Wang v KAS Australia Pty Limited
[2010] NSWWCCPD 110
•22 October 2010
| WORKERS COMPENSATION COMMISSION | ||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||||
| STATUS: This decision has been the subject of a reconsideration in Wang v KAS Australia Pty Limited [2010] NSWWCCPD 119 | ||||||
| CITATION: | Wang v KAS Australia Pty Limited [2010] NSWWCCPD 110 | |||||
| APPELLANT: | Yue Wang | |||||
| RESPONDENT: | KAS Australia Pty Limited | |||||
| INSURER: | QBE Insurance (Australia) Limited | |||||
| FILE NUMBER: | A1/2500-10 | |||||
| ARBITRATOR: | Mr D Minus | |||||
| DATE OF ARBITRATOR’S DECISION: | 30 June 2010 | |||||
| DATE OF APPEAL DECISION: | 22 October 2010 | |||||
| SUBJECT MATTER OF DECISION: | Section 4 of the Workers Compensation Act 1987, injury; partial incapacity; section 40(2)(b) of the Workers Compensation Act 1987, suitable employment | |||||
| PRESIDENTIAL MEMBER: | Deputy President O’Grady | |||||
| HEARING: | On the papers | |||||
| REPRESENTATION: | Appellant: | Unilegal | ||||
| Respondent: | Gillis Delaney Lawyers | |||||
| ORDERS MADE ON APPEAL: | 1. The Arbitrator’s order 1.1 as appears in the Certificate of Determination dated 30 June 2010 is amended to delete “s38” and substitute with “s37”, but is otherwise confirmed. 2. The Arbitrator’s order 1.2 as appears in the Certificate of Determination dated 30 June 2010 is amended to delete “28/12/10” and substitute “28/12/2009”, but is otherwise confirmed. 3. The Arbitrator’s order 1.3 as appears in the Certificate of Determination dated 30 June 2010 is confirmed. 4. The Arbitrator’s orders 2 and 3 as appear in the Certificate of Determination dated 30 June 2010 are confirmed. 5. The Certificate of Determination dated 30 June 2010 is amended to include the following further order: “4. Order that the resolution of the dispute herein is to be treated as a separate resolution to earlier resolutions of disputes conducted in the Commission for the purposes of the calculation or assessment of costs of each party.” No order as to costs of this appeal. | |||||
BACKGROUND TO THE APPEAL
Mrs Yue Wang, who is 39 years of age, received injury to both her shoulders in the course of her employment as a packer with KAS Australia Pty Limited (the respondent). It is not in dispute that such injuries have been caused by the nature of Mrs Wang’s duties between January 2004 and October 2006, as well as by incidents which occurred on three separate occasions in 2006 whilst in the course of her employment. Mrs Wang also alleges that she has suffered a secondary psychological injury as a consequence of these physical injuries.
By reason of painful symptoms and resultant disability Mrs Wang ceased work in October 2006. She has not resumed work since that time, notwithstanding her efforts to return to duties and to obtain suitable work in the open labour market.
Following her cessation of work Mrs Wang claimed and was paid compensation benefits including weekly payments and medical expenses. In September 2009 Mrs Wang underwent a Capability Assessment conducted by an organisation described in documentation before the Commission as Recovre. That assessment was arranged by the respondent’s insurer and a report dated 23 September 2009 was compiled by Ms Adams, Rehabilitation Consultant.
Correspondence dated 16 November 2009 was forwarded by the insurer to Mrs Wang advising that weekly compensation, which had been paid up to that time at the relevant maximum statutory rate, was to be reduced to the sum of $114.48 per week. The correspondence stated that such reduction would take effect as from 28 December 2009. It appears, whilst not expressly stated, that that correspondence was intended by the insurer to constitute notice of intention to reduce the quantum of weekly compensation as required by s 54 of the Workers Compensation Act 1987 (the 1987 Act).
Mrs Wang has, it seems, been represented at all times by the solicitors appearing on her behalf in these proceedings. It is clear from the voluminous material which has been placed before the Commission, that there have been protracted and combative disputes concerning Mrs Wang’s entitlement to compensation benefits. I note that a Medical Assessment Certificate (MAC) was issued on 7 August 2008 by Dr John Silver, occupational physician and approved medical specialist, concerning whole person impairment suffered by Mrs Wang on 7 August 2008. A Certificate of Determination was issued by the Registrar of the Commission on 12 September 2008 which contained orders with respect to payment by the respondent to Mrs Wang of lump sums pursuant to s 66 of the 1987 Act in respect of whole person impairment as assessed by Dr Silver.
A dispute arose concerning Mrs Wang’s entitlement to weekly compensation following receipt by her of the s 54 notice. An Application to Resolve a Dispute was registered with the Commission on 26 March 2010 seeking orders with respect to payment of weekly compensation.
Mrs Wang’s application came before an Arbitrator for conciliation/arbitration on 9 June 2010 on which day the hearing was not completed. The matter resumed before the Arbitrator on 11 June 2010 on which day the hearing concluded. The Arbitrator reserved his determination of the dispute and a Certificate of Determination issued on 30 June 2010.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 30 June 2010 records the Arbitrator’s orders as follows:
“The Commission determines:
1.There is an award for the Applicant in respect of the claim for weekly compensation. The Respondent is to pay the Applicant, as follows:
1. pursuant to s 38 of the 1987 Act, from 25/4/2008 to 27/12/2009 at the statutory rate for a single worker with one dependent child;
2. pursuant to s 40 of the 1987 Act from 28/12/2010 to date and continuing at the rate of $263.64 per week;
3. the Respondent is to be credited for payments of weekly compensation it has made.
2. The respondent is to pay the Applicant’s costs as agreed or assessed.
3. I certify that this was a complex matter and determine that pursuant to Clause 11(a) of Schedule 6 of the Workers Compensation Regulation 2003 that in respect of both the Applicant’s and the Respondent’s costs that a percentage increase of 30% be applied.
A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”
The order made at [1.1] of the Certificate of Determination makes reference to s 38. That is an obvious error and requires amendment. It is also apparent that an error or “slip” appears in paragraph 1.2 of the determination. It is clear that the date appearing there being 28/12/2010 should read 28/12/2009. This matter has not been adverted to by the parties and may be corrected without the need to call for submissions given those matters that appear at [52] of the Arbitrator’s Statement of Reasons (Reasons).
On 28 July 2010 Mrs Wang filed with the Commission an application seeking leave to appeal against the decision of the Arbitrator.
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 submissions 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
There is no dispute between the parties concerning the threshold requirements as prescribed by s 352 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
In the circumstances, and having regard to the matters raised in submissions, I conclude that it is appropriate that leave be granted to proceed with the appeal and I so order.
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(1) admitting into evidence, over objection, the evidence of Dr Doran Samuell as contained in a report dated 3 June 2010, and
(2) his factual conclusions concerning:
(i)matters proven by the content of the MAC and radiology reports which were in evidence;
(ii)the functional capacity of Mrs Wang, and
(iii)his acceptance of the evidence of Dr Samuell in preference to that of Dr Wu and Ms Dang, and
(3) failing to make an order in respect of a costs application made by Mrs Wang.
The summary of the issues in dispute are taken from the written submissions provided by Mrs Wang in support of this appeal.
THE ARBITRAL PROCEEDINGS
The proceedings before the Arbitrator were recorded and a transcript (T) has been prepared and made available to each of the parties. The application made by Mrs Wang was limited to an order in respect of weekly payments. The respondent did not dispute the occurrence of injury and it was conceded by counsel appearing on behalf of the respondent that as a consequence of injuries to her shoulders Mrs Wang had become and remains incapacitated and is incapable of performing her pre-injury duties [T53]. It was also conceded by counsel that Mrs Wang was entitled to weekly compensation at the statutory maximum rate in respect of a worker and one dependant child during the period 25 April 2008 to 27 December 2009. Counsel informed the Commission that payments had been made during that period and the respondent sought an order that it have credit in respect of such payments. Weekly payments since 29 December 2009 have been made in the sum of $114.48 per week in accordance with the s 54 notice forwarded to Mrs Wang in November 2009.
The documentary evidence which was before the Arbitrator is summarised by him at [11] of Reasons. No oral evidence was given at the hearing other than that as noted at [51] below.
Mrs Wang’s evidence
The evidence of Mrs Wang is to found in a written statement dated 2 February 2010. Mrs Wang was born and educated in China where she studied and became qualified in accounting. She worked in that occupation until her migration to this country in July 1999. Mrs Wang arrived in Australia in the company of her husband and her then two year old son. She first worked in Australia in 2003 as a process worker. That work was taken up by reason of her poor English skills at that time.
Mrs Wang commenced employment with the respondent in January 2004. That work involved heavy lifting and packing activities. Over a period of time Mrs Wang experienced pain and discomfort in her shoulders which she reported in October 2006 to the respondent’s manager. By reason of painful symptoms Mrs Wang ceased work in late October 2006.
Mrs Wang sought treatment from her general practitioner Dr Chow who provided medication and arranged physiotherapy treatment. In November 2006 Mrs Wang was referred to Professor George A C Murrell.
Approximately one year after ceasing work Mrs Wang began to experience a high level of psychological symptoms including depression, anxiety and stress. Mrs Wang states that delays in payment and underpayment of weekly compensation had occurred which caused her distress. She has been treated by Dr Richard Wu, consultant psychiatrist. Mrs Wang had also been referred to a clinical psychologist Ms Suzanne Dang.
There is in evidence a supplementary statement made by Ms Wang dated 27 April 2010. Mrs Wang states that she has sought suitable duties since May 2008. Certificates have been issued by Dr Chow. The respondent’s insurer had arranged for rehabilitation management through an organisation known as Recovre. Mrs Wang states that the first rehabilitation officer, Mr Nathan Smith, failed to provide reasonable assistance to her. Her dealings with Mr Smith caused her anxiety and a request was made, with the support of Dr Chow, for a change of rehabilitation provider. That request was, at first, refused. It is stated by Mrs Wang that her injury and work incapacity has had no improvement since May 2008.
A MAC issued by Dr John Silver dated 7 August 2008 is in evidence. That certificate addresses the consequences of numerous discrete injuries to Mrs Wang’s left and right upper extremities. A copy of a Certificate of Determination issued by the Commission dated 12 September 2008 records an order that the respondent pay Mrs Wang a total of $15,000 in respect of whole person impairment as certified by Dr Silver.
A copy of correspondence dated 16 November 2009 addressed to Mrs Wang from the respondent’s insurer is in evidence. That document is the s 54 notice referred to at [4] above.
A number of reports from Professor Murrell are in evidence. Professor Murrell’s treatment of Mrs Wang commenced in November 2006. That practitioner diagnosed that Mrs Wang suffered bilateral impingement syndrome/supraspinatus tendonosis. Treatment included injections of Depo-nedrol and Lidocaine. The last report in evidence from Professor Murrell is dated 30 April 2007.
A report dated 14 February 2008 from Ms Suzanne Dang, clinical psychologist, is in evidence. That report, being one of a series of reports the latest dated 22 December 2009, includes a psychological assessment, and the following statement of impression and recommendations is recorded:
“On the basis of this assessment, it is evident that her chronic pain is causing a range of adjustment difficulties, including low activity levels, depressed mood and hopelessness, and anxiety about her prognosis. These problems are most likely to have a negative effect on her ability to deal with pain in turn.
I believe she will benefit from a course of cognitive-behavioural therapy (CBT), with the focus on psychological pain management.”
Two reports of Dr Peter Conrad dated 1 June 2007 are in evidence. It is apparent that Dr Conrad’s reports were utilised by Mrs Wang at the time a claim for lump sum compensation was made on her behalf. Dr Conrad’s opinion at that time was that Mrs Wang “might be able to do about 12 to 15 hours per week of light packing or light cleaning work…not lifting more than 5 kg…not lifting either arm above shoulder level”. A third report from Dr Conrad dated 7 November 2007 is also relied upon by Mrs Wang. That report addresses Dr Conrad’s method of assessment of whole person impairment and is not directly relevant to the matters raised on this appeal.
A report from Dr Elias Matalani, consultant occupational physician, dated 18 February 2010 is in evidence. Dr Matalani’s report records that he had access to a large number of relevant documents concerning Mrs Wang’s treatment. Following physical examination Dr Matalani expressed the opinion that Mrs Wang suffered rotator cuff injuries bilaterally and noted that there were imaging indications of impingement and mild bursitis on the left with minimal supraspinatus tendinopathy on the right side. It was his view that there may also be minimal supraspinatus tendinopathy on the left side. Dr Matalani expressed his views concerning Mrs Wang’s fitness for work and gave particular attention to those occupations addressed by the respondent’s evidence noted at [35] below. Dr Matalani’s view was that Mrs Wang was unsuitable for work involving heavy or repetitive use of her arms; repetitive overhead work and overreaching; or heavy manual handling.
There are in evidence a large number of WorkCover NSW medical certificates issued by Dr Allen Chow which are dated between 31 May 2006 and 3 June 2010. Those certificates certify that Mrs Wang has been fit for suitable duties on a part time basis throughout that period. Detail of Dr Chow’s certification appears below.
There are two reports from Dr Richard Wu, consultant psychiatrist dated 25 March 2010 and 4 June 2010. The first of those reports records that Mrs Wang’s depressive condition was initially responding to counselling and anti-depressant medication and that by November 2009 she was actively engaged in job seeking as an office assistant/receptionist, and was ready to participate in her vocational rehabilitation program. Dr Wu noted that between December 2009 and March 2010 Mrs Wang’s depression “markedly worsened”. A number of external stressors had caused the worsening including the reduction of her compensation payments, an injury received in a fall sustained by her husband and recent contact with her parents who had visited from China. Dr Wu notes that Mrs Wang had been regularly attending a book keeping certificate III course of 18 hours per week and had passed the exams to date. Because of her deteriorating depressive symptoms Mrs Wang was having difficulty attending class. Dr Wu records Mrs Wang informing him that she had been “pressured by the rehabilitation service two weeks ago to increase her work target to 24 hours per week”. Dr Wu expressed the opinion that an increase of her work target to 24 hours per week “is unrealistic given her current state of depression”. Dr Wu advised a review of Mrs Wang’s work hours having regard to her then current level of depression.
Dr Wu’s report of 4 June 2010 records matters noted in his earlier report. Dr Wu reiterates the deterioration of Mrs Wang’s condition in March 2010 as earlier noted and reports that there has been a continuing deterioration of her condition. An assessment by Dr Wu in May 2010 placed Mrs Wang in the severe range of depression. Dr Wu expressed the view that Mrs Wang, being a person scoring 24 on the Hamilton Depression Rating Scale “is unlikely to be able to take up new work as a cashier, sales assistant or office assistant. The level of depression will severely affect her concentration, her ability and energy to interact with customers and colleagues”. Dr Wu expressed the view that Mrs Wang’s physical work injuries and subsequent dealings with the insurer are substantial causes “to her depression”.
Mrs Wang relies upon a number of documents produced by Dr Chow’s practice in response to a direction for production. Those documents relate to Mrs Wang’s attempted return to work which was overseen by Actevate Pty Ltd in 2007 and 2008 as well as copies of reports from Dr Alexander Woo, orthopaedic surgeon to whom Mrs Wang had been referred by Dr Chow. In a report dated 25 September 2009 addressed to Dr Chow, Dr Woo expressed the opinion that his patient suffered strain injuries to both shoulders resulting in rotator cuff tendinopathy and impingement. It was Dr Woo’s opinion that Mrs Wang was unfit for her pre-injury duties but fit for office duties. That practitioner expressed the view that Mrs Wang needed re-training to enable her to find a suitable job. The view was expressed that Mrs Wang was fit for light duties with no lifting, four hours per day, five days per week.
A report from Ms Dang dated 6 May 2010 was admitted as a late document on the application of Mrs Wang. That report, addressed to Mrs Wang’s solicitor summarised Ms Dang’s therapeutic treatment of Mrs Wang. The diagnosis was noted as Major Depressive Disorder. The following observations were made by Ms Dang concerning Mrs Wang’s “current working capability” as at the date of her report:
“As Ms Wang is not currently working, I believe her current behaviour as a student is the best indication of her ability to work. Ms Wang is currently enrolled in an accounting course at a nearby TAFE. I understand that this course requires attendance on three days (Tuesday, Wednesday and Friday), mainly from 9am to 3pm. I also understand that no physical activities are required of the students in class, except for sitting, participating in class discussions and taking notes.
Despite the low physical demands of the course, and the fact that this is a course Ms Wang chose to enrol in and does not find particularly difficult, she has found it extremely difficult to attend TAFE more than twice a week since February 2010. According to Ms Wang, in the last two weeks she has not been able to stay at TAFE for more than two hours each day. On each of these occasions she made the effort to turn up, but would break down in tears in class and would have to leave as she would become too distressed to stay on task.
On the basis of this, and given her current depressed state, I do not believe she is currently fit to work, in any job, for more than two short days, which I define as two 4–hour days.”
The respondent’s evidence
The respondent relied upon a 32 page report by Ms Adams from the organisation Recovre dated 23 September 2009. That document was identified as a Capability Assessment Report which had been arranged by the respondent’s insurer to assist in the calculation of s 40 payments to which Mrs Wang may have been entitled. The vocational assessment and functional assessment conducted by Ms Adams and Ms Benoit took place on 10 September 2009 and 16 September 2009. The consultants note in that report that they had access to a number of documents including reports from Ms Dang and a report from Dr Akkerman which was dated 23 September 2008. The conclusion stated in that report was that following assessment Mrs Wang was found to be capable of full time (38 hours per week) work in a sedentary position with restrictions which include lifting no more than 3 kg; avoidance of prolonged reaching forwards; avoidance of overhead reaching tasks; requirement of regular breaks from fine motor tasks and a restriction as to carrying greater than 2 kg unilaterally. The opinion was expressed in that report that Mrs Wang would be capable of performing the duties of a cashier, a sales assistant, an office assistant or a receptionist. The report contained details of remuneration and job availability concerning each of those occupations. The earnings noted in that report ranged between approximately $602 and $623 per week.
There is in evidence a copy of an Injury Management Plan dated 15 April 2010. That document relates to the 10th plan adopted by the insurer concerning management of Mrs Wang’s return to work. It is noted that the insurer had received a copy of a report from Dr Wu dated 25 March 2010. There is attached to that report a copy of an email from Mr Nathan Smith, rehabilitation consultant, addressed to Ms Khoo the insurer’s case manager advising that Mrs Wang failed to attend her scheduled appointment with Recovre on 22 April 2010.
The respondent relies upon a summary of the history of Mrs Wang’s claim which appears to have been prepared by Ms Khoo, the insurer’s case manager. Detail of this summary, where relevant, appears below. It is noted that Mrs Wang’s application which was registered with the Commission had been received by the insurer on 7 April 2010. It is further noted that arrangements had been made for Mrs Wang to be examined by a psychiatrist Dr Doron Samuell on 11 May 2010. It is asserted in that summary that Mrs Wang’s weekly benefits had been paid promptly and appropriately upon receipt of relevant medical certificates.
There is in evidence a statement by Mr Nathan Smith, rehabilitation consultant of Recovre Pty Ltd which is not dated. That statement is in response to the statement made by Mrs Wang dated 27 April 2010. Detail of that statement, where relevant, appears below. Mr Smith states that he is unable to comment on Mrs Wang’s report of “heart pause problems” when meeting with him. No report of such problems was received by him in the company of Mrs Wang. Mr Smith states that he accepted Dr Chow’s statement that an increase of working hours to eight hours per day three days a week was inadvisable during a meeting in February 2010. Mr Smith denies that at any time did he demand that Dr Chow “upgrade Mrs Wang’s restrictions”.
The respondent was granted leave by the Arbitrator to tender a report of Dr Doron Samuell, clinical and forensic psychiatrist, dated 3 June 2010 as a late document. That 10 page report contains a detailed history and a summary of Mrs Wang’s treatment and medication. During conduct of a Mental State Examination Dr Samuell found that Mrs Wang presented as a “credible claimant”. Dr Samuell observed that her “affect was reduced in range and responsivity. She seemed depressed”. It was Dr Samuell’s opinion that Mrs Wang suffers from major depression due to a general medical condition. Dr Samuell observed that if Mrs Wang’s physical injury is accepted as a workplace injury, then he would advise that the psychological component of her difficulties is also work-related. The report contains an observation that Mrs Wang’s ongoing incapacity cannot be explained by psychological factors and that Mrs Wang had not claimed to be incapacitated by her psychological state. It is expressly stated by Dr Samuell that Mrs Wang is not incapacitated either partially or wholly due to her psychological state. Dr Samuell noted that Mrs Wang had been attending a TAFE course acquiring new skills for 17 hours per week. It was accepted that Mrs Wang had a major depressive disorder but in Dr Samuell’s opinion her symptoms are “quite mild and not the source of incapacity”. Dr Samuell anticipated a full recovery from this psychological condition.
Mrs Wang’s submissions
Reliance was placed upon the opinion of Dr Matalani concerning Mrs Wang’s post injury capacity for work. Dr Matalani had noted Mrs Wang’s difficulty with the English language and included that as a factor preventing Mrs Wang from readily obtaining work such as a cashier. It was further submitted that the labour market is highly competitive and that, notwithstanding her accounting qualifications, Mrs Wang would encounter difficulty obtaining such work. It was also argued that working as an accounts clerk and an office clerk involved dealings with the Australian Taxation Office and that good English skills, which Mrs Wang did not hold, were required.
The transcript records extensive exchanges between the Arbitrator and Mrs Wang’s solicitor concerning the suitability of accounting related work for Mrs Wang. It was put in argument that Dr Matalani is of the opinion that Mrs Wang can work a maximum of two or three hours per day three to four days per week. Upon that basis it was put that his view was that Mrs Wang could work somewhere between nine and sixteen hours per week.
The evidence of Dr Conrad was relied upon in support of the proposition that Mrs Wang was capable of working 12 to 15 hours per week of light packing or light cleaning work not involving lifting more than 5 kg. Reference was also made in the course of submissions to the certification by Dr Chow which states that Mrs Wang is fit for 20 hours of work per week lifting less than 5 kg.
It is again demonstrated on the transcript that extensive exchanges between the Arbitrator and Mrs Wang’s solicitor took place concerning a number of matters including the insurer’s management of the claim and its dealings with Mrs Wang’s general practitioner. The Arbitrator enquired of counsel as to when Mrs Wang was likely to complete the accounting course which was mentioned in evidence. Counsel replied that he had “no idea”. Reference was then made to Ms Dang’s report however no clear submission was put in response to the Arbitrator’s enquiry concerning the accounting course.
Following further exchanges between the Arbitrator and Mrs Wang’s solicitor it is recorded (at T32) that a submission was put that Mrs Wang was unemployable. That submission appears to have been founded upon the evidence concerning Mrs Wang’s psychiatric symptoms which had resulted from the subject injury. It was noted in submissions that Dr Akkerman, a “well known psychiatrist” had examined Mrs Wang and his report had been utilised by those conducting the assessment of Mrs Wang’s work capacity. The observation was made by Mrs Wang’s solicitor that “I don’t know why the respondent has not disclosed this report to us”.
The report of Recovre was referred to in the course of submissions and the argument was advanced that all four jobs nominated in that report required good communication skills and good English language skills which Mrs Wang did not have. The point was made that Mrs Wang alleged both physical and psychiatric injury, both compensable injuries, and reliance was placed upon the opinion of Dr Wu. It was put that Mrs Wang was “totally unfit for any occupation from a psychological/psychiatrical [sic] perspective for at least the next 12 months”. The Arbitrator sought clarification from Mrs Wang’s solicitor concerning the evidentiary basis for that submission and attention was drawn to statements by Dr Wu to be found at page 4 of his report dated 4 June 2010.
Respondent’s submissions
Counsel appearing on behalf of the respondent drew attention to what were described as “incongruous” aspects of the evidence. The point was made in argument that the statements as recorded made by Mrs Wang do not appear to be expressed by a person who has difficulty speaking English. It was put that Mrs Wang has a history of working, pre-injury, in simple light packing and process jobs and that she was capable of securing such employment notwithstanding any difficulties she may have had with the English language. Counsel drew attention to the evidence that Mrs Wang was able to do certain chores involving housework including washing and ironing and is able to drive a vehicle.
Submissions were put that there were variations demonstrated in the medical evidence concerning Mrs Wang’s range of movement when physical examination has been recorded. Particular reference was made to the report of Dr Matalani and Dr Silver. It was put that Dr Matalani’s opinion concerning Mrs Wang’s physical restrictions are based on matters which are “just not relevant”. It was put that, by reason of her accounting skills, Mrs Wang would be capable of work other than “some basic job”.
Reference was made to the assessment report of Recovre and it was argued that rehabilitation efforts “would stall” because of “lack of any effort” on the part of Mrs Wang. It was also put that “psychologically, [Mrs Wang] seems to de-compensate on every occasion that they start to make progress”. The point was made by counsel that Mrs Wang had “gone through a series of processes in rehabilitation and 10 return to work plans between 2006 and 2009. Those efforts had been fruitless”.
Reliance was placed upon the evidence of Dr Samuell who expressed the view that there were non work-related and non injury-related stressors contributing to Mrs Wang’s psychiatric condition. Counsel argued that an inference is available to be drawn from the evidence that something other than work-related incapacity had given rise to Mrs Wang’s psychiatric symptoms. Attention was drawn to the evidence concerning non work-related back disability which had been noted by the orthopaedic surgeon in April 2008.
With respect to capacity for work it was put that Mrs Wang “is certainly fit for twenty hours per week”. In support of that contention counsel noted that the evidence established that Mrs Wang had been capable of attending TAFE for 18 hours per week plus homework. It was argued that suitable employment would be that of a clerical assistant working in a Chinese retail shop.
Mrs Wang’s submissions in reply
The Arbitrator put certain questions to Mrs Wang through her solicitor concerning her retraining at TAFE. It was stated by Mrs Wang that she was doing that course because of a recommendation by Dr Wu and Ms Dang and that she wanted to improve her working skills and employability. She further stated through her solicitor that the course was done “to get some further education to improve my work (inaudible) it’s the only way to get a job (inaudible)”.
During exchanges between the Arbitrator and counsel it was put that Mrs Wang would be capable of performing 9 to 16 hours per week.
Mrs Wang’s solicitor made an application for an “uplift” of 25 per cent with respect to costs by reason of complexity and that there were two hearing dates.
THE ARBITRATOR’S DECISION
The Arbitrator noted that agreement had been reached between the parties that Mrs Wang was entitled to weekly compensation at the maximum statutory rate for a single worker with one dependent child between 25 April 2008 and 27 December 2009. It was also noted that payments had been made during that period and that the respondent was to have credit for payments made. The parties had agreed, it was further noted, that Mrs Wang’s probable earnings but for injury from December 2009 to date was $556.58 per week.
The Arbitrator summarised the lay and medical evidence with particular attention being given to those opinions expressed concerning Mrs Wang’s ability to work in her injured state.
The Arbitrator appears to have accepted the respondent’s argument that there were a number of “incongruous features” to Mrs Wang’s claim. It was also noted in the course of reasons that there was a range of views concerning Mrs Wang’s residual capacity to work.
The Arbitrator summarised the evidence concerning Mrs Wang’s work experience in this country since her arrival and noted her accounting qualifications and her enrolment in the TAFE course which occupied her 17 or 18 hours per week. A finding was made (at [45] of Reasons) that Mrs Wang “could well manage to do computer-type work 20 hours per week much as she is doing her TAFE course 17-18 hours a week. I agree with (sic) this type of work is in line with the physical and psychological level of injury, that I have determined”.
It seems that the Arbitrator has made a finding that, in addition to the physical injury received by Mrs Wang, she has also suffered psychological injury as alleged.
The Arbitrator made a finding at [48] of Reasons that, in her presently incapacitated state, Mrs Wang could work 20 hours per week being four hours per day for five days per week. A further finding was made that her ability to earn would be an hourly rate equivalent to that of a packer. The Arbitrator calculated Mrs Wang’s entitlement as being in the sum of $263.64 per week from 28 December 2009 to date and continuing. An award was entered in terms as has been summarised at [8] above. That award included the error to which I have referred at [9] above.
SUBMISSIONS
Mrs Wang’s submissions
Mrs Wang, in the course of submissions, attempts to summarise the relevant history concerning conduct of medical examinations since November 2009. Whilst it is not expressly stated it appears that the complaint made is that admission of Dr Samuell’s report caused her prejudice in the conduct of the hearing. The point is made that Dr Samuell’s report was served only five days prior to the conduct of the hearing. A further complaint is made that the Arbitrator has failed to give any reasons why he allowed tender of the report. Reference is made to relevant authority (at submissions [6]) and it is asserted that the Arbitrator had failed to exercise his statutory duty to fairly and lawfully determine the application.
Reference is made to matters recorded at [15] of Reasons and it is suggested that the Arbitrator has erred concerning factual conclusions reached concerning medical evidence in particular that of Dr Silver and Professor Murrell. It is suggested that the Arbitrator “failed to have a full understanding of the nature and extent of [Mrs Wang’s] physical injury”. It is put that such error gave rise to further error concerning the assessment of Mrs Wang’s residual working capacity.
It is Mrs Wang’s complaint that the Arbitrator erred in assessing her functional capacity. It is suggested that the Arbitrator has accepted the assessment report prepared by Recovre and that such acceptance was against the evidence and the weight of the evidence. It is suggested in argument that reliance upon that report led to error in the calculation of Mrs Wang’s residual earning capacity given that she had not had any “re-training”. Emphasis is placed during the course of submissions upon the opinion of Dr Matalani concerning the significant physical restrictions suffered by Mrs Wang. It is also asserted that the Arbitrator failed to give adequate reasons for his preference of the Recovre report to that of Dr Matalani’s assessment.
It is submitted that the Arbitrator erred in his conclusions of fact concerning the nature and extent of Mrs Wang’s psychological injury. The error which appears to be suggested is the Arbitrator’s conclusion that there were “significant incongruities” concerning evidence of psychological disability. It is put that the finding that there had been such “incongruities” lead to “the denial of the psychological injury” and it is put that the finding was made “ultra vires”.
It is asserted in submissions that the Arbitrator had preferred the opinion of Dr Samuell to those expressed by Dr Wu and Ms Dang. Such preference, it is argued, constitutes error on the part of the Arbitrator. The submissions proceed to analyse and criticise the evidence of Dr Samuell and argument is advanced as to why the opinion of Dr Wu should be accepted. The submission is put that “[Mrs Wang] was totally incapacitated as a result of the major depressive disorder at the time of the arbitration hearing and [Mrs Wang] would remain so for the next 12 months”.
It is asserted in submissions that a costs application was made on behalf of Mrs Wang at the conclusion of the arbitration hearing on 11 June 2010. It is stated that such application was that the “substantive application to be treated as a separate resolution of the dispute for the purposes of calculation or assessment of costs pursuant to clause 9(2)(b) of schedule 6 of the 2003 Regulation”. It is suggested that an appropriate order was made at the hearing however that order has not been recorded in the Certificate of Determination. Mrs Wang argues that the record should be rectified accordingly.
The respondent’s submissions
It is argued that the Arbitrator’s admission of Dr Samuell’s report was “an interlocutory determination” and as such may not be “asserted as a ground of appeal”. It is asserted that the admission of Dr Samuell’s report came about as part of an agreement concerning late evidence adduced by Mrs Wang. It is argued that Dr Samuell’s evidence was obtained for the purpose of answering Mrs Wang’s allegation as found in the Application and that the evidence supports the proposition that the report was obtained and served at the earliest opportunity.
The respondent argues that the Arbitrator’s approach to the AMS report was a fair summary of its contents including the radiology reports which are referred to in that document. The point is made in submissions that the Arbitrator accepted that Mrs Wang was incapable of performing her pre-injury duties and proceeded to determine her ability to earn in some suitable employment. This approach, it is argued, was a proper and appropriate approach to the task to be performed by the Arbitrator.
In response to Mrs Wang’s suggestion that the Arbitrator erred in determining her functional capacity, the respondent attempts to summarise the evidence. It is argued that, by inference, the Arbitrator rejected that evidence which suggested that Mrs Wang was capable of resuming employment in those occupations nominated in the Recovre report. Mrs Wang’s earning capacity was assessed having regard to “a lesser earning role” as a light packer as she had been employed before commencing work with the respondent.
The respondent submits that the Arbitrator’s finding concerning Mrs Wang’s ability to earn was consistent with the fact that she has been capable of attending TAFE 18 hours per week and attending to the assignments and examinations which form part of that course of study. The respondent draws attention to the evidence concerning Mrs Wang’s English language course which she pursued at TAFE between 1999 and 2003. It is suggested that the evidence supports an inference that Mrs Wang’s English is such that she is able to understand, converse and write sufficient English “to perform the jobs she has had in Australia, to have passed the English course she did at TAFE and to perform her current course at TAFE”. Argument was advanced, founded on the medical evidence, that the Arbitrator’s assessment of Mrs Wang’s ability to earn was open to him.
The respondent sought to emphasise the apparent contradiction between the opinion of Ms Dang concerning incapacity and the known fact that Mrs Wang was attending TAFE on the basis of an 18 hour week. It is put that the Arbitrator has not made a finding of there being no psychological injury but rather, the Arbitrator was not “convinced that [Mrs Wang] was totally incapacitated by her depression”.
The respondent submits that Mrs Wang’s complaints concerning the Arbitrator’s acceptance of Dr Samuell’s opinion needs to be assessed having regard to the Arbitrator’s apparent acceptance of Dr Chow’s evidence concerning the extent of incapacity. The respondent notes that Mrs Wang made no application to adduce any further evidence at any time after service of Dr Samuell’s report.
The respondent acknowledges that a particular cost order was made by the Arbitrator at the hearing and it is stated that the transcript is “unclear”. The respondent makes no contrary submission to that put by Mrs Wang concerning this matter. It is put that if such cost order is to be made it should be “referable to both parties”.
DISCUSSION AND FINDINGS
The manner in which argument has been advanced on behalf of Mrs Wang is such that it cannot be said that particular grounds have been crystallised upon which the Arbitrator’s decision is challenged. Complaint is made in respect of numerous aspects of the Arbitrator’s reasoning and it is fair to observe that those complaints represent an attack upon his fact finding and are made, generally, upon the basis of a suggestion that his conclusions are against the evidence and the weight of the evidence. It is proposed to attempt to deal with each of those complaints as raised in written submissions.
Admission of Dr Samuell’s report
Debate concerning the admission of Dr Samuell’s report is recorded at T4-T8. It is reasonably clear that the Arbitrator’s ruling concerning the admission of that report was founded upon the fact that Mrs Wang had first made a formal allegation of psychological injury giving rise to incapacity in her original Application filed in March 2010. I note in passing that the respondent’s argument that the Arbitrator’s ruling concerning the admissibility of the report may not be subject of appeal because it “was an interlocutory determination” is misconceived. That assertion demonstrates a fundamental misunderstanding as to the operation of s 352 of the 1998 Act and the nature of the review process. Mrs Wang is seeking to impugn the ultimate decision upon the basis, in part, that there had been error committed by the Arbitrator concerning the exercise of discretion to admit evidence.
I reject the suggestion made at [5] of submissions put by Mrs Wang that the Arbitrator had failed to give reasons for his decision to permit tender of the report. The lengthy discussion which took place between the Arbitrator and counsel reveals, in my view, the Arbitrator’s process of thought and the basis for his decision to permit the tender. Whilst prejudice was not expressly suggested in submissions, I conclude that there is no basis upon which it could be argued that Mrs Wang was prejudiced by the admission of that document. Mrs Wang had relied upon the evidence of Dr Wu and Ms Dang in her own case and, as noted by the Arbitrator, the respondent took steps to test that evidence by qualifying Dr Samuell at the earliest opportunity. It is correct that the report was made available to Mrs Wang at a very late hour however I accept, given the timeframe, that no earlier service of the report could reasonably have been effected. The report in many respects confirms the matters concerning diagnosis to be found in the evidence of Dr Wu and Ms Dang. Dr Samuell also concludes that Mrs Wang’s psychological complaints “arose out of her alleged physical injuries”. Dr Samuell stated, in response to a question from the respondent’s solicitors, that Mrs Wang’s ongoing incapacity “cannot be explained by psychological factors. She did not claim to be incapacitated by her psychological state”. It is that last observation that distinguishes the views expressed by Dr Samuell and Dr Wu. It is to be noted that Mrs Wang took no steps to adduce any further evidence concerning the history as recorded by Dr Samuell. I have reached the view that, in all the circumstances, the Arbitrator was correct when exercising discretion concerning the admission of Dr Samuell’s report.
The Arbitrator’s “interpretation” of the Medical Assessment Certificate and radiology reports
Mrs Wang’s complaints as I have attempted to summarise above at [61] appear to treat the Arbitrator’s summary of the medical evidence contained in the MAC and the radiology reports as his expression of view as to the probative value of that material. I reject the suggestion that the Arbitrator has “misunderstood” that evidence, and conclude that no relevant error has been established by Mrs Wang’s analysis of the Arbitrator’s summary of the evidence. I accept the respondent’s submission that minor differences in use of adjectives concerning description of radiology results do not, on the present facts, represent error in any relevant sense.
The Arbitrator’s assessment of Mrs Wang’s functional capacity
Mrs Wang’s submissions concerning this matter of complaint canvass the evidence, however no attention is given in those submissions (other than at [17]) to those reasons expressed by the Arbitrator which are said to be erroneous. It appears to me that the matter complained of by Mrs Wang is to be found at [43] of Reasons where the Arbitrator found:
“Despite there being varied medical opinion from the Applicant’s doctors of the physical limitations and difficulties that the Applicant would have in obtaining employment, there is also the evidence of her work record and prior experience. Prior to her employment with the Respondent, the Applicant had previously obtained and was able to satisfactorily undertake light production work in chocolate packing and circuit board assembly. Considering the findings of the Recovre functional assessment, as long as work was light in nature and did not involve movements where the Applicant was required to use her arms above the shoulders, I see no reason why the Applicant could not undertake such employment.”
It appears that the Arbitrator has, at [43] of Reasons, acknowledged the “varied medical opinion” as expressed by medical practitioners called on behalf of Mrs Wang concerning the extent of incapacity. His acceptance of the respondent’s evidence as found in the Recovre functional assessment is made following a clear summary of Mrs Wang’s medical evidence concerning the question of incapacity. Whilst the reasoning as expressed is brief, that summary of the evidence is fair and I reject Mrs Wang’s submission that the Arbitrator has failed to give adequate reasons for his preference for the evidence of Recovre over the assessment made by Dr Matalani.
Mrs Wang, at [16] of submissions, places reliance upon the decision in Ric Developments t/as Lane Cove Pool Mart v Muir [2008] NSWCA 155. Attention is drawn to the decision in that matter of Campbell JA as appears at [48] of the judgment. It is Mrs Wang’s complaint that the Arbitrator “had not paid attention to the practical realities of [Mrs Wang] in her injured condition, actually being able to get and keep a sedentary job”.
Mrs Wang’s argument must, having regard to that which was stated by the Arbitrator at [44] and [45] of Reasons, be rejected. It is clear that the Arbitrator has addressed the totality of the evidence and has noted that Mrs Wang had “other valuable skills”. It was also noted that she had college qualifications concerning accountancy and the work of an accounts clerk and had seven years experience in that field. The Arbitrator also acknowledged that Mrs Wang had enrolled in a TAFE course. Notwithstanding those findings, it is clear that the Arbitrator has discounted Mrs Wang’s ability to earn by reference to work as a packer (at [48] of Reasons). As stated below, I agree with the Arbitrator’s ultimate conclusions concerning this issue. The work that the Arbitrator found to be suitable in all the circumstances as summarised by him is found at [45] of Reasons. I agree with the Arbitrator’s expression of opinion that Mrs Wang “could well manage to do computer-type work for 20 hours per week much as she is doing [sic] her TAFE course 17-18 hours a week”. However it must be noted that Mrs Wang’s ability to earn has not been determined simply by reference to earnings in such work. I reject Mrs Wang’s argument that the Arbitrator has failed to take into account the practical circumstances confronting Mrs Wang concerning a return to the workforce.
The Arbitrator’s treatment of the psychological evidence
The Arbitrator’s finding that there were “significant incongruities in the psychological evidence” is criticised in the course of submissions put on behalf of Mrs Wang. The “incongruities” to which the Arbitrator referred are to be found summarised between [36] and [40] of Reasons. The term “incongruity” appears to be one which emerged during the course of submissions at the hearing. It may reasonably be assumed that the Arbitrator meant that there were “inconsistencies” revealed upon examination of the “psychological evidence”.
Mrs Wang, at [23] of submissions, suggests that the findings of “incongruity” led to “the denial of the psychological injury”. I do not accept that submission. Whilst it is true that the Arbitrator did not make any explicit finding as to the nature of the psychological injury received by Mrs Wang, it is clear that he has accepted the occurence of such a psychological injury and that it was relevant to the question of determining the nature of suitable employment for Mrs Wang (at [45] of Reasons). I find on this review that the evidence establishes that Mrs Wang at relevant times has suffered from a major depressive condition which is causally related to her physical injuries received in the course of her employment. I accept, on this review, the evidence of Dr Wu as expressed in his report dated 4 June 2010 that, given her depressive state, Mrs Wang is “unlikely to be able to take up new work as a cashier, sales assistant or office assistant”. The Arbitrator’s reasoning concerning the manner of assessing Mrs Wang’s ability to earn appears to relate to the performance of manual work within her capacity rather than there being any reference to earnings as a cashier, sales assistant or office assistant. This is despite his earlier finding (at [45] of Reasons) that suitable work was “computer type work”. Whilst the Arbitrator’s process of reasoning is open to criticism I agree with the general manner in which the he has determined the nature of suitable duties and the likely earnings to be generated by performance of such work. Having regard to the evidence and the provisions of s 40(3) and s 43A of the 1987 Act I find on this review that the Arbitrator’s findings at [48] were available to him on the evidence and I agree with his conclusions. (I note that there was a slip, later corrected, found in the figures that appear in that last mentioned paragraph).
The Arbitrator’s suggested error in preferring the evidence of Dr Samuell
The submissions put by Mrs Wang suggest the existence of “inadequacy or inconsistency” in the evidence of Dr Samuell. The matters raised on behalf of Mrs Wang appear to address the weight which should properly be attached to that evidence. I do not accept that the criticism advanced in the course of submissions provides any basis to conclude that the Arbitrator has erred in the manner in which he has assessed the psychological evidence which was before him. It is clear that the Arbitrator has found that Mrs Wang suffers from ongoing psychiatric disorder and that such disorder needs to be taken into account when determining the question as to what constitutes “suitable duties”. There is no express statement of preference for Dr Samuell’s evidence over that of Dr Wu or Ms Dang. What is clear is that the Arbitrator has not accepted the opinions of Dr Wu and Ms Dang concerning the question of the extent of incapacity. That conclusion was one open to the Arbitrator on the evidence and it is one with which I agree. The argument that the evidence establishes that Mrs Wang was totally incapacitated as a result of a major depressive disorder as at the time of the arbitration hearing was rejected by the Arbitrator and I agree with his conclusion.
Costs order
Mrs Wang’s submissions include an outline of previous applications concerning payment of s 60 expenses and arrears of compensation. It seems that costs have been paid with respect to those applications in December 2009. It is common ground between the parties that an application was made at the hearing that the Application in the present matter be treated as a separate claim or dispute as addressed by the Workers Compensation Regulation 2003 Schedule 69(2)(b). It is suggested in submissions that in fact the Arbitrator made such an order at the hearing however such order does not appear in the transcript.
In the circumstances an order is to be made that the resolution of all disputes instituted by Mrs Wang be treated as separate resolutions for the purposes of the calculation or assessment of costs of each party.
Having regard to the matters which I have attempted to summarise above I conclude that the Arbitrator’s orders are to be confirmed subject to one matter. The order made at [1.1] of the Certificate of Determination makers reference to s 38. That is an obvious error and requires amendment. A further order is to be made following this review which will reflect the matters addressed at [84] and [85] above.
DECISION
The Arbitrator’s order 1.1 as appears in the Certificate of Determination dated 30 June 2010 is amended to delete “s38” and substitute with “s37”, but is otherwise confirmed.
The Arbitrator’s order 1.2 as appears in the Certificate of Determination dated 30 June 2010 is amended to delete “28/12/10” and substitute “28/12/2009”, but is otherwise confirmed.
The Arbitrator’s order 1.3 as appears in the Certificate of Determination dated 30 June 2010 is confirmed.
The Arbitrator’s orders 2 and 3 as appear in the Certificate of Determination dated 30 June 2010 are confirmed.
The Certificate of Determination dated 30 June 2010 is amended to include the following further order:
“4. Order that the resolution of the dispute herein is to be treated as a separate resolution to earlier resolutions of disputes conducted in the Commission for the purposes of the calculation or assessment of costs of each party.”
COSTS
No order as to costs of this appeal.
Kevin O’Grady
Deputy President
22 October 2010
I, MARGOT UNDERCLIFFE, 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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