The Ironbark Restaurant and Café v Galiatsatos
[2009] NSWWCCPD 43
•22 April 2009
| WORKERS COMPENSATION COMMISSION | ||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||||
| CITATION: | The Ironbark Restaurant and Café v Galiatsatos [2009] NSWWCCPD 43 | |||||
| APPELLANT: | The Ironbark Restaurant and Café | |||||
| RESPONDENT: | Debbie Galiatsatos | |||||
| INSURER: | QBE Workers Compensation (NSW) Limited | |||||
| FILE NUMBER: | A1-8812/08 | |||||
| DATE OF ARBITRATOR’S DECISION: | 27 January 2009 | |||||
| DATE OF APPEAL DECISION: | 22 April 2009 | |||||
| SUBJECT MATTER OF DECISION: | Section 119 of the Workplace Injury Management and Compensation Act 1998; WorkCover Guidelines On Independent Medical Examinations And Reports (commenced 1 November 2006) | |||||
| PRESIDENTIAL MEMBER: | Deputy President Kevin O’Grady | |||||
| HEARING: | On the papers | |||||
| REPRESENTATION: | Appellant: | Gillis Delaney Lawyers | ||||
| Respondent: | In person | |||||
| ORDERS MADE ON APPEAL: | 1. Paragraph 1 of the decision of the Arbitrator, dated 27 January 2009 is revoked and the following decision is made in its place: | |||||
| “Respondent to pay $374.90 per week from 4 April 2008 to 30 September 2008 and $381.40 from 1 October 2008 to 31 March 2009 and $389.10 from 1 April 2009 to date and continuing as adjusted pursuant to section 40 of the Workers Compensation Act 1987.” | ||||||
| 2. Paragraphs 2 and 3 of the Arbitrator’s determination are confirmed. | ||||||
| 3. The Appellant is to pay the Worker’s costs of this appeal. | ||||||
BACKGROUND TO THE APPEAL
On 16 February 2009 The Ironbark Restaurant and Café (‘the Appellant’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 27 January 2009.
The Respondent to the Appeal is Debbie Galiatsatos (‘the Worker’).
The Worker, who is 30 years of age, was employed by the Appellant as a dishwasher. On 11 July 2007 she received injury in the course of her employment. This occurred whilst manipulating a heavy trolley ladened with garbage. At that time the Worker experienced pain between her shoulder blades and in her upper spine.
The injury was reported to the Appellant and a claim was made in respect of workers compensation benefits. The Appellant and its insurer accepted liability following which weekly payments commenced and medical expenses were paid by the insurer.
By reason of incapacity the Worker remained absent from work and provided medical certificates to the insurer concerning her condition in support of her ongoing entitlement to benefits under the Workers Compensation Act 1987 (‘the 1987 Act’).
A number of medical certificates relied upon by the Worker were issued by Dr Victoria Gorelik. The diagnosis stated by Dr Gorelik in those certificates was one of “thoracic musculo ligamentous strain”. Five certificates were issued between 12 July 2007 and 7 August 2007 in which that diagnosis was stated.
Between 13 August 2007 and 9 February 2008 a further fourteen medical certificates were issued by Dr Gorelik. Each of those certificates included the diagnosis as stated in the earlier certificates however all but one included the words “adjustment disorder”.
Dr Andreas Loefler, the Worker’s treating orthopaedic specialist, provided a short report to the insurer dated 5 November 2007. It was stated by Dr Loefler that he believed the Respondent needed a formal psychological assessment.
On 29 January 2008 the Worker attended a medical appointment with Dr Leonard Lee, psychiatrist, which had been arranged by the insurer. Dr Lee reported to the insurer that the Worker refused to provide a detailed history. Notwithstanding that fact Dr Lee expressed a provisional diagnosis.
By letter dated 3 March 2008 the insurer advised the Worker that a further appointment on 25 March 2008 had been arranged for examination by Dr Lee. It was stated in that correspondence that the “further review” with Dr Lee had been arranged, in part, having regard to the contents of a medical certificate issued by Dr Papacosta, the Worker’s general practitioner, which included the diagnosis of “adjustment disorder”.
The Worker failed to attend that second appointment with Dr Lee. Correspondence dated 31 March 2008 was forwarded to the Worker by the insurer which included notice that the failure to attend the appointment with Dr Lee had led to the suspension of the payment of weekly compensation payments from 4 April 2008 pursuant to section 119 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’). The Worker was advised that such suspension was to remain in place until such time as she attended an appointment for examination by Dr Klaas Akkerman, psychiatrist, which had been arranged for 10 April 2008.
The Worker attended the appointment with Dr Akkerman as arranged, following which he reported to the insurer that, by reason of her conduct, examination of the Worker was terminated.
The suspension of the Worker’s weekly compensation remained in place following the truncated consultation with Dr Akkerman. An Application to Resolve a Dispute (‘ARD’) was registered with the Commission on 3 November 2008. This document was lodged by the Worker in person. The ARD claimed weekly benefits from 4 April 2008 and “ongoing”. An order was also sought with respect to payment of medical, hospital and rehabilitation expenses particularised in the sum of $305.00 (Dr John Taylor).
The Worker’s claim came before an arbitrator for conciliation/arbitration on 14 January 2009. The Worker was unrepresented and appeared in person. Counsel appeared on behalf of the Appellant. The Arbitrator reserved determination of the dispute and a Certificate of Determination with accompanying reasons (‘Reasons’) was published on 27 January 2009.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 27 January 2009 records the Arbitrator’s orders as follows:
“The Commission determines:
1.Respondent to pay $374.90 per week from 4 April 2008 to 30 September 2008 and $381.40 from 1 October 2008 to date and continuing as adjusted.
2.Respondent to pay s60 expenses.
3.Respondent to pay the Applicant’s costs as agreed or assessed.
A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”
There is before the Commission a transcript of matters stated during the course of a teleconference conducted on 9 December 2008 which had been convened by the Arbitrator for the purpose of clarifying the issues in dispute between the parties (Teleconference transcript).
There is also a transcript of proceedings conducted before the Arbitrator on 14 January 2009 (Transcript). That transcript records submissions put by each party before the Arbitrator.
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred:
(i) in finding that the Worker had not refused to submit herself for any examination;
(ii)in finding those matters of fact found at paragraph 22 of the Arbitrator’s Reasons concerning the nature of the claim and the Appellant’s obligation to continue making weekly payments;
(iii)in finding those matters of fact and law as found at paragraphs 24, 26 and 27 of Reasons;
(iv)in finding that the Respondent Worker was totally incapacitated;
(v)in failing to consider the whole of the medical evidence as to incapacity, and in failing to provide adequate reasons for the finding as to incapacity, and
(vi)in making a general order pursuant to section 60 of the 1987 Act in circumstances where there had been neither a dispute nor a claim.
The issues as summarised above have been taken from the written submissions provided by the Appellant which accompany its Application concerning this appeal.
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
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
The amount of compensation at issue on the appeal is such that the subject matter of the appeal meets the threshold requirements of section 352(2) of the 1998 Act which must be met before the grant of leave to appeal may be made by the Commission.
The requirements of section 352(2) and (4) having been satisfied and having regard to the subject matter of the appeal and the arguments raised I order that leave be granted to the Appellant to appeal to the Commission.
FRESH EVIDENCE
‘Fresh evidence’ on appeal is governed by section 352(6) of the 1998 Act, which provides as follows:
“(6) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.”
The Appellant expressly stated in its application seeking leave to pursue this appeal that it was not intending to seek leave to rely on fresh evidence or evidence in addition to or in substitution for the evidence received before the Arbitrator.
On 13 March 2009 the Appellant filed “Submissions in Reply” to the Worker’s Notice of Opposition to this appeal. Accompanying that reply was an application seeking to adduce fresh evidence being a report from Dr Medhat Guirgis, consultant orthopaedic surgeon, dated 30 July 2008. Submissions were put in support of the admission of that evidence and it may be said that the requirements of the 1998 Act and the matters relevant to the admission of fresh evidence on appeal as prescribed by Practice Direction No. 6 have, generally, been complied with.
The report of Dr Guirgis is addressed to Dr Papadakis, another of the Worker’s general practitioners. The report contains a history of the subject injury and includes a diagnosis being – “post-traumatic mechanical derangement of the cervical and thoracic areas of the spine.”
Dr Guirgis states that the Worker’s then condition included symptoms and signs of such mechanical derangement as well as symptoms and signs of chronic pain, anxiety/depression.
Dr Guirgis’ report also included reference to a need for continuing treatment “under the psychiatrist’s care”.
The Respondent Worker has not put any submission concerning the admission of Dr Guirgis’ report as fresh evidence.
It is plain that the evidence of Dr Guirgis contained in the subject report could not have been obtained by the Appellant and tendered in the proceedings before the Arbitrator. That the evidence is credible is not disputed.
Having regard to the history of this claim, a matter which is more fully addressed hereafter, I am of the view that it is just to admit the evidence. Accordingly I grant leave to the Appellant to adduce the additional evidence being the report of Dr Medhad Guirgis dated 30 July 2008 addressed to Dr Papadakis.
EVIDENCE AND SUBMISSIONS
The documentary evidence which was before the Arbitrator is summarised at paragraph 5 of his Reasons where it was stated:
“The following documents were in evidence before the Commission and taken into account in making this determination:
(1) Application to Resolve a Dispute and attached documents;
(2)Applications to Admit Late Documents filed by the Applicant dated 26 November 2008 and 24 December 2008 and attached documents
(3) Reply and attached documents;
(4)Application to Admit Late Documents filed by the respondent dated 19 November 2008 and attached documents.”
As noted above, the Worker appeared before the Arbitrator in person. Whilst there was no formal application to adduce oral evidence during the course of hearing, it is to be noted that the transcript records a number of exchanges between the Arbitrator and the Worker that appear to represent a clarification or elaboration of matters touched upon in the documentary evidence.
The ARD contains a document headed “To whom it may concern regarding Dr Leonard Lee’s report”. This document, apparently written by the Worker, narrates relevant facts concerning the arrangement made to have Dr Lee examine her. The document also comprises a significant volume of material that maybe characterised as argument or submissions.
Attached to the ARD is a receipt dated 25 June 2008 issued by Dr John W Taylor, psychiatrist, to the Worker. That invoice is in the sum of $305.00 and apparently relates to a consultation on the date of the issue of the receipt.
Correspondence dated 3 March 2008 addressed to the Worker from the insurer is also attached to the ARD. It is there stated:
“We note that you were assessed by Dr Leonard Lee on 29/01/2008. Dr Lee has provided a report, however, he advised that you did not answer several of his questions. Due to this, Dr Lee has been unable to provide a definitive diagnosis of a psychological injury and whether any injury relates to your employment.”
That correspondence proceeds to detail particulars concerning a further review by Dr Lee which was appointed for 25 March 2008.
A number of email communications between the Worker and the insurer concerning the initial medical examination of the Worker conducted by Dr Lee were in evidence.
A report of Dr Leonard Lee dated 29 January 2008 is attached to the ARD which relates to his assessment of the Worker on that day. That report is eight pages in length and details the documentation made available to Dr Lee and a notation that the Worker “…would not provide a detailed history”.
The report of Dr Lee contains particulars relating to the conduct of the Worker during the course of the consultation. At page 8 of the report the doctor states:
“In my opinion, based on her behaviour and available data she is unfit for employment on the basis of her suspiciousness, querulousness and aggressive manner. It would not seem that the ongoing incapacity is due to the work injury. Her prognosis is guarded unless she agrees to thorough psychiatric evaluation and treatment but I believe this is unlikely to occur given experience to date.”
Attached to the ARD is a report from Dr James K Evans, orthopaedic surgeon, dated 17 December 2007. Dr Evans examined the Worker on 13 December 2007 at the request of the insurer. His report records his opinion that the Worker “…is unfit for work at the moment and this is any work.”
Dr Evans proceeds to express the view that the Worker’s ongoing incapacity is “only partly” due to the work injury.
It was Dr Evan’s view that the Worker had suffered an aggravation of a pre-existing mild spondylitic change in the thoracic spine. He expressed the view that “…work is still a substantial contributing factor” to her then present condition. Dr Evans stated that he did not consider the Worker as being fit for her pre-injury duties.
Two reports of Dr Andreas Loefler, orthopaedic surgeon, dated 17 September 2007 and 5 November 2007 are attached to the ARD. Those reports indicate that Dr Loefler had been requested to review the Respondent Worker by Dr Gorelik, the Worker’s general practitioner. It was Dr Loefler’s view that the Worker suffered non-specific back pain and that she did not require surgical intervention. It was that practitioner’s view that the Worker required rehabilitation rather than surgery.
The second of the reports of Dr Loefler is addressed to the insurer. That report included the following observation:
“I feel that Mrs [sic] Galiatsatos is unreasonable. I believe that she requires a formal psychological assessment. I understand that this has been offered in the past, but the patient has declined.”
Correspondence referred to in [11] above is attached to the ARD. As noted,that correspondence records the Worker’s failure to attend the second consultation arranged with Dr Lee on 25 March 2008 and gave notice of suspension of her weekly payments. The correspondence proceeded to note the appointment made with Dr Akkerman.
Attached to the ARD is a document headed “To whom it may concern regarding Dr Klaas Akkerman report”. The author of this document is clearly the Worker and it contains what appears to be a criticism of the text of Dr Akkerman’s report dated 10 April 2008. That document also includes a description of events which occurred during the course of the subject consultation.
A copy of “Patient Consent Form” concerning the medical examination arranged for 10 April 2008 by Dr Akkerman signed by the Worker is attached to the ARD. That document contains the following handwritten notation, “Dr. refused to question me, he asked me to leave.”
Among documents attached to the ARD is a copy of an email communication sent by the Worker to a member of the insurer’s staff which outlines circumstances concerning the Worker’s attendance at the medical examination arranged for 10 April 2008 with Dr Akkerman.
A report of Dr Lydia Kovach dated 7 December 2007 addressed to the insurer is attached to the ARD. It is recorded in that report that Dr Kovach had issued a medical certificate to the Worker on 13 July 2007 stating that she was fit for “modified duties”. That report records that the Employer did not accept the certificate. Following consultation on 17 July 2007 Dr Kovach was of the opinion that the Worker “was fit for her normal duties as a dishwasher”. The report proceeds to record a reported worsening of the Worker’s condition in late July 2007 following which the she was referred for radiological investigation and physiotherapy. Dr Kovach’s earlier view that the Worker was fit for her normal duties as a dishwasher appears to have been qualified following consultation on 25 July 2007. It is noted in that report that since that date the Worker had been attending Dr Gorelik.
A report of Dr Klaas Akkerman dated 17 April 2008 was attached to the ARD. That report was prepared following the Respondent Worker’s examination by that practitioner on 10 April 2008. In summary, the report records a suggested lack of cooperation on the part of the Worker. The report contains details of exchanges between Dr Akkerman and the Worker. It is recorded at page 3 of that report, “In my opinion, she was being deliberately obstructive and I said that I could not continue on under the present circumstances.”
A number of radiological reports are attached to the ARD. Some reports predate the subject injury, however a report dated 27 July 2007 from Dr P Hunter records “minor mid thoracic spondylosis osteophytosis” and a report dated 26 February 2008 by Dr FA Doull records “shallow scoliotic curve to the right with some loss of the normal cervical lordosis. This is likely related to minor muscle spasm. …. Bilateral cervical ribs are present, the right is larger.”
A letter dated 23 August 2007 from the insurer addressed to the Worker is attached to the ARD. It is there stated that the Worker had become “fit for suitable duties” and that the Appellant was “unable to provide…. suitable work.” Entitlement to weekly benefits in accordance with section 38 of the 1987 Act was acknowledged and such entitlement was quantified. A notice under section 38A(3) was enclosed with that correspondence.
A number of copies of email communications between the Worker and the insurer are attached to the ARD. Reference is made in those communications to correspondence dated 30 November 2007 from the insurer addressed to the Worker in which weekly benefits entitlement was described as being “at the statutory rate of $367.70 gross per week” as of the 23 January 2008 onwards.
A number of copies of email communications and correspondence between the insurer and the Worker, which documents are not directly relevant to the issues raised on this appeal, are also attached to the ARD.
An Application to Admit Late Documents registered with the Commission on 26 November 2008 containing those documents described in the schedule thereto was before the Arbitrator at the hearing. Included among those documents is a summary of the dates and times worked by the Worker with the Appellant between 2 July 2007 and 11 July 2007. It is apparent from that document that the relevant rate of pay was $18.00 per hour however it is asserted in that document that that amount is the net figure. It appears that the relevant pre-tax hourly rate was $21.3666.00. That information is contained in a copy of email communication dated 3 August 2007 from an officer of the insurer to Ms Julie Mercer. It appears that document had been obtained by the Worker following a freedom of information application made by her.
An assessment report dated 31 August 2007 prepared by Ipar Rehabilitation concerning the Worker was attached to that Application. That document contains handwritten notations made, presumably, by the Worker which may be treated as constituting submissions concerning the contents of the document. That report noted that the Worker was “fit for alternative duties”.
An assessment report dated 23 October 2007 prepared by Rehab One Physiotherapy concerning the rehabilitation programme devised for the Worker was attached to the Application to Admit Late Documents. It is recorded in that document that the Worker has been “certified fit for suitable duties, four hours, three days per week.” The restrictions noted in that report were “maximum 30 minutes sitting or standing, lifting restriction of 2-3kg, no bending, pushing, pulling or working over shoulder height”.
Five WorkCover NSW medical certificates issued by Dr Peter Papadakis and one issued by Dr Victoria Ralec were in evidence before the Arbitrator. Those documents certified as to the Worker’s fitness for work in terms that have been outlined in [61] above. The last is dated 28 November 2008.
A number of copies of email communications and other documents not directly relevant to this appeal were also attached to that Application to Admit Late Documents.
An Application to Admit Late Documents filed on 24 December 2008 was before the Arbitrator. The documents annexed to that Application relate to the claim brought by the Worker pursuant to section 60 of the 1987 Act. Those documents detail the quantum of such claims and relate to both travel expenses as well as treatment expenses.
The Appellant relies upon those documents attached to the Reply filed 14 November 2008. Those documents include 24 WorkCover NSW medical certificates issued by practitioners treating the Worker. Those certificates certify the Worker as being unfit for work up until 13 August 2007 and fit for suitable duties thereafter. The last of those documents is dated 2 June 2008 and is issued by Dr Ralec of Earlwood.
A number of medical reports and radiological reports also relied upon by the Worker have been copied and included amongst those documents attached to the Reply.
A report of Dr Con Kafataris, injury management consultant, concerning a review conducted on 27 February 2008 was attached to the Reply. It is not clear from the content of that report as to whether Dr Kafataris examined the Worker on the date of “review” however it is clear that there had been discussions with the treating doctor, the Employer and the “provider”. The facts as summarised by Dr Kafataris concerning the post injury history of the Worker, in his view, suggested “…. an underlying personality disorder with some probable paranoia.”
The Appellant’s Reply also included those reports of Drs Evans and Loefler which were relied upon by the Worker.
A letter date 22 October 2007 from the insurer to the Worker is attached to the Reply. It is stated in that correspondence that the Appellant:
“…. is able to provide you with suitable duties, however, due to your actions on 13/07/2007, namely, being requested not to return to Earlwood Bardwell Park RSL Club.(sic) Given that your actions, not your injury are the reason for suitables [sic] not being provided we feel that you are not entitled to weekly benefits under section 38 of the Workers Compensation Act 1987.”
The last mentioned correspondence proceeds to advise the Worker that having regard to her unfitness for full pre-injury duties, she was entitled to weekly benefits under section 40 of the 1987 Act. The Worker’s entitlement was stated as being determined in accordance with following relevant financial factors:
“· Your average pre injury earnings have been determined as $886 71[sic, $886.71] (please see letter dated 23/08/2007 for how this was determined)
·Your deemed ability to ear [sic] has been determined as $256.40 This being that you are fit to perform 12 hours per week on suitable duties, and your hourly rate of pay was $21.3666.
·As such, under section 40 of the Workers Compensation Act 1987, your entitlement is $630.31 gross per week.”
Attached to the Reply was a copy of email communication forwarded on 13 May 2008 to the Worker from Mr McCabe, an officer of the insurer. That email records that, pursuant to section 119 of the 1998 Act, the Worker’s weekly compensation payments were suspended. That document included the following:
“However, we will agree to recommence payments if you are willing to;
1.Attend a Psychiatrist of your choice and not in any way obstruct the examination;
2.The Psychiatrist must agree to provide a written report to our office within 14 days from the date of the examination, detailing answers to our specific questions
3.You provide specific authority for the Psychiatrist to release the report to QBE
Once we have confirmation that the above has occurred (we will undertake to contact the Psychiatrist on the day of the examination), we will recommence payments from the date of the examination. However, we reserve the right to arrange an Independent Medical Examination with a Psychiatrist if we feel that there are inconsistencies of any further information that we require.
Again, failure to attend the Independent Medical Examination will result in a further suspension of benefits.”
A copy of the Worker’s email reply to Mr McCabe’s email was attached to the Reply. The text of that document is as follows:
“ I do not know who you are nor do I care too [sic]. Your decision to suspend my payments was a big mistake and I offered QBE countless opportunities to allow me to be assessed by my own psychiatrist seeing as though QBE psychiatrists have tried to defame me, yet QBE failed to cooperate so why the change of heart?
Perhaps you have realized that you have made a mistake which is inhumane though not surprising. My Priority is about my injury, your priority is about the financial interests of your company I do not care for your response and I would appreciate it if you not email me ever again.”
Among the documents attached to the Reply were a number of copies of email communications from the Worker to officers of the insurer. Those documents outline circumstances concerning the conduct of the medical examinations of Drs Akkerman, Lee and Evans.
Attached to the Reply was a handwritten document which appears to be signed by the Worker concerning the examination arranged for 25 March 2008 by Dr Lee. Of significance in this appeal it is stated by the Worker at the foot of that document, “I have offered QBE the opportunity to have me assessed by another psychologist as I do not feel that you have any morals or ethics.”
The balance of the documents attached to the Reply were duplications of material relied upon by the Worker or comprised material which is of no direct relevance to the issues raised on this appeal.
The Parties’ submissions before the Arbitrator
It was submitted before the Arbitrator on behalf of the Appellant that there was no dispute that the Worker failed to attend the appointment with Dr Lee on 25 March 2008 and that “…in circumstances where she had not previously submitted herself….” the employer was entitled to rely on the provisions of section 119 of the 1998 Act. It is clear that reference made by Counsel to the Worker having “not previously submitted herself ” was a reference to the manner in which the Worker allegedly presented and behaved during the course of the examination conducted by Dr Lee on 29 January 2008.
The submission referred to above is the subject of some clarification by Counsel during exchanges with the Arbitrator. It was said on behalf of the Appellant (Transcript page 4):
“…. what I’m saying is that the appointment on 29 January 2008 was a failure to submit. It was not the subject of the notice. The non-attend [sic] – and, with respect, I’ll put it this way. The insurer gave the Worker another chance, as it were. So rather than rely on that failure, that is on 29 January, they arranged another appointment.”
It was further argued on behalf of the Appellant that acceptance of the evidence of Dr Lee as to the conduct of the Worker during the course of the earlier examination would establish that, “…. she failed to cooperate.”
Discussion took place between Counsel and the Arbitrator during the course of submissions and reference was made in particular to the wording of Part 1 of the WorkCover Guidelines On Independent Medical Examinations and Reports (commenced 1 November 2006) (“Guidelines”). It was argued on behalf of the Appellant that examination of the evidence, in particular those reports and certificates from treating medical practitioners, establishes that the Appellant had obtained “sufficient evidence” to permit the conduct of a subsequent independent medical examination.
It was further argued on behalf of the Appellant that the circumstances concerning the disrupted examination arranged by Dr Akkerman on 10 April 2008 were such as to constitute refusal to “submit” herself for an examination in terms of section 119(3) of the 1998 Act.
The Worker was invited by the Arbitrator to put submissions and there followed an exchange which is recorded between pages 14 and 36 of transcript. It was the Worker’s primary submission that the allegations concerning her conduct made by the medical practitioners “could not be substantiated”. The Worker was expressly invited to address the question as to whether she had refused to submit herself for examination, however (at transcript page 17) that invitation was apparently declined. The Worker proceeded to address the question as to quantum of her entitlement to weekly benefits. The general thrust of her argument was that she was entitled to what was described as “a section 40”. The Worker’s arguments concerning entitlement, became, understandably, somewhat confused given the complexity of the relevant provisions of the 1987 Act. Whilst it is not entirely clear, it seems that the Worker alleged failure on the part of the Appellant to provide suitable work and appeared to be arguing that she was entitled, perhaps in the alternative, to weekly payments pursuant to section 38 of the 1987 Act. Attention was given to a suggested misstatement made by the insurer as to the availability of suitable duties. It is convenient to note here that the Worker has made Application for Leave to Appeal those findings of the Arbitrator with respect to the quantification of her entitlement to weekly payments. It is proposed to deal firstly with the present appeal concerning the issue of suspension of payments and thereafter to address separately the matters of complaint raised by the Worker. The latter is the subject of a separate determination (see Galiatsatos v The Ironbark Restaurant and Café [2009] NSWWCCPD 44).
DISCUSSION AND FINDINGS
This appeal is brought pursuant to the provisions of section 352 of the 1998 Act. Subsection (5) of that section provides:
“(5) An appeal under this section is to be by way of review of the decision appealed against.”
The nature of the “review” stated in the afore mentioned subsection has most recently been considered by the NSW Court of Appeal in Sapina v Coles Myer Limited [2009] NSWCA 71. The Court was there considering an appeal from a Deputy President of this Commission who had heard an appeal from an Arbitrator in the course of which the Deputy President approached his task by examining whether or not error had been displayed in the reasoning of the Arbitrator. It was held (Allsop P and Hoeben J, Beasley JA agreeing) that such was the incorrect test for the task of review of the decision under the 1998 Act.
In the joint judgment of Allsop P and Hoeben J is an extensive and detailed examination of relevant authority concerning the proper construction of the term “review” ([17]-[59]). Following discussion of the authorities it was stated (at [57] and [58]):
“57.Whilst the new regime of dealing with workers’ compensation claims must be examined in its own statutory context, it is important to appreciate that the legislature has used a phrase that had in the prior regime, a tolerably settled meaning. Section 36 of the Compensation Court Act used the phrase “review the decision”. Subsections s 352 (1) and (5) of the WIM Act make clear that the “appeal” is to be by way of review of the decision. The notion of “review of a decision” had been clearly held in the context of the former legislation and the WIM Act to be wider that an appeal strictly so-called and encompassing a reconsideration beyond correction of error. The decision under appeal is not to be ignored, but the task of the Presidential member is, as Spigelman CJ said in Chemler, “to decide whether the original decision is wrong [that is to] decide what is the true and correct view.” This requires the Presidential member to decide for himself or herself these matters. That does not mean that there must be a de novo hearing in each case. Cases such as Watson, Boston Clothing, Litynski and AGL v Samuels made plain that this was not so under s 36 and the terms of ss 3, 352 (7) and 354 make clear that no such broad ranging factual enquiry afresh is necessarily required. The terms of the WIM Act, ss 3 and 354 and the width of the powers in s 352 (7) make clear that the Presidential member has a wide choice available as to how he or she undertakes the task of deciding for himself or herself what is the true and correct decision. As Allsop P said in Cook v Midpart, error (or lack of it) by the Arbitrator will or may be relevant to the task of the Presidential member, but it does not define the task. There is, however, an important difference in the nature of the tasks of (a) coming to the view that an Arbitrator’s view was reasonable and (b) deciding for oneself that the view of the Arbitrator is the true and correct one. In a field where evaluation of injury and evidence of incapacity can lead to different views, both or all which could be reasonably held, it is important that the parties have available to them the skill and judgment of the Presidential member reaching his or her own view on the questions involved in the decision.
58.Just as error of the Arbitrator may be relevant, so might be the advantages of the Arbitrator in seeing witnesses. Nothing we have said, and none of the cases to which we have referred, necessarily requires the Presidential member to rehear the case or to recall all the witnesses. The approach of the Presidential member as to how he or she goes about reaching his or her own decision will be a matter for him or her within the confines and freedoms of s 354.”
There are in the Appellant’s application eight stated grounds of appeal. I propose to deal with those matters raised serially.
Ground 1 states:
“The Arbitrator erred in finding that the Worker had not refused to submit herself for any examination.”
Submissions in support of this ground challenge the Arbitrator’s reliance upon the dictionary meaning of the word “submit” as a guide to the proper construction of the relevant provision. Section 119 of the 1998 Act provides, relevantly:
A worker who has given notice of an injury must, if so required by the employer, submit himself or herself for examination by a medical practitioner, provided and paid by the employer.
A worker receiving weekly payments of compensation under this Act must, if so required by the employer, from time to time submit himself or herself for examination by a medical practitioner, provided and paid by the employer.
If a worker refuses to submit himself or herself for any examination under this section or in any way obstructs the examination:
(a)the worker’s right to recover compensation under this Act with respect to the injury, or
(b) the worker’s right to the weekly payments,
is suspended until the examination has taken place.
A worker must not be required to submit himself or herself for examination by a medical practitioner under this section otherwise than in accordance with the WorkCover Guidelines or at more frequent intervals than may be prescribed by the WorkCover Guidelines….”
The Arbitrator, when considering the Appellant’s argument that submitting to a medical examination required the Worker to fully cooperate with the doctor and to answer any questions that were put, proceeded to make reference to dictionary definitions of the word “submit” following which he concluded (at [21]):
“21. It seems to me that submitting involves a process of surrendering in the sense of ceasing to resist. By submitting to a medical examination a worker is obliged not to resist the examination. The worker is not, however, required to assist in the examination or to take active steps to make the examination easier for the examiner. In this case the Applicant would not provide a detailed history because it had already been provided in documents that were available to Dr Lee. Whilst Dr Lee would have preferred more information he nonetheless proceeded to make a diagnosis and to express an opinion concerning the causes of that diagnosis and whether or not the Applicant was fit for her pre-injury duties. In my view the Applicant had submitted to the examination.”
I respectfully agree with the reasoning as expressed by the Arbitrator at [21]. Whilst it was argued on behalf of the Appellant that the Worker refused to “cooperate” it has not been argued that her conduct obstructed the examination in terms of section 119(3). That there was a degree of uncooperative behaviour cannot be doubted. Such conclusion may be reached having regard to the evidence of the Worker alone, without any reference being made to the evidence of other witnesses which evidence is the subject of dispute. The Worker attended the appointment as arranged, Dr Lee observed her conduct during the course of the consultation and reported to the insurer. Dr Lee provided a provisional diagnosis and stated that “collaborative history or medical workup may be required to clarify these issues”. As stated at page 7 of Dr Lee’s report of 29 January 2008, his provisional diagnosis was founded upon the Workers “manner”.
Whilst the issue is not expressly raised in argument, I conclude that the evidence does not establish that the Worker was “obstructive” within the meaning of section 119(3). Accordingly I reject the Appellant’s submissions raised with respect to ground 1.
Ground 2 relied upon by the Appellant challenges the findings made by the Arbitrator at [22] of Reasons. It was there that the Arbitrator made reference to Dr Evans and proceeded to draw an inference that, as at January 2008, the Worker was totally unfit “on the basis of physical injuries alone”. The Arbitrator’s conclusion was:
“…Given the medical evidence on the physical injury the Respondent was obliged to continue making weekly compensation at the statutory rate regardless of any opinion Dr Lee may have given about the Applicant’s psychiatric condition.”
In submissions on this appeal the reasoning of the Arbitrator as it appears in [22] is challenged and the relevant evidence is examined. I note this ground, it appears to me, is inextricably bound up with the matters raised on behalf of the Appellant as stated in grounds 6 and 7 which are dealt with below. Having regard to the need to examine the relevant evidence as canvassed in submissions by the Appellant it is proposed to deal with the subject matter of these three grounds, namely “incapacity”, when addressing grounds 6 and 7.
Ground 3 challenges the Arbitrator’s findings concerning the compliance or otherwise by the Appellant with requirements of the Guidelines. The Arbitrator concluded that there was no evidence that the Worker’s treating medical practitioners were asked any of the questions outlined in the Guidelines. The Arbitrator concluded that “unless and until the insurer has sought clarification from the general treating practitioner it was not entitled to arrange an independent medical examination by a psychiatrist” (at [25]).
The Appellant in support of ground 3 argues that there was no necessity to raise matters directly with treating practitioners given that the need for formal psychological assessment was raised by Dr Loefler and that same had been discussed with the treating general practitioner.
The relevant portion of the Guidelines appears at pages 4 and 5:
“A worker receiving weekly compensation payments can be required to submit
themselves for subsequent independent medical examinations only when information from the treating medical practitioners remains inadequate, unavailable or inconsistent and where the referrer cannot resolve the issues related to the problem directly with the treating practitioner(s) and:
• the subsequent independent medical examination is with a specialist medical
practitioner of the same specialty as has treated the worker for the injury or
resulting conditions; and• the employer/insurer has evidence that the worker's medical condition as a
result of the injury has changed; or
• the employer/insurer has evidence of a change in the worker's health not
resulting from the injury which will affect the worker's participation in the labour market; or
• the employer/insurer has evidence of a material change, or need for material
change, in the manner or type of treatment; or
• the worker makes a claim for section 66 lump sum compensation or work injury damages; or
• the worker requests a review pursuant to a notice issued under section 54 of
the 1987 Act or section 74 of the 1998 Act and includes additional medical
information that the employer/insurer is asked to consider; or• there has been at least 6 months since the last independent medical
examination required by the employer/insurer; or
• the last independent medical examination was unable to be completed.”
The evidence clearly establishes that at the relevant time, namely towards the end of 2007, there existed a significant body of material obtained by the insurer from various medical practitioners which stated that diagnosis of the Worker’s condition involved, in part at least, an adjustment disorder requiring psychological assessment. In this respect the Appellant’s arguments concerning this ground are sound. Notwithstanding the existence of that material I am not persuaded that it was, as argued, “not necessary to raise the matter directly with the treating practitioners.” To the contrary, the existence of that material at that time would have had the effect of alerting the insurer to a variation or relevant change which may go to the question of liability and raise issues as to causation. Such an occurrence is precisely addressed by the Guidelines and it is my view that the proper course required compliance with those matters quoted in [94] above. It is to be noted that the provisions of the Guidelines are expressed to be “mandatory”. It is my view that compliance required steps to be taken to obtain relevant information from the treating medical practitioners. I so conclude given that the manner in which the apparent variation of the Worker’s condition had been described was inadequate, and that there existed a need to resolve issues raised by the suggested existence of an adjustment disorder and need for psychiatric assessment. The Arbitrator correctly observed that there was no evidence as to compliance with these Guidelines and I respectfully agree with his conclusion that such failure to comply “means the Respondent was not entitled to seek an independent medical examination.” In so concluding I reject the arguments raised on behalf of the Appellant in respect of ground 3.
Ground 4 challenges the Arbitrator’s conclusion as expressed at [26]:
“In the absence of treatment from a psychiatrist the Respondent Insurer was not entitled to an independent medical examination by a psychiatrist.”
It is argued on behalf of the Appellant that treatment by a psychiatrist is not a prerequisite to conduct of an independent medical examination. The Appellant’s reliance on those matters enumerated in bullet points 3 and 4 appearing at the foot of page 4 of the Guidelines can in no way derogate from the Arbitrator’s reasoning as expressed, given that those matters come into play only once the Appellant has satisfied the earlier precondition set forth in [94] above concerning resolution of the “issues”. I reject the Appellant’s argument advanced in respect of Ground 4.
Ground 5 relied upon by the Appellant suggests error on the part of the Arbitrator “in finding that the Employer was not entitled to discontinue the Worker’s compensation payments when she failed to attend the appointment with Dr Lee” (at [27]). The failure to attend relates to the appointment made on 25 March 2008. The Appellant correctly submits that the correctness of the Arbitrator’s finding to be found at that paragraph was “dependant (sic) on the correctness of other findings which are the subject of this appeal and dealt with above.”
Given my view as stated at [95] above that the Appellant’s failure, as found by the Arbitrator, to comply with the mandatory Guidelines led inevitably to the conclusion that there was no entitlement to a subsequent independent medical examination, this ground must fail.
The Arbitrator found (at [17]) that, having regard to the form of the mandatory Guidelines, the insurer was not entitled to a further examination by Dr Lee in any event when he concluded:
“…. Those guidelines provide that a worker receiving weekly compensation payments can be required to submit for subsequent medical examinations only, amongst other requirements, when there has been at least 6 months since the last independent medical examination required by the employer. In this case the Applicant had been seen by Dr Lee in January. The medical examination that she failed to attend was a mere two months after the previous examination. The medical examination that the Applicant failed to attend would appear to have been arranged in breach of the guidelines and accordingly the worker was not required to attend. It follows that the employer was not entitled to cease compensation.”
I respectfully agree with the reasoning process adopted by the Arbitrator and agree with his conclusions as to the proper application of the Guidelines and the consequences as found.
The Appellant alleges in Ground 6 error on the part of the Arbitrator in finding (at Reasons [28]-[30]) that “the Worker was totally incapacitated”. Ground 7 suggests error on the part of the Arbitrator “in failing to consider all of the medical evidence and in failing to provide adequate reasons.” Given that these grounds are interrelated and involve issues raised also by Ground 2 it is proposed to deal with them together.
As is stated on behalf of the Appellant, the Arbitrator “appears” to have found that the Worker was totally incapacitated at relevant times. The Arbitrator at [8] correctly noted that the Appellant “has never disputed that the Applicant remains incapacitated as a result of her physical injury”. Reference is then made by the Arbitrator to the content of Dr Evans’ report. Whilst it is true that Dr Evans then expressed the view that the Worker was “unfit for work at the moment and this is any work” it is clear that Dr Evans was of the opinion that such ongoing incapacity was only “partly” due to the work injury.
There is no express finding made by the Arbitrator in the course of his Reasons that the Worker at the date of commencement of the claim was totally incapacitated as a result of the subject injury. His observations recorded at [28] of Reasons do not constitute such a finding. There is abundant evidence to be found in the medical certificates relied upon by the Worker that the incapacity suffered by her has, from 14 August 2007 at least, been partial incapacity. I accept the submissions put on behalf of the Appellant that there has been a failure on the part of the Arbitrator to address the totality of the evidence with respect to the question of incapacity and a failure to give adequate reasons with respect to such issue having regard to the absence of a clearly articulated conclusion as to the extent of incapacity.
The errors noted above require that the Arbitrator’s determination be reviewed. Thus the evidence concerning the extent of any incapacity for pre-injury duties and any economic consequences of same requires review.
Having regard to the totality of the medical evidence, in particular the medical certificates issued by the treating general practitioners and the report of Dr Evans, I conclude that at relevant times and certainly as from 4 April 2008 the Worker has been partially incapacitated as a result of the subject injuries to date. I reach this conclusion independently of the matters concerning incapacity contained in the correspondence dated 22 October 2007 which was forwarded to the Worker by the insurer. However that correspondence does contain detail of relevant wage levels and I have had regard to that information when addressing the question of entitlement.
I have concluded on the evidence that the Worker has had no entitlement to payments pursuant to section 38 of the 1987 Act at any relevant time. My reasons for so concluding are to be found in my determination of the Worker’s appeal in these proceedings which is published today (see: Galiatsatos v The Ironbark Restaurant and Café [2009] NSWWCCPD 44). The Worker is entitled to an award of weekly compensation pursuant to section 40 of the 1987 Act.
A determination of the Worker’s entitlement requires application of those guiding principles outlined in the decision of the Court of Appeal in Mitchell v Central West Health Service (1997) 14 NSWWCCR 527 (‘Mitchell’). Adhering to those steps enunciated in Mitchell and having regard to the content of the insurers letter dated 22 October 2007, I conclude the following:
(i)The weekly amount that the Worker would have been earning but for injury (section 40(2)(a)) is $886.71.
(ii)The weekly amount that the Worker is earning or would be able to earn in suitable employment (section 40(2)(b)) is $256.40 (see [70] above).
(iii)The arithmetic difference between the figures in (i) and (ii) above is $630.31.
(iv)The figure in (iii) exceeds the current maximum statutory rate recoverable by way of weekly payments, such sum being $389.10. That last figure represents the Worker’s current prima facie entitlement. There is no basis upon which the discretion granted pursuant to section 40 should be exercised to reduce the Workers entitlement below that maximum statutory rate.
Accordingly, whilst certain errors have been identified in the reasoning process of the Arbitrator, it may be seen that I have reached a similar conclusion as to quantum of entitlement.
The Appellant challenges the Arbitrator’s order concerning payment of section 60 expenses. The only argument raised with respect to this challenge is a suggestion that, “Weekly payments only were suspended. The box was not ticked”. The fact that the weekly payments were suspended can have no relevance to the correctness or otherwise of an order with respect to section 60 expenses. It is clear at 5.3 of the ARD that the Worker was seeking an order with respect to medical, hospital and rehabilitation expenses particularised as at the date of filing in the sum of $305.00 being a treatment expense (Dr John Taylor). The claim has been amplified by those documents attached to the Application to Admit Late Documents noted at [64] above. The Worker was entitled to seek orders sought with respect to weekly payments and medical expenses and I am not satisfied that any error has been demonstrated with respect to the making of a general order pursuant to section 60 of the 1987 Act.
The Appellant relies upon the content of Dr Guirgis’ report dated 30 July 2008 as evidence that “as at 30 July 2008 the Respondent was under psychiatric care and the recommendation was that such care continue”. That the Respondent had consulted a psychiatrist as early as June 2008 may also be inferred from the receipt issued by Dr John Taylor, psychiatrist, dated 25 June 2008. In my opinion those matters can in no manner be relevant to the question raised in this appeal, that is, whether the Appellant had discharged its obligations under the Guidelines in March of that year.
DECISION
Having regard to the matters which I have attempted to outline above I consider it appropriate to revoke paragraph 1 of the Arbitrator’s determination and make the following decision in its place:
“Respondent to pay $374.90 per week from 4 April 2008 to 30 September 2008 and $381.40 from 1 October 2008 to 31 March 2009 and $389.10 from 1 April 2009 to date and continuing as adjusted pursuant to section 40 of the Workers Compensation Act 1987.”
Paragraphs 2 and 3 of the Arbitrator’s determination are confirmed.
COSTS
The Appellant is to pay the Worker’s costs of this appeal.
Kevin O’Grady
Deputy President
22 April 2009
I, MARIE JOHNS CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O’GRADY, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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