Warrigal Care Limited v Szabo - [2006] NSWWCCPD 134

WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Warrigal Care Limited v Szabo [2006] NSWWCCPD 134
APPELLANT:  Warrigal Care Limited
RESPONDENT:  Maria Delilah Szabo
INSURER:Employers Mutual Indemnity (Workers Compensation) Limited
FILE NUMBER:  WCC198-05
DATE OF ARBITRATOR’S DECISION:          17 May 2005
HEARING:13 June 2006
DATE OF APPEAL DECISION:  30 June 2006
SUBJECT MATTER OF DECISION: Section 40 and section 43A of the Workers Compensation Act 1987; partial incapacity; adequacy of reasons.
PRESIDENTIAL MEMBER:  Acting Deputy President Anthony Candy
REPRESENTATION:  Appellant:      Mr T. Wardell: Edwards
Michael Lawyers
Respondent:   Ms Alexis Webb: McClellands
Lawyers

ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 17 May 2005 is confirmed.
The appellant employer is to pay the costs of the respondent worker.

BACKGROUND TO THE APPEAL

Maria Szabo (“the worker”) was born on 15 March 1955 and came to Australia from the Philippines in 1974. She worked in a variety of jobs mainly as a kitchen hand or cook.
She began work for Warrigal Care Limited (“Warrigal”) at Kawaree Lodge, Queanbeyan on 24 January 1998. She was classified as a Care Services Employee Grade 1. Her duties were it seems cleaning on a full-time basis.
She suffered injury to her left shoulder in the weeks prior to 14 January 2000 while using a backpack vacuum cleaner. She had sought attention from Dr Madew in November and December 1999 and also on 20 January 2000 and made a workers compensation claim. Weekly payments were made from 21 January 2000 up to 26 February 2004. There were periods in this time for which she worked for Warrigal on light duties.
She was referred by Dr Madew to a rheumatologist, Dr Brook, who saw her and reported on 4 February 2000. He noted that an ultrasound of 28 January 2000 showed abnormalities in the left rotator cuff. He thought she had capsulitis of the left shoulder which was still evolving. When Dr Brook saw her on 2 March 2000 she was working four hours a day on light duties. He injected the shoulder joint.
Professor Murrell, an orthopaedic surgeon, saw her on 3 July 2000. His assessment was “adhesive capsulitis” and he recommended arthroscopy and capsular release. This surgery was carried out by Professor Murrell on 1 August 2000 and in October 2000 the professor reported that there had been a dramatic improvement and she was keen to resume work.
She injured her right shoulder on 3 September 2001 when the shoulder was struck by a door at work. Following this injury to her right shoulder she was referred to another orthopaedic surgeon, Dr Roberts, who saw her on 1 October 2002. The clinical picture he said was of a frozen shoulder and he recommended an MRI arthrogram. This was reported as showing a small full thickness tear. Dr Roberts recommended conservative treatment.
Her services were terminated by Warrigal by letter of 15 October 2002, effective from 19 November 2002. Warrigal advised her that it could no longer provide selective or suitable duties.
In proceedings No. 5951 of 2002 in the Compensation Court a claim for lump sum compensation under section 66 of the Workers Compensation Act 1987 (“the 1987 Act”) was settled on 15 July 2003 by Short Minutes providing for payment of 8.5% permanent loss of use of each arm at or above the elbow and also for the sum of $11,825.00 for pain and suffering under section 67 of the 1987 Act. The total compensation agreed was $25,000.00.
On 16 January 2004 liability to pay further workers compensation was declined by Warrigal’s insurer. The reason relied on was: “(a) Your continued incapacity for work is no longer related to your pre-injury employment but is associated with symptoms of a non-work related condition”. Reliance was also placed on the medical opinions of Dr Smith of 25 November 2003 and Dr O’Reilly of 2 December 2003. Weekly benefits were to be discontinued from 26 February 2004 and medical expenses from 23 January 2004.
A claim for compensation was made by the worker and the Arbitrator, on 17 May 2005, made a determination in her favour. It is from that determination that Warrigal on 7 June 2005 lodged, in the Commission, an application for leave to appeal.

THE DECISION UNDER REVIEW

The ‘Certificate of Determination’, dated 17 May 2005 records the Arbitrator’s orders as follows:
“1.That the Respondent pay the Applicant weekly compensation at the rate of $368.32 (or up to the maximum statutory rate with no dependents) from 26.02.04 to 12.5.05 under s40 of the Workers Compensation Act 1987. Such weekly payments to continue in accordance with the provisions of the Act.
2.That the Respondent pay the Applicant’s expenses under section 60 of the Workers Compensation Act 1987 upon production of accounts or receipts.
3.That the Respondent pay the Applicant’s costs as agreed or assessed.”

ISSUES IN DISPUTE

The issues in dispute in the appeal are:
·Whether the Arbitrator erred in finding that the worker could only work fourteen hours per week.
·Whether the Arbitrator misapplied section 43A of the 1987 Act.
·Whether the Arbitrator failed to give any or adequate reasons for her decision.

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.”
Both parties sought to make oral submissions on the appeal on the grounds that the transcript of the Arbitrator’s decision was not available when written submissions were lodged. Accordingly, the parties were afforded an opportunity to make further submissions by way of teleconference which took place on 13 June 2006.

LEAVE

The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act and the amount of compensation at issue on the appeal is more than $5,000.00 and more than 20% of the total amount awarded in the decision appealed against. Accordingly, section 352(2) of the 1998 Act is satisfied. Leave to appeal is granted.

EVIDENCE AND SUBMISSIONS

The worker relied on a written statement of 11 May 2005 and gave evidence on 12 May 2005. At the conclusion of the evidence and submissions the Arbitrator gave her decision. It is not, I think, necessary to set out the evidence in full, except insofar as is relevant to the appeal. Incapacity was not in issue but the quantum of the worker’s entitlement to weekly compensation was.
The worker in a statement says that the right shoulder was worse than her left. She said she could move both arms around but experienced pain. She said she thought her capacity for work was very limited but she could do some work. She was studying at the Canberra School of Technology to improve her English language skills on Mondays, Tuesdays and Thursdays. She said she was “really trained to do heavy physical work” but did not think that she could do so any more.
In her oral evidence she said she was looking for work in newspapers. Puzzlingly, she said she was looking for work that she liked to do, cleaning or cooking, but she could not do that job any more. She had also consulted the website at the School of Technology looking for work. She said that she was not qualified for some types of work and needed to do more study. She had approached Queanbeyan Council looking for work and was told that there was no job for her because she lacked computing skills. She also approached a shop called “Home Art” in Queanbeyan but was required to move stock around. There was, it appears, no job there and she could not have done it in any event. She said she could not do light cleaning work because she had to use her arm (sic) to do that work. She did not drive and had to rely on public transport if she were to go to Canberra. She used to work in Queanbeyan.
She was cross-examined. It was put to her that she had told someone at the Vocational Capacity Centre in December 2003 that she was not looking for work. She said that because she was on a doctor’s certificate she could not work. She did not think she had improved at all. She had not looked for work between the time when she was terminated by Warrigal and 2004. The study she was doing at TAFE was six hours per day, three days per week. (It should be noted that the TAFE in question appears to be in Canberra.)
Since having workers compensation payments terminated she had been in receipt of social security payments and Centrelink had referred her to the TAFE and suggested that she do a course. (It must be recorded that much of the worker’s evidence was non-responsive to the questions asked. This may be a reflection of limited education, poor English or perhaps an unwillingness to concede anything in cross-examination.) The worker also referred to her age (50) as being a factor in her failing to find work.

Medical Evidence

I have already referred to the diagnoses of the treating specialists. The report of Dr William Bye, orthopaedic surgeon, who saw the worker at the request of the insurer on 21 February, 2002, was relied on by the worker. He thought she was unfit for her pre-injury duties as a cleaner. She could not perform any sustained lifting above waist level and not in excess of 2 kilograms. He thought her right shoulder would not improve without surgery. (No surgery has been carried out on the right shoulder.)
Dr Sukumar, the worker’s general practitioner, reported in 2001, 2003 and 2004. In his last report dated 13 January 2004 the doctor expresses the opinion that the worker was “effectively unemployable as a cleaner”.
Dr S. O’Reilly of Consultant Medical Services saw the worker, for the insurer, on 2 December 2003. Dr O’Reilly thought the worker would be fit for a range of suitable duties on a full-time basis with specified restrictions.
Dr Roberts on 16 June 2003, in a report to Dr Sukumar, refers to complicating features, particularly the worker’s depression, social situation and her inability to return to work. He thought it unlikely that she would return to her work (my emphasis) with her bilateral shoulder complaints.
Dr Richard Evans, physician, saw the worker at the request of her solicitor on 12 March 2003 and 1 December 2004. On the former occasion he noted that she was of very short stature and weighed 43kg. Dr Evans noted that her English was very good. He did not think there was evidence of capsulitis evident in either shoulder. There was however damage to both rotator cuffs. He noted she was depressed and separated from her husband. Dr Evans was of opinion that it was “difficult to imagine any work for which she was fit that she would be able to obtain”. He assessed loss of the use of both arms to a degree in excess of the figures at which this claim was subsequently settled.
When Dr Evans saw her later, in December 2004, he noted her English was perfect. She was “a bit depressed and not a good historian”. The depression had improved with her joining the church choir. Once again he concluded, “[i]n practice she is unfit for any work that she would be able to obtain”.
Warrigal relied on a number of reports of Dr A.L.G. Smith, orthopaedic surgeon, and Dr S. O’Reilly.
Dr Smith, in summary, initially thought the worker’s problems were cervical in origin, although he noted bilateral degenerative changes in her rotator cuffs. In October 2001 he thought she was unfit for work but it was possible she could do light duties. He suggested surveillance of her activities.
On 5 December 2003 he again expressed the opinion that she had age related degenerative disease in both shoulders and her neck. He thought her employment was not a substantial contributing factor to the development of this degenerative disease. He thought she was exaggerating. He thought any work related aggravation would have substantially resolved after three months at most. He thought she had no impairment of either arm.
Dr O’Reilly saw the worker in December 2003 and gave two reports, the second after reading a report of Dr Smith. I have earlier set out Dr O’Reilly’s views as to the worker’s capacity. She answers a number of questions posed as follows:
“1. When considering the cause in your diagnosis, would you consider the employment to be the most significant factor;
Not now.
2.If not what in your opinion is the cause:
Age related degenerative disease.
3.Are there any underlying non-work related conditions attributing to the claimant’s current level of fitness:
Yes. Age related degenerative disease and low general fitness.
4.If there has been aggravation/exacerbation of an underlying pre-existing medical condition, would you have considered this aggravation/exacerbation to have now ceased:
Yes.”
There are a number of reports from various members of the Vocational Capacity Centre. A vocational psychologist assessed her on 11 December 2003 and obtained a history that the worker had left home when aged between 9 and 11 years to earn money. She only had primary school level education in the Philippines. A number of tests were administered to her. Psychological counselling directed at vocational planning and personal issues was suggested. Certain areas of employment were also suggested for consideration, including ticket collector, usher, rental sales person, console operator, ticket seller, office cashier, sales assistant and parking meter attendant.
A job match report dated 18 December 2003 gives the award remuneration for the suggested jobs as well as a description of what duties they involve.
There was also a functional capacity evaluation summary report. It was noted that she was not then looking for work. It was thought that the suitable duties she was performing 20 hours per week prior to termination were within her physical capabilities. She was fit for a wide range of occupations on a full-time basis in sedentary and semi-sedentary categories of work where her restrictions were respected.
A report from Professor Jones, consultant in rehabilitation and spinal medicine, dated 14 April 2005, was received into evidence. He thought she could do process work or packing at levels below shoulder height.
A report of Dr Burke, surgeon, dated 15 February 2005 was also received into evidence on behalf of Warrigal. He thought she was fit for light cleaning and other duties within her constitutional capacity. He thought light cleaning work and light kitchen duties were entirely appropriate and she was fit for these on a full-time basis. He did not find any permanent impairment of either the left or right upper limb.
There were also admitted into evidence letters from a counsellor at the Canberra Institute of Technology and from Ms Zlatka Podgajski of the Queanbeyan Multicultural Centre. The former recommends that she complete the course she is doing rather than seeking unskilled employment. The latter itemises difficulties the worker has in finding work.

Submissions

It was submitted on behalf of the worker that it was her view that she was not going to get a job in the current labour market in Canberra/Queanbeyan. If she had a capacity for work it was very minimal.
On behalf of Warrigal the fact that she was doing 24 hours study per week was relied on as casting some doubt on the WorkCover certificates provided by the general practitioner. No doctor, it was said, expressed the opinion that she could not work full-time with restrictions. It was said she could earn a wage not dissimilar to that which she would have been earning had she remained employed by Warrigal.
Submissions were made concerning the Arbitrator’s use of section 43A of the 1987 Act and it was submitted that the worker’s efforts to engage the labour market and test it were virtually non-existent.

THE ARBITRATOR’S DECISION

It was agreed that the worker’s probable earnings were $523.72 per week. The worker’s restrictions under section 43 (sic) were noted. The Arbitrator noted that the worker had some capacity to work which was quite limited, being a matter of 14 hours per week. The hourly rate was taken to be $12.65, that of a ticket collector. The difference between the probable earnings and the ability to earn in suitable employment was sufficient to support a continuing award of weekly compensation at the maximum single rate as adjusted from time to time. No submissions were put to the Arbitrator as to the exercise of the discretion given under section 40 of the 1987 Act and, accordingly, the Arbitrator did not refer to the exercise of that discretion in her reasons.

DISCUSSION AND FINDINGS

By section 352(5) of the 1998 Act an appeal is by way of review of the decision appealed against. Such review is by way of re-hearing and not a hearing de novo. It is necessary for the appellant to demonstrate some error of fact, law or discretion affecting the decision of the Arbitrator. It is not to the point that the Presidential Member hearing the appeal considers that he or she may have come to a different conclusion on a question of fact. The question to be answered is whether the Arbitrator has erred.
I think the essential complaint by Warrigal concerns the finding by the Arbitrator that the worker could only work 14 hours per week in suitable employment. That finding is said to have no evidentiary basis and to be contrary to the evidence. It is said that the provisions of section 43A of the 1987 Act could not be relied on to import a temporal limitation of suitable employment. It is finally said that the Arbitrator has given inadequate reasons for making such a finding.

Reasons

The Arbitrator had a statutory duty to give adequate reasons for her decision (section 294 of the 1998 Act and rule 73 of the Workers Compensation Commission Rules 2003). Whether reasons given are adequate or not is often difficult to say. In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Mahoney JA stated at 273:
“There is, I think, no formula the application of which to the instant case will indicate what, in that case, the judge must do. Where, in the decision of an ordinary dispute, reasons are necessary, they are necessary because of the expectation that, being a judicial decision, a sufficient explanation will be given of why the order was made. And, in my opinion, it will ordinarily be sufficient if – to adapt the formula used in the different part of the law: see R v Associated Northern Collieries (1910) 11 CLR 738 at 740 – by his reasons the judge apprises the parties of the broad outline and constituent facts of the reasoning on which he has acted.”
In the same case McHugh JA said the following:
“If an obligation to give reasons for a decision exists its discharge does not require lengthy or elaborate reasons ... it is necessary that the essential ground or grounds upon which the decision rests should be articulated.”
In that case Kirby P dissented holding that the reasons were not adequate whereas the majority considered that they were.
As Deputy President Fleming said in M & S Shipman Pty Limited v Matters [2003] NSWWCC PD 19, relying on the decision of the Court of Appeal in YG & GG v Minister for Community Services [2002] NSWCA 247:
“To succeed on the ground of ‘inadequate reason’ it will be necessary for the Appellant to demonstrate not only that the reasons are inadequate but that the inadequacy sufficiently demonstrates that the Arbitrator has failed to exercise his or her duty to lawfully determine the application.”
In this matter the Arbitrator found that the worker had some capacity to work but that her capacity was quite limited in the practicality of finding employment. The Arbitrator assessed, at page 33 of the transcript, the number of hours she thought the worker could engage in employment and the rate. I have earlier in these reasons set out these figures. I consider that in the circumstances of this case the reasons given are adequate.

Section 43A of the 1987 Act and Sufficiency of Evidence

Section 43A deals with factors to be taken into account in determining what is suitable employment. I do not take the Arbitrator to have decided that the worker was fit to undertake any particular category of employment nor that the precise number of hours she could work was 14. Rather the Arbitrator has used these as an aid to assessing the worker’s ability to earn in suitable employment. I see no reason why section 43A should not be used to determine what is suitable employment, both the nature of that employment and how long a worker could carry out that employment.
Warrigal says there is no evidence that the worker was unfit to work full-time. The Arbitrator saw and heard the worker give evidence. She noted the opinions of Drs Evans and O’Reilly. There was certainly evidence from a number of doctors that theoretically the worker could engage in full-time employment. The Arbitrator was not however obliged to accept those opinions.
Dr Evans, like other doctors, noted the worker’s depression as complicating her problems. This depression it appears is in part as a result of her losing her employment. There are however other factors. Dr Evans’ comments in his two reports I have already set out in paragraphs 25 and 26.
In my view the Arbitrator was obliged to look at the practicalities of the worker’s situation. Travel to and from work was not a relevant factor but her small stature and lack of education were. Despite these matters she had done physical work for a number of years. That work she could no longer do as a result of the injuries suffered while employed by Warrigal.
I am not persuaded that the Arbitrator erred in finding the worker’s ability to earn in suitable employment was $177.10 per week.

DECISION

The decision of the Arbitrator dated 17 May 2005 is confirmed.

COSTS

The appellant employer is to pay the costs of the respondent worker.

Anthony Candy

Acting Deputy President
30 June 2006

I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ANTHONY CANDY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE