Sumaktas v Air Grilles Pty Limited
[2009] NSWWCCPD 78
•14 July 2009
| WORKERS COMPENSATION COMMISSION | |||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||||
| CITATION: | Sumaktas v Air Grilles Pty Limited [2009] NSWWCCPD 78 | ||||||
| APPELLANT: | Ceylan Sumaktas | ||||||
| RESPONDENT: | Air Grilles Pty Limited | ||||||
| FIRST INSURER: | CGU Workers Compensation (NSW) Ltd | ||||||
| SECOND INSURER: | Employers Mutual NSW Limited | ||||||
| FILE NUMBER: | A1- 8096/08 | ||||||
| ARBITRATOR: | Mr R O’Moore | ||||||
| DATE OF ARBITRATOR’S DECISION: | 6 March 2009 | ||||||
| DATE OF APPEAL HEARING: | 9 July 2009 | ||||||
| DATE OF APPEAL DECISION: | 14 July 2009 | ||||||
| SUBJECT MATTER OF DECISION: | Partial incapacity; section 40 Workers Compensation Act 1987 | ||||||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | ||||||
| HEARING: | Oral | ||||||
| REPRESENTATION: | Appellant: | Ms L Goodman, instructed by White Barnes | |||||
| Respondent: | Mr T Wardell, solicitor, Edwards Michael Lawyers | ||||||
| ORDERS MADE ON APPEAL: | Paragraphs two and four of the Arbitrator’s determination of 6 March 2009 are revoked and the following orders made in their place: “2. Award for the applicant worker under section 40 of the Workers Compensation Act 1987 (‘the 1987 Act’) in the following amounts: $284.36 per week from 20 December 2004 to 31 December 2004 $284.35 4. The respondent employer is to pay the applicant worker’s costs as agreed or assessed. 5. The dispute is certified to be complex and one to which Item 7 of Table 4 of Schedule 6 would apply and, pursuant to Item 5 of Table 4 of Schedule 6, the Commission certifies the matter as complex and orders an increase of the costs of both parties of 45%. 6. The respondent is given credit for payments made for the period from 10 December 2004 to 20 December 2007 and, to the extent of any overpayment in that period, the overpayment may be applied under section 58(4) of the 1987 Act in partial satisfaction or adjustment of the award after 20 December 2007.” Paragraphs one and three of the determination of 6 March 2009 are confirmed. | ||||||
| The respondent employer is to pay the appellant worker’s costs of the appeal, which I assess at $2,200 plus GST. | |||||||
BACKGROUND
The appellant worker, Ms Sumaktas, alleges that she sustained the following injuries in the course of her employment with the respondent employer. First, a crush injury to her dominant right thumb on 24 July 2000. Second, an injury as a result of prolonged heavy persistent use and movement of her arms, shoulders, neck and back in the course of her employment since 24 July 2000. Third, an injury to her neck, shoulders, arms and back as a result of operating a drill at work on 17 August 2004.
It is conceded that Ms Sumaktas injured her right thumb on 24 July 2000 and that as a result of that injury she was placed on light duties, which she continued until her employment ceased in October 2004. All other injuries were disputed, as was the question of incapacity.
In an Application to Resolve a Dispute (‘the Application’) registered in the Commission on 10 October 2008, Ms Sumaktas claimed weekly compensation from 5 October 2004 (later amended to be from 10 December 2004) to date and continuing as a result of injuries to her right thumb, left and right hands, arms, shoulders, neck and back. She also claimed lump sum compensation in respect of a 20 percent whole person impairment as a result of injuries to her arms, cervical spine and thoracic spine on 17 August 2004.
An earlier claim for lump sum compensation under the Table of Disabilities in respect of the loss of efficient use of the right thumb was settled on 18 June 2008 in the sum of $10,500.00 in respect of a 35 percent permanent loss of efficient use of the right thumb plus $7,000.00 in respect of pain and suffering.
Though the period of the claim is covered by two insurers, Employer Mutual NSW Limited (‘Employers Mutual’) and CGU Workers Compensation (NSW) Limited (‘CGU’), the Reply filed on behalf of Air Grilles on 30 October 2008 has been filed under the Lead Scheme Agent Provisions.
The claim came before a Commission arbitrator for conciliation and arbitration on 12 February 2009, having been to arbitration on an earlier occasion when the case could not be resolved. Ms Sumaktas was briefly cross-examined and the Arbitrator heard lengthy submissions from counsel for each of the parties and reserved his decision.
The Arbitrator accepted that Ms Sumaktas injured her thoracic spine on 17 August 2004, but he did not accept she had sustained any injury to her hands, arms, shoulders or neck. He found that Ms Sumaktas was partially incapacitated from 10 December 2004 until 20 December 2007, and he made an award in her favour for that period. Though he found that she had an incapacity as a result of her thumb injury, he did not accept that she had any economic incapacity beyond 20 December 2007.
In a Certificate of Determination issued by the Commission on 6 March 2009, the Arbitrator made the following determination:
“1. The Application is amended to claim weekly compensation from 10 December 2004.
2. Respondent pay the Applicant pursuant to section 40of the Act, the maximum statutory rate pursuant to section 40 of the Act from 10 December 2004 to 20 December 2007, thereafter award Respondent.
3. The permanent impairment claim is remitted to the Registrar for referral to an AMS for assessment of the Applicant’s thoracic spine for date of injury 17 August 2004.
The only medico legal reports to be forwarded to the AMS are from Dr Patrick dated 28 February 2007, Dr Mahony dated 31 May 2005, 10 March 2008, and various workcover certificates by him, Miranda Neurology dated 25 November 2004, Dr Assem dated 4 October 2004, Dr Middleton dated 31 March 2008 and 24 April 2008.
The reports of Drs Barold, Stephen and Marchart are excluded.
The additional material from the parties under late document applications dated as filed 15 December 2008 and 7 January 2009 should be referred to the AMS.
4. Costs should be awarded at the complex rate due to the multiple dates of injury in dispute, complex medical issues, 2 insurers, and difficult factual issues. The uplift for the Applicant should be 15% and for the Respondent (2 insurers with lead agent, 40%).
Due to the prior proceedings I certify that both the arbitration dates on 15 January 2009 and 12 February 2009 should be treated as separate dispute resolution dates.”
By an appeal filed on 1 April 2009, Ms Sumaktas seeks leave to appeal the Arbitrator’s determination so far as it relates to the claim for weekly compensation after 20 December 2007. It is argued that, in light of his finding that Ms Sumaktas had a continuing incapacity as a result of her thumb injury, the Arbitrator erred in failing to award weekly compensation on a continuing basis. No challenge is made to the Arbitrator’s finding that Ms Sumaktas sustained no injury other than the injuries to her right thumb and thoracic spine.
As a result of the Arbitrator’s orders, assessment of Ms Sumaktas’ whole person impairment as a result of injury to her thoracic spine on 17 August 2004 was referred to an Approved Medical Specialist (‘AMS’), Dr Khan, for assessment. In a Medical Assessment Certificate (‘MAC’) issued on 21 April 2009, Dr Khan assessed Ms Sumaktas to have a 5 percent whole person impairment as a result of that injury.
LEAVE TO APPEAL
Monetary Threshold
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
It is not disputed that the monetary thresholds in section 352(2) of the 1998 are satisfied.
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 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 find that Ms Sumaktas had a continuing economic incapacity on and after 20 December 2007 arising out of the injury to her right thumb on 24 July 2000;
(b)failing to properly assess Ms Sumaktas’ capacity for work on the open labour market after 20 December 2007, and
(c)failing to draw an inference that the opinion of Professor Cumming, who saw Ms Sumaktas at the request of Air Grilles in August 2008, would not have assisted the respondent (Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298).
At the oral hearing of the appeal, counsel for Ms Sumaktas, Ms Goodman, sought leave to challenge the Arbitrator’s award on the additional ground that her client is also incapacitated as a result of the injury to her thoracic spine on 17 August 2004. The solicitor appearing for Air Grilles, Mr Wardell, opposed the appeal being expanded in that way but pointed to no prejudice to his client. Given that Air Grilles has had every opportunity to meet the new ground of appeal, and that it suffers no prejudice, I allow Ms Sumaktas to expand the grounds on which she seeks a review of the Arbitrator’s decision to include a challenge to the Arbitrator’s finding that she suffered no incapacity as a result of her thoracic spine injury beyond 20 December 2007.
On behalf of Air Grilles, Mr Wardell sought to challenge the method of calculation adopted by the Arbitrator in respect of the closed period award from 10 December 2004 until 20 December 2007. Subject to compliance with the rules of procedural fairness, a Presidential member’s powers on review are sufficiently wide to encompass the reopening and redetermination of the closed period awarded by the Arbitrator (Sapina v Coles Myer Limited [2009] NSWCA 71). Though Ms Goodman submitted that I should not deal with the period up to 20 December 2007, she pointed to no prejudice her client would suffer. In the absence of any prejudice to Ms Sumaktas and in circumstances where she has had every opportunity to make submissions on this issue, I allow Air Grilles to challenge the quantum of the Arbitrator’s award of weekly compensation.
FRESH EVIDENCE
‘Fresh evidence’ on appeal is governed by section 352(6) of the 1998 Act, which provides as follows:
“(6) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.”
As a result of the Arbitrator’s determination, Ms Sumaktas’ claim for lump sum compensation in respect of the injury to her thoracic spine on 17 August 2004 was referred to an AMS for assessment. Having conducted that assessment on 26 March 2009, Dr Khan issued a MAC on 21 April 2009 in which he assessed Ms Sumaktas to have a 5 percent whole person impairment as a result of that injury. Ms Sumaktas seeks to tender the MAC as fresh evidence on appeal.
The original appeal only sought to challenge the Arbitrator’s failure to award weekly compensation in respect of the thumb injury. Therefore, the MAC, which deals only with the impairment resulting from the thoracic spine injury, was of no relevance. As leave has now been given for Ms Sumaktas to also challenge the Arbitrator’s determination on the grounds that Ms Sumaktas is incapacitated as a result of her thoracic spine injury, the MAC is now directly relevant and probative evidence that was not available at the time of the arbitration.
Mr Wardell opposed the tender of the MAC but pointed to no prejudice his client would suffer if it is admitted on appeal and did not seek leave to obtain any evidence in response to it.
In these circumstances, and bearing in mind the Commission’s statutory obligation to act according to equity, good conscience and the substantial merits of the case (section 354(3) of the 1998 Act), it is in the interests of justice that the MAC be allowed into evidence on appeal.
THE EVIDENCE
Lay evidence
Ms Sumaktas was born in Turkey in 1959. She came to Australia at the age of 10. She only completed two years of formal schooling. She married at the age of 19 and had two children. She worked in a factory at Bankstown for 2 ½ years and later as a part-time sewing machinist before commencing work with Air Grilles in March 1994. Her normal duties required her to perform all jobs in the factory including punching, cutting, building and assembling grilles and various other jobs involved in frame making.
She injured her right thumb at work on 24 July 2000 when her thumb was caught in a press causing a fracture to the tip of the distal phalanx and a deep laceration through the dorsal surface of the thumb. She came under the care of Dr Kalnins, orthopaedic surgeon, who debrided and cleaned the wound at Bankstown Hospital. Ms Sumaktas was off work for about three months. When she returned to work she commenced on light duties on reduced hours. Ultimately, she returned to normal hours, but remained on restricted duties.
Joe Ong, the assistant production manager, confirms in his statement of 22 October 2004 that Ms Sumaktas did not return to her pre-injury duties after the injury to her thumb. He states that Ms Sumaktas was not required to engage in any heavy lifting after her injury and that she was rotated through five different jobs depending on the demand for the particular components upon which she worked. According to Mr Ong, the five different jobs were on the pedestal drill, the staking press, the hole puncher, the hole punch press and the filter frame press. All of the jobs were repetitive but did not require any heavy lifting. Ms Sumaktas was allowed to work at her own pace and no quotas had to be filled.
Mr Ong confirms that after returning to work on light duties, Ms Sumaktas continued to complain about pain in her right thumb from time to time and of having a sore right hand.
Lyn Zhi Xu (known as ‘Hansen’), Ms Sumaktas’ supervisor, confirms that Ms Sumaktas continued to complain about pain in her right thumb and hand while on light duties. Ms Xu also confirms that Ms Sumaktas operated the drill with her left hand at times because of pain in her right thumb and that Ms Sumaktas was rotated through five jobs whilst on light duties.
In respect of her injury on 17 August 2004, Ms Sumaktas states that she was using the drill on that day and pulling the handle with her left hand when she experienced pain in the left side of her ribs and the left side of her upper back and arm. She did not immediately report her symptoms, but saw her local doctor, Dr Du Toit who prescribed voltaren for muscular pain in the upper back. Her pain continued and she returned to see Dr Du Toit on 14 September 2004 when she was given a WorkCover certificate to remain off work for four days. Ms Sumaktas submitted a claim form on 16 September 2004 stating that she sustained an injury to her left upper back and left lateral chest as a result of repetitive duties whilst operating a welding and press machine. Ms Sumaktas returned to work on Friday 1 October 2004 but has not returned since.
In a further statement dated 20 December 2007, Ms Sumaktas confirms that she has continued to have pain in her right thumb since the July 2000 injury and that she has lost grip strength because of that pain. She added that her September 2004 claim was accepted and that she was paid voluntary compensation from October 2004 until the end of that year. She continues to have restrictions because of her back pain. She cannot bend, lift, carry or perform work of a heavy, persistent or repetitive nature.
In her third statement dated 7 February 2008, Ms Sumaktas states that because of her right thumb injury she had to use her left hand more often and, as a result, developed problems in that hand and arm. She added that the drill on which she was working on 17 August 2004 was unsuitable because the handle was too high and she had to reach up excessively. As a result of heavy, persistent and repetitive duties at Air Grilles, she noticed increasing pain and discomfort in the left and right hands, arms, shoulders, neck and back. Though she has not worked since October 2004, she has continued to suffer pain in those parts of her body.
Medical evidence
Dr Kalnins reported to Dr Du Toit on several occasions between August 2000 and December 2001 about Ms Sumaktas’ right thumb injury. He confirmed the nature of the injury and that x-rays on 11 August 2000 revealed a slightly displaced fracture of the tuff of the distal phalanx of the thumb. In his report of 14 September 2000, Dr Kalnins recorded that Ms Sumaktas had significant sensitivity, though she was able to oppose the thumb normally and a new nail was growing satisfactorily.
By December 2000 Ms Sumaktas had returned to part-time light duties on a punch machine and Dr Kalnins recorded that she still had intermittent pain in her right thumb and right forearm.
In his report of 15 February 2001, Dr Kalnins noted Ms Sumaktas’s complaint of increasingly severe pain in her right forearm. The doctor explained that that pain was not related to the thumb injury.
Early in 2001 Ms Sumaktas attended at a pain clinic because of continuing symptoms in her right thumb. She also complained to Dr Kalnins in May 2001 of pain in both wrists and hands and of numbness in her hands. He noted that bilateral carpel tunnel syndrome was found on EMG testing.
In his report of 3 August 2001, Dr Kalnins recorded that Ms Sumaktas complained that her right thumb became swollen and tender after work. On examination, she was able to flex her thumb to the fifth finger but not to the base of that finger.
In his report of 11 September 2001 he confirmed that her pain in the right thumb continued and that she also complained of sensory disturbance in her left hand and fingers suggestive of carpel tunnel syndrome. On examination there was some slight limitation of opposition of the right thumb, but otherwise movements were full.
Because of her continuing pain in her right thumb Ms Sumaktas was referred for a psychological assessment with Therese Hatfield, consultant psychologist, in April 2001. In her report of 11 April 2001 Ms Hatfield recorded that Ms Sumaktas complained of constant and severe pain in her right thumb that varied between 8 and 10 out of 10. The pain interfered with her sleep and she experienced increased irritability and mood swings. In addition to the complaints of pain in her right thumb, Ms Hatfield also noted that Ms Sumaktas complained of bilateral carpel tunnel symptoms. Ms Hatfield recommended six sessions of counselling.
Ms Sumaktas attended for four of those sessions, but as she had returned to full-time selected duties by the second half of 2001, it was not considered necessary for her to attend for the final two sessions. Ms Hatfield concluded in her report of 5 November 2001 that Ms Sumaktas’ ability to increase her hours and manage her return to work with minimal reported difficulties suggested that she had improved in her ability to actively manage her pain and disability.
There are no further medical reports in evidence dealing with Ms Sumaktas’ thumb injury until 2004.
Dr Du Toit reported to Ms Sumaktas’ solicitors on 30 August 2008. She took a history of the July 2000 thumb injury and that Ms Sumaktas returned to work on permanently modified duties. Since then, she developed chronic pain disorder with swelling and restricted movement of her right thumb and right hand.
In respect of the 17 August 2004 injury, Dr Du Toit took a history that Ms Sumaktas experienced exquisite pain in the left antero-lateral chest wall and left upper thoracic region whilst operating a welding press machine. Examination on 14 September 2004 revealed tenderness in those areas with restricted movement of the thoracic spine because of pain. She was referred for a chest x-ray, CT scan of the thoracic spine and a bone scan which revealed mild degenerative changes of the thoracic spine. Dr Du Toit diagnosed a moderately severe soft tissue injury involving the thoracic region of the left chest.
In October 2004, Dr Du Toit referred Ms Sumaktas to Dr Grahame Mahony.
Dr Du Toit concluded that Ms Sumaktas’ condition has deteriorated and that she has constant pain in her cervico-thoracic region radiating to her upper limbs with numbness in her hands and an “electric feeling in her right thumb”.
Employers Mutual referred Ms Sumaktas to Dr Assem, consultant in rehabilitation medicine, on 4 October 2004. He took a history that Ms Sumaktas noticed discomfort in the sternum on the left side of the chest and in her thoracic spine on 10 August 2004 in the course of her normal duties. The pain gradually increased and she sought treatment from Dr Du Toit. Dr Assem considered that Ms Sumaktas’ symptoms were due to degenerative changes and that there was no work-related injury. He felt that she was fit to continue on modified duties as a result of her thumb injury. Those modifications included a lifting restriction of 5 kilograms, standing for 45-60 minutes at a time and sitting for 45-60 minutes at a time. He thought she was able to do process work at her usual workstation, light packing and unpacking of items, and assembling products within the lifting restrictions noted. He also thought that she was fit for general cleaning duties.
Ms Chow, physiotherapist, treated Ms Sumaktas on 7 October 2004. On that day Ms Sumaktas complained of left rib and thoracic spine pain after repetitive over arm lifting at work. On examination, flexion of the thoracic and lumbar spines reproduced pain and shoulder flexion and abduction was significantly reduced. There were marked muscle spasms of the thoracic paravertebral muscles together with stiffness of the T4-12 spine.
Dr Mahony first saw Ms Sumaktas on 27 October 2004 when she complained of pain in the back of her chest, left shoulder and left ribs which developed over a period of months whilst she was drilling holes at work prior to 17 August 2004. She complained of pain at the back of her chest and in her left lower ribs and numbness in both arms. She did not complain of any neck or back symptoms. On examination there was tenderness in the mid thoracic region.
Employers Mutual referred Ms Sumaktas to Dr Papatheodorakis for assessment on 8 November 2004. In respect of the right thumb injury, the doctor recorded that Ms Sumaktas continued to complain of intermittent soreness/swelling with increasing use of her right hand. In respect of the injury on 17 August 2004, he recorded that while operating a welding/press machine, Ms Sumaktas experienced acute pain about the left anterolateral chest wall, left upper mid-back region, left shoulder and left upper arm. Her presenting symptoms were of chronic mid-back pain that radiated to the left lower anterolateral chest wall region.
On examination, Dr Papatheodorakis found no abnormalities in the cervical spine region and no neurological abnormalities in either upper limb. Tenderness was noted in the anterior chest wall and in the thoracic spine region. He noted that the CT scan of the thoracic spine performed on 22 September 2004 revealed degenerative changes, most prominent at T7/8. In his opinion, Ms Sumaktas’ presentation was consistent with a soft tissue chest wall/mid-back injury superimposed on underlying degenerative thoracic spinal changes. He anticipated that her condition would resolve over several weeks and that she would be able to return to her pre-injury status on permanently modified duties.
Dr Mahony reviewed Ms Sumaktas on 24 November 2004 and in early 2005. His first recorded complaint of neck symptoms was on 16 March 2005 when Ms Sumaktas complained of slight neck pain with headaches. She also complained of locking of her left ring finger.
In his medicolegal report of 31 May 2005, Dr Mahony concluded that Ms Sumaktas had developed symptoms referrable to a degree of nerve root irritation affecting her upper limbs as well as a generalised strain of the upper limbs together with evidence of severe carpel tunnel syndrome. She also had symptoms referrable to a thoracic strain and to bilateral tenosynovitis of the flexor tendons to the middle and ring fingers of the left hand and he thought the nature of her work had produced “such lesions”.
Ms Sumaktas also relies on a report from Dr Patrick, surgeon, dated 28 February 2007. He took a history of the right thumb injury and that Ms Sumaktas continued to have symptoms in her right thumb whilst performing selected duties. Her work on the floor drill required her to reach up and pull on a handle. Because of pain in her right thumb and hand, she began to use her left arm to operate the drill. She then began to develop significant pain about the left clavicle region and pain in her left shoulder radiating to the scapular region posteriorly. She also developed pain in the left upper arm and upper/mid thoracic spine. In addition, she developed numbness in her hands, the left worse than the right. She also developed triggering in the ring finger of the left hand.
On examination, Dr Patrick noted there was mild stiffness at the right thumb with some limitation of adduction and opposition. The range of movement of the left shoulder was restricted and there was evidence of mild carpel tunnel syndrome. There was mild muscle guarding at the upper thoracic spine. Dr Patrick noted that the December 2004 MRI scan of the thoracic spine revealed “very minor annular bulges from T7/8 to T10/11”. Dr Patrick added that there also appeared to be a disc bulge evident at T8/9.
Under “Opinion”, Dr Patrick confirmed that as a result of the injury of July 2000, Ms Sumaktas developed stiffness in her right thumb, local tenderness and a limited area of altered sensation. In respect of her duties in 2004, he concluded that as a result of reaching to pull the handle on the drill, she developed a subacromial bursitis/impingement with some rotator cuff tendonitis at the left shoulder. She also developed triggering of the middle and ring fingers of the left hand, mild carpel tunnel syndrome on the left and signs of upper thoracic facet injury. He felt that her symptoms were genuine and consistent with and consequent upon “initial work injury of 24 July 2000”. He assessed her to be permanently incapacitated for physical work involving heavy or rapid/repetitive use of her right or left hands or significant use of the left arm outstretched or overhead.
Dr Mahony continued to see Ms Sumaktas at regular intervals from 2005 until 2008. He provided a further medicolegal report on 10 March 2008 in which he set out his findings on examination at each review of Ms Sumaktas and essentially repeated the opinion he expressed in his May 2005 report, subject to adding that Ms Sumaktas had evidence of early degenerative changes in the metacarpo-phalangeal of the joint of the right thumb and symptoms referrable to a thoracic strain.
Dr Middleton, consultant orthopaedic surgeon, examined Ms Sumaktas at the request of CGU on 27 March 2008. In his report of 31 March 2008 he took a history of the July 2000 injury and that Ms Sumaktas returned to work on light duties which she described as being “not much different” to her normal work. He then took a history of the injury on 17 August 2004 and that Ms Sumaktas has not returned to work since October 2004.
At the time of his examination, Ms Sumaktas’ complaints were of pain in the mid-dorsal area, pain in the right thumb radiating to the right wrist, and locking of the left ring finger. The pain in the right thumb and wrist occurred three or four times weekly and was worse in cold weather. She also complained of symptoms affecting her left leg and pain down the back of the left leg to the sole of the left foot with associated numbness. In terms of Ms Sumaktas’ past health, Dr Middleton noted that she has had type 1 diabetes for the last ten years and has used insulin for the last four years.
On examination, Dr Middleton noted that there was a restricted range of movement of the left shoulder. There was some limitation of movement of both wrists, and movement of the right thumb was reduced with moderate impairment of opposition of the thumb. There was no upper limb muscle wasting and no evidence of hand muscle wasting.
Dr Middleton noted that Ms Sumaktas presented with symptoms, but “little evidence of credible objective abnormality on physical examination and no evidence of radiographic abnormality.” After noting the history of diabetes, the doctor felt that the possibility of peripheral neuropathy could not be excluded as the cause of her symptoms. He felt that there was no clear diagnosis to explain her continuing symptoms and that the range of motion found on examination of her spine and both shoulders was not credible, because of the degree of impairment found without other objective supporting physical features. He accepted that the thumb injury could have resulted in some limitation of joint motion because of fibrosis. In his March 2008 report, he assessed Ms Sumaktas to have a 10 percent impairment of the right arm below the elbow. In his supplementary report of 24 April 2008, he assessed her to have a 35 percent loss of use of her right thumb. He considered the limitation of thumb motion was relatively minor and did not “amount to a handicap for a job as a process worker”. As far as the thumb injury was concerned, Dr Middleton considered that Ms Sumaktas was fit for full duty. So far as her other complaints were concerned, he stated that her fitness was dependent upon her statement of symptoms, which he did not consider to be credible.
On 26 March 2009, Dr Khan assessed Ms Sumaktas’ degree of whole person impairment as a result of her thoracic spine injury. He recorded that Ms Sumaktas complained of pain in her thoracic spine that radiated to the left axilla and sometimes into the left arm. Lying down for long periods and sitting down for long periods made the symptoms worse. She also complained of numbness in the legs when she walked or climbed steps.
On examination, Ms Sumaktas displayed “demonstrative pain behaviour”. Movements of the cervical spine were globally restricted voluntarily. Movements of the right shoulder were normal and pain free. Movements of the left shoulder were restricted with complaints of pain in the thoracic spine. Sensation was subjectively diminished in the whole of the left arm in a non-anatomical distribution. Carpal tunnel compression tests were positive bilaterally.
Examination of the thoracic spine revealed normal spinal curvature, with no localised muscle spasm. There was tenderness at T7-8. Flexion and extension were both restricted. In the legs, sensation was globally diminished in a non-anatomical fashion in the left leg, but was normal on the right side.
Dr Khan diagnosed a soft tissue injury to the thoracic spine in the form of a musculo-ligamentous and facet joint strain that aggravated degenerative changes in the thoracic spine, as a result of Ms Sumaktas’ work on 17 August 2004. Under “consistency of presentation”, he noted her restricted range of movement, especially in the cervical spine and left shoulder, were far in excess of any disabilities present in those regions. The global reduction in sensation in the whole of the left arm and left leg was suggestive of inconsistencies. He assessed a whole person impairment of 6%, reduced to 5% after a 10% deduction for pre-existing abnormalities under section 323 of the 1998 Act.
Rehabilitation reports
Lyndal Grant, occupational therapist, with Workfocus Australia, assessed Ms Sumaktas in January 2001. At that stage Ms Sumaktas was working four hours a day, five day a week on light duties. Ms Grant conducted a “functional status” assessment on 10 January 2001 and noted that Ms Sumaktas reported carrying loads with her left hand only. When she attempted to lift items with her right hand, she felt an instant increase in her pain. Ms Sumaktas reported difficulty in gripping items with her right hand.
As at January 2001, Ms Sumaktas was working in suitable duties on a punching machine. This machine formed part of her pre-injury duties, but she was able to modify the task so that she used her left hand to manipulate the aluminium strips and merely used her right hand to stabilise the strip once aligned in the punching machine.
Ms Grant reported again on 27 March 2001 that Ms Sumaktas continued to report ongoing symptoms in her right thumb and forearm and continued to take a 15-minute rest break every hour.
The last report in evidence from Ms Grant is dated 25 September 2001. At that date Ms Sumaktas was working well on suitable duties for seven hours a day five days a week with plans to upgrade to full-time hours.
THE ARBITRATOR’S REASONS
In his reserved Statement of Reasons (‘Reasons’) the Arbitrator made the following findings:
(a) Ms Sumaktas injured her thoracic spine and chest wall on 17 August 2004 (Reasons, at [53]);
(b) he was not satisfied that the medical evidence supported Ms Sumaktas’ allegation of injury to any other part of her body (Reasons, at [54] to [58]);
(c) he accepted that Ms Sumaktas was partially incapacitated for work from 17 August 2004 as a result of the injury to her thoracic spine (Reasons, at [64]);
(d) he was satisfied that Ms Sumaktas suffered an incapacity as a result of her thumb injury (Reasons, at [70]);
(e) Ms Sumaktas was partially incapacitated until 20 December 2007 (Reasons, at [78]) but he was not satisfied that any work-related incapacity extended beyond that date (Reasons, at [79]);
(f) the thoracic spine injury was a strain injury that “should have resolved at some time after injury in August 2004” and he had no evidence of the work-related condition continuing after December 2007. He did “not presume that the incapacity continued after that date” (Reasons, at [80]);
(g) Ms Sumaktas’ incapacity resulted from her right thumb and thoracic spine injuries up to December 2007, and thereafter from the thumb injury (Reasons, at [81]);
(h) probable earnings but for injury under section 40(2)(a) as at August 2004 were $629.14 per week with an agreed adjustment at 3 percent per annum thereafter (Reasons, at [90]);
(i) her incapacity resulted in a reduction in her “earnings in the circumstances of 40 percent on the pre-injury earnings of $629.14, namely $251.66. Leaving the section 40(2)(b) earnings at $377.48” (Reasons, at [92]);
(j) there was no evidence that Ms Sumaktas’ diabetes or her non-work related medical conditions adversely affected her ability to work and he therefore exercised his discretion under section 40(1) in her favour (Reasons, at [93]);
(k) the worker was entitled an award at the maximum statutory rate from 10 December until 20 December 2007;
(l) he was satisfied that Ms Sumaktas had limited economic loss after December 2007 to date as a result of her thumb injury, as she would be likely to secure and hold work even after disclosing her thumb problem (Reasons, at [97]). Therefore, there was no economic loss resulting from the incapacity due to the right thumb injury (Reasons, at [98]), and
(m) the permanent impairment of Ms Sumaktas’ thoracic spine resulting from her injury on 17 August 2004 was remitted to the Registrar for referral to an AMS for appropriate assessment.
SUBMISSIONS, DISCUSSION AND FINDINGS
It is convenient to first deal with the point argued by Mr Wardell at the oral hearing of the appeal, namely, that the Arbitrator’s reasoning at [92] is inconsistent with the orders he ultimately made. The Arbitrator’s analysis at paragraph [92] of his Reasons is unambiguous. He found that Ms Sumaktas’ capacity to earn from December 2004 had been reduced by 40 percent compared to her pre-injury earnings of $629.14 per week. That left her with an ability to earn on the open labour market of $377.48 per week. Therefore, applying the five steps in Mitchell v Central West Area Health Service (1997) 14 NSWCCR 527 (‘Mitchell’), probable earnings (step 1) were agreed at $629.14 for December 2004. Ability to earn under section 40(2)(b) (step 2 in Mitchell) was determined by the Arbitrator to be $377.48 per week. The difference between step 1 and step 2 is $251.66 per week. In the absence of the exercise of the discretion (step 4 in Mitchell) that is the figure that should have been awarded as compensation (step 5) instead of the full statutory award the Arbitrator entered.
It follows that the orders made by the Arbitrator are inconsistent with his findings and cannot stand. As a result, the calculation of Ms Sumaktas’ entitlement to compensation from 10 December 2004 to 20 December 2007 must be re-determined.
Ms Sumaktas’ challenge to the Arbitrator’s failure to make an award after 20 December 2007 must also succeed. Having found that Ms Sumaktas had a continuing incapacity as a result of her thumb injury it was not open, in the circumstances of this case, to then find that Ms Sumaktas had no entitlement to weekly compensation. The additional evidence from the AMS also requires that the award of weekly compensation be re-determined.
Both parties have had the opportunity to make detailed submissions in respect of the redetermination and I am satisfied that I am in as good a position as an arbitrator to conduct that redetermination. Neither party made any submission to the contrary.
Step 1 in the Mitchell analysis is the determination of Ms Sumaktas’ probable earnings but for her injury under section 40(2)(a) of the 1987 Act. The parties agreed that amount was $629.14 per week, as at December 2004. They also agreed (T12.27) to adjust that amount by 3% per annum. That adjustment gives the following figures:
2005 $648.01
2006 $667.45
2007 $687.47
2008 $708.10
2009 $729.34
The calculation of Ms Sumaktas’ ability to earn under section 40(2)(b) of the 1987 Act (step 2 in Mitchell) is complicated by the fact that Ms Sumaktas’ clearly believes that she is significantly, if not totally, incapacitated. Ms Goodman did not submit that her client is totally unfit for work, but argued that she has, as a result of all her conditions, a 75% reduction in her earning capacity. Based on probable earnings of $629.14 per week in December 2005, that reduction gives Ms Sumaktas an ability to earn $157.29 per week. Mr Wardell submits that Ms Sumaktas’ ability to earn is of the order of $500-$600 per week.
The numerous certificates and reports provided by Dr Mahony certify Ms Sumaktas to be unfit for work. I find Dr Mahony’s evidence as to Ms Sumaktas’ unfitness to be unpersuasive, as he has given little, if any, explanation for his conclusion and his opinion is contrary to the overwhelming weight of the evidence in the case. Dr Patrick merely stated that Ms Sumaktas is unfit for “physical work involving heavy or rapid/repetitive use of [her] right and left hands, or significant use of [her] left arm outstretched or overhead” and has not dealt with the restrictions, if any, resulting from the thoracic spine injury. Dr Assem considered the worker to be fit to continue the light duties she performed up to August 2004. That is, to do process work, light packing, assembly work and general cleaning duties.
Dr Middleton concluded that Ms Sumaktas’ fitness in general depended on her statements. In respect of her right thumb, he considered that she was fit for full duties. In view of the evidence from Mr Ong and Ms Xu, I do not accept Dr Middleton’s evidence. Clearly, Ms Sumaktas has a restriction as a result of her right thumb injury.
Ms Sumaktas’ evidence is that she has a restriction due to her back pain and discomfort, and has problems with her left shoulder. She says that she cannot bend, lift, carry or perform work of a heavy or repetitive nature. In her third statement, she added that she is substantially limited in the work she can perform domestically and that she would not be able to undertake any work that required persistent prolonged, heavy, continuous or repetitive bending, lifting or carrying, or use or movement of her hands or arms.
I note that the AMS considered there to be some demonstrative pain behaviour and voluntary restriction of movements by Ms Sumaktas on examination, especially in the cervical spine and left shoulder, which were far in excess of any disability present in those regions. In light of this statement, which I accept, I do not unreservedly accept Ms Sumaktas’ complaints as to her level of pain and disability. I do accept, however, that the thoracic spine injury has resulted in a whole person impairment of 5% and that Ms Sumaktas has pain as a result of that injury that will adversely affect her capacity to earn because it will restrict her ability to perform heavy work.
So far as the right thumb injury is concerned, I accept Dr Assem’s evidence that Ms Sumaktas is fit for process work, light packing and general cleaning work. This evidence is consistent with Ms Sumaktas’ evidence and the evidence from Mr Ong and Ms Xu. Whether such employment will be available to her on the open labour market is another matter. I do not, however, accept Dr Assem’s evidence that Ms Sumaktas sustained no injury to her thoracic spine, as it is contrary to the Arbitrator’s unchallenged finding and the assessment of a 5% whole person impairment by the AMS. Regrettably, there is no helpful medical evidence as to the restrictions Ms Sumaktas experiences as a result of that impairment.
I accept that Ms Sumaktas only completed two years of schooling and that English is not her first language. She has had no formal training and has only ever performed unskilled factory work, process work or sewing. Nevertheless, I do not accept that her ability to earn is as restricted as her counsel suggests. I believe that Ms Sumaktas could perform most, if not all, of the light processing duties that she performed prior to August 2004, and many of the duties she performed prior to July 2000. Ms Sumaktas’ pre-July 2000 duties are described in Ms Grant’s report of 12 January 2001. They included operating punching and cutting machines, and assembling vents. The first two jobs were performed while seated and were performed by Ms Sumaktas in the early stages of her rehabilitation in 2001. She simply modified the task so that she used her left hand to manipulate the aluminium strips and used her right hand to stabilise the strip once aligned in the punching machine. She was able to alternate between two different punching machines. The assembly work required lifting and seems to have been assessed as being unsuitable after the thumb injury, though the evidence is unclear.
Taking into account all the evidence and having particular regard to the nature of Ms Sumaktas’ incapacity and pre-injury employment, her age, education, skills and work experience, her place of residence, and the lack of any rehabilitation training, I find that Ms Sumaktas’ ability to earn in some suitable employment as at December 2004 was $250.00 per week. This figure is arrived at on the basis that I believe that Ms Sumaktas is fit to perform light process work or work as a cleaner, but, as a result of her injuries, will experience difficulty in obtaining and retaining such employment in the labour market reasonably accessible to her (Summerson v Alcan Australia Ltd [1994] NSWCC 24; (1994) 10 NSWCCR 571) and may only be able to obtain part-time work at different times. Adjusting those figures by 3% per annum from 2004 to date gives the following figures for Ms Sumaktas’ ability to earn under section 40(2)(b):
2004 $250.00
2005 $257.50
2006 $265.23
2007 $273.19
2008 $281.39
2009 $289.83
Deducting this figure from the probable earnings set out at paragraph [72] above (step 3), gives the following figures:
2004 $379.14
2005 $390.51
2006 $402.22
2007 $414.28
2008 $426.71
2009 $439.51
Step 4 in Mitchell requires the application of the discretion in section 40(1) to determine the amount of the reduction in the worker’s weekly earnings that is “proper in the circumstances of the case” (Australian Wire Industries Pty Ltd v Nicholson (1985) 1 NSWCCR 50). Ms Goodman submits that any reduction under section 40(1) would only be modest because Ms Sumaktas’ carpal tunnel symptoms were present from 2001 and did not prevent her from performing suitable duties until the injury in August 2004. She also submits that Ms Sumaktas’ diabetes has been present for several years and has never affected her ability to work. Whilst I accept both of those points, they are not the only conditions about which Ms Sumaktas complains. The Arbitrator rejected her claim that she injured her hands, neck, shoulders and arms, and her claim that the triggering of the left ring finger was work related and this finding has not been challenged on appeal. Complaints about those parts of Ms Sumaktas’ body have featured prominently in her statements and her presentation to the medical experts in the case, in particular Drs Mahony and Patrick. They have clearly had, and continue to have, a significant impact on her ability to earn. In the exercise of the discretion it is appropriate to reduce the figures in paragraph [81] above by 25% to reflect Ms Sumaktas’ reduced earning capacity as a result of her non-compensable conditions, excluding the carpal tunnel syndrome and diabetes. Making this adjustment gives the following result:
20 December 2004 to 31 December 2004 $379.14 less 25% - $284.36
1 January 2005 to 31 December 2005 $390.51 less 25% - $292.88
1 January 2006 to 31 December 2006 $402.22 less 25% - $301.67
1 January 2007 to 31 December 2007 $414.28 less 25% - $310.71
1 January 2008 to 31 December 2008 $426.71 less 25% - $320.03
1 January 2009 to date and continuing $439.51 less 25% - $329.63
OTHER MATTERS
It is also submitted on behalf of Ms Sumaktas that an adverse inference should be drawn against Air Grilles because of its failure to tender any report from Professor Cummings. I am not prepared to draw such an inference in this matter because there is no evidence that Ms Sumaktas saw Professor Cummings. In any event, as Air Grilles tendered a report from Dr Middleton, it would not have been permitted to tender Professor Cummings’ report because clause 43 of the Workers Compensation Commission Regulation 2003 only permits one forensic medical report to be admitted on behalf of a party.
CONCLUSION
Having conducted a review on the merits (per Spigelman CJ in State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249; (2007) 5 DDCR 287 at [28]), I am of the view that the true and correct position is as set out above and there will be an award in favour of Ms Sumaktas in the amounts set out at paragraph [82] above.
DECISION
Paragraphs two and four of the Arbitrator’s determination of 6 March 2009 are revoked and the following orders made in their place:
“2.Award for the applicant worker under section 40 of the Workers Compensation Act 1987 (‘the 1987 Act’) in the following amounts:
$284.36 per week from 20 December 2004 to 31 December 2004
$292.88 per week from 1 January 2005 to 31 December 2005
$301.67 per week from 1 January 2006 to 31 December 2006
$310.71 per week from 1 January 2007 to 31 December 2007
$320.03 per week from 1 January 2008 to 31 December 2008
$329.63 per week from 1 January 2009 to date and continuing.
4. The respondent employer is to pay the applicant worker’s costs as agreed or assessed.
5. The dispute is certified to be complex and one to which Item 7 of Table 4 of Schedule 6 would apply and, pursuant to Item 5 of Table 4 of Schedule 6, the Commission certifies the matter as complex and orders an increase of the costs of both parties of 45%.
6. The respondent is given credit for payments made for the period from 10 December 2004 to 20 December 2007 and, to the extent of any overpayment in that period, the overpayment may be applied under section 58(4) of the 1987 Act in partial satisfaction or adjustment of the award after 20 December 2007.”
Paragraphs one and three of the determination of 6 March 2009 are confirmed.
COSTS
The respondent employer is to pay the appellant worker’s costs of the appeal, which I assess at $2,200.00 plus GST.
Bill Roche
Deputy President
14 July 2009
I, TUYET WALLIS, 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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