Reflections Group Cleaning Services Pty Ltd (Formerly Shopping Centre Cleaning Services (Aust) Pty Ltd) v Todic
[2006] NSWWCCPD 254
•3 October 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Reflections Group Services Pty Ltd (formerly Shopping Centre Cleaning Services (Aust) Pty Ltd) v Todic [2006] NSWWCCPD 254
APPELLANT: Reflections Group Services Pty Ltd (formerly Shopping Centre Cleaning Services (Aust) Pty Ltd)
RESPONDENT: Dusanka Todic
INSURER:Vero Workers Compensation (NSW) Limited
FILE NUMBER: WCC1958-04
DATE OF ARBITRATOR’S DECISION: 12 August 2005
DATE OF APPEAL DECISION: 3 October 2006
SUBJECT MATTER OF DECISION: Sufficiency of reasons for decision; Weight of evidence (Medical Assessment Certificate).
PRESIDENTIAL MEMBER: Acting Deputy President Kevin O’Grady
HEARING:On the papers
REPRESENTATION: Appellant: Lee and Lyons, Lawyers
Respondent: Gajic and Co
ORDERS MADE ON APPEAL: 1. The decision of the Arbitrator dated 12 August 2005 is confirmed.
2. No order as to the costs of the appeal.
BACKGROUND TO THE APPEAL
On 19 September 2005 Reflections Group Services Pty Limited (formerly Shopping Centre Cleaning Services (Aust.) Pty Ltd) (‘the Appellant’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 12 August 2005.
The Respondent to the Appeal is Dusanka Todic (‘the Respondent’).
The Respondent was, at all relevant times, employed by the Appellant as a Cleaner. The Respondent alleges that she was injured in the course of her employment with the Appellant on 30 October 2001 following which she claimed and was, until 28 April 2003, paid workers compensation benefits being weekly payments and reimbursement of medical expenses.
The Respondent, on 2 February 2004, filed an Application to Resolve a Dispute with the Commission claiming orders with respect to her entitlement to weekly benefits, medical and hospital and related expenses and lump sums in respect of alleged permanent impairment and pain and suffering. The injury described at Part 3 of that Application was:
“Injury Description – back, neck, right arm at or above the elbow, right leg at or above the knee, left leg at or above the knee.”
On 13 September 2004 a Medical Assessment Certificate was issued pursuant to section 325 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) by Dr John L Cummine, Orthopaedic Surgeon. Dr Cummine certified that the Respondent had suffered no permanent impairment of her neck, right arm, back or legs.
The Respondent lodged an Application to Appeal the Decision of an Approved Medical Specialist upon the ground that the certificate of Dr Cummine contained a demonstrable error. The Delegate of the Registrar refused to permit the appeal to proceed given that a ground for such appeal was not made out.
The Delegate of the Registrar directed that the matter be referred back to the Arbitrator for “outstanding issues to be resolved”.
The Respondent’s Application came before the Arbitrator for conciliation and arbitration on 18 July 2005.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’ dated 12 August 2005 records the Arbitrator’s orders as follows:
“1.That the Respondent pay the Applicant weekly compensation at the rate of $164 per week from 28 April 2003 to date and continuing under s 40 of the Workers Compensation Act 1987.
2.That the Respondent pay the Applicant’s s 60 expenses of $1309.40.
3.That the Respondent pay the Applicant’s costs as agreed or assessed.”
The Arbitrator’s reasons for the Determination (‘Reasons’) set out above accompanied the Certificate of Determination and were also dated 12 August 2005.
ISSUES IN DISPUTE
The issues in dispute in the appeal are:
(i)Whether the Arbitrator provided adequate reasons for her preference and acceptance of the Respondent’s medical evidence rather than that medical evidence adduced and relied upon by the Appellant.
(ii)Whether the Arbitrator failed to give due weight to the contents and conclusions contained in the Medical Assessment Certificate issued by Dr Cummine.
(iii)Whether the Arbitrator’s reasoning with respect to the evaluation of the Medical Assessment Certificate demonstrates error in that wrong legal principle was applied.
(iv)Whether the Arbitrator erred in her reasoning by taking into account matters irrelevant to the matters to be determined.
(v)Whether the Arbitrator in her reasoning process has erred in failing to give due weight to the evidence relied upon by the Appellant.
(vi)Whether the Arbitrator failed to provide adequate reasons for her conclusions reached with respect to the existence and extent of the Respondent’s incapacity.
The issues enumerated above are more fully set forth in the Appellant’s Submissions dated 9 September 2005 which accompany its Application.
ON THE PAPERS REVIEW
Section 354(6) of 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.”
The Appellant in its Application for Leave with respect to this Appeal has submitted that leave to make the appeal and the appeal may be decided solely on the basis of the written application and any written notice of opposition that may be lodged. I note that the Respondent has declined to make any submissions with respect to the Application for Leave to Appeal or with respect to the appeal itself. No “Notice of Opposition” has been filed on behalf of the Respondent however the Commission file contains correspondence received from the Respondent’s representatives dated 27 September 2005 received by the Commission on 29 September 2005 stating:
“We refer to the above matter and advise that we will not add further to this matter and specifically arising from the letter of Lee and Lyons dated 23 September 2005.
We were pose to [sic] any further particulars.”
It may be implied from the contents of that correspondence that it was the Respondent’s intention to refrain from making any submission with respect to the Leave Application and
the Appeal.
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, the Appellant’s submission with respect to hearing on the papers and the Respondent’s apparent acquiescence in having the matter so determined, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or any formal hearing, and that this is the appropriate course in the circumstances.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
Section 352(4) of the 1998 Act provides:
“(4)An appeal can only be made within 28 days after the making of the decision appealed against.”
Rule 77 of the Workers Compensation Commission Rules 2003 (‘the Rules’) governs procedural requirements with respect to appeals against an Arbitrator’s decision. Sub-rule (8) of rule 77 provides:
“(8)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.”
The Appellant’s Application was originally filed with the Commission on 9 September 2005 being a date within the time limited by the abovementioned provisions. By reason of formal defect contained in the Application the document was rejected by the Registrar of the Commission and advice to that effect addressed to the Appellant’s representatives was communicated in a letter from the Registrar dated 14 September 2005.
The Appellant, through its representatives, responded to the Registrar’s correspondence noted above by letter of 16 September 2005. The contents of that correspondence addressed the formal defects which had appeared in the original Application as filed on 9 September 2005. I treat that correspondence as an application for extension of time which application is permitted by the provisions of rule 77(8) quoted above.
The principles relevant to the exercise of discretion to extend time were considered by the High Court of Australia in Gallo v Dawson (1990) 93 ALR 479. Those principles have been discussed and applied in numerous decisions of the Commission (see for example Alexandru v State Rail Authority NSW [2004] NSWWCCPD 54).
Had it not been for the formal defect prompting rejection of the Appellant’s Application on 9 September 2005 the Appellant’s conduct in pursuing the appeal would have, in all other respects, complied with the legislative requirements as to the conduct of such an appeal. Having regard to the very brief period by which the time limitation was breached, the conduct of the Appellant in promptly responding to the Registrar’s correspondence and the nature of the litigation, I am of the view that “exceptional circumstances” within the meaning of rule 77(8) exist in the present matter.
The Appellant has raised substantial issues for determination in its Application and I am of the opinion that, should the Appellant lose the right to seek leave to appeal, demonstrable and substantial injustice in terms of section 77(8) would likely occur.
The amount of compensation at issue on the appeal exceeds the sum of $5,000 and is at least 20 per cent of the amount awarded in the decision appealed against and thereby the subject matter of the appeal meets the threshold requirements of section 352(2) of the 1998 Act as to quantum which must be met before a grant of leave to appeal may be made by the Commission.
I formally order that time to apply for leave to appeal be extended to 19 September 2005, being the date of filing of the Appellant’s amended Application, and note that the requirements of section 352(2) of the 1998 Act have been satisfied. Having regard to the subject matter of the appeal and the arguments raised I order that leave be granted to the Appellant to appeal to the Commission.
EVIDENCE AND SUBMISSIONS
The documentary evidence before the Arbitrator comprised the material which was noted at paragraph 6 of her Reasons. A transcript of proceedings conducted before the Arbitrator on 18 July 2005 is available on the Commission file and I note that it records (at page 30 of transcript at lines 15 to 25) detail of evidentiary material that had been adduced by the parties. It is to be noted that, whilst there was in existence at that time a report of Dr Giblin which had an unspecified date in 2004, that report did not find its way before the Arbitrator (see transcript page 21 line 30 to page 23 line 7).
The medical material adduced on behalf of the Respondent included plain x-rays which were reported upon by Dr Donohoe, Managing Radiologist in a report dated 2 November 2001. That practitioner’s comment included the observation:
“The L4/5 disc space is very slightly narrowed.”
Dr Donohoe further reported with respect to a C.T lumbar spine study by letter dated 13 November 2001. Dr Donohoe included a summary of those studies as follows:
“SUMMARY
1. Lumbar spondylosis with a disc lesion at the L4/5 level.
2. There is bulging of the L3/4 and the L5/S1 discs.”
There was before the Arbitrator a report from Westmead Hospital, Radiology Department signed by Dr A Peduto which addressed the findings of an MRI lumbar spine conducted on 18 January 2002. Dr Peduto expressed the following conclusion with respect to that study:
“CONCLUSION
Evidence of broad base [sic] small to moderate sized disc protrusion at L4/5 which in combination with short pedicles and mild facet and flaval ligament hypertrophy result in mild central canal stenosis. The foramina are minimally effaced but perineural fat is preserved around the existing nerve roots at this level. No other disc protrusion is seen elsewhere. The pedicles are quite short throughout the lumbar levels.”
The Respondent also relied upon a number of reports and certificates prepared by her General Practitioner Dr Nikolic. Dr Nikolic was the first practitioner to take a history from the Respondent and it is significant to note that the Respondent’s complaints of injury conveyed to that practitioner on 30 October 2001 were confined to reported pain in the low back and severe muscular spasm. The Respondent subsequently made complaint to Dr Nikolic of both left and right leg pain. It is unclear from Dr Nikolic’s reports and certificates as to when the Respondent first complained of neck and right shoulder and arm pain.
With respect to the alleged right shoulder and upper spine injury it is to be seen that Dr Nikolic referred the Respondent again to Dr Donohoe in February 2002 for the purpose of the conduct of an ultrasound and x-ray right shoulder/thoracic spine. Those studies are summarised in Dr Donohoe’s report of 27 January 2002 in which he concludes:
“CONCLUSION; A deep intra-substance tear within the supraspinatus tendon.”
The Respondent, on referral by Dr Nikolic, consulted Dr Noel G. Dan, Neurosurgeon. A number of reports from Dr Dan were before the Arbitrator. It was Dr Dan’s opinion that the Respondent had suffered a ruptured L4/5 disc which was directly attributable to the injury that occurred on 30 October 2001. Dr Dan expressed the view in his report of 18 June 2003 that the Respondent also had a soft tissue cervical injury which “could be related to the duties she undertook at work” but went on to state that “the delay in onset of her symptoms make it difficult to associate it with the duties she undertook at work”. Dr Dan went on to express the view that he considered the Respondent unfit and stated:
“I therefore do not believe she could carry out either her pre-injury work or other work for which she is reasonably qualified.”
A report from Dr Peter E Giblin, Orthopaedic Surgeon, dated 28 May 2003 was before the Arbitrator. That practitioner examined the Respondent at the request of Dr Nikolic in January of 2003. Dr Giblin expressed the view that:
“… she has the provisional diagnosis of a soft tissue injury to her back and right shoulder with secondary symptoms in her neck and left arm, and with secondary symptoms referred to her legs, more on the right than the left, substantially causally related to the subject accident.”
Dr Giblin proceeded to express the view that he considered the Respondent:
“permanently unfit for her pre-injury work environment and permanently unfit for any job requiring heavy repetitive bending, lifting and twisting, prolonged and uninterrupted periods of sitting or standing, or using her right upper limb at or above shoulder height, in a heavy, repetitious or impact fashion.”
A number of medical certificates issued by Dr Nikolic were in evidence before the Arbitrator and it is to be noted that Dr Nikolic expressed the view in those certificates that the Respondent was unfit to work.
The Appellant relied upon a number of medical opinions expressed in reports which were put before the Arbitrator. Included among those reports was that of Dr Tietze of Injury and Occupational Health Management dated 1 August 2002. Dr Tietze expressed the view that the Respondent was:
“Largely co-operative during physical examination. However she displayed a greatly exaggerated response to pain and extreme hesitance about performing various manoeuvres.”
That practitioner diagnosed a lumbar disc injury. Dr Tietze’s comment was:
“This is confirmed on both CT scan and MRI imaging. The imaging indicates that while there is some underlying chronic degenerative process, there is a clear protrusion at level L4/5.”
Dr Tietze went on to diagnose, in addition to the lumbar disability, right shoulder rotator cuff tear and chronic pain syndrome. Dr Tietze went on to say (at point 6 on page 8 of his report):
“6. In view of the current symptomatology and physical signs, I do not believe that Ms Todic would be capable of returning to her full pre-injury duties as a cleaner with Shopping Centre Cleaning Services at this time.”
Dr Alexander Gonski, Consultant Neurosurgeon, in his report dated 16 December 2002 stated that he had:
“… found no organic abnormality, no evidence of pathology in either her shoulders, her neck or her lumbar spine. The responses were typically non organic and should be considered as such.”
As to the radiological material which was available Dr Gonski went on to state:
“In my experience these sophisticated investigations do show up the pathology but particularly as some are seen at all three levels it is almost certainly degenerative changes which are so common and no [sic] due to any injury which might have occurred in October 2001.”
Whilst Dr Gonski did not expressly state his view as to capacity for work he noted (at page 4 of his report):
“If an injury had occurred particularly in the lumbosacral region it would have been a soft tissue injury which should have cleared itself up within 3 days to 3 months. This would be my diagnosis now.”
The Respondent further relied upon a report of Assoc. Professor Oakshott, Surgeon who reported with respect to his examination of the Respondent in a report dated 26 February 2003. Professor Oakshott concluded in that report:
“Conclusions:
Investigations of her cervical spine (neck) do not reveal any abnormality.
The ultrasound examination of her right shoulder revealed a mild tear of the right supraspinatus tendon which I consider is not a significant finding.
Investigations of her lumbar spine reveal degenerative changes which I consider are constitutional in origin. There is multilevel degenerative changes in the lower lumbar discs and evidence of mild spinal canal stenosis (narrowing) due to constitutional factors.
There is evidence in the medical literature that supports the contention that such changes can exist without symptoms.
I could not correlate any of these changes with any objective clinical finding at today’s consultation.”
Professor Oakshott proceeded to note (page 7 of his report) that:
“It is to be noted that at today’s clinical examination there were a number of exaggerations and embellishments noted.”
Professor Oakshott proceeded to state that he was - “unable to identify any objective clinical evidence of any physical injury or underlying pathology in any part of the Respondent’s body that was allegedly caused at work on October 30th 2001 that would prevent her from working fulltime without restrictions indefinitely in any job that she so desired.” (page 8 of report).
A Medical Assessment Certificate of Permanent Impairment issued by Dr John L Cummine, Orthopaedic Surgeon and dated 13 September 2004 was before the Arbitrator. Following examination of the Respondent and a review of all the relevant material Dr Cummine concluded that the Respondent had suffered a nil percentage permanent loss of efficient use of those parts of her body detailed in the Summary Table at page 12 of the Certificate. Those findings are conclusively presumed to be correct having regard to the provisions of section 326 of the 1998 Act.
At paragraph 10 of his Certificate Dr Cummine expressed the view that:
“I consider that the Applicant is fit for work, including normal duties from 28 March 2003.”
Such conclusion does not, having regard to the provisions of the 1998 Act, bind the parties and is not to be treated by the Commission as conclusive.
The Appellant’s Submissions challenge the findings of the Arbitrator upon various grounds including firstly that the Arbitrator failed to provide adequate reasoning as to why the Respondent’s medical evidence was preferred to that of the Appellant’s medical evidence and the Medical Assessment Certificate.
The Appellant narrates in its Submissions that the Medical Assessment Certificate was the subject of an unsuccessful challenge by the Respondent and that in her adjudication of the evidence the Arbitrator failed to give due weight to that Certificate. The Appellant goes so far as to argue that the Arbitrator’s reasoning in some way implies that the Certificate contained a demonstrable error which, submits the Appellant, is not open to the Arbitrator and that in so doing she has acted upon a wrong legal principle.
The Appellant further submits that in reaching her conclusions the Arbitrator has allowed irrelevant considerations to influence her decision and reliance is placed upon the decision of House v The King (1936) 55 CLR 119.
The Appellant proceeds to submit that the Arbitrator failed to give adequate reasoning as to why she accepted that the Respondent was unfit for work. The Appellant further submits that the Arbitrator’s finding with respect to the Respondent’s ability to earn was not open to her on the evidence. A general submission was made (submission 8) that the Arbitrator failed to comply with the principles “enunciated in Mitchell v Central West Health Service (1997) 14 NSWCCR 527”.
As noted above the Respondent has elected not to place submissions before the Commission in reply to the Appellant’s grounds of appeal and submissions in support thereof.
DISCUSSION AND FINDINGS
This appeal is brought pursuant to the provisions of section 352 of the 1998 Act. Subsection (5) of that section provides:
“(5)An appeal under this section is to be by way of review of the decision appealed against.”
The nature of the ‘review’ stated in the aforementioned subsection was the subject of examination by Dr Fleming DP in Mayne Health Group t/as Nepean Private Hospital v Sarah Sandford [2002] NSWWCCPD 6. In summary, the Commission’s conclusion in the last mentioned decision was that a proceeding such as the present is not an “appeal” in the strict sense nor is it a hearing de novo. It was further stated in the course of that aforementioned decision that such power to “review” is exercisable only where it can be demonstrated that the original decision of the Arbitrator was affected by legal, factual or discretionary error.
The Appellant’s Submissions have been summarised above and represent a challenge to the Arbitrator’s reasoning process by reason of failing to provide adequate reasons, failure to give due weight to particular evidence, application of wrong legal principle with respect to the Medical Assessment Certificate, taking into account matters irrelevant to the issues to be determined and failure to provide adequate reasons for the conclusions reached with respect to the existence and extent of the Respondent’s incapacity.
At paragraph 31 of her Reasons the Arbitrator correctly identified the question of the Respondent’s incapacity for work as being an issue for determination. It is important to note that in its Reply to the Respondent’s original Application, the Appellant had raised the question of “injury” as being an issue in dispute between itself and the Respondent. As the Arbitrator stated at paragraph 3 of her Reasons:
“3. It is not in issue that Ms Todic suffered an injury at work on 30 October 2001 and that she notified the Respondent on the same day.”
What remained in issue between the parties at the hearing before the Arbitrator was not only the question of resultant incapacity but the question as to the nature and extent of any injury which resulted from the incident on 30 October 2001.
At paragraph 41 of her Reasons the Arbitrator states:
“41. On the balance of probabilities I am satisfied that Ms Todic has been unfit for work on account of her problems in her lower back and right leg sciatica for the period in dispute.”
It is implicit given the terms of that finding that the Arbitrator has rejected the Respondent’s allegation of neck, shoulder and arm injury resulting from the subject incident in October 2001 as contributing to her incapacity. Whilst it is desirable that an explicit finding with respect to such an issue is to be stated in the course of adjudication of a dispute such as the present, it may be seen that the Arbitrator has, by inference, accepted the view of Dr Dan which was summarised by the Arbitrator at paragraph 18 of her Reasons:
“… In addition he diagnosed a soft tissue cervical injury which he thought might be related to Mrs Todic’s duties as a Cleaner but considered that unlikely given the delay in the onset of her symptoms.”
It is to be noted that, whilst the evidence suggesting a tear of the right supraspinatus tendon was touched upon by the Arbitrator in the course of her summary of the medical material, there is no explicit finding with respect to the question of causation of such diagnostic finding.
It is the Appellant’s submission (submission 3) that the Arbitrator failed to provide adequate reasoning as to her preference for the Respondent’s medical evidence to that of the Appellant’s medical evidence and the Medical Assessment Certificate. The Arbitrator (between paragraphs 13 and 31 of her Reasons) sets forth a summary of the totality of the medical evidence which was before her. It is to be noted that that summary (at paragraph 20) makes reference to the evidence of Drs Tietze, Gonski and Professor Oakshott and contains the misstatement:
“All believe she is fit for work.”
It was the opinion of Dr Tietze (at page 8 of his report 1 August 2002) that:
“In view of her current symptomatology and physical signs, I do not believe that Ms Todic would be capable of returning to her full pre-injury duties as a Cleaner with Shopping Centre Cleaning Services at this time.”
With respect to the opinion of Dr Gonski, his views have been quoted above however it is to be noted that nowhere in his report of 16 December 2002 is there an express statement that the Respondent “is fit for work”.
Professor Oakshott’s view as to the absence of any incapacity for work has been quoted above.
Leaving aside the matters raised immediately above, the Arbitrator’s summary of the medical material was both thorough and careful. The reasoning process of which the Appellant complains is to be found between paragraphs 32 and 40 of the Arbitrator’s Reasons. It was stated by Meagher JA in Beale v GIO of NSW (1997) 48 NSWLR 430 at 443 - “Reasons need not necessarily be lengthy or elaborate” but “relate to the function to be served by the giving of reasons”. When needing to refer to relevant evidence “there is no need to refer to [it] in detail, especially in circumstances where it is clear that the evidence has been considered”. (This line of reasoning was cited by Santow JA in Haris v Bulldogs Rugby League Club [2006] NSWCA 53 17 March 2006 unreported.)
The Arbitrator, before embarking upon her analysis and expression of view as to the medical material, observed that the Respondent, when assessed by the Respondent’s doctors and the AMS, overstated her problems and feigned restricted movement. That fact required, in the Arbitrator’s view, the exercise of caution in evaluating medical evidence founded upon symptoms as reported by the Respondent to those conducting the examination.
The Arbitrator has, in my view, revealed the basis upon which she preferred, ultimately, the Respondent’s medical evidence to that adduced by the Appellant. The views of Professor Oakshott and Dr Gonski are critically assessed at paragraphs 34 to 36 inclusive following which the Arbitrator analyses the views of Dr Dan which are plainly contrasted (at paragraph 37) with the views of Drs Cummine, Gonski and Professor Oakshott. It is my view that the Arbitrator in delivering her Reasons as here summarised, has addressed the totality of the evidence and has sufficiently revealed her process of reasoning as required by law.
The Appellant, in its submissions numbered 4 and 5, gives particular attention to the content of the Medical Assessment Certificate of Dr Cummine and the Arbitrator’s reasoning process with respect to that Certificate. The Appellant makes the point (submission 4) that an appeal by the Respondent with respect to the findings of Dr Cummine had failed. It is asserted by the Appellant that the rejection of such appeal demonstrates that there was not in any relevant sense a demonstrable error to be found within the Certificate. It is argued by the Appellant that in those circumstances “… the MAC is taken to be conclusively correct by virtue of which it is implied that the rational [sic] employed by the AMS to arrive at his decision adequately supports his ultimate conclusion and cannot be disturbed”. The Appellant proceeds to argue that the Arbitrator’s reasoning with respect to the Certificate is such as to constitute acceptance that the MAC “contains a demonstrable error which the Appellant submits is not open to the Arbitrator and that the Arbitrator has acted upon a wrong legal principle and extend [sic] outside her field of expertise”.
The Certificate issued by Dr Cummine included, as noted above, an assessment that the Respondent had, as a result of the subject injury, not sustained any permanent loss or impairment with respect to the matters referred for assessment (see paragraph 1 of Certificate and Summary Table). At paragraph 10 of the Certificate Dr Cummine expressed the following view:
“I consider that the Applicant is fit for work, including normal duties from 28 March 2003.”
The certification as to permanent loss or impairment is, having regard to the provisions of section 326(1)(a) of the 1998 Act, binding upon the parties. The Appellant correctly acknowledges in its submission that the Certificate is “not binding in relation to incapacity”. Dr Cummine’s expression of opinion with respect to the Respondent’s capacity for work, whilst not binding upon the parties, constitutes evidence requiring the consideration and appraisal of the Arbitrator in the course of her decision making process.
The Appellant appears to argue that given the binding nature of Dr Cummine’s conclusion as to the question of loss or impairment, the rationale or process of reasoning adopted by him in reaching that conclusion could not be “disturbed”, by which I take the Appellant to mean “rejected”, by the Arbitrator. Notwithstanding the statutory presumption as to the correctness of the assessment by Dr Cummine of the degree of permanent impairment of the worker as a result of the subject injury I cannot accept the Appellant’s argument that the Arbitrator was bound to accept in every respect the reasoning process and incidental findings and conclusions expressed by Dr Cummine in reaching that conclusion.
The Arbitrator (at paragraph 33 of her Reasons) stated:
“33. The inescapable conclusion is that when assessed by the Respondent’s doctors and the AMS, Ms Todic overstated her problems and feigned restricted movement. However, none of these experts in my view has adequately explained the basis for his opinion that the ruptured disc seen on MRI and CT scan could not possibly be responsible for some or all of the lower back symptoms of which Ms Todic now complains. Dr Cummine states that such condition is often found in ‘asymptomatic subjects’ but does not address whether such pathology could also lead to symptoms in some people. He characterises the findings on CT scan and MRI as ‘incidental’ and not the result of trauma but fails, in my view, to adequately set out the basis for that opinion.”
It may be seen from the above quotation of the Arbitrator’s Reasons that the Arbitrator treated the views of Dr Cummine as evidence to be considered along with the other evidence and has, as she was entitled, expressed a view that there was in the subject certificate an inadequate basis expressed for the opinion stated as to the absence of relationship between the abnormalities noted on the diagnostic studies and the symptoms of which the Respondent complains. The Arbitrator’s expression of view as noted at paragraph 33 of her Reasons constitutes the product of exercise of discretionary judgment which, in my view, has been exercised lawfully and fairly. That the Arbitrator had a discretion to accept or reject the “rationale” expressed by Dr Cummine with respect to matters ancillary to the matters nominated for certification is, in my view, beyond doubt. As stated by Dr Fleming DP in Rohloff v Diacut Pty Limited (in liquidation) [2005] NSWWCCPD 17:
“Interference with an Arbitrator’s discretionary judgment as to the weight of evidence should only be done where it is manifestly obvious the discretion has so miscarried that it has not been exercised fairly and lawfully.”
It is my view that the Appellant has, in the circumstances, failed to demonstrate that the Arbitrator failed to give due weight to the Appellant’s medical evidence, in particular the contents of Dr Cummine’s Certificate and the opinions as expressed by Drs Tietze, Gonski and Professor Oakshott.
The Appellant relies upon the principles stated by the High Court of Australia in House v The King (1936) 55 CLR 119 and argues (at submission 5) that the Arbitrator has allowed irrelevant considerations to influence her decision and has failed to give due weight to the evidence. I have earlier expressed my view as to the correctness of the Arbitrator’s approach in determining the appropriate weight to ascribe to the conflicting medical material that was before her and, as above stated, the Appellant’s argument with respect to that ground of appeal is rejected.
The Appellant has, in my view, failed to identify with any precision the matter or matters stated to be “irrelevant” to the making of the Arbitrator’s decision. Submission number 5 deals with the detail of the manner in which the medical witnesses relied upon by the Appellant dealt with the diagnostic studies above mentioned. The argument appears to be directed to a suggested error on the part of the Arbitrator in failing to acknowledge the evidence of the medical witnesses as summarised. As I have stated above I am of the view that the matters raised by the Appellant have been addressed by the Arbitrator, in particular at paragraph 33 of her Reasons. Paragraphs 34 to 37 of the Arbitrator’s Reasons reveal, in my view, a balanced and reasoned analysis of the medical evidence and a plain statement as to the basis of her preference for Dr Dan’s opinion. I am not persuaded that the Arbitrator has erred in failing to take into account any relevant material or, more particularly, taking into account, as suggested by the Appellant, irrelevant matters.
The Appellant (at submissions 6 and 7) challenges the Arbitrator’s findings with respect to the Respondent’s incapacity for pre-injury work. It is argued that the Arbitrator “did not provide adequate reasoning as to why she accepted that the worker was unfit for work for the period in dispute”.
As noted above, the Arbitrator, at paragraph 41 of Reasons, concluded that the Respondent had been “unfit for work on account of her problems in her lower back and right leg sciatica for the period in dispute”. The question as to the extent of that incapacity is addressed by the Arbitrator in paragraphs 42 to 45 of her Reasons. The Arbitrator’s ultimate conclusion was that the Respondent had at all relevant times been partially incapacitated and in so finding rejected the evidence of Dr Nikolic with respect to his view that the Respondent was totally incapacitated. The Arbitrator has taken into account factors relevant to a determination of the question of incapacity (paragraph 44 of Reasons) and in reaching her conclusion as to partial incapacity has, in my view, discharged her obligation to state sufficient reasons for such conclusion. Given the Arbitrator’s qualified acceptance of the evidence of Drs Nikolic and Dan with respect to the question of “incapacity” I expressly reject the Appellant’s submission (submission 7) that “the reports of Drs Nikolic and Dan do not provide an adequate basis for the Arbitrator to address the level of the worker’s physical incapacity”.
The Appellant, in submission 8, incorrectly states that the Arbitrator found that the Respondent’s pre-injury earnings were “$164 per week”. The Arbitrator’s finding with respect to that issue is to be found at paragraph 47 of her Reasons. As noted by the Arbitrator it was not in dispute between the parties that the Respondent’s “pre-injury income was about $328 per week”. The Appellant proceeds to argue that the Arbitrator failed to assess the Respondent’s loss of earnings in accordance with the principles enunciated in Mitchell v Central West Health Service (1997) 14 NSWCCR 527 (‘Mitchell’).
The matters of principle enunciated in Mitchell are plainly and correctly stated by the Arbitrator at paragraph 46 of her Reasons. Those principles are applied with precision by the Arbitrator to the facts as found and her reasoning process is apparent in paragraphs 47 to 54 of her Reasons. I am of the view that the reasoning process and conclusions of fact revealed in those paragraphs demonstrate no error of relevance. I conclude that the Appellant’s submissions with respect to the Arbitrator’s findings as to incapacity and entitlement pursuant to section 40 of the Workers Compensation Act 1987 should be rejected.
DECISION
The appeal is unsuccessful. The decision of the Arbitrator dated 12 August 2005 is confirmed.
COSTS
No order as to the costs of the appeal.
Kevin O’Grady
Acting Deputy President
3 October 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O’GRADY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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