Rooty Hill RSL Club Limited v Yusofzai
[2006] NSWWCCPD 40
•9 March 2006
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Rooty Hill RSL Club Limited v Yusofzai [2006] NSWWCCPD 40
APPELLANT: Rooty Hill RSL Club Limited
RESPONDENT: Shahin Yusofzai
INSURER:CGU Workers Compensation (NSW) Limited
FILE NUMBER: WCC17528-03
DATE OF ARBITRATOR’S DECISION: 29 September 2004
DATE OF APPEAL DECISION: 9 March 2006
SUBJECT MATTER OF DECISION: Total incapacity – section 37 of the Workers Compensation Act 1987; adequacy of evidence.
PRESIDENTIAL MEMBER: Acting Deputy President Deborah Moore
HEARING:On the papers
REPRESENTATION: Appellant: Sparke Helmore Solicitors
Respondent: Gerard Malouf & Partners
Solicitors
ORDERS MADE ON APPEAL: 1. Paragraph 4 of the Arbitrator’s
Determination dated 29 September 2004 relating to the award for weekly benefits is revoked.
2Paragraphs 1, 2, 3 and 5 of the Arbitrator’s Determination dated 29 September 2004 are confirmed.
3.The matter is referred to the Registrar for allocation to another Arbitrator to determine the remaining issues in accordance with the reasons stated in this decision.
4. No order as to costs of the appeal.
BACKGROUND TO THE APPEAL
Shahin Yusofzai (‘Ms Yusofzai’) was employed by Rooty Hill RSL Club Limited (‘Rooty Hill RSL Club’) as a cook’s assistant. She claimed that on 12 October 2001 whilst at work, she slipped and fell, injuring her neck, back and both arms. She ultimately ceased work in about July 2002.
Liability was initially accepted by Rooty Hill RSL Club, and Ms Yusofzai was paid weekly benefits up until 3 January 2003.
On 7 November 2003 Ms Yusofzai filed an ‘Application to Resolve a Dispute’ in the Commission seeking reinstatement of weekly compensation from 3 January 2003, medical expenses and permanent loss compensation pursuant to ss 37 and/or 40, 60, 66 and 67 of the Workers Compensation Act 1987 (‘the 1987 Act’).
As the parties could not agree as to whether or not Ms Yusofzai had suffered any permanent impairment as a result of her injuries, that aspect of the dispute was referred to an Approved Medical Specialist, Dr Brian Hagan.
Dr Hagan examined Ms Yusofzai on 16 April 2004. On 1 June 2004, the parties were furnished with the Medical Assessment Certificate of Dr Hagan. Dr Hagan found that, after deductions, Ms Yusofzai suffered a 12% loss of use of the right arm at or above the elbow, 6% permanent impairment of the neck, 4% permanent impairment of the back, 2% loss of use of the right leg at or above the knee and 2% loss of use of the left leg at or above the knee.
The parties attended a conciliation conference and arbitration hearing on 23 July 2004. The parties accepted the assessment of Dr Hagan, and agreed that, pursuant to section 66 of the 1987 Act, Ms Yusofzai was entitled to compensation in the sum of $17,400.00. Agreement was also reached with respect to the claim pursuant to section 67 of the same Act in the sum of $10,000.00.
The remaining matters in dispute, namely whether Ms Yusofzai was entitled to weekly benefits compensation beyond 3 January 2003 and whether she could substantiate her claim for medical expenses, proceeded to arbitration hearing.
It appears that there were difficulties with the evidence in relation to the medical expenses dispute, and that aspect of the proceedings was the subject of further directions from the Arbitrator, culminating in teleconferences on 20 and 21 September 2004. On that later date, the parties ultimately agreed that some medical expenses had been properly incurred by Ms Yusofzai, but some, particularly expenses in relation to anti-depressant medication, remained in dispute.
On 29 September 2004, the Arbitrator issued a ‘Certificate of Determination’ with an accompanying ‘Statement of Reasons’. The Arbitrator found as follows:
“1.By consent and consistent with the findings set out in the Medical Assessment Certificate of Dr Brian Hagan issued on 1 June 2004, the Respondent is to pay the Applicant a total amount of $17 400.00 pursuant to s 66 of the 1987 Act.
2.By consent the Respondent is to pay the Applicant $10 000.00 in respect of pain and suffering pursuant to s 67 of the 1987 Act.
3.The Respondent is to pay the Applicant $2 282.65 pursuant to s 60 of the 1987 Act.
4.The Respondent is to pay the Applicant weekly benefits at the rate prescribed by s 37 of the 1987 Act for a claimant with three dependents from 3 January 2003 to date, such payments to continue in accordance with the provisions of the Act.
5.The Respondent is to pay the Applicant’s costs as agreed or assessed.”
On 27 October 2004 Rooty Hill RSL Club lodged an Appeal Against Decision of Arbitrator. In essence, Rooty Hill RSL Club submits that the Arbitrator’s finding that the worker was totally incapacitated from 3 January 2003 was against the weight of evidence, and in particular, appeared to be based on evidence of psychiatric difficulties and/or depression which had not been the subject of the claim before the Arbitrator. Further, as Rooty Hill RSL Club submits “… The degree of incapacity found should have been confined in this case to that which necessarily arose from the physical injuries … If the Arbitrator relied in anyway on psychiatric sequelae, it was irredeemably procedurally unfair to Ms Yusofzai’s Employer. If he did not, his findings are not supported by the evidence in relation to physical sequelae”. In addition, Rooty Hill RSL Club submits that the Arbitrator’s finding that Ms Yusofzai’s incapacity was contributed to by the amount of medication she was taking was unsupported by adequate evidence.
On 8 November 2004, Ms Yusofzai filed a’ Notice of Opposition to Appeal’. Briefly, Ms Yusofzai submits that the Arbitrator’s decision was not flawed “… in arriving at the conclusion that the Applicant suffered from chronic pain syndrome and was in such pain as to require strong medication. The Arbitrator’s decision was not flawed in finding the Applicant unfit for work”.
ON THE PAPERS REVIEW
Both parties have submitted that the appeal can be determined on the papers. Having carefully read the Arbitrator’s reasons, the transcript, all the evidence before him and the submissions from both parties on appeal, I am satisfied that I have sufficient information within the meaning of section 354 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) and in accordance with Practice Directions 1 and 6 to proceed ‘on the papers’, and that this is the appropriate course in the circumstances.
LEAVE TO APPEAL
The amount at issue on appeal satisfies the criteria set out in section 352(2) of the 1998 Act. The appeal was filed in time. Leave to appeal is granted.
THE ARBITRATOR’S DETERMINATION
The Arbitrator concluded that (paragraphs 57 – 59 of the ‘Statement of Reasons’):
“Dr Hagan has found authoratively that the Applicant has indeed suffered permanent impairment as a result of a workplace injury, and the rest of his report is strongly suggestive of the conclusion that she remains seriously incapacitated.
At the very least, the Applicant is incapacitated to the extent that she cannot readily perform work in a kitchen environment that involves repetitive and strenuous activities likely to tax her right arm, neck, back and legs.
However, my findings go further than this. It is very apparent to me that the injuries just mentioned have occasioned and continue to occasion the Applicant a great deal of debilitating pain. To counter-act the pain she has been obliged to have recourse to strong medication, and I accept her evidence that the combination of her pain and the treatment for it has left her effectively unable to work in any capacity at all”.
Consequently, he found that (paragraph 60):
“… The Applicant’s employment has contributed substantially to injuries that have left her unable to work in any capacity since the middle of 2002 and up until today. She is accordingly entitled to weekly benefits under section 37 for the period specified in her claim – that is, from 3 January 2003 to date and continuing”.
In paragraph 61 of the ‘Statement of Reasons’, the Arbitrator went on to say this:
“Although this is not the case that has been presented by the Applicant … and there is no direct specialist evidence in this regard, there are strong indications that the Applicant is suffering from clinical depression precipitated by her workplace injuries. It is likely that an underlying constitutional vulnerability has been triggered or exacerbated by events at work… However, I do not need to establish this in order to arrive at my decision … Limitations in the way in which the case was developed, pleaded and presented does mean, though, that the claim for anti-depressant medication cannot succeed”.
Earlier in his ‘Statement of Reasons’, in evaluating Ms Yusofzai’s oral evidence, the Arbitrator stated (paragraph 21):
“Ms Yusofzai appeared to be in a profoundly depressed and upset state, but she impressed me as an entirely honest witness. For my purposes, her key evidence was that due to the side effects of the strong medication she was on under medical direction, she was unable to function effectively as a human being, whether at home or at work. The medication in question included pain killers and perhaps also anti-depressants prescribed by her psychiatrist … According to her statement, she has been on morphine at times, apparently on the instructions of her psychiatrist (I note here, however, that the Applicant’s Counsel advised me that, the documentary evidence notwithstanding, the Applicant had not made and would not be making any claims arising from psychological injury).”
In paragraph 23 of the ‘Statement of Reasons’, he said:
“I should venture that while the side-effects of strong pain killing and other medication would in all likelihood impact adversely on the Applicant’s state of well-being and the ability to function, so too surely would the underlying condition or condition for which the medication had been prescribed. According to her written statement, she is in a state of continual depression and this has impacted severely on her ability to enjoy a normal life. At the time that she prepared her written statement, she said she had lost some kilograms in weight ‘due to the worry about [her] injuries’. I am not sure why the Applicant did not present this quite self-evident and arguably work-triggered dimension of her predicament in advancing her case.”
His final statement, at paragraph 62 was “The priority now must be for the Applicant to regain her health with the support and guidance of her family and treating physician. She is a motivated person clearly keen to return to work, but will need close and careful assistance for this goal to be realised.”
SUBMISSIONS, EVIDENCE AND FINDINGS
As Rooty Hill RSL Club properly points out in its submissions (paragraph 17) “There is no issue in the appeal that the Arbitrator was entitled to find incapacity arising from the physical injuries”.
The thrust of its submissions are threefold: Firstly, that the evidence from Ms Yusofzai and the medical evidence did not support a finding of total incapacity; secondly, that the Arbitrator appears to have accepted ‘psychological sequelae’ in his finding of total incapacity in circumstances where it was specifically excluded from Ms Yusofzai’s claim; and thirdly, the Arbitrator’s acceptance of Ms Yusofzai’s “key evidence” as he put it at paragraph 21 of his ‘Statement of Reasons’, that “… due to the side effects of the strong medication she was on under medical direction, she was unable to function effectively as a human being, whether at home or at work” was unsupported by adequate evidence.
The Evidence as to Incapacity
The Arbitrator, as he was entitled to, clearly had regard to the opinion of Dr Hagan, the Approved Medical Specialist. He notes at paragraph 37 of his ‘Statement of Reasons’ “… the Applicant’s legal representative gave pride of place to the … Medical Assessment Certificate of Dr Hagan.” He then goes on to quote from Dr Hagan’s report at paragraph 38 as follows:
“Mrs Yusofzai has developed a significant and severe chronic pain syndrome. The cause of this condition is unknown; it can be regarded as a complication of a minor injury in the same way as reflex sympathetic dystrophy is. Thus, an abnormal response to some muscular-ligamentous pain developed in a person abnormally pre-disposed. I have attributed half the neck pain and two thirds of the back pain to this constitutional diathesis”.
He omitted the statement from Dr Hagan in relation to the ‘chronic pain syndrome’, “I have simply taken this as a constitutional and prior condition so that (my emphasis) I have attributed half the neck pain and two third of the back pain to this constitutional diathesis”. ‘Diathesis’ is defined in Butterworths Medical Dictionary 2nd Edition as “The inborn constitutional make-up of an individual that predisposes him to a certain disease (or condition) … it is determined by a number of genes…”
In other words, not all the ‘incapacity’ claimed could be said to have resulted from the injury on 12 October 2001, if Dr Hagan’s opinion is to be accepted.
Ultimately, Dr Hagan concluded that as a result of the incident pleaded, (and indeed with some contribution from the ‘nature and conditions’ of the employment) Ms Yusofzai suffered a 6% impairment of the neck and a 4% impairment of the back. These percentage impairments of themselves do not suggest ‘significant’ incapacity, however, taken with the finding of a 12% loss of use of the right arm at or above the elbow and a 2% loss of use of each leg, there was clearly adequate evidence of some physical incapacity.
Leaving aside for the moment the issue of the ‘impact’ of medication on Ms Yusofzai’s
condition, was the medical evidence as to her physical capacity sufficient to support a finding of total incapacity?
Whilst the Arbitrator refers to all the medical reports before him (paragraph 25 of the ‘Statement of Reasons’) in his ‘analysis’ of Ms Yusofzai’s medical evidence in paragraphs 37 – 40 under the heading “The Applicant’s Medical And Other Evidence”, he quotes only from the report of Dr Hagan. He states, quoting from Dr Hagan’s report, “Dr Needham [of the Pain Management Clinic in Parramatta] felt that ‘chronic pain syndrome’ was the overwhelming problem and I agree with his analysis”.
At paragraph 39, the Arbitrator states “in her statement and in the medical history that she has given to examining physicians, the Applicant has recorded that she has been consulting with a psychiatrist, Dr Chaudhary. No reports of Dr Chaudhary have been introduced into these proceedings. As mentioned earlier, the Applicant has made no claim in respect of psychological injury.”
He then goes on to note at paragraph 40:
“In her vocational report of 8 July 2004, Kerrie McInnes concluded that it was unlikely that Mrs Yusofzai could ever return to her chosen career as a cook or chef ‘due to the physical demands that lifting utensils and the strain of cutting and chopping vegetables and fruits would place upon her existing injuries’. She added that ‘Mrs Yusofzai was very tearful throughout the assessment and found it necessary to get up and change position and walk at intervals to ease her discomfort. She presented in a low mood and despondent with her future prospects in the workplace and the impact her injuries placed on her family including, but not restricted to, her elderly mother and husband’”.
However, there was plenty of additional evidence relied upon by Ms Yusofzai which demonstrated a capacity for employment, which the Arbitrator appears to have overlooked. For example, Dr Giblin who saw Ms Yusofzai on 27 June 2002 noted that, on physical examination, she demonstrated some restriction of movement, eg “… extension of her neck was ¾ normal …” and that “… she could bend over and touch to just below her knees… extension of the lumbar spine was 2/3 normal.” He concluded that she was “… fit for a sedentary work environment”.
Kerrie McInnes, the Vocational Consultant, in the report dated 8 July 2004 referred to above, listed the “restrictions and limitations” Ms Yusofzai told her she suffered, including “cannot bend, stretch or crouch.” This seems inconsistent with Dr Giblin’s examination and indeed that of Drs Stephen and Rowe whose reports I will refer to later. Ms McInnes listed as “possible options” for employment as being Hospital Diet Supervisor and Hospital Food Service Manager. Whilst concluding that Ms Yusofzai was unlikely to “… ever return to her chosen career as a cook or chef …” Ms McInnes then stated:
“Psychologically, her enthusiasm and motivation would be best stimulated by aiming towards a role in an associated area in the food industry as set out above. This is not to say that her injuries would enable her to meet the demands of these roles. This factor could only be determined by time. It is recommended that Mrs Yusofzai should be provided with the services of a well funded rehabilitation provider…”
However, in a supplementary report dated 11 July 2004, Ms McInnes commented on a number of occupations suggested by Mr Burchett, a vocational psychologist who saw Ms Yusofzai at the request of Rooty Hill RSL Club on 10 February 2004. In her supplementary report, she stated:
“During discussions with Mrs Yusofzai as to her preferred occupations, she emphasised her love of cooking and the food industry and agreed that Hospital Catering is a much slower paced business than the Restaurant business. She expressed an interest in training for this industry. Indeed, Mr Burchett suggested ‘further training and developing improved levels of basic skills’ for other occupations and I felt that this training would be better utilised in building on her existing skill and knowledge … I believe that the most direct means of returning her to full employment is to steer her in a direction that motivates her by creating goals for which she is enthusiastic”.
All of this evidence certainly suggests Ms Yusofzai had some capacity for employment.
In paragraphs 41 – 45 of the ‘Statement of Reasons’, the Arbitrator summarised “The Respondent’s Medical and Other Evidence.” In paragraph 42, he quotes from the report of Dr John Stephen dated 1 October 2002 that “from the physical point of view, I could see no reason why Mrs Yusofzai could not carry out her pre-injury duties.” Dr Stephen had concluded “… I could find no evidence of significant physical impairment, either in the neck or the right upper limb or the low back.” The Arbitrator did not comment upon Dr Stephen’s ‘Clinical Examination’ wherein he noted:
“Throughout the history taking I noted that Mrs Yusofzai was emphasising points with considerable vigour, moving her neck through a completely free and painless range. The same applied to her low back during various movements, including those of dressing and undressing, when movements were full or all but full and appeared to be painless.”
In paragraph 43, the Arbitrator quotes from the report of Dr Roger Rowe dated 7 November 2002 as follows:
“There is no evidence available to me of any organic pathology that would explain her presentation … there is no evidence of pathology that would prevent her undertaking normal pre-injury duty or any other work consistent with her age and sex. … It may be appropriate to obtain an assessment by a psychiatrist who can then direct treatment and certify fitness”.
Again, no reference is made by the Arbitrator to Dr Rowe’s “Physical Examination”. Following that examination, Dr Rowe said:
“Physical examination revealed a woman of average build who was measured to be 70 kilograms in weight and 167cm. Mrs Yusofzai stated that her true weight is 65kg these days and not 70kg as measured by me. She also stated that she has lost 8 or 10kg of weight since the injury. She walked with a normal gait and moved in a normal manner. She was able to walk independently on her toes and on her heels and she could squat fully. She sat comfortably throughout the history taking during which time she was noted to move her arms and neck quite freely whilst checking various items in her file and whilst rummaging for x-rays and during normal gesticulation. It is noted that although she complains of constant pain, she does not have the appearance of being in constant pain”.
Interestingly, both Dr Stephen and Dr Rowe saw Ms Yusofzai at about the same time she was consulting Dr Liew, Rheumatologist. The Arbitrator appears to have overlooked a series of reports including a number from Dr Liew forwarded to the Commission by Ms Yusofzai on 15 March 2004 and served on Rooty Hill RSL Club on the same day. Those reports were all included in the Arbitrator’s file and I must assume were before him. Dr Liew reported seeing Ms Yusofzai on 27 September 2002 (shortly before she saw Dr Stephen for Rooty Hill RSL Club), and noted:
“She says for the first time in the last so many months that she feels that she is getting somewhere with significant improvement in her condition, in particular she has been able to control her pain and is resting and sleeping much better.”
In the last report dated 3 March 2003 Dr Liew recorded:
“… Her basis complaints of severe incapacitating pain … had remained unchanged. She says she still needs to take oxycontin 10mg tds and Zoloft 100mg bd… again, I believe her main problem is a chronic pain syndrome rather than pain associated with an ongoing active pathological process. I encouraged exercise, in particular walking and stretching and increased recreational and outdoor activities, rather than along the path of medications, in particular narcotics for pain management.”
Dr Liew’s diagnosis of ‘chronic pain syndrome’ is consistent with that of Dr Needham and Dr Hagan and suggests either a “diathesis” as Dr Hagan suggested or some psychological response, and certainly not an ongoing “active pathological process”. Nothing in that material again suggests that Ms Yusofzai was, even at that stage, totally incapacitated or “… unable to function effectively as a human being whether at home or at work.” That is the last report from Dr Liew. His treatment regime had clearly expressed the need for physical activity and a reduction in medication.
The Arbitrator concluded in paragraph 59 of the ‘Statement of Reasons’:
“… I accept her evidence that the combination of her pain and the treatment for it has left her effectively unable to work in any capacity at all. Substantially evidence in this regard is the fact that her treating doctor continues to declare her unfit for any work. Dr Gill has clearly arrived at the same impression as I have over the credibility of the Applicant: ‘I believe Mrs Yusofzai’s condition and illness is genuine and related entirely to her work’ (see his report of 3 March 2004).”
It is true that Ms Yusofzai had continued to provide Rooty Hill RSL Club with certificates declaring her unfit for work supplied by Dr Gill. The report to which the Arbitrator has referred was not included in the list of “medical evidence” relied upon by Ms Yusofzai, and having searched all files forwarded to me by the Commission, I have been unable to locate it. There is however a supplementary report from Dr Gill dated 29 July 2004 filed with the Commission and served by Ms Yusofzai on Rooty Hill RSL Club on 2 August 2004 wherein he apparently responds to a request “regarding evidence in support of a claim for medications prescribed to Ms Yusofzai”. Interestingly, in that report, he notes the last specialist consultation she had was with Dr Mark Liew on 28 May 2003. It is noted at that stage that she was “…on oxycontrin 20mg twice a day. Seeing a Psychiatrist Dr Chaudhary; advised to take aurorix 300mg at night and rivotril 0.5mg twice daily.” The balance of the report refers to consultations prior to that date.
This report suggests that the oxycontrin had certainly been reduced and that the principal form of treatment was medication prescribed by the psychiatrist. It also suggests that Ms Yusofzai had not consulted Dr Liew or indeed Dr Needham for over 12 months. In the absence of any reports from the treating psychiatrist, it is difficult to know with any certainty the amount of medication Ms Yusofzai was in fact taking subsequent to May 2003.
In paragraphs 44 and 45 of the ‘Statement of Reasons’ the Arbitrator refers to the report of Mr Burchett, a vocational psychologist dated 10 February 2004. He quotes from that report:
“Ms Yusofzai reportedly sustained a work related injury principally affecting her lower back and right shoulder in the year 2001. As a result, she indicates there are constraints on her capacity to work. … she appears to lack confidence in her work related skills and have a low orientation characteristic of those who are in a depressed state of mood … an obsessional level of somatic concentration may be interfering with her ability to participate in treatment or efforts for rehabilitation”.
In paragraph 45, the Arbitrator states:
“Mr Burchett went on to flag a number of appropriate vocational possibilities for Ms Yusofzai concluding that ‘this assessment was undertaken from a psychological perspective. Note was taken of Ms Yusofzai’s self-reported physical limitations. However, evaluation of these limitations is beyond this assessor’s area of expertise”.
Further examination of Mr Burchett’s report reveals that he had noted on presentation that “pain behaviour was evident …” Her functional evaluation produced results that “ … suggest that Ms Yusofzai has a cognitive profile similar of those who are successful in trade, traineeship and supervisory levels of training.” Mr Burchett then concluded that:
“… Psychological intervention will be important for her … On the basis of the current assessment Ms Yusofzai has been shown to have a number of positive qualities that are likely to be valued by employers …”
He then lists a number of vocational possibilities noting that:
“Some of the specific options that, subject to the suggested psychological invention, she can consider include: product assembler, light industry such as jewellery or electrical goods, ticket collector or seller, hand packer light industries …”
There was a clear suggestion in this report that with appropriate psychological treatment, Ms Yusofzai had some capacity for employment.
In her oral evidence before the Arbitrator, the Arbitrator asked Ms Yusofzai (page 19) “… What sort of work would you be able to do, would you imagine?” She replied,
“Well, I like cooking, but I don’t think I go [sic] back to work in the kitchen anymore because I lost that … when I see myself [sic] and I could not do anymore heavy stuff, like, physically. I can do as a light duty, which is on the till you can work and take the money, but not heavy stuff.”
At page 20, the Arbitrator asked “and you were saying that if there was fairly carefully restricted duties you may be able to do some work?” Ms Yusofzai replied:
“Well, it is up to my doctor, because at the moment when I am taking those medications, I don’t think so [sic] this doctor allow me to do any job because those medications make you drowsy and tired, you know, and …”
The Arbitrator then asked “I presume you are taking medication to deal with your psychiatric condition and which has got side-effects?” Ms Yusofzai responded by referring to “pain killers” that she was taking.
By page 21, the Arbitrator asked, “Do you think as a result of the medication that you’re taking that you can’t do any work at all in any capacity even …” Ms Yusofzai replied “At the moment, yes. At the moment …”
The Arbitrator then asked “You say that the medication you are currently on, [sic] what you are saying, it really prevents you from effectively doing any employment. Am I correct?” Ms Yusofzai replied: “That’s right, yes.”
Further on at page 22, the Arbitrator asked:
“Over the last six months if a job were available to you … an employer gave you an open invitation, ‘whenever you feel well enough to come back to work,’ would there have been periods over the last six months when you would have been able to come back to work?”
Ms Yusofzai replied “Yes, I do, but not in a kitchen.”
Ms Yusofzai then went on to say that she doubted she could have done any work in the past six months because “… to be honest with you, I could not do my own house job… so I don’t know whether I try to work inside the house if I could not do anything …”
All this evidence is somewhat inconsistent, probably due in part to Ms Yusofzai’s language difficulties. Ms Yusofzai apparently gave oral evidence for the purposes of clarifying precisely when she ceased work and clarifying some issues relating to medical expenses. That was the nature of the questions she was asked by her own Counsel at pages 13 – 18 of the transcript. It is then that the Arbitrator himself embarks on a discussion with Ms Yusofzai as to her capacity for employment, eliciting varying responses referred to above.
There is no real evaluation in the Arbitrator’s Reasons as to the basis upon which he said “… My findings go further than this. It is very apparent to me that the injuries … have occasioned and continue to occasion the Applicant a great deal of debilitating pain.” His reliance upon Dr Gill’s opinion alone as “substantiating evidence” of Ms Yusofzai’s inability to work “… in any capacity at all,” was against the weight of all the other evidence to which I have referred.
Whilst it is clear from a plethora of decisions in the Commission that an Arbitrator is not required to provide either lengthy reasons for or a detailed analysis of all the available evidence, reasons are necessary to provide a sufficient explanation to the parties for the decision made, and in particular, to give reasons when deciding as between experts, or for relying on a particular expert opinion. As Mahoney JA said in Soulemezis v Dudley (Holdings) Pty Limited [1987] 10 NSWLR 247 “The Judge is to apprise the parties of the broad outline and constituent facts of the reasoning upon which she or he has acted … it is necessary that the essential grounds upon which the decision rests should be articulated”.
The totality of the evidence, both lay and medical, suggested that, certainly from a physical point of view, Ms Yusofzai had some capacity for employment. Indeed, the Arbitrator himself said at paragraph 58 “at the very least, the Applicant is incapacitated to the extent that she cannot readily perform work in a kitchen environment that involves repetitive and strenuous activities likely to tax her right arm, neck, back and legs”.
The Arbitrator’s findings and reasons suggest that he adopted the diagnosis of ‘chronic pain syndrome’ which Dr Hagan, on whom the Arbitrator also relied, regarded as a “constitutional” condition or “diathesis” and not the result of any pathological process brought about by the fall at work.
The various reports on Ms Yusofzai’s results of physical examination to which I have referred previously, and the apparent inconsistencies therein must place some doubt on the Arbitrator’s finding that “… the combination of her pain and the treatment for it has left her effectively unable to work in any capacity at all…”
The Arbitrator’s finding that Ms Yusofzai was totally incapacitated for employment was against the weight of all the evidence, and constitutes an error of law.
The ‘Medication’ and ‘Psychological’ Issues
What is apparent from the Arbitrator’s ‘discussion’ with Ms Yusofzai in the transcript to which I have referred above, is a suggestion of an incapacity due to ‘side-effects’ of various medications. This can only be described as self-limitations as reported by Ms Yusofzai, and does not appear to be supported by the medical evidence.
The report of Dr Gill dated 28 July 2004 to which I have referred earlier details the nature of the medication, treatment and specialist consultations up to May 2003.
There was simply no medical evidence before the Arbitrator as to these alleged side effects nor their impact on Ms Yusofzai’s capacity for employment. No doctor addressed the issue as to her capacity having regard to any treatment she was receiving. The “key evidence” the Arbitrator apparently accepted was that “… due to the side effects of the strong medication she was on under medical direction, she was unable to function effectively as a human being, whether at home or at work,” was simply not supported by any other evidence.
What is apparent from much of the evidence is that Ms Yusofzai has, or had, significant psychological complaints. That aspect of her complaints was specifically excluded from the claim, yet there is considerable evidence suggesting that a psychological condition or depression had an impact on her perceived capacity for employment. The Arbitrator’s reasons make frequent reference to these difficulties in terms that suggest he clearly had regard to them in reaching his decision. For example, in paragraph 61 of his ‘Statement of Reasons’, he states:
“Although this is not the case that has been presented by the Applicant … and there is no direct specialist evidence in this regard, there are strong indications that the Applicant is suffering from clinical depression precipitated by her workplace injuries. It is likely that an underlying constitutional vulnerability has been triggered or exacerbated by the events at work. (See the observations of Dr Hagan). However, I do not need to establish this in order to arrive at my decision below. Limitations in the way in which the case was developed, pleaded and presented does mean, though, that the claim for anti-depressant medication cannot succeed”.
In paragraph 21, the Arbitrator observed “she appeared to be in a profoundly depressed and upset state …”
Ms Yusofzai’s own evidence in her statement dated 16 November 2003 was that “I am depressed all of the time because I cannot help support my family and I am on strong medication from the psychiatrist.”
Having stated that “although this is not the case that has been presented [and] … there is no direct specialist evidence in this regard, …”, the Arbitrator then goes on to say however that “there are strong indications that the Applicant is suffering from clinical depression precipitated by her workplace injuries.” Having referred to the depression, proffered an explanation for its cause (again without recourse to any specific evidence), he then concludes that “the claim for anti-depressant medication cannot succeed”. The Arbitrator appears to have been attempting to ‘separate’ a claim for certain medical expenses from issues of both incapacity and the impact of the medication on Ms Yusofzai’s condition, but it is difficult to conclude in light of his statements that the Arbitrator had no recourse whatsoever to Ms Yusofzai’s psychological state when reaching his decision, and this is particularly so in respect of paragraphs 21 – 23 of the ‘Statement of Reasons’. In paragraph 21, he stated:
“She appeared to be in a profoundly depressed and upset state … her key evidence was due to the side-effects of the strong medication, she was on under medical direction, she was unable to function effectively as a human being … The medication included pain killers and perhaps also antidepressants prescribed by her psychiatrist … according to paragraph 10 of her statement, she has been on morphine at times, apparently on the instructions of her psychiatrist. (I note here, however, that the Applicant’s counsel advised me that, the documentary evidence notwithstanding, the Applicant had not made or would not be making any claims arising from psychological injury).”
Yet in paragraph 22, the Arbitrator states, “she testified further that she had been on this medication for many months, and expected to be on it for the foreseeable future, with all its debilitating side effects.” And then in paragraph 23,
“I should venture that while the side effects of strong pain killing and other medication would in all likelihood impact adversely on the Applicant’s state of well-being and ability to function, so too surely would the underlying constitutional condition for which the medication had been prescribed. According to her written statement, she is in a state of continual depression … at the time that she prepared her written statement, she said she had lost some 8 kilograms in weight … I am not sure why the Applicant did not present this quite self-evident and arguably work triggered dimension of her predicament in advancing her case.”
He then concludes in paragraph 24 “if what the Applicant says is true, the effect of her injury has been substantial and is ongoing”.
All this evidence suggests that the “medication” was required for psychological reasons, specifically not the subject of the claim. The medical evidence suggested that certainly from a physical perspective Ms Yusofzai had some capacity for employment. A finding of total incapacity could only be sustained by acceptance of the proposition that the side effects of medication for psychological reasons made Ms Yusofzai “unable to function effectively as a human being, whether at home or at work”.
The impact of psychological problems, (not included in the claim) together with associated prescribed medication, seems to be inextricably entwined in the Arbitrator’s Reasons and Findings, such that he has erred in law in his determination that Ms Yusofzai was totally incapacitated for employment.
Reliance on ‘psychological sequelae’ as the solicitor for Rooty Hill RSL Club points out in circumstances where Ms Yusofzai’s legal representative specifically declined to plead either such injury or the effects of treatment for it meant that, “… There was no opportunity for the … employer to address the issue in the proceedings at all.” It follows then, it is submitted, “if the Arbitrator relied in any way on psychiatric sequelae, it was irredeemably procedurally unfair to the respondent employer. If he did not, his findings are not supported by the evidence in relation to physical sequelae”.
For the reasons stated above, I agree with this submission.
Similarly, the Arbitrator’s conclusion that Ms Yusofzai “… is a motivated person clearly keen to return to work …” is unsupported by the evidence and in particular, that of Mr Burchett who, in his report of 10 February 2004 stated that “… her ability to take an effective part in programmes for treatment for physical difficulties or rehabilitation is likely to be impaired by difficulties associated with motivation (my emphasis) and the reported prevalence of psychological difficulties. She appears to have an obsessional level of concern with her somatic condition.”
CONCLUSION
The Arbitrator’s determination that Ms Yusofzai was totally incapacitated for employment was against the weight of evidence as to her physical injuries, and constitutes an error of law.
The evidence clearly supports a finding of some partial incapacity, but in light of the references made by the Arbitrator to the alleged impact of medication on Ms Yusofzai’s condition, and his observations of her during oral evidence, her apparent depression and lack of motivation and the inconsistencies on physical examination, I do not consider it appropriate to substitute my own decision as is provided for by section 352(7) of the 1998 Act and this aspect of the claim should be remitted to a new arbitrator for determination.
I also have concerns as to the Arbitrator’s finding that Ms Yusofzai had three dependent children. In a claim form dated 2 August 2001 referring to an incident on 15 July 2001, Ms Yusofzai, when asked “is your spouse or defacto working?” ticked “yes”, and then listed three children as dependant. In her claim form dated 23 October 2001 in relation to the incident on 12 October 2001, she again indicted that her spouse was working but this time listed only her husband as dependant. Possibly language difficulties may be responsible for this confusion however, it is a matter that may be of relevance in the ultimate determination of Ms Yusofzai’s capacity for employment.
DECISION
1. Paragraph 4 of the Arbitrator’s Determination dated 29 September 2004 relating to
the award for weekly benefits is revoked.
2 Paragraphs 1, 2, 3 and 5 of the Determination dated 29 September 2004 are
confirmed.
3. The matter is referred to the Registrar to remit to another Arbitrator to determine
the remaining issues in accordance with the reasons stated in the decision.
COSTS
I make no order as to costs of the appeal.
Deborah Moore
Acting Deputy President
9 March 2006
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
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