Simatovic v Nancy Rao T/as Caffe 43
[2007] NSWWCCPD 120
•24 May 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Simatovic v Nancy Rao t/as Caffe 43 [2007] NSWWCCPD 120
APPELLANT: Mira Simatovic
RESPONDENT: Nancy Rao t/as Caffe 43
INSURER:CGU Workers Compensation (NSW) Ltd
FILE NUMBER: WCC 6226-06
DATE OF ARBITRATOR’S DECISION: 21 August 2006
DATE OF APPEAL DECISION: 24 May 2007
SUBJECT MATTER OF DECISION: Sections 4, 9A, 15 and 16 of the Workers Compensation Act 1987.
PRESIDENTIAL MEMBER: Acting Deputy President Kevin O’Grady
HEARING:On the papers
REPRESENTATION: Appellant: PK Simpson & Co
Respondent: Turks Legal
ORDERS MADE ON APPEAL: For the reasons stated in this decision the order recorded in paragraph (1) of the Certificate of Determination dated 21 August 2006 is revoked and the following order is made:
“(1) Award for the Respondent.”
Paragraphs (2) and (3) of the Arbitrator’s Determination dated 21 August 2006 are confirmed.
No order as to costs of the Appeal.
BACKGROUND TO THE APPEAL
On 11 September 2006 Mira Simatovic (‘the Appellant’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 21 August 2006.
The Respondent to the Appeal is Nancy Rao t/as Caffe 43 (‘the Respondent’).
The Appellant, a married woman who was born on 18 January 1962, commenced employment as a cook at Caffe 43, a business located at Heathcote Road, Moorebank, NSW, in 2001. That business was purchased by the Respondent in April 2003 at which time the Appellant’s employment with the Respondent commenced. The Appellant was initially engaged to perform her duties at the cafe 4 days per week up until December 2004 at which time her duties were reduced to 3 days work per week. At all relevant times the Appellant was concurrently employed as a bookkeeper by an organisation described as the Chester Hill Neighbourhood Centre.
In January 2005 the Appellant was experiencing pain and discomfort in her left knee and sought treatment from her General Practitioner, a Dr Loo of 279 Macquarie Street, Liverpool. That Practitioner arranged for a plain X-ray as well as an ultrasound study of the Appellant’s left knee. The Appellant was, it seems, prescribed medication for the alleviation of her symptoms.
The Appellant continued working without loss of time however experienced continued symptoms and sought the advice of Dr Shamoun, General Practitioner of 240-242 Macquarie Street, Liverpool. That Practitioner referred the Appellant to Dr Vijay Maniam, Specialist Surgeon. The Appellant first consulted Dr Maniam on a date in February 2005 at which time the Appellant made complaint of pain in both her knees.
The Appellant ceased work on 10 March 2005 by reason of knee pain and presented the Respondent with an Employee’s Compensation Claim form bearing date 16 March 2005. That claim form particularised the date of a work injury as being 16 January 2005 and the subject injury was described as “knee pain injury”. The Appellant nominated Dr Maniam as her treating Doctor in the claim form and attached to that document a WorkCover medical certificate from that Practitioner.
The Respondent, through its Insurer, declined liability with respect to the claim lodged by the Appellant. Written notice of various claims in respect of compensation benefits was given to both the Respondent and its Insurer on behalf of the Appellant by her Solicitors. It appears that no decision was made with respect to those claims and the Appellant lodged an Application to Resolve a Dispute in the Commission on 21 April 2006. That Application contained the following injury description:
“Head, neck, right arm, back, abdomen, right leg, left leg, bowel function, sexual organs and anxiety and/or depression as a result of the nature and conditions of her employment with the Respondent.”
The date of injury particularised in that Application was “1 July 2004 to date”. The Claim Details in that Application included weekly benefits from 10 March 2005 to date and continuing and permanent impairment/pain and suffering lump sums in respect of an alleged 10% Whole Person Impairment. A claim was also made for medical expenses.
A Reply was filed in the Commission on behalf of the Respondent on 8 June 2006 which raised 14 “issues in dispute” with respect to the Appellant’s claim.
The Appellant’s Application came before the Arbitrator for conciliation and arbitration on 4 August 2006 and was concluded when the hearing resumed on 18 August 2006. A Determination of the Appellant’s Application was made by the Arbitrator on 21 August 2006 on which date a Certificate with respect to that Determination was issued. A Statement of Reasons For Decision (‘Reasons’) accompanied that Certificate.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’ dated 21 August 2006 records the Arbitrator’s orders as follows:
“The determination of the Commission in this matter is as follows:
1.The application is dismissed.
2.No order as to costs.
3.Certify as complex.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are:
(i)Whether the Arbitrator erred with respect to his findings of fact concerning matters enumerated in Written Submissions filed on behalf of the Appellant in support of this appeal.
(ii)Whether the Arbitrator erred in his determination by incorrectly applying the provisions of section 4 of the Workers Compensation Act 1987 (‘the 1987 Act’).
(iii)Whether the Arbitrator erred in his determination by incorrectly applying the provisions of section 9A of the 1987 Act.
(iv)Whether the Appellant was denied natural justice in the course of conduct of the hearing before the Arbitrator by reason of the Arbitrator’s suggested failure to seek submissions with respect to the application of section 9A of the 1987 Act to the facts.
(v)Whether the Arbitrator failed to state adequate reasons with respect to the application of section 9A of the 1987 Act.
(vi)Whether the Arbitrator erred in failing to consider and apply the provisions of sections 15 and 16 of the 1987 Act to the facts of the Appellant’s Application.
(vii)Whether the Arbitrator erred in finding that the Appellant was not entitled to an award in respect of medical expenses as claimed.
The summary of the issues as set forth above is taken from the Appellant’s document headed “Appellant Worker/Appellant’s Grounds of Appeal against Certificate of Determination and Statement of Reasons for Decision …” which was attached to the Appellant’s Application for Leave to Appeal Against Decision of Arbitrator.
The matters above summarised have been the subject of submissions in response by the Respondent in Written Submissions.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
The Appellant submits as follows:
“… Assessment of the legal issues and the Worker’s symptoms and history of symptoms involve evaluation and judgment which the Appellant Worker submits should not be on the papers alone and that hearing should be conducted.”
The Respondent has made no submission with respect to the manner of conduct of this appeal.
Having regard to Practice Directions Numbers 1 and 6, and the documents that are before me, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The amount of compensation at issue on the appeal is such that the subject matter of the appeal meets the relevant threshold requirements for section 352(2) of the 1998 Act which must be met before a grant of leave to appeal may be made by the Commission.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
The requirements of section 352(2) and (4) having been satisfied and having regard to the subject matter of the appeal and the arguments raised I order that leave be granted to the Appellant to appeal to the Commission.
EVIDENCE AND SUBMISSIONS
The evidence before the Arbitrator is summarised at paragraphs 11 and 12 of his ‘Reasons’. That material comprised the totality of evidence before the Arbitrator. It is to be noted that the “surveillance video” noted by the Arbitrator at paragraph 11 of his Reasons is not included among the material presently before the Commission. The Respondent, following a request by the Commission, was unable to furnish a copy of that video film. It is my view that the absence of that video film does not represent an impediment to the conduct of the Appellant’s appeal against the Arbitrator’s decision. I so conclude having regard to the Arbitrator’s observations concerning the contents of that film and, more particularly, having regard to the fact that neither party makes reference to that evidence in submissions presented on the appeal.
The material attached to the Appellant’s Application to Resolve a Dispute (‘ARD’) included correspondence forwarded by the Appellant’s Solicitors to the Respondent and its insurer in the year 2005 formally claiming workers compensation benefits.
Attached to the ARD was a copy of an “Employees Compensation Claim” addressed to CGU signed by the Appellant bearing date 16 March 2005. That document particularises the date of the alleged injury as being 16 January 2005 and the injury is described as “knee pain injury”.
Attached to the ARD was a copy of “Employer’s Report of Injury” signed by the Respondent which document also bears the date 16 March 2005.
The Appellant relied upon a number of reports of Dr Elias Matalani, Consultant Occupational Physician, each dated 15 July 2005. The principal report records the Appellant’s history which included a description of her duties as a cook in the employ of the Respondent and that:
“Over a period of time she developed pain in her legs and particularly her knees. This was worse on the left side. She developed pain and swelling of her left knee. The pain intensified and in January 2005 she consulted her Doctor, Dr Loo. She was referred for x-rays of her left knee followed by ultrasound. It demonstrated irregular thickening of the lining of the prepatellar bursa with the presence of fluid suggestive of bursitis.”
Dr Matalani proceeded to record detail of the Appellant’s concurrent employment with Chester Hill Neighbourhood Centre as a bookkeeper. It is recorded that the Appellant consulted Dr Shamon (sic) and that the Appellant was referred to Dr Maniam, Orthopaedic Surgeon. Dr Matalani records the conduct of various radiological studies. Dr Matalani had earlier noted that “over a period of time she also developed pain in the neck and right arm and shoulder”.
Dr Matalani noted that the Appellant related her symptoms to the heavy nature of her work and reported pain in both knees, intermittent pain in the neck, pain in the right shoulder region and the right scapula region.
Dr Matalani recorded his findings on physical examination of the Appellant and expressed his view as to diagnosis as follows:
“Diagnosis:
Mrs Simatovic suffered from prepatellar bursitis in the left knee. She suffered secondary chronic strain of the right knee due to favouring the left side.
She also suffered soft tissue injury and chronic musculoligamentous strain of the neck and back. She has radiation of the pain to the right arm and this is originating from the neck strain. There has been no separate injury to her right shoulder. She also suffers from secondary sexual dysfunction due to pain.”
Dr Matalani expressed the following opinion:
“Opinion:
Mrs Simatovic was asymptomatic when she commenced employment with Nancy Rao. She stated that whilst she was employed in the same Café prior to that, there were three other people helping in the kitchen and doing the work.
When Nancy Rao employed her she was doing the job of three people and it significantly increased her workload. She was very busy and on her feet all day. She was unable to take the required breaks.
The events as described and her clinical presentation are consistent and her injuries are consistent with the stated cause. Her employment and the nature of her duties have been a substantial contributing factor in the development of her current disability.
This is essentially an overuse injury due to the prolonged standing, walking, heavy manual handling activities, repetitive bending, lifting, and with infrequent breaks.”
The balance of Dr Matalani’s reports address the assessment of permanent impairment/loss of various parts of the Appellant’s anatomy as well as an assessment of whole person impairment.
The Appellant also relied upon the opinion of Dr Peter Giblin, Orthopaedic Surgeon and a number of reports bearing date 14 November 2005 were attached to the ARD. Dr Giblin records a history that the Appellant developed knee discomfort more on the left than the right during the course of her work with the Respondent and that her symptoms were reported in January 2005. Dr Giblin further noted:
“At the same time, she noted that with prolonged standing she was getting pain in the lower back radiating towards the legs and hips and that the left heel became very sore. …”
Dr Giblin recorded that the Appellant stopped work on 10 March 2005 because of her symptoms.
Dr Giblin recorded the findings of a number of radiological studies as follows:
“X-RAYS AND INVESTIGATIONS
MRI scan left knee 9th March 2005 reports some early chondromalacia patellae with a moderate sized pre-patella bursa.
CT scan lumbar spine 4th May 2005 notes early disc protrusions to the left at L4/5 and to the right at L5/S1.
MRI scan right knee 6th June 2005 does not define any structural abnormality.”
Dr Giblin recorded his diagnosis as follows:
“DIAGNOSIS
Based on her history and examination, she has the provisional diagnosis of soft tissue injury to her knees and low back, reasonably causally related to the nature and conditions of her work environment as being the substantial contributing factors, and consistent with the reported findings as noted on the scans referred to in the body of this report and in terms of chondromalacia patellae for the left knee and in terms of the changes at L4/5 on the MRI scan.”
The remaining reports of Dr Giblin contain assessments of impairment/loss of various parts of the Appellant’s anatomy as well as an assessment of whole person impairment.
The Appellant relied upon the contents of a number of radiological studies and imaging reports copies of which were attached to the ARD. Those reports included a report from Dr Waterland addressed to Dr Carol Loo dated 31 January 2005 which appears to be a plain X-ray report which states:
“Left knee
No bone or joint abnormality is detected.”
A report from Dr Wong dated 2 February 2005 addressed to Dr Loo which contains the findings of an ultrasound of the Appellant’s left knee. Dr Wong made the following comment:
“COMMENT: Irregular thickening of the lining of the prepatella bursa, with presence of fluid, suggestive of prepatella bursitis. There is a tiny amount of fluid beneath the patellar tendon. No other significant abnormality is demonstrated.”
Attached to the ARD is a copy of report dated 4 May 2005 by Dr Adrian Gale which contains the findings following CT scan of the Appellant’s lumbar spine. Dr Gale’s findings were as follows:
“C.T. SCAN OF LUMBAR SPINE
Images were obtained from L2 to S1.
The L2-3 disc and neural structures are normal in appearance.
At the L3-4 level there is a little degenerative calcification within the disc. The disc is intact and no herniation or protrusion is seen.
At the L4-5 level there is a small broadbased posterior and left posterolateral disc protrusion with minor encroachment on the left anterolateral aspect of the thecal sac.
At the L5-S1 level there is a small broadbased posterior disc protrusion in the midline causing minor encroachment on the anterior aspect of the theca and the right S1 nerve root. Minor osteoarthritic changes are noted in these apophyseal joints.
No other abnormality is seen.”
The Appellant in her ARD included copies of a number of WorkCover NSW Medical Certificates issued by her treating Practitioner, Dr Maniam. Those documents dated from 10 March 2005 and the last was dated 11 August 2005. Those documents certify that the Appellant was unfit for work up until 30 April 2005 after which date it was Dr Maniam’s view, as certified, that the Appellant was fit for suitable duties. Those suitable duties were described by Dr Maniam as “clerical work”. It is to be noted that the diagnosis as certified by Dr Maniam in the first three certificates issued by him up to 31 March 2005 was that of “bilateral chondromalacia patella”. From the date of issue of Dr Maniam’s fourth certificate, namely 14 April 2005 the diagnosis certified is stated to be “bilateral chondromalacia patella/low back sprain”. The last three certificates issued by Dr Maniam certify a diagnosis of “bilateral chondromalacia patellae/L4/5 and L5/S1 IBD protrusion”.
The Appellant attached to her ARD copies of two Statements by her, the first dated 15 April 2005 and the second being 16 April 2006. The first Statement includes a description of the Appellant’s duties whilst employed by the Respondent. It was stated by the Appellant that she usually worked alone in the kitchen, that the pace of work in the kitchen was very busy and that she “never sat for one minute”. The Appellant further states that her left knee began to become “sore and swollen” in the middle of January 2005 and that after two weeks of tolerating pain she consulted Dr Lu [sic] which Practitioner sent her for an X-ray and ultrasound. Following those investigations the Appellant took medication and wore a bandage on her knee but continued with both her jobs.
The Appellant’s Statement records that she, in early February 2005, reported to the Respondent’s mother, Mimma Rao, that she had left knee pain and that the knee was swollen. It is stated by the Appellant that she lifted her clothing and showed Mimma the “swollen knee”. It was stated by the Appellant that her knee was not then bandaged.
The Appellant’s first Statement records detail of radiological investigations and her consultations with Dr Maniam. It is also stated that the Appellant ceased work on 10 March 2005. The symptoms described by the Appellant in that first Statement relate to pain and swelling in her left knee, shaking in the leg after standing for a time and pins and needles in the joint. The Appellant referred to “problems with my right knee now as well” and states that:
“I also have pain that shoots up from my left knee to my stomach and it feels like a stomach cramp. My hips are now paining and I also have a pain in my left heel area.”
The second of the Statements relied upon by the Appellant includes the following paragraph:
“6.Sometime after May 2003 but especially from July 2004, I started to notice pain in my legs, particularly in my knees. My left was worse than my right side.”
That second Statement includes the following (which was not the subject of objection):
“I had been complaining to Nancy Rao because of my ongoing problems. She was aware that some of the things I was doing were not only worsening but were actually too difficult for me to do.”
The second Statement of the Appellant records at paragraph 24:
“24.I still suffer symptoms that affect my neck, right arm, back, abdomen, right leg, left leg with resultant loss of bowel function and sexual organs and resultant anxiety and/or depression. I have told the details of my injury to all of the Doctors I have seen.”
The Statement contains no detail of the medical treatment nor of investigations conducted during the course of such treatment.
The Appellant also relied upon the contents of documents produced under Direction for Production by Dr Vejay Maniam and the Appellant’s treating Physiotherapist, Zena Mardini.
The clinical records of Dr Maniam comprise his handwritten notes, a report dated 11 February 2005 addressed to Dr Shamoun, a report dated 20 April 2005 addressed to the Respondent’s Insurer and copies of radiological studies. The records of Ms Mardini included copies of reports to Dr Maniam, copies of radiological studies and copies of handwritten notes relating to attendances of the Appellant from 30 March 2005 to 27 April 2005. Those records record the various complaints of symptoms made by the Appellant from time to time.
The Appellant, before the Arbitrator, relied upon the contents of certain financial records which were annexed to an Application to Admit Late Documents dated 21 July 2006. I note in passing that the Commission’s records include a copy of an Application to Admit Late Documents filed by the Appellant’s representatives on 3 August 2006. There appears to be no record either in the transcript of proceedings before the Arbitrator nor in the Arbitrator’s Reasons as to any application made by the Appellant to rely upon the documents annexed to that Application.
The Respondent, before the Arbitrator, relied upon those documents annexed to its Reply filed on 8 June 2006 (with the exclusion of that material particularised by the Arbitrator in paragraph 1(a) and (b) of his Direction given on 13 June 2006). Included among the documents attached to that Reply was the first Statement of the Appellant dated 15 April 2005 referred to above (paragraph 40).
The Respondent placed before the Arbitrator a Statement of the Respondent dated 6 May 2005. That Statement contains a description of the Appellant’s duties whilst employed by the Respondent and it is said at paragraph 8 that:
“8.I am not aware if Mira had ever been injured at work and I am also not aware if Mira had previously claimed on any workers compensation. … The only time that I heard that Mira had any health problem was when she phoned me on 11 March 2005 advising me that she wasn’t coming in for 2 weeks as she had fluid on her knee. She then showed up at the café here on the following Monday, 14 March 2005 at 6.30am, limping (prior to that she never limped). She handed me the NSW Worker Cover [sic] medical certificate for those two weeks.”
There was before the Arbitrator a copy of the Statement made by Mimma Rao, the Respondent’s mother dated 9 May 2005. That Statement includes a description of the Appellant’s work duties and includes the following:
“10.I am not aware if Mira had ever been injured at work in the past. She did not limp at all while she worked here. Her health appeared to be perfect and the way she ran out of here each afternoon would suggest that there was nothing wrong with her knee. ….”
Mimma Rao proceeded to state:
“14.Mira did not have any accident here at work. She never complained of any injury that she suffered here, ever. ....”
The Respondent also relied upon the contents of a report dated 28 April 2005 from Capital Investigations Australia Pty Limited which contained detail of surveillance recorded on video film of the Appellant. As above noted, the video film is not with the Commission file nor is a copy available on this appeal.
The Respondent relied upon two reports prepared by Dr Roger Pillemer, Orthopaedic Surgeon, each bearing date 29 June 2006. The principal report records the Appellant’s history of symptoms, her work history, details of treatment, her complaints on the occasion of the examination as well as general history and a record of findings on physical examination. It is noted by Dr Pillemer that he had available the results of “special investigations” being the radiological studies and imaging referred to above. Dr Pillemer concluded his report by expressing his view as to diagnosis being that the Appellant had developed a pre-patella bursa of the left knee in December 2004, with progressive increase in the size of this bursa and also in her discomfort. Dr Pillemer noted that “clinically today the bursa has now settled down”. Dr Pillemer proceeded to express the view that the investigations available “show degenerative changes at the low two lumbar levels associated with an annular tear at the lumbosacral level”.
Dr Pillemer expressed a view in that report as to the attributability of the conditions as diagnosed. With respect to the Appellant’s knee condition Dr Pillemer stated:
“There are numerous causes for pre-patellar bursae, the most common being either repeated minor trauma to the front of the knee such as with persistent kneeling or a localised injury to the front of the knee causing a bursa to form. Very often bursae simply arise spontaneously which would seem to have occurred in Ms Simatovic’s case. Certainly prolonged walking or standing, or going from hot to cold environments and back again, is not a cause of pre-patellar bursae. In my opinion then the bursa she developed in the front of her left knee in December 2004 is not related to the nature and conditions of her work. In any event the bursa has now settled down.”
Dr Pillemer had, earlier in his report, noted that the Appellant’s main problem at the date of examination was “with her back with referred pain into both lower limbs”. As to the attributability of those complaints Dr Pillemer stated:
“As far as her back and lower limb symptoms are concerned, as mentioned above, I do feel she has very genuine ongoing problems. However I would once again have considerable difficulty in relating this to the nature and conditions of her work, noting that she only discussed her back for the first time with her general practitioner in May or June 2005. It would be very difficult then to relate these symptoms to her work. I also note that she had a period of one week off work in 2002 with a back complaint, which was not work related at that time.”
A Wages Schedule was prepared on behalf of each party and those documents were tendered in evidence before the Arbitrator. It appears that the Appellant tendered in evidence a “Response” to the Respondent’s Wages Schedule. The matter concerning quantification of any entitlement the Appellant may have had to weekly payments was the subject of detailed submissions by Counsel representing each party before the Arbitrator.
Appellant’s Submissions
It is submitted on behalf of the Appellant that the Arbitrator has made a number of errors of fact in the course of his determination of the dispute between the parties. The Appellant challenges three distinct findings:
(i)the Arbitrator’s finding that the Appellant made “no complaint of neck, back, arm, shoulder or hip pain while working for Ms Rao”;
(ii)the Arbitrator’s finding “in respect to what was in Dr Giblin’s mind”, and
(iii)the Arbitrator’s finding that “Dr Pillemer’s report is the only medico-legal report which is based on a history which accurately reflects the true course of events as demonstrated by medical records”.
It is argued by the Appellant that the last noted finding by the Arbitrator represents “a mixture of fact and law …”.
The Appellant submits that the Arbitrator has erred in law in the manner in which the provisions of section 4 of the 1987 Act were applied by him to the facts. Reliance is placed upon the decision of the High Court of Australia in Federal Broom v Semlitch [1964] ALR 1031 (‘Federal Broom’). It is further submitted that the Arbitrator has erred in his reliance upon the decision of the High Court in the matter of Smith v Australian Woollen Mills Ltd (1933) 50 CLR 504 (‘Smith’). It is put on behalf of the Appellant that the Arbitrator erred in failing to find that the Appellant had suffered an injury within the meaning of the 1987 Act. The Appellant seeks to support this submission by reference to the evidence with respect to the onset of particular symptoms experienced by the Appellant and reliance is placed upon the decision of the NSW Supreme Court, Court of Appeal in Mancini v Thompson [2002] NSWCA 38 (‘Mancini’).
It is argued on behalf of the Appellant that the Arbitrator erred with respect to the manner in which the provisions of section 9A of the 1987 Act were applied by him to the facts of the dispute between the parties. Reliance is placed by the Appellant upon the decision of the NSW Supreme Court, Court of Appeal in Mercer v ANZ Banking Group Ltd (2000) 48 NSWLR 740 (‘Mercer’). It is put on behalf of the Appellant that had the principles enunciated in Mercer been applied to the present facts the “Arbitrator should have found that employment was a substantial contributing factor to her condition as section 9A does not ‘attempt to exclude disposition or susceptibility to a particular condition’”. Reference is made by the Appellant to the decision of Maher v Brambles Australia Ltdt/as Wreckair Hire (1998) 17 NSWCCR 334 (‘Maher’).
It argued on behalf of the Appellant (at paragraph 13 of Submissions) that the Arbitrator has erred in law with respect to his findings as to “causation” in the context of the application of section 9A of the 1987 Act to the relevant facts. A distinction is drawn in this submission between what is said to be “a legal causation” and that of “a medical causation”.
The Appellant’s submissions proceed to take issue with the manner in which the Arbitrator evaluated the medical evidence with particular emphasis upon the Arbitrator’s adoption of the opinion of Dr Pillemer. The submissions proceed to analyse specific aspects of the medical evidence and the contents of medical records and it is argued that Dr Maniam’s view that the Appellant’s employment was a substantial contributing factor to her injury should have been accepted by the Arbitrator.
The Appellant’s submissions appear to challenge the Arbitrator’s reasoning process with respect to the evaluation of the evidence of Dr Matalani. It is argued that the Arbitrator has erroneously applied the principles enunciated by the NSW Supreme Court, Court of Appeal in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 (‘Makita’).
The Appellant further submits that there has been a denial of natural justice by reason of the Arbitrator’s suggested failure to seek submissions at the hearing with respect to the application of section 9A of the 1987 Act. It is further asserted in that paragraph that there was a failure on the part of the Arbitrator to give “adequate reasons” for the finding that employment was not a substantial contributing factor to the injury.
The Appellant submits that the Arbitrator has erred in failing to “consider” sections 15 and 16 of the 1987 Act (‘the disease provisions’). It is asserted on behalf of the Appellant that the medical evidence before the Commission establishes that a gradual onset of symptoms occurred requiring medical treatment from January 2005. The error suggested in this submission is failure by the Arbitrator to consider “the effects of the employment on underlying constitutional disorders” in the context of applying the disease provisions.
It is submitted by the Appellant (at paragraph 35 of Submissions) that “there is no basis for the Arbitrator to have found that the Worker is not entitled to medical expenses”. It is argued that the Appellant’s medical evidence supports the proposition that the Appellant’s employment was a substantial contributing factor to her injury and that the treatment rendered in respect of her disabilities was reasonable.
Respondent’s Submissions
In opposing the appeal the Respondent has filed with the Commission detailed Submissions which essentially seek to uphold both the manner of adjudication adopted by the Arbitrator and his conclusions.
The Respondent has addressed each of the matters raised on behalf of the Appellant and, founded upon an analysis of the evidence before the Commission, seeks to support the Arbitrator’s findings of fact. With respect to the suggested denial of natural justice the Respondent submits that the Appellant was, at the hearing, given a full opportunity to make submissions in respect of all issues including matters relevant to the proper application of section 9A of the 1987 Act.
With respect to the Appellant’s argument founded upon the suggested disregard by the Arbitrator of the disease provisions the Respondent asserts:
“… that at no stage in the proceedings did the Appellant allege that her injuries were the result of an aggravation of a disease process. Accordingly, the Appellant cannot now make new allegations of disease.”
The Respondent further submits that, having regard to the Arbitrator’s determination of liability the refusal by the Arbitrator to make an award in favour of the Appellant with respect to medical expenses followed as a matter of course.
DISCUSSION AND FINDINGS
This appeal is brought pursuant to the provisions of section 352 of the 1998 Act. Subsection (5) of that section provides:
“(5)An appeal under this section is to be by way of review of the decision appealed against.”
The nature of the “review” stated in the aforementioned subsection was the subject of examination by Dr Fleming DP in Mayne Health Group t/as Nepean Private Hospital v Sarah Sandford [2002] NSWWCCPD 6. In summary, the Commission’s conclusion in the last mentioned decision was that a proceeding such as the present is not an “appeal” in the strict sense nor is it a hearing de novo. It was further stated in the course of that aforementioned decision that such power to “review” is exercisable only where it can be demonstrated that the original decision of the Arbitrator was affected by legal, factual or discretionary error.
The Appellant’s first submission challenges the Arbitrator’s finding of fact with respect to his conclusion that “the Worker did not inform Nancy Rao of pain in the neck, back, shoulder or hip pain whilst working for Ms Rao …”. That finding is to be found at point 1 in paragraph 32 of the Arbitrator’s Reasons. The only challenge to the Arbitrator’s conclusion of fact is put on the basis of there being “no evidence”. The Arbitrator had before him the Statement of Nancy Rao dated 6 May 2005 which (at paragraph 8) contained the following:
“8.I am not aware if Mira had ever been injured at work and I am also not aware if Mira had previously claimed on any Workers’ compensation. When I employed her, her health was fine and she never advised me at any time that she had any health problems at all, even around the time of the alleged incident. The only time that I heard that Mira had a health problem was when she phoned me on the 11 March, 2005 advising me that she wasn’t coming in for two weeks as she had fluid on her knee. She then showed up at the cafe here on following Monday, 14 March, 2005 at 6.30am, limping (prior to that she never limped). She handed me the NSW worker cover medical certificate for those two weeks.”
It was, in my view, open to the Arbitrator to draw an inference from the above mentioned paragraph of Ms Rao’s Statement together with the balance of the evidence before him as summarised by him in his Reasons between paragraphs 11 and 31 that the Appellant made no complaint of neck, back, arm, shoulder or hip pain whilst working for the Respondent.
The Appellant suggests factual error on the part of the Arbitrator as follows:
“2.The Arbitrator has made a finding of fact in respect to what was in Dr Giblin’s mind, and the Appellant Worker submits the Arbitrator is not entitled to do so.”
This somewhat inexact challenge to the reasoning process and factual conclusions of the Arbitrator fails to identify, with precision, the finding of fact which is the subject of challenge.
The Arbitrator at paragraph 32.9 of his Reasons under the heading “Findings Of Fact” states:
“l From Mr Giblin’s history it is clear that he was operating under the belief that Mrs Simatovic’s knee, back, hip and heel pain developed at the same time, and led to her stopping work on 10 March 2005. This is not the case.”
It appears that the above mentioned finding by the Arbitrator is that which is the subject of challenge by the Appellant.
Dr Giblin, when taking the Appellant’s history as recorded in his report of 14 November 2005, noted that in the course of her work the Appellant noticed that she developed knee discomfort more on the left than the right and that she reported these symptoms in January 2005. Dr Giblin proceeded to record:
“At the same time, she noted that with prolonged standing she was getting pain in the low back radiating towards the legs and hips and that the left heel became very sore …”
The Arbitrator’s finding as to Dr Giblin’s “belief” as to the relevant history is a conclusion plainly open to the Arbitrator on the evidence. Such a finding was both a permissible finding of fact and one available on the evidence before the Arbitrator given that an evaluation of Dr Giblin’s opinion as to diagnosis and causation required a determination of his state of mind with respect to matters of history.
The Appellant challenges the Arbitrator’s finding of fact which appears at point 10 in paragraph 32 of his Reasons which appears as follows:
“l Dr Pillimer’s (sic) report is the only medico-legal report which is based on a history which accurately reflects the true course of events as demonstrated by the medical records.”
It is asserted by the Appellant in her Submissions that the above mentioned finding “is a mixture of fact and law and is not a ‘fact’ upon which a decision can be founded”. In my view the extract from the Arbitrator’s Reasons which is the subject of complaint represents purely a finding of fact and one that is in accordance with evidence which was open to acceptance by the Arbitrator. That evidence was the subject of a careful analysis in the course of the Arbitrator’s Reasons and I conclude that no error as to fact nor as to the manner in which the evidence has been evaluated by the Arbitrator has been established by the Appellant on this appeal.
The Appellant proceeds to argue, as I understand the matters put, that the Arbitrator’s acceptance of Dr Pillemer’s opinion demonstrates error given that it “does not reflect the findings made by the treating Specialist Dr Maniam …”. That argument appears to suggest that the Arbitrator’s determination of fact demonstrated by his acceptance of Dr Pillemer’s opinion was flawed in that it was against the evidence and the weight of the evidence. I reject that argument and conclude that the Arbitrator’s conclusion as to the acceptability of Dr Pillemer’s opinion was open to him on the evidence and that no error has been demonstrated by the Appellant with respect to the reasoning process adopted by the Arbitrator in so concluding.
It is asserted by the Appellant in her Submissions that “the Arbitrator has incorrectly applied the law in respect of section 4 of the Workers Compensation Act 1987”. This general submission is supported by an assertion that the Arbitrator had erroneously relied upon the decision of the High Court of Australia in Smith when considering the issue of “injury” and reliance is placed upon the High Court Decision in Federal Broom.
The Appellant proceeds (between paragraphs 6 and 9 of Submissions) to address the evidence with particular emphasis upon that relevant to the time of onset of various symptoms as reported by the Appellant to her treating Medical Practitioners and those qualified on behalf of the parties in the proceedings.
The Appellant’s submissions do not make specific reference to the Arbitrator’s findings with respect to the issue of “injury”. Before considering the merit of the Appellant’s arguments it is necessary to ascertain with precision what findings of fact with respect to this issue were made by the Arbitrator.
Under heading “INJURY” the Arbitrator in his Reasons sets forth the provisions of section 4 of the 1987 Act and notes (paragraph 34) that the Appellant’s case “is put on the basis that she developed her injuries as a result of the nature and conditions of her employment at Caffe 45 [sic]”. The Arbitrator proceeded (at paragraph 35):
“35)Apart from her knees, which commenced paining her while she was still working for Café 43, there is no temporal connection between Mrs Simatovic’s employment with Ms Rao and her injuries: Smith v Australian Woollen Mills Ltd (1933) 50 CLR 504; [1934] ALR 129. Because of that temporal connection I am satisfied that Mrs Simatovic suffered an injury to her knees in the course of her employment: Weston v Great Boulder Gold Mines Ltd (1964) 112 CLR 30; [1965] ALR 329 per Windeyer J.”
At paragraph 40 of his Reasons the Arbitrator made a further finding as to “injury” where it was stated:
“40)As to the claim for an injury to the abdomen the only evidence I have been able to locate in that regard is Mrs Simatovic statement on 15 April 2005 that she had a pain that shot from her knee to her stomach and felt like a stomach cramp. There is no mention of it in any of the reports. Given the conclusion I have reached in respect of the Mrs Simatovic’s knee injuries, and her evidence that these problems were related, I am satisfied that there is the necessary temporal connection between her stomach pains and her employment.”
It appears from the Arbitrator’s Reasons that, given his acceptance that the Appellant suffered symptoms in her knees and stomach whilst working with the Respondent, there existed a temporal relationship between such symptoms and her work enabling a conclusion that the Appellant had sustained an injury “in the course of employment” within the meaning of section 4 of the 1987 Act.
The Arbitrator rejected the Appellant’s allegation of injury to her head, back, neck, hips, bowel function, sexual organs and right arm upon the basis that the evidence revealed no “temporal connection” between such alleged injuries and work performed by the Appellant in the employ of the Respondent.
It was stated by Counsel appearing on behalf of the Appellant before the Arbitrator (transcript page 7, 33-36):
“This is essentially an overuse injury due to prolonged standing, walking, heavy manual handling activities, repetitive bending and lifting and with infrequent breaks …”
As noted above (paragraph 7) the Appellant in Part 3 of her ARD described her injuries as being “a result of the nature and conditions of her employment with the Respondent”.
It appears that the Appellant has misapprehended the findings made by the Arbitrator by stating (at paragraph 6 of Submissions):
“6.The Appellant Worker submits that the Respondent Employer denying that the Worker had informed the Respondent about any knee or other discomfort before 10 March 2005 does not mean that an injury did not occur.”
As above noted the Arbitrator has found as proven injury within the meaning of the 1987 Act to the Appellant’s knees and, as stated by him, “stomach pains”. It is my view that the Arbitrator’s reasoning with respect to those findings may be open to some criticism given the omission to characterise the “personal injury” suffered to those parts of the Appellant’s anatomy. The Arbitrator correctly relied upon the decision of the High Court in Weston v Great Boulder Gold Mines Ltd (1964) 112 CLR 30 (‘Weston’) as authority for the proposition that a temporal relationship between the occurrence of injury and employment renders that injury compensable even though no causal connection can be found between it and the employment. (See Owen J at paragraph 4). The finding by the Arbitrator that the Appellant experienced symptoms “in the course of employment” begs the question as to whether a personal injury within the meaning of the 1987 Act had been sustained. It is my view that proper application of section 4 of the 1987 Act required an examination as to whether any pathological change had occurred “in the course of employment”. Symptoms experienced by the Appellant may well be evidence of such pathological change however no determination of these matters has been made in the course of the Arbitrator’s Reasons. The need to determine the occurrence of some pathological change to establish the incidence of “personal injury” was the subject of discussion by his Honour Judge Armitage in the matter of Castro v State Transit Authority (NSW) (2000) 19 NSWCCR 496.
Notwithstanding the apparent misapprehension by the Appellant of the findings of the Arbitrator I assume for the purposes of this appeal that there is no challenge to his finding of injury to the Appellant’s knees and (as I infer) abdomen.
With respect to the Arbitrator’s findings with respect to the remainder of the Appellant’s allegations of injury I am not satisfied that the Arbitrator’s determination that the Appellant had failed to establish “injury to her head, back, neck, hips, bowel function, sexual organs and right arm” were in any relevant sense erroneously made.
The Arbitrator’s Reasons include a careful analysis of the various medical reports and medical records which were in evidence and it was open to the Arbitrator to conclude, as he did, that there was no evidence of painful symptoms in those parts of her anatomy during the currency of her employment. The Arbitrator’s reasoning may again be open to criticism upon the basis that he has treated the absence of a temporal relationship between the experience of symptoms and the work as, in itself, conclusive with respect to the question as to the occurrence or otherwise of “injury”. In that respect I accept the Appellant’s proposition (paragraph 8 of Submissions) that:
“The Appellant Worker submits that the first onset of pain in an affected part of the body does not need to arise when the Appellant Worker was working. If the pain develops due to injury, the Appellant Worker submits that body part is injured …”
I respectfully agree with the Arbitrator’s ultimate conclusion with respect to there being no injury to those parts of the Appellant’s anatomy referred to above. It is my view that, in the context of the totality of the evidence, the absence of complaint with respect to those alleged injuries during the currency of employment would alone be sufficient to permit the Arbitrator’s conclusion as to there being no injury. The Arbitrator was, in my view, correct in emphasising the significance of the recorded history in determining the issue of “injury” and any omission to analyse the detail of the medical opinions in this context is not a matter which, in my view, constitutes error requiring review. I am fortified in this view given the absence of any evidence from Dr Loo, the first General Practitioner consulted by the Appellant and being the Practitioner who obtained the initial radiological studies which were before the Commission. Again there was no evidence from Dr Shamoun, General Practitioner adduced before the Commission on behalf of the Appellant. In a matter such as the present where history of symptoms and treatment loom as significant in determining the rights of the parties the unexplained absence of such evidence may properly lead to an inference that the Appellant’s cause could not be advanced by calling those witnesses.
As was noted by the Arbitrator at paragraph 41 of his Reasons there was simply no evidence before the Commission relating to the allegation by the Appellant that she suffered depression and anxiety. In those circumstances a finding that such injury was not sustained was inevitable.
The Appellant asserts in her submissions on this appeal that “the Arbitrator has incorrectly applied the law in respect of section 9A of the Workers Compensation Act 1987”. The Appellant, between paragraphs 10 and 28 of Submissions, seeks to develop an argument that the Arbitrator erred in failing to apply correct principles to the facts when determining the question as to whether the Appellant’s employment was a substantial contributing factor to injury. It is put on behalf of the Appellant that the Arbitrator has “erred by applying a medical causation and not a legal causation when considering section 9A”. The Appellant proceeds to challenge the Arbitrator’s finding of fact in particular his preference for the opinion of Dr Pillemer over the opinions of those Practitioners whose evidence was adduced in support of the Appellant’s claim. The Appellant seeks to place emphasis upon particular tracts of the medical evidence in support of the proposition that the employment was a substantial contributing factor to injury. It is suggested (at paragraph 14) that the diagnosis of bilateral chrondomalacia patella made by Dr Maniam had been “overlooked” by the Arbitrator. That assertion cannot stand having regard to the Arbitrator’s notation of Dr Maniam’s diagnosis which is found at paragraph 21 of his Reasons.
The thrust of the Arbitrator’s determination with respect to the issues raised by section 9A are to be found at paragraph 47 of his Reasons:
“47)Accepting Dr Pillimer’s (sic) report, I conclude that Mrs Simatovic’s knee condition and resultant stomach problems arose spontaneously in the course of her employment, but are not related to the work or duties performed by Mrs Simatovic in the course of her employment. I am not satisfied that her employment was a substantial contributing factor to those conditions.”
It was open to the Arbitrator to accept the opinion of Dr Pillemer in preference to those opinions expressed by the other medical witnesses. The Arbitrator’s reasons for such preference are plainly stated (at paragraphs 44 and 45 of Reasons) and I am not persuaded that any error in any relevant sense has been established with respect to the Arbitrator’s reasoning process or his conclusions. As was stated by Mason P in Mercer:
“22.The worker correctly submits that the words “employment concerned” in s9A reinforce the view that it is the work activity in which the worker was engaged at the time of injury that is relevant. The ultimate question is whether that activity or task was a substantial contributing factor to the injury, bearing in mind that the concept of “a substantial contributing factor to an injury” is exegeted in subsections (2) and (3) of s9A.”
Acceptance by the Arbitrator of Dr Pillemer’s opinion not only provides a proper foundation to conclude that employment was not a substantial contributing factor to the injuries as found but, further, establishes that there is no causal connection at all between the employment and the injuries. That being so it is my view that the Appellant has failed to make out any error on the part of the Arbitrator with respect to the application of section 9A of the 1987 Act.
It is asserted by the Appellant (at paragraph 25 of Submissions) that the Appellant has been denied natural justice in that the Arbitrator reached his conclusions with respect to the operation of section 9A “without adequately seeking submissions, nor giving adequate reasons why she [sic] would say that there is no substantial contributing factor”.
As to the reasoning process adopted by the Arbitrator with respect to this issue, such is plainly stated and follows an analysis of the relevant evidence. The Arbitrator acknowledges (in paragraph 42 of Reasons) the relevant authorities which address the proper construction of section 9A and I am of the opinion that the Arbitrator has stated sufficient reasons for his conclusions.
The issue of section 9A of the 1987 Act was raised in the Reply filed on behalf of the Respondent in response to the Appellant’s ARD. Reference was made to that provision by Counsel for the Respondent in the course of submissions before the Arbitrator (transcript page 20, 19 – 28) and the Appellant’s Counsel was given an opportunity to respond to those submissions. I am not persuaded that there has been any relevant omission to seek submissions from the parties with respect to this issue and in particular I reject the argument put on behalf of the Appellant that there has been in this regard a denial of natural justice.
It is submitted on behalf of the Appellant that the Arbitrator “has failed to consider sections 15 and 16 of the Workers Compensation Act 1987”. It is argued that the Arbitrator has not considered the medical evidence in the course of his Reasons to determine “the affects of the employment on underlying constitutional disorders”. The first difficulty with such a submission is that the Appellant has not expressly particularised such an allegation. As noted above the Appellant’s ARD alleges injury to a multiplicity of parts of her anatomy together with anxiety and/or depression. It is alleged that such injuries were “as a result of the nature and conditions of her employment with the Respondent”.
An allegation of injury resulting from “nature and conditions” of employment occurs frequently in proceedings conducted before the Commission. The manner in which the Commission has dealt with such manner of particularisation of injury was summarised by Roche ADP (as he then was) in Rann v Saratoga Holdings Pty Ltd and Ors t/as Victoria Park Plantations [2006] NSWWCCPD 77 (‘Rann’). It was there stated:
“50. All we have in the present case is an allegation of injury due to ‘nature and conditions’ of employment. The mere incantation of the phrase ‘nature and conditions’ does not automatically invoke the disease provisions and permit a finding of disease. The expression is not one that is recognised in the workers compensation legislation. Judge Neilson discussed the expression and its incorrect use in Mirkovic v Davids Holdings Pty Ltd (1995) 11 NSWCCR 656 where at 667 he said:
“The phrase ‘nature and conditions of employment’ is not a term of art, although many who practise in this jurisdiction seem to think so. One Judge of Appeal recently referred to it as ‘quaint’. My colleague Burke J has repeatedly referred to it as a ‘meaningless concept’. It is used in this place as a shorthand way of alleging that, although no frank incident is relied upon, there was some aspect of the work carried out by a worker over a period of time, e.g. repeated lifting or bending, which caused some pathological condition or acted upon some underlying pathological condition to cause incapacity. Some classify such a period of work as a series of traumata or microtraumata, others classify it as causing a disease of gradual process within section 15 of the Act (where the pathology was caused by such work or as the aggravation, acceleration, exacerbation or a deterioration of a disease within section 16. The ‘microtraumata’ contention was that advanced by the worker on review.”
51. To rely on the disease provisions in section 4(b)(ii) and section 16 of the 1987 Act the following must be established:
· that the worker is suffering from a disease;
· the disease has been aggravated by the work done, and
· the employment concerned is a substantial contributing factor to that aggravation.”
In the present case, whilst the Arbitrator accepted the opinion of Dr Pillemer as to the Appellant suffering a condition of bursitis in the left knee joint, the Appellant has not, in argument, provided an evidentiary basis upon which a disease process may be identified and that such had been caused and/ or aggravated within the meaning of the disease provisions. In my view the Appellant’s failure to identify such a disease process affecting any of the parts of the anatomy alleged to have been injured is fatal to any claim to entitlement founded upon the disease provisions. Should I be wrong in so concluding, the Arbitrator’s conclusion with respect to the operation of section 9A of the 1987 Act as addressed above would, in my view, bar recovery of compensation.
It is correct as submitted by the Appellant that the Arbitrator has not dealt with the disease provisions in the course of his Reasons. That is hardly surprising having regard to the manner in which the injury has been particularised, the state of the medical evidence and the fact that those provisions were not raised on behalf of the Appellant in submissions before the Arbitrator.
The Appellant in her submissions appears to direct attention to the allegation of injury to the left knee in the context of the disease provisions and does not in argument touch on the balance of the allegations of injury. It is my view that given the absence of an explicit allegation of reliance upon the disease provisions, the paucity of evidence in relation to the issues raised by any application of those provisions to the facts of the present case and the fact that the Appellant made no reference in submissions before the Arbitrator to such an allegation, the Appellant has failed to establish error in any relevant sense on the part of the Arbitrator by reason of an absence of reference in his Reasons to the disease provisions.
The Appellant submits that the Arbitrator was in error in failing “to award medical and other section 60 expenses”. The Respondent is liable to indemnify the Appellant in respect of reasonably necessary medical expenses incurred with respect to injury or injuries found by the Commission to be compensable within the terms of the Act. For the reasons set forth above I conclude that the Appellant has established no error on the part of the Arbitrator in finding that the Appellant has not, on the evidence, established that she has received a compensable injury. It follows that the Respondent has no liability with respect to the claim for medical expenses. It also follows that the Respondent is entitled to an award in its favour with respect to the claim generally.
For the reasons set forth above I respectfully agree with the ultimate conclusions reached by the Arbitrator. It is my view that the Respondent, having succeeded in its defence of both the Application and the Appeal, is entitled to an award in its favour. Paragraph (1) of the Certificate of Determination does not correctly reflect the Arbitrator’s findings and constitutes an error that must be corrected. I consider it appropriate to amend the form of the determination by revoking paragraph (1) and substituting an award for the Respondent.
DECISION
The appeal is unsuccessful. For the reasons stated in this decision paragraph (1) of the Certificate of Determination is revoked and the following order made in substitution:
“(1) Award for the Respondent.”
Paragraphs (2) and (3) of the Arbitrator’s Determination dated 21 August 2006 are confirmed.
COSTS
No order as to costs of the appeal.
Kevin O’Grady
Acting Deputy President 24 May 2007
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O’GRADY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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