Snaith Industries Pty Ltd v Kataieh - [2010] NSWWCCPD 112

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Snaith Industries Pty Ltd v Kataieh [2010] NSWWCCPD 112
APPELLANT:		Snaith Industries Pty Ltd
RESPONDENT:		Ahmad Kataieh
INSURER:		CGU Workers Compensation (NSW) Ltd
FILE NUMBER:		WCC A1-1291/10
ARBITRATOR:	Mr G McIlwaine
DATE OF ARBITRATOR’S DECISION:		30 June 2010
DATE OF APPEAL DECISION:		28 October 2010
SUBJECT MATTER OF DECISION:		Weight of evidence, finding of total incapacity inconsistent with the evidence.
PRESIDENTIAL MEMBER:		President Judge Keating
HEARING:		On the papers
REPRESENTATION:		Appellant:	Sparke Helmore Lawyers
Respondent:	Keddies Lawyers
ORDERS MADE ON APPEAL:		1. Paragraphs 1, 2, 3 and 4 of the Arbitrator’s determination of 30 June 2010 are revoked. 2. The matter is to be remitted to a different arbitrator to determine afresh the worker’s entitlement to weekly compensation. 3. Paragraphs 5, 6, 7 and 8 of the Arbitrator’s determination of 30 June 2010 are confirmed. 4. No order as to the costs of the appeal.

BACKGROUND TO THE APPEAL

The respondent worker, Mr Kataieh, was employed by the appellant, Snaith Industries Pty Ltd, initially as a material mixer and subsequently as a die-setter. His employment in both capacities involved heavy physical work, particularly involving both arms.
On 21 November 2008, Mr Kataieh sustained injuries to both arms whilst changing a container mould. He remained off work until approximately April 2009, when he returned to work on light duties, with a lifting restriction of 2 kg and on restricted hours. After two weeks on suitable duties, he was unable to cope with the demands of the work and went off work again. He has not worked since.
On 28 September 2009, Mr Kataieh’s employment was terminated on the basis that the appellant could no longer provide suitable duties.
Mr Kataieh claimed compensation for injuries to his neck, both shoulders, both arms and lower back as a result of injuries sustained on 21 November 2008. His claim was accepted. On 17 September 2009, CGU Workers Compensation (NSW) Limited (CGU) issued a notice under s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) denying any further liability from 17 September 2009, on the basis that medical evidence indicated that Mr Kataieh’s “current injuries are no longer related to your employment”. CGU issued a second notice under s 74 of the 1998 Act on 23 December 2009 rejecting Mr Kataieh’s claim for lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) in respect of impairment of the neck, lower back, bilateral shoulders and hands. That claim was rejected on the same basis as Mr Kataieh’s claim for weekly payments and medical expenses.
An Application to Resolve a Dispute (the Application) was registered in the Commission on 19 February 2010. Mr Kataieh claimed weekly compensation from 17 September 2009 to date and continuing in the sum of $774.80, lump sum compensation in the sum of $11,000 in respect of eight per cent whole person impairment (the left and right upper extremity), and an order for the payment of medical expenses. The appellant denied compensation on the grounds specified in the s 74 notices. In addition, it alleged that Mr Kataieh had not suffered any permanent impairment and that there had been no failure on the part of the appellant to provide suitable work.
The Commission listed the matter for conciliation and arbitration on 12 May 2010. On that day, each of the parties was legally represented. The matter proceeded with lengthy submissions, but the Arbitrator heard no oral evidence.

CERTIFICATE OF DETERMINATION

In a reserved decision delivered on 30 June 2010, the Arbitrator found that Mr Kataieh was totally incapacitated for work and that he would remain unfit until 4 August 2010, based on the medical certification of Dr Kanawati. The Commission issued a Certificate of Determination on 30 June 2010 in the following terms:
“Findings
1.     On 12 May 2010 Mr Ahmad Kataieh was totally incapacitated for work by reason of his certification by Dr Kanawati dated 5 May 2010 that he is unfit to work until 4 August 2010.
2.     There are no grounds established by the respondent for the discontinuance of weekly payments of compensation to Mr Kataieh.
3. Respondent is to recommence weekly payments of compensation to the applicant pursuant to s 38 of the Workers Compensation Act 1987 from the date of the cessation of payments to him by the insurer. Such weekly payments of compensation are to be continued at the maximum statutory rate for a worker with no dependants.
Orders
4. Respondent is to pay the applicant weekly payments of compensation at the rate of $619.84 per week from 1 October 2009 to date and continuing under s 38 of the Workers Compensation Act 1987.
5.     File is remitted to the Registrar for necessary referral to an Approved Medical Specialist for an assessment of the Whole Person Permanent Impairment of the applicant on the basis of the claim made in Part 4 of the Application – Injury Details (date of injury 28 November 2008 with the affected body parts being right upper extremity and left upper extremity).
6.     The documentation to be referred to the Approved Medical Specialist is the Application and Reply together with all attachments to those documents. Also Applications to Admit Late Documents received by the Commission on 29 April 2010 and 5 May 2010.
7. Respondent is to pay the applicant’s expenses under s 60 of the Workers Compensation Act 1987 upon production of accounts/receipts and/or HIC charges.
8.     Respondent is to pay the applicant’s costs as agreed or assessed. In any such agreement or assessment it is to be noted that the proceedings involved differences in the employment history of the applicant. There were lengthy late documents to be perused. The preparation time was considerable. Several documents were referred to in the conciliation conference/arbitration hearing. I am satisfied that the matter is complex and it is so certified. Both parties are to receive a 30% uplift in their costs.”

GROUNDS OF APPEAL

In an appeal filed on 27 July 2010, the appellant seeks leave to challenge the Arbitrator’s determination on the basis that the arbitrator erred in:
(a) making a finding that the worker was totally incapacitated, and
(b) after making that finding, entering an award under s 38 of the 1987 Act.

LEAVE TO APPEAL

Monetary threshold

Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of s 352 of the 1998 Act.
It is not disputed that the monetary threshold in s 352(2) of the 1998 Act is satisfied.

Time

The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with s 352(4) of the 1998 Act.
I grant leave to appeal.

ON THE PAPERS REVIEW

Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.

EVIDENCE AND SUBMISSIONS

Mr Kataieh

Mr Kataieh submitted an incident report form to the appellant on 28 November 2008. He stated that, on 24 November 2008 at 9.00 am, he injured his right and left forearms as follows:
“I Ahmed was changing mould on machine No 6 and I was clamping the mould together and from the third clamp my arms got very sour [sic] and I couldn’t do the clamping an mould.”
Mr Kataieh relied on a signed statement of evidence dated 19 January 2010. His evidence may be summarised as follows:
(a)     He has trade qualifications in the area of machine-operating, as well as drilling and tapping. All of these jobs involve heavy manual labour.
(b)     He commenced employment with Snaith Industries through a recruitment agency on 6 February 2007. He became a permanent employee on 8 August 2007.
(c)     He was initially employed as a material mixer, which required him to mix different coloured materials and insert them into a machine. This process involved dragging a bin from the machine operating area into a storeroom and emptying approximately five to six 20 kg bags of material before dragging them back to the machine mixing area and connecting them to the machine itself. He was required to attend to 13 machines in this fashion. This required him to fill a bin with materials approximately once every five minutes throughout an eight-hour shift. He was employed in this position for approximately three months before being promoted to a die-caster.
(d)     As a die-caster, he was required to prepare mould settings known as a “die”. The size of the dies varied. From time to time, the dies in the machine were changed. To facilitate this process, Mr Kataieh used a large spanner, over which was placed a long metal pipe in order to gain leverage and weight to undo the clamps holding the dies together. There were approximately eight clamps on each mould, each of which needed to be removed before removing the die from the machine using an overhead crane. Undoing the clamps required considerable force involving Mr Kataieh pulling from above head-height down to his waist-height with all of his weight and force.
(e)     When the dies in the machine were replaced, the process described in the preceding paragraph was reversed: that is to say, he was required to tighten the clamps using the spanner and leverage pipe operating from waist-height to head-height to tighten the clamps, which again required considerable force.
(f)      The work was repetitive and heavy, and placed considerable pressure on both arms and shoulders.
(g)     On 21 November 2008, Mr Kataieh experienced pain in his left and right shoulders which became unbearable when changing the mouldings. He reported the incident to a supervisor, Jasbir, and completed an incident report form.
(h)     Mr Kataieh attended his general practitioner, Dr Kanawati, and was certified unfit for work.
(i)      He remained unfit for work until approximately April 2009, when he attempted to return to work on light duties.
(j)      Upon his return to work on light duties, he had a lifting restriction of 2 kg and was only able to work two hours a day three days per week.
(k)     The “suitable duties” involved him working in the warehouse placing labels onto containers, which involved the constant use of both arms. This work aggravated his condition and he returned to Dr Kanawati and informed him accordingly.
(l)      Mr Kataieh remained on light duties for two weeks and was unable to cope further. He has not worked since April 2009.
(m)   Liability was initially accepted and payments of weekly compensation were made until they were terminated on or about 17 September 2009.
(n)     Mr Kataieh’s employment was terminated by the appellant on 28 September 2009.
(o)     Mr Kataieh claims that he is in constant pain and has difficulty with day-to-day activities, including for example, simple tasks such as sweeping, driving, showering and changing clothes. He claims to suffer from depression and psychological problems.
(p)     Mr Kataieh states that his earnings at the time of his injury were approximately $774 per week (“subject to overtime”).

In a further signed statement of evidence dated 27 April 2010, Mr Kataieh stated:
(a)     He commenced searching for employment in about January 2010.
(b)     As of mid to late February 2010, Centrelink required him to search for suitable employment. A recruitment agency, ORS Group in Miller, have been retained to assist him in this endeavour.
(c)     Mr Kataieh attends ORS Group premises twice per fortnight and is required to discuss employment opportunities. He is also making inquiries on his own behalf.
(d)     Mr Kataieh is seeking positions which are unlikely to aggravate his condition. He does not regard himself as suitable for work as a die-setter or machinist because of the heavy nature of that work.
(e)     Dr Kanawati has certified him fit for suitable duties up to 25 hours per week, provided they do not include repetitive bending, lifting or movement of the arms and spine. He is also restricted in the weight that he is able to lift.
(f)      Mr Kataieh expressed the view that he hopes eventually to return to full-time employment but, as at the date of his statement (27 April 2010), he did not consider himself fit for unrestricted pre-injury duties.
Mr Kataieh filed an Application to Admit Late Documents on 29 April 2010, the contents of which were admitted into evidence. Those documents included a handwritten list of job applications made by Mr Kataieh. The dates of his applications are unstated. He sought various forms of employment, including car detailer, process worker, delivery driver, sandwich hand, labourer, storeperson, kitchen hand and warehouse packer. None of the applications was successful.
During the course of the proceedings, probably at the request of the Arbitrator, although that is not clear from the record, Mr Kataieh’s lawyers filed a document entitled “Orders Sought by Applicant”, which relevantly sought the following order:
“2. That the applicant remains partially incapacitated for employment as a result of his work related injuries.”

MEDICAL EVIDENCE

On 27 November 2008, Dr Hunter performed a left forearm ultrasound. He found evidence of myositis, showing increased muscle thickness (12 mm) compared to the normal right side (9 mm).
On 28 November 2008, Mr Kataieh’s general practitioner, Dr Kanawati, issued a WorkCover medical certificate certifying him unfit for work from 24 November 2008, with a diagnosis of myositis in both upper arms. On the same basis, Dr Kanawati issued progressive certificates certifying Mr Kataieh unfit to 30 January 2009.
On 9 February 2009, Dr T Kooner performed a cervical spine CT and x-ray. No abnormality was detected on either the CT or the x-ray. Both studies were within normal limits.
Dr Robert Dixon undertook a localised bone scan on 13 February 2009. The scan findings were suggestive of moderately severe lateral epicondylitis at the right elbow and mild to moderate synovitis at the right elbow joint. There was a localised region of soft tissue inflammation in the lateral aspect of the mid left forearm. The scan abnormality at the tuberosity of the left radius most probably reflected either a biceps enthesitis or bursitis. There was a finding of mild arthritic change at the wrists and fingers, and at the facet joint of C3/C4 on the left.
Mr Kataieh was referred to an orthopaedic specialist, Dr V Maniam. Dr Maniam prepared a report to CGU dated 16 February 2009. He diagnosed Mr Kataieh’s condition as:
(a)     Chronic sprain of the cervical spine.
(b)     Sprain of the periarticular muscles of the shoulders.
(c)     Flexor muscle sprain in the forearm.
(d)     Tendonitis in both forearms.
He attributed Mr Kataieh’s condition to his employment and opined that, in his view, the work was a substantial contributing factor to the worker’s injury. Dr Maniam agreed that Mr Kataieh was unfit for employment and would remain so until further investigations were undertaken.
Dr Kanawati provided a report to CGU dated 17 February 2009. He stated that he was first consulted by Mr Kataieh on 27 November 2008. He complained of pain in his forearms and upper arms, bilateral shoulder pain, and neck pain. He obtained a history of employment consistent with Mr Kataieh’s evidence. Dr Kanawati diagnosed myositis of the forearm and upper arm muscles, tendonitis to both shoulders, and myositis of the cervical muscles. Dr Kanawati noted the results of Dr Hunter’s ultrasound of 27 November 2008. He opined that Mr Kataieh’s injuries were consistent with the type of work he did in the plastics factory and certified him unfit for work.
Dr Maniam referred Mr Kataieh to Dr M Parker, radiologist, for an ultrasound of both shoulders. In a reported dated 24 March 2009, Dr Parker reported findings of tendinopathy of the supraspinatus tendon and sonographic features of bursitis in both shoulders. He recommended that Mr Kataieh might benefit from an ultrasound-guided injection in both shoulders.
Mr Kataieh’s solicitors referred him to Dr Peter Conrad, surgeon, for an independent medicolegal opinion. Dr Conrad prepared a report for Keddies Lawyers dated 26 March 2009. Based on a consistent history and his physical examination, Dr Conrad concluded that, as a result of the work-related accident on 21 November 2008, Mr Kataieh had developed bilateral shoulder strain, and he recommended further investigations in the form of ultrasound and MRI of both shoulders. He certified Mr Kataieh unfit for heavy work, but felt that he would be able to do 12 hours per week of light work, such as light depot work, process work or cleaning in circumstances where he was able to stand or sit at will and not lift anything more than 5 kg in weight, or lift anything above shoulder-level. He did not consider at that point that Mr Kataieh had reached maximal medical improvement in terms of any assessment of whole person impairment.
At the request of CGU, Mr Kataieh was referred to Dr Ian Smith, injury management consultant, who prepared a medicolegal report dated 1 May 2009. Mr Kataieh provided Dr Smith with a history consistent with his evidence. He added that, to clamp and unclamp the moulds, he had to produce a force of 40–50 kg pushing down on the lever and 60 kg coming back up. He stated that he first noticed discomfort in the left forearm more than the right, which he attributed to the heavy and repetitive nature of his work. The discomfort gradually involved the hands, wrists, elbows and shoulders, with the left side being worse than the right. He also developed symptoms on the left side of his neck and the left-hand side of his lower back. Following his physical examination and review of the bone scan and ultrasounds, Dr Smith offered the following diagnosis:
“The claimant has a range of soft tissue sprain/strain injuries. He does have evidence of bilateral impingement syndromes and enthesopathy. In my view the impact from this has been compounded by prolonged inactivity which has now resulted in a chronic pain syndrome as well with fear-avoidant behaviour.”
In terms of prognosis, Dr Smith noted that there was a measure of psychological overlay with respect to Mr Kataieh’s reaction to the injury which, in his view, would be assisted with an appropriate exercise program. He stated that Mr Kataieh had objective clinical findings, but he needed to be using his arms, rather than resting them, and, to this end, Dr Smith recommended a daily swimming or water-based exercise program. He considered the outlook excellent if Mr Kataieh was appropriately engaged to start exercising. Dr Smith made no comment in relation to causation, although he accepted that there was no history of any other health problems.
On 25 May 2009, Mr Kataieh was assessed by Dr Daniel Briggs, an orthopaedic surgeon, at the request of Dr Kanawati. On examination, Dr Briggs noted restricted shoulder motion bilaterally and ultrasound evidence of bursitis in the shoulders. He referred Mr Kataieh for an MRI scan of both shoulders to rule out any underlying interarticular derangement.
Between 5 June 2009 and 14 August 2009, Dr Kanawati issued a series of WorkCover medical certificates certifying Mr Kataieh totally incapacitated.

On 3 July 2009, Mr Kataieh submitted to MRI investigation of both shoulders performed by Dr Kuan. In a report to Dr Briggs, Dr Kuan noted that there was no evidence of any rotator cuff tear in either shoulder. In the left shoulder, there was evidence of supraspinatus tendonitis and subacromial bursitis. He found mild supraspinatus tendonitis and subacromial bursitis in the right shoulder, and noted that the labrum and biceps complex were intact in both shoulders.
Dr P Ketheswaran, radiologist, performed ultrasound-guided injections of Celestone and Marcain into the subacromial bursae of both shoulders.
Dr Michael Shatwell, orthopaedic surgeon, examined Mr Kataieh on 11 September 2009 as a medicolegal consultant for CGU. After taking a consistent history, a physical examination and a review of the various investigations, including the ultrasound of the left forearm performed in November 2008, the x-rays and CT scan of the cervical spine performed in February 2009, the bone scan of the cervical spine and upper limbs on 13 February 2009, the ultrasound scans of the left and right shoulders performed in March 2009, and the MR arthrograms of both shoulders performed on 3 July 2009, Dr Shatwell concluded that there was no definite diagnosis of Mr Kataieh’s current condition. He stated that Mr Kataieh presented with subjective symptoms and no objective signs of any pathology. He assessed that there was evidence of exaggeration of a sprain or strain, with chronic symptoms unexplainable on a medical basis. He did not believe that Mr Kataieh’s condition was related to any pre-existing condition or injury, nor did he consider that the condition was related to his employment with the appellant or any other employer. He stated that there was no history of any specific incident at work. He excluded the possibility that Mr Kataieh’s condition had been aggravated by the work.
When asked whether he considered Mr Kataieh’s employment to be a substantial contributing factor to his injury on 21 November 2008, he stated that, in his view, the condition was unrelated to employment. He said:
“I consider he had a muscle fatigue and pain in November 2008 which would have settled following cessation of work. Current symptoms are fabricated for the purposes of workers compensation benefits.”
In terms of prognosis, Dr Shatwell stated that he did not consider Mr Kataieh had a medical problem. His recovery depends upon his acceptance of this, and counselling to reinforce he had no permanent impairment as a result of his injuries.
At paragraph 10 of his report, Dr Shatwell was asked the following question:
“Please find attached a copy of the worker’s pre-injury job description and workplace assessment. Could you please consider if the worker is capable of performing some or all of these duties (please specify)?”
Dr Shatwell answered as follows:
“Mr Kataieh is capable of performing suitable light duties and may be able to manage a gradual return to normal duties paced appropriately. It is impossible to be specific regarding this. He requires counselling and advice that he has not permanently damaged his upper limbs, neck or spine as a result of physical activities performed almost one year ago.”
He added that, with successful counselling and psychological help, Mr Kataieh may be able to return to work with his current employer. However, Dr Shatwell doubted that he would return to his pre-injury duties, although there was, in his opinion, no physical reason why this should not be contemplated. He was supportive of Mr Kataieh submitting to psychiatric or psychological assessment and treatment.
On 29 September 2009, Dr Kanawati issued a Centrelink medical certificate certifying Mr Kataieh fit for up to nine hours of work from 17 September to 17 December 2009. He issued a further certificate on 4 December 2009 certifying Mr Kahaieh fit to work up to 25 hours per week. He did not specify any limitation on the duties Mr Kataieh could perform in either certificate.
Dr Peter Conrad re-examined Mr Kataieh on 19 October 2009. He provided a report to Keddies Lawyers dated 27 October 2009. Since first assessed in November 2008, Mr Kataieh reported that his condition had deteriorated. He reported pain in his neck, both shoulders, and pain radiating into both arms. He had not continued with physiotherapy, because he could not afford it. After undertaking a further physical examination and reviewing the x-rays, arthrogram and ultrasound evidence, Dr Conrad confirmed that Mr Kataieh had suffered a bilateral shoulder strain. Following the ultrasound and MRI investigations, he was satisfied that there was evidence of supraspinatus tendonitis and bursitis in both shoulders.
Dr Conrad was of the view that Mr Kataieh was not fit for his duties as a die-setter. At most, he may be able to do light process work or similar light work, doing about 15 hours per week in a position where he does not lift anything more than 5 kg in weight and does not lift anything above shoulder level. This should all be part of a structured rehabilitation program. Dr Conrad felt that Mr Kataieh might be able to do light cleaning work or light depot work within the above parameters, but he should not use heavy industrial vacuum cleaners or polishers. Should his parents no longer be able to assist him with housework and home maintenance, he may need up to six hours per week of home care assistance. Dr Conrad stated that the prognosis is uncertain. He stated that Mr Kataieh had reached maximal medical improvement and assessed his whole person impairment at eight per cent.

THE ARBITRATOR’S REASONS

The Arbitrator accepted that Mr Kataieh has some residual capacity to undertake work. However, he found that, when this was combined with his “pain, sleeping at night problems”, as well as his “secondary depression and psychological problems” as outlined in his statement of 19 January 2010, he was effectively totally incapacitated, and had been for some time.
The Arbitrator relied on Moran Health Care Services v Woods [1997] NSWSC 147 (Moran) as authority for the proposition that a finding of total incapacity is sustainable, even where there is some evidence of the worker’s capacity to undertake some work.
The Arbitrator stated that he was conscious of Dr Kanawati’s assessment that Mr Kataieh could work up to 25 hours per week on selected duties. However, he found that this could only be achieved after a period of “work hardening” which, the Arbitrator found, was more likely to occur after Mr Kataieh received assistance from the disability services section of Centrelink. Consequently, he found Mr Kataieh to be totally incapacitated for work from 17 September 2009 to the date of hearing.
The Arbitrator gave these additional reasons for his conclusions:
(a)     The evidence of Dr Smith supported a finding of “ongoing injury”.
(b)     Dr Shatwell’s conclusions were without any factual support. The Arbitrator found that Dr Shatwell’s observation of no specific incident at work was not in accordance with the facts. He relied on the incident report of 28 November 2008 (Reply page 29).
(c)     The absence of any support for the conclusion reached by Dr Shatwell that Mr Kataieh’s symptoms were fabricated and the failure to give Mr Kataieh an opportunity to rebut the assertion. The Arbitrator found that Dr Shatwell was under an obligation to do so, relying on Hatch v Peel Valley Exporters Pty Ltd [2010] NSWSC 23.
(d)     The Arbitrator relied on the opinion of Dr Peter Conrad and, in particular, his opinion that there was evidence of supraspinatus tendonitis and bursitis in the shoulders.

SUBMISSIONS

Ground One – Did the Arbitrator err in finding the respondent worker was totally incapacitated?

Appellant

The Application did not specify whether the weekly payments of compensation claimed were in respect of an alleged partial or total incapacity.
Dr Conrad diagnosed bilateral shoulder strain and concluded that Mr Kataieh was unfit for his pre-injury duties, but was able to undertake 12 hours per week of light duties. After reviewing the MRI scan and ultrasound of both shoulders, Dr Conrad concluded in his report of 20 October 2009 that Mr Kataieh remained unfit for his pre-injury duties, but would be capable of working up to 15 hours per week of suitable duties, with restrictions in relation to lifting.
The appellant relies on the opinion of Dr Shatwell that Mr Kataieh was fit to resume his pre-injury duties if he obtained some psychological counselling.
The worker’s evidence was that his general practitioner, Dr Kanawati, had been certifying him fit for suitable duties up to 25 hours per week. Mr Kataieh confirmed his desire to eventually return to full-time employment.
Mr Kataieh’s legal representatives lodged “Draft Orders for the Applicant” with the Commission. Those Orders sought an order to the effect that Mr Kataieh was “partially incapacitated as a result of his work-related injuries”. Mr Kataieh’s evidence included a list of applications for employment that he had made. The appellant submits that, whilst not comprehensive, it demonstrates that Mr Kataieh has been looking for employment and indicates that he formed the view that he is fit to return to some form of employment.
A Centrelink medical certificate confirmed that Mr Kataieh was fit to work up to 25 hours per week (in the period 4 May 2010 to 4 August 2010).
Notwithstanding the abovementioned evidence, the Arbitrator concluded that the worker was totally incapacitated. This was notwithstanding the fact that the Arbitrator accepted Dr Kanawati’s evidence that Mr Kataieh “probably has some residual capacity to undertake work”.
The Arbitrator’s reliance on Moran is misplaced. The facts in the instant matter are distinguishable from the facts in Moran. In that case, the worker’s evidence was that she was unable to return to any form of meaningful employment, whereas the medical evidence in the instant matter indicates that Mr Kataieh is fit for suitable duties, albeit with restrictions in relation to the hours he could work.
The Arbitrator erred in finding that Mr Kataieh was totally incapacitated. It submits that the appropriate finding was one of partial incapacity in accordance with the medical evidence.
As a consequence of the abovementioned proposed finding, consideration would need to be given to the extent of Mr Kataieh’s entitlement to weekly compensation in respect of partial incapacity. This would require the matter to be remitted for consideration by a different arbitrator.

Ground Two – Did the Arbitrator err in awarding the worker weekly payments of compensation pursuant to s 38 after finding him totally incapacitated?

Appellant

The finding of total incapacity was inconsistent with the award of weekly payments under s 38 and constituted an error.
In the event that the Commission finds total incapacity, the award of weekly compensation would require amendment to reflect an award pursuant to ss 36 and 37. Consideration would also need to be given to payments of compensation already made by the appellant, as Mr Kataieh may well have received his full entitlement to weekly compensation pursuant to s 36.
If the appellant is successful in relation to Ground One, further consideration would need to be given to whether Mr Kataieh has satisfied the provisions of s 38 and s 38A in so far as is relevant to determining his entitlement to weekly compensation whilst partially incapacitated. The appellant submits it would be necessary for the matter to be remitted to a different arbitrator for consideration of these issues.
Further, and in any event, if the appellant is successful in relation to Ground One, the matter would need to be remitted to a different arbitrator to determine the respondent worker’s entitlement to compensation pursuant to s 40 (should the s 38 claim not be made out).

Mr Kataieh

Mr Kataieh’s submissions on both grounds are extremely brief and are summarised as follows:
(a) The Arbitrator correctly awarded compensation pursuant to s 38.
(b)     The medical evidence and the submissions from Mr Kataieh’s counsel “always alleged that the worker is partially fit for work”.
(c)     The Arbitrator made an obvious error in “referring to the worker as being totally unfit for work”.
(d)     Mr Kataieh relies on the transcript of proceedings in support of the proposition that he is partially fit for work rather than totally unfit for work.

DISCUSSION AND FINDINGS

The parties agree that the Arbitrator was in error in finding that Mr Kataieh was totally incapacitated and that the evidence supports a finding of partial incapacity.
Nevertheless, in accordance with my obligation under s 352, I am required to conduct a review of the Arbitrator’s decision to determine whether he reached the true and correct decision on the evidence before him (State Transit Authority of NSW v Chemler (2007) 5 DDCR; [2007] NSWCA 249; (Chemler): Sapina v Coles Myer Pty Ltd [2009] NSWCA 71.
I agree with the parties’ submissions that, with the exception of Dr Shatwell, the overwhelming preponderance of the medical evidence supported a finding of partial incapacity.
Dr Smith, who examined Mr Kataieh for CGU, accepted that Mr Kataieh had objective clinical findings and displayed evidence of bilateral impingement syndrome and enthesopathy. He thought that the condition had been compounded by prolonged inactivity and recommended an exercise program.
Dr Briggs, an orthopaedic surgeon who treated Mr Kataieh, accepted that the ultrasound demonstrated evidence of bursitis in the shoulders.
Dr Peter Conrad agreed that Mr Kataieh was not fit for his pre-injury duties, but also thought that he could do light process work or similar light work up to 15 hours per week, with a lifting restriction of no more than 5 kg in weight and no lifting above shoulder level.
All of these findings were consistent with the radiological evidence, which included an MRI on 3 July 2009 and an ultrasound of both shoulders on 28 August 2009, both of which demonstrated either tendinopathy or tendonitis of the supraspinatus tendon in both shoulders and evidence of bursitis.
Dr Shatwell, on the other hand, concluded that there was no objective evidence of any pathology to explain Mr Kataieh’s symptoms. Dr Shatwell reviewed the various radiological evidence. Contrary to the findings of Dr Parker, who performed the ultrasound in both shoulders in March 2009 and recorded findings of tendinopathy of the supraspinatus tendon and bursitis in both shoulders, Dr Shatwell stated that the scans were normal. He made no attempt to explain why he disagreed with the findings of Dr Parker or why he did not accept that the scans demonstrated tendinopathy and bursitis in the shoulders.
Dr Shatwell’s finding that there was no objective evidence of injury is inconsistent with his own interpretation of the MRI scans performed on 3 July 2009. He accepted that these demonstrated moderate degenerative changes in the supraspinatus tendons on both sides where these inserted into the humerus. That finding is consistent with the report of those scans by Dr Kuan, except to the extent that Dr Shatwell omitted to acknowledge the findings of subacromial bursitis in both shoulders.
Dr Shatwell made no attempt to explain his opinion that Mr Kataieh’s condition was unrelated to his employment in circumstances where Mr Kataieh had made consistent complaints of pain and restriction of movement in the upper limbs since the reported injury on 24 November 2008. Nor did Dr Shatwell provide any explanation for his assertion that Mr Kataieh was deliberately fabricating symptoms to secure workers compensation benefits.
Given the objective findings, there can be little doubt that Mr Kataieh suffered soft tissue injuries in both shoulders and forearms. The injuries were confirmed radiologically and widely accepted by Drs Smith, Parker, Briggs and Conrad. The only doctor who refused to accept injury was Dr Shatwell. To that extent, and for the reasons previously given, the Arbitrator was correct, in my view, to place little weight on his opinion (Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 75 and South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16; 4 DDCR 421).
The Arbitrator’s reliance on Hatch as authority for the proposition that Dr Shatwell was under an obligation to give Mr Kataieh an opportunity to rebut an assertion of fabrication is misplaced. Hatch concerned an application to the Supreme Court for review of a Medical Appeal Panel Certificate of Determination. The Panel found that the worker’s presentation was inconsistent and unreliable. Hislop J set aside the Panel’s findings on the basis that the worker’s credibility was not an issue that was raised on the appeal, and indeed was inconsistent with the basis upon which the matter had been referred to the Medical Appeal Panel. In that matter, injury had been accepted, and the question before the Panel was the nature and extent of the injury and the extent of the whole person impairment, if any. The veracity of the worker’s presentation was a new issue raised by the Panel and, as a matter of procedural fairness, the Panel was required to give notice to the worker before finally determining the appeal before it. Hatch is not authority for the proposition that an independent medical examiner, such as Dr Shatwell, is required, as a matter of procedural fairness, to first inform a worker that he intends to make adverse comment about the worker in his report to those instructing him.
I agree with the appellant’s submission that the Arbitrator’s reliance on the decision in Moran is also misplaced. The finding of total incapacity in that case was clearly based on the unchallenged evidence of the worker and her treating doctors that the worker was unfit to return to any form of meaningful employment. The facts in Moran are distinguishable from the facts in the instant case, where the medical experts’ and the worker’s evidence overwhelmingly support a finding of partial incapacity.
I have come to the conclusion that the medical evidence, in combination with Mr Kataieh’s own evidence concerning his capacity for employment and his willingness to return to the workforce, is inconsistent with a finding of total incapacity, and that finding must be revoked.
The finding of total incapacity is also inconsistent with the way the case was pleaded and run and inconsistent with the Orders sought by Mr Kataieh.
The Arbitrator’s order that payments of compensation be made to Mr Kataieh under s 38 is also inconsistent with a finding of total incapacity. Section 38 is concerned with the payment of compensation to partially incapacitated workers who are not suitably employed and are actively job-seeking.
The appellant submits that, in the event that Ground One of the appeal is made out, which it is, consideration would need to be given to whether Mr Kataieh has satisfied the provisions of s 38 and s 38A in so far as is relevant in determining his entitlement to weekly compensation whilst partially incapacitated.
In the event that the entitlement under s 38 is not made out, consideration would need to be given to the quantum of any entitlement pursuant to s 40. These are matters, the appellant submits, that should be remitted to a different arbitrator to determine afresh. Mr Kataieh did not demur from those submissions, and that is the course I propose to adopt.
Where the Arbitrator’s decision is revoked, it is generally desirable that the Presidential member hearing the appeal re-determine all issues (Chubb Security Australia Pty Ltd v Trevarrow (2004) 5 DDR 1, NSWCA 344). However, I do not consider that I have sufficient evidence to determine the quantum of Mr Kataieh’s entitlement to weekly compensation. Whilst there is evidence of his job-seeking, there is no evidence either before the Arbitrator or on appeal concerning the availability of suitable work in the labour market reasonably accessible to the worker, or the extent of the earnings that he could expect to receive if he were successful in obtaining employment. For that reason, I agree with the Appellant’s submission that the matter be remitted to another arbitrator for re-determination of the worker’s entitlement to weekly compensation.

DECISION

Paragraphs 1, 2, 3 and 4 of the Arbitrator’s determination of 30 June 2010 are revoked.
The matter is to be remitted to a different arbitrator to determine afresh the worker’s entitlement to weekly compensation.
Paragraphs 5, 6, 7 and 8 of the Arbitrator’s determination of 30 June 2010 are confirmed.

COSTS

I make no order as to the costs of the appeal.

Judge Keating

President
28 October 2010

I, MELANIE CURTIN, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JUDGE KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE