Redman Holdings Pty Ltd t/as Hibiscus Gardens Caravan Park v Lee - [2010] NSWWCCPD 4

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Redman Holdings Pty Ltd t/as Hibiscus Gardens Caravan Park v Lee [2010] NSWWCCPD 4
APPELLANT:		Redman Holdings Pty Ltd t/as Hibiscus Gardens Caravan Park
RESPONDENT:		Donald Keith Lee
INSURER:		CGU Workers Compensation (NSW) Limited
FILE NUMBER:		A1-002452/09
ARBITRATOR:	Mr R Whitelaw
DATE OF ARBITRATOR’S DECISION:		20 July 2009
DATE OF APPEAL DECISION:		13 January 2010
SUBJECT MATTER OF DECISION:		Adequacy of reasons; weight of evidence; injury; credit of the worker
PRESIDENTIAL MEMBER:		President, Judge Keating
HEARING:		On the papers
REPRESENTATION:		Appellant:	Sparke Helmore Lawyers
Respondent:	Bourke Love Lawyers
ORDERS MADE ON APPEAL:		Time to appeal is extended to 20 August 2009. The decision of the Arbitrator dated 20 July 2009 is revoked and the following orders made in its place: “1. An award for the Respondent, Redman Holdings Pty Ltd. 2. No order as to costs.” Each party pay its/his own costs of the appeal.

BACKGROUND TO THE APPEAL

Mr Lee was employed with his wife to manage the Hibiscus Gardens Caravan Park, owned by Redman Holdings Pty Ltd (‘the Appellant/the caravan park/Redman Holdings’). He commenced work on 15 December 2000 and resigned on 22 June 2005, effective on 17 July 2005.

Prior to the worker’s resignation, Redman Holdings became aware that Mr Lee had not banked all the takings from the caravan park. On 22 June 2005, after Mr Lucy, Redman’s accountant, made a number of requests of Mr Lee to bank outstanding monies, Mr Lee informed Mr Lucy that he thought his wife had accidentally thrown out the money with the garbage. Both he and his wife tendered their resignations on that day.

An internal audit revealed $49,604.94 had not been banked and was unaccounted. A police investigation was initiated. Mr and Mrs Lee were charged and convicted at Ballina Local Court and on 7 February 2008 Mr Lee was sentenced to 18 months periodic detention. In civil proceedings a judgment was also entered against the Lees in the sum of $71,780.69 including interest.

During his employment Mr Lee did not report any injuries. He did suffer a heart attack on 22 December 2004, which, although initially pleaded, was not ultimately pursued as a work injury.

On 24 June 2008, the worker’s solicitor forwarded a letter to CGU Workers Compensation (NSW) Limited (‘CGU’), setting out a request for payment of medical expenses. The letter referred to previous correspondence, however no letters of earlier date are in evidence.

On 19 August 2008, Mr Lee’s solicitors lodged a claim on the employer for lump sum compensation under section 66 in respect of 17% whole person impairment (‘WPI’) and $15,000.00 under section 67 for pain and suffering, together with a claim for weekly compensation payments at the rate of $250.00 per week from 24 December 2004 (later amended to July 2005) to date and continuing. No dates of injury were particularised in the letter, however, a statement from Mr Lee and a medico-legal report from Dr Ashwell dated 11 August 2008 were attached and relied upon. Unfortunately these documents were not annexed to the copy of the 19 August 2008 letter in evidence.

The worker provided four statements in these proceedings but only his statement dated 2 July 2008 predated the letter of demand and the inference drawn is that this was the statement relied upon in making the claim under cover of letter dated 19 August 2008. In this statement Mr Lee alleged that the work at the caravan park was physically and mentally very demanding and he suffered injury to his left shoulder, lower back and also suffered exacerbation of arthritic conditions in his right shoulder, knees and neck.

By letter dated 28 August 2008, Mr Lucy wrote to the worker’s solicitors advising that the worker had not previously made a claim for compensation. Mr Lee’s solicitors responded by letter dated 2 September 2008 stating sufficient information for the making of a claim was contained within Mr Lee’s statement and Dr Ashwell’s report.

By way of a section 74 notice dated 12 January 2009, CGU disputed liability for the claim in respect of the right and left arms, right and left legs and cervical and lumbar spine. The claim was disputed on the basis that injury was not sustained, there was no notice of injury or notice of claim within the prescribed time and based on Dr Blue’s assessment (a medico-legal report prepared for CGU), any incapacity for work was not as a result of any work injury, but was caused by a pre-existing arthritic degeneration.

On 31 March 2009 Mr Lee filed an Application to Resolve a Dispute (‘the Application’) in the Workers Compensation Commission (‘the Commission’). Mr Lee sought compensation in respect of weekly benefits at $250.00 per week from mid 2005 to date and continuing, lump sum compensation under section 66 in respect of 17% whole person impairment, $15,000.00 under section 67 for pain and suffering and medical expenses totalling $3,770.85.

In respect of particularising injury, the Application was very poorly pleaded. In addition to Mr Lee particularising injury as a myocardial infarction on 22 December 2004 and a frank injury to his left shoulder when he fell from the ride on mower after suffering a heart attack, Mr Lee also claimed injury to his back, left shoulder, right shoulder, knees and neck as a result of the “heavy nature and conditions of his employment” from December 2000 to June 2005. This claim as to the “nature and conditions of employment” was not properly particularised. It failed to identify whether he was claiming injury under section 4(1)(a), or 4(1)(b)(i) or (ii) of the Workers Compensation Act 1987 (‘the 1987 Act’).

The judges of the former Compensation Court of NSW and the Presidential members of the Commission have criticised the use of the term “nature and conditions” without the provision of proper particulars (Mirkovic v Davids Holdings Pty Ltd (1995) 11 NSWCCR 656; Toplis v Coles Group Ltd t/as Coles Logistics [2009] NSWWCCPD 70 at [65]). I concur with Deputy President Roche’s recent observations in Willoughby City Council v Kevric [2009] NSWWCCPD 140 at [7]:

“It is a meaningless expression that should not be used. A claim that alleges an injury as a result of repetitive use over time, or as a result of an aggravation of a disease, should clearly state that fact and properly identify the alleged cause of the claimed injury.”

On 23 June 2009 the matter was listed for conciliation/arbitration. Mr Bourke, solicitor, appeared for Mr Lee and Mr Martin of counsel appeared for the employer. No oral evidence was taken but both parties made oral submissions. At arbitration, the worker abandoned the claim that the heart attack on 22 December 2004 was a work injury but proceeded with the frank injury to the left shoulder on the same day and the “nature and conditions” claim. Mr Bourke ultimately clarified that the “nature and conditions” claim was in fact one under section 4(1)(b)(i) when he submitted:

“So, in concluding, Mr Arbitrator, I would urge you to find that the heavy nature and conditions of Mr Lee’s employment between 2000 and May 2005 have sounded in the exacerbation - aggravation, acceleration, exacerbation or deterioration of a degenerative disease of the lumbar and cervical spines and the degenerative condition of the right and left shoulders” (T11.19-25).

The Arbitrator reserved his decision and issued a Certificate of Determination and written Statement of Reasons (‘Reasons’) on 20 July 2009 in which he found in Mr Lee’s favour.

On 20 August 2009, Redman Holdings filed an ‘Application to Appeal Against the Decision of Arbitrator’ in the Commission against a decision dated 20 July 2009.

THE DECISION UNDER REVIEW

The ‘Certificate of Determination’, dated 20 July 2009 records the Arbitrator’s orders as follows:

“The Commission determines:
1.That the matter be remitted to the Registrar for referral to an Approved Medical Specialist for assessment of Whole Person Impairment as follows:

Injury
Cervical spine
Lumbar spine
Right and left upper extremities
Right and left lower extremities
All arising from the nature and conditions of the Applicant's employment with the Respondent from 18 December 2000 to 17 July 2005 but not arising from frank injury to right upper extremity on 22 December 2004.
Date of injury (deemed)
17 July 2005
Documents
(1)     Application to Resolve a dispute and attached documents
(2)     Reply and attached documents
(3)     Application to Admit Late Documents dated 15 June 2009 and attached documents
(4)     Application to Admit Late Documents dated 25 May 2009 and attached documents.

2.That the Respondent pay the Applicant the sum of $150 per week pursuant to s40 of the Workers Compensation Act 1987.

3.That the Respondent pay the Applicant's s60 expenses upon production of accounts and/or receipts.
4.Award for the Respondent in respect of the Applicant's claim for frank injury to left upper extremity on 22 December 2004.
5.That the Respondent pay the applicant's costs as agreed or assessed with an uplift of 10% for Applicant and Respondent.

REASONS
1.An uplift for complexity is warranted due to necessity to consider intervening factor of Applicant's cardiac condition and resultant fall.”

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.”

Having regard to Practice Directions Numbers 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.

LEAVE TO APPEAL

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

Monetary Threshold

There is no issue that the quantum of the compensation at issue on appeal meets the thresholds in section 352(2) of the 1998 Act.

Time

The appeal was lodged on 20 August 2009, three days outside the period of 28 days within which an appeal can be lodged, pursuant to section 352(4) of the 1998 Act.

The Appellant requires an extension of time pursuant to Part 16, Rule 16.2(11) of the Workers Compensation Commission Rules 2006 (‘the Rules’), if leave to appeal is to be granted. That rule provides:

“The Commission constituted by a Presidential member may, if a party satisfies the Presidential member, in exceptional circumstances, that to lose the right to seek leave to appeal would work demonstrable and substantial injustice, by order extend the time for making an appeal.”

Justice McHugh considered the question of extending time to appeal in Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479 (‘Gallo’) where his Honour said at 480:

“The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194-5; 70 ALR 185. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871 at 872; Hughes at 263-4, Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has ‘a vested right to retain the judgment’ unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201.”

The Appellant submits:

(a) the delay in filing the appeal arose because of an administrative oversight in that the file was not referred from the Appellant’s solicitor’s Tamworth office to its Sydney office and to the appropriate person with authority to approve the appeal;
(b) formal instructions to file the appeal were received on 20 August 2009 and the appeal was filed on receipt of those instructions;

(c) weighing the factors considered by McHugh J in Gallo, to allow the appeal would ensure justice is served between the parties;

(d) there is no significant prejudice to the worker if the appeal is allowed to proceed. He will remain in receipt of weekly compensation payments and only the determination of any entitlement to lump sum compensation would be delayed, and
(e) the Appellant will be prejudiced if leave to appeal is not allowed because the substantial merits of the case would not be reviewed, in circumstance where the Appellant considers that it has strong arguable grounds for such review.

Mr Lee opposed the application seeking leave to extend the time to appeal but conceded, “that this issue is a discretionary matter for the Commission to determine”.

26.The Appellant has explained the circumstances in which the delay has occurred through the administrative error in the transference of the file between their city office and Tamworth office. I accept this explanation. The Appellant has a strongly arguable case on appeal and given that the appeal was only filed three days out of time, and Mr Lee has not alleged he would be prejudiced if time to appeal was extended, I am satisfied that these are ‘exceptional circumstances’ and that to refuse to extend the time to appeal will result in a “demonstrable and substantial injustice” to the Appellant.

Time to appeal is extended to 20 August 2009 and leave to appeal is granted.

FRESH EVIDENCE

Neither party seeks to rely on fresh and or additional evidence on appeal.

EVIDENCE

Mr Lee

There are four statements from Mr Lee in evidence dated 2 July 2008, 25 September 2008, 25 March 2009 and 5 June 2009.

Mr Lee also relied on a “chronology” prepared by his solicitor with his assistance and with reference to his diary. This document lists work activities he performed on a number of days for a period from January 2001 through to 17 August 2001. On most nominated days he cleaned the amenities. In addition, he would undertake other activities, though not on a daily basis including picking up and dumping rubbish, mowing, gardening duties, cleaning the pool, repairing caravans on site and dealing with travellers and residents.

Mr Lee’s solicitors prepared the signed statement dated 2 July 2008. It was not annexed to the Application but attached to ‘Verifact Investigations’ report dated 6 October 2008 annexed to the Reply. In this statement Mr Lee outlined his work history including work as a truck driver, work in the construction industry including labouring, mechanic work, pipe laying, plant operating, driving bulldozers and scrapers and excavators, servicing heavy earthmoving equipment, and maintenance and fitter work.

He developed back pain over many years of physically demanding employment. When he was working as an excavator driver his back became very painful. He attended his general practitioner, Dr Havill and had x-rays on 5 April 2000. He was informed that he had “osteoporosis and the bones in my back were in a very bad condition”. Due to his back condition he sought alternative less strenuous work. He therefore commenced with the caravan park but found the work substantially harder than his previous employment and this caused him to suffer “continued and severe pain in my lower back”.

Although he had suffered left shoulder pain for some time before commencing with the Appellant, after he began managing the caravan park his shoulder “began to really hurt”. His left shoulder was further exacerbated when he fell off the mower (on 22 December 2004) and landed on his left shoulder. His shoulder was still very painful after he ceased work and he underwent shoulder replacement surgery (hemiarthroplasty) in March 2007. He also had pre-existing arthritis in his right shoulder, neck and knees, which was worsened “by the sheer amount of maintenance, gardening, cleaning and repair work I was required to do”. Mr Lee stated that he became physically and mentally exhausted and suffered injury to his left shoulder and lower back and an exacerbation of arthritic conditions in his right shoulder, knees and neck.

Mr Lee stated that the stressful conditions of his employment caused him to have a heart attack on 22 December 2004. He stated that he was required to work a 12 hour day, seven days per week for the four and a half years he worked at the caravan park. He was hospitalised for a week and returned to work, performing office duties for one month. He stated that he was unable to keep up with his workload after the heart attack because he felt weak and fatigued easily. His left shoulder was also painful. He and his wife resigned on 21 June 2005, effective from 17 July 2005. Even with the restrictions imposed by his cardiac surgeon, Mr Lee considered that he would still be able to work, if not for his back pain and referred leg pain, left shoulder pain and arthritis in both knees.

In the statement dated 25 September 2008, prepared at CGU’s request, Mr Lee denied any prior injuries but said that he was suffering from pain from the physical work he had performed over many years and his condition was aggravated and deteriorated as a result of the heavy work at the caravan park. Pushing lawn mowers and loading heavy bags of rubbish which he did three days a week, was heavy work. He referred to his injuries as low back pain, and pain in both shoulders and both knees.

Mr Lee stated that he did not lodge the workers compensation claim until after his solicitors Jim Fuggel and Ralph James, who gave Mr Lee certain advice consulted another solicitor, Brendan Burke, advised him. He also stated that he did not report any injury because the injury was an accumulation of heavy work over many years. He stated that at an unspecified time he inquired about compensation for his injuries with Mr Bob Lucy, the secretary of the company, who told him that he could not make a claim. Mr Lee thought that he had made a previous workers compensation claim for a torn right leg muscle in 1985 whilst working for General Constructions.

In response to a question as to when he first consulted a doctor about his injuries, Mr Lee stated that he consulted Dr Havill (general practitioner) for pain management around 2001 and received hospital treatment after his heart attack in 2004.

The following parts of Mr Lee’s statement dated 25 September 2008 at pages 3 and 4 are transcribed below:

“ · Just to put this in perspective then. You are alleging your present condition is solely from your employment at Hibiscus Caravan Park. Is that correct?

Answer: Well, that is just when it came to a head.

· An allegation has been raised that you were convicted of stealing or defrauding a large sum of money from your employer whilst caretaker at Hibiscus Gardens Caravan park. Do you wish to say anything?

Answer: No response.
· An allegation has been raised that you may be lodging this claim to pay compensation for the money you allegedly owe to your previous employer. Do you wish to comments on this allegation?
Answer: No response.
· Can you tell me why you resigned from the caravan park in 2005?

Answer: Because of the ongoing pain and the heart attack I had restricts a lot of the physical work that I was doing.”

In the statement dated 25 March 2009, Mr Lee said that after leaving school at 16 years of age he worked for Chaffey Ford at Glen Innes, during which time he completed a mechanics apprenticeship. He then worked for five to six years as a truck driver with TNT Transport. The next five to six years he worked as a fitter/mechanic with General Constructions followed by an unspecified period as a mechanic in Sydney before returning to work at General Constructions, for an unspecified period when he performed a variety of duties including labouring, laying pipes, mechanical and fitter and turner work, plant operator and driving bulldozers and scrapers. He worked as an excavator driver in Byron Bay for two to three months prior to commencing with Redman Holdings.

He confirmed that he took the job at Redman Holdings on 18 December 2000 because having worked in “heavy manual labour” most of his working life he was seeking work which was “less stressful and physically hard on my body”. He however re-stated that the work during the four and half years at Redman Holdings was much more physically stressful than he had anticipated:

“My workload at the caravan park was substantially harder than my pervious employment, and this caused me continued and severe pain in my lower back.”

He re-stated that he worked 12 hour days, seven days a week, and was also on call to check in guests arriving after 7 pm. His normal day-to-day duties involved opening the utilities, cleaning the pool and cleaning the amenities block. He was also required to pick up rubbish, empty rubbish bins, dispose of rubbish at the garbage tip, tend to gardens including weeding, trimming, lawn mowing using a ride on mower and a push mower, and assist his wife, if required, to clean cabins and attending to office duties. He also performed maintenance work on park equipment and attended at, and attempted to resolve, disputes between residents at the park. In addition, on weekends he was required to tend the gardens and mow the lawns and, on occasions, clean the exterior of the house owned by Mr Ronald Redman, the managing director of Redman Holdings.

Mr Lee also stated that the arthritis in his knees, right shoulder and neck, which was present before he commenced work with Redman Holdings, was worsened by “the sheer amount of maintenance, gardening, cleaning and repair work” he was required to perform.

On 22 December 2004, Mr Lee suffered a heart attack whilst driving the ride-on mower, towing a trailer used to pick up rubbish bags. He said that he lost consciousness and fell on the left side of the mower. He knew this because he woke up on the ground on the left side of the mower. He was taken to hospital by ambulance and was admitted for five days. He recalled seeing bruising on his left shoulder. Mr Lee reported the heart attack to Mr Redman the day it occurred. He did not report the left shoulder injury because the bruise was nothing compared to the heart attack.

Mr Lee returned to work on 28 December 2004 after discharge from hospital. He did office work for four weeks and was advised not to drive for six weeks. He stated that he was not able to keep up with the work demands. His left shoulder was very painful and he was weak and fatigued easily as a result of the heart attack. He and his wife resigned on 21 June 2005.

In respect of his shoulders, he confirmed that when he was about 22 years old he dislocated his right shoulder playing football and his left shoulder water skiing. On both occasions the shoulder was “popped back into place” and after several weeks caused him no further problems.

As a result of the hard work at the caravan park, the pain in his shoulders gradually worsened “to the point that I could not live with it any longer”. After ceasing work in 2005, his left shoulder remained very painful and after consulting his doctor he underwent surgery.

Mr Lee denied having problems with his heart prior to suffering the heart attack. He believed that despite the restrictions imposed by his cardiac surgeon, he would be able to work but for his sore low back and referred leg pain, his left shoulder problems, and the arthritis in both his knees, which he attributed to 40 years of hard and heavy work in a variety of occupations.

Since ceasing work with Redman Holdings, Mr Lee stated that he has been unable to find work and is in receipt of a disability pension. He has looked for suitable work in the local newspapers but has not been able to find a suitable position. He trialled a small amount of work as an excavator driver, ten weeks after his shoulder surgery, but could not continue the work because he failed the required medical examination due to his heart condition.

Mr Lee prepared a further signed statement dated 5 June 2009 after having reviewed Redman Holdings’ Reply and the clinical notes from Dr Havill and the Ballina Ambulance report.

Mr Lee explained that the lack of entries in his general practitioner, Dr Havill’s notes in respect of attendances for his left shoulder, including the doctor’s failure to record in a report dated 30 October 2008 that he had fallen from the mower when he had the heart attack, was because the doctor’s treatment was focused on his heart condition. Mr Lee could not recall an early fall from a truck and an injury to his left shoulder in 1982, as recorded in the doctor’s notes.

Mr Lee confirmed that his shoulder pain gradually worsened from 2004 and, whilst he put it down to wear and tear from work, he was not aware that he could claim compensation until he consulted his solicitor. He conceded that his left shoulder problems were a result of an early water-skiing injury when he dislocated his shoulder, and more that 40 years of heavy work culminating in the four and a half years of “hard, heavy work at the caravan park…”

Mr Lucy

Verifact Investigations prepared a factual investigation report at CGU’s request dated 6 October 2008. The report contained a number of signed statements from Mr Lee, referred to above at [30]. It also contained two statements from Mr Lucy, the Appellant’s company secretary and accountant for ten years. The statements were Mr Lucy’s police statement dated 27 July 2005 and his signed statement prepared by the investigators dated 25 September 2008.

Mr Lucy said that the first notice of Mr Lee’s workers compensation claim was a letter he received on 23 November 2007 from Mr Lee’s solicitors in respect of an alleged injury on 22 December 2004 (this letter is not in evidence). At no stage during his employment did Mr Lee report an injury or lodge a claim for injury. Mr Lucy was, however, aware that Mr Lee had suffered a heart attack at work on 22 December 2004.

Mr Lucy disputed Mr Lee’s description of his work as being heavy physical work. He confirmed his duties included lawn mowing, cleaning toilets and general maintenance work. Neither Mr Lee nor Mrs Lee complained that the work was physically demanding over their five years of employment. Mr and Mrs Lee were paid $800.00 per week. One of them was required to be on duty each day to take bookings and payments. Lawns were mowed once a week. The only daily physical work was cleaning the toilets.

Mr Lucy’s police statement records that in July 2004, after changes in bank fees on deposits over $3,000.00, a decision was made to bank cash in amounts of $3,000.00 or less. In September 2004 he noticed that monies were not being banked. Upon making enquiries with Mr Lee he was informed that the monies were in the safe and would be banked. In December 2004 further money was missing from the banking. Mr Lee again assured Mr Lucy the monies were in the safe and would be banked. In March 2005 Mr Lucy again requested the money be banked. On 17 June 2005, Mr Lucy handed a letter to Mr Lee requesting all outstanding monies be brought to his office. After a number of follow up phone calls Mr Lee attended at Mr Lucy’s office on 22 June 2005 and tendered a one page letter of resignation and stated that the outstanding monies totalling $49,000.00 had been mistakenly thrown out in the rubbish. The Lees ceased work on 22 July 2005 (sic-17 July 2005). In the period between 22 June 2005 and 22 July 2005, Mr Lucy made numerous attempts to enter into an agreement with Mr Lee to pay back the money interest free. The offer was not accepted and no monies were returned.

Mr Lee was charged by the police and later convicted of larceny. There were also civil proceedings and Mr Lee was ordered to pay back the sum of $71,780.69 including interest. At the date of preparing the statement Mr Lucy confirmed that no monies had been received from Mr Lee.

Mr Lucy confirmed that Mr and Mrs Lee resigned from their positions as caretakers on 17 July 2005. Whilst he could not locate the letter of resignation he confirmed, from memory, there was no mention of any injury sustained at work. He believed the Lees’ resignation was a result of defrauding money from the employer.

Medical evidence

Mr Lee relied on the medico-legal report from Dr Ashwell, orthopaedic surgeon, dated 11 August 2008 (x2) and a supplementary report dated 23 September 2008 and radiological reports dated 24 October 2005, 13 March 2007 and 7 August 2008.

Redman Holdings relied on a medico-legal report from Dr Blue, orthopaedic surgeon, dated 30 October 2008, the NSW Ambulance Services report dated 22 December 2004 and the medical records produced by Dr Havill, general practitioner.

Dr Havill’s records include the doctor’s clinical notes, which, for various dates were hand written, and for other dates (from 4 April 2000 to 6 April 2009), were printed from computer records, investigation reports and results and correspondence between Dr Havill and the Commonwealth Rehabilitation Services (‘CRS’) and treating specialists to whom he had referred Mr Lee.

Two clinical record cards for consultations from 9 August 1982 to 23 August 1982 record a history of a fall in a truck onto his left shoulder causing a tendon injury. By 23 August 1982 the doctor recorded that the shoulder had settled. A consultation in November 1989 referred to left supraspinatus tendonitis.

The next entry is dated 4 April 2000. Most of the entry is indecipherable, however it refers to an attendance for low back pain. On examination the doctor recorded “tender L4-5” and a decreased range of motion, particularly forward flexion.

An x-ray report of the lumbar spine from Dr Herbert, North Coast Radiology, dated 5 April 2000 showed moderate generalised lumbar intravertebral disc degeneration with narrowing of the discs and marginal osteophytes. It also reported advanced degenerative changes in the lumbo-sacral disc and a minor spondylolytic spondylolisthesis of L5 forward on S1.

There are further attendances in June, August, October and November 2000. On 21 June 2000 there is a reference to lifting 30kg and increased pain since and a reference to CRS. Other attendances appear to relate to management of his blood pressure and general examinations. The doctor notes on 1 December 2000 that Mr Lee was going to manage a caravan park. Further attendances in January, March, April and May 2001 relate to blood pressure, weight loss and heartburn.

The CRS ‘Service Completion Report’ prepared by Ms Cross, rehabilitation consultant, dated 23 March 2001, confirmed that Mr Lee was referred to CRS on 14 July 2000. He underwent a functional capacity assessment, a fitness test, was assisted to update his job seeking tools, a work place visit was undertaken and his employment was monitored for 13 weeks to ensure no problems. Mr Lee had maintained employment at the caravan park for three months and reported that he enjoyed the work and whilst he was busy, he had no physical problems. His high blood pressure had been identified during his fitness assessment and he had sought medical treatment and was now on medication to control it. On discharge, he was provided with a walking program and stretching exercises to help to control his blood pressure and ensure lower back integrity. He was encouraged to contact CRS in the future should he have the need.

A report addressed to Dr Havill from Ms Cross, dated 23 March 2001 stated that she had recently taken over as Mr Lee’s CRS case manager, after his previous case manager had taken up another position. She noted that Mr Lee had obtained employment at the caravan park and that his duties “included front desk work and mowing lawns on a ride on mower” and that Ms Bohr, Mr Lee’s former case manager and occupational therapist, had viewed the work site and reported no problems. Ms Cross confirmed that she had continued to monitor Mr Lee’s progress in his position of manager at the caravan park over 13 weeks and recorded:

“Mr Lee has reported that he has experienced no problems, other that the ‘occasional twinge’ in his back. I have encouraged Mr Lee to seek medical advice if this becomes more frequent or causes him further problems. I have also encouraged Mr Lee to continue his walking program to help his blood pressure and maintain his lower back integrity.

As Mr Lee has shown that he can physically and mentally cope with the demands of this position, CRS is now closing his rehabilitation program.”

The next recorded attendance at Dr Havill was 10 January 2002 which appears to relate to weight loss and gain. On 31 January 2003 reference was to increased blood pressure. The entry on 17 February 2004 recorded “c/- pain–100 metres walking L leg”. The remaining notation of that date is indecipherable as is the next entry of 16 March 2004.

Dr Havill referred Mr Lee to Dr Deepak on 16 March 2004 for an opinion on claudication occurring after walking 100m. In the letter he briefly recorded a past history as lumboscaral degeneration (5 April 2000), GORD (gastro-intestinal reflux disease) (17 October 2000) and hypertension (26 October 2001).

A report from Dr Meyer dated 5 March 2004 reported on the results of a left leg dopler study for claudication finding evidence of focal stenosis and occlusion and reduced flow in some of the arteries.

The Ambulance Service of NSW Patient Health Care Record dated 22 December 2004, recorded the patient (Mr Lee) experiencing sudden onset heavy crushing type pain in left side of chest and left arm while doing the garbage collection, Mr Lee went and lay down on the office floor. Mr Lee denied any prior cardiac problems. The ambulance officers treated him with Anginine and aspirin and transported him to Ballina Hospital.

In referral letters to Dr Tsicalas, cardiologist, dated 5 and 13 January 2005, seeking further investigation of Mr Lee’s cardio-vascular condition, Dr Havill noted the past history as detailed above at [67] and also included in that history, hypercholestrolaemia (30 December 2004) and a non stemi-anterolateral T inversion (30 December 2004).

Dr Tsicalas in a report dated 7 February 2005 noted that Mr Lee had been asymptomatic following his myocardial infarction some weeks ago. He had been admitted to hospital following chest pains, which lasted a few minutes. He had no recurrent pain in hospital. The doctor noted the result of cardiac investigations and ordered further investigations.

Dr Miller, general practitioner, provided Mr Lee with a medical certificate stating that he was unfit for normal work from 14 July 2005 to 31 July 2005. This was not a WorkCover certificate and the condition rendering Mr Lee unfit was not recorded on the certificate.

The first entry in Dr Havill’s notes making any reference to Mr Lee’s work is on 3 March 2005 where it is recorded:

“EASILY FATIGUED SOBOE [short of breath on exertion] ADMITS STRESS WORK PRESSURE
SPIROMETR –N
? STRESS-WORK
TRIAL CESSATION”

At the next consultation on 5 April 2005 the doctor records that stress has settled and Mr Lee feels better and he “completed cardiac rehab”.

On 14 July 2005 the entry records “Anxiety about father’s illness and work problems”.

The next entry is dated 8 August 2005. It refers to low back pain with manual work/sitting and radiating into left leg, limps with pain and rarely no pain. There is also reference to left and right shoulder pain and reduced shoulder movement. The doctor records:

“TENDOR L L4&5 SLR L 30 PAIN IN BACK
L SHOULDER PAIN SST & INFRASINATOUS
ABDUCT–80”

On 17 August 2005 the doctor recorded “unable to access physio for months”. He also prescribed Mobic. The entry on 12 October 2005 referred to gradual increase in pain in left shoulder and reduced range of movement. X-rays and an ultrasound of the left shoulder were requested.

Dr Meyer’s left shoulder x-ray and ultrasound report dated 24 October 2005 noted that there was severe degenerative osteoarthritis of the glenohumeral joint and a small intrasubstance tear of the supraspinatus tendon.

On 14 November 2005, Dr Havill referred Mr Lee to Dr Mison (orthopaedic surgeon) for opinion and treatment of a painful left shoulder, which the doctor considered to be especially due to osteoarthritis of the glenohumeral joint.

The notation on 2 December 2005 is “better pain relief with Mobic”.

Dr Tsicalas in a report dated 7 December 2005 noted that Mr Lee was asymptomatic since the myocardial infarction. He reported to the doctor that he was exercising freely and denied any effort related retrosternal symptoms.

An x-ray of the left shoulder dated 24 December 2005 showed severe degenerative changes in the glenohumeral joint and an ultrasound showed an intrasubstance tear of the supraspinatus tendon.

Dr Mison reported to Dr Havill on 22 February 2006 and recommended hemiarthropasty surgery for Mr Lee. He noted that Mr Lee was on a disability pension for “a variety of skeletal pains” and that he used to be a mechanic. Dr Mison recorded:

“he saw me today with regard to his left shoulder which has had increasing pain over the years. He can recall a couple of dislocations when playing football many years ago. His shoulder has had other minor trauma over the years. He used to water ski a lot and competed in speed racing on the bridge to bridge classic in Sydney and he has had [a-sic] couple of spills which may have caused further injury over the years.”

On 8 March 2006 Dr Havill recorded “well - maintaining good exercise”. The next attendance related to treatment for his back and shoulder was on 22 August 2006 when Dr Havill recorded “requires Mobic regular pain LBP and shoulder–tried glucosamine no effect”.

In a report dated 6 February 2007, Dr Mison noted that Mr Lee had undergone left shoulder replacement surgery on that day. Dr Mison reported on 20 March 2007 that Mr Lee was progressing with physiotherapy following the surgery.

An x-ray of the left shoulder dated 13 March 2007 showed the humeral hemiarthroplasty.

In an undated report from Dr Mison to Dr Havill, the doctor noted that he examined the worker on the day he prepared the report, which was ten weeks since the left shoulder hemiarthroplasy. He noted that he had reasonable functional pain free range of movement. He also noted that Mr Lee had performed some work as an excavator driver “and this had been fine”. Further, he considered that Mr Lee should be able to return to this sort of work in the long term. He recommended a further review in 12 months time.

Dr Havill prepared a report addressed to Mr James, solicitor at James Fuggle Rummery dated 2 November 2007. He listed Mr Lee’s medications, which he confirmed were to decrease the risk of diabetic complications and further infarction. He opined that incarceration could lead to a destabilisation of his conditions and stress could cause an acute coronary syndrome and destabilise his diabetes. If the incarceration forced him into inactivity it could worsen his diabetes. The doctor recorded:

“Donald Lee has a previous history of Hypertension and Hypercholesterolemia which has caused a Non Stemi-Anterolateral Infarction. He also has non-insulin dependent Diabetes and has recently had left Shoulder replacement.”

A letter from CRS dated 11 December 2007 sought clarification from Dr Havill as to the permanency of Mr Lee’s diabetes and left shoulder condition and surgery. The request was made in the context of a job capacity assessment and application for a disability support pension.

There are subsequent entries in Dr Havill’s clinical notes for attendances before and after the left shoulder surgery and the only other attendance of relevance is on 2 June 2008 where the doctor recorded an incidence of right knee pain from climbing up a truck and carrying gravel.

CGU wrote to Dr Havill on 11 September 2008 requesting a comprehensive report in relation to Mr Lee’s shoulder condition, heart attack in 2004 and capacity for work.

Dr Havill wrote to CGU on 30 October 2008. He apologised for the delay in responding and stated that Mr Lee had attended on 8 October [2008] “regarding this issue”. He reported that Mr Lee stated that he suffered injuries in the form of a heart attack, bilateral shoulder injuries and aggravation of cervical and lumbar spondylosis during his employment at the caravan park.

Mr Lee blamed stresses associated with confronting drunken residents, drug taking and dealing in the caravan park, arranging evictions of residents who were not paying their rent and being on call all the time for causing “the events leading to his heart attack”. Dr Havill believed that these stressors would be a factor in acute coronary syndrome and these plus his pre-existing risk factors of high blood pressure, smoking in the past and his gender could have caused the event in 2004.

Dr Havill recorded that Mr Lee reported problems with both shoulders. He noted that Mr Lee had been working previously in physical occupations as a road plant operator and mechanic and had injuries to his shoulder and dislocations from skiing accidents. Mr Lee reported that until 2002/2003 he had only mild pain relieved by Panamax. After 2003/2004 he started to get severe pain, which limited his range of movement. He related the deterioration of his shoulders to the work at the caravan park, which he stated was heavier than previous work including garbage collection a couple of times a week, which involved throwing garbage tins onto a trailer, tree lopping, lawn mowing and caravan repair work which often involved climbing on caravan roofs. The doctor accepted his history that after working at the caravan park his arthritis became symptomatic and stated:
“it is quite possible that the heavy load that he was putting on his shoulders from the extra work in the park caused more aggressive degeneration of the shoulder joints requiring surgery.”

The doctor conceded that x-rays of the lumbar spine taken in April 2000 showed moderate generalised disc degeneration, which was symptomatic, but he accepted Mr Lee’s history that they became more symptomatic working at the caravan park and therefore the degeneration increased. Dr Havill accepted that the water skiing accidents may have traumatised Mr Lee’s neck but the work he was doing at the caravan park could have accelerated the rate of the degeneration in his cervical spine.

The doctor concluded that due to the combination of his degenerative arthritic condition and his cardiovascular condition Mr Lee was on sickness benefits. He did not think a return to work was possible, particular given Mr Lee was 62 years old. He also predicted that he would require surgery on his right shoulder in the future.

Included in the doctor’s records is a printed “Patient Health Summary”, which was printed on 20 May 2009. It records prescriptions written for Mr Lee from 3 October 2000 to 6 April 2009. Prescriptions from 2000 to 12 October 2005 were all for medication for treatment of his cardio-vascular condition including his blood pressure management and his gastric condition. They were Zantac, Monopril Monoplus, Somac, Folate, Plavix, Atacand, and the Fluvax Syringe (influenza vaccination). The first prescription for treatment of osteoarthritis was the prescription for Mobic on 17 October 2005. Panandeine Forte was prescribed on 27 August 2008 and 28 July 2008. The other medications prescribed in this later period were for treatment of cholesterol, diabetes and other cardiac medications.

Dr Ashwell, who examined the worker at his solicitor’s request referred Mr Lee for x-rays of his cervical spine, right shoulders and both knees. All the x-rays were dated 7 August 2008. The x-rays showed mild to moderate degenerative narrowing at the C4/5 disc, moderately severe osteoarthritis of the right glenohumeral joint and mild osteoarthritis of the acromioclavicular joint and mild arthritis of both knees.

Dr Ashwell prepared a report dated 11 August 2008. He obtained a consistent work history prior to commencing with the Appellant. He also obtained a history that Mr Lee developed pain in both shoulders over the last five or six years, with overhead activity and heavy work activity. In addition, falling off the mower when he suffered a myocardial infarct on 22 December 2004, caused an increase in the left shoulder pain. Mr Lee presented to the general practitioner in 2005 complaining of left shoulder pain. He was referred to an orthopaedic surgeon, Dr Mison, who performed a hemiarthroplasty for osteoarthritis in February 2007.

Dr Ashwell referred to the radiological investigations and concluded that Mr Lee had developed degenerative disc disease in the lumbar spine, moderate osteoarthritis in both shoulders and mild osteoarthritis in both knees as a result of heavy work activities up to 17 July 2005 and his employment was a substantial contributing factor. Dr Ashwell found no pre-existing injury or condition. He certified Mr Lee unfit for his pre-injury duties as a motor mechanic, fitter or plant operator or maintenance person.

In a separate report the doctor assessed 0% WPI for the cervical spine, 5% WPI for the lumbar spine, 6% WPI for the right upper extremity, 7% WPI for the left upper extremity resulting in a combined total WPI of 17%. He allowed for a one-tenth deduction under section 323 for a pre-existing injury, condition or abnormality.

At the request of Mr Lee’s solicitors Dr Ashwell provided his working sheets of his shoulder assessments under cover of a letter dated 23 September 2008.

Dr Blue examined Mr Lee at CGUs’ request and prepared a report dated 30 October 2008. The doctor recorded a history that Mr Lee insidiously developed increasing low back pain resulting in him ceasing physically demanding work of labouring and becoming a caravan park manager. Mr Lee reported that the caravan park work was as heavy as his previous work, particularly collecting heavy garbage. Dr Blue obtained a history of the heart attack and the fall onto his left shoulder when he collapsed on 22 December 2004, although he incorrectly speculated that it was not a heart attack but merely a syncopal collapse. Mr Lee stated that he consulted Dr Havill regarding increasing left shoulder pain after the incident on 22 December 2004. He was referred to Dr Mison in 2006 and underwent the hemiarthroplasty in February 2007.

The doctor referred to the x-rays as detailed at [86]-[98] above. Dr Blue opined that from clinical examination and particularly from a review of the radiological investigations, the arthritic condition in his shoulders, knees, and cervical and lumbar spine pre-dated by many years the commencement of his work as a caravan park manager. He did not believe that the caravan park work caused any significant aggravation of the already well established shoulder arthritis, with the exception of the fall on 22 December 2004, which would have caused some aggravation of the left shoulder degenerative condition. Dr Blue assessed a 10% WPI in respect of the left shoulder of which he deducted nine-tenths for a pre-existing condition under section 323 of the 1998 Act.

Dr Blue concluded at page 6:

“His other multiple orthopaedic problems including cervical spine, lumbar spine, right shoulder and both knees are simple [sic] due to age and physical activity induced naturally occurring osteoarthritic degeneration with his employment as a caravan park manager from 2000 to 2005 playing no significant role whatsoever in these problems. The single exception to this genetic and long term physical activity causation of his joint problems confirmed I believe, in particular by the bilateral advanced arthritis in his shoulders is the spondylolisthesis at the L5/S1 of lytic nature. This congenital or neonatal abnormality was superimposed on his genetic and constitutional predisposition to osteoarthritic degeneration with its presence not being due to his long term physical work which however has caused aggravation of same with once again his work in the caravan park causing little if any aggravation of a permanent nature.”

ARBITRATOR’S DECISION

Notice of Injury and Notice of Claim

In respect of Redman Holdings’ argument that the worker did not give notice of injury under section 254 and failed to bring the claim within the time prescribed under section 261 of the 1998 Act, the Arbitrator found that Mr Lee was not precluded from claiming compensation because he accepted that the reason the worker failed to make the claim within the time prescribed by the legislation was ignorance of his ability to claim compensation for his injuries.

Injury

The Arbitrator referred to the medico-legal reports of Drs Blue and Ashwell and found that employment was not a substantial contributing factor to the injury, being the frank injury to the left shoulder sustained when the worker fell at the time of the heart attack on 22 December 2004 and he entered an award for the employer in respect of this injury (Reasons at [25]-[27]).

The Arbitrator preferred the opinion of Dr Ashwell and noted that the worker’s statement and chronology showed a history of heavy duties and found that the worker suffered injury (unspecified) as a result of the nature and conditions of employment and referred the worker for assessment by an Approved Medical Specialist.

At [32] of his Reasons the Arbitrator held:

“I prefer the opinion of Dr Ashwell which Dr Blue seems to agree with but is trying to avoid. The activities of the Applicant as set out in his statement and the chronology provided by his solicitor in the Application to Resolve a Dispute show a history of heavy duties and it seems Dr Ashwell’s opinion is consistent with an analysis of those duties so far as they affect the Applicant and in particular the degeneration of his pre-existing degenerative conditions.”

Incapacity

The Arbitrator found that the worker had a partial incapacity for work as a result of injuries to his neck, lumbar spine, both lower extremities and both upper extremities. He relied on the worker’s statement in respect of his capacity and duties that he was not fit to perform. He noted the worker considered that he could work two hours per day “but there is no available labour market for such employment, particularly given the heavy nature of his previous work and his qualifications.” (Reasons at [37]). He referred to the worker’s statement in which he said that could not stand on a concrete floor for a long time, could not bend, twist or lift heavy objects and had difficulty pushing and pulling, twisting and squatting. He could only stand for 20-30 minutes and had difficulty walking up and down stairs.

The Arbitrator accepted the parties’ agreement that the worker’s probable earnings were $600.00 per week. He found that the worker had a capacity to earn $200.00 per week based on 10 hours a week at $20.00 per hour in unskilled employment. He exercised his discretion to reduce the award because of his findings in respect of the left upper extremity and Mr Lee’s heart condition and made an award of $150.00 per week under section 40 from 17 July 2005 to date and continuing.

At [48]-[50], the Arbitrator summarised his findings as follows:

“48. In summary, I find that the Applicant’s employment was not a substantial contributing factor to the frank injury to his left upper extremity of 22 December 2004 or his heart attack suffered on the same day.
49. I find that the Applicant suffered injury to his cervical spine, lumbar spine, right upper extremity and left upper extremity, right lower extremity and left lower extremity arising from the nature and conditions of his employment with the Respondent from 18 December 2000 to 17 July 2005.
50. I find that the Applicant is partially incapacitated for work arising out of the nature and conditions of his employment.”

ISSUES IN DISPUTE

The issues in dispute in the appeal are whether:

(a)     on review, the Commission would be satisfied on the evidence that the Arbitrator came to the correct conclusion;
(b)     the Arbitrator erred in finding that the worker suffered injury, deemed to have occurred on 17 July 2005, arising from the nature and conditions of his employment, and
(c)     the Arbitrator failed to:

(i) take into account the credit issues;
(ii) give proper reasons, and
(iii) properly identify the evidence upon which he relied.

The Appellant also appeals an interlocutory decision of the Arbitrator at the teleconference to refuse leave to issue a direction on Ballina Local Court in relation to the charges laid against Mr Lee.

SUBMISSIONS
Appellant

The Appellant relies on submissions lodged with the appeal and further submissions made after receipt of the transcript of the arbitral proceedings and submits as follows:

(a) By failing to grant leave to issue the direction on Ballina Local Court the Arbitrator potentially restricted the tendering of evidence.
(b) Mr Lee was not a witness of truth. The Arbitrator failed to acknowledge the issue of credit, comment on the credibility of the witness or give sufficient reasons as to why he accepted the worker’s evidence and medical evidence.

(c) The Arbitrator minimised the seriousness of the worker’s fraud and misappropriation of his employer’s funds when he referred to it as “mismanagement of his employer’s affairs” at [9] of his Reasons.

(d) The Arbitrator did not adequately explain why he preferred the worker’s evidence over that of Mr Lucy in respect of the duties Mr Lee performed. Mr Lee’s description of heavy work did not accord with the evidence, particularly given that the worker was not a witness of truth.

(e) Although the worker abandoned the allegation of injury in the form of heart attack, his description of falling from the mower when he suffered chest pain did not accord with the treating notes, which indicated that he was in the office at the time he felt chest pain, not riding the lawn mower. This is a further example of the issue of the worker’s credit.

(f) The worker’s evidence that he resigned because he could not keep up with the physical nature of the work was a fabrication. The evidence established that he resigned when his employer became aware of the misappropriation of funds.

(g) The worker’s evidence as to the heavy nature of the work duties did not accord with that of the other witnesses, including Mr Lucy, and the worker’s evidence is unreliable and should not be accepted. This is supported by the lack of complaints by Mr Lee about the work.

(h) The Arbitrator failed to address the conflicting evidence of the CRS report that the worker had significant restrictions prior to commencing with the Appellant and the work as identified by CRS was light and took into account to worker’s pre-existing problems. If the work with the Appellant was heavy the worker would have made complaints to both CRS and his treating doctor during the relevant period. There is no evidence of complaints and this is consistent with Mr Lucy’s evidence that the worker never reported any physical injury or lodged any claim for injury (T3.28).

(i) On the evidence, the Commission could not be satisfied that the worker’s employment with the Appellant was a substantial contributing factor to an aggravation, acceleration or deterioration of his degenerative condition in the spine and both shoulders.

Mr Lee

Mr Lee made submissions in his Notice of Opposition and further supplementary submissions after receipt of the transcript. He submits as follows:

(a) At the arbitration hearing Mr Lee conceded that he had been convicted in the Ballina Local Court of larceny. There was no dispute that this conviction was in relation to the monies referred to by the Appellant in its Reply, as stolen by Mr Lee, from his employer. The Arbitrator understood the gravity of the crime and its potential effect on the worker’s credit. There was not a failure to acknowledge the issue of credit, but rather “a failure to describe the worker in terms suitable to the (Appellant) Employer”.
(b) The only evidence before the Commission of the nature of the work performed by the worker was from Mr Lee himself. The employer did not give evidence that Mr Lee did not carry out the duties as he described. Mr Lucy was the employer’s accountant and did not give any evidence as to observing the actual duties Mr Lee performed.

(c) Mr Lee was the only witness to give any evidence at all as to the heaviness and nature of his duties. In the absence of contrary evidence it was open to the Arbitrator to accept the evidence of the worker.

(d) The worker gave evidence as to the circumstances surrounding the fall off the lawn mower and the heart attack and was not cross-examined on it. The Appellant cannot submit on a matter that was available for cross-examination but upon which the Appellant did not cross-examine.

(e) The Appellant’s submissions are mere dissatisfaction with the Arbitrator’s decision. There are no grounds to review the Arbitrator’s decision and the award in favour of the worker should be confirmed.

(f) The CRS report relied upon by the Appellant has no probative value because it was dated three months after the worker started with the Appellant, was prepared four years and three months before the worker ceased employment and pre-dated the majority of the “nature and conditions” of employment which constituted the injury pleaded.

DISCUSSION AND FINDINGS

Commission arbitrators are under a statutory duty to give adequate reasons for their decisions (section 294(2) of the 1998 Act; Part 15 Rule 15.6 of the Rules; Absolon v NSW TAFE [1999] NSWCA 311). A failure to provide adequate reasons constitutes an error of law and may be a ground to set aside the Arbitrator’s decision.

To succeed in having the Arbitrator’s decision set aside on this ground, the Appellant must demonstrate not only that the reasons are inadequate, but that their inadequacy discloses that the Arbitrator failed to exercise his statutory duty to fairly and lawfully determine the application (YG & GG v Minister for Community Services [2002] NSWCA 247). Reasons must set out the Arbitrator’s reasoning process and merely incorporating counsel’s submissions is not appropriate (Sourlos v Luv a Coffee Lismore Pty Limited & anor [2007] NSWCA 203 at [30]).

In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 (‘Soulemezis’) McHugh JA (as he then was) stated at 280:

“If an obligation to give reasons for a decision exists its discharge does not require lengthy or elaborate reasons: Ex parte Powter; Re Powter (1945) 46 SR (NSW) 1 at 5: 63 WN 34 at 36. But it is necessary that the essential ground or grounds upon which the decision rests should be articulated. In many cases the reasons for preferring one conclusion to another also need to be given.”

As recently observed by DP Roche in The Department of Primary Industries v Butler [2009] NSWCCPD 150 at [55] and [56]:

“55. The resolution of disputes between medical experts requires a rational examination and analysis of the evidence and the issues (per Ipp JA in Sourlos v Luv A Coffee Lismore Pty Ltd & anor [2007] NSWCA 203 at [25] citing Wiki v Atlantis Relocations (NSW) Pty Ltd (2004) 60 NSWLR 127). In Hume v Walton [2005] NSWCA 148, McColl JA said at [69]:

‘The primary judge’s duty was not only to record the evidence but also to record the findings she made based on that evidence: Mifsud v Campbell (1991) 21 NSWLR 725 at 728. While the extent of that duty may depend upon the circumstances of the individual case, where there is disputed expert evidence, the “parties are entitled to have the judge enter into the issues canvassed before the Court and to an explanation by the judge as to why the judge prefers one case over the other”: Archibald v Byron Shire Council [2003] NSWCA 292; (2003) 129 LGERA 311 at [54] per Sheller JA (with whom Beazley JA agreed); see also Bright v Joodie Holdings No 2 Pty Ltd [2005] NSWCA 134 at [33] per Santow JA (with whom Sheller JA and Campbell AJA agreed).’

56. Her Honour’s comments in Hevi-Lift (PNG) Limited v Etherington [2005] NSWCA 42 at [100] are also relevant:

“The primary judge must state generally and briefly the grounds which have led him or her to conclusions concerning disputed factual questions and to list the findings on the principal contested issues. Although it is not necessary that the judge refer to all the evidence, “[w]here nothing exists but an assertion of satisfaction on undifferentiated evidence the judicial obligation has not been discharged”: Soulemezis, at 259, per Kirby P.’”

I am not satisfied that the Arbitrator has discharged his statutory obligation to provide adequate reasons or that his reasons meet the required standard of the above authorities. The Arbitrator did not analyse the evidence as a whole. He referred only to the reports of Drs Ashwell and Blue, who both examined the worker for medico-legal purposes in 2008, three years after Mr Lee ceased work with the Appellant. He did not explain the reason for preferring the evidence of Dr Ashwell. He made no reference to the treating general practitioner’s records that were available and covered attendances before, during and after Mr Lee’s employment with the Appellant.

Whilst it is correct that an Arbitrator does not have to refer to every piece of evidence tendered (Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42 at [100]), it is necessary that he or she consider all evidence relevant to the issues in dispute and rule on those issues. There was conflicting evidence in respect of injury and the reasons for Mr Lee’s resignation. The Arbitrator failed to deal with the issues presented in the evidence. He neither considered, nor weighed the medical and lay evidence. I accept the Appellant’s submission that the Arbitrator’s reasons fail to disclose that he gave consideration to the issue of the worker’s credit and if he accepted the worker as a witness of truth, the basis for his conclusion.

These errors require that the matter be re-determined. The parties relied on documentary evidence only. No oral evidence was called by either party at the arbitration hearing and therefore, I am in as good a position as an arbitrator to conduct a re-determination and that is the course I propose to adopt.

Re-determination

Mr Lee’s case depends almost entirely upon the Commission accepting his complaints about the nature of his work and when his symptoms developed. It is therefore necessary to consider his credit and his reliability as a witness of truth. It was conceded at the Arbitration hearing that Mr Lee was convicted in February 2008 of larceny as a clerk or servant in relation to the misappropriation of funds from the employer, Redman Holdings. Where the worker’s evidence is confirmed by other independent or objective evidence it may be acceptable, but where it is not independently supported it must be assessed with great care to determine whether it can be properly accepted as proof of any matter in issue (see Malco Engineering Pty Limited v Ferreira & Others (1994) 10 NSWCCR 117).

Approaching the matter in this way, I have real difficulty in accepting Mr Lee’s account, which, based on the contemporaneous facts, objective evidence, and the apparent logic of events is punctuated with inconsistencies and untruths. For the following reasons, I have great reluctance in accepting Mr Lee’s evidence in respect of the nature of the duties he preformed at the caravan park and his allegations of injury, in the absence of other independent or objective evidence.

First, in respect of Mr Lee’s resignation, in his statement dated 25 September 2008 Mr Lee said he resigned his employment with the Appellant:

“Because of the ongoing pain and the heart attack I had restricts [sic] a lot of the physical work that I was doing.”

In contrast, Mr Lucy, the Appellant’s accountant, stated that he became aware of a discrepancy in the financial records in September 2004 and from that time he made a number of requests of Mr Lee to rectify the banking shortfall. Those requests culminated in Mr Lucy making a formal written request on 17 June 2005, after which Mr Lee attended at Mr Lucy’s office on 22 June 2005 tendering a one page letter of resignation for himself and his wife and alleging that the outstanding monies had been mistakenly thrown out with the garbage. Although he could not locate the letter of resignation Mr Lucy was in no doubt that there was no mention of any injury sustained at work and the Lees’ resignation was a result of defrauding money from the employer.

Mr Lee’s assertion that by some mistake the stolen funds had been thrown away with rubbish was a fabrication. At the arbitration hearing there was no dispute that Mr Lee was charged and convicted of stealing nearly $50,000.00 from the Appellant and sentenced to 18 months periodic detention. The Appellant also obtained a judgment in its favour against Mr Lee in the sum of $71,780.69 inclusive of interest.

I do not accept that Mr Lee resigned because of ongoing pain and his heart condition. I prefer Mr Lucy’s evidence that Mr Lee resigned after he was confronted about the substantial shortfall in the banking deposits and his failure to produce the missing funds after repeatedly assuring Mr Lucy the money would be banked. Mr Lee’s employment was untenable once he confessed that he could not produce the missing funds. This was the only logical explanation for his resignation and that of his wife. Mr Lee was performing all his normal duties up to this time and the clear inference is that if he had not been given a final directive to produce the outstanding monies, he would have continued working after this date.

Second, I do not accept Mr Lee’s evidence that the duties at the caravan park were heavier than his previous jobs.

Prior to starting with the caravan park Mr Lee had experienced lumbar spine pain driving an excavator. The pain necessitated his attendance on Dr Havill. Radiological investigation demonstrated a moderate generalised degenerative condition and a L5/S1 spondylolisthesis. Because of those findings, CRS assessed the suitability of his duties at the caravan park. An occupational therapist undertook a functional and fitness capacity assessment and, after a site visit at the caravan park, determined the work at the caravan park suitable for a person with Mr Lee’s condition. It is inconceivable that Ms Buhr, the occupational therapist would have assessed the duties as suitable if they were heavier than Mr Lee’s former employment and as heavy as Mr Lee asserted. Further, Ms Cross the rehabilitation officer monitored Mr Lee in the caravan park job for the first three months during which time he reported no problems other than an occasional twinge. CRS closed its file after Mr Lee had showed that he was physically and mentally able to cope with the demands of this position. Mr Lee continued to perform those duties for four and a half years prior to his sudden resignation for the reasons noted above.

I reject the worker’s submission on appeal that Mr Lee was the only witness to give evidence as to the heaviness and the nature of his duties. The evidence from Ms Cross as to Mr Lee’s duties is consistent with Mr Lucy’s evidence, which I accept in preference to Mr Lee’s.

I also accept Mr Lucy’s evidence that neither Mr Lee nor his wife ever complained about the duties and that Mr Lee did not report any injuries or any difficulties performing his duties to his employer throughout the period of his employment, notwithstanding that Mr Lee and Mr Lucy met monthly to discuss matters pertaining to the caravan park, providing an ideal opportunity for Mr Lee to report any such injuries.

After securing the caravan park job, there is no evidence that Mr Lee sought any medical treatment from his general practitioner for any orthopaedic conditions until after he resigned. There is no evidence that Mr Lee sought any further assistance from CRS.

Mr Lee’s duties at the caravan park were varied and included administrative tasks, general and manual work. The manual tasks were essentially cleaning activities, gardening and maintenance work, and rubbish collection and removal. The heaviest aspect of the work described by Mr Lee was the collection of rubbish (bags or bins), which he placed in a trailer and later disposed of at the local tip. There is no evidence of the number of bags/bins or the range of weights he was required to lift. It is evident however from his chronology that this activity was performed every few days.

He was also required to mow lawns partly by using a ride on mower and partly by using a push mower. From the chronology the evidence indicated that the mowing activities were spread out throughout the week and were limited to particular sections of the caravan park. Mowing was limited to common areas the remaining areas were mown by permanent residents. These activities were interspersed with other sedentary or administrative duties.

With the exception of the weeks following the heart attack in December 2004, when he performed only light office work, Mr Lee performed his normal duties until he resigned when confronted over the missing funds. Mr Lee gave no evidence that the nature of his duties changed or increased over time. I am satisfied on the evidence that the duties the worker performed during the 13 weeks the job was monitored by CRS were essentially the same duties he performed throughout his employment. The CRS assessment that the work was suitable for a person with significant spinal pathology persuades me that the work Mr Lee performed, whilst manual in character, was not heavy work but work suitable to someone with Mr Lee’s degenerative condition. Mr Lee’s assertion that the work at the caravan park was heavier than his previous work in the construction industry is not persuasive and has not been corroborated, and I do not accept it.

Third, Dr Havill’s evidence in his report dated 30 October 2008 that after working in the caravan park for two or three years the rate of cervical and lumbar spine degeneration accelerated and Mr Lee’s shoulders became really symptomatic, with increasing pain and reduced movements, is dependent on a belated history from Mr Lee that his symptoms were all aggravated by heavy work at the caravan park. This conclusion is in sharp contrast to and inconsistent with contemporaneous clinical notes and correspondence with Dr Mison, Mr Lee’s treating orthopaedic surgeon. I do not accept that history as accurate or truthful and I do not therefore accept or Dr Havill’s conclusions, for the following reasons:

(a) Dr Havill’s clinical notes disclose no record of Mr Lee complaining of any back, neck, and shoulder or knee symptoms. Mr Lee attended regularly throughout the years he worked at the caravan park and sought treatment for a variety of medical conditions. I cannot discern from the doctor’s records, nor has the worker’s solicitor taken me to any records for any attendances for any treatment for his back, neck, shoulders or knees throughout the four and a half years he worked for the Appellant.
(b) After consulting Dr Havill in 2000 (before starting work with the Appellant) complaining of back pain, the next complaints to the doctor of back pain and the first complaint of shoulder problems were not until August 2005, after Mr Lee had resigned having been confronted about the missing funds.

(c) On 8 August 2005, the doctor’s records disclose that Mr Lee complained of low back pain with manual work and sitting, and left shoulder pain and reduced shoulder movement. According to the notes neither Mr Lee nor Dr Havill reported that those symptoms had been caused or aggravated by his work at the caravan park.

(d) When Dr Havill referred Mr Lee to the orthopaedic surgeon, Dr Mison, on 14 November 2005, for opinion and treatment of his painful left shoulder, he made no reference to any work related injury or aggravation. Dr Havill’s opinion at that time was that Mr Lee’s symptoms were “especially” due to osteoarthritis of the glenohumeral joint.

(e) Likewise, neither pre nor post operatively did Dr Mison relate Mr Lee’s shoulder condition and symptoms to his work duties with the Appellant.

(f) When Dr Mison reported to Dr Havill on 22 February 2006, recommending Mr Lee undergo a hemiarthroplasy, he noted that Mr Lee was on a disability pension for “a variety of skeletal pains”. He recorded a history of increasing pain in his left shoulder over years and specifically noted prior dislocation injuries playing football, and a “couple of spills” water skiing in competitive speed races, which he opined may have caused further injury. He recorded no history of any work related cause or aggravation of the condition.

(g) In relation to the allegations of injury to his neck there is no evidence that Mr Lee ever sought treatment for, or complained of, neck symptoms at any time before, during or after his employment with the Appellant. Dr Havill’s notes and his correspondence with treating specialists record nothing about neck symptoms or injury. In fact, the first radiological investigation of the neck was x-rays dated 7 August 2008 taken at the request of Dr Ashwell for the purposes of preparing his medico-legal report in August 2008, three years after the worker had resigned.

(h) Neither Mr Lee nor Dr Havill have made any attempt to explain the absence of contemporaneous complaints of shoulder pain during the course of Mr Lee’s employment.

(i) Mr Lee’s assertion that the caravan park work was heavy and heavier work than his previous work in the construction industry is unreliable, uncorroborated and inconsistent with the CRS workplace assessment.

(j) Dr Havill has expressed his opinion in terms no higher then that it was possible his work, as described, aggravated or accelerated the degeneration. This falls short of the required standard of proof that injury be proved on the balance of probabilities.

Fourth, Dr Ashwell concluded that Mr Lee developed degenerative disc disease and arthritis in his shoulders and knees as a result of his work up to 17 July 2005. Mr Lee’s case was not pleaded or argued as an injury in the form of a disease contracted in the course of employment (section 4(1)(b)(i)). His case was based on an aggravation, acceleration, exacerbation or deterioration of pre-existing underlying degenerative disease processes (section 4(1)(b)(ii)). But in any event I do not accept Dr Ashwell’s opinion as it too was based on an incomplete history. Although Mr Lee told Dr Mison that he had prior dislocation injuries to his shoulders playing football, and a “couple of spills” water skiing in competitive speed races, he denied any previous injuries to Dr Ashwell. He led Dr Ashwell to believe that the only reason for his resignation was due to his health when in fact he had resigned because of the misappropriation of funds belonging to his employer.

Dr Ashwell relied on a history of pain in both shoulders for five to six years with overhead use of his arms and heavy work activity. Given the complete absence of any report of such injuries to his general practitioner, who he was seeing regularly during that period, and the absence of complaints to his employer I do not accept that the history relied upon by Dr Ashwell was complete or reliable and therefore does not provide a fair climate for the acceptance of his conclusions (see generally Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 at 509-510; Paric v John Holland Constructions Pty Ltd [1985] HCA 58; (1985) 59 ALJR 844 at 846).

Fifth, in respect of the allegation that the caravan park work aggravated degenerative changes in Mr Lee’s knee, the first notation in Dr Havill’s records in respect of knee pain was not until 2 June 2008, three years after Mr Lee ceased work with the Appellant, at which time Mr Lee reported experiencing right knee pain after climbing up a truck.

There is no reference in the treating doctor’s notes to any complaints of left knee pain at all.

As with the cervical spine, the first radiological investigation of Mr Lee’s knees was x-rays taken at the request of Dr Ashwell in August 2008, for a medico-legal examination.

I am not satisfied that Mr Lee has met the necessary evidentiary threshold to establish on the balance of probabilities that he suffered injury in the form of aggravation or acceleration of a degenerative condition of his lumbar spine, cervical spine, shoulders or knees as a result of his work with the Appellant from December 2000 to July 2005.

Mr Lee’s claim that incapacity arising from his alleged work injuries coincided precisely with his resignation which occurred after his misappropriation of funds and in the absence of any prior complaints or treatment is simply not believable. Coupled with the delay in making the claim, it gives rise to a powerful inference, which I draw, that his complaints regarding the heavy nature of his duties are a late invention by a person with a proven record of dishonesty, designed to secure compensation benefits.

In respect of the frank injury to his shoulder when he fell from the mower on 22 December 2004, Mr Lee submits that because the Appellant did not cross-examine him on his statement about falling from the lawn mower and injuring his shoulder, the Appellant cannot make submissions on this issue on appeal. This is a submission based on the principle in Browne v Dunn (1893) 6 R 67. Because there is no automatic right to cross-examine in the Commission the failure to cross examine does not prevent a party from making submissions on issues, including issues of credit, provided those issues have been fairly and adequately raised in the evidence and the worker has had a reasonable opportunity to respond to them (see Prestige Property Pty Ltd v Rafiq [2006] NSWWCCPD 355 at [30] and [31]; Quadi v The Reject Shop (Aust) Pty Ltd [2008] NSWWCCPD 3 at [56] to [59] and Matar and anor v Zeineddine [2008] NSWWCCPD 51 at [66]). Whether Mr Lee fell from the mower and injured his shoulder on 22 December 2004 was an issue in dispute in the case and both parties submitted on it.

Mr Lee’s evidence was that he lost consciousness and fell from the mower landing on, and injuring his left shoulder (statement dated 25 March 2009; see [42] above) on 22 December 2004, which aggravated his already painful shoulder. Whilst the employer was aware that he had suffered a heart attack at this time, Mr Lee did not make any contemporaneous report of any injury to his shoulder. Mr Lee states that this was because the bruise to his left shoulder was insignificant at the time compared with the heart attack. He also said he did not notice any arm pain for about five days after the alleged fall.

Mr Lee’s assertion that he lost consciousness, (not made until 25 March 2009) and woke up on the ground on the left side of the mower is not recorded in the attending ambulance report (see [69] above), which makes no reference to a loss of consciousness or a fall and states that the patient, Mr Lee, experienced chest pain while riding the mower and went and lay down on the office floor.

Dr Tsicalas, Mr Lee’s cardiologist, states that he was admitted to hospital following chest pain that lasted for a few minutes. He also makes no reference to any loss of consciousness.

There were no witnesses to the event, none of the treating doctors make any reference to a fall, a loss of consciousness or an injury to the left shoulder. Given the general unreliability of Mr Lee’s evidence I prefer the evidence of the ambulance report and the doctors’ records and do not accept that he lost consciousness or fell and injured his left shoulder when he suffered the heart attack on 22 December 2004.

Dr Blue, whose evidence was generally adverse to the worker, accepted the worker’s history of the fall on 22 December 2004 and concluded that that event would have caused an aggravation of the left shoulder condition. This conclusion was based on a history which I do not accept and therefore does not provide a fair climate for the acceptance of his conclusions with respect to the shoulder injury.

CONCLUSION

Having conducted a “review on the merits” (per Spigelman CJ in State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249) I conclude, for the reasons stated in this decision, Mr Lee has not, on the balance of probabilities, proved injury to his lumbar spine, cervical spine, both shoulders and knees as a result of his work from December 2000 to July 2005 under section 4(1)(b)(ii) of the 1987 Act or that he sustained injury to his left shoulder on 22 December 2004 under section 4(1)(a).

DECISION

The decision of the Arbitrator dated 20 July 2009 is revoked and the following orders made in its place:

“1. An award for the Respondent, Redman Holdings Pty Ltd.
2. No order as to costs.”

COSTS

Each party to pay its/his own costs of the appeal.

His Hon. Judge G Keating
President
13 January 2010

I, EMMA LETHBRIDGE-GILL, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF HIS HON. JUDGE KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE