ltd
RESPONDENT: Velika Kotevski
INSURER:Allianz Australia Workers’ Compensation (NSW) Ltd
FILE NUMBER: WCC 3044-05
DATE OF ARBITRATOR’S DECISION: 22 December 2005
DATE OF APPEAL DECISION: 23 October 2006
SUBJECT MATTER OF DECISION: Causation; incapacity for work; supervening non work-related illness; exercise of the discretion in section 40(1) of the Workers Compensation Act 1987
PRESIDENTIAL MEMBER: Acting Deputy President Robin Handley
HEARING:On the papers
REPRESENTATION: Appellant: Ellison Tillyard Callanan, Solicitors
Respondent: D Stanefska & Associates, Solicitors
ORDERS MADE ON APPEAL: The Arbitrator’s decision dated 22 December 2005 is revoked and the following decision is substituted in its place:
“a) The Respondent to pay the Applicant the sum of $1,800.00 with regard to 4.5% permanent impairment of the neck, pursuant to Section 66 of the Workers Compensation Act 1987.
b) The Respondent to pay the Applicant weekly benefits pursuant to Section 36 of the Workers Compensation Act 1987 between the 30th March, 1999, and the 20th September, 1999, in the amount of $395.00 per week and totalling $7,900.00;
c) The Respondent to pay the Appellant weekly benefits pursuant to Section 40 of the Workers Compensation Act 1987 for the period from 21 September 1999 to 31 March 2000, at the rate of $10 per week.
d) The Respondent to pay the Applicant weekly benefits pursuant to Section 40 of the Act for the period from the 1st April, 2000 and the 30th June, 2000, at the rate of $203.43 per week.
e) The Respondent to pay the Applicant weekly benefits pursuant to Section 40 0f the Act for the period from the 1st July, 2000 to the 30th June, 2001, at the rate of $209.61;
f) The Respondent to pay the Applicant weekly benefits pursuant to Section 40 of the Act for the period from the 1st July, 2001 to the 30th June, 2002, at the rate of $215.79 per week;
g) The Respondent to pay the Applicant weekly benefits pursuant to Section 40 of the Act for the period from the 1st July, 2002, to the 30th June, 2003, at the rate of $222.48 per week.
h) The Respondent to pay the Applicant weekly benefits pursuant to Section 40 of the Act for the period from the 1st July, 2003, to the 30th June, 2004, at the rate of $229.18 per week.
i) The Respondent to pay the Applicant weekly benefits pursuant to Section 40 of the Act for the period from the 1st July, 2004, to the 30th June, 2005 at the rate of $235.87 per week
j) The Respondent to pay the Applicant weekly benefits pursuant to Section 40 of the Act for the period from the 1st July, 2005 at the rate of $243.08 per week and ongoing in accordance with the Applicant’s statutory entitlements.
k) The Respondent to pay the Applicant’s reasonable medical expenses pursuant to Section 60 of the Act upon production of accounts or receipts.
l) The Respondent to pay the Applicant’s costs as agreed or assessed.”
The Appellant, Pioneer Plating Works Pty Ltd, is to pay Ms Kotevski’s costs in this appeal.
BACKGROUND TO THE APPEAL
On 19 January 2006, Pioneer Plating Works Pty Ltd (‘Pioneer’) sought leave in the Workers Compensation Commission (‘the Commission’) to bring an appeal against the decision of an arbitrator dated 22 December 2005. The Respondent to the appeal is Velika Kotevski. Pioneer’s workers compensation insurer is Allianz Australia Workers’ Compensation (NSW) Ltd (‘Allianz’).
Ms Kotevski was born on 24 February 1957 and is aged 49. She was employed as a process worker by Pioneer in an electroplating works, and claims to have injured her neck in an accident at work on 15 February 1999 as a result of the repetitive lifting of metal pieces. She notified Pioneer of the injury on that day and made a claim for workers compensation. After a brief trial return to work, she has not worked since. Pioneer paid Ms Kotevski weekly compensation until 7 July 1999, but denied liability thereafter.
On 28 February 2005, the Commission registered Ms Kotevski’s ‘Application to Resolve a Dispute’ in respect of her claim for (1) weekly compensation, (2) medical, hospital or related expenses, and (3) compensation for permanent impairment and pain and suffering. Pioneer’s ‘Reply’ was received on 28 April 2005. On 9 May 2005, the Arbitrator conducted a teleconference with the parties, following which he referred Ms Kotevski to an Approved Medical Specialist (‘AMS’) for assessment of permanent impairment.
On 20 June 2005, an AMS, Dr Michael Couch, Occupational Physician, examined Ms Kotevski. Dr Couch’s Medical Assessment Certificate (‘MAC’) was issued by the Commission on 25 October 2005. Dr Couch said, “the most probable diagnosis is of postural muscular pain affecting the lower cervical spine and upper thoracic spine and adjacent shoulder girdle muscles”. He found no obvious exaggeration in Ms Kotevski’s presentation but noted “the unusual factor in this case is the apparent persistence of symptoms unchanged since cessation of employment in 1999”. Dr Couch said in his opinion, Ms Kotevski “did develop a work related condition”. He assessed her as having a 5% permanent impairment of the neck with 10% of this attributable to “pre-existing radiologically demonstrated degenerative change”.
On 22 November 2005, the Arbitrator conducted a further teleconference with the parties and, on 6 December 2005, conciliation having proved unsuccessful, he conducted an arbitration hearing. His decision, in the terms set out below, was issued on 22 December 2005.
THE DECISION UNDER REVIEW
The Certificate of Determination, dated 22 December 2005, records the Arbitrator’s orders as follows:
“a) The Respondent to pay the Applicant the sum of $1,800.00 with regard to 4.5% permanent impairment of the neck, pursuant to Section 66 of the Act.
b) The Respondent to pay the Applicant weekly benefits pursuant to Section 36 of the Act between the 30th March, 1999, and the 20th September, 1999, in the amount of $395.00 per week and totalling $7,900.00;
c) The Respondent to pay the Applicant weekly benefits pursuant to Section 40 of the Act for the period from the 1st April, 2000 and the 30th June, 2000, at the rate of $203.43 per week.
d) The Respondent to pay the Applicant weekly benefits pursuant to Section 40 0f the Act for the period from the 1st July, 2000 to the 30th June, 2001, at the rate of $209.61;
e) The Respondent to pay the Applicant weekly benefits pursuant to Section 40 of the Act for the period from the 1st July, 2001 to the 30th June, 2002, at the rate of $215.79 per week;
f) The Respondent to pay the Applicant weekly benefits pursuant to Section 40 of the Act for the period from the 1st July, 2002, to the 30th June, 2003, at the rate of $222.48 per week.
g) The Respondent to pay the Applicant weekly benefits pursuant to Section 40 of the Act for the period from the 1st July, 2003, to the 30th June, 2004, at the rate of $229.18 per week.
h) The Respondent to pay the Applicant weekly benefits pursuant to Section 40 of the Act for the period from the 1st July, 2004, to the 30th June, 2005 at the rate of $235.87 per week
i) The Respondent to pay the Applicant weekly benefits pursuant to Section 40 of the Act for the period from the 1st July, 2005 at the rate of $243.08 per week and ongoing in accordance with the Applicant’s statutory entitlements.
j) The Respondent to pay the Applicant’s reasonable medical expenses pursuant to Section 60 of the Act upon production of accounts or receipts.
k) The Respondent to pay the Applicant’s costs as agreed or assessed.”
In the Statement of Reasons for his decision, the Arbitrator noted that following a blood test on 20 September 1999, Ms Kotevski was diagnosed as “having contracted the life threatening disease Thrombotic Thrombocytopenic Purpura (‘TTP’), which is a blood disorder”.
The Arbitrator discussed the medical evidence at some length and was obviously frustrated by the differing medical opinions. He said (at paragraph xvi, page 9) while he found it “impossible to reconcile the various medical reports prepared on behalf of the Applicant”, the reports “are consistent in that they say that the Applicant at one time suffered an incapacity for work arising from her employment”. At paragraph xvii (page 11), he said:
“Notwithstanding the clouded issues and doubts, Dr Han, Dr Bowring, Dr Weisz, and even Dr Meachin see the Applicant as having suffered ‘a work related condition’. The MAC is consistent with this and only Dr. O’Donovan stands apart.
On the balance of probabilities, making allowances for the fact that this Application is made pursuant to beneficial legislation and that the strict application of Makita is not always appropriate, the Applicant has suffered an injury to which her employment was a substantial contributing factor.”
With regard to whether Ms Kotevski has a continuing incapacity for work, the Arbitrator noted (at paragraph xxv, page 13): “This is a matter in which, as stated, no two medical opinions are the same. It would be fair to say that none are even alike overall.” However (paragraph xxvi, page 14):
“The MAC is consistent, although no determination is made, with there being an ongoing disability. Dr. Han believes there is an ongoing incapacity, although he has some doubts as to the cause. I have already commented on some aspects of Dr. Weisz’ report but he clearly states, with [sic] consistent with an ongoing incapacity, that ‘Mrs. Kotevski is fit to perform a wide variety of work with restrictions in living and carrying heavy loads’.”
The Arbitrator therefore concluded (paragraph xxvii, page 14):
“On the balance of probabilities the Applicant’s employment was a substantial contributing factor to an injury to her neck which has resulted in an incapacity for work which, having regard to the low assessment for permanent impairment and the comments by Dr. Weisz is presently limited to a partial incapacity.”
The Arbitrator accepted that Ms Kotevski was totally incapacitated for work for the first 26 weeks. He found she had been paid until 29 March 1999, leaving a period of 20 weeks entitlement (from 30 March 1999 to 20 September 1999) at the agreed weekly wage of $395.00 per week, totalling $7,900.00. It was around the 20 September 1999 that Ms Kotevski was diagnosed with TPP, and the Arbitrator found that that, following this, there was a period of about six months when she was incapacitated for work because of this condition. The Arbitrator found, therefore, that she had no entitlement for the period of just over six months to 31 March 2000. Thereafter, the Arbitrator found that the worst effects of the TPP would have subsided, and she was entitled to weekly compensation for ongoing partial incapacity. He calculated this on the basis that Ms Kotevski would have received annual increments of 3% (conceded by Pioneer) on her agreed wage of $395.00.
The Arbitrator then applied the steps prescribed by the NSW Court of Appeal in Mitchell v Central West Health Service (1997) 14 NSWCCR 527 (‘Mitchell’), at 529, and found that for the period from 1 April 2000, her probable earnings were $406.85, her actual earnings were nil, and the difference was $406.85. With regard to the exercise of the discretion under section 40(1) of the Workers Compensation Act 1987 (‘the 1987 Act’), the Arbitrator referred to his earlier quotation from a report by Ms Kotevski’s general practitioner, Dr G Han (paragraph xxiii, c, page 12):
“In his report of the 25th August, 2001, when he is reporting to the Colonial Mutual Life Assurance Society Ltd, Dr Han’s diagnostic uncertainties appear to remain when he says ‘I may refer her to a Rheumatologist for consideration of an unlikely diagnosis of polymyalgia Rheumatica’.
He goes on to say:
‘I cannot see her working at all for the next 5 years. Her quality of life has certainly been poor. Her weight has ballooned (from the chemotherapy,) and her daily activities have been severely curtailed. She is fearful that the T.T.P. can relapse, and unfortunately, no one can tell her that this scenario will not happen. As mentioned previously, T.T.P. is an obscure but very serious condition, and no form of prognostic indicator can be given. She has had some neurological events, which is a worry. In the meantime, we can only encourage her to be optimistic about the future and get on with getting better from her fibromyalgia.’”
The Arbitrator continued (paragraph xxxii, 4, page 15):
“It is not appropriate to accept this [Dr Han’s] comment at face value having regard to the various uncertainties which surround the Applicant’s medical condition. There does however appear to be a reasonable possibility that Dr. Han is correct and I would assess that possibility at about 50/50. On this basis it would be appropriate to reduce the figure of $406.85 by 50% to $203.43.”
The Arbitrator therefore determined Ms Kotevski’s entitlement to weekly compensation for the period 1 April 2000 to 30 June 2000 to be $203.43, and thereafter on the same basis with annual increments.
ISSUES IN DISPUTE
The grounds of appeal identified by Pioneer are (1) the medical evidence read as a whole does not establish a nexus between work and injury, or establish that work was a substantial contributing factor to the injury, (2) any incapacity for work should have resolved two to three months after the injury, (3) any ongoing incapacity is not solely related to the injury, TTP also being a likely cause of incapacity, and (4) the Arbitrator failed to properly exercise his discretion pursuant to section 40(1) of the 1987 Act. The parties’ submissions are discussed below.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) states:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
I have had regard to Practice Directions Numbers 1 and 6, the documents before me, and the submissions by the parties that the matter can 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.
Neither party sought to adduce fresh evidence.
LEAVE
Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act. The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act. With regard to section 352(2), I am satisfied that the compensation at issue exceeds $5,000 and constitutes at least 20% of the amount awarded in the decision appealed against. I therefore grant leave to appeal.
SUBMISSIONS, EVIDENCE AND DISCUSSION
The role of the Presidential Member on appeal is to review the Arbitrator’s decision as a whole. The review is not a rehearing. In this case, Pioneer must demonstrate that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172; The King Island Company Limited v Deery [2005] NSWWCCPD 1) in order to enliven the Presidential Member’s power to interfere with the Arbitrator’s decision pursuant to section 352(7) of the 1998 Act. Where the weight accorded to the evidence by the Arbitrator is challenged, Deputy President Fleming’s comment in Knight v Eyles Nominees Pty Ltd [2004] NSWWCCPD 73, at paragraph 40, should be borne in mind:
“Interference with an Arbitrator’s discretionary judgement as to the weight of evidence should only be done where it is manifestly obvious that the discretion has so miscarried that it has not been exercised fairly and lawfully.”
Causation
Pioneer submits the medical evidence read as a whole does not establish a nexus between work and injury, or establish that work was a substantial contributing factor to the injury. It refers to a report dated 29 April 1999 by Dr Greg Bowring, Rehabilitation Medicine Physician. Dr Bowring noted that for the last two and a half months of 1998, Ms Kotevski:
“was involved in a heavy period of work where she was required to work longer hours than usual ... During this period of intense work she felt tired, and complained of some pain in the flexor aspect of the left wrist. She told her boss about it and went on holiday.”
Dr Bowring diagnosed “regional pain syndrome with marked hyper-sensitivity of the whole posterior cervical area”, found “many features suggestive of fibromyalgia”, and the timing of the onset of her symptoms “somewhat puzzling in the context of a work-related problem”. In a subsequent report dated 25 July 2000, Dr Bowring diagnosed “chronic pain syndrome affecting neck and upper thoracic spine”, “possible ligamentous avulsion injury spinous process T3 vertebra”, and “aggravation of pre-existing but albeit asymptomatic cervical degenerative change at C4/5”, making no mention of work-related involvement.
Pioneer also draws attention to Dr Han’s report of 19 June 2004, in which he concludes that Ms Kotevski has “repetitive strain of her neck and upper spine at work 1998-1999”, “fibromyalgia (moderately severe and triggered by the above)”, TTP, and chronic anxiety. Dr Han said:
“I believe that the nature of her work had caused the debilitating severe pains in the neck/shoulders in 1998 and 1999. Perhaps that might also have been the sole trigger for her Fibromyalgia. Unfortunately, the TTP and its subsequent effects had “muddied” and contributed (in an adverse way) to her general pain syndrome. It would be very difficult to be sure either way regarding the exact cause of her current disabilities.”
Pioneer notes that Dr George Weisz, Orthopaedic Surgeon, in a report dated 5 July 2004, diagnosed “cervical disc injury, proven in 1999 and contracted by 2001”, and “compression of T5, proven in 1999 (when a bone scan was performed), healed and remodelled”. Pioneer submits Dr Weisz’s opinion that “the mechanism of injury presented is probably the cause of the detected pathologies” is based in error, since it is clear these were in fact old injuries. Yet, the Arbitrator identified this as the strongest report on causation. In my view, that it is not entirely correct. To quote the Arbitrator at paragraph xvi (page 10), in full: “The strongest report in this regard is probably that of Dr Weisz dated the 5th July, 2004, but it appears to be muddled in its presentation and inconsistent with the radiology.” It is clear that the Arbitrator was aware that Dr Weisz’s report had shortcomings.
With regard to the MAC, Pioneer submits the initial histories given in 1999 are more relevant with regard to the symptoms suffered, particularly that recorded by Dr Bowring, who raised a real issue as to the work context.
In response, Ms Kotevski’s solicitors point to Dr Han’s report dated 19 June 2004:
“Ms Kotevska was seen in my surgery on 24/2/1999, when I treated her for increasingly debilitating upper back and neck pains. I had certified that date to be her “date of injury”, but I noted that she was previously troubled by similar pains, which were of lesser intensity, when I saw her for the first time ever on 12/12/1998.
... By late 1998, she started experiencing aches and pains in her left arm, neck and shoulders region, prompting her to see me.”
Ms Kotevski’s solicitors submit it is not correct to say that the heavy work complained of before Christmas 1998 had nothing to do with the neck. The histories taken by Dr Han on 12 December 1998 and 24 February 1999 were taken closer to the event than Dr Bowring’s, and are more reliable and should be accepted. Moreover, it appears that Ms Kotevski had been back at work for two weeks when the symptoms worsened on 15 February 1999. Ms Kotevski’s solicitors noted that with the exception of Dr John O’Donovan, Physician (report dated 31 May 1999), all the doctors who have seen Ms Kotevski have found that she suffered from a work-related injury. The AMS, Dr Couch, reviewed the opinions of all the other doctors and rejected Dr O’Donovan’s opinion, noting he did not detail an occupational history. Dr Couch found Ms Kotevski did develop a work-related condition.
I am not satisfied that the Arbitrator made any error in his treatment of the medical evidence or in his findings on the issue of causation. I agree with Ms Kotevski’s solicitors that Dr Han’s history is the most instructive, and note the comment in his report dated 19 June 2004, quoted above, pertains to Ms Kotevski’s current disabilities, and does not contradict his opinion that the nature of her work had caused the debilitating severe pains in the neck/shoulders in 1998 and 1999. Clearly, the AMS undertook a careful review of all the medical evidence in concluding that Ms Kotevski “did develop a work related condition”, albeit “that her features have apparently remained unchanged for the last 5 - 6 years”. However, he found no evidence that Ms Kotevski was fabricating her symptoms.
Thus, while, clearly, the Arbitrator experienced some difficulty in weighing up the evidence, there was, nevertheless, ample evidence to support his finding as to causation and that Ms Kotevski’s employment was a substantial contributing factor to her injury. I therefore reject this first ground of appeal.
Incapacity
Pioneer has identified three grounds of appeal in relation to incapacity. The first ground of appeal is that any incapacity for work should have resolved two to three months after the injury. Pioneer submits one needs to consider the effect of TTP on Ms Kotevski’s capacity for work. Dr Han noted the muddying effect of TTP on assessing the exact cause of Ms Kotevski’s current disabilities. Dr Weisz stated that any strain should have “healed within two to three months”. Dr David Meachin, Orthopaedic Surgeon, in a report dated 5 May 2005, stated of Ms Kotevski:
“In my opinion this woman’s problems are caused by constitutional degenerative changes. I would accept that the nature and conditions of her work on about 15/2/99 did aggravate her constitutional degenerative changes but that aggravation has long since ceased.”
The AMS also expressed the opinion that it was unusual for such symptoms to have remained unchanged for the last five to six years. Pioneer submits that Ms Kotevski would have been incapacitated for a period of two to three months from February 1999 and any incapacity thereafter is not work-related.
Ms Kotevski’s solicitors submit that the Arbitrator’s finding that Ms Kotevski was totally incapacitated for work for the first 26 weeks and (excepting the six months when the Arbitrator found she would have been unable to work because of TTP) partially incapacitated thereafter, was open to the Arbitrator on the evidence. The Arbitrator rightly rejected the suggestion that Ms Kotevski’s symptoms in February 1999 were consistent with TTP, there being no medical evidence to support this. With regard to the period after TTP was diagnosed, Dr Han’s comments in his report dated 19 June 2004 on the uncertainty over the cause of her then current disabilities, suggests the cause of her incapacity is a combination of both her work injury and the TTP, in which case Ms Kotevski has a partial incapacity for work caused by the work injury. The AMS’s assessment of a 4.5% permanent impairment of the neck is consistent with an ongoing partial incapacity for work.
I note the difficulty experienced by the Arbitrator in making a determination on the question of incapacity and Ms Kotevski’s entitlement to weekly compensation. Once again, the Arbitrator appears to have reviewed the relevant medical evidence, referring, in particular, to that of Dr Han, who, in his report dated 19 June 2004, stated that the TTP was in remission although Ms Kotevski: “has had problems with abnormal pains. The matter remains unresolved. These matters are not related to the work cover claim.” The Arbitrator commented (paragraph xxiii, c, page 12):
“this is the type of consideration which I would be obliged to take into account in applying the 4th step in Mitchell’s Case formula. It has the potential to negate any entitlement which the Applicant would have, from the date of the onset of her TTP.”
The Arbitrator noted that for the purposes of his MAC, the AMS disagreed with Dr Weisz and Dr Meachin, “at least to the extent that he found a 4.5% permanent impairment of the neck, after allowance for degeneration” (paragraph xxiv, e, page 13). The Arbitrator noted (paragraph xxvi, page 14):
“The MAC is consistent, although no determination is made, with there being an ongoing disability. Dr. Han believes there is an ongoing incapacity, although he has some doubts as to the cause. I have already commented on some aspects of Dr. Weisz’ report but he clearly states, with [sic] consistent with an ongoing incapacity, that ‘Mrs. Kotevski is fit to perform a wide variety of work with restrictions in living and carrying heavy loads’.
Only Dr. Meachin, who concedes injury, is prepared to assert full recovery.”
The Arbitrator concluded (paragraph xxvii, page 14):
“On the balance of probabilities the Applicant’s employment was a substantial contributing factor to an injury to her neck which has resulted in an incapacity for work which, having regard to the low assessment for permanent impairment and the comments by Dr. Weisz is presently limited to a partial incapacity.”
I am not satisfied by Pioneer’s submissions that the Arbitrator has made any error in his determination that Ms Kotevski is partially incapacitated for work. I therefore reject this ground of appeal.
Pioneer’s second ground of appeal in relation to incapacity is that any ongoing incapacity is not solely related to the injury, TTP also being a likely cause of incapacity. In my view, the Arbitrator recognised that TTP might also be a cause of incapacity – see paragraph 32, above – and took this into account as a relevant consideration in exercising his discretion under section 40(1) of the 1987 Act. I therefore also reject this ground of appeal.
Pioneer’s final ground of appeal in relation to incapacity is that the Arbitrator failed to properly exercise his discretion pursuant to section 40(1) of the 1987 Act. Pioneer submits the Arbitrator’s methodology in reducing the potential award of compensation by 50% because, it would seem, of the possibility that TTP was also a contributing cause of incapacity, was incorrect and does not deal with “all of the matters raised in the medical reports nor does it consider all of the various aspects raised by this lady’s condition”. I reject this submission and the subsequent comment that the Arbitrator “ignored Dr Han’s own view with respect to the muddying of the picture concerning this lady’s condition”. My quotation from the Arbitrator’s Statement of Reasons at paragraph 32 above, makes clear that the Arbitrator did have regard to the possible contribution made by TTP to Ms Kotevski’s incapacity. Pioneer submits that, in any event, there should be “a greater deduction than 50% due to the uncertainty that has been expressed as to the causes of this lady’s present condition”. In my view, the Arbitrator, in reviewing the medical evidence, clearly took into consideration the uncertainty expressed. I am not satisfied that there is any error of fact or law that would justify my interfering with the exercise of his discretion under section 40(1).
Finally, Ms Kotevski’s solicitors submit that in accordance with the decision in Hirst v Illawarra Area Health Service (2000) 21 NSWCCR 82 (‘Hirst’), at 91-92, Ms Kotevski was entitled to a nominal award of say $10.00 per week during the six months when she was otherwise unable to work because of treatment for TTP. The facts of that case concerned a worker who had maternity leave during a period of partial incapacity. Neilson J held that, pursuant to the decision of the NSW Court of Appeal in Kesen v Luke Singer Pty Ltd (1989) 5 NSWCCR 298 (‘Kesen’), a matter such as pregnancy must be taken into account in the exercise of discretion under section 40(1). Once partial incapacity due to a work-related injury has been found in respect of a period, it is impermissible to award nothing. His Honour, noting that in Kesen the award made by O’Meally J on remittal from the Court of Appeal in respect of a period of almost three years when the worker was in Turkey, was the sum of $1.00 per week, made an award for the applicant of $10.00 per week.
I note that this issue was also discussed by the NSW Court of Appeal in Wrigley Co Pty Ltd v Holland (2002) 23 NSWCCR 463 (‘Wrigley’). The worker’s pregnancy was held to be relevant at step 2 of the Mitchell prescribed steps, (per Handley JA at paragraph 20, Hodgson JA and Ipp AJA agreeing) “because, as a result of this condition and its consequences, she was not able to earn anything in suitable employment ... (s 40 (2)(b))”. However, Handley JA went on to say (at paragraph 21) that it is at step 4 of the Mitchell prescribed steps that the Court must examine all the facts including “such matters as retirement, other supervening illnesses or injuries, the personal history of the worker, and so on”. His Honour cited with approval the decision of Neilson J in Hirst, and said (at paragraph 23):
“However, where there is a reduction of earnings, the Court is not entitled, in the exercise of the discretion, to dismiss the claim of a partially incapacitated worker, but must make some award in his or her favour ...”
In the present matter, the Arbitrator accepted that for the first 26 week after the injury on 15 February 1999, Ms Kotevski was totally incapacitated for work (paragraph xxviii, p14). In my view, it is implicit in the Arbitrator’s Statement of Reasons, that beyond those 26 weeks, from 21 September 1999, Ms Kotevski was partially incapacitated for work because of the injury. The Arbitrator found, however, that it was at about this time that Ms Kotevski was diagnosed with TTP. The Arbitrator referred to the MAC (paragraph c, page 5), where the AMS stated:
“I note from the correspondence from Dr George Han, treating general practitioner, that she was admitted to hospital in September 1999 and diagnosed with thrombotic thrombocytopaenic purpura (TTP) a serious blood disorder. She apparently had a prolonged hospital admission requiring intensive treatment.”
In my view, Ms Kotevski’s solicitors are correct and, pursuant to Wrigley and the other cases cited above, the Arbitrator should have awarded Ms Kotevski a nominal amount in respect of weekly compensation for the period from 21 September 1999 to 31 March 2000. By not doing so, the Arbitrator made an error of law. Applying the section 40(1) discretion, and taking into account the serious illness – TTP - as a result of which Ms Kotevski was totally incapacitated for work from about 21 September 1999 for a period of about six months, it is appropriate that Ms Kotevski should receive an award of $10.00 per week for the period 21 September 1999 to 31 March 2000. The Arbitrator’s determination, which in other respects must be confirmed, should be amended accordingly.
DECISION
The Arbitrator’s decision dated 22 December 2005 is revoked and the following decision is substituted in its place:
“a) The Respondent to pay the Applicant the sum of $1,800.00 with regard to 4.5% permanent impairment of the neck, pursuant to Section 66 of the Workers Compensation Act 1987;
b) The Respondent to pay the Applicant weekly benefits pursuant to Section 36 of the Workers Compensation Act 1987 between the 30th March, 1999, and the 20th September, 1999, in the amount of $395.00 per week and totalling $7,900.00;
c) The Respondent to pay the Appellant weekly benefits pursuant to Section 40 of the Workers Compensation Act 1987 for the period from 21 September 1999 to 31 March 2000, at the rate of $10 per week;
d) The Respondent to pay the Applicant weekly benefits pursuant to Section 40 of the Act for the period from the 1st April, 2000 and the 30th June, 2000, at the rate of $203.43 per week;
e) The Respondent to pay the Applicant weekly benefits pursuant to Section 40 0f the Act for the period from the 1st July, 2000 to the 30th June, 2001, at the rate of $209.61;
f) The Respondent to pay the Applicant weekly benefits pursuant to Section 40 of the Act for the period from the 1st July, 2001 to the 30th June, 2002, at the rate of $215.79 per week;
g) The Respondent to pay the Applicant weekly benefits pursuant to Section 40 of the Act for the period from the 1st July, 2002, to the 30th June, 2003, at the rate of $222.48 per week;
h) The Respondent to pay the Applicant weekly benefits pursuant to Section 40 of the Act for the period from the 1st July, 2003, to the 30th June, 2004, at the rate of $229.18 per week;
i) The Respondent to pay the Applicant weekly benefits pursuant to Section 40 of the Act for the period from the 1st July, 2004, to the 30th June, 2005 at the rate of $235.87 per week;
j) The Respondent to pay the Applicant weekly benefits pursuant to Section 40 of the Act for the period from the 1st July, 2005 at the rate of $243.08 per week and ongoing in accordance with the Applicant’s statutory entitlements;
k) The Respondent to pay the Applicant’s reasonable medical expenses pursuant to Section 60 of the Act upon production of accounts or receipts;l) The Respondent to pay the Applicant’s costs as agreed or assessed.”
COSTS
The Appellant, Pioneer Plating Works Pty Ltd, is to pay Ms Kotevski’s costs in this appeal.
Robin Handley
Acting Deputy President
23 October 2006
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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