Roads & Traffic Authority v Wilson
[2006] NSWWCCPD 299
•8 November 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Roads & Traffic Authority v Wilson [2006] NSWWCCPD 299
APPELLANT: Roads & Traffic Authority
RESPONDENT: Michele Louise Wilson
INSURER:Treasury Managed Fund
FILE NUMBER: WCC10687-05
DATE OF ARBITRATOR’S DECISION: 14 October 2005
DATE OF APPEAL DECISION: 8 November 2006
SUBJECT MATTER OF DECISION: Section 9A and section 38 of the Workers Compensation Act 1987; findings of credit.
PRESIDENTIAL MEMBER: Acting Deputy President Tydd
HEARING:On the papers
REPRESENTATION: Appellant: Thompson Cooper Lawyers
Respondent: Jones Staff & Co Lawyers
ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 14 October 2005 is confirmed.
The Appellant employer is to pay the Respondent worker’s costs of the appeal.
BACKGROUND TO THE APPEAL
Employment and Injuries
Michele Louise Wilson (‘Ms Wilson’) is a 34 year old woman who has been employed by the Roads and Traffic Authority (‘the Authority’) since 1990. Ms Wilson was employed by the Authority as a Registry Services Officer and in 1997 she progressed to the position of Acting Supervisor/Manager at the North Sydney Registry which was a particularly busy registry. In 1998 Ms Wilson was permanently appointed to that position. Notwithstanding her managerial position Ms Wilson was required to undertake some counter work and the batch registration of vehicles for car dealerships which required repetitive data entry.
Ms Wilson developed pain in both hands, worse on the left particularly in the middle finger, and pain in both elbows from about June 2003 for which she consulted her general practitioner Dr Tayeh on 30 January 2004. Dr Tayeh recommended that she did not type. The Authority was unable to provide her with work that did not include the use of a keyboard and data entry. Accordingly she stopped work on 3 February 2004 and underwent surgical carpal tunnel decompression on the right wrist on 11 June 2004. She was then certified fit for restricted duties on 30 July 2004 and the Authority was not able to provide suitable duties until on or about 24 October 2004 when she returned to work for four hours per day three days per week.
The Application to Resolve a Dispute
On 4 July 2005, Ms Wilson lodged an ‘Application to Resolve a Dispute’ (WCC10687-05) with the Workers Compensation Commission (‘the Commission’) naming the Authority as the Respondent. Ms Wilson sought weekly compensation from 3 March 2003 to date and continuing in the sum of $1039.43 per week and a general order for medical and related expenses pursuant to section 60 of the Workers Compensation Act 1987 (‘the 1987 Act’). Ms Wilson claimed that she suffered an injury to both hands; wrists, and elbows in the form of carpal tunnel syndrome as a result of undue stress and strain placed on her hands; wrists, and elbows as a result of her duties with the Authority. Ms Wilson claimed that the injury occurred on or before 30 January 2004.
In a Reply to the application dated 25 July 2005 the Authority disputed the claim on the basis that Ms Wilson had not sustained an injury and her employment was not a substantial contributing factor. The Authority disputed the weekly compensation claimed and the claim for medical and related expenses.
On 12 September 2005 a teleconference was conducted before a Commission Arbitrator (‘the Arbitrator’) at which time Directions were made extending the time for lodgement of documents and the matter was set down for conciliation/arbitration on 14 October 2005. On that day the matter was not resolved and the hearing proceeded. The Arbitrator delivered an ex tempore decision at the hearing and issued a ‘Statement of Reasons – Extempore Orders’ dated 14 October 2005.
Lodgement of the Appeal
On 11 November 2005 the Authority sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Commission against a decision of the Arbitrator, dated “18 [sic- 14] October 2005”. The Authority’s insurer is Treasury Managed Fund.
The Respondent to the Appeal is Ms Wilson.
THE DECISION UNDER REVIEW
The ‘Statement of Reasons – Extempore Orders’ dated 14 October 2005 records the Arbitrator’s orders as follows:
“1. The Respondent is to pay the Applicant the following weekly sums:-
· $1,039.43 per week from 4 March 2004 to 1 July 2004 pursuant to the provisions of s. 36 of the 1987 Act.
· $1,081.00 per week from 2 July 2004 to 30 July 2004 pursuant to the provisions of s. 36 of the 1987 Act.
· $864.80 per week from 1 August 2004 to 24 October 2004 pursuant to the provisions of s. 38 of the 1987 Act.
· $328.90 per week from 25 October 2004 to 31 March 2005 pursuant to the provisions of s. 40 of the 1987 Act.
· $334.10 per week from 1 April 2005 to 30 September 2005 pursuant to the provisions of s. 40 of the 1987 Act.
· $340.90 per week from 1 October 2005 to date and continuing.
2. The Respondent is to pay the Applicant’s section 60 expenses upon production of accounts and/or receipts and HIC charge.
3. The Respondent is to pay the Applicant’s costs as agreed or assessed.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are:
·Whether the Arbitrator erred in finding that Ms Wilson’s employment was a ‘substantial contributing factor’ in accordance with section 9A of the 1987 Act;
·Whether the Arbitrator failed to properly assess Ms Wilson’s evidence, and
·Whether the Arbitrator erred in determining the award for weekly compensation pursuant to section 38 of the 1987 Act.
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 Authority submits that the matter is capable of being dealt with on the papers. Ms Wilson seek to be heard on appeal if leave is granted as “The oral evidence and the documentary evidence are voluminous and involve potentially complex questions of fact and law and an oral hearing would assist in determining the matter” and “Justice is more readily done on hearing oral argument than a determination on the papers.” Further submissions in support of the request for a formal hearing are not provided by Ms Wilson.
In determining whether a conference or formal hearing is required I have regard to the parties’ submissions. However the only argument in support of the request for a hearing is Ms Wilson’s submission set out above. Both parties are legally represented and have filed lengthy submissions on appeal which refer to the issues in dispute and the relevant authorities concerning the appeal. These submissions have been served. Neither party has made an application to make further written submissions. In my view, the parties are, or ought to be aware of the substantive issues in dispute between them, the issues in contention on appeal and the risks in relation to an adverse finding inherent in the issues raised on appeal. I have been provided with all of the evidence before the Arbitrator and a transcript of proceedings. In my view, the evidence is not voluminous such as to require an oral hearing as submitted by Ms Wilson. Having considered the submissions, the Arbitrator’s reasons and all of the evidence before the Arbitrator, I am satisfied that I have sufficient information within the meaning of section 354 of the 1998 Act and in accordance with Practice Directions 1 and 6 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 amount of compensation at issue on the appeal is determined by reference to the amount of any monetary award made by the Arbitrator (Grimson v Integral Energy [2003] NSWWCCPD 29). The dispute before the Arbitrator was a claim of compensation of $1039.43 per week from 3 March 2004 and continuing. I am satisfied that the amount of compensation at issue on appeal is at least $5,000.00. The Arbitrator awarded weekly payments of weekly compensation from 4 March 2004 and the Authority disputes the entire award. Therefore I am also satisfied that the amount of compensation at issue is at least 20% of the amount awarded in the decision appealed against. I am satisfied that the requirements of Section 352(2) of the 1998 Act have been met.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
Leave to appeal is granted.
EVIDENCE AND SUBMISSIONS
The Authority’s submissions
The Authority submits that the Arbitrator erred in his application of the evidence in finding that employment was a ‘substantial contributing factor’ pursuant to section 9A of the 1987 Act in that:
·the Arbitrator awarded Ms Wilson “weekly compensation from 4 March 2004 to date and continuing. This is a significant ongoing award as [Ms Wilson] is only 33 years old”;
·Dr Stapleton opined that Ms Wilson’s development of carpal tunnel syndrome was constitutional and provided a “reason and basis for his opinion”. Dr Stapleton’s study into carpal tunnel syndrome has been accepted for publication by the Royal Australasian College of Surgeons. Further he is the only doctor who provided a report in this matter who was a hand surgeon and therefore more weight should be given to his opinion than that of Dr Bertouch, a rheumatologist;
·the Arbitrator was “incorrectly critical of Dr Stapleton’s reports” and “implied that Dr Stapleton had not set out proper facts and circumstances on which he based his opinion.”, and
·the prior findings of the Compensation Court of NSW in other matters that carpal tunnel syndrome is work related this “does not mean that this finding should automatically be made” in every case as medical evidence changes as is demonstrated by Dr Stapleton’s recent study.
The Authority also submits that Ms Wilson’s work at her boyfriend’s restaurant should impinge on her credit as she only “conceded that she worked in the restaurant when witnessed in the shop assisting for two hours”. Additionally Ms Wilson’s comments regarding her consultation with Dr Stapleton were challenged by Dr Stapleton. In her statement Ms Wilson confirmed that Mr Yalcin Bahceci had a full time employee and this is contrary to Mr Bahceci’s assertion contained in his correspondence issued in response to a ‘Direction to Produce’ all employment and wage records of Michele Wilson that he did not employ anyone in his business. Accordingly, in the Authority’s view Ms Wilson “has a history of providing self serving evidence.”
In relation to the Arbitrator’s determination pursuant to section 38 of the 1987 Act the Authority submits that “there was no evidence given by the applicant that she was seeking suitable employment which is a requirement of the section. Furthermore there was no evidence given by [Ms Wilson] to establish that between 1 August 2004 and 24 October 2004 [she] was taking reasonable steps to obtain suitable employment.” Further, in relation to the issue of incapacity the Authority referred to the medical evidence which demonstrates that Ms Wilson’s condition is improving and her hours of work have been increased. The Authority submits that “aching in the right elbow should not result in [Ms Wilson] working part time for the remainder of her working life.”
Ms Wilson’s submissions
Ms Wilson submits that to succeed on appeal the Authority must demonstrate appelable error such that the decision under review “is affected by some legal, factual or discretionary error” (Ross v Zurich Workers Compensation Insurance (2002) NSWWCCPD 7 (‘Ross’)) and the appeal document itself does not contain any grounds of appeal. Therefore “it is difficult to respond to the grounds that are not set out. [Ms Wilson] submits for that reason alone the appeal should be dismissed.”
In relation to the Arbitrator’s determination pursuant to section 9A of the 1987 Act Ms Wilson submits that the Authority “lists fifteen submissions in relation to the finding….[t]hat the employment was a substantial contributing factor to the Applicant’s injury. None of those submissions show a demonstrable error…” in accordance with the authority provided in Ross. Ms Wilson submits that it is not sufficient to ground an appeal upon the differing views of Dr Stapleton and those contained in Ms Wilson’s medical evidence.
Ms Wilson submits that the Authority raises seven submissions under the heading “Credit Issues” and these submissions fail to disclose an error of the kind required by Ross. Further, the Arbitrator heard evidence from Ms Wilson and accepted that evidence “to the extent that there is a difference between the two statements and was satisfied that what [Ms Wilson] did at the shop did not impinge on the issue of incapacity [transcript page 19 at line 55].”
In Ms Wilson’s view the Authority makes “one submission which seems to be directed towards Section 38A(2)(d). This submission ignores the requirements of Section 38A(3).” It is submitted that the notice required in accordance with section 38A(3) of the 1987 Act was not given to Ms Wilson by the Authority and accordingly section 38A(3)(d) has no application to the present circumstances. Further Ms Wilson’s statement dated 21 June 2005 outlines her approach to the Authority to provide suitable duties and “[m]ore importantly.., the Section 38 issue was conceded by [the Authority] [transcript page 5, lines 40-45]”.
In Ms Wilson’s submission the Authority’s submissions under the heading “incapacity” do not illuminate the error relied upon. Rather the submissions “seem to relate to a gathering together of diverse snippets of evidence, all of which were considered by the Arbitrator who came to the conclusion he did based on all of the evidence, not just parts of it.” Further “the parties agreed the terms of the award for weekly payments in the event the Arbitrator found” for Ms Wilson pursuant to section 9A of the 1987 Act (transcript pages 1- 2) and therefore it is difficult to understand the nature of the Authority’s submissions on the issue of incapacity.
Ms Wilson’s evidence
Ms Wilson provided a statement dated 21 June 2005 in which she described her employment; earnings; the duties she undertook and the treatment she received for her injuries. Ms Wilson stated that on 8 June 2004 she provided Mr Hamish Maul, of the Authority with a medical certificate which restricted her duties from 30 July 2004 to four hours per day, two days per week on light duties with breaks as required. In reply she received correspondence from Mr Maul offering to assist in her return to work. However he also advised that there were no positions available for her and this situation was confirmed when she telephoned Mr Maul daily until late August 2004. As a result, Ms Wilson contacted the Public Service Association and through their intervention a return to work program was put in place from 25 October 2004 whereby Ms Wilson worked four hours per day three days per week until 2 May 2005. On that day Ms Wilson stated that she commenced working five hours one day per week and four hours on each of the other two days. On 27 May 2005 these hours were increased to five hours per day two days a week and four hours a day one day a week. From 22 June Ms Wilson was to work five hours per day three days per week.
Ms Wilson stated that following the Insurer’s decision to decline liability on the basis of Dr Stapleton’s report the Authority paid her for the hours she worked only and in October 2004 she exhausted all other forms of paid leave. Ms Wilson commented that her consultation with Dr Stapleton lasted approximately 10 to 15 minutes and his examination was limited to measuring her weight and height; observing her arm movements and he “pinched [her] elbows”. Ms Wilson confirmed that she is not menopausal.
Ms Wilson provided a further written statement dated 9 September 2005 at the hearing. In that statement Ms Wilson confirmed that:
·she worked at a petrol station from 1999 to 23 February 2002 in secondary employment. She was engaged to process transactions using the cash register for up to 12 hours per week and the key strokes required of her were less than those required in her duties with the Authority. She was also required to clean the sink used by staff; wash, wipe and put away coffee cups;
·Mr Boris Bahceci, owner of Boris’ Fine Foods is her boy friend and she is currently four months pregnant to him. Mr Bahceci works from 3 pm to 4 am seven days per week with the assistance of a full time employee and in order to spend time with him she visits him at the shop;
·she has never been employed in that business. However she has on occasions passed plastic bags containing chips, kebabs, hamburgers etc over to customers and she probably did so with her left hand;
·on 26 July 2005 Dr Bertouch certified her fit for six hours per day, three days per week with no counter work, and
·there is a history of personal issues between Ms Bradfield, Registry Services Manager, North Sydney and herself going back several years.
Ms Wilson also gave evidence at the hearing in which she confirmed the matters set out above and repeated her statement that Mr Bahceci has a full-time employee serving customers. Ms Wilson added that the employee was Mr Bahceci’s estranged wife and that when she attends his shop she engages in conversations with Mr Bahceci, his customers and his estranged wife. Ms Wilson stated that the shop was not as busy as claimed by Ms Bradfield and in a period of two hours approximately 15 to 20 customers would be served.
In correspondence to her legal representative dated 21 June 2005 Ms Wilson confirmed the duties she undertook including those requiring keyboard entry; opening and sorting mail, and lifting number plates. A copy of Ms Wilson’s position description was also in evidence together with correspondence from Mr H Fulton, former Manager of North Sydney Motor Registry, dated 17 September 2004. In his correspondence Mr Fulton described the duties required of Ms Wilson and commended her on the volume of work she undertook, her efficiency and expertise and “The countless hours she gave of her own time to deliver this demanding service to the satisfaction of all concerned.” Mr Fulton noted that:
“All this work must have had a huge effect on her health; I was always sympathetic to Michelle and afforded her stress breaks when need. The other staff members tried to help with the workload but owing to time constraints on the public counter with waiting times, their best intentions were of no avail.”
Mr John Hay, ex Manager Cammeray Registry also attested to Ms Wilson’s efficiency in his correspondence dated 30 September 2004 and concluded that as a result “dealer representatives …chose to have you process their transactions.” and accordingly Ms Wilson “processed most of the Established Registrations submitted by the local car dealerships.” Mr Hay commented that, in his opinion the DRIVES records would reveal the key strokes undertaken by Ms Wilson and this typing workload together with the volume of registrations undertaken by Ms Wilson caused her wrist injury.
Dr R Tayeh, Ms Wilson’s general practitioner provided a report dated 16 December 2004 in which he noted that: Ms Wilson consulted him on 3 February 2004 for the symptoms she had experienced in her hands for over two years; he referred her for an EMG study of both hands which confirmed the presence of carpal tunnel syndrome in the right more than the left hand, and her right median nerve was surgically decompressed. Dr Tayeh opined that Ms Wilson’s employment contributed greatly to her condition and acknowledged that whilst some factors such as obesity; menopause and congenital abnormalities can play a part “...in this case the nature of her duties with prolonged use of the keyboard brought the condition to appear much earlier than expected.” Dr Tayeh noted that the insurer had declined responsibility and therefore “the question of returning to work did not arise”. Dr Tayeh concluded that Ms Wilson “is expected to recover fully within 3 months post operatively.”
In evidence were three reports from Dr J Bertouch, Ms Wilson’s treating rheumatologist. In his report dated 8 November 2004 Dr Bertouch outlined Ms Wilson’s history, presentation and commented that surgical treatment was required. Dr Bertouch noted that Ms Wilson was coping with the work modifications which limited her keyboard use and that the part time work she was undertaking is reasonable and appropriate. However he opined that her work activities could be gradually increased commensurate with her symptoms remaining controlled. Dr Bertouch reported that:
·Ms Wilson’s symptoms had been significantly relieved in her right hand following surgery but she had intermittent pain in the right hand after physical activity and she described slight, intermittent discomfort at the inner aspect of the left elbow;
·cooking, and lifting were difficult and she was taking Voltaren 25 mg twice daily;
·on examination she had bilateral reduced grip strength; tenderness over the lateral aspect of the right elbow related to the epicondyle and the medial aspect of the left elbow related to the medial epicondyle; reduced reflexes, and
·Ms Wilson had documented evidence of right carpal tunnel syndrome and historically and clinically she also had bilateral elbow epicondylitis.
Dr Bertouch referred to Ms Wilson’s duties and commented:
“I note the repetitive nature of her work activities and the lack of opportunity for any break away from these activities. I also note that she describes increasing pressure at work leading up to the onset of her symptoms in June 2003. The increase in work activities were related to the end of the financial year.
In answer to your specific question I would conclude that her employment was a substantial contributing factor to her injury.”
Dr Bertouch concluded by stating that he:
“noted that it had been suggested that carpal tunnel syndrome is more common in people who are over weight, menopausal and with a congenital wrist problem. Ms Wilson is certainly overweight but has been so for many years. She is not menopausal. The nerve conduction studies showed carpal tunnel syndrome on one side only. She has no obvious congenital abnormality of the wrist joints.”
Dr Bertouch provided an updated report dated 31 May 2005 in which he noted Ms Wilson’s reported improvement in symptoms and therefore recommended that she increase her working hours by one hour per month.
Ms Wilson relied upon the report of Dr Erica Jacobson, surgeon dated 23 March 2005. Dr Jacobson also provided four medical certificates certifying Ms Wilson unfit for duties from 1 July 2004 to 1 August 2004 and fit for suitable duties from 1 August 2004 to 15 September 2004. In her report Dr Jacobson opined that Ms Wilson’s “body habitus is a contributing factor.” to the development of her condition “However, it has become obvious since her carpal tunnel that she also has some form of tendonitis – perhaps it is the epicondylitis referred to by the Hand Surgeon. This has worsened since her return to work and is likely to be work related.” In respect of the relationship between carpel tunnel syndrome and keyboard use Dr Jacobson concluded that “contrary to the hand surgeon’s statements, carpal tunnel has been documented as a work-related problem, though its role with computer use is controversial.” In support of this opinion Dr Jacobson referred to a published study which noted that repetitive hand movements, together with a constitutional predisposition to carpal tunnel contributes to the risk of developing carpal tunnel syndrome.
Dr Jacobson opined that:
·Ms Wilson’s “epicondylitis/tendonitis has become a lot worse since Michelle returned to work and is a major factor in her CURRENT disability. This appears to affect her extensor tendons (It is the flexor tendons that would cause carpal tunnel). Tendonitis is associated with work conditions and this is currently disabling her.”, and
·“…it seems that work may bring out symptoms in susceptible people. This is more likely to be the case if a person “misses out on breaks” or has “constant use of a keyboard” as stated. Further, her other clinical problem needs to be investigated as it seems that this is aggravated by work.”
Two Injury Management Plans were also in evidence which limited Ms Wilson’s working hours as certified by her treating doctor. In summary these plans noted that Ms Wilson was to “stop for work breaks when required” and she was “not to attempt any duties outside [her] restrictions or any duties that cause discomfort.” The Injury Management Plan commencing 30 March 205 also specified that Ms Wilson should not “overuse her injured arm.”
Ms Wilson also relied upon a medical publication entitled Musculoskeletal Disorders (MSDs) Workplace Factors by B Bernard (editor) and others published in July 1997 in support of the claim that occupational etiological factors contribute to the development of carpel tunnel syndrome.
The Authority’s evidence
The Authority relied upon the report of Dr M Stapleton, hand, plastic and reconstructive surgeon dated 26 February 2004. Dr Stapleton reported that he consulted Ms Wilson on 24 February 2004. Dr Stapleton confirmed that Ms Wilson was suffering from bilateral carpal tunnel syndrome requiring surgical decompression of both wrists. However Dr Stapleton opined that “carpal tunnel syndrome is not an injury and it is not related to her work on the keyboard, an activity which she performs most of every day.” In Dr Stapleton’s opinion the condition is “a congenital problem brought about by a space inadequacy at the wrist. It effects [sic] women far more than men. Most women are in a menopausal age group so there is no question that there is a hormonal association with the condition.” and Ms Wilson would have the condition “whether she worked or whether she did not.” Dr Stapleton opined that “one of the significant contributing factors with people with this condition is body weight, and I must say this lady is profoundly overweight given that she stands 153 centimeters tall and weighs 110 kilograms.”
Dr Stapleton’s report can be further summarised as follows:
·Ms Wilson reported to him that she cannot hold anything properly; experienced pins and needles and numbness on the left side in the middle and ring, on the right side, mostly with the middle finger, and her sleep is disturbed up to five times per night as a result of this alteration in sensation;
·on examination Ms Wilson has tenderness in the lateral epicondyle of both elbow joints confirming that she has “bilateral tennis elbows; “Phalen’s test is positive on the right side. It is not at all uncommon for epicondylitis and carpal tunnel to be seen in the same person.”, and
·the incident was “a slow onset” and notwithstanding that Ms Wilson had not worked since 31 January 2004 “her problem is not improving. So it would be with this condition.”
Dr Stapleton concluded that Ms Wilson is unfit for current duties given that [sic] light duties that were offered to her caused her discomfort.” and “suitable duties with no typing would be appropriate for her provided she can genuinely perform the task provided with sensible rest breaks.” Dr Stapleton also recommended:
“Given that she is uncomfortable at work using a keyboard, the appropriate way in my view to proceed with this lady is to decompress her wrists and whilst she is anaethethetised I am confident her elbows would improve with an injection of local anaesthetic and cortisone.”
In a supplementary report dated 16 August 2005 Dr Stapleton confirmed his qualifications as a hand surgeon and his views regarding the cause of carpal tunnel syndrome and referred to the acceptance of his article for publication in this regard. Dr Stapleton also disputed Ms Wilson’s account of the examination he conducted stating that:
“I am quite certain that reference to my report dated 26 February 2004 indicates that I asked her more about other things rather than her hobbies and her marital status.
I did not pinch her elbows and the test that was performed, which is the only test for carpal tunnel syndrome, is the Phalem’s test. That confirmed that she had carpal tunnel syndrome on the right side, and she had a degree of lateral epicondylitis.
I object to the comment “and that was it.” I have no doubt that my enquiry into her condition, my examination and my treatment of her was professional and well considered, as it is with all individuals that come before me.”
The Authority also relied upon evidence of Ms Wilson’s secondary employment as contained in the statement of Ms Kathryn Bradfield, Registry Services Manager, North Sydney dated 31 August 2005. Ms Bradfield stated that:
· Ms Wilson worked in a local petrol station operated by Peter Forsyth where she worked “at least one day per week and on weekends.” which required some cleaning and scrubbing of hard surfaces;
· as a result “Several staff commented at the time about her working two jobs and that it would be detrimental to her health and her work at the RTA”;
· she had requested that Ms Wilson seek approval to undertake secondary employment and this request was refused by Ms Wilson who replied that she had already done so whilst working at the Cammeray Registry;
· she had observed Ms Wilson working at Boris’ Fine Foods for a period of two hours on 25 February 2005 and during that time Ms Wilson was observed to be lifting bulky plastic bags;
· when she question Ms Wilson regarding this employment Ms Wilson replied that she was not working but merely going to “see Boris”, and
· Ms Wilson had refused to undertake counter duties notwithstanding that these activities were not restricted by her treating practitioners.
The Authority submitted that contrary to the evidence contained in Ms Bradfield’s statement Ms Wilson provided a declaration date stamped 13 April 2005 that she did not engage in secondary employment.
In response to a Direction for Production of all employee and wage records in relation to Michele Wilson, Mr Bahceci, sole trader – Boris Fine Foods issued correspondence dated 9 August 20045 confirming that he did not employ any staff and worked “with his wife and son.”
ARBITRATOR’S DECISION
In the present situation I am required to turn to the transcript of proceedings to assist in my consideration of the issues raised on appeal. In relation to the duties undertaken by Ms Wilson the Arbitrator referred to the evidence as follows:
“In her statement the applicant says that she was unable to take the normal breaks you would get working over the counter. She said that mainly she did dealer work, which was packets of 10 to 15 registrations, which take about five minutes each, one after the other. There is no suggestion that there was any prior problems that the applicant noticed with her health prior to the gradual onset whilst at work doing this registration repetitive computer work, and I'm satisfied that it's of a nature or a type that is temporarily connected with the onset of difficulties in the area of her body that she was using to do her work, that is to say, her hands [transcript page 17 lines 39-50].”
At pages 17 -18 of the transcript the Arbitrator expressed a preference for the opinion of Ms Wilson’s treating doctor, Dr Bertouch who, in the Arbitrator’s view properly referred to the duties undertaken by Ms Wilson; her symptoms and discussed the factors considered causative in the development of carpal tunnel syndrome in outlining the basis of his opinion that Ms Wilson’s carpal tunnel syndrome was work related. The Arbitrator relied upon the authority provided by Makita (Australia) Pty Ltd v Sprowles (2001) NSWCA 305 (‘Makita’) in not accepting the opinion of Dr Stapleton, who in the Arbitrator’s view did not refer to the “facts and circumstances” upon which he based his opinion. At page 18 the Arbitrator referred to the authority of Perry v Tanine Pty Limited trading as Ermington Hotel & Ors (1998) NSWCCR 14 as authority that carpal tunnel syndrome has been accepted a compensable condition as “whether or not conditions of employment can cause it, it certainly can be aggravated by work conditions.” The Arbitrator concluded that:
“I would accept the reports of Dr Bertouch over Dr Stapleton, and, therefore, it follows that I accept that the work that the applicant has done is responsible for her present incapacity, and in saying that I note that a submission has been made that the provisions of section 9A apply and that if the work was responsible it was not a substantial contributing factor to the injury. I have already described the duties she was doing, and I am satisfied that the work was a substantial contributing factor to the onset of injury. [Transcript page 19 lines 26 – 35]”
The Arbitrator discussed the issue of Ms Wilson’s secondary employment raised by the Authority and his acceptance of Ms Wilson’s evidence in this regard at pages 19 -20 of the transcript. The Arbitrator found that the evidence of Ms Bradfield and that of Ms Wilson did not differ significantly in that Ms Wilson confirmed that “she traditionally goes behind the counter and hangs around with her boyfriend and others and that she would occasionally hand over a bag from time to time but denied that she did it constantly [page 19 lines 50-54]” The Arbitrator also found that this evidence did not impinge upon Ms Wilson’s credit nor did the evidence of secondary employment convince him that “there is any more capacity to earn than she currently has.[Transcript page 20 lines 15-18]”.
The transcript confirms that the parties were agreed as to incapacity. Page 5 lines 40 – 44 of the transcript reveal that Ms Wilson’s representative asked the Authority’s representative “…is the section 38, conceded,..” to which the Authorities representative replied “Yes.” Further the Arbitrator noted the Authorities acceptance of Ms Wilson’s incapacity at page 20-21 of the transcript as follows:
“ARBITRATOR: The parties are agreed that the incapacity commenced on 3 February 2004. She was off work and paid compensation until compensation was declined. By then she had opted out.
MR BRENNAN: 3 March '04 ‑‑
ARBITRATOR: Document F.
MR BRENNAN: ‑‑ I think.
ARBITRATOR: 3 March '04, indeed, and it was declined on 4 March. She was totally incapacitated from 4 March to 1 July 2004 ‑ I'm sorry, from 4 March 2004 to 30 July 2004. The parties agree that she's entitled to payment under section 38 from 1 August '04 to 24 October '04 and thereafter she would be entitled to make‑up pay, being the difference between the hours she's being paid to work and the ‑ well, I should say the wages she's receiving for the limited time she is able to work now compared to her probable earnings had she remained working for the respondent uninjured.”
DISCUSSION AND FINDINGS
Following my consideration of the submissions I have concluded that both parties are aware that on review the Appellant must first establish an error by the Arbitrator, whether of law, fact or discretion, before the decision may be reconsidered (Allesch v Maunz (2000) 203 CLR 172), as applied to the Commission in Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSW WCC PD 6 (‘Mayne’). Further to justify reconsideration of the Arbitrator’s decision the error must be such that, but for it, a different decision should have been made (Snow Confectionary Pty Ltd v Askin [2004] NSW WCC PD 56).
Did the Arbitrator err in finding that Ms Wilson’s employment was a ‘substantial contributing factor’ in accordance with section 9A of the 1987 Act?
In my view the Authority’s submissions relate to the Arbitrator’s application of the evidence to his finding that employment was a substantial contributing factor to Ms Wilson’s development of carpal tunnel syndrome. Accordingly it is not necessary to discuss the operation of section 9A of the 1987 Act at length. Section 9A has been discussed in a number of decisions and in summary it can be concluded that the section does not require that the employment be the substantial contributing factor, nor does it exclude pre-disposition or susceptibility to a particular condition. Further the word ‘substantial’ in section 9A has been interpreted to mean more than a minimum or greater than other causative factors which may be found to be present Mercer v ANZ Banking Group Ltd (2000) 48 NSWLR 740 (‘Mercer’). Additionally as held in McMahon v Lagana[2004] NSWCA 164 (‘McMahon’) the ultimate decision as to ‘substantial contributing factor’ is a finding of fact and is a matter of impression and degree. The requirement to examine the relationship between the injury alleged and the work performed is clearly set out in the decision of Neilson J in the matter of Stanton-Cookv TAFE Commission (NSW) (1999) 17 NSWCCR 632 where His Honor held:
“However, since the enactment of s9A, it is insufficient to prove that the employee was in the course of his employment. It must be established that the injury arose out of the employment, that is there was a causal relationship between the injury and the work which the worker is required, expected or authorised to do in pursuit of his employment contract [paragraph 44]”
Section 9(A)(2) of the 1987 Act provides guidance as to the matters which may be taken into account for the purposes of the determination required in accordance with section 9A(1). The factors listed in accordance with that section include, but are not limited to: (a) the time and place of the injury, (b) the nature of the work performed and the particular tasks of that work, (c) the duration of that employment, (d) the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment, (e) the worker’s state of health before the injury and the existence of any hereditary risks, (f) the worker’s lifestyle and his or her activities outside the workplace.
In the present case the transcript reveals that the Arbitrator considered the duties required of Ms Wilson in the batch registration of vehicles and referred to the evidence of Mr Fulton and Mr Hay in support of the finding that this necessitated computer work. The Arbitrator also referred to Ms Wilson’s statement that in undertaking dealer registration, she was unable to take the normal breaks that would be available if she was “working over the counter.” The Arbitrator also observed that there was no suggestion that Ms Wilson experienced any “prior problems” and accordingly the Arbitrator concluded that he was satisfied that the duties required of Ms Wilson in undertaking batch registrations is “of a nature or a type that is temporarily connected with the onset of difficulties in the area of her body that she was using to do her work, that is to say, her hands.”.
In my view the transcript reveals that Arbitrator considered the duties required of Ms Wilson as required (McMahon; Mercer) and then went on to consider the medical evidence. The Arbitrator expressly stated his preference for the evidence of Dr Bertouch to that of Dr Stapleton in finding that Ms Wilson’s employment was a substantial contributing factor. In doing so the Arbitrator relied upon the authority provided by Makita. Whilst I note that the Commission is not bound by the rules of evidence (section 354(2) of the 1998 Act) I also note that the Commission must act according to equity, good conscience and the substantial merits of the case (section 354(3)). As such the rules of evidence provide a guide for the Commission as to the relevancy and reliability of evidence (Cine San Marco Pty Ltd v Ayres[2005] NSWWCCPD 160).
Makita provides authority that an expert witness must reveal the factual and intellectual basis for his or her opinion in order to facilitate an evaluation of the validity of that opinion by the decision maker who is required to determine what weight, if any, should be accorded to that evidence. In the present case the Arbitrator concluded that Dr Stapleton’s report did not reveal to him the basis for his conclusion that Ms Wilson’s carpal tunnel syndrome was not work related as, notwithstanding that he confirmed that he had read all of the material forwarded to him by the Authority his report did not set out the duties undertaken by Ms Wilson in performance of her contract of employment and he did not set out his reasons for concluding that carpal tunnel syndrome is not an injury. The Arbitrator contrasted Dr Stapleton’s report with that of Dr Bertouch who, in the Arbitrator’s view referred to the facts and circumstances upon which he based his opinion. Further, in the Arbitrator’s view Dr Bertouch explained the conclusion he arrived at and the reasons for his conclusion.
As set out at paragraphs 40 and 41 of this decision Dr Stapleton provided a brief reference to Ms Wilson’s duties noting that she was required to use a keyboard. However no further discussion of those duties was provided. Dr Stapleton opined that carpal tunnel syndrome is “a congenital problem brought about by a space inadequacy at the wrist.” Having concluded that the condition was congenital Dr Stapleton failed to confirm that Ms Wilson’s development of the condition was in fact as a result of the congenital condition he described as “inadequate” space “at the wrists”. Dr Stapleton reported that Ms Wilson was over weight and confirmed that obesity is “one of the significant contributing factors” to this condition. However Dr Stapleton failed to indicate if this fact caused him to conclude that Ms Wilson’s carpel tunnel syndrome was unrelated to her employment.
In contrast Dr Bertouch discussed: Ms Wilson work duties; the results of her physical examination which in his view demonstrated that she did not suffer from any congenital space inadequacy of the wrists; her history of being overweight, and menopausal status and concluded that her employment was a ‘substantial contributing factor’ to the development of her carpal tunnel syndrome.
In my view the Arbitrator correctly applied the authority of Makita in preferring the evidence of Dr Bertouch to that of Dr Stapleton. Additionally, I do not accept the Authorities’ submissions that the Arbitrator erred in his consideration of the evidence because Dr Stapleton is a hand specialist whose study into carpal tunnel syndrome has been accepted for publication by his peers. Irrespective of the area of medical expertise the starting point for acceptance of expert evidence must be the principles laid down in Makita and I can find no statement of principle or authority for the proposition that in cases of carpal tunnel syndrome the opinion of a hand specialist must be preferred over that of a rheumatologist or neurosurgeon. Additionally I can see no basis to conclude that the Arbitrator merely referred to prior decisions and failed to have regard to the merits of the case before him in determining the application. The transcript reveals that the Arbitrator referred to the medical and lay evidence before him and made findings based on that evidence. Finally I do not accept the Authority’s submission that Ms Wilson’s age and the potential for ongoing payments of compensation demonstrate that the Arbitrator erred in his decision.
Accordingly I see no error of law, fact or discretion sufficient to disturb the Arbitrator’s decision in relation to his finding that Ms Wilson’s employment was a substantial contributing factor to her injury (Mayne).
Did the Arbitrator err in failing to properly assess Ms Wilson’s evidence?
The Authority submits that Ms Wilson has “a history of providing self serving evidence” and refers to three aspects of her evidence in this regard: her account of Dr Stapleton’s consultation, which, it is submitted was later challenged by Dr Stapleton; her statement regarding secondary employment which, it is submitted was only revealed following Ms Bradfield’s statement, and her statement that Mr Bahceci has an employee which is contrary to Mr Bahceci’s evidence. The Authority does not submit that Ms Wilson provided false evidence. Rather, the submissions, on my assessment, concern the Arbitrator’s acceptance of Ms Wilson’s evidence.
The extent to which there should be deference to the original decision maker’s findings on issues of credit have been considered by the High Court in CSR Limited v Della Maddalena (2006) 80 ALJR 458 and the NSW Court of Appeal in Goodrich Aerospace Pty Limited v Arsic [2006] NSWCA 187.These authorities make it clear that on appeal, careful consideration must be given to the facts of each case in weighing whether the reliance on findings of credit is a proper exercise of the power of the original decision-maker (Sarkem Limited v Marafioti[2006] NSWWCCPD 235).
Page 19 lines 9 to 16 of the transcript reveal that the Arbitrator considered Dr Stapleton’s report dated 16 August 2006 in which he disputed Ms Wilson’s account of his consultation with her. The Arbitrator noted that “there’s a little bit of controversy between he and the applicant as to what actually happened in the actual consultation...” The Arbitrator concluded that this controversy was not relevant in view of the decision he arrived at concerning his preference for the report of Dr Bertouch.
In my view the fact of divergence in the evidence regarding the length of time taken, the history taken and the examination conducted by Dr Stapleton did not have any material bearing upon the Arbitrator’s conclusion that he preferred the medical evidence of Dr Bertouch over Dr Stapleton and ultimately finding that the nature of Ms Wilson’s duties together with the evidence of Dr Bertouch, Dr Tayeh and Dr Jacobson supported a finding that employment was a substantial contributing factor to her development of carpal tunnel syndrome.
In relation to the evidence of secondary employment the transcript reveals at page 19 line 55 that the Arbitrator considered the evidence of Ms Bradfield and Ms Wilson and concluded that he “observed and heard [Ms Wilson], and I don’t see that there is a difference between [the two statements] and I am satisfied that what [Ms Wilson] was doing [at Boris’ Fine Foods] was of a different nature to the work she was doing and I don’t think it impinges upon her capacity to work.” Further at page 20 lines 16 to 19 the Arbitrator concluded that: “I don't see that the Boris's Fine Foods episode either impinges upon the applicant's credit nor convinces me that there is any more capacity to earn than she currently has.”
In my view the Arbitrator considered the requirement to establish the facts leading to his finding of incapacity and the Arbitrator found that there was no material conflict between the two statements. In the Arbitrator’s view, both statements confirmed that Ms Wilson was handing customers their purchase of take away food for a period of approximately two hours on the evening in question. Hence the question of credit did not arise in relation to this evidence because both statements contained similar evidence in relation to Ms Wilson’s activities and in, the Arbitrator’s view these activities did not “impinge upon her capacity” to undertake the work for which she was certified “unfit”.
In relation to Ms Wilson’s contradiction of Mr Bahceci’s evidence regarding his employment of staff again I refer to the Arbitrator’s commentary regarding Ms Wilson’s credit. that “I don’t see that the Boris’s Fine Foods episode either impinges upon the applicant’s credit nor convinces me that there is any more capacity to earn than she currently has.” In my view the Arbitrator considered the conflicting evidence in this regard. However the Arbitrator was not required, in the present circumstance to make a finding as to his preferred evidence in relation to Mr Bahceci’s employment of staff as that evidence had no material effect upon his finding of incapacity. In the present circumstances I apply the authority provided in State Rail Authority v Earthline Constructions Pty Ltimited (in liquidation) (1999) 160 ALR 588 that:
“Trial judges should strive, so far as they can, to decide cases without undue reliance on such fallible considerations as their assessment of witness credibility. And appellate courts should refrain from needlessly expanding the categories of trial conclusions about the facts which are effectively unreviewable because of presumed or inferred credibility considerations. (Judgement of Kirby J, at paragraph 88).”
In my view the Arbitrator evaluated the evidence and referred to objectively established facts, being the consistent medical evidence of carpal tunnel syndrome and the uncontested evidence that her duties required repetitive data entry in determining that her employment was a substantial contributing factor to her injury. The Arbitrator did not rely upon his findings as to Ms Wilson’s credit in determining the application. However I note in passing that, in my view his commentary in this regard was reflective of the evidence before him. Accordingly I am unable to accept the Authority’s submissions that the Arbitrator erred in failing to properly assess Ms Wilson’s evidence. Further I find no evidence of error by the Arbitrator sufficient to give rise to an appealable error.
Did the Arbitrator err in determining the award for weekly compensation pursuant to section 38 of the 1987 Act?
In my assessment of the submissions the Authority seeks to ground the appeal on the Arbitrator’s finding of partial incapacity in circumstances where “there was no evidence that [Ms Wilson] was seeking suitable employment” as required by section 38(4) of the 1987 Act. I accept the submissions made by Ms Wilson that the transcript reveals that incapacity was agreed by the parties and in this respect I refer to extracts from the transcript demonstrating that agreement. At page 1 lines 56 – 57 and page 2 line 1 the Arbitrator questions the Authority’s representative regarding agreement to the categorisation of the payments and the Authority’s representative confirmed his agreement to the claim brought pursuant to sections 36, 38 and 40 of the 1987 Act. The Authority’s consent to the claim brought pursuant to section 38 is also confirmed at page 5 lines 40 to 44 of the transcript as set out. Further page 16 lines 46 to 51 demonstrate that the Authority’s representative submitted that “In terms of incapacity, I think the only submission I wish to make about the Boris’s Fine Food involvement is simply an indicator that perhaps there is a capacity to do more. I acknowledge that the nature of any task performed there is of a different character. I put it no higher than that.” As set out the Arbitrator did not accept that the evidence was sufficient to support a finding that Ms Wilson had a greater capacity to earn than that certified by her treating practitioners.
Additionally page 20 lines 56 – 57 of the transcript reveal that following his finding regarding the nature of Ms Wilson’s activities at Boris’s Fine Foods the Arbitrator confirmed, that “The parties are agreed that the incapacity commenced on 3 February 2003.” Further at page 2, lines 12 to 19 the Arbitrator noted the parties agreement “that [Ms Wilson is] entitled to payment under section 38 from 1 August ’04 to 24 October ’04 and thereafter she would be entitled to make-up pay, being the difference between the hours she’s being paid to work and….I should say the wages she’s receiving for the limited time she is able to work now compared to her probable earnings had she remained working for the respondent uninjured.” I note that the transcript reveals that the parties submitted an agreed schedule of weekly compensation payments and this document was marked exhibit A.
I also accept Ms Wilson’s submission that evidence of her attempts to gain ‘suitable employment’ and the Authority’s failure to provide those duties until 25 October 2004 was contained in her statement dated 21 June 2005. Further I accept Ms Wilson’s submissions that section 38(4) of the 1987 Act requires the provision of a notice in accordance with section 38A(3) and there was no evidence before the Arbitrator, or before me on appeal that the Authority had served the requisite notice.
In relation to the Authority’s remaining submissions that the medical evidence indicates that Ms Wilson’s condition is improving and “right elbow pain should not result in [Ms Wilson] working part time for the remainder of her working life.”. In the absence of an express statement or evidence I cannot with certainty discern from the Authority’s submissions if it contends that the award made by the Arbitrator should reflect a gradual increase in Ms Wilson’s hours of work. However I note that the Arbitrator had regard to the medical evidence which demonstrated a program of Ms Wilson increasing the hours she worked for the Authority as certified by Dr Bertouch. The Arbitrator also accepted the parties’ agreement that the schedule of payments of weekly compensation reflected the statutory rate and not the actual difference in earnings as that figure was greater than the statutory rate. Accordingly, in my view, the evidence of incapacity was properly considered by the Arbitrator in arriving at his decision. Additionally in my view the numerous references contained in the transcript and set out above reveal that the Arbitrator was required to determine the issue of ‘substantial contributing fact’ and once that determination was made in favour of Ms Wilson the Arbitrator was then required to give effect to the agreement reached by Ms Wilson and the Authority as to the payment of weekly compensation to Ms Wilson. I find no error in the Arbitrator’s consideration of the evidence in respect of his finding of incapacity sufficient to give rise to a demonstrable error.
Conclusion
In conclusion, I am not satisfied that the Arbitrator made any legal, factual or discretionary error in his decision, which must, therefore, be confirmed.
DECISION
The Arbitrator’s decision is confirmed.
COSTS
The Appellant Employer is to pay the Respondent Worker’s costs of the appeal.
Elizabeth Tydd
Acting Deputy President
8 November 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF E TYDD, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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