Summertime Holdings Pty Ltd t/as Summertime Chickens v Ebsworth

[2006] NSWWCCPD 147

WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Summertime Holdings Pty Ltd t/as Summertime Chickens v Ebsworth [2006] NSWWCCPD 147

APPELLANT:  Summertime Holdings Pty Ltd t/as Summertime Chickens in the interests of Employers Mutual Indemnity (Workers Compensation) Limited

RESPONDENT:  Lauren Jane Ebsworth

INSURERS:Employers Mutual Indemnity (Workers Compensation) Limited (on risk for Summertime Holdings Pty Ltd from 30 June 1994 to 30 June 2004)

QBE Workers Compensation (NSW) Limited

(on risk for Summertime Holdings Pty Ltd from 30 June 2004 to 30 June 2005)

FILE NUMBER:  WCC6140-05

DATE OF ARBITRATOR’S DECISION:          28 July 2005

DATE OF APPEAL DECISION:  12 July 2006

SUBJECT MATTER OF DECISION: Apportionment between insurers; section 22 Workers Compensation Act 1987

PRESIDENTIAL MEMBER:  Acting Deputy President Bill Roche

HEARING:On the papers

REPRESENTATION:  Appellant:      Edwards Michael

Respondent:   McDonnell Schroder

QBE:Hunt & Hunt

ORDERS MADE ON APPEAL:  Paragraphs1, 2, and 3 of the Arbitrator’s decision of 28 July 2005 are confirmed.

Paragraphs 4 and 5 of that decision are revoked and the following orders made:

“4.  (a)  Liability for the Applicant’s weekly compensation is apportioned equally between Employers Mutual Indemnity (Workers Compensation) Limited and QBE Workers Compensation (NSW) Limited.

(b) The Applicant’s medical and hospital expenses under section 60 of the Workers Compensation Act 1987 are to be paid as follows:

(i)Employers Mutual Indemnity (Workers Compensation) Limited is to pay for all of the Applicant’s reasonable section 60 expenses resulting from the injury sustained by the Applicant to her left hand/wrist whilst working for the Respondent in or about June 2004, and

(ii)QBE Workers Compensation (NSW) Limited is to pay for all of the Applicant’s reasonable section 60 expenses resulting from the injuries sustained by the Applicant in the car accident on 26 October 2004.

5.   The Respondent is to pay the Applicant’s costs as agreed or assessed and those costs are to be borne equally by the two insurers nominated above.  The matter is certified complex under part 4.10 of the costs regulations.

6.   Employers Mutual Indemnity (Workers Compensation) Limited is to be given credit for payments made by it on or after 26 October 2004.”

The appellant is to pay the worker’s costs of the appeal, otherwise no order as to costs of the appeal.

BACKGROUND TO THE APPEAL

1. On 22 August 2005 Employers Mutual Indemnity (Workers Compensation) Limited (‘the Appellant/EMI’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 28 July 2005.

1. The Respondent to the Appeal is named as Lauren Jane Ebsworth, the Applicant worker before the Arbitrator, but for all practical purposes QBE Workers Compensation (NSW) Limited (‘the Respondent Insurer/QBE’) is the effective respondent.

1. On 21 April 2004 Lauren Jane Ebsworth (‘the worker/Mrs Ebsworth’) commenced fulltime employment with Summertime Holdings Pty Ltd t/as Summertime Chickens (‘the employer’) as process worker.  Her main duty was to pack chickens into tubs.  As a result of her duties she developed pain in her hands and wrists in about May or June 2004 (‘the first injury’).  Her right sided symptoms resolved but her left sided symptoms did not.  Her general practitioner (Dr Amin) diagnosed “Complex Regional Pain Syndrome” though this diagnosis was certainly not the view of the majority of the medical experts in this case.

1. Mrs Ebsworth submitted a claim for compensation which was accepted by EMI.  She was referred to CRS Australia (‘CRS’) for rehabilitation and a suitable duties program was developed.  The rehabilitation goal was to assist her to return to work performing suitable duties of an administrative nature.  The suitable duties commenced on or about 12 July 2002 with Mrs Ebsworth to work three days per week (Monday, Wednesday and Friday) from 9am “up to 5 hours (depending on availability of administrative duties)” (report CRS 13 July 2004).  Due lack of available administrative duties she usually performed less than fifteen hours of suitable duties each week.  On 20 October 2004 the suitable duties were withdrawn by the employer because of lack of suitable work.

1. On 26 October 2004 Mrs Ebsworth was involved in a serious motor vehicle accident (‘the second injury’) whilst on a journey to which section 10 of the Workers Compensation Act 1987 (‘the 1987 Act’) applies. As a result she was admitted to Westmead Hospital until 28 October 2004. Her main injuries were a fractured jaw, concussion, head injuries, whiplash, abdominal pain and an injury to her left knee (see CRS 7 February 2005). There is also a suggestion of her suffering a seizure immediately after the car accident. Whilst Dr Amin suggests in his report of 10 April 2005 that Mrs Ebsworth’s left hand symptoms “flared up as a result of her MVA” and the worker agreed with this when cross examined by counsel for EMI (transcript page 10 line 10), she also agreed with counsel for QBE that she “couldn’t make a decision whether it [the left hand] was worse or better” after the car accident (transcript page 12 line 29). Other medical evidence suggests that the left hand was not injured in the car accident.

1. Mrs Ebsworth was paid compensation be EMI under section 38 of the 1987 Act until 22 April 2005. An Amended Application to Resolve a Dispute (‘the Application’) was filed in the Commission on 9 May 2005 alleging injury to her hands as a result of her injury in June 2004 and injury to her head, jaw, whiplash, left knee, abdomen and seizures as a result of her car accident on 26 October 2004. She claimed weekly compensation from 26 October 2004 to date and continuing plus medical and hospital expenses under section 60 of the 1987 Act.

1. At the conciliation and arbitration hearing on 26 July 2005 the main issue in dispute was the issue of apportionment between the two insurers.  That issue was decided by the Arbitrator apportioning liability for weekly compensation and for hospital and medical expenses equally to each insurer.  EMI now seeks leave to appeal that decision.

THE DECISION UNDER REVIEW

1. The ‘Certificate of Determination’, dated 28 July 2005 records the Arbitrator’s orders as follows:

“1.Respondent to pay $492.90 per week from 26 October to 22 April 2005.

2.Respondent to pay $334.10 per week as adjusted from 23 April 2005 to date and continuing pursuant to s37.

3. Respondent to pay s60 expenses.

3.Weekly compensation and s60 expenses to be met equally by EMI and QBE.

5.  Respondent to pay the Applicant’s costs as agreed or assessed.”

ISSUES IN DISPUTE

1. The issues in dispute in the appeal are whether the Arbitrator erred in:

(a)finding that at the time of the second accident the worker was working 15 hours per week (‘apportionment – weekly compensation’);

(b)finding that the worker was capable of capable of performing suitable duties for 20 hours per week (‘apportionment – weekly compensation’)

(c)failing to give any or any adequate reasons for concluding that the worker could work only 20 hours per week, and

(d)apportioning liability for section 60 expenses in equal shares between EMI and QBE when the two accidents involved injury to two completely different parts of the body (‘apportionment – section 60 expenses’).

LEAVE TO APPEAL

1. 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’). Subsection 352(2) provides:

“2)The Commission is not to grant leave to appeal unless the amount of compensation at issue on the appeal is both:

(a)  at least $5,000 (or such other amount as may be prescribed by the regulations), and

(b)  at least 20% of the amount awarded in the decision appealed against.” (emphasis added)

1. EMI submits that its liability should be no greater than 20% of the weekly compensation awarded, that is, 30% less than it has currently been ordered to pay. If its proportion of the current award is reduced by 30% then that proportion of the arrears of weekly compensation alone will exceed the $5,000.00 threshold in section 352(2)(a) of the 1998 Act. As the whole of that amount is “at issue” it is submitted that the section 352(2)(b) threshold is also satisfied.

1. Neither QBE nor the worker has made any submissions on this point. In these circumstances I am prepared to accept that the thresholds in section 352 are satisfied.

1. The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.

1. I grant leave to appeal.

PRELIMINARY MATTERS

1. Section 354(6) of the 1998 Act provides:

“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”

1. Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances. 

SUBMISSIONS AND FINDINGS

Apportionment – Weekly Compensation

1. It is submitted by EMI that the Arbitrator made an error of fact in finding that the worker had been working 15 hours per week up to the withdrawal of her light duties in October 2004 when in fact the worker was working 24 hours per week.  This submission is not correct.  The evidence from CRS was that it was intended that the worker would work in administration from 9am for “up to five hours” on Monday, Wednesday and Friday of each week (see CRS report 13 July 2004).  In fact the worker performed less than 15 hours of suitable work per week because of the unavailability of that work.  The submissions by EMI have assumed that ‘three days work’ meant ‘three eight hour days’.  The evidence from CRS and from the wage material in the case demonstrates that that is incorrect. 

1. It is then submitted that the Arbitrator’s “whole approach to the resolution of the issue [of apportionment] was predicated upon the worker working 15 hours per week, which was simply incorrect” (EMI’s submissions paragraph six). Further, it is submitted that as the Arbitrator’s reasoning “applied an erroneous fact, the determination must be revoked” (EMI’s submission paragraph seven). As I have noted above the factual basis for this submission is incorrect. In addition, a factual error by an Arbitrator does not automatically result in the award being revoked if it can be sustained on other grounds. The error must be one that has affected the outcome in the case. In the present matter the Arbitrator made findings of fact when he apportioned liability under section 22 of the 1987 Act. For reasons set out below I believe that the findings made were open to the Arbitrator on the evidence before him.

1. EMI also challenges the Arbitrator’s finding that by 26 October 2004 the worker was able to work half her normal hours.  This challenge is on the basis that on 26 October 2004 the worker had attended on her general practitioner and been given a certificate limiting her to lifting less than five kilograms but making no comment on the number of hours she was to work.  Reliance is also placed on the worker’s evidence at page 13 of the transcript where she said that at the time of the car accident she “wasn’t far off” being able to work full time in appropriate light duties.

1. It is also submitted that the Arbitrator gave no reasons under Rule 73 of the Workers Compensation Commission Rules 2003 (‘the Rules’) to indicate how he reached the conclusion that as at 26 October 2004 Mrs Ebsworth was capable of working 20 hours per week in suitable duties. In fact the Arbitrator gave several reasons for making that finding. He noted and found that:

(a)the worker did not think she could return to full time hours as at 26 October 2004 (transcript page 21 line 25);

(b)Dr O’Neil expressed the view in June 2005 that so far as the left arm symptoms were concerned the worker was fit for “the part time selected duties that she performed prior to the motor vehicle accident”  (emphasis added) (transcript page 22 line 35 and Dr O’Neill’s report 27 June 2005 page four);

(c)Dr Amin certified what appeared to be “unrestricted time” at 26 October 2004 “though the Applicant has doubts about that, though she did tell us that there had been some improvement” (transcript page 23 line 40), and, therefore,

(d)the worker’s capacity at the time of the second accident was “probably in the vicinity of about 20 hours per week or about half her normal earning capacity” (transcript page 23 line 47).

1. The evidence to support the finding in point (a) above is at page nine line 2 of the transcript where the worker was asked:

“Q.  Thank you.  That administrative work, you were there, as you say, doing it for six or eight weeks.  Do you think if there was more work available you may have been able to do more than three days per week?

A.  Not at the time.  I was still having problems with my hand.”

Q.Mm-mm.

A.  And I was just basically having problems with my hand.  So I couldn’t have   done any more than that.” (emphasis added)

1. The evidence to support point (c) above starts at page 13 line 22 of the transcript:

“Q.  That’s okay.  I just want to ask you this question.  At that particular time do you think you could have worked full time so long as it was that light work with no lifting and the like?

A.  Not at that time but I wasn’t far off it.

Q.  Okay.  You thought you were improving?

A.  Yes.”

1. In light of the above evidence the Arbitrator had to assess the impact of the left wrist problem on the worker’s ability to earn as at 26 October 2004.  That assessment required the Arbitrator to weigh up the worker’s evidence that she could not do more than three days per week of light duties with her later evidence that she was improving and was not far off being able to work full time on light duties.  The certificate from Dr Amin was far from conclusive as to the hours Mrs Ebsworth was fit to work but the opinion of Dr O’Neil was quite clear that he thought she was only fit for part time light duties.  In all the circumstances the Arbitrator’s finding that the worker was only fit to work 20 hours per week as at 26 October 2004 was open on the evidence and I see no error of fact, law or discretion in his approach or his conclusion.

1. The weight to be attached to evidence before an Arbitrator was considered in Westpac Banking Corporation v Kilby & Bananacoast Credit Union Ltd [2005] NSWWCCPD 24 where it was said:

“As stated in South Western Sydney Area Health Service v Edmonds [2005] WCCPD 18, the weight and relevance to be given to evidence before an Arbitrator is a matter in the discretion of that Arbitrator. The decision of the Arbitrator should not be overturned unless it can be demonstrated that the Arbitrator has failed to exercise that discretion fairly and according to law. This may occur when an Arbitrator has acted upon an incorrect legal principle, allowed irrelevant considerations to influence the decision, made a material mistake as to the facts, or failed to take into account relevant and material considerations, (House v The King (1936) 55 CLR 499 at 504-505; Norbis v Norbis (1986) 161 CLR 513 at 520, and In the Matter of National Roads and Motorists Association Ltd [2003] FCFA 206 at [21]). (per Byron DP at [54]).”

1. I do not believe the Arbitrator in the present case has made any of the errors noted above in his approach or finding on apportionment of weekly compensation in this case.

1. I do not agree that the “only inference available from the medical and lay evidence” was that the worker was, as at 26 October 2004 or shortly thereafter, fit for selected duties for 40 hours per week (EMI submissions paragraph 11).  At best the evidence was ambiguous.  Dr O’Neil was clearly against that proposition and so was Mrs Ebsworth.

1. I do not agree that the Arbitrator failed to comply with his duty to give reasons under Rule 73. The Arbitrator has set out his reasoning process and referred to the relevant evidence that lead him to his ultimate conclusion (Snow Confectionary Pty Ltd v Askin [2004] NSWWCCPD 56). That is sufficient in the circumstances of this case where the Arbitrator said at page 23 line 55:

“Before I make any final orders, do the parties have sufficient reasons to understand the basis for the decision?

Mr Newton:  Yes

Mr Mansfield:  Yes

Mr McDonald:  Yes”

1. Where the parties were specifically asked if further reasons were required and they replied in the negative, I do not believe it is later open to argue that the reasons given were inadequate or did not comply with the Rules. In any event I believe that the Arbitrator’s reasons were adequate.

1. Even if EMI’s submission that the worker has an ability to work 40 hours per week in suitable duties is correct (and I do not believe that it is), that does not mean that its liability should only be 20% of the continuing award for weekly compensation.  Theoretical fitness for a particular job does not mean that the worker would necessarily obtain such a job (Lawarra Nominees Pty Ltd v Wilson (1996) 25 NSWCCR 206). After the car accident the worker remained unfit for her pre injury job as a result of her left wrist injury. It is necessary to then determine her ability to earn on the open labour market. Given the condition of her wrist (leaving to one side the impact of the car accident) it seems likely she would have been significantly incapacitated on the labour market reasonably accessible to her.

1. The worker’s rehabilitation for her left wrist injury is summarised in the CRS report of 7 February 2005 headed Final Rehabilitation Report.  This report notes that Mrs Ebsworth was reviewed by a rehabilitation specialist, Dr Needham, in 2004.  It continues as follows at page two:

“Contact with Dr Needham revealed that Ms Ebsworth would be permanently unfit for her pre injury duties of processing chickens at Summertime Holdings.  He stated that permanent restrictions would be relevant to her work options and included limiting lifting to 5kg and avoiding repetitive left upper limb activities.  He stated that she would be suitable for clerical work and that given her previous work experience in this field, it would be an appropriate job option.  Confirmation was sought from the employer [sic] permanent provision of clerical duties was not possible.”

1. In addition she was unfit for work after 26 October 2004 because of the injuries sustained in the car accident.  Her main continuing problem from the car accident appears to be with her left knee.  That problem causes her significant difficulties and has caused her to fall on a number of occasions. 

1. Unfortunately the evidence did not indicate the exact nature or extent of the restrictions resulting from the car accident.  Dr Amin’s certificate of 17 November 2004 merely referred to “multiple injuries” in the car accident and certified the worker totally unfit for work because of both injuries.  None of the doctors in the case attempted to apportion liability between the two injuries.  Dr Burke in his report of 7 June 2005 at page four states that Mrs Ebsworth’s “worst present problem is in her left knee”.  After referring to both injuries Dr Bruce, orthopaedic surgeon, stated in his report of 12 June 2005 that Mrs Ebsworth was unable to work because of the “severity of her symptoms”. 

1. In these circumstances the Arbitrator was left with very limited evidence with which to form a conclusion on apportionment. It was therefore open to him, in the absence of compelling evidence one way or the other, to apportion liability in respect of the weekly compensation in the percentages he did.  The worker had a significant incapacity as a result of her injuries.  The exact extent to which each injury contributed to that incapacity was not capable of calculation with scientific precision on the available evidence.  The Arbitrator’s approach and conclusion represented a fair and reasonable analysis of the evidence does not disclose any error.

Apportionment – Section 60 Expenses

1. The Arbitrator also apportioned the liability for the worker’s hospital and medical expenses equally between the two insurers.  It is correctly submitted that liability under different heads can be apportioned differently according to the facts in each case (Blayney Abattoirs Pty Ltd v McConnell (1998) 16 NSWCCR 205).

1. As I have noted above Mrs Ebsworth suffered extensive injuries in the car accident. Those injuries may well require far more extensive treatment than will be required as a result of her arm injury. In this situation the Arbitrator was in error to apportion liability equally under section 60. EMI concedes that “it is probably appropriate for EMI to bear the whole section 60 liability for the left arm” (EMI submissions paragraph 13). I think that concession is appropriate given the uncertain evidence about whether the left hand or wrist was injured in the car accident or, if it was, whether that injury resulted in the need for additional treatment over and above what would already have been required.

1. I think the appropriate order for payment of section 60 expenses is that the EMI pay for all such reasonable expenses that have resulted from the worker’s injury to her left hand or wrist and that QBE pay for all such reasonable expenses that have resulted from the injuries sustained by the worker in the car accident on 26 October 2004.

DECISION

1. Paragraphs1, 2, and 3 of the Arbitrator’s decision of 28 July 2005 are confirmed.

1. Paragraphs 4 and 5 of that decision are revoked and the following orders made:

“4.(a)  Liability for the Applicant’s weekly compensation is apportioned equally between Employers Mutual Indemnity (Workers Compensation) Limited and QBE Workers Compensation (NSW) Limited.

(b)The Applicant’s medical and hospital expenses under section 60 of the Workers Compensation Act 1987 are to be paid as follows:

(i)Employers Mutual Indemnity (Workers Compensation) Limited is to pay for all of the Applicant’s reasonable section 60 expenses resulting from the injury sustained by the Applicant to her left hand/wrist whilst working for the Respondent in or about June 2004, and

(ii)QBE Workers Compensation (NSW) Limited is to pay for all of the Applicant’s reasonable section 60 expenses resulting from the injuries sustained by the Applicant in the car accident on 26 October 2004.

5.The Respondent is to pay the Applicant’s costs as agreed or assessed and those costs are to be borne equally by the two insurers nominated above.  The matter is certified complex under part 4.10 of the costs regulations.

6.Employers Mutual Indemnity (Workers Compensation) Limited is to be given credit for payments made by it on or after 26 October 2004.”

COSTS

1. EMI has failed with the main part of its appeal in respect of apportionment of the liability for weekly compensation. Though it has succeeded on the issue of apportionment in respect of section 60 expenses, that is an order that could well have been remedied under the slip rule had an application been made to the Arbitrator at the time. In these circumstances each insurer should bear its own costs of the appeal.

1. Whilst the worker was not involved in the substantive part of the appeal, she was named as a party (initially, as ‘the appellant’) and would have had to seek advice as to whether the appeal would be likely to affect her rights.  Her solicitors filed a Notice of Opposition in Reply but no other documents and made no submissions.  The appellant should therefore pay the worker’s costs of the appeal.

1. The appellant is to pay the worker’s costs of the appeal, otherwise no order as to costs of the appeal.

Bill Roche

Acting Deputy President  

12 July 2006

I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE