Yuvarlak v Western Sydney Area Health Service
[2007] NSWWCCPD 14
•17 January 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION
CONSTITUTED BY AN ARBITRATOR
CITATION:Yuvarlak v Western Sydney Area Health Service [2007] NSWWCCPD 14
APPELLANT: Susan Yuvarlak
RESPONDENT: Western Sydney Area Health Service
INSURER:Employers Mutual Ltd
FILE NUMBER: WCC3868-06
DATE OF ARBITRATOR’S DECISION: 28 June 2006
DATE OF APPEAL DECISION: 17 January 2007
SUBJECT MATTER OF DECISION: Treatment of the evidence; incapacity for work; section 40 of the Workers Compensation Act 1987
PRESIDENTIAL MEMBER: Acting Deputy President Robin Handley
HEARING:On the papers
REPRESENTATION: Appellant: Carters Law Firm
Respondent: Hunt & Hunt Lawyers
ORDERS MADE ON APPEAL: Clause 1 of the decision of the Arbitrator dated 28 June 2006 is revoked and the issue of Ms Yuvarlak’s claim for weekly compensation is remitted to the Arbitrator concerned for redetermination in accordance with these reasons.
The Respondent, the Western Sydney Area Health Service is to pay the Appellant, Ms Yuvarlak’s costs in this appeal.
BACKGROUND TO THE APPEAL
On 25 July 2006, Susan Yuvarlak sought leave in the Workers Compensation Commission (‘the Commission’) to bring an appeal against the decision of an arbitrator dated 28 June 2006. The Respondent to the appeal is Western Sydney Area Health Service (‘the Health Service’) and its workers compensation insurer is Employers Mutual Ltd.
Ms Yuvarlak was born in Turkey on 15 July 1958 and is aged 48. She migrated to Australia with her husband in 1987. She is now separated from her husband and has one dependent child living with her who is aged 14. On 3 December 1990, Ms Yuvarlak commenced employment with the Health Service at Westmead Hospital as a full-time cleaner, working 38 hours a week. In September 1995, she transferred to a permanent part-time position as a cleaner, working 16 hours a week over two days.
Ms Yuvarlak injured her left wrist in the course of her employment on a number of occasions between 1993 and 2004: there are some discrepancies in the dates but the incidents appear to have occurred on or about 15 November 1993, 27 June 1994, 15 May 1995, 6 October 1997, 11 December 2000, 30 June 2002 and 8 August 2004. Ms Yuvarlak injured her right wrist on 13 October 2002. She was also injured in a number of motor vehicle accidents unrelated to her employment.
Ms Yuvarlak made claims for workers compensation in respect of the work-related incidents. In April 2003, she received $3,500 in respect of a 5% permanent loss of efficient use of the left arm below the elbow following settlement of her claim. Ms Yuvarlak last received weekly compensation following the incident on 8 August 2004. By letter dated 14 October 2004, the then workers compensation insurer, Treasury Managed Fund, notified Ms Yuvarlak that it would stop paying weekly compensation and medical, hospital and associated expenses from 15 October 2004 on the basis of medical evidence indicating that her employment was not a substantial contributing factor to her ongoing condition/incapacity.
On 14 March 2006, the Commission registered Ms Yuvarlak’s ‘Application to Resolve a Dispute’ in respect of her claim for weekly compensation of $420 per week from 15 October 2004 to date and continuing. The Commission received the Health Service’s ‘Reply’ on 3 April 2006. On 6 April 2006, Ms Yuvarlak filed an amended ‘Application to Resolve a Dispute’. On 23 May 2006, the Arbitrator conducted a teleconference with the parties and, on 15 June 2006, conciliation having proved unsuccessful, she conducted an arbitration hearing. Her decision, dated 28 June 2006, is set out below.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 28 June 2006, records the Arbitrator’s orders as follows:
“1. Award for the Respondent in respect of the Applicant’s claim for weekly benefits compensation.
2. The Respondent to pay the Applicant’s section 60 expenses with respect to her left wrist.
3. The Respondent to pay the Applicant’s costs as agreed or assessed.”
In the Statement of Reasons for her decision, the Arbitrator accepted that a number of incidents had occurred in which Ms Yuvarlak’s left wrist had been injured. The Arbitrator did not, however, accept, that Ms Yuvarlak sustained a fracture of the left wrist in the incident on 15 May 1995, preferring the opinion of Dr Richard Honner, Hand Surgeon, that the fracture was a longstanding one (report dated 1 September 2004). Nevertheless, the Arbitrator accepted the incident “aggravated the underlying problem and resulted in a de Quervain’s condition” (paragraph 44). She was satisfied that “the Applicant has an ongoing partial physical incapacity in her left wrist as a result of the work she was carrying out for the Respondent” (paragraph 45), but was not satisfied that Ms Yuvarlak has any continuing incapacity with respect to the right hand.
The Arbitrator found Ms Yuvarlak had transferred from full-time to part-time employment in 1995 for reasons unrelated to her wrist, noting that no mention was made of the wrist injury and any consequent inability to work in the documents she examined relating to Ms Yuvarlak’s reclassification. The Arbitrator was not satisfied that Ms Yuvarlak’s anxiety and depression arose out or in the course of her employment with the Health Service or that her employment was a substantial contributing factor to this condition. The Arbitrator noted evidence that Ms Yuvarlak had suffered from depression for many years as a result of ongoing domestic violence and an assault in a car park in 1999.
The Arbitrator found the “general medical consensus ... is that the Applicant is fit to carry out the cleaning work she had been doing two days a week” (paragraph 52). Because this was also Ms Yuvarlak’s pre-injury employment, the Arbitrator found Ms Yuvarlak had suffered no economic loss as a result of the partial physical incapacity as she would still be able to earn the same income (paragraph 55). Thus, the Health Service was not liable to pay Ms Yuvarlak weekly compensation.
ISSUES IN DISPUTE
Ms Yuvarlak’s solicitors rely on two principal grounds of appeal. First, they submit the Arbitrator erred by accepting medical evidence that was mutually exclusive concerning the fracture to Ms Yuvarlak’s left wrist, which the Arbitrator found did not occur in the incident on 15 May 1995. Second, they submit the Arbitrator erred by failing to follow the five step process prescribed by the NSW Court of Appeal in Mitchell v Central West Health Service (1997) 14 NSWCCR 527 in respect of section 40 of the Workers Compensation Act 1987 (‘the 1987 Act’). The parties’ submissions on these issues are discussed below.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
Neither party sought to adduce fresh evidence.
LEAVE
Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act. The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act. With regard to section 352(2), I am satisfied that the amount of compensation at issue is at least $5,000 and comprises more than 20% of the amount awarded by the Arbitrator. Accordingly, I am satisfied that the section 352 threshold has been met, and I grant leave to appeal.
SUBMISSIONS, DISCUSSION AND FINDINGS
The role of the Presidential Member on appeal is to review the Arbitrator’s decision as a whole. The review is not a rehearing. In this case, Ms Yuvarlak’s solicitors must demonstrate that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172; The King Island Company Limited v Deery [2005] NSWWCCPD 1) in order to enliven the Presidential Member’s power to interfere with the Arbitrator’s decision pursuant to section 352(7) of the 1998 Act. Where the weight accorded to the evidence by the Arbitrator is challenged, Deputy President Fleming’s comment in Knight v Eyles Nominees Pty Ltd [2004] NSWWCCPD 73, at paragraph 40, should be borne in mind:
“Interference with an Arbitrator’s discretionary judgement as to the weight of evidence should only be done where it is manifestly obvious that the discretion has so miscarried that it has not been exercised fairly and lawfully.”
Injury to the left wrist on 15 May 1995
Ms Yuvarlak’s solicitors submit the Arbitrator erred by accepting medical evidence that was mutually exclusive concerning the fracture to Ms Yuvarlak’s left wrist, namely, on the one hand, the pre-employment medical report dated 30 November 1990, and on the other hand, the opinions of Dr Honner and Dr Bruce Connolly, Hand Surgeon. They contend that the pre-employment medical examination “clearly implies that no fracture existed at that time”.
The Health Service submits there was ample medical evidence provided by both parties to support the Arbitrator’s finding that she was not satisfied the injury to the left wrist on 15 May 1995 resulted in a fracture.
I note the pre-employment medical report dated 30 November 1990 provides no specific information about Ms Yuvarlak’s medical condition, merely stating she is “Fit for UNRESTRICTED employment”. In her undated statement attached to her ‘Application to Resolve a Dispute’, Ms Yuvarlak said she had “no previous injuries to or problems with my left hand or wrist” prior to commencing employment with the Health Service. She said the accident happened when she was being trained in the use of a floor polisher. Essentially, she lost control of the polisher, which weighed between 30 and 40 kgs, and when it hit a wall, her “left wrist also hit the wall with some force and was momentarily caught between the handle and the wall”. Following the accident she experienced severe pain in the wrist, stopped work and reported the accident, and consulted her general practitioner, Dr Chaudhary. He treated her with tablets and physiotherapy, but did not send her for x-rays. She was off work for about two months.
The Health Service’s records show Ms Yuvarlak was unfit for work because of this incident from 13 June 1995 to 18 July 1995. Ms Yuvarlak stated that on her return to work she was given light duties for about three weeks, but thereafter tried to return to her normal full-time duties:
“16. ... I continued to see Dr S Chaudharry [sic] and to take pain-killing medications. He advised me to consider changing my work if I continued to have difficulty with it. Eventually, after two weeks of doing my normal job, I was unable to continue.
17. I approached the Respondent and asked for permission to swop with another worker who was only working two shifts per-week. I was allowed to do this and from approximately the end of August 1995, commenced cleaning part-time for the Respondent, two days per-week.”
The Health Service’s records include a formal offer of appointment as a part-time cleaner dated 13 September 1995. A reclassification and transfer advice shows the effective date of transfer as 17 September 1995. There is no reference to Ms Yuvarlak’s reasons for seeking the transfer.
Ms Yuvarlak gave brief oral evidence at the arbitration hearing confirming that she separated from her husband because of his violence, which started in January 1995. The Health Service provided copies of Department of Housing records showing that on 28 June 1995, Ms Yuvarlak made an ‘Application for Immediate Housing Assistance’ for herself and her daughter, who was then aged three. She stated she was frightened of her husband, from whom she had separated, and “myself & my child are at risk of my husband’s severe harassment”. This application was rejected because of Ms Yuvarlak’s income level (she was working full-time) on the basis that she was able to rent privately. On 17 October 1995, she made a second application. Her income had by then decreased and she was accepted as being eligible.
Dr David Dilley, Hand Surgeon, in a report dated 15 February 2005, noted that when he first saw her on 3 September 2001, she denied having any injury to her left hand before the incident in 1995. He stated that x-rays she had with her at the time of that examination “demonstrated deformity in the distal third of the radius with dorsal angulation due to malunion of an old fracture of the bone”. Dr Dilley expressed no opinion on when the fracture occurred but he commented:
“The essential sticking point in this matter appears to be whether or not the injury she reports as occurring in 1995 resulted in the fracture or whether there was a prior injury. This lady has consistently denied to me any prior injury other than that which occurred in 1995.”
The Health Service provided a copy of a report by Dr Neil Berry, Specialist General Surgeon, to Ms Yuvarlak’s solicitors dated 3 May 2001. Dr Berry, speaking of the incidents on 15 May 1995 and 6 October 1997, said:
“The x-rays were not available to know whether in fact there was a fracture of the radius, but given her treatment it is possible that she did sustain on the first occasion, a minor green stick type fracture to the lower shaft of the radius, and on the second occasion a soft tissue injury.”
Dr Maryanne Dawson, Injury Management Consultant, in a report dated 13 October 2003, doubted that the incident on 15 May 1995: “could result in a significant event such as a fracture. It is far more likely that she has had a fall or something similar earlier in life that she does not recall and did not receive treatment.”
Dr Honner, in his report dated 25 November 2003, stated:
“The diagnosis is a longstanding fracture of the left distal radius and ulna, and from the appearances of the films that I have seen and past experience, it is my pinion that the fracture was not caused by the incident that she describes when she was learning to use a buffing machine in 1995. It is likely to have been present for many years, before she started working at Westmead in 1990, but I cannot state with certainty just how old the fracture is.”
Dr Connolly, in a report dated 28 March 2002, stated: “Most likely there has been in the past and before the injury she reports of 1995, an injury sufficient to cause a fractured left radius where [sic] the residual deformity causing instability of the ulna.”
Dr Sheikh M Habib, Surgeon, in a report for Ms Yuvarlak’s solicitors dated 17 June 2005, commented on Dr Honner’s opinion as to the causation of the fracture:
“Dr Honner first saw Mrs Yuvarlak in November 2003. She had her first injury in [sic] May 15, 1995 in which she suffered left wrist/forearm injury and was off work for 3 months before returning to work. I do not believe a person would take 3 months rest on doctors advice because she/he scratched the arm. She did not have x-rays because she was not sent for x-rays by a doctor.
I think 8 years old injury can be safely classified as long-standing lesion.”
The Arbitrator relied on the opinion of Dr Honner, an eminent Hand Surgeon, that the fracture was a longstanding one pre-dating the incident in 1995. She found this opinion to be shared by Drs Connolly and Dawson, and noted that Dr Dilley appeared to express doubt as to when the fracture occurred. The Arbitrator preferred Dr Honner’s opinion to those of Dr Berry, who did not see the x-rays, and Dr Habib, who is not a Hand Surgeon.
In my view, there was clearly sufficient evidence to support the Arbitrator’s finding and I am not satisfied that her discretionary judgement as to the treatment of evidence has miscarried. I therefore reject the first ground of appeal.
Incapacity and the application of section 40
Ms Yuvarlak’s solicitors submit the Arbitrator erred by failing to follow the five step process prescribed by the NSW Court of Appeal in Mitchell. These steps were set out by the Court in Mitchell (at pages 529 to 530) as follows:
“1. To determine the weekly amount the worker would probably have been earning if uninjured (section 40(2)(a)) ...
2. To determine the average weekly amount that the worker is earning or would be able to earn in some suitable employment from time to time after the injury (section 40(2)(b)). Section 40(3) provides that the determination of this amount is subject to the following:‘(a) the determination is to be based on the worker’s ability to earn in the general labour market reasonably accessible to the worker;
(b) the determination is to be made having regard to suitable employment for the worker within the meaning of section 43A.’ ...
3. To subtract the figure derived from 2. from the figure derived from 1. (section 40(2))
4. To decide whether and to what extent the reduction calculated as above, bears such relation to the amount of that reduction as may appear proper in the circumstances of the case (section 40(1)) ...5. To make an award in the amount arrived at in Step 4.”
Ms Yuvarlak’s solicitors note that the Arbitrator, having found that Ms Yuvarlak has a physical incapacity as a result of the injury to her left wrist on 15 May 1995 – namely an aggravation of “the underlying problem in the Applicant’s left wrist ... [that] resulted in a de Quervain’s condition” (paragraph 44), nevertheless determined that her pre-injury employment was only 16 hours a week. Ms Yuvarlak’s solicitors contend the Arbitrator disregarded step one of the Mitchell process: the relevant employment for the purposes of step one was the full-time employment in which she was engaged at the time of the incident on 15 May 1995, not the part-time employment to which she transferred later in the year. The evidence concerning Ms Yuvarlak’s transfer to part-time employment was only relevant at step four of the process in deciding whether to exercise her discretion under section 40(1).
The Health Service noted that the Arbitrator found that Ms Yuvarlak “transferred from full time employment to permanent part-time employment of two days per week in 1995 for reasons unrelated to her left wrist and that she was able to carry out that work with the occasional aggravation” (paragraph 50). The Arbitrator accepted that the transfer was for personal reasons connected with Ms Yuvarlak’s separation from her husband and his domestic violence. The Health Service contends the Arbitrator correctly identified and applied step one of the Mitchell process by finding that had Ms Yuvarlak not been injured, her probable earnings would have been those from working 16 hours per week.
Turning to the application of the five steps prescribed in Mitchell, step one required the Arbitrator to determine the weekly amount Ms Yuvarlak would probably have been earning if uninjured (section 40(2)(a)). In doing so, the Arbitrator was required to assume that Ms Yuvarlak would have continued in the employment she was in at the time of the injury and that her probable earnings were those she was earning at that time: see Harding v Transfield Pty Ltd (2003) 25 NSWCCR 86, at paragraph 44; WE Bromley Pty Ltd v Coggins [2006] NSWWCCPD 128, at paragraphs 69 to 72. The fact that Ms Yuvarlak may not have continued in that employment for reasons unrelated to the injury, was a matter to be taken into account at step four, when deciding whether to exercise the discretion under section 40(1).
In my view, the Arbitrator made an error of law by not determining that Ms Yuvarlak’s probable earnings but for the injury were her earnings at the time of the incident on 15 May 1995, but instead proceeding directly to consider her reduced earnings from the time she transferred to part-time employment in September 1995. Ms Yuvarlak’s solicitors provided evidence of her earnings, in the form of fortnightly wage records for the period July 1994 to September 2000, attached to the ‘Application to Resolve a Dispute’. These records indicate that in May 1995 Ms Yuvarlak was earning approximately $500 gross per week. At the arbitration hearing, Ms Yuvarlak’s counsel submitted that it would be reasonable to assume that for the period at issue, from 15 October 2004 to date and continuing, allowing for minimal wage rises over the intervening years, her probable earnings but for the injury would have been about $600 per week. In my view, this is reasonable. Thus, at step one, it would have been reasonable for the Arbitrator to determine probable earnings of $600 per week.
Proceeding to Mitchell step two, the Arbitrator accepted the evidence that Ms Yuvarlak was capable of undertaking cleaning work for 16 hours a week on a part-time basis. The Arbitrator found Ms Yuvarlak’s earnings for working 16 hours a week in 2004 were $245.81, a figure which does not appear to be in dispute. Mitchell step three requires that the figure derived from step two be subtracted from the figure derived from step one. This gives a figure of $354.19.
Mitchell step four requires consideration of whether to exercise the discretion in section 40(1). It is at this stage that the Arbitrator should have considered all the facts, including the circumstances surrounding Ms Yuvarlak’s transfer to part-time employment in September 1995 and the effect of the other non work-related injuries: Wrigley Co Pty Ltd v Holland [2002] NSWCA 109 (‘Wrigley’), at paragraph 21. Having made a decision in relation to step four, the Arbitrator was then required to make an award under step five. However, as stated in Wrigley at paragraph 23, where there is a reduction in the exercise of the discretion at step four, “the Court is not entitled, in the exercise of this discretion, to dismiss the claim of a partially incapacitated worker, but must make some award in his or her favour”.
In view of the Arbitrator’s error of law, the appropriate course is for me to remit the matter for redetermination of Ms Yuvarlak’s claim under section 40 of the 1987 Act.
With regard to the reasons for Ms Yuvarlak’s transfer to part-time employment in September 1995, I note the evidence of her undated statement that two weeks after her returning to normal duties following the injury to her wrist on 15 May 1995, she was unable to continue and approached her employer seeking a transfer to part-time hours. She stated that despite the reduction in hours, her wrist continued to trouble her and would flare up from time to time. I note that there is no mention of this in the documents relating to her reclassification.
I referred above to the Department of Housing records concerning Ms Yuvarlak’s application for housing assistance and note that she made no mention of her wrist condition in the two applications made. I also note Dr Berry’s record of her history where he stated that Ms Yuvarlak “subsequently changed from full time work to two days a week for personal reasons”. The view I have formed from reviewing the evidence is that it is likely that there were a number of factors influencing Ms Yuvarlak’s decision to seek a transfer to part-time employment, including both the ongoing problems with her wrist and personal reasons related to the separation from her husband and the need to care for her young child. Whilst I am not satisfied that the Arbitrator made any error of fact or law in her treatment of the evidence and in reaching her findings in this regard, these are matters she may wish to reconsider in exercising her discretion under section 40(1) at Mitchell step four.
DECISION
Clause 1 of the decision of the Arbitrator dated 28 June 2006 is set aside and the issue of Ms Yuvarlak’s claim for weekly compensation is remitted to the Arbitrator for redetermination in accordance with these reasons.
COSTS
The Respondent, the Western Sydney Area Health Service is to pay the Appellant, Ms Yuvarlak’s costs in this appeal.
Robin Handley
Acting Deputy President
17 January 2007
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ROBIN HANDLEY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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