The Bright Group Pty Ltd v Akdeniz
[2009] NSWWCCPD 113
•14 September 2009
| WORKERS COMPENSATION COMMISSION | ||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||||
| CITATION: | The Bright Group Pty Ltd v Akdeniz [2009] NSWWCCPD 113 | |||||
| APPELLANT: | The Bright Group Pty Ltd | |||||
| RESPONDENT: | Sabire Akdeniz | |||||
| INSURER: | QBE Workers Compensation (NSW) Limited | |||||
| FILE NUMBER: | A1-5986-08 | |||||
| ARBITRATOR: | Mr D Minus | |||||
| DATE OF ARBITRATOR’S DECISION: | 30 March 2009 | |||||
| DATE OF APPEAL DECISION: | 14 September 2009 | |||||
| SUBJECT MATTER OF DECISION: | Mistreatment of the evidence; partial incapacity, section 40 award | |||||
| PRESIDENTIAL MEMBER: | President Judge Keating | |||||
| HEARING: | On the papers | |||||
| REPRESENTATION: | Appellant: | QBE In House Legal | ||||
| Respondent: | Thomas Booler and Co | |||||
| ORDERS MADE ON APPEAL: | 1. Time to appeal is extended to 30 April 2009. 2. The Arbitrator’s decision dated 30 March 2009 is confirmed. | |||||
| 3. The Appellant is to pay the Respondent’s costs of the appeal. | ||||||
BACKGROUND TO THE APPEAL
On 30 April 2009 The Bright Group Pty Ltd (‘the Appellant/Bright Group’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 30 March 2009.
The Respondent to the appeal is Ms Akdeniz (‘the Respondent/Worker’).
Ms Akdeniz commenced proceedings in the Commission on 31 July 2008, filing an Application to Resolve a Dispute. She alleged injury as a result of using a press machine on 4 September 2003 and as a result of the nature and conditions of employment for an unspecified period. She claimed weekly compensation payments of $601.57 from 1 October 2004 to date and continuing and lump sum compensation under section 66 of the Workers Compensation Act 1987 (‘the 1987 Act’), in respect of 35% whole person impairment (‘WPI’), compensation for pain and suffering under section 67, calculated at 90% of a most extreme case ($45,000.00), and a general order under section 60.
On 4 September 2008, Bright Group filed an Application to Admit Late Documents, annexing its Reply. It denied Ms Akdeniz had a whole person impairment as a result of injury on 4 September 2003, or as a result of the nature and conditions of her employment. It denied that she had, or would suffer pain, commensurate with 90% of a most extreme case. Bright Group alleged that Ms Akdeniz had refused to return to work despite her doctor certifying she was fit to do so for restricted hours, or restricted days per week, and that she had a “significant residual earning capacity”.
The matter was listed for a conciliation/arbitration hearing on 3 October 2008, after which a ‘Certificate of Determination – Consent Orders’ issued dated 9 October 2008. This included orders and directions in relation to the filing and issuing of Directions for Production, and the filing and serving of additional evidence and wage schedules. The following injuries were referred to the Registrar for referral to an Approved Medical Specialist (‘AMS’), to assess WPI:
“8. The Applicant suffered injury to her Cervical spine, right upper extremity (shoulder) and left upper extremity (shoulder), as a result of the nature and conditions of her employment from 11/9/1998 to 12/9/2003 with a deemed date of injury of 12/9/2003. The respondent has not disputed liability for this injury.”
On 28 November 2008, Dr Breit, orthopaedic surgeon, and AMS issued a Medical Assessment Certificate (‘MAC’) certifying 6% WPI for the cervical spine and 4% WPI for the right upper extremity and 0% WPI for the left upper extremity.
On 22 January 2009, a Direction was issued listing the matter for conciliation/arbitration hearing on 18 February 2009.
At the conciliation/arbitration hearing both parties were represented by counsel. Prior to the arbitration commencing the parties reached agreement in respect of the claims under sections 66 and 67. Bright Group agreed to the entering of an award in Ms Akdeniz favour in respect of 10% WPI ($12,500.00) under section 66 in accordance with Dr Breit’s MAC and $7,500.00 under section 67 for pain and suffering.
The parties were unable to resolve the claim for weekly compensation benefits and the matter proceeded to arbitration hearing. No oral evidence was called but both parties made oral submissions. At the conclusion of the hearing, the Arbitrator reserved his decision and issued a Certificate of Determination and a Statement of Reasons (‘Reasons’) on 30 March 2009. It is from this decision that the Appellant now seeks leave to appeal.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, 30 March 2009 dated records the Arbitrator’s orders as follows:
“The Commission determines:
1. There is an award for the Applicant in respect of the claim [for] permanent impairment [and] for weekly compensation. The Respondent is to pay the Applicant, pursuant to s 40 of the 1987 Act, as follows:
(iii) $328.90 from 1/10/2004 to 31/3/2005
(iv) $334.10 from 1/4/2005 to 30/9/2005
(v) $340.90 from 1/10/2005 to 31/3/2006
(vi)$347.90 from 1/4/2006 to 30/9/2006 except for the period from 31/6/2006 to 31/8/2006 for which the award is $100
(vii) $354.40 from 1/10/2006 to 31/3/2007
(viii) $361.30 from 1/4/2007 to 19/9/2007
(ix) $334.18 from 20/9/2007 to 30/4/2008
(x) $286.90 from 1/5/2008 to date and continuing.
2. The Respondent is to pay to the Applicant as lump sum compensation under section 66 of the Workers Compensation Act 1987, the sum of $12,500.00 in respect of 10 per cent permanent impairment as conclusively assessed as a percentage of whole person impairment by Dr Robert Breit, AMS as set out in the Medical Assessment Certificate dated 28/11/2008.
3. The Respondent is to pay compensation of $7,500.00 for pain and suffering pursuant to s.67 of the Workers Compensation Act 1987, by agreement between the parties.
4. There is an award for the Applicant in relation to her claim for medical expenses and the Respondent is to pay the Applicant’s reasonable medical expenses, pursuant to s.60 of the Workers Compensation Act 1987 on production of accounts and receipts and HIC notice of charge.
5. The Respondent is to pay the Applicant’s costs as agreed or assessed.
6. I certify that this was a complex matter and determine that pursuant to Clause 11(a) of Schedule 6 of the Workers Compensation Regulation 2003 that in respect of both the Applicant’s and the Respondent’s costs that a percentage increase of 10% be applied.”
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by 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.
LEAVE TO APPEAL
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 initially lodged in time on 27 April 2009, in compliance with section 352(4) of the 1998 Act, however, the Commission registry rejected it because it was lodged on an “old form”.
The Appellant refiled the appeal using the Commission’s current form on 30 April 2009. By that date, it was outside (by two days) the period of twenty-eight days within which an appeal can be lodged, pursuant to section 352(4) of the 1998 Act. The covering letter confirmed that the appeal had originally been lodged in time, but due to an error it was filed on an old form and was relodged on the current form.
The Registrar, by her delegate, registered this appeal and issued a direction dated 5 May 2009, setting out the timetable for filing and service of documents in the appeal proceedings.
On appeal, the Respondent submits that it was served with an unsealed copy of the Application to Appeal dated 27 April 2009, but was not served with a sealed copy and in the event that the appeal is out of time, the Appellant has not explained the delay and leave to appeal should be refused.
The Appellant requires an extension of time pursuant to Part 16, Rule 16.2(11) of the Workers Compensation Commission Rules 2006 (‘the Rules’), if leave to appeal is to be granted. That rule provides:
“The Commission constituted by a Presidential member may, if a party satisfies the Presidential member, in exceptional circumstances, that to lose the right to seek leave to appeal would work demonstrable and substantial injustice, by order extend the time for making an appeal.”
The original appeal was filed within time but was rejected for a very minor procedural irregularity. The minor differences between the previous Commission appeal form and the current form are not, in my view, such to necessitate the appeal being rejected, and the decision to do so was not appropriate. Had the appeal not been rejected it would have been filed in time. I am therefore satisfied that the inappropriate rejection by the Commission of the original appeal application constitutes “exceptional circumstances” and that it is appropriate to extend time to appeal.
Time to appeal is extended to 30 April 2009.
Leave to appeal is granted.
FRESH EVIDENCE
Neither party seeks to rely on new and/or additional evidence.
EVIDENCE
Ms Akdeniz’s evidence
Statement Evidence
Ms Akdeniz relied on a signed, but undated statement, which was admitted into evidence by consent, subject to the exclusion of a small passage in paragraph 25, (T3:14).
Ms Akdeniz migrated to Australia at the age of 16 years. She had a “rudimentary education” in Turkey, leaving school at the age of 13 years. She had no further education in Australia. She cannot read or write English, but can understand some spoken English.
She has two children aged 16 and 27 years.
Her work history in Australia included work in a small clothing factor for a couple of years, two years of process work, following which she commenced work with the Appellant in September 1998, also as a process worker. She was initially employed casually and secured permanent employment on 1 October 2002.
Her duties with the Appellant involved using a pressing machine for the entire shift. The process work also involved the fine use of both hands putting electrical components together, which were then soldered or welded by manually forcing the press onto them. Ms Akdeniz was required to lift her right arm above her shoulder to reach the press, which was heavy and required a lot of effort to use. The work was repetitive, constant and rapid. She also used a testing machine and a control machine, which were not as heavy as the press, but still required fine repetitive movement of both arms and hands.
By September 2003 Ms Akdeniz had pain in her right arm and hand and to a lesser extent in her left arm. She reported to Mr Aymberger, (presumably from Bright Group) her belief that operating the press machine and the use of fine material with her hands had caused her problems. Bright Group referred her to the company doctor on the same day, to whom she complained of stiffness in her right shoulder and right-sided neck pain. She also attended Dr Oner (general practitioner) on 12 September 2003 who put her off work for an unspecified time.
Ms Akdeniz commenced selected duties and performed these duties until December 2003 when she went to Turkey. In January 2004, when she returned from leave, she was placed on a rehabilitation program performing light duties, initially three hours per day and later increased to four hours per day.
She was referred to Dr Mahony in March 2004 and also attended Dr Capa, general practitioner.
In March 2004 she had further time off work to return to Turkey because her mother was ill. When she was not working she had some relief in her arms, shoulders, hands and neck.
After returning from Turkey in August 2004, she worked two weeks at three hours per day when the Appellant advised her that it no longer had suitable duties available. Her employment was terminated in October 2004.
She obtained a certification that she was fit for 4 hours per day in March 2006. She sought employment on this basis with the Appellant, but was informed that no positions were available for her.
She continued to be treated by Dr Mahony and continued to have problems with her neck, shoulders, right hand and left arm. She doubted that she could return to the heavy repetitive work she was performing with the Appellant.
She stated that Dr Acar, rehabilitation physician, provided a certificate certifying her fit for full pre-injury duties, after discussing various available options with her, between August and November 2004. He advised her that if she did not want to lose her job she had to return to full time work. She attempted full time work for two days but could not cope.
Ms Akdeniz stated that prior to 9 March 2006 she attended her employer twice seeking light duties. After Dr Acar certified her fit for pre-injury duties, she obtained a certificate from Dr Emin that she is fit for light work only. She has looked for work in the local area including jobs in shops and fast food stores. She has looked in the community paper, at Centrelink and at “employment shops”. She believes that she is fit for light process work on a restricted basis.
Medical evidence
Dr Acar, in a report dated 17 Novembers 2003 addressed to Dr Oner, noted that Ms Akdeniz’s right arm symptoms continued and although she complained of numbness in her fingers, physical examination revealed no objective neurological signs. He recommended an MRI scan and electrodiagnostic studies to exclude a cervical origin of her pain. He recommended she continue her modified duties under a return to work plan.
Dr Robert’s, radiologist, reported on a whole of body scan on 23 September 2003. He stated the cervical spine was normal. He noted increased uptake in both shoulders, slightly more in the right acromioclavicular joint. He concluded that the scan suggested arthritic changes in both shoulders and to a very mild degree in both knees.
An incomplete and undated report from Dr Dowla, a consultant in neurology and clinical neurophysiology, which appears to be missing at least the first page, was admitted into evidence. It included only graphs and tables, the results of electrodiagnostic studies, and the conclusion and opinion on the last page. The doctor concluded that there was no evidence of neuropathy or cervical radiculopathy. He stated that he had viewed an MRI of the cervical spine, which showed a “prominent CSF density outpouching at the C6/7 left side foramen”. Dr Dowla noted that this finding was inconsistent with her clinical presentation.
Dr Emin, general practitioner, in a report dated 1 May 2008 noted that Ms Akdeniz first consulted him on 14 September 2004 reporting a work related shoulder injury on 4 September 2003 with a history of repeated use of a press machine. Investigations revealed tendonitis, her prognosis was guarded and she required restricted duties for at least a few months. He recommended she not lift greater than 5kg and avoid repeatedly lifting her right arm above head height. He did not consider that her condition had stabilised.
Dr Mahony prepared a number of reports dated 15 March 2004(x2), 22 March 2004, 26 March 2003[sic-2004], 27 September 2004, 6 December 2004, 17 January 2005(x2), 29 June 2006(x2), 14 May 2008, and 1 July 2008.
The doctor recorded that in March 2003, Ms Akdeniz developed pain in her right neck and right shoulder. The pain worsened and she reported it on 4 September 2003. She was certified fit for reduced hours on light duties and was later seen by a rehabilitation physician who certified her fit for eight hours a day. Dr Mahony concluded from his examination that Ms Akdeniz had developed cervical strain with nerve root irritation affecting her right arm, capsulitis of the right shoulder and right ulna nerve neuritis and right carpel tunnel syndrome. He believed that her condition was consistent with the nature of her work. He initially certified Ms Akdeniz unfit for work for two weeks and in March 2004, certified her fit for a work trial of three hours per day two days per week avoiding significant bending or lifting and a 10-minute break every hour.
On 6 December 2004, Dr Mahony confirmed his diagnosis and added that there was also evidence of impingement syndrome in the right shoulder. Ms Akdeniz should restrict activities to avoiding significant bending or lifting for three hours per day three days per week.
Dr Mahony, in a report dated 29 June 2006 addressed to Dennis and Co, solicitors noted on examination that shoulder movements were normal with the exception of restriction of extreme internal rotation. He referred to various radiological reports. Ms Akdeniz had undergone a graded return to work and when he reviewed her on 22 September 2004, Ms Akdeniz was working six hours a day but complained the work was too much for her. He reduced her work hours to three per day three days per week. He noted in October she had worked only two to three hours and was unable to continue due to a worsening of her symptoms. Dr Mahony referred Ms Akdeniz back to Dr Capa to monitor her work capacity throughout 2005 and 2006. He repeated his previously expressed opinion as to diagnosis as detailed in [42] above, and added “the nature of her work had produced such lesions.” To avoid exacerbation, he recommended that Ms Akdeniz:
“restrict future activities not involving significant bending or lifting working a maximum of 20 hours weekly with a 10 minute break every hour.”
In a separate report dated 29 June 2006, the doctor assessed a 22% WPI as a result of impairment of her neck and right arm.
Dr Mahony prepared a further report dated 14 May 2008 addressed to Ms Akdeniz’s current solicitors. He noted that since his report dated 29 June 2006 he had examined Ms Akdeniz on 13 September 2006. When he examined her on 12 May 2008, she complained of difficulty performing home duties. She attended Dr Emin and a psychologist. Dr Mahony restated his opinion as to diagnosis and also suggested Ms Akdeniz had symptoms of low back strain radiating into her right knee suggesting “tension in the low discs”. He recommended she work for three hours per day three days per week.
In a separate report, he assessed 35% WPI including impairments of the neck, right arm, left arm, right leg and lumbar spine.
Dr Harvey, general practitioner, at the same practice as Dr Emin, prepared a brief report dated 2 July 2008. He noted that she complained of pain in her neck, both shoulders, the right more than the left, and right arm pain and parasthesia. Dr Harvey believed that she had chronic neck sprain and nerve root irritation and right shoulder bursitis. Her prognosis was for slow healing, with possible exacerbations of pain triggered by lifting and bending. On 19 March 2008 she also complained of chest and upper back pain.
Bright Group’s evidence
Bright Group relied on a number of reports from ‘Injury & Occupational Heath Management’ (‘IOH’). A report titled “RTW-Progress Report” dated 6 February 2004, noted that Dr Acar opined that, based on investigations, Ms Akdeniz was capable of performing her pre-injury duties and she was to be upgraded to pre-injury hours over the next four weeks.
Dr Acar, in a report dated 1 April 2004, noted that on assessment the right shoulder impingement signs and rotator cuff signs were more prominent as compared with the diffuse background pain. There were no neurological abnormalities and he concluded that a cervical cause of her right upper limb pain was highly unlikely. She also complained of other pains that were difficult to diagnose but there were no signs of complex regional pain syndrome. Ms Akdeniz was working very light duties of four hours per day and that the return to work program was to upgrade the hours to six hours per day. He recommended physiotherapy and hydrotherapy. He also thought that an MRI of the shoulder should be considered.
In a WorkCover medical certificate dated 1 April 2004, Dr Acar certified Ms Akdeniz fit for suitable duties from 1 April 2004 to 29 April 2004 with a lifting limit of 2.5kg and limitation on overhead activities.
IOH in a report dated 22 April 2004, noted that Dr Acar had certified Ms Akdeniz fit for a suitable duties programme of upgrading to full duties, but that Ms Akdeniz had also produced a certificate from Dr Mahony certifying her only fit three hours per day for two days per week. IOH noted that Dr Acar thought that Ms Akdeniz was reporting symptoms consistent with rotator cuff injury and he recommended physiotherapy.
In a WorkCover medical certificate dated 23 April 2004, Dr Acar certified Ms Akdeniz fit for suitable duties of six hours per day five days a week from 22 April 2004 to 3 August 2004. The diagnosis was recorded as:
“right shoulder pain? rotator cuff? pericapsular overuse syndrome”
The IOH report dated 31 May 2004, titled ‘Return to Work–Case Closure’ recorded that Ms Akdeniz had participated in upgrading hours suitable duties programme but the day before she was due to commence her pre-injury hours (20 April 2004) she advised the work place that she was taking extended leave. The employer approved 5.2 days leave, which was the leave that she had accrued, however, she did not returned to work indicating that she would be absent overseas for three months. The report also outlined that Ms Akdeniz had been less than co-operative with the return to work programme and attended work sporadically, with many reported absences.
In a report dated 26 August 2004, Dr Acar, noted that after Ms Akdeniz returned from Turkey she complained that she was in “immense pain” and that in the last few months even domestics duties aggravate her arm. He recommended a functional capacity evaluation, physiotherapy and a referral to a WorkCover approved specialist for a second opinion.
From 26 August 2004 to 30 September 2004, Dr Acar certified Ms Akdeniz fit for work three hours per day, three days per week with a 1.5kg lifting limit. She was to avoid repetitive work and have a five minute break every 30 minutes.
A further ‘Return to Work-Case Closure’ report dated 12 October 2004, noted that IOH had compiled documents to be supplied to Dr Mills. Further it noted that Dr Acar had indicated that if his findings on examination on 11 October 2004 confirmed Dr Mills’ findings, he would issue a fit for pre-injury duties certificate.
On 11 October 2004 Dr Acar certified Ms Akdeniz fit for pre-injury duties. The certificate noted, “recent review by Dr Mills also considered prior to this assessment.” The doctor discharged Ms Akdeniz from his care in the “absence of a treatable condition being identified”.
Dr Mills, consultant physician in occupational medicine, prepared a number of reports for QBE dated 30 September 2004, 1 February 2007(x2) and 28 February 2008(x2).
Dr Mills recorded a history of the development of progressive pain in her right shoulder in 2002, which was initially intermittent but became constant from approximately September 2003. She first sought treatment in November 2003. Her work since 1998 was to assemble various electronic components screwing and soldering them standing at a bench working at shoulder height close to her body. She would assemble 3000 to 4000 items per day.
Dr Mills noted the results of a number of investigations. An ultrasound of the right shoulder dated 19 September 2003, showing thickening of the subdeltoid bursa during abduction, consistent with impingement. The whole body scan dated 23 September 2003, with findings suggested arthritic changes in both shoulders and very mild arthritic changes in both knees but no abnormalities were detected and the cervical spine appeared normal. An MRI of the cervical spine dated 22 December 2003 showed no evidence of significant disc protrusion, an outpouching of CFS density at the C6/7 left side foramen, which was considered a normal variant. There was no evidence of canal stenosis and the nerve roots looked intact. Dr Mills concluded that Ms Akdeniz did not have any significant organic pathology of her right shoulder and she was fit for her pre-injury duties.
Dr Mills re-examined Ms Akdeniz and prepared two reports dated 1 February 2007. He noted that she attended her general practitioner, Dr Capa, every three months and was discharged from Dr Mahony’s care three or four months ago. She had not had any physiotherapy for two years and her medication was Panadeine and occasional Nurofen and Mobic. He concluded that there was no indication that she had aggravated a pre-existing condition and if she has done so, any aggravation should have ceased. He considered her fit for her full pre-injury duties, without restriction. In a separate report of the same date, Dr Mills assessed a 0% WPI.
Dr Mills reported on 28 February 2008 that Ms Akdeniz had recovered from any injury sustained in September 2003. He noted that she had not worked since his previous examination and she was certified fit for selected duties at three hours per day, three days per week, although the nature of those duties were not specified. Two weeks prior she had applied for a job as a sandwich hand. Ms Akdeniz complained of pain in her neck and shoulder girdle, which limited her physical capacity. She reported that a number of domestic activities exacerbated her symptoms. Dr Mill confirmed his previously expressed opinion that Ms Akdeniz was fit for full pre-injury duties, but due to a combination of her age and lack of work fitness he recommended that she avoid prolonged and repetitive above shoulder work, heavy pushing and pulling and lifting greater than 5kg. The incapacity he attributed to a combination of constitutional factors and lack of work fitness and was unrelated to the injury at work on 4 September 2003.
In a separate report the doctor again certified a 0% WPI.
Approved Medical Specialist - Dr Breit
Dr Breit, issued a MAC on 28 November 2008.
Dr Breit noted that Ms Akdeniz’s duties were performed seated at a workbench. She used an overhead press, which pushed cables into connectors, and, although there was some variation of duties, she would use the press approximately 300 times per day.
Dr Breit noted that she reported problems in September 2003 and tried light duties for a short period of time before she was dismissed on 12 September 2003. This termination date is a typographical error, noting her employment was terminated in late 2004. In addition to the investigation reports referred to by the other examining doctors (see [61] above), Dr Breit had available a right shoulder ultrasound dated 22 February 2008, which showed some evidence of subacromial bursitis.
He diagnosed right cervicobracial pain, possibly associated with rotator cuff impingement. Dr Breit considered that her pain and level of disability was more than he would have expected and he did not believe that the complaint of right arm sensory alteration was organic in origin.
The doctor assessed a 6% WPI for the cervical spine and 4% WPI in respect of the right upper extremity, which totals 10% WPI as a result of the work injury.
Dr Breit also commented on Dr Mills’ reports noting Dr Mills considered that the distribution of Ms Akdeniz’s symptom complex was not explained by anatomical pathology and that her presentation on assessment was not consistent with clinically significant neck and shoulder pathology. Dr Breit stated: “He [Dr Mills] also feels that any problems have resolved.”
Dr Breit stated that he understood Dr Mills’ assessment but that he was required to assess Ms Akdeniz “as I find her today within the boundaries of WorkCover and AMA Guides.”
ARBITRATOR’S REASONS
The Arbitrator found that Ms Akdeniz:
(a) was a woman of small statue who had undertaken heavy work in assembling components and as a result of that activity had suffered injury to her neck and right shoulder (Reasons at [26]). These injuries had been assessed by Dr Breit who provided a WPI of 6% for the neck injury and 4% WPI for the right shoulder injury;
(b) had never resumed full-time pre-injury duties, despite a return to work program;
(c) was engaged in low skilled and repetitive process work and that she would “be limited in the type of work that is available to her on the open labour market and that she is partially incapacitated in a physical sense” ([32] Reasons);
(d) could perform work that was not heavy, but not work at above shoulder height, and
(e) had an ability to earn “…taking into account the Applicant’s limited skills and previous assessments of work capacity that have been made, I find that suitable work could be undertaken by the Applicant, 3 to 4 hour a day.” (Reasons at [35]).
The Arbitrator assessed Ms Akdeniz as partially incapacitated and entitled to an award under section 40. He noted that the parties had agreed probable weekly earnings of $619.25 per week for the period 1 October 2004 to 30 April 2008 and $605.90 from 1 May 2008 to date and continuing.
The Arbitrator assessed Ms Akdeniz’s ability to work 15 hours per week for the period 1 October 2004 to 19 September 2007 earning $244.35 per week, 17.5 hours per week for the period 20 September 2007 to 30 April 2008, earning $344.18 per week, and 20 hour as per week from 1 May 2008 to date and continuing, earning 286.90 per week.
He deducted these amounts from the agreed probable earnings figures. He found there was no basis to reduce the award further through the exercise of his discretion, however he did further reduced the award to $100.00 per week, for the period 31 June 2006 to 31 August 2006, when Ms Akdeniz was overseas. Before entering the award the Arbitrator made relevant adjustments to the monetary amounts so as to not exceed the statutory maximum under section 37(1)(a)(i).
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(1) failing to make a finding of injury or a finding as to the nature of the injury, and
(2) mistreating the evidence by:
a. failing to refer to, or give weight to, the opinion of Dr Acar;
b. rejecting the opinion of Dr Mills and giving flawed reasons for rejecting Dr Mills, and
c. ignoring Dr Breit’s comments in respect of Dr Mills’ report and the inconsistency of presentation.
SUBMISSIONS
Bright Group’s submissions
The Arbitrator’s failure to make a finding of injury and a finding as to the nature of the injury was relevant, given that the medical evidence was to “the effect that the worker’s presentation defied diagnosis”.
The Arbitrator failed to refer to Dr Acar’s certificate in which he certified Ms Akdeniz fit for pre-injury duties and he failed to refer to, or give any weight to, the MRI findings dated 22 December 2003.
Dr Mills, like Dr Acar, did not consider that Ms Akdeniz’s complaints were consistent with a specific shoulder pathology. Dr Mills at 30 September 2004, considered her fit for pre-injury duties and that she did not require any further investigations or treatment.
The Arbitrator failed to acknowledge that Dr Acar agreed with Dr Mills.
The Arbitrator’s reasons for rejecting Dr Mills, as set out in [27] of his Reasons were flawed. At [27] the Arbitrator stated:
“Despite a return to work program being attempted the Applicant never returned to full time pre-injury duties. Dr Mills in his first report considered that the Applicant was fit to perform her full pre-injury duties, as in his opinion, any injury she had sustained had resolved. That was an opinion that was contradicted by the assessment of impairment by the AMS. In his second report Dr Mills recognised that the Applicant was only able to work with restrictions on performing prolonged and repetitive above shoulder work, heavy pushing or pulling and not lifting more than 5-kilograms. But apart from that, he felt she was able to do full time duties.”
The Arbitrator overlooked the fact that Dr Breit was “in concord” with the opinions of Drs Mills and Acar. Dr Breit stated that Ms Akdeniz’s presentation was inconsistent with the history of injury.
Dr Breit’s statement “While I can understand his [Dr Mills’] assessment, causation is not at issue”, was a misconception. Causation was at issue at all times, “…including at the time of the referral…that the worker’s complaints could not be said to have any causal connection to an injury sustained at work.”
The Arbitrator did not refer to Dr Breit’s favourable mention of Dr Mills’ opinion that the problems had resolved. The question of incapacity should have been considered in the light of these critical matters.
“Dr Breit incorrectly felt that he was compelled to make a conclusion that the applicant’s complaints were the result of work injury, whereas in fact he was under no such compulsion.” (Appellant’s submissions at page 5-6).
But for this misconception, so it is argued, Dr Breit would have supported the proposition that none of Ms Akdeniz’s complaints were as a result of a work related injury.
The Presidential member on appeal is required to consider whether the evidence supports an incapacity for work resulting from the injury sustained at work.
The 10% WPI assessment by Dr Breit:
“does not assist in considering whether the applicant truly is suffering any effects of [a] work injury, nor the question of whether she was suffering the effects of any work injury on 1 October 2004 and thereafter.” (Appellant’s submissions in reply dated 24 July 2009).
Further, “the evidence supports the proposition that the worker has not at any time relevant to her application, suffered the effects of any work injury.”
The Appellant seeks the following orders:
(1) the Arbitrator’s award be set aside and an award entered in favour of the Appellant;
(2) a finding should be made, consistent with the weight of evidence that the effects of the work injury had resolved on or before 30 September 2004;
(3) pending the appeal, the Appellant be granted a stay and interest should not run during the stay, and
(4) Ms Akdeniz’s costs should follow the orders made on appeal.
Ms Akdeniz’s submissions
The Appellant seeks to dispute the fact that the Arbitrator had not made a finding of injury in the context of the following:
· the parties agreed that there had been an injury in the course of employment and for which compensation had been paid;
· the parties agreed to the referral to the AMS for assessment of WPI;
· Dr Breit assessed 10 % WPI as a result of the work injury, and
· the Appellant agreed to pay the claim under section 66 in respect of 10% WPI and also pay $7,500.00 for pain and suffering under section 67.
The Appellant’s submissions suggest that there had been an aggravation of a pre-existing condition, which has resolved.
The Arbitrator was only required to determine the level of incapacity as a consequence of the agreed workplace injury.
The Arbitrator was correct to find that Ms Akdeniz had been engaged in low skilled, repetitive process work and she would be limited in the work available to her on the open labour market and that she was therefore partially incapacitated.
The Arbitrator considered all the relevant medical material and entered the award accordingly. The award should not be disturbed on appeal.
DISCUSSION AND FINDINGS
Failing to make a finding of injury or a finding as to the nature of the injury
The submission that the Arbitrator erred in not making a finding of injury or a finding as to the nature of the injury is without merit.
Bright Group’s ‘Reply’, filed on 4 September 2008, did not place ‘injury’ in issue, but disputed the extent, if any, of permanent impairment resulting from the work injury.
As noted at [5] above, a ‘Certificate of Determination-Consent Orders’ dated 9 October 2008, issued after an conciliation/arbitration hearing on 3 October 2008, recorded that the parties agreed Ms Akdeniz suffered injury to her neck, and both arms as a result of the nature an conditions of her employment from 11 September 1998 to 12 September 2003, with a deemed date of injury of 12 September 2003. It was expressly stated in order (8) in those Consent Orders, “[t]he respondent has not disputed liability for this injury” (see [5] above).
The referral to the Registrar for referral to an AMS was in compliance with the statutory requirement under section 321(4)(a) of the 1998 Act, which prohibits the Registrar referring a medical dispute concerning permanent impairment where liability is at issue or has not been determined.
It is therefore apparent that the parties reached agreement on injury six months prior to the arbitration hearing on 18 February 2009.
Dr Breit’s MAC was not the subject of an appeal under section 327 of the 1998 Act and is therefore conclusively presumed to be correct as to the degree of permanent impairment as a result of an injury (section 327(1)(a) of the 1998 Act).
Section 66(1) provides:
“A worker who receives an injury that results in permanent impairment is entitled to receive from the worker’s employer compensation for that permanent impairment as provided by this section. Permanent impairment compensation is in addition to any other compensation under this Act.”
The word “permanent” has been held to mean “will persist in the foreseeable future” (see Brown v Grafton Base Hospital (2002) 24 NSWCCR 45 at [141]-[142]).
The transcript of the arbitration proceedings of 18 February 2009, discloses that prior to the arbitration hearing commencing, Bright Group’s legal representative agreed to an award being entered in Ms Akdeniz’s favour for compensation for permanent impairment under section 66 in accordance with Dr Briet’s assessment and $7,500.00 for pain and suffering under section 67 resulting there from.
Contrary to Bright Group’s submission that Ms Adkeniz’s presentation “defied diagnosis”, Dr Breit diagnosed cervicobrachial pain, possibly associated with rotator cuff syndrome. The radiological investigations showed arthritic changes in both shoulders, greater in the right than the left and subacromial bursitis. A number of doctors considered there was evidence of rotator cuff impingement (see Dr Emin, Dr Harvey and Dr Mahony, at [40] and [48] above). Such changes are consistent with a disease process (see Fletcher International Exports Pty Limited v Barrow and anor [2007] NSWCA 249; (2007) 5 DDCR 247).
In agreeing injury, the parties nominated a deemed date of injury of 12 September 2003. This is consistent with the parties agreeing that injury was in the nature of an aggravation of a disease. Whilst it would have been preferable for the parties to agree the specific nature of the injury, they did not do so.
If it is necessary for me to do so, I find, based on Dr Breit’s evidence (in part supported by Mr Mahony’s evidence) that Ms Akdeniz suffers from a cervicobrachial disorder with right rotator cuff impingement as a result of the heavy and repetitive duties that she performed with Bright Group up to 12 September 2003.
I note that there was also agreement that Ms Akdeniz suffered injury to her “left upper extremity” (see [5] above). The AMS made a 0% WPI assessment in respect of the left arm, and injury to the left arm is not at issue on appeal.
Bright Group’s submission on appeal that the effects of the work injury had resolved on or before 30 September 2004 and/or that at no time relevant to her application had Ms Akdeniz suffered the effects of the work injury, are inconsistent with its agreement on 18 February 2009 to pay compensation for permanent impairment under section 66 in respect of 10% WPI. As observed by Snell ADP in Total Steel of Australia Pty Limited v Waretini [2007] NSWWCCPD 33 at [39]:
“39. To say that a worker can fail in a claim for weekly compensation, and yet still potentially have an entitlement to lump sum compensation for permanent impairment, is clearly true. It will depend on the basis for the worker’s failure in his weekly claim. A worker may be found to have no entitlement to weekly compensation as there is no economic incapacity, and yet still have a compensable permanent impairment. However if, for example, a worker fails in his weekly claim because there is a finding he has not suffered an injury, or the effects of employment injury have ceased, such a finding is inconsistent with the existence of a compensable permanent impairment caused by the alleged employment injury.”(emphasis added).
Whilst it is not disputed that an assessment of disability under section 66 is different from an assessment of incapacity, the AMS assessment of permanent impairment is binding evidence of a continuing disability as a result of the work injury. It is also probative evidence that must be weighed in the determination of Ms Akdeniz’s incapacity for work and her ability to earn in the labour market available to her (see Ric Developments t/as Lane Cove Poolmart v Muir [2008] NSWCA 155). I accept and agree with Bright Group’s submissions that “parties to a dispute concerning incapacity are bound by findings of permanent impairment.”
The Arbitrator’s duty was to assess the probative value of the evidence before him, and the weight to be attached to the medical evidence, having regard to all the evidence in the case, including Ms Adkeniz’s evidence (see Singh v FTW Products Pty Ltd [2007] NSWWCCPD 230 at [65]-[66]). The Appellant submits he failed to discharge this duty in respect of the evidence of Drs Breit, Mills and Acar.
The Appellant urges the acceptance of Dr Mills’ evidence, as supported by Dr Acar, and it is submitted, also supported by Dr Breit. As correctly noted by the Arbitrator (Reasons at [27]), Dr Mills’ evidence that the worker was fully recovered from the effects of the work injury, is inconsistent with the Dr Breit’s MAC and cannot be accepted in the face of the MAC and Ms Akdeniz’s complains of ongoing symptoms.
Dr Acar’s dramatic revision of his opinion in respect of Ms Akdeniz’s capacity for work from three hours day three days a week in September 2004 to fully fit for pre-injury duties in October 2004, was not adequately explained in the WorkCover medical certificate dated 11 October 2004. Dr Acar referred to Dr Mills’ recent assessment and recorded that because he could find no treatable condition, he discharged Ms Akdeniz. He failed to explain why Ms Akdeniz’s clinical presentation improved such that in October 2004 he considered she was fully for her pre-injury duties. For these reasons, and for the same reasons Dr Mills’ evidence cannot be accepted, Dr Acer’s evidence cannot sit with the binding MAC and Ms Akdeniz’s complaints of continuing pain and restriction.
Dr Breit expressed some agreement with Dr Mills, particular in respect of Ms Akdeniz’s complaint of right arm sensory alteration, which he did not believe had an organic origin. However, unlike Dr Mills, who believed that Ms Akdeniz had recovered from any work injury, Dr Breit was satisfied that she continued to suffer from the effects of the work injury and had a 10% WPI. Dr Breit clearly did not accept Dr Mills opinion because if he had done so, he would have assessed a nil WPI.
I agree with and accept the Appellant’s submission that the Arbitrator’s Statement of Reasons fails to disclose what weight, if any, he gave to Dr Acar’s opinion, given that he made no reference to Dr Acar’s evidence. The Arbitrator also did not disclose that he weighed and assessed Dr Breit’s evidence.
However, whilst I accept that the Arbitrator failed to discharge his duty of weighing and assessing all of the evidence, after undertaking an analysis of the evidence, I am not satisfied that the Arbitrator’s error makes any difference to his ultimate finding that Ms Akdeniz suffers from the ongoing effects of the work injury. This, together with the history of this matter, and Bright Group’s acceptance of the existence of a compensable permanent impairment caused by the work injury, means that the submission that the effects of the work injury have ceased is untenable and the appeal must fail.
In the alternative, if it is intended by the Appellant to concede injury and the 10% WPI but to argue that Ms Akdeniz has no incapacity as a result of the work injury, I reject that argument.
Ms Akdeniz is 44 years old. She resides in Auburn in western Sydney. She has only a limited education, having left school in Turkey at the age of 13 years. She has poor English literacy. She is unable to read or write in English and whilst she understands some spoken English, she required the assistance of an interpreter at the arbitration hearing. Her employment in Australia has been limited to factory and process work and from 1998 to 2004, she was employed by the Appellant as a process worker. She has been unemployed since late 2004. Although Ms Akdeniz believes that she is capable of light process work and has been seeking work in fast food service shops and looking in the community paper and attending at Centrelink, she has not secured employment. Ms Akdeinz has some transferable skills in process work but few other transferable skills.
The Appellant engaged IOH to manage a return to work program but after Drs Acar and Mills certified her fit to return to pre injury work, the program was terminated. Ms Akdeniz has not been provided with any rehabilitation training, since ceasing employment with the Appellant. Her attempts to return to work have been unsuccessful.
The Arbitrator accepted, as I accept, Ms Akdeniz’s complaints of incapacitating symptoms of pain and restriction has resulted in a permanent impairment.
Taking into account the factors in section 43A, on the open labour market reasonably accessible to her, Ms Akdeniz has a physical incapacity resulting in a partial incapacity for work (see Arnotts Snack Products Pty Ltd v Yacob [1985] HCA 2; (1985) CLR 171).
The relief on appeal sought by the Appellant is an award in its favour on the basis Ms Akdeniz no longer suffers the effects of the work injury. There is no challenge, in the alternative, to the quantum of the award made under section 40 and having found against the Appellant on appeal, I confirm the Arbitrator’s decision, but for the reasons given in this decision.
OTHER
The Appellant’s submission that pending the appeal, it be granted a stay of the Arbitrator’s award and that interest not run during the period of the stay is unsupported by any authority or by reference to the legislation. The legislation makes no provision for a stay pending a section 352 appeal. A successful worker is entitled to the benefit of any award in his or her favour from the date the award or order is made. In this case the Arbitrator’s orders took effect from 30 March 2009 and I assume that the insurer has complied with it. If that is not the case the worker will have good grounds for complaint to the WorkCover Authority and will be entitled to interest under section 110 of the 1998 Act.
CONCLUSION
Having conducted a review on the merits (per Spigelman CJ in State Transit Authority of New South Wales v Fritzi Chemmler [2007] NSWCA 249; (2007) 5 DDCR 2878 at [28]), whilst I have found that the Arbitrator failed to discharge his duty of weighing and assessing the evidence, such error did not affect the ultimate finding that the effects of the injury are continuing and Ms Akdeniz has an ongoing incapacity for work as a result of the work injury.
DECISION
The Arbitrator’s decision dated 30 March 2009 is confirmed.
COSTS
The Appellant to pay Ms Akdeniz’s costs of the appeal.
His Hon. Judge Keating
President
14 September 2009
I, MELANIE CURTIN, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF HIS HON. JUDGE KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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