Issue 11: November 2010

Pacific National (NSW) Pty Ltd v Plummer [2010] NSWWCCPD 109

Sections 4, 38(1) of the Workers Compensation Act 1987, employer’s ignorance of alleged injury; s 38(3) of the 1987 Act, quantum of entitlement to weekly benefits; s 42 of 1987 Act, current weekly wage rate, relevance of industry allowances

O’Grady DP

20 October 2010

Facts:

Mr Plummer was employed by Pacific National (NSW) Pty Ltd (the appellant) as a train driver. He worked in this capacity for 23 years.

Mr Plummer claimed that he suffered injury to his back in the course of his employment with the appellant caused by postural difficulty, jarring and jolting whilst seated during performance of his duties and that this injury caused incapacity for work between 18 December 2007 and 26 October 2008. In the alternative he claimed that his employment duties aggravated a pre-existing degenerative condition of his lumbar spine.

A claim in respect of weekly compensation was made by Mr Plummer on 3 July 2008 and liability was disputed by the appellant in a s 74 notice on the basis of the provisions of s 4, s 33 and s 60 of the 1987 Act and s 323 of the 1998 Act.

An application was filed in the Commission and orders for weekly compensation pursuant to s 38, medical expenses and costs were made following the arbitration.

The issues in dispute on appeal were whether the Arbitrator erred in his evaluation of evidence concerning the occurrence of injury; in determining that Mr Plummer had an entitlement to weekly benefits pursuant to s 38 of the 1987 Act, and in the manner of quantification of entitlement to weekly benefits pursuant to s 38.

On appeal, the appellant argued that the Arbitrator’s conclusion concerning injury was based on an erroneous consideration of the evidence. It was also argued that the Arbitrator incorrectly characterised the medical certificates provided by Mr Plummer to the appellant between December 2007 and June 2008 as “WorkCover Certificates” given that these certificates made no reference to work related injury (at [55]).

The appellant submitted that Mr Plummer had not complied with s 38 as it was not until July 2008 that a medical practitioner “decided” that he had a work related injury and the provisions of s 38 cannot be “enlivened after the event” (at [87]). The appellant had no knowledge of an alleged work injury until receiving the claim form, and as s 38 has the effect of a penalty for the failure to provide an incapacitated worker with suitable duties, it’s application to these facts was not appropriate (at [90]).

Mr Plummer submitted that the Arbitrator applied a broad and reasoned approach to the medical evidence and that no adverse inference should be drawn by reason of the absence of any report from medical witnesses as the workers compensation system is “aimed at producing just, quick and efficient outcomes for injured workers and their employers”.

Mr Plummer argued that he had complied with the terms of s 38 of the 1987 Act, he had presented medical certificates (in form and content) as required by s 38A(2)(b) and was ready willing and able to accept suitable duties (at [88]). Mr Plummer’s counsel submitted that, when determining the quantum of entitlement to weekly benefits, the decision of Walker J in Aughterlony v Hydrotech Scientific Services Pty Ltd (1997) 15 NSWCCR 587 should be preferred to the view as expressed by Duck J in Eyeington v New England Leather Pty Limited 25 October 1996 (unreported) (at [89]).

Held: Order 1 revoked and replaced with an award for Mr Plummer from 18 December 2007 to 26 December 2007 for $1,342.50 per week under s 36; from 16 January 2008 to 31 March 2008 for $367.70 per week and from 1 April 2008 to 30 June 2008 for $374.90 per week under s 40; from 1 July 2008 to 6 July 2008 for $1,074 per week and from 7 July 2008 to 26 October 2008 for $1,116.48 per week under s 38.  Orders in respect of s 60 and costs were confirmed.

Injury

1. The evidence as a whole was reviewed to determine the correctness or otherwise of the Arbitrator’s finding that Mr Plummer suffered an injury in the course of his employment.

2. The weight of the evidence, on review, established that the Arbitrator’s conclusion concerning the question of causation was correct despite the errors made in the course of his reasoning identified by the appellant.

Section 9A

3. The issues raised by s 9A are questions of fact which require proper application of the provisions of the statute. The expression of opinion by a medical expert is only one aspect of the evidence to be taken into account in reaching the relevant factual conclusion (at [81]).

4. Observations made by Dr Anderson concerning the alteration of postural position whilst carrying out duties and the need for properly designed seating and lumbar support allowed an inference to be drawn that Mr Plummer’s work conditions may well have contributed to at least an aggravation of the lumbar spine abnormalities.

5. The Arbitrator’s ultimate conclusion concerning the argument raised as to substantial contributing factor was one that was open to him on the evidence as a whole and was correct (at [82]).

Weekly Benefits – s 37 and s 38

6. An abundance of evidence supported the Arbitrator’s conclusion that Mr Plummer was totally incapacitated between 18 December 2007 and 26 December 2007 and accordingly he was entitled to an award under s 37 of the 1987 Act during that period.

7. The Arbitrator’s conclusion as to the existence of partial incapacity between 16 January 2008 and 26 October 2008 was correct. The question was whether Mr Plummer was entitled to have his weekly entitlements quantified in accordance with s 38 during that period.

8. The precise area of dispute between the parties was whether the medical certificates pre-dating July 2008 were of such a character that the requirements of s 38A(2)(b) were satisfied. Section 38A(2)(b) must be read together with s 38(1)(a). Liability under s 38 arises upon proof of a worker’s compliance with the formal requirements of s 38A but only in circumstances where it is established that the partial incapacity addressed in the medical certificate arises as a result of an injury within the meaning of the 1987 Act or that the employer was otherwise aware, by reason of notice of injury or claim, of such injury.

9. The certificates relied upon had no reference to a relevant injury and did not contain a statement of how the injury occurred, a diagnosis or a statement as to whether Mr Plummer’s employment was a substantial contributing factor to the injury (see Appendix 1 to the Medical Practitioners Guide to WorkCover).

10. There can be no failure to provide suitable duties on the part of an employer who has no knowledge of the work injury. An obligation to provide suitable duties cannot be imposed retrospectively.

11. Mr Plummer was entitled to weekly compensation under s 40 for the period from 15 January 2008 to 20 June 2008 and was entitled to weekly compensation under s 38 for the period from 1 July 2008 to 26 October 2008.

Quantum of Weekly Benefits

12. For the purposes of s 36, the calculation of the current weekly wage rate, which requires the application of the provisions of s 42, is to include industry allowances as part of the ordinary rate (see Lismore City Council v Garland (1992) 26 NSWLR 542) (at [103]). Therefore, the Hunter Valley driver’s allowance and the loco driver’s allowance were to be taken into consideration when determining Mr Plummer’s current weekly wage rate.

13. Mr Plummer’s entitlement under s 40 was determined and calculated in accordance with the principles enunciated in Mitchell v Central West Area Health (1997) 14 NSWCCR 526 (at [104] to [106]).

14. The differing views of the proper construction of the provisions of s 38(3) expressed by Walker J in Aughterlony and Duck J in Eyeington were considered (at [108] and [109]). The reasoning in Eyeington did not expressly take into account the operation of s 40(8). Section 40(5) had no application to the period of partial incapacity for work as the incapacity during this period was treated as total incapacity (at [111]).

15. Given the operation of s 40(8), Mr Plummer’s entitlement under s 38 was determined by a literal application of the provisions of s 38(3) and he was entitled to 80% of his current weekly wage rate between 1 July 2008 and 26 October 2008.

Snaith Industries Pty Ltd v Kataieh [2010] NSWWCCPD 112

Weight of evidence, finding of total incapacity inconsistent with the evidence

Keating P

28 October 2010

Facts:

The worker, Mr Kataieh, was employed by the appellant, Snaith Industries Pty Ltd, initially as a material mixer and subsequently as a die-setter. His employment in both capacities involved heavy physical work, particularly involving both arms.

On 21 November 2008, he injured both arms whilst changing a container mould. He was off work until approximately April 2009, when he returned to work on light duties, with a lifting restriction and on restricted hours. After two weeks on suitable duties, he was unable to cope with the demands of the work and went off work again. He has not worked since. On 28 September 2009, his employment was terminated on the basis that the appellant could no longer provide suitable duties.

Mr Kataieh lodged an Application to Resolve a Dispute (the Application) in the Commission on 19 February 2010 claiming weekly compensation from 17 September 2009 to date and continuing for partial incapacity, lump sum compensation, and an order for the payment of medical expenses. The appellant denied compensation on the grounds specified in the s 74 notices (that medical evidence suggested that Mr Kataieh’s “current injuries are no longer related to your employment”). In addition, it alleged that Mr Kataieh had not suffered any permanent impairment and that there had been no failure on the part of the appellant to provide suitable work.

The Arbitrator found that Mr Kataieh was totally incapacitated but entered an award under section 38 of the 1987 Act. The Arbitrator relied on Moran Health Care Services v Woods [1997] NSWSC 147 (Moran) as authority for the proposition that a finding of total incapacity was sustainable, even where there was evidence of the worker’s capacity to undertake some work.

The appellant appealed the finding that the worker was totally incapacitated, and the award made under section 38, which was inconsistent with a finding of total incapacity.

Held: Decision revoked. Matter remitted to a new arbitrator.

1. On appeal the parties agreed that the Arbitrator was in error in finding that Mr Kataieh was totally incapacitated and that the evidence supported a finding of partial incapacity.

2. Section  352 required the President conduct a review of the Arbitrator’s decision to determine whether he reached the true and correct decision on the evidence before him (State Transit Authority of NSW v Chemler [2007] NSWCA 249; 5 DDCR (Chemler): Sapina v Coles Myer Pty Ltd [2009] NSWCA 71; 7 DDCR 54).

3. The Arbitrator’s reliance on the decision in Moran is also misplaced. The finding of total incapacity in that case was based on the unchallenged evidence of the worker and her treating doctors to the effect that the worker was unfit to return to any form of meaningful employment. The facts in Moran were distinguishable from the facts in the instant case, where the medical experts’ and the worker’s evidence overwhelmingly supported a finding of partial incapacity.

4. The finding of total incapacity was revoked on appeal. The medical evidence together with Mr Kataieh’s own evidence concerning his capacity for employment and his willingness to return to the workforce, was inconsistent with a finding of total incapacity. The finding of total incapacity was also inconsistent with the way the case was pleaded and run and with the orders sought by Mr Kataieh.

5. The Arbitrator’s order that payments of compensation be made to Mr Kataieh under s 38 was also inconsistent with a finding of total incapacity. Section 38 is concerned with the payment of compensation to partially incapacitated workers who are not suitably employed and are actively job-seeking.

6. Insufficient evidence in the appeal proceedings to determine whether Mr Kataieh had satisfied the provisions of ss 38, 38A and/or to assess the quantum of a s 40 award. Matter remitted to a different arbitrator to determine Mr Kataieh’s entitlement to compensation for partial incapacity.

Wang v KAS Australia Pty Limited [2010] NSWWCCPD 110

Section 4 of the Workers Compensation Act 1987, injury; partial incapacity; section 40(2)(b) of the Workers Compensation Act 1987, suitable employment

O’Grady DP

22 October 2010

Facts:

Mrs Wang (the appellant) was employed as a packer with KAS Australia Pty Limited (KAS).  In the course of her employment she sustained injury to both shoulders. It was undisputed that the injuries were caused by the nature of Mrs Wang’s duties between January 2004 and October 2006, as well as by three separate incidents in 2006 whilst in the course of her employment. A secondary psychological injury as a consequence of these physical injuries was also alleged.

Mrs Wang ceased work in October 2006 and was paid weekly compensation (at the relevant statutory maximum rate) and medical expenses. She has not returned to work since that time.

She was paid lump sum compensation pursuant to s 66 in respect of whole person impairment as assessed by an AMS in a MAC dated 7 August 2008.

In September 2009 Mrs Wang underwent a Capability Assessment arranged by KAS’s insurer and a report dated 23 September 2009 followed. A s 54 notice was given to Mrs Wang on 16 November 2009 advising that her weekly compensation payments were to be reduced to $114.48 per week from 28 December 2009. Mrs Wang disputed this decision and filed an Application in the Commission.

The Arbitrator awarded Mrs Wang weekly compensation pursuant to s 38 from 25 April 2008 to 27 December 2009 at the statutory rate for a single worker with one dependent child and pursuant to s 40 from 28 December 2010 (which should have been 28 December 2009) to date and continuing at the rate of $263.64.

On appeal, Mrs Wang asserted that the Arbitrator’s conclusions were against the weight of the evidence. In submissions Mrs Wang challenged numerous aspects of the Arbitrator’s reasoning and his factual conclusions.

Held: Order 1.1 amended to delete “s 38” and replace with “s 37”; Order 1.2 amended to delete “28/12/10” and replace with “28/12/09”; Orders 1.3, 2 and 3 confirmed.

1. On appeal complaint was made by Mrs Wang regarding the admission of a report by Dr Samuell, psychiatrist, qualified by KAS. The Arbitrator was correct in exercising discretion regarding the admission of this report.  Mrs Wang was not prejudiced by the admission of Dr Samuell’s report. She relied on her own expert psychological evidence.  KAS obtained Dr Samuell’s report at the earliest opportunity and no earlier service of the report could have been reasonably effected given the timeframe between her initial formal allegation of psychological injury giving rise to incapacity (which was first made in the Application filed in March 2010) and the commencement of the Arbitration on 9 June 2010 (at [75]).

2. In relation to the assessment of Mrs Wang’s functional capacity, Mrs Wang’s submission that the Arbitrator “had not paid attention to the practical realities of [Mrs Wang] in her injured condition, actually being able to get and keep a sedentary job” was rejected. Mrs Wang relied on the decision by Campbell JA in Ric Developments t/as Land Cove Pool Mart v Muir [2008] NSWCA 155 at [48]. The Arbitrator addressed the totality of the evidence and noted her “other valuable skills” but also considered the practical circumstances confronting Mrs Wang in returning to the workforce (at [80]). He correctly opined that Mrs Wang “could well manage to do computer-type work for 20 hours per week much as she is doing [sic] her TAFE course 17-18 hours a week”.

3. The evidence established that Mrs Wang suffered from a major depressive condition causally related to her physical injuries received in the course of her employment. The Arbitrator appeared to assess Mrs Wang’s ability to earn on the basis of her ability to perform manual work despite his finding that suitable duties would be “computer type work”. Despite this, and having regard to s 40(3) and s 43A, the Arbitrator’s findings regarding Mrs Wang’s ability to earn were open to him on the evidence (at [82]).

4. The Arbitrator did not err in the manner in which he assessed the psychological evidence. The Arbitrator accepted that Mrs Wang suffered from an ongoing psychiatric disorder but did not accept the opinions regarding the extent of incapacity expressed in Mrs Wang’s psychological evidence. This conclusion was open to the Arbitrator on the evidence as was his finding that she was not totally incapacitated at the time of the arbitration (at [83]).

NOTE: This decision was the subject of a reconsideration in Wang v KAS Australia Pty Limited (reconsideration) [2010] NSWWCCPD 119. The amendment of the Arbitrator’s order 1.1 was revoked and, by consent, replaced by an order for weekly compensation under s 38, for 12 months, thereafter under s 40.

Bhutta v RailCorp NSW [2010] NSWWCCPD 108

Causation; effects of head injury; role of AMS; incapacity; weekly payments

Candy ADP

7 October 2010

Facts:

On 16 August 2007 when the appellant, Mr Bhutta, was working for RailCorp NSW, cleaning a train carriage on a moving double-decker train, he fell backwards down the steps leading from the upper deck. He was initially diagnosed with soft tissue injury to the lower back and headaches. He subsequently complained of neck symptoms, and tinnitus, dizziness and hearing loss. Mr Bhutta has not returned to work.

RailCorp paid compensation on a provisional basis until 16 October 2007 when it denied further liability to make payments on the basis that Mr Bhutta had recovered from the effects of any injury.

Mr Bhutta filed two Applications in the Commission which were discontinued. In the Application on which he proceeded he claimed weekly compensation for total incapacity from 17 October 2007, medical expenses and lump sum compensation in respect of injury to his cervical, thoracic and lumbosacral spine, right arm, left leg and binaural hearing loss.

The Arbitrator recorded that Mr Bhutta discontinued the claims for the thoracic spine, right arm and left leg. She found that the claimed hearing loss, tinnitus and dizziness did not result from the injury of 16 August 2007. She also found that the worker was partially incapacitated as a result of his orthopedic injuries and made an award of weekly compensation under s 40 of the 1987 Act at the rate of $167.60 per week from 17 October 2007 to date and continuing. The matter was remitted to the Registrar for referral to an AMS for an assessment of the permanent impairment of the worker’s cervical and lumbar spines.

Mr Bhutta appealed challenging the Arbitrator’s finding that the hearing loss, dizziness and tinnus did not result from the injury and also challenging her finding on the extent of his incapacity.

Held: Arbitrator’s decision confirmed

1. Mr Bhutta submitted that pursuant s 326(1) only an AMS could determine the causal nexus of Mr Bhutta’s hearing loss and dizziness.  This submission is contrary to a number of the Commission’s authorities including Ooi v NEC Business Solutions Limited [2006] NSWWCCPD 131; (2006) 5 DDCR 461, Total Steel Australia Pty Limited v Waretini [2007] NSWWCCPD 33 and Peric v Chul Lee Hyuang Ho Shin Jong Lee and anor [2009] NSWWCCPD 47. Whether there is a causal connection between an injury and an impairment or loss is a matter for the Arbitrator to decide.

Hearing loss

2. Mr Bhutta first complained to his general practitioner of tinnitus in his left ear more than one year after the injury. He had made no complaint of hearing loss at the time of injury. The GP recorded a history of noisy employment.

3. He made no mention of hearing loss in his statement in January 2008. Two years later in his statement dated January 2010 he stated that he had suffered hearing loss since his fall.

4. The opinion of Dr Scoppa, the worker’s ENT specialist, that he had suffered cochlear damage in the fall and suffered traumatic hearing loss superimposed on prior mild industrial deafness was rejected. The other medical evidence that the worker’s hearing loss was not traumatic but due to prior occupational noise exposure was consistent with the audiogram performed and was the preferable view. [68]

5. The Arbitrator’s finding that the hearing loss was not caused by the work injury was upheld.

Tinnitus

6. The Arbitrator’s finding that Mr Bhutta failed to establish that his tinnitus was causally related to the fall was upheld.

7. There was no record of any complaint of tinnitus for over a year after the fall. He did not complain to the ambulance officers, hospital staff or his treating general practitioner in the period after the fall. Further, he did not complain of tinnitus in his first statement. The audiologist and the ear, nose and throat specialist, who were of the opinion the tinnitus was caused by the accident, relied on an incorrect history that Mr Bhutta had experienced constant tinnitus soon after the fall: [73].

Dizziness

8. Mr Bhutta complained to the ambulance officers and hospital staff of dizziness immediately after the fall. However, there was no further complaint of dizziness to any doctor until a complaint to Dr Scoppa in April 2009. Further, the testing suggested by Dr Scoppa in order to establish whether the organs of balance in the inner ears had been damaged was either not carried out or was not in evidence. Dr Scoppa’s suggestion that an alternative cause of the dizziness may have been the worker’s neck injury was not put to the Arbitrator, rather Mr Bhutta’s counsel relied on cochlear damage as the cause of Mr Bhutta’s dizziness. There was no objective evidence that there was cochlear damage: [74], [75]. The Arbitrator did not err in her finding that the worker’s dizziness was unrelated to the fall.

Incapacity

9. Taking account of all the medical evidence, the conclusion was that Mr Bhutta had suffered an aggravation of degenerative changes in his neck and low back and had relatively minor continuing symptoms from this aggravation.

10. The worker was fit for full-time work in another occupation as stated by the Arbitrator.  The Arbitrator’s assessment of work at $15 per hour for 40 hours a week was reasonable in light of the medical evidence.