Wingecarribee Shire Council v Wortz
[2006] NSWWCCPD 111
•6 June 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Wingecarribee Shire Council v Wortz [2006] NSWWCCPD 111
APPELLANT: Wingecarribee Shire Council
RESPONDENT: Mervyn John Wortz
INSURER:QBE Workers Compensation (NSW) Limited
FILE NUMBER: WCC20941-04
DATE OF ARBITRATOR’S DECISION: 22 March 2005
DATE OF APPEAL DECISION: 6 June 2006
SUBJECT MATTER OF DECISION: Weight of evidence; partial or total incapacity; section 37 Workers Compensation Act 1987
PRESIDENTIAL MEMBER: Acting Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION: Appellant: Diana Benk
Respondent: White Barnes
ORDERS MADE ON APPEAL: Paragraph one of the Arbitrator's decision of 22 March 2005 is revoked and the following order is made:
“The matter is remitted to the Arbitrator under section 352(7) of the Workplace Injury Management and Workers Compensation Act 1998 for the Arbitrator to determine whether the Respondent Worker's entitlement to weekly compensation is under section 40 or under section 37 of the Workers Compensation Act 1987, and, if that entitlement is found to be under section 40, to assess the quantum of an award under that section.”
Paragraphs two and three of the Arbitrator’s decision of 22 March 2005 are confirmed.
The Appellant Employer is to pay the Respondent Worker's costs of the appeal.
BACKGROUND TO THE APPEAL
On 19 April 2005 Wingecarribee Shire Council (‘the Appellant Employer/the Council’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 22 March2005.
The Respondent to the Appeal is Mervyn John Wortz (‘the Respondent Worker/Mr Wortz’).
Mr Wortz started work with the Appellant Employer on 12 December 1978 as a plant operator. On or about 16 May 1994 he drove a tractor over a trench in the course of his employment for the Council and jarred his body.
The exact consequences of the incident are the subject of dispute and will be considered in detail in these reasons. A claim for compensation was submitted in 1994 and was accepted. The Respondent Worker was off work for about two weeks and initially returned to work on light duties and then returned to his full duties as a plant operator.
On 21 July 1995 the Respondent Worker filed an Application for Determination in the Compensation Court of NSW (‘the Court’) (matter 12486 of 1995) seeking lump sum compensation in respect of the 16 May 1994 injury. The allegation in paragraph five of the Court application was that on 16 May 1994 the Respondent Worker drove a tractor over a trench which “jarred and jolted his back”. There was also an allegation of injury due to the nature and conditions of his employment. That application was settled by way of a consent award in his favour on 28 March 1996 in respect of 5% permanent loss of efficient use of his left leg at or above the knee.
Mr Wortz continued to work for the Appellant Employer as a plant operator until 19 February 2001 when he ceased because of left hip pain. He underwent a total left hip replacement on 22 May 2001. He has not returned to work since 19 February 2001.
His claim for compensation and for medical and hospital expenses was accepted and paid until it was declined in a letter from QBE Workers Compensation (NSW) Limited (‘QBE’) dated 29 November 2004. Payments ceased on 9 January 2005.
The Respondent Worker filed an Application to Resolve a Dispute (‘the Application’) with the Commission on 20 December 2004 (matter number 20941-04) seeking weekly compensation from 9 January 2005 to date and continuing. An earlier Application had been filed in the Commission on 27 October 2004 (matter number 17589-04) seeking lump sum compensation under sections 66 and 67 of the Workers Compensation Act 1987 (‘the 1987 Act’). The Applications were ‘consolidated’ so that evidence in one was evidence in the other (see Statement of Reasons for Decision dated 22 March 2005 paragraph 15 (‘Reasons’).
Application 20941-04 was heard in Arbitration on 7 March 2005 and was determined in favour of the Respondent Worker in a written decision on 22 March 2005.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 22 March 2005 records the Arbitrator’s orders as follows:
“1.Respondent to pay $328.90 per week as adjusted pursuant to s37.
2.Respondent to pay s60 expenses.
3.Respondent to pay the Applicant’s costs as agreed or assessed.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred:
(a)in law in concluding that there was evidence that the effects of the injury on May 1994 continued up to 7 March 2005 because there was no medical evidence to support such a conclusion (‘No Evidence’);
(b)in fact in concluding that the after effects of the injury of May 1994 were continuing, such a finding being against the evidence and the weight of the evidence (‘Weight of Evidence’), and
(c)in fact when he concluded that the Respondent Worker was totally incapacitated for work, such a finding being against the evidence and the weight of the evidence (‘Incapacity’).
LEAVE TO APPEAL
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’).
Section 352(2) of the 1998 Act provides that the Commission constituted by a Presidential member is not to grant leave to appeal unless the amount of compensation at issue on appeal is both at least $5,000 (section 352(2)(a)), and at least 20% of the amount awarded in the decision appealed against (section 352(2)(b)). If no amount of compensation is awarded in the decision appealed against section 352(2)(b) of the 1998 Act has no application ( see Mawson v Fletchers International Exports Pty Limited [2002] NSW WCC PD 5).
The solicitors for the Respondent Worker submit that the thresholds in section 352 are not met because the amount of compensation in issue from 9 January 2005 until 22 March 2005 is only $3,882.97. However, the Appellant Employer’s argument on appeal is that the Respondent Worker has no entitlement to compensation. Therefore the ‘amount of compensation at issue’ on appeal is the whole of the arrears of compensation plus the value of that compensation into the future. The value of the arrears of weekly compensation to date easily meets the section 352(2)(a) threshold and, as the whole of the award is challenged, the section 352(2)(b) threshold is also met.
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.”
Neither party consents to the matter being dealt with on the papers. The Respondent Worker agrees with the Appellant Employer's submissions on this point. Those submissions state that since the Arbitration was not determined ‘on the papers’ and the appeal is to proceed by way of a ‘review’, once an error of fact or law is found natural justice requires that should by an oral hearing. No authority is cited for this proposition.
With respect I do not agree. In Mayne Health Group t/as Nepean Private Hospital v Sarah Sandford [2002] NSW WCC PD 6 the Commission considered the nature of a review and held at [11]:
“A consideration of the nature of the hearing before the Arbitrator at first instance, of the broad powers, functions and discretions exercisable by the Arbitrator and of the express limitations on evidence before the ‘review’ under section 352, lend support to the view that the Commission has a specific and limited role on appeal (Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47 31 August 2000). It is not an ‘appeal’ in the strict sense, as the Commission can receive further evidence. Similarly it is not a ‘rehearing’ of the matter where the Commission is re-exercising the power of the Arbitrator at first instance by hearing the matter ‘de novo’ and coming to a fresh decision based on all the evidence available at that later time (Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47 31 August 2000; Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616). The ‘review’ is by way of rehearing where the powers of the Commission to confirm, revoke or substitute a new decision are exercisable only where it can be demonstrated that the original decision of the Arbitrator is affected by “... some legal, factual or discretionary error” (Allesh v Maunz [2000] HCA 40 (3 August 2000)).”
A ‘review’ is not intended to be a ‘full second hearing’ (see McMahon v Anthony Lagana and Joseph Lavella t/as the Vessel “Nimble II” [2003] NSW WCC PD 22). In the present case I have the benefit of written submissions from both parties and a transcript of evidence and submissions before the Arbitrator.
In these circumstances and having regard to Practice Directions Numbers 1 and 6 and the documents that are before me, 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.
FRESH EVIDENCE
Neither party seeks to introduce fresh evidence on appeal.
SUBMISSIONS AND FINDINGS
No Evidence
The Arbitrator accepted the evidence of Dr Millar in his report of 28 February 2003. The doctor states at page two of his report:
“He suffered from osteoarthritis of the hip. This was asymptomatic until the
Incident of 16 May 1994. This rendered the hip symptomatic and it was progressively worsened after that time. It was this that led to his hip replacement in May 2001.”
In his conclusion Dr Millar added “the condition is attributable, by way of aggravation, to the incident described above”. The incident described to Dr Millar was that on 16 May 1994 Mr Wortz was driving his plant backwards over some ruts and he experienced a jarring feeling in the left hip and buttock.
The Arbitrator was entitled to accept this evidence together with the evidence of Mr Wortz (see his statement of 1 October 2004) of continuing symptoms since the accident of 16 May 1994 to support the conclusions set out in his Reasons.
In my opinion there was additional evidence (which I will refer to later in these reasons) to support the Arbitrator's decision. I see no merit in the ‘no evidence’ point raised by the Appellant Employer.
Weight of Evidence
It is submitted that the Arbitrator came to the conclusion on the issue of causation that “the only acceptable expression of medical opinion is that which comes from Dr Millar” (see Appellant Employer's submissions paragraph 9). In fact what the Arbitrator said at paragraph 24 of his Reasons was “in my view the situation is best considered by the reports of Dr Millar who concluded that the incident rendered the previously asymptomatic hip symptomatic”.
Dr Millar’s opinion is challenged on the ground that he did not have a history of any complaints or the reporting of injury regarding the left hip and leg. If this submission relates to the history taken by the doctor in respect of the incident of 16 May 1994, it is clearly wrong. If it relates to the Respondent Worker's pre May 1994 symptoms it requires further evidence to be considered. The submission is that Mr Wortz had “been suffering from back or hip problems over a period of approximately 13 years before the incident of 16 May 1994” (see Appellant Employer's submissions paragraph 12). Reliance is placed on the report of Dr Harbison of 23 November 2004. Dr Harbison says at page four that “there were documented episodes of back pain described either as ‘back strain’ or ‘back pain’ in 1981, 1988, 1989 and 1990”. He then adds that there was a report in 1989 of a “strained muscle in the left groin” and in 1988 of a “strain to the left hip”. The doctor felt that “these episodes, in hindsight, could have been episodes of pain arising from his left hip” (emphasis added). I agree that these instances ‘could have been’ episodes of pain in the left hip at that time. It is not clear which documents the doctor was referring to because the only report of injury forms tendered by the Appellant Employer were a document dated May 1981 referring to Mr Wortz jarring his back and the claim forms for the May 1994 incident.
The Appellant Employer's submission is that Dr Millar was wrong when he said that the Respondent Worker's left hip was “asymptomatic until the incident of 16 May 1994”. At best the second hand evidence of Dr Harbison establishes that the Respondent Worker had pain in his left groin in 1989 and a left hip strain in 1988. Since the documents the doctor was referring to were not tendered we are left to speculate as to exactly what was in them, how much time was taken off work (if any) and exactly what happened at a time about five to six years before the subject accident. It is unfortunate that the documents were made available to Dr Harbison but not to the Commission at the Arbitration hearing.
Nevertheless the Arbitrator deals with this part of Dr Harbison’s report at paragraph 16 of his Reasons. He notes that “there was no evidence before me that shows that the Applicant had symptoms in either area immediately prior to” the May 1994 incident. That is correct. In addition the Arbitrator correctly notes that there was no evidence that whatever happened in 1981, 1988, 1989 or 1990 had any continuing or lasting effect on Mr Wortz or on the condition of his hip. Further, the Arbitrator comments that the earlier incidents all occurred at work and, if they did have any lasting effect, they would be compensable in any event. The Arbitrator concluded this issue by saying that he saw no “reason not to accept the Applicant’s statement to Dr Harbison that he has no memory of prior back or hip problems” and that any problems after those incidents were “short lived and that the Applicant made a full recovery” (Reasons at paragraph 16). I agree with this analysis of this part of the evidence and the conclusion the Arbitrator reached.
This still leaves the Appellant Employer's current submission that Dr Millar’s history was incorrect because Mr Wortz had been suffering back or hip problems “over a period of 13 years before the incident of 16 May 1994”. First, this submission is inaccurate. There is no evidence that Mr Wortz had such symptoms ‘over a period of 13 years’. There were no notes tendered from the Respondent Worker's general practitioner (Dr Tinning), so the full picture is not known. Second, there was no medical evidence tendered covering the period before May 1994. Third, the Respondent Worker's histories to all the doctors he saw was that he either had no symptoms before May 1994 or could not remember any such symptoms. This evidence was open to be accepted by the Arbitrator on the basis that there were no symptoms immediately before May 1994.
I do not believe that Dr Millar’s opinion is undermined by not having a history of the 1988 and 1989 pain. We are talking about a complaint in a claim form (or similar document) that was about five or six years before the subject accident. It is not known what happened in at that time. The evidence of Mr Wortz in several other medical histories was that he was symptom free in the period leading up to May 1994. Where a doctor’s history is incomplete that does not mean that his opinion is automatically of no or little value. In Brady v Commissioner of Police (2003) 25 NSWCCR 58 at 76 it was noted:
“In Paric at the above reference, Samuels JA refers to the situation where facts stated in an expert’s report do not completely correspond to the facts proved at trial, and held that where there is a ‘fair climate’ for the acceptance of the expert’s opinion, this may occur, notwithstanding the discrepancy just referred to, relying on various authorities which his Honour cited from America and elsewhere. His Honour said that this question is essentially one of fact and degree.”
The above reference to ‘Paric’ is a reference to Paric v John Holland Constructions Pty Ltd (1984) 2 NSWLR 505 at 509-510.
In my opinion the omission from Dr Millar’s report of the incidents in 1988 and 1989 (whatever they were) does not, in the circumstances of this case, rendered the doctor’s opinion of such little weight that it should have been rejected. The Arbitrator was entitled to consider it and give it such weight as he thought appropriate having regard to all evidence in the case.
It is submitted that the Arbitrator “appears to have dismissed the opinion of Dr Giblin because the doctor appeared to have ignored the fact that there was significant degeneration in the left hip before 1994 such degeneration being demonstrated on the x rays dated 19 August 1994” (see Appellant Employer's submissions paragraph 16). The radiologist’s report on the x rays taken on 19 August 1994 states “the left hip joint shows well established osteoarthritis with only slight loss of joint space”. Dr Giblin’s report of 27 June 2002 does not refer to this x ray report and gives the following diagnosis at page two:
“This gentleman has the diagnosis of an injury to his left hip as a result of the subject injury on 16 May 1994, undergoing progressive post-traumatic degenerative changes, occasioning the necessity for a total hip replacement operation.”
I do not believe this opinion necessarily excludes the possibility of previous degeneration in the left hip having been taken into account by the doctor. It must be read with the doctor’s report of 3 February 2005 which addresses the issues raised in Dr Harbison’s report of 23 November 2004. In his 2005 report Dr Giblin states that he has read Dr Harbison’s report and adds:
“I do not have a great deal of disagreement with the comments and opinions expressed therein, except that it remains my view, based on this gentleman’s history, that his injuries, were of a soft tissue nature, producing trauma, of a material nature, which has not subsided in terms of an aggravation, and is there by been [sic] a significant contributing factor, to the timing, and requirement, of his surgery on his left hip.
I remain of the view, that in this particular clinical instance, the aggravation, did not subside from a clinical standpoint, because the reparative powers of the underlying joint damage, were inadequate to fix the problem through normal healing circumstances and thereby, the need for surgery arose.” (emphasis added)
Whilst it remains unclear, if the doctor’s view was that there had been an ‘aggravation’ it is difficult to know what was being aggravated if it was not the degenerative changes already present in the left hip. Because of this uncertainty in Dr Giblin’s reports, the Arbitrator was probably correct not to place any weight on the doctor’s first report but I do not agree that the 2005 report can be dismissed out of hand.
The Appellant Employer also attacks the Arbitrator's interpretation of the reports of Dr Marnie as being ‘flawed’. Dr Marnie provided two reports for the proceedings in the Compensation Court. In his first report of 10 April 1995 he took a history that the May 1994 incident caused a jarring to the Respondent Worker's left leg, pain in the left groin and in the left iliac crest. He had returned to work but continued to have pain for which he saw a chiropractor. Dr Marnie looked at the 1994 hip x ray and commented that it showed “early osteoarthritic change”. Mr Wortz told the doctor that he’d had no previous hip pain. After looking at the x rays, Dr Marnie commented that it was consistent that “they should have been pain free” before May 1994. The doctor then states:
“Mr Wortz’ present disability can be attributed by way of aggravation to his incident. It is difficult to state as to whether that incident has produced a permanent aggravation but with his symptoms of ten months or longer duration, I think it is reasonable to state that he has had a permanent aggravation. It is unlikely as a result of that aggravation that his symptoms will deteriorate at an accelerated rate and he should be able to continue his work as a plant operator indefinitely but there will be worsening of his symptoms as the years go by, but this will probably be no greater than if he had not had this incident at work.” (emphasis added)
The Appellant Employer relies on the above passage as evidence that Dr Marnie does not provide any support for the current claim. The difficulty is that the doctor adds in the last paragraph of his report that Mr Wortz has, as a result of the injury, a 5% permanent loss of use of the left leg at or above the knee.
At review on 22 March 1996 Dr Marnie noted that Mr Wortz was still at work and that he was able to restrict his activities if he had an increase in pain in his hip. Mr Wortz felt that his pain had tended to worsen over the previous 12 months, disturbing his sleep and reducing his walking capability. He continued to see a chiropractor for his hip pain. New x rays were done of the Respondent Worker's left hip and they showed some slight progression since the August 1994 x rays. Dr Marnie’s opinion was that:
“Mr Wortz has osteoarthritis of his left hip, which has been aggravated by his
accident at work on 16.5.94. He is fit to continue with the present type of work, providing the work can be tailored to his activities, and that he can have time to do lighter duties if his pain becomes worse. He has probably reached the stage where he could not do full work as a Plant Operator.”
Dr Marnie added that he thought his previous assessment of 5% permanent loss of use was overly conservative and reassessed the loss at 10% “following the injury to his left hip” (emphasis added).
The Appellant Employer submits that the worsening of symptoms recorded by Dr Marnie was “not due to the Applicant’s work injury by way of nature and conditions of employment or the frank injury in May 1994” (see Appellant Employer's submissions at paragraph 17). I agree with this submission in respect of the nature and conditions allegation but do not agree so far as the May 1994 injury is concerned. Whilst there is a degree of ambiguity in Dr Marnie’s first report, on reading both reports together it is my view that the doctor was clearly of the view that the work injury had caused a permanent aggravation to the Respondent Worker's left hip and that the aggravation was impacting on Mr Wortz ability to work as early as 1996. Arbitrator was entitled to conclude that the doctor felt that the aggravation had caused permanent damage to the Respondent Worker's left hip.
The Appellant Employer challenges the Arbitrator's rejection of the evidence of Drs Neild, Hughes and Cameron. It is submitted that these doctors saw Mr Wortz many years ago and it was not a situation of a doctor suggesting years after the event that the work aggravation had ceased. It is submitted that the Arbitrator’s reason for rejecting the evidence of these three doctors was that they disclosed no basis for their conclusion that the aggravation had ceased. That is correct but in addition the Arbitrator stated that he was not satisfied that Dr Neild’s evidence overcame the presumption of continuance as explained by the High Court in Watts v Rake (1960) 108 CLR 158 and Purkiss v Crittenden (1965) 114 CLR 164. No submission is made that the Arbitrator wrongly applied the authorities quoted.
The Arbitrator also noted, rightly in my view that the opinions of Drs Neild, Hughes and Cameron were all inconsistent with the award made in favour of Mr Wortz in the Compensation Court on 28 March 1996. Whilst a consent award does create an estoppel in respect of injury and the percentage loss of use stated in the award (see Rail Services Australia v Dimovski & Anor [2004] NSWCA 267 (‘Dimovski’)) the estoppel does not prevent a party from later disputing liability provided there is no Anshun Estoppel (see Port of Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589) or issue estoppel. No submissions have been made that either kind of estoppel arises in this case and I express no concluded view about it. However dealing specifically with the consent awards his Honour Justice Handley said at [14] of Dimovski:
“The consent award involved admissions by the parties and these, coupled with the presumption of continuance, were of some weight. However there was much other evidence, lay and expert, relating to the worker's impairment at the later date and the weight to be given to the admissions and the presumption of continuance was a question of fact for the Judge.” (emphasis added)
In the present case the consent award involved admissions by the Appellant Employer. The ‘weight to be given to the admissions’ was a question of fact for the Arbitrator. In my view the Arbitrator was entitled to take the admissions into account in assessing the weight to be attached to the reports of Drs Neild, Hughes and Cameron. In addition the Arbitrator was in my view entitled to reject their evidence because they did not explain the basis on which they formed the conclusion that any work aggravation had ceased. Their conclusions were inconsistent with the Respondent Worker's accepted evidence of continuing symptoms in his left hip through 1994 and beyond.
It is submitted that the Arbitrator did not refer to Dr Harbison’s report on the issue of “continuation of the aggravation” (see Appellant Employer's submissions paragraph 24). In fact the Arbitrator refers to Dr Harbison’s opinion on causation at paragraph 21 of his Reasons. After commenting on the opinions of Drs Hughes and Cameron the Arbitrator says “Dr Harbison’s views expressed in November 2004 suffer from the same limitations”. This conclusion was open to the Arbitrator and I agree with it.
There is an additional reason for rejecting Dr Harbison’s opinion. Under ‘diagnosis’ on page three the doctor states:
“Mr Wortz has had degenerative arthritis in his back and left hip.
On the basis of his history, he may have had a strain of his back on 16/5/94. I believe that any such injury was of a minor nature and is no longer responsible for any of his symptoms.
These diagnoses are consistent with the history and examination and radiological investigations.” (emphasis added)
The above passage would seem to indicate that the doctor did not accept there was any injury to the left hip in May 1994. However, at page four he adds:
“It is my view that there was no major injury to either the lumbar spine or the left hip and that the degenerative changes in both these regions are part of normal wear and tear and that they have not been worsened by the event of 16/5/94. I believe that the hip replacement operation would have been necessary even in the absence of the injury of 16/5/94.”
This passage seems to concede the possibility of a minor injury to the left hip but it is unclear. Nevertheless the Arbitrator was entitled to reject this opinion as it was inconsistent with the Respondent Worker's evidence of continuing symptoms since 1994 and was inconsistent with other medical evidence the Arbitrator accepted.
The Appellant Employer also relies on the report of Dr Maloney of 23 August 1994 as providing support for the conclusions expressed by Drs Neild, Hughes and Cameron (see Appellant Employer's submissions paragraph 23). The first thing to note about this report is that as at 23 August 1994 the Respondent Worker was still on selected duties as a result of his injury of May 1994. Second, the doctor found Mr Wortz to be an obviously genuine man who complained of pain in his left buttock and, to a lesser degree, pain in his left hip. Third, on examination the doctor found a moderate restriction of rotation of movements with the hip in 90° flexion. Fourth, the doctor’s opinion on disability was:
“There remains in his lower back and left hip region a reasonably mild, continuing functional impairment which can be attributed causally by way of aggravation to the work accident of 16.5.94.
It would appear that up until now he has not been aware of any problem whatsoever in his left hip region and it would seem that the accident in question has aggravated the early degenerative changes at this site. There is no indication for operative treatment at this time.
…I would think that liability rests with you in relation to the aggravation caused by the accident to his lower back and left hip but I would anticipate resolution of the aggravation during the next few months at both sites.” (emphasis added)
The Appellant Employer relies on the last sentence quoted above to support its argument that any work aggravation has ceased. An expression of opinion about a future state of affairs is always subject to an analysis of the actual state of affairs as they unfold. In this case we have the benefit of Dr Marnie’s opinions based on his examinations in 1995 and 1996. Those opinions together with the Respondent Worker's evidence that his symptoms continued beyond 1994 make the conclusion that the aggravation has ceased much less plausible. In my opinion the Arbitrator was entitled to reject the evidence suggesting that the aggravation had ceased.
There was additional evidence which the Arbitrator was entitled to consider and did consider in reaching his conclusion.
On 16 March 2001 Dr Leicester, orthopaedic surgeon, wrote to Dr Tinning about the condition of the Respondent Worker's left hip and recommended surgery in the form of a total hip arthroplasty. The last sentence of that report states “I require insurance company approval for this procedure”. At the bottom of the report is written “Copy: QBE Locked Bag 32 Wollongong 2500”.
On 9 April 2001 Dr Davis examined Mr Wortz at Wollongong on behalf of QBE and prepared a report on the same day. Under ‘findings on examination, diagnosis, and whether the condition is consistent with the history given’ the doctor states at page four:
“The diagnosis is advanced osteoarthritis of the left hip which is consistent with the history given, the original injury occurring as a result of the incident of 16 May 1994.”
Unfortunately, page five of the report is missing. This omission was the subject of some discussion at the Arbitration hearing but the missing page was not located. Mr Wortz underwent a total hip replacement at the hands of Dr Leicester on 22 May 2001 and the cost of that surgery was met by QBE. The Arbitrator was entitled to treat the payment of the surgery as an admission by QBE. Such an admission was entitled to some weight but was obviously not determinative of the issues in the case. The Arbitrator did take the payment into account in his Reasons at paragraph 24.
Further evidence was obtained by QBE from Dr Silva on 31 October 2001. His opinion was:
“Before I determine the degree of liability, I should see this man’s old x rays done before the hip replacement. It is likely that even without the intervention of the relatively trivial incident of 16.5.94, this man would have required a total hip replacement if he did have well developed osteoarthritis of the left hip joint before 16.5.94, but I will comment on that in some detail if and when I see his old x rays done before the operation.”
It is not known if Dr Silva was given the opportunity to comment on the x rays. No further report was tendered from him.
The Appellant Employer submits that the “preponderance of medical evidence” supports the proposition that the aggravation of Mr Wortz arthritic hip had ceased some time subsequent to May 1994. With respect that is not the test on a ‘review’ under section 352 of the 1998 Act. The test to be applied was considered in Westpac Banking Corporation v Kilby & Bananacoast Credit Union Ltd [2005] NSW WCC PD 24 where it was stated:
“As stated in South Western Sydney Area Health Service v Edmonds [2005] NSW WCC PD 18, the weight and relevance to be given to evidence before an Arbitrator is a matter in the discretion of that Arbitrator. The decision of the Arbitrator should not be overturned unless it can be demonstrated that the Arbitrator has failed to exercise that discretion fairly and according to law. This may occur when an Arbitrator has acted upon an incorrect legal principle, allowed irrelevant considerations to influence the decision, made a material mistake as to the facts, or failed to take into account relevant and material considerations, (House v The King (1936) 55 CLR 499 at 504-505; Norbis v Norbis (1986) 161 CLR 513 at 520, and In the Matter of National Roads and Motorists Association Ltd [2003] FCAFC 206 at [21] )(per Byron DP at [54]).”
Further, in Knight v Eyles Nominees Pty Limited t/as Processed Forest Products [2004] NSW WCC PD 73 Deputy President Fleming held:
“Interference with an Arbitrator’s discretionary judgment 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.
Applying the above authorities and considering the whole of the evidence I do not believe the Arbitrator has made any error of fact, law or discretion in accepting that the effects of the May 1994 injury were continuing as at January 2005.
Incapacity
The Arbitrator found the Respondent Worker to be totally unfit for work and awarded compensation accordingly under section 37 of the 1987 Act. The Arbitrator found that there was no “real job on the open labour market reasonably accessible to him” (see Reasons at paragraph 26).
The Appellant Employer submits that Mr Wortz openly stated that he would find a suitable job (see Appellant Employer's submissions at paragraph 28). The evidence on this point is found at page nine line 49 of the transcript where the Respondent Worker said “Yeah, I’m sure I could do some light duties work”. At page 13 line 13 Mr Wortz added that he hadn’t looked for work but he was “quite sure [he] could do some work”. Further, in his statement of 2 December 2004 he expressed his frustration with the Appellant Employer for not providing him with suitable duties and added that there were a number jobs he could have done with the council and that he was quite capable of doing lawn mowing duties.
The medical evidence on fitness for work is as follows:
· Dr Leicester: 24 September 2001- fit for suitable light duties as long as there is no bending or twisting involved;
· Dr Silva: 31 October 2001 - restrictions on squatting and climbing and heavy lifting of over 10 kg, otherwise fit to return to full hours of duty;
· Dr Leicester: 11 February 2002 - suitable to return to work;
· Dr Millar: 28 February 2003 - unfit for heavy and moderate work but fit for light work which is alternately ambulatory and sedentary and does not require him to squat, kneel or bend frequently;
· Dr Tinning: 11 November 2004 - medical certificate - unfit to work from 29 September 2004 to 30 September 2005;
· Dr Harbison: 23 November 2004 - fit to do the kind of work he did in 1994 including driving buses, and
· Dr Giblin: 3 February 2005 - fit for sedentary or office based work;
Dr Davis does not directly comment on fitness for work but states that in view of the Respondent Worker's age and the progression of his degenerative conditions, “it is understandable that suitable light duties would be difficult to find”. He thought that after the surgery there would be considerable improvement in the Respondent Worker's condition.
The Arbitrator did not refer to any of the above evidence in concluding that the Respondent Worker was totally unfit for work. He did note however that Mr Wortz had worked as a plant operator since 1978 with the Council and before that as a bus driver for 11 years. Given his age the Arbitrator did not think that Mr Wortz was a candidate for retraining.
In addition, the Respondent Worker's solicitor made very brief submissions on the issue of ‘capacity to earn’ saying only that it was a matter entirely for the Arbitrator (see transcript page 30 line two). He added that Mr Wortz was “demonstrably honest and straightforward about it – he’s conceded he could do something” (transcript page 30 line five). He added that at age 62 (now 63, having been born on 8 December 1942) Mr Wortz would have difficulty finding suitable work with his restrictions.
Further, at no stage did the Arbitrator give the Appellant Employer's counsel any indication that he was considering making an award of total incapacity. Indeed at page 22 of the transcript counsel for the Appellant Employer submitted that the case required adjudication under section 40 to which the Arbitrator replied “I think that’s inevitable. Mr Wortz says himself says [sic] there’s some weakness there [sic]” (emphasis added). There then followed a long exchange about comparable earnings and, at page 33, a discussion about the exercise of the discretion under section 40(1) of the 1987 Act. In this situation I think it is open to argue that the Appellant Employer was denied procedural fairness in that the case was decided on a basis on which it was not give an opportunity to make submissions (see Inghams Enterprises Pty Lts v Zarb [2003] NSW WCC PD 15). As this issue was not the subject of submissions on appeal so I express no concluded view about it.
Whilst I am aware and I accept that the Commission is concerned with ‘capacity for work’ and not merely with the abstract idea of ‘work capacities’ (see Lawarra Nominees Pty Ltd v Wilson (1996) 25 NSWCCR 206 at 213), in the present case the Respondent Worker's evidence was expressed in clear and unequivocal terms on three separate occasions. In all the circumstances I believe the Arbitrator misused his discretion in ignoring the Respondent Worker's evidence and in ignoring all of the medical reports dealing with the issue of incapacity. The Respondent Worker specifically identified lawn mowing as work he could do and was willing to do. The Arbitrator did not consider that evidence in his Reasons.
On ‘review’ it is open to a Presidential Member to confirm, revoke or substitute a new decision in place of the Arbitrator's decision. In this case there was conflicting evidence about comparable earnings. On the evidence before me it is impossible to resolve that conflict. Therefore whilst I confirm the Arbitrator’s findings on injury, it is necessary for the question of incapacity to be returned to the Arbitrator for reassessment. It is appropriate (in view of the length of time since the original Arbitration) that the question of whether the incapacity is partial or total be left open so each side can adduce such further evidence as they consider appropriate on that issue.
DECISION
Paragraph one of the Arbitrator's decision of 22 March 2005 is revoked and the following order made:
“The matter is remitted to the Arbitrator under section 352(7) of the Workplace Injury Management and Workers Compensation Act 1998 for the Arbitrator to determine whether the Respondent Worker's entitlement to weekly compensation is under section 40 or under section 37 of the Workers Compensation Act 1987, and, if that entitlement is found to be under section 40, to assess the quantum of an award under that section.”
Paragraphs two and three of the Arbitrator's decision of 22 March 2005 are confirmed.
COSTS
The Appellant Employer is to pay the Respondent Worker's costs of this appeal.
Bill Roche
Acting Deputy President
6 June 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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