Star City Pty Ltd v Georgeson
[2007] NSWWCCPD 243
•12 December 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE
COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Star City Pty Ltd v Georgeson [2007] NSWWCCPD 243
APPELLANT: Star City Pty Ltd
RESPONDENT: La-Or Georgeson
INSURER:Self Insured
FILE NUMBER: WCC5004-07
DATE OF ARBITRATOR’S DECISION: 5 September 2007
DATE OF APPEAL DECISION: 12 December 2007
SUBJECT MATTER OF DECISION: Injury; whether employment is a substantial contributing factor to injury; error of law; misdirection as to burden of proof; weight of evidence; error as to determination of period for payment of compensation not supported by the evidence.
PRESIDENTIAL MEMBER: Deputy President Gary Byron
HEARING:Determined ‘on the papers’
REPRESENTATION: Appellant: McLean Lawyers
Respondent: Steve Masselos & Co
ORDERS MADE ON APPEAL: The decision of the Arbitrator, dated 5 September 2007, is revoked and the following decision is made in its place:
Award for the Respondent Employer.
No order is made as to the costs of this appeal.
BACKGROUND
On 2 October 2007 Star City Pty Ltd, the Appellant Employer, sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 5 September 2007.
The Respondent Worker in the Appeal is Ms La-Or Georgeson.
Star City Pty Ltd is self-insured.
Ms Georgeson was employed by Star City as a cleaner, and commenced that employment on 12 November 1999. She claims that she developed bi-lateral carpel tunnel syndrome and subsequently she was required to undergo surgery. She further claims that the condition arose from the nature and conditions of her employment.
Ms Georgeson made a number of written statements in support of her claim for payment of workers compensation. Her statements are dated 21 February 2007, 4 April 2007, 10 April 2007 and 21 June 2007.
Ms Georgeson states that her job as a cleaner at Star City involved working in all parts of the Casino. She said that she was “like a sort of floating cleaner who has to go to various places around the hotel.” (Paragraph 5, Statement of 21 February 2007). One of her main tasks was the cleaning of toilets. She said that she was required to return to the toilets every 30 to 40 minutes and continue to clean them. She maintained, “We would also remove bin liners from bins in the toilets and place in large bins outside. Sometimes they were heavy, sometimes they weren’t.” (Paragraph 8, Statement of 21 February 2007). In the course of carrying out her duties, Ms Georgeson describes carrying bins, placing them on trolleys, emptying the bins into a compactor, cleaning stainless steel surfaces twice each week, picking up debris from the floor of the theatre with a dustpan and broom, removing chewing gum from the carpet, and undertaking a lot of polishing “sometimes all day, sometimes for 2 weeks at a stretch, sometimes on the odd day” for as much as 3 hours at a time. This was amended to “up to 5 hours per week”, in a subsequent statement.
Ms Georgeson said that she suffered no symptoms or pain in her left and right arms and hands up until about June/July 2006, other than the odd ache, and fatigue.
In her statement dated 21 February 2007, Ms Georgeson said that in about June or July 2006, while polishing, she began to notice pain in her left wrist. The pain extended from her index finger, right up her arm. She said that she reported the matter to the nurse and “filled out a claim form with the assistance of the Union Delegate because of my difficulties with the English language (I am Thai).” She attended the Campsie Medical & Dental Centre and saw Dr Waran in the first instance, but consulted other doctors at the same practice at other times.
She states that she was referred for an x-ray by Dr Jimenez of the same Medical Centre, who also referred her to Dr Mona Marabani, a Rheumatologist. She underwent a bone scan. She was also referred to Dr Hyunmin Park, Neurologist, “who performed some nerve conduction studies. These studies confirmed that I was suffering from severe carpal tunnel syndrome.”
Ms Georgeson said that she consulted Dr Kuo on 22 January 2007, and on 5 February 2007 she underwent “a carpal tunnel release operation.”
Ms Georgeson returned to work on 21 March 2007 and she was referred “to the rehab people there.” She claims that she was given a job basically doing nothing more than picking up plastic cups for 7.6 hours per day, 5 days per week. On 10 April 2007, she said that she did not consider that she was fit to return to her former duties as a cleaner without restriction.
Ms Georgeson submitted a claim for workers compensation and medical expenses, which was received by Star City on 29 January 2007. Star City, by letter of 5 February 2007, disputed its liability to make weekly payments of compensation and to pay medical expenses in relation to Ms Georgeson’s claim for injury to her wrists and hands in July 2006.
Star City asserted to Ms Georgeson that she had not suffered an injury, as defined by the legislation, in July 2006 as she had alleged, or at all. It further maintained that her employment “was not a substantial contributing factor to her condition”, and that the conditions found on examination were of a constitutional nature, and not related to her work. Star City told Ms Georgeson that she was fit for suitable duties and not totally unfit.
Ms Georgeson filed an ‘Application to Resolve a Dispute’ in the Workers Compensation Commission on 5 July 2007. The matter was referred to an Arbitrator who in due course, determined the matter on 5 September 2007, following the conduct of an arbitral hearing.
The appeal against the Arbitrator’s decision was filed in the Commission on 2 October 2007, and a copy of the appeal documents were served on Ms Georgeson’s solicitors by DX on 9 October 2007.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 5 September 2007 records the Arbitrator’s orders as follows:
“The Commission determines:
(1)The Respondent to pay the Applicant weekly benefits at the rate of $729.00 per week from 17 January 2007 until 21 March 2007.
(2)The Respondent to pay the Applicant’s reasonable medical expenses pursuant to section 60 of the Act upon production of accounts and/or receipts.
(3) The Respondent to pay the Applicant’s costs as agreed or assessed.”
ISSUES IN DISPUTE
Star City has disputed from the outset that Ms Georgeson sustained an injury arising out of or in the course of her employment and/or that her employment was a substantial contributing factor to her injury.
In this appeal, Star City submits that the Arbitrator:
·erred in finding that the report of Dr Endrey-Walder is sufficient to carry the onus for Ms Georgeson who satisfies the requirements of section 9A of the Workers Compensation Act 1987 (‘the 1987 Act’);
·misdirected himself as to the proper burden of proof;
·failed to give appropriate weight to the opinions of Ms Georgeson’s treating doctors;
·failed to give appropriate weight to the evidence of Lorraine Shortland and misinterpreted her evidence, and
·made a determination for a period that is not supported by the evidence.
Ms Georgeson did not file any Reply or Notice of Opposition to the appeal made by Star City. On 4 December 2007 her solicitors were advised in writing by the Registrar, in the following terms:
“We advise that the appeal has now been referred to the President.
The President will allocate the matter to a Presidential member for review. The appeals will be considered in order of receipt. Urgent matters should be brought to the attention of the Registrar.
The Presidential member may determine the leave application and appeal solely on the basis of the written application and any written notice of opposition.
You will be advised of any further action required in this matter. If the matter is determined on the papers, a copy of the decision will be issued to the parties.”
This is in the form of a standard letter, routinely sent to all parties to appeals. No response to this letter to Ms Georgeson’s solicitors has been received in the Commission.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by Star City 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.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
Section 352(1) of the 1998 Act provides:
“(1)A party to a dispute in connection with a claim for compensation may, with leave of the Commission constituted by a Presidential member, appeal to the Commission as so constituted against a decision in respect of the dispute by the Commission constituted by an Arbitrator.”
The amount of compensation at issue on appeal in this matter is at least $5,000 and at least 20% of the amount awarded in the decision appealed against. The requirements of section 352(2)(a) and (b) are met.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
No fresh evidence or evidence in addition or in substitution for the evidence received in relation to the decision appealed against, has been tendered. Section 352(6) has no application.
Leave to appeal is granted.
EVIDENCE AND SUBMISSIONS
The evidence that was before the Arbitrator is now before me, and I take it into account as necessary and appropriate, in the determination of this appeal. I also take into account the submissions on appeal that have been made by Star City. Ms Georgeson has made no submissions on appeal.
Star City makes a number of submissions on appeal, which may be summarised as follows:
1.Dr Endrey-Walder and Section 9A of the 1987 Act. The Arbitrator found that Ms Georgeson’s case rested on the opinion of Dr Endrey-Walder. The opinion of Dr Endrey-Walder in respect of causation is that the amount of “brass polishing” she did over a number of years was a “significant contributing factor” in the development of her carpal tunnel condition. In order to succeed therefore Ms Georgeson must establish that she undertook a lot of brass polishing over that time. “His opinion and the reliance on it by the Arbitrator renders irrelevant other employment activities.” The Arbitrator did not find that her employment involved a lot of brass polishing, although he did find that the employment did not satisfy the description of having “often involved heavy and repetitive lifting.” Star City submits that the Arbitrator failed to appreciate that on the case presented, “it was only whether the Respondent could be said to have undertaken a lot of brass polishing that was possibly relevant to the issue of causation.” The only finding that the Arbitrator made as to the nature of the Respondent’s work was at [18] when he said, “It appears to me that there was a good deal of repetitive work.” It is submitted that there is no finding that the worker engaged in the particular type, amount and frequency of work that Dr Endrey-Walder considers was causative of her injury.
2.The burden of proof. The Arbitrator said at [15], “Clearly if the Applicant’s evidence was sufficient to carry the onus on a prima facie basis as regards Section 4 and Section 9A, then the Applicant would be successful.” It is submitted that this evidences a failure to observe the correct standard or burden of proof. Whether Star City adduces any evidence or not, Ms Georgeson was still required to establish her case on the balance of probabilities. This is an error of law and also “explains why the Arbitrator has not give appropriate weight to the evidence of the treating doctor and Lorraine Shortland.”
3.Failure to give weight to the opinions of the treating doctors. It is submitted that the Arbitrator found that the reports of the treating doctors, Dr Kuo and Dr Waran, do not assist Ms Georgeson to establish that her employment was a substantial contributing factor to her injury (see [21] – [25] of the Arbitrator’s Statement of Reasons for Decision). The Arbitrator then ignored the reports as effectively having no probative value and gave them no weight at all. In particular, he ignored Dr Waran’s opinion that the work done “is a different type of work that he considered could have been causative compared with the nature of the work determined by Dr Endrey-Walder to be causative of the Respondent’s injury.” Failure to give proper weight to the evidence of the treating doctors is an important omission, particularly in relation to the burden of proof and in meeting the test under section 9A of the 1987 Act.
4.Failure to give appropriate weight to the evidence of Lorraine Shortland, and misinterpretation of her evidence. It is submitted that the Arbitrator did not reject the evidence of Lorraine Shortland and “it must therefore be considered that he accepted her evidence.” Her evidence is at odds with the evidence of Ms Georgeson, particularly as to whether she did a lot of brass polishing. It is submitted that Ms Shortland’s evidence is that Ms Georgeson was employed as a “fill-in” cleaner and that her duties were varied; that polishing activities take 5 to 10 minutes at any one time, and that no members of staff polish for a two week stretch as alleged by Ms Georgeson. The Arbitrator made only one comment in relation to Ms Shortland’s evidence, indicating that “there was a good deal of repetitive work over a period well in excess of seven years.” It is submitted that this demonstrates that the Arbitrator misinterpreted her evidence in relation to the work that involved polishing. Star City submits that the arbitrator did not attempt to reconcile the evidence as to the nature of Ms Georgeson’s duties. It also submits that acceptance of Ms Shortland’s evidence leads to the conclusion that Ms Georgeson’s evidence, as to the extent of her polishing activities, is not correct and is insufficient to satisfy the Arbitrator “that this work meets the description of the work that was causative of the Respondent’s injury as described by Dr Endrey-Walder.”
5.Period not supported by the evidence. The Arbitrator determined that Ms Georgeson was entitled to compensation from 17 January 2007 to 21 March 2007. It is submitted that this is incorrect and that the period should have commenced on 22 January 2007. This submission is based on the claim form completed by Ms Georgeson and the initial medical certificate issued by Dr Waran, dated 23 January 2007.
DISCUSSION AND FINDINGS
Dr Endrey-Walder and Section 9A of the 1987 Act
Ms Georgeson consulted two treating doctors at the Campsie Medical and Dental Centre. They were Dr Waran and Dr Jimenez. I note that Ms Georgeson has indicated at paragraph 31 of her statement dated 21 February 2007, “I see different GPs at the same practice.” A brief outline of the history and background of this matter is set out at [1]– [15] of this Statement of Reasons, and confirms her contact with both of the doctors named, as well as other doctors at the same location. She was in turn, referred to a number of specialist treating doctors, and also to specialist doctors qualified by both parties.
The Arbitrator specifically referred to the reports of Dr Malathi Waran, Mrs Georgeson’s treating doctor, Dr Leonard Kuo, Adult and Paediatric Orthopaedic Surgeon, and Dr P Endrey-Walder, General and Trauma Surgeon qualified by Mrs Georgeson’s solicitors.
It is correct, as Star City submits, that the Arbitrator found that Dr Endrey-Walder’s report “is sufficient to carry the onus for the Applicant who satisfied Section 9A of the Act accordingly.” Moreover, the Arbitrator states at [28] of his Statement of Reasons:
“I ought add that the Reports of Dr. Kuo and Waren [sic], although neither been [sic] sufficient for the Applicant to rely on [in terms of section 9A of the 1987 Act], are not inconsistent with Dr. Endrey-Walker. Although Dr. Waren did alter his phraseology from time to time, I believe it is clear that on the occasion on which he refers to it being possible for ‘heavy or repetitive work’ to have contributed to the Applicant’s symptoms, he meant to use the word ‘or’.”
In addition to the above, the Arbitrator makes reference to “the Applicant’s medical evidence” generally, at [15]. There is a reference at [21] to Dr Mona Marabani of the Campsie Medical and Dental Centre, “who appears to have referred the Applicant to him” [Dr Kuo], and also a brief discussion of the report of Dr Allan Meares, Plastic, Reconstructive and Hand Surgeon, qualified by Star City.
.
The Arbitrator makes two references to Dr Meares’ report. The first is at [14], where he states:
“The Applicant’s first submission was that the Respondent made no reference to the Report from its own Doctor, Dr. Meares, and that it clearly did not satisfy the criteria in Makita’s Case, by providing a logical progression from the history taken through to an examination and subsequent dealing with signs and symptoms to the Doctor’s conclusion and ought be discounted.
This proposition was not contested by the Respondent in reply.”
The second reference to Dr Meares made by the Arbitrator is at [19] of his Reasons, where he states:
“I accept the Applicant’s submissions, which appear to have been tacitly accepted by the Respondent, as regards the Report of Dr. Meares. This, as stated, leaves the Applicant’s medical reports only to be considered.”
In his report of 1 February 2007, Dr Meares agreed with the carpel tunnel syndrome diagnosis, but opined that this condition had a constitutional origin, rather than a work-related origin. He gave no reasons for this finding, nor did his report give any indication that he was acquainted with the nature and details of the work in which Ms Georgeson had been engaged for Star City. The Arbitrator’s finding that the Applicant’s submission made to him as to the lack of value of Dr Meares’ report and the apparent acquiescence of Star City to the assertions made, is borne out by reference to the transcript of the proceedings before him.
None of the other medical reports that were tendered in evidence are discussed in the Arbitrator’s Statement of Reasons for Decision, and there is no particular reference to them by the Arbitrator or the legal representatives of the parties, in the transcript of the arbitral proceedings.
It is clear that, following his discussion of the medical reports referred to by him, the Arbitrator relies substantially on the opinion of Dr Endrey-Walder, in finding that his report is sufficient for Ms Georgeson to discharge the onus upon her to satisfy the requirements of Section 9A of the 1987 Act, in establishing that her employment with Star City was a substantial contributing factor to her injury. To that extent, Star City’s submission on this point is correct, although the Arbitrator did say that while the reports of Dr Waran and Dr Kuo were insufficient for Ms Georgeson to rely upon, they were “not inconsistent” with the opinion of Dr Endrey-Walder [28]. Whether the Arbitrator fell into error by adopting this course must be determined on a consideration of Dr Endrey-Walder’s evidence, as well as the balance of the medical and other relevant evidence, referred to below.
The burden of proof
On a reading of the Arbitrator’s statement at [15] of his Statement of Reasons, I am not persuaded that it “evidences a failure to observe the correct standard or burden of proof.” Immediately prior to making that statement he dealt with a specific submission made by Ms Georgeson’s legal representative about the value of Dr Meares’ report, discussed above. His general observation at [15] in part, states the obvious, that is, that once Dr Meares’ evidence is discounted, the only medical evidence remaining in the matter was the medical evidence provided by and on behalf of Ms Georgeson. The second sentence, to which Star City refers, seems to be making reference only to the medical evidence, not to the whole of the evidence. In any event, I do not infer from his observation that the Arbitrator was saying that Star City carried any burden of establishing a prima facie case. While I would agree that the statements made in the paragraph are expressed loosely and perhaps with some degree of ambiguity, the error of law asserted by Star City is not demonstrated. I find accordingly.
Failure to give weight to the opinions of the treating doctors
The treating doctors, to whom this ground of appeal refers, are Dr Waran, treating General Practitioner and Dr Kuo, treating Adult and Paediatric Orthopaedic Surgeon.
Star City submits, “The Arbitrator found that the reports of the treating doctors, Dr Kuo and Dr Waran do not assist the Respondent to establish that her employment was a substantial contributing factor to her injury.” (Paragraphs 21 to 25). I agree with that submission. Indeed, the Arbitrator makes this point plain at paragraph 28 of his Reasons, as already stated at [39] of these Reasons on appeal, but qualifies the point by stating that their reports are “not inconsistent” with the report of Dr Endrey-Walder. I take that qualification as meaning that while their reports do not establish the case for Ms Georgeson, they do not contradict Dr Endrey-Walder’s report, which, according to the Arbitrator, is sufficient to satisfy the requirements of section 9A of the 1987 Act.
According to Dr Endrey-Walder, at page 1 of his report of 6 March 2007, Ms Georgeson told him:
“She would have general cleaning duties, vacuuming, garbage disposal, dusting, but most especially a lot of polishing of brass handles. She tells me that on some days this would only take 20 minutes, other times over an hour non-stop. She also made reference to ongoing cleaning of a large number of toilets and bathrooms.
Over the last three or four months of her work at the casino she worked at the PGR level where she had a lot of garbage pushing heavy trolleys to the compactor.”
At page 4 of his report, Dr Endrey-Walder states:
“Ms Georgeson developed bilateral carpal tunnel syndrome in the seventh year of her work as a Cleaner at Star City Casino.
Quite apart from the “routine” cleaning activities, over the years she had a lot of brass polishing to perform, and such activity would have to be considered as a significant contributing factor to the development of carpal tunnel syndrome.”
In her statement of 21 February 2007, Ms Georgeson said at paragraphs 19-20:
“I did a lot of polishing generally, sometimes all day, sometimes for 2 weeks at a stretch, sometimes on the odd day. Typically, I would be polishing for as much as 3 hours at a time.
I would polish with both my left and right hands and usually start with my right because I am right-handed and would then continue with my left when I would get too tired.”
Ms Georgeson also stated at paragraph 21 that she would also carry the bins, that were sometimes very heavy and that she was required to remove, with both her left and right hands. For the sake of completeness, I note that at paragraph 16 she states, “Sometimes twice a week I would have to clean stainless steel surfaces. This was often as much as 3 hours at a time. This was on the Gaming floor.” In her later statement, dated 21 June 2007, when commenting on a statement dated 30 May 2007, prepared by her supervisor, Lorraine Shortland, Ms Georgeson said that this polishing activity was often as much as 5 hours at a time.
While Dr Endrey-Walder refers to “a lot of brass polishing” in his report, the extent of the activity that he gleaned from Mrs Georgeson, is somewhat less than described by her in her statement of 21 February 2007. The phrase “a lot” is a relative term that both Dr Endrey-Walder and Ms Georgeson used, but each appears to have a different understanding of what that means in practical and absolute terms, for the purposes of this matter.
Dr Endrey-Walder briefly describes her other cleaning and garbage disposal duties in his report, but when expressing his opinion at page 4, he simply refers to them as “routine cleaning duties” and attributes no part of her injury or condition, to those duties. His attribution is confined to “a lot of brass polishing”.
The Arbitrator found that the evidence of Dr Waran and Dr Kuo was not sufficient to establish Ms Georgeson’s case in terms of section 9A of the 1987 Act.
Dr Waran’s opinion, set out in his letter of 20 April 2007, included the statements:
“La-Or had consulted doctors in this medical centre on eight occasions in relation to her hand/arm symptoms. Two of the consultations were with me and the others with my colleagues. This report is based on entries made by all doctors.
La-Or first presented on 9th June 2006 with a history of painful hands and elbows. She reported the symptoms were present for a week. She did not relate it to any accident or injury at work.
…In my opinion carpal tunnel syndrome can occur in people regardless of the work they do. However, heavy work and repetitive work can aggravate or precipitate the symptoms. If La-Or’s employment with Star City involved heavy or repetitive work it is possible her work could partly attribute to her symptoms.
…
La-Or does appear to have suffered from a disease of gradual onset.
…
Her work, if heavy and repetitive, could have aggravated her symptoms but not necessarily have caused it.
…
On the information available, I am unable to proportion the impairment due to underlying degenerative condition.”
In his letter of 4 May 2007, responding to Ms Georgeson’s solicitors, he made the following clarifying statement:
“Further to the clarification you request about La-Or’s carpal tunnel syndrome, if as you inform, her work ‘often involved heavy and repetitive lifting’, it is very probable her work aggravated her symptoms.”
Brass polishing may fall under the broad description of “repetitive work”, the term used in Dr Waran’s letter of 20 April 2007, but not under the narrower description of “repetitive lifting”, as expressed in his letter of 4 May 2007.
According to Dr Kuo, in his report of 22 January 2007, Ms Georgeson told him, “she attributes the development of symptoms to the nature of her job, which includes scrubbing, cleaning and washing.” Dr Kuo does not express his own view as to causation. He simply uses the phrase “substantial contributing factor” in restating a belief harboured by Ms Georgeson that was conveyed to him. He states, “As she feels that work has been a substantial contributing factor, she intends to make a claim through Workers Compensation.”
A perusal of the remaining medical evidence confirms Ms Georgeson’s injury and condition. However, it does not further assist in relation to whether or not it was work related, and in particular, whether her employment with Star City was a substantial contributing factor to her injury.
In my view, the Arbitrator was correct in his finding that the medical reports and opinions of Dr Waran and Dr Kuo failed to substantiate her case in terms of section 9A.
At paragraph 20 of his Reasons, the Arbitrator states, “Whichever way one reads those [Dr Waran’s and Dr Kuo’s] Reports, it is clear that the Applicant suffered an injury in relation to employment and is able to satisfy Section 4 of the Act.”
However, Dr Kuo expresses no view, except to repeat what Ms Georgeson told him. Dr Waran attributes to her, “an underlying degenerative condition”. Further, he states that when Ms Georgeson first reported her injury and condition to him and/or one of his colleagues, “she did not relate it to any accident or injury at work.” He said that if her work was heavy and repetitive it could have aggravated her symptoms but not have caused them. Later he clarified this statement when he said if she undertook heavy and repetitive lifting that it would probably have aggravated her symptoms. However, the Arbitrator found at [25] that the evidence before him did not satisfy the conclusion that such activity had a cumulative effect. Dr Waran opines that, “repetitive work can aggravate or precipitate the symptoms.” His view about repetitive work, as opposed to lifting, remains in the realm of mere possibility, insofar as Ms Georgeson is concerned. It is clear that he does not express the opinion that Ms Georgeson’s employment was a substantial contributing factor to her injury, in terms of repetitive work, that is to say, brass polishing (being the only activity that Dr Endrey-Walder suggests as a significant contributing factor to injury, insofar as Ms Georgeson is concerned). I agree with Star City that the Arbitrator should have found it significant, or at least notable, that the treating specialist, Dr Kuo, ventured no opinion of his own as to causation even though he was obviously aware that it was a critical issue.
The Arbitrator states that the reports of Dr Waran and Dr Kuo are not inconsistent with the opinion of Dr Endrey-Walder. That is so broadly speaking, but only because neither of them ventured a professional opinion as to whether Ms Georgeson’s employment was a substantial contributing factor to her injury, insofar as repetitive work is concerned. Dr Kuo did not, and Dr Waran refrained from doing so when asked the question. Moreover, as just stated, Dr Endrey-Walder himself attributes her injury only to “a lot of brass polishing”, which he says, “… would have to be considered as a significant contributing factor to the development of carpel tunnel syndrome.”
I agree with Star City to the extent that the Arbitrator’s analysis of the evidence in relation to the reports of Dr Kuo and Dr Waran was inadequate and that insufficient weight was attached to them in some important respects. However, I do not agree that the Arbitrator “simply ignored those reports as effectively having no probative value and he gave them no weight at all.”
The reports are core evidentiary documents, and their relevance and their significance must be weighed up against the opinion of Dr Endrey-Walder. I find that the Arbitrator erred, as he has fallen somewhat short of his lawful obligation to do so.
Star City submits that the Arbitrator made no finding that Ms Georgeson’s employment involved a lot of brass polishing. However, it concedes that the Arbitrator did find at [18], as to the nature of her employment, that “there was a good deal of repetitive work over a period in excess of seven years.” In my view, and as previously stated, brass polishing may well fall into the category of repetitive work for the purposes of this matter, depending upon the frequency and possibly the circumstances and duration of it. It is important to note however, that no other specific form of repetitive work has been accepted by the Arbitrator as being a substantial contributing factor to injury in this matter, other than brass polishing. This is the basis of his decision. While the Arbitrator articulated no specific finding that brass polishing was involved, I am satisfied on reading his Reasons, that he intended that activity when referring to “a good deal of repetitive work”. (I agree with the Arbitrator that nothing hangs on whether she was polishing brass or stainless steel or both, the critical issue being the amount and frequency of polishing she did, and the contribution that this may have made, if at all, to her injury).
Failure to give appropriate weight to the evidence of Lorraine Shortland and misinterpretation of that evidence
It is not clear from the evidence, what “a lot of brass polishing” amounts to in this matter. Dr Endrey-Walder’s general understanding of it is based on the information that Ms Georgeson gave him, and this is somewhat less in duration and different in frequency, than she claims in her own statements.
Both Ms Georgeson and her supervisor at Star City, Ms Lorraine Shortland, provided statements as to the duties carried out by Ms Georgeson in the course of her employment.
The Arbitrator made little reference to Ms Shortland’s evidence, his one pertinent observation, at [18], being:
“Overall, even if one accepts Lorraine Shortland’s evidence, it appears to me that there was a good deal of repetitive work over a period in excess of seven years.”
Star City submits that it must be considered that the Arbitrator accepted Ms Shortland’s evidence. It would appear that this is correct, although the “acceptance” as stated by the Arbitrator, is cautious and qualified. Star City submits that the Arbitrator misinterpreted Ms Shortland’s evidence in relation to the aspect of the work that involved polishing having regard to the fact that it is at odds with the evidence of Ms Georgeson. It is claimed, “The Arbitrator did not make any attempt to reconcile the evidence as to the nature of the Respondent’s duties.”
Essentially the Arbitrator is saying that notwithstanding that Ms Shortland’s evidence may be correct, the position remains that there is evidence of a good deal of repetitive work [polishing] over a period in excess of seven years.
Ms Shortland gave a comprehensive and vastly different account of Ms Georgeson’s duties than she [Ms Georgeson] herself gave. She says in her statement of 30 May 2007, that she cannot recall any member of staff being required to polish for “a 2-week stretch at any time”. She maintains that in the areas worked by Ms Georgeson during the relevant period, she was required to polish for only 5 to 10 minutes at any one time. She said that Ms Georgeson had undertaken polishing on the main gaming floor for a previous period, but that polishing cannot be undertaken in that area for long periods of time because of the presence of patrons, and the need to work around them. She describes some of Ms Georgeson’s duties as “wiping” rather than “polishing”. The difference is not elaborated, but on adopting the usual meaning of these words, polishing would appear to require more energy and effort than wiping, relatively speaking, but to what extent is not clear.
Ms Georgeson disagrees with much of the detail of her duties, as described by Ms Shortland. In her statement of 21 June 2007, she made comments about polishing, which are quite opposed to the evidence of Ms Shortland. She said, amongst other things:
“8.I always took breaks when polishing. I stretched my hands and arms and had other breaks like going to the toilet and having a drink of water. I also told Lorraine that I had a problem with my hand. At that time I thought it was arthritis. She agreed to give me other duties in the PGD (Private Gaming Room).
9.In the Lyric Theatre I cleaned stools and table stems (but not on show days). These were stainless steel and I used hot water and chemicals. I dried and polished them. I cleaned the glass table tops.
10.In paragraph 19 of my Statement dated 21 February 2007 I said that typically I would be polishing for as much as three (3) hours at a time. In fact I did a lot of polishing up to five (5) hours per day, including breaks. In relation to the allegation about polishing the main gaming floor from June 2006, I state that before June/July 2006, my duties involved cleaning with hot water and chemicals; as well as drying off and polishing the skirting board. I also cleaned around the gaming floor, which was stainless steel for up to five (5) hours including breaks.”
Clearly, the evidence put forward by each of Ms Georgeson and Ms Shortland in relation to polishing, cannot stand together. One or the other is true, and one or the other is not – substantially at least. The Arbitrator holds that even if Ms Shortland’s evidence is correct, there still remains a good deal of repetitive work over a period in excess of seven years. He does not elaborate on this statement. However, Ms Shortland’s evidence is that polishing is undertaken in bursts of 5 to 10 minutes in the areas in which Ms Georgeson was working; polishing in the main gaming room cannot be done for long periods of time because of the presence of patrons, and staff are trained in the procedure of stretching and moving around.
The comparison between the evidence given by each person is stark. One version presents a picture of organised, measured and periodic polishing duties carried out in the context of the daily routine of the casino, whereas the other describes a somewhat more onerous and demanding regime of work. Indeed, the amended version given by Ms Georgeson in her second statement, paints a picture even more onerous and demanding than in her first.
If the Arbitrator accepted Ms Shortland’s evidence, he could not reasonably accept the evidence of Ms Georgeson. The evidence of these two persons is the only direct evidence of what allegedly occurred, that was before him. The Arbitrator made no attempt to conduct an analysis, comparative or otherwise, of the whole of that evidence, and gave no reasons or basis for his conclusion stated at [18] of his Statement of Reasons.
It appears that Ms Georgeson has now given at least three different versions of her duties and the demands placed upon her. The first is found in her original statement of 21 February 2007, the second is the version that she gave to Dr Endrey-Walder, which he recounted in his report of 6 March 2007, and the third is the version contained in her statement of 21 June 2007.
In the absence of an analysis of the evidence of Ms Shortland by the Arbitrator, it is not apparent that the Arbitrator had registered an appreciation that her evidence flatly contradicts the evidence given by Ms Georgeson, and vice versa. Moreover, if one accepts the evidence of Ms Shortland as the Arbitrator apparently has done, it is not reasonable to conclude that nevertheless, “there was a good deal of repetitive work [polishing] over a period in excess of seven years.” Ms Shortland’s evidence does not support that proposition, to the extent required to satisfy section 9A of the 1987 Act. Moreover, the Arbitrator makes no comment that suggests that he gave any consideration at all to the fact that Ms Georgeson put forward three, somewhat conflicting versions of her duties, particularly with regard to the critical issue of polishing.
In the circumstances, I find that the Arbitrator has failed to properly consider and weigh up the evidence of Ms Shortland and the opposing evidence of Ms Georgeson, in relation to the critical issue of repetitive work of polishing, in order to arrive at his finding as to the requirements of section 9A of the 1987 Act, in this matter.
This amounts to an error of law and I find accordingly.
In order for the report of Dr Endrey-Walder to be “sufficient to carry the onus” for Ms Georgeson to satisfy the requirements of section 9A of the 1987 Act, it must be established in this matter, that repetitive work in the nature of “a lot of brass polishing” was carried out by Ms Georgeson and that her employment was a substantial contributing factor to her injury. Having regard to what amounts to her three conflicting versions (only one of which she gave to Dr Endrey-Walder), in addition to the contrary evidence of Ms Shortland that was accepted by the Arbitrator, such is not the case. The force of Dr. Endrey-Walden’s opinion is considerably weakened, having regard to a proper consideration of the whole of the evidence on the point, and therefore it carries little weight.
In the circumstances, I also find that the decision arrived at by the Arbitrator is not consistent with the evidence.
In my view, Ms Georgeson did not discharge the onus upon her to establish her case before the Arbitrator, and the Arbitrator erred in finding that she had done so.
Arbitrators are required to take into account and weigh up the whole of the relevant evidence that is properly before them. A Statement of Reasons for Decision may be brief, but on a reading of those Reasons, it cannot be clear that the Arbitrator has discharged his or her lawful duty, when some of the relevant evidence is not adequately dealt with, or not dealt with at all. For an Arbitrator to accept one aspect of evidence rather than another is not an error of law. However, an Arbitrator must act according to law and must consider all of the relevant evidence (Prestige Property Pty Ltd v Rafiq [2006] NSWWCCPD 355). There is no requirement to give lengthy reasons and indeed, this would be unreasonable and inconsistent with the statutory objectives of the Commission (Liverpool City Council v Trovato [2004] NSWWCCPD 15). However, a statement of reasons must set out with enough clarity, the relevant findings on material facts, the Arbitrator’s understanding of the applicable law, and the application of the law to those findings (Snow Confectionary Pty Ltd v Askin [2004] NSWWCCPD 56). Importantly, as in the instant case, it is required that the relevant evidence must not only be noted, but findings should be made and be supported by adequate reasons. Moreover, an Arbitrator must give an adequate explanation of the reasons why some evidence is preferred over other evidence (Mayne Group Limited v Mikhail [2006] NSWWCCPD 249 at [41]. See also Mifsud v Campbell (1991) 21 NSWLR 725 at 728; Bright v Joodie Holdings No 2 Pty Ltd [2005] NSWCA 134, and Hume v Walton [2005] NSWCA 148).
In the circumstances, the appeal in this matter must succeed.
Period not supported by the evidence
Star City points out that the Arbitrator made a determination that Ms Georgeson was entitled to payment of compensation from 17 January 2007 to 21 March 2007. It submits that the correct date of commencement is 22 January 2007, and refers to the relevant details in the claim form submitted by Ms Georgeson and the initial medical certificate of Dr Waran, dated 23 January 2007. This is correct, and for the sake of completeness, I find accordingly.
DECISION
The Appeal is successful. The decision of the Arbitrator dated 5 September 2007 is revoked, and the following decision is made in its place:
Award for the Respondent Employer
COSTS
No order is made as to the costs of this appeal.
Gary Byron
Deputy President
12 December 2007
I MARIE JOHNS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DEPUTY PRESIDENT GARY BYRON, OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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