St Andrews Village Ballina Limited v Mazzer
[2010] NSWWCCPD 99
•15 September 2010
| WORKERS COMPENSATION COMMISSION | ||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||||
| CITATION: | St Andrews Village Ballina Limited v Mazzer [2010] NSWWCCPD 99 | |||||
| APPELLANT: | St Andrews Village Ballina Limited | |||||
| RESPONDENT: | Terri Lea Mazzer | |||||
| INSURER: | QBE Workers Compensation (NSW) Ltd | |||||
| FILE NUMBER: | A1-249/10 | |||||
| ARBITRATOR: | Mr J Hertzberg | |||||
| DATE OF ARBITRATOR’S DECISION: | 19 April 2010 | |||||
| DATE OF APPEAL DECISION: | 15 September 2010 | |||||
| SUBJECT MATTER OF DECISION: | Failure to notify issues in dispute; ss 74 and 289A Workplace Injury Management and Workers Compensation Act 1998; circumstances in which previously unnotified matters may be heard or otherwise dealt with by the Commission; s 40(2A) of the Workers Compensation Act 1987; whether worker injured right shoulder while performing exercise program authorised by insurer for accepted injury to left shoulder/neck; partial incapacity; part-time worker at time of injury; whether worker intended to move to full-time employment but for injury; same or some comparable employment; application of principles in Johnston v Commissioner of Railways [1973] HCA 46; 128 CLR 632 and Australian Wheat Board v Pantaleo (1984) 3 NSWLR 530 | |||||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | |||||
| HEARING: | Oral | |||||
| REPRESENTATION: | Appellant: | Mr A Mulcahy, solicitor, instructed by Mulcahy Lawyers | ||||
| Respondent: | Mr F Curran, instructed by Bourke Love Lawyers | |||||
| ORDERS MADE ON APPEAL: | Paragraphs 1, 3, and 4 of the Arbitrator’s determination of 19 April 2010 are revoked and the following orders made in their place: “1. The applicant worker’s claim for whole person impairment as a result of injury to her right upper extremity (right shoulder) is remitted to the Registrar for referral to an Approved Medical Specialist for assessment. The date of injury is 7 December 2006. The referral is to include all documents in the evidence file. 3. The respondent employer is to pay the applicant worker weekly compensation under s 40 of the Workers Compensation Act 1987 as follows: 28 March 2007 to 6 April 2008 $40.27 6 April 2009 to date and continuing $301.15” | |||||
| Paragraphs 2 and 5 of the Arbitrator’s determination are confirmed. | ||||||
| The appellant employer is to pay the respondent worker’s costs of the appeal, assessed at $2,200.00 plus GST. | ||||||
BACKGROUND
The appellant employer, St Andrews Village Ballina Limited (St Andrews), runs an aged care hostel in Ballina in northern New South Wales. The respondent worker, Ms Mazzer, started work at St Andrews as a part-time domestic assistant in October 2006. She worked approximately 47 hours per fortnight.
On 7 December 2006, Ms Mazzer injured her left non-dominant shoulder and neck whilst lifting wet washing into an industrial dryer. She saw her general practitioner, Dr McMillan, the following day and he immediately placed her off work. She returned to work on light duties and reduced hours from 15 December 2006.
Whilst still on restricted duties, Ms Mazzer resigned from her employment with St Andrews because of alleged harassment from the employer’s then hospitality manager, Nerida Byrnes.
Apart from working eight three-hour shifts at a bakery over eight weeks in 2008, Ms Mazzer has not returned to paid employment.
In 2008, Ms Mazzer claimed lump sum compensation. Dr Oates, Approved Medical Specialist (AMS), issued a Medical Assessment Certificate on 6 March 2009 in which he assessed Ms Mazzer to have a 12 per cent whole person impairment as a result of the injury to her left upper extremity (left shoulder) and cervical spine.
On 16 April 2009, the parties settled the claim for lump sum compensation in the sum of $15,500 in respect of a 12 per cent whole person impairment together with $13,500 compensation for pain and suffering.
On 8 December 2009, Ms Mazzer’s solicitor claimed lump sum compensation in respect of an alleged 21 per cent whole person impairment, additional compensation for pain and suffering, hospital and medical expenses for proposed breast reduction surgery, and weekly compensation from 27 March 2007 to date and continuing.
Ms Mazzer based her claim for additional lump sum compensation on an injury to her right shoulder allegedly received on 8 May 2009 while engaged in a gymnasium exercise program for her left shoulder injury approved by the insurer, QBE Workers Compensation (NSW) Ltd (QBE), and supervised by an exercise physiologist employed by a rehabilitation provider retained by QBE.
In respect of her claim for weekly compensation, she alleged that, but for her injury, she would have obtained full-time employment with St Andrews as a domestic by 1 May 2007 or, in the alternative, would have obtained full-time employment as an assistant in nursing with either St Andrews or another employer.
QBE conceded that Ms Mazzer had injured her left shoulder and neck on 7 December 2006, but disputed liability in a s 74 notice dated 22 December 2009 on the grounds that:
(a) she had not injured her right shoulder as alleged or at all;
(b) she was not incapacitated, and
(c) hospital or medical treatment were not “reasonably necessary” as a result of the injury.
The worker filed an Application to Resolve a Dispute (the Application) in the Commission on 15 January 2010. She claimed weekly compensation from 26 March 2007 until 30 April 2007 in the sum of $358.14 per week and from 7 May 2007 to date and continuing in the sum of $579.12 per week (as adjusted). She based her claim from 7 May 2007 on the assertion that, but for her injury, she would have commenced full-time employment by that date. She also claimed lump sum compensation in the sum of $14,500 in respect of a nine per cent whole person impairment as a result of her right shoulder injury and $10,000 for additional pain and suffering.
In a Reply filed on 5 February 2010, the respondent confirmed that the matters in dispute were those listed in QBE’s s 74 notice dated 22 December 2009. Neither the Reply nor the s 74 notice made any reference to the worker’s resignation.
The Commission listed the matter for conciliation and arbitration on 12 April 2010. The worker discontinued her claim for hospital and medical expenses. The Arbitrator gave the appellant employer’s solicitor, Mr Mulcahy, leave to cross-examine Ms Mazzer on matters arising from clinical notes produced by Dr McMillan (T3.7). The parties then made lengthy oral submissions. Though Mr Mulcahy referred to Ms Mazzer’s resignation, he did not refer to or rely on s 40(2A) of the Workers Compensation Act 1987 (the 1987 Act) and made no application for leave to rely on that provision.
In a reserved decision delivered on 19 April 2010, the Arbitrator found that Ms Mazzer:
(a)had not injured her right shoulder on 8 May 2009;
(b)because of her resignation, but without referring to s 40(2A), had no entitlement to weekly compensation from 26 March 2007 to 6 May 2007;
(c)had an ability to earn $317.87 per week at all times from 26 March 2007;
(d)would have started full-time employment on 7 May 2007, and
(e)had an entitlement to weekly compensation from 7 May 2007 to date and continuing.
Consistent with the Arbitrator’s decision, the Commission issued a Certificate of Determination on 19 April 2010 in the following terms:
“1. Award for the Respondent with respect to the Applicant’s claim for injury to the right shoulder on 8 May 2009.
2. That the claim for Section 60 expenses is discontinued.
3. That the Respondent is to pay the Applicant weekly benefits compensation pursuant to Section 40 of the Act for the following periods:
a. 7 May 2007 to 31 March 2008 at the weekly rate of $261.25
b. 7 April 2008 to 7 December 2008 at the weekly rate of $258.97
c. 8 December 2008 to 5 April 2009 at the weekly rate of $282.15
d. 6 April 2009 to 11 January 2010 and continuing at the weekly rate of $301.15
4. Award for the Respondent with respect to the claim for weekly benefits for the period 26 March 2007 to 6 May 2007.
5. That the Respondent pay the Applicant’s costs as agreed or assessed. I certify that the matter is complex and allow an uplift of professional [fees] for both parties of 25 percent.”
In an appeal filed on 16 May 2010, St Andrews sought leave to challenge the Arbitrator’s award of weekly compensation from 7 May 2007. In a Notice of Opposition filed on 25 June 2010, Ms Mazzer has challenged the Arbitrator’s findings with respect to the right shoulder injury and the findings in respect of the claim for weekly compensation from 26 March 2007 until 6 May 2007.
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 Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
The monetary thresholds in s 352(2) of the 1998 Act are 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.
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a) failing to apply s 40(2A) of the 1987 Act after finding that the worker had resigned her employment with St Andrews for reasons other than her injuries and that, at the time of her resignation, she was performing suitable duties (s 40(2A));
(b) finding that the employer had not filed a wages schedule (wages schedule);
(c) finding that Ms Mazzer was only fit to perform 18 to 20 hours of suitable duties per week when her pre-injury duties were an average of 23.5 hours per week (partial incapacity);
(d) finding that, but for the injury, Ms Mazzer would have commenced full-time employment (full-time employment);
(e) awarding Ms Mazzer weekly compensation based on a finding of incapacity to perform full-time employment solely related to her neck and left shoulder injury received on 7 December 2006 (partial incapacity), and
(f) finding that Ms Mazzer had not injured her right shoulder on 8 May 2009 (right shoulder injury).
PRELIMINARY MATTER
At the oral hearing of the appeal on 7 September 2010, I raised with counsel for Ms Mazzer, Mr F Curran, whether his client was in breach of cl 43 of the Workers Compensation Regulation 2003 (the Regulation) in that she had tendered medical reports from two specialists from whom she had not received treatment, namely Dr Ashwell, orthopaedic surgeon, and Dr Davis, consultant in occupational medicine.
Mr Curran submitted that he was entitled to rely on both reports because:
(a) the employer took no objection either at the arbitration or on appeal;
(b) clause 43 of the Regulation only restricts a party to one forensic medical report “on a claim” and Ms Mazzer has made two claims. First, her claim for her left shoulder and neck, which was resolved on 16 April 2009 and, second, a claim based on the injury to her right shoulder, and
(c) Dr Davis is a doctor with different qualifications to Dr Ashwell.
Mr Mulcahy, who appeared for St Andrews at the arbitration and on appeal, made no submissions on this issue. This was no doubt because he seeks to rely on Dr Ashwell’s report in his case. However, the lack of objection by Mr Mulcahy does not relieve the Commission of its obligation to apply the terms of the Regulation.
Clause 43(1) provides that, in any proceedings on a claim, only one forensic medical report may be admitted on behalf of a party to proceedings. The term “forensic medical report” is defined in cl 43(4)(a) to mean a report from a specialist medical practitioner who has not treated the worker and has been obtained for the purpose of proving or disproving an entitlement in respect of a claim or dispute. It is not disputed that neither Dr Ashwell nor Dr Davis treated Ms Mazzer, or that their reports were obtained for the purpose of proving an entitlement. Therefore, prima facie, cl 43 applies.
Whilst it is true that Ms Mazzer obtained Dr Ashwell’s report to support her initial claim for lump sum compensation as a result of the injury to her left shoulder and neck, and that Dr Davis’s report was obtained to support the claim for lump sum compensation in respect of the right shoulder injury, the question is whether more than one forensic medical report may be admitted in the claim currently before the Commission.
In circumstances where cl 43AA (relating to supplementary reports) has no application, a party may only rely on more than one forensic medical report in the circumstances set out in cl 43(3). That sub-clause provides that, where the injury “has involved treatment by more than one specialist medical practitioner, with different qualifications, then an additional forensic medical report may be admitted from a medical practitioner with medical qualifications in that specialty”.
In the present case, Ms Mazzer received treatment from several specialists with different qualifications. They included:
(a)Dr Walker, Fellow of the Royal Australian College of Surgeons;
(b)Dr Limberg, neurologist;
(c)Dr Mark Young, sports physician;
(d)Dr Frank Wagner, Fellow of the Royal Australian College of Physicians, and
(e) Dr Terry Hammond, Fellow of the Royal Australian College of Surgeons, shoulder surgeon.
Under cl 43(2) a report in cl 43(1) must be from a specialist medical practitioner with “qualifications relevant to the treatment of the injured worker’s injury” (cl 43(2)) (emphasis added). Dr Davis is a consultant in occupational medicine. He is a member of the Australia and New Zealand Society of Occupational Medicine, American Academy of Disability Evaluating Physicians, American College of Occupational & Environmental Medicine, Australian Association of Musculoskeletal Medicine, Australasian Society of Aerospace Medicine and Ergonomics Society of Australia & New Zealand. As a specialist in occupational medicine, he has qualifications “relevant to the treatment of the injured worker’s [shoulder] injury” and his report is admissible.
A worker is also entitled to tender an “additional forensic medical report” where the “injury has involved treatment by more than one specialist medical practitioner”. Ms Mazzer’s injury has involved treatment by several specialists and she is therefore entitled to tender an additional forensic medical report from a medical practitioner “with qualifications in that speciality”. The words “in that speciality” must, in this context, mean “in any one of the specialities in which the worker received treatment”. Dr Ashwell is a Fellow of the Royal Australian College of Surgeons specialising in arthroscopic shoulder and knee surgery. His qualifications are identical to those of Dr Hammond, one of the treating specialists. It follows that Ms Mazzer is entitled to tender Dr Ashwell’s report as an “additional forensic medical report” under cl 43(3).
SUBMISSIONS, DISCUSSION AND FINDINGS
Section 40(2A)
Section 40(2A) provides that, if a worker has “unreasonably rejected suitable employment”, the reduction in the worker’s weekly earnings is the difference between the current weekly wage rate for the worker’s pre-injury employment and the current weekly wage rate for some suitable employment for the worker from time to time after the injury.
Mr Mulcahy submitted that the Arbitrator erred in failing to apply s 40(2A) of the 1987 Act. He argued that, since the Arbitrator found that Ms Mazzer resigned her employment for reasons other than her injuries at a time when suitable duties had been provided to her and she was working on those duties under a return to work plan, the Arbitrator should have applied the provisions of s 40(2A) as a matter of law.
I do not accept Mr Mulcahy’s submissions.
First, QBE never identified s 40(2A) as an issue in dispute in its s 74 notice. It issued that notice in response to the worker’s claim for lump sum compensation, as a result of her right shoulder injury, and her claim for weekly compensation, as a result of both injuries. It is not to the point to suggest, as Mr Mulcahy argued, that the worker had not made any claim for weekly compensation prior to 8 December 2009. Once Ms Mazzer made a claim for weekly compensation, it was incumbent upon the insurer to properly identify the issues in dispute. It did so in its s 74 notice dated 22 December 2009. It was well aware at that time of the circumstances in which Ms Mazzer ceased employment at St Andrews. In the absence of any reference to s 40(2A) in the s 74 notice, Ms Mazzer was entitled to assume that the matters identified in that subsection were not in issue.
Second, Mr Mulcahy made no submissions touching on s 40(2A) at the arbitration. In these circumstances, it is hardly surprising that the Arbitrator did not refer to that subsection in his decision. It is not open to argue on appeal that the Arbitrator erred in his approach when neither QBE nor its solicitor referred to s 40(2A). An Arbitrator is only required to deal with the issues properly in dispute.
Third, Mr Mulcahy’s submission that the Arbitrator was obliged, as a matter of law, to apply the terms of s 40(2A) regardless of whether it had been notified as an issue in dispute in the s 74 notice, is incorrect. If an insurer disputes liability in respect of a claim, it “must give notice of the dispute to the claimant” (emphasis added) (s 74(1) of the 1998 Act). The notice must contain a statement of the reason the insurer disputes liability and of the issues relevant to the decision. A dispute cannot be referred for determination by the Commission unless it concerns matters previously notified as disputed (s 289A(1) of the 1998 Act).
The Commission has power to hear or otherwise deal with a dispute (relating to previously unnotifed matters) if it is of the opinion that “it is in the interests of justice to do so” (s 289A(4)). Mr Mulcahy submitted that, given the evidence of Ms Mazzer’s resignation and the availability of suitable duties at the time of her resignation, the “findings made should be allowed to stand under the exercise of the Workers Compensation Commission’s discretion to hear matters not previously noted as being in dispute if it is ‘in the interests of justice to do so’”. He relied on the decision of McDonald v North Coast Area Health Service [2009] NSWWCCPD 50 (McDonald).
The above submission is fundamentally wrong. The Arbitrator made no finding in the terms of s 40(2A). Whilst he found that Ms Mazzer had resigned at a time when St Andrews had made suitable employment available to her, he made no finding that she had “unreasonably rejected suitable employment”. Further, the submission seeks to justify on appeal the Arbitrator’s conclusion on a basis that was never particularised, argued or considered.
Before the Commission is entitled to consider “previously unnotified matters”, it is necessary for the employer to seek leave under s 289A(4). Eventually, part way through the oral hearing of the appeal, Mr Mulcahy sought leave to rely on s 40(2A). Mr Curran opposed that application. For the following reasons, I refuse it:
(a) QBE has offered no proper explanation as to why it failed to identify s 40(2A) as an issue in dispute in its s 74 notice. It is no answer to say that the worker had delayed in bringing her claim for weekly compensation. The insurer had every opportunity to investigate the claim and it did so prior to issuing the s 74 notice on 22 December 2009;
(b) the worker would be irreparably prejudiced if the proposed amendment were allowed after the conclusion of the arbitration and after submissions commenced on appeal. Through no fault of hers, Ms Mazzer was not present, and was not required to be present, at the appeal hearing. She prepared and presented her case on the basis of the issues identified in the s 74 notice;
(c) reliance on s 40(2A) is not merely dependent upon proving that a worker has resigned whilst performing suitable employment. The provision requires a determination of whether the worker has “unreasonably rejected suitable employment”. The question of the reasonableness of a worker’s conduct depends on his or her knowledge at the relevant time having regard to all the circumstances (Fazlic v Milingimbi Community Inc [1982] HCA 3; 150 CLR 345). Mr Mulcahy’s reliance on McDonald is misplaced. In that case, the insurer’s s 74 notice had “clearly placed in issue the appellant’s decision to voluntarily resign from his employment to fulfil his family obligations as a central issue in the decision to refuse benefits” (McDonald at [67]). The s 74 notice in the present case made no mention of the circumstances in which Ms Mazzer ceased employment;
(d) the circumstances in which an insurer will be permitted to dispute previously unnotified matters under s 289A(4) were discussed in Mateus v Zodune Pty Ltd t/as Tempo Cleaning Services [2007] NSWWCCPD 227; 6 DDCR 488. None of the circumstances discussed in that case are applicable in the present matter. The insurer has offered no proper explanation for its failure to identify s 40(2A) as an issue in dispute in its s 74 notice and Mr Mulcahy has advanced no reason why it should be allowed to do so on appeal, and
(e) in all the circumstances it is not in the interests of justice that I grant leave to QBE to rely on s 40(2A).
If QBE were permitted to rely on s 40(2A) then, as there is no issue that the duties Ms Mazzer was eventually given just before she resigned were suitable, the question is whether she “unreasonably rejected” those duties by resigning. As s 40(2A) is a disentitling provision in beneficial legislation, the employer carries the onus of proof (Darling Island Stevedoring and Lighterage Co Ltd v Jacobsen [1954] HCA 22; 70 CLR 635).
Ms Mazzer’s evidence was that, because of constant harassment from Ms Byrnes, she felt it was impossible for her to continue working at St Andrews. Whilst Ms Byrnes denied any suggestion of harassment, she conceded that she approached the worker each day to enquire how she was going with the tasks allocated to her. She also conceded that the worker appeared to be annoyed with her for “asking about her welfare all the time”. Ms Byrnes also agreed that she telephoned the worker at her home to ensure that she was progressing well. Further, the worker had “difficulties” with some of her work colleagues who, in her opinion, resented the fact that she had been given exemptions from performing some of the heavier work.
Ms Mazzer added in her statement of 12 August 2008 that, by March 2007, she found the situation “had become intolerable” and she resigned. Regardless of who may have been responsible for the friction between Ms Mazzer and Ms Byrnes, which obviously contributed to the worker’s feeling that Ms Byrnes had harassed her, I accept Ms Mazzer’s evidence that she found the situation at work to be intolerable. Whilst it may well have been better if the worker had raised her concerns with her return to work co-ordinator, in all the circumstances, I do not accept that Ms Mazzer unreasonably rejected suitable employment when she resigned.
Wages schedule
The Arbitrator erred in stating that the employer had not filed a wages schedule. In Part 4 of the Reply, the employer stated that comparable/probable earnings were $358.14 per week from 27 March 2007 to date and that actual earnings were unknown. However, for the reasons set out below, the Arbitrator’s error on this point is of no consequence.
Partial incapacity
Mr Mulcahy submitted that the Arbitrator erred in finding that Ms Mazzer was only fit to work in suitable duties for 18–20 hours per week at the time of her resignation. He submitted that she was fit to perform her pre-injury duties for her pre-injury hours, namely 23.5 hours per week. He placed reliance on Dr Ashwell’s report of 28 August 2008, in which the doctor recorded that Ms Mazzer normally worked 18 hours per week in her pre-injury job as a domestic. He concluded that she was fit for lighter work of similar hours where she could avoid repetitive lifting or use of her arms at or above shoulder height.
Mr Mulcahy submitted that, had Dr Ashwell received a history that Ms Mazzer worked an average of 23.5 hours per week, then he would have certified her fit for suitable duties for that period. Dr Ashwell did not consider if the worker was fit to perform light duties for 23.5 hours per week and therefore provided no support for Mr Mulcahy’s submission. The submission was pure speculation. In any event, the submission was inconsistent with Dr McMillan’s certificate of 12 February 2007, in which he certified the worker fit for work for five hours per day, four days per week, with a restriction of lifting up to 5 kg.
Mr Mulcahy also placed reliance on a statement from Mr Chittick, the employer’s operations manager, who said that Ms Mazzer was due to return to her pre-injury duties on 26 March 2007 “as specified in her return to work plan”. However, there is no medical evidence to support Mr Chiddick’s assertion and I do not accept it. There may well have been a hope that Ms Mazzer would return to her usual duties by 26 March 2007. That did not happen. Mr Mulcahy’s submission was without merit.
In the alternative, Mr Mulcahy submitted that any award in Ms Mazzer’s favour would be minimal. I do not accept that submission. The evidence is overwhelmingly to the effect that Ms Mazzer suffered a soft tissue injury to her cervical spine and a left shoulder rotator cuff tendonitis as a result of her injury on 7 December 2006 and that the effects of the injury are continuing. For reasons explained further below, I also accept that she suffers a tendonitis and probable bursitis in her right shoulder because of her exercise activities on 8 May 2009.
As a result of her injuries, I accept that Ms Mazzer is unfit for work that involves heavy lifting or repetitive use of her arms at or above shoulder height and unfit to work full time. I accept her evidence that she is now unable to mow the lawn or tend her garden and that she finds housework difficult because of her symptoms. The only work she has obtained since leaving St Andrews was for one or two hours per week for approximately eight weeks at a bakery in 2008. That work, for which she was paid approximately $50 per shift, involved making sandwiches and serving customers.
I also accept Ms Mazzer’s evidence that, because of the effects of her injury, she would not be able to work at the Casino Meat Works, as a cleaner, nursing home attendant, check-out assistant at a supermarket, or as a night-fill assistant at a supermarket. All of these jobs require repetitive use of the hands and arms and are unsuitable for her.
I also accept that, by reason of her work experience and training, Ms Mazzer would be unsuitable for clerical work. Whilst Ms Mazzer has a good work record, that work has been restricted to unskilled activities such as mowing lawns, working as a sorter on a conveyor line at a fishery, picking and packing fruit, and labouring. She has no tertiary qualifications.
Mr Sprogis, physiotherapist, reported on 20 October 2009 that Ms Mazzer had sustained soft tissue injuries to her cervical spine and partial muscle tears to both shoulders. He felt her prognosis was poor and that her conditions were chronic. He concluded that she could work as an assistant in nursing, but only for two hours per day five days a week with extensive restrictions. Those restrictions included sitting for no longer than 10 minutes at a time, looking down for no longer than five minutes at a time, lifting no more than 3 kg and avoiding elevation of the right arm above shoulder height. He also recommended that she be able to use her discretion to change position as frequently as necessary. She was not fit to work in her pre-injury employment.
Mr Sprogis’s opinion is consistent with his functional assessment and with Ms Mazzer’s complaints, which I accept as genuine. I accept his evidence as to the worker’s restrictions, but I do not accept that she is necessarily restricted to working for only 10 hours per week in all occupations.
Dr Davis concluded in November 2009 that Ms Mazzer was permanently unfit for her pre-injury duties and had permanent restrictions on heavy lifting and carrying, forceful activities, repetitive reaching, repetitive or sustained work above waist level, prolonged periods of driving, extended periods of computer work, or other activities which dictate static loading in her upper spine. This conclusion is also consistent with Ms Mazzer’s complaints and presentation on examination and I accept it as a fair summary of Ms Mazzer’s restrictions as a result of her injuries.
St Andrews relies on evidence from Dr Bodel, orthopaedic surgeon, in his report of 30 October 2008, and Dr Reid, neurologist, in his report of 9 March 2010. Dr Bodel accepted the diagnosis of a soft tissue injury to the neck and shoulder girdle region, but felt that Ms Mazzer was capable of a “wide range of work tasks” as long as she could avoid strenuous and repetitive tasks with her arms overhead. He concluded that she was unfit for her pre-injury duties, but felt that, with the passage of time and exercise, she may well be capable of returning to those duties. He expressed no opinion on how many hours Ms Mazzer could work per week. His evidence provides St Andrews with no assistance.
Dr Reid concluded that there was “no identifiable workplace injury” and that Ms Mazzer had a “normal cervical spine and a normal left shoulder joint”. This opinion is inconsistent with the overwhelming majority of the treating and qualified evidence, including the AMS’s assessment, and I do not accept it. Similarly, Dr Reid’s opinion that Ms Mazzer has no functional incapacity for work is also inconsistent with the weight of the medical evidence and inconsistent with Ms Mazzer’s evidence, which I accept, of significant continuing symptoms and restrictions. His assertion that Ms Mazzer has the “ability to do shop work, office work, factory work, farm work or labouring work” is also contrary to the medical evidence referred to above and I do not accept it.
Having regard to the matters in s 43A of the 1987 Act, and having particular regard to the worker’s evidence and the evidence from Dr Davis and Mr Sprogis, I believe that the Arbitrator correctly assessed the worker’s ability to earn since March 2007 to be $317.87 per week. He arrived at that amount on the basis that the worker is fit for light work 20 hours per week as a traffic control worker or part-time shop assistant.
I have made this finding despite the fact that, contrary to the Arbitrator’s conclusion, I have found that Ms Mazzer injured her right shoulder on 8 May 2009. Thus, I have found that both injuries have contributed to Ms Mazzer’s incapacity. Though this finding was the finding urged by Mr Curran, he did not submit that such a finding would result in an increase in Ms Mazzer’s incapacity on the open labour market. Whilst such an argument may have been open, I believe that the Arbitrator’s finding of Ms Mazzer’s ability to earn was correct, even with the finding that the right shoulder injury resulted from the injury on 7 December 2006. Essentially, Ms Mazzer’s restrictions are the same for both injuries and the right shoulder injury has not made any material difference to her incapacity.
Determining Ms Mazzer’s ability to earn but for her injury requires a determination of whether she would have progressed to full-time employment.
Full-time employment
Section 40(2)(a) of the 1987 Act requires a determination of probable earnings but for injury “had the worker continued to be employed in the same or some comparable employment”. The section does not dictate that a worker can only look to wages currently being paid by the employer with whom he or she sustained his or her injury.
It is appropriate to consider the authorities before looking at the facts and submissions in the present case.
In NSW Harness Racing Club vForrest [1995] NSWCA 313; 12 NSWCCR 217, the worker was a trainee trotting-driver who, at the time of her injury, was earning about $200 per week, most of which was spent on the horses. As a result, her net income was “little or nothing” (Mahoney JA at 221A). The trial judge assessed comparable earnings by reference to the award wage of a stablehand/rider under the Strapper and Stablehands (State) Award. Adopting that method, the worker’s probable earnings were held to be $360.30 per week. In upholding the decision (subject to adjustment of the calculations) Mahoney JA held at 220:
“as a matter of principle, a court in estimating the uninjured earnings of an applicant will ordinarily have regard to what the applicant would have earned in the employment in which she was at the time of the injury rather than in some other comparable employment. But that principle, to the extent that it is accepted, does not require that in every case the court must confine its attention to the same employment as that in which the uninjured applicant was engaged. Circumstances may make it appropriate for the court to assess the uninjured earnings by reference to another comparable employment.”
The High Court considered the meaning of the phrase “the same or some comparable employment” in Johnston v Commissioner of Railways [1973] HCA 46; 128 CLR 632 (Johnston) in the context of s 11 of the Workers Compensation Act 1926, which was in substantially the same terms as s 40 of the 1987 Act. The Court considered the situation where the worker was a “cleaner, acting foreman” at the time of his injury but the trial judge accepted evidence that he would have progressed to the position of an engine-driver and awarded him compensation on the basis that the wage of an engine-driver was the “same or some comparable employment”. Stephen J held at 640:
“If, in the relevant phrase of s 11(1)(a), ‘employment’ bears the meaning ‘occupation’ the reference to the worker continuing ‘to be employed in the same or some comparable employment’ means that the worker is to be treated as if he continued in the same or some similar occupation as that in which he was engaged when injured. Neither the same employer nor the same task, classification or rank is stipulated but this will occasion no difficulty; the Court is, by the subsection, required to form its own view of what would ‘probably’ have been the worker’s weekly earnings but for the injury and must, from the evidence before it, determine how the worker would have fared in his occupation had he not been injured.” (emphasis added)
At 642, his Honour concluded:
“It follows from the view which I have formed concerning the phrase ‘employed in the same or some comparable employment’ that when his Honour, having heard Johnston’s application for an award of compensation, made the findings of fact which he did, he was then required, in ascertaining the weekly amounts which Johnston would probably have been earning but for his injury, to postulate Johnston’s continued engagement in the occupation in which he was engaged when injured. On the facts as found Johnston’s occupation was that of an officer of the Commissioner employed in the locomotive branch of the Commissioner for Railways and in those circumstances his Honour was, in my view, required to act as he did and to pay regard to the promotion within his chosen occupation which Johnston would probably have received had he not been injured.” (emphasis added)
In Australian Wheat Board v Pantaleo (1984) 3 NSWLR 530, the Court of Appeal considered the situation where a secretary became a beautician after her injury. The trial judge calculated her potential earnings as an uninjured beautician (found to be $400 per week) and compared them to “her earnings situation” (at 534), which he found to be $350 per week, and he awarded the difference. The Court of Appeal set aside the decision because, among other reasons, the trial judge had not addressed whether the work as a beautician was “comparable” to that of a secretary. On that issue, Glass JA (with whom Samuels JA agreed) noted (at 545) that the evidence disclosed “no point of comparison” between the work of a beautician and that of a secretary.
Kirby P (as his Honour then was) stated (at 540) that:
“Where the hypothesis required by s 11(1)(a) of the Act leads to the conclusion that there is a real prospect (as distinct from a fanciful speculation) that but for the injury the worker would have moved from the same employment to some other employment, the question is then raised as to whether that other employment is ‘comparable’. Only if it is, may the earnings it attracts be taken into account in computing the first limb of the formula. Judging comparability of employment requires commonsense and experience of the labour market and its variety such as judges of the Compensation Court acquire in performing their duties. It is essentially a factual question though regard may be had to a variety of indicia of comparability in this context. It may, for example, refer to the physical attributes of the former and the hypothesized job. It may refer to the career progression that could reasonably have been expected of the worker, uninjured. It may refer to the award classifications likely to be open to a person such as the injured worker. It may refer to the range of salaries that might reasonably have been within the worker’s pre-injury achievement, as a worker; whilst the decision-maker is involved in a hypothetical exercise, the requirement of comparability keeps the speculation within practical bounds. That is its objective. It should not be read narrowly as confined to physical attributes only. Nor is the speculation to be limited strictly to the orthodox career path of uninjured workers with the respondent employers, where evidence establishes the likelihood of other career prospects. It is a matter for the application of the commonsense and experience of the decision-maker in each case.”
Glass JA (at 545C) agreed with the President’s remarks “upon the general considerations which are made applicable by a practical commonsense test of comparability”.
In Department of School Education v Boyd [1996] NSWCA 152; 13 NSWCCR 289, the worker sustained two injuries to his left eye whilst working three days per week as a permanent part-time employee. The trial judge accepted his evidence that he intended to seek casual work similar to that he engaged in prior to the accident and assessed his probable earnings at $50 per week more than he in fact earned with the employer. On appeal, the Court of Appeal held that the trial judge was entitled to accept and take into account the worker’s evidence that he intended to continue to seek casual work. At 291, Beazley JA (Priestley and Handley JJA agreeing) said, “if in a given case the Court accepts, as a matter of fact, that an employee had an intention to engage in other work, that may be sufficient for the purposes of section 40”.
In Lloydv Northern Rivers Racing Association [2001] NSWCC 49; 22 NSWCCR 577, the worker was a novice casual jockey who was injured when she fell from a horse during a race. The trial judge accepted evidence that, but for her injury, she would have fulfilled her wish to become a qualified electrician. He assessed her entitlement under s 36 of the 1987 Act by reference to the Strappers and Stablehands Award and her entitlement under s 37 of that Act by reference to the Electricians (State) Award.
Mr Mulcahy submitted that the finding that Ms Mazzer would have moved to full-time work was “fanciful” and “not reasonable”. He said that “the only relevant evidence” on this issue was the evidence that existed prior to the injury on 6 December 2006. That evidence was that Ms Mazzer worked part-time for St Andrews and there was no evidence “that she indicated to anybody that she wished to obtain full-time employment as a domestic or a nurse’s aide”. He also submitted that there was no evidence, by way of receipts, statement of attainment or otherwise, that Ms Mazzer attended a TAFE course and completed the theory part of a course to become an assistant in nursing.
In the alternative, Mr Mulcahy submitted that the Arbitrator gave insufficient weight to the clinical notes from Dr McMillan that revealed the worker underwent two non work-related surgical procedures “which coincided with the time that the [worker] claims to have been unable to complete the practical nursing training solely as a result of injuries sustained on 6 December 2006”.
I do not accept Mr Mulcahy’s submissions.
The evidence is that Ms Mazzer worked consistently in demanding manual occupations from 1984 until 2000 when she stopped work to start a family. She did not return to the workforce until she commenced employment with St Andrews as a domestic in October 2006. At that time, her children were six and four and would have only just started school. Her duties required her to work in the laundry in an aged care facility. However, as an aged care facility, St Andrews would have employed assistants in nursing and full-time domestics.
Ms Mazzer said that she had been told she was “going really well at St Andrews” and that they “would definitely would want to keep [her] on following the end of the six months” (Ms Mazzer’s statement 10 August 2009, para 69). She told Ms Byrnes that if she could obtain a full-time job as a domestic then she could work full-time hours. Ms Byrnes did not deal with this evidence in her statement and I accept the worker’s evidence.
I also accept the worker’s evidence that she had attended Rainbow Childcare Centre at East Ballina to determine the cost of before and after school care for her children who are now 10 and 8. This confirms the worker’s intention to move to full-time employment.
Ms Mazzer said that, when she started work at St Andrews, she intended to obtain full-time work as an assistant in nursing once she obtained qualifications in that area. She felt she would be in a better position to obtain employment in that area if she already had a work history with St Andrews. Her reason for wanting to return to full-time employment was to meet her family’s financial commitments. The worker’s husband worked six days a week for Country Energy and wanted to reduce his hours, but could not do so until Ms Mazzer increased her earnings.
Ms Mazzer’s reasons for wanting to return to full-time employment are logical and plausible. Given her good and consistent work record, I have no hesitation in accepting her evidence that, when she returned to the workforce in October 2006, she intended to find full-time employment as an assistant in nursing. That evidence is corroborated by the fact that Ms Mazzer started in an assistant in nursing course in May 2007 and that she had made enquiries about childcare.
I am also satisfied that, as a matter of commonsense, work as a full-time domestic or full-time assistant in nursing is comparable to Ms Mazzer’s pre-injury employment as a part-time domestic. Both involve work in a care situation in an aged care facility. Though the work of an assistant in nursing required some additional training, the training was well within Ms Mazzer’s capabilities, as is demonstrated by the fact that she successfully completed the theory part of the course.
I am satisfied that Ms Mazzer’s prospects of working full-time (either as a domestic or as an assistant in nursing) were “real”, not fanciful. It was a reasonable “career progression” (Pantaleo) for Ms Mazzer to move from work as a part-time domestic in an aged care facility to work as a full-time assistant in nursing in the same or a similar facility. If I am wrong on the question of whether work as an assistant in nursing is comparable to work as a domestic, it makes no difference to the end result because, based on the worker’s wages schedule, the wage for an assistant in nursing is almost identical to a wage for a full-time domestic (as at 7 April 2008, $576.84 for an assistant in nursing and $579.12 for a domestic).
The theory part of the assistant in nursing course ran for three months. However, in the seventh week of training (July 2007), the practical part of the course commenced and, because of her injury, Ms Mazzer was unable to lift and lower patients. She discussed her restrictions with the course co-ordinators and it was determined that she should not even attempt the physical part of the training, which was to have been completed over the next eight months, ending in April 2008.
The absence of a receipt of fees is not determinative. I accept Ms Mazzer’s evidence that she completed the theory component of the course and that it was her intention to commence full-time employment once qualified. The fact that she did not obtain “statement of attainment” is consistent with her evidence that she did not complete the course and is of no consequence.
I do not accept Mr Mulcahy’s submission that Ms Mazzer did not complete her course because of the surgery she underwent in September and November 2007 for unrelated medical conditions. I accept Ms Mazzer’s evidence that she discovered by July 2007 (well before her surgery) that she was unable to complete the practical component of the course and that she did not attempt it.
It follows that I accept (as did the Arbitrator) that Ms Mazzer intended to return to full-time employment at the completion of the assistant in nursing course, which was anticipated to be in April 2008. Her injuries prevented her pursuing that employment and she is entitled to have her comparable earnings but for her injury assessed at the rate applicable for a full-time assistant in nursing, or in the alternative, as a full-time domestic.
However, the Arbitrator erred in finding that the worker would have returned to full-time employment from 7 May 2007. The evidence is that she commenced her course in May 2007. It is not known when she would have commenced her course had she not been injured. However, on the available evidence, she would not have completed the practical component of the course until April 2008. I therefore infer that, because of her course commitments, she would not have been able to commence full-time employment until April 2008.
In these circumstances, it was not appropriate to find (as the Arbitrator found) comparable earnings on the basis that Ms Mazzer would have commenced full-time employment from 7 May 2007. That rate should not commence until the anticipated date of conclusion of the whole course in April 2008. The worker’s wage schedule set out the wage schedule for an assistant in nursing from that time and I accept those unchallenged figures.
Right shoulder injury
Ms Mazzer has challenged the Arbitrator’s finding that she did not injure her right shoulder on 8 May 2009. He made that finding on the basis that, in his opinion, Ms Mazzer’s evidence was inconsistent and conflicted with the evidence from Sonja Tayler, exercise physiologist with Konekt. He also found it “inconceivable” that Ms Mazzer did not mention her right shoulder to Dr McMillan when she saw him on 14 May 2009.
This issue requires a careful consideration of the evidence relating to the right shoulder injury. QBE referred Ms Mazzer to Konekt on 29 April 2008. Konekt provides organisational health and risk management solutions. Ms Tayler took over management of the worker’s program on 18 December 2008. She met the worker once a month and implemented a new exercise plan. That plan included a program of muscle strengthening exercises at Riverside Health Studio, a gymnasium at Ballina. When she met with the worker, she would assess the worker’s progress and establish if any changes were needed in the program.
The worker was due to complete her last program on 8 May 2008. On that day, Ms Tayler met with the worker at the gymnasium and worked through the previously established program of exercises. Ms Tayler said in her statement of 3 November 2009 that she did not recall the worker informing her at any time during the session that she had “sustained an injury as a result of the exercises performed in that session”.
Ms Mazzer said that she was lifting weights in the presence of Ms Tayler when she felt a sudden and sharp pain in her right shoulder. She told Ms Tayler that the exercise was hurting her right shoulder. Ms Tayler suggested trying the same exercise, but without any weights attached. The worker performed the exercise again, but still felt pain in her right shoulder even with the weights removed. She again spoke to Ms Tayler and then moved on to a different exercise. The worker completed the exercise session, though still had pain in her right shoulder, but said nothing else to Ms Tayler about that pain. Her pain continued when she returned home and she took pain-relieving medication. She did not see her doctor because she thought it would “heal itself”. She added that she was in “denial of the pain and was just hoping for the best”. At that time she was “in denial of [her] injury and had been having suicidal tendencies”.
On 14 May 2009, Ms Mazzer saw her treating acupuncturist, Tony Graham. When he examined her right shoulder, she said:
“I don’t know what I’ve done (meaning whether I had hurt my ligaments or strained my back etc), but I hurt it at the gym the other day. I can’t even lift a cup of coffee.”
Clinical notes from Mr Graham for 14 May 2009 record “strain of (R) SST”. The parties agree that the abbreviation SST stands for “supraspinatus tendon”. This is consistent with Mr Graham’s report of 28 January 2010 in which he confirms seeing the worker on 14 May 2009 and that she told him she had injured her right shoulder whilst “carrying out prescribed gym activities as part of her rehabilitation”. She was tender in her right posterior shoulder and he formed the view that she may have strained her right supraspinatus tendon.
Ms Mazzer also saw Dr McMillan on 14 May 2009. His notes for that attendance record the following:
“History:
1/ Form stating permanently incapacitated to return to work in building and construction industry. Unfit from 8/12/2006 but also temporarily unfit in 1999 due to pregnancy.
2/ Acne chin and chest last couple of months. For duac [sic] explained.Reason for visit:
Acne, form for long service.”Ms Mazzer attended on Dr McMillan on several occasions between 14 May 2009 and 15 September 2009, but made no mention of any right shoulder injury. On 15 September 2009, Dr McMillan noted a right shoulder injury “in May while doing abduction against resistance on gym equipment”.
Ms Mazzer said that she did not formally report her right shoulder injury to QBE because:
(a) she thought it would heal itself;
(b) she did not know she needed to report the injury as she never considered that it might be “workers compensation related”, and
(c) she was confused and depressed and just wanted to get better.
In cross-examination, Mr Mulcahy put to Ms Mazzer that she did not complain of any right shoulder problems because she did not have any such problems prior to September 2009 (T11.23). She denied that proposition. Mr Graham’s notes confirm that Ms Mazzer had problems with her right shoulder on 14 September 2009. Mr Mulcahy’s question was inconsistent with Mr Graham’s evidence and should never have been put. Ms Mazzer added in her oral evidence that she had not initially mentioned it to Dr McMillan because she “didn’t think that it was a QBE thing” (T11.17).
Having regard to the above evidence I am comfortably satisfied that Ms Mazzer injured her right shoulder whilst undertaking an authorised exercise program approved by QBE as part of the treatment for her undisputed left shoulder/neck injury. Ms Tayler did not give her statement until November 2009, several months after the incident. The reporting of the incident was not, even on Ms Mazzer’s evidence, a major event, but merely a passing comment that she was experiencing pain with one of the exercises. In these circumstances, it is not surprising that Ms Tayler has no recollection of the worker complaining of having sustained “an injury”.
Ms Mazzer’s explanation as to why she did not initially report her right shoulder symptoms to QBE is plausible and I accept it. It is understandable that a layperson would not necessarily appreciate that an injury received in the circumstances that occurred on 8 May 2009 could give rise to an entitlement to workers compensation. Mr Graham’s clinical notes and report provide cogent corroboration of Ms Mazzer’s complaints and are consistent with her evidence.
It is not determinative that Dr McMillan had no record of the shoulder symptoms until September 2009. Ms Mazzer gave evidence that, in her mind, her work injury was always separate from her personal health issues. At that stage – the period between May 2009 and September 2009 – she was not aware that she was entitled to claim compensation for her right shoulder injury as part of her 2006 injury.
In these circumstances, the Arbitrator erred in finding that Ms Mazzer did not injure her right shoulder on 8 May 2009 and erred in failing to refer her claim for lump sum compensation to the Registrar for referral to an Approved Medical Specialist.
Other matters
The Arbitrator found that, in the period from 26 March to 6 May 2007, the difference between steps one and two in Mitchell v Central West Area Health Service (1997) 14 NSWCCR 526 (Mitchell) was $40.27 per week. However, he awarded no compensation in that period because Ms Mazzer resigned at a time when light duties were available to her and, had she not done so, she “would have expected to receive her pre-injury income” (Arbitrator’s decision at [76]).
The Arbitrator erred in awarding no compensation in the period 26 March to 6 May 2007. There is no persuasive evidence that Ms Mazzer would have returned to her pre-injury duties or wage had she not resigned. Ms Mazzer is permanently unfit for her pre-injury employment. Her evidence was that Ms Byrnes intended to cut her hours to three per day (Ms Mazzer’s statement of 12 August 2008, para 20). If that had happened, the worker’s wage would have decreased had she not resigned.
There was no basis for reducing the figure of $40.27. The worker’s assessed ability to earn on the open labour market ($317.87) exceeded her actual earnings while on suitable duties at the time of her resignation ($304.80). I have arrived at the second figure by multiplying the hours worked by Ms Mazzer at the time she resigned (20 per week) and by her agreed hourly rate ($15.24). Therefore, as Ms Mazzer’s ability to earn exceeded her actual earnings while on suitable duties, and as there is no evidence that her wage on those duties was likely to increase, Ms Mazzer’s resignation made no difference to her entitlement to compensation. Therefore, the sum of $40.27 per week is the proper measure of her loss in that period.
The Arbitrator also erred in awarding compensation from 26 March 2007. As Ms Mazzer resigned at the end of her shift on 27 March, her entitlement to compensation did not commence until 28 March. It follows that Ms Mazzer is entitled to an award of $40.27 per week from 28 March 2007 to 6 May 2007.
The period from 7 May 2007 to 6 April 2008 is complicated because Ms Mazzer started her assistant in nursing training in May 2007. The evidence has not addressed what, if any, influence that course would have had on Ms Mazzer’s ability to work full-time. The Arbitrator assumed that she would have started full-time work as a domestic by 7 May 2007. However, given her participation in the course, that seems unlikely. Further, on completion of the theory part of the course, Ms Mazzer had eight months in which to complete the practical training. The need to complete her practical training would no doubt have restricted her ability to commence full-time employment. She therefore could not have started full-time work, as either a domestic or an assistant in nursing, until approximately 7 April 2008. I therefore find that Ms Mazzer’s probable earnings but for her injury were $358.14 per week until 6 April 2008. Her ability to earn remained unaltered at $317.87 per week giving a difference of $40.27.
It follows that, whilst I agree with the Arbitrator’s finding that Ms Mazzer would have commenced full-time employment, she would not have done so until 7 April 2008, not 7 May 2007 as found by the Arbitrator. I therefore find that, as per the worker’s wage schedule, Ms Mazzer’s ability to earn, as a full-time assistant in nursing from 7 April 2008 would have been $576.84, subject to the adjustments noted for wage movements since that date.
Summary
It follows from the above findings that the appellant employer’s appeal is unsuccessful and that Ms Mazzer is entitled to a finding that she injured her right shoulder on 8 May 2009. The parties agreed that, in the event that the matter had to be re-determined, it was appropriate that I conduct that redetermination.
Applying the five steps in Mitchell, I find that Ms Mazzer’s probable earnings but for her injury (step one) are:
28 March 2007 to 6 April 2008 $358.14
7 April 2008 to 7 December 2008 $576.84
8 December 2008 to 5 April 2009 $600.02
6 April 2009 to date and continuing $619.02I find Ms Mazzer’s ability to earn in the above periods (step two) to be $317.87 per week.
Deducting $317.87 from the figures at [106] above (step three) gives a difference of:
28 March 2007 to 6 April 2008 $40.27
7 April 2008 to 7 December 2008 $258.97
8 December 2008 to 5 April 2009 $282.156 April 2009 to date and continuing $301.15
Step four in Mitchell calls for the exercise of the discretion. Mr Mulcahy put to Ms Mazzer that she was unable to work for three months because of unrelated health issues in 2007 (T8.22). Ms Mazzer denied that suggestion, but agreed that she had two operations in 2007 (one on 29 September 2007 and the other on 7 November 2007) and that each incapacitated her for two weeks. Given that Ms Mazzer’s entitlement in those periods is only $40.27 per week, and given that the discretion cannot be used to reduce an award to nil (Kesen v Luke Singer Pty Ltd (1989) 5 NSWCCR 298), I do not believe it is appropriate that the figure be reduced in the exercise of the discretion. Any alteration to the award would be so small as to be a de minimis situation. In other words, I am satisfied that the figure of $40.27 per week is proper in all the circumstances. There are no other grounds on which to exercise the discretion.
It follows that Ms Mazzer is entitled to an award under s 40 of the 1987 Act in the amounts set out at [108] above.
CONCLUSION
Having conducted a review on the merits, I have concluded:
(a) in circumstances where QBE never relied on s 40(2A) in its s 74 notice and Mr Mulcahy made no submissions on it at the arbitration, the Arbitrator did not err in not referring to that provision;
(b) Mr Mulcahy’s application at the hearing of the appeal for leave to rely on s 40(2A) is refused on the ground that QBE has offered no explanation for not having raised the issue in its s 74 notice or at the arbitration and to allow the issue to be raised so late in the proceedings would create an irreparable prejudice to the worker;
(c) in the alternative, if I had allowed QBE to rely on s 40(2A) I would have found that Ms Mazzer had not unreasonably refused suitable employment when she resigned;
(d) in respect of the period from 26 March 2007 to 6 April 2008, the Arbitrator erred in his approach to Ms Mazzer’s entitlement under s 40;
(e) the Arbitrator erred in finding that Ms Mazzer had not injured her right shoulder in the course of her authorised exercise program on 8 May 2009;
(f) Ms Mazzer injured her right upper extremity (right shoulder) while performing authorised and supervised exercises for her injured left shoulder and neck and the injury to the right shoulder therefore resulted from the injury to her left shoulder on 7 December 2006 and the appropriate date of injury for the right shoulder is 7 December 2006, and
(g) the Arbitrator erred in failing to refer the claim for whole person impairment to the Registrar for referral to an AMS for assessment.
To avoid confusion in any future proceedings, I should clarify an observation I made at the hearing of the appeal. I said that, as the right shoulder injury resulted from the injury on 7 December 2006, Ms Mazzer was not entitled to a separate assessment of compensation for pain and suffering for any impairment that has resulted from it. However, if an AMS assesses her to have a whole person impairment as a result of her right shoulder injury, she is entitled to additional compensation for pain and suffering as a result of that additional impairment because her previous settlement took no account of any impairment from the condition of the right shoulder. That is so, even if that assessment is below the 10 per cent threshold in s 67, because the impairment has resulted from the “same injury” (the same injurious event) as the left shoulder and neck injuries, namely the injury on 7 December 2006, and those injuries must be “assessed together” (s 322(2) of the 1998 Act).
DECISION
Paragraphs 1, 3, and 4 of the Arbitrator’s determination of 19 April 2010 are revoked and the following orders made in their place:
“1. The applicant worker’s claim for whole person impairment as a result of injury to her right upper extremity (right shoulder) is remitted to the Registrar for referral to an Approved Medical Specialist for assessment. The date of injury is 7 December 2006. The referral is to include all documents in the evidence file.
3. The respondent employer is to pay the applicant worker weekly compensation under s 40 of the Workers Compensation Act 1987 as follows:
28 March 2007 to 6 April 2008 $40.27
7 April 2008 to 7 December 2008 $258.97
8 December 2008 to 5 April 2009 $282.156 April 2009 to date and continuing $301.15”
Paragraphs 2 and 5 of the Arbitrator’s determination are confirmed.
COSTS
The appellant employer is to pay the respondent worker’s costs of the appeal, assessed at $2,200.00 plus GST.
Bill Roche
Deputy President
15 September 2010
I, PENELOPE FLEMING, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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