Williams v North Gosford Private Hospital

[2004] NSWWCCPD 76

WORKERS COMPENSATION COMMISSION

APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Williams v North Gosford Private Hospital [2004] NSW WCC PD 76

APPELLANT:  Patricia Williams

RESPONDENT:  North Gosford Private Hospital

INSURER:GIO Workers Compensation (NSW) Limited

FILE NUMBER:  WCC12929-2003

DATE OF ARBITRATOR’S DECISION:          28 January 2004

DATE OF APPEAL DECISION:  3 November 2004

SUBJECT MATTER OF DECISION: Section 55 of the Workers Compensation Act 1987

PRESIDENTIAL MEMBER:  Dr Gabriel Fleming, Deputy President

HEARING:On the papers

REPRESENTATION:  Appellant:     Fishburn Watson O’Brien

Respondent:  Phillips Fox

ORDERS MADE ON APPEAL:  The decision of the Arbitrator is confirmed.

THE APPEAL

1. On 20 February 2004 Patricia Williams sought leave to appeal against the decision of a Workers Compensation Commission Arbitrator, made on 28 January 2004. 

1. The Respondent to the Appeal is North Gosford Private Hospital (the Respondent) and the relevant insurer is GIO Workers Compensation (NSW) Limited (the insurer).

1. The appeal is against the Arbitrator’s decision to terminate the weekly workers compensation payment of $116, which the NSW Compensation Court had awarded Ms Williams.  Ms Williams has a work injury to her lower back and left leg.

1. The Arbitrator decided that Ms Williams’s circumstances had changed since the Court award in 23 October 1997.   

1. Ms Williams now wants to have the decision of the Compensation Court reinstated. 

1. The Respondent has not filed a Reply.

1. I am satisfied that I have sufficient information to proceed ‘on the papers’, in accordance with section 354(6) of the Workplace Injury and Workers Compensation Act 1998 (the 1998 Act), without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.

1. Leave to appeal is granted.

1. The issue for determination in the appeal is whether the Arbitrator was wrong to find that there had been a change of circumstances resulting in Ms Williams now being able to earn the same, or more, than she did before her injury. 

1. No new evidence is submitted on the appeal..

EVIDENCE AND SUBMISSIONS

Relevant Facts

1. The facts are set out in the Arbitrator’s decision and are not repeated in full here.  On 20 February 1994, Ms Williams sustained an injury to her left sciatic nerve and was partially incapacitated for work. 

1. On 23 October 1997, Judge Campbell determined that Ms Williams’ probable earnings were $316 per week and that she had a capacity to earn $200 per week.  On the basis of partial incapacity, Ms Williams was awarded compensation of $116.00 per week.

1. Since the Compensation Court proceedings, Ms Williams has moved from Guyra to Glenreagh, 55kms west of Coffs Harbour.  Her husband suffers from cerebral vasculitis for which she receives a carer’s pension and she has two dependent children aged 4 and 14 years.  Since moving to Glenreagh, she has not sought work other than enquiring at the local hotel for a bar position. In her evidence before the Arbitrator, Ms Williams stated that working in Coffs Harbour would involve driving and this would aggravate her condition.

1. Dr Groves (Ms Williams’ General Practitioner) reported that Ms Williams continues to have symptoms of a left sciatic nerve problem and has not improved or deteriorated since 1998.  Dr Crimmins, Consultant Neurologist, reports that Ms Williams still experiences the same pain and the functional restrictions that flow from the initial injury.  In his report of 9 October 2003 he states that there is no “deterioration or improvement in the condition since October 1997 and things have remained fairly static”. 

1. The Respondent relies upon the Vocational Capacity reports of David Verhagen, Physiotherapist, and O. Burchett, Vocational Psychologist, who report that Ms Williams is capable of returning to full-time employment, with some restrictions.  She is able to engage in a full range of household tasks in caring for her husband and family, and could drive without difficulty the thirty minutes to Grafton every fortnight.  The Respondent also relied upon the report of Dr Roarty, Orthopaedic Surgeon, who was of the view that Ms Williams could resume her previous employment, or other employment with some restrictions on lifting and bending.

The Arbitrator’s Decision

1. The Arbitrator held an arbitration hearing by telephone.  The parties were both legally represented and made lengthy submissions.  Ms Williams also gave brief evidence.  The Arbitrator published written reasons for the decision on 28 January 2004.

1. The Arbitrator first set out her findings on the ‘threshold issue’ of whether there had been a ‘change of circumstances’ as required by section 55 of the Workers Compensation Act 1987 (the 1987 Act). She found Ms Williams’ earning capacity was no less than what she would be earning from her pre injury employment. The Arbitrator preferred the evidence of the Vocational Capacity reports and concluded that Ms Williams was able to work “thirty to thirty five hours per week in a sedentary or semi-sedentary position and that she has the skills and the personality to obtain such a position”.

1. The Arbitrator observed that there was no evidence to show that Ms Williams has sought suitable employment in recent times. 

1. The Arbitrator noted that while there were no inconsistencies in the reports of Dr Crimmins and the Vocational Capacity Report in relation to Ms Williams’s pain and functional restrictions, the report from Dr Crimmins did not address Ms Williams’ capacity to work.

Submissions

1. The Appellant submits that the Arbitrator erred in finding that there was a change in circumstances with regards to Ms Williams’ capacity to work and the type of work she could undertake.  The Appellant submits that the Arbitrator, having found there was no change in Ms Williams’ medical condition or functional restrictions that flow from it, should not have varied the order of Judge Campbell.

1. The Appellant argues that, notwithstanding the contents of the Vocational Capacity Centre report, the Arbitrator should have made similar findings to that of Judge Campbell who had the benefit of seeing the worker give evidence and determined that it was “highly unlikely that the worker would find work relating to computers or of a clerical nature”. 

1. In the alternative, the Respondent submits “it is unreasonable as noted by Dr Groves … for the [worker’s] capacity to work to be calculated on an immediate return to work in a clerical or office capacity for the hours nominated by the Arbitrator without any training or ‘fitness building’.”

DISCUSSION AND FINDINGS

1. Section 55 of the 1987 Act provides that an employer, worker or the Authority may request a review of weekly payments where there is a change of circumstances (section 55(1) of the 1987 Act). Where the Commission determines that there has been a change of circumstances, weekly payments of compensation may be ended, reduced or increased (section 55(2) of the 1987 Act).

1. The onus of proving a change of circumstances rests with the party who asserts it (Atlas v Bulli Spinners Pty Limited (1993) 9 NSWCCR 378). A change of circumstances is a necessary pre-condition for any review of the previous award. The starting point for a consideration of change of circumstances is the original decision and the findings as to the worker’s capacity to work (George Weston Foods Limited T/as Tip Top Bakeries v Goldsmith (1998) 17 NSWCCR 253).

1. In this matter I am not satisfied the Appellant has demonstrated that the Arbitrator has made an error of law, fact or discretion (Allesch v Maunz (2000) 203 CLR 172, Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSW WCC PD 6).

1. Ms Williams argues that the Arbitrator erred in accepting Dr Crimmins’ evidence as to her ongoing pain and incapacity and in finding that she has at least the same earning capacity as she had prior to her injury.  It was for the Arbitrator to determine matters on the relative weight of the evidence.  She considered Dr Crimmins’ evidence to be consistent with the Vocational Capacity report in regard to the restrictions that would affect Ms Williams’ ability to work.  The Arbitrator expressly analysed the contradictions in the evidence that was before her.  She was entitled to prefer the Vocational Capacity report as to Ms Williams’ current capacity to work and the types of employment that she may be suited to.  This report clearly evidenced a change of circumstances in regard to Ms Williams’ capacity to undertake different types of work. 

1. Although Ms Williams had previously undertaken a course of training in bookkeeping, computing and office skills, Judge Campbell determined that, on the basis of her ‘employment and other history’, she was unsuitable for clerical or computer work.  On the evidence before the Arbitrator this is no longer the case.  The evidence was that Ms Williams had recently made enquiries of TAFE as to courses to upgrade her bookkeeping skills.  The Vocational Capacity report states that she “makes use of a computer at her home for record keeping purposes and for processing household accounts”.  The report also came to a different assessment of Ms Williams’s incapacity, from that which was before Judge Campbell in 1997.  The report was completed in 2003 and based upon an assessment of Ms Williams at that time.

1. Ms Williams submits that she remains unable to find suitable work given the functional restrictions she suffers because of her injury.  The evidence before the Arbitrator was that Ms Williams had not made efforts to find suitable work because she was committed to the care of her sick husband and her children.  Ms Williams now lives in Glenreagh, which is within a reasonable distance of both Grafton and Coffs Harbour.  The Vocational Capacity report records that she is able to drive the distance to Grafton without difficulty.  Access to the broader labour market in these areas provides greater opportunity for Ms Williams to find suitable work. 

1. Ms Williams submits that, if a change of circumstances is found, she should be permitted a period for training and “fitness building”.  There is no record of this submission being put to the Arbitrator and I am not satisfied that the evidence supports this proposition.  Ms Williams has consistently stated that she is not in a position to look for work because of her family commitments.

DECISION

1. The decision of the Arbitrator is confirmed.

Dr Gabriel Fleming

Deputy President  

3 November 2004

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