Vettas v Cho
[2006] NSWWCCPD 122
•15 June 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Vettas v Cho [2006] NSWWCCPD 122
APPELLANT: Stella Beba Vettas
RESPONDENT: Dr FS Cho
INSURER:GIO General Limited
FILE NUMBER: WCC7238-04
DATE OF ARBITRATOR’S DECISION: 17 August 2005
DATE OF APPEAL DECISION: 15 June 2006
SUBJECT MATTER OF DECISION: Weekly Benefits Compensation; Incapacity; Weight of Evidence
PRESIDENTIAL MEMBER: Dr Gabriel Fleming, Deputy President
HEARING:On the Papers
REPRESENTATION: Appellant: Jordan Djundja Solicitor
Respondent: Turks Legal
ORDERS MADE ON APPEAL: Leave to appeal is granted.
The decision of the Arbitrator is confirmed.
No order as to costs.
BACKGROUND TO THE APPEAL
Stella Vettas worked for Dr Cho as a secretary/receptionist in his medical practice when, on 15 June 1999, she was injured in a car accident while on her lunch break. She claimed to have suffered an injury to her back, legs, arms and neck as a result of the accident.
GIO Workers Compensation (‘GIO’) was Dr Cho’s workers compensation insurer. GIO accepted Ms Vettas’ claim and she was paid weekly benefits compensation until 6 March 2002 when, on the basis of medical advice, it took the view that Ms Vettas was no longer incapacitated as a result of the injury of 15 June 1999.
Ms Vettas continues to seek weekly benefits compensation and reasonable medical expenses. She has also made a claim for lump sum compensation for permanent impairment of her back, left and right legs and her neck. GIO denied liability for the claim and on 29 April 2004 Ms Vettas lodged an ‘Application to Resolve a Dispute’ in the Commission. The dispute was determined by an Arbitrator on 17 August 2005 and on 13 September 2005 Ms Vettas sought leave to bring an ‘Appeal Against Decision of Arbitrator’.
The Respondent to the Appeal is Dr Cho, however GIO appeared for and on behalf of Dr Cho in all Commission proceedings.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 17 August 2005 records the Arbitrator’s orders as follows:
“ The Determination of the Commission in this matter is as follows:
·The respondent [Dr Cho] is to pay the applicant [Ms Vettas] the sum of $3000 for s.66 permanent impairment based on the MAC [Medical Assessment Certificate], which has issued.
·An award for the respondent in relation to the claim for weekly benefits.
·There should be an award for the respondent in relation to medical expenses.
·The respondent to pay the applicant’s costs of these proceedings as agreed or assessed.”
ISSUES IN DISPUTE
Ms Vettas does not challenge the Arbitrator’s award in relation to permanent impairment compensation or costs. She disputes the award in favour of Dr Cho for her claim to weekly compensation from 6 March 2002 (and continuing) and for medical expenses. Ms Vettas submitted that there were four grounds of appeal, namely:
“1.The determination of the Arbitrator was against the evidence and the weight of the evidence (‘Weight of Evidence’).
2.The Arbitrator’s finding that the medical evidence of the Applicant’s treating doctors tendered on behalf of the Applicant ‘showed that there is a very small permanent physical impairment as a result of the accident’ was an error of fact (‘Error of Fact-Permanent Impairment’).
3.The Arbitrator’s reason mentioned in [paragraph] 23 was an error of law to the extent that the Arbitrator meant to convey that the applicant’s treating doctors did not give any evidence in support of the Applicant’s permanent physical impairment and did not comment on the issue of incapacity (‘Incapacity’).
4.The Arbitrator’s reasons mentioned in [paragraph] 25 were an error of fact in that evidence was provided to support the claim for medical expenses (‘Medical Expenses’).”
GIO submitted that the Arbitrator’s decision was correct and should be affirmed.
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.”
Ms Vettas submitted that the matter should be determined by way of an oral hearing of the appeal because this will “enable both parties to deal with others competing submissions”.
GIO submit that the appeal should be determined on the papers.
I have before me all of the evidence and submissions that were before the Arbitrator and that have been made on appeal. Neither party seeks to file ‘fresh evidence’ on appeal. The issues in this matter are not particularly complex and can adequately be reviewed on the basis of these documents. The parties have had the opportunity to make submissions and the issues between the parties have been subject to litigation for a considerable time. There is no denial of procedural fairness in proceeding to determine the appeal on the papers before me. I have also had regard to the Commission’s Practice Directions, Numbers 1 and 6.
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, which provides:
“352 Appeal against decision of Commission constituted by Arbitrator
(1)A party to a dispute in connection with a claim for compensation may, with leave of the Commission constituted by a Presidential member, appeal to the Commission as so constituted against a decision in respect of the dispute by the Commission constituted by an Arbitrator.
(2)The Commission is not to grant leave to appeal unless the amount of compensation at issue on the appeal is both:
(a)at least $5,000 (or such other amount as may be prescribed by the regulations), and
(b)at least 20% of the amount awarded in the decision appealed against.
(3)If the Commission refuses to grant leave to appeal, the Commission must state reasons for the refusal in writing to the parties.
(4)An appeal can only be made within 28 days after the making of the decision appealed against.
(5)An appeal under this section is to be by way of review of the decision appealed against.
(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.
(7)On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.
(8)In this section, decision includes an award, interim award, order, determination, ruling and direction.”
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
The threshold requirements of section 352(2) (a) and (b) of the 1998 Act are met.
Leave to appeal is granted.
CONSIDERATION OF THE ISSUES
Weight of Evidence
The weight to be given to the evidence is a matter for the discretion of the Arbitrator and her decision in this regard should not be overturned unless it is demonstrated that she demonstrably failed to exercise this discretion fairly and lawfully. Rule 70 of the Workers Compensation Commission Rules 2003, provides as follows:
70 Principles of Procedure
When informing itself on any matter, the Commission is to bear in mind the following principles:(a) evidence should be logical and probative,
(b) evidence should be relevant to the facts in issue and the issues in dispute,
(c) evidence based on speculation or unsubstantiated assumptions is unacceptable,
(d) unqualified opinions are unacceptable.
Ms Vettas submitted there was evidence that demonstrated she continued to be incapacitated as a result of her injury. She refers to reports of Dr Jeni Saunders dated 5 August 1999, 22 February 2000 and 15 May 2003, which she says demonstrate that Dr Saunders:
“…is clearly of the view that the Applicant/Worker was unfit for her pre-injury duties and that she would be fit for part-time work approximately 3 hours per day on alternate days”.
GIO submitted that these reports,
“…were not in evidence before the Commission. That is made clear by Part 5.1 of the Application to Resolve a Dispute in which those reports are not referred to. Furthermore, the arbitrator in paragraph 10 of her decision clearly indicates that the only documents apart from written submissions that she had from the applicant were documents attached to the Application to Resolve a Dispute. Furthermore, the respondent has never been served with those reports… Therefore, any submissions made by the applicant based on reports of Dr Saunders are flawed because that evidence was not admitted into the proceedings.”
This is an extraordinary submission for GIO to make because the ‘Reply’ to the ‘Application to Resolve a Dispute’ filed by Turks Legal on behalf of the GIO on 11 May 2004 annexes reports of Dr Saunders dated 5 August 1999, 22 February 2000, 15 May 2003 and 29 August 2003. These reports are listed under the heading “Supporting Documents and Information –4.1 Documents and Information attached to the Reply”. The Arbitrator, in her reasons, expressly refers to the documents in “Part 4.1 of the Reply” as being in evidence before her. As a result of their annexure to the Reply they were disclosed to the Approved Medical Specialist and were referred to in his report on permanent impairment, dated 23 May 2005.
The Application to Resolve a Dispute filed in the Commission by Ms Vettas attached a number of WorkCover medical certificates completed by Dr Saunders, Sports Physician, as follows:
·Undated but reported “unfit” from 3 May 2000;
·20 June 2000;
·30 July 2000 (Return to Work Form);
·4 August 2000;
·1 September 2000;
·3 November 2000;
·23 March 2001;
·1 June 2001; and
·7 September 2001.
Also attached was an undated report from Dr Saunders, which stated “Ms Vettas is unavailable for work due to complications of pregnancy”. The Application annexed correspondence between Ms Vettas’ solicitor and the GIO, dated 17 March 2004, which purported to attach a report of Dr Saunders dated 22 February 2000, but in fact did not. I note however that in the submissions filed by Ms Vettas’ solicitor on 26 May 2005, he referred to “treatment from her general practitioner and a sports physician” but did not specifically refer to Dr Saunders or to any reports made by her.
The Arbitrator’s reasons refer to evidence of Dr Saunders as follows:
·At paragraph 16 - “Dr Saunders who issued a number of medical certificates to the effect that Ms Vettas was unfit for work has not provided any reports supporting these opinions”.
·At paragraph 22 - “The certificates are, as the respondent submits, not supported by any other evidence of Dr Saunders who supplied them”.
The Arbitrator is clearly incorrect in her assertion that Dr Saunders did not provide any reports. They were in evidence as attachments to the Reply (at Part 4.1) and were, according to the Arbitrator’s statement of reasons, in evidence before her.
However, in my view a consideration of the reports of Dr Saunders does not advance Ms Vettas’ claim. The relevant period for the weekly benefits claim is from 6 March 2002. While Dr Saunders’ report of 15 May 2003 is relatively comprehensive, it is based upon the fact that she had not examined Ms Vettas since 11 January 2002. It is therefore of some, but limited relevance to Ms Vettas’ continuing incapacity from 6 March 2002.
Notwithstanding that the Arbitrator appears to have failed to properly consider the reports of Dr Saunders, she has considered the relevant evidence, in particular the medical evidence of Dr Mahony and Professor Ehrlich. She also found the report of Dr Silva persuasive.
Professor Erlich, Orthopaedic Rehabilitation Specialist, examined Ms Vettas on 7 January 2002 and reported the same day. He noted that she still had back pain as a result of the accident in 1999 but considered that “ . . . bearing in mind her considerable obesity (she has just lost 10 kilograms and still weighs more than 100 kilograms now) her two pregnancies in quick succession as well as having to carry a heavy baby about now, provide adequate explanation for low back discomfort”. He considered that the soft tissue injury sustained to her back in the accident had resolved “long ago”.
Professor Erlich examined Ms Vettas again on 24 May 2004 and reported on the same day. By that time she had two children and her weight had risen to 111 kilograms. Her physical condition had deteriorated, a fact that he considered was due to her pregnancies and weight, not to the effects of the 1999 injury. He concluded that she suffered a “back strain” in 1999 which had no relationship to her “illness behaviour” in 2004. He noted that she had developed a “right shoulder rotator cuff problem” that “bears no relationship to her relevant car accident”.
The Arbitrator preferred the evidence of Professor Erlich that “there is little physical reason related to the accident for Ms Vettas’ ongoing symptoms particularly in the light of the nature of the injury in the first place being soft tissue only” (report of January 2002). At the same time she rejected his view that Ms Vettas exhibited “abnormal illness behaviour”. The Arbitrator had before her the evidence of Ms Vettas herself and of what had transpired since the accident in 1999. On this evidence she found that “a woman with three children under five with a full time working spouse who has had the number of pregnancies Ms Vettas has had [5] within a relatively short space of time, may not wish to join the paid workforce - I do not necessarily accept her reluctance to be “abnormal illness behaviour” - but nor do I accept that it is a result of any injury she received in June 1999”. The Arbitrator was entitled to form this view on the basis of the evidence before her and it is not so unreasonable, or unsupported by that evidence as to be an error.
Error of Fact - Permanent Impairment
Ms Vettas submitted the Arbitrator’s conclusion, that “the overwhelming weight of the medical evidence is that there is a very small permanent physical impairment as a result of the accident and I accept that to be the case” was an error. As the degree of permanent impairment is for an AMS to determine, I assume that the point which Ms Vettas seeks to make is that the Arbitrator was influenced on her findings as to incapacity by the seriousness of Ms Vettas’ injuries, as evidenced by her permanent impairment.
Dr Mahony reported on 15 July 2003 and 17 September 2003. He considered that she had 22.5% permanent impairment of her back and impairment of her legs and arms of 10% (each) or more. The Arbitrator considered Dr Mahony’s report and found [at paragraph 23]:
“Of all the medical evidence Dr Mahoney [sic] was the only one who gave her a significant degree of impairment in relation to all of these body parts including 22.5% of the back. He appears to have taken an incorrect history- he says that she was in hospital for a week after the accident - the hospital records show it was 13 hours. Dr Mahoney [sic] did not comment on the issue of incapacity.”
The report of Dr Saunders dated 29 August 2003, provides an assessment of 10 % permanent impairment of Ms Vettas’ back and “loss of function of the right leg at or above the knee” of 5%. Given that at this point it had been 18 months since Dr Saunders had examined Ms Vettas I would give this assessment no weight. In any event the opinion of the AMS is ‘conclusively presumed to be correct’ as to the degree of permanent impairment arising from an injury (section 326 of the 1998 Act).
Professor Ehrlich reported, in May 2004, that Ms Vettas had no back or neck impairment as a result of her injury and 30% loss of use of her right arm at or above the elbow due to a rotator cuff problem that was not related to the injury suffered in the car accident in 1999.
Having accorded Dr Mahony’s report little weight the Arbitrator was left with the evidence of Dr Saunders, Professor Ehrlich and Dr Anderson on permanent impairment. Dr Saunders was not fully apprised of Ms Vettas’ condition when she issued her report and, as stated above, it has less probative value to the issues to be determined. Dr Anderson opined, in April 2000, that, as at September Ms Vettas had a 5% permanent impairment of her back as a result of the injury she sustained in the car accident in June 1999.
The Arbitrator was also entitled to take into account the radiological evidence that showed no structural evidence of damage.
More persuasive was the medical assessment of the independent AMS, which assessed Ms Vettas to have a 5% permanent impairment of her back due to the injury and nil impairment to her arms and legs.
The Arbitrator did not err in concluding that the weight of the evidence supported a finding that Ms Vettas had a “small physical impairment as a result of her accident” and in taking this into consideration when determining whether or not she suffered an incapacity to work at the relevant time.
Incapacity
The Arbitrator found that:
“Ms Vettas is not incapacitated for work as the result of a work related injury. She has been unable to demonstrate that she has been unfit for suitable duties, being her pre injury duties as a medical receptionist, with any consequent loss of earnings, as a result of the injury.”
Ms Vettas submitted that the Arbitrator erred in law “to the extent that the Arbitrator meant to convey that the applicant’s treating doctors did not give any evidence in support of the Applicant’s permanent physical impairment and did not comment on the issue of incapacity”.
The Arbitrator did not err in stating that Dr Mahony did not comment on incapacity - this is clear from a consideration of his reports. The only part of his report of 15 July 2003 that relates to ‘incapacity’ is his comment that; “[i]n order to minimise an exacerbation of her symptoms I would advise her to restrict her future activities to not involving significant bending or lifting”.
Dr Saunders, Ms Vettas’ treating doctor, did comment on incapacity. She stated that she could give no information on Ms Vettas’ condition as at 15 May 2003. As to her incapacity in January 2002 she considered that she was fit for part time work not exceeding 4 hours per day of a sedentary nature, with restrictions on sitting and standing for long periods and lifting. However her reports, as discussed above, had little probative value to the issues in dispute and, in particular, she did not clinically examine Ms Vettas during the period for which weekly benefits for incapacity are claimed and was not aware of how Ms Vettas’ injury had progressed or resolved from January 2002 to August 2003. I note that Professor Ehrlich also examined Ms Vettas in January 2002, however he reported on the same day that he examined her. In his 2004 report he opined that she was fit for “any post consistent with her training and experience”.
While the Arbitrator did not set out all of the evidence of incapacity in detail, I am satisfied, on review of that evidence that she did not err in her findings.
Medical Expenses
Ms Vettas submitted that the Arbitrator erred in finding that no evidence was provided to support her claim for medical expenses. On appeal she does not detail what evidence she claims was provided in support of the claim for medical expenses.
The Arbitrator failed to refer to the evidence of Dr Mahony in relation to medical expenses. Dr Mahony in his report of 15 July 2003 stated that he considered Ms Vettas’ “costs of further treatment” to be as follows:
“Physiotherapy: $ 3,500
Hydrotherapy: $3,500
General Practitioner & Specialist Consultations: $3000
Foot Support and Replacement Foot Supports: $4,000.”
The basis for this assessment was not provided and it was more complicated by the fact that Ms Vettas was three months pregnant when seen by Dr Mahony. She had special needs because of this and it is not clear to what extent the above treatment was isolated to the needs arising from her injury.
The payment of reasonable medical expenses is on the basis of indemnity for costs incurred (section 60 of the Workers Compensation Act 1987). No evidence of reasonable medical expenses incurred as a result of her injury was provided. I would give Dr Mahony’s assessment of future likely costs of little weight in any event because of the inadequacy of his report in terms of substantiating the need for these expenses as a result of Ms Vettas’ injury.
In my view there was no evidence of incurred medical expenses and no probative evidence of the likelihood of future medical expenses related to her injury. The Arbitrator did not err in dismissing the claim for medical expenses.
DECISION
The decision of the Arbitrator is confirmed.
COSTS
Costs of proceedings in the Commission are governed by Part 8 of the 1998 Act (see in particular sections 342 and 345). Ms Vettas has been unsuccessful on the appeal. The appropriate order is ‘No order as to costs’.
Dr Gabriel Fleming
Deputy President
15 June 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DR GABRIEL FLEMING, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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