Universal Consultancy Services Pty Ltd v Datta
[2008] NSWWCCPD 87
•19 August 2008
| WORKERS COMPENSATION COMMISSION | ||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||||
| CITATION: | Universal Consultancy Services Pty Ltd v Datta [2008] NSWWCCPD 87 | |||||
| APPELLANT: | Universal Consultancy Services Pty Ltd | |||||
| RESPONDENT: | Mrinal Datta | |||||
| INSURER: | Allianz Australia Workers Compensation (NSW) Limited | |||||
| FILE NUMBER: | WCC431-08 | |||||
| DATE OF ARBITRATOR’S DECISION: | 31 March 2008 | |||||
| DATE OF APPEAL DECISION: | 19 August 2008 | |||||
| SUBJECT MATTER OF DECISION: | Section 53 Workers Compensation Act 1987; whether the worker’s incapacity for work is likely to be of a permanent nature. | |||||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | |||||
| HEARING: | On the papers | |||||
| REPRESENTATION: | Appellant: | Hicksons | ||||
| Respondent: | Goldrick Farrell Mullan | |||||
| ORDERS MADE ON APPEAL: | For the reasons given in this decision, the Arbitrator’s decision dated 31 March 2008 is confirmed. | |||||
| The Appellant Employer is to pay the Respondent Worker’s costs of the appeal. | ||||||
INTRODUCTION
This appeal concerns whether the worker, Mrinal Datta, who now lives in India, is entitled to continue to receive weekly compensation under an award made by Burke ACCJ on 7 May 2002. The primary issue is whether Mr Datta’s incapacity for work resulting from his injury is “likely to be of a permanent nature”.
BACKGROUND
Mr Datta was born in India and is now 40 years of age. He completed a Bachelors’ Degree in Electrical Engineering in India, specialising in Information Technology. He came to Australia in 1998 on a working visa sponsored by Universal Consultancy Services Pty Ltd (‘the Appellant Employer/Universal’). His duties included administration and maintenance of multiple Oracle database systems and face-to-face presentations at training sessions, as well as liaising with clients.
On 3 February 2001, while travelling from one office to another in the course of his employment, Mr Datta sustained serious facial injuries when he was assaulted. His injuries consisted of bilateral displaced fractures of his lower jaw and soft tissue facial injuries. After initially being admitted to Concord Hospital he was transferred to Westmead Hospital where he underwent an open reduction and internal fixation of his jaw on 8 and 15 February 2001. Even with this surgery, Mr Datta still had a slightly open bite, right facial concavity and pain in his face. He also continued to suffer from anaesthesia of mouth, chin, lower lip and teeth, pain in his jaw and impaired speech. He was subsequently diagnosed with post-traumatic stress disorder (‘PTSD’), anxiety and depression as a result of the assault.
He initially claimed compensation in the Compensation Court of NSW (‘the Court’) and on 7 May 2002 the Court made the following award in his favour:
“1.That the respondent pay the applicant, on the basis of total incapacity, weekly compensation at the rate of:
(1) $1,237.80 from 24th July 2001 to 2nd August 2001.
(2) $291.10 from 3rd August 2001 to 30th September 2001.
(3) $296.20 from 1st August 2001 to 31st March 2001.(4)$301.40 as adjusted from 1st April 2001, such payments to continue [in] accordance with the provisions of the Act.
2.That the respondent pay the applicant, as lump sum compensation under section 66, $9,000 in respect of 15% loss of the applicant’s power of speech and $4,000 in respect of severe facial disfigurement.
3.That the respondent pay the applicant, as lump sum compensation under section 67, $10,000 in respect of pain and suffering.
4. That the respondent pay the applicant’s section 60 expenses.
5.That the respondent pay the applicant’s costs forthwith after they have been agreed or assessed.”
Mr Datta returned to India in about May 2002.
By notice dated 24 September 2007, Universal’s insurer, Allianz Australia Workers Compensation (NSW) Limited (‘Allianz’), disputed liability to continue weekly payments of compensation on the grounds that Mr Datta had failed to produce evidence of “the continuance of the incapacity in respect of which the weekly payment is payable” and that he had not been certified by an Approved Medical Specialist (‘AMS’), nor had the Workers Compensation Commission determined that his incapacity for work was likely to be of a permanent nature. It is unclear when weekly compensation payments ceased.
By an Application to Resolve a Dispute (‘the Application’) filed in the Commission on 22 January 2008, Mr Datta sought weekly compensation from 7 August 2007 to date and continuing in the sum of $1,903.74.
A Commission Arbitrator heard the matter in conciliation and arbitration on 18 March 2008 and, in a reserved decision delivered on 31 March 2008, determined that Mr Datta “suffers from an incapacity resulting from [an] injury that is likely to be of a permanent nature”.
LEAVE TO APPEAL
Monetary Threshold
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
There is no issue that the thresholds in section 352(2) are satisfied.
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
I grant leave to appeal.
ON THE PAPERS
Section 354(6) of the 1998 Act provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
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.
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a)making his decision on the basis of speculation or unsubstantiated opinion;
(b)making his decision on the basis of unqualified opinion, and
(c)failed to fairly and lawfully determine the Application.
NATURE OF A REVIEW
The Court of Appeal considered the nature of a ‘review’ under section 352 of the 1998 Act in Aluminium Louvres & Ceilings Pty Limited v Zheng [2006] NSWCA 34; (2006) 4 DDCR 358 (‘Zheng’), where Bryson JA said at [38]:
“A review is a different process to an appeal and the matters which may be considered and the manner in which they may be considered are somewhat wider. See Boston Clothing Co Pty Ltd v. Margaronis (1992) 27 NSWLR 580 at 584 (Kirby P). An attack, on review or otherwise, on an Arbitrator's discretionary decision in controlling procedure may be based on the test stated in House v. R (1936) 55 CLR 499 at 504 - 505; but that is not the only basis on which the Presidential member may act. The powers of a Presidential member on review are somewhat wider and extend to power to reopen consideration of a matter of which an Arbitrator has disposed; the manner in which the powers of the Presidential member are to be exercised is itself the subject of discretion of the Presidential member.”
McColl JA approved this passage in South Western Sydney Area Health Service v Edmonds (2007) 4 DDCR 421; [2007] NSWCA 16 at [134] (‘Edmonds’). To describe the relative weight and relevance of the expert evidence as “a discretionary decision which could only be disturbed on House v The King principles” was described by McColl JA as “an over-generalisation” (at [133]). Thus, on review, a Presidential member is not bound by an Arbitrator’s discretionary decision, but can reach his or her own conclusion.
The nature of a review was further considered by the Court of Appeal in State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249; (2007) 5 DDCR 287 (‘Chemler’) where Spigelman CJ said at [28] and [30]:
“28. The concept of a review on the merits is wider than the concept of an appeal in a judicial context. There is a well established line of authority on the use of the terminology of ‘review’ instead of ‘appeal’ with respect to the workers compensation system in this State which establishes the breadth of a review on the merits.
…
30. A Presidential member exercising a power to review a decision must decide whether the original decision is wrong or, as it is often put in the context of administrative appeals on merits, must decide what is the true and correct view. If s/he does so decide then s/he should substitute his or her own views, unless it is an appropriate case to remit. The power to remit is not constrained in the manner for which the Appellant contends.”
I intend to apply the above principles in the matter before me.
EVIDENCE
Dr McGoldrick, Senior Oral & Maxillofacial Surgery Registrar at Westmead Hospital, reported on 6 September 2001 that Mr Datta’s fractures were “quite displaced”. Mr Datta was warned that there may be peripheral nerve deficits, he may not get satisfactory occlusion, and that he may have ongoing pains, “being temporomandibular or otherwise”. Though Mr Datta underwent open reduction and internal fixation on two occasions, his fracture was “very oblique” and, therefore, “very difficult to stabilise”. As a result, Professor McKellar determined that an adjunct intermaxillary fixation was required and that was performed on 19 February 2001. After the surgery, Mr Datta continued to feel he had an open bite and right facial concavity and increased mobility of tooth 43 [sic]. He remained “very concerned regarding his facial appearance and orofacial function plus sensation (including paraesthesia, hypoaesthesia and dysaesthesia [sic], all consistent with inferior alveolar neuropraxia)” and he was referred for neuropsychological assessment.
Mr Datta underwent neuropsychological testing by Sandra Graudins, Clinical Psychologist, and John Anderson, Registered Psychologist and Consultant Psychophysiologist, on 26 April 2001. In their report of 7 May 2001, they assessed Mr Datta to have weaknesses in concentration, slowed processing speed, verbal fluency, and planning and organisation ability. The test results appeared to be best understood in terms of functional changes in cognitive function that are secondary to anxiety and affective disturbance, rather than those that are neurological in origin.
Mr Datta came under the care of Dr Nasser, Psychiatrist, in May 2001. In his report of 2 August 2001, Dr Nasser diagnosed Mr Datta to have “concussion and a post traumatic stress disorder that was severely disabling” and expressed concern that the prognosis may be poor because of Mr Datta’s ongoing symptoms.
In his report of 18 October 2001, Dr Nasser recorded that the injury to Mr Datta’s jaw had caused chronic pain and speech impairment, which were aggravated if he talked for more than 10-15 minutes. Dr Nasser added that Mr Datta:
“cannot work because his job requires much conversation and he needs to be available 24 hours per day and able to function. If he takes Panadeine Forts and/or Diazepam, this ability to function is impaired.
In my opinion, Mr Datta is permanently disabled. I shall continue to treat him in the hope he will improve.” (emphasis added)
Because of his continuing symptoms, Mr Datta was referred to the Pain Management and Research Centre at Royal North Shore Hospital on 14 November 2001, where he came under the care of Dr Boocock, the Centre’s Visiting Dental Officer. In a report dated 3 March 2002, Dr Boocock set out Mr Datta’s extensive surgical history and noted his presenting complaints to be:
“1.Pain in the region of the lower left canine tooth (‘33’ tooth). The tooth was reported as being tender to percussion, and painful with chewing.
2.Sharp, burning sensation of the buccal and lingual soft tissues in the region of this tooth.
3.A burning discomfort in the soft tissues of the region of the lower left second pre-molar (the 35 tooth), which extended to the region of the lower left second molar (the 37 tooth).
4.A paraesthesis of the lower lip and associated soft tissues. This was accompanied by a sensation of swelling of the lower lip.
5.Using the descriptors of the McGill Pain Questionnaire Mr Datta described his pain as ‘lacerating, burning, sore and stinging’.”
Mr Datta also complained that eating, talking, and facial movements, such as smiling, all exacerbated his pain. He avoided smiling at people, due to the discomfort it caused. His pain compromised his ability to maintain social relationships and he reported feelings of loneliness, dejection and anxiety about his persistent pain and injuries. Dr Boocock concluded that Mr Datta:
“Appears to have developed an Oral Neuropathic Pain. This appears to have resulted from the injuries sustained in the alleged assault.
Mr Datta’s oral neuropathic pain appears to have neuralgic and causalgic qualities with a secondary sympathetic hyperfunction (responsible for the sensations of swelling).”
Dr Boocock recommended a trial of Zostrix (Capsaicin) and contacted Dr Nasser and requested his assistance with the supervision and management of a trial of Neurontin. On 31 January 2002, Mr Datta reported a 10% reduction in his pain intensity and symptoms. Later, Mr Datta started a trial of Prothiaden (anti-depressant medication) and, whilst he reported less daytime drowsiness and fewer concentration difficulties at review on 28 February 2002, there was no further pain reduction. He complained of sensitivity in his lower anterior teeth and pain on touching or washing his face. Dr Boocock stated she would write to Dr Nasser and advise an increased dose of Prothiaden.
In a report on 5 February 2002 (wrongly dated 5 February 2001), Dr Nasser recorded Mr Datta to have the following symptoms and complaints:
· anaesthesia of the mouth, chin, lower lip and teeth;
· a crooked bite;
· increasing pain in his jaw, which varies in intensity but is constant;
· impaired speech;
· disturbed sleep;
· irritability;
· poor concentration;
· reduced short term memory;
· depression and anxiety about his future, and
· suicidal thoughts.
Despite treatment with anti-depressant medication, Dr Nasser noted there had been little improvement. He thought the prognosis “may be poor because of his ongoing symptoms”. He concluded:
“In my opinion, he is currently unemployable and will remain so while his symptoms persist. His difficulty with communication because of the injury to his jaw aggravates his symptoms. I consider his prognosis poor and it is improbable he will respond to treatment. I have no suggestions to make about other employment options.” (emphasis added)
After returning to India, Mr Datta came under the care of Dr Mishra, Oral & Maxillofacial Surgeon, and Dr Dash, Consultant Psychiatrist. Since November 2002, Dr Mishra has provided Allianz with 18 medical certificates attached to a document headed “CLAIM FORM FOR PAYMENT ON BEHALF OF WORKER RESIDING OUTSIDE AUSTRALIA”. The certificates are in similar terms. The certificate of 21 November 2002 listed Mr Datta’s complaints as:
“Severe chronic pain in the lower jaw, spreading to other orofacial locations, complaians [sic] of dysthesis [sic], tightness, lancinating, sore and burning quality of pain aggravated by smile, speech, and orofacial functions. Psychiatric conditions such as depression, overt anxiety, difficulty in concentration, sleeplessness, and coping with day-to-day problems.”
Dr Mishra diagnosed “neuropathic orofacial pain, and PTSD causing ADL deficits”.
Later certificates also noted “associated psychological distress due to lack of pain relief” (5 December 2003).
The certificate of 29 September 2007 listed Mr Datta’s complaints as:
“He experiences severe chronic pain in the lower jaw and lower facial areas. His pain is aggravated by smiling, talking and similar orofacial functions.”
He added:
“Continuation of Neuropathic orofacial pain and psychiatric problems. Patient continues with maintenance dose for pain management and treatment as prescribed by the psychiatrist.”
In a detailed report of 4 December 2007, Dr Mishra set out a history of the assault and Mr Datta’s treatment in the months following. On returning to India, Mr Datta remained on the following drugs: Gabapentin (an anti-epileptic), Amytrptyline (an anti-depressant), Prothiaden (an anti-depressant) and a local anaesthetic cream, with little success. Under “Current Status”, Dr Mishra listed Mr Datta’s symptoms and problems as follows:
· bouts of dull aching and sometimes severe pain that crosses the anatomical midline of the mandible and maxilla and involves the face;
· inability to open his mouth satisfactorily;
· fear of “pain on touch to his face”;
· difficulty talking;
· exacerbation of pain with talking;
· disturbed sleep pattern, and
· social isolation.
Under “Summary of Assessment” Dr Mishra concluded:
“The level of pain can be quite devastating as medical science has little to offer without intolerable side effects. There may be a few drugs on [an] experimental basis but it requires approval of several regulatory bodies before it is passed on to the public. Therefore, it is not possible to give a timeframe when he could return to gainful employment but from a vocational perspective it is unlikely that he would ever return to any gainful employment having regard to his training, pre-injury employment, years of unemployment and lack of progress towards being re-employed. Moving into another field would essentially require complete retraining. Besides age, relevant experience proportional to one’s age is an influencing factor in obtaining employment. Consequently, I am pessimistic about his recovery and of [the] opinion that he may as well be considered totally and permanently incapacitated.” (emphasis added)
Mr Datta’s evidence is in his statement of 20 December 2007. As Universal’s Database Administrator, Mr Datta’s responsibilities included administration and maintenance of all production and non-production databases and the development and maintenance of administration policies and procedures. His duties involved human interactions such as in meetings, discussions, consultations and conferences, in addition to technical functions.
Mr Datta describes experiencing the following symptoms since the assault:
(a)severe pain in his lower face that is “dull, tight, sore and often unbearable”;
(b)pain in the jaw, toothache, clenching of the jaw, sore gums, difficulty in chewing, grinding his teeth;
(c)inability to open his mouth fully;
(d)his speech is “slurry and non-contiguous” because there is a feeling of swelling on his lower lip that is painful;
(e)inability to eat solid food;
(f)disturbed sleep;
(g)inability to shave because of pain on touching his face;
(h)depression, and
(i)anxiety, which has caused loss of concentration.
Mr Datta states that he has continued to take the medication prescribed by the Pain Management Centre at Royal North Shore Hospital, even after his return to India where Dr Mishra and Dr Dash supervised his medication. His treatment has provided “little relief” from his symptoms and he believes his incapacity is permanent. The question of whether Mr Datta’s incapacity is permanent is a matter for the Commission to determine and his opinion is of no weight on this question, which is primarily a medical issue. His evidence as to his continuing symptoms, his medication, and the nature of his pre-injury duties, however, has not been challenged and I accept it.
THE ARBITRATOR’S REASONS
After setting out a succinct summary of the relevant evidence, the Arbitrator found:
(a)Dr Mishra’s expertise is limited to dentistry and, accordingly, he cannot give an opinion about Mr Datta’s psychological condition, but he is entitled to give an opinion about the dental problems (Statement of Reasons for Decision (‘Reasons’), paragraph 17);
(b)it is apparent from Dr Mishra’s report that Mr Datta has continued to receive psychiatric treatment to the current day. Mr Datta continues to suffer from significant pain to his face and lower lips and “it is not hard to draw an inference that the continuing pain would result in an economic incapacity” (Reasons, paragraph 19). In any event, Mr Datta’s ongoing need for treatment and his ongoing medication is consistent with the opinion given by Dr Nasser in 2002 that the prognosis was poor;
(c)Mr Datta’s symptoms have persisted for over seven years and, in those circumstances, Dr Nasser’s opinion appears to be correct and Mr Datta’s condition is likely to be permanent in nature (Reasons, paragraph 19), and
(d)it is clear that the condition is currently incapacitating and accordingly Mr Datta is likely to be permanently incapacitated (Reasons, paragraph 19).
SUBMISSIONS
The Appellant Employer submits that the Arbitrator:
(a)based his determination on the unsubstantiated account of Dr Dash’s psychiatric treatment provided to Mr Datta, as reported by Dr Mishra;
(b)formed an opinion as to the extent and nature of Mr Datta’s psychiatric treatment on the basis of an unsubstantiated report of treatment allegedly provided by Dr Dash. This opinion led the Arbitrator to conclude that Dr Nasser’s assessment of a “poor prognosis” in 2002 was realised seven years later and justified the finding that Mr Datta’s incapacity was likely to be of a permanent nature;
(c)Dr Dash’s involvement with Mr Datta was merely reported by Dr Mishra and Dr Dash gave no evidence. Dr Mishra reported that Mr Datta “remained under the care” of Dr Dash and the Arbitrator presumed that this necessarily implied Mr Datta had an “ongoing need for psychiatric treatment”. There is no evidence that this is in fact the case. Details of the extent of Mr Datta’s treatment have not been verified. Mr Datta’s assertion that he continues to seek treatment from Dr Dash, the validity of that claim, and the frequency of that treatment has not been independently reported by Dr Dash;
(d)there is no explanation as to why there is no evidence from Dr Dash and the Arbitrator should have drawn an inference that any report from Dr Dash would not have supported Mr Datta’s claim (Jones v Dunkel (1959) 101 CLR 298 (‘Jones v Dunkel’));
(e)an opinion about Mr Datta’s current need for psychiatric treatment, not directly provided by Dr Dash, is speculative;
(f)the Arbitrator formed an opinion on the basis of evidence that was speculative or unsubstantiated;
(g)the Arbitrator based his opinion on an unqualified opinion, namely, Dr Mishra’s evidence. Dr Mishra is a dentist, not a psychiatrist and the Arbitrator should not have accepted his report regarding the treatment provided to Mr Datta by Dr Dash;
(h)the Arbitrator accepted Dr Mishra’s account of symptoms and that led to his determination that Mr Datta’s incapacity was likely to be of a permanent nature. It was not open to the Arbitrator to form his own opinion on the basis of evidence that Dr Mishra was not qualified to give;
(i)by accepting unsubstantiated, unqualified and speculative evidence, the Arbitrator failed to exercise his discretion to determine the matter fairly and lawfully;
(j)the Arbitrator failed to adhere to Part 15 Rule 15.2 of the Workers Compensation Commission Rules 2006 (‘the Rules’), and
(k)the Appellant Employer has not been allowed procedural fairness by the Arbitrator, who has determined the matter on the basis of evidence that was not produced and to which it had no opportunity to respond.
Mr Datta submits:
(a)no error is demonstrated in the Arbitrator’s decision;
(b)the Arbitrator found in his favour on two grounds: first, relating to physical incapacity, and, second, psychiatric incapacity;
(c)a third ground (not relied on by the Arbitrator) entitled the Arbitrator to find in his favour, namely, he received an award on 7 May 2002 in respect of 15% loss of power of speech and 5% severe facial disfigurement;
(d)the decisions of Harvey v Fliway-AFA International Pty Ltd (1994) 10 NSWCCR 51 (‘Harvey’) and Singh v Taj (Sydney) Pty Ltd [2007] NSWWCCPD 152 support the proposition that where he has received an earlier award for permanent impairment under section 66 of the 1987 Act, the Arbitrator was entitled, if not obliged, to consider this evidence as evidence of incapacity of a permanent nature;
(e)there is abundant evidence of physical incapacity, namely,
(i)the awards for permanent impairment for loss of power of speech and severe facial disfigurement;
(ii)his evidence that he suffers from severe pain in his lower face, toothache, inability to open his mouth fully or smile, slurring of his speech and difficulty sleeping;
(iii)the evidence from Dr Mishra in the many certificates from 21 November 2002 until 29 September 2007, to the effect that he (Mr Datta) suffers from severe chronic pain in the lower jaw spreading to other orofacial locations;
(iv)the evidence from Dr McGoldrick describing multiple surgical procedures, following which he (Mr Datta) complained of ongoing symptoms;
(v)the evidence of Dr Boocock diagnosing oral neuropathic pain and her opinion that his (Mr Datta’s) condition is likely to require long term management, and
(vi)the evidence from Dr Mishra corroborating his (Mr Datta’s) statement of ongoing physical symptoms and stating he was “pessimistic about his recovery and of the opinion that he may as well be considered totally and permanently incapacitated”.
(f)the issue is medical incapacity, not incapacity in the economic sense (per Harvey);
(g)the Arbitrator did not find in his favour solely on the basis of Dr Mishra’s opinion, but on the basis of the totality of the evidence;
(h)it is incorrect to say that Dr Mishra is not qualified to give an opinion within his area of expertise. As an Oral & Maxillofacial Surgeon, Dr Mishra is qualified to give an opinion on the incapacitating effects of pain in the jaw and lower face and the other physical symptoms described by Mr Datta in his statement;
(i)there is ample persuasive evidence of psychiatric incapacity;
(j)as to why there is no report from Dr Dash, it is noted in Dr Mishra’s report that Dr Dash is away overseas;
(k)the Arbitrator was entitled to accept that he (Mr Datta) continues to receive psychiatric care and remains incapacitated on psychiatric grounds, given the evidence in Dr Mishra’s report that Dr Dash continued to provide supervisory care once Mr Datta returned to India, and that amongst the drugs prescribed for him are Amytrptyline and Prothiaden (both anti-depressants), and
(l)the Arbitrator was entitled to take this evidence into account on the issue of whether he (Mr Datta) was in fact continuing to receive treatment in relation to his psychiatric problems. In doing so, the Arbitrator was not accepting an opinion from Dr Mishra on areas outside his expertise, but merely accepting evidence of matters of fact.
Universal filed submissions in reply on 25 June 2008, reiterating its initial submissions that any opinion offered by Dr Mishra outside his area of expertise was necessarily unqualified and that the Arbitrator found in favour of Mr Datta on the corroboration of Dr Nasser’s opinion by the “evidence” of Dr Dash. These conclusions, it is argued, were not open to the Arbitrator on the available evidence.
THE LEGISLATION AND AUTHORITIES
Before considering Universal’s submissions, it is appropriate to consider the terms of the legislation and authorities. Section 53 of the 1987 Act provides:
“53 Weekly payments-residence outside the Commonwealth
(1) If a worker receiving, or entitled to receive, a weekly payment of compensation under an award ceases to reside in Australia, the worker shall thereupon cease to be entitled to receive any weekly payment, unless an approved medical specialist certifies, or the Commission determines, that the incapacity for work resulting from the injury is likely to be of a permanent nature.
(2) If the incapacity is so certified or determined to be of a permanent nature, the worker is entitled to receive quarterly the amount of the weekly payments accruing due during the preceding quarter, so long as the worker establishes, in such manner and at such intervals as the Authority may require, the worker’s identity and the continuance of the incapacity in respect of which the weekly payment is payable.”
In Harvey, Bishop CCJ held, and it has not been challenged before me, that the term “incapacitated” in section 53 refers to “incapacity in the medical and not the economic sense” (55F). In that case the distinction was of some importance because the worker only claimed compensation for a number of closed periods and she suffered no economic loss at the time of the hearing. His Honour held that that fact did not prevent a finding that the worker’s incapacity was of a permanent nature. That finding was based on the evidence that the worker suffered a 20% permanent loss of efficient use of her left leg at or above the knee, which caused an incapacity for work.
Whilst I agree that the reference to incapacity in section 53 is probably a reference to incapacity in a medical sense, the incapacity must be an “incapacity for work” and I do not understand his Honour to have found otherwise. Thus, it is not sufficient for a worker to establish only that he or she has a medical condition, or loss, that is likely to be of a permanent nature. The medical condition or impairment must be one that has caused an incapacity for work, though it may not result in an entitlement to an award of weekly compensation at the time the claim is heard because, at that time, there is no economic loss. This issue is discussed further, in the context of the present claim, at [63] and [64] below.
At the arbitration, counsel for Universal submitted that “likely” in section 53 means, “ on the balance of probabilities 51 per cent” (T4.37). I note that several authorities have considered the meaning of the word “likely” in a different context (Australian Telecommunications Commission v Krieg Enterprises Pty Ltd (1976) 27 FLR 400 at 410; Tillmans Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union (1979) 42 FLR 331 at 339; Boughey v R (1986) 161 CLR 10 at 14 per Gibbs CJ, at 18-22 per Mason, Wilson, Deane JJ, at 42-4 per Brennan J), and held that “likely” means “probable”. Whether there is any difference between “probable” and “on the balance of probabilities” has not been argued and I express no concluded view. For the purpose of the present appeal, I accept that “likely” in section 53 means “on the balance of probabilities”, as submitted by Universal’s counsel at the arbitration.
The courts have considered the word “permanent” in several cases. In Henrikson v Grafton Hotel [1942] 2 KB 184 at 196, it was held that “permanent” is a relative term and is not synonymous with “everlasting”.
In Rolfe v Metropolitan Meat Industry Board [1958] 32 WCR 135, Wall J held (at 138):
“The dictionary meaning of ‘permanent’ as given in the Shorter Oxford English Dictionary is ‘Lasting or designed to last indefinitely without change; enduring; persistent: opp. to temporary.’ It will be seen that this meaning falls short of the notion of a perpetual state of affairs; and that, whilst what is permanent may continue for all time, it need not necessarily do so.”
In McDonald v Director-General of Social Security (1984) FCR 345 the Full Federal Court considered the meaning of “permanently incapacitated” in section 124 of the Social Security Act 1947 (Cth) where Woodward J said, at 361:
“In my view the true test of a permanent, as distinct from a temporary, incapacity is whether in the light of the available evidence it is more likely than not that the incapacity will persist in the foreseeable future.”
In Department of Agriculture (NSW) v Allen (2000) 20 NSWCCR 314 Powell JA considered the word “permanent” in the context of a claim for lump sum compensation under section 66 of the 1987 Act and assumed (at [133]) that it “postulates an impairment which will, at least, remain constant and may even deteriorate and which will be of an indefinite duration”. Davies A-JA (Ipp JA agreeing) quoted this passage, with apparent approval, at [41] in Ansett Australia Ltd v Dale (2001) 22 NSWCCR 527.
In section 53, the word “permanent” is qualified by the word “nature”. I interpret the qualification to mean, “having the qualities of” (Macquarie Dictionary, first edition), though I doubt that the qualification makes any practical difference to the meaning of “permanent”.
Applying the above authorities, it is my view that an incapacity is “likely to be of a permanent nature” within the meaning of section 53, if it is an incapacity that is lasting and likely (on the balance of probabilities) to be of an indefinite duration. It does not mean a perpetual state of affairs that will continue for all time.
DISCUSSION AND FINDINGS
I do not accept Universal’s submission that the Arbitrator acted on unsubstantiated or unqualified evidence. The evidence that Mr Datta remains on anti-depressant medication, as a result of his work injury, comes from two sources: first, Mr Datta’s statement that, after he returned to India, his symptoms continued and he continued to take the drugs prescribed by the Pain Management Centre at Royal North Shore Hospital, and, second, the statement to that effect from Dr Mishra, who is one of Mr Datta’s two treating specialists.
Universal has not challenged Mr Datta’s evidence and has called no evidence to contradict his claims. Mr Datta’s evidence is that his symptoms have continued and he has, “till this day”, received little relief from his medication. Further, the evidence is that Mr Datta’s “drug regime” on his return to India continued under supervision by Dr Mishra and Dr Dash, not just by Dr Dash. In Australia, the situation was similar. Dr Boocock, a “Visiting Dental Officer”, took an active role in managing Mr Datta’s medication. It was Dr Boocock who wrote to Dr Nasser and suggested replacing Amitriptyline with Prothiaden and, later, suggested an increase in the daily dose of Prothiaden. In these circumstances, the Arbitrator was entitled to give weight to Dr Mishra’s evidence about Mr Datta’s medication. It was therefore not unreasonable for the Arbitrator to conclude that, in the light of all the evidence of Mr Datta’s subsequent progress, Dr Nasser correctly concluded that Mr Datta’s prognosis was “poor”.
However, the case does not turn on Dr Dash’s involvement in Mr Datta’s treatment, or even on Mr Datta’s need for psychiatric treatment. Therefore, whether the Arbitrator was correct in deciding that Mr Datta’s “ongoing need for psychiatric treatment and his ongoing medication is consistent with the opinion given by Dr Nasser in 2002”, is not determinative of the issues in the case. The question is not whether Mr Datta has an ongoing need for psychiatric treatment, but whether “the incapacity for work resulting from the injury is likely to be of a permanent nature”. The answer to that question requires a consideration of all the evidence. It is relevant to observe that Universal has tendered no evidence.
Dr Nasser did not merely say that Mr Datta’s prognosis was poor. He also said, in his report of 18 October 2001, that Mr Datta was “permanently disabled” and that he could not work because “his job requires much conversation”. He added in his report of 5 February 2002, that Mr Datta was “currently unemployable and will remain so while his symptoms persist”, and that his difficulty with communication because of his jaw injury aggravates his symptoms. Mr Datta’s unchallenged evidence, which I accept, is that his symptoms do persist and that he remains on medication for those symptoms. In these circumstances, even if the Arbitrator erred in his approach and findings, that error is of no consequence as a review of the evidence, even excluding Dr Mishra’s evidence, leads to the same conclusion.
Dr Mishra’s evidence reinforces the conclusion that Mr Datta’s incapacity for work, resulting from the injury, is likely to be of a permanent nature. After setting out Mr Datta’s history, medication, the intractable nature of his neuropathic pain, and his current status, Dr Mishra concluded that the level of pain can be “quite devastating” and that, from a “vocational perspective”, it is unlikely that Mr Datta will “ever return to any gainful employment”. Consequently, he concluded that Mr Datta “may as well be considered totally and permanently incapacitated”. Given the nature of Mr Datta’s facial injury and his continuing “orofacial neuropathic pain”, Dr Mishra is entitled, as an Oral & Maxillofacial Surgeon, to express that opinion and I accept his evidence. He is not entitled to give an opinion as to Mr Datta’s psychiatric condition and I place no weight on that part of his evidence. However, as I have noted, Mr Datta does not have to rely on that part of Dr Mishra’s evidence in order to succeed.
Universal argues that, under the rule in Jones v Dunkel, the Arbitrator should have drawn an adverse inference against Mr Datta because no explanation has been offered as to why no report was obtained from Dr Dash. The resolution of the case may have been aided by a report from Dr Dash and I accept that no adequate explanation has been offered as to why no report was obtained. Dr Dash may well have been overseas at the time Dr Mishra wrote his report, but that does not explain why Mr Datta’s solicitor did not obtain a report from him.
The principle in Jones v Dunkel is summarised in Cross on Evidence, seventh Australian edition 2004, at [1215], as follows:
“First, that unexplained failure by a party to give evidence, to call witnesses, or to tender documents or other evidence or produce particular material to an expert witness may, not must, in appropriate circumstances lead to an inference that the uncalled evidence would not have assisted that party’s case:…
The significance to be attributed to the fact that a witness did not give evidence will in the end depend upon whether, in the circumstances, it is to be inferred that the reason why the witness was not called was because the party expected to call him feared to do so. But there will be circumstances in which it has been recognised that such an inference is not available or, if available, is of little significance. The party may not be in a position to call the witness.”
Jones v Dunkel “licences, but does not compel, the drawing of inferences when a witness is not called” (per Campbell JA in Howell v Macquarie University [2008] NSWCA 26 at [98]). In the present case, I am not satisfied that it is appropriate to draw an adverse inference because of the failure to obtain a report from Dr Dash. On the available evidence, I have no reason to infer that no report was obtained from Dr Dash because Mr Datta “feared” that such a report would be unfavourable. The evidence from Dr Mishra strongly implies that Dr Dash supports the continuation of Mr Datta’s treatment regime. Further, given Dr Nasser’s unchallenged evidence on the issue of permanence, it was not essential for Mr Datta to have a report from Dr Dash. I decline to draw the inference urged by Universal.
The Arbitrator did not base his conclusion on the unqualified opinion of Dr Mishra, but merely noted that Dr Mishra confirmed that Mr Datta has continued to receive psychiatric treatment to the present. That is correct and confirms Mr Datta’s evidence to that effect. It did not involve an acceptance of a psychiatric diagnosis from a dentist.
I do not believe the Arbitrator denied Universal procedural fairness or that he determined the case on the basis of evidence that was not produced. The Arbitrator gave Universal every opportunity to present its case and to make submissions. Whilst Universal made submissions at the arbitration, it chose not to tender any evidence. The duty to accord procedural fairness is not an abstract concept but requires the avoidance of “practical injustice” (In Re Minister for Immigration & Multicultural Affairs; ex parte Lam (2003) 214 CLR 1 per Gleeson CJ at [37]). Universal suffered no injustice as a result of the conduct of the arbitration. It had every opportunity to be heard and to present its case.
Mr Datta argues that there is an additional ground on which the Arbitrator’s decision should be upheld, namely, that the issue is medical incapacity, not incapacity in the economic sense, and the award by Burke ACCJ included an award for a 15% permanent loss of Mr Datta’s power of speech and 5% severe facial disfigurement. The fact that these awards have been entered establishes, so it is argued, that Mr Datta’s incapacity is of a permanent nature and he is therefore entitled to an order in his favour under section 53.
This submission oversimplifies and misstates the decision in Harvey. It is not sufficient, in order to satisfy section 53, that a worker has a permanent loss (or, ‘impairment’, in respect of injuries after 1 January 2002). Having a permanent loss (or ‘impairment’) may or may not result in incapacity for work, but one cannot infer, from an award having been made in favour of a worker under section 66 of the 1987 Act, that the worker has an incapacity for work (Ric Developments t/as Lane Cove Poolmart v Muir [2008] NSWCA 155, per Campbell JA at [47] (Rein J agreeing)). The evidence must establish that incapacity (though not necessarily incapacity resulting in an economic loss at the time of the hearing) has resulted from the loss (or ‘impairment’) and/or any other compensable injuries, and that the incapacity is likely to be of a permanent nature. For the reasons given above, the evidence comfortably establishes those matters in the present case. That is not to say, however, that awards of 15% permanent loss of power of speech and 5% severe facial disfigurement, on their own, establish an entitlement to a finding under section 53. They do not.
CONCLUSION
Given Dr Nasser’s undisputed evidence, together with Mr Datta’s unchallenged evidence, given in December 2007, that his symptoms have continued, and given Dr Mishra’s evidence of the effect on Mr Datta of his continuing orofacial neurpathic pain, I am comfortably satisfied, and I determine, that Mr Datta’s incapacity for work resulting from his injury on 3 February 2001 is likely to be of a permanent nature. Having conducted a “review on the merits” (per Spigelman CJ at [28] in Chemler), the Arbitrator’s decision must be and is confirmed.
DECISION
For the reasons given in this decision, the Arbitrator’s decision dated 31 March 2008 is confirmed.
COSTS
The Appellant Employer is to pay the Respondent Worker’s costs of the appeal.
Bill Roche
Deputy President
19 August 2008
I, TUYET WALLIS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
11
10
0