Issue 4: April 2010

Yum Restaurants Australia Pty Ltd trading as Pizza Hut Restaurants v Watters [2010] NSWWCCPD 31

Personal injury on a journey; disease; ss 4 and 10 of the 1987 Act; application of Zickar v MGH Plastic Industries Pty Ltd [1996] HCA 31; (1996) 187 CLR 310

Roche DP

30 March 2010

Facts:

There was no dispute that Ms Watters was on a s10 journey walking to or from work on 17 March 2006 when she experienced sharp pain in her lower back. The question for determination was whether she received a “personal injury” on that journey.

The arbitrator found that Ms Watters suffered either an aggravation of degenerative changes and/or perhaps a disc protrusion, and also an injury to her ankles. The matter was remitted to the Registrar for referral to an AMS.

Held: Decision partly revoked. Matter remitted to Registrar for referral to AMS for assessment of lumbar spine only.

1. The expressions personal injury and disease injury are not mutually exclusive (Zickar v MGH Plastic Industries Pty Ltd [1996] HCA 31; (1996) 187 CLR 310 at 347), however, for the purposes of s10 there is a distinction. [65]

2. To establish a disease injury it is necessary that the disease be contracted in the course of the employment and to which the employment was a contributing factor (s4(b)(i)).  While on a journey, a worker will not normally be in the course of employment and employment will not be a contributing factor to a disease injury. Therefore, to succeed, Ms Watters had to establish that she received a sudden or identifiable pathological change (Armao v Ladue Holdings Pty Ltd t/as Pioneer Shirts and WorkCover Authority of NSW (1992) 8 NSWCCR 404; [1992] NSWCC 16). [72], [76]

3. The Arbitrator failed to answer the relevant question - whether the worker suffered a sudden or identifiable pathological change (a disc protrusion) on her journey. Although it is not always necessary for the Commission to determine the nature of an injury, it was crucial to do so in this case given the critical distinction between personal injury and disease injury. [79]

4. Whether Ms Watters experienced symptoms on her way to work or from work was not determinative. Of more importance were the radiological investigations and the correlation between those investigations and the worker’s symptoms. The MRI showed degeneration and disc protrusion at L5/S1 but medical opinions conflicted. The worker either experienced no more than episodic back pain, or she suffered a disc protrusion. Given the worker’s evidence that she had minimal back pain prior to 17 March 2006, it was accepted that she suffered a sudden identifiable pathological change, a personal injury, within the meaning of s10 on that day.

5. S10(1D) was only relevant if it could be established that “the personal injury resulted from the medical or other condition of the worker”, with the employer bearing the onus of proof (McGraw and Roads & Traffic Authority of New South Wales v Cormick [2007] NSWWCCPD 220 at [55]). There was no evidence that the worker was suffering from a medical or other condition so s10(1D) did not apply.

6. The worker failed to establish that she suffered a personal injury to her ankles, especially in light of her own evidence of no ankle pain whilst walking home. At best, she suffered an aggravation of degeneration changes (a disease injury). The Arbitrator erred in finding injury to the ankles on 17 March 2006.

Brewster v Proline Pumping Pty Limited [2010] NSWWCCPD 32

Section 67 of the 1987 Act; adequacy of reasons; alleged errors in fact finding.

Snell ADP

31 March 2010

Facts:

The worker was employed by Proline as a concrete pump linesman. On 10 July 2006, in the course of employment, he fell from the second floor of a building site and was taken to St Vincent’s Hospital. He suffered a fracture of his left thumb, injuries to the low back and right knee, fracture of the right foot, cuts and grazes to the head, puncture wound to the right thigh, blunt injury to the chest and abdomen and he also alleged a post-traumatic psychological condition.

Liability was accepted, and voluntary weekly benefits and medical expenses were paid.

The worker has since undergone surgery of the left thumb, arthroscopic surgery to the right knee and graft implantation to the right knee. His low back injury worsened with an MRI showing L4/5 disc protrusion and disc degeneration.

His s66 claim was referred to an AMS for assessment. S66 was settled as per the MAC finding of 13% WPI, based on permanent impairment of the back, left thumb and right knee only. The Arbitrator awarded one-third ($16,667) of the maximum payable under s67. The worker appealed the s67 award on the basis it was insufficient and the Arbitrator’s reasons were inadequate.

Held: Arbitrator’s Decision confirmed.

1. Compensation for pain and suffering is only available for pain and suffering that results from the impairment. It is necessary to distinguish between pain and suffering resulting from the impairment, as opposed to pain and suffering resulting from the injury but not from the impairment. [27]

2. The worker bears the onus of establishing pain and suffering, resulting from impairment and necessary treatment for it, rather than for “other effects of the injury” (NSW Police Service v Westling [2008] NSWWCCPD 99 (‘Westling’)) [38].

3. The worker’s submission that the arbitrator should have inferred, in the absence of specific evidence to the contrary, that his pain related stress and anxiety wholly resulted from injuries that caused permanent impairment inverts the onus. In addition, a number of other injuries were alleged that had the capacity to produce pain and suffering. It could not be inferred that pain and suffering resulted only from those injuries with permanent impairment.  [40], [43]

4. The only medical evidence that lent weight to the worker’s emotional problems resulting from the permanent impairment and necessary treatment was the GP’s report. However because the GP was unaware of the relevant prior history recorded at St Vincent’s hospital, his view on causation was deprived of weight (Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705). [41]

5. In the absence of more specific medical evidence going to causation of the psychological problems, and given the matters of prior history recorded by St Vincent’s hospital, Snell ADP was not satisfied that the “psychological impact” resulted from restrictions on the worker’s recreational activities and that it was secondary to the pain in his injured body parts with permanent impairment.

6. The matter was determined on the papers without an arbitration hearing and the description of the evidence, on the authorities, did not need to be lengthy or detailed. Whilst the Arbitrator did not refer to every item of evidence in the matter, he was also not obliged to. [57], [58]

7. An alleged error by the Arbitrator of slight misreferencing of the AMS finding of back pain involved a reading of the decision “minutely and finely with an eye keenly attuned to the perception of error” (Minister for Immigration and Ethnic Affairs v Liang [1996] HCA 6 (1996) 185 CLR 259). Nothing turned on the slight variation and if it was an error, it did not affect the outcome. [65]

8. As a general proposition, a need for, and preparedness to undergo, medical treatment, including surgical procedures and physiotherapy, is not necessarily indicative of pain and suffering, but objective factors in determining s67 “may include the type of surgical procedures undergone, the nature of the convalescent process and any complications.” (Commissioner Wright in Tyler v Marsden Industries (2001) 22 NSWCCR 644; cited with approval by Keating J in NSW Police Service v Snape [2009] NSWWCCPD 89), and Roche ADP (as he then was) (in Ilic v Aldus Engineering Pty Ltd [2006] NSWWCCPD 157). [72]

9. Section 67(3) requires that the award “shall be reasonably proportionate to the maximum amount having regard to the degree and duration of pain and suffering and the severity of the permanent impairment.” Quadriplegia may represent a most extreme case, but it is not the only example of a most extreme case (Westling). Determining quantum pursuant to s67 involves “in a sense, a value judgment” (Alvorac General Engineering Pty Limited v Arlotta (1993) 29 NSWLR 734 at 739A).

10. The worker correctly submitted that it is not necessary to demonstrate “error” for an appeal to succeed, so long as on review, it can be established that the arbitrator did not reach the true and correct decision (Sapina v Coles Myer Limited [2009] NSWCA 71). Following a review consistent with Sapina, Snell ADP confirmed the Arbitrator’s decision.

McCarthy v Department of Corrective Services [2010] NSWWCCPD 27

Psychological injury; s11A of the 1987 Act; whether the employer’s actions were actions taken with respect to performance appraisal, discipline and/or transfer; whether the employer’s actions were reasonable; whether the worker’s admitted psychological injury was wholly or predominantly caused by action taken or proposed to be taken with respect to discipline, performance appraisal and/or transfer; non compliance with s 74 of the1998 Act; issues in dispute; cause of incapacity; whether a dispute as to cause of incapacity must be particularised

Roche DP

22 March 2010

Facts:

Ms McCarthy worked as a probation and parole officer with the Department of Corrective Services. She alleged sustaining a psychological injury (adjustment disorder with anxiety) as a result of being overworked and unfairly treated in the course of her employment from 1 June 2006 to 17 December 2007. She alleged a culmination of issues including being overworked and unable to manage her caseload, being mistreated, requesting and being refused a transfer to another office, leading up to an incident on 17 December 2007 when she remarked she hoped her manager’s illness was terminal. Prior to returning from pre-arranged leave on 20 January 2008, she was advised on 17 January 2008 that the Department intended to investigate the incident on 17 December 2007. Ms McCarthy was distressed at the news and did not return to work.

The s74 notice disputed liability for the claim on the ground that the psychological injury (which it admitted) had been wholly or predominantly caused by reasonable action taken, or proposed to be taken, by or on behalf of the employer with respect to all eight matters as listed in s11A, without identifying the ground or grounds upon which it relied and the factual circumstances alleged to support those grounds.

The s11A defence (discipline, transfer etc) was not properly particularised until the day of the arbitration.

The Arbitrator found in favour of the Department on the grounds that any psychological injury had resolved or was caused by the reasonable actions by the employer with respect to discipline, being the whole or predominant cause of injury.

At the appeal hearing, the Department sought to dispute that any incapacity was due to an injury related to work. This was a “nexus” or “causation” issue not particularised in the s74 notice or Reply.

Held: Arbitrator’s decision revoked. The worker was awarded weekly compensation from 20 January 2008.

1. Insurers were again reminded of the need for s74 notices to properly particularize the basis of the dispute under s74.

2. The Department’s application for leave to amend the Reply to raise the new issue of causation of incapacity was refused. It was not raised in the s74 notice, the Reply, nor at the arbitration hearing. Allowing the issue would be prejudicial to Ms McCarthy who was entitled to assume only s11A was in dispute.

3. However, if Roche DP was wrong to refuse leave, the overwhelming weight of the medical evidence was that Ms McCarthy was unfit for work as a result of the cumulative effect of work events. Notwithstanding some shortcomings in the history of some medical reports, they provided a “fair climate” for acceptance of their conclusions (Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 at 509-510).

4. At best for the Department, there were multiple causes for Ms McCarthy’s incapacity. However that didn’t prevent her from recovering compensation. It is trite law that a loss can result from more than one cause (ACQ Pty Ltd v Cook [2009] HCA 28 at [25] and [27]; (2009) 83 ALJR 986).

5. The Department carries the onus of proof in establishing a defence under s11A (Ritchie v Department of Community Services [1998] NSWCC 40; (1998) 16 NSWCCR 727; Department of Education and Training v Sinclair (2005) 4 DDCR 206; [2005] NSWCA 465). [154]

6. The actions taken, or proposed to be taken, by the Department with respect to performance appraisal and transfer were reasonable. The Department addressed Ms McCarthy’s performance in a reasonable and appropriate manner, and the refusal to transfer her to another office was also reasonable.

7. Handley ADP in Ponnan v George Weston Foods Ltd [2007] NSWWCCPD 92 considered the meaning of “predominantly caused” and applied the dictionary meaning of “mainly or principally caused”. Whilst the performance appraisal and decision not to transfer Ms McCarthy were distressing to her and were both factors that contributed to her injury, the Department called no persuasive evidence that either performance appraisal or transfer was the whole or predominant cause of injury. The s11A defence failed.

Griffin v Qantas Airways Ltd [2010] NSWWCCPD 22

Psychological injury; causation; aggravation, acceleration and exacerbation of disease; delay in giving notice of claim; ignorance; serious and permanent disablement; section 261 of the 1998 Act; incapacity

Roche DP

8 March 2010

Facts:

In August 1979, Mr Griffin, a Qantas pilot, was due for his 6-month licence renewal as a first officer on a Boeing 747. That required a “check captain” to conduct an in-flight check of safety procedures which occurred without incident on a flight from Singapore to Perth. On the return flight from Perth to Singapore, Mr Griffin rehearsed emergency procedures in his head and whilst going over a procedure in his mind his hand involuntarily moved towards the start levers and he had to forcibly restrain himself from acting upon the compulsion to move the lever.

He reported the incident to Qantas and was declared fit to fly by several Qantas appointed doctors. He continued to fly for Qantas with increasing levels of anxiety until he resigned on 16 May 1982. Since then he has not flown commercial aircraft and has been unsuccessful with attempts at new businesses and employment.

Mr Griffin was unaware he had received a possible work injury until he received advice from a barrister in November 2002. However he did not make a claim for compensation until 23 July 2008, following advice from Comcare that Qantas was self-insured and to seek compensation under state workers compensation law.

Qantas denied liability on the grounds that Mr Griffin had not suffered an injury, that he was not incapacitated and that he failed to claim compensation within the time prescribed (6 months) under the legislation.

The Arbitrator found in favour of Qantas on the basis that Mr Griffin suffered from constitutionally based obsessive compulsive disorder that had not been caused, or contributed to, by his employment at Qantas.

The appeal essentially came down to a dispute between the evidence of two qualified psychiatrists and to an acceptance or rejection of Mr Griffin’s reliability and credibility.

Held: Arbitrator’s decision revoked. The employer to pay the worker weekly compensation from September 1979 to September 1999.

1. Given that it was accepted that Mr Griffin had anxiety symptoms before August 1979, and the concession by his qualified psychiatrist that employment did not cause the disorder, to succeed Mr Griffin had to establish that he suffered an injury in the nature of an aggravation, acceleration, exacerbation or deterioration of a disease (s4(b)(ii)).

2. S9A was not introduced until 12 January 1997 and has no retrospective effect, therefore Mr Griffin did not have to establish that his employment was a substantial contributing factor, only that it was a contributing factor, to the aggravation, acceleration or deterioration. [188]

3. A psychological disorder, such as obsessive compulsive disorder, is a disease under the legislation (Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; 110 CLR 626; Rail Corporation New South Wales v Hunt [2009] NSWWCCPD 114).

4. It was accepted that the flights from Singapore to Perth to Singapore involved a degree of stress due to the presence of the check captain. A worker’s perception of an event will naturally involve his or her subjective assessment of the particular event or situation. So even if the level of stress was mainly a matter of perception by Mr Griffin, a “perception of real events, which are not external, can satisfy the test of causation” (The State Transit Authority of NSW v Fritzi Chemler [2007] NSWCA 249; (2007) 5 DDCR 286 at [54] (‘Chemler’)).

5. Qantas’ qualified psychiatrist emphasised that supervision is a normal part of continuing employment and promotion. However this fact does not prevent supervision (the presence of a check captain) being a contributing factor to an injury. It was not necessary to establish that stressors would have precipitated an illness in a “reasonable person”. The reasonableness of a worker is not an issue. Employers must take their employees as they find them (Chemler at [40]).

6. The obsessive compulsive symptoms Mr Griffin experienced on 29 August 1979 had a causal nexus with Mr Griffin’s duties as a pilot at the time. The rehearsing of emergency procedures in his head were a necessary part of his employment and not external events. The symptoms were an obvious point in the development of the disorder so as to constitute an aggravation, acceleration and exacerbation of the condition to which employment was a contributing factor.

7. The evidence overwhelmingly pointed to the deterioration of Mr Griffin’s obsessive compulsive disorder and anxiety symptoms between November 1979 and November 1981 due to a continuation of flying duties for Qantas. The conclusion that Mr Griffin never recovered from the effects of the work aggravation was supported by the demise of his business interests and inability to obtain and retain employment since resigning from Qantas in 1982.

8. Qantas’ medical evidence that any aggravation of an underlying constitutional disorder would have resulted in a maximum 12-week exacerbation was inconsistent with Mr Griffin’s evidence that he has had significant continuing symptoms ever since August 1979 and with evidence of further medical treatment in 1983. The doctor’s conclusion that suboptimal treatment arising from the injury also contributed to any exacerbation could only be treated as a novus actus if the treatment was inexcusably bad (Mahony v J Kruschich (Demolitions) Pty Ltd [1985] HCA 37; (1985) 156 CLR 522). Therefore to the extent that continuing symptoms resulted from poor treatment, they have also resulted from the injury.

9. Although Mr Griffin became aware in 2002 that he had a right to make a claim, he was not advised of the time limits in s261 of the 1998 Act. Roche DP was satisfied that the failure to make a claim within the required period was due to ignorance.

10. Due to the fact the claim was made more than 3 years after becoming aware he had received an injury, it was necessary to establish that the injury resulted in “serious and permanent disablement” (Broken Hill Proprietary Company Ltd v Kuhna (1992) 8 NSWCCR 401, Gregson v L & M Dimasi Pty Ltd [2000] NSWCC 47; (2000) 20 NSWCCR 520). The evidence established that Mr Griffin’s injury was serious and resulted in permanent disablement that prevented him from continuing as a pilot or engaging in any higher-level technical work.

11. Mr Griffin suffered no other injuries after leaving Qantas and, although his symptoms fluctuated over time, that did not detract from the fact that he never recovered from the injury he received with Qantas. The common sense evaluation of the causal chain led to the conclusion that Mr Griffin’s incapacity resulted from his injury.  Even if it were the case that other factors contributed to his incapacity, it is settled law that “incapacity may result from a work injury even though the…incapacity also results from a later, non-employment cause” (Calman v Commissioner of Police [1999] HCA 60 at [38]; (1999) 73 ALJR 1609; Conkey & Sons Ltd v Miller (1977) 51 ALJR 583 at 585).

12. Mr Griffin’s compensation claim was for two separate periods. He was awarded $961.50 per week (being the agreed current weekly wage rate) based on total incapacity for the period 10 September 1979 to 6 November 1979. The other period was from 19 May 1982 to 6 September 1999, determined under s11 of the 1926 Act (see Sch 6 Part 4 of the 1987 Act), which is substantially in the same terms as s40 of the 1987 Act.

Southern Cross Care (NSW & ACT) Incorporated v Esmaeili [2010] NSWWCCPD 25

Injury; causation

Roche DP

15 March 2010

Facts:

Ms Esmaeili’s work duties required her to care for aged residents at the appellant employer’s care facility. She alleged experiencing back pain from late February or early March 2007, to the point where she could not work on 29 and 30 April 2007 due to extreme back pain. She consulted her GP on 1 May 2007. When she informed her supervisor, Ms Allison, of her back problem she was alleged to have been forced to sign a resignation letter effective from 1 May 2007.

The ARD claimed weekly compensation from 30 April 2007 to date and continuing and ss66/67 compensation as a result of a back injury caused while performing usual duties between November 2006 and April 2007.

Liability was disputed on the ground that Ms Esmaeili did not suffer an injury. Ms Allison’s statement alleged that she was told by the worker that she had a sore foot and abdominal pain, possibly requiring appendix surgery, and that the worker did not mention a work injury to her on 1 May 2007. Ms Allison did not mention the resignation letter.

The Arbitrator found that Ms Esmaeili received an injury to her back, being the exacerbation or aggravation of a lumbar disc disease, with a deemed date of injury of 18 February 2007. The employer was ordered to pay s60s and weekly benefits based on total incapacity from 30 April 2007 to date and continuing. The claim for lump sum compensation was remitted to the Registrar for referral to an AMS.

On appeal the employer argued that there was a delay in attributing the back complaints to work, that the worker’s statement and evidence were unreliable and that a Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 inference should be drawn by the GP’s failure to provide a report explaining the delay in attributing cause.

Held: Arbitrator’s finding of exacerbation or aggravation of a disease with deemed date of injury of 18 February 2007 revoked, replaced with finding of injury due to duties in the course of employment between February 2007 and 29 April 2007. Matter otherwise confirmed.

1. The lack of reference in the GPs notes on 1 May 2007 to work being a cause of complaints was not decisive as he did not find any other cause of her back complaints. The overwhelming inference was that the complaints were caused by work duties.

2. Given that the worker complained of back pain to her GP on 1 May 2007 and there was no mention of abdominal pain in the GP’s notes, Ms Esmaeili’s version would more likely be correct than Ms Allison’s.

3. The resignation letter was of limited relevance to the issues of injury and causation, but it showed a consistency in the worker’s evidence.

4. It is preferable that a witness statement, where English is not the first language, be translated and signed by an accredited interpreter. Although this was not done in this case, Ms Esmaeili’s evidence was consistent and corroborated by the GP’s notes and therefore reliable.

5. The worker’s account of her work duties was also consistent with that recorded in the reports of the GP and orthopaedic specialist, and with what one would expect of a role involving care for the aged and infirm.

6. The employer’s qualified specialist conceded that an injury could have occurred but even without reliance on this concession, the worker had discharged the onus of proof.

7. The GP was not required to explain the alleged delay in linking back symptoms to work and whether he recorded that link on 1 May or 18 May was irrelevant. A Jones v Dunkel inference could not be drawn from the absence of a report by the GP explaining the delay.

8. There was no medical evidence that Ms Esmaeli’s duties aggravated or exacerbated degenerative changes in her lumbar spine and the Arbitrator erred in making a finding that it did. Given that her symptoms did not develop until late February or early March 2007, the proper finding was that she injured her lumbar spine as a result of bending and lifting in the course of her employment between February 2007 and 29 April 2007.

9. A finding of incapacity requires an application of a legal standard to the facts found.  The decision-maker must be satisfied, on the balance of probabilities, having regard to the whole of the evidence that, as a result of the work injury, the worker has an incapacity in the labour market reasonably accessible to him or her.  The medical evidence is an important (often critical) part of the evidence on that issue, but it is not the only evidence that is relevant to the determination.

Manojlovic v Astro Group Management Pty Limited [2010] NSWWCCPD 21

Weight of evidence, expert evidence, and Makita (Australia) v Sprowles [2001] NSWCA 305

Keating P

4 March 2010

Facts:

Mrs Manojlovic worked fulltime as a cleaner for the respondent and also worked part-time as a cleaner at the University of Western Sydney.

On 8 December 2008 whilst mopping Mrs Manojlovic slipped on the wet floor. Both her legs went from under her and she fell heavily injuring her head, neck, back, and both shoulders. In addition, she also alleged she developed a secondary psychological injury. She has not returned to work since the accident. Liability was initially accepted but later disputed, primarily on the basis that she had recovered from the injuries.

Mrs Manojlovic brought proceedings in the Commission claiming weekly compensation and medical expenses from 3 April 2009 to date and continuing.

The arbitrator made an award for the Respondent, essentially finding that Mrs Manojlovic had recovered from the effects of the work injury in about April 2009 and/or the injuries from which she suffered were not incapacitating her. She concluded that the injuries to the worker’s neck and back were soft tissue injuries/ aggravation of degenerative changes in her lumbar and cervical spine which had resolved to the extent that she was no longer incapacitated by them.

The arbitrator placed little or no weight on the worker’s medical experts’ opinions and treating doctors’ opinions because:

• Dr Bodel and Dr Giblin were not provided with a history of a previous, non-work related, motor vehicle accident, which appears to have occurred in March 2000 (as recorded in the GP’s clinical notes).
• Dr Bodel failed to explain how the rotator cuff pathology arose as a consequence of the injuries sustained. His report was “manifestly deficient” and failed to meet the requisite standard as discussed in Makita (Australia) v Sprowles [2001] NSWCA 305 (‘Makita’).
• Dr Todorovic (GP) did not form an independent view in relation to incapacity but merely reflected the worker’s own views.
• The arbitrator found that there was evidence of “significant difficulties” with the employer prior to the fall. Based on the absence of a history of prior employment difficulties the Arbitrator rejected the psychiatric evidence on Makita grounds, finding that the psychological condition was not causally related to the work injury.

Held: Arbitrator’s decision revoked- award for the worker for total incapacity

1. Applying Makita and Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 (‘Paric’) the President found the arbitrator erred in concluding that the reports failed to meet the standard required.

2. The doctors’ failure to take into account the history of the earlier complaints of neck and back pain was not fatal to the acceptance of their opinions because:

• the entry in the GP’s notes in 2008 is the only evidence of pre-existing neck and back complaints. Although the GP’s complete file of clinical notes was produced pursuant to a Direction for Production, only selected extracts from the notes commencing with the note in March 2008 were relied on.  The inference drawn was there was no evidence of complaints of neck or back symptoms prior to, or subsequent to, the entry in March 2008;
• after the complaint of neck and back pain earlier in 2008, Mrs Manojlovic continued to undertake heavy physical work of a cleaner in both her  fulltime position with the respondent and part-time with the University without complaint, and
• notwithstanding that the history recorded by the doctors did not accord with complete precision with the facts proven, it was sufficiently like the facts proven to render the doctor’s opinion admissible and material (Paric).

3. In respect of the shoulders, Dr Bodel’s diagnosis was clearly explained by the physical findings supported by the radiological investigations. There was ample evidence to support conclusions concerning the development of rotator cuff pathology in both shoulders.

4. The arbitrator also erred as a result of failing to properly apply the Makita principles when she rejected the evidence of the worker’s qualified psychiatrist in relation to the psychological injury and in preferring the opinion of the treating doctor and on the issue of incapacity.

NSW Police Force v P [2010] NSWWCCPD 26

Psychological injury; ss 4, 9A and 11A of the 1987 Act; adequacy of reasons.

Moore ADP

15 March 2010

Facts:

Ms P commenced employment with the Police Force in May 1988. In 1994 she was involved in the investigation of the Jannali bushfires which caused her considerable distress. As a result of her efforts she was awarded the Commissioner’s Valour Award for bravery which she wore on the right side of her uniform. She was wrongly castigated by other officers for not wearing it on the left side and this caused her further distress. In June 1994 she was the victim of a violent assault. She sought medical treatment and was certified unfit for work in June 1995. On her return to work in July 1995 she performed administrative duties but investigation into her leave entitlements caused her condition to relapse. In August 1996 she was again put off work.

GIO accepted liability for the time off work in 1995 and 1996. Ms P continued to have treatment for depression and anxiety with ongoing symptoms. In January 2006 Allianz took over as insurer of the Police Force.

Ms P commenced maternity leave in March 2007. Whilst on leave, an Allianz claims officer contacted her to discuss why she had ongoing psychiatric treatment and when she intended to return to work. Ms P alleged the claims officer was sarcastic which she found distressing.  She was later advised she had been overpaid and that there were anomalies in her leave entitlements. She was seen by Allianz’s qualified psychiatrist, then based on his report, Allianz declined liability from 17 January 2008.

Ms P’s ARD sought weekly benefits from 17 January 2008 and s60s, with a  nominated date of injury of “1994” for a major depressive disorder and anxiety.

The Arbitrator found in favour of Ms P and awarded s40 payments from 17 January 2008 to date and continuing.

Held: Decision confirmed.

1. The evidence was that the several incidents caused the existing injury to deteriorate such that Ms P’s incapacity can be said to “result from” the initial injuries. Ms P’s condition was “rumbling”, brought forward by cues or triggers. The worker had weekly psychiatric treatment for at least a year prior to maternity leave, indicating she was in “maintenance mode”, not remission.

2. The injury occurred in the course of employment, falling within the definition of ‘injury’ in s4(b)(i) of the 1987 Act, in line with Calnan v Commissioner of Police [1999] HCA 60.

3. The phone call from Allianz was directly related to matters arising from the injury. The consequences of that call resulted in an increase in the symptoms associated with the injury. The injury, PTSD and Major Depression, arose out of and in the course of employment, and there was ample evidence to conclude that the employment was a substantial contributing factor to that injury.

4. Even if the injury was to be construed as an ‘aggravation’ as found by the Arbitrator, employment was still a substantial contributing factor to any such aggravation. The ‘aggravation’ arose in circumstances connected with the primary condition, ie the phone call from the insurer.

5. Because Ms P’s ‘injury’ was one which fell into the category of s4(b)(ii), ie PTSD consequent upon earlier events, it followed that the injury could not be said to be one that was wholly or predominantly caused by reasonable action taken by, or on behalf of, the employer with respect to the provision of employee benefits.

6. Even if s11A was considered, the appellant would not succeed. The question of whether the action was reasonable is one of fact involving an objective test relevant to the circumstances of each particular case (Commissioner of Police v Minahan [2003] NSWCA 239). Given Ms P’s well documented psychiatric history, particularly her psychiatrist’s concerns that she was vulnerable to relapse if placed under stress, the actions of the insurer were unfair and a reasonable observer would have found the action unreasonable.

7. The Arbitrator’s reasons in relation to the s11A issue were insufficient and failed to satisfy the test in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247. However, because of the findings on “injury”, the impact of s11A was of no consequence and the Arbitrator’s conclusions on s11A were correct, notwithstanding the failure to provide sufficient reasons.

Roads and Traffic Authority of New South Wales v Harwood [2010] NSWWCCPD 24

Leave to appeal; s352(2) threshold, compensation at issue on appeal; s60 of the 1987 Act and application of Widdup v Hamilton [2006] NSWWCCPD 258

Keating P

11 March 2010

Facts:

Mr Harwood alleged injury to his neck and right arm when he lifted a 45kg gas cylinder. His treating neurosurgeon recommended he undergo spinal surgery. The employer declined liability on the basis of s9A, that the worker’s condition was due to pre-existing degenerative changes and not related to the work injury, which was a temporary aggravation only.

Mr Harwood brought a claim in the Commission for the payment of medical expense. He particularised $1,553.35 incurred expenses and a figure for $17,305.40 for future cervical laminectomy.

The arbitrator found that Mr Harwood suffered a work injury and that his employment was a substantial contributing factor and ordered the employer pay all reasonable and necessary medical expenses under s60.

The RTA sought leave to appeal.

Held: leave to appeal refused – monetary threshold under s352(2) not met.

1. Unlike the former Compensation Court of NSW, this Commission is not a court (Orellana-Fuentes v Standard Knitting Mill Pty Limited & Another [2003] NSWCA 146: (2003) 57 NSWLR 282), and as such it does not possess an inherent jurisdiction but only has such powers, as are incidental and necessary to the exercise of its statutory function.

2. NSW Sugar Milling Co-Operative Ltd v Manning (1998) 44 NSWLR 442;(1998) 16 NSWCCR 606 is binding authority that s60 is an indemnity provision.

3. Consistent with the reasoning in Manning and Widdup v Hamilton [2006] NSWWCCPD 258, s60 is an indemnity provision which may only be invoked in respect of claims for medical expenses as and when those costs are incurred.

4. The jurisdiction of this Commission may only be invoked when a dispute arises or there is a failure to determine a claim for such expenses in accordance with ss 288 and 289(2) of the 1998 Act.

5. No justification for the inclusion of the cost of anticipated medical expenses for the purposes of consideration of the leave issues when the Commission has no jurisdiction to give any final relief in respect of those expenses.

6. The claim in respect of the costs of anticipated surgery could not be taken into consideration in determining whether s352(2) has been satisfied.

Djuric v Kia Ceilings Pty Ltd [2010] NSWWCCPD 20

(On appeal to Court of Appeal)

Deemed worker - Schedule 1 clause 2 of the 1998 Act

Candy ADP

3 March 2010

Facts:

Mr Djuric commenced contract work as a gyprocker for Kia Ceilings Pty Ltd (‘Kia’) in early 2007. Two weeks into performing work for Kia, he began experiencing back pain on 26 April 2007 and, as a result, stopped working for Kia on 9 July 2007. He had not resumed work since then.

Mr Djuric sought weekly compensation and medical expenses. Kia denied liability on the basis that Mr Djuric was not a worker or a deemed worker.

Mr Djuric conceded that he was not a worker within the definition in section 4 of the 1998 Act, but argued that he was a contractor and therefore a deemed worker pursuant to the amendment to Schedule 1 clause 2 of the 1998 Act, which took effect on 1 January 2006.

The Arbitrator rejected the argument that the amendment to the provisions of the clause should be read disjunctively. Relying on Mr Djuric’s concession that he would not have been a deemed worker under Schedule 1 clause 2 of the 1998 Act prior to 1 January 2006, the Arbitrator declined to order an award in his favour.

On Mr Djuric’s application, and in the absence of any response from Kia, Candy ADP granted leave to hold an oral hearing.

On appeal, Mr Djuric conceded that the submissions made to the arbitrator regarding Schedule 1 clause 2 were incorrect, and raised a new argument on the construction of Schedule 1 clause 2 set out in Scerri v Cahill & Anor (1997) 14 NSWCCR 389. Over the objection of Kia, Mr Djuric was allowed to press this argument on appeal although he had not done so at the arbitration because it raised a question of law and the factual evidence relied on by Kia to meet this was already in evidence. Kia had come to the arbitration ready to meet the claim that Mr Djuric was a deemed worker in the broader sense without reference to the limited argument relied on, unsuccessfully, at the arbitration.

Held: Arbitrator’s decision confirmed.

1. Mr Djuric failed to discharge his onus of proving that he was not carrying on a trade or business regularly in his own name at the time of the injury despite the following:

• he was provided accommodation by Kia;
• he used Kia’s tools as well as his own;
• the rate per metre for the wall cladding he installed was fixed by Kia, and
• he wore some clothes provided by Kia or a head contractor.

2. These facts might have supported a submission that Mr Djuric was employed under a contract of service rather than for services, however no such submission was made.

3. Candy ADP accepted Kia’s more persuasive submissions that Mr Djuric was carrying on a business because:

• the substantial business deductions shown in Mr Djuric’s tax returns indicated that he was carrying on a trade or business;
• Mr Djuric contracted successively for and with a number of principals;
• Mr Djuric was able to and did re-negotiate the basis of payments with Kia;
• he could have hired other workers to assist him but chose not to, and
• he was free to work the hours he wished.

4. The facts of the case were distinguished from Pasqua v Morelli Constructions Pty Ltd [2009] NSWWCCPD 153 on the basis that Mr Djuric did not have a “special or particular” relationship with Kia despite having worked for it on previous occasions. The fact that Mr Djuric did not advertise for work but relied on word-of-mouth contacts did not mean that he was not carrying on a trade or business.

5. Mr Djuric’s trade or business was best described as gyprocking and it was while carrying on this work that he was injured. Accordingly, the work he did for Kia was not “outside the scope or course of that trade or business” (see Humberstone v Northern Timber Mills [1949] HCA 49; (1949) 79 CLR 389).

6. The work performed by Mr Djuric for Kia was not the trade or business but was part of or incidental to that trade or business. This fact was in line with the test set down by Mahoney JA in Davis v Pioneer Concrete (NSW) Pty Ltd [1976] 1 NSWLR 562.

7. The arbitration was conducted on the basis that, but for the particular construction of Schedule 1 clause 2 advanced by him, Mr Djuric would fail in establishing that he was a deemed worker. In rejecting that construction, the Arbitrator made a finding which was inevitable and for which she was under no obligation to give further reasons. Nor was there any error in her finding what had been conceded, that the work for Kia was incidental to a trade or business regularly carried on by Mr Djuric.

Bakshi v Wilson Security Pty Limited [2010] NSWWCCPD 28

Injury; evidence not considered

Roche DP

22 March 2010

Facts:

Mr Bakshi, security guard for Wilson, alleged that at about 11.30pm on 23 May 2009 whilst working outside a Woolworths store, he slipped on a wet floor and injured his back and left leg. He alleged he reported the injury to the Woolworth’s duty manager at about 11.55pm and recorded the incident in an activity log the same evening.

Mr Bakshi claimed weekly compensation from 23 May 2009 to date and continuing and s60 expenses. His evidence consisted of his own statements and:

• copy of pages from an unidentified notebook containing an entry for 23 May 2009, in Mr Bakshi’s handwriting;
• “Wilson Activity Log” with various entries from 2000hr to 2400hr on 23 May 2009;
• a Security Incident Report dated 23 May 2009 seemingly completed by Mr Bakshi who described a “back pain injury due to slip”;
• medical certificate dated 25 May 2009 referring to the worker suffering back pain;
• an undated, unsigned document titled “Wilson Register of Injuries, incidents and near misses” describing the incident as occurring at 2330hr injuring the left leg, and
• two statements by a liquor store employee, Mr Bubnij, that Mr Bakshi had complained to him about pain in the left leg due to slipping on wet floor on 23 May 2009.

The employer denied liability and led evidence from the duty manager that he ceased work at 7.30pm on 23 May 2009. Other evidence included:

• statement by Mr Phillips, NSW operations manager for Wilson, who claimed Mr Bakshi was on a work performance management program due to shopping while he should have been performing duties as a security guard. He also alleged the logbook entries were forged by Mr Bakshi;
• CCTV footage from 23 May 2009 showing Mr Bakshi apparently complaining to an employee in the liquor store and rubbing his hand up and down his leg but with no footage of him slipping, and
• statement by the cleaner denying that he cleaned the area near Woolworths before the store closed at midnight on 23 May 2009.

The Arbitrator found in favour of the Respondent. The Arbitrator said there was no contemporaneous evidence of the slipping incident and a fundamental flaw was the duty manager’s denial of working past 7.30pm on 23 May 2009. If he was not on duty, there was no reason for Mr Bakshi to record an entry in the logbook that he had reported the incident to the duty manager, or such entry was fraudulent.

Held: Decision revoked. Remitted to another Arbitrator for re-determination.

1.  Contemporaneous evidence existed in the form of Mr Bubnij’s statement corroborating Mr Bakshi’s evidence as to the circumstances of the slip and the nature of the pain as a result of the slip. Their exchange was on CCTV footage.

2. The Arbitrator failed to refer to one of Mr Bubnij’s statements. That evidence went to the critical issues of whether the worker reported the incident on the evening the slip was said to have occurred and whether it happened as a result of the cleaning activities at the centre leaving the floor wet.

3. The Arbitrator failed to refer to the Security Incident Report. If it was completed by Mr Bakshi on the evening of the alleged incident then that would be a contemporaneous written report of injury consistent with Mr Bakshi’s evidence.

4. The matter was remitted to another Arbitrator for re-determination.

Other matters

Wilson submitted on appeal that Mr Bakshi’s failure to cross-examine certain witnesses meant that their evidence should be accepted. A failure to cross-examine in the Commission, where cross-examination is only allowed with leave, does not mean that the evidence from the witness not cross-examined must be accepted (Quadi v the Reject Shop (Aust) Pty Ltd [2008] NSWWCCPD 3 [56] to [63]).  What is required is an analysis of the “contemporary materials, objectively established facts and the apparent logic of events” (Fox v Percy [2003] HCA 22 at [31], (2003) 214 CLR 118).

Roads & Traffic Authority of NSW v Zattin [2010] NSWWCCPD 29

S40 of the 1987 Act; Ability to earn; Probable earnings but for injury; Exercise of discretion

O’Grady DP

22 March 2010

Facts:

Mr Zattin commenced employment with the RTA as a driver/tester in May 2006. He was placed on a secondment transfer to the employer’s Dubbo office as an accounts officer for a fixed period from June 2007 to December 2007. The fixed period was deemed a trial period, after which he would be offered permanent appointment to the position.

On 19 November 2007 Mr Zattin injured his right knee when he tripped and fell to the ground walking in a council car park. The RTA accepted liability and paid weekly benefits.

The RTA terminated Mr Zattin’s employment on 22 January 2008, following performance issues which were raised as early as April 2007. The RTA however continued to make weekly compensation payments up to 21 July 2009.  When the RTA became aware that Mr Zattin had commenced work with another employer, it issued notices under ss54 and 74 terminating weekly compensation payments.

Mr Zattin lodged an ARD claiming weekly compensation for injury to the right leg and aggravation of a pre-existing depressive illness.

The Arbitrator found Mr Zattin partially incapacitated as a result of the injury and awarded s40 from 22 July 2009 to date and continuing.

The RTA appealed, alleging error in determination of probable earnings, failing to exercise the s40 discretion to reduce the quantum of weekly compensation entitlements, and in failing to provide adequate reasons for refusing to exercise such discretion.

Held: Arbitrator’s decision partly confirmed –s40 award increased to reflect agreement on the amount of probable earnings

1. In determining Mr Zattin’s probable earnings, the Arbitrator relied on an erroneous submission made by the RTA in the substantive proceedings and failed to refer to the amount of probable earnings reflected in the ARD as agreed by the parties. The Arbitrator therefore erred in determining that Mr Zattin’s probable earnings were for an amount less than that agreed by the parties.

2. The Arbitrator was correct in concluding that the worker’s ability to earn should be based on a determination of the average weekly amount, which the worker would be able to earn in some suitable employment from time to time, and not on the basis of isolated incidents of higher earnings.

3. The Deputy President accepted Mr Zattin’s submission on appeal that the circumstances surrounding the termination of his employment were not relevant to the question as to whether or not the discretion under s40 should be exercised.

4. Whilst the Deputy President accepted the RTA’s submission that the Arbitrator failed to give adequate reasons for his declining to exercise the discretion under s40, the Arbitrator’s refusal to exercise the discretion was upheld because there was no evidence on which to exercise the discretion under s40.

Tramontini v R & K Davies Pty Ltd  [2010] NSWWCCPD 30

Section 4 of 1987 Act; causation; weight of evidence

O’Grady DP

25 March 2010

Facts:

Mr Tramontini was employed as a panel beater by the Respondent from 1993 until 2002. He claimed that, as a consequence of a fall while carrying a car seat in the course of his employment in 2002, he sustained injuries to the neck, right shoulder and back.  He ceased work but remained in receipt of weekly benefits.

In 2005, Mr Tramontini made a claim (matter no. 8470 of 2005) under s66. The AMS assessed 9% WPI ( for the neck, back and right shoulder). This was upheld by the Medical Appeal Panel. Mr Tramontini received an award in his favour, on this basis.

In 2006, Mr Tramontini obtained a medical report from Professor Fearnside, who assessed him as having a total of 32% WPI in relation to the neck, right shoulder and lumbar spine, and as a result of station and gait problems. On this basis, he made a claim upon the Respondent’s insurer under ss 66 and 67. The Respondent denied liability.

Mr Tramontini commenced the current proceedings, claiming lump sum entitlements. The claim was poorly particularised, but eventually proceeded to hearing as a claim seeking further compensation under s66 and a new allegation that a pre-existing condition (basilar invagination) had been aggravated by the work injury in 2002.

The Arbitrator found that there was no causal link between the work injury and any alleged aggravation of basilar invagination, but remitted the matter to the Registrar for referral of the neck, back and right shoulder to an AMS for assessment of the further loss claims.

Mr Tramontini appealed the Arbitrator’s finding that there was no proof of a causal nexus between the injury and the aggravation of the pre-existing condition of basilar invagination. It was also alleged that the Arbitrator placed too great a weight on the clinical notes of Dr Tai, a GP, over the opinion of Dr Teo, treating neurosurgeon.

Held: Arbitrator’s decision partly confirmed –matter remitted to Registrar for referral to AMS for assessment of further permanent impairment, omitting cervical spine

1. The Arbitrator, in failing to find a causal nexus between the fall and the aggravation of the pre-existing basilar invagination, erred by including the neck (cervical spine) among the matters to be referred for assessment of further permanent impairment. The Arbitrator’s COD was therefore amended to exclude the referral of the cervical spine for further permanent impairment assessment.

2. O’Grady DP found that the GP (Dr Tai’s) notes were comprehensive and thorough in that they contained extensive details and particulars of the complaints made by Mr Tramontini, the findings on examination, notes of referral for investigation and for specialist treatment, and the medication prescribed, over frequent attendances.  It was found that Dr Tai’s notes formed a valuable evidentiary source on which the Commission could confidently place reliance in determining the factual allegations and medical issues raised in the appeal.

3. It was open to the arbitrator on the evidence to reject the opinion of the worker’s treating specialist (Dr Teo) over that of the GP because Dr Tai’s notes represented the most contemporaneous available records of medical attendances upon Mr Tramontini while Dr Teo’s reports confused the relevance of a previous accident which occurred in June 2003 with that of the fall which occurred in June 2002.

Edmund Diab v Salem Naji  [2010] NSWWCCPD 33

Determination of an interlocutory nature; role of Arbitrator in determining liability before assessment by an AMS; proof of injury; Arbitrator’s order of remitter

O’Grady DP

31 March 2010

Facts:

Mr Naji was employed by the Appellant as a taxi driver. He alleged injuries to the neck, lumbar spine, right elbow and right shoulder, and anxiety and depression following an assault by teenagers in the course of his duties on 30 April 2005. The injury was sustained after being struck with a brick on his right arm, right shoulder and neck, and being kicked in the back.  He had a past history of a motor vehicle accident in 1995 which caused an injury to his back and neck. Injury to the right elbow and right shoulder were not disputed.

The insurer accepted liability and paid weekly benefits and s60s for a closed period. Mr Naji returned to full-time work in about November 2005, until around June 2007 when he complained of increased pain in his low back. He has worked part-time ever since.

Mr Naj’s ARD claimed lump sum compensation, weekly benefits and medical expenses.

The s74 notice denied that Mr Naji sustained an injury to his back and/or neck. The employer argued at arbitration that there was no contemporaneous evidence that Mr Naji suffered injury to his neck and/or back or if he did, the injury was transient in nature and had resolved.

The Arbitrator found injury to the neck and back and remitted the matter to the Registrar for referral to an AMS for assessment of the degree of permanent impairment.

The employer appealed. The worker submitted that the Arbitrator’s decision was of an interlocutory nature and therefore not appeallable.

Held: Arbitrator’s order revoked. Matter remitted to Registrar for referral to AMS for assessment of the cervical spine, right shoulder and right elbow

1. The term ‘decision’ as it appears in s352(8) includes not only the determination as appears in the COD but also findings of fact made by the Arbitrator in the course of his reasons. The Arbitrator’s decision was not interlocutory. His findings were conclusive and defined the rights and liabilities of each party concerning the various heads of entitlement to compensation benefits as provided by legislation (cf. RE & PD Richards Pty Ltd v Eggins [2010] NSWWCCPD 2).

2. The Arbitrator’s findings on Mr Naji’s injury to the neck were upheld. His order of remitter to the Registrar for referral to assessment of the cervical spine was correct.

3. The Arbitrator erred in determining that Mr Naji sustained a back injury in the assault in 2005. There was evidence that Mr Naji’s lumbar spine had been injured in the motor vehicle accident in about 1995; however, there was no direct or unequivocal evidence of Mr Naji receiving injury to his back in the assault, nor was there clear contemporaneous evidence to suggest that he sustained the back injury in the assault in 2005. The order of remitter concerning the lumbar spine was therefore revoked and a new decision was substituted to remit the matter to the Registrar for referral to assessment of the cervical spine, right shoulder and right elbow.

AA v AB Pty Limited [2010] NSWWCCPD 34

Psychological injury; weight of evidence

Roche DP

31 March 2010

Facts:

Mr AA worked as a chef for the employer. He had issues with a co-worker who on two separate incidents used offensive language and brandished a knife. After the second incident in January 2008, the worker saw his GP who certified him unfit for work due to a generalised anxiety disorder related to workplace issues. The worker resumed normal duties on 19 March 2008 which he continued until he resigned on 27 June 2008. He moved to Queensland where he worked for a month around August 2008, then remained unemployed until he found employment in May 2009.

The worker claimed weekly compensation from 27 June 2008 to 8 May 2009 plus s 60s.

The Arbitrator found that the worker suffered a psychological injury to which employment was a substantial contributing factor but he was fit for his pre-injury duties from 19 March 2008 and he was therefore not entitled to the claimed weekly benefits.

The matter on appeal largely fell on analysis of conflicting medical evidence.

Held: Arbitrator’s decision confirmed.

1. The worker’s case hinged on a reconstruction by his qualified psychiatrist which in turn was based on a history given by the worker that was inconsistent with objective contemporaneous evidence from his GP.

2. The employer’s qualified psychiatrist recorded incorrectly that the worker had resumed his pre-injury duties when he was in fact on a return to work program and light duties. The doctor also wrongly recorded that he had recovered then in a later report made recommendations as to prognosis and treatment.

3. The most persuasive evidence came from the GP who saw the worker several times and took an active role in monitoring his return to work. The GP’s notes showed a steady improvement in the worker, the last note of 19 March 2008 recorded that he was well and settled at work and any monitoring of his mood was due to an underlying condition unrelated to work.

4. The worker ceased seeing his GP after 19 March 2008. The inference was that he did not feel the need to seek treatment.

5. The only reasonable conclusion from the evidence was that the worker functioned normally from 19 March 2008. He resigned in late June 2008 in order to be with his girlfriend in Queensland, not because of any continuing symptoms or anxiety.

Dizon v HPM Industries Pty Limited [2010] NSWWCCPD 23

Reconsideration; s350(3) of the 1998 Act

Roche DP

10 March 2010

The employer sought a reconsideration of Snell ADP’s recent decision issued on 18 February 2010 (Dizon v HPM Industries Pty Limited [2010] NSWWCCPD 15) on the ground that Snell ADP took into account a report by Dr Pillemer that the Arbitrator had excluded from evidence at the arbitration.

The employer made no submissions as to how the reference to Dr Pillemer’s report by Snell ADP affected the outcome, nor which part of his decision should be reconsidered.

Because the extent to which Snell ADP relied on Dr Pillemer’s report was unclear, the ADP having placed some weight on the report, DP Roche reconsidered the matter.

Without regard to Dr Pillemer’s report, Roche DP reached the same conclusion as that reached by Snell ADP, which was that the evidence substantially favoured the conclusion that Ms Dizon’s ongoing complaints resulted from the work injury and had become chronic.

Roche DP noted that Snell ADP did not rely on Dr Pillemer’s conclusions on causation, incapacity or entitlement to weekly compensation in reaching his ultimate findings. Snell ADP’s decision was confirmed and the reconsideration application dismissed.