Sharon Louise Spellman v Returned Services League of Australia Alice Springs Sub-branch Incorporated
[2004] NTMC 87
•07/12/2004
PARTIES: Sharon Louise Spellman
v
Returned Services League of Australia Alice Springs Sub-branch Incorporated
TITLE OF COURT: Work Health Court
JURISDICTION: Work Health
FILE NO(s): 20118793
DELIVERED ON: 7.12.04
DELIVERED AT: Darwin
HEARING DATE(s): 12-15.7.04, 30-31.8.04, 1.9.04
DECISION OF: D TRIGG SM
CATCHWORDS:
REPRESENTATION:
Counsel:
Plaintiff: Ms Gearin
Defendant: Mr Barr
Solicitors:
Plaintiff: Ward Keller
Defendant: Hunt & Hunt
Judgment category classification: C
Judgment ID number: [2004] NTMC 087
Number of paragraphs: 302
IN THE WORK HEALTH COURT
AT DARWIN IN THE NORTHERN
TERRITORY OF AUSTRALIA
No. 20118793
BETWEEN:
SHARON LOUISE SPELLMAN
Plaintiff
AND:
RETURNED SERVICES LEAGUE OF AUSTRALIA ALICE SPRINGS SUB-BRANCH INCORPORATED
Defendant
REASONS FOR DECISION
(Delivered 7 December 2004)
Mr Trigg SM:
1. Throughout these reasons the Work Health Act is referred to as “the Act”.
2. The hearing in this matter commenced before me on 12 July 2004. In the course of that hearing a number of preliminary issues arose that required resolution. As a consequence the evidence ceased and legal argument commenced. I delivered my written decision on these preliminary issues on 13 August 2004. That decision (hereinafter referred to as “Dec-1”) should be read as forming part of the decision herein. In Dec-1 I made a number of findings. Some of these findings are relevant to this decision, and are referred to hereinafter.
3. In Dec-1 I have set out the history of how this matter progressed up until the evidence was ceased to enable me to rule on the various preliminary issues which were raised. The worker made five attempts to finalise her Statement of Claim, which led to a number of changes to the Defence. A Counterclaim was also eventually relied upon. At the time the evidence concluded the pleadings finally set out the issues that I was required to determine. I will firstly set out the pleadings herein. Then I will consider what issues are raised on the pleadings. Then I will consider the evidence and make any necessary findings of fact. Then I will consider the expert medical evidence and make any necessary findings thereon. Then I will consider any time limitation issues that may arise. Then I will make any consequential or other findings, and finally make conclusions, and consider what orders may be appropriate.
THE PLEADINGS
4. The worker’s final Statement of Claim was in the following form:
1. At all material times the worker was employed by the employer as a cook working 25 hours per week at $15.00 per hour.
2. At all material times the worker’s normal weekly earnings within the meaning of Section 49 of the Work Health Act in her employment with the Employer were a combination of her wages and the superannuation contributions payable by the Employer to a fund on behalf of the Worker, such contributions being payable and calculated pursuant to the Superannuation Guarantee Charge Act (C’th) and/or the Superannuation Guarantee (Administration) Act (C’th) (“the superannuation contributions”).
2A. In about August/September 1999, the superannuation contributions were calculated at 7% of the Worker’s wages in her employment with the Employer.
3. In or about August/September 1999, the Worker developed an injury first in her right hand, forearm and elbow, and then in her left hand, forearm and elbow. (“the injury”).
Particulars of injury
Bilateral Epicondylitis.
3A. The injury to the Worker’s left hand, forearm and elbow was a consequence of the injury to her right hand, forearm and elbow in that the injury to the right hand, forearm and elbow led to the Worker’s overusing her left hand, elbow and forearm.
4. The injury arose out of or in the course of her employment with the Employer in that the employment caused the injury, or, in the alternative, it was the real, proximate or effective cause of the injury or of its aggravation, acceleration or exacerbation.
5. The worker made a claim on or about 14 October 1999 pursuant to the Work Health Act in respect of the injury, and the employer initially deferred accepting liability for the compensation claimed.
PARTICULARS OF DEFERRAL
Letter from CGU Insurance to the worker dated 21 October 1999.
5A. The employer commenced payment of weekly benefits to the worker following giving notice that it deferred accepting liability for the claim and thereafter continued making payment of such weekly benefits to the worker up until 8 November 2001.
5B. The employer did not subsequently notify the worker that it accepted or disputed liability for the compensation claimed.
5C. As a consequence of the employer’s failure to notify the worker that it either accepted or disputed liability for the compensation claimed, the employer is deemed pursuant to section 87 of the Work Health Act to have accepted liability for compensation.
PARTICULARS OF DEEMED ACCEPTANCE
Letter Hunt & Hunt to Ward Keller 7 July 2004”.
6. At all material times the payment to the Worker of weekly benefits under the Work Health Act was not correctly calculated.
PARTICULARS
(i) The payment did not include superannuation contributions as referred to in 2 and 2A herein.
(ii) After the first 26 weeks of incapacity, the calculation did not correctly index the normal weekly earnings pursuant to Section 65(3) of the Work Health Act.
7. On 12 April 2001, the Worker was examined on behalf of the Employer by orthopaedic surgeon Dr T R Parkington who provided a report dated 17 April 2001 and who subsequently on 22 October 2001, signed a medical certificate that the Worker had ceased to be incapacitated for work as a result of the work injury.
8. By a Notice of Decision and Rights of Appeal dated 25 October 2001 and served on the Worker, the Employer purported to cancel payment of compensation under the Work Health Act to the Worker effective after 8 November 2001.
PARTICULARS OF CANCELLATION
The Notice of Decision provided the following reasons for the decision to cancel payment of benefits:
(a) You are no longer incapacitated for work as a result of the work-related injury on or about 1 September 1999.
(b) Annexed to this Notice are copies of a report from Dr R Parkington dated 17 April 2001 and a certificate from Dr Parkington dated 22 October 2001.
9. The employer has made no payments to the Worker of any compensation under the Work Health Act after 8 November 2001.
10. The purported cancellation of payment of benefits was not in accordance with Section 69 of the Work Health Act, and was invalid.
PARTICULARS
(a) Dr Parkington’s report dated 17 April 2001 identifies continuing symptoms suffered by the Worker;
(b) Dr Parkington’s report dated 17 April 2001 states that the worker remained partially incapacitated for work;
(c) Dr Parkington’s report dated 17 April 2001 and medical certificate dated 22 October 2001 are inconsistent with the Notice of Decision dated 25 October 2001 which states that the Worker is no longer incapacitated for work;
(d) Dr Parkington did not further examine the Worker after 12 April 2001 and before signing his certificate on 22 October 2001, 6 months and 1 week later;
(e) the medical certificate signed by Dr Parkington on 22 October 2001 only identified that the Worker had ceased to be incapacitated for work in relation to the injury to her right arm, namely hand, forearm and elbow, in the circumstance of the Employer being notified of and making payments for the injury of bilateral epicondylitis and Dr Parkington examining her for that condition.
10A. The purported cancellation of benefits was not in accordance with the requirements of the Work Health Act.
PARTICULARS
(a) The employer failed to notify the worker of the decision as to eligibility for compensation as required by Section 85(1).
(b) The employer as a consequence was deemed to have accepted liability pursuant to Section 87.
(c) The employer has never notified the worker of a decision as to eligibility for compensation such as to cease the deeming pursuant to Section 87(a).
11. The worker sought mediation in respect of the Employer’s decision to cancel payment of weekly benefits pursuant to the Work Health Act.
12. The attempt to resolve the dispute by the said mediation took place on 22 November 2001 and that attempt was unsuccessful, and a Certificate of Mediation issued dated 22 November 2001.
13. As a consequence of the injury the Worker had been totally, or in the alternative partially, incapacitated for her work with the Employer and for any employment reasonably available to her, from September 1999 to date and continuing.
14. The worker hereby appeals from the Notice of Decision to cancel payment of benefits to her under the Work Health Act.
AND the worker seeks the following remedies:
A. A ruling as to the value of the Worker’s normal weekly earnings in her employment with the Employer and as to the value of her entitlement to weekly benefits.
B. Payment of arrears of the Worker’s entitlement to weekly benefits under the Work Health Act as at all times from 8 November 2001 to date.
C. Interest pursuant to Sections 89 and/or 109 of the Work Health act in respect of such arrears of weekly benefits.
D. Payment of ongoing weekly benefits in accordance with the Work Health Act.
E. Payment of medical and like expenses pursuant to Section 73 of the Work Health Act.
F. Payment of interest on medical and like expenses paid of incurred by the Worker since 8 November 2001 pursuant to Section 109 of the Act.
H. An order that the Employer pay the Worker’s costs of and incidental to this proceeding at 100% of the Supreme Court Scale to be taxed in default of agreement.
I. Such further or other Order or Orders as this Honourable Court deems meet.
5. The employer’s final Defence was as follows:
1. The employer admits the allegations contained in paragraph 1 of the worker’s Further Amended Statement of Claim in relation to the period 1 August 1999 to 12 October 1999.
2. The employer does not admit the allegations contained in paragraph 2 of the worker’s Further Amended Statement of Claim.
2A. The employer admits the allegations contained in paragraph 2A of the worker’s Further Amended Statement of Claim.
3. As to paragraph 3 of the worker’s Further Amended Statement of Claim, the employer admits that the worker sustained an injury to her right hand, forearm and elbow in the course of her employment with the employer as a cook, as particularized below, but the employer otherwise does not admit the allegations contained in paragraph 3 of the worker’s Statement of Claim. If the worker developed an injury to her left hand, forearm and elbow (which is not admitted), she did not develop such injury until early January 2000.
Particulars of admitted injury to right hand, forearm and elbow.
The injury was an exacerbation and/or aggravation of the worker’s right side epicondylitis.
At some time in or about August or September 1999, the worker developed the condition of epicondylitis in her right elbow, a spontaneously arising degenerative condition of inflammation of the tendinous insertion of the extensor muscles on the lateral aspect of the right elbow. The said condition was exacerbated and/or aggravated in the course of the worker’s employment.
3A. The employer denies the allegations contained in paragraph 3A of the worker’s Further Amended Statement of Claim. If the worker developed an injury to her left hand, forearm and elbow (which is not admitted), it was a spontaneously arising degenerative condition of inflammation of the tendinous insertion of the extensor muscles on the lateral aspect of the left elbow.
4. Save that the employer admits that the worker’s injury admitted in paragraph 3 hereof arose out of and in the course of her employment with the employer as a cook, the employer otherwise denies the allegations in paragraph 4 of the worker’s Further Amended Statement of Claim.
5. The employer admits the allegation in paragraph 5 of the worker’s Further Amended Statement of Claim that the worker made a claim on 14th October 1999 in relation to an injury to right hand, forearm and elbow, but denies that the worker made a claim in respect to any injury to the left hand, forearm or elbow. The employer deferred accepting liability pursuant to s.85(1)(b) Work Health Act on 21 October 1999
5A. The employer admits the allegations contained in paragraph 5A of the worker’s Further Amended Statement of Claim.
5B. The employer admits the allegations contained in paragraph 5B of the worker’s Further Amended Statement of Claim.
5C. The employer denies the allegations of fact and/or law contained in paragraph 5C of the worker’s Further Amended Statement of Claim. The employer says that s.87 Work Health Act applies only to the situation where an employer does not notify of its decision to accept, defer or dispute liability within the period of 10 working days specified in s.85(1), and that s.87 does not apply to the employer in the circumstances pleaded and admitted herein.
6. Save that the employer admits that calculation of payment of compensation paid to the worker did not take into account superannuation contributions as part of normal weekly earnings, the employer does not admit the allegations contained in paragraph 6 of the worker’s Further Amended Statement of Claim.
7. The employer admits the allegations contained in paragraph 7 of the worker’s Further Amended Statement of Claim.
8. The employer admits the allegations contained in paragraph 8 of the worker’s Further Amended Statement of Claim.
9. The employer admits the allegations contained in paragraph 9 of the worker’s Further Amended Statement of Claim.
10. The employer denies the allegation contained in paragraph 10 of the worker’s Further Amended Statement of Claim that the cancellation of payment of compensation was invalid.
Particulars
a. The worker had ceased to be incapacitated for work as a result of her work related injury referred to in paragraph 3 hereof.
b. If the worker remained incapacitated for work, then such incapacity was not related to, caused by or materially contributed to by the worker’s work related injury referred to in paragraph 3 hereof but was caused by the spontaneously arising degenerative condition there pleaded and particularized.
c. The certificate provided by Dr Parkington certified the worker as having ceased to be incapacitated for work as a result of her work related injury referred to in paragraph 3 hereof as at the time that Dr Parkington examined the worker in April 2001.
d. The certification in relation to the right arm only did not render the cancellation invalid, because the only injury in respect of which the worker had claimed compensation was an injury to her right arm.
10A. As to paragraph 10A of the worker’s Further Amended Statement of Claim, the employer denies that the cancellation of compensation by the employer was not in accordance with the requirements of the Work Health Act. Further as to paragraph 10A, the employer refers to and adopts the allegations contained in paragraphs 5, 5A and 5B of the worker’s Further Amended Statement of Claim, and:-
10A.1 admits that it did not notify the worker as to her “eligibility for compensation”, but denies that s.85(1) Work Health Act so required;
10A.2 denies that it was deemed to have accepted liability pursuant to s.87, for the reason that s.87 only applies where the employer fails to notify a person of the employer’s decision under s.85(1) to accept, defer or dispute liability, and the employer did defer liability under s.85(1)(b) Work Health Act;
10A.3 admits that it has not to date accepted or disputed liability for compensation save insofar as it paid compensation upon deferring accepting liability, and continued to pay compensation until 8 November 2001.
11. The employer admits the allegations contained in paragraph 11 of the worker’s Further Amended Statement of Claim.
12. The employer admits the allegations contained in paragraph 12 of the worker’s Further Amended Statement of Claim.
13. Save that the employer admits that the worker was totally or partially incapacitated for work from September 1999 to some time prior to 12 April 2001, the employer denies the allegations contained in paragraph 13 of the worker’s Further Amended Statement of Claim.
Particulars
a. The worker had ceased to be incapacitated for work as a result of her work related injury as referred to in paragraph 3 hereof.
b. If the worker remained incapacitated for work, then such incapacity was not related to, caused by or materially contributed to by the worker’s work related injury as referred to in paragraph 3 hereof but was caused by the spontaneously arising degenerative condition there pleaded and particularized.
14. The employer is not required to plead to paragraph 14 of the worker’s Further Amended Statement of Claim.
15. To the extent that the worker claims compensation and other relief for the alleged injury to her left hand, forearm and elbow:
15.1 The worker is not entitled to compensation because she failed to give notice of the injuries as soon as practicable as required by s.80(1) Work Health Act;
15.2 Proceedings for the recovery of compensation are not maintainable under s.182(1) Work Health Act because the worker did not make a claim for compensation within 6 months after the occurrence of the injury.
16. The employer denies that the worker is entitled to the relief sought in paragraph 16 of the worker’s Further Amended Statement of Claim or at all.
6. In addition, the employer raised a Counterclaim which stated as follows:
17. The employer refers to and adopts paragraphs 5, 5A and 5B of the worker’s Further Amended Statement of Claim and refers to and repeats the matters alleged in paragraph 10A hereof, and says that the deferral period under s.85(4) Work Health Act expired on or about 26 December 1999, that is, 56 days after the employer deferred accepting liability.
18. Within the period 21 October 1999 to 26 December 1999, the employer did not notify the worker that it accepted or disputed liability for the compensation claimed.
19. In the circumstances, the employer is not deemed liable at law for the worker’s claim for compensation and any payments made by the employer under s.85(4)(b) are deemed by s.85(7) to have been made without prejudice and cannot be construed as an admission of liability.
20. The employer claims an order or determination that the employer is not deemed liable at law for the worker’s claim for compensation and that the worker bears the onus of establishing that she is entitled to compensation with respect to the injury to her right upper limb and left upper limb; alternatively with respect to the injury to her left upper limb.
21. In the alternative, if the employer was liable at law for the worker’s claim for compensation as at 25 October 2001 (whether deemed or otherwise) and if the employer’s cancellation of compensation on 25 October 2001 was defective for any one or more of the reasons that:- there was inconsistency between the Notice of Decision dated 25 October 2001 and the reports and medical certificates of Dr Parkington dated 17 April 2001 and 22 October 2001 respectively; or for the reason of the time lapse between date of examination of the worker by Dr Parkington on 12 April 2001 and the issue of a certificate on 22 October 2001; or for the reason that the employer failed to provide reasons with sufficient detail to enable the worker to understand fully why her compensation was being cancelled or reduced; or for the reason that the worker’s claim did include the alleged consequential injury to the worker’s left elbow and that the certificate related only to the right-sided injury (all of which is denied) or for any other defect or invalidity which the Court may find in relation to the cancellation process, the employer counterclaims as follows.
22. The employer refers to paragraph 3 of the Particulars of Defence herein and says that the worker’s injury under the Work Health Act arising out of or in the course of her employment with the employer was an exacerbation and/or aggravation of the worker’s right sided epicondylitis, in circumstances where at some time in or about August or September 1999, the worker developed the condition of epicondylitis in her right elbow, a spontaneously arising degenerative condition of inflammation of the tendinous insertion of the extensor muscles on the lateral aspect of the right elbow, which said condition was not caused by but was exacerbated by and/or aggravated in the course of the worker’s employment.
23. As at 12 April 2001, all incapacity resulting from or materially contributed to by the injury pleaded in the preceding paragraph had ceased.
24. The employer claims an order or ruling under s.94(1)(a) read with s.104(1) Work Health Act that the worker had ceased to be incapacitated for work as a result of the said injury.
The employer seeks orders as follows:
(a) The worker’s application be dismissed;
(b) An order or determination that the employer is not deemed liable at law for the worker’s claim for compensation and that the worker bears the onus of establishing that she is entitled to compensation with respect to the injury to her right upper limb and left upper limb; alternatively with respect to the injury to her left upper limb;
(c) An order or ruling under s.94(1)(a) read with s.104(1) Work Health Act that the worker had ceased to be incapacitated for work as a result of the said injury;
(d) The worker pay the employer’s costs of and incidental to the proceeding at 100% of the Supreme Court Scale.
THE ISSUES
7. A number of the issues on these pleadings were decided in Dec-1. Hence, I have already decided on the issues raised in paragraphs 5C and 10A of the Statement of Claim, and the associated pleadings in the Defence to those paragraphs. In addition, I have as a consequence of Dec-1 struck out paragraphs 19, 20 and 24(b) of the Counterclaim.
8. In paragraph 94 of Dec-1 I said: “On the pleadings it is admitted that the worker was a “worker”; that she suffered an injury to her right hand, forearm and elbow which arose out of or in the course of her employment with the employer as a cook; that she made a claim for that injury on 14 October 1999; and that she was totally or partially incapacitated for work from September 1999 to some time prior to 12 April 2001. Accordingly, the requirements in s53 are all (with the exception that the injury occurred in the Northern Territory, which clearly is not at issue on the evidence) admitted on the pleadings.” These matters are not in issue.
9. S53 of the Act states as follows:
“Subject to this Part, where a worker suffers an injury within or outside the Territory and that injury results in or materially contributes to his or her –
(a) death;
(b) impairment; or
(c) incapacity,
there is payable by his or her employer to the worker or the worker's dependants, in accordance with this Part, such compensation as is prescribed.”
10. In paragraph 96 of Dec-1 I went on to hold that: “Accordingly, in accepting liability for the compensation claimed, an employer is simply accepting that a claimant has a valid entitlement under the Act. In a claim for weekly benefits this involves an acceptance that:
• A claimant is a worker as defined in the Act;
• A claimant suffered an injury as defined in the Act;
• the injury arose out of or in the course of the worker’s employment with the employer; and
• the injury results in or material contributes to the worker’s incapacity as defined in the Act.”
11. Injury is defined in s3(1) of the Act as follows:
"injury", in relation to a worker, means a physical or mental injury arising before or after the commencement of the relevant provision of this Act out of or in the course of his or her employment and includes –
(a) a disease; and
(b) the aggravation, acceleration, exacerbation, recurrence or deterioration of a pre-existing injury or disease,
but does not include an injury or disease suffered by a worker as a result of reasonable disciplinary action taken against the worker or failure by the worker to obtain a promotion, transfer or benefit in connection with the worker's employment or as a result of reasonable administrative action taken in connection with the worker's employment.
12. Accordingly, any injury to the worker must arise “out of or in the course of her employment” in order for it to be compensable under the Act. This is admitted on the p[leadings in relation to the right arm, but expressly not admitted in relation to the left arm. I will return to this matter in more detail later in these reasons.
13. In paragraph 97 of Dec-1 I added that: “As noted in paragraph 94 of these reasons each of these matters is expressly admitted by the employer in it’s Notice of Defence and this Notice of Defence has been served upon the worker (presumably via her solicitors). In my view, this is sufficient notice as required in s85(5) of the Act. I therefore find that upon filing and serving the original Notice of Defence (which was filed in court on 9 May 2002) the employer did in fact “accept liability for the compensation” claimed, and there is no need for any further or better “acceptance”.”
14. In paragraph 130 of Dec-1 I said: “I therefore find that by the combination of ss85(1)(b) and (4)(a) once the deferral period has expired (and assuming no decision to dispute liability has been notified to the worker) then the deferral of accepting liability ceases to remain in force, whereby the employer is now legislatively presumed to have accepted liability.” It is important to bear in mind that this acceptance of liability is only for the compensation claimed, and the claim form itself claimed an injury to the right upper limb only.
15. In addition in paragraph 131 of Dec-1 I went on to add that: “I would hold that the employer has by its conduct (in continuing weekly payments well beyond the 56 day deferral period) created a right in the worker to a continuation of such payments until the employer has liability determined in its favour.”
16. In paragraph151 of Dec-1 I concluded: “It therefore follows, in the instant case, (and I find) that from or about the 17th day of December of 1999 the employer herein was deemed to have accepted liability for the compensation claimed. As the employer has never notified the worker of any decision to dispute liability the employer continues to be deemed to have accepted liability until this court orders otherwise (s87(b)).”
17. In paragraph 152 of Dec-1 I said: “However, the Act contemplates that an employer who has accepted liability is in the same position as one which has been deemed to have accepted liability (with some financial differences during the deferral period: s85(7)(d)). Accordingly, it was open to the employer herein to serve and seek to rely upon a notice under s69 in order to seek to cease it’s obligations under the Act. The validity of the s69 notice and the correctness of the employer’s decision to cease payments are live issues on the pleadings.”
18. In paragraph 153 of Dec-1: “Where an employer accepts liability for compensation claimed it does not mean that it accepts a financial liability for all time. Circumstances change. An employer may wish to assert that a worker is no longer incapacitated for work as a result of the work injury, or may wish to reduce payments based upon an alleged ability to earn some income in work that might be reasonably available to a worker. In this event it does not involve a dispute on liability ab initio. Therefore it is not necessary for the employer (as part of any s69 notice) to now seek to dispute liability in accordance with s85(1)(c). As an employer who is deemed should be in no worse position than one who has accepted liability, I see no reason why the employer herein must notify the worker of a decision at this late stage. There is, in my view, no need as the employer was deemed to have accepted liability as soon as the deferral period ceased to remain in force. If the employer now wished to dispute liability ab initio (for example on the basis that it now had information that the claim was fraudulent; or that new medical evidence now showed that the original injury was not work related) then it would have been open to the employer to notify the worker of it’s intention to now dispute liability. But the pleadings herein do not suggest that the employer wishes to do that in this case. Rather, the Notice of Defence and Counterclaim make it clear that the employer does not dispute that it is liable for the initial injury to the worker’s right upper limb and the incapacity that followed there-from. However, it does dispute any ongoing liability to pay in relation to that injury, and in addition disputes that it is liable to pay any compensation for any injury to the left upper limb, which was not part of the claim for compensation.”
19. In paragraph 155 of Dec-1 I concluded that: “On the facts of this case, for the reasons that I have set out above, the employer was deemed to have accepted liability for the compensation claimed and therefore bears the legal and evidentiary onus to prove what it has asserted in it’s s69 notice.”
20. However, it needs to be borne in mind that the “compensation claimed” only related to the right upper limb. The worker has never (as there was no evidence to suggest that she had) served a claim form upon the employer in respect to the left upper limb. Accordingly, there is no deeming operating against the employer in relation to that limb. The Act clearly contemplates that a worker should give notice of every alleged injury that arises out of or in the course of employment. Further, a worker should serve a written claim (in accordance with sections 82 and 83 of the Act) if a worker asserts that he or she is entitled to any entitlements under the Act in respect to any alleged injury. Where a worker suffers multiple injuries in a single incident then clearly all such injuries should form part of the one claim.
21. In the instant case the facts as later set out herein disclose that the worker served a claim form upon the employer on 14 October 1999 relating to the “right hand, forearm and elbow”. She had ceased work on 12 October 1999 and has never returned to any work with the employer since. Sometime between 22.12.99 and 5.1.00 the worker developed symptoms in her left upper limb. It is clear from her Statement of Claim that she asserts that this is also a work injury.
22. Ms Gearin asserts that the employer has the legal and evidentiary onus of proving on the balance of probabilities that the worker is no longer incapacitated for work in relation to both the right and left upper limbs. In making this assertion she relies upon the various medical certificates tendered (ExP5) which (since the certificate of Dr Quinn of 26 March 2001) refer to “bilateral”; plus the fact that the employer continued to pay weekly compensation; plus the fact that the employer apparently paid for various medical expenses including physiotherapy; and the fact that the employer was aware that the worker was asserting an incapacity due to “bilateral” symptoms.
23. Mr Barr asserts (if I understand his submission correctly) that this is not necessarily the case. He asserts that the worker has the onus of proving that the left upper limb symptoms are a sequelae of the right-sided symptoms. Or, to put it another way, that (in accordance with s4(8) of the Act) the worker’s employment was the real, proximate or effective cause of the worker’s injury to her left upper limb. He goes on to concede (as I understand his submission) that if the worker does establish this then the employer does bear the onus thereafter. Otherwise it does not. On the facts of this case (as set out later in these reasons) I find that Mr Barr is correct in his submission.
24. In the case of Evans v Northern Territory of Australia (a decision of myself delivered on 31.1.96) I said:
“The “injury” requires general description only in the claim form. In a non-disease injury it is generally linked to a particular incident on a particular day at a particular place. Thus, the employer in that case is deemed to admit liability for all the compensation to which the claimant is entitled under the Act for that general injury and it’s sequelae. In my view, it is not open to doubt that the employer cannot pass the onus of proving liability for sequelae of injury back onto a worker if payments of compensation are continuing. For example if a worker breaks his leg and (whilst still receiving compensation payments for that injury) develops an infection as a consequence of the break the employer cannot turn around and say that they only admitted liability for the original break as there was no mention of any infection in the claim form and therefore the worker has the onus of proving the employer’s liability for the infection afresh. Such a result would, in my view, defeat the clear aims of the Act.”
25. I see no reason to depart from what I said in that case. However, it needs to be borne in mind that every “aggravation, acceleration, exacerbation, recurrence or deterioration of a pre-existing injury” is itself an injury under the Act. The issue I was dealing with in Evans was whether a new claim form was necessary every time an “injury” changed or progressed. I decided then that it did not. However, whether a new claim form is necessary will depend upon the facts of each case. Further, in my view, the onus of proving that a physical or mental consequence is itself part of the original injury (and by this I mean that there is a causal link between the original work injury and the consequence that is now being considered without any “novus actus”) would be upon the worker in each case. In some cases this would be an easy task, but in others it may not be. In the example postulated in Evans case, it involved an infection to the same leg and in the area of the injury. That would be a very easy connection to prove. In the instant case, we are dealing with an injury to the opposite limb to the claimed work injury.
26. That does not mean that there cannot be a causal connection, but the onus is upon the worker to prove on the balance of probabilities that there is. If the worker fails in this regard, then if it is to be compensable it must be a new injury, and therefore the notice and claim provisions of the Act would apply to it.
27. The relevant portions of s4 of the Act are as follows:
“(1) Without limiting the generality of the meaning of the expression, an injury to a worker shall be taken to arise "out of or in the course of his or her employment" if the injury occurs while he or she –
(a) on a working day that he or she attends at his or her workplace –
(i) is present at the workplace; or
(ii) having been present at the workplace, is temporarily absent on that day in the course of his or her employment or during an ordinary recess and does not during that absence voluntarily subject himself or herself to an abnormal risk of injury;
(4) An injury shall be deemed to arise out of or in the course of employment even though at the time that the injury occurred the worker was acting –
(a) in contravention of a regulation (whether by or under an Act or otherwise) applicable to the work in which he or she is employed; or
(b) without instructions from his or her employer,
if the act was done by the worker for the purposes of and in connection with his or her employer's trade or business.
(5) An injury shall be deemed to arise out of or in the course of a worker's employment where it occurred by way of a gradual process over a period of time and the employment in which he or she was employed at any time during that period materially contributed to the injury.
(7) In this section –
"working day", in relation to a worker, means any day on which he or she attends at his or her workplace for the purpose of working;
"workplace", where there is no fixed workplace, includes the whole area, scope or ambit of the worker's employment.
(8) For the purposes of this section, the employment of a worker is not to be taken to have materially contributed to –
(a) an injury or disease; or
(b) an aggravation, acceleration or exacerbation of a disease,
unless the employment was the real, proximate or effective cause of the injury, disease, aggravation, acceleration or exacerbation.”
28. In the case of Australian Frontier Holidays Ltd v Williams (1999) 153 FLR 348, Martin CJ said:
“When looking at the facts and considering the application of the statute to them, it is well to remember that ordinarily the worker must establish either a causal ("out of") or temporal ("in the course of") relationship between the employment and the injury (Kavanagh v Commonwealth (1960) 103 CLR 547). It is only necessary to establish one of those relationships. Since the amendments to the legislation in 1949, substituting "or" for "and" it is not necessary to show both. The words "out of" point to the cause of the injury and "in the course of" point to the time, place and circumstance in which the injury was suffered. These distinct bases for finding liability in the employer are not treated separately in the deeming provisions.
[11] The various factual situations as described in s 4(1), which are non-exhaustive, are taken to supply the relationship. They do not restrain the liberal and flexible interpretation given by the courts to the expression "in the course of employment" so as to compensate an injury which arises when what was being done was an "incident" of the employment (The Commonwealth v Oliver (1962) 107 CLR 358), a slight connection will suffice, ibid p 362, and includes what the worker is reasonably required, expected, or authorised to do in order to carry out his duties (Danvers v Commissioner for Railways (NSW) (1969) 122 CLR 529 and Henderson v Commission for Railways (WA) (1937) 58 CLR at 293-294). In coming to a conclusion as to whether something is incidental to a worker's employment is a result reached "by reference to some principle or standard" Hatzimanolas v ANI Corporation Limited (1992) 173 CLR 473 at 478. At 479 their Honours referred to the flexible application of the test which had "enabled a satisfactory line of demarcation to be drawn between those injuries which are work related and those which are so remote from the notions of the worker's employment as not to call for compensation by the employer." The provisions contained in s 4(1) provide statutory examples of circumstances giving rise to the employer's liability presumably with the intention of further limiting the scope for uncertainty.”
29. The expression “arising out of” signifies a causal relationship between the injury and the employment. Whereas the expression “in the course of” involves a temporal relationship, namely that the injury occurred whilst the worker was employed or doing something reasonably incidental to her employment. As the facts herein will later disclose, the injury to the worker’s left upper limb first arose at least two months after the worker had ceased work, as she was on weekly benefits for her injury to the right upper limb. It follows, in my view, and I find that the injury to the left upper limb did not and could not arise “in the course of her employment” with the employer. S4 of the Act has extended the general meaning of the expressions. Accordingly, the left upper limb injury could only be compensable under the Act if it arose out of her employment with the employer, or if the worker could establish (on the balance of probabilities) that (in accordance with ss4(5) and (8) of the Act):
• The injury occurred by way of a gradual process over a period of time;
• The employment in which she was employed at any time during that period was the real, proximate or effective cause of the injury.
30. In Nunan v Cockatoo Docks 41 S.R.(NSW) 119 at 124 Jordan CJ stated that the concept of “arising out of employment” will be satisfied where it can be said “that the fact of his being employed in the particular job caused, or to some material extent contributed to, the injury.”
31. In Kavanagh v The Commonwealth (1960) CLR 547 @ 558-9, Fullager J said:
“While the legislation stood in it’s original form, it was clear that the words “out of” imported the necessity of a causal connexion between the injury and the employment or some incident of the employment….
…the significant fact that the effect of requiring a causal connexion between employment and injury is always attributed to the words “out of”…
If there was such a causal connexion, the injury was to be compensable even though it did not occur while the worker was engaged in his employment.
32. In the case of Thom v Sinclair (1917) AC 127 @ 124 Lord Shaw said:
“The expression (arising out of the employment) in my opinion applies to the employment as such – to it’s nature, it’s conditions, it’s obligations, and it’s incidents. If by reason of any of these the workman is brought within the zone of special danger and so injured or killed, it appears to me that the broad words of the statute “arising out of the employment” apply.”
33. In Goward v The Commonwealth (1957) 97 CLR 355 @ 364 Dixon CJ, Williams, Webb and Kitto JJ quoted this passage with approval and went on to add:
“To this must be added the explanation given by Lord Haldane in Upton v Great Central Railway Co (1924) AC 302 @ 306 and 308, to the effect that it will suffice if the accident arises out of circumstances the employee has had to encounter because it is within the scope of employment to do so.”
34. I will apply this as the law in determining whether the injury to the worker’s left arm arose out of her employment with the employer.
35. On the issue of who has the onus of proof, as a general proposition I find that (absent any special rule that may apply) whoever asserts must prove what they are asserting, unless it is admitted on the pleadings or formally admitted in the course of the hearing.
36. In the instant case the employer has, by force of my reasons in Dec-1, been found to have accepted liability for payments under the Act in relation to any incapacity arising from the admitted injury to the right arm. The employer seeks to be released from that liability pursuant to its section 69 Notice and/or its Counterclaim. Therefore the employer bears the legal and evidential onus with respect to the right arm. However, as the employer has never accepted liability in respect to the left arm, the worker bears the legal and evidential onus of proving that the left arm injury is causally related to the admitted right arm injury. If the worker succeeds in doing this then the employer thereafter bears the legal and evidential onus to be released from it’s obligation to pay in respect to both the right and left arms. If the worker fails in this regard, then she bears the legal and evidentiary onus in respect to the left arm on all issues.
37. I note that the employer has not pleaded in the alternative that the worker is partially incapacitated for work, and has chosen to base it’s case solely on the assertion that all incapacity resulting from or materially contributed to by the injury has ceased on or before 12 April 2001. In the event that the employer is unsuccessful in this regard it has chosen not to have any fall back position.
38. I turn now to consider the facts herein.
FACTUAL FINDINGS
39. The worker was born on the 4th day of October 1962. Accordingly, she was aged 41 at the time she gave her evidence before me.
40. The worker was raised in Alice Springs and attended Alice Springs High School. She left school at the age of seventeen. She still has family who reside in Alice Springs.
41. After leaving school the worker started work in the hospitality industry. She worked at a motel in Alice Springs initially as a housemaid and then as a breakfast cook. The motel business renovated an old house into a restaurant and the worker then learned the skills of a kitchen hand and waitress. She later also learned how to serve drinks behind the bar.
42. I was not told what hours she worked in this employment or how long she held this employment for.
43. In about 1983 or 1984 the Worker was employed on a contract basis as a civilian cook with the Department of Defence. In this regard she travelled to Darwin for an unspecified period of time. Apparently during exercises or busy periods when the regular army cooks could not meet demand civilian cooks were employed to assist. I was not told the basis of this employment, and therefore do not know whether it was a short term contract position. I was not told how many days, weeks or months she performed duties for the Department of Defence in 1983 or 1984.
44. The worker did say that the work she did was basic food preparation, grill cooking, pastry cooking. She went on to say that the following year (either in 1984 or 1985) she returned to Darwin and did the same thing again. Again I do not know for what period.
45. The worker has no formal qualifications as a chef or in cooking.
46. The worker apparently married at some stage, but I was not told who to or when. She did say that her maiden name was Matson, and she changed her name to Williams after her first marriage. I was not told how many times she has been married. I was not told how she came to take the surname of Spellman, but this may well have been from a subsequent marriage. The Worker is now separated, but I do not know when this separation occurred.
47. The worker did tell me that she has two dependant children. These children are Ryan who was born on the 22 day of October 1991 and Emily who was born on the 19th of September 1994.
48. The worker did not give any evidence of any employment between her last job with the Department of Defence in about 1984 or 1985 and her commencing employment with the employer herein. I am therefore unable to find that the worker performed any employment between about 1985 and 1997.
49. The worker said (T28) that she obtained a gaming machine manager’s certificate “Back in ‘96”. However, she may have been mistaken about the year, as this may, in fact, have been after she commenced employment with the employer.
50. The worker commenced employment with the employer in November 1997 and she initially worked as a bar attendant.
51. As a bar attendant her duties were pouring drinks, cleaning behind the bar, cleaning glasses, restocking fridges, pouring draft beer, re-tapping and un-tapping kegs and general serving. She said (T18) that at times you had to move empty 50 litre kegs, but there was no evidence as to how heavy such a keg might be, nor how far she might be required to move it.
52. In addition, during her time with the employer she obtained experience as a TAB Operator, a Poker Machine Attendant and a Keno Operator. In order to become a Keno Operator she completed a course at the casino in Alice Springs as a Senior Keno Operator. She held a licence in this regard.
53. As a TAB Operator she would receive people’s bets and place these in the machine and hand the resulting documentation back to the customer. She would take money and give change. At the end of her shift she would lift the till drawer insert out and balance the monies including the float. She couldn’t say how much this would weigh (T17).
54. In relation to being a Poker Machine Attendant this required her to give change to the customers. In addition she had to open the machine and fix it if there was a “hopper” error or a coin jam. At the end of the day she would have to pull out the storage crate (which was apparently bigger than a milk crate) empty all the coins out into a bucket which would subsequently be weighed and bagged and put into a safe. She did not tell me how full this crate would become, how heavy it was or how far she had to move it. In addition, when she was a Poker Machine Attendant she had to insert a key into the top of the machine to do hard and soft “meter reads”, but she now understood this was all done by computer.
55. In relation to being a Keno Operator the customer would hand a ticket over which would be fed through the machine by the operator and another ticket would be issued out of the machine and handed over to the customer. She would then pass over the necessary change after taking the customer’s money. She also had to balance the keno drawer or till at the end of the shift (T18).
56. She said this work could be physically demanding as it involved the lifting of heavy amounts of cash. I am not sure on the evidence as to how or why, as this aspect was not explored or explained.
57. At some stage (I was not told when) the worker ceased her employment with the employer as she was offered a position with NT Freight – Ascot Haulage. She only held this job for about two or three months. In that position she did office work, answering the phone, filing consignment notes, locating freight. She said (T18) that it was a pretty mundane job and she mainly answered the telephone.
58. The worker found that she missed the customer contact that she had with the employer and accordingly returned to be re-employed with the employer. It is open to be inferred from the fact that the employer re-employed the worker that the employer was happy with her employment performance before she left. She resumed working behind the bar.
59. In addition to working behind that bar she also on occasions gave the kitchen staff a helping hand when they were busy.
60. The worker denied ever having a problem with either of her elbows prior to the alleged injury herein. Apparently in the medical notes of Dr Pevie there is reference to an elbow problem in 1997. I say apparently as the alleged note was not tendered in evidence and Dr Pevie was not called to give evidence. In examination in chief the worker was asked about this alleged note and she said that she could not remember ever having a stiff elbow or an elbow problem in 1997. Also, she couldn’t remember any time off work for any elbow problem, nor could she remember talking to Dr Pevie about such a matter in 1997. Apparently the notes also suggested that the worker told Dr Pevie that she was taking Voltaren which had been given to her by her mother. The worker had no recollection of any such conversation or event. Accordingly, the worker’s evidence does not amount to an admission on any of these matters. In the absence of any other evidence I am unable to find that the worker did have any problem with any elbow in about 1997.
61. At some stage (according to the employer’s pay records – ExP3, this was in about April 1999) the worker moved from bar work into the kitchen still in the employ of the employer.
In the kitchen her duties were “cooking, cleaning, changing oil in deep fryers, accepting deliveries and putting them away, fruit and vegetables. I picked the meat up on my way to work from the butchers but would have to carry it from my car into the cool-room in the kitchen, cleaning” (T19). When asked what sort of cleaning she replied “floors, bench tops, utensils, meat slicers and pots and pans sometimes, if you didn’t have anybody to help.” (T19) (emphasis added).
62. The worker said that they had a basic a la carte menu, and they would have specials of the day. The menu included steaks and grills, fish and chips, seafood baskets, corned beef.
63. The worker said that she did all of the ordering for the kitchen and she did all of the cooking herself. In addition, she said that she did the majority of the preparation herself (T20).
64. In examination in chief the worker was asked what a typical day would involve in the kitchen. She started off by saying that “a lot involved food preparation”(T20). She went on to say “I would do lunches and then have a break in the afternoon and then go back and do dinners, so say I worked from 9.30 until 2 and then – 9.30, 10 until 2, 2.30 – yes, lunches finished at 2.”(T20). For some reason, Ms Gearin did not then go on to ask her questions about what the evening hours or duties were or how these may or may not have differed from the lunch time duties.
65. In relation to the morning duties she said “on that shift I would get the deep fryers switched on, prepare any salads that needed to be made and put them out. We had-like, it was a buffet style, help yourself and you had a choice between vegies and salad. Most lunches it was only salad and chips but of an evening the people would have a choice of vegetables or salad.”(T20)
66. She would also put away the delivered stock. The deliveries included such items as “20 kilo bags of potatoes. The onions weren’t as heavy, they were about, I would say, 10 kilos, bulk tinned foods of fruit and whatnot, frozen foods, seafood, boxes of fish, they came in, I think it was 5 kilo boxes, frozen fish fillets. I would have to make batters for the fish.”(T20). She also agreed with the suggestion put to her by Ms Gearin that she was putting things in and out of the oven. By way of roasts, she said “I would get the big pieces of blade, sometimes cook up two pieces that would weigh between four and six kilos per piece and at times, like of a Friday evening we would have – you could order from the main menu or we would have a roast”(T20).
67. Other witnesses were asked some questions about the worker’s duties in the kitchen. These witnesses were Michael Barrett (hereinafter referred to as “Barrett”), the manager of the employer, and Jason Barrett (hereinafter referred to as “Jason”), his son.
68. Jason gave evidence that he was employed by the employer as a casual in 1999 as the worker’s “go-for”. He was unable to recall (after 5 years) which months he worked in that year or for how long. He knew he worked there for longer than one month, and he guessed that he worked there for about three or four months. No wage or other records were produced to assist. It would have been helpful to have known the dates during which Jason was employed in the kitchen. This information should have been within the knowledge of the employer, as I would expect that it should have had pay or other records that would establish the exact dates. The employer has not produced any such records, nor has it offered any explanation for not doing so. Jason’s father who was (and still is) the manager of the employer at the relevant time gave evidence before me. I would have expected such evidence to have been introduced through him. It wasn’t. I infer that the records may not have assisted the employer’s case (Jones v Dunkel (1959) 101 CLR 298 @ 308). But, since the worker did not assert in her evidence that Jason had ceased working in the kitchen sometime prior to her going off work, this was not something the employer needed to address. Accordingly, the failure to produce Jason’s work records does not give rise to an inference that he had ceased work prior to 12 October 1999.
69. However, I do know that he was working and assisting the worker on the day of the alleged baking dish incident. There was no suggestion that anybody else took over the kitchen after the worker went off work, or that Jason ever worked with anyone else in the kitchen apart from the worker. It also appears that sometime after the worker went off work the kitchen was closed for a time, but I do not know when this was or for how long. Jason could not recall whether he was still working in the kitchen when the worker went off on compensation. Given the way that Barrett described this as occurring (as referred to later in these reasons) I would have expected Jason to have had a memory of it if he was still working there at the time. He didn’t. However, the worker wasn’t much help either. If Jason had stopped work and she was left without assistance in the kitchen in the period leading up to her stopping work on 12 October 1999, then I would have expected her to have had a memory of this, and to have told me of it. She didn’t.
70. Doing the best that I can with the evidence I find that Jason worked as the worker’s assistant in the kitchen for about two to three months in the period leading up to the worker delivering her first worker’s compensation certificate and going off work (to which I will turn shortly). I am unable to find whether Jason had ceased working in the kitchen sometime prior to 12 October 1999. The evidence remains unclear on this.
71. Jason gave the following evidence at T377-8: “
“Well I was basically employed as Sharon’s gopher, I was supposed to do all the prep work and get organised for them and an extra hand with the dishes and all that sort of stuff while the meals are being cooked.
Thank you and do you recall what shifts you used to work in that position?---It was a split shift, we went in, in the mornings. I’m not sure of the actual time but it was for a few hours in the morning and a few hours – I think mainly four or five hours at a time.
And just in terms of the duties that you did compared with the duties that Sharon did, could you please outline your respective functions in the kitchen at the time?---Well I basically did the prep work, cutting up the vegetables and all that sort of thing. Sharon did a lot of serve and actual cooking of the meals and the balancing of the till and all that sort of stuff, but I was basically – I did all the prep work and the dishes and that sort of stuff yeah…..
Mr Barrett if I could just take you back to your earlier evidence about the prep work that you did in the kitchen, you talked about cutting up vegetables. What quantity of vegetable produce and what kind of vegetables did you used to cut up?---Well it was basically – your basic vegies - pumpkin, potatoes, broccoli and they were the main ones that I can recall doing, a bit of salad, lettuce and what not but the quantities it sort of varies depending on what sort of night we were planning for.
And did Sharon also do the cutting up of the vegetables?---Not from what I can recall no.
And how long would you spend or are you able to indicate how much of your time was spent cutting up vegetables as distinct from the other tasks that you did on your shifts?---Well basically the morning – the morning part before lunch is before we went in that was basically when I did the prep, I did all the one prep then ready for the evening.
All right so is it the case that you didn’t do any preparation in terms of cutting up vegetables whilst you were on the evening shift?---Well the majority of it was – I mean if we had to come back and do extra things maybe, but the majority of the time we were – we used that morning time to get organised for the night-time so we were ready to go when we got there.”
72. In cross-examination it was put to Jason that he was casual and did not work every day. He denied this, and said (T379) “I worked every day for the period of time that I worked at the club I was actually working every day as Sharon’s assistant.” At T380 Jason went on to say that it was busy “on the odd night”. On a Friday there were about 30 meals and sometimes there was a function. If he was feeding 30 or more people he said that it would take him “anywhere between two to three hours” cutting up vegetables, and then there would be salads on top of that.
73. I accept the evidence of Jason. For reasons which appear throughout this decision I am unable generally to accept the worker as an honest or reliable witness. I prefer the evidence of Jason over the evidence of the worker.
74. The other person who gave evidence about what happened in the kitchen was Barrett. He confirmed that Jason was employed to help the worker in the kitchen, and that he was there for a couple of months. He could not recall if Jason was still assisting her when the worker went off on compensation. He stated that Tuesday and Friday nights were busy and people often stayed for dinner. His recollection was that vegetables were in a bain marie and comprised peas, beans and mashed potato. He was a butcher by trade so he would cut up any meat that needed to be done. He agreed that there would have been cutting up of salad and vegetables to be done. On busy nights he said that Jason or someone was there to do a lot of the preparation work for her. On some nights during the week they might only serve three hamburgers by way of meals. With a function they might serve up to seventy meals, but he could not remember any specific functions during the time that the worker was in charge of the kitchen. He was unable to say that he had ever seen the worker chopping in the kitchen. However, he went on to confirm that he had no doubt that she did do some chopping, and there might be a couple of hours chopping on a Friday night or function. However, it is no part of his evidence that the worker did this amount of chopping.
75. At T121 the worker gave the following evidence:
“Jason, Jason who was your – or was an assistant in the kitchen, in fact worked in the kitchen for 35 hours a week, didn’t he?---Not to my recollection he did.
He actually worked a longer worker week than you did?---No, he didn’t.
One of his roles was to do preparation work for you, wasn’t it?---He mainly did cleaning, he may’ve peeled vegetables and whatnot, but I did the majority of the cooking, and making of salads.
Did Jason, or did Jason not, do preparation work in the kitchen?---He did, but on a small scale.
That included cutting and chopping and so on, did it not?---Look, I can’t remember. If he did do it, it wasn’t on a grand scale, and he certainly didn’t work more hours than what I did.”
76. The worker was asked some questions in cross-examination at T81 as follows:
“In terms of the number of meals that you could cook per day, would I be right in saying normally there could be 20 to 25 meals a day?---Sometimes more.
On a Friday or a Tuesday you might get more than that?---Mm mm…..it was like a Tuesday and Friday night badge draw.
But it’s not a huge catering load, is it?---Normally it wasn’t but we did cater for functions, dinners. We – well, I had to feed over 100 people.
At a special dinner, on a special occasion?---Wedding receptions.
Yes?---The Anzac eve dinner.
But that wasn’t every week, was it?---It wasn’t every week but on occasions.
Anzac eve dinner, I take it, is just once a year?---That’s correct; 21sts.”
77. On the evidence of the worker, Barrett and Jason it appears that the kitchen of the employer was not consistently a busy place during the six month period that the worker ran it. On the contrary, I find that apart from Tuesday and Friday nights the workload in the kitchen generally would have been light, and sometimes very light. I find that generally during the week a salad bar was put out for lunches. There was no evidence to suggest that the salad range was extensive. Apart from lettuce no other specific salad was mentioned in any of the evidence, and I am unable to speculate. I find that lunch meals were not busy and did not require much physical activity. I find that on Tuesday and Friday nights the worker might do about 30 meals, but the evidence does not enable me to say what these meals were, but they do not appear to have been too complicated. On occasions the worker would do a roast. I do not find that the worker performed significant amounts of chopping every day. Rather, I find that when Jason was employed there, which I find was probably for about two or three months out of the six months that the worker ran the kitchen, he did the majority of the chopping of the vegetables and salads.
78. During the other period of about three to four months when Jason wasn’t helping in the kitchen it was not suggested that the worker had any assistance. Accordingly it would follow that the worker did virtually all of the chopping, preparation and cleaning during this period. It follows that for at least half of the six months the worker was in the kitchen she did have a reasonable amount of chopping, food preparation and cleaning to attend to. The fact that it was decided she needed a full-time assistant (in the form of Jason) is an indication that the employer accepted that the work was too much for one person.
79. I now turn to how the injury to the right arm arose. As the employer admits that the worker did sustain an injury to her right arm arising out of or in the course of her employment, it may seem that it is unnecessary to make any findings as to how the injury arose. However, in my view, such a finding is important for a number of reasons. Such a finding may assist to possibly understand the full nature and extent of an injury. Further, a finding is necessary in order to assess any expert medical opinion (when it comes to deciding whether the injury to the left arm is causally related to the right) which might rely upon any particular stated history. Further, knowing what caused the right arm injury may assist when it comes to deciding what caused the left arm injury (which injury is disputed on the pleadings). Further, it goes to the general credit and reliability of the witnesses in the case, including the worker.
80. The starting point is what the worker said in her sworn evidence before the court. The worker said in her evidence in chief (T20-21) that:
“in or around the end of August or sometime in September where I was baking or roasting roast blade in the oven in quite a heavy big commercial size baking dish. It was around – I would say, from memory, and I think I’ve quoted it a couple of times to different specialists, but around about 12 kilos approximately, it could have been a little bit more, a little bit less, of roast blade.
And what happened?---I went to take it out of the oven to check it and I lost strength in my forearm---
Let’s start at the beginning. You say you take it out of the oven. What did you actually do?---I nearly dropped it.
Yes, but let’s lead up to that?---Sorry.
You went over to the oven, did you?---That’s right.
Can you tell us just step by step what you did?---I opened the oven door.
Yes?---I had folded up tea towels and oven mitts, or whatever they were at the time, I think I might have had a bit of both and went to slide the baking dish out of the oven.
What height was it?---Knee height, I would say, maybe just above my knees.
You were crouched down, were you?---Yes.
Right?---And I went to slide it out and I, well, almost dropped it and I hollered out to young Jason that was helping me at the time in the kitchen to grab some tea towels and grab the baking dish. I attempted to push it back in but I had pulled it out too far in order to push it back in and yeah, it was a pretty scary minute there and I could-I envisioned us having fat, hot fat all over my feet, but luckily it didn’t come to that.
What symptoms did you experience? If we can just go back, you’ve got the oven, you’ve crouched down, have you?---Mm mm.
And you’ve got your hands on the corners of the baking dish?---Yes.
That satisfies your evidence?---Mm mm.
And you had pulled it out; what happened in terms of your symptoms? What symptoms did you---?---I had weakness in my forearm and pain in my elbow.
Which elbow?---My right elbow, and it was like I had lost feeling in my hands, not that I had lost feeling but the strength had gone that I normally had.”
81. In her evidence she refers to elbow and forearm in the singular, and both apparently referring to the right side. However, when referring to hand she has spoken in the plural. This is either a slip or inconsistent with her evidence before me, the history that she has given to Mr Mercorella (which I will turn to later), and also inconsistent with her Statement of Claim.
82. This scenario in the kitchen was put to Jason in his evidence and he could not recall any such incident having occurred (T377-8). He did have a vague memory of the worker mentioning some limb problem and at T380-1 gave the following evidence:
“Now your father has told Mr Goode that you could – that you’d told him that you remember Sharon Spellman making various comments about a sore arm, is that right? Do you have a recollection of that now?---I’ve got a – yes a vague memory of what I thought was a sore wrist, not her arm.
All right and she complained to you about that soreness did she?---Well, no, well I was friends with Sharon outside of work as well and I mean I remember her mentioning about it a sore wrist, I don’t remember her ever complaining about it at work but I remember her mentioning about having a sore wrist……….I remember her mentioning once of that she had a sore wrist.”
83. The worker went on to give the following evidence:
“So after this incident, did you tell anyone about it?---Jason and I went to the office and told Michael Barrett, who was the manager at the time, what had happened, and yeah, he asked if I was all right and I said I was a bit spun out because, well, it frightened me. I went back, finished off my shift and I continued on although I still – I had pain in my forearm and elbow, continued to work.”
84. This alleged report of incident was put to Barrett at T293-4 and at T294 he said:
“I knew nothing of that situation until a couple of weeks ago when you actually rang me and said that over the phone. That’s the first I’ve heard of that.
Do you recall any incident where Sharon and Jason – Jason Barrett came to see you to complain about any particular injury or problem of a physical kind that Sharon had in the kitchen?---No.”
85. When Mr Barr put to the worker that she did not mention any baking tray incident to Barrett the worker said (T77) – “well, I would expect him to deny that but that is not correct”.
86. This alleged report of incident was also put to Jason (T378) and he could not recall any such incident.
87. Accordingly, the worker’s sworn evidence before me was of a sudden onset of symptoms in the right elbow, forearm and hand(s) at work. She identified a specific activity in the kitchen that caused the sudden onset of symptoms, and nominated a witness to the incident, and an almost immediate reporting of the matter to her superior. This event should have been significant to the worker and stayed clearly in her memory.
88. However, as noted above, in paragraph 3 of the worker’s original Statement of Claim she alleged:
“In or about August/September 1999, the worker developed an injury first in her right hand, forearm and elbow, and then in her left hand, forearm and elbow. (“the injury”)
PARTICULARS OF INJURY
Bilateral Epicondylitis”
89. Despite four Amended Statements of Claim being filed since then there has been no change to this pleading. “Develop” has a number of meanings but the one which would appear most appropriate in the context used in the pleading herein is (according to The Concise Oxford Dictionary of Current English, eighth edition) is “begin to exhibit or suffer from (develop a rattle).” In my view, the pleading would be more consistent with a gradual onset rather than a sudden onset due to a specific and known event. On the worker’s sworn evidence she did not “develop” an injury, rather she was suddenly injured due to an incident with a heavy baking dish. If she truly sustained a sudden injury while lifting a baking dish then I would have expected this event to have been specifically pleaded. It is possible that she did not tell her lawyers about the baking dish incident prior to the first statement of claim being filed.
90. The worker continued working and initially did not seek any medical attention. Her evidence as to any problems or difficulties that she had with her right arm after this incident and up to 12 October 1999 was limited to the following (T21-22):
“The question was, what was the pain level that you experienced after you went back after the incident?---It was quite sore.
Sore?---Yes.
Was it sufficient for you not to be able to do your duties that afternoon?---I didn’t think so, so I continued to work.
Did you seek any medical treatment as a result of that incident?---Not straight away I didn’t.
Why was that?---Because I just soldiered on and thought that things would be all right.
And were they?---No.
What happened?---I continued to have pain and weakness in my forearm. I went and saw Dr Pevie, I don’t know if it was a few weeks later or not but I went and saw him and complained of this pain that I had.”
91. That was the extent of the worker’s evidence as to the problems that she had between the time of the incident and seeing Dr Pevie for the first time (which on the evidence was on 12.10.99, which appears to have been a month or more after the incident). In the absence of more specific evidence I am unable to conclude beyond the fact that she had some pain and weakness in her right forearm (not elbow or hand) from the time of the initial incident until she first saw Dr Pevie. I am unable to find whether this “pain and weakness” was continual or sporadic. I do not know whether it was aggravated by certain actions or not. I do not know whether the intensity or frequency remained the same or changed. I do not know what, if any, activities at work she had trouble performing.
92. Mr Goode (a claims investigator) spoke to the worker in relation to her claim herein on 29 November 1999. He asked her questions about her problems at work and recorded the following in his statement (ExD3):
“14. Ms Spellman said that she lost power in her right forearm and elbow and that a large lump had developed just below the elbow on the outside of her arm.
15. Ms Spellman advised that she had no grip with her right hand and she could not lift pots or pans or pick up baking trays and had difficulty with food preparation.
16. Ms Spellman said that her right arm and hand was quite painful with this pain extending from the hand, up the forearm and into the right elbow.”
93. The worker did not give similar evidence or adopt what Mr Goode recorded.
94. In addition, Barrett (whose recollections were generally poor, which was not surprising given that he was being asked about events that occurred about 5 years before he gave evidence) spoke to Mr Goode on 26 November 1999, when the events would have been fresher in his mind. At that time Barrett told Mr Goode (T373) “mentioned one day on the floor of the club, got sore arm for a couple of days, but was getting worse”.
95. Apart from telling Jason something about a sore wrist (as referred to above) that is the extent of the evidence as to the worker’s problems up until the time that she ceased attending work with the employer.
96. However, taking all the evidence as a whole I find that the worker did have right arm pain which she noticed was getting worse at work. I further find that she did “soldier on”.
97. In cross-examination Mr Barr suggested to the worker that she first saw Dr Pevie (I apologise to Dr Pevie if I have misspelt his name, but no-one spelt it for the transcript, and no documents were put before me to enable me to ascertain the correct spelling) in relation to this injury on 28 September 1999. This was the first I heard of this. The worker agreed but it seems likely that she had no idea of what dates she might have seen this or any other doctor. I would be surprised if she could remember.
98. On 12 October 1999 she apparently worked up to the completion of her lunchtime shift and then saw see her General Practitioner, Dr Pevie during her break and before she was due to resume the evening shift. She was asked whether she remembered what she complained of to him and she said (T22) “that I had pain in my right elbow and forearm and yeah, I just lost my strength and had pain”. As noted in the preceding paragraph she only told me about pain and weakness in her forearm, yet she told Dr Pevie of wider spread pain.
99. Dr Pevie provided the worker with a medical certificate on that date certifying her unfit for her work from 12 October 1999 to 16 October 1999.
100. After receiving the medical certificate from Dr Pevie on 12 October 1999, the worker took this certificate and gave it to Michael Barrett on behalf of the employer that same day. She did not return to work the evening shift of that day and has not returned to any work with the employer since. Indeed, on the worker’s evidence she has not returned to any paid employment since.
101. Barrett gave evidence on this as follows at T294:
“Then if I could ask you, please, this, Mr Barrett, when did you first learn that Sharon Spellman claimed to have injured her right arm – or right elbow in the course of her duties at the RSL club?---I’m not sure of – of the day it was. I was at my office, sitting at my desk. Sharon came in, flicked a piece of paper across, and I said, “what’s this Shaz?”, and she said, “I’m on compo. I’ve hurt my elbow”.
……..
Did she say anything about going to the doctors or having gone to the doctors?---No, I didn’t know nothing about she was going to the doctors. That was the first I knew, when she came in with the certificate and saying she was on compo.
And was there any further conversation between you and Sharon at that time?---I did – I did say, when she put it across, ‘cause I knew nothing about it, I just said there was a function that night. “what goes on about the function?” Sharon’s reply was it’s not her concern, she’s on compo.
……..
Prior to the incident you just described, was there any complaint made to you by Sharon about any physical difficulties she was having with her right arm or right elbow?---No.”
102. Clearly, given what Barrett told Goode on 26.11.99 this last answer is not correct. However, I don’t believe that Barrett was trying to mislead the court, rather his memory after five years is faulty. This version of how she delivered the first medical certificate was put to the worker in cross-examination at T77 and she denied that it occurred in this way.
103. I was not told anything about this function by the worker or Jason in their evidence. I do not know how big the function was to be, what food was to be supplied, or what (if anything) she had done that day in preparation for the function. If she had been doing a lot of preparation on 12 October 1999 in preparation for the function, then I would have expected the worker to have told me. She has not given me any evidence that this was the case. I therefore assume that either there was no function later on 12 October 1999, or that if there was it was irrelevant to the worker’s injury.
104. The medical certificate dated 12 October 1999 from Dr Pevie (which forms part of Exhibit P5) asserted that the worker was suffering from:
“Right lateral epicondylitis, unresponsive to conservative treatment”.
The next box in the medical certificate states as follows:
“…which the worker states was caused by: meat preparation and cooking/cleaning etc. on (date of injury) 12/10/1999”. (the matters in italics are the words added to the certificate by Dr Pevie)
105. I note that this history of injury as apparently given to Dr Pevie is different to her sworn evidence before me. The worker could not remember if she told Dr Pevie about the baking dish incident. At T75 she said:
“I take it you didn’t mention to Dr Pevie this somewhat frightening incident that occurred?---I can’t remember whether I did or not.”
106. Unfortunately, as I have not heard from Dr Pevie, he was unable to give more information about what he was actually told by the worker. He notes the date of injury as 12.10.99, yet earlier he stated that the injury was “unresponsive to conservative treatment”. This would suggest that for some time prior to seeing the worker she had been trying to treat the matter conservatively, which is consistent with her evidence before me. However, this certificate makes no reference at all to any incident with a heavy baking dish. The alleged stated cause is not consistent with the worker’s evidence before me, and, in my view, is markedly different.
107. On 14 October 1999 the worker delivered a duly completed and signed claim for compensation to the employer’s manager Barrett. This claim for compensation, which was in accordance with s82(1) of the Act, became Exhibit P1. Whether or not the worker had given earlier notice of injury to the employer, pursuant to s80(2) of the Act the employer had notice of the alleged injury by 14/10/1999 at the latest.
108. In accordance with s82(2) of the Act the claim for compensation was deemed to have been made on 14/10/1999 (as the relevant certificate had already been delivered on 12/10/1999, and the second relevant document was delivered within the required 28 day period).
109. The certificate and claim for compensation were both properly served upon the employer on 12/10/1999 and 14/10/1999 (respectively) in accordance with s83 of the Act
110. In this claim for compensation (Exhibit P1) the worker made the following assertions:
• That she worked part time.
• That the injury occurred at the workplace at which she is normally based.
In the present case, the learned Commissioner found that the rate of progress of the applicant’s non-employment disease was accelerated by the conditions of his employment, and he fixed 1st July, 1943 (the date of the hearing), as the termination of the period of acceleration. He evidently did not accept the opinion of Dr. S.A.Smith, which would have established that the facts that the applicant had been doing hard manual work and had incurred a certain amount of pulmonary fibrosis had no effect on his disease or on the occurrence of his incapacity. He must have accepted to some extent the medical evidence called for the applicant. This was to the effect that the laborious nature of the work coupled with the pulmonary fibrosis and combined with the disease caused a breakdown at an earlier period than it would have been caused by the disease alone had it run its course unaffected by these two factors. But no definite opinion was expressed as to whether the inevitable breakdown would or would not have occurred as early as the date of the hearing. Putting aside Dr. Smith’s evidence which was not accepted, there was no evidence that the laboriousness of the work coupled with the fibrosis produced effects of a merely temporary nature which would have disappeared by 1st July, 1943, and no evidence that if the disease had grown no worse than it was when the applicant first became incapacitated, the effects of the work and the fibrosis would not still have been operative and coupled with the disease, would not still have continued to incapacitate him. In these circumstances, I think that the questions should be answered as follow:
(1) Yes,
(2) No,
(3) No,
(4) Yes, unless it is proved that a stage has been reached at which employment injury has ceased to produce effects causing or capable of contributing to cause incapacity.
I may add that it is not surprising that the learned Commissioner came to a contrary conclusion. The medical evidence was conflicting. He had to do the best he could with it. It was, in my opinion, quite open to him to find as a fact upon that evidence that, although the employment injury had combined with a non-employment disease to produce disability at an earlier date than it would have been produced by the disease alone, the disease of itself, apart from the employment injury, would have produced disability by the date of the hearing. This being so, it was natural for him to be misled by the dicta in Old v. Furness Withy & Co Ltd (1943) 27 B.W.C.C. 266. into thinking that he was bound to restrict the compensation to that date, and for this reason to make his award in the form in which he did”. (emphasis added)
275. Barwick CJ after respectfully agreeing with the legal reasoning and conclusions of Jordan CJ went on to say at pages 25-28:
“At the outset, I would wish to say that I do not think that the facts of the matter were rightly analysed as establishing an injury by aggravation, acceleration, exacerbation or deterioration of a pre-existing disease rather than an injury in the unextended sense of the statutory definition which itself led to incapacity. Regarded as the latter, the case presents no problem. Quite clearly, the circumstance that the injury would not have occurred but for the diseased state of the vertebrae or that its results were more extensive because of that condition would be irrelevant once incapacity was causally related to the injury. For my part, I am of opinion that the facts did establish such an injury and did not establish an injury by aggravation, acceleration, exacerbation or deterioration of an existing disease.
The relevant question in the case of an injury is whether incapacity resulted from it. It is not, as in the case of an action at law based on negligence, what damage has the injured party sustained. Thus cases such as Watts v Rake (1960) 108 CLR 158 and Purkess v Crittenden (1965) 114 CLR 164, in so far as they deal with the possible effect of a pre-existing condition upon the amount of an award of damages in such an action, are not in point in connexion with a claim under the Workers’ Compensation Act.
If the resulting incapacity is temporary, and has ceased by the time the award is made, the award will be limited to that period of incapacity. If the incapacity is temporary but continuing at the date of the award, as a rule, the award will be expressed to continue during the incapacity, leaving the parties, if need be, to litigate subsequently the time at which incapacity ceased: or the award may simply be made without limitation as to time, the respondent to it being able to bring its operation to an end by establishing the loss of the incapacity. But the question in either case is whether the injury had ceased to cause incapacity.
The Commission in the present case took the course of finding all these descriptions as the consequence of the work. If the injury to the respondent were to be regarded as an injury within the extension of the statutory definition, it would seem to me that the right description of it would be an acceleration or perhaps aggravation of the pre-existing infection. An acceleration by work in an employment of a pre-existing disease not itself arising out of or received in the course of the employment becomes in itself an injury within s 9 of the Act. The question is whether because of the nature of such an injury, the basic principles to which I have referred in connexion with other injuries must be in some fashion modified or qualified. If incapacity in fact results from the acceleration, is this not enough to entitle the worker to an award in the same way or to the same extent as would be the case with any other injury? I have no doubt that it would. If the incapacity it causes ceases, the award will be for that reason terminable. But that incapacity does not cease because it is demonstrable that, without the injury, the worker would have arrived from another cause at the same state of incapacity. It seems to me nothing to the point that that other cause would have been the pre-existing disease in its own unaided progression. Where the incapacity which results from the acceleration is permanent, in my opinion, the award is not terminable because that incapacity would in any case have been the end result of the pre-existing disease.
I appreciate that the injury is described in the section as the acceleration of the disease and not as the accelerated disease. But to cover the cases the legislature evidently desired to embrace, in my opinion, the only proper description of the relevant injury would be “the acceleration of the disease”. When seeking to ascertain the result of the injury — the acceleration of the disease — I am unable myself to abstract the acceleration as if it were a causative entity apart from the disease in its accelerated state. Here, analysing the facts as did the Commissioner, the work accelerated the progress of the spinal infection. Incapacity resulted. It resulted from the then — accelerated — condition of the infection. That incapacity was permanent — it was not temporary. In my respectful opinion, it is not permissible so to isolate the acceleration of the disease as to attribute a part only of that permanent incapacity to the acceleration.
In my opinion, where the acceleration is the injury if incapacity results, the entitlement to compensation is identical with that which would flow from the like incapacity resulting from any other kind of injury. In my respectful opinion, the conclusions which Sir Frederick Jordan expresses in Salisbury’s Case (1943) 44 SR (NSW) 157 are as applicable to the case where the injury is merely the aggravation, acceleration, exacerbation or deterioration of a pre-existing non-employment disease as they are to the case of any other injury. I would respectfully agree with Sir Frederick Jordan when, as I read his judgment in Salisbury’s Case, above, he supports the decision of the Court of Appeal in Old v Furness Withy & Co (1934) 27 BWCC 266 only on the footing that the incapacity caused by the accident had ceased and come to an end before the date on which an award of compensation had been made. On any other view, in my opinion, that case ought not to be followed in connexion with the Workers’ Compensation Act. Whilst in agreement will other parts thereof, I am unable, with very great respect, to agree with the statement in the judgment in McLaughlin & Co Pty Ltd v Brinnand, unreported (High Court 28 May 1965) — noted, 39 ALJR 77, which I have quoted, that: “If, however, the employment by aggravating his disease or accelerating its progress merely causes an incapacity of the same degree that the disease would in time have caused but causes it earlier, then it seems to me that the resulting compensable incapacity is only that which can be said to be attributable to the aggravation or acceleration: that is to say, it is the incapacity from its actual occurrence to the time when, ex hypothesi, the disease, if not accelerated or aggravated, would have produced it.” Therefore, though the facts of this case are said to bear the interpretation which the Commissioner has placed upon them, I am of opinion that his award would have been rightly made.
However, in my opinion, the evidence in the case does not support the view that the injury to the respondent was an aggravation, acceleration, exacerbation or deterioration of a disease. As I have already indicated that acceleration, in my opinion, on the facts was a consequence of the injury but not the injury itself.” (emphasis added)
276. I respectfully adopt the above reasoning in the instant case. Accordingly, I do not find that the epicondylitis in the right arm was an injury under the extended definition (as an exacerbation and/or aggravation, as pleaded by the employer), but was in fact an “injury” in it’s own right.
277. I find that the worker was a person who had a medical pre-disposition to developing epicondylitis, and in or about August 1999 she started to develop symptoms in her right arm due to the work that she was doing in the kitchen with the employer. She had not previously suffered from epicondylitis in either arm. She continued working in the expectation that her problem would go away. It did not, and gradually became worse over a period of time. On 12 October 1999 the pain in her right arm had reached a level whereby she needed to cease work in order to try and resolve the pain and incapacity that was associated there-with.
278. Whilst in the ordinary course of events it would be hoped that the pain would resolve and eventually disappear this was not the case with the worker. All people are different, and the worker was one of that small group of people who continue having problems.
279. On the evidence the worker has never been pain free in the right arm, although there have been times when I find that her problems have been relatively minor, but other times when the pain has increased as well. Having injured her right arm at work (which is admitted on the pleadings) it is for the employer to prove, on the evidence, on the balance of probabilities that any incapacity from that injury ceased at a particular time. The medical opinions are in agreement that she has an ongoing incapacity for work due to her right arm epicondylitis.
280. The employer has approached it’s evidential and legal onus apparently reliant upon the idea that she already had a degenerative condition (albeit one that was asymptomatic) and that therefore whatever happened at work was only a temporary exacerbation and/or acceleration of it. However, having found (as I have) that the epicondylitis in the right arm was itself an “injury” rather than an exacerbation and/or acceleration of a pre-existing injury, then this approach is less valid. In the instant case, the employer would need to satisfy me on the balance of probabilities that any incapacity from the injury had ceased at a particular point in time. In my view, they have failed to do so. At best it is speculation, even if based upon what one would normally expect.
281. The fact that (as both Dr Kevat and Dr Parkington agree) in the normal course you would expect epicondylitis to resolve over several months does not assist the employer. Dr Parkington himself has been involved in numerous cases where this has not occurred and he has performed surgery. Dr Kevat and Dr Quinn appear to seek to explain the worker’s ongoing symptoms at least in part upon some non-physical component. The worker has abandoned any psychiatric claim, and accordingly I do not have to concern myself with anything other than the physical. On the medical evidence as a whole therefore, in the ordinary course one would have expected the worker’s problems in her right arm to resolve over time once she was away from the aggravating work setting. However, it is clear (and I find) that she didn’t.
282. It is possible that the worker may well have developed the right sided epicondylitis whether she was working with the employer or not. She may well have developed it at home at a later time even if she were not in any employment. However, for the reasoning in Salisbury’s case and Hankinson’s case this is not the relevant issue, because “that incapacity does not cease because it is demonstrable that, without the injury, the worker would have arrived from another cause at the same state of incapacity.”
283. The right side epicondylitis was (and was admitted to be) a work injury. It arose out of or in the course of her employment with the employer. As a result of the right arm epicondylitis the worker was incapacitated for work in the kitchen of the employer from 12 October 1999. The worker still remains incapacitated for work in the kitchen of the employer at the time the evidence concluded before me. I am therefore not satisfied on the balance of probabilities that the work injury (right arm epicondylitis) has ceased to cause incapacity for work. On the contrary the worker continues to be incapacitated for the work that she was doing at the time the injury arose.
284. The worker served a claim form (ExP1) stating that her “right hand, forearm and elbow” were the parts of her body affected by the work injury that she alleged. This needed to be read together with the medical certificate (ExP5) which was served two days before which asserted that the worker was suffering from “right lateral epicondylitis, unresponsive to conservative treatment”. That was the injury that the employer deferred a (and ultimately made no) decision on. Therefore it was that claim that was deemed to be admitted. If the evidence established that the worker was pain free in the right arm for a reasonable period of time then the opinion of Dr Parkington would have real weight. He has approached the problem from a medical view point based upon what his usual expectation would be. However, his own evidence clearly establishes that not all cases follow the same path. If they did then it would not have been necessary for him to perform surgery in cases of epicondylitis. The employer has not established, to my satisfaction, that the injury to the right arm arising out of or in the course of her employment has ceased to cause incapacity for work.
285. It therefore follows that the employer has failed to prove what it has asserted in it’s Form 5 and in it’s counterclaim.
286. In addition the worker has pleaded that when she was being paid weekly payments she was not paid the correct amount as superannuation contributions were not included. Although the employer did not admit this in it’s Defence Mr Barr has not addressed any argument to this issue at any stage.
287. In the case of Hastings Deering (Australia) Ltd v Smith [2004] NTSC 2 Thomas J decided in paragraph 27: “I agree with the conclusion of the learned stipendiary magistrate that the respondent is entitled to compensation for the employer funded contribution component to be included in normal weekly earnings.” In the case of NT Drilling Pty Ltd v McFarland [2004] NTSC 23, Riley J decided in paragraph 10: “In my opinion the superannuation contributions are to be regarded as remuneration simpliciter for the purposes of the definition of “normal weekly earnings” in the Work Health Act. The amount payable as a superannuation contribution is therefore to be included in the calculation of normal weekly earnings.”
288. Both of these decision are binding upon me, and I respectfully follow them. It follows that the worker should have been paid the superannuation contributions as part of her normal weekly earnings. Ms Gearin provided a set of calculations which I assume must be correct as Mr Barr did not address them. However, now that I have finalised this matter I will give the parties the chance to agree this calculation along with others that may be necessary.
CONCLUSIONS
289. As found earlier the worker’s claim in respect to the left arm is not maintainable and must be dismissed.
290. I find that the right lateral epicondylitis was an injury under the Act that arose out of or in the course of the worker’s employment (without need to have recourse to the extended definition of “injury” under the Act).
291. I am not satisfied that the left lateral epicondylitis was an injury under the Act that arose out of or in the course of the worker’s employment.
292. The employer has satisfied me on the balance of probabilities that the worker is no longer totally incapacitated for work as a result of the work injury, and that this has been the case since at least 12 April 2001.
293. The employer has failed to satisfy me that the worker has ceased to be incapacitated for work as a result of her work injury, the right lateral epicondylitis (as pleaded in paragraph 13 of it’s Defence).
294. The employer has not pleaded in the alternative that the worker is partially incapacitated for work, and has therefore sought no ruling or finding in this regard. This is apparent from the way that paragraph 13 of the Defence and paragraphs 23 and 24 and (c) of the prayer for relief of the counterclaim are pleaded.
295. The worker has pleaded (in paragraph 13 of her Statement of Claim) that “as a consequence of the injury the worker had been totally, or in the alternative partially, incapacitated for her work with the employer and for any employment reasonably available to her, from September 1999 to date and continuing”. As it is raised by the pleadings I will make some findings in this regard. I find that as and from at least 12 April 2001 the worker was partially incapacitated by the work injury, and continues to be partially incapacitated for work.
296. I find that the worker was able to perform the following work as and from 12 April 2001:
• Bar work, provided that she did not have any heavy lifting (such as cartons of beer, trays of glasses etc);
• Keno operator, without restrictions;
• TAB operator without restrictions;
• Poker machine attendant, without restrictions;
• Receptionist/office worker such as the duties that she performed whilst working for NT Freight-Ascot Haulage.
297. I find that the worker was not able to return to the type of work that she performed in the kitchen with the employer, and this was the case continuing up until the time that evidence concluded before me. She is unlikely to be able to ever return to this type of employment in the future.
298. It is the employer who has sought to cancel the worker’s weekly payments, but only on the basis that the worker has ceased to be incapacitated for work. In this regard the employer has not been successful. The employer has not sought to reduce the payments in the alternative on the basis of any partial incapacity.
299. No evidence has therefore been introduced by which I could find that any of the work (which I have found above the worker could do) is reasonably available to the worker. Nor has any evidence been introduced that would enable me to find (if any such work were reasonably available to the worker) what, if anything, the worker would be able to earn in any such employment.
300. This is a court of pleadings, and the pleadings do not require me to decide further.
301. It is an unusual result to arrive at after being unimpressed with the worker as a witness, but the employer has failed to prove what it set out to do in it’s pleadings. Accordingly, it should follow that the employer’s counterclaim should be dismissed, the worker’s weekly payments should be restored (at the correct amount) from the time that they ceased until the date hereof, and continuing until reduced or cancelled in accordance with the Act.
302. The only issue remaining is as to what formal orders I should make to give effect to this decision. I will hear the parties on the form of the final orders. I trust that the parties will be able to do whatever mathematics are required. I will hear any necessary argument on costs or incidental matters.
Dated this 7th day of December 2004.
_________________________
D TRIGG SM
STIPENDIARY MAGISTRATE
0
11
0