Russell v Labourforce Solutions Pty Limited

[2006] NSWWCCPD 330

WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Russell v Labourforce Solutions Pty Limited [2006] NSWWCCPD 330

APPELLANT:  Joan Maree Russell

RESPONDENT:  Labourforce Solutions Pty Limited

INSURER:GIO General Ltd

FILE NUMBER:  WCC21608-05

DATE OF ARBITRATOR’S DECISION:          6 June 2006

DATE OF APPEAL DECISION:  1 December 2006

SUBJECT MATTER OF DECISION: Reasons; injury; disease; section 16 Workers Compensation Act 1987; application of Rail Services Australia v Dimovski & anor [2004] NSWCA 267

PRESIDENTIAL MEMBER:  Acting Deputy President Bill Roche

HEARING:On the papers

REPRESENTATION:  Appellant:      Robb & Associates

Respondent:   Edwards Michael Moroney

ORDERS MADE ON APPEAL:  The Arbitrator’s decision dated 6 June 2006 is revoked and the following order made:

“The matter is remitted to a different Arbitrator for the Appellant Worker’s claim to be redetermined in accordance with the reasons in this decision.”

The Respondent Employer is to pay the Appellant Worker’s costs of the appeal.  Costs of the first Arbitration are to follow the event of the second Arbitration.

BACKGROUND TO THE APPEAL

1. On 3 July 2006 Joan Maree Russell (‘the Appellant Worker/Ms Russell’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 6 June 2006.

1. The Respondent to the Appeal is Labourforce Solutions Pty Limited (‘the Respondent Employer/Labourforce’).

1. Ms Russell was born on 23 April 1965.  She started work with Labourforce, a labour hire company, on 1 November 2004.  In the course of that employment she was placed with Gordon and Gotch as a packer and sorter.  Her duties were heavy and repetitive, requiring her to sort books and magazines.

1. On 8 February 2005, whilst working for Gordon and Gotch, Ms Russell developed symptoms in her right shoulder.  The exact sequence of events after 8 February 2005 is the subject of conflicting evidence which is set out below.  After various periods away from work she ultimately resumed her normal duties until no further work was available and she was retrenched on 6 May 2005.

1. Ms Russell found alternative employment with a Valentine’s Bakery (‘Valentine’s’) in Wodonga, Victoria on 8 July 2005.  As a result of her right shoulder symptoms she ceased that job in late October or early November 2005.

1. Compensation was paid for her initial period away from work but her subsequent claim for ongoing compensation was denied.  On 21 December 2005 an Application to Resolve a Dispute (‘the Application’) was filed in the Commission seeking weekly compensation from 9 September 2005 to date and continuing.  A claim was also made for the cost of ongoing medical treatment.

1. The Application alleged injury to the right shoulder on 8 February 2005. At the hearing on 26 May 2006 the Application was amended by consent to include a claim “for nature and conditions in respect of the period of 1 November 2004 to 6 May 2005” and to allege “aggravation or acceleration of a degenerative disease or change in the right shoulder” pursuant to section 16 of the Workers Compensation Act 1987 (‘the 1987 Act’) (see transcript page one line 36).

1. Whenever an amendment is made, it is good practice for the party making the amendment to reduce it to writing and include it in the file so that the record can accurately reflect the claim or issues the Arbitrator is called upon to determine.  It would have been helpful if that had been done in this matter.

1. The claim was heard by a Commission Arbitrator on 26 May 2006 and decided in favour of the Respondent Employer in a reserved decision delivered on 6 June 2006.

1. Ms Russell seeks leave to appeal that decision.

LEAVE TO APPEAL

Monetary Threshold

1. Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).

1. The quantum in issue on the appeal is in excess of $5,000.00 and therefore the threshold in section 352(2)(a) of the 1998 Act is satisfied. No award of compensation has been made in this case but the Arbitrator’s finding would result in the Respondent Worker receiving no compensation and therefore the second limb of section 352(2) does not apply (see Mawson v Fletchers International Exports Pty Ltd [2002] NSWWCCPD 5).

Time

1. The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.

1. I grant leave to appeal.

PRELIMINARY MATTERS

1. Section 354(6) of the 1998 Act provides:

“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”

1. In Part 2 of the Appeal Against Decision of Arbitrator the Appellant Worker has indicated her consent to the appeal being determined ‘on the papers’.  However, in the written submissions attached to the appeal it is argued that as there is no transcript there should be an oral hearing.  The Appellant Worker also sought leave to amend her submissions when the transcript became available.  The transcript was forwarded to the parties on 7 July 2006.  No amendment has been made to the Appellant Worker’s grounds of appeal and no additional submissions have been filed by either party.

2. Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the Respondent Employer that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances. 

THE DECISION UNDER REVIEW

1. The ‘Certificate of Determination’, dated 6 June 2006, records the Arbitrator’s orders as follows:

“1.There will be an award for the Respondent in respect of the Applicant’s claim for weekly benefits.

2.There will be an award for the Respondent in respect of the Applicant’s claim for section 60 expenses.

3.There will be no order as to costs.”

ISSUES IN DISPUTE

1. The issues in dispute in the appeal are whether the Arbitrator erred in:

(a)making inconsistent findings of fact (‘factual findings’);

(b)failing to determine what injury the Appellant Worker sustained on 8 February 2005 (‘factual findings’);

(c)failing to provide reasons as to why he determined that the Appellant Worker sustained a frank injury in preference to applying section 16 of the 1987 Act (‘reasons’);

(d)failing to properly apply section 16 of the 1987 Act (‘disease’);

(e)misdirecting himself as to the effect of the Court of Appeal decision of Rail Services Australia v Dimovski & anor [2004] NSWCA 267 (‘Dimovski’) (‘disease’);

(f)not giving any or any adequate reasons for finding that the Appellant Worker sustained injury but did not sustain an aggravation or acceleration of a disease (‘reasons’);

(g)failing to consider and apply the Court of Appeal decision in A & G Engineering v Civitarese (1996) 14 NSWCCR 158 (‘Civitarese’) (‘disease’), and

(h)failing to determine whether the Appellant Worker was, as a consequence of the injury sustained on 8 February 2005, incapacitated for work on the open labour market (‘incapacity’).

THE EVIDENCE

1. Ms Russell’s evidence is contained in her statements and in her oral evidence before the Arbitrator.  She states that her duties as a packer and sorter with Gordon and Gotch involved “significant repetitive lifting and bending” (Appellant Worker’s statement, 15 February 2006).  On 8 February 2005 she was “required to reach high and lift heavy books” weighing over 5 kgs.  In the course of this activity she states that she “lost all feeling in my right shoulder”.  The incident was reported and she states that she attended on her general practitioner, Dr Robinson, on 11 February 2005.  In fact she attended on Dr Robinson on 16 February 2005 when he gave her a certificate to be off work from 11 February to 23 February 2005.  She states that she returned to work on 21 February 2005.  Ms Russell’s statement that she was given a light duties certificate by Dr Robinson is not borne out by the certificates that are in evidence but is partly supported by Dr Robinson’s report of 18 October 2005 which I refer to below.

1. The second certificate from Dr Robinson is dated 28 February 2005.  It certifies Ms Russell to be fit for “pre-injury duties” from 24 February 2005.  According to Ms Russell she was placed back on normal duties on 9 March 2005 but her shoulder continued to cause her pain and she returned to Dr Robinson who put her off work for two weeks.  This is partly supported by an undated certificate (‘the third certificate’) from Dr Robinson declaring Ms Russell to be unfit from what appears to be 15 March to 28 March 2005.

1. On 18 March 2005 Ms Russell underwent an ultrasound which revealed “mild bursal bunching” and “mild degenerative changes” in the AC joint.

1. According to Ms Russell’s statement she was called to a meeting by her employer on 12 or 13 March 2005 and asked how her shoulder was going.  She stated that “my employer was unhappy that I had been certified as totally unfit for work.  My employer then telephoned my doctor and as a consequence of that discussion an amended certificate was provided which certified me as being fit for light duties” (Appellant Worker’s statement 15 February 2006, page two).  There is no certificate for light duties from Dr Robinson.  The fourth certificate from Dr Robinson is dated 30 March 2005 declaring Ms Russell fit for pre-injury duties.  This certificate seems consistent with Ms Russell’s statement that she worked for a further two weeks on light duties and was then placed on normal duties “for about a week.  This caused me further problems with respect to my arm and I had difficulty in doing this work”.  The reference to ‘about a week’ must be incorrect because Ms Russell worked on normal duties until she was retrenched on 6 May 2005.  Whether she was having difficulty with her work up to 6 May 2005 is unclear.  That allegation is not supported by the clinical notes from Dr Robinson or by the lay evidence tendered by the Respondent Employer.

1. Evidence was tendered on behalf of the Respondent Employer from its on site recruiter, Joanna Barnett.  In her statement dated 24 March 2006 she stated in paragraph nine:

“Between mid February 2005 and the time that Joan was advised that she was not required any longer at Gordon and Gotch, she was able to perform her normal duties as a casual with Gordon and Gotch.  Her duties still involved packing and sorting books and magazines and Joan was able to do this on a full-time basis (casual) without complaint.”

1. This statement is inconsistent with the Appellant Worker’s evidence and with the clinical notes and report from Dr Robinson.

1. Dr Robinson’s certificates must be read with his report of 18 October 2005 and his clinical notes.  The report records the following history:

“She injured her right shoulder on 9/2/05, four months after starting work.  She noticed pain in her shoulder going up to her neck.  She could only abduct her right arm beyond 90deg with difficulty because of pain [in] her right shoulder.

She was on light duties.  Restrictions from 21/3/2005-11/4/05.  The restrictions were:

a.Not to lift a bundle of magazines greater than 7.5kg.

b.Not to lift above 90deg.”

1. Dr Robinson’s clinical notes record an entry for 16 February 2005 and then, out of sequence with the other entries, an entry dated 17 March 2005 which reads “off work 21/3/05 →11/4/ light duties”.  There appears to be other writing under this entry which has been cut off on the photocopy produced to the Commission.  The next entry in the notes is 28 February 2005 which reads “her right shoulder has settled – back to work 24/2/05”.  This entry is followed by an entry for 16 March 2005 which reads “painful right shoulder again”.  This entry also refers to Ms Russell’s neck and to the injury at Gordon and Gotch.

2. The discrepancies between Dr Robinson’s certificates, notes and report have not been explained.  However, it seems reasonable to conclude that the Appellant Worker’s return to work was not as smooth and straight forward as Ms Barnett suggested in her statement.  Whether Ms Russell returned to normal duties on 30 March or 11 April is unclear.

1. On 28 April 2005 Ms Russell was advised (along with other workers) that there would be no more work beyond 6 May 2005.  She was given the choice of finishing on 28 April 2005 with one weeks extra pay, or working till 6 May 2005 (transcript, page nine line 57).  Ms Russell elected to work up to 6 May 2005 because she enjoyed her job (transcript, page 10 line one).

1. Shortly after her injury Ms Russell commenced physiotherapy treatment for her shoulder which she continued up to and after starting her job with Valentines (Appellant Worker’s statement 15 March 2006).  There is no report from that physiotherapist.

1. There are other entries in Dr Robinson’s notes that are relevant.  An entry appears on 2 May 2005 which is difficult to read but clearly does not refer to right shoulder pain.  An entry for 31 May 2005 refers to a “cough”.  Other references for that entry are difficult to read but do not refer to right shoulder pain.  The next entry is 11 August 2005 which reads “her right shoulder is very sore”.  A referral to Dr Keith, orthopaedic surgeon, was arranged.

1. Ms Russell states that her right shoulder continued to cause her problems after she ceased work for Labourforce.  On 8 July 2000 she started work with Valentines working 32 hours per week.  She had difficulty doing the work at Valentines and, as a consequence of her shoulder problems, reduced her hours from 9 September 2005.  After seeing Dr Keith on 27 October 2005 Ms Russell ceased work.

1. The Appellant Worker’s medical case is from Drs Robinson, Keith and Isbister.  Dr Robinson felt that Ms Russell had a right shoulder capsulitis with a partial tear of the right supraspinatus tendon.  This diagnosis was not confirmed by investigations.  His final diagnosis was subacromial bursitis as a result of her work with Gordon and Gotch.

1. Dr Keith reported to Dr Robinson on 27 October 2005 and to Ms Russell on 17 March 2006.  In her report of 27 October 2005 she stated:

“She has quite significant right shoulder subacromial impingement and tendonosis and AC joint inflammatory arthritis.  She developed this problem while working at Gordon and Gotch in distribution.  She was doing a lot of work, five hour shifts of repetition lifting under five kilograms and after four months her shoulder really became inflamed.

In June 2005 she was made redundant from that job.  Since that time she’s been unable to really be comfortable her in [sic] new job which is at the Valentine Bakehouse where she does a lot of lifting and set ups, and also cannot play Netball.” (emphasis added)

1. In her report of 17 March 2006 Dr Keith commented on the MRI scan dated 9 March 2006.  The radiologist’s report on the MRI scan stated “degenerative changes within the AC joint are demonstrated.  No other significant pathology is evident”.  Dr Keith stated that most of the degenerative changes could be due to an underlying inflammatory arthritis or osteoarthritis of the AC joint which can occur with age and associated with other degenerative conditions.  She added:

   “From my point of view the role of your work has been one of more exacerbation of your symptoms, rather than the direct contribution to your problem.” (emphasis added)

1. Given the history recorded in Dr Keith’s report of 27 October 2005 the ‘work’ referred to in the 17 March 2006 report is, in my opinion, the work at Gordon and Gotch.

1. Dr Isbister, orthopaedic surgeon, saw Ms Russell for medico legal purposes on 9 January 2006.  He recorded that her work with Gordon and Gotch involved sorting books and magazines and stacking them into piles and onto shelving.  The work was rapid and constant and “often required working above shoulder height” (Dr Isbister report 9 January 2006, page two).  His history of injury is as follows:

   “Joan reports that on 8th February 2005 she was working when her ‘right shoulder’ (dominant arm) ‘blew out’.  She describes a ‘tearing sensation’ occurring in her arm associated with a ‘burning’ feeling.”

1. Under ‘treatment’ he records:

“She says she was initially off work for two weeks.  When she returned she could only cope with light duties.  She found her shoulder continued to cause problems however.”

1. He records Ms Russell’s duties at Valentine’s as requiring her to set up the shop, lifting tables and chairs, setting up umbrellas, lifting trays into the ovens, making sandwiches and serving.  He also records her “primary activity” is as a carer for her husband who has severe ankylosing spondylitis.

1. Dr Isbister diagnosed a rotator cuff syndrome affecting the right shoulder with evidence of impingement.  On the issue of nexus, he stated:

“In my opinion this condition is consistent with her having been handling books, working above shoulder height, reaching over stacks of magazines and such activities causing injury to her right shoulder.

I believe work with Gordon and Gotch has been a substantial contributing factor to the injury and to her present condition.”

1. He thought she was not fit for her previous job at Gordon and Gotch but would be fit for lighter activities working with Valentine’s provided lifting and reaching could be restricted.

1. After examining the MRI scan of 9 January 2006 and reading Dr Keith’s report of 17 March 2006, Dr Isbister prepared a further report on 9 April 2006 stating that:

“In my opinion her Joan Russell’s employment with Gordon and Gotch has been a substantial contributing factor to the permanent aggravation and acceleration of the pre-existing degenerative changes in her right shoulder.”

1. The Respondent Employer relies on three reports from Dr Wilding dated 22 February, 5 April and 19 April 2006.  In his first report Dr Wilding records that Ms Russell’s duties required her to stack books above shoulder height.  The work was constant and repetitive.

1. His history in respect of the injury on 8 February 2005 is that she was working very quickly and “as she placed a heavy book on top of a pile on the carousel above shoulder height she said she developed pain in her right shoulder which radiated to the right side of her neck and she ‘lost feeling in the right shoulder and arm’”.  He also records that on her return to work her shoulder was still “twinging” and she had difficulty reaching for objects.  He confirms the Appellant Worker’s history of continuing problems in March 2005 and adds that “by mid April [she] had returned to normal duties”.  He also repeats her history that when she stopped work on 6 May 2005 her right shoulder was still aching and she was attending physiotherapy.

1. Dr Wilding also recorded that in June/July 2005 Ms Russell returned to netball but because of increasing pain in her right shoulder she had to stop in September 2005.  She told the doctor that she was no longer able to throw the ball because it precipitated pain in her shoulder.  She ceased work on 2 November 2005 when her shoulder was very painful.  She told Dr Wilding that the work at Valentine’s had aggravated her shoulder and made her symptoms worse than they had been when she ceased with Gordon and Gotch.

1. Under ‘opinion’ Dr Wilding said:

“Mrs Russell developed symptoms in her right shoulder as a consequence of the nature and conditions of her employment at Gordon and Gotch.

Her work history has been outlined above.

When her employment was terminated at Gordon and Gotch her right shoulder was still symptomatic and this has been detailed above.

She obtained employment at the end of June/early July 2005 at Valentines Bakehouse and her right shoulder symptoms were aggravated further by her employment there.” (emphasis added)

1. Whilst he was unable to give a specific diagnosis Dr Wilding’s opinion was that:

“…the nature and conditions of her employment at Gordon and Gotch was a substantial contributing factor to the development of symptoms in the right shoulder and that the symptoms were further aggravated by her employment at Valentines Bakehouse.” (emphasis added)

1. He thought there was an impairment to Ms Russell’s earning capacity and that she was unfit for any work involving repetitive use of the right arm and or lifting above shoulder height.

1. Dr Wilding’s next report (5 April 2005) was prepared after he examined the MRI scan.  His further opinion was:

“After reviewing the MRI scan I would consider that her shoulder symptoms are due to degenerative change in the acromioclavicular joint, associated with a rotator cuff strain with symptoms of impingement.”

1. On the question of diagnosis and causation he added:

“Her right shoulder symptoms are due to a disease process (degenerative change in the acromioclavicular joint) which has been aggravated by the nature and conditions of her employment.  The nature and conditions of her employment have also precipitated a right rotator cuff strain with impingement.”

1. In his third report of 19 April 2006 Dr Wilding refers to a letter from the Respondent Employer’s solicitor dated 13 April 2005 (presumably, 2006) which, according to the doctor, stated that “Mrs Russell was certified fit to return to pre-injury duties on 24/2/05 with Gordon & Gotch and was able to perform normal duties with that company until she was made redundant in June 2005”.  That history was inaccurate.  At best Ms Russell did not return to her pre-injury duties until 30 March 2005 and perhaps not until 11 April 2005.

1. Dr Wilding refers to additional parts of Ms Russell’s history that were omitted from his earlier reports.  In particular he adds that because of her shoulder pain she reduced her hours with Valentine’s after just three weeks in that job which involved “considerable overhead lifting of trays”.  He repeats the history from his earlier report that her symptoms were worse with Valentine’s than when she ceased work at Gordon and Gotch.

1. Dr Wilding then concluded:

“After reviewing the issues it would appear that her symptoms when she ceased at Gordon and Gotch were relatively minor because she was able to return to playing netball and the predominant aggravation occurred when she worked at Valentine’s Bakehouse.

The fact that her work at Valentine’s Bakehouse significantly aggravated her right shoulder symptoms led to the necessity to undertake the proposed surgery.”

REVIEW

1. The nature of a review and the role and function of a Presidential Member on appeal has been considered in many cases in the Commission.  In The King Island Company Limited v Deery [2005] NSWCCPD 1 it was held at [19]:

“19. A Presidential Member on appeal has a specific and limited role in the review of a decision of an Arbitrator. The review is not a rehearing. The Presidential member is not dealing with the matter de novo and is not arriving at a fresh decision based on all of the evidence available at a later time (Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616). The powers of the Presidential Member to revoke the decision pursuant to section 352(7) of the 1998 Act and to substitute a new decision in its place, are exercisable only where it is demonstrated that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172). Alternatively, the Presidential Member may remit the matter back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions made.”

1. Before an Arbitrator’s decision will be revoked on review it must by demonstrated that it contains or has resulted from an error of fact, law or discretion.  The error must be such that, but for it, a different decision should have been made (see Snow Confectionary Pty Ltd v Askin [2004] NSWWCCPD 79; Section 294 of the 1998 Act; YG & GG v Minister for Community Services [2002] NSWCA 247; Absolon v NSW TAFE [1999] NSWCA 311).

1. I intend to apply the above principles in the matter before me.

ARBITRATOR’S FINDINGS

1. The Arbitrator’s main findings in his Statement of Reasons for Decision (‘Reasons’) were:

·     Ms Russell continued her normal duties without complaint to either management or her treating doctor from at least 11 April to 6 May 2005 (Reasons, paragraph 34);

·     he was satisfied that Ms Russell sustained “an injury at work and in the course of her employment with the Respondent” on 8 February 2005 (Reasons, paragraph 37);

·     the nature of the work undertaken by Ms Russell at that time was such “as would be deemed heavy in that she was required to lift books beyond shoulder height.  Such books weighing in excess of 5 kg” (Reasons, paragraph 37);

·     he accepted Ms Russell “as a person of truth and her statement that she lost all feeling in her right shoulder” (Reasons, paragraph 37);

·     the injury on 8 February 2005 “necessitated periods of total and partial incapacity with the Respondent at least until 11 April 2005 (Reasons, paragraph 38);

·     Ms Russell continued work beyond 11 April 2005 with symptoms “in the form of a twinging sensation in the right arm” but these symptoms were not such as prevented her from performing her normal duties (Reasons, paragraph 39);

·     he was not satisfied that the Appellant Worker’s current incapacity “stems from anything other than the frank injuries sustained in the course of her employment with the Respondent on 8 February 2005” (Reasons, paragraph 41);

·     when Ms Russell returned to work with Valentine’s she was able to sustain “for a significant period of time significantly more hours of work per day than that which she had undertaken in the employ with the Respondent” and the type of work undertaken with Valentine’s was “more arduous” than that which she undertook with the Respondent Employer (Reasons, paragraph 41);

·     Ms Russell conceded that the pain in her arm became worse whilst working for Valentine’s (Reasons, paragraph 42);

·     the evidence suggested that the work with Valentine’s was the cause of Ms Russell’s incapacity (Reasons, paragraph 42), and

·     he was not satisfied that Ms Russell has an incapacity arising out of or in the course of employment with the Respondent Employer and emanating out of the injury on 8 February 2005 (Reasons, paragraph 43).

SUBMISSIONS AND FINDINGS

Factual Findings

1. The Arbitrator said at paragraph 41 of his Reasons that:

“Whilst it is evident from subsequent clinical investigations there is an inherent degenerative condition I am not satisfied that the Applicant’s current incapacity stems from anything other than the frank injuries sustained in the course of her employment with the Respondent on 8 February 2005. It is evident that the Applicant at least as between 11 April 2005 and 6 May 2005 whilst not being totally symptom free was able to manage her normal duties. Indeed when returning to work in either late June or early July she was able to sustain at least for a significant period of time significantly more hours of work per day than that which she had undertaken in the employ with the Respondent and more particularly it seems to me that the nature and type of work undertaken with Valentines Bakery was more arduous than that which was being undertaken with the Respondent. (emphasis added)

1. At paragraph 42 of his Reasons the Arbitrator said “however in my opinion the evidence suggests the Applicant’s employment with the bakery is the cause of her present incapacity”.  It is not clear which evidence the Arbitrator was referring to in this statement.  He then stated at paragraph 43:

“I am not satisfied that the Applicant has an incapacity be it total or partial arising out of or in the course of employment with the Respondent and emanating out of the injury which occurred on 8 February 2005.”

1. The Appellant Worker submits that these findings are inconsistent and cannot stand.

1. The Respondent Employer submits that the highlighted passage from paragraph 41 of the Arbitrator’s Reasons (see [58] above) is “incorrect and does not reflect the finding that the Arbitrator intended to make” (Respondent Employer’s submissions paragraph 4.2). It is said that the Arbitrator was “intending to make a finding that the Applicant suffered a ‘frank injury’ of [sic] 8th February 2005’ and not an ‘injury’ due to ‘the nature and conditions of her employment with the Respondent in respect of the period of employment, namely 1st November 2004 to 6th May 2005’ nor ‘that the nature and conditions of that employment aggravated, accelerated or exacerbated the degenerative changes in the right shoulder and accordingly relies upon section 15 and section 16 of the Act”.

1. It is argued that on reading the whole of the Arbitrator’s Reasons there is no doubt the Arbitrator “was not satisfied that the Appellant had made out her case of incapacity (either total or partial) arising out of or in the course of her employment with the Respondent resulting from injury on the 8th February 2005” (Respondent Employer’s submissions, paragraph 4.3.5).  This submission may well be correct but the difficulty I have on review is that it is inconsistent with the highlighted passage in paragraph 41 of the Arbitrator’s Reasons.  It was open to the Arbitrator to find that Ms Russell suffered a frank injury on 8 February 2005.  However, there was no evidence that she had fully recovered from the effects of that injury.  Indeed, the medical evidence and the evidence of Ms Russell was that she had not recovered.  If the Arbitrator was intending to find that Ms Russell recovered from the 8 February 2005 injury there are two points to note.  First, he did not make that finding.  Second, the evidence would not have supported such a finding.

2. Unless there is the most obvious error that can be corrected under the slip rule or by consent it will only be in the most exceptional case that a Presidential Member can on review determine that where an Arbitrator found ‘A’ he or she intended to find ‘B’.  The inconsistent findings in the present case indicate an error in the Arbitrator’s reasoning.

1. The second ground of appeal under this head is that the Arbitrator failed to make any finding as to what injury the Appellant Worker sustained on 8 February 2005 and, as a consequence of that failure, was unable to properly determine whether her incapacity resulted from that injury.  It is not always essential (though it is always prudent) for an Arbitrator to determine the exact nature of the injury sustained but it is necessary, once a finding of injury has been made, for a further finding to be made as to whether the effects of that injury have ceased or are continuing.  That additional finding is necessary as there will often be (as there is in this case) more than one cause of the particular incapacity.  Without a finding that the effect of an injury has ceased it may be impossible to determine whether incapacity has ‘resulted from’ the particular injury, from some other cause, or partly from the injury and partly from another cause.  It may also be impossible to determine whether medical and hospital expenses under section 60 of the 1987 Act are ‘reasonably necessary as a result of’ the found injury.

1. The Respondent Employer’s response on this issue is to analyse the medical evidence and submit that the Arbitrator considered that evidence.  That may well be correct but the complaint by the Appellant Worker is that having considered the evidence the Arbitrator failed to make the necessary findings to support his conclusions and to properly determine the issues raised in the amended Application.  For the reasons set out more fully at [77] and [78] below, I agree with the Appellant Worker’s submission. 

1. The Respondent Employer submits that Dr Keith’s opinion in her report of 17 March 2006 that the role of Ms Russell’s work has been one of exacerbation relates to the work done with Valentine’s.  I do not accept that submission.  Dr Keith was clearly of the view that the problem with the right shoulder developed while working at Gordon and Gotch (see paragraph [34] above).  More importantly, the Arbitrator did not make a finding on this issue.

1. The Respondent Employer submits that the opinion of Dr Isbister is “flawed” as a result of his inaccurate history that Ms Russell only ever returned to light duties after her injury.  It is true that Dr Isbister’s history is inaccurate on that issue.  Every doctor in this case has an inaccurate or incomplete history in some respect.  That does not necessarily mean that the opinion offered is of no weight but it is certainly a factor that must be taken into account in assessing the medical evidence. 

1. The Respondent Employer submits that the Arbitrator did consider Dr Isbister’s evidence at paragraphs 22 and 23 of his Reasons.  That is correct but it misses the point raised on appeal, namely, that the Arbitrator failed to distinguish between different diagnoses and failed to find whether the effects of the injury on 8 February 2005 had ceased. 

1. The Arbitrator did not make a finding of whether he accepted or rejected the Appellant Worker’s medical case and made inconsistent factual findings.  This involves an error.

Reasons and Disease

1. It is submitted that the Arbitrator failed to give reasons for rejecting the Appellant Worker’s allegation that there had been an aggravation, acceleration, exacerbation or deterioration of a disease and failed to properly apply section 16 of the 1987 Act. These issues are interwoven and will be dealt with together.

1. The Respondent Employer submits that the Arbitrator fully considered all of the medical evidence and authorities and has given sufficient reasons in accordance with the Act and rules for the rejection of the medical evidence that he did not accept (Respondent Employer’s submissions paragraph 6.1).  This bald assertion is unsupported by any references to the Arbitrator’s decision pointing out where the Arbitrator has given appropriate reasons for rejecting the Appellant Worker’s claim that she was injured as a result of the nature and conditions of her work with Gordon and Gotch.

1. The requirement for Arbitrator’s to give reasons has been considered in numerous authorities in the Commission.  In Ayse Cakir v Western Sydney Area Health Service t/as Parramatta Linen Service [2004] NSWWCCPD 1 the authorities were reviewed and the following was noted:

   “58. Arbitrators of the Commission have a common law and statutory obligation to provide adequate reasons for their decisions (section 294(2) of the 1998 Act, Rule 73 of the 2003 Rules [see now Part 15 Rule 15.6 of the Workers Compensation Commission Rules 2006], Absolon v NSW TAFE [1999] NSWCA 311). Failure to do so constitutes an error of law and may be a ground to set aside the Arbitrator’s decision.
   59. The standard by which the adequacy of reasons must be determined is relative to the nature of the decision itself and the decision-maker (see discussion in Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSW WCC PD 6).
   60. The Commission is not a court, and its proceedings are conducted with as little formality and technicality as the proper consideration of the matter permits. This approach is also applicable to the preparation of statements of reasons. However, the reasons must adequately convey to the parties the basis upon which the Arbitrator came to his or her decision. These matters are set out in Rule 73 of the 2003 Rules [see now Part 15 Rule 15.6 of the Workers Compensation Commission Rules 2006], and require the Arbitrator to give a brief statement setting out the reasons for the determination, including:

   ‘(1). . .
   (a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based, and
   (b) the Commission’s understanding of the applicable law, and
   (c) the reasoning process that lead the Commission to the conclusions it made.

   (2) Without limiting subrule(1), the reasons set out in a statement referred to in subrule(1) are to be stated sufficiently (in the opinion of the Commission) to make the parties aware of the Commission’s view of the case made by each of them.’

   61. It is not always incumbent upon a Commission Arbitrator to set out lengthy written reasons in order to comply with the common law, the statutory requirements, or the 2003 Rules. To do so would be unreasonable and inconsistent with the objectives of the Commission in providing a speedy resolution to workers compensation disputes (Collector of Customs v Pozzolanic [1993] 43 FCR 280; Minister for Immigration and Multicultural Affairs v Wu Shan Liang [1996] 185 CLR 259; Minister for Immigration and Multicultural Affairs v Yusuf [2001] 206 CLR 323, M & S Shipman Pty Ltd v Matters [2003] NSW WCC PD 19). However, any stated or published reasons should clearly set out the evidence, findings, and the application of the applicable law. The statement of reasons for decision must explain why and how the Arbitrator made the decision.
   62. As was discussed by Deputy President Fleming in McMahon, to succeed on the ground of ‘inadequate reasons’ it will be necessary for the Appellant to demonstrate not only that the reasons are inadequate, but that their inadequacy sufficiently demonstrates that the Arbitrator has failed to exercise his or her statutory duty to fairly and lawfully determine the application.
   63. In ADCO Constructions Pty Ltd v Ferguson [2003] NSW WCC PD 21 Deputy President Fleming discussed how the standard by which the ‘adequacy’ of an Arbitrator’s reasons will be determined is relative to the nature and context of both the decision made and the decision-maker; and that the Commission is not a court (Fuentes v Standard Knitting Mills Pty Limited & Anor [2003] NSWCA 146) but is obliged to act according to equity and good conscience and the demands of the instant case.
   64. The inadequacy must be such as to warrant the inference that the Arbitrator had not exercised his or her jurisdiction in accordance with law (YG [& GG] v Minister for Community Services [2002] NSWCA 247 (26 July 2002)).”
   
   

2. The Arbitrator dealt with the disease allegations in paragraph 40 of his Reasons where he said:

“I am mindful that the Applicant’s claim is put on the basis that if not simply a frank injury then the symptoms emanate from the nature and condition of her employment and that the Applicant’s restricted incapacity for work became evident as and from 9 November 2005. It is submitted that there being no employer to whom the Act applied at that point in time that the employer who last employed the Applicant is liable to pay compensation to the Applicant, that being in the case at hand, the Respondent. The Applicant further submitted that when considering the issues required to be considered pursuant to Section 9A (substantial contributing factor) that in Mercer v ANZ Banking Group Ltd Mason P with whom Maher and Beazley JJA agreed, noted that there may be more than one substantial contributing factor to an injury. All of this needs to be metered I believe in light of the Court of Appeal Decision in Rail Services Australia v Dimovski (2004) 1 DDCR 648; (2004) NSW CA 267 and in particular the reasoning applied to Section 16 in that it only applies if the ‘injury consists in the aggravation, acceleration, exacerbation or deterioration of a disease.’ Section 16 has no application if there is an injury that satisfies the Section 4A definition of injury. If that injury aggravated a disease and could have supported a claim under the Section 4(b)(ii) definition of injury it does not mean that the injury consists in the aggravation etc of a disease (per Hodson JA at 68).”

1. The above passage implies that the Arbitrator thought that because the Appellant Worker sustained an injury on 8 February 2005 that was the end of the matter so far as the nature and conditions claim was concerned.  That involves an error. 

1. In the course of its decision in Dimovski the Court of Appeal considered and applied Australian Conveyor Engineering Pty Ltd v Mecha Engineering Pty Ltd (1998) 45 NSWLR 606 (‘Mecha’).  The facts in Mecha are instructive: the worker was injured in a fall on 11 February 1992 (a frank injury) in the course of his employment with the first employer. The nature of the injury was the aggravation of pre-existing degenerative changes in his back (aggravation of a disease). The worker suffered a further injury to his back with his second employer between 13 November 1995 and 29 April 1996 as a result of the nature and conditions of his employment with that employer (a ‘nature and conditions injury’ which further aggravated his degenerative condition). The trail judge awarded compensation from 29 April 1996 and apportioned liability between both employers under section 22 of the 1987 Act. On appeal it was held that though the injury on 11 February 1992 could have satisfied either definition of ‘injury’ in section 4 (either ‘frank injury’ or ‘injury in the nature of an aggravation of a disease’) the words “injury consists in the aggravation …of a disease” in section 16(1) should be construed as not referring to something which is an injury independently of its aggravating effects on a previously existing disease, but as being confined to what are entirely injuries by aggravation (see Hodgson JA in Dimovski at [64] and [68] and Sheller JA in Mecha at 616). In other words, the frank injury and the nature and conditions injury were considered to be separate and distinct injuries each giving rise to separate rights and liabilities. A finding that a worker suffered a frank injury which also aggravated a pre-existing disease does not mean that the worker may not also have suffered an aggravation of a disease as a result of the nature and conditions of his or her employment during a different period of employment with the same employer.

1. This point is also illustrated in Dimovski where the worker relied on a nature and conditions claim for the period 25 January 1990 to 30 June 1996, and on frank injuries on 9 May and 6 June 1995 against his first employer (‘SRA’). He relied on a nature and conditions claim for the period from 1 July 1996 to 15 August 1998, and a frank injury on 28 May 1998 against his second employer (‘Rail Services’). Hodgson JA said at [70] that:

“…compensation is payable by Rail Services for incapacity resulting from two injuries, namely a nature and conditions injury and a frank injury on 28 May 1998. The former could possibly be considered an injury under paragraph (b)(ii) and falling within s. 16(1); but the latter could not. Accordingly, the application of s. 22 was not excluded by s.16. The primary judge should have considered whether the incapacity of the worker giving rise to the entitlement to weekly compensation resulted partly from injury occurring in the course of the worker’s employment by SRA, as well as from injuries occurring in the course of his employment with Rail Services.” (emphasis added)

1. The Arbitrator’s finding that he was not satisfied that Ms Russell’s incapacity “stems from anything other than the frank injuries sustained…on 8 February 2005” implies that he was not satisfied that there was any injury as a result of the nature and conditions of employment from 1 November 2004 to 6 May 2005.  However, as the Arbitrator does not make any express finding on this important issue it is impossible to be certain.  The issue of incapacity is separate and distinct from the issue of ‘injury’.  The Arbitrator’s findings deal almost exclusively with incapacity and say nothing about the nature or extent of the injury suffered by Ms Russell either on 8 February 2005 or as a result of the nature and conditions of her employment up to 6 May 2005.  Whether the Appellant Worker sustained an injury as a result of the nature and conditions of her employment and, if so, the nature of that injury was a ‘material question of fact’ in the case and required express findings to be made.  None were made.

1. Further, whilst the Arbitrator referred to the medical evidence in detail he did not make any findings as to which evidence he accepted and which he rejected.  It is not sufficient to merely refer to medical evidence.  What is required is a reasoned analysis of that evidence and an explanation of which evidence is preferred or rejected, and why (Wiki v Atlantis Relocations (NSW) Pty Ltd (2004) 60 NSWLR 127; [2004] NSWCA 174).

1. The Arbitrator’s failure to make findings on these issues amounts to an error of law.  They demonstrate that the Arbitrator has not exercised his statutory duty to fairly and lawfully determine all the issues in the application and require that the decision be revoked.

1. The Appellant Worker argues that the Arbitrator was in error in not referring to and applying the authority of Civitarese. That authority confirms that the 1987 Act does not have extra-territorial operation. Therefore, Labourforce is the last employer in NSW to whom the legislation applies and, subject to all other matters being established, the disease provisions apply to it as the last employment under section 16 of the 1987 Act. The Arbitrator did not consider this issue because he made no determination about the nature and conditions injury.

Incapacity

1. It is submitted that the Arbitrator failed to determine Ms Russell’s ability to earn in the open labour market reasonably accessible to her having regard to the consequences of her injury.  Reference is made to Novello v Zinc Corporation Ltd (1988) 4 NSWCCR 128. The more appropriate authority is Akawa Australia Pty Ltd v Cassells (2003) 25 NSWCCR 385. In that case the Court of Appeal held that a partial incapacity due to injury will ordinarily be reflected in reduced earning capacity even though a worker may in some post injury employment earn as much if not more than pre injury. The Arbitrator did not consider or apply the principles set out in this case.

1. The Respondent Employer submits that it was not necessary for the Arbitrator to consider Ms Russell’s ability to earn in the open labour market because he found that no incapacity resulted from the injury on 8 February 2005.  This argument has initial appeal but it fails to acknowledge the Arbitrator’s inconsistent finding referred to at paragraph [58] above, that he did not make a finding with respect to injury due to the nature and conditions allegation and made no finding as to the nature and consequences of the injury sustained on 8 February 2005 or whether the consequences of that injury had ceased.

1. The Respondent Employer also submits that this issue was not argued by the Appellant Worker before the Arbitrator.  That is correct.  However, this fact does not relieve the Arbitrator from his obligation to apply the principles as set out in Cassells above.  The point sought to be raised on appeal raises an error of law that does not require additional evidence, and the Appellant Worker is entitled to raise such an issue on appeal.

REDETERMINATION

1. I have carefully considered whether I should redetermine this matter or remit it to a different Arbitrator for a rehearing.  The Appellant Worker makes no submissions on this point.  The Respondent Employer submits that, in the event the Commission finds that there is an inconsistency in paragraph 41 of the Arbitrator’s Reasons, the matter should be remitted to the Arbitrator for him to correct “what is obviously a misstatement of his intended finding” (Respondent Employer’s submissions, paragraph 10.2).  In view of the additional errors that have been identified, it is not appropriate to adopt that course.

1. It is my opinion that the only fair course is to remit the matter for a rehearing before a different Arbitrator with each side at liberty to make further submissions and call additional evidence.

DECISION

1. The Arbitrator’s decision dated 6 June 2006 is revoked and the following order made:

“The matter is remitted to a different Arbitrator for the Appellant Worker’s claim to be redetermined in accordance with the reasons in this decision.”

COSTS

1. The Respondent Employer is to pay the Appellant Worker’s costs of the appeal.  Costs of the first Arbitration are to follow the event of the second Arbitration.

Bill Roche

Acting Deputy President  

1 December 2006

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

ASSOCIATE