South Eastern Sydney Area Health Service (Garrawarra Hospital) v Sheridan-Brown
[2005] NSWWCCPD 147
•6 December 2005
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:South Eastern Sydney Area Health Service (Garrawarra Hospital) v Sheridan-Brown (2005) NSW WCC PD 147
APPELLANT: South Eastern Sydney Area Health Service
RESPONDENT: Sandra Sheridan-Brown
INSURER:GIO Australia Limited
FILE NUMBER: WCC19286-03
DATE OF ARBITRATOR’S DECISION: 19 April 2004
DATE OF APPEAL DECISION: 6 December 2005
SUBJECT MATTER OF DECISION: Section 38 of the Workers Compensation Act 1987; suitability of employment offered; sections 47 and 48 of the Workplace Injury Management & Workers Compensation Act 1998.
PRESIDENTIAL MEMBER: Acting Deputy President Deborah Moore
HEARING:On the papers
REPRESENTATION: Appellant: Phillips Fox, Lawyers
Respondent: Hansons Lawyers
ORDERS MADE ON APPEAL: (1) The decision of the Arbitrator is
confirmed.
(2)The Appellant is to pay the costs of the appeal.
BACKGROUND TO THE APPEAL
Sandra Sheridan-Brown (‘the Respondent Worker’) was employed by South Eastern Sydney Area Health Service (‘the Appellant Employer’) at its Garrawarra Centre in Waterfall as an enrolled nurse.
On 30 October 1999 whilst at work, she suffered an injury to her left hand when she was assaulted by a patient. Following that incident, the Respondent Worker resumed work with the Appellant Employer on suitable duties as a roster clerk working seven hours per day, three days per week in accordance with WorkCover Certificates provided by her general practitioner, Dr Sen.
On 21 May 2003, the Appellant Employer advised the Respondent Worker that changes were to be made to her hours and duties. Details of those changes were formalised in a letter to the Respondent Worker from the Appellant Employer dated 5 June 2003.
The Respondent Worker attempted the new duties commencing on 16 July 2003 but on 22 July 2003 informed the Appellant Employer that the duties were not suitable and that she was unable to continue.
On 28 July 2003, the Appellant Employer formulated a Return to Work Plan incorporating the new duties as outlined in the letter dated 5 June 2003. The Respondent Worker again advised the Appellant Employer that neither the duties nor the hours of work outlined in the Return to Work Plan were suitable.
On 31 July 2003, the Appellant Employer wrote to the Respondent Worker advising that, in its opinion, the duties were suitable and that no other suitable duties were available. The Respondent Worker was also informed that weekly benefits may be terminated in the absence of medical certification of total incapacity.
On 18 August 2003, the Appellant Employer wrote to the Respondent Worker advising that:
“As no medical certificate has been forthcoming to support your absence from duty as from 22 July 2003, you are advised that your weekly benefits… have been suspended… from 4 August 2003”.
On 15 October 2003, the Appellant Employer wrote to the Respondent Worker advising her that “medical advice available indicates that you are permanently unfit to perform your pre-injury duties …” and that her employment was terminated effective 31 October 2003.
On 10 December 2003, the Respondent Worker lodged an Application to Resolve a Dispute in the Workers Compensation Commission claiming weekly benefits compensation from 4 August 2003.
On 12 January 2004, the Appellant Employer lodged a Reply claiming that suitable duties were offered to the Respondent Worker, that she was not totally incapacitated for employment, and that the Respondent Worker had unreasonably refused to co-operate with the Return to Work Plan and was thereby in breach of sections 47 and 48 of the Workplace Injury Management & Workers Compensation Act 1998 (‘the 1998 Act’).
The matter was listed for arbitration hearing on 2 April 2004. On 19 April 2004, a Certificate of Determination accompanied by a Statement of Reasons in accordance with Rule 73 of the Workers Compensation Commission Rules 2003 issued.
The determination of the Arbitrator was as follows:
“1.That the Respondent pay to the Applicant weekly compensation at the rate of:
(a)$567.50 per week from 4 August 2003 to 4 January 2004 under s.38 of the Workers Compensation Act 1987.
(b)$587.30 per week from 5 January 2004 to 10 January 2004 under s.38 of the Workers Compensation Act 1987.
(c)$587.30 per week from 19 January 2004 under s.38 of the Workers Compensation Act 1987 to the present.
Such payments to continue in accordance with the provisions of the Act.
2. That the Respondent pay the Applicant’s costs as agreed or assessed”.
On 14 May 2004, the Appellant Employer lodged an Appeal Against Decision of Arbitrator. Most of the appeal points are by way of comment on the Arbitrator’s decision, but in summary, the Appellant Employer submits that the Arbitrator erred in law as follows:
·By awarding the Respondent Worker weekly benefits pursuant to section 38 of the Workers Compensation Act 1987 (‘the 1987 Act’) beyond the maximum 52-week period permitted.
·Finding that the Return to Work Plan was not made in accordance with section 45(2) of the 1998 Act.
·Failing to address all issues in dispute between the parties, in particular, failing to address the issues raised by the Appellant Employer in its reply pertaining to sections 47 and 48 of the 1998 Act.
·Failing to properly consider all of the evidence and give adequate reasons.
The Respondent Worker lodged Submissions in Reply on 22 June 2004. Essentially, the Respondent Worker submits that no errors have been made by the Arbitrator and that the decision ought be confirmed.
ON THE PAPERS REVIEW
The Appellant Employer, in separate submissions on this issue filed on 26 May 2004, submits that the alleged error in calculation of the Respondent Worker’s weekly benefits entitlement is capable of being dealt with ‘on the papers’, but that other issues in dispute require oral evidence from three named witnesses.
Although not phrased as such, this appears to be an application to admit fresh evidence.
The Appellant Employer notes in these submissions that statements from these witnesses were already before the Arbitrator, but that “… there would be no prejudice to the Applicant if the … witnesses were to provide oral evidence.”
It is clear that this evidence the Appellant Employer now seeks to adduce on appeal was available prior to the Arbitration, and the Appellant Employer had ample opportunity to present this oral evidence before the Arbitrator. New evidence is not permitted unless it is demonstrated that the new evidence could not reasonably be obtained and tendered before the Arbitrator (section 352(6) of the 1998 Act and Practice Direction No.6).
No adequate reasons have been given as to why such evidence should now be accepted on appeal. Leave to adduce fresh evidence is refused.
Section 354 of the 1998 Act governs procedure before the Commission. Specifically, section 354(6) provides that, “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”.
My task on appeal is not to further debate issues raised or evidence provided before the Arbitrator, but is concerned with claimed error, of law, fact and/or discretion, and not with the hearing of evidence and determination of the matter at first instance.
Having carefully read the Arbitrator’s Reasons, the transcript, all the evidence before her, and the lengthy submissions by both parties on appeal, I am satisfied that I have sufficient information within the meaning of section 354 of the 1998 Act and in accordance with Practice Direction 1 to proceed ‘on the papers’, and that this is the appropriate course in the circumstances.
LEAVE TO APPEAL
The amount at issue on the appeal satisfies the criteria set out in section 352(2) of the 1998 Act.
The Application to Appeal was initially filed on 14 May 2004 within the time limit prescribed by section 352(4) of the 1998 Act.
The Commission advised the Appellant Employer of certain defects in the Application which were then rectified, and the appeal accepted on 25 May 2004.
The Respondent Worker submits that leave to appeal should not be granted because the appeal application was filed out of time. However, I note that the appeal was not rejected by the Registry, rather that certain omissions were identified and rectified within the time prescribed by the Commission.
In the circumstances, I find that the appeal was filed in time, and leave to appeal is granted.
SUBMISSIONS, EVIDENCE AND FINDINGS
The Section 38 error
The Appellant Employer submits that the Arbitrator erred in making an award under section 38 of the 1987 Act for a period longer than the 52 weeks prescribed.
The Appellant Employer says that the wording of the Arbitrator’s determination “… is at best misleading and at worst incorrect, in that the words ‘with such payments to continue in accordance with the provisions of the Act’ indicates that the Applicant is awarded ongoing weekly compensation pursuant to section 38 of the Act”, and that this is “… patently incorrect.”
Section 33 of the 1987 Act provides that “if a total or partial incapacity results from an injury, the compensation payable by the employer under this Act to the injured worker shall include a weekly payment during the incapacity”.
Sections 36 and 37 deal with payments during periods of total incapacity. Section 38 provides that “If:
(a) a worker is partially incapacitated for work as a result of an injury; and
(b) the worker is not suitably employed during any period of that partial incapacity for work,
the worker is to be compensated in accordance with this section during each such period as if the worker’s incapacity for work were total.”
Section 38(2) provides that “the maximum total period for which the worker may be so compensated is 52 weeks”.
Whilst that section does not specify what follows at the expiration of 52 weeks, it is implicit in the provisions of section 33 that, if still partially incapacitated, a worker is then entitled to the benefits of section 40 of the 1987 Act.
Under the provisions of section 38(2) of the 1987 Act, the Respondent Worker was, if successful, entitled to benefits for a period of 52 weeks from 4 August 2003. The Arbitrator’s award in paragraph 1(c) of the determination read “$587.30 per week from 19 January 2004 under section 38 of the Workers Compensation Act 1987 to the present.” The “present” was the 19th April 2004, well within the 52-week period commencing 4 August 2003. As a further sub-paragraph to paragraph 1(c), the Arbitrator noted “such payments to continue in accordance with the provisions of the Act”.
At the time of the determination, the Arbitrator, having accepted the Respondent Worker was entitled to benefits pursuant to section 38, was not in a position to make any other award prospectively since the section 38 award dated from 4 August 2003.
The term “with such payments to continue in accordance with the provisions of the Act” implies that the provisions of the Act dictate the nature of any ongoing award. Indeed, the Appellant Employer appears to accept this proposition in paragraph 6 of the submissions, that “… if the Applicant is accepted as being partially incapacitated for employment as an enrolled nurse as a result of her work related injury with the Respondent, at the expiration of the awarded period of section 38 payments, she would be entitled to weekly benefits pursuant to section 40 of the Act, capped at the maximum statutory rate for a single worker (as adjusted), currently $323.00 gross per week”.
In my opinion, the Arbitrator’s determination on this issue is neither “patently incorrect” nor “misleading” nor “ambiguous” as the Appellant Employer submits. The words “with such payments to continue in accordance with the provisions of the Act” are commonly adopted and comply with the obligations of an employer as set out in section 33 of the 1987 Act.
I shall deal with the evidence as to the Respondent Worker’s entitlement to section 38 benefits below, but as to the Arbitrator’s calculation of the award, I can see no error of law in her determination.
One other issue relevant to the award is this: the Respondent Worker claimed a dependant child in her Application. The Appellant Employer submits that “the Certificate of Determination and Statement of Reasons for decision fail to address this aspect of the Applicant’s Claim” and that “… no evidence was proffered by the Applicant…”
The Arbitrator at paragraph 11 of the Statement of Reasons noted “the Applicant is a 40 year old woman with one dependents [sic] aged 12 years”.
According to the transcript of the hearing on 2 April 2004, no issue appears to have been taken by the Appellant Employer on the Respondent Workers claim for a dependant child. At page 24, paragraph 40 of the transcript, the Respondent Worker was asked “… by the way, your husband was a casual on-call employee, was he?” to which the Respondent Worker replied “yes”.
There was no evidence, as the Appellant submits, that “… evidence was proffered that the Applicant’s husband is engaged in fulltime employment with the Respondent”.
In the absence of any issue raised by the Appellant Employer as to the Respondent Worker’s claim for a dependant child, it was open to the Arbitrator to accept the Respondent Worker’s assertion. I can therefore see no error in this aspect of the Arbitrator’s determination.
The Return to Work Plan Error
In paragraph 42 of the Statement of Reasons, the Arbitrator said “the work plan of 28 July 2003 was not prepared in accordance with section 45(2) of the 1998 Act and it appears that the Applicant’s duties were changed to suit the Respondent’s internal restructure rather than with any aim to rehabilitate the Worker.”
In paragraph 23, she noted:
“No assessment of the workplace was carried out until 28/07/03. This was not done in the presence of the Applicant or her nominated treating doctor nor was her doctor consulted. The Applicant says she was not invited to the assessment for the establishment of an Injury Management Plan and the duties proposed were outside the return to work plan signed by her on 10 March 2003. This earlier plan limited her to filing, photocopying, faxing, answering the telephone, assisting with staff roster data entry within restrictions, and stated ‘all other duties to be avoided’”.
The Appellant Employer submits that:
“… by following the detailed work restrictions outlined by Dr Sen, the Applicant’s treating doctor, and engaging in ongoing meetings with the Applicant in respect of her return to work options, the Return to Work Plan, dated 28 July 2003 was in fact formulated in consultation with and consideration of the opinions of both the Applicant’s treating doctor and the Applicant. As such, the Appellant submits that the Award is patently incorrect … and should be overturned or set aside”.
This submission however, is not in accordance with the evidence before the Arbitrator as described by her in paragraph 23 of the Statement of Reasons. The Respondent Worker, in her statements dated 14 November 2003 and 11 February 2004, both before the Arbitrator, claimed that her treating doctor had not been consulted in respect of the Return to Work Plan dated 28 July 2003 nor had she been “… provided with a job description nor was I asked if I could attend to the duties offered.”
Indeed, in a document described as a “transcript of events… after the offer of suitable duties…” prepared by the Appellant Employer and before the Arbitrator, it was noted that on 28 July 2003, a Workplace Assessment was conducted by two representatives from Industrial Rehabilitation Services Pty Limited and the Appellant Employer’s rehabilitation co-ordinator. No reference is made to the Respondent Worker nor her doctors in that document.
The Respondent Worker consulted Dr Jeni Saunders on 20 October 2003. In a report of the same date, Dr Saunders was asked to comment on the Return to Work Plan dated 28 July 2003. She wrote “I note no repetitive use of her left hand and neck. However, this should be amended to no use of her hand or neck, as she is incapable of using her left hand” and further that “… she should not be asked to use her left hand at all, as it is highly injurious to her to do this.”
The Respondent Worker’s assertion that she was not consulted in relation to the Return to Work Plan was the subject of submissions by her at the hearing before the Arbitrator, and not challenged by the Appellant Employer.
In these circumstances, in my opinion, it was open to the Arbitrator on the evidence before her to find that the Return to Work Plan was not prepared in accordance with section 45(2) of the 1998 Act.
The Appellant Employer’s submission (paragraph 27) that:
“… the negative inference obviously drawn by the Arbitrator to the internal restructure that caused a change in position, hours and duties for the Applicant is erroneous. In this regard, we maintain that area health services, as with all mercantile organisations, are subject to commercial realities, which from time to time require restructuring in order to improve efficiencies or to respond to budgetary restraints”.
This is no more than comment and does not address the evidence before the Arbitrator. The Arbitrator’s task was to determine whether or not the Appellant Employer had provided suitable duties to the Respondent Worker. There was evidence before her that the duties were not suitable.
As the Arbitrator pointed out at paragraph 40 of the Statement of Reasons:
“There is no medical evidence that the duties provided were suitable. Even Dr Bodel for the Respondent in his report of 25 September 2003 indicates that the Applicant could return to her former duties but makes no comment that she could perform the duties in the new position. He takes a detailed report from the Applicant that the new duties really aggravated her situation and she had to go off work again. He does not disagree with this. He also reports without comment that she ‘asserts her work certificate was not complied with’ He then… recommends that she could return to work as a roster clerk (her former duties) if that work were available. He does not say the new duties were suitable”.
Then in paragraph 41, the Arbitrator states:
“Dr J Saunders, for the Applicant, in her report of 20 October 2003, indicates that the Return to Work Plan of 28 July 2003 is not suitable for the Applicant and confirms the restrictions placed on the Applicant by Dr Sen. This new Return to Work Plan which was completed after commencement of the new duties, on 16 July 2003, was not prepared in consultation with the Applicant or her medical advisor and states she is to return to work in a different position, as an administration clerk. It does not list suitable duties to be performed as did the earlier report, only repeats the restrictions in Dr Sen’s certificate which the Applicant says were outside the tasks she was given in the new duties”.
The Arbitrator has clearly dealt extensively with this issue, and I can see no error in her determination on the return to work plan issue.
The Failure to Address All Issues in Dispute
The Appellant Employer submits that the Arbitrator failed to identify and thus address all the issues in dispute between the parties.
In paragraph 7 of the Statement of Reasons, the Arbitrator lists the issues in dispute in relation to the claim for weekly benefits, and identifies section 49 of the 1998 Act and sections 38, 40 and 52A of the 1987 Act.
The Appellant Employer submits that this paragraph:
“… fails to identify all the relevant provisions of the Act that have application to the issues in dispute between the parties. Specifically, the Arbitrator did not address sections 47 and 48 of the Act. The Appellant submits that the Arbitrator at best overlooked these issues in dispute (and their related sections) or at worst ignored them and further submits that for those reasons the award is patently incorrect due to its omissions and should be overturned or set aside”.
A further complaint is made that the Arbitrator did not address section 98 of the 1998 Act, but I do not see the relevance of this to the issues in dispute as identified by the Appellant Employer.
The Arbitrator’s requirement to provide a Statement of Reasons is governed by Rule 73 of the Workers Compensation Commission Rules. It provides as follows:
“73. Certificates of Determination.
1.A Statement of the Commission’s reasons referred to in section 294(2) of the 1998 Act is to include:
(a)the findings on material questions of fact, referring to the evidence or other material on which those findings were based, and
(b)the Commission’s understanding of the applicable law, and
(c)the reasoning process that lead the Commission to the conclusions it made.
2.Without limiting subrule (1), the reasons set out … are to be stated sufficiently … to make the parties aware of the Commission’s view of the case made by each of them”.
As Deputy President Fleming said in Australian Traineeship System (Cargill Meat Processes Pty Ltd) v Ramage [2004] NSW WCC PD 31:
“It is not necessary, nor appropriate, for a Commission Arbitrator to give lengthy reasons for decision. Provided that Rule 73 is complied with, the reasons will be adequate, notwithstanding they do not set out the statutory provisions at length, nor specify and examine all relevant judicial authority on the matters decided… The standard by which adequacy of reasons must be determined is relative to the nature of the decision itself and the decision-maker… The Commission is not a court and proceedings are conducted with as little formality and technicality as the proper consideration of the matter permits…”
In the present case, it was clear that the principal issue in dispute was the nature of the Respondent Worker’s entitlements to weekly benefits. As counsel for the Appellant Employer said at the Arbitration hearing “There is no question that the applicant has a serious disability and one which on any view of it is a significant factor in rendering her partially unfit for work.” (See page 3 transcript).
In essence, section 47 imposes an obligation on an injured worker to participate and co-operate in “the establishment of any injury management plan…” Section 48 requires that “an injured worker must make all reasonable efforts to return to work with his or her pre-injury employer…”
Under the heading “The injury and nature of the claim” in the Statement of Reasons, in paragraphs 11 to 28, the Arbitrator sets out chronologically the sequence of events from the time the Respondent Worker was told of a “restructuring” of her duties on 21 May 2003.
Frequent references are made to meetings between the Respondent Worker and representatives of the Appellant Employer and to the establishment of a Return to Work Plan.
This plan, referred to in previous paragraphs, was the subject of extensive discussion by the Arbitrator in paragraphs 40 to 45 of the Statement of Reasons. There is no evidence that the Respondent Worker failed to either participate or co-operate in the plan, rather, the focus of the Respondent Worker’s evidence on this issue was the unsuitability of the duties provided, supported by her medical evidence.
It is noted that as a consequence of the Appellant Employer’s request to the Respondent Worker in its letter of 5 June 2003 to return to work, that the Respondent Worker commenced duties on 16 July 2003, but later ceased, claiming that those duties were unsuitable.
I can see no evidence before the Arbitrator that demonstrated that the Respondent Worker failed to comply with the provisions of sections 47 and 48 of the 1998 Act. The Arbitrator’s reasons made extensive references to ‘return to work’ plans, implicitly dealing with the matters raised in sections 47 and 48 of the 1998 Act.
There was clearly evidence before the Arbitrator of the Appellant Employer’s attempts to provide the Respondent Worker with suitable duties. That was not in issue. The Arbitrator’s task was to determine whether those attempts were appropriate, and the duties suitable within the meaning of the 1987 and 1998 Acts such as to entitle the Respondent Worker to the benefits of section 38 of the 1987 Act.
On the evidence before her, she found in favour of the Respondent Worker. There was in my opinion ample evidence in support of her findings on this issue.
The Appellant Employer submits that the Arbitrator’s “failure to list” such matters as its factual investigation report and the various concessions made by the Respondent Worker under cross examination as to the various tasks she was capable of performing, meant that at best the Arbitrator overlooked this evidence or at worst, ignored it.
Again, this submission is not supported by the evidence. In paragraph 20 of the Statement of Reasons, the Arbitrator summaries the Respondent Worker’s evidence under cross-examination as to the duties she was capable of performing. As I said earlier, it is not necessary for the Arbitrator to “list” nor examine each and every item of evidence provided that the reasons given adequately convey the basis upon which the Arbitrator came to her decision.
In the present case, in my opinion, the Arbitrator’s reasons clearly demonstrate the evidence before her on which she based her decision, and I can see no error of law in this respect.
Failure to Consider all the Evidence and Provide Adequate Reasons
This submission by the Appellant Employer has to some extent been covered in the preceding paragraphs.
The Arbitrator in my opinion, correctly identified the essential issue, namely, whether the Respondent Worker had unreasonably refused offers of allegedly suitable employment from the Appellant Employer. The nature of the duties offered were considered at length by the Arbitrator, together with the Respondent Worker’s statements and the medical evidence. The Arbitrator also had the benefit of the Respondent Worker’s oral evidence, and detailed submissions from both parties.
As Deputy President Fleming said in Mayne Health Group v Sandford [2002] NSW WCC PD 6, “The content of statements of reasons for decision … should not on review be ‘construed minutely and finely with an eye keenly attuned to the perception of error’…To succeed on the ground of ‘inadequate reasons’ it will be necessary for the Appellant Employer to demonstrate not only that the reasons are inadequate but that the inadequacy sufficiently demonstrates that the Arbitrator has failed to exercise his or her statutory duty to fairly and lawfully determine the application.”
I agree with the Respondent Worker’s submission that “… the Arbitrator’s reasons in this case do not demonstrate a deficiency that would infer that she has not exercised her proper jurisdiction”.
CONCLUSION
In my opinion, the Arbitrator has made valid findings of fact based on both written and oral evidence before her, and her reasons adequately reflect those findings. The Arbitrator has not attributed weight unfairly or unlawfully nor has she misinterpreted the evidence, and I can see no basis upon which the Appellant Employer submits that “…it has been denied natural justice and … that the award be overturned or set aside”.
The Appellant Employer has failed to demonstrate any errors of law, fact and/or discretion to justify revocation of the Arbitrator’s decision.
DECISION
The decision of the Arbitrator is confirmed.
INTEREST
The Respondent Worker submits “That the appeal was frivolous and vexatious and without merit and therefore that the Respondent pay interest to the Applicant … from 17 May 2004 … pursuant to s.109 WIM Act”. The appeal has been unsuccessful, but I do not regard it as entirely frivolous, vexatious or without merit. In the circumstances, and in the exercise of my discretion, I decline to award interest.
OTHER
For the reasons stated above, I confirm that in accordance with the Arbitrator’s decision and the 1987 Act, compensation payments to the Respondent Worker pursuant to section 38 are payable to 13 August 2004 and thereafter payments are to continue pursuant to section 40, at the maximum statutory rate for a worker with one dependant child as adjusted, to date and continuing in accordance with the provisions of the Act.
COSTS
I order the Appellant to pay the costs of the appeal.
Deborah Moore
Acting Deputy President
6 December 2005
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DEBORAH MOORE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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