Sunblest Cleaning Services Pty Ltd v Muslemani

[2006] NSWWCCPD 260

WORKERS COMPENSATION COMMISSION

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

CITATION:Sunblest Cleaning Services Pty Ltd v Muslemani [2006] NSWWCCPD 260

APPELLANT:  Sunblest Cleaning Services Pty Ltd

RESPONDENT:  Nemr Muslemani

INSURER:Employers Mutual (NSW) Ltd

FILE NUMBER:  WCC 6536-05

DATE OF ARBITRATOR’S DECISION:          27 March 2006

DATE OF APPEAL DECISION:  4 October 2006

SUBJECT MATTER OF DECISION:                Evidence to support findings; adequacy of reasons

PRESIDENTIAL MEMBER:  Acting Deputy President Robin Handley

HEARING:On the papers

REPRESENTATION:  Appellant: Edwards Michael Moroney Lawyers

Respondent: Kheir & Associates Solicitors

ORDERS MADE ON APPEAL:  Clauses 2 and 3 of the Arbitrator’s decision, dated 27 March 2006, are revoked and the issue of Mr Muslemani’s entitlement to weekly compensation matter is remitted to the Arbitrator for redetermination in accordance with the law and these reasons.  The Arbitrator’s decision is otherwise confirmed.

There is no order as to the costs of this appeal.

BACKGROUND TO THE APPEAL

1. On 24 April 2006, Sunblest Cleaning Services Pty Ltd (‘Sunblest’) sought leave in the Workers Compensation Commission (‘the Commission’) to bring an appeal against the decision of an arbitrator dated 27 March 2006. The Respondent to the appeal is Nemr Muslemani.  Sunblest’s workers compensation insurer at the relevant time was Employers Mutual Indemnity (Workers Compensation) Ltd, now known as Employers Mutual (NSW) Ltd (‘EMI’).

1. Mr Muslemani was born on 1 November 1954 and is aged 52. He has two dependents – his wife and seventeen year old son. Mr Muslemani claims to have injured his back, neck, right shoulder and leg on 23 March 1998 when he slipped and fell onto his right side when polishing a wooden floor. He notified Sunblest of the injury on that day. EMI initially accepted liability and paid weekly compensation, but then declined further liability from 23 October 1998. Mr Muslemani commenced proceedings in the Compensation Court of NSW in 1998, but discontinued these on 23 August 2000.

1. On 5 May 2005, the Commission registered Mr Muslemani’s ‘Application to Resolve a Dispute’ in respect of his claim for (1) weekly compensation, (2) medical, hospital or related expenses, and (3) compensation for permanent impairment and pain and suffering.

1. On 20 October 2005, the Arbitrator conducted a teleconference with the parties. On 13 December 2005, conciliation having proved unsuccessful, he conducted an arbitration hearing which was completed on 21 February 2006. On 27 March 2006, the Arbitrator issued his decision in the terms set out below.

THE DECISION UNDER REVIEW

1. The Certificate of Determination, dated 27 March 2006, records the Arbitrator’s orders as follows:

“Finding:
1. The Applicant did not consent to the transfer of his employment to Clontarch Pty Ltd (now known as Cleaning Employment Pty Limited). His contractual relationship with Sunblest Cleaning Pty Ltd (also known as Sunblest Cleaning Services Pty Ltd, Sunblest Cleaning Pty Ltd and Sunblest Cleaning Services) did not cease. He was never employed by Clontarch Pty Limited. It follows that EMI was always and is now the relevant insurer at the time of the injury.

Orders:
2. Respondent is to pay the Applicant weekly compensation at the rate of $246.60 from 23 October 1998 to 30 June 2001 under section 40 of the Workers Compensation Act 1987.
3. Respondent is to pay the Applicant weekly compensation at the rate of $261.60 from 1 July 2004 to date and continuing under section 40 of the Workers Compensation Act 1987.
4. Respondent is to pay the Applicant’s section 60 of Workers Compensation Act 1987 expenses on production of accounts or receipts.
5. Applicant is referred for medical examination by an Approved Medical Specialist to determine extent of permanent impairment and to provide advice in the nature of a General Medical Dispute.
6. The parties are to advise the Registrar within 7 days of the issue by the Registry of these reasons as to their agreement on the selection of an Approved Medical Specialist. In the absence of such agreement the Registrar is to choose the Approved Medical Specialist. The Approved Medical Specialist chosen by the parties or selected by the Registrar is also asked to deal with the General Medical Dispute.
7. Respondent is to pay the Applicant’s costs as agreed or assessed.”

1. In his ‘Statement of Reasons for Decision’, the Arbitrator summarised the resolution of the issues in dispute as follows:

“(a) On 23 March 1998 [sic] received an injury to his neck, back, right arm and right leg arising out of or in the course of his employment with ‘Sunblest Cleaning Services’.
(b) Nemr Muslemani’s employment was a substantial contributing factor to his injury.
(c) Nemr Muslemani was partially incapacitated for work as a result of his injuries from 23 March 1998 to 30 June 2001.
(d) Nemr Muslemani’s probable weekly earnings for this period, but for the injury, had he continued to be employed in the same or some comparable employment, are agreed to be $471.60 per week.
(e) During Nemr Muslemani’s period of partial incapacity for work from 23 October 1998 to 30 June 2001 the average weekly amount he was earning or would be able to earn in some suitable employment from time to time after the injury was $225.
(f) Nemr Muslemani is therefore entitled to weekly payments for the period of partial incapacity from 23 October 1998 to 30 June 2001 of $246.60.
(g) Nemr Muslemani was and is now partially incapacitated for work as a result of his injuries from 1 July 2001 to date and continuing.
(h) Nemr Muslemani’s probable weekly earnings for the period since 1 July 2001, but for the injury, had he continued to be employed in the same or some comparable employment, are agreed to be $517.00 per week.
(i) During Nemr Muslemani’s period of partial incapacity for work from 1 July 2001 to date and continuing, the average weekly amount he was earning or would be able to earn in some suitable employment from time to time after the injury was $256.00.
(j) Nemr Muslemani is therefore entitled to weekly payments for the period of partial incapacity for work from 1 July 2001 to date of $261.00.”

ISSUE IN DISPUTE

1. The issue in dispute in the appeal is the Arbitrator’s finding that Mr Muslemani’s ability to earn in some suitable employment pursuant to section 40(2)(b) of the Workers Compensation Act 1987 (‘the 1987 Act’) was $225 per week prior to 30 June 2001 and $256 per week thereafter. This was based on the Arbitrator’s finding that Mr Muslemani is capable of working up to four hours per day on four days per week. EMI submits, first, that there was no evidence to support such a finding or, alternatively, it was against the weight of evidence, and, second, that the Arbitrator failed to give adequate reasons for this finding. The parties’ submissions on this issue are discussed below.

ON THE PAPERS REVIEW

1. Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) states:

“(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 before me, and the submissions by the parties that the appeal can 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

1. Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act. The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act. With regard to section 352(2), I am satisfied that the weekly compensation at issue exceeds $5,000 and is more than 20% of the amount awarded in the decision appealed against. I therefore grant leave to appeal.

FRESH EVIDENCE

1. 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.”

1. Practice Direction No 6 sets out the process for seeking leave of the Commission to give ‘new evidence’ on appeal. It provides as follows:

“New Evidence

Where a party seeks leave to give new evidence in relation to the decision appealed against, that party must serve a copy of the new evidence on the other parties to the dispute when serving the Application or Opposition.

In general, the Commission will allow new evidence to be introduced only where it can be demonstrated that the new evidence could not reasonably have been obtained by the party and tendered in proceedings before the Arbitrator and that failure to allow the new evidence would cause a substantial injustice in the circumstances of the individual case.”

1. Practice Direction No 6 also provides that if new evidence is sought to be relied upon, the Application or Opposition to the Appeal must contain:

   “ -a schedule of the new evidence,
     -a copy of the new evidence,
     -a brief outline of the new evidence and the reasons why it was not given in the
      proceedings before the Arbitrator, and
     -submissions why the new evidence should be admitted.”

1. In their ‘Notice of Opposition to Appeal against Decision of an Arbitrator’, dated 16 May 2006, Mr Muslemani’s solicitors, in answer to question 2.6, “Do you seek to rely on new evidence?”, placed a cross in the ‘yes’ box. However, while in their attached written submissions they stated, “No new evidence is sought to be adduced”, they attached a copy of the Medical Assessment Certificate (‘MAC’), dated 12 May 2006, of Dr Roger Pillemer, Orthopaedic Surgeon, the Approved Medical Specialist (‘AMS’) to whom the Registrar referred the matter for assessment of permanent impairment and for advice on the medical dispute identified by the Arbitrator.

1. By ‘Application to Admit Late Documents’ lodged on 19 September 2006, EMI seeks leave to admit as late evidence the ‘Statement of Reasons for Decision of the Appeal Panel in Relation to a Medical Dispute’, dated 6 September 2006. The Appeal Panel revoked the MAC issued by Dr Pillemer. EMI states that the findings of the Appeal Panel were not available at the time of the appeal, and:

“are relevant in terms of the degree of impairment related to injuries. In particular, the appeal decision is of significance in relation to the exercise of the Section 40 discretion given the degree of right leg impairment which has been found not to be related to [sic] employment injury.”

1. EMI submits the admission of the new evidence will not cause delay or give rise to any prejudice to the Respondent in the appeal. Conversely, “failure to admit the evidence will result in prejudice to the Appellant given the findings of the Panel and the fact that the Certificate is conclusively presumed to be correct”.

1. Mr Muselmani’s solicitors do not object to the Appeal Panel’s decision being admitted as fresh evidence, but on the basis that the MAC issued by Dr Pillemer should also be admitted.

1. In my view, both the MAC issued by Dr Pillemer and the Statement of Reasons of the Appeal Panel should be admitted to ensure that a substantial injustice is not caused to the parties. The MAC issued by Dr Pillemer is the context for the Appeal Panel’s decision and that decision is only meaningful with reference to that context. Leave to admit new evidence, namely the MAC of Dr Pillemer dated 12 May 2006 and the Statement of Reasons of the Appeal Panel dated 6 September 2006, is granted.

1. I note that, pursuant to section 326 of the 1998 Act, while, relevantly, the MAC is conclusively presumed to be correct on the degree of permanent impairment of a worker as a result of an injury and whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, the MAC “is evidence (but not conclusive evidence)” as to any other matter.

SUBMISSIONS, EVIDENCE AND DISCUSSION

1. As stated above, the issue in dispute in the appeal is the Arbitrator’s finding that Mr Muslemani’s ability to earn in some suitable employment pursuant to section 40(2)(b) of the 1987 Act was $225 per week prior to 30 June 2001 and $256 per week thereafter. This was based on the Arbitrator’s finding that Mr Muslemani is capable of working up to four hours per day on four days per week.

1. EMI submits, first, that there was no evidence to support such a finding or, alternatively, it was against the weight of evidence, and, second, that the Arbitrator failed to give adequate reasons for this finding. EMI refers to the medical evidence in support of its contention that not one specialist medical practitioner placed any restriction on Mr Muslemani’s ability to perform suitable employment on a full-time basis. I have reviewed the relevant evidence. Dr Neil Berry, General Surgeon, in a report dated 29 November 1999, stated his opinion that Mr Muslemani:

“sustained musculo-ligamentous injuries to the neck and back, a soft tissue injury to the right shoulder aggravating a pre-existing supraspinatus tendinitis [sic] and he has aggravated an already osteoarthritic right knee.

On the basis of today’s examination this patient is permanently unfit to work as a cleaner or in any other heavy occupation that requires prolonged standing and walking, heavy lifting and repetitive bending. He is fit only for light sedentary duties which avoid the above activities.”

1. Dr Medhat Guirgis, Orthopaedic Surgeon, in a report dated 15 July 1999, stated that Mr Muslemani’s injury on 23 March 1998 caused musculo-ligamentous sprain/strain of the cervical and lumbar areas of the spine, triggering and aggravating the effects of pre-existing spondylosis, post-traumatic tendonitis of the right shoulder, and post-traumatic trochanteric bursitis “on top of secondary osteoarthritic changes in the right hip joint caused by an old coxa varus deformity associated with old slipped upper femoral epiphysis causing distortion of the contour of the articular surface of the femoral head”. Dr Guirgis said that Mr Muslemani “remains unfit for activities that would require applying stresses to the spine, right arm or right leg”. Dr Guirgis confirmed this in a report dated 25 May 2004. In WorkCover medical certificates dated 23 February 2004, 24 May 2004, 23 August 2004, 22 November 2004 and 21 February 2005, issued after reviewing Mr Muslemani, Dr Guirgis said that Mr Muslemani was fit for suitable duties.

1. Dr Brian Stephenson, Orthopaedic Surgeon, in a report dated 9 September 1999, said Mr Muslemani’s “history and findings are consistent with contusion and strain to the body when he fell”. Dr Stephenson considered Mr Muslemani:

“fit for work that does not involve heavy lifting and prolonged standing or bending activities. He is also fit for work that does not involve excessive heavy repetitive use of the right upper limb or repetitive overhead work with the right upper limb. The findings are consistent with cervical and lumbar strain and with a rotator cuff lesion of the right shoulder as a result of the fall.”

In a report dated 18 October 2005, Dr Stephenson said Mr Muslemani was fit for suitable light work.

1. Dr Peter Burke, Surgeon, in a report dated 17 October 2005, stated:

“In view of mild degenerative spondylitis in the cervical and lumbar regions, this man is considered to be unfit for work involving repeated bending, the lifting of weights of more than 7 kgs or other activities likely to aggravate the condition of his vulnerable neck and back.

His main limiting problem is osteoarthritic change at both hips and at the right knee. The condition of the right knee is entirely due to an injury many years ago. The bilateral osteoarthritic change at the hips is age-related and genetically determined and possibly due to old slipped epiphysis of the right hip. These factors would prevent him from crouching, kneeling, bending and heavy lifting.

Nevertheless, I regard this man as being physically fit for light duties as a cleaner, within the above parameters.”

1. An ARC Rehabilitation and Risk Management Services Pty Ltd report dated 16 October 2005, prepared by Liz Atteya, Rehabilitation Counsellor, said “[r]esults of the Functional Capacity Evaluation indicate that full-time sedentary or semi-sedentary employment is physically suitable” for Mr Muslemani, and identified a number of suitable positions accommodating Mr Muslemani’s physical restrictions and needs.

1. Mr Muslemani’s solicitors submit there was ample evidence to support the Arbitrator’s finding that Mr Muslemani was unfit for full-time work. They refer to a WorkCover medical certificate completed by Dr Guirgis, dated 22 August 2005, in which he stated that Mr Musclemani is fit for suitable duties. Mr Muslemani’s solicitors contend this makes “clear that the doctor is of the opinion that the applicant is not fit for full-time duties”. They also refer to a report from Dr N Borun, Physician and Surgeon, dated 5 September 2005, in which Dr Borun said Mr Muslemani’s:

“capacity to be able to return to full-time employment is very slim and considering the length of his problem and suffering his future progress is very remote and he is better to be on an invalid pension”.

Mr Muslemani’s solicitors therefore contend there is ample evidence to support the Arbitrator’s finding that Mr Muslemani is unfit for full-time work.

1. In my view, an analysis of the medical evidence supports EMI’s submission that it was not open to the Arbitrator to impose temporal restrictions on Mr Muslemani’s ability to work in suitable employment on the basis of the evidence then before him. With the exception of Dr Borun, there is no reference by the other specialists to temporal restrictions, merely to restrictions on the type of work of which Mr Muslemani is capable. I also note that the Arbitrator, in addition to requesting an assessment of the degree of Mr Muslemani’s permanent impairment from an AMS, also referred a medical dispute to the AMS (pursuant to section 321(1) of the 1998 Act) requesting advice on Mr Muslemani’s capacity to work and fitness for his pre-injury duties as a cleaner. This suggests the Arbitrator considered that further medical evidence was required to enable him to make an appropriate finding on Mr Muslemani’s capacity for work. At paragraph 51 of his Statement of Reasons, the Arbitrator, having concluded that Mr Muslemani “is capable of doing some work”, noted that “the amount and extent of the work is the question that needs some further consideration”.

1. At paragraph 52, the Arbitrator stated, “[i]n my assessment, based on all the available medical evidence, it is probable that the Applicant is capable of working up to four (4) hours per day on a four day per week basis”. The Arbitrator did not, however, identify the medical evidence upon which he was relying. Given that the majority of the medical evidence before the Arbitrator appears to support a finding that Mr Muslemani is capable of suitable light work with restrictions, without limitation on the number of hours Mr Muslemani could perform that work, the Arbitrator was required to support his contrary finding that Mr Muslemani was only capable of working 16 hours a week, on the basis of four hours per day on four days. In my view, by not doing so, the Arbitrator failed to comply with Rule 73(1) of the Workers Compensation Rules 2003 which require that a statement of the Commission’s reasons (supplied pursuant to section 294(2) of the 1998 Act) is to include, relevantly, “(a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based” and “(c) the reasoning processes that lead the Commission to the conclusions it made”.

1. I therefore conclude that the Arbitrator made an error of law by making a finding of fact without adequate supporting evidence and by failing to provide adequate reasons for his decision.

1. With regard to the new evidence admitted in the appeal, I note that in the MAC, Dr Pillemer provided both an assessment of permanent impairment and answers to the questions concerning the medical dispute asked of him by the Registrar and formulated by the Arbitrator. Dr Pillemer stated his opinion that while Mr Muslemani is not fit for his pre-injury duties as a cleaner, he is:

“fit for a wide range of employment opportunities and activities at the present time. His main limiting factor is his right hip as noted, and he would therefore need to avoid activities that involve a lot of walking or climbing of stairs, or working in cramped positions. On specific questioning he felt he would be quite happy to work for four to five hours a day on restricted duties, and in my opinion he would be capable of doing this. He would need to avoid excessive stress to his neck and back, but as mentioned his main problems are his back and his right knee.”

1. Dr Pillemer said provided Mr Muslemani had training, “he could work as a retail assistant/sales, garage or petrol station attendant, or any type of sedentary work where he was allowed to move around at will because of the discomfort in his right hip”. While Dr Pillemer said it is possible Mr Muslemani could work on a full-time basis:

“it should be noted that osteoarthritis of the hip is a progressive condition, and symptoms in his hip are going to get progressively worse, and possibly expecting him to work for eight hours per day would be a bit excessive and four to five hours per day would seem more reasonable at this stage”.

Dr Pillemer concluded by saying that in his opinion “Mr Muslemani would be able to work for four to five hours per day five days a week”.

1. Relevantly, in his assessment of permanent impairment, Dr Pillemer attributed three quarters of the permanent impairment in Mr Muslemani’s right lower limb “to the pre-existing osteoarthritic changes in his right hip and right knee”. The Appeal Panel noted that this attribution is inconsistent with Dr Pillemer’s statement at page 5 of the MAC, that “[i]n my opinion the effects of the aggravation following the fall on 23 March 1998 with regard to the hip and right knee, would have settled within three months of the radiculopathy”, and with his statement at page 8 of the MAC that “[o]nce again as noted it is my opinion that the problems with his hips are due to his underlying idiopathic osteoarthritic change in his hips and not due to his fall”.

1. The Appeal Panel concluded that the MAC was inconsistent with the deduction applied by the AMS and that “this material inconsistency gives rise to a demonstrable error”. The Panel therefore revoked the MAC and issued a new MAC in its place. The Panel agreed with and therefore adopted the assessments of permanent percentage loss of efficient use or impairment made by Dr Pillemer, but attributed the whole of the permanent percentage loss of efficient use of Mr Muslemani’s right leg at or above the knee to the pre-existing condition. The Panel made no comment on Dr Pillemer’s answers to the questions posed by the Registrar with regard to the medical dispute.

1. In my view, the appropriate decision on the appeal is for the relevant parts of the Arbitrator’s decision relating to Mr Muslemani’s entitlement to weekly compensation to be set aside and for this issue to be remitted for redetermination by the Arbitrator. The Arbitrator will have the benefit of the new evidence comprising Dr Pillemer’s MAC, including his answers to the questions originally posed by the Arbitrator, and to the MAC substituted by the Appeal Panel together with the Panel’s Statement of Reasons.

DECISION

1. Clauses 2 and 3 of the Arbitrator’s decision, dated 27 March 2006, are revoked and the issue of Mr Muslemani’s entitlement to weekly compensation is remitted to the Arbitrator for redetermination in accordance with the law and these reasons. The Arbitrator’s decision is otherwise confirmed.

COSTS

1. There is no order as to the costs of this appeal.

Robin Handley

Acting Deputy President  

4 October 2006

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

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