Xue Xin Li v Almec Pty Ltd
[2007] NSWWCCPD 72
•1 March 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Xue Xin Li v Almec Pty Ltd [2007] NSWWCCPD 72
APPELLANT: Xue Xin Li
RESPONDENT: Almec Pty Ltd
INSURER:GIO Workers Compensation (NSW) Limited
FILE NUMBER: WCC7226-03
DATE OF ARBITRATOR’S DECISION: 8 May 2006
DATE OF APPEAL HEARING: 20 February 2007
DATE OF APPEAL DECISION: 1 March 2007
SUBJECT MATTER OF DECISION: Reasons; Procedure when worker unrepresented on appeal.
PRESIDENTIAL MEMBER: Deputy President Bill Roche
HEARING:Oral
REPRESENTATION: Appellant: In person
Respondent: Mr Lowe instructed by Rankin & Nathan
ORDERS MADE ON APPEAL: For the reasons set out in this decision, the Arbitrator’s decision and orders are confirmed.
No order as to costs of the appeal.
BACKGROUND TO THE APPEAL
On 2 June 2006 Xue Xin Li (‘the Appellant Worker/Mr Li’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 8 May 2006.
The Respondent to the Appeal is Almec Pty Ltd (‘the Respondent Employer/Almec’).
This matter was heard at first instance with two other matters (Xue Xin Li v Precise Craft Pty Ltd WCC3760-02 and Xue Xin Li v Dex Australia Pty Ltd WCC 4742-02). Although the three claims were heard together the Arbitrator prepared and issued three separate decisions. Mr Li has appealed all three decisions. As three decisions were issued under the three different matter numbers, I have considered and determined each appeal separately (see also Xue Xin Li v Precise Craft Pty Ltd NSWWCCPD 70 and Xue Xin Li v Dex Australia Pty Ltd NSWWCCPD 71).
Mr Li was born in the Peoples Republic of China on 9 April 1956. He left school at the age of 18 years and then worked in a department store where he became a section manager. He came to Australia in 1989 as an English language student. In 1991 he started work for Precise Craft as a sheet metal worker and spot welder.
On 17 March 1992 he was injured in the course of his employment with Precise Craft when metal sheets fell onto him causing a laceration to his left wrist and bruising to his right thigh. He was taken to Blacktown Hospital where his left wrist was sutured. He was off work for two and a half days and then returned to his normal duties until about February 1993.
In 1994 he commenced proceedings in the former Compensation Court of NSW (matter 6455 of 1995) seeking compensation as a result of the March 1992 injuries (pleaded as: “laceration of left hand and bruising of right thigh”). That claim was heard and determined by Commissioner Grayson on 24 April 1995. The Commissioner found that Mr Li had sustained injury “as alleged” but that he had no entitlement to lump sum compensation as a result of those injuries. Precise Craft was ordered to pay Mr Li’s reasonable section 60 expenses.
Mr Li appealed Commissioner Grayson’s decision to Justice Campbell (matter 8554 of 1995). The appeal was settled and the following orders made by consent on 31 October 1995:
“Having duly considered the matters submitted, THE COURT, by and with the consent of the parties hereto –
1.HEREBY ORDERS that the award dated 24 April 1995 in matter no. 6455 of 1995 be discharged.
HEREBY ORDERS AND AWARDS:
(1)That an award be made in favour of the Respondent in respect of the Applicant’s claim for weekly compensation.
(2)That the Respondent pay the Applicant as lump sum compensation under section 66 –
(a) $1,203.15 in respect of 15% [sic] loss of use of the Applicant’s left hand.
(b) $925.50 in respect of 1% loss of use of the Applicant’s right leg at or above the knee.
(3)That the respondent pay the Applicant interest in the agreed sum of $371.35 on the said lump sums awarded under section 66.
(4)That an award be made in favour of the Respondent in respect of the Applicant’s claim for section 60 expenses, other than those already paid by the Respondent.
(5)That the Respondent pay the Applicant’s costs, including fee for counsel for advice on evidence and fee for counsel for additional/second/special conference in the sum of $150.00.
3. NOTES:
(1)It is agreed that the said lump sums awarded under section 66 represent the totality of all losses suffered by the Applicant in the employ of the Respondent.
(2)Other than as referred to in paragraph 2(3) above, it is agreed that the sums herein include all claims for interest.
(3)Admissions and agreed facts are set forth in the documentation filed herein.”
The reference to “15%” in paragraph 1(2)(a) is an error and should be 1.5%.
The “Admissions” filed with the court on 31 October 1995 included the following admission by Mr Li at paragraph five:
“Other than injuries the subject of these proceedings, I suffered no injury within the meaning of the Act in the employ of the Respondent.”
In June 1993 Mr Li started work for Lighting Dynamics as a storeman where he stayed until late 1995. He then worked for an air-conditioning company as a sheet metal worker for several months. No injury is alleged against either of these companies.
In September 1996 Mr Li started worked for Dex Australia Pty Ltd (‘Dex’) as a machine operator producing plastic products. He remained in that job until April 1998. Mr Li alleges that over time he developed pain in his right elbow and left knee as a result of the nature of his duties with Dex.
In or about April 1998 Mr Li started work for Almec where he was employed on a foot operated spot welding machine. His duties also required him to lift metal sheets on occasions and to use a rivet gun. He alleges that as a result of his duties he injured his back, knees, hands, right foot and developed pain in his chest and eyes.
An Application to Resolve a Dispute (‘the Precise Craft Application’) was filed in the Commission on 29 October 2002 (matter 3760-02). The Application alleged injury to the right knee, left hand and back as a result of the 17 March 1992 incident and claimed section 60 expenses and lump sum compensation under sections 66 and 67.
An Application to Resolve a Dispute (‘the Dex Application’) was filed in the Commission on 29 November 2002 (matter 4742-02). This Application alleged injury to the back, knees and right arm as a result of the nature and conditions of his employment with Dex from September 1996 to April 1998. The Application claimed weekly compensation from 20 January 1998 to 11 March 1998, section 60 expenses and lump sum compensation under sections 66 and 67.
An Application to Resolve a Dispute (‘the Almec Application’) was filed in the Commission on 19 February 2003 (matter 7226-03). This Application alleged injury to the back, right leg, right foot, knees, hands, and pain in the chest, head and eyes as a result of the nature and conditions of employment from April 1998 to May 2002. It also alleged an injury to the back as a result of being hit in the back “by a stripper machine” (see the Almec Application, Part 2) but no date is given for this incident. In addition, a reference is made to “catching cold all [the] time” and nose bleeds. This Application claimed weekly compensation from “25 November 2002 to up [sic] now 20% weekly lost [sic]”, lump sum compensation and section 60 expenses.
Under Rule 29(3) of the Workers Compensation Commission Rules 2003 (‘the 2003 Rules’) the Arbitrator issued a Direction on 24 April 2003 joining Dex and Almec as parties to the Application against Precise Craft (matter 3760-02) thereby making Precise Craft the first Respondent, Dex the second Respondent and Almec the third Respondent. This description of the parties is used in various documents throughout the matter though the order joining Dex and Almec was set aside by a later Direction dated 6 August 2003.
The Arbitrator issued three separate Directions after a preliminary assessment conference held on 6 August 2003. The first was in matter 3760-02 as follows:
“1.By consent the Direction made on 31/1/03 joining Dex Australia Pty Ltd and Almec Pty Ltd to these proceedings is set aside.
2.By consent matters 3760-2002, 4742-2002 and 7226-2003 are to be heard together.
3.This matter is to be referred to an AMS.”
I am not in possession of any Direction made in any of the above matters on 31 January 2003 and assume that this is a reference to the Direction made on 24 April 2003 joining Dex and Almec as Respondents to the Precise Craft Application (matter 3760-02).
The second Direction issued on 6 August 2003 was in matter 4742-02 as follows:
“1.By consent the Application is amended to include a claim for compensation in respect of the left hand.
2.The date for the filing of the Reply is extended to 6 August 2003 as I do not consider that the late admission of this document prejudices the applicant and it is in the interests of justice for it to be admitted.
3.The applicant is to provide full particulars of his claim for medical and related travel expenses to the Commission and the respondent within 28 days.
4.Access periods in respect of documents produced by the Workers Compensation Commission, Compensation Court of NSW, Dr Bracken, Bankstown Hospital, Workers Health Centre and Regency Medical Centre are as follows: Respondent 12 to 19 August, Applicant 20 to 27 August 2003.
5.Any documents on which parties seek to rely are to be sent to the Commission by 15 September 2003.
6.By consent matters 3760-2002, 4742-2002 and 7226-2003 are to be heard together.
7.This matter is to be referred to an AMS.”
The third Direction issued on 6 August 2003 was in matter 7226-02 as follows:
“1.The date for the filing of the Reply is extended to 6 August 2003 as I do not consider that the late admission of this document prejudices the applicant and it is in the interests of justice for it to be admitted.
2.The applicant is to provide full particulars of his claim for medical expenses and weekly payments to the Commission and the respondent within 28 days.
3.The Registrar is directed to send a full copy of the Application filed in this matter to the respondent.
4.The claim for lump sum compensation pursuant to s66 of the Workers Compensation Act 1987 in respect of chest pain, nose bleeding, catch cold and heavy headache is struck out as the Commission has no power to make an award in respect of these disabilities.
5.The Commission will hear arguments in relation to jurisdiction at the next hearing of this matter in relation to the applicant’s claim for loss of superannuation and 20% loss of weekly wages.
6.By consent matters 3760-2002, 4742-2002 and 7226-2002 are to be heard together.
7.This matter is to be referred to an AMS.”
An Approved Medical Specialist (‘AMS’), Dr Pillemer, examined Mr Li on 27 October 2003 and issued a Medical Assessment Certificate (‘MAC’) under section 325 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) on 23 January 2004. That document was issued with page four missing and a corrected MAC was issued on 11 February 2004. The only issues referred to and addressed by Dr Pillemer were the level of incapacity suffered by the worker and the contributions made by his various injuries.
An AMS, Dr Healey, examined Mr Li’s eyes on 11 December 2003 and a MAC was issued on 11 February 2004. In Dr Healey’s opinion neither Mr Li’s myopia nor his colour blindness were related to his employment.
A teleconference was held with all parties on 19 February 2004 when a further Direction was issued dealing with various procedural matters that need not be repeated here.
A Direction was issued on 8 March 2004 when one of the three employers was given leave to again file and serve several Directions for Production. Mr Li was encouraged to seek legal advice.
By Direction issued on 24 March 2004 the parties were, among other things, directed to file and serve by 6 May 2004 a typed list of all documents upon which they sought to rely and which they wished to be forwarded to the AMS. By consent the matter was referred to an AMS to be chosen by the Registrar. Mr Li was strongly encouraged to seek legal advice.
On 6 December 2004 Dr Pittar, AMS, examined Mr Li in respect of his alleged eye injury and issued a MAC on 25 February 2005 assessing him to have nil loss of vision as a result of any injury to his eyes.
On 7 December 2004 Dr Briet, AMS, examined Mr Li in respect of his alleged orthopaedic injuries and issued a MAC on 25 February 2005 assessing him to have nil permanent loss of use or impairment of any body part he was asked to assess.
On 18 March 2005 Mr Li lodged an Application to Appeal the Decision of both MACs under section 327(3) of the 1998 Act
A preliminary assessment conference was held on 16 March 2005 and the following Direction issued on that date:
“1.By consent the applicant is to file and serve full details of his claim against each respondent for expenses, made pursuant to s60 of the Workers Compensation Act 1987 (the ‘Act’), with all supporting invoices and receipts within 14 days.
2.By consent the 3rd respondent [Almec] is to file and serve a list of all weekly payments made to the applicant within 21 days.
3.By consent the applicant is to provide copies of his marriage certificate and his children’s birth certificates to the 3rd respondent and the Commission within 21 days.
4.It is agreed between the parties that the only outstanding issues post MAC are as follows:
1st respondent [Precise Craft] – claims made pursuant to s67 and 60 of the Act and costs;
2nd respondent [Dex] – claims made pursuant to s67 and 60 of the Act and costs;
3rd respondent [Almec] – claims made pursuant to s67 and 60 of the Act, a claim for weekly payments for the applicant and his dependants, a claim for superannuation and costs.”
In respect of Mr Li’s appeals against the MACs, the Registrar determined on 1 July 2005 that it did not appear that at least one of the grounds of appeal specified in section 327(3) existed and the matters were referred back to the Arbitrator for any outstanding issues to be resolved.
On 10 August 2005 the following Direction was issued by the Arbitrator:
“1.This matter is referred back to Dr Breit, the AMS, to assess permanent impairment of the body parts referred and as at the dates noted in the referral and to answer the additional 4 questions asked at the end of the referral.
2.This matter is referred back to Dr Pittar, the AMS, to assess the permanent impairment as at 5/2002, the date noted in the referral, and to answer the additional 4 questions asked at the end of the referral. I note permanent impairment has only been assessed as at ‘two or three months in 1998’.
3.The further reports from the AMS’s are to be sent to all parties as soon as received.
4.The conciliation/arbitration date of 18 August 2005 is vacated.”
As a result of the above Direction a further MAC was prepared by Dr Briet and provided to the parties on 22 November 2005. Dr Breit certified that Mr Li had no permanent impairment or permanent loss of use of any of the body parts referred to him for assessment and he provided answers to the four questions asked at the bottom of the referral. Those questions and the doctor’s answers were as follows:
“(i) Please assess the level of incapacity suffered by the worker if any.
I do not believe any incapacity has been suffered by the worker as indicated in the Summary Tables. The reasons are given in the body of the report.
(ii)What contribution if any towards this incapacity has been played by
(a) Injury on 17/3/1992 – Nil
(b) Injury in March/April 2002 – Nil
(c) Nature and conditions of employment with Dex Australia Pty Ltd from 9/96 to 4/98 – Nil
(d) Nature and conditions of employment with Almec Pty Ltd from 4/98 to 5/02 – Nil
(iii)Has employment with each employer been a substantial contributing factor to the impairment suffered, if any?
No. There is no impairment in my opinion.
(iv)Please advise to the extent if any of the permanent impairment which may be said to be related to pre-existing conditions or abnormalities.
None.There is evidence of spondylosis which is a pre-existing degenerative condition. However, in the presence of such marked abnormal illness behaviour I am led to conclude that there is no impairment. The mere presence of degenerative changes on investigation does not equate with symptomatology or impairment.”
Dr Pittar’s response to the further referral arising from the direction of 10 August 2005 was to provide a letter dated 30 August 2005 in the following terms:
“There was no permanent impairment noted [in] either eye on the examination date of 6 December 2004. So regardless of whom the claimant worked for or when the claimant worked there was no permanent impairment.”
Dr Pittar’s letter of 30 August 2005 was provided to Mr Li and the parties’ legal representatives on 22 November 2005.
On 30 November 2005 Mr Li lodged a further appeal against the MACs issued on 22 November 2005. By decision made on 3 February 2006, the Registrar determined that it did not appear to her that at least one of the grounds for appeal specified in section 327(3) existed and, therefore, the appeal was not to proceed and the matter was referred back to the Arbitrator to resolve any outstanding issues.
The claim against Almec was for weekly compensation from 25 November 2002 to date and continuing, lump sum compensation and section 60 expenses. Almec initially paid Mr Li weekly and section 60 compensation up to 16 March 2005. This date appears in the Arbitrator’s decision (Statement of Reasons for Decision (‘Reasons’) (at paragraphs 28 and 31) but the documents tendered by Almec suggest that he was paid until 31 May 2005, though nothing turns on this discrepancy. His claim for lump sum compensation was particularised in his letter of 1 December 2002 as follows:
1.permanent loss of efficient use of “right hand (arm)”, 15%;
2.permanent loss of efficient use of “both knee” [sic], 5%;
3.permanent loss of efficient use of “right leg”, 10%, and
4.permanent loss of efficient use of “back”, 10%.
The matters were listed for conciliation and arbitration on 6 April 2006 when Mr Li was again unrepresented. An interpreter in the Mandarin language was provided for Mr Li. The matters could not be resolved and proceeded to Arbitration.
In a reserved decision the Arbitrator dismissed all of Mr Li’s claims.
Mr Li seeks leave to appeal from that decision.
UNREPRESENTED PARTY
On appeal Mr Li was again unrepresented. At the hearing of the appeal a Mandarin interpreter was provided for him. The submissions attached to his notice of appeal and dated 31 May 2006 merely restated his claim for compensation and made no effort to identity any factual or legal error by the Arbitrator. As a result I issued the following direction on 17 January 2007:
“The parties are directed to the authorities of Snow Confectionary Pty Ltd v Askin [2004] NSWWCCPD 79 and The King Island Company Limited v Deery [2005] NSWWCCPD 1 at [19] and to the provisions of section 352(2) of the Workplace Injury Management and Workers Compensation Act 1998.
The Appellant is directed to file and serve on or before 7 February 2007 a document precisely identifying the error or errors of fact, law or discretion it is alleged the Arbitrator has made in her decision of 8 May 2006 and indicating why leave to appeal should be granted.
The appeal is listed for oral hearing at 1 Oxford Street Sydney at 10am on Tuesday 20 February 2007.
The Commission strongly recommends that the appellant seeks independent legal advice for the future conduct of the appeal.”
In response to the above direction Mr Li wrote to the Commission on 6 February 2007 stating:
“Under compensation law section 60, 66, 67 [the] Arbitrator made error [in her] decision on 8 May 2006. That’s why leave to appeal should be granted. My supporting documents are Application – Appeal Against Decision of Arbitrator. Submissions on 31/5/06 and the letter to President Workers Compensation Commission on 21 May 2006 and whole files. This letter will forward to three respondents and my solicitor P K Simpson & Co.”
At no stage has a solicitor or barrister appeared for Mr Li in the Commission.
Mr Li’s letter to the President of the Commission dated 21 May 2006 quoted from several of Mr Li’s medical reports, all of which were before the AMSs when they prepared their assessments.
I am satisfied that the Commission has complied with the provisions of the Commission’s Access and Equity Service Charter.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 8 May 2006, records the Arbitrator’s orders as follows:
“1.The application made pursuant to s66 of the Workers Compensation Act 1987 (‘the Act’) is dismissed.
2.The application made pursuant to s67 of the Act is dismissed.
3.The claim for weekly payments is dismissed.
4.The claim for superannuation is dismissed.
5.The claim made pursuant to s60 of the Act is dismissed.
6.Each party is to pay its own costs.”
FRESH EVIDENCE
‘Fresh evidence’ on appeal is governed by section 352(6) of the 1998 Act, which provides as follows:
“(6) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.”
Practice Direction No.6 sets out the process for seeking leave of the Commission to give ‘new evidence’ on appeal. It provides as follows:
“New Evidence
Where a party seeks leave to give new evidence in relation to the decision appealed against, that party must serve a copy of the new evidence on the other parties to the dispute when serving the Application or Opposition.
In general, the Commission will allow new evidence to be introduced only where it can be demonstrated that the new evidence could not reasonably have been obtained by the party and tendered in proceedings before the Arbitrator and that failure to allow the new evidence would cause a substantial injustice in the circumstances of the individual case.”
Practice Direction No.6 also provides that if new evidence is sought to be relied upon, the Application or Opposition to the Appeal must contain:
“ -a schedule of the new evidence,
-a copy of the new evidence,
-a brief outline of the new evidence and the reasons why it was not given in the
proceedings before the Arbitrator, and
-submissions why the new evidence should be admitted.”
Mr Li seeks to rely on fresh evidence in the form of a prescription for panamax from Dr Leung dated 28 May 2006. The need for the medication is said to have arisen from an episode of dizziness and headaches that Mr Li experienced on 26 May 2006. Dr Leung is alleged to have said that the dizziness and headaches were related to Mr Li’s cervical spondylosis. Mr Li then adds that whilst working for Almec the spot welding made him dizzy, caused a loss of vision and headaches.
I do not believe that the document has any relevance to issues before me. It provides no assistance on injury, incapacity or nexus and does not advance Mr Li’s case.
The application to rely on fresh evidence is refused.
LEAVE TO APPEAL
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
Monetary Threshold
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act. Sec 352(2) provides:
“352 Appeal against decision of Commission constituted by Arbitrator
(2) The Commission is not to grant leave to appeal unless the amount of compensation at issue on the appeal is both:
(a) at least $5,000 (or such other amount as may be prescribed by the regulations), and
(b) at least 20% of the amount awarded in the decision appealed against.”
The quantum in issue on the appeal is in excess of $5,000.00 and therefore the threshold in section 352(2)(a) of the 1998 Act is satisfied. No award of compensation has been made in this case but the Arbitrator’s finding would result in the Respondent Worker receiving no compensation and therefore the second limb of section 352(2) does not apply (see Mawson v Fletchers International Exports Pty Ltd [2002] NSWWCCPD 5).
ISSUES IN DISPUTE
In his letter attached to the appeal and dated 31 May 2006, Mr Li particularised his claim against Almec as follows:
“(3) I made claim the third respondent (Almec P/L) should pay me:
I have suffered the following permanent impairment:
(a) Right foot pins and needles $3,000.00
(b) Both of hands pins and needles $4,000.00
(c) Chest pain $3,000.00
(d) Nose bleeding $3,000.00
(e) Cath [sic, catch] cold, cough all time,
heavy headache $3,000.00
(f) Losing sight when looking down at theabove (d) (e) (f) proved my cervical
spondylosis ( see CT 26/2/2004
MRI 15/3/2004) and glaucoma are spot
welding related $3,000.00
(g)Right back rib hit by stripper machine suffer
pain$3,000.00
(h)Re injured and permanent loss of efficient
use of right hand (arm) 15% $12,000.00
(i)Re injured and permanent loss of efficient
use of both knee 5% $6,000.00
(j) Re injured and permanent loss of efficient
use of right leg 10% $10,000.00
(k) Re injured and permanent loss of efficient
use of back 10% $25,000.00
(l) I also make a claim for pain and suffering
in the sum of $78,000.00
Total $153,000.00(m)I also make claim for my weekly lost [sic] including future
(n) I also make claim for superannuation lost
(o) List for Expenses: Please find enclosed thecopy of Almec P/L list for Expenses of Medical. Travel. Copies. Post letters (21/3/05) and List for Expeses (Almec P/L 31/5/06).
(p)About the new evidence (PRESCRIBER [sic] from GP 28/5/06)
detail see my statement (31/5/2006).”
In addition, Mr Li filed with his appeal a letter dated 21 May 2006 addressed to the President of the Commission. The letter states, in effect, that the Arbitrator was in error in failing:
a)to consider the evidence of Dr Pillemer (AMS) and other specialists “that mentioned I have incapacity impairment and permanent efficient loss of use [of] my back, right leg, both knee, right arm, both hands” (the letter then makes detailed reference to several medical reports in evidence that provided support for Mr Li’s claims);
b)to find that Mr Li’s glaucoma and loss of vision were work related;
c)to find that Mr Li’s cervical spondylosis and “disc injury” were “spot welder related”;
d)to find that Mr Li’s nose bleeding was work related;
e)to find that Mr Li’s back was injured on 17 March 1992, and
f)to award Mr Li compensation as claimed.
In his letter of 6 February 2007 Mr Li failed to identify the error or errors he alleges the Arbitrator made. At the hearing Mr Li said “the approved specialists are all lying and their judgments, their reports are unfair” (transcript page seven line 20).
I do not believe the Arbitrator made any error of fact, law or discretion in her decision dealing with Mr Li’s claim for section 60 expenses. Mr Li has identified none and none is apparent from the documents available to me.
In respect of Mr Li’s claim for lump sum compensation, the Arbitrator determined that he had no entitlement to such compensation. That conclusion was, in my view, correct. Section 65(3) of the 1987 provides:
“(3) If there is a dispute about the degree of permanent impairment of an injured worker, the Commission may not award permanent impairment compensation or pain and suffering compensation unless the degree of permanent impairment has been assessed by an approved medical specialist.”
In the present case two AMSs (Drs Breit and Pittar) have assessed that Mr Li has no degree of permanent impairment as a result of any injury with Almec. The MACs are conclusively presumed to be correct as to the degree of permanent impairment sustained by a worker as a result of a work injury (section 326(1)(a) of the 1998 Act). Therefore, the Commission may not award permanent impairment compensation or pain and suffering compensation to Mr Li. In the absence of any challenge to the validity of the MACs under the principles discussed in Jopa Pty Ltd t/as Tricia’s Clip-n-Snip v Edenden [2004] NSWWCCPD 50 (and none has or, in my opinion, could reasonably be raised) there is no right of appeal in respect of a MAC to a Presidential member. Such appeals are usually dealt with under section 327 of the 1998 Act. Mr Li has unsuccessfully pursued his rights under that section. Therefore, the Arbitrator was right to dismiss Mr Li’s application for lump sum compensation against Almec. In light of the MACs issued, Mr Li has no entitlement to such compensation.
However, in considering this appeal it occurred to me that there were three potential errors made by the Arbitrator in respect of other matters. First, she appears not to have made a finding as to injury (‘injury’). Second, she stated, “whether or not the applicant’s employment with this respondent [Almec] was a substantial contributing factor to any incapacity is the important issue” (‘substantial contributing factor’) (Reasons paragraph 50). Third, she has given inadequate reasons to support her conclusion that Mr Li’s incapacity ended by 31 December 2003 (‘reasons’).
When I raised these issues with counsel for the employer (Mr Lowe) he objected on the grounds that Mr Li had not raised these issues on appeal. He then made submissions dealing with each issue but maintained his objection that to allow these issues to be raised on appeal was a denial of procedural fairness to his client. I offered Mr Lowe the opportunity to make written submissions on these issues if he thought it necessary and, after taking instructions, he declined that offer (transcript page 28 line 44).
The Commission is not a court. Proceedings in “any matter before the Commission are to be conducted with as little formality and technicality as the proper consideration of the matter permits” (section 354(1) the 1998 Act). The Commission “is to act according to equity, good conscious and the substantial merits of the case without regard to technicalities or legal forms” (section 354(3)). These provisions were considered by the Court of Appeal in South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 (‘Edmonds’) where McColl JA, with Tobias JA agreeing, said at [88]:
“Provisions such as s 354 do not release the Commission from the obligation to apply rules of law in arriving at its decisions: see Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26 at 29 per Gleeson CJ and Handley JA. In Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 at [49], speaking of s 420 of the Migration Act 1958 (Cth) which is in like terms to s 354, Gleeson CJ and McHugh J said:
‘49 [Such provisions] are intended to be facultative, not restrictive. Their purpose is to free tribunals, at least to some degree, from constraints otherwise applicable to courts of law, and regarded as inappropriate to tribunals. The extent to which they free tribunals from obligations applicable to the courts of law may give rise to dispute in particular cases, but that is another question.’”
In addition to having regard to section 354 and to the comments made by McColl JA in Edmonds, I have also had regard to the Commission’s Access and Equity Service Charter which provides at page five that “a self-represented worker may also need assistance to understand his or her appeal rights, if any, and to prepare and present an appeal”. Exactly what assistance can or should be provided by the Commission at the appeal stage is not explained.
The issue of what, if any, assistance should be provided to unrepresented litigants has been the subject of several authoritative decisions. In Reisner v. Bratt & Anor [2004] NSWCA 22 Hodgson JA said at [4]:
“4 Parties are entitled to appear unrepresented in proceedings in the Court, and sometimes, because of lack of funds or other reasons, they have no alternative. The Court has the duty to give such persons a fair hearing, and it may be appropriate for the Court to give some assistance to such persons in order to fulfil that duty. However, the Court hearing a case between an unrepresented litigant and another party cannot give assistance to the unrepresented litigant in such a way as to conflict with its role as an impartial adjudicator.”
Justice Ipp stated in Judicial Intervention in the Trial Process 69 ALJ 365 at 369:
“The judge’s duty to an unrepresented party, generally, arises from the overall responsibility to ensure that proceedings are fair. That responsibility may be said to be a foundation of the judicial right and obligation to intervene, generally.”
In my view, subject to compliance with the rules of procedural fairness, Arbitrators and Presidential members of the Commission have the same duty provided that they are careful to observe the overriding obligation to remain impartial in determining the issues in the case.
In the present case the Respondent Employer was given the opportunity to make further written submissions on the topics raised during the oral hearing of the appeal. In these circumstances I do not feel that it has been denied procedural fairness and I intend to consider and determine the matters I identified at [60] above, together with the matters raised by Mr Li in his submissions.
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 The King Island Company Limited v Deery [2005] NSWWCCPD 1 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 under section 352 was also considered by the Court of Appeal in Aluminium Louvres & Ceilings Pty Limited v Xue Qin Zheng [2006] NSWCA 34 (‘Zheng’). In that case the Court considered an appeal from a decision of Deputy President Fleming who, on a section 352 appeal had held that an Arbitrator had not denied the appellant procedural fairness in ruling that cross-examination of the worker at an arbitration be limited. Bryson JA (with whom Handley JA and Bell J agreed) said at [38]:
“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.”
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 79; 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
Injury –Substantial Contributing Factor
Whilst not identifying injury as one of the issues to be determined at paragraph 14 of her Reasons, the Arbitrator did acknowledge that it was an issue at paragraph 50 where she said that the issue of injury with this employer was “a vexed one”. However, the rest of paragraph 50 states:
“The respondent says that there was no injury however it is clear that the applicant did suffer from some work incapacity whilst employed with this respondent [Almec]. Whether or not the applicant’s employment with this respondent was a substantial contributing factor to any incapacity is the important issue. On the basis of the material before me it seems likely that as a result of his employment with this respondent the applicant suffered an aggravation of injuries received whilst working for Precise and Dex. However in relation to the back it seems most likely that there was an aggravation of the applicant’s pre-existing degenerative condition as there was no claim of injury to the back whilst working for Precise or Dex.” (emphasis added)
There are two things to note about this passage. First, it wrongly states that employment must be a substantial contributing factor to the incapacity. Section 9A of the 1987 Act states that employment must be a substantial contributing factor to the injury. If the incapacity or loss has resulted from the injury, then compensation is payable (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452). That question is determined by deciding whether there is a direct chain of causation between the injury and the incapacity so that the latter can be said to have resulted from the former (Rootsey v Tiger Nominees Pty Ltd (2002) 23 NSWCCR 725 at 731). If there is a direct chain of causation then a worker is entitled to succeed.
Second, the Arbitrator did not identify the nature of the injuries sustained by Mr Li so it is impossible to know which conditions (apart from the back, which was found to be an aggravation of a pre-existing degenerative condition) were aggravated with Almec. If there was such an aggravation there was no finding of whether that aggravation had ceased.
Mr Lowe submitted that whilst the Arbitrator was in error in stating that employment had to be a substantial contributing factor to the incapacity, her reasons made it clear that she gave Mr Li the benefit of the doubt on the issue of injury and that any errors favoured the Appellant Worker because there was no basis for a finding on injury in favour of Mr Li. Further, this error was of no consequence because the Arbitrator did not apply her incorrect statement about substantial contributing factor to her assessment of the evidence on incapacity.
I do not agree with this submission. It is clear that injury was in issue. That being so it was impossible for the Arbitrator to properly determine the other issues in the case without first determining the nature of the injury sustained and whether employment was a substantial contributing factor to it. She did not do that. Further, the Arbitrator’s statement that employment must be a substantial contributing factor to the incapacity indicates that she posed the wrong test to determine Mr Li’s entitlement to weekly compensation.
Reasons
The Arbitrator referred to the evidence on incapacity in some detail. That evidence included the supporting MAC from Dr Pillemer dated 29 October 2003 and the MACs of Dr Pittar and Dr Breit resulting from their examinations in December 2004 who both found nil impairment. Dr Breit also found Mr Li to have no incapacity for work. The Arbitrator noted that there were no medical reports from either party dealing with incapacity after May 2002 (Reasons, paragraph 44) though there were medical certificates for Mr Li’s general practitioner (Dr Cheng) from 6 January to 31 August 2003 declaring Mr Li fit for selected duties for 6.5 hours per day five days per week.
The Arbitrator considered Mr Li’s incapacity to be only “marginally diminished” as at the dated of Dr Pillemer’s MAC of October 2003 (Reasons, paragraph 51). That conclusion was contrary to Dr Pillemer’s report which stated at page eight that Mr Li had a “moderate incapacity as a result of ongoing discomfort in this low back and …referred pain into his right lower limb” and a “mild residual impairment due to the ongoing symptoms as a result of right lateral epicondylitis and probable carpal tunnel syndrome”. She then referred to the last medical certificate in evidence being dated 31 August 2003 and said that Mr Li could work “32.5 hours…with some restrictions” (Reasons, paragraph 51). In fact the last medical certificate in evidence was attached to Mr Li’s letter of 31 October 2003 addressed to the GIO and declared Mr Li to be fit for suitable duties (with a lifting restriction of five kilograms and an avoidance of smoke) from 1 November to 30 November 2003.
The Arbitrator refers to the fact that Mr Li had been fit for 80% of his pre injury hours from 6 January 2003 and that by December 2004 neither Dr Pittar nor Dr Breit found any incapacity. She then expressed her conclusion as follows at paragraph 51:
“Taking everything into account I think that any incapacity suffered by the applicant as a result of his employment with this respondent would have ended by 31/12/03.”
The Arbitrator gave no explanation as to why she felt Mr Li’s incapacity would have ended by 31 December 2003. There was no evidence that his condition was steadily improving throughout 2003. The certificates from Dr Cheng through 2003 suggested the contrary as they did not increase the five-kilogram lifting limit nor the number of hours Mr Li could work. Further, it is difficult to see how a proper finding could be made on incapacity when no express finding had been made on injury.
The failure to provide adequate reasons constitutes an error of law and may be a ground to set aside an Arbitrator’s decision. It is clear that Arbitrators have a statutory obligation to provide adequate reasons for their decisions (section 294(2) of the 1998 Act; Part 15 Rule 15.6 of the Workers Compensation Commission Rules 2006 (‘the Rules’); Absolon v NSW TAFE [1999] NSWCA 311).
Relevantly, Rule 15.6 of the 2006 Rules provides that:
“(1) A statement of the Commission’s reasons referred to in section 294(2) of the 1998 Act is to include:
(a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based, and
(b) the Commission’s understanding of the applicable law, and
(c)the reasoning processes that lead the Commission to the conclusions it made.
(2) Without limiting subrule (1), the reasons set out in a statement referred to in subrule (1) are to be stated sufficiently (in the opinion of the Commission) to make the parties aware of the Commission’s view of the case made by each of them.”
To succeed in having a decision set aside on this ground it must be demonstrate not only that the reasons are inadequate, but that their inadequacy discloses that the Arbitrator has failed to exercise the statutory duty to fairly and lawfully determine the application (YG & GG v Minister for Community Services [2002] NSWCA 247; Absolon v NSW TAFE [1999] NSWCA 311; ADCO Constructions Pty Ltd v Ferguson [2003] NSWWCCPD 21).
The standard by which the adequacy of reasons must be determined is relative to the nature of the decision itself and the decision-maker (Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSWWCCPD 6). An Arbitrator’s reasons should be read as a whole and it is not for a Presidential Member on review to comb through the Arbitrator’s findings and reasons in search of error (Beale v GIO (NSW) (1997) 48 NSWLR 430 at 444; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259).
A party is entitled to a decision based on findings and reasons that enable “a proper understanding of the basis upon which the verdict entered has been reached” (Pettit v Dunkley [1971] 1 NSWLR 376 at 382). An Arbitrator must reveal his or her process of reasoning to enable the parties to understand why the decision was made and for the purposes of any appellate review (see Soulemezis v Dudley Holdings Pty Ltd (1987) 10 NSWLR 247 at 273 per Mahoney JA). Reasons must be read in the context of the decision as a whole and a degree of latitude should be allowed in the expression of those reasons (per Clarke JA in Mashiati v Australian Poultry Ltd (1995) 11 NSWCCR 345 at 353).
Mr Lowe submitted that the Appellant Worker presented limited evidence and that the Arbitrator did the best she could with that evidence. She characterised the evidence and made a determination on the weight of that evidence and such a finding as to the weight of evidence is not open to challenge.
I do not agree that a finding by an Arbitrator as to the weight of evidence is unassailable on review. This issue was considered by the Court of Appeal in Edmonds where McColl JA said referred to and applied the passage I quoted from Zheng at [69] above. Her Honour added at [133]:
“The Deputy President rejected the appellant’s challenge to the Arbitrator’s acceptance of Dr Rivett’s opinion on the basis that the relative weight and relevance of the expert evidence was a discretionary decision which could only be disturbed on House v The King principles. This was, in my view, an over-generalisation. There are certainly aspects of the laws of evidence which involve discretionary decisions. The application of ss 135 and 136 of the Evidence Act 1995 are ready examples. However the question whether expert evidence relied upon by a party is probative of a matter in issue is determined in accordance with legal principle and is susceptible to review on appeal in accordance with the principles which govern appellate review of findings of fact: see generally Fox v Percy [2003] HCA 22; (2003) 214 CLR 118.”
Applying the above authorities it seems to me that the Arbitrator’s conclusion that Mr Li’s incapacity ended by 31 December 2003 was not supported by any evidence or reasons. The Arbitrator’s reasoning process was either not identified or, to the extent that it was identified, was deficient for the reason that she inaccurately quoted the evidence from Dr Pillemer and wrongly thought that Dr Cheng’s last certificate was dated 31 August 2003.
There was no evidence to support a finding that incapacity ceased on 31 December 2003 and there was no reason given for the Arbitrator reaching that conclusion. In my opinion the inadequacy of the Arbitrator’s reasons discloses that she failed to exercise her statutory duty to fairly and lawfully determine Mr Li’s application.
The above errors on ‘reasons’ and ‘injury’ mean that the Arbitrator’s determinations on injury and incapacity must be revoked. The question then arises as to whether the matter should be redetermined by me or be remitted to a different Arbitrator. No oral evidence was given at the Arbitrator hearing and the Arbitrator made no credit findings. In these circumstances I am in as good a position to redetermine the matter as an Arbitrator, and that is the course I propose to adopt.
REDETERMINATION
Mr Li started work with Almec in April 1998 and continued until 24 May 2002. His main duty was that of a spot welder, but he occasionally did other duties that involved lifting and using a rivet gun. His wage was $600.00 per week (see Mr Li’s record of interview 14 August 2002, question 21).
At question 31 of his record of interview Mr Li stated that his work involved “heavy duties including heavy lifting, pushing and using spanners in operating machines”. He added:
“The other thing I had to worry about was the heavy action on the foot stand which was pushing me back when using the spot welder. As a result of the accident I had a bleeding nose nearly every day. There is weld on my glasses.”
It is not clear which “accident” Mr Li was referring to in the above quote. It should be noted that the record of interview was given with the benefit of a mandarin interpreter. At question 34 Mr Li added that he sometimes had to carry “big metal sheets from the shelf to the work bench”. On one occasion “the sliding table hit my back”.
The reference to the sliding table is most likely a reference to the injury identified as “back hit by stripper machine” in Part 2 of the Almec Application. When he did “packing and wrapping” his back hurt all the time and he was “unable to walk sometimes after working at the job” (record of interview question 36).
Dealing with his injuries Mr Li said in his record of interview that:
a)his knees and right thigh were painful (question 39);
b)when he carried objects he had pain in his back (question 39);
c)the bottom of his right foot and right hand were numb from his heavy duties (question 39);
d)sometimes he lost his sight (question 44);
e)he had heavy headaches (question 44), and
f)he had bleeding from his nose and a cough (question 45).
When asked if he had reported his pain he said he told his supervisor and boss (question 41) but he did nothing to change his duties (question 42). Mr Li said that the injury to his right knee, thigh and back happened in 1992 when he worked with Precise Craft and the problems with his left knee and right hand were caused by his work with Dex in 1998 (question 49). He then added that his work with Almec made his “injuries much worse” and caused new symptoms of numbness in his hand, foot and chest together with nose bleeds and loss of vision and headaches.
At the time of the record of interview Mr Li was receiving acupuncture from Dr Cheng (question 58). His ‘initial’ medical certificate is from Dr Cheng on 26 July 2002. It diagnosed “strained [sic] injury on lower back and hips, Recurrent epistaxis [nose bleeds] 2° to hot smoke from spot welding”. Later certificates add a reference to “knees” under diagnosis.
Mr Li completed a claim form on 29 July 2002 in which he identified his injuries as:
“BACK. BOTH LEGS & KNEE. CHEST. RIGHT HAND & RIGHT FOOT PINS & NEEDLES. NOSE BLEEDING. CATCH COLD & COUGH. EYES DARKNESS WHEN LOOK DOWN. HEAVY HEADACHE.”
Mr Li’s claim form is generally consistent with the resignation letter he wrote to Almec on 24 May 2002 and hand delivered to the manager on 27 May 2002. When Mr Li attended at Almec’s premises on 27 May 2002 he allegedly said he “wanted to resign and be paid his money” (see letter Almec to GIO dated 27 May 2002 signed by Alan Skinner, managing director) and made reference to his resignation letter. Hand written notes from Almec state that Mr Li said “there is nothing wrong with me I want to quit this job. I sick”. Mr Li was asked why he never reported his condition and never missed any time from work to which Mr Li replied “because I didn’t want to lose my job”. The letter of 27 May 2002 describes Mr Li’s claim as “a totally fabricated/false claim on Almec”. The letter then describes Mr Li as a “model employee at Almec working productively and co-operatively, rarely missing a day…and never missing overtime”.
Mr Skinner gave a statement on 6 August 2002 in which he stated that in July 2001 Mr Li complained to him of a sore hip. Mr Skinner arranged for him to have physiotherapy. He stated that no incident or injury was ever reported by Mr Li at any time during his employment with Almec. Mr Skinner repeated that he did not believe there was any legitimate basis for the claim.
Notwithstanding the letter from Almec of 27 May 2002, Mr Li’s claim was accepted and he was paid compensation until a date well into 2005.
Medical Evidence
To fully understand the history of this case it is necessary to start with the first injury on 17 March 1992 with Precise Craft. On that day metal sheets fell onto Mr Li causing a laceration to his left wrist and bruising to his right thigh. He was treated at Bankstown-Lidcombe Hospital where he was noted to have a laceration over his left hand and soft tissue bruising over the lower part of the right thigh. He again returned to the hospital on 29 December 1993 complaining of pain in his right thigh. On examination his right hip, thigh and knee were normal.
Mr Li saw Dr Conrad on 27 April 1994 (report 2 May 1994) complaining of right knee pain and sensitivity in his left hand. Dr Conrad diagnosed a soft tissue injury to the right knee and thigh and a laceration to the left hand as a result of the 1992 injury. He assessed Mr Li to be fit for light duties not involving a lot of walking, standing, going up and down stairs or heavy repetitive use of the right leg. He thought Mr Li had a 20% permanent loss of efficient use of the right leg at or above the knee and a further 5% permanent loss of efficient use of the right leg below the knee and a 5% permanent loss of efficient use of the left hand. Dr Conrad provided no proper basis for these assessments and they are of little value.
Dr Bracken examined Mr Li on 2 March 1995 (report 7 March 1995) and took a history of the 1992 injury. His diagnosis was that Mr Li had clinical signs consistent with having torn muscles at the attachment of the gluteal muscle to the tip of the great trochanter, such that he has residual symptoms consistent with intermittent trochanteric bursitis. He assessed a 10% permanent loss of efficient use of the right leg at and above the knee as a result of the 1992 injury and a 5% permanent loss of efficient use of the left hand. He thought Mr Li was fit for all duites.
Dr Kai Lee saw Mr Li on referral from Dr Law on 4 October 1995 and prepared a report on 2 March 1998. He took a history of the 1992 injury and diagnosed “traumatic knee pain and also post traumatic pain and stiffness in the left wrist” caused by that injury. He assessed a 15% permanent loss of efficient use of the right leg at or above the knee and a 5% permanent loss of use of the left hand. He felt that Mr Li should be able to do light duties.
Mr Li underwent arthroscopic surgery to his right knee at the hands of Dr Kai Lee on 5 December 1995 when cartilage damage was found at the medial femoral condyle.
On 13 July 1998 Mr Li attended on Dr Portley complaining of pain over his left lower vastus medialis. He was most tender over his left L3 facet.
A CT scan dated 14 August 1998 showed thickening of the posterior facet joints at L4/5 and L5/S1.
Dr Wallace examined Mr Li on 21 September 1998 (report 16 November 1998). He complained of pain over the lateral aspect of his right hip radiating into his right thigh and right knee and of pain in his left hand. Dr Wallace took a history of the 1992 injury and noted that Mr Li had started work with Almec in April 1998 as a sheet metal worker. He diagnosed intra-articular derangement of the right knee as a result of the 1992 injury. He did not think Mr Li was fit for activities requiring repetitive bending or twisting with his left wrist, working in confined spaces, at heights or on ladders, prolonged driving or operation of machinery, or repetitive bending, squatting, crouching or kneeling on his right leg. He assessed a 20% permanent loss of use of the right leg and a 10% permanent loss of use of the left arm as a result of the 1992 injury. He thought that Mr Li may have difficulty in continuing in his full pre-injury duties in the long term due to his left arm and right leg disability.
On 12 January 1999 Dr Somerville examined Mr Li and prepared a report of that date addressed to Dr Al-Taiff. He took a history of an injury to the right knee in 1992 and of “a different pain in the left knee for 1-2 years”. On examination the doctor could not find any convincing neurological abnormality.
A whole body bone scan done on 28 April 1999 was normal.
Dr Evans examined Mr Li on 16 June 1999 and took a history that Mr Li developed pain in his right elbow and left knee in early 1997, when working for Dex. Mr Li did not complain of back pain to Dr Evans. His pain improved after he ceased work with Dex in March 1998. Mr Li also complained of experiencing pain in his right elbow and left knee while working with Almec. Dr Evans thought there was “some impairment of his [Mr Li’s] credibility due to the presence of the non-anatomical sensory impairment in the right arm” (page three). However, he diagnosed Mr Li to have subjective signs of right lateral epicondylitis and a “soft tissue injury to the left knee” due to overuse (page three). The inference is that these injuries occurred during his work with Dex. Accepting Mr Li’s statements the doctor thought that he was fit for work not requiring vigorous or repetitive use of the right arm, requiring him to walk much on stairs or ladders, or to squat or knee much.
Dr Dixon examined Mr Li on 2 March 2001 (report 5 March 2001). He took a history of an injury on 1 September 1996 when Mr Li allegedly developed pain in his knee while cleaning motors at work. In addition, Mr Li allegedly developed pain in his right elbow while undoing bolts at work. Between 1996 and 1998 Mr Li had increasing pain in his knees, right hip, right elbow and lower back. He diagnosed Mr Li as having lateral epicondylitis of his right elbow, an aggravation of lumbar spondylosis and arthralgia in the right sacral area and arthralgia in both knees with post traumatic chondromalacia patella. Dr Dixon’s report is not explicit, but seems to imply that these problems resulted from the work with Dex. Dr Dixon’s history and his statement that Mr Li had “difficulty continuing his normal duties and is currently doing light work in the same field avoiding lifting heavy weights” confirm this. He assessed Mr Li to have 15% permanent loss of use of his right upper limb, a 10% permanent loss of efficient use of his back and a 10% permanent loss of efficient use of his right lower limb at or above the knee and a 5% loss of efficient use of the left lower limb at or above the knee. The reference to ‘light work in the same field’ was a reference to Mr Li’s work with Almec.
Mr Li also tendered reports from Dr Woo, orthopaedic surgeon, dated 2 and 17 March 2004. Dr Woo took a history that Mr Li injured his back in the 1992 incident with Precise Craft and his right elbow in 1996 and that he had back pain and numbness in the right hand. He also recorded that Mr Li worked as a welder since 1998 and after “working for 2 months he had neck pain and transient loss of vision” and aggravation of his right hand numbness and numbness of the left hand. He complained of neck pain, numbness of both hands and right elbow. An MRI scan showed a disc protrusion at C5/6. Dr Woo thought that Mr Li had significant cervical spondylosis and disc injury, which would account for his neck pain and arm symptoms. The doctor made no comment on the connection between those symptoms and the nature and conditions of Mr Li’s employment with Almec.
A report was tendered from Dr Alan Cheng, otolaryngologist, dated 6 April 2004 dealing with Mr Li’s nosebleeds. Dr Chang diagnosed rhinitis sicca but made no comment on the connection between that condition and the work at Almec, or on the issue of incapacity.
Mr Li also relied on an MRI of his right knee dated 22 August 2005 which revealed “mucoid degeneration [of the] posterior horn of [the] medial meniscus” but with no meniscal tear. It also showed chondral softening of the medial facet and apical cartilage. An MRI of his lumbar spine dated 31 August 2005 was also tendered. It showed degenerative changes with mild protrusions at L1/2 and L3/4 and early facet arthrosis at L4/5 and L5/S1. No expert evidence was tendered to attempt to link the changes shown on these investigations with any injury with Almec.
The GIO arranged for Mr Li to be examined by an occupational therapist from IRS Total Injury Management (‘IRS’) in September 2002. In a report from IRS dated 17 September 2002 Mr Li stated that his symptoms were:
“…chest pain, nose bleeding, painful right ribs, lower back and right hip pain, bilateral knee and feet pain, right arm and wrist pain. He advised that he experienced ‘black outs’ with neck flexion and he coughed regularly. Mr Li reported suffering from headaches every day. He advised that he worked as a welder for Almec. He stated that the ‘black outs’ he suffered from were as a result of the hot steam from the spot welder.”
IRS also recorded a history of Mr Li hitting his low back on a table at work on 15 September 2001. It concluded that he was fit for suitable duties for four hours per day three days per week.
Dr Bodel examined Mr Li on 17 January 2000 (report 20 January 2000) having previously seen him on 18 February 1998. It was noted that Mr Li was working full time with Almec as a sheet metal worker and that he had only had “the occasional sick day off”. Dr Bodel diagnosed de quervain’s tenosynovitis in the right elbow as a result of the nature and conditions of his work at Dex, from which Mr Li had recovered. He also thought there was some local pathology in the right knee due to the 1992 injury. He made no suggestion that the work with Almec was causing any aggravation of these problems and he thought Mr Li was fit to continue full time work. He found no objective sign of any ongoing permanent loss of use of the right arm at or above the elbow and no clinical evidence of any permanent loss of efficient use of the left leg at or above the knee.
Dr Reid examined Mr Li on 7 August 2000 (report 10 August 2000). Mr Li told Dr Reid that he attributed his right elbow, knee, right hip and low back pain to his work with Dex. The doctor noted that Mr Li continued to work full time for Almec. In his opinion, there was no evidence of any injury or disease associated with the right elbow or either knee. He thought there was radiological evidence of previous trauma to the low back “of long standing, particularly including facet joint degeneration at the low levels” (page six). On examination Dr Reid found no significant residual symptomatology in the low back. He thought Mr Li was fully fit for work without restriction and that there was no impairment.
Dr Pillemer, AMS, examined Mr Li on 27 October 2003. His ‘General Medical Disputes’ MAC was issued by the Commission on 23 January 2004 and amended on 11 February 2004. In it the doctor took a detailed history from Mr Li. Unfortunately the history was inaccurate in that Mr Li told Dr Pillemer that he injured his back in the 1992 incident with Precise Craft. That was incorrect. The Bankstown Hospital records make no reference to a back injury in 1992 and Mr Li made no mention of such an injury when he gave evidence on oath before Commissioner Grayson in the Compensation Court on 24 April 1994. Mr Li’s main ongoing discomfort was said to be in his right knee, right thigh and buttock and his low back, which he told the doctor had been present since March 1992. He also complained of pain in his left knee and right elbow, which appears to have commenced with Dex. He conceded that since stopping work his symptoms had “improved very slightly” (page three). Significantly, Dr Pillemer took no history of any neck injury or symptoms. On examination of the neck he found Mr Li to have a full range of movement.
Dr Pillemer thought that Mr Li injured his lumbosacral disc in the 1992 incident, which caused referred pain into the right leg. Because of the patently incorrect history, that opinion has little weight, at least so far as it relates to the back and right leg pain. Dr Pillemer also found:
·no obvious derangement in the left knee, noting a full range of movement without any crepitus;
·mild lateral epicondylitis in right elbow and discomfort in the right wrist, and
·features of carpal tunnel syndrome on the right (numbness and pins and needles at night).
Apart from noting a complaint of a diffuse sensory loss on the right side of the body (which was non-organic) Dr Pillemer thought Mr Li’s presentation was consistent and that his complaints were genuine. In his opinion Mr Li had a “moderate incapacity as a result of the ongoing discomfort in his low back” and what he felt was referred pain into his right lower limb together with a mild residual impairment as a result of right lateral epicondylitis and probable right carpal tunnel syndrome (page eight). On causation he stated at page nine that:
a)the injury on 17 March 1992 was the main contributing factor to the back and right leg problems;
b)he took no history of any specific injury in March/April 2002 but Mr Li complained that his symptoms were getting worse;
c)the discomfort in the left knee and right elbow developed while working for Dex, and
d)the employment with Almec was “simply an aggravation of his underlying problems”.
Dr Pillemer was not asked and did not offer an opinion on whether Mr Li had suffered any permanent impairment or losses and therefore his opinions were not conclusively presumed to be correct under section 326 of the 1998 Act. He did not comment on whether any aggravation with Almec was permanent or temporary.
Dr Healey, AMS, examined Mr Li in respect of his eye/vision problems on 11 December 2003 and a MAC was issued by the Commission on 11 February 2004. Dr Healey found Mr Li to be suffering from the following conditions, none of which had been caused by his employment with Almec:
·myopia;
·dry eyes, and
·posterior blepharitis.
Dr Healey noted that exposure to ultraviolet light from spot welding is known to cause transient damages to the surface of the cornea in the absence of any UV filtering protective glasses. On examination of Mr Li there was no evidence of such an effect on his eyes.
Because Dr Pillemer had an inaccurate history and had not been given any of the employers’ medical reports, further AMS assessments were arranged with Dr Breit on 7 December 2004 and Dr Pittar on 6 December 2004.
As Dr Breit’s first MAC did not answer all the questions put to him by the Arbitrator a further MAC was prepared and served on the parties on 22 November 2005. Dr Pittar was also asked to prepare a further MAC but merely forwarded a letter dated 30 August 2005.
Dr Breit’s MAC is 18 pages (starting at page two) and provides a comprehensive and detailed history and analysis of the issues in this matter. Mr Li complained to Dr Breit of the following symptoms:
·pain in his entire neck, thoracic and lumbar spine, getting worse and worse;
·constant right occipital headaches;
·pins and needles in the hands;
·loss of sensation down the entire right side of the body;
·pain on the lateral side of the right elbow (better since stopping work);
·pain on the lateral side of the left elbow and in the wrist (better since stopping work);
·pins and needles involving all of the right foot;
·pain in the right hip since the March 1992 incident, and
·constantly painful knees.
On examination Dr Breit found:
·no wasting of the spinal muscles, buttock, legs or arms;
·cervical spine movements were normal;
·a complaint of tenderness over both lateral epicondylar regions but with a normal range of movement;
·no complaint of pain on provocation testing of the elbows, but Mr Li did complain of pain some time later;
·spinal range of movement was normal except for extension which was restricted by 50%;
·rhythm of movement was normal but Mr Li did complain of pain on movement;
·Mr Li’s gait pattern was normal;
·no effusion in either knee;
·no patellofemoral crepitus, irritability or pain on compression of either knee;
·no tibiofemoral tenderness with both knees stable with negative meniscal provocation testing;
·right hip movements were full but said to be painful, and
·both wrists and hands were normal except for a scar on the left hand.
As Mr Li mentioned a number of times that he had wasting in his right buttock, loin and leg, Dr Breit was alerted to examine for, and did examine for the existence of such wasting but found none.
Dr Breit was in possession of all relevant medical evidence in this matter and listed that material at pages seven and eight of the MAC. His diagnosis was that Mr Li had evidence of cervical and lumbar spondylosis and early patellofemoral arthritis of the left knee. Historically, Mr Li “may have also suffered from bilateral epicondylitis” (page eight).
In his reasons at pages 12 to 14 of the MAC Dr Breit made the following points:
·the injury in March 1992 was relatively minor in nature;
·the findings at the knee surgery in 1995 were not consistent with the history of trauma to the thigh. Mr Li had been “struck on the outer side, the pathology was found on the inner side” (page 13);
·the duties at Dex may have exacerbated Mr Li’s lumbar spondyosis but there was no evidence of any aggravation or acceleration of that condition nor of any ongoing impairment as a result of those duties;
·Mr Li’s complaint of activity related elbow pain was consistent with the repetitive nature of his employment but there were no abnormal clinical signs on examination on 7 December 2004;
·clinically there was no evidence of pathology in the knees or the hip;
·Mr Li complained of decreased light touch sensation in the entire right half of the body, which was a non organic phenomenon;
·Mr Li had evidence of cervical and lumbar spondylosis which was an age related degenerative phenomenon and was not related to his employment;
·it is possible that his employment irritated Mr Li’s low back, but that irritation ceased sometime ago, and
·Mr Li’s knee complaints were also a constitutional/degenerative phenomenon.
Dr Breit’s answers to the specific questions put to him on incapacity have been set out at [32] above. As a result of his findings, Dr Breit assessed Mr Li to have nil impairment or loss to any of the parts of the body he was asked to assess, whether assessed before or after 1 January 2002.
Dr Cheng’s clinical notes from 20 April 1999 to 23 July 2002 were also in evidence. The first entry in these notes is 20 April 1999 which records that in 1992 Mr Li sustained an injury when a large sheet of metal fall onto him hitting his right thigh. It also recorded another injury at work when a heavy object fell onto his head and right shoulder. It is not known when this incident occurred and it has never been pleaded against Precise Craft, Dex or Almec.
Dr Cheng’s notes record numerous attendances by Mr Li when he complained of various musculoskeletal symptoms. For example, on 4 May 1999 Mr Li attended complaining of low back pain radiating into the right buttock “esp [sic] on lifting heavy things”. However, after further attendances for back, right thigh and left knee pain the notes record on 2 November 2001 that Mr Li was “much better – able to tolerate work better”. On 9 November 2001 the entry is “much better”. The next entry is not until 18 May 2002 (a few days before Mr Li resigned) which reads:
“(1) c/o rhinorrhea/sneezing
recurrent cough
epistaxis
not wearing a mask
(2) (R) sided buttock ache
(3) (R) arm/shoulder discomfort
whenever he used force
inflamed throat”
The only investigation done at that time was a chest x ray dated 28 May 2002, which was normal.
The next entry is on 2 June 2002 which in part reads, “c/o b/l leg pain POW backache after prolonged standing at work to operate machine using legs (pushing on pedal) full ROM of T/L spine…full ROM of knee joints”.
Though Mr Li stopped work on or about 24 May 2002, Dr Cheng’s ‘initial’ medical certificate is dated 26 July 2002. There is no explanation for this delay and no detailed report from Dr Cheng setting out his history, diagnosis or opinion on causation. As a result, his certificates are of limited assistance on these issues.
Given Mr Li’s widespread complaints, it may be helpful to deal with each body part and complaint separately.
Headaches
There is no evidence of Mr Li suffering a head injury in the course of his employment with Almec or that the nature and conditions of his employment caused or exacerbated any condition that has caused his headaches. I find that if Mr Li suffers from headaches they are unrelated to his employment with Almec.
Neck
Mr Li has radiological evidence of degenerative spondylosis in his neck (CT scan 26 February 2004) and stenosis and bulging at C4/5 (MRI scan 15 March 2004), but he has never alleged any injury to his neck whilst working for Almec and his neck symptoms were not documented until well after he ceased work. I find that any neck condition from which Mr Li suffers is unrelated to his employment with Almec.
Eyes
Dr Pittar recorded that due to constant use of his eyes at work with Almec Mr Li noted a “fullness of the head and dizziness” and would “lose vision for two or three seconds at a time when looking downwards” (MAC, 25 February 2005 page three). Dr Pittar found no abnormality in either eye to explain Mr Li’s symptoms. Mr Li has bilateral myopia, and aged related difficulty with reading. Neither of these conditions relate to any work injury. Dr Pittar added at page six:
“Welding can certainly produce very sore eyes either from ultra violet light or possibly from splashed particles but there is definitely no permanent injury in this regard because each cornea is perfectly normal on slit lamp examination.”
This opinion was consistent with the view expressed by Dr Healey in his MAC of 11 February 2004. Dr Healey added that Mr Li’s complaints of dry eyes and blepharitis were common in the general population and were known to increase with age (page four). In his opinion, Mr Li’s employment was not a substantial contributing factor to those conditions.
I accept the opinions of Drs Pittar and Healey and I do not accept that Mr Li suffered any injury to his eyes in the course of his employment with Almec.
Epistaxis – Sore Throat
Dr Cheng refers to the nosebleeds in his notes and in his medical certificates. His initial medical certificate states that Mr Li’s employment was a substantial contributing factor to the condition but does not explain how or why that is so, nor does he explain why the condition would cause any incapacity. Without an explanation of the cause of the problem, Dr Cheng’s opinion is of limited weight (Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42 at [84]; (2005) 2 DDCR 271; and Edmonds at [130] to [140]).
Dr Alan Cheng took a history in 2004 that Mr Li’s work environment as a welder was hot and full of fumes and that “apparently affects his nose and throat” (report 6 April 2004) but he expressed no opinion about the connection between Mr Li’s rhinitis sicca (the condition found on examination) and his work. He found no pathology in Mr Li’s larynx or hypopharynx to explain his chronic sore throat. The doctor tried to discourage Mr Li from constantly cleaning his nose and noted that Mr Li needed to change his behaviour pattern with regard to his nose “to allow the tissues to heal satisfactorily”.
Having regard to the lack of evidence, I do not accept that Mr Li suffered any injury to his nose or throat or that the nature and conditions of his employment with Almec caused any aggravation to his nose or throat. I do not believe that Mr Li’s nose or throat conditions have caused or contributed to any incapacity for work.
Chest - Cough -Colds
These allegations are unsupported by any medical evidence and I am not satisfied that Mr Li suffered any injury to his chest or that the nature and conditions of his employment with Almec caused any aggravation of any condition in his chest or caused him to suffer from a cough or cold.
Arms and Hands
Mr Li stated in the Almec Application that he ‘reinjured’ ‘both hands’ with Almec. His complaint to Dr Breit was that he had pain in each elbow and pins and needles in each hand. Of the doctors qualified by Mr Li, most of the reports tendered pre date the commencement of work with Almec. Dr Evans (16 June 1999) talked about problems with the right elbow, but his report clearly implies that that problem was due to the work performed with Dex. Dr Dixon’s history and conclusion in his report of 5 March 2001 relates to Mr Li’s duties with Dex. The only mention he makes of Almec was that Mr Li was “continuing his normal duties and is currently doing light work in the same field avoiding heavy weights” (page two).
Dr Breit found no abnormal clinical signs of lateral epicondylitis in either elbow at examination in December 2004. Movement of both elbows was normal without complaint of pain. In these circumstances I accept Dr Breit’s evidence that whilst Mr Li may have had bilateral elbow pain due to the nature and conditions of his employment in the past (that is, with Dex), as at December 2004 there was “no evidence to suggest ongoing impairment” and “no abnormal clinical findings” (page 13).
I accept that Mr Li’s employment with Almec may have caused a temporary aggravation to his bilateral lateral epicondylitis but that the effect of that aggravation ceased on or before 7 December 2004. As a consequence, there was no need for Dr Breit to assess the issue of whether there was any whole person impairment as a result of the condition of Mr Li’s arms.
Dr Breit noted that Mr Li’s grip strength was quite variable but made no other comments about Mr Li’s hands.
Dr Pillemer thought that Mr Li may have had right-sided carpal tunnel syndrome but expressed no opinion about the connection between that condition and the nature and conditions of Mr Li’s employment with Almec. In the absence of any other evidence on this point I am not prepared to find that Mr Li sustained or aggravated the condition of carpal tunnel syndrome due to the nature and conditions of his employment with Almec. Dr Pillemer found a full range of movement of all joints of the left hand with no residual abnormalities present.
I am not satisfied that Mr Li suffered any injury to his right or left hand or any aggravation of any condition in either hand (such as carpal tunnel syndrome) as a result of his employment with Almec.
Back, Right Hip and Legs
Whilst there are numerous references in Dr Cheng’s notes to Mr Li complaining of back pain between 1999 and 2002, the only opinion from Dr Cheng is in his medical certificates, which do not set out a detailed diagnosis or any analysis of the connection between Mr Li’s complaints and his duties with Almec. As a result, those certificates are of limited probative value.
Dr Pillemer’s opinion was based on the patently false history that Mr Li injured his back in the 1992 incident and is therefore of limited probative value. Further, in December 2004 Dr Breit did not find the wasting noted by Dr Pillemer in October 2003. For these reasons, I do not accept Dr Pillemer’s opinion in respect of Mr Li’s back.
The evidence from Almec is that Mr Li performed his normal duties up to May 2002 and that the only complaint he made about experiencing pain was in July 2001 when he complained about his right hip. Therefore, it argues that there is no evidence of any injury. However, the clinical notes from Dr Cheng provide corroboration of Mr Li’s complaint of experiencing back pain during the period covering his employment with Almec but the medical reports do not support any diagnosis other than lumbar spondylosis which, in Dr Breit’s opinion, is “an age related degenerative phenomenon” unrelated to his employment (page 14). Nevertheless, Dr Breit conceded that it was possible that Mr Li’s employment irritated his low back but that irritation “ceased sometime ago”.
In my view, Dr Breit’s opinion is logical and persuasive. In the absence of probative evidence to the contrary, I accept his opinion that Mr Li suffered an injury to his back in the nature of an aggravation of degenerative changes as a result of the nature and conditions of his employment with Almec and that his employment was a substantial contributing factor to the injury. In the absence of evidence, I do not accept that the incident with the stripper was of any long-term consequence.
Dr Breit stated that clinically there was no evidence of pathology in the right hip (page 14). On the basis of this evidence, I find that Mr Li suffered no injury to his right hip with Almec.
Knees
Mr Li complained of bilateral knee pain to Dr Pillemer. On examination Dr Pillemer found no effusion and a full range of movement on both sides with no crepitus. Both knees were stable and there was no evidence of any obvious internal derangement (page five).
Dr Breit thought there was no clinical evidence of pathology in the knees though he added that the knee complaints were a “constitutional/degenerative phenomenon” (page 14).
Given these findings and the absence of any frank injury to either knee whilst working for Almec, I find that Mr Li sustained no injury to his knees in the course of his employment with that company and that his complaints of knee pain relate to mild degenerative changes which changes were not caused or aggravated by his employment with Almec.
Right Foot
I do not accept that Mr Li suffered any injury to his right foot as a result of his employment with Almec.
Incapacity and Weekly compensation
Mr Li performed his normal duties up to May 2002. Dr Cheng declared him to be unfit for work from 26 July 2002 but fit for suitable duties for four hours per day three days per week from 16 September 2002 with a gradual increase in his hours of work from October 2002. By January 2003 Mr Li was declared fit for suitable duties for 6.5 hours per day for five days per week with a lifting restriction of up to five kilograms. Dr Cheng’s last certificate, dated on or about 31 October 2003, had the same restrictions.
Mr Li agreed that he was paid voluntary compensation by Almec under section 36 of the 1987 Act at his current weekly wage rate of $600.00 per week up to 24 November 2002 and then under section 38 at $480.00 per week (80% of his current weekly wage rate) until 10 July 2003 when the rate was reduced to $317.20 per week (the maximum rate for a single worker with no dependents) and was adjusted as approptiate up to 16 March 2005. His challenge is that:
a)the payments should have continued to date and into the future;
b)he has a dependent wife and two child and his compensation should have allowed for them;
c)his payments should not have decreased to 80% of his current weekly wage rate, and
d)he should have been paid for lost superannuation benefits.
In view of the findings I have made that the effects of any injury with Almec ceased on or before 7 December 2004, Mr Li has no entitlement to any compensation beyond that date. On the issue of incapacity I find that Mr Li was totally unfit for work from 24 May 2002 until 15 September 2002 and partially unfit from 16 September 2002 until 7 December 2004 when, for the reasons set out above, the consequneces of any injury with Almec ceased.
The payments voluntarily made to Mr Li up to 10 July 2003 were the maximum recoverable by him under the legislation. The decrease to 80% of Mr Li’s current weekly wage rate (on 25 November 2002) was in accordance with the provisions of the 1987 Act and does not disclose any error. At that time Mr Li’s incapacity was only partial and, provided he otherwise satisfied the provisions of section 38 he was only entitled to recover 80% of his current weekly wage rate or the statutory indexed rate, whichever was the greater. In Mr Li’s case the greater figure was 80% of his current weekly wage rate and that is the figure he was paid until 10 July 2003.
The maximum period compensation is payable under section 38 is 52 weeks. On the findings I have made Mr Li’s partial incapacity started on 16 September 2002 and continued until 7 December 2004, the date of Dr Breit’s examination. However, compensation is not payable under section 38 unless the worker is seeking suitable employment (section 38(4)). I am not satisfied that Mr Li complied with the provisions of section 38(4) beyond 10 July 2003 and therefore his entitlement beyond that date falls to be determined under section 40.
In making an assessment under section 40 I have have regard to the steps set out in Mitchell v Central West Area Health Service (1997) 14 NSWCCR 527 and make the following findings:
1.but for injury Mr Li would have remained employed with Almec where he earned $600.00 per week;
2.having regard to the whole of the evidence and provisions of sections 40(3) and 43A of the 1987 Act I find Mr Li’s ability to earn from 11 July 2003 to 7 December 2004 in some suitable employment (light processing work) was $400.00 per week;
3.the difference between steps one and two is $200.00 per week;
4.there are no reasons to reduce the figure of $200.00 per week in the exercise of my discretion, and
5.Mr Li is entitled to an award under section 40 of the 1987 Act in the sum of $200.00 from 11 July 2003 to 7 December 2004.
As Mr Li has been paid more than $200.00 per week from 11 July 2003 until at least 16 March 2005 he has no entitlement to further weekly compensation.
The Workers Compensation Acts (the 1987 Act and the 1998 Act) make no provision for the payment of lost superannuation benefits and this point has no merit.
Section 60 Expenses
Mr Li’s section 60 expenses were set out in the Arbitrator’s decision at paragraph 19 and I will not repeat them here. They total $482.65. Almec paid for all of Mr Li’s section 60 expenses up to 16 March 2005.
I am satisfied that the Arbitrator’s reasons adequately dealt with the claim for section 60 expenses and I agree with her conclusion that no liability exists for the expenses claimed by Mr Li.
DECISION
For the reasons set out in this decision, the Arbitrator’s decision and orders are confirmed.
COSTS
No order as to costs of the appeal.
Bill Roche
Deputy President
1 March 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.
ASSOCIATE
WORKERS COMPENSATION COMMISSION
DETERMINATION OF AN APPLICATION FOR RECONSIDERATION OF A DECISION OF THE COMMISSION CONSTITUTED BY A PRESIDENTIAL MEMBER
CITATION:Xue Xin Li v Almec Pty Ltd [2007] NSWWCCPD 72R
APPELLANT: Xue Xin Li
RESPONDENT: Almec Pty Ltd
APPLICANT FOR RECONSIDERATION: Xue Xin Li
INSURER:GIO Workers Compensation (NSW) Limited
FILE NUMBER: WCC7226-03
DATE OF ARBITRATOR’S DECISION: 8 May 2006
DATE OF APPEAL HEARING: 20 February 2007
DATE OF APPEAL DECISION: 1 March 2007
DATE OF RECONSIDERATION DECISION: 5 April 2007
SUBJECT MATTER OF DECISION: Application for reconsideration
PRESIDENTIAL MEMBER: Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION: Appellant: In person
Respondent: Rankin & Nathan
ORDERS MADE ON APPEAL: The application for reconsideration is refused.
No order as to costs of the reconsideration application.
BACKGROUND TO THE RECONSIDERATION APPLICATION
On 2 June 2006 Xue Xin Li (‘the Appellant Worker/Mr Li’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 8 May 2006.
The Respondent to the Appeal is Almec Pty Ltd (‘the Respondent Employer/Almec’).
The appeal was heard on 20 February 2007 and decided by me on 1 March 2007 when the Arbitrator’s decision and orders were confirmed. The full history of this matter is set out in Xue Xin Li v Almec Pty Ltd [2007] NSWWCCPD 72 and will not be repeated here.
On 15 March 2007 Mr Li filed an Application Reconsideration of Commission Decision (‘the Reconsideration Application’). In it he seeks to rely on additional medical evidence.
On 22 March 2007 Almec filed a Notice of Opposition to Reconsideration of Commission Decision.
PRELIMINARY MATTERS
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Neither party has made submissions on whether the Reconsideration Application should be dealt with on the papers.
Having regard to Practice Directions Numbers 1 and 6, 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.
SUBMISSIONS AND FINDINGS
Mr Li seeks to rely on the following evidence to ground his reconsideration application:
a) report and physiotherapy referral from Dr Sun, dated 15 September 2005;
b) report from Juliet Smith, audiologist, dated 20 April 2005;c) report from Dr Larry Kalish, ENT Registrar, Concord Hospital, dated October 2006;
d) report of Dr Elizabeth Dally, Urology Registrar, Concord Hospital, dated 5 May 2006;
e) renal tract ultrasound report by Dr Harding Smith, dated 20 October 2006;
f) report by Dr Son Huynh, Ophthalmology Registrar, Westmead Hospital, dated 17 October 2006;
g) clinical notes of Dr Benjamin Ly relating to attendances by Mr Li in August, June and November 2006, and
h) a prescription from Dr Ly for osteoeze dated 3 August 2006.
I have read all of the above documents. None of them provides any evidence that would justify the earlier decision being reconsidered. It is not fresh evidence of such persuasive value that, if it were accepted, it would most likely lead to a different result in the appeal.
Mr Li’s submission in support of the Reconsideration Application is that “many reports of the files [sic] proved Dr Breit’s assessment is lying”. This submission was put by Mr Li at the oral hearing of his appeal on 20 February 2007 and was rejected. The binding nature of Dr Breit’s Medical Assessment Certificate (‘MAC’) was dealt with in the substantive appeal at paragraph [59] and will not be repeated here. Mr Li has already exercised his right of appeal against the MAC in the Commission.
Mr Li has established no grounds for a reconsideration of the earlier appeal decision and his application is refused.
DECISION
Application for reconsideration is refused.
COSTS
No order as to costs of the reconsideration application.
Bill Roche
Deputy President
5 April 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.
ASSOCIATE
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