Sasahara v Kingsford Smith Transport Pty Ltd

[2006] NSWWCCPD 287

WORKERS COMPENSATION COMMISSION

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

CITATION:Sasahara v Kingsford Smith Transport Pty Ltd [2006] NSWWCCPD 287

APPELLANT:  Toru Sasahara

RESPONDENT:  Kingsford Smith Transport Pty Ltd

INSURER:QBE Workers Compensation (NSW) Limited

FILE NUMBER:  WCC14853 - 05

DATE OF ARBITRATOR’S DECISION:          13 December 2005

DATE OF APPEAL DECISION:  27 October 2006

SUBJECT MATTER OF DECISION:                ‘Injury’; section 9A of the WorkersCompensation Act 1987

PRESIDENTIAL MEMBER:  Acting Deputy President Anthony Candy

HEARING:On the papers

REPRESENTATION:  Appellant:      Somerville & Co Solicitors

Respondent:   Diana Benk, Solicitor, QBE In-House Legal

ORDERSMADE ON APPEAL:  1.          The decision of the Arbitrator dated 13 December 2005 is revoked and the matter is remitted to another Arbitrator for determination in accordance with these reasons.

2.The Respondent employer is to pay the costs of the Appellant worker on the appeal.

BACKGROUND TO THE APPEAL

1. Mr Toru Sasahara (‘the worker’) was employed by Kingsford Smith Transport Pty Ltd (‘the employer’) as a driver from 10 May 2003 until 6 February 2004. It appears that the worker was engaged in driving a vehicle obtained under a contract of bailment within the meaning of Schedule 1, clause 10 of the WorkplaceInjuryManagementandWorkersCompensationAct 1998 (‘the 1998 Act’). Employment was not however in issue.

2. While so engaged the worker claimed to have received bilateral arm injuries while carrying passengers’ luggage. It appears that his duties involved collecting passengers from incoming flights to Sydney and conveying them and their luggage to various destinations. He would also it seems carry out the process in reverse, that is, conveying them to the airport from various locations in Sydney.

3. On 20 November 2003 the worker attended his general practitioner, Dr Summers.  That doctor on that occasion prescribed Mobic for right tennis elbow. There is a note that this was ‘from carrying suitcases’. On 12 January 2004 the same doctor noted that the elbow was no better and added ‘carries suitcases as part of job’. On this occasion Celebrex was prescribed. On 15 January 2004 the doctor injected the elbow and prescribed rest. His note goes on to say ‘W/C 15 ® 22/1/04. Tennis elbow’.

4. On 1 September 2005 an ‘Application to Resolve a Dispute’ was registered in the Workers Compensation Commission (‘the Commission’). This sought weekly payments of compensation from 15 January 2004 onwards at the rate of $520 per week and medical expenses compensation. The injury is described as ‘bilateral arm injury’, the date of injury ‘20.11.03’, the date of notice of injury ‘15.1.2004’ and date of compensation claim ‘24.9.2004’. The application was referred to a Commission arbitrator who conducted a teleconference on 10 November 2005 and a conciliation /arbitration hearing on 29 November 2005.

5. On 13 December 2005 a Certificate of Determination was issued by the Commission recording the determination of the arbitrator. The worker failed on his claim for weekly benefits and medical expenses pursuant to section 60 of the WorkersCompensationAct 1987 (‘the 1987 Act’).

6. It is from this decision that the worker on 11 January 2006 sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Commission.

THE DECISION UNDER REVIEW

1. The ‘Certificate of Determination’, dated 13 December 2005 records the Arbitrator’s orders as follows:

   “1.Award in favour of the Respondent as regards the Applicant’s claim for weekly benefits from 6 February 2004.

   2.Award in favour of the Respondent as regards the Applicant’s claim for reasonable medical expenses pursuant to Section 60 of the Act.

   3.No order as to costs.”

ISSUES IN DISPUTE

1. The issues in dispute in the appeal are:

   –Whether the Arbitrator misdirected himself as to the application of section 9A of the 1987 Act.

   –Whether the reasons given by the Arbitrator were adequate.

   –Whether Arbitrator erred in applying the principles in Makita (Australia Pty) Limited v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705, (‘Makita’).

   –Whether the Arbitrator erred in failing to give the worker the opportunity to give evidence about matters which the Arbitrator determined adversely to the worker.

   –Whether the Arbitrator should have referred the matter to an approved medical specialist under section 293 of the 1998 Act.

   –Whether the Arbitrator erred in applying the principles in Jones v Dunkel (1959) 101 CLR 298.

ON THE PAPERS REVIEW

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.”

2. Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the worker 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.

LEAVE

1. Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.

2. The amount at issue in the appeal is more than $5,000 and all of that amount is in issue.

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

4. According leave to appeal is granted.

EVIDENCE

1. Attached to the Application to Resolve a Dispute are a number of medical reports and a letter from the worker’s solicitors to QBE Workers Compensation (NSW) Limited (‘QBE’) the workers compensation insurer of the employer. A statement of the worker was not obtained until 9 November 2005. In that statement he said that he came to Australia in 1979 from Japan. He had worked in a Japanese restaurant as a dishwasher and kitchen hand and he eventually became manager in about 1984. He then worked in a restaurant as a waiter.  He then obtained a job at Angus & Coote, Jewellers, at the airport as well as the Hyde Park Plaza Restaurant in the morning. He began to work as a Japanese tour guide at the end of the 1980s and then worked as a freelance tour guide which was not successful. He then went to JCT Tours as a coordinator for group tours. He then worked again for Angus & Coote as Manager of their shop at the Rocks. At the end of the 1990s he had returned to Japan to visit sick family and in 2001 he worked at Southern Cross Limousines as a driver/guide which involved picking up passengers and taking them sightseeing, to the airport and such like.

2. He began work for the employer in May 2003 as a shuttle bus driver. His duties he said involved driving passengers from the airport to various hotels in the city and bringing passengers back on the return journey. He said he would have to load their luggage into the hatch of the van at the back and often would have to lift suitcases and luggage up above shoulder height to stack them in the van. He says he did this for five to six days per week usually from 8.00am to 10.00pm, sometimes 12 hours a day. He said he was usually very busy and always in a rush.

3. In August 2003 he had gone to Japan for a holiday to visit his family returning to Australia in mid-September 2003 when he resumed work with the employer. Not long after he returned he said he became very busy. It was the Rugby World Cup in Sydney and many people were arriving. By the start of October 2003 he said he started to develop pain in his right upper arm especially at the elbow. Over a course of a few days the pain became constant. He could still do his job but was in constant pain. He says he went to the chemist and got a ‘tennis elbow’ elastic support. He then used a painkilling spray which he said was of no help. By November 2003 his right arm was getting worse so he went to see his GP, Dr Summers. By early January 2004 he noticed the pain getting much worse so he went to see Dr Summers on 12 January 2004 who told him to rest. He accordingly informed work that he would be having a week off and sent them an ordinary medical certificate. He said he had two weeks off on this occasion. He said he resumed work on his usual duties on 30 January 2004. He says he was still very sore but managed by using an elbow belt while continuing medication. He said he only lasted one week but by then the pain was too much. He said he rang the employer and spoke to the director saying that because of his injury he could not work there any more.

4. He then went to Centrelink to get a disability pension and said he was not aware of workers compensation at that time and it did not occur to him to make a claim. On 22 February 2004 he found work as a subcontract freelance tour guide with Eiko Tour Pty Limited. He said that this involved narrating history and general stories to tourists on the bus and there was no physical work as such. He said it was a good job but it did not pay well. Despite the change of work he said he was getting no better and accordingly Dr Summers referred him to see Dr Quain, an orthopaedic surgeon. The worker said he did not like him and asked not to go back and see him after his second visit. In May 2004 he found a job at Ippon Sushi Restaurant in Sydney as a restaurant manager. He set out his duties there. He was able to work without a problem at first because he could his use left hand rather than his right to carry things and there was not much carrying involved. He said that at the beginning of July 2004 his right arm started to get really bad and whenever he went to work he found he could not cope particularly as that restaurant was cold and made him feel sore. He said he had to stop doing that work in July because he could not keep it up.

5. The worker said he saw a law firm, was advised about workers compensation and obtained some advice about making a claim for compensation.

6. He said he had seen Dr Ian Hargreaves in June 2004 but said that doctor could not help him because he was a wrist specialist. He returned to Japan at the end of August [? July 2004] to see his father as he was in a nursing home and was there for about three weeks. He returned on 17 or 18 August 2004 and went onto Centrelink benefits. He said that they (his solicitors) recommended that he see Dr Perko, an orthopaedic surgeon. He said he took his lawyer’s advice and made a claim for compensation from QBE. (This appears to have been done on 24 September 2004 although the claim form was not in evidence). The claim was declined by QBE, relying on section 9A of the 1987 Act. Dr Summers also referred the worker to Dr Brian Noll, an orthopaedic surgeon. By this time he was saying he had problems with his left arm. He then saw Dr Perko in October 2004 and that doctor ordered an ultrasound and diagnosed epicondylitis and ulnar neuritis. CRS (Commonwealth Rehabilitation Service) was, he said, trying to find him work but on 17 December 2004 they closed his case. He did not find any work.

7. In June 2005 he said he saw Dr Beran, a neurologist, who sent him for nerve conduction studies. He says that on 4 November 2005 Dr Summers certified him fit for full hours [of work] but with no lifting over 5kgs.

8. Attached to the ‘Application to Resolve a Dispute’ is a report of Dr Summers dated 17 January 2005. In that report Dr Summers said he first saw the worker with a painful right elbow on 20 November 2003. There was a history of carrying heavy suitcases at work. He again saw the worker on 12 January 2004 and on 15 January 2004 an injection of cortisone was given into the tender area and a work certificate for one week was issued. The doctor noted that over the next months there was little improvement with the pain extending into the right shoulder and along the length of the right arm. He thought this was presumably a related tenosynovitis and the worker was given further anti-inflammatories, analgesics, physiotherapy and acupuncture. He said that the worker had been off work since 7 February 2004 and had seen a number of specialists and undergone various X-rays and ultrasounds all of which had been negative other than showing some reactive changes in the right medial epicondyle. The worker was at the time of the report still complaining of pain in both arms, the right worse than the left and this was interfering with his day to day activities. Dr Summers thought that his employment at the time of presentation was a substantial contributing factor to the injury. He thought the worker should find alternative employment.

9. On 26 May 2004 Dr J Quain, orthopaedic surgeon, saw the worker at the request of Dr Summers. Dr Quain considered that the worker had pain from lateral epicondylitis which he explained to the worker was regarded as being due to a chronic tear with degeneration of the extensor origin, particularly of the extensor carpi radialis brevis. That doctor noted he had some mild pain in the left elbow which had settled. The doctor told him that for epicondylitis there were only two forms of effective treatment, one being cortisone injections which the worker was reluctant to try and the other being surgical excision of the degenerate area and repair. Once again the worker had reservations about this. The doctor thought that in most instances the pain would settle in time.

10. Dr Brian Noll, orthopaedic surgeon, also saw the worker at the request of Dr Summers and reported on 9 September 2004. The history was of right elbow pain 10 months before  [December 2003] with subsequent right shoulder pain and pain radiating intermittently to involve the whole of the right arm. He described similar pain in relation to his left arm. He said that he had literally pain everywhere. He had had acupuncture and physiotherapy with no significant benefit. The doctor was unable to find any specific abnormality in relation to his shoulders and unfortunately could not account for the symptoms of which he complained. Dr Noll suggested that the worker be referred to a rheumatologist for further investigation and management. It should be noted that the reports of Drs Quain and Noll to which I have referred are contained in the documents produced under Direction for Production by Dr Summers. These were relied on by the employer before the Arbitrator.

11. Dr Summers referred the worker to a radiologist, Dr Lam, who performed an X-ray and ultrasound of the right shoulder on 18 June 2004. No abnormality was found although Dr Lam had recorded there was “some crepitation on abduction of the shoulder”.

12. Dr Mark Perko saw the worker at the request of both Dr Summers and another GP, Dr Light, on 15 October 2004. He obtained a history of pain commencing initially in the right elbow but over the preceding two months developing pain in the left elbow as well. He also complained of pain in his right shoulder over the preceding three to four months [that is since June or July]. While the initial onset of pain over the right elbow was over the medial epicondyle it was then less localised and more diffuse. The worker told the doctor that his pain had initially arisen in the course of his duties which involved lifting and unloading suitcases. Despite the cessation of this work his pain had not subsided. Dr Perko recommended an ultrasound which was carried out on 26 October 2004 by Dr John Read. Dr Perko describes the result of the ultrasound as follows: “… demonstrated changes with tendinosis in the right flexor origin and some ulnar nerve changes in both elbows consistent with ulnar neuritis.” Dr Perko recommended to the worker that he continue a program of conservative management including stretching, massage, counterforce bracing, avoiding aggravating activities and a graduated strengthening program. His impression was that the worker had symptoms associated with tendinosis of the medial flexor origin of the right elbow and to a lesser extent in the left. He also had some ultrasound evidence of ulnar neuritis. Dr Perko concluded that if there were a satisfactory response to treatment then the worker would be able to return to work on reduced hours and selected duties which should involve predominantly clerical and administrative work. He could progress to driving and if his symptoms were ultimately resolved return to pre-injury duties. He thought it was possible that his symptoms would not respond and then the worker would remain unsuitable for any work (my emphasis).

13. In a report of 21 June 2005 Dr Perko referred to a letter from the worker’s solicitors of 31 May 2005 and expressed the opinion that the worker’s employment had been a substantial contributing factor to the development of his bilateral elbow symptoms. He considered that the repetitive nature of his work involving lifting suitcases would be a significant contributing factor.

14. Dr Beran, neurologist, saw the worker at the request of Dr Summers on 22 June 2005. That doctor concluded that the worker had an ulnar neuropathy affecting the right upper limb. He organised nerve conduction studies and arranged to see the worker again.

15. Dr Beran reviewed the worker on 18 July 2005 and referred to a telephone account of nerve conduction studies which were said to be completely normal with no evidence of ulnar neuropathy. He did however consider that it was possible to have minor nerve damage without it being revealed on nerve conduction studies. The doctor proposed to treat the worker conservatively and asked him to wear a foam rubber padding over the right elbow. He noted that the worker was wearing a tight woollen cuff which he thought was doing more damage than good. The doctor indicated that he would see the worker again in one month’s time however there is no later report.

16. The employer relied on a report of Dr Fine, neurologist, who saw the worker on 1 November 2004. He gave that doctor a history of developing pain in his right shoulder about October/November 2003 and shortly thereafter similar pain around his left shoulder. He had more recently developed pain in the back of the neck. The doctor noted that there had been a number of X-rays performed in relation to the neck, elbow, right shoulder and right wrist, none of which had shown any abnormality. He noted that an ultrasound scan of the right shoulder was normal and CT scan of the cervical spine in August 2004 was similarly normal. The worker said that he was worse then than he had been in October 2003.

17. Dr Fine’s opinion was that the diagnosis was uncertain but it was not a neurological condition. He thought it resembled polymyalgia rheumatica. Dr Fine recommended the opinion of a rheumatologist. Dr Fine did not think that the worker had aggravated his previous complaint and the complaints which had occurred since the original condition were part of the ongoing process. He did however think it was inadvisable for the worker to lift suitcases.

18. Dr Meachin, orthopaedic surgeon, also saw the worker at the request of the insurer on 13 October 2004. The worker told that doctor that he had to average about five to eight trips per day from Airport Central to the Airport. He had to carry heavy suitcases of which the heaviest belonged to Indians and Americans. The worker told the doctor that he had tried physiotherapy for three visits with no improvement and had then tried acupuncture which he was continuing to have. He claimed to be worse when he saw Dr Meachin. He was complaining of aching over the right upper scapular area radiating into the upper arm to the elbow and had similar symptoms down the left hand side. His main complaint was that he could not hold things in his right hand such as when he held a beer. He said that when he was carrying objects some days before he started vomiting. In fact, during the examination the worker told Dr Meachin he felt like vomiting and so the examination was stopped in order that the worker could have a drink of water. Dr Meachin found no abnormality on examination of the right shoulder, right elbow and right hand and wrist. He was of the opinion that the worker’s symptoms could not be explained on an orthopaedic basis. He did not consider that the worker had any clinical evidence of epicondylitis and thought that he was fit for work. He did not think that the worker’s employment had any bearing on his present complaints.

1. There was a hearing before the Arbitrator on 29 November 2005 at which the employer’ counsel sought leave to cross examine the worker. This was objected to by the worker’s representative and the Arbitrator declined to allow cross-examination.

THE ARBITRATOR’S REASONS

1. In a long and detailed decision the Arbitrator gave reasons for deciding against the worker. He noted that it was only Dr Perko whose opinion could assist the worker. The Arbitrator thought that real doubts were raised by some of the worker’s other treating doctors as well of course as the opinion of the employer’s doctors.

2. The Arbitrator referred to the principles enunciated in Makita. Dr Perko had purported to express an opinion that the worker’s employment had been a substantial contributing factor to the development of bilateral elbow symptoms. He also thought the repetitive nature of the work requiring lifting suitcases would be a significant [sic] contributing factor. The Arbitrator took the view that Dr Perko prior to what he refers to as the second scan did not meet the standard required in Makita in furnishing the trier of fact with criteria enabling evaluation of the validity of the expert’s conclusions. The Arbitrator ultimately did not consider that the ultrasound of 26 October 2004 together with Dr Perko’s views was sufficient to persuade him on causation and incapacity on the balance of probabilities. Other balancing factors included the views of other doctors, for both worker and employer, and the failure of Dr Perko to take any meaningful history. The Arbitrator also referred to the absence of any report from Dr Hargreaves (referred to by the Arbitrator as Dr Anderson). Ultimately the Arbitrator considered that the medical evidence was sufficiently clouded to prevent his making a decision on the balance of probabilities in favour of either party and accordingly as the onus was on the worker the claim failed.

SUBMISSIONS, DISCUSSION AND FINDINGS

1. The Amended Grounds of Appeal are five in number.

2. The first ground alleges an error of law on the part of the Arbitrator in stating at paragraph 13(iv) of his reasons that “the issues that remains is a medical one as to whether the applicant’s employment has been a substantial contributing factor to his medical difficulties and the extent of those difficulties/incapacity/if any.” In relation to this ground the worker submits that issues of causation are to be determined on the whole of the evidence before the Arbitrator and not simply the medical evidence. Reliance is placed on the decision of Westpac Banking Corporation v Kilby & Bananacoast Credit UnionLtd [2005] NSWWCCPD 24. In response to this the employer says that the Arbitrator did refer to the evidence of the worker in paragraph 13(ii) and (iii).

3. The employer submits that the Arbitrator correctly made an analysis of the medical evidence and the parties’ competing submissions in order to come to a conclusion as to whether on the balance of probabilities the worker had sustained an injury within the meaning of section 4 of the 1987 Act and also that his employment was a substantial contributing factor to that injury upon the application of section 9A of that Act.

4. The evidence of the worker contained in his statement of 9 November 2005 is that by the start of November 2003 he started to develop pain in his upper right arm especially at his elbow. Over the following few days the pain became constant. He said he could still do his job but was in constant pain. He then says he saw Dr Summers who diagnosed epicondylitis and said he should rest. Earlier in his statement the worker related that as part of his duties he lifted suitcases and other luggage to stack them into the vehicle which he drove. He says that he was usually very busy and perhaps even more so when he returned to work in mid-September 2003. The Arbitrator concluded that the worker genuinely believed that his work was a substantial contributing factor to his difficulties, especially with his right arm and subsequently with his left. The Arbitrator was clearly aware of and took into account the worker’s statement in relation to the loading and unloading of vehicles.  Nonetheless I consider that the Arbitrator erred in law in stating that at paragraph 13(iv) “the issues [sic] that remains is a medical one as to whether the Applicant’s employment has been a substantial contributing factor to his medical difficulties and the extent of those difficulties/incapacity/if any.”

5. It seems to me that the question whether the worker has suffered an injury within the meaning of section 4 of the 1987 Act is one for the Arbitrator taking into account all of the evidence both lay and medical. Similarly the question whether injury so found satisfies the requirements of section 9A of the 1987 Act is also a question for the Arbitrator having regard to all of the evidence and the matters enumerated in section 9A as being required to be taken into account.

6. The Arbitrator does not it appears to me specifically deal with the issue of ‘injury’ as opposed to the requirements of section 9A. This is perhaps in some way understandable when one has regard to the terms of QBE’s declining liability by letter of 19 October 2004. The reason for liability being declined was said to be as follows: “Work is not a substantial contributing factor to the injury pursuant to section 9A of the Workers Compensation Act 1987”. The Arbitrator did however, I think, misdirect himself in terms of the matters which he was required to decide and this led to the result which was unfavourable to the worker.

7. I cannot help but comment on the referral to Dr Summers and Dr Perko of the question whether the employment was a substantial contributing factor to the worker’s injury. As I have earlier said this is I think not a question for a doctor but rather one for determination by the Arbitrator. Dr Summers was of opinion that that employment was a substantial contributing factor to the injury. Dr Perko by letter of 21 June 2005 expresses a similar opinion. It is not clear that either of these doctors had the requirements of section 9A put before him and the doctors appear to be answering the question as a matter of simple English informed by medical considerations. I have reservations as to the utility of seeking the opinion of doctors on the section 9A issue. It appears to me to be outside their relevant medical expertise.

8. In view of my conclusions as to Ground 1 of the Amended Grounds of Appeal I am of the opinion that the decision dated 13 December 2005 should be revoked and the matter should be referred to another Arbitrator for determination in accordance with these reasons. Accordingly it is not necessary to consider the further grounds of appeal relied on.

DECISION

1. The decision of the Arbitrator dated 13 December 2005 is revoked and the matter is remitted to another Arbitrator for determination afresh in accordance with these reasons.

COSTS

1. The Respondent employer is to pay the costs of the worker on this appeal.

Anthony Candy

Acting Deputy President

27 October 2006

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

ASSOCIATE