Wilson v Warrigal Care Ltd
[2007] NSWWCCPD 108
•4 May 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Wilson v Warrigal Care Ltd [2007] NSWWCCPD 108
APPELLANT: Deanne Wilson
RESPONDENT: Warrigal Care Ltd
INSURER:Employers Mutual Indemnity (Workers Compensation) Limited
FILE NUMBER: WCC8450-06
DATE OF ARBITRATOR’S DECISION: 21 September 2006
DATE OF APPEAL DECISION: 4 May 2007
SUBJECT MATTER OF DECISION: Whether the worker was partially or totally incapacitated for work; Sections 37, 40 and 43A of the Workers Compensation Act 1987; application of the principles in Lawarra Nominees Pty Ltd v Wilson (1996) 25 NSWCCR 206
PRESIDENTIAL MEMBER: Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION: Appellant: Nikolovski Lawyers
Respondent: Edwards Michael Moroney Lawyers
ORDERS MADE ON APPEAL: Paragraph 1 of the Arbitrator’s determination dated 21 September 2006 is revoked and the following order substituted:
“That the Respondent pay the Applicant weekly compensation at the rate of $474.10 per week from 1 December 2003 to date and continuing under section 37 of the Workers Compensation Act 1987.”
Paragraphs 2 and 3 of the Arbitrator’s determination of 21 September 2006 are confirmed.
The order contained in paragraph 4 of the Arbitrator’s decision has already been executed and does not need to be confirmed or revoked.
The Respondent Employer is to pay the Appellant Worker’s costs of the appeal.
BACKGROUND TO THE APPEAL
On 18 October 2006 Deanne Wilson (‘the Appellant Worker/Ms Wilson’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 21 September 2006.
The Respondent to the Appeal is Warrigal Care Ltd (‘the Respondent Employer/Warrigal’).
Ms Wilson is a married woman who was born on 28 October 1966. She has five children, four of whom are dependent on her for support. On completion of her school certificate in 1981 she started work at the Australian Taxation office as a clerk in February 1982 where she worked full time until the birth of her first child in January 1984. After six months leave she returned to work for a further short period on a casual basis before stopping work altogether.
In 1993 her husband commenced a truck bodybuilding business and she assisted in that business by performing administrative and bookkeeping duties. In about 1999 Ms Wilson and her family moved to Oak Flats near Wollongong and later that year she started a traineeship as a casual with Warrigal, an aged care facility, as an assistant-in-nursing. In June 2000 she successfully completed a Certificate III course in Care Support Services. At about the same time she was made permanent.
On 1 November 2001 she sustained injury to her back in the course of her employment with Warrigal when she was pushing a resident down a hallway in a wheelchair and the patient unexpectedly put his feet down to stop the chair resulting in Ms Wilson jerking her body and sustaining a significant injury to her back. The incident was reported and a claim form submitted. Apart from attempting a return to work program with Warrigal on restricted duties from 13 November 2001 to 15 April 2002, Ms Wilson has not returned to work since 1 November 2001.
She came under the care of Dr Moloney and underwent disc replacement surgery on 13 December 2002. That surgery did not relieve her symptoms.
By late 2002 she developed symptoms of depression and had trouble sleeping. As a result she came under the care of Dr Pakula, psychiatrist, in January 2003. He diagnosed her as suffering from a major depressive disorder with anxiety symptoms.
On 30 May 2003 Ms Wilson was travelling to Port Kembla Hospital for treatment as part of her pain management program in the patient transport bus when it collided with another vehicle. As a result of that accident she was thrown forward and backward and felt pain in her right shoulder into the right side of her neck.
Her claim was initially accepted and voluntary compensation paid until 1 December 2003 when it was declined on the basis of evidence from Drs Machart and Matheson who both thought that her incapacity was no longer work related.
An Application to Resolve a Dispute (‘the Application’) was registered in the Commission on 2 June 2006. In it Ms Wilson alleged that as a result of the events on 1 November 2001 and 30 May 2003 she sustained injuries to her back, left leg, neck, right shoulder, loss of sexual organs and depression and anxiety. She claimed weekly compensation from 1 December 2003 to date and continuing at the statutory rate for a worker with four dependent children. She also claimed hospital and medical expenses and lump sum compensation in respect of a 22% permanent impairment of her back, 10% permanent loss of efficient use of her left leg at or above the knee, 50% loss of use of sexual organs and 9% whole person impairment.
Her claim was heard before a Commission Arbitrator on 6 September 2006 and decided in a reserved decision delivered on 21 September 2006. The Appellant Worker succeeded in her claim and was awarded, among other things, weekly compensation for total incapacity under section 37 in the sum of $474.10 per week from 1 December 2003 to 17 July 2006 and for partial incapacity under section 40 in the sum of $329.26 per week from 18 July 2006 to date and continuing.
The Appellant Worker seeks leave to appeal that decision on the ground that the award from 18 July 2006 should have been on the basis of total incapacity.
LEAVE TO APPEAL
Monetary Threshold
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
The monetary thresholds in section 352(2) are both satisfied.
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
I grant leave to appeal.
PRELIMINARY MATTERS
Section 354(6) of the 1998 Act provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
The Appellant Worker submits that because there is a substantial amount of evidence together with questions of law to be considered, a proper analysis of all the submissions is best dealt with by an oral hearing.
I have carefully considered the Appellant Worker’s submission that an oral hearing is required. As I have had the benefit of detailed written submissions from both sides thoroughly dealing with all relevant issues, I do not feel that an oral hearing is necessary in this matter.
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the Respondent Employer 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.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 21 September 2006, records the Arbitrator’s orders as follows:
“1.That the Respondent pay the Applicant weekly compensation at the rate of
a. $474.10 from 1 December 2003 to the 17 July 2006 under s37 of the Workers Compensation Act 1987
b. $329.26 from the 18 July 2006 to date under s40 of the Workers Compensation Act 1987. Such payments to continue in accordance with the Act
2.That the Respondent pay the Applicant’s s60 [sic] of the Workers Compensation Act 1987 expenses up to the sum of $3,727.00 upon production of invoices or receipts.
3.That the Respondent pay the Applicant’s costs as agreed or assessed.
4.That this matter be forwarded by the Registry, in accordance with the referral by the arbitrator, to an Approved Medical Specialist for determination of the Applicant’s degree of permanent impairment arising from the injury on the 1 November 2001.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a)finding that the Appellant Worker was only partially incapacitated from 18 July 2006;
(b)failing to base her decision that the Appellant Worker was only partially incapacitated from 18 July 2006 on logically probative evidence;
(c)failing to consider all of the evidence;
(d)making a finding of partial incapacity when there was no evidence to support such a finding;
(e)failing to properly apply sections 37 and 43A of the 1987 Act, and, in the alternative, and
(f)calculating the Appellant Worker’s earnings but for injury (section 40(2)(a)) on the basis of her current weekly wage rate under section 37 rather than on the basis of her average weekly earnings but for injury.
ARBITRATOR’S DECISION
In her Statement of Reasons for Decision (‘Reasons’) the Arbitrator reviewed the medical evidence and found at paragraphs 37, 38 and 39 of her Reasons that:
“37. Physically the applicant seems to be capable of some part time sedentary or semi-sedentary work. Dr Deveridge and Mr Girdler agree, though with some reservations. The applicant has some experience and skills in this kind of work. The main barrier to the applicant working seems to be her psychological condition as stated by Dr Girgis and Dr Pakula who states that her back pain was easing as from January 2004 but it is unlikely she will work in the foreseeable future as stress will exacerbate her depressive symptoms.
38. Against this the applicant repeatedly states that her depression is largely due to her not working and Dr Lee in his report which was twelve months after the report of Dr Pakula reports no objective findings of psychological illness. Nothing seems to reduce the applicant’s perception of pain but she does now seem to be psychologically capable of handling stressful situations such as moving house and family difficulties with her eldest daughter, as outlined in the report of Dr Pacula [sic].
39. I find the applicant was totally incapacitated for work from the 1 December 2003 to the date of Dr Lee’s report of 17 July 2006. The applicant is partially incapacitated from that date when Dr Lee found no objective signs of psychological disorder. This is also about the time when the applicant’s pain relief medication was reduced, by Dr Bashford. At this time Dr Machart in his report of 21 July 2006 lists the applicant’s medication as being Neulactil and Lexapro only. This confirms the applicant’s own evidence and seems to indicate that the improvement in pain starting in January 2004 recorded by Dr Pacula [sic] has continued.”
The Arbitrator made the award for total incapacity set out at paragraph [21] above. In respect of the claim for weekly compensation from 18 July 2006 the Arbitrator found:
a)“the parties agree that the applicant would have been earning $474.10 but for injury for a 38 hour week at the rate of $12.07 per hour” (section 40(2)(a));
b)Ms Wilson was capable of working in a semi-sedentary or sedentary job for “three half days per week or 12 hours per week” at $12.07 per hour, giving an ability to earn of $144.84 per week (section 40(2)(b));
c)the difference between the above figures is $329.26 per week, and
d)the parties did not address on discretionary factors and there was no “need to exercise the discretion to reduce” the figure of $329.26 per week which was the amount awarded under section 40.
SUBMISSIONS
The Appellant Worker submits that:
a)the Arbitrator’s assertion that Dr Deveridge and Mr Girdler agreed that Ms Wilson was capable of some “part time sedentary or semi-sedentary work” was incorrect;
b)the balance of the accepted medical evidence (Drs Evans, Stephens, Girgis and Moloney) does not support a finding that Ms Wilson was fit for even part time sedentary work;
c)Drs Machart and Matheson felt that Ms Wilson was fit for work such as ‘sales work’ but they also felt that she did not suffer from any work related injury or disability, an opinion the Arbitrator rejected;
d)the Arbitrator erred in finding that the main barrier to Ms Wilson’s return to work was her psychological condition rather than her physical complaints. In reaching this finding the Arbitrator did not properly consider the evidence of Drs Deveridge, Evans, Stephens, Moloney or Girgis who all considered Ms Wilson to be unfit because of her physical problems;
e)the Arbitrator failed to consider the fact that Ms Wilson had undergone significant surgery and the consequences of that surgery as set out in Ms Wilson’s statement dated 31 January 2006 at paragraphs 73 to 82 and her statement dated 30 August 2006;
f)the Arbitrator erred in finding that Ms Wilson was not taking pain-killing medication as at 17 July 2006. This finding being contrary to the history recorded by Dr Lee that, at the time of his report, Ms Wilson was taking panadeine forte. It was also inconsistent with the medical certificates from Dr Girgis dated 8 May and 8 August 2006 that Ms Wilson was being treated by way of analgesia. Ms Wilson was asked at the arbitration hearing what medication she was taking and her failure to mention pain-relieving medication does not indicate that she was not taking that medication. It was never put to Ms Wilson that she had stopped taking such medication;
g)evidence of a reduction in pain-killing medication was not, of itself, evidence of an improvement in Ms Wilson’s condition. Ms Wilson’s evidence was that there had been no improvement in her condition since her statement of January 2006 (T19.43). The Arbitrator failed to refer to this evidence;
h)the Arbitrator failed to consider Ms Wilson’s evidence that she sustained injury to her right arm in the car accident on 30 May 2003 and that she continued to have restrictions in the use of her right arm which incapacitated her (Ms Wilson’s statement, 31 January 2006 paragraphs 46-52 and 66);
i)the Arbitrator erred in finding that Ms Wilson had a capacity to work 12 hours per week and earn $12.07 per hour as, in addition to the reasons stated above, there was no evidence that Ms Wilson had the capacity to work three half days per week;
j)total incapacity is determined by having regard to the practical situation in which the worker finds himself or herself and the consequences of the injury (Moran Health Care Services v Woods (1997) 14 NSWCCR 499, Arnotts Snack Products Pty Limited v Yacob (1985) 155 CLR 171, Holden v Toll Chadwick Transport Ltd (1987) 8NSWLR 222 and Lawarra Nominees Pty Ltd v Wilson (1996) 25 NSWCCR 206 at 213 (‘Lawarra Nominees’). The Arbitrator failed to consider or apply the principles discussed in Lawarra Nominees;
k)in a practical assessment of Ms Wilson’s capacity for work, having regard to the realities of the labour market, she is totally unfit for work;
l)the Arbitrator failed to apply section 43A when considering the type of employment that was “suitable employment” for the purposes of section 40 and failed to consider all of the evidence, and, in the alternative,
m)the Arbitrator erred in determining the probable earnings but for injury (section 40(2)(a)) on the basis of the current weekly wage rate under section 37.
The Respondent Employer submits that:
a)the Arbitrator listed all of the medical evidence. It was not necessary for her to mention every one to compare each opinion where it differed from another. It was legitimate for her to demonstrate that she had read them and understood their content;
b)there is no reason advanced by the Appellant Worker as to why the reports from ARC Work Assessment Centre (‘ARC’) had to be ignored by the Arbitrator or what error occurred in her accepting them in preference to the opinions of other doctors. The burden of proof lies upon the Appellant Worker;
c)at paragraph 25 the Arbitrator referred to the report of Dr Lee, psychiatrist, dated 17 July 2006, in which Ms Wilson is recorded to have told the doctor that she “would be able to probably work for up to three days per week in administrative work”. The Arbitrator was entitled to accept that statement, as Ms Wilson never disavowed it in her evidence. In cross-examination she agreed she could work;
d)there was evidence that Ms Wilson could work 12 hours per week;
e)there is no error simply because a tribunal prefers one expert over another;
f)the Arbitrator found, based on reports such as Dr Lee, that total incapacity was not made out;
g)this is not a case that calls for the intervention of an appellate tribunal. Reliance is placed on the decision of McHugh J in Abalos v Australian Postal Commission (1990) 171 CLR 167 at 179 (‘Abalos’);
h)the role of a Presidential Member on appeal is to review the Arbitrator’s decision as a whole. A review is not a rehearing. In order to enliven the power to interfere with an Arbitrator’s decision it must be demonstrated that the decision is affected by some legal, factual or discretionary error (The King Island Company Limited v Deery [2005] NSWWCCPD 1 (‘Deery’). Where the weight accorded to the evidence by the Arbitrator is challenged, the decision of Knight v Eyles Nominees Pty Ltd t/as Processed Forest Products [2004] NSWWCCPD 73 at 40 (‘Knight’) is apposite. In that case it was held that “Interference with an Arbitrator’s discretionary judgement as to the weight of evidence should only be done where it is manifestly obvious the discretion has so miscarried that it has not been exercised fairly and lawfully”, and
i)the Arbitrator’s Reasons adequately set out her material findings of fact and the evidence upon which those findings were based. She also set out the relevant law and explained its application to the matter before her. There is nothing to indicate that she failed to exercise her duty to fairly and lawfully determine the application, therefore, the decision must be confirmed.
REVIEW
The nature of a review and the role and function of a Presidential member on appeal has been considered in many cases in the Commission. In Deery it was held at [19]:
“19. A Presidential Member on appeal has a specific and limited role in the review of a decision of an Arbitrator. The review is not a rehearing. The Presidential member is not dealing with the matter de novo and is not arriving at a fresh decision based on all of the evidence available at a later time (Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616). The powers of the Presidential Member to revoke the decision pursuant to section 352(7) of the 1998 Act and to substitute a new decision in its place, are exercisable only where it is demonstrated that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172). Alternatively, the Presidential Member may remit the matter back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions made.”
The nature of a review was considered by the Court of Appeal in Aluminium Louvres & Ceilings Pty Limited v Zheng [2006] NSWCA 34 where Bryson JA said at [38]:
“A review is a different process to an appeal and the matters which may be considered and the manner in which they may be considered are somewhat wider. See Boston Clothing Co Pty Ltd v. Margaronis (1992) 27 NSWLR 580 at 584 (Kirby P). An attack, on review or otherwise, on an Arbitrator's discretionary decision in controlling procedure may be based on the test stated in House v. R (1936) 55 CLR 499 at 504 - 505; but that is not the only basis on which the Presidential member may act. The powers of a Presidential member on review are somewhat wider and extend to power to reopen consideration of a matter of which an Arbitrator has disposed; the manner in which the powers of the Presidential member are to be exercised is itself the subject of discretion of the Presidential member.”
This passage was recently quoted with approval by McColl JA in South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 at [134]. To describe the relative weight and relevance of the expert evidence as “a discretionary decision which could only be disturbed on House v The King principles” was described by McColl JA as “an over-generalisation” (at [133]).
Before an Arbitrator’s decision will be revoked on review it must by demonstrated that it contains or has resulted from an error of fact, law or discretion. The error must be such that, but for it, a different decision should have been made (see Snow Confectionary Pty Ltd v Askin [2004] NSWWCCPD 56; Section 294 of the 1998 Act; YG & GG v Minister for Community Services [2002] NSWCA 247; Absolon v NSW TAFE [1999] NSWCA 311).
I intend to apply the above principles in the matter before me.
DISCUSSION AND FINDINGS
The Opinions of Dr Deveridge and Mr Girdler
The Appellant Worker challenges the Arbitrator’s statement at paragraph 37 of her Reasons that Dr Deveridge and Mr Girdler agreed, with reservations, that physically Ms Wilson seemed capable of some part time sedentary or semi-sedentary work.
Dr Deveridge’s evidence is set out in his reports of 2 March 2004 and 5 September 2006. The second report was provided in response to a request from Ms Wilson’s solicitors that he review the documents from ARC.
Dr Deveridge stated in his report of 2 March 2004 (based on an examination on 26 February 2004, not in 2003 as stated by the Arbitrator at paragraph 43 of her Reasons) that Ms Wilson presented in a “quite disabled manner with unrelenting low back pain, stiffness and radicular type symptoms referred to the left lower limb” (report 2 March 2004, page three). At page four of the same report he stated:
“She is going to be permanently unfit for repetitive bending, heavy lifting, carrying, twisting, pushing, and dragging. Taking into account her ongoing need for strong analgesic [Panadeine Forte and Endone every 4-6 hours] and narcotic type medication, it is unlikely that she could perform even sedentary or supervisory type duties. Further rehabilitation is unlikely to improve her employability.” (emphasis added)
In his report of 5 September 2006 he stated at page one that he had already commented on Ms Wilson’s future work capacity “indicating that it was unlikely that your client would get back to any form of work even sedentary duties, in light of her ongoing disability and the need for strong analgesic medication”. He added, “any return to even the most sedentary duties would need to be monitored by a rehabilitation provider. Any re-commencement of such duties would be at a level of 2 hours a day on 3 days a week, upgrading with tolerance.” After stating that none of the three jobs identified in the ARC reports would be suitable for Ms Wilson, he stated at pages two and three:
“Even though she performed secretarial and book-keeping duties in her husbands business, the work load was low and she could work at her own pace. Theoretically she could work in this capacity, commencing on a graduated basis as I have indicated above. I doubt if she would get past about 8-10 hours weekly, even spacing her tasks through a full week from her home. Once again her regular need for strong medication would act against successful and accurate book-keeping. Similar comments would apply to the proposed work as a pharmaceutical sales person.
In summary the ARC Work Assessment Centre reports have not accurately gauged the severity of your client’s medical condition, and they have therefore overstated her work capacity.” (emphasis added)
Dr Deveridge’s ‘agreement’ that Ms Wilson was fit for sedentary or supervisory duties was only at a theoretical level. The Arbitrator failed to acknowledge this fact though she did refer to the doctor having ‘reservations’.
Mr Girdler stated at pages two and three of his report of 25 August 2006 that:
“Ms Wilson’s incapacities indicate she is suited to sedentary work in which she is able to stand frequently to change her posture or, possibly, light work in which she is provided with the opportunity of sitting frequently to rest….
The variable nature of her symptoms and her intermittently higher levels of incapacity indicates she is unlikely to be able to sustain employment with fixed working hours.” (emphasis added)
He concluded at page five that having regard to the definition of ‘suitable employment’ in section 43A of the 1987 Act:
“…no occupation for which Ms Wilson currently qualifies can be considered to be suitable. Her employment opportunities are restricted to performing a limited range of mostly clerical tasks, frequently interrupted for rest breaks, on an ad hoc basis. Realistically, I doubt Ms Wilson will ever be able to return to work.” (emphasis added)
To conclude that Dr Deveridge and Mr Girdler agreed (with reservations) that Ms Wilson was capable of some part time sedentary or semi-sedentary work was to inaccurately summarise their opinions. Clearly, neither Dr Deveridge nor Mr Girdler felt that alternative work was a realistic prospect for Ms Wilson given her substantial restrictions and disabilities. The Arbitrator was in error on this point.
The Balance of the Medical Evidence
I agree with the Appellant Worker’s submission that the balance of the medical evidence (Drs Evans, Stephens, Girgis and Moloney) did not support a finding that she was fit for part time sedentary work. However, apart from Dr Girgis, the opinions of all of the other doctors named were provided well before 17 July 2006 and were therefore of limited value in assessing incapacity at that date.
I also agree that the opinions of Drs Machart and Matheson carried little weight on the question of incapacity as they also felt that Ms Wilson did not suffer from any work related injury, an opinion the Arbitrator rightly rejected.
Main Barrier to Ms Wilson Returning to Work
The Appellant Worker challenges the Arbitrator’s finding at paragraph 37 of her Reasons that the “main barrier” to her working “seems to be her psychological condition as stated by Dr Girgis and Dr Pakula who stated that her back pain was easing as from January 2004 but it is unlikely she will work in the foreseeable future as stress will exacerbate her depressive symptoms”.
Dr Pakula has seen Ms Wilson for treatment of her psychological condition on numerous occasions and prepared two reports dated 10 September 2003 and 13 August 2005.
When he first assessed her in June 2003 Dr Pakula diagnosed Ms Wilson as having a major depressive disorder and marked anxiety symptoms. At page four of his 2005 report he recorded Ms Wilson’s condition in June 2003 to be as follows:
“Special areas of interest in the Mental State Examination were her marked anhedonia, depressed affect, feelings of depression, tearfulness, helplessness and suicidal ideation. Deanne Wilson described talking to herself ‘in her head’ and feels she has lost control of her life. In terms of diagnostic issues Deanne Wilson fulfils the criteria for a Major Depressive episode in DSM IV. That is she has a depressed mood most of the day nearly everyday as indicated by her subjective reports and observations made by myself. Deanne has also had markedly diminished interest and pleasure in all of her most usual activities as well as experiencing significant anxiety. There has been significant weight loss of 11 kgs when not dieting and her appetite has been decreased nearly every day of the week. Deanne Wilson also described marked insomnia and broken sleep nearly every night of the week. Deanne also described marked psychomotor retardation, fatigue, loss of energy as well as feelings of worthlessness and inappropriate guilt. Deanne also had major difficulties concentrating and had recurrent thoughts of suicide and almost daily suicidal ideation.”
At page seven he noted that:
“By January 2004 Deanne had improved quite reasonably well on the Lexapro and the Neulactil and has loss [sic] 4 kg of weight, she also found that there was some easing of her back pain and that the back pain was not constant during the day and night but she has periods where the pain would ease off.
Over the next few months there was a slow but pleasing improvement in her depressive symptoms with the reduction of her suicidal thoughts, depressive thoughts and an increased ability to sleep at night. She was feeling much calmer and much more relaxed. By June and July 2004 she was getting better control of her back pain, and her depression was under control. Over the next few months Deanne continued to improve despite having some family difficulties around her daughter Trudy. I last reviewed Deanne on the 30 July 2005, at that time she was coping reasonably well and her children were doing well at school, she was preparing to move house and her depression was under reasonable control.”
In conclusion, Dr Pakula stated at page eight:
“It is my opinion that the psychological condition as caused by her work injuries, that is the depressive illness caused by her back injury is at a level in [sic] which my view that it is unlikely that Deanne Wilson will be able to return to work in the foreseeable future as any stressful situation will exacerbate her depressive symptoms particularly her lack of sleep and suicidal ideation. In terms of the restrictions upon her capacity for work beyond her physical restrictions I believe the [sic] Deanne Wilson should not return to work at this point in time and in the foreseeable future.”
The evidence does not support the Arbitrator’s conclusion that Ms Wilson’s ‘main barrier’ to returning to work is her psychological condition. Dr Girgis made no such statement. His evidence is in his report of 18 October 2003 and in several medical certificates. In his 18 October 2003 report Dr Girgis stated his diagnosis to be:
“-SPRAINED LEFT [SIC] SHOULDER MUSCLES.
-L4/5 MINOR DISC PROLAPSE.
-L5/S1 DISC PROLAPSE.
-SPONDYLOLISTHESIS OF L5 ON S1 ON 22%, 10MM.
-POSSIBLE DEFECT OF THE LEFT PARS INTERARTICULARS OF L5.
-LEFT SACRO-ILIAC JOINT DYSFUNCTION.
-MECHANICAL LOWER BACK PAIN ON A BACKGROUND OF FACET JOINT ARTHRITIS.
-DEPRESSION AND ANXIETY.”
Dr Girgis’ latest medical certificate is dated 8 August 2006. It declares Ms Wilson to be “unfit for work from 8/8/2006 to 8/11/06”. The diagnosis in that certificate is “as previously stated” and the management plan is “analgesia and antidepressants”.
The physical barriers to Ms Wilson’s return to work include a permanent impairment in her ability to sit, drive, stand or walk for more than 30 minutes; use stairs or ladders more than occasionally; stoop, crouch or kneel more than occasionally; reach with her right shoulder more than occasionally; and lift more than five kilograms (see report Mr Girdler 25 August 2006). These limitations are consistent with her physical injuries and the significant surgery she has undergone.
The evidence that Ms Wilson has a significant physical disability is overwhelming and the Arbitrator was incorrect to state that the main barrier to Ms Wilson return to work was her psychological condition.
Pain Relieving Medication and Improvement
The Appellant Worker challenges the Arbitrator’s finding that she was not taking pain-killing medication as at 17 July 2006. The Arbitrator did not make an express finding in those terms, but I infer from her Reasons that that is the conclusion she reached. Her findings or comments about the evidence dealing with Ms Wilson’s pain relieving medication and the improvement in her pain were:
a)when asked by the Arbitrator at the arbitration hearing about her current medication, Ms Wilson replied Lexapro and Neulactal. The Arbitrator noted, “No pain medication was mentioned.” (Reasons, paragraph 29);
b)Dr Bashford stated in his report of 14 March 2005 that “it could easily be we are just treating withdrawal symptoms” and advised withdrawal of codeine phosphate entirely saying she can take safe amounts of paracetamol in its place. He reported on 24 April 2006 that he had reduced Ms Wilson’s Norspan. She has been prescribed Tramal, Efflexor [sic], Feldene, Panamax, Vioxx, Endone and Digesic in the past but did not claim to be “on any of these medications at present” (Reasons, paragraph 30);
c)Dr Pakula noted some easing of Ms Wilson’s back pain by January 2004 (Reasons, paragraph 31);
d)Dr Marchart in his report of 21 July 2006 listed Ms Wilson’s medication as Neuactil and Lexapro only (Reasons, paragraph 39)
e)the evidence from Dr Bashford and Dr Machart confirmed “the Applicant’s own evidence and seems to indicate that the improvement in pain starting in January 2004 recorded by Dr Pacula [sic] has continued” (Reasons, paragraph 39), and
f)Dr Lee noted that Ms Wilson took Panadeine Forte (as well as Lexapro and Neulactal) “though the Applicant did not give evidence of taking panadeine forte at the arbitration” (Reasons, paragraph 32).
The evidence on these issues is as follows. When giving oral evidence at the arbitration hearing Ms Wilson was asked about her medication at T13.1:
“Q. Is that still a problem for you at the present time or --
A. Depression?Q. Yes.
A. Yeah.Q. Do you - are you taking medication for it?
A. Yes, I do.ARBITRATOR: Q. Which ones do you take?
A. Lexapro and Neulactil.”
At T20.41 the following questions were asked by counsel for Ms Wilson and the Arbitrator:
“Q. Right. So what’s the maximum distance and time that you would travel in public transport?
A. About 15 to 20 minutes.ARBITRATOR: Q. How do you know that?
A. Because of when I’ve had to go to the doctors I’ve felt the pain and had to take extra medication to try and calm it down while I was en route to the medical appointment.”
Ms Wilson was also asked about the condition of her back and left leg after her appointment with Mr Girdler on 21 August 2006 (T21.5). Her evidence was:
“MR CHOAT: Q. How were you in terms of the condition of your back and left leg at the conclusion of that examination?
A. Oh, I was wasted. I couldn’t do anything. I just had to sit on the train station for a while waiting till everything calmed down and then I took my medication for the trip home.”
The only reasonable inference from this evidence is that the medication was pain-relieving medication.
The documentary evidence about Ms Wilson’s medication in 2006 is as follows:
a)Dr Lee, report 17 July 2006, page three: “she reported taking six to eight tablets of the analgesic Panadeine Forte a day”;
b)Vocational Assessment Summary Report by Liz Atteya, dated 20 July 2006 (assessment 18 July 2006), page four: “Ms Wilson continues to medicate with Panadeine Forte and anti-depressant medication”;
c)Dr Bashford in his report of 14 March 2006 stated:
“She is off Tramal but is taking large amounts of Codeine Phosphate as Panadeine Forte. She estimates on average between 10 and 12 tablets per day. Despite her high intake of Codeine Phosphate, her pain remains at 7-9/10. The character and distribution is similar to when I saw her last. At best she says these pills take the edge of [sic] her pain. It could easily be that we are just treating withdrawal symptoms. I note that previously she has shown little or no response to higher doses of Oxycontin.
Today I have written her up for 10 and also 20mcg patches of Norspan…”
d)in his report of 24 April 2006 Dr Bashford stated that Ms Wilson was using 20mcg per hour patches of Norspan and that her pain relief was not too bad but she complained of mild motor “inco-ordination” and has had to reduce her driving. He did not think it was practical for her to stay on that dose of Norspan and reduced it to 10mcg with the comment that she could use “breakthrough Panadeine Forte in the short term”. The doctor sought Dr Girgis’ opinion on the use of Oxycontin or MS Contin;
e)Dr Girgis’ medical certificates up to 8 August 2006 stated that Ms Wilson was on “analgesia and anti-depressants”, and
f)Dr Machart stated in his report of 21 July 2006 under the heading ‘treatment’ “Neulactil and Lexapro”.
The Appellant Worker’s challenge to the Arbitrator’s findings is that it was never put that she had stopped taking pain-relieving medication. That is correct. The only direct question put about medication was in the context of Ms Wilson’s medication for her depression (see paragraph [52] above). Ms Wilson’s oral evidence quoted above dealing with medication makes it clear that she was still taking medication for her pain in 2006. That evidence is consistent with the evidence in her statement dated 31 January 2006 at paragraph 83 where she said that she took Panadeine Forte and “Dolosed” [sic] for pain control. Even with that medication she had trouble sleeping because of pain (statement 31 January 2006, paragraph 85) and still experienced “constant pain” which was “difficult to deal with” (statement 31 January 2006, paragraph 91).
The evidence does not support the Arbitrator’s conclusion that Dr Bashford reduced the pain relieving medication at about the time of Dr Lee’s report of 17 July 2006. First, Dr Bashford saw Ms Wilson in March 2006 “for the first time in 15 months”, on referral from Dr Girgis. This suggests that Ms Wilson’s pain management had been under control until early 2006. Dr Bashford organised a trial of Norspan. The dose of Norspan was reduced from 20 mcg to 10 mcg because of complaints of “inco-ordination”. Second, even taking 10-12 Panadeine Forte tablets per day Ms Wilson’s pain remained at “7-9/10”. That does not indicate any relevant or significant improvement in her level of pain or reduction in her pain medication.
The evidence supports a finding that Ms Wilson’s back pain eased in January 2004 but it does not support the Arbitrator’s finding that that improvement continued up to July 2006. Dr Pakula noted at page seven of his report of 13 August 2005 that in January 2004 there was “some easing of her back pain and that the back pain was not constant during the day and night but she had periods where the pain would ease off”. He added that by June and July 2004 she was getting “better control of her back pain and her depression was under control”.
Ms Wilson did not give evidence that her only medication was Lexapro and Neulactil and that she was not taking any medication for her pain. There is no evidence that the easing of pain noted by Dr Pakula in January 2004 was an improvement that continued. Ms Wilson’s evidence under affirmation at the arbitration hearing was that her condition had not improved since her statement of January 2006 (T19.41).
The evidence does not support the Arbitrator’s findings as to Ms Wilson’s pain medication and the improvement in January 2004 continuing. The Arbitrator was in error in making those findings.
Dr Lee’s Evidence
The further reason the Arbitrator gave for finding that Ms Wilson was partially incapacitated from 18 July 2006 was the statement of Dr Lee in his report of 17 July 2006 that he found no objective signs of psychological disorder. At the time of that consultation Ms Wilson stated that the Lexapro and Neulactil, prescribed for her by Dr Pakula, helped her. Dr Lee took a history of the following complaints by Ms Wilson:
a)a feeling of worthlessness because she used to be the breadwinner;
b)agoraphobia;
c)anxiety when more than three people who she does not know come to her house;
d)panic attacks in shopping centres;
e)feeling down all the time, and
f)poor midterm memory;
Dr Lee’s conclusion, stated at page eight of his report, was:
“In my opinion there was no objective evidence that Ms Wilson currently has a clinically significant psychiatric disorder although she reports that this is alleviated by psychiatric treatment and various medications including antidepressants, neuoleptics, pain killers and so forth.”
In his next paragraph Dr Lee stated, “there is however no objective evidence of psychiatric disturbance as opposed to her self-report and her variable history suggests that her account may not be reliable”. Later he added:
“I also note that she did not inform me that her husband has an underlying bipolar affective disorder which raises further questions as to her reliability. As such, given that there is no apparent organic basis for her reported pain, her psychiatric diagnosis is also in question. I note that she denies any pre-existing psychiatric or psychological problems.” (emphasis added)
Dr Lee’s statement that there was no apparent organic basis for Ms Wilson’s pain is incorrect. Investigations reveal that Ms Wilson has lower lumbar disc lesions, pre existent spondylolisthesis and lower lumbar facet joint arthropathy (Dr Deveridge 2 March 2004, page three). She has undergone major spinal surgery without relief of her symptoms. Dr Stephen, orthopaedic surgeon qualified by Employers Mutual Indemnity (Workers Compensation) Limited, stated in his report of 6 August 2003 that, in view of Ms Wilson’s continuing pain, a spinal fusion operation “merits serious consideration”.
In Dr Lee’s concluding paragraph he stated that he was uncertain about the veracity of Ms Wilson’s reports of pain and whether she requires psychiatric treatment. However, he had not seen Dr Pakula’s reports and his statement that her pain had no organic basis was incorrect. Dr Lee added that he wanted to “review any available psychiatric records to give a more informed opinion”. For these reasons, Dr Lee’s conclusions did not provide a sound or valid basis for finding that Ms Wilson’s total incapacity had ceased. He did not express a concluded opinion about Ms Wilson’s fitness for work so far as her psychiatric condition was concerned. The fact that Ms Wilson did not exhibit any overt or objective signs of a “clinically significant psychiatric disorder” is hardly surprising given that she was being effectively treated with appropriate medication by Dr Pakula.
The Arbitrator was in error in placing weight on Dr Lee’s opinions to justify a finding that as at the date of his report (17 July 2006) Ms Wilson’s total incapacity had ceased.
Right Arm Injury
Whilst it is correct that the Arbitrator failed to consider Ms Wilson’s evidence that she injured her right arm in the accident on 30 May 2003, I do not consider this omission to be significant in the overall assessment of the appeal. There is no evidence indicating what, if any, impact the arm injury has had on Ms Wilson’s capacity to earn.
The Authorities
Of the authorities cited by the Appellant Worker, Lawarra Nominees is of particular relevance. In that case Justice Mahoney stated at 213:
“Normally, a court in determining whether a worker is totally or partially incapacitated will, in a practical sense, ordinarily consider two questions: what is the relevant labour market, i.e. what work was the worker doing or could he reasonably be expected to do; and of that kind of work, what is he physically able to do.
In considering the second of these, it is necessary to bear in mind that what is in question is capacity or incapacity ‘for work’. The legislation is not concerned merely in the abstract with work or work capacities as such. It is concerned with the capacity to do work of a particular kind or kinds in the context which will produce income. I do not wish by what I say to narrow the scope of the enquiry to be undertaken in the assessment of capacity or of compensation. But in assessing whether a worker is wholly or partially incapacitated and to what extent, the Court will ordinarily not be concerned, for example, to determine in an artificial or theoretical situation what he could do if the work available to him would allow him to stand for a time, sit for a time, cease when the pain he suffers became unacceptable, and generally work as, in his condition, he would fairly wish to work. The Court does not, as it were, spell out according to the periods of time which could be spent at work in such a way and what he could do during those periods, the extent of his capacity for work. The exercise is, in my opinion, a more practical exercise. It involves the assessment of a capacity ‘for work’ having regard to the realities of the labour market in which he is to be engaged. The Compensation Court, within the scope accorded to it in this regard, must assess whether, in a case such as the present, the pain and disabilities from which the worker suffers by reason of his compensable injuries are such that he is able to do those things which would permit him to do work in the relevant labour market.”
The Arbitrator failed to refer to or consider the principles discussed in Lawarra Nominees. These principles are of particular relevance in the present case (as will be discussed below) and the Arbitrator was in error in not applying them.
Section 43A
The Appellant Worker submits that the Arbitrator failed to apply section 43A. That section provides:
“43A Suitable employment
(1) For the purposes of sections 38, 38A and 40:
‘suitable employment’, in relation to a worker, means employment in work for which the worker is suited, having regard to the following:(a) the nature of the worker’s incapacity and pre-injury employment,
(b) the worker’s age, education, skills and work experience,
(c) the worker’s place of residence,
(d) the details given in the medical certificate supplied by the worker,
(e) the provisions of any injury management plan for the worker,(f) any suitable employment for which the worker has received rehabilitation training,
(g) the length of time the worker has been seeking suitable employment,
(h) any other relevant circumstances.”
Apart from mentioning section 43A in paragraph eight of her Reasons, the Arbitrator made no further reference to this section.
Applying the evidence to the provisions of section 43A the following conclusions result:
a)the nature of the worker’s incapacity and pre-injury employment: Ms Wilson is unfit for repetitive bending, heavy lifting, carrying, twisting, pushing and dragging. She should avoid prolonged periods of sitting or standing. In addition, she gave evidence that she has a problem using public transport (T20.36), her medication makes her groggy (T21.40), her memory is terrible (T21.51) and she has difficulty reading (T21.52). Her pre-injury employment was as an assistant-in-nursing in an aged care facility. That job included assisting residents with showering, managing daily care plans and assisting with mobilizing residents. It is not disputed that Ms Wilson is unfit for that work;
b)the worker’s age, education, skills and work experience: Ms Wilson is 40 years of age. She left school at age 16 having obtained her school certificate. She then worked for about two and a half years (starting at age 17) in the Australian Tax Office doing general clerical duties. After being out of the workforce for several years to raise her family, she “played a support role” doing administrative activities in her husbands truck bodybuilding business from about 1993 until it closed in 1997. In this period Ms Wilson had two children and only worked in the business part-time. She has operated a basic ‘MYOB’ accounting package but has had no formal training in bookkeeping or accounting. In 1999 she obtained a traineeship as an assistant-in-nursing which she completed after one year;
c)the worker’s place of residence: Ms Wilson lives at Oak Flats, 25 kilometres from Wollongong. She is unable to drive more than 30 minutes without a break. In Mr Girdler’s opinion this would restrict her to employment in the Illawarra region. Unemployment in the Wollongong area is 8.2%, which is substantially above the state average (see Mr Girdler’s report 25 August 2006, page three);
d)the details given in the medical certificate supplied by the worker: the medical certificates provided by Dr Girgis declared Ms Wilson to be totally unfit for work;
e)the provisions of any injury management plan for the worker: no injury management plan is in evidence;
f)any suitable employment for which the worker has received rehabilitation training: Ms Wilson has not received any occupation rehabilitation training;
g)the length of time the worker has been seeking suitable employment: Ms Wilson’s job seeking efforts have been minimal and she has received no assistance in job seeking, and
h)any other relevant circumstances: Mr Girdler deals in detail with why the jobs identified by ARC are not suitable for Ms Wilson and why no occupation for which she currently qualifies can be considered to be suitable.
The Arbitrator failed to consider and apply the evidence in the context of the provisions of section 43A. This error alone requires that the Arbitrator’s determination be revoked.
The Respondent Employer’s Submissions
The Respondent Employer’s argument is essentially that it was open to the Arbitrator to accept the evidence set out in the reports from ARC and she was not in error in doing so. This submission ignores the errors identified above and the fact that the Arbitrator failed to consider Ms Wilson’s realistic capacity to work in the labour market available to her.
It is true that Dr Lee records that Ms Wilson said, “she would be able to probably work up to three days per week in administrative work” (Dr Lee, report 17 July 2006, at pages four and five). However, a statement like that to a doctor must be considered in the light of the labour market in which the worker finds himself or herself. Ms Wilson made similar statements when cross-examined by counsel for the Respondent Employer. However, when questioned by her counsel she gave the following evidence at T21.22:
“Q. It was suggested to you that you could do some clerical work provided that it was of a physically light nature --
A. Yes.Q. -- and provided that you could sit or stand as you wanted?
A. Yes.Q. Now, just assuming for the moment that such a job existed, would you be able to, do you think, perform that job on a full-time basis if it required you to travel further than a half-hour’s drive from home, remembering that this would be a job that would require your attendance on some days each week on a regular basis?
A. No, I don’t think so. By the time I got there I would be in more pain than from the trip. So, therefore, I’d have to take some more medication. The medication makes me groggy. So I don’t know if I’d be [sic] fulfil my duties.Q. And putting to one side the pain that you experience, the physical problems that you have, do you think mentally you'd be capable of performing clerical work at the moment?
A. I don’t think I’d be able to stay focused. No, I don’t think so. I panic when I get in situations.Q. Have you noticed any change in your ability to concentrate by reason of the medication that you take?
A. Yeah, my memory’s terrible. I can’t concentrate for periods. I can’t even read any more because by the time I’ve got up to the next section I’ve forgotten what the other section was about.Q. Bearing that in mind, do you think you would be able to do some clerical work as suggested to you?
A. No.”
The Arbitrator did not refer to this critical piece of evidence. It is evidence that puts Ms Wilson’s concessions to Dr Lee and in cross-examination in their proper context.
The Respondent Employer submits that the Appellant Worker has advanced no reason why the ARC reports, should “have been ignored by the Arbitrator or what error occurred in her accepting them above the opinions of other doctors” (Respondent Employer’s submissions page three). The Arbitrator was certainly entitled to consider the reports from ARC. However, her error was in failing to consider those reports in the light of all the evidence in the case and in failing to consider the principles in Lawarra Nominees.
In particular, when assessing Ms Wilson’s ability to earn, the Arbitrator did not consider the following parts of Mr Girdler’s evidence:
a)Ms Wilson’s computer skills are insufficient for work above the elementary level;
b)unemployment in the Illawarra region is substantially above the state average of 8.2%, and
c)occupational rehabilitation has not been provided to Ms Wilson.
The Arbitrator did not consider the full import of Mr Girdler’s evidence. Namely, that there is no occupation for which Ms Wilson currently qualifies that would be suitable. Therefore, he doubted that she would ever be able to return to work. As noted by Justice Mahony in Lawarra Nominees, the legislation is not concerned with capacity to earn in an abstract or theoretical situation but is concerned with the practical realities of the labour market. The Arbitrator did not consider this aspect of the claim at all, though at T38 counsel for the Appellant Worker expressly addressed on the relevance and importance of these principles.
In addition, Mr Girdler provided very detailed and cogent reasons why the three jobs, identified by ARC as being suitable, were not appropriate for Ms Wilson. They were:
a)Recreation Activities Officer: this job was not suitable because Ms Wilson does not have the skills or training to provide assistance with craft activities and is unable to sustain the full duties of this occupation;
b)Administrative Assistant: this position requires Certificate II level qualifications or the equivalent. Ms Wilson has no clerical qualifications and her experience in clerical work is limited to the Australian Tax Office data entry duties performed over 20 years ago and the tasks performed in her husbands business 10 years ago. She does not qualify for clerical work at this level. To sustain work in clerical occupation Ms Wilson would need to be able to change posture at will and would need to be excused from filing paper documents on shelves either below her waist or above her head. In addition, clerical work involves fixed hours of attendance with little or no opportunity for flexibility which Ms Wilson requires, and
c)Sales Representative – Truck Parts & Accessories/Pharmaceuticals: Ms Wilson does not qualify for employment in either of these fields.
Other than noting that Mr Girdler “disagreed that the occupations listed in the ARC report were suitable” (Reasons, paragraph 34) the Arbitrator did not indicate why she rejected his evidence. Nor did she indicate if she accepted that the three jobs recommended by ARC were suitable. Her finding that Ms Wilson was capable of sedentary or semi-sedentary work did not identify which job she felt Ms Wilson could realistically obtain in the open labour market given her training and experience. This failure in the light of strong evidence that there was no occupation for which Ms Wilson was fit was an error.
Therefore, having regard to the whole of the evidence it was not open to the Arbitrator to accept the history recorded by Dr Lee. In any event, she did not purport to base her decision on that history.
The Respondent Employer’s reliance on Abalos is misplaced. In that case Justice McHugh stated that the “subtle influence of demeanour” (at 179) on a judge’s determination cannot be overlooked. In the present case the Arbitrator did not base her determination on Ms Wilson’s demeanour. She relied instead on the alleged lack of pain medication, the ‘improvement’ noted by Dr Pakula in 2004, the fact that Ms Wilson’s ‘main barrier’ to returning to work was her psychological condition and Dr Lee finding no objective signs of a psychological disorder. The first finding, as to Ms Wilson not taking pain medication, was wrong. The second finding did not justify a conclusion that the improvement continued up to and into 2006. That is especially the case in light of Ms Wilson’s evidence that her condition had not changed between January 2006 and the date of the arbitration in September 2006. The evidence did not support the third finding. The fourth finding, even if it was correct, did not, on its own, justify a conclusion that Ms Wilson was no longer totally incapacitated.
In addition, the decision by McHugh J in Abalos must be read with his Honour’s decision in Fox v Percy (2003) 214 CLR 118 at 146 where his Honour said:
“It is a serious mistake to think that anything said in Abalos or Devries necessarily prevents an appellate court from reversing a trial judge’s finding when it is based, expressly or inferentially, on demeanour. Those cases recognise - in accordance with a long line of authority - that it may be done. But there must be something that points decisively and not merely persuasively to error on the part of the trial judge in acting on his or her impressions of the witness or witnesses. Recently in State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq)[111], for example, this Court held that undisputed and documentary evidence was so convincing that no reliance on the demeanour of witnesses could rebut it.”
In my view the evidence in the present case points decisively to several errors by the Arbitrator that require that her findings and determination as to Ms Wilson’s incapacity from 18 July 2006 be revoked.
CONCLUSION
In my view it is obvious that the Arbitrator’s discretion has so miscarried that it has not been exercised fairly and lawfully. For the reasons set out above the proper conclusion is that Ms Wilson remained totally unfit for work from 18 July 2006 to date and continuing and that is the finding that I make on review. In reaching this conclusion I have considered all of the evidence in the case. I consider that the proper application of the principles in Lawarra Nominees and the terms of section 43A lead inevitably to only one result.
I accept the evidence of Mr Girdler and Dr Deveridge that Ms Wilson is, in practical terms, totally unfit for work in the labour market reasonably available to her. I agree with the opinion of Dr Deveridge at page three of his report of 5 September 2006 that the ARC reports, “have not accurately gauged the severity” of Ms Wilson’s medical condition. In addition, Mr Girdler’s evidence, which I accept, explains with great clarity why there is no suitable employment, having regard to section 43A, that Ms Wilson is able to perform.
DECISION
Paragraph 1 of the Arbitrator’s determination dated 21 September 2006 is revoked and the following order is made by way of substitution:
“The Respondent pay the Applicant weekly compensation at the rate of $474.10 per week from 1 December 2003 to date and continuing under section 37 of the Workers Compensation Act 1987”
Paragraphs 2 and 3 of the Arbitrator’s determination of 21 September 2006 are confirmed. The order contained in paragraph 4 of the Arbitrator’s decision has already been executed and does not need to be confirmed or revoked.
COSTS
The Respondent Employer is to pay the Appellant Worker’s costs of this appeal.
Bill Roche
Deputy President
4 May 2007
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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