Symbion Health Limited v Haworth - [2006] NSWWCCPD 245

WORKERS COMPENSATION COMMISSION

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

CITATION:Symbion Health Limited v Haworth [2006] NSWWCCPD 245
APPELLANT:  Symbion Health Limited (formerly Mayne Group Limited)
RESPONDENT:  Louise Haworth
INSURER:Self-insured
FILE NUMBER:  WCC1664-06
DATE OF ARBITRATOR’S DECISION:          18 May 2006
DATE OF APPEAL DECISION:  27 September 2006
SUBJECT MATTER OF DECISION: Section 60 of the Workers Compensation Act 1987; adequacy of reasons
PRESIDENTIAL MEMBER:  Acting Deputy President Anthony Candy
HEARING:On the papers
REPRESENTATION:  Appellant:      Leigh Virtue & Associates Solicitors
Respondent:   MRM Lawyers

ORDERS MADE ON APPEAL: 1. The decision of the Arbitrator dated 18 May 2006 is revoked and the matter is submitted to the Arbitrator concerned for determination afresh in accordance with these reasons.
2. No order as to costs of the appeal.

BACKGROUND TO THE APPEAL

On 14 June 2006 Symbion Health Limited (‘the Appellant Employer’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 18 May 2006. Symbion Health Limited is said to be the successor of Mayne Group Limited (‘Mayne’).
The Respondent to the Appeal is Louise Haworth (‘the Respondent Worker’).
The worker was employed as a registered nurse at Warner’s Bay Private Hospital and Christo Road Private Hospital from 1997 up to January 2001. Prior to this she had been employed at the John Hunter Hospital.
There were prior proceedings in the Compensation Court, No. 40469/01, in which the parties were the worker and three respondents, HCOA Operations (Australia) Pty Limited (‘HCOA’) in respect of both Warner’s Bay Private Hospital (First Respondent) and Christo Road Private Hospital (Second Respondent) and Hunter Area Health Service trading as John Hunter Hospital (Third Respondent). In a Fourth Amended Application for Determination in those proceedings the insurer of HCOA was said to be Mayne. In those proceedings weekly compensation was sought from 10 January 2001 together with lump sum compensation in respect of loss of efficient use of the worker’s right arm at or above the elbow. The nature and conditions of employment with each of the respondents were relied on by the worker and no specific injury was alleged.
This matter was listed for hearing on 10 October 2002 when a settlement was reached between the parties. Terms of Settlement signed by counsel provided for awards of lump sum compensation with an award for the Respondents with respect to the claim for weekly compensation. In those proceedings the First and Second Respondents were represented by the same counsel. The Terms of Settlement provided for the Respondents to pay the compensation agreed with there being an award in favour of the Third Respondent in respect of section 60 expenses. Section 60 expenses were agreed at $6,542.95 on production of accounts or receipts. The Third Respondent agreed to contribute 10% of that settlement plus pro rata costs.
The worker’s former solicitors made enquiry of Mayne regarding the cost of physiotherapy treatment to the worker. There is no letter from the solicitors in evidence however Mayne wrote to the solicitors on 18 February 2005 as follows:
“I refer to your enquiry regarding the issue of physiotherapy treatment claimed by Ms Haworth.
Agreement was reached in this matter in the Compensation Court in October 2002. Legal advice provided to me indicates that Mayne Workers Compensation had an obligation to pay section 60 expenses incurred in the period up to 10/10/02.
Invoices submitted in respect to physiotherapy are for treatment after 10/10/02 and accordingly will not be authorised.
I confirm that you will advise Ms Haworth of her rights in this matter.”
The solicitors replied to this letter by letter on 4 March 2005 as follows:
“… attached is a copy of the Terms of Settlement dated 10 October 2002 and filed in the Workers’ Compensation Court [sic].
You will note in relation to section 60 expenses on page 2 that the terms state ‘that the First and Second Respondents [Mayne Workers’ Compensation] pay section 60 expenses up to $6,542.95 on production of accounts and receipts.’
That was at the date of settlement that does not mean that Mayne can contract out of paying any further Section 60 expenses. This is not the spirit, nor is it the intention of the Workers’ Compensation Act.
The worker has an ongoing entitlement to payment of Section 60 expenses. This is a lifetime entitlement. The only agreement in relation to non-payment of medical expenses was an award in favour of the Third Respondent (Hunter Area Health Services t/as John Hunter Hospital).
The obligation is on Mayne Health to continue to meet reasonable and necessary Section 60 expenses.
Should you decline to pay the expenses, we will make an application to the Workers’ Compensation Commission and you will be responsible for the costs of that application.”
Mayne replied on 3 May 2005:
“I refer to your letter dated 4 March 2005 and am concerned to note that your letter would seem to suggest that the parties were not actually in agreement when this claim was resolved on 10 October, 2002.
It was clearly Mayne Group’s intention that the payment of the amounts agreed to including the payment of s.60 expenses in an agreed total specific amount was on the basis that this would finalised [sic] any further claim by or on behalf of your client. If this has not been agreed then it will be necessary for you to return to me the cheques drawn in favour of your client in respect of the agreed settlement together with the cheque paid to you in respect of costs and disbursements. Your client can then recommence any proceedings in respect of this dispute. I would also point out, to the extent that it is necessary, that I continue to dispute any liability for the payment of any compensation benefits to or on behalf of your client.
Unless I hear from you to the contrary within 21 days of the date hereof I will assume that your client no longer wishes to resile from the agreement reached and does not wish to pursue the matter further and I will close this claim.”
Accordingly the Application to Resolve a Dispute was lodged in the Workers Compensation Commission (‘the Commission’) on 6 February 2006. It sought medical expenses totalling $5,284.60 in respect of physiotherapy and treatment by Dr Reece, an orthopaedic surgeon. The Respondents were named as HCOA in respect of Warner’s Bay Private Hospital and Christo Road Private Hospital.
The matter was referred by the Commission to an Arbitrator. A teleconference was held on 18 April 2006 and there was an Arbitration hearing on 17 May 2006 at which the Arbitrator made a decision in favour of the worker, namely that the Respondent was to pay the worker’s section 60 expenses up to the sum of $5,704.60 upon production of accounts and/or receipts with the Respondent to be given credit for any payments made.

THE DECISION UNDER REVIEW

The ‘Certificate of Determination’, dated 18 May 2006 records the Arbitrator’s orders as follows:
“1.The name of the Respondents [sic] is changed to Mayne Group Limited t/as Warner’s Bay Private Hospital and Christo Road Private Hospital.
2.The Respondent is to pay the Applicant’s Section 60 expenses up to the sum of $5,704.60 upon production of accounts and/or receipts. The Respondent is to be given credit for any payments made.
3.The Respondent is to pay the Applicant’s costs as agreed or assessed.”

ISSUES IN DISPUTE

The issue in dispute in the appeal is:
Whether the employer is liable to pay the worker’s section 60 expenses incurred after 10 October 2002.

ON THE PAPERS REVIEW

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.”
The Employer opposes the appeal being decided solely on the documents filed. The reason given for this is said to be that the transcript had not been provided and the matter involved complex issues including jurisdictional issues. The worker has indicated that the appeal can be decided solely on the papers and no hearing is sought on behalf of the worker. The transcript was later provided to the parties and further submissions were made.
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, the smallness of the amount in issue and the submission by the worker that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.

LEAVE

Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
The amount at issue on the appeal is $5,704.60 and all of this amount is at issue on the appeal.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
Accordingly leave to appeal is granted.

EVIDENCE

A statement of the worker dated 14 November 2005 was attached to the Application to Resolve a Dispute. She related her employment at the John Hunter Hospital, Christo Road Private Hospital and Warner’s Bay Private Hospital up to approximately 10 January 2001. She said that her duties as a registered nurse were very physical in nature and involved constant heavy and repetitive lifting of patients placing undue strains on her arms, particularly her right shoulder. She said that she worked as a recovery nurse which led to a lot more reliance on physically manhandling patients. She had first noticed symptoms into her right shoulder in or about 1996 when she was working as a nurse in recovery and she consulted her general practitioner at that time. She said she used to continue with her normal duties but noticed pain and restriction into her right shoulder by the end of the working day and gradually found that her shoulder became less active as time went on.
The worker went on to state that she came under the care of Dr Reece in May 2000. That doctor undertook surgery on her right shoulder on 10 January 2001 and she had remained under her care since that time. She provided details of her prior application in the Compensation Court leading to the settlement to which I have earlier referred. She stated that she had continued to have medical treatment since 10 October 2002 and regular consultation with Dr Reece as well as physiotherapy. Without the physiotherapy she said that the symptoms of her right arm would not be able to be controlled and her condition would deteriorate further.
A report of Dr Reece dated 19 October 2000 is also attached to the Application to Resolve a Dispute. That doctor states that she first saw the worker on 18 May 2000. There is history of right shoulder pain which the doctor thought was consistent with repetitive lifting and the work which she did as a recovery nurse. She saw the worker again on 1 June with the results of an ultrasound which showed bursitis and impingement in the right shoulder and it was decided to try some physiotherapy. However when the doctor reviewed her on 20 July 2000 it was found the physiotherapy had been of no help and it was decided to try to treat the worker with local anaesthetic and steroids to settle down inflammation and increase the range of motion. The doctor recorded that “things were starting to improve following the first injection” before the worker had a motor vehicle accident on 25 July and the shoulder symptoms again worsened following this. The doctor planned to do a surgical decompression on 10 January 2001. Dr Reece under the heading “Cause of right shoulder complaints” says the following:
“The cause of Louise’s right shoulder complaints are [sic] difficult to understand, however, they have definitely been exacerbated by continuing to lift and care for heavy and light patients’ [sic] as they recover from anaesthetic, and generally do nursing duties. They are also exacerbated by her motor vehicle accident as she initially had some response to the injection, but the pain increased again after the motor vehicle accident.”
Dr Reece again reported to the worker’s solicitors on 29 May 2002. The doctor stated that the worker’s shoulder had not continued to respond to the surgical input as expected. Initially she had done very well however she had at that time ongoing pain and restriction of range of motion so that on 6 February 2002 the doctor performed a manipulation of the right shoulder under anaesthetic. The doctor stated that things worsened but with input of physiotherapy things had improved again. She had last seen the worker on 15 April 2002. The doctor was of the opinion that the prognosis was that the worker would probably have ongoing right shoulder pain and would never be normal. It may improve a little. So far as causation is concerned the doctor says this:
“Injuries and disabilities … … in her usual job are due to the nature and conditions of her employment since 1991. This was then aggravated by a motor vehicle accident during the time I have been seeing her.”
On 20 September 2005 Dr Reece reported to the worker’s solicitors. She expressed the view that the worker was not fit to return to work and ongoing physiotherapy was essential for her to keep the symptoms under control. The doctor thought that her condition would deteriorate further if she did not have ongoing maintenance physiotherapy.
A physiotherapist, Ruth O’Keefe, wrote to the worker’s general practitioner, Dr Bridger, on 28 July 2000 as follows:
“I have seen Louise Haworth today following her MVA. I had recently treated her for a right shoulder problem with some associated cervico-thoracic symptoms. The (?) cervico-thoracic junction and right trapezius are very swollen compared to when I saw her prior to the MVA. I have treated her with modalities only to try to settle the pain and swelling.”
Dr Weisz, an orthopaedic surgeon, saw the worker on 28 November 2001 (report 10 December 2001) at the request of her solicitors. Dr Weisz noted that the worker had consulted her family practitioner for right shoulder problems in July 1996 and then she consulted an orthopaedic surgeon and was told there were “no problems”. She had no treatment and continued to work. She consulted another specialist in 2000 (? Dr Reece) and received three local shoulder injections and had one week of physiotherapy. In January 2001 she had undergone decompressive surgery to her shoulder. There was a car collision accident in July 2000 when she was a driver in a stationary car hit from behind. She suffered swelling in the neck and aggravated her shoulder pain. At the time Dr Weisz saw her, her shoulder was persistently painful, stiff and restricted in mobility. She was on a course of physiotherapy receiving gentle massage and electrical stimulation. Dr Weisz concluded that the worker had sustained a work related right shoulder strain which was an impingement syndrome of the supraspinatus in the shoulder girdle. He thought the mechanism of repeated lifting at work was the cause of the detected pathology. He thought the condition could be classified as an occupational disease of such nature to be contracted by gradual process. He accepted that the conditions of work were substantial contributing factors to her disability. That doctor assessed permanent loss of efficient use of the right arm and also expressed the view that there was no evidence of additional shoulder injury from the motor vehicle accident which in his view produced only temporary intensification of her symptoms.
Dr Bridger in a report of 23 October 2000 stated that she had seen the worker on several occasions regarding her right shoulder. The first was on 17 July 1996 at which time a history of two months right shoulder pain was given. X-ray of shoulder and cervical spine were reported as normal and the worker was referred to Dr Stephen Kemp who diagnosed cervico brachial syndrome. The worker then presented on 18 April 2000 with pain for a few months. She was then referred to Dr Reece. Dr Bridger again saw her on 26 July 2000 after a motor vehicle accident the preceding day. She was complaining of feeling stiff generally with headache and stiff neck and shoulders with right-sided back pain. She also had a painful right eye. The examination was unremarkable apart from a painful right trapezius. The doctor thought that the right shoulder pain may have been caused or exacerbated by her employment as a registered nurse.
Attached to the application are itemised lists of invoices rendered by Dr Reece and Charlestown Physiotherapy. In relation to Dr Reece the amount is $1,664.60 with the amount for physiotherapy being $3,620. These two amounts comprise the section 60 expenses claimed in the Application. I have not been able to ascertain how the amount claimed in respect of Dr Reece is calculated from the list attached to the Application.
A letter of the physiotherapist, Ruth O’Keefe, dated 4 May 2006 was admitted by consent at the Arbitration. She stated that the worker had been coming for treatment to her right shoulder at fortnightly intervals for some time. Treatment was aimed at pain relief but mainly stretching and mobilisation to maintain range of movement. At the end of 2004 it had been attempted to stretch the intervals to monthly, but the worker reported an increase in both pain and stiffness. Accordingly the physiotherapy reverted to fortnightly which the worker felt she still required.
In a reply filed on behalf of Mayne the employer referred to prior proceedings in the Commission namely WCC 7627 of 2005 which it stated were discontinued. The parties to that matter were said to be Louise Haworth and HCOA Operations Pty Ltd. The dispute details are given by the employer’s solicitors as follows:
“ALL ISSUES IN DISPUTE FOR THE REASONS DISCLOSED IN DOCUMENTS IN EVIDENCE. IN PARTICULAR IT SHOULD BE NOTED THAT EMPLOYMENT, INSURANCE, INJURY, NOTICE OF INJURY, CLAIM FOR COMPENSATION, CAUSATION, SUBSTANTIAL CONTRIBUTING FACTOR, ESTOPPEL AND WHETHER ANY ALLEGED SECTION 60 EXPENSES ARE REASONABLY NECESSARY REMAIN AS ISSUES IN DISPUTE.”
Attached to the reply is the reply on behalf of the employer in the prior proceedings together with a number of documents produced under subpoena in those proceedings. In the reply lodged in Matter 7627-05 the issues in dispute are stated as follows:
“ALL ISSUES IN DISPUTE FOR THE REASONS DISCLOSED IN DOCUMENTS IN EVIDENCE. IN ADDITION MAYNE GROUP LIMITED DISPUTES EMPLOYMENT AS ALLEGED AND DISPUTES THAT IT WAS THE INSURER OF THE RESPONDENT AS ALLEGED OR AT ALL.”
Attached to that reply inter alia are letters of Mayne dated 16 April 2004, Employer’s Report Form dated 27 November 2000, Incident/Injury Form dated 27 November 2000, letter of Mayne dated 6 September 2001 and the Employee’s Compensation Claim dated 20 April 2001.
Mayne wrote to Charlestown Physiotherapy on 16 April 2004 as follows:
“Attached is an invoice which was forwarded to Mayne Group workers’ compensation for payment.
Please be advised that Ms Haworth doesn’t have a current claim with Mayne Group. Claim reference 272940 was closed July 2003.”
The Employer’s Report Form is headed Mayne Nickless Limited and the name of the business activity is given as Mayne Health – Warner’s Bay Private Hospital. The name of the worker in this form is stated to be “Hardes-Haworth [Hardes appears to have been the worker’s maiden name].” The form is signed by a person on behalf of the employer and is dated 27 November 2000. It appears from what follows in this form that the signature on behalf of the employer is that of one Helen Speed who is stated to have been the worker’s supervisor.

The Incident/Injury Notification Form is obviously headed in the same way as the Employer’s Report Form although in the photocopying part of it has been obliterated. The heading is Mayne Nickless Limited ACN 004 073 410.
On 6 September 2001 Mayne wrote to the worker declining liability to make payments of compensation on the basis that her employment was not a substantial contributing factor to the injury which she alleged. Reliance is placed on a report of Dr Smith as supporting the declinature of liability.
A report of Dr Anthony Smith, an orthopaedic surgeon, dated 5 June 2001 was also attached. The worker described pain in her right shoulder running up her neck. She described having pain between the shoulder blades and paraesthesia in the right hand. She said there had been surgery in January that year and she was off work for about three months. She went back to work and did three shifts and her symptoms she said more or less returned. There was a motor vehicle accident on 25 July 2000 when she injured her shoulder and neck. She was driving a car which was hit from the rear and she was off work for three weeks. Her symptoms were made generally worse by this accident. She did however tell the doctor that there was swelling of the neck after the accident as well as her shoulder and then the symptoms settled down after about three weeks to about what she was suffering before the accident. Dr Smith considered that rotator cuff disease was an unusual and uncommon diagnosis for a woman of the worker’s age (38) and it was more likely than not that her symptoms came from the cervical spine. He thought that ultrasounds were not terribly reliable. He doubted the diagnosis in this case. He thought she had constitutional degenerative disease in the cervical spine and that was the explanation for her symptoms. He thought there was no real relationship between her then condition and her employment at Warner’s Bay Private Hospital. There was no precipitating accident or injury.
Attached to the reply are documents produced under directions to produce by Drs Kemp, Bridger, Wood and Reece together with documents from the John Hunter Hospital and AAMI. These are voluminous and it is not necessary to set these out in full. (It appears that AAMI was the Compulsory Third Party (‘CTP’) insurer in respect of the motor vehicle accident on 25 July 2000).
On 3 April 2006 the employer sought to rely on the documents produced by GIO as workers compensation insurer of the John Hunter Hospital and on 10 May 2006 the documents produced by the worker, Dr Bridger and Dr Wood. The documents produced by the worker consist of copy tax returns, Notices of Assessment and the like for a number of years. The purpose of seeking to rely on these in these proceedings is obscure.
Included in the records produced by Dr Bridger is a letter of Dr Reece dated 5 September 2005 which in part says the following:
“Her ongoing disagreement with Mayne Health has got worse and she has now changed solicitors and I will have to do another report for them. I need to keep seeing her on a three monthly basis to continue to fill in her ING forms as they need a specialist to do it and I don’t understand why.”
(ING, it appears, was the worker’s personal injury insurer).
The employer had the work examined by two specialists on 6 April 2006, Dr Lloyd Hughes, an orthopaedic surgeon and Dr Kim Edwards, a surgeon. Dr Hughes considered that the worker was suffering from a degenerative rotator cuff lesion of the shoulder, compounded by unsuccessful surgery. He did not think she had suffered any injury at all as a result of her work between 1997 and 2001. He thought the physiotherapy which she had been undergoing was not related to any injury.
Dr Edwards thought there had been a gradual worsening of her symptoms over the year although there was no incident or injury described and the worker told him that she had had a motor vehicle accident in July 2000 of which she said “that was nothing”. The doctor considered that there may have been some aggravations of underlying changes over a period of time both in her everyday activities and at work. He thought that such aggravations would be of limited duration. He did not think that her work between 1997 and 2001 represented a substantial contributing factor to any alleged injury. He did not think she required ongoing treatment as a result of her employment by Mayne. He did not think that she required ongoing physiotherapy specifically. He thought she would be able to carry out appropriate exercises at home.
In Dr Bridger’s records is a report of Dr Stephen Kemp, orthopaedic surgeon, dated 26 August 1996. He took a history that the worker had developed a gradual onset of right posterior scapular pain 12 months before which coincided with the sickness of her young daughter. More recently she had been troubled by paraesthesia running down the arm into the fingers with certain activities through the day. The worker told him that she still slept with her daughter and as a result slept awkwardly. Dr Kemp concluded that the worker had a cervicobrachial syndrome. He thought that no specific treatment had been shown to reliably alter the long term course of this problem. Generally speaking he said he would normally advise stretching and exercises to maintain good postural control of the scapula. He counselled the worker that it would be a good idea to “dump the baby in the back bedroom”.
Dr Graham, occupational physician, had seen the worker at the request of GIO and also at the request of ING. Dr Graham saw the worker at the request of the solicitors for GIO on 1 July 2002. I assume that what is relied on by the employer in this case is the apportionment made by Dr Graham, namely that she had 10 per cent permanent loss of the use of the right arm at or above the elbow, which he apportioned as 2 per cent to the nature and conditions of her employment with the Hunter Area Health Service (John Hunter Hospital), 4 per cent to the motor vehicle accident of 25 July 2002, one per cent each from her employment from Christo Road Private Hospital and Warner’s Bay Private Hospital and two per cent to her employment prior to the Hunter Area Health Service.
Dr Sage, orthopaedic surgeon, saw the worker at the request of GIO on 22 May 2001. That doctor found 20 per cent loss of efficient use of the right arm at or above the elbow and under the heading “Apportioning” has said: “We would need to take into account previous time at John Hunter Hospital in addition to Warner’s Bay Hospital.” He thought that employment had been a substantial contributing factor as a result of the nature of the work in recovery at Warner’s Bay Hospital and also John Hunter Hospital.
At the hearing on 17 May 2006 it appears that some part of the proceedings was not recorded however the oral submissions of the parties do appear to have been substantially reproduced. It appears the evidence given by the worker was not recorded.

WORKER’S SUBMISSIONS BEFORE THE ARBITRATOR

Counsel for the worker made criticisms of the opinions offered by Drs Edwards and Hughes, he said however that he did not address injury because it was clear from the material (before the Arbitrator) that the worker did sustain an injury in the course of her employment. He submitted that the end result was that the treatment that the worker claimed was reasonable and necessary.

EMPLOYER’S SUBMISSIONS BEFORE THE ARBITRATOR

The employer’s advocate who was not identified submitted that there were two issues, the first being causation and the second being reasonable necessity. Reference was made to the attendance of the worker on Dr Bridger in 1996 and the history given to that doctor on that occasion. Reference was also made to the motor vehicle accident and the effects of that. It was submitted that the worker had not proved her case, that is, establishing that the employment alleged against the employers was responsible for the need for the treatment as opposed to other factors including earlier employment. The Arbitrator was asked to look at the voluminous material produced. It is not clear however that the attention of the Arbitrator was directed to any particular part of that material.
The employer’s advocate then went on to the question of whether the treatment was reasonably necessary with particular reference to physiotherapy. Reference was made to the reports of Dr Sage and Dr Graham. It is submitted that the worker could not continue to go on and have treatment that results in a continuing pattern of non-improvement and it was necessary to draw the line. The physiotherapy was said to be “way over the top” and not required.

ARBITRATOR’S REASONS FOR DECISION

The Arbitrator’s reasons in relation to the determination he made were ex tempore and brief and accordingly I will set them out in full:
“In these proceedings, the applicant seeks payment of section 60 expenses in the sum of $5,704.60 less payments made by the respondent. The parties are agreed that the issues before me are those of causation, reasonableness and necessity of the treatment. The issue of estoppel hasn’t been pursued, but the insurer asserts, and the applicant’s counsel agrees, that the previous Terms of Settlement in this matter of 10 October 2002 do not give the applicant an automatic entitlement to section 60 expenses that is ongoing and everlasting.
In addition, another issue was the identity of the defendant – sorry, the respondent, and that has been overcome by agreement between the parties, and I propose to make orders embodying the parties’ agreement that the name of the respondent be changed to Mayne Group, trading at Warner’s Bay Private Hospital and Christo Road Private Hospital.
The applicant gave evidence before me which I found to be credible and convincing. I found her description of the trial of the lesser frequency of physiotherapy to be responsible and appropriate under the circumstances.
In respect to the issue of causation, the respondent relies on the reports of Dr Graham and Dr Sage, which are both attached to the reply and also contained the material produced by the Government Insurance Office. That material, it seems to me, predates the agreement of 10 October 2005, and I accept Mr Lowe’s submission that those reports, therefore, should be considered in that light in terms of the apportionment between the respondents and the agreement that was implemented on that occasion. In addition, the respondent also relied on the report of Dr Edwards and Dr Hughes, and I accept the criticism of those reports by Mr Lowe, namely, in respect of Dr Edwards that the doctor had incorrectly observed at page 5 of that report:
I do not think she requires ongoing physiotherapy specifically, she would be able to carry out appropriate exercise at home.
The doctor apparently did not take a full and accurate history from the applicant that she had since after the operation by Dr Reece undertaken the exercises that were given to her by the physiotherapist and continued to do so and this was a facet in the trial of the reduced physiotherapy frequency.
In relation to the report of Dr Hughes, I agree with the submission of Mr Lowe in respect of that and also I am somewhat disturbed that the doctor has, in fact undertaken an opinion in relation to what appears to be my function as to whether the applicant’s condition is not related to any work injury. I prefer the medical opinion of Dr Reece, the applicant’s treating doctor, of 20 September ’05 where she says:
Louise continues to have ongoing problems of the right shoulder with decreased range of motion and ongoing pain in the right shoulder. I believe she is not fit to return to work with her shoulder in this condition. I believe ongoing physiotherapy is essential for her to keep the symptoms under control as when she does not have the physiotherapy her symptoms increase and the pain increases. I believe that her condition would deteriorate further if she did not have the ongoing maintenance physiotherapy.
This accords with the applicant’s oral evidence before me and, despite that fact that it may be frustrating for the respondent not after all this time to see any measured improvement in the applicant’s condition despite an ongoing and consistent regime of physiotherapy and review by Dr Reece, nevertheless, it seems to me that this is a condition which, as Dr Reece has indicated, is continuing, does not seem to abate, but I do accept the applicant that the attempt that she had to reduce the frequency of physiotherapy was a valid and convincing attempt to try and limit the expense to the respondent in this particular instance.
It may well be, as Mr Lowe has indicated, that these problems stem not so much from the underlying condition but in relation to the surgery to attempt to alleviate them. However, it seems to me under the circumstances the applicant’s treatment that is set out in the schedule that has been placed before me and totalling $5,704.60 is reasonable and necessary and, accordingly, there will be an award for the applicant that the respondent pay the applicant’s section 60 expenses in the sum of $5,704.60, and the respondent be given credit for any payments it has made.
I amend the name of the respondents to Mayne Group Limited t/as Warner’s Bay Private Hospital and Christo Road Private Hospital, and the respondents to pay the applicant’s costs as agreed or assessed.”
At the conclusion of the Arbitrator’s reasons counsel who appeared for the worker drew the Arbitrator’s attention to the date of the Terms of Settlement which was 10 October 2002 rather than 10 October 2005.

SUBMISSIONS ON APPEAL - DISCUSSION AND FINDINGS

The employer has relied on no fewer than 13 grounds of appeal and has purported to reserve the right to finalise submissions and grounds of appeal on the hearing date. This makes the quite unwarranted assumption that there will be a hearing. I note that Deputy President Fleming has deal with a similar matter in Toll Stevedoring Pty Ltd (in the interests of Toll Pty Ltd) v Sammut and anor [2006] NSWWCCPD 232. That matter involved the same solicitor as in this case. The learned Deputy President decided, as I have, that the appeal could be dealt with on the papers notwithstanding the submission on behalf of the employer. Subsequent submissions were received from the employer when the (incomplete) transcript was received by it and I intend to address each of the grounds of appeal in order with the submissions made on behalf of the worker and my findings as to each ground of appeal.
The first ground of appeal relates to the Arbitrator erring in allowing the worker leave to amend the application to change the identity of the employer. The worker responds that there had been prior proceedings between the parties which give rise to an award against the employers. The employers had, it is said, apparently changed their names but this had not at any stage been raised as a real issue in the proceedings. The employer’s representative was well aware of the correct form of identity of the employer and no substantial objection was raised at the hearing before the Arbitrator. Indeed this appears to have been a matter of agreement between the parties. This ground has not been made out in my opinion.
The second ground relates to the Arbitrator considering as evidence material which was not in evidence. In reply to this the worker submits that the relevant material is not identified and thus it is not possible to respond to this ground. I am entirely in agreement with the worker’s submissions in this regard. This ground is not made out.
The next ground of appeal refers to the alleged failure to afford the employer natural justice and procedural fairness. The response of the worker to this is as in the preceding paragraph namely that there are no particulars of such alleged failure. In the circumstances this ground is not made out.
The employer next refers to evidence being adduced which was outside evidence admitted in the proceedings. The response of the worker is as in the preceding two paragraphs namely that such further evidence has not been specified. The worker relies on section 354 of the 1998 Act which provides relevantly as follows:
“Proceedings in any matter before the Commission are to be conducted with as little formality and technicality as the proper consideration of the matter permits.
(2) The Commission is not bound by the rules of evidence but may inform itself on any matter in such manner as the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits.”
The point is made on behalf of the worker that the employer’s representative had an opportunity to cross examine the worker but elected not to do so. This ground fails.
The next ground relates to the Arbitrator’s alleged failure to have proper regard to the requirement that the worker prove disputed issues of:
–Employment
–Insurance
–Injury
–Notice of injury
–Claim for compensation
–Causation
–Substantial contributing factor
–Estoppel
–Whether section 60 expenses reasonably necessary.
It is also alleged that the Arbitrator failed to have any proper regard to the evidence in respect of these issues. In response to this it is submitted on behalf of the worker that the objectives of the Commission are set out in section 354(3) of the 1998 Act which is as follows:
“The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.”
The worker relies on the employer’s advocate’s opening statement that causation and reasonable necessity were the issues to be determined. The parties are bound by their conduct at the arbitration and it is not appropriate to seek to rely on matters which are formally in issue in the documents filed but which are not ultimately pressed and addressed on. This ground similarly fails.
The next ground relates to the failure to give adequate reasons for determination and the findings made in regard to the issues in dispute. In response to this the worker refers to the obligation of an arbitrator to provide adequate reasons for decision. The requirements of section 294(2) of the 1998 Act is also referred to. Reference is made to what was said by the learned Deputy President in McMahon v Lagana & Anor [2003] NSWWCCPD 22. Deputy President Fleming made the point in that matter that the Commission was not a court and proceedings were to be conducted with as little formality and technicality as the proper consideration of the matter permitted. This was consistent with the objectives of the Commission to provide a speedy resolution to workers compensation disputes. It is submitted in accordance with what the Deputy President held in that matter that it is necessary for the employer to demonstrate not only that the reasons are inadequate but the inadequacy sufficiently demonstrates that the Arbitrator has failed to exercise his or her statutory duty to fairly and lawfully determine the application. The point is fairly made that whether there is a deficiency of reasons and whether that deficiency warrants an inference that the Tribunal has not exercised its jurisdiction in accordance with law is a matter of judgment about which minds may reasonably differ.
I have set out in paragraph 50 the reasons given by the Arbitrator. These are relatively short however the issues before him were relatively simple, despite the submissions now made on behalf of the employer. It is this aspect of the matter which has caused me most concern. There was a causation issue as to which the employer’s representative asked the Arbitrator to look at the material produced which was conceded to be voluminous. The Arbitrator’s attention was not directed to any part of that material. It is regrettable that the employer’s representative did not refer the Arbitrator to those matters which were sought to be relied on. It is obviously unsatisfactory to expect an Arbitrator to fossick through extensive material in order to find relevant evidence. It was submitted on behalf of the employer before the Arbitrator that causation was an issue and reference was made to the worker’s earlier employment with John Hunter Hospital and also the subsequent motor vehicle accident.

The employer relied on the report of Dr Kim Edwards, surgeon, dated 6 April 2006. The conclusion was she had right shoulder symptoms for many years as far back as 1996. He thought she did not have any ongoing aggravation related to her employment at Christo Road or Warner’s Bay Private Hospitals.
Dr Lloyd Hughes, orthopaedic surgeon, considered that the worker had a degenerative rotator cuff lesion. He was of the opinion that she was involved in a non-work related motor vehicle accident on 26 July 2000 which he thought worsened her symptoms although she did not disclose that to that doctor.
I have referred in paragraph 27 to the report of Dr Bridger, the worker’s general practitioner, relating to a consultation on 17 July 1996 with a history of two months right sided shoulder pain and the subsequent referral to Dr Stephen Kemp. So far as any injury prior to July 1996 is concerned it seems to me that the effects of such injury had subsided since there is no history of further complaint until April 2000.
Contained within the documents produced by AAMI, the CTP insurer, is a report of Dr Reece to GIO dated 23 May 2001. In that report the doctor says relevantly that she (the worker) “was initially responding to physiotherapy and injections to the right subacromial space as a combined management, however on 25 July 2000 she was involved in a motor vehicle accident which made her shoulder play up again and it did not settle following this incident.” It does seem to me that the Arbitrator did not direct any attention in his reasons to the part which the motor vehicle accident may have played in the worker’s continuing need for treatment. In that regard I consider his reasons are inadequate. There is another area in which I think the Arbitrator’s reasons are inadequate and that is in relation to the services rendered by Dr Reece. I have already referred in paragraph 40 to what Dr Reece stated is the reason for continuing to see the worker at three monthly intervals, namely to supply certificates to ING Life Limited. This was not brought to the attention of the Arbitrator as it should have been. Apart from this, upon a brief perusal of the itemisation of Dr Reece’s charges it would be apparent that a number of reports have been charged for. I am not in a position to say whether those reports have been included in the treatment expenses allowed by the Arbitrator under section 60. I also note that there is an item in relation to an aspiration carried out on 8 March 2004. Dr Reece’s notes for 8 March 2004 show an injection into the left elbow. What this has to do with the present claim is obscure. This is another matter in which in my opinion inadequate assistance was given to the Arbitrator by the parties, especially those representing the employer.
I conclude that the Arbitrator erred in failing to give adequate reasons as to his decision and in failing to address the totality of the evidence before him. In my opinion it is thus not necessary to consider the further grounds of appeal relied on.

DECISION

The decision of the Arbitrator dated 18 May 2006 is revoked and the matter is remitted to the Arbitrator concerned for determination afresh in accordance with these reasons.

COSTS

Although the Appellant employer has been successful on this appeal I do not consider it is appropriate to make an order for costs against the Respondent worker. I have already indicated that greater assistance could have been provided to the Arbitrator by the employer’s representative at the hearing and had this been done the present appeal may not have been necessary. It appears a number of issues have been pursued on appeal which have no real merit. Accordingly I make no order as to the costs of the appeal.

Anthony Candy
Acting Deputy President
27 September 2006

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

ASSOCIATE