Rinker Group Limited v Mackell (No.2)
[2009] NSWWCCPD 97
•12 August 2009
| WORKERS COMPENSATION COMMISSION | ||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||||
| CITATION: | Rinker Group Limited v Mackell (No.2) [2009] NSWWCCPD 97 | |||||
| APPELLANT: | Rinker Group Limited | |||||
| RESPONDENT: | Kathleen Ellen Mackell | |||||
| INSURER: | Self insured | |||||
| FILE NUMBER: | A2-2717-07 | |||||
| ARBITRATOR: | Ms S Duncombe | |||||
| DATE OF ARBITRATOR’S DECISION: | 23 March 2009 | |||||
| DATE OF APPEAL DECISION: | 12 August 2009 | |||||
| SUBJECT MATTER OF DECISION: | Evidence; leave to call oral evidence from expert witness; late evidence; restricting cross-examination; refusal to grant an adjournment; restrictions on the number of forensic medical reports. | |||||
| PRESIDENTIAL MEMBER: | His Hon. Judge Keating, President | |||||
| HEARING: | On the papers | |||||
| REPRESENTATION: | Appellant: | Leigh Virtue & Associates | ||||
| Respondent: | Somerville Laundry Lomax | |||||
| ORDERS MADE ON APPEAL: | The decision of the Arbitrator dated 23 March 2009 is confirmed. | |||||
| The Appellant to pay the Respondent’s cost of the appeal. | ||||||
INTRODUCTION
This matter concerns a claim for lump sum compensation for 7% Whole Person Impairment ($8,750.00) as a result of tendonitis in the right shoulder and arm caused by the nature and conditions of Ms Mackell’s work with Rinker Group Ltd (‘Rinker’) in which she alleges that she performed data entry duties including prolonged periods of typing and operating a mouse.
BACKGROUND
Ms Mackell, commenced proceedings in the Commission on 19 April 2007.
The Commission arranged assessment by an Approved Medical Specialist (‘AMS’) and a Medical Assessment Certificate (‘MAC’) issued in June 2007.
Rinker appealed the MAC to a Medical Appeal Panel (‘the Panel’). The Panel revoked the MAC and issued a new MAC in substantially the same terms on 15 November 2007.
On 16 April 2008 an arbitration hearing was conducted and the decision reserved. On 8 May 2008 a Certificate of Determination issued. The Arbitrator found in favour of Ms Mackell on all issues. As a consequence of the Arbitrator’s finding for the worker on ‘injury’, he referred the matter to the Registrar for referral for a further assessment by an AMS.
Rinker appealed the Arbitrator’s decision on 2 June 2008, on a number of grounds including that it was denied procedural fairness, on issues in respect of notice of the claim, estoppel, failure by the Arbitrator to give reasons, errors in respect of injury, section 9A, deemed date of injury and in determining that Rinker was the last employer in respect of the finding of disease.
On 19 September 2008, Deputy President Roche issued Rinker Group Limited v Mackell [2008] NSWWCCPD 100 (‘Mackell (No. 1)’). The Deputy President upheld the appeal on one ground only, on the basis that the Arbitrator had erred in admitting two reports from Drs Wallace and Fuller, both orthopaedic surgeons, in contravention of clause 43 of the Workers Compensation Commission Regulation 2003 (‘the Regulation’). The Deputy President rejected the other grounds of appeal, with the exception of the estoppel and reasons grounds. He declined to consider the ground of appeal that the Arbitrator’s reasons were inadequate, on the basis that it was not necessary, having found that the matter required re-determination. In respect of the Arbitrator’s findings on estoppel, the Deputy President found that the Arbitrator had over stated the effect of prior Consent Orders (see [18] below), when he based his finding of injury solely on the effect of the Consent Orders. However, there was a lack of evidence about the prior proceedings to finally determine the probative value of the Consent Orders in respect of the estoppel arguments.
The Deputy President revoked the Arbitrator’s decision and remitted the matter for re-determination by a different arbitrator. He identified a number of matters that he considered would be prudent for the parties to attend to prior to the next arbitration hearing (see [148]-[149] Mackell (No.1)).
On remitter, the matter was listed before Arbitrator Duncombe. Three teleconferences were held in which the parties explored settlement and the Arbitrator made various directions as to the conduct of the matter.
The matter was listed for arbitration hearing in Ballina on 10 February 2009.
At the arbitration hearing the claim for injury as a result of the nature and conditions of employment initially pleaded as a period from December 1993 to January 2006, was amended, by consent, to a period of employment from 1 March 2003 to 16 January 2006.
Ms Mackell gave evidence and was cross-examined, oral submissions were made by counsel for Ms Mackell. Leave was given to Rinker (at its request) to file written submissions, which it subsequently did and Ms Mackell filed short submissions in reply.
The Arbitrator issued a reserved decision on 23 March 2009, finding in favour of Ms Mackell on all issues. She found Ms Mackell suffered injury to her right arm arising out of or in the course of her employment with Rinker from 1 March 2003 to 16 January 2006, and that her employment was a substantial contributing factor to the injury. The Arbitrator found a deemed date of injury pursuant to section 16 of the Workers Compensation Act 1987 (‘the 1987 Act’) of 17 January 2006.
The parties were given the opportunity to agree to the findings of the Medical Appeal Panel dated 15 November 2007, as to the quantum of Ms Mackell’s impairment. The parties failed to reach agreement and the matter was therefore again referred to the Registrar for further referral to another AMS.
On 20 April 2009 Rinker (‘the Appellant’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ against the decision, dated 23 March 2009. Ms Mackell is the Respondent to the appeal.
PREVIOUS PROCEEDINGS
Ms Mackell had filed a number of separate earlier applications in the Commission. The history of those applications is discussed fully in Mackell (No.1).
An Application for Interim Payment Direction (No.20126-05) was registered in the Commission on 28 November 2005. Ms Lynch, the Registrar’s delegate, concluded that Ms Mackell had established that her employment was a substantial contributing factor to her injury but she declined to issue an Interim Payment Direction because at the date of the Direction, 3 January 2006, Ms Mackell had not taken any time off work and not incurred any medical expenses. The formal Interim Payment Direction issued by the Registrar on 5 May 2006 recorded that the Application was withdrawn.
Ms Mackell filed an Application to Resolve a Dispute (No.7972-06) on 23 May 2006. This file was available on the hearing day, but neither party sought to tender it or rely on it. In Mackell (No.1), Deputy President Roche noted that on 3 August 2006 the Commission issued a “Certificate of Determination–Consent Orders” in this application in the following terms:
“1. That the application be amended to claim weekly compensation for the period 17 January 2006 to 6 June 2006.
2. That for the period 17 January 2006 to 17 February 2006, payments of sick leave made to the Applicant by the Respondent be deemed payments for weekly compensation under Section 36 of the 1987 Act.
3. That the Respondent pay to the Applicant weekly compensation from 20 February 2006 to 3 May 2006 in the sum of $945.96 agreed to total $9,932.58.
4. That the Respondent pay to the Applicant weekly compensation from 4 May 2006 to 6 June 2006 in the sum of $945.96 agreed to total $4729.80.
5. That the Respondent pay the Applicant’s Section 60 expenses to date upon production of accounts or receipts.
6. That the Respondent pay the Applicant’s costs as agreed or assessed.”
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 23 March 2009, records the Arbitrator’s orders as follows:
“The Commission finds:
1. That the Applicant sustained an injury to her right upper extremity arising out of or in the course of her employment with the Respondent from 1 March 2003 to 16 January 2006.
2. Employment with the Respondent was a substantial contributing factor to the injury.
3. The deemed date of injury is 17 January 2006: section 16 of the 1987 Act.
The Commission determines that:
1. Subject to agreement of the parties to be bound by the decision of the Medical Appeal Panel dated 15 November 2007 in respect of the level of impairment, such agreement being advised to the Commission on or before 22 April 2009, that the Application be remitted to the Registrar for referral to an Approved Medical Specialist for assessment of Whole Person Impairment as follows:
Date of injury: deemed 17 January 2006
Method of assessment: Whole Person Impairment
Body part: Right Upper Extremity
Evidence: all evidence on file, including a copy of this determination.2. That the Respondent pay the Applicant’s costs as agreed or assessed. The matter is certified as complex and the Applicant is entitled to an uplift on costs of 30%.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator:
(1) Denied the Appellant procedural fairness and erred in:
(a)admitting Ms Mackell’s statement dated 28 November 2008 and Dr Miller’s supplementary report dated 28 November 2008;
(b)refusing to admit Dr Blue’s reports dated 7 February 2007 and 14 March 2007;
(c)refusing oral evidence from Dr Stabler;
(d)restricting the cross-examination of Ms Mackell, and
(e)refusing to grant Rinker an adjournment.
(2) Failed to properly consider and assess the evidence.
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.”
The Appellant submits that the appeal should proceed by way of an oral hearing because it involves complex issues that would benefit from an oral hearing. Further, that the transcript of the arbitral proceedings (‘the transcript’) was not available at the time the appeal was lodged and the transcript is best addressed in an oral hearing.
Ms Mackell submitted that the appeal could proceed ‘on the papers’, however, was unable to complete her submissions “until the substantive appeal [sic-is] made following provision of the Transcript”.
The transcript was provided to the parties under cover of letter dated 21 May 2009 and the parties were given a further 28 days to complete their submissions on appeal.
By 19 June 2009, no further submissions had been filed.
On 19 June 2009 the Registrar’s delegate wrote to the parties and requested that the Appellant file and serve by 25 June 2009 any further submissions or confirm in writing that the appeal application was complete and no further submissions would be filed.
On 26 June 2009 the Appellant filed further written submissions and advised that the submissions were late due to an administrative error.
On 29 June 2009 the Commission notified the parties that Ms Mackell should file and serve submissions by 10 July 2009.
On 10 July 2009, Ms Mackell filed written submissions addressing the appeal procedure and the substantive issues on appeal.
Ms Mackell confirmed that the appeal was suitable to be determined on the papers. There were no complex issues and many of the issues had been dealt with in Mackell (No.1).
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the parties, 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
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The appeal was lodged on 20 April 2009, within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
The thresholds in section 352(2) are met.
Leave to appeal is granted.
FRESH EVIDENCE
The Appellant does not seek to rely on fresh evidence.
Ms Mackell seeks to rely on a letter dated 30 September 2008 addressed to her solicitors from the Appellant’s solicitor. In the letter the Appellant’s solicitor expresses the opinion that in his decision 19 September 2008, Deputy President Roche was wrong to reject certain of the appeal grounds relied upon by Rinker. The letter foreshadowed an appeal to the Supreme Court, Court of Appeal, in the event that the outcome of the proceedings is unfavourable to his client
Fresh evidence or additional evidence on appeal is governed by section 352(6) of the 1998 Act, Rule 16.2(4)(c) and Practice Direction No.6.
Section 352(6) is in the following terms:
“(6) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.”
The letter of 30 September 2008 from the Appellant’s solicitor to Ms Mackell’s solicitor is nothing more than a gratuitous threat. It adds nothing to the issues to be determined in this appeal. The requirements of Practice Direction No. 6 concerning the admission of fresh evidence on appeal have not been complied with. The correspondence was merely attached to Ms Mackell’s submissions on appeal. I am not satisfied that it is just to admit the evidence on appeal, accordingly I reject the application for the admission of fresh evidence on appeal.
EVIDENCE
Ms Mackell
Statement
Ms Mackell relied on a signed statement dated 28 November 2008. In 1983 she commenced work with ARM Concrete, the previous owners of Readymix in Ballina. Her duties involved data entry of creditors and debtors, general administration, accounting and purchasing. She worked full time.
Between 1988 and 1 May 1990 she worked full time in Sydney as an accounting supervisor with another employer and returned to Ballina for the birth of her first child in May 1990.
From September 1990 to October 1992 she again worked for Readymix, initially two days per week and later increasing it to five days per week. In late 1992 after a 16-month contract expired she changed jobs and worked as an assistant accountant at a funeral home doing manual bookkeeping.
In December 1993, Readymix approached Ms Mackell and offered her a full time position in Ballina as an accounting clerk, working with two other staff. All three staff performed office administration, data entry and accounting assistant work. In 1997, Readymix transferred one of the office administrative staff to Lismore and the other staff member was made redundant. During the time Ms Mackell worked for Readymix it purchased a number of other plants. The reduction of staff numbers and increase in the size of the business resulted in Ms Mackell’s workload increasing.
Ms Mackell’s duties required speed and accuracy with data entry, which she performed with her right hand on a numerical pad. She stated that sometimes she could sit performing data entry work for 3 to 4 hours without a break. Her duties included the entry of all sales of concrete and quarry materials for all the concrete and gravel yards, the purchase orders for all the concrete, plant and gravel yards, and the service workshop. She also processed banking and allocations of payments and payroll. In 2002 Readymix purchased two additional concrete plants and another sand and gravel business.
Ms Mackell estimated that 99% of her duties were data entry, predominately numerical entries which she did with her right hand. She regularly worked through her lunch hour and was reluctant to take sick leave and holidays because of the build up of work during her absence. She felt significant time pressure in her job.
In August 2002 Ms Mackell began to experience neck pain and her employer organised for CRS Australia (‘CRS’) to assess her workstation. CRS recommended that her telephone and mouse be moved to the left side to reduce the load on her right arm. Ms Mackell complied with the recommendations and also began to use a telephone headset. She did not make a workers compensation claim.
Ms Mackell began to experience pain in her right arm and shoulder reaching and using the numerical keyboard pad in about 2002. The numerical data entry work became increasingly painful over the next couple of years, reaching a point where she was required to use pain-killing medication throughout the day and during the night she would be woken with pain.
Later in her statement, she said that:
“I have never previously injured my right shoulder or arm prior to noticing the onset of pain and the problems in about 2003 as stated above.”
By early 2005 she developed pain quickly on Monday, and by the afternoon she needed painkillers and “By Friday each week I would be in complete agony”.
By approximately April 2005, she was in constant pain and it was interrupting her sleep. The pain was particularly bad at the end of each month, when she had excessive workloads, strict deadlines, and when she was required to perform a lot of unpaid overtime to complete her work. The pain also limited activities such as swimming and ball games with her children.
When Ms Mackell consulted Dr Reid in April 2005 to complain about her shoulder pain, he asked questions about other activities. Besides housework and childcare responsibilities the only other activity she could recall where she used her right shoulder was playing social tennis, which she did three or four times per year. She denied playing tennis regularly or competitively and had never injured her shoulder playing tennis.
On 12 May 2005, Dr Reid diagnosed tendonitis of the right shoulder and provided a WorkCover medical certificate certifying keying duties for one hour at a time and 15-minute breaks.
Ms Mackell completed a claim form on 13 May 2005 and submitted it to Mr Wilkelman the same day.
Ms Blackburn, physiotherapist, referred Ms Mackell for an x-ray and ultrasound, which showed calcium in the tendon of the right shoulder. On 6 June 2005, Dr Fuller examined Ms Mackell at her employer’s request. On 5 July 2005 Rinker accepted her workers compensation claim.
On 8 July 2005 Dr Stabler, orthopaedic surgeon, gave Ms Mackell a steroid injection.
In late July 2005, the employer’s rehabilitation officers made changes to Ms Mackell’s workstation, provided a gel wrist pad and implemented Dr Reid’s certification of 15-minute breaks every hour of keyboard activity.
Ms Mackell was able to continue to work with the revised workstation and workload but continued to experience pain. She took Neurofen during the day and Panadeine forte at night until she underwent surgery.
During a five-day holiday in September 2005, the pain subsided a little but returned within one hour of data entry. By the end of the day she again required painkillers.
Dr Sabler injected the shoulder a second time, but by 16 September 2005 he recommended surgery. After confirming that Ms Mackell had private health insurance, Dr Stabler said that he would perform the surgery as a private patient not under workers compensation.
On 16 September 2005 Rinker denied liability for Ms Mackell’s claim.
Ms Mackell stated, “I lost faith in Dr Stabler (due to this change of attitude towards me after I told him I was privately insured)…” Ms Mackell then consulted Dr Pearce who recommended acromioplasty surgery.
Ms Mackell worked up until the day before her surgery, which was performed on 17 January 2006. She was off work until March 2006 during which time she exhausted her sick leave, annual leave and long service leave entitlements.
On 16 March 2006, Ms Mackell was certified fit to return to work from 10 April 2006 for four hours a day, five days per week. However Rinker advised through Mr Winkelman, the OHS officer, that restricted duties were not available and Ms Mackell should contact Rinker when she had full clearance.
Due to limited shoulder movement Dr Pearce performed a manipulation under anaesthetic on 9 May 2006 and after further rehabilitation and physiotherapy Ms Mackell was certified fit to return to work by Dr Pearce. Dr Reid provided a certificate on 1 June 2006 stating she was fit for four hours per day, five days per week. Rinker refused Ms Mackell’s return to work until she had a full clearance.
On 5 June 2006, Dr Reid certified that from 6 June 2006, Ms Mackell was fit to return to work. After Rinker clarified with Dr Reid his certification. He stipulated that Ms Mackell should do alternative duties to data entry every 15 minutes out of every hour.
Whilst Ms Mackell was initially advised by Ms Flood from Rinker’s workers compensation department that Dr Reid’s response was satisfactory, on 20 June 2006, Ms Mackell was visited at home by Mr Noakes and Mr Winkelman who advised her that there was no longer a position for her and advised her she would be made redundant, effective 23 June 2006.
Ms Mackell noted that proceedings WCC7972-06 in the Commission related to Rinker’s refusal to pay weekly compensation and medical expenses including the cost of the surgery. Ms Mackell confirmed that those proceeding settled by way of consent orders and she was paid for her time off work and for the surgery costs up to 6 June 2006 (see [18]).
Ms Mackell looked for work after being made redundant and secured her current employment with Sidney Richardson Plumbing in Ballina. She stated that her duties are varied including answering telephone, taking job orders, accounts and typing quotations. There is a lot of manual work, as distinct from computer work. The volume of keyboard work is about 1/10 of that at Rinker and the keyboard work is typing using both hands. She experiences pain in her shoulder if she does a large amount of keyboard work, but if this occurs she can find alternative duties to do and she does not have significant problems at work.
Ms Mackell noted that the ongoing problems with her right arm include an inability to lift the arm above her shoulder, or lift objects with an outstretched arm, difficulties cleaning, hanging washing, washing her hair, and swimming. The pain continues to wake her at night.
Medical and other reports
CRS conducted a workplace assessment on 26 July 2005. The report noted that Ms Mackell had been in her current role for 12 years and had experienced a gradual onset of right shoulder and arm pain for about three years. The report noted that the major type of data entry work was numerical entries using her right hand. Ms Mackell reported workload increases over the years and there was extra data entry work on the 15th day and the last two days of each month. The report suggested appropriate arrangements be made giving Ms Mackell extra assistance. This was discussed with Mr Wakeham, Regional Manager and Mr Winkelman, who acknowledged the time pressure and constraints of the end of month financial deadlines. However he undertook to investigate how the recommendations might be accommodated.
The report also recommended changes to work techniques to allow more frequent breaks from static keyboard posture. It noted that continuous data entry should be no more that 20 to 30 minutes and briefly varied with changes to posture, ‘pause gymnastics’ and stretching. It was acknowledged that this would likely impact on Ms Mackell’s productivity.
The entry in Dr Reid’s clinical notes relevant to this appeal is dated 12 May 2005. The photocopy of the doctor’s notes in the Commission file appears not to have been fully copied. Whilst it is not clear, it is possible that the entry for this date as copied is not complete and the last part of it may have been omitted at the end of the page. The notes reproduced read as follows:
“Discomfort right arm over 2 years pain down right arm without specifically being localised to shoulder joint. Discomfort more down upper arm
Shoulder uncomfortable with rotation but can brush hair okay.
No particular initiating incident only sport would (?) be tennis 3-4 times per year.
Reasonable neck movements… (two words not decipherable) tenderness”
Dr Lun’s, radiological report dated 19 May 2005 reported a well-defined calcification in the anterior part of the supraspinatus tendon consistent with a calcific tendonitis.
In a report dated 21 September 2005, Dr Reid noted that Ms Mackell had a calcific supraspinatus tendonitis of the right shoulder. He noted that it “causes her considerable discomfort with prolonged data entry.” Dr Stabler recommended surgery.
Dr Pearce, orthopaedic surgeon, in a report dated 4 November 2005, addressed to Dr Reid, noted that the history and physical examination confirmed that Ms Mackell had evidence of degeneration of the right rotator cuff with calcification and she required arthroscopic acromioplasty and excision of the calcium deposits. He also stated that it was possibly workers compensation and he would support such a claim.
In a separate report dated 4 November 2005, Dr Pearce noted that Ms Mackell worked as a data entry clerk and had developed problems in her shoulder over three to four years. He diagnosed degeneration of the right rotator cuff and he believed that it was directly related to her work and recommended surgery. He estimated that Ms Mackell would be off work for about 6 weeks after the surgery and that it would be eight to ten weeks before she could resume full duties.
Dr Pearce reported to Dr Reid on 30 January 2006 that he had recently performed a subacromial decompression. The small piece of calcification seen on x-ray was not palpable or obvious at the time of the surgery.
In a report dated 5 July 2006, Dr Pearce noted that on presentation in November 2005, Ms Mackell was complaining of chronic pain in her right shoulder, which she related to work as a data entry clerk. She complained of aching in her shoulder with no specific single injury. He also noted that she was developing problems in her left shoulder. She reported that the data clerk work continued to aggravate her shoulder problems. X-rays and ultrasound at the time confirmed calcification in the supraspinatus tendon.
Dr Pearce recorded that the arthroscopic operation was conducted and confirmed a deep partial thickness tear of the supraspinatus tendon. He debrided the area, excised a significant subacromial bursa and performed an acromioplasty. He noted that there was no single collection of calcium at the time of surgery. He also noted that Ms Mackell had a manipulation under anaesthetic, which improved her shoulder function. She was keen to return to work and the doctor recommended a return to full duties on 1 June 2006.
Ms Mackell relies on Dr Fuller, orthopaedic surgeon, who examined her at Rinker’s request and prepared a report dated 6 June 2005. Dr Fuller obtained a consistent history. He noted that Ms Mackell had worked for 22 years in customer service and as an accounting assistant. She complained of developing right shoulder pain about two years prior to his examination. She denied any injury or disability and had not been engaged in sporting activities prior to the onset of shoulder symptoms. Her right shoulder ached. It was often worse at night and was quite painful after a day at work.
After a physical examination and reviewing the radiological report, Dr Fuller diagnosed calcific tendonitis. He believed that Ms Mackell’s shoulder complaints and disabilities were work related and substantially caused by her work at Rinker. Whilst he considered that she was fit for work, Dr Fuller recommended a 15-minute break from data entry work every hour, performing alternative duties such as filing. He noted her general practitioner had also made this recommendation. Dr Fuller recommended surgical removal of the calcification.
Dr Miller, specialist surgeon, examined Ms Mackell at her solicitor’s request and prepared a report dated 2 February 2007. Dr Miller recorded a history that Ms Mackell had worked for Rinker for 12 years, and during this time her work required constant data entry with frequent use of the keyboard. He noted that she had no other injuries. She was currently working as an administrative manager of a plumbing business and was able to cope with these duties.
Ms Mackell complained that over the last five years her workload had gradually increased due to staff reductions and eventually she was the only worker doing her job. She began to experience a burning sensation in the right upper arm, primarily at the end of a day’s work. She began to have difficulty sleeping and persevered with the pain until she reported it to her GP who diagnosed tendonitis. Dr Miller recorded her treatment with Dr Stabler, and that whilst Dr Stabler recommended surgery, he was not prepare to do it as a workers compensation patient. Ms Mackell sought a second opinion from Dr Pearce who also recommended and performed surgery, which demonstrated a torn supraspinatus tendon. Dr Pearce performed an acromioplasty and excised a subacromial bursa and at a later date performed a manipulation under anaesthetic.
Dr Miller noted that Ms Mackell had difficulty using her right arm above the horizontal and difficulty lifting with an outstretched arm. Activities of daily living are limited such as wiping benches, hanging washing, washing her hair and driving for more than two hours. He considered the condition stabilised and assessed an 8% Whole Person Impairment, from which he deducted 1% for pre-existing underlying constitutional changes.
Dr Miller prepared a supplementary report dated 28 November 2008, at Ms Mackell’s solicitor’s request after providing him with a copy of Dr Maxwell’s report dated 13 July 2006. He summarised the history he had previously recorded and noted that it was similar to that recorded by Dr Maxwell.
Under a heading “Cause of Injury”, Dr Miller noted that it would appear that Ms Mackell had degenerative changes in her right shoulder and the increased use of her right arm aggravated the problem. This was confirmed in the histories recorded by himself and Dr Maxwell. Further, he noted, that the fact that her symptoms improved over the weekend was also indicative that increased workload and use of her right arm aggravated the degenerative condition in her shoulder. There were no other aggravating features to account for the symptoms. She had genuine pathology, treated with steroid injections and surgery.
Dr Miller noted that the literature search conducted by Dr Maxwell, whilst it indicated that overuse at work was not the cause of calcific tendonitis, it did not address the issue of whether overuse of the arm could aggravate previously asymptomatic degenerative changes.
Dr Miller disagreed with Dr Maxwell’s conclusion that the condition would have developed regardless of her work. He observed that Dr Maxwell failed to provide an explanation for why Ms Mackell would have developed symptoms in her right shoulder if she pursued the activities she had prior to the injury when she was asymptomatic.
Rinker
Dr Stabler wrote to Rinker on 16 September 2005 stating that Ms Mackell had calcific tendonitis in her right shoulder, which he believed was a constitutional condition not related to her work duties. Although she experienced increased symptoms at work, work had not been an aggravating factor to the condition.
Dr Maxwell, orthopaedic surgeon, examined Ms Mackell at Rinker’s former solicitors’ request and prepared a report dated 13 July 2006.
Dr Maxwell recorded a history that in 1995, Ms Mackell’s workload started to increase because two other employees were made redundant. At that time she stated she was doing about 99% data entry work. In 2004 the company purchased 3 more plants and Ms Mackell was working 8 am to 4.30 pm with only a 10 minute lunch break. Symptoms of discomfort developed in her right arm about 3-4 years ago and she started using the mouse in her left hand. She worked full time until her surgery in January 2006. Dr Maxwell noted that when she was cleared to return to full time work she was made redundant.
The doctor recorded that prior to 2000 she had no pain in her shoulder, despite her heavy work load but three years ago, as her workload increased, she developed pain, which improved when she rested at the weekend. She complained that her arm would be painful with data entry work.
In 2005 her symptoms worsened and she consulted her GP. Dr Maxwell recorded a consistent history of her treatment thereafter.
Dr Maxwell concluded that although Ms Mackell felt her symptoms become worse during her work, he did not believe that her work was a substantial contributing factor to the pathological condition of calcific tendonitis. In particular he noted that there was no specific injury and the nature of her work had not really altered since 1995 until the onset of pain in 2000. He opined that in all probability the condition would have developed regardless of her work and was constitutional. He considered that an assessment of permanent impairment should be made at a later date, as he believed her range of movement would improve.
SUBMISSIONS AND DISCUSSION
Procedural Fairness
Documentary Evidence
The alleged breach of procedural fairness arising from the Arbitrator’s decision to permit the admission of late evidence of a report from Dr Miller dated 28 November 2008 and Ms Mackell’s statement dated 28 November 2008
Appellant’s submissions
The Appellant disputes that the Arbitrator could admit into evidence the supplementary report from Dr Miller dated 28 November 2008 and the statement from Ms Mackell dated 28 November 2008 at the teleconference in December 2008, because the teleconference was not part of the arbitration process, but part of the “off the record” conciliation process.
The Appellant relies on the following statement from the Arbitrator at the arbitration hearing as recorded at lines 25-30, page 39 of the transcript:
“ARBITRATOR: -- ‘and for the reasons that I’ve given, Dr Miller’s report was admitted. For the record, I need to say that the conciliation phase of any conciliation / arbitration is off the record. Can I say for the record that it is my usual procedure to clarify issues, to clarify any potential objections to witnesses and any objection to any evidence, and to my recollection that is what happened in this case. I am putting on the record what I did. I’m not putting on the record what was said by either party because of the confidential nature of those proceedings. I will leave it at that for the record.’”
If the documents were admitted, at the teleconference, there were no reasons given for their admission.
The admission of these documents over objection from the Appellant constituted a denial of procedural fairness.
The Appellant relies on submissions made at the arbitration hearing as recorded in the transcript at pages 11-15. They are summarised as follows:
(a) Mr Macken submitted that the Appellant objected to “All the documents, which were not served-filed and served with the Application to Resolve a Dispute.” (T13:47, T14:5).
(b) Dr Miller’s report was objected to on the basis that Dr Miller is a general surgeon and should be treated in the same way as an orthopaedic surgeon.
Ms Mackell’s submissions
Contrary to the Appellant’s submission that there were no reasons given for the admission of the documents into evidence at the teleconference, the Arbitrator did give reasons, which were contained in the Direction dated 10 December 2008.
The supplementary report from Dr Miller dated 28 November 2008 was admitted and the reasons for the admission of the report were also contained in the Direction dated 10 December 2008. The Arbitrator also gave reasons at the hearing. The decision of Deputy President Roche in Mackell (No.1) was relevant and was referred to by the Arbitrator.
Discussion and Findings
In conducting a review I have had regard to the whole Commission file including the Arbitrator’s record of the teleconference outcomes (See Fletcher International Exports Pty Limited v Barrow and anor [2007] NSWCA 244 at [101]-[104]).
At the first teleconference on 21 October 2008, Mr Crawford, solicitor, appeared for Ms Mackell and Mr Macken, solicitor, appeared for Rinker. The Commission’s records indicate that the matter was stood over to a further teleconference on 5 November 2008, primarily to enable Ms Mackell time to retain a barrister to advise her in relation to offers of settlement and for counsel to assist in the future conduct of the case, including addressing questions of evidence that remained at large.
On 5 November 2008 Arbitrator Duncombe conducted a further teleconference. The Commission’s records indicate that the parties advised the Commission that the matter could not be settled. The discussions at the teleconference were focused on a number of procedural and evidentiary issues including a foreshadowed statement by Ms Mackell and an application for a number of Directions for Production to be issued by Rinker. The Arbitrator gave Ms Mackell leave to file further evidence on or before 28 November 2008. She set the matter down for a further teleconference on 5 December 2008 to allow Rinker an opportunity to request any appropriate Directions for Production and to set a timetable for finalisation of the matter. The Arbitrator also requested the Commission file of the previous proceedings (WCC7972-06).
At the teleconference on 5 December 2008, both parties were represented. The Commission’s records indicated this teleconference occupied two hours and was devoted to procedural issues only. No further settlement offers were made. A number of issues were discussed, including Rinker seeking and being granted leave to issue Directions for Production on a number of entities. Rinker was refused leave to issue Directions for Production on Ms Mackell’s solicitor and the Commission. A ‘Directions For Production – Orders’ dated 10 December 2008 was issued to the parties detailing the orders made.
At this teleconference the parties also requested access to the previous Commission file (WCC20126-05). Mr Macken also indicated that he may wish summons Ms Lynch, the Commission staff member and delegate of the Registrar, who had made the determination in the previous Interim Payment Direction. Mr Macken also indicated that Rinker may call four witnesses. The statement of Ms Mackell dated 28 November 2008, was admitted over objection by Mr Macken, and the supplementary medical report of Dr Miller of the same date was also admitted over objection. Rinker was given leave to file further evidence in reply to these late documents on or before 4 February 2009 and arrangements were made to set the matter down for a full day conciliation and arbitration hearing in Ballina.
After the teleconference on 5 December 2008 the Arbitrator issued a Direction dated 10 December 2008. The Direction contained orders and reasons. The Orders and Reasons in that Direction are as follows:
“1.The supplementary statement of the Applicant dated 28 November 2008 is admitted.
2. The Supplementary report of Dr G. Miller dated 28 November 2008 is also admitted.
3. The Respondent has leave to file and serve evidence in reply to the supplementary statement and/or report of Dr Miller on or before 4 February 2009.
4. The Respondent must file and serve a list of all issues which it has raised or will seek leave to raise in its defence on or before 16 January 2009.
5. The matter is set down for conciliation/arbitration in Ballina on 10 February 2009.
REASONS
The Respondent requested reasons for the admission of the late evidence referred to above. The parties are aware that this matter has been the subject of a prior determination in the Commission. That determination was appealed. On 19 September 2008 Deputy President Roche allowed the appeal and made some suggestions about the future carriage of that matter. Those suggestions included a statement that ‘it may be prudent … for the taking of a detailed statement from Ms Mackell’. While I am not bound by this suggestion, it is persuasive and I decided at the teleconference that it was in the interests of justice to allow the statement. Any prejudice to the Respondent can be cured by allowing time for a response to that additional evidence.
The updated report of Dr Miller is permissible pursuant to Regulation 43AA of the 2003 Regulations (as amended).” (emphasis added)
Rinker’s solicitor’s submission that his records fail to reveal the evidence referred to at [96] above, was admitted at the teleconference, is clearly wrong. The Direction dated 10 December 2008, which the Commission sent by facsimile transmission to both Rinker’s solicitors and Ms Mackell’s solicitors on the day it was issued contained the details of the Arbitrator’s orders and the reasons for her decision to admit the documents. These reasons were provided at Rinker’s request. Rinker’s submission that no reasons were given is clearly unsustainable.
Rinker’s submission that the teleconference is not part of the arbitration process but part of the “off the record” conciliation process was not developed and no authority was given in support of it.
It is accepted and common practice for arbitrators in this Commission to use the teleconferences for two purposes. First, to explore the possibility of the parties reaching a settlement of the dispute. Second, if the matter cannot be resolved, the teleconference is used to case manage a matter including addressing and ruling on procedural issues including applications for the admission of late evidence, the issuing of Directions for Production, applications to call oral evidence, the identification of issues upon which the parties agree, and the narrowing of the issues in dispute in order to ensure that matters are ready for hearing by the time they are listed for arbitration hearing.
This practice is reinforced in the Registrar’s guideline “Guideline for the Practice of the Conciliation/Arbitration Process”. The version current and applicable at the time of the teleconferences was the Guideline dated April 2007 (‘2007 Guideline’). The guideline was republished in January 2009 (‘2009 Guideline’). The 2009 Guideline was applicable at the time of the conciliation/arbitration held in February 2009. The Guideline is published on the Commission website.
The 2007 Guideline details a “Protocol for Telephone Conference”. This includes, inter alia, clarifying and reducing the issues in dispute between the parties, dealing with issues arising in respect of the limitation of the number of medical reports which may be relied upon by each party, and considering any applications made by a party, for example, applications to admit late evidence and applications for the issue of Directions for Production.
The procedure adopted by the Arbitrator in this case was consistent with the usual practice of this Commission and was also consistent with Rule 15.1 of the Workers Compensation Commission Rules 2006, (‘the Rules’) which reads:
“15.1 Procedural orders by Arbitrators
(1)Where proceedings are referred to an Arbitrator, the Arbitrator may, while the referral continues, make any order relating to the procedure to be followed in the proceedings (including an order striking out the proceedings or any step in the proceedings) that could be made by the Registrar.”
Ms Mackell’s solicitors wrote to the Commission on the 28 November 2008 to confirm they served Rinker with Ms Mackell’s signed statement dated 28 November 2008, under cover of letter of the same date. Therefore Rinker had been on notice of the content of Ms Mackell’s signed statement for 2½ months before the arbitration hearing. Further, orders were expressly made in the Direction dated 10 December 2008, giving Rinker leave to file and serve, on or before 4 February 2009, evidence in reply to Ms Mackell’s statement and/or the report of Dr Miller.
I reject the submission that Rinker was denied procedural fairness by reason of the fact that procedural matters, including the admission into evidence of late documents, were made at the teleconference. The orders made by the Arbitrator on 10 December 2008 were appropriate, having regard to the background of the matter, including the determination of the Deputy President in Mackell (No.1), the relevance of the evidence admitted, and the granting of leave to Rinker to file evidence in reply. The procedure adopted by the Arbitrator was consistent with usual case management practices of the Commission. It was in complete accord with the 2007 Guideline. Noting that the initial Application was filed in April 2007, it was quite appropriate for the Arbitrator to consider and rule on any procedural issues at the teleconference, to ensure that the matter was able to proceed at the next hearing without any unnecessary delays occasioned by procedural applications at the hearing and to minimise the risk of any further adjournment applications.
In so far as Dr Miller’s report of 28 November 2008 is concerned, I note that his original report of 2 February 2007 was served with the Application to Resolve a Dispute, initiating these proceedings on 19 April 2007. Clause 43AA of the Regulation provides for the admission into evidence of supplementary reports. It provides:
“(1) Despite clauses 43 and 43A, a medical report other than the original report (a supplementary report) may be admitted if:
(a)it has the purpose of clarifying the original report, for example, where it can be shown that there has been some omission in relation to the material originally provided that could lead to an opinion in the original report being expressed on the basis of inaccurate or incomplete information, and
(b) it does not go outside the parameters of the original report, but merely confirms, modifies or retracts an opinion expressed in the original report.”
In Mackell (No.1), Deputy President Roche, confirmed that Ms Mackell was entitled to rely on the report from Dr Miller but must select which orthopaedic surgeon she would rely (see Mackell (No.1) at [65]-[67]).
The application of clause 43AA of Regulation was recently considered in Toplis v Coles Group Ltd t/as Coles Logistics [2009] NSWWCCPD 70 where it was held at [59]-[60]:
“59. Regulation [sic-Clause] 43AA allows a supplementary report where that report has the purpose of clarifying the original report, but the supplementary report must not go outside the parameters of the original report. It must merely confirm, modify or retract an opinion expressed in the original report. The example given in clause 43AA(1)(a) is only one illustration and is not the only situation where a supplementary report will be permitted.
60. Whether the supplementary report comes into existence as a result of a request to respond to another expert’s opinion does not matter. It is common practice for a doctor to be asked to confirm, modify or retract his opinion in the light of the evidence from an expert retained by the other side and a report prepared in response to such a request will come within the terms of clause 43AA if, in light of the opposing expert’s opinion, it clarifies the opinion expressed in the original report. Not only is that practice within the terms of clause 43AA, it is an accepted and appropriate method of eliciting probative evidence that will enable the Commission to determine matters according to their substantial merits.”
The supplementary report of Dr Miller dated 28 November 2008, came into existence as a result of a request to respond to, and comment on, Dr Maxwell’s opinion. In light of the opposing expert’s opinion, Dr Miller considered Dr Maxwell’s views and confirmed his opinion on causation. In my view Dr Miller’s report of 28 November 2008 falls squarely within clause 43AA and is admissible.
Rinker submits “if the conciliation phase of the arbitration is ‘off the record’ the admission of documents into evidence at that phase, is an error and a denial of procedural fairness”. This submission is in reference to the extract from the transcript on page 39 in [97] above.
This is a somewhat disingenuous submission. I understand the Arbitrator’s comment to mean that it is her usual practice not to record confidential discussions in relation to settlement. Where it is clear however, that the matter cannot be resolved, the teleconference is used to resolve outstanding procedural issues and hear any submissions in relation to the admission or rejection of evidence. That is precisely what occurred in this case. Consistent with the usual practice, the Arbitrator placed on record her orders and indeed her reasons (at Rinker’s request) for the procedural orders and directions that were given but did not disclose the confidential discussions between the parties as to settlement.
The teleconference on 5 December 2008, occupying almost two hours, was exclusively devoted to procedural issues. There were no offers of settlement at that conference. Mr Macken is an experienced practitioner in this jurisdiction and is, or should be, well aware that except for confidential discussions in relation to settlement, any orders or directions made at the telephone conference form part of the formal record and orders of the Commission. Indeed, at this same teleconference he made an application on his client’s behalf to issue Directions for Production on a number of entities. A Direction and Order, granting leave to issue some of these Directions for Production and refusing leave to issue others, was issued to the parties under cover of the same letter enclosing the Direction and Reasons referred to in [108] above. Rinker acted on the orders and issued a number of Directions for Production.
This ground of appeal fails.
The Arbitrator’s alleged breach of procedural fairness in restricting the number of forensic reports on which Rinker could rely. Rinker was required to choose to rely on either Dr Blue or Dr Maxwell.
Appellant’s submissions
The Appellant submits that the refusal to admit the evidence of Dr Blue constituted a denial of procedural fairness.
The Appellant relies on the submissions made by Mr Macken at the arbitration hearing as they appear on pages 30 and 31 of the transcript. They can be summarised as follows:
(a) the arbitration hearing was the first time Ms Mackell objected to the admission into evidence of the two reports (Dr Maxwell ad Dr Blue);
(b) no objection had been made at the earlier arbitration hearing and the matter had been the subject of a Presidential appeal and remitted for re-determination;
(c) it is inappropriate for the objection to be taken on the arbitration date without any prior opportunity for Rinker to “consider or address the significant consequence of the objection if successful” ( T30, line 22);
(d) Rinker could have redressed omission of one or other of those reports, had the objection been made prior to the arbitration hearing;
(e) if forced to elect which report to rely on Dr Blue provides an assessment of impairment but Dr Maxwell does not. Given the late objection Rinker is unable to approach Dr Maxwell for an assessment of impairment;
(f) whilst Drs Maxwell and Blue are both orthopaedic surgeons, Dr Maxwell is also a spinal surgeon. Given the late objection, Rinker was not in a position to provide details of Dr Maxwell’s qualifications, specialty or subspecialty;
(g) at (T31, line 24-35) Mr Macken submitted:
“Now, with respect, Arbitrator, it is not simply a case of coming to the Commission and saying, ‘Oh, well, look, one of our reports is going out so you'd better just make sure one of theirs goes too.’ That’s not the approach. If there’s an objection to a report, that objection should have been made at least eight months ago, if not 12 months ago, a substantial period of time ago, so that the respondent was on notice that some aspect of the evidence already admitted in these proceedings back in April of 2008 was now going to be the subject of an attempt to have it excluded. Now, with respect, that is obviously and patently unfair to the respondent.” (emphasis added)
(h) both the reports were admitted into evidence before the former arbitrator in the Commission proceedings. In respect of the previous appeal (Mackell (No.1)) Mr Macken submitted:
“…the Presidential Member did not revoke Arbitrator Hertzberg’s determination to admit these reports in the proceedings. He admitted them. They are admitted. They are in the Commission proceedings.
What my friend seeks to do is to revisit the admission of those reports and now have them excluded, having raised that for the first time today. So, with respect, that’s the first thing: they’re already admitted.” (T32, 33), and
(i) the refusal by the Arbitrator to admit into evidence Dr Blue’s report, in circumstances where the Arbitrator admitted the report of Dr Miller, constituted a denial of procedural fairness.
Ms Mackell’s submissions
The Arbitrator considered in detail and gave lengthy reasons for restricting Rinker’s forensic reports (see Transcript page 36 and 37) and made reference to Mackell (No.1).
The Deputy President in Mackell (No.1) dealt with this issue at pages 13 to 15. At [68] the Deputy President concluded:
“Naturally, Regulation 43 [sic-clause 43] also binds Rinker and I note Drs Blue and Maxwell are both orthopaedic surgeons.”
The Appellant was clearly on notice as to the necessity to make an election as to which doctor it relied.
Discussion and findings
Essentially Rinker seeks to argue that it can rely on both Dr Blue’s reports dated 7 February 2007 and 14 March 2007, and Dr Maxwell’s report dated 13 July 2006, absent a timely objection and ruling on the issue. Failing that, it can selectively rely on one forensic expert in the arbitral proceedings and the other forensic expert for the purposes of the assessment by an Approved Medical Specialist (‘AMS’).
In Mackell (No.1), Rinker, relying on the mandatory requirement in clause 43 of the Regulation, successfully challenged the Arbitrator’s admission into evidence Ms Mackell’s, two forensic medical reports from Drs Fuller and Wallace on the ground that they were both orthopaedic surgeons. In the current appeal, Rinker now seeks to escape the application of that very same requirement.
Clause 43 of the Regulation provides:
“(1)In any proceedings on a claim or a work injury damages threshold dispute in relation to an injured worker, only one forensic medical report may be admitted on behalf of a party to proceedings.
A report referred to in subclause (1) must be from a specialist medical practitioner with qualifications relevant to the treatment of the injured worker’s injury.
Where the injury has involved treatment by more than one specialist medical practitioner, with different qualifications, then an additional forensic medical report may be admitted from a medical practitioner with qualifications in that specialty.
In this clause:
forensic medical report:
(a)means a report from a specialist medical practitioner who has not treated the worker and has been obtained for the purpose of proving or disproving an entitlement, or the extent of an entitlement, in respect of a claim or dispute, and
(b)includes a medical report provided by a specialist medical practitioner in respect of an examination of the injured worker pursuant to section 119 of the 1998 Act.” (emphasis added)
The Regulation took effect on 1 November 2006 and applies to all claims lodged with the Registrar on or before that date. However clause 48A provides:
“48A Further transitional provision
(1) In this clause:
‘the amending Regulation’ means the Workers Compensation Amendment (Miscellaneous Provisions) Regulation 2006 .
(2) The amendments made to this Part by the amending Regulation do not affect the use of a medical report in evidence in proceedings or as part of disclosure to an approved medical specialist where the report relates to an application lodged with the Registrar prior to 1 November 2006.
(3) The amendments made to this Part by the amending Regulation apply to all claims or work injury damages threshold disputes lodged with the Registrar on and from 1 November 2006.
(4) Despite subclause (3), where the medical examination to which the relevant medical report relates occurred before 1 November 2006, this Part, as in force immediately before 1 November 2006, continues to apply in respect of the report if the report:
(a) formed part of an application lodged with the Registrar prior to 1 December 2006, or
(b) formed part of a reply filed in respect of such an application within 21 days of the application being lodged.(5) …” (emphasis added)
The Regulation in force immediately prior to 1 November 2006 provided that “only one report in any particular specialty may be admitted on behalf of a party to the proceedings”.
The Deputy President in Mackell (No.1) at [67] held that Arbitrator Hertzberg was in error in admitting reports from Drs Wallace and Fuller. The Deputy President confirmed that the clause required that Ms Mackell must elect which of those doctors she wished to rely upon at the further hearing of the matter, either Dr Wallace or Dr Fuller but not both. He went on to note (at [68]) that the same clause binds Rinker and that Drs Maxwell and Blue were both orthopaedic surgeons.
At the arbitration hearing Rinker objected to being required to elect between Dr Maxwell and Dr Blue principally on the basis that the objection had not been foreshadowed prior to the arbitration hearing in Ballina on 10 February 2009.
Arbitrator Duncombe heard lengthy submissions on this issue. Whilst she conceded that it would have been preferable for Ms Mackell’s legal representatives to have raised their objection at one of the several telephone conferences, their failure to do so was ultimately of little relevance. As the Arbitrator correctly held, compliance with clause 43 is mandatory. There is no discretionary power to be exercised.
Whether or not Rinker had been placed on notice that Ms Mackell would press compliance was irrelevant. Rinker was on notice of the mandatory nature of the clause, which prescribes the number of forensic reports that may be admitted into evidence, indeed, Rinker relied on it in Mackell (No.1). In seeking to enforce compliance with clause 43, against Ms Mackell, at the first arbitration hearing Mr Macken submitted (arbitration hearing 16 April 2008 at T5.4):
“Just, with respect, my submission is you don’t have a discretion. The Act is specific, the regulation is specific and it doesn’t provide for a discretion.”
The Deputy President’s warning in Mackell (No.1) that clause 43 would prevent the reports of both Drs Blue and Maxwell being admitted in evidence was disregarded. Mr Macken dismissing it as a “Presidential throw-away line” (T35.6).
Rinker submitted to the Arbitrator that it would be prejudiced if it were required to elect between relying on Dr Maxwell or Dr Blue because Dr Blue’s report addressed the assessment of Ms Mackell’s whole person impairment whilst Dr Maxwell’s report did not. The Arbitrator was not persuaded that there was any prejudice to Rinker and, on review, nor am I.
Rinker had the benefit of two forensic experts reports, both of which addressed issues that were before the Arbitrator. The fact that Dr Maxwell failed to make any assessment of whole person impairment was a matter that Rinker could have remedied well before the arbitration hearing by having him provide such an assessment. Moreover, if Rinker was successful on the question of causation, Ms Mackell’s application would fail completely and the matter would end there. If however, Rinker was not successful, it was fully aware that the matter would proceed to an assessment of whole person impairment by an AMS on referral from the Registrar.
Mr Macken’s submission to the Arbitrator that the reports of both Dr Blue and Dr Maxwell were already in evidence because they had been admitted in the proceedings before Arbitrator Hertzberg is unsustainable in light of Deputy President Roche’s decision in Mackell (No.1), which revoked the whole of Arbitrator Hertzberg’s determination and remitted the matter to a different arbitrator for re-determination.
Ms Mackell submits that the appeal should be dismissed with costs.
Discussion And Findings
Whilst I accept that the reference in paragraph 71 of the Arbitrator's decision “... 3-4 times per year...” is an incomplete reference to Ms Mackell’s history of playing tennis three or four times a year there is no doubt that the Arbitrator clearly understood that to be the history, and had regard to it in her decision.
At [20]–[21] of Ms Mackell’s statement (referring to a question from Dr Reid about activities of daily living), Ms Mackell said that apart from daily activities such as cleaning the house the only thing she could think of was playing social tennis 3 to 4 times per year. She said that she generally played with the children, she never played competitively or regularly and never injured her shoulder playing tennis.
The Arbitrator made reference to the evidence about tennis at [85], quoting from Rinker’s submissions. The Arbitrator again made reference to the history of playing tennis at [95] of her Reasons in dealing with the submission by Rinker that Dr Miller was wrong to suggest that there were no other aggravating factors in the worker’s lifestyle. The Arbitrator made two further references to tennis at [128] of her Reasons where she weighed the evidence concerning tennis in determining the section 9A issues.
I reject the submission that the Arbitrator failed to have regard to the evidence that Ms Mackell played social tennis three or four times a year. The Arbitrator clearly had regard to it but rejected it as a cause or aggravation of Ms Mackell’s injury. This was a conclusion that was not only open to the Arbitrator but was the only conclusion that she could reach as there was no evidence, expert or otherwise, to support a conclusion that Ms Mackell’s injury was caused or aggravated by playing tennis. I also reject the submission that she failed to give adequate reasons concerning this aspect of the decision.
Ms Mackell gave contradictory evidence concerning the first onset of symptoms. At [16] of her statement she said that she started to get a burning sensation in her right upper arm and shoulder in about 2002. At [53] she said that the onset of pain and problems occurred in about 2003. Ms Mackell first sought medical treatment for her condition from Dr Reid on 12 May 2005.
In May 2005, Ms Mackell told Dr Reid that she had been experiencing discomfort for over two years, which would be consistent with the development of symptoms in 2003 not 2002. Ms Mackell also told Dr Fuller in June 2005 and that “about 2 years ago” she noticed pain in her right shoulder, which is also consistent with symptoms commencing in 2003. Indeed, Dr Maxwell, in his report of 13 July 2006 to Rinker’s solicitors, noted “She stated that about three years ago as her workload increased she gradually developed pain in her right shoulder...” which again is consistent with the claim as pleaded.
I accept, however, that the initial history provided to Dr Miller is more consistent with a 2002 onset of symptoms. (Ms Mackell provided a history of events occurring 2 to 3 years prior). She has done so to the best of her recollection without the benefit of any contemporaneous notes. It is unsurprising that the histories vary slightly.
Ms Mackell’s evidence of the type of work she did and the volume of work was not challenged. Ms Mackell was not cross-examined about it. Rinker called no evidence to rebut it.
The submission that the opinion of Dr Miller might be different had he had been aware that the period of employment relied on by Ms Mackell commenced in 2003 rather than 2002 is mere speculation. It cannot have any substance in so far as Dr Fuller is concerned, because his history suggests that he was aware of the onset of symptoms in 2003.
The Commission is not bound by strict pleadings (Far West Area Health Service v Colin Robert Radford [2003] NSWWCCPD 10). Disputes are to be determined according to their substantial merits (section 354(3) of the 1998 Act). The nature of the dispute in this matter was well defined, particularly having regard to the history of the matter. In so far as Dr Fuller’s report is concerned the history he relied upon is consistent with the period identified in the Application to Resolve a Dispute. In so far as Dr Miller is concerned the history he relied upon is sufficiently like the case pleaded to support his opinion, Paric v John Holland (Constructions) Pty Ltd [1984] 2 NSWLR 505.
Rinker submits there is an inference to be drawn that the evidence of Dr Pearce “would not assist the worker”. The submission is put on the basis that a report was not obtained from Dr Pearce after Ms Mackell’s operation in circumstances where “the findings at operation which appear to be inconsistent with the diagnosis relied on prior to the operative treatment”.
There is no reasonable basis for such an inference to be drawn. In his report of 4 November 2005, Dr Pearce diagnosed degeneration of the right rotator cuff with calcification. He clearly expressed his opinion that the condition was directly related to the type of work Ms Mackell had been doing. He went further by saying that he would be prepared “to back” her worker’s compensation claim.
On 17 January 2006 Dr Pearce performed an acromioplasty and excision of calcification. He also found a deep partial thickness tear of the supraspinatus tendon. The area was debrided and a significant subacromial bursa was excised. Apart from the absence of one single significant collection of calcification, the findings at operation were consistent with the pre-operative diagnosis of degeneration of the right rotator cuff with calcification.
Dr Pearce prepared five further reports after performing the surgery. Although he had the opportunity to do so he did not alter his opinion.
Rinker submits that a proper analysis of the medical evidence would have resulted in the Arbitrator preferring the opinions of Drs Maxwell and Stabler. The Arbitrator dealt with this submission at length in her Reasons at [110]-[116].
Dr Stabler, in his report of 16 September 2005, expressed the view that Ms Mackell suffered from calcific supraspinatus tendonitis of the right shoulder. He expressed the view that the condition was constitutional and unrelated “to the claimants duties at all”.
The evidence establishes that Ms Mackell’s symptoms started at work during the period claimed. She first noticed symptoms when her arm was outstretched with her right hand on the numerical portion of the keyboard. She worked under significant pressure. Her workload had increased following the termination of other staff.
The evidence also established that Ms Mackell quickly developed pain after the start of the working week. There was a continuity of symptoms against the background of an exceptionally heavy workload. Her symptoms abated when she was away from the workplace.
There is undeniable evidence of Ms Mackell suffered degenerative changes in her right shoulder these were confirmed both radiologically and at operation.
There is no evidence that she engaged in any other activity, outside of her employment with Rinker, to cause or aggravate her condition.
These, in my view, are powerful reasons for preferring the evidence of Drs Miller, Pearce, Fuller and Reid to Drs Maxwell and Stabler.
Rinker’s challenge to the Arbitrator’s decision on the basis that she referred at [122] to the evidence of “Dr Wilson” is specious. This is clearly a typographical error and is a reference to Dr Miller. At [116] the Arbitrator summarised the evidence in favour of Ms Mackell referring to Drs Fuller, Miller and Pearce. There was no evidence relied upon from a Dr Wilson.
The Appellant’s submission that the Arbitrator was in error, “regarding her consideration of the issues relevant to the disease provisions, including the Deemed Date of Injury and the identity, relevantly, of the last Employer” is made without any authority or submissions in support.
At page 10 of the written submissions before the Arbitrator, Rinker further submitted
“The Respondent again notes, however, that the current allegation of injury does not correlate to any matter which has been the subject of any previous application, or claim, so that, in these circumstances, the Deemed Date of Injury (without conceding issues of injury etc have been made out), would be the Date of Claim (whether the matter was considered by reference to either Section 15 or Section 16)”.
Rinker went on to submit that the deemed date of Ms Mackell’s injury post dates commencement of her current employment such that the Commission should determine that liability should rest with the subsequent employer and enter an award for Rinker.
In Mackell (No.1) Deputy President Roche considered essentially the same argument. In those proceedings Ms Mackell relied on the nature and conditions of her employment between 1993 and January 2006, whereas in the present proceedings the period relied is from 1 March 2003 to 16 January 2006. The Deputy President found that Ms Mackell’s injury, within the meaning of section 4, occurred between 1993 and January 2006. Because the worker was incapacitated as a result of the injury, section 16 deemed her injury to have occurred at the time of her incapacity (17 January 2006). If no incapacity had resulted from the injury then the deemed date of injury would have been the date the claim for lump sum compensation was made. I respectfully agree and adopt the Deputy Presidents reasoning at [132-142].
In this case the Arbitrator at [124] of her Reasons found that Ms Mackell suffered injury, being the aggravation, acceleration, exacerbation or deterioration of the disease condition of calcific tendonitis to which her employment was a substantial contributing factor. For the reasons given by the Arbitrator, I agree with that conclusion.
As incapacity has resulted from the injury it follows that the deemed date of injury is 17 January 2006, the date Ms Mackell was first incapacitated by reason of the injury. It follows, that the date of the claim for lump sum compensation (16 February 2007) is irrelevant.
If I am wrong as to the deemed date of injury, it would be necessary to consider whether the Ms Mackell’s employment with the subsequent employer Sidney Richardson Plumbing substantially contributed to the aggravation, acceleration, exacerbation or the deterioration of the disease. Ms Mackell’s evidence is that her duties are varied. She answers telephones, takes job orders and prepares accounts and quotations. She claims her duties involve manual work as opposed to operating a keyboard. The volume of keyboard work is only 1/10th of that at Rinker. The keyboard work she does involved using the whole keyboard not just the numerical keys. She stated at [51] of her statement that she does not have any significant problems at work with Sidney Richardson Plumbing with regard to her shoulders. I find that there is no medical or other evidence to support a finding that Ms Mackell has suffered injury, or aggravation of any pre-existing condition whilst employed by Sidney Richardson Plumbing.
CONCLUSION
Having conducted a review on the merits (per Spigelman CJ in State Transit Authority of New South Wales v Fritzi Chemmler [2007] NSWCA 249; (2007) 5 DDCR 2878 at [28]), I am satisfied that Ms Mackell suffered injury, namely the aggravation of calcific tendonitis and degenerative changes in her right shoulder to which her employment was a substantial contributing factor. I confirm the Arbitrator’s finding that the deemed date of injury is 17 January 2006.
The current matter is limited to a dispute over an amount of $8,750.00 in lump sum compensation under section 66. These proceedings have now dragged on in excess of two years. Ms Mackell has submitted to two conciliation and arbitration hearings, both of which took place in Ballina, two assessments by an Approved Medical Specialists, one Medical Appeal Panel assessment, numerous telephone conferences and two arbitral appeals.
The approach taken by Rinker and its legal advisers in the conduct of these proceedings has, in my opinion, unnecessarily delayed and frustrated the resolution of the matter and has occupied a disproportionate amount of the Commission’s time and resources.
DECISION
The appeal is dismissed. The decision of the Arbitrator of 23 March 2009 is confirmed.
COSTS
The Appellant is to pay the Respondent’s costs of the appeal.
His Hon. Judge Keating
President
12 August 2009
I, MELANIE CURTIN, 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
5
5
0