Robertson v Home Care Services of NSW - [2005] NSWWCCPD 54

WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Robertson v Home Care Services of NSW [2005] NSW WCC PD 54
APPELLANT:  Joan Ruth Robertson
RESPONDENT:  Home Care Services of NSW
INSURER:GIO Workers Compensation (NSW) Limited
FILE NUMBER:  WCC 18063 -2003
DATE OF ARBITRATOR’S DECISION:          10 June 2004
DATE OF APPEAL DECISION: 27 June 2005
SUBJECT MATTER OF DECISION:                Adequacy of evidence as to disease and frank injury.
PRESIDENTIAL MEMBER:  Acting Deputy President Deborah Moore
HEARING:On the papers
REPRESENTATION:  Appellant: McCabe Partners Lawyers
Respondent: Turks Legal

ORDERS MADE ON APPEAL: The decision of the Arbitrator is confirmed.
No order is made as to costs

BACKGROUND TO THE APPEAL

Joan Ruth Robertson (‘the Appellant Worker’) was employed by Home Care Services of NSW (‘the Respondent Employer’) as a field service worker from approximately January 1998 until 4 October 2002, her duties involving housework and personal care for elderly and handicapped clients.
The Appellant Worker claims she suffered injuries to her back and legs as a result of frank injuries in 2001, and on 4 January 2002, and as a result of the nature and conditions of her employment, firstly, between January 1998 and 31 December 2001 and secondly, between 1 January 2002 and 4 October 2002.
By Application to Resolve a Dispute filed on 17 November 2003, she sought permanent impairment and pain and suffering compensation and some section 60 expenses.
Liability in respect of her incapacity following the injury on 4 January 2002 was accepted and weekly benefits paid.
The Appellant Worker claimed to have suffered two separate frank injuries together with two separate periods of ‘nature and conditions of employment’ leading to injury, such that she was entitled to have her various injuries assessed both under whole of person impairment and permanent impairment/loss of use of her back and both legs.
The Respondent Employer asserted that the deemed date of injury was 27 March 2002, the Appellant Worker’s last day of work, and accordingly, her claim should be assessed as a whole person impairment.
The parties participated in a teleconference on 31 March 2004. Following that, the Arbitrator issued directions including “the issue as to the deemed date of the injury to the Applicant’s back, left and right leg below the knee and/or frank date of injury body parts [sic] be determined on the papers” and that both parties were to file written submissions.
Both parties complied with that direction, the Appellant Worker filing submissions on 30 April 2004 and the Respondent Employer on 4 May 2004. In addition, the Respondent Employer was granted leave to admit late documents, being an incident report relating to the 2001 incident completed by the Appellant Worker and Ms Eva Collins.
Leave was given to both parties to file additional submissions in reply by 15 May 2004 but both parties chose not to do so.
A further teleconference appears to have been held on 24 May 2004 wherein the parties’ legal representatives made further submissions.
A Statement of Reasons for Decision was issued on 10 June 2004 wherein the Arbitrator found that the Appellant Worker sustained a frank injury to her back and legs on 4 January 2002. The Arbitrator then directed that the parties participate in a further teleconference two weeks from that date with a view to either resolving the dispute or reaching agreement as to the appointment of an approved medical specialist.
On 28 June 2004, the Appellant Worker filed an Application to Appeal against Decision of Arbitrator with written submissions dated 25 June 2004. In making a finding that the Appellant Worker sustained a frank injury on 4 January 2002, the Appellant Worker submits that the Arbitrator failed to take into account the following:
“i.That the Applicant suffered back pain with pain down the right and left legs as a result of frank injury which occurred on 16 November 2001,
ii.That the Applicant suffers from a disease of gradual onset pursuant to sections 15 and/or 16 of the Workers Compensation Act, 1987”.
The Respondent Employer submits by way of written submissions on 26 July 2004 that these issues were canvassed by both parties in their previous submissions to the Arbitrator and that the Arbitrator did in fact take into account the matters raised by the Appellant Worker in making his finding.

ON THE PAPERS REVIEW

By direction dated 2 July 2004, the Commission directed the Appellant Worker to file a written statement as to whether the leave application and appeal should be determined on the papers, and if not, why not, by 12 July 2004. The Respondent Employer was invited to file written submissions in reply.
The parties have remained silent on this point. The proceedings before the Arbitrator were determined ‘on the papers’.
Having carefully read all of the documents before me, including all the evidence that was before the Arbitrator, and taking into account the submissions made by both parties, I am satisfied that I have sufficient information to proceed ‘on the papers’, and that this is the appropriate course in the circumstances.

LEAVE TO APPEAL

The appeal was filed within time in accordance with the provisions of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (the ‘1998 Act’).
By direction dated 6 August 2004, the Commission directed that the Appellant Worker file with the Commission “written submissions on the threshold issues, including the amount of compensation and the percentage of the amount awarded that are at issue in the appeal”. The Respondent Employer was directed to file submissions in reply.
The Appellant Worker wrote to the Commission on 14 September 2004 noting that “the questions which are raised [in the appeal] deal with liability and this will have a significant effect on the Applicant’s lump sum entitlements…” and further that “….these issues need to be resolved prior to referring this matter to an Approved Medical Specialist”.
The Respondent Employer wrote to the Commission on 3 September 2004 noting at that stage that it had not yet received the Appellant Worker’s submissions and pointing out that the Arbitrator had not yet awarded any compensation to the Worker, but rather had merely made findings “…solely with respect to the issues of ‘Injury/Disease’ and ‘Deemed Date of Injury’.”
The Respondent Employer submitted that “…the Appellant is unable to discharge her onus of proving that the jurisdictional threshold for the current Appeal has been satisfied”.
Clearly, no amount of compensation has been awarded by the Arbitrator. In Mawson v Fletchers International Exports Pty Limited [2002] NSW WCC PD 5, Deputy President Byron found that where the ‘decision’ under appeal does not involve the making of a monetary award, the threshold requirements of section 352(2)(b) could have no operation. He said that “…the ‘decision’ in each instance is not restricted to an ‘award’”.
The definition of ‘decision’ in section 352(8) includes “an award, interim award, order, determination, ruling and direction”. The Arbitrator found that the Appellant Worker had suffered a frank injury to her back and legs on 4 January 2002. That was the determination. He then made directions in relation to resolution of the claim under sections 66 and 67 of the 1987 Act.
In light of the Arbitrator’s determination and direction, and in view of the decision in Mawson, and having regard to the amount at issue as claimed by the Appellant Worker, I think it appropriate in these circumstances to grant leave to appeal.
Leave is granted to appeal.

FRESH EVIDENCE

The Appellant Worker filed an application to admit late documents on appeal, on 2 July 2004 being an updated medical report of Dr Conrad dated 6 May 2004, reports of Dr Blue dated 15 March 2004 and a report of Dr C Gordon, General Practitioner dated 15 May 2004.
The reports of Dr Blue, obtained on behalf of the Respondent Employer, had previously been accepted by the Arbitrator by way of direction issued on 31 March 2004 but were included by the Appellant Worker because of some uncertainty as to whether or not they had been admitted into evidence. No reference is made to them by the Arbitrator in his decision.
In part 5 of the Application to Resolve a Dispute, the Appellant Worker indicated a number of documents she intended to use but did not yet have, including a supplementary report from Dr Conrad and clinical notes of Dr Gordon.
Practice Direction No. 6 stipulates that in general, the Commission will allow new evidence to be given on appeal only where it can be demonstrated that the new evidence could not reasonably have been obtained by the party and tendered in proceedings before the Arbitrator, and that failure to allow the new evidence would cause a substantial injustice in the circumstances of the individual case.
In the present case, the Appellant Worker had put the Respondent Employer on notice that the particular reports/clinical notes referred to were being sought but had not yet been obtained. In the case of Dr Conrad’s supplementary report, it was to have been provided “following receipt of the MRI Scan report”. The report dated 6 May 2004 does not address this issue, nor does it shed any light on any relevant issue in the proceedings. I cannot see any basis upon which it could be said that the failure to include it as fresh evidence would cause a substantial injustice in this case, and in the exercise of my discretion, I reject it.
The supplementary report of Dr Gordon refers to an examination of the medical records of his practice, which the Appellant Worker had anticipated, following a direction for production of documents. It is both relevant and within the scope of the Appellant Worker’s anticipations, and in the exercise of my discretion, and in accordance with Practice Direction No. 6, I think it just in the circumstances to permit its tender, and I therefore do so.

SUBMISSIONS AND EVIDENCE

The power of a Presidential Member of the Commission on Appeal to revoke a decision is exercisable only when it can be demonstrated that the decision of the Arbitrator is affected by a legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172).
The Appellant Worker submits that the Arbitrator erred in failing to take into account the alleged fact of a frank injury on 16 November 2001 and further, that the Appellant Worker suffers from a disease of gradual onset within the meaning of sections 15 and 16 of the Workers Compensation Act 1987 (‘the 1987 Act’).
In his Statement of Reasons for Decision, the Arbitrator in paragraphs 6 – 14 inclusive, deals with the Appellant Worker’s submissions dated 30 April 2004.
The thrust of those submissions was that the Appellant Worker’s losses resulted from two frank injuries together with the ‘nature and conditions’ of her employment. The Appellant Worker relied almost exclusively on the opinion expressed by Dr Conrad to the effect that the Appellant Worker’s losses related directly to the accident and nature and conditions of employment. In those circumstances, the Appellant Worker submitted, she was entitled to apportion those losses, such as there were two deemed dates of injury entitling her to two “…clearly distinguishable assessments of impairment and functional loss of use arising therefrom”.
More particularly, the Appellant Worker submits at page 6 “Dr Conrad was of the opinion that there was no evidence of pre-existing degenerative disease…” and further that:
“Dr Conrad was not of the view that the Applicant’s injuries was [sic] a disease of gradual onset and the absence of any symptoms or complaints of pain and disability prior to the 2001 incident would appear to support that conclusion. There is no suggestion in the report of Dr Conrad that the incidents of injury in early 2001 and on or about 4 January 2002, were aggravations or exacerbations of pre-existing degenerative changes. In fact, it is highly likely, having regard to the MRI Scan, and to the lesser extent the CT Scan reports, that frank disc protrusions were sustained on one or both occasions”.
The Appellant Worker had previously submitted (page 5 of submissions dated 30 April 2004) that:
“Another approach which is open to the Commission is determined [sic] that the Applicant’s injuries is [sic] in fact a disease of gradual onset… with the relevant deemed date of injury being 31 December 2001 and/or the last date the Applicant performed heavy work duties which seemed to be 27 February 2002”.
In paragraph 9 of his Reasons, the Arbitrator notes this ‘alternative allegation’. It is of course only open to the Commission to make a finding of ‘disease’ if evidence exists.
No evidence whatsoever was brought by the Appellant Worker in support of this allegation. Indeed, completely contrary to this allegation, the Appellant Worker relied on the alternative opinion expressed by Dr Conrad that the Appellant did not suffer from a disease. I have read the two reports of Dr Conrad both dated 28 November 2002 and the Appellant Worker’s submissions on his opinion are accurate.
As I said in Issott v North Sydney Leagues Club Ltd t/as Seagulls Club [2005] NSW WCC PD 38 (paragraph 26)
“It is not sufficient for a worker to merely cite the duties, ie, ‘nature and conditions of employment’ in grounding an allegation of ‘injury’. Similarly, an allegation of ‘on going symptoms’ does not of itself constitute an ‘injury’. There must be clear evidence of aggravation, exacerbation, acceleration or deterioration by those duties to constitute ‘injury’”.
The Appellant Worker’s statement is silent on this point. She describes her duties for example, vacuuming, dusting, cleaning, but not their physical effects upon her. She describes “Frank Injury 1” and “Frank Injury 2” only.
As the Respondent Employer rightly pointed out in paragraph 3 of its submissions dated 5 May 2004, “…there is no medical evidence annexed to the Application that supports a finding of ‘disease’…” and further that:
“… in view of the concession made by the Applicant’s solicitor… that the Applicant’s qualified doctor did not diagnose any ‘disease’, the Respondent submits that the allegation of ‘disease’ has been made without proper justification and queries why it was pleaded at all”.
I am inclined to agree. The onus was on the Appellant Worker to demonstrate that her injuries resulted from a disease process. She in fact relied upon completely contrary evidence. The Arbitrator did note the allegation raised. It cannot then be said that he failed to take into account “that the Applicant suffers from a disease of gradual onset…” when the Appellant Worker’s own submissions were to the contrary. In submissions on appeal dated 25 June 2004, the Appellant Worker has made a complete about-turn, and now seeks to demonstrate, by way of reference to radiological and other evidence previously before the Arbitrator, that she suffers from degenerative changes in her lumbar spine. Those opinions were in evidence before the Arbitrator. In paragraph 9 of those submissions, the Appellant Worker now refers to the report of Dr O’Keefe dated 31 May 2002. He opined that the CT Scan “shows degenerative changes at the L4/5 and L5/S1 levels consistent with age and the type of work she has done through her life”.
Even if one was to accept this interpretation of the CT Scan, again, there is no evidence brought by the Appellant Worker to suggest that the ‘nature and conditions’ of her employment with the Respondent Employer in any way aggravated, accelerated, exacerbated or caused deterioration of that condition.
The Appellant Worker refers to a number of decisions of various Judges of the former Compensation Court on ‘disease’ cases but again, fails to identify any evidence in the present case wherein a finding of ‘disease’ might be made having regard to the principles discussed in those various authorities.
The Arbitrator concluded (paragraph 27) that:
“…The Applicant has not persuaded me that there is anything in the nature and conditions of her employment which has caused or contributed to the injury to her back and legs. Further, the Applicant has failed to persuade me that there is any evidence which entitles me to make a finding that the Applicant has suffered any permanent disabilities as a result of a disease”.
On the evidence and submissions before him, it was an appropriate conclusion to draw.
The claimed error on the part of the Arbitrator on this issue is spurious indeed, and accordingly, this aspect of the appeal must fail.
As to the claim that the Arbitrator failed to take into account that the Appellant Worker suffered back and leg pain as a result of a frank injury on 16 November 2001, the evidence on this point was slim to say the least.
The Appellant Worker, in her initial submissions to the Arbitrator, relied solely on her own recollection of the event as set out in her statement. At that stage, no incident report (subsequently annexed to the Respondent Employer’s submissions dated 5 May 2004) was in evidence. The Appellant Worker asserted that ‘… all of the evidence is in support of the Applicant’s statement that the injury occurred in 2001, and the Respondent has failed to produce any document which contradicts the Applicant’s evidence”.
After receipt of the Respondent Employer’s submissions and the incident report, the Appellant Worker was invited to make further submissions in reply, but failed to do so.
The Appellant Worker did not produce any medical evidence from her treating doctors in support of her claim that she suffered an injury to her back and legs in the 2001 incident. The report of Dr Gordon dated 11 February 2003 only made reference to consultations with himself and Dr Tun in 2002.
In the fresh evidence now filed by the Appellant Worker, there is a report from Dr Gordon, her treating general practitioner, dated 19 May 2004, referring to consultations prior to the injury on 4 January 2002. He states, “I was consulted by Mrs Robertson on 29/8/1994, 18/4/1996 and 13/5/1996. I treated her for an upper respiratory tract infection”. There is no reference to treatment in or around November 2001.
The incident report filed by the Respondent Employer with its submissions on 5 May 2004 notes an injury on 16 November 2001 when “Pelmet of Sliding Door became dislodged & fell & hit Joan on head causing her to blackout”. The report is allegedly signed by the Appellant Worker and was allegedly prepared by Eva Collins from the Respondent Employer.
The facts accord to a degree with the Appellant Worker’s own statement. She stated that sometime in 2001 she was injured when a wooden pelmet came off a sliding door and hit her head. Her recollection in her statement was that she fell “…to the floor landing on my backside…” She also said that when she returned to the office she “spoke to Eva [Eva Collins] and filled out an incident report form for WorkCover”.
The Appellant Worker’s recollection was clearly hazy. No claim appears to have been made in respect of this incident. In her claim form in respect of the incident in January 2002, she specifically denied “any similar related injuries or conditions” and further that her back was “normal” prior that incident. She told Dr O’Keefe “Towards the end of last year on a Friday, she noticed that she had right-sided low back pain… There was no specific incident”. She told him she consulted Dr Gordon but that does not accord with his records.
In her submissions on appeal, the Appellant Worker asserts in paragraph 2 “it is submitted that the force of the collision which knocks an Applicant out, is a hit with substantial force and which could cause injury to the Applicant’s back with pain radiating down the right and left leg”. This is mere speculation. There is no evidence to support this assertion. The Appellant Worker then concedes that the only evidence of the incident in 2001 is that of the Appellant Worker herself.

With reference to the incident report apparently completed by Ms Collins, the Appellant Worker takes issue with the ‘hearsay’ evidence of Ms Collins as referred to in paragraph 1.7 of the Respondent Employer’s submissions dated 4 May 2004. I agree that little weight can be attached to the assertion by the Respondent Employer’s solicitors that, “I am instructed that Ms Collins invited the Worker to consult her doctor. However, she declined to do so and continued to work…”. In the absence of a signed statement from Ms Collins, the incident report speaks for itself. There is no suggestion by the Appellant Worker in her statement that she consulted a doctor, or completed a Claim Form or submitted medical certificates in relation to the incident in November 2001. No supplementary statement was filed by the Appellant Worker disputing either the subject matter of the incident report or the assertions made by Ms Collins as recorded in the Respondent Employer’s submissions.
As I have said, the Arbitrator’s direction on 31 March 2004 clearly gave the Appellant Worker the opportunity to make further submissions. Indeed, in view of the conflicting views relating to the 2001 incident, it is surprising that steps were not taken by the Appellant Worker to address this conflict.
There is nothing in the Appellant Worker’s submissions on appeal that significantly add to those previously filed. The Appellant Worker complains that the Arbitrator accepted the ‘evidence’ of Ms Collins as set out in the Respondent Employer’s submissions of 4 May 2004 “as a point of fact and truth”. Even if that part of Ms Collins’ ‘evidence’ had been rejected, the Appellant Worker still bore the burden of proof in establishing she suffered a back injury in November 2001.
The only evidence of that was her statement. There was contradictory evidence in other documents such as the incident report, claim form and records of Doctors Tun and Gordon.
The Arbitrator noted this evidence, as submitted by the Respondent Employer, in his Reasons at paragraphs 15 – 25 inclusive. He concluded that (paragraph 26):
“In my view, the absence of a recorded complaint of back and leg pain in respect of the incident which occurred on 16 November 2001 and the lack of any records verifying that the Applicant had any time off as a result of that incident or that she consulted a doctor, persuades me that it is highly improbable that the Applicant’s present recollection that she suffered injury to her back and legs on that occasion are [sic] correct”.
In my opinion, it cannot be said, as submitted by the Appellant Worker, that the Arbitrator erred in failing to take into account “that the Applicant suffered back pain… as a result of frank injury which occurred on 16 November 2001”. The Arbitrator clearly accepted that an incident occurred on 16 November 2001. There was simply insufficient evidence to find that the Appellant Worker suffered a back injury on that occasion.
Nothing in the fresh evidence tendered by the Appellant Worker or in her further submissions lends support to her allegations. It was open to the Arbitrator on the evidence before him, particularly the contemporaneous report in respect of the incident on 16 November 2001, to make such a finding. I can see no error in his Reasons on this point, and accordingly, this aspect of the appeal must fail.

DECISION

The decision of the Arbitrator is confirmed.

COSTS

No order is made as to costs.

Deborah Moore
Acting Deputy President 27 June 2005

I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DEBORAH MOORE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE