Plateau Tree Services Pty Ltd v Shannon
[2011] NSWWCCPD 75
•22 December 2011
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| CITATION: | Plateau Tree Services Pty Ltd v Shannon [2011] NSWWCCPD 75 | ||||
| APPELLANT: | Plateau Tree Services Pty Ltd | ||||
| RESPONDENT: | Ross Shannon | ||||
| INSURER: | QBE Workers Compensation (NSW) Ltd | ||||
| FILE NUMBER: | A1-6398/11 | ||||
| ARBITRATOR: | Mr G Edwards | ||||
| DATE OF ARBITRATOR’S DECISION: | 15 September 2011 | ||||
| DATE OF APPEAL DECISION: | 22 December 2011 | ||||
| SUBJECT MATTER OF DECISION: | Incapacity; application to rely on fresh evidence on appeal; s 352(6) of the Workplace Injury Management and Workers Compensation Act 1998; reasons for preferring one medical specialist over another; alleged failure to consider all evidence | ||||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | ||||
| HEARING: | On the papers | ||||
| REPRESENTATION: | Appellant: | Kaden Boriss | |||
| Respondent: | Walker Legal | ||||
ORDERS MADE ON APPEAL: | The Arbitrator’s decision of 15 September 2011 is confirmed. The appellant employer is to pay the respondent worker’s costs of the appeal, as agreed or assessed. | ||||
BACKGROUND
The respondent worker, Ross Shannon, worked for the appellant employer, Plateau Tree Services Pty Ltd, as a truck driver/arborist. His duties required him to not only drive trucks but also manipulate various heavy pieces of equipment involved in the tree lopping industry (such as stump grinders), climb trees, lift and carry branches, and to walk over uneven ground. His work was clearly heavy. He injured his right knee while operating a friction drum (which is similar to a winch) in the course of his employment on 28 January 2010. Investigations revealed a tear of the right medial meniscus. The appellant has not disputed the circumstances of the incident or the nature of the pathology that has resulted from it.
Mr Shannon underwent surgery on his right knee on 24 March 2010 at the hands of Dr Dickison. The operation revealed a large flap tear of the posterior one third of the medial meniscus. Mr Shannon was off work for about four or five weeks. After receiving physiotherapy, he returned to work on suitable duties in April 2010, though he said there were really no suitable duties with the appellant. His knee was not as strong as it had been and he still had a burning at the site of the surgery. He had to be more careful, and was worried about twisting it again and doing more damage.
Mr Shannon said that he wanted to go off workers compensation and start back at a normal job and, after a period on suitable duties, he asked his treating general practitioner, Dr Artinian, if he could write down that he could go back to work normally. As a result of that request, Dr Artinian certified Mr Shannon fit for work on 25 October 2010. Also on 25 October 2010, Mr Shannon reluctantly decided to leave the appellant. He found a job that only required him to drive a truck and use a “palfinger”, a crane attached to the back of a truck, to load and unload bricks. His new job was a lot easier than his pre-injury work with the appellant. He still has symptoms in his knee, which he said still “bites every now and then” (T10.45), but is able to do his new job.
The parties agreed that the wage difference between Mr Shannon’s new job and his pre-injury employment is $223.76 per week. The only issue in dispute before the Arbitrator was whether Mr Shannon was incapacitated as a result of his injury and whether his economic loss had resulted from his injury.
On 13 September 2011, the Arbitrator heard oral evidence from Mr Shannon and submissions from counsel. On 15 September 2011, the Arbitrator delivered an oral decision in favour of Mr Shannon. The Commission issued a Certificate of Determination on that day in which the following orders were made:
“1. Respondent to pay the applicant weekly payments of compensation at the rate of $223.76 from 26 October 2010 to date and continuing pursuant to section 40 of the Workers Compensation Act 1987.
2. Respondent to pay the applicant’s costs as agreed or assessed. For the purposes of Schedule 6 Table 4 Item 4 of the Workers Compensation Regulation 2010, I certify this matter as complex with a 20 per cent increase in the costs otherwise available to both parties.”
The appellant appealed on 13 October 2011.
ON THE PAPERS
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.”
Having regard to Practice Directions Nos 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
FRESH EVIDENCE
The appellant seeks to tender, as fresh evidence or additional evidence on appeal, a report from Dr Dickison dated 25 October 2010 and addressed to a general practitioner, Dr Brodski. That report states:
“Ross was reviewed today.
He is now just over six months down the track since the arthroscopy of his right knee. He has been working hard at his exercise programme and developed very good quads strength. He now finds all the residual antero medial pain in his knee has settled.
I have encouraged Ross to continue with his own exercise programme now.
I would be happy to review him with any further concerns.”
In support of its application, the appellant has submitted:
(a) the failure to grant leave to rely on the report would cause a substantial injustice in the case;
(b) Dr Dickison’s initial report, dated 15 March 2010, pre-dating the date of the surgery, is in evidence and the report of 25 October 2010 provides an up-to-date opinion on the worker’s condition;
(c) it is not procedurally fair for the Commission to consider only one report from the treating doctor when a more recent report is available, and
(d) the new report does not prejudice the worker because it is from the treating specialist and would have been available to him prior to these proceedings being commenced.
Mr Shannon has opposed the introduction of Dr Dickison’s report. He submitted that the worker’s solicitor had requested copies of all medical reports on 6 June 2011 and Dr Dickison’s report was not produced. In addition, there is no explanation for the insurer not having sought to tender it at the arbitration.
The admission of fresh evidence on appeal is governed by s 352(6) of the 1998 Act. That sub-section provides:
“(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. The Commission is not to grant leave unless satisfied that the evidence concerned was not available to the party, and could not reasonably have been obtained by the party, before the proceedings concerned or that failure to grant leave would cause substantial injustice in the case.”
There is no proper ground for allowing Dr Dickison’s report into evidence as fresh evidence on appeal. The report was available at the arbitration and the appellant has not explained why the report was not tendered at that time. The report can therefore only be admitted if it is established that the failure to grant leave would cause substantial injustice in the case.
While the appellant has submitted that the failure to grant leave to rely on Dr Dickison’s report will cause a substantial injustice, it has not explained why that would be so. The report made no mention of Mr Shannon’s duties and made no comment on his fitness for those duties, but merely recorded that his “antero medial” pain had settled. In these circumstances, even if the report were admitted, it would make no difference to the result.
Further, Dr Dickison’s report of 25 October 2010 was listed (along with several other reports from him that are also not in evidence) among the reports that Dr Garvan, orthopaedic surgeon qualified by the insurer, considered and reviewed prior to preparing his report of 3 March 2011. It clearly made no difference to his opinion. To suggest that, in these circumstances, the appellant will suffer a substantial injustice if the report is not admitted on appeal is untenable.
The submission that it would be procedurally unfair for the Commission to have only one report from the treating doctor when a more recent report is available was surprising. Included in the reports the insurer sent to Dr Garvan are several post-operative reports from Dr Dickison. The insurer not only did not serve those reports on the worker, as it was required to do under cl 46 of the Workers Compensation Commission Regulation 2010, but it did not tender any of those reports in its own case.
Practitioners are reminded, yet again, that arbitrations are not trial runs to see how things turn out with a view to properly preparing the case on appeal. The unexplained failure to tender Dr Dickison’s report(s) at the arbitration is unsatisfactory. Nevertheless, the report is of such limited probative value that I do not believe any injustice (let alone a substantial injustice) will result if it is not admitted on appeal.
THE ARBITRATOR’S DECISION
The Arbitrator accepted Mr Shannon’s evidence about the circumstances in which he resigned. That evidence was that he was having problems with his right knee, including a burning sensation on the inside of the knee, and that he was concerned that he may injure the knee, given the nature of his duties. He also accepted that Mr Shannon’s pre-injury duties were heavy and would place strain on his knees, especially when operating the grinders, walking on uneven ground and climbing. The work with his new employer was a lot easier. It involved driving a truck and using a “palfinger” to mechanically lift pallets of bricks off the truck.
The Arbitrator referred to Professor Cumming’s report of 17 August 2010 in which it was concluded that Mr Shannon was fit for his pre-injury work, but said that he did not know if Professor Cumming had a complete history as to the type of work tasks Mr Shannon was required to perform in his pre-injury work. Professor Cumming recorded that, as at 17 August 2010, Mr Shannon still had pain on kneeling and burning on the medial side of the knee. The pain had occurred the day before the examination and was significant, requiring Mr Shannon to rest his leg and take Voltaren.
The history of a burning sensation recorded by Professor Cumming was consistent with Mr Shannon’s evidence to the Arbitrator. Professor Cumming felt that Mr Shannon had a whole person impairment as a result of the condition of his knee, but felt that he had not reached maximum medical improvement. He referred to complications from the surgery that had not settled: significant wasting of the quadriceps and irritation of the infrapatellar branch of the saphenous nerve.
Notwithstanding that Mr Shannon’s condition had not stabilised, Professor Cumming concluded that he was fit for any sort of employment, including his pre-injury employment, without restrictions. He added that Mr Shannon may still need certificates regarding selected duties and he needed to be careful jumping off a truck, but he was doing all his other work.
The Arbitrator contrasted the worker’s symptoms when he saw Professor Cumming to his symptoms when he saw Dr Garvan on 3 March 2011. Dr Garvan recorded that Mr Shannon’s knee was “good as long he keeps up his strengthening exercises”. He had to “watch” his knee when getting up on a truck because he can occasionally feel discomfort in it when he does so. He noticed discomfort in his right knee when getting down onto his knees. There was no locking, catching or giving way.
In contrast to Professor Cumming, Dr Garvan made a detailed note of Mr Shannon’s pre-injury duties and the physical requirements of those duties. In particular he recorded that, at the time of the injury, Mr Shannon had been using a friction drum to lift branches and bring them over the fence and cars. To do that, he was semi-squatting while he wound the drum when he felt intense pain over the inner side of his right kneecap. Dr Garvan concluded that Mr Shannon was not fit for work that required repetitive squatting or kneeling and was unfit for his pre-injury employment “which was very strenuous and involved repetitive squatting”.
Having considered the above reports, the Arbitrator preferred Dr Garvan’s evidence because Professor Cumming may not have had the correct work history of the tasks Mr Shannon performed with the appellant compared to his duties with his new employer. He also placed weight on the fact that, at the time of Professor Cumming’s examination, Mr Shannon’s condition had not stabilised. He therefore felt that Dr Garvan’s report provided a fair climate upon which the doctor based his opinion that Mr Shannon was not fit for his pre-injury duties (Paric v John Holland Constructions Pty Ltd [1985] HCA 58; 59 ALJR 844; [1984] 2 NSWLR 505 at 509-510 (Paric)).
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a) preferring the evidence of Dr Garvan over that of Professor Cumming (preferring Dr Garvan’s evidence), and
(b) failing to consider or address the medical certificate of Dr Artinian dated 25 October 2010 (Dr Artinian’s medical certificate of 25 October 2010).
SUBMISSIONS, DISCUSSION AND FINDINGS
Preferring Dr Garvan’s evidence
The appellant has submitted that the Arbitrator’s reason for preferring Dr Garvan’s evidence is not supported by the evidence. Other than this bald assertion, the appellant has made no submission to support this challenge and has not referred to any of the evidence.
The Arbitrator gave two reasons for preferring Dr Garvan to Professor Cumming. First, he rightly concluded that Professor Cumming took no history of Mr Shannon’s pre-injury duties or the demands associated with those duties. Other than to note that Mr Shannon was in a “lunge position” when he injured his knee, the Arbitrator’s statement about Professor Cumming’s history was correct.
In contrast, Dr Garvan recorded that Mr Shannon worked as a truck driver/labourer for a company involved in tree lopping. He took a detailed note of the physical nature of the activity Mr Shannon was doing at the time of his injury, that is, he took a detailed note of Mr Shannon’s pre-injury duties and that they included repetitive squatting. This provided a valid ground for preferring Dr Garvan’s evidence to Professor Cumming’s evidence.
Second, the Arbitrator rightly noted that Mr Shannon’s condition had not stabilised at the time of Professor Cumming’s assessment. That provided a separate and additional reason, if the Arbitrator erred in his first reasons (which I do not accept), for not accepting Professor Cumming’s evidence. It was open to the Arbitrator to prefer Dr Garvan’s evidence.
Though it was not relied on by the parties, and I therefore do not base my decision on it, there is a further reason for rejecting Professor Cumming’s evidence. It is internally inconsistent. Professor Cumming’s assertion that Mr Shannon was fit was inconsistent with his statement that he may still need certificates for selected duties.
I reject the first ground of appeal.
Dr Artinian’s medical certificate of 25 October 2010
The medical certificate from Dr Artinian dated 25 October 2010 certified Mr Shannon fit for his pre-injury duties. Mr Shannon’s evidence, which the Arbitrator accepted, was that he asked Dr Artinian if he could write down that he could go back to work normally. At that time, Mr Shannon was stopping work with the appellant and starting lighter work with a new employer.
The appellant submitted that the Arbitrator erred in not considering or addressing Dr Artinian’s medical certificate.
The Arbitrator’s only reference to Dr Artinian’s certificate was that Mr Shannon had asked his local doctor (Dr Artinian) for a certificate to return to full duties because he “wanted [sic] to be on workers compensation payments and simply get on with his job” (T2.56 15 September 2100). The transcript is clearly in error, because the undisputed evidence is that Mr Shannon asked Dr Artinian for a certificate to go back to work normally because he wanted to “go off workers comp and start back” at a “normal job” (T12.9 13 September 2011).
However, an Arbitrator is required to deal with the issues presented by the parties (Brambles Industries Limited v Bell [2010] NSWCA 162 at [22] and [30]) and decisions must be read in context (Sarian v Elton [2011] NSWCA 123).
Counsel for the appellant made only the faintest indirect reference to Dr Artinian’s certificate. At T22.42, he said:
“Now my submission is [Mr Shannon’s] decision to leave that employment and move to another employment was based not on a perceived incapacity to perform the work that was required at Plateau Trees, which in fact as he said in his evidence he did in fact perform after he returned to work and was certified fit for full time pre-injury duties and that, in large part, appears to have occurred at least in the period which Dr Cumming saw him in August and probably subsequent to the April when Mr Shannon indicated that he would go to his doctor and he’d tell the doctor what he wanted to do and at one point he said he was fit to do suitable duties.”
Counsel then submitted that Mr Shannon had a demonstrated himself capable of earning and, in the exercise of his discretion (under s 40 of the Workers Compensation Act 1987 (the 1987 Act)), the Arbitrator would find that he was capable of earning the same with his new employer as he had with the appellant (T23.32) and any wage loss was “unrelated in large part” (T23.37) to the worker’s actual capacity to earn. Counsel then addressed on Dr Garvan’s assessment of whole person impairment and repeated that, in the exercise of his discretion, there was no incapacity for work compensable under s 40 (T24.19). The change in duties was, it was submitted, in large part a result of the change in “industrial circumstances as opposed to [Mr Shannon’s] capacity for work” (T24.24). Counsel added that the risk of re-injury related mostly to Mr Shannon jumping in and out of trucks and that risk was a feature of his new job as well as his job with the appellant (T24.33).
Given that counsel for the appellant placed little or no emphasis on Dr Artinian’s certificate, it is hardly surprising that the Arbitrator did not focus on it in his decision. The Arbitrator dealt with the work Mr Shannon did after the operation and accepted his evidence that he had continuing problems with his right knee and a concern that, given the heavy nature of his duties with the appellant, he might re-injure his knee. This evidence, combined with Dr Garvan’s evidence, provided a sound basis for the Arbitrator’s conclusion that Mr Shannon suffered an incapacity because of his injury and that his economic loss resulted from that incapacity.
It follows that, since the Arbitrator rejected Professor Cumming’s evidence on fitness, by implication, he also rejected the opinion in Dr Artinian’s certificate of 25 October 2010. In any event, as Dr Artinian provided no report in which he explained the opinion expressed in his certificate, that opinion was no more than a bare ipse dixit and of little, if any, weight (Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705). It certainly carries less weight than Professor Cumming’s opinion, which the Arbitrator rejected.
In the circumstances, the Arbitrator made no error in not expressly referring to Dr Artinian’s medical certificate of 25 October 2010. He dealt with the issues presented by the appellant’s counsel and that included the issue raised in the medical certificate, namely, Mr Shannon’s fitness for work. It is not an error to omit to state expressly a finding that is clear on a fair reading of the whole of the decision (Polglaze v Veterinary Practitioners Board of NSW [2009] NSWSC 347 at [56]).
I reject the second ground of appeal.
CONCLUSION
This appeal was without merit and should not have been filed. Mr Shannon suffered a significant injury to his right knee in the course of his employment with the appellant on 28 January 2010. As a result, he has been left with continuing symptoms and restrictions that have led him to seek alternative, lighter, employment, which pays less than his pre-injury employment. He is entitled to compensation accordingly.
DECISION
The Arbitrator’s decision of 15 September 2011 is confirmed.
COSTS
The appellant employer is to pay the respondent worker’s costs of the appeal, as agreed or assessed.
Bill Roche
Deputy President
22 December 2011
I, MARGOT UNDERCLIFFE, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
0
5
0