Issue 7: July 2014

Caulfield v Whelan Kartaway Pty Ltd [2014] NSWWCCPD 34

Second claim for lump sum compensation where the first claim for such compensation was “specifically sought” prior to 19 June 2012; whether amendments introduced by the Workers Compensation Legislation Amendment Act 2012 apply to such a claim; cl 15 of Pt 19H of Sch 6 to the 1987 Act; cl 11 of Sch 8 to the Workers Compensation Regulation 2010; ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18 discussed and applied; whether any need to establish deterioration since initial claim for lump sum compensation; estoppel; no estoppel in a changing situation; effect of initial assessment by an Approved Medical Specialist; power of Arbitrator in claim for lump sum compensation where liability is not in issue; application of principles in Abou-Haidar v Consolidated Wire Pty Ltd [2010] NSWWCCPD 128

Roche DP

11 June 2014

Facts:

On 9 August 2005, the appellant worker injured his right knee in the course of his employment with the respondent employer. Liability for this injury was never disputed. On 2 February 2009, the worker underwent surgery on his knee, which revealed a complex tear of the medial meniscus and a complex tear of a discoid lateral meniscus, which the treating surgeon described as “quite an extensive tear requiring a subtotal lateral meniscectomy”. He also had full thickness articular cartilage defect.

In proceedings in the Commission in 2010 (matter No 6076/10), the worker claimed permanent impairment compensation under s 66 of the 1987 Act in the sum of $20,000 in respect of a 15 per cent whole person impairment due to his injury. Dr Guirgis, consultant orthopaedic surgeon, supported the claim in a report dated 23 February 2010, his second report. Dr Guirgis’s assessment under the WorkCover Guides for the Evaluation of Permanent Impairment, 3^rd ed, and the AMS Guides to the Evaluation of Permanent Impairment, 5^th ed, was:

“* According to Chapter 17 Table 17-33 Impairment Estimates for Certain Lower Extremity Impairments page 546 the medial and lateral meniscal injury attracts 4% Whole Person Impairment;

• According to Table 17-31 page 544, ‘Arthritis Impairments Based on Radiologically Determined cartilage Intervals’ there is 4% whole-person impairment for the knee joint (2 mm cartilage interval in the patellofemoral compartment of the knee).
• According to Table 17-31 Page 544, ‘Arthritis Impairments Based on Radiologically Determined cartilage Intervals’ there is 8% whole-person impairment for the knee joint (2 mm cartilage interval in the medial compartment of the knee as compared to the normal 4 mm in the lateral compartment).

Total Whole Person Impairment according to the combined charts = 15% Whole Person Impairment.” (emphasis included in original)

Impairments under the second and third bullet points above were for assessments for arthritis and were based on investigations in 2008.

In an earlier report, dated 11 August 2009, Dr Guirgis assessed the worker to have an eight per cent whole person impairment made up by combining the assessments in the first and second bullet points set out above.

The Commission referred the worker’s claim to an AMS for assessment under s 321 of the 1998 Act. The referral included a copy of Dr Guirgis’s report of 23 February 2010, among other documents.

On 14 October 2010, the AMS, Dr Crane, issued a MAC. In his reasons for assessment, Dr Crane said that there was “potential impairment for restricted range of motion in the knee, arthritis and impairment related to partial medial lateral meniscectomy”. He said that “[i]t was not possible to combine these three types of impairment and the highest is taken”, namely, an eight per cent whole person impairment as a result of the worker’s injury.

On 19 November 2010, the Commission issued a Certificate of Determination ordering the respondent to pay the worker lump sum compensation under s 66 in the sum of $10,000 in respect of eight per cent whole person impairment as a result of the injury on 9 August 2005. The respondent has paid that amount. In March 2011, the worker underwent further surgery to his right knee in the form of further trimming of the meniscal remnant and further chondroplasty.

On 6 December 2011, Dr Guirgis reviewed the worker and, in his report of the same date, stated that the injury had initiated the onset of post-traumatic osteoarthritis in the knee joint. Apparently applying the same individual assessments as used in his 2010 report, Dr Guirgis assessed the worker to have a 17 per cent whole person impairment “according to the combined charts” including “any previously awarded impairments”. (Whether Dr Guirgis actually applied the same individual assessments is discussed below.) On 29 August 2012, the worker claimed lump sum compensation of $13,000, being $23,000 for a 17 per cent whole person impairment less the $10,000 previously paid. On 18 September 2012, the worker filed an Application to Resolve a Dispute (the Application) in the Commission claiming lump sum compensation of $13,000 for a further nine per cent whole person impairment.

The respondent disputed liability on the grounds that:

• the worker was not entitled to pursue a claim for further lump sum compensation pursuant to s 66(1A) of the 1987 Act (as amended by the 2012 amending Act) as he received lump sum compensation on 19 November 2010 in respect of the injury on 9 August 2005;
• there had been no deterioration in the condition of the worker’s right lower extremity (knee), because the assessment by Dr Guirgis was identical to that made by him in his 23 February 2010 report, and
• the worker was estopped from pursuing a claim for further lump sum compensation because “the assessment on which he relies has already been determined by the AMS”.

The Arbitrator determined there was no prima facie case of a deterioration since the award of 19 November 2010 and, because of that award, the worker was estopped from claiming additional compensation and the matter could not be referred to an AMS.

The Arbitrator did not determine the first issue identified in the Reply because of the decision in Goudappel v ADCO Constructions Pty Ltd [2013] NSWCA 94 (Goudappel No 1).

The Commission issued a Certificate of Determination on 10 February 2014, which made an award for the respondent and no order as to costs.

The issues in dispute in the appeal were initially identified as whether the Arbitrator erred in:

• finding that it was necessary for the worker to establish a deterioration in his condition before his claim could be referred for assessment;
• determining the claim without remitting the claim to the Registrar for referral to an AMS to assess the impairment resulting from the admitted injury to the right knee;
• finding that the worker was estopped by the previous award;
• considering he could analyse the assessment of whole person impairment expressed by Dr Guirgis to determine whether there was a relevant increase in impairment resulting from injury, and
• failing to appreciate that Dr Guirgis’s assessments in 2010 and 2011 were based on different x-rays.

An issue also arose as to the effect of the 2012 amending Act, in light of ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18 (Goudappel No 2) and the amending Regulation.

Held: The Arbitrator’s determination of 10 February 2014 was revoked and the matter remitted to the Registrar for referral to an Approved Medical Specialist (AMS) for assessment.

The Deputy President dealt with the issue of Goudappel No 2 first and then considered the issues identified above under the heading “Deterioration and Determination of the Claim”.

The 2012 Amendments

1. Counsel for the worker correctly submitted that, in the circumstances of the present matter, the amendments introduced by the 2012 amending Act did not apply to the worker. That was because of the combined effect of cls 3 and 15 of Pt 19H of Schedule 6 to the 1987 Act and cl 11 of Sch 8 to the Workers Compensation Regulation 2010 in circumstances where the worker “specifically sought” compensation under s 66 prior to 19 June 2012. As the worker “specifically sought” compensation under s 66 prior to 19 June 2012, the clear words of the High Court were that the amendments did not apply where the worker made a claim for s 66 prior to 19 June 2012 [26], [35].

2. This conclusion was consistent with cl 15 of Pt 19H and cl 11 of Sch 8. This was because, as accepted by the Court of Appeal, and not challenged in the High Court, the amendments do not apply to claims for compensation made before 19 June 2012. As cl 15 must be “read subject to” cl 11, the proper interpretation of the two provisions was that the permanent impairment amendments apply to claims made on and after 19 June 2012 but not where a worker claimed before that date. However, cl 11 modified that position to make the amendments apply to claims made before 19 June 2012 but not if the worker made a claim that “specifically sought” compensation under s 66 or 67 [38]–[39].

3. It followed that, applying the text of the legislation, having regard to its context and history, as the worker “specifically sought” compensation under s 66 before 19 June 2012, the amendments to s 66 in the 2012 amending Act did not apply to him and his claim is entitled to be determined without regard to the restrictions in the new s 66. In other words, he was not caught by the new threshold and not restricted to making only one claim for permanent impairment compensation [40].

4. It followed that, though this was the worker’s second claim for permanent impairment compensation, he was entitled to make the claim. Though the combined value of his claims was over 10 per cent, as the amendments do not apply to him, it would not matter if they were not [41].

Deterioration and Determination of the Claim

5. The reasoning in Abou-Haidar v Consolidated Wire Pty Ltd [2010] NSWWCCPD 128 (Abou-Haidar) was tolerably clear and applied to this case. Unless the Court of Appeal overturns Abou-Haidar it should be accepted as correct and should be applied [66]–[67].

6. An Arbitrator’s task is to determine injury and other liability issues. Once that is done, the question of the extent of any whole person impairment as a result of the injury is a matter for an AMS (Abou-Haidar at [54]). It is not necessary for the Commission to determine, as a threshold issue, whether the worker has demonstrated that his or her condition has deteriorated before the matter is referred to an AMS (Abou-Haidar at [55]) [66].

7. The Arbitrator analysed Dr Guirgis’s evidence to determine if deterioration had in fact occurred. Indeed, he identified the issue in terms of whether the worker had “lodged any proof prima facie demonstrating deterioration of [the worker’s] condition since the award of 19 November 2010”. He then embarked upon an analysis of the evidence to determine whether the worker’s condition had deteriorated and whether he had an impairment greater than the impairment determined by the AMS in 2010. That was the very thing an Arbitrator is not permitted to do (s 65(3) of the 1987 Act and s 293(2) of the 1998 Act) [69].

8. The Commission has jurisdiction to determine liability issues. However, once those issues are determined, the Commission has no jurisdiction to determine medical disputes that come within the terms of s 319. A claim for further or additional lump sum compensation as a result of an alleged increased impairment since a previous assessment or award, where there is no dispute as to injury, is such a medical dispute. A worker does not have to establish a prima facie case of a deterioration before such a claim can be referred to an AMS for assessment and, to the extent that E v Sydney South West Area Health Service (Concord Hospital)[2009] NSWWCCPD 108(E) suggests the contrary, it is not consistent with the legislation and should not be followed [70].

9. The question of deterioration is not strictly relevant and is certainly not determinative of a later claim for whole person impairment (Abou-Haidar at [60]). An assessment of whole person impairment is not based on a worker’s subjective complaints of a deterioration, but depends on an objective assessment based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment (5th ed) (AMA5) and the WorkCover Guidelines. The argument that the Arbitrator was entitled to consider if there was evidence of an increase in impairment was incorrect. Whether, since the previous award, there has been an increase in impairment is a matter for an AMS, not an Arbitrator [72]–[73].

10. It is well established that there is no estoppel in a changing situation (The Doctrine of Res Judicata by Spencer Bower, Turner and Handley, 3rd ed, 1996; O’Donel v Commissioner for Road Transport & Tramways [1938] HCA 15; 59 CLR 744; Rail Services Australia v Dimovski [2004] NSWCA 267; 1 DDCR 648; Hamersley Iron Pty Ltd v The National Competition Council [2008] FCA 598; Prisk v Department of Ageing, Disability and Home Care (No 2) [2009] NSWWCCPD 13; Brumar (Vic) Pty Ltd v Norris and Brown v Maurice Blackburn Cashman [2010] VSCA 206). A claim for lump sum compensation, which depends on a person’s physical condition, is such a situation [75].

11. The only estoppel that arose from the 2010 award was that the parties were estopped from denying that, as a result of the accepted work injury to his right knee, the worker had an eight per cent whole person impairment. That did not prevent the worker from later claiming additional lump sum compensation because of a change in his condition. However, whether there has been a relevant change will depend on whether there has been an increase in whole person impairment as a result of the injury. Assuming there are no liability issues, an AMS must determine that question and, unless it was alleged that the claim is vexatious, frivolous or lacking in substance (s 354(7A) of the 1998 Act), it was not open to the Arbitrator to undertake a preliminary medical assessment to determine if there was prima facie evidence of a change [76].

12. While Dr Guirgis’s second and third reports appeared to be substantially the same, when one closely examined the third report, it was apparent that the doctor may have assessed the arthritis impairment based on radiologically determined cartilage intervals to in fact be 10 per cent and not eight per cent. If that was so, then the assessment of 17 per cent under the combined chart was arithmetically correct. While it is not strictly necessary for the Commission to conduct that kind of analysis of the doctor’s report, though it would have to do so if it were considering dismissing the claim as vexatious or frivolous under s 354(7A), it gave a potential explanation for the apparently illogical assessment of 17 per cent in the third report [77].

13. The decision involved another error. In considering estoppel, the Arbitrator said that Dr Crane had rejected Dr Guirgis’s reasoning in his second report, about combining the three assessments made in that report, and the worker was therefore estopped from relying on that approach in his current claim. This was because Dr Crane said that it was “not possible to combine assessments for range of motion, arthritis or impairment arising from a meniscectomy”. The Arbitrator said that that “ruling” was accurate which meant Dr Guirgis’s methodology could not be accepted. Even if that statement were correct, it was not for the Arbitrator to assess the validity of Dr Guirgis’s methodology. More importantly, Dr Crane’s “ruling” was not a finding that was “legally indispensable” to the award and could not create an estoppel in any event (Blair v Curran [1939] HCA 23; 62 CLR 464). Dr Crane based his assessment of eight per cent impairment on the restricted range of motion in the worker’s right knee [78]–[79].

14. As Dr Crane did not have the x-rays, and was not able to assess the impairment from the arthritis, he selected the higher of the impairments for restricted range of motion (eight per cent) and for the meniscectomy (four per cent). It is for an AMS, not an Arbitrator, to assess if there was a higher impairment, as claimed, because of the effects of the operation and/or osteoarthritis, or for some other reason, such as a greater restricted range of motion. The AMS would make that assessment in light of the current evidence, which, on this occasion, will include the x-rays [81].

Ware v NSW Rural Fire Service [2014] NSWWCCPD 33

Meaning of firefighter in cl 25 of Pt 19H of Sch 6 to the 1987 Act; boilermaker’s deafness; deemed date of injury; s 17 of the 1987 Act

Roche DP

3 June 2014

Facts:

The appellant worker, Mr Ware, started work for the respondent as a motor mechanic in 1988. In 2001, he was promoted to the position of district team zone fleet officer but his duties remained those of a mechanic. His duties in both positions required him to repair fire trucks and fire-fighting equipment, such as chain saws, brush cutters and pumps. He performed the majority of his duties at the respondent’s workshop at Katoomba, but from time to time, he also performed similar work at other Brigade Stations. Whenever there was a bush fire, he was “on call” to carry out emergency repairs on fire trucks and fire-fighting equipment at the “fire front”. When he attended the fire front, he was often as close to the fires as “the people holding the fire hoses”. Since 2001, he attended the fire front on about 31 occasions.

The worker’s duties, both at the workshop and on the fire front, exposed him to noise from equipment and other sources. It is not disputed that his employment, both in the workshop/s and on the fire front, was employment to the nature of which boilermaker’s deafness or deafness of a similar origin is due (s 17(2) of the 1987 Act). After noticing a gradual loss of hearing in the 10 years up to 2012, Mr Ware sought legal advice and was referred to Professor Paul Fagan, ear, nose and throat specialist. In his report of 24 May 2012, Professor Fagan took a history that Mr Ware’s work with the respondent from 2000 exposed him to noise from rattle guns, grinders, hammers, compressors and machinery. He concluded that the work posed a real risk of sensorineural hearing loss (boilermaker’s deafness). He assessed Mr Ware to have a binaural hearing loss of 12.3 per cent, which equated to a whole person impairment of six per cent.

On 20 June 2012, Mr Ware claimed $8,250 lump sum compensation under s 66 of the 1987 Act for a six per cent (amended on appeal to be seven per cent) whole person impairment due to boilermaker’s deafness. Under s 17(1)(a), 20 June 2012 was the deemed date of injury. This letter also attached a Notice of Claim under s 260 of the 1998 Act in which it described Mr Ware’s occupation as “Motor mechanic and fleet officer”. Under “EXPOSURE”, the following appeared, “rattle guns, grinders, brake drums, hammers, compressors, various air tools and general worksite machinery. Hearing protection provided”.

By amendments to s 66 of the 1987 Act, introduced by the Workers Compensation Legislation Amendment Act 2012 (the 2012 amendments), which apply to claims made on or after 19 June 2012, no compensation is payable for permanent impairment unless the impairment is greater than 10 per cent (cl 15 of Pt 19H of Sch 6 to the 1987 Act).

However, cl 25 of Pt 19H of Sch 6 to the 1987 Act (cl 25) provides that:

“The amendments introduced by the 2012 amending Act do not apply to or in respect of an injury received by a police officer, paramedic or firefighter (before or after the commencement of this clause), and the Workers Compensation Acts (and the regulations under those Acts) apply to and in respect of such an injury as if those amendments had not been enacted.”

On 31 July 2012, the respondent’s insurer issued a s 74 notice in which it disputed liability on the ground that Mr Ware had not met the 10 per cent threshold in s 66, as amended by the 2012 amendments. It asserted that the amendments applied to Mr Ware because he was not a firefighter for the purposes of the 1987 Act. After seeing Mr Ware’s statements, which described the noise to which he was exposed at fire fronts, Professor Fagan said in a second report, dated 15 May 2013, that Mr Ware’s employment while attending fire fronts was “even more injurious to his hearing than his regular mechanical repair duties”.

The Arbitrator found:

• when working in his capacity as an employee of the respondent, the worker did not fall within the definition of “firefighter” in the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (the Emergency Services Act) and in any event, the Commission does not deal with claims under that Act; and
• that the worker was entitled to bring a claim for industrial deafness arising out of his employment with the respondent as he worked (for 31 days over about 10 years) in active fire grounds with other emergency service personnel, and as it was integral to the job of extinguishing fires that he be present at those fires, to repair trucks and equipment, he could be classified under the term “firefighter” in cl 25.

The Arbitrator referred the assessment of his whole person impairment to an AMS for assessment (s 319 of the 1998 Act). However, the question referred required the AMS to assess the degree of industrial deafness “relating to Mr Ware’s employment with the [respondent] confined to exposure to noise in an active fire ground as distinct from at Brigade Stations or at the workshop at Fire Control Katoomba”.

The issues in dispute in the appeal were whether the Arbitrator erred in:

• finding that Mr Ware was exempt from the 2012 amendments in respect of injuries while in an active fire ground but was not exempt in respect of injuries sustained at other times and places;
• her interpretation of the exemption for firefighters in cl 25;
• limiting the remittal to the AMS to an assessment of industrial deafness confined to exposure to noise in an active fire ground, and
• determining that Mr Ware suffered a nil impairment in respect of hearing loss resulting from the injury deemed to have happened on 20 June 2012.

The grounds of appeal essentially raised two main issues: the first, which encompassed the first two grounds of appeal, was whether the 2012 amendments applied to Mr Ware. This question turned on whether Mr Ware was a firefighter. The second, which encompassed the third and fourth grounds, was whether the Arbitrator erred in limiting the remittal to the AMS to an assessment of industrial deafness confined to exposure to noise at an active fire ground.

Held: Paragraph 1 of the Certificate of Determination of 31 January 2014 was revoked and the following order was made in its place: “1. That the respondent pay the applicant lump sum compensation in the sum of $9,625 under s 66 of the Workers Compensation Act 1987 in respect of a seven per cent permanent impairment resulting from a loss of hearing deemed to have happened on 20 June 2012.” Paragraphs 2 and 3 of the Certificate of Determination of 31 January 2014 were confirmed.

Discussion and findings

Did the 2012 amendments apply to Mr Ware?

1. In considering Certain Lloyd’s Underwriters v Cross [2012] [2012] HCA 56; 248 CLR 378 and Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, the Deputy President concluded that the legal meaning of firefighter corresponded with its normal grammatical (dictionary) meaning and there was nothing in the context, purpose or policy behind cl 25 that led to a different conclusion. It follows that firefighter means “someone whose activity or employment is to extinguish fires, especially bushfires”. As the worker was employed as a mechanic, he was only a firefighter, for the purposes of cl 25, when he was engaged in providing support at the fire front during a fire [42].

2. The interpretation urged by counsel for the appellant would extend the meaning of firefighter from “someone whose activity or employment is to extinguish fires” to include someone “involved in the task of extinguishing fires”, however remote that involvement may be. Such an interpretation would result in the respondent’s receptionist being a firefighter. That would be an artificial extension of the meaning of firefighter that is not justified by the words used, or by the context in which they appear in cl 25. The appellant’s “type of employment” was that of a mechanic: he maintained and repaired equipment for use in fighting fires. Though it may be accepted that the maintenance of that equipment is necessary for the efficient operation of the respondent’s activities, that does not change the essential character or “type” of Mr Ware’s employment. He was a mechanic and, plainly, not a firefighter [43]–[44].

3. The only feature of the worker’s employment that might bring him within the term firefighter was the work he performed at the fire front during bush fires. Though he was not a firefighter in the sense of attempting to extinguish fires with a water hose, or through some other method, his work on those occasions was incidental to the control or suppression of a fire, which the respondent conceded. That was the conclusion reached by the Arbitrator, who applied the reasoning and conclusion in The Australian Workers Union, New South Wales v Office of Environment and Heritage [2012] NSWIRComm 133 (AWU) to the effect that a worker who is not employed as a firefighter should be considered a firefighter immediately when he or she commences to perform firefighting duties [59].

4. The Arbitrator did not err in her conclusion that the worker was a firefighter only when he was repairing equipment at the fire front, which was an integral part of the job of extinguishing fires. If, at those times, workers, including the worker here, were injured, they would be exempt from the amendments and entitled to compensation according to the terms of the applicable legislation [64].

Did the Arbitrator err in limiting the remittal to the AMS to an assessment of industrial deafness confined to exposure to noise in an active fire ground?

5. Clause 25 provides that the 2012 amendments do not apply “to or in respect of an injury” (emphasis added) received by a firefighter before or after 19 June 2012. Section 66, both before and after the amendments introduced in 2012, talks about a worker who “receives an injury” (emphasis added) being entitled to permanent impairment compensation. The “injury” in the present case is a loss of hearing of such a nature as to be caused by a gradual process (s 17(1)). In these circumstances, s 17 applies to determine when the injury is deemed to have happened and by whom the compensation is payable [78].

6. The principles from Rico Pty Ltd v Road Traffic Authority (1992) 28 NSWLR 679; 8 NSWCCR 515 are applicable in the present case. The submission that, apart from the impairment that resulted from injury that occurred while performing firefighting at an active fire ground, the worker had no entitlement to s 66 compensation for his hearing loss was incorrect and involved the same error identified in A & G Engineering Pty Ltd v Civitarese (1996) 41 NSWLR 41; 14 NSWCCR 158. It sought to look at what caused Mr Ware’s injury. Section 17 does not work in that way [87].

7. Once it was established (or accepted) that the worker suffered an injury which is of such a nature as to be caused by a gradual process, and that his employment was employment to the nature of which the injury was due, and both those things were accepted in the present case, s 17 applied according to its terms. The section does not permit the assessment of the impairment to be divided in the way the Arbitrator directed the AMS [88].

8. Section 17 is not concerned with how much of the injury was received in one activity and how much in another. The injury is taken to have been received “in one blow”, namely, in this case, on 20 June 2012. Once that is accepted, as it must be, the compensation is payable by the employer who employed the worker in employment to the nature of which the injury was due. In this case, that was the respondent [89].

9. While the assumption that the injury is received “in one blow” is a fiction, that is how the section works. Nothing in cl 25, which talks about “an injury received by a ... firefighter”, alters the terms of s 17, or its operation. Clause 25 does not talk about part of the injury. Nor does it talk about apportioning the impairment, in the case of a hearing loss claim, between different activities. Nor does it talk about thresholds. It follows that, once s 17 applies, it applies for all purposes and nothing in cl 25 suggests the contrary [90].

10. The legislation leaves no scope for reading into s 17 the power to find one injury due to exposure to noise while working at the fire front and one injury while working in the workshop. There is no such power and the proposed approach is not open. If the injury is a loss of hearing, which is of such a nature as to be caused by a gradual process, the provisions of s 17 apply [92].

11. There was no analogy between this case and a deduction made by an AMS for a non-occupational loss. The worker’s hearing loss, and his consequential impairment, was all due to his occupation and it was not open, under s 17, to “factor out” the impairment due to Mr Ware’s work as a mechanic in the workshop [93].

12. The Arbitrator erred in directing the AMS to divide the impairment between that caused by the work on the fire front and that caused by work in the workshop and the orders made on 31 January 2014 could not stand [95].

Conclusion

13. Consistent with AWU, the Arbitrator correctly found that the worker was only a firefighter whilst working at an active fire front. However, she erred in directing the AMS to divide the worker’s impairment between that caused while working at an active fire front and that caused while working in the workshop at Katoomba. The parties agreed that, should either part of the appeal succeed, the worker was entitled to compensation in the sum of $9,625 in respect of the seven per cent whole person impairment assessed by the AMS. That order was made by the Deputy President [96].

Luxotica Retail Australia Pty Ltd v Susak [2014] NSWWCCPD 36

Partial incapacity; weekly compensation under s 40 of the 1987 Act (as it stood prior to the amendments introduced by the Workers Compensation Legislation Amendment Act 2012); calculation of ability to earn; effect of subsequent injury on ability to earn; exercise of discretion in determining the proper amount of weekly compensation; assessment of medical evidence; application of the principles in Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43 and Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; 59 ALJR 844; issues not argued at the arbitration; application of the principles in University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 and Brambles Industries Ltd v Bell [2010] NSWCA 162; 8 DDCR 111; alleged failure to give reasons

Roche DP

13 June 2014

Facts:

On 26 November 2004, the respondent worker injured her back in the course of her employment as an optical technician/process worker with the appellant employer (the 2004 injury/the back injury). She suffered a further injury, to her neck, right shoulder and right knee, and aggravated the back injury, in a car accident on 27 January 2009 (the car accident) while driving home from a rehabilitation program for the original back injury.

The worker also injured her right wrist at work on 23 September 2004 and her back in a car accident in 2001. As it was accepted that she recovered from both of these injuries, neither was directly relevant to the appeal.

In 2005, the parties agreed that the worker had a seven per cent whole person impairment as a result of the 2004 injury. In May 2011, an AMS (Dr Beer) assessed her to have a 14 per cent whole person impairment as a result of the car accident, but accepted that there should be a 5/7th reduction in respect of the impairment because of the effects of the 2004 injury to the lumbar spine.

After the 2004 injury, the worker worked on suitable duties with the appellant for 30 hours per week until December 2006, when those duties were no longer available. She did not work since that time. From July 2007 until the car accident, Dr Todorovic, the worker’s general practitioner, certified her fit for suitable duties for 30 hours per week.

After the car accident, the worker had periods of total incapacity but Dr Guirgis, the treating orthopaedic surgeon, certified her to be fit for suitable duties for 12 hours per week from February 2010, which he increased to 16 hours per week by about October 2012. He considered that she was permanently unfit for her pre-injury duties and was unfit for work that applied stresses to her neck and back. He apportioned the worker’s incapacity equally between the car accident and the 2004 injury.

The worker claimed damages for the injuries received in the car accident, which claim she settled on 30 June 2011. That settlement, the terms of which were not in evidence, extinguished her rights to receive workers compensation benefits for all injuries received in that accident (s 151Z(1)(b) of the 1987 Act). The appellant’s insurer paid voluntary weekly compensation at the appropriate statutory rate until it issued a notice on 19 March 2012 reducing that rate to $101.29 per week, effective from 25 April 2012. It arrived at that rate by deducting its assessment of the worker’s ability to earn ($621.29) from its assessment of probable earnings but for the injury ($722.58). The insurer gave no other reason for reducing the worker’s payments.

In a report of 15 January 2013, Dr Todorovic stated that the worker was fit for suitable duties for only 20 hours per week, notwithstanding that, prior to the car accident, he had certified her fit for suitable duties for 30 hours per week. He said that he had previously certified her fit for 30 hours per week because of a request by her rehabilitation provider, to increase her chances of finding a job, though his opinion was that she was realistically fit for only 20 hours per week.

The issue before the Arbitrator was the worker’s entitlement to weekly compensation as a result of the 2004 back injury. The Arbitrator applied the five steps in Mitchell v Central West Health Service (1997) 14 NSWCCR 526 (Mitchell) and made the following findings:

• the worker’s probable earnings but for the injury to be $770.39 per week from 25 April 2012 to 24 April 2013 and $789.03 from 25 April 2013 to date (these figures were not challenged on appeal);
• working 20 hours per week in suitable employment, the worker’s ability to earn from 25 April 2012 to date was $300 per week;
• deducting $300 from $770.39 and from $789.03 gave a difference of $470.39 and $489.03 respectively;
• having taken into account the effects of the car accident in step two, there was no evidence to justify exercise of the discretion in s 40 to reduce the figures at step three, and
• the worker was entitled to an award as per the figures at step three.

The issues in dispute in the appeal are whether the Arbitrator erred in:

• accepting the evidence from Dr Todorovic that prior to the car accident the worker could only work 20 hours per week, when that evidence was in contradiction of evidence previously provided by that doctor;
• accepting the evidence from Dr Todorovic that prior to the car accident the worker could only work 20 hours per week when such statement was a bare ipse dixit without adequate reasons or explanation, particularly in circumstances where such opinion was in direct contradiction of opinions previously expressed by him and he gave the different opinion after the settlement of the claim for damages for the car accident;
• finding that the car accident reduced the worker’s capacity to perform suitable duties by only four hours per week;
• failing to take into account or address the evidence supporting the proposition that the worker’s incapacity had been significantly increased by the effects of the car accident;
• failing to take into account the additional difficulties in obtaining suitable work arising from the car accident due to a greater number of body parts being subjected to restrictions by reason of having been injured in the car accident and where the likelihood of the worker obtaining suitable duties was further reduced;
• declining to exercise the s 40 discretion to reduce the amount of the s 40 award so as to take account of the effect of the car accident on the worker’s ability to seek, obtain and maintain suitable employment;
• failing to apply the three per cent notional consumer price index increases applied to the worker’s probable earnings but for injury to her ability to earn in suitable employment, and
• failing to give any or any adequate reasons in relation to the above.

The Deputy President dealt with the above grounds under the following headings: Dr Todorovic’s evidence, the effects of the car accident, the s 40 discretion, and assessment of probable earnings.

Held: The appeal was unsuccessful and the Arbitrator’s determination was confirmed.

Dr Todorovic’s Evidence (grounds (a) and (b))

1. The criticism of Dr Todorovic’s evidence on appeal could not be sustained. It was a clear attack on the doctor’s credit in circumstances where the doctor had had no opportunity to defend himself. If impropriety were suggested in what Dr Todorovic said, that should have been put to the doctor in cross-examination (Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43 (Hancock)) [32].

2. Dr Todorovic’s assertion that he certified the worker fit for suitable duties for 30 hours per week at the request of her rehabilitation provider, Active Occupational Health Services (Active), to increase her chance of finding work, was not challenged in any evidence from the appellant, or in any submission from their counsel. The appellant called no evidence from Active to rebut the suggestion that the increase to 30 hours per week was made, at their request, to increase the worker’s chance of finding work, and no criticism was made of Dr Todorovic’s report at the arbitration [34].

3. The Arbitrator accepted Dr Todorovic’s evidence in his report of 15 January 2014 for three reasons:

• it accorded with Ms Susak’s own view in her statement;
• she accepted his explanation for why he changed Ms Susak’s certifications in July 2007, and
• Dr Todorovic’s earlier certifications should be considered and weighed in light of his subsequent explanation and clear statement of his opinion on the extent of Ms Susak’s capacity as at July 2007 [36].

4. The submission that Dr Todorovic’s subsequent statement should only have been accepted with “extreme caution and scepticism and attended by for [sic] more detailed reasons” was without foundation. An Arbitrator’s obligation to give reasons depends on the circumstances of the individual case (Mifsud v Campbell (1991) 21 NSWLR 725 and must be considered in the light of the issues raised for consideration by the parties (Brambles Industries Ltd v Bell [2010] NSWCA 162 (Bell)) [37].

5. The Arbitrator exposed her reasoning on the critical issues in dispute and articulated the essential ground on which she based her decision (Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247). Those reasons were adequate in the circumstances and there was no need for more detailed reasons. It was open to the Arbitrator to accept the opinion of Dr Todorovic in his report of 15 January 2013 and that acceptance involved no error [39].

6. The submission that the Arbitrator erred in accepting Dr Todorovic’s opinion, because it was a bare ipse dixit, was rejected for the same reasons. This point was not argued before the Arbitrator. Had it been raised at the arbitration, the point could have been met by calling additional evidence from Dr Todorovic. No reason was advanced as to why leave should be given for it to be raised for the first time on appeal. In the circumstances, it was not open to argue that an Arbitrator erred in not dealing with a point never argued (Bell) [40].

7. What is required as an explanation for the basis of the expert’s opinion will depend on the circumstances in each case (Adler v Australian Securities and Investments Commission [2003] NSWCA 131). However, an expert does not have to “offer chapter and verse in support of every opinion” (Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157). Additionally, “[a]n expert frequently draws on an entire body of experience which is not articulated and, is indeed so fundamental to his or her professionalism, that it is not able to be articulated” (Australian Security and Investments Commission v Rich [2005] NSWCA 152) [45]–[46].

8. Consistent with the principles discussed in Hancock, Dr Todorovic’s opinion in his January 2013 report had to be read with his earlier reports. In his report of 25 July 2010, Dr Todorovic took a full history of the relevant events and complaints, set out his findings on examination and made appropriate references to radiological tests. He said that, prior to the car accident, the worker had been fit for light duties for 30 hours per week and that, after that accident, she was fit for light duties for 12 hours per week [47].

9. In his January 2013 report, Dr Todorovic explained that he had increased the worker’s working hours (on light duties) “on the request of her rehabilitation provider”, to increase her chances of finding a job, and that “realistically” his opinion was that she was only fit for light duties for 20 hours per week. Exactly what more Dr Todorovic was meant to explain was unclear. His reports, when read together, provided a fair climate for the acceptance of his opinion (Paric v John Holland (Constructions) Pty Ltd [1985] [1985] HCA 58; 59 ALJR 844). That is particularly so in circumstances where his ultimate opinion accorded with the worker’s evidence, which evidence the Arbitrator accepted [48].

The Effects of the Car Accident (grounds (c), (d), (e) and (h))

10. The Arbitrator said that she “considered all the medical and other evidence before” her, as well as the parties’ submissions. She felt that, given the continuing effects of the 2004 injury, the pain the worker continued to suffer from that injury, as well as her physical restrictions, limited work background and limited English skills, the labour market accessible to the worker was very limited. These findings were consistent with an acceptance of the worker’s evidence and disclosed no error [77].

11. Dealing with the assertion in the insurer’s s 54 notice that the worker had an ability to earn “more than” $621.29 per week, the Arbitrator accepted that the insurer had not set out clearly the evidentiary foundation for that conclusion. She correctly observed that the notice referred to various rehabilitation reports and vocational assessment reports, but said that they were “quite old”, pre-dating the car accident and the current claim by several years. She therefore found them of “very limited assistance”. Those findings were open on the evidence and disclosed no error [79].

12. The Arbitrator expressly dealt with the ARC Work Assessment, which the s 54 notice suggested provided the basis for the assertion that the worker had an ability to earn $621.29 per week. She correctly noted that that report was not a proper s 40 assessment report which assessed the worker’s capacity to work. Rather, the report merely provided information on market rates applicable to the positions of general clerk, call-centre operator, hand packer, assembler and sales assistant. The Arbitrator correctly recorded that the worker had not been seen or assessed for the purposes of the report and its limitations had been conceded in submissions before her [80].

13. It is not open to infer that Dr Guirgis did not consider the certification of 30 hours per week by Dr Todorovic to have been unreasonable. Dr Guirgis did not see the worker before the car accident and he expressed no opinion as to her capacity to earn at that time. He merely noted she had been certified fit for 30 hours per week.  The complaint that the worker considered she was only fit for 20 hours per week in her statement of 15 November 2012 but raised no such qualification in her undated statement, was not a point made at the arbitration. To that extent, it was an attack on her credit (or reliability), it was improper to attempt to raise such a matter for the first time on appeal [84]–[85].

14. The submission that the Arbitrator failed to refer to the large body of evidence indicating that the worker’s incapacity had been greatly increased by the effects of the car accident was incorrect. The Arbitrator referred to the relevant medical and lay evidence and accepted the evidence from Dr Todorovic and, implicitly, but clearly, accepted the worker’s evidence. The worker’s evidence included her statement that her neck, right shoulder and right knee had improved greatly since the settlement of the damages claim. The Arbitrator’s conclusion was open and disclosed no error [86].

15. The appellant’s submission about the worker’s evidence in her damages claim, in support of her claim for domestic assistance, was not a submission made at the arbitration. It was not an error for an Arbitrator not to refer to arguments never put (Bell). In any event, the Arbitrator is well aware of the injuries the worker received in the car accident that did not require her to reject Dr Todorovic’s evidence [87].

16. The submission that the Arbitrator failed to take account of relevant evidence and failed to give any or any adequate reasons could not be sustained. The Deputy President noted that an Arbitrator’s obligation to give reasons depends on the circumstances of the individual case and the issues run at first instance. The Arbitrator dealt with the issues argued and, for reasons given, determined those issues against the appellant. Her reasons fully explained her conclusion and satisfied her obligation to give reasons [91].

17. Contrary to the appellant’s submission, the Arbitrator did not ignore the effects of the car accident. She noted counsel’s submissions about it, the medical evidence that dealt with it, and the worker’s evidence. Accepting the evidence from Dr Todorovic and the worker, which it was open to the Arbitrator to do, she concluded that, as a result of the 2004 injury, the worker had a capacity to earn $300 per week. That finding was open on the evidence and disclosed no error [92].

18. The submission that the Arbitrator failed to take a “more considered approach” to the effects of the car accident was without substance. An Arbitrator’s approach must always be considered in light of the circumstances of the case and the submissions made. The Arbitrator considered the evidence and the parties’ submissions and did not accept the submissions made on behalf of the appellant, which were quite different to the submissions made on appeal [93].

19. The submission that, after the car accident, the worker was assessed to have a 14 per cent whole person impairment ignored the 5/7th deduction that applied to that assessment because of the continuing effects of the 2004 injury. It also ignored the fact that an assessment of whole person impairment does not equate to a finding of economic incapacity under s 40 (Muir v Ric Developments Pty Ltd t/as Lane Cove Poolmart [2008] NSWCA 155) [94].

20. The submission that the Arbitrator failed to properly consider the impact of the car accident on the worker’s earning capacity was just another way of expressing the same complaints previously raised. For the reasons explained earlier in the decision, the Deputy President did not accept that submission [95].

The Section 40 Discretion (ground (f))

21. The appellant argued that the Arbitrator erred in declining to exercise the s 40 discretion to reduce the mathematical difference in order to ensure that the amount awarded “is to bear such relation to the amount of that reduction as may appear proper in the circumstances of the case”. He said it was well established that a relevant matter to be considered in the context of the s 40 discretion is the occurrence of a supervening injury (Australian Wire Industries Pty Ltd v Nicholson (1985) 1 NSWCCR 50 (Nicholson); Cordina Chicken Farms Pty Ltd v Thoa Hong Le [2008] NSWWCCPD 125 (Cordina Chickens)) [99].

22. The first point noted by the Deputy President was that the Arbitrator was understandably uncertain if counsel for the employer had submitted that the effects of the car accident should be taken into account at step two or step four. That left it open to the Arbitrator to consider the effect of the car accident at either step two or step four, but not both. It was clear from the Arbitrator’s reasons that she took the effects of the car accident into account at step two, when she assessed the worker’s ability to earn in suitable employment to be $300 per week. This followed from her statement that she considered the fact of the motor vehicle accident in January 2009, and its consequential effects on the worker’s capacity for work, in making her determination at step two of the Mitchell process. Therefore, she did not consider it necessary to consider it at step four. That approach disclosed no error [106]–[107].

23. The appellant’s complaint may have had substance if the Arbitrator had assessed the worker’s ability to earn at step two by reference to both the 2004 injury and the car accident. She did not do that. She accepted Dr Todorovic’s evidence that, as a result of the 2004 injury, the worker could only work in suitable employment for 20 hours per week. The Arbitrator said that the type of work the worker could realistically have done for 20 hours per week, within the restrictions listed by Dr Todorovic, would have “attracted on average $300 per week”. This assessment was based on the effect of the 2004 back injury only and was consistent with the approach endorsed in Ward v Corrimal-Balgownie Collieries Ltd [1938] HCA 70; (1938) 61 CLR 120 where the High Court held that compensation is only payable for the incapacity that has resulted from the relevant work injury [107].

24. Had the Arbitrator calculated the worker’s ability to earn at step two by reference to the effect of both accidents (which was an available approach), then, given her other findings, she would have found an ability to earn of $240 per week (16 hours by $15 per hour). Deducting this amount from the probable earnings of $770.39 would have given a difference of $530.39. As this difference resulted from the effect of both the compensable 2004 injury and the non-compensable car accident, it would have been necessary to use the discretion to adjust that figure down by $60 to arrive at a figure that properly represented the loss caused by the 2004 injury. However, as the Arbitrator had already allowed for the effects of the car accident in her calculations at step two, by calculating the worker’s ability earn solely by reference to the effects of the 2004 injury, to allow for it at step four would be to take it into account twice. That was not permissible [108].

25. It was accepted that a subsequent non-compensable injury is relevant to the exercise of the discretion (Nicholson), but not if the effect of that injury has, as it clearly has in this case, already been considered in calculating the worker’s ability to earn at step two [111].

26. Cordina Chickens did not assist the appellant and, in any event, was not relied on before the Arbitrator. That case considered the circumstances in which a worker may obtain two awards of compensation: one for partial incapacity and one for total incapacity. It held that while a finding of total incapacity, subsequent to a finding of partial incapacity, will not eliminate the liability for the initial partial incapacity, the calculation of compensation payable under s 40 for the initial partial incapacity calls for the application of the discretion in s 40(1). As the claim did not concern any period of total incapacity, it therefore followed that, in addition to the reasons noted above, the principles discussed in Cordina Chickens had no application [112].

27. The submission that there was no evidence before the Commission that, since the car accident, the worker made any attempt to obtain suitable employment was not a submission made at the arbitration and, as it could have been met by additional evidence, was not a submission that could be made on appeal. In any event, failure to look for work is not relevant to the exercise of the discretion (Mitchell) [113].

28. Having regard to the Arbitrator’s approach to step two, it was not necessary for her to have regard to the claim for domestic assistance in the exercise of her discretion. The appellant’s submission was simply another attack on the Arbitrator’s finding at step two. [114].

29. The submission that it may be inferred that it would be more difficult for the worker to obtain suitable employment because she was only certified fit to work for 16 hours per week (compared to 20 hours per week) was not a submission made at the arbitration and was unsupported by any evidence. In any event, given the Arbitrator’s approach at step two, it was not a matter that could be taken into account in the exercise of the discretion. That was because, at step two, the Arbitrator only assessed the worker’s ability to earn by reference to the effect of the 2004 injury [115].

30. The submission that the worker had no incapacity additional to that which would have resulted from the car accident in any event was untenable and ignored the evidence from Dr Todorovic and the worker, which the Arbitrator accepted, as to the worker’s ability to earn as a result of the work injury [116].

31. The Deputy President did not accept the submission that the “proper amount” to be awarded under s 40, after the exercise of the discretion, should not exceed $200. The appellant’s real complaint was that, by accepting the evidence from Dr Todorovic, the Arbitrator erred in her calculation of the worker’s ability to earn at step two. That argument was rejected. It was not open to reintroduce that argument at step four [118].

Assessment of Probable Earnings (ground (g))

32. No submissions were made before the Arbitrator on the application of the three per cent notional consumer price index increases to be added to the worker’s ability to earn and even if applied, the change in the award would be minimal. In those circumstances, given the de minimus impact on the award, this ground of appeal was not to be made out. As the point was raised “primarily for the purpose of any reconsideration of the Arbitrator’s award”, and, as the award is not being reconsidered, as no relevant error was established, it was not appropriate to recalculate the step two figure in the manner suggested.

33. Counsel for the appellant essentially conducted the appeal as a re-hearing, with no proper regard to the Arbitrator’s reasons or the way counsel conducted the arbitration. In an appeal restricted to the identification and correction of error, that approach was not permissible. The Commission has repeatedly held that parties are bound by the conduct of their counsel at the arbitration [121].

Hunter New England Local Health District v James [2014] NSWWCCPD 38

Review under s 55 of the 1987 Act; alleged failure to give reasons; weight of evidence; s 40 of the 1987 Act (as it stood prior to the introduction of the amendments in the Workers Compensation Legislation Amendment Act 2012); exercise of discretion in s 40(1) of the 1987 Act

Roche DP

24 June 2014

Facts:

The respondent worker worked for the appellant employer as a laundry assistant. On 9 September 1993, he was crushed between two large industrial dryers and injured his head, neck, torso, low back and legs, and was later diagnosed with a consequential psychological condition. He was hospitalised for one week and off work for about three months.

The worker returned to work on suitable duties, which he continued until 31 October 1997 when those duties were no longer available and the appellant terminated his employment. In order to obtain alternative employment, at his own expense, the worker completed a number of courses in electronics, security work and first aid.

On 19 March 1998, the worker settled a claim for lump sum compensation for permanent impairment as a result of his injuries. Terms of Settlement filed in the former Compensation Court of NSW (the Compensation Court) provided for the following awards:

• $5,168 in respect of 10 per cent permanent impairment of his neck;
• $7,752 in respect of 10 per cent permanent impairment of the back;
• $9,690 in respect of 10 per cent loss of use of his right leg at or above the knee;
• $2,422.50 in respect of 2.5 per cent loss of use of his left leg at or above the knee, and
• $12,930 for pain and suffering.

In October 2000, the worker obtained work as a security guard with Pembo Security. In the same year, he commenced proceedings in the Compensation Court claiming weekly compensation of $470.50 from 9 December 1999 to date and continuing. In 2002, Pembo Security ceased operations and the worker worked at the same premises doing the same duties with JCB Security.

After a hearing on 30 January 2002, Hughes CCJ determined that claim in favour of the worker, making an award of $100 per week from 9 December 1999 and continuing. The award was based on the difference between the worker’s actual earnings as a security guard and probable earnings had he not been injured, which appeared to have been about $127 per week. However, rather than awarding that amount, the judge said that $100 “seem[ed] to be reasonable in that for quite a period the worker was capable of working as a security guard”.

Though the work with JCB Security was lighter than the worker’s pre-injury employment, due to prolonged standing and exposure to the elements at night, he found it difficult and he resigned in August 2005. The worker gave evidence that he resigned because of his injuries. Other evidence suggested that the worker resigned because of a proposal that he change to day shifts and because he had decided to become a full-time homemaker.

On 5 June 2009, the worker obtained work at the Wests Diggers Club, Tamworth, as a part-time receptionist, working between 20 and 25 hours per week. He continued this work until he resigned on 23 July 2011 because new management was not as accommodating of his continuing disabilities. While working at the Club, he earned $443.65 per week between 5 June 2009 and 30 June 2010, and $335.60 per week between 1 July 2010 and 23 July 2011. Between 8 August 2011 and 18 December 2011, the worker worked as a bus driver with Tamworth BusLines, where he earned $610.90 per week. He has not worked since that time, but has remained in receipt of the award made by Hughes CCJ.

In September 2012, the worker filed an Application in the Commission seeking a review, under s 55 of the 1987 Act, of the award made by Hughes CCJ because of a change in circumstances since that award. He initially sought an increase in the weekly compensation payable from 31 January 2002 to date and continuing, but only pressed his claim from 8 August 2005.

The Arbitrator found that there had been a relevant change in circumstances, which would warrant a review of the award of Hughes CCJ, from 1 April 2008 when the worker was again seeking full-time employment. This finding was not challenged on appeal. After reviewing the relevant medical evidence, the Arbitrator found that, at all material times, the worker remained partially incapacitated for work and that, by reason of his physical disabilities, he would be “significantly disadvantaged” in securing suitable employment and that his labour “would be less saleable by reason of his physical disability, even if he were fit physically to perform them in accordance with his restrictions, as against persons without such restrictions”.

For the period of the claim, the Arbitrator assessed the worker’s probable earnings but for the injury, step one in the five step process dictated by Mitchell v Central West Health Service (1997) 14 NSWCCR 526 (Mitchell), to be between $667.80 and $786.90 per week, and his ability to earn, step two in Mitchell, to be $500 per week. The figure of $500 per week was calculated on the basis that the worker could work, in some suitable employment, 25 hours per week earning $20 per hour. Where this amount exceeded the worker’s actual earnings, the Arbitrator accepted, consistent with Aitkin v Goodyear Tyre & Rubber Co (Aust) Ltd [1945] NSWStRp 29; (1945) 46 SR (NSW) 20 (Aitkin), the actual earnings as the proper figure for the worker’s ability to earn. In respect of the periods when the worker was not working, the Arbitrator, in the exercise of his discretion, reduced the difference between step one and step two of Mitchell “in accordance with Judge Hughes[’] decision”. The Commission issued a Certificate of Determination on 26 February 2014 in the following terms:

“The Commission determines:

1. That the name of the respondent is amended by consent to Hunter New England Local Health District.

2. The Application to Resolve a Dispute is amended by consent in Part 5.2 by deleting ‘27/7/01’ and substituting ‘31/1/02’.

3. Award in favour of the applicant pursuant to section 40 of the Workers Compensation Act 1987 (as in force prior to the weekly payments amendments made by the Workers Compensation Legislation Amendment Act 2012), pursuant to a review under the former section 55 of the Workers Compensation Act 1987, as follows:

• at the rate of $135 per week from 1 April 2008 to 30 June 2008;
• at the rate of $160 per week from 1 July 2008 to 4 June 2009;
• at the rate of $250.15 per week from 5 June 2009 to 30 June 2009;
• at the rate of $286.25 per week from 1 July 2009 to 30 June 2010;
• at the rate of $413.40 per week from 1 July 2010 to 30 June 2011;
• at the rate of $432.10 from 1 July 2011 to 23 July 2011;
• at the rate of $267.70 per week from 24 July 2011 to 7 August 2011;
• at the rate of $156.80 per week from 8 August 2011 to 18 December 2011;
• at the rate of $215 per week from 19 December 2011 to 30 June 2012;
• at the rate of $235 per week from 19 December 2012 to date and continuing or on the expiration of a period of 3 months after the insurer first conducts a work capacity decision whichever first occurs.

4. Credit is to be given to the respondent for payments made during the period of the award.

5. Order that the respondent pay the applicant’s section 60 expenses in relation to psychological treatment.

6. The decision of His Honour Judge Hughes of 30 January 2002 in matter No 32605 of 2000 is otherwise confirmed.

7. Order that the respondent pay the applicant’s costs as agreed or assessed.

8. Having regard to the significant and unusual issues of law, fact, medicine and earnings history raised, I certify the matter is complex and order the costs payable, in respect of both parties, are to be subject to an uplift of 30 per cent.

9. Liberty to apply.”

The appellant challenged the Arbitrator’s findings on incapacity and the calculation of the award of weekly compensation. The issues in dispute in the appeal were whether the Arbitrator erred in:

• failing to give adequate reasons in determining that the worker’s ability to earn, when not employed, was only $500 per week, which finding was contrary to the weight of the evidence (reasons and weight of evidence);
• failing to determine the worker’s ability to earn in the period from 24 July 2011 to 7 August 2011 (when he was not working) by reference to his ability as a bus driver, a job in which he earned $610.90 per week from 8 August 2011 to 18 December 2011, rather than by reference to $500 per week (the period from 24 July 2011 to 7 August 2011), and
• not clearly explaining the manner in which he applied the discretion in s 40 at step four of his calculations (the discretion).

Held: The appeal was unsuccessful and the Arbitrator’s decision was confirmed.

Reasons and Weight of Evidence

1. It was difficult to see the relevance of the appellant’s submission that the worker demonstrated a capacity for employment as a security guard. First, that work was several years prior to 1 April 2008, the date on which the Arbitrator varied the award. Second, the worker gave evidence that the security work required him to spend ten hours on his feet, without scheduled breaks or rest periods, and that caused his knees and back, which he injured in 1993, to “become painful and agitated”. Given Dr Bornstein’s evidence of the difficulties with the worker’s right knee, it was difficult to see how security work would be considered suitable employment for him. Third, being aware of the worker’s history of work as a security guard, Dr Hopcroft, the worker’s qualified orthopaedic specialist, said that he would “be wise to remain away from security guard work” and continue in the more sedentary role of receptionist. Last, the WorkCover medical certificates from Dr Manners, the treating General Practitioner, did not assist the appellant. It was correct that Dr Manners said in his certificates of 7 August 2008 and 1 December 2008 that the worker was fit for suitable duties for normal hours and normal days per week. However, though both Mr Harris and Mr Levick made passing references to these certificates, neither made any detailed submissions about them. Therefore, it was not surprising that the Arbitrator did not refer to them [52]–[55].

2. The restrictions in the certificates of 7 August 2008 and 1 December 2008 was that they were much more extensive than merely limiting the weights that the worker could lift. They involved extensive restrictions that would clearly affect the worker’s ability to obtain and retain employment in the labour market accessible to him and, in particular, his ability to work in any job that required prolonged standing, such as work as a security guard. Thus, the Arbitrator’s failure to refer to these certificates was of no consequence [57].

3. The Arbitrator’s task was to assess the worker’s ability to earn in the open labour market. As noted in Lawarra Nominees Pty Ltd v Wilson [1996] NSWSC 584; (1996) 25 NSWCCR 206, when speaking of the former Compensation Court, the court will ordinarily not be concerned to determine an artificial or theoretical situation that a worker could do, if work were available that allowed the worker to stand for a time, sit for a time, cease when the pain becomes unacceptable, and generally work as he or she would wish to work. Consistent with this statement, the Arbitrator undertook a practical approach to the assessment of the worker’s ability to earn. That disclosed no error [72].

4. The evidence in support of the Arbitrator’s conclusion, and to which he made express reference, was:

• the evidence of the worker’s pursuit of qualifications and, following leaving the Wests Diggers Club, his obtaining of another job as a bus driver within two weeks;
• the evidence from Dr Bornstein that the worker had a torn meniscus in his right knee and a five per cent loss of use of his right leg at or above the knee as a result of the 1993 injury;
• the evidence from Dr Hopcroft;
• the evidence of the worker’s agreed impairments and losses, and
• the evidence of the worker’s work at the Wests Diggers Club [73].

5. Each of the above matters was relevant to the issue in dispute and was a matter the Arbitrator was entitled to consider in his assessment of the claim. They explained the basis for the Arbitrator’s conclusions on the worker’s ability to earn and that was sufficient to discharge his duty to give reasons [74].

6. The Arbitrator’s conclusion as to the worker’s ability to earn was not contrary to the weight of the evidence. When considering a challenge to the adequacy of reasons, the decision must be read as a whole and “reasons need not be lengthy or elaborate” (Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430). The Arbitrator exposed his reasoning on the critical issue in dispute (the extent of the worker’s incapacity) and articulated the essential grounds on which he based his decision (Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 per McHugh JA at 280). His reasons were adequate in the circumstances [88].

The period from 24 July 2011 to 7 August 2011

7. The work as a school bus driver was short term, ceasing when school term ended in December 2011. There was no evidence as to why it was not renewed in 2012 [91].

8. In sitautions where, post-injury, a worker has (briefly) earned more than his or her pre-injury earnings, that does not prevent a finding of partial incapacity and does not mean that the income in the short term post-injury employment is the proper measure of the worker’s ability to earn under s 40(2)(b) [94].

9. The same principle applied in the present matter with regard to the worker’s work as a bus driver. One must always assess the prospects of a worker obtaining and retaining the relevant suitable employment (Muir v Ric Developments Pty Ltd t/as Lane Cove Poolmart [2007] NSWWCCPD 161 approved in Ric Developments Pty Ltd t/as Lane Cove Poolmart v Muir (2008) 71 NSWLR 593). The worker’s prospects in that regard were, due to his injuries, substantially reduced. It was therefore open to the Arbitrator to assess his ability to earn at $500 per week.

10. The figure of $500 per week was consistent with the evidence from the worker and Dr Hopcroft, which the Arbitrator accepted. It was slightly higher than the worker’s wage with the Club but slightly lower than his wage as a bus driver. Although not expressed this way, the Arbitrator adopted the kind of “weighted average” approach referred to in Mangion v Visy Board Pty Ltd [1991] NSWCC 1; 8 NSWCCR 175 and approved in Cowra Shire Council v Quinn [1996] NSWSC 143; 13 NSWCCR 175 [96].

11. The Arbitrator did not err in not finding that the worker’s ability to earn was the sum of $610.90 he earned for the few months he worked for Tamworth BusLines [97].

The Discretion

12. The Arbitraror dealt with the discretion, in s 40(1), step four in the Mitchell analysis when deciding:

“…in accordance with section 40(1) whether and to what extent the reduction so calculated appears proper in the circumstance of the case and exercise that discretion accordingly. There have been various circumstances in the matter which create some reservation in my mind. In all the circumstances I propose to discount the reduction in accordance with Judge Hughes[’] decision. [104]

13. Hughes CCJ made an award under s 40 for $100 per week from 9 December 1999 to date and continuing. The reduction in the exercise of the discretion appeared to have been $27 per week. However, his Honour did not explain why he made that deduction. The schedule of earnings filed in the Compensation Court showed the difference between the worker’s probable earnings and his actual earnings between November 2000 and April 2001 to be $101.01 per week. Thus, even when working as a security guard, the worker’s loss was $101.01 per week. His loss between December 1999 and October 2000 was between $470.50 and $483.30 per week. The explanation may be that the parties agreed on different wage figures at the hearing. Nevertheless, there was no explanation in the judgment for the exercise of the discretion [105].

14. As there was no explanation in the judgment for the exercise of the discretion, it follows that exactly what the Arbitraror meant when he said that he proposed to discount the reduction in accordance with the decision of Hughes CCJ was unclear. In those circumstances, one would have thought that, if the Arbitraror erred in the exercise of the discretion, the error was (arguably) against the worker’s interests. However, the worker did not challenge the award [106].

15. The discretion in s 40(1) is a broad one (Mitchell) and appellate intervention will only be warranted only upon the principles stated in House v The King [1936] HCA 40; 55 CLR 499. No submission on appeal came close to establishing the kind of error envisaged in that decision. The main complaint appeared to be that the Arbitrator did not reduce the step three figures by a sufficient amount. Other than the submission about the work as a security guard, which the Deputy President rejected, it is unclear why that was so [110].

16. If the Arbitrator erred on this issue, he erred in saying that he proposed to “discount the reduction in accordance with Judge Hughes[’] decision” in circumstances where it was unclear how his Honour exercised the discretion. It was arguable that the discretion did not apply and there should have been no reduction at step four. However, as the worker did not challenge the award the Arbitrator’s decision stands [112].

Grzenda v Menzies Property Services Pty Ltd [2014] NSWWCCPD 35

Section 17 of the 1987 Act; employment to the nature of which the injury was due; findings made in absence of argument having been advanced; procedural fairness

O’Grady DP

13 June 2014

Facts:

The appellant worker was employed by the respondent between 1993 and 15 February 2001. The worker had not worked since. A summary of the worker’s employment history between 1965 and February 2001 established that the worker had, during that period, been employed in numerous jobs, all of which were described by her as being noisy working environments. Her work with the respondent was that of a cleaner. The worker worked at the Thurgoona Public School, near Albury New South Wales. During school term she worked a broken shift being 5.00 am to 8.00 am and thereafter between 3.00 pm and 6.00 pm, five days a week. The worker’s statement dated 4 September 2013 identified the equipment used in the course of that work and included a backpack vacuum cleaner, an electric polisher and an industrial blower. The statement included detail of the duration of individual tasks and a description of the noise level of each machine.

During school holidays, the worker’s work hours were altered to a single shift between 6.00 am and 12.00 midday, 5 days per week to conduct a major clean up of the school premises. The worker was required to operate the vacuum cleaner throughout one shift and for a few hours the following day. During holidays, the worker was occupied cleaning outdoors using the industrial blower for the entirety of her shift. The polisher was operated by the worker for two full straight days during the holiday cleaning operation. The worker described having a “buzzing noise” in her ears for “a couple of hours after” using the machines which she identified in that statement. It was also stated that whilst operating any of the equipment identified she could not hear any person who attempted to speak to her. She would need to turn off the machine to enable her to hear what was being said. The worker stated that she always wore “earmuffs” when using the blower.

In May 2012, the worker forwarded a notice of claim against the respondent and its insurer in respect of lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act). The worker alleged she had suffered 16.5 per cent binaural loss of hearing as a result of exposure to relevant industrial noise and that the respondent was the last employer who had employed her in employment to the nature of which the injury was due within the meaning of s 17 of the 1987 Act. The alleged deemed date of injury was 15 February 2001. The notice had also included a claim in respect of the cost of hearing aids.

The respondent’s insurer, on 20 December 2012, gave written notice to the worker’s solicitors that the claim had been declined. That correspondence constituted notice, as required by the provisions of s 74 of the 1998 Act, as to the matters in dispute and the reasons for denial of liability.

The denial of liability was founded upon two matters; firstly it was disputed that the worker’s employment with the respondent was employment to the nature of which the alleged injury was due and, secondly, that the worker had no entitlement as she had not sustained an injury, or in the alternative, “she had not met the six per cent binaural hearing loss or more due to employment with [the respondent]”. The respondent’s reference to “due to employment with [the respondent]” in the notice demonstrated a fundamental misunderstanding of those provisions which govern claims concerning loss of hearing such as the present, being one in respect of a loss “which is of such a nature as to be caused by a gradual process”: s 17(1) of the 1987 Act.

The issues in dispute on appeal were that the Arbitrator erred in:

• the manner of determining whether the tendencies, incidents or characteristics of Mrs Grzenda’s employment were of a type which could give rise to injury being industrial deafness;
• disregarding the evidence of Dr Bal Krishan;
• failing to deal with the evidence found in the Noise Survey dated November 2003, and
• in determining that the appellant, when operating the leaf/fuel blower did so “at safe acoustic levels because she always wore ear protection”.

Held: The findings made by the Arbitrator and the orders made as found in the Certificate of Determination dated 6 March 2014 are revoked. The matter is remitted for hearing afresh by another Arbitrator.

Disposition of the appeal

1. On the present facts, adopting the analysis of Cole JA inBlayney Shire Council v Lobley (1995) 12 NSWCCR 52 (Lobley), it was necessary that the Arbitrator determine whether the employment in which the worker was engaged by the respondent, being her last employment prior to notice of claim, was employment which “had the tendencies, incidents or characteristics ... of a type which could give rise to the injury in fact suffered”. The Arbitrator appeared to have considered those authorities relevant to the proper application of s 17, and the evidentiary requirements of proof of “noisy” employment. However, when addressing the respondent’s defence that it was not relevantly “noisy”, the Arbitrator erred, as argued by the worker, in the manner of his application of the relevant test [53]–[54].

2. It is clear that the Arbitrator’s conclusion that the worker had failed “to prove hearing loss while in the employment of the respondent” had led him to find in favour of the respondent. Whether the worker had suffered hearing loss “while in the employment of the respondent” had no relevance to the question before the Arbitrator. The error in so approaching the questions raised by the terms of s 17 had been foreshadowed by the Arbitrator’s statement of the issues for determination. The Deputy President noted in passing that the Arbitrator’s statement contained another error in that, contrary to the Arbitrator’s assertion, there was never any issue as to whether the worker was employed by the respondent [55].

3. Whilst the respondent acknowledged that the Arbitrator failed to explicitly state that his findings led him to conclude that the respondent had not been shown to be relevantly “noisy”, the Deputy President identified difficulties concerning the findings as to ear protection. At the hearing, the Arbitrator acknowledged that the Commission could not speculate as to the effects, if any, of the use of ear protection. The Arbitrator noted that the noise surveys demonstrated that the fuel blower operated by the worker emitted noise in excess of 85 decibels, the acknowledged safe upper limit of noise exposure. The Arbitrator in so concluding had not, in the Deputy President’s view, touched upon the difficult questions addressed in Lobley which may arise in a matter concerning an allegation of relevantly “noisy” employment and the use of ear protection [57]–[60].

4. Given the respondent’s acceptance before the Arbitrator that the “effect” of ear protection was unknown, the Deputy President found that the Arbitrator had erred in the finding concerning the consequences of the worker’s use of ear protection. Such finding was made in the absence of any such argument having been advanced on behalf of the respondent. Leaving aside the question of onus of proof and those other matters raised by Cole JA in Lobley, it was clear that the worker’s complaint as to the Arbitrator’s “approach” was well founded. With respect to this finding, the worker had been denied procedural fairness. Further error on the part of the Arbitrator had, in the Deputy President’s view, been made out [62].

5. The Arbitrator’s errors in asking the wrong question concerning the application of s 17 and failing to accord procedural fairness concerning the ear protection finding to the worker had each relevantly affected his decision. In the circumstances, it was necessary that the Arbitrator’s decision be revoked on this appeal. In such circumstances, other matters raised in submissions were not addressed [63].

6. The parties may consider whether the state of the expert evidence is such as to permit a fair and just determination of the matters in dispute. The liability question, being whether Mrs Grzenda’s employment with the respondent was relevantly “noisy” might, arguably, give rise to the need to consider the relevance of the use by Mrs Grzenda of ear protection. That issue, if it is to be ventilated, will necessitate examination of those matters raised by Cole JA in Lobley. The questions raised by his Honour would undoubtedly require close attention in argument [69].

7. The Deputy President noted that should a finding be made in favour of Mrs Grzenda with respect to the fundamental liability question, that is whether the employment was relevantly noisy, a referral to an AMS as required by s 65(3) of the 1987 Act would then be appropriate (cf Boggian v James Hardie & Co Pty Ltd, McGrath J, Workers Compensation Commission, No 8847 of 1982, 20 April 1983, unreported, where his Honour considered the legislative predecessor of the presently relevant provisions; see also discussion per Neilson J in Smith v Norton Pty Ltd [1996] NSWCC 23; (1996) 13 NSWCCR 277). That being so, the question as to the “nature” of the loss, that is the existence or otherwise of noise related hearing loss, would be conclusively determined by the AMS: s 326(1)(c) of the 1998 Act. In such circumstances the difficulties which have, in the past, attended the resolution of matters concerning the distinction, as perceived, between liability disputes and medical disputes where causation is disputed (see Greater Western Area Health Service v Austin per Campbell J [2014] NSWSC 604) may not arise [70].

Cargill Meat Processors Pty Ltd v Tuson [2014] NSWWCCPD 37

Weight of evidence; assessment of expert evidence; application of principles in Paric v John Holland (Constructions) Pty Ltd [1958] HCA 58; 62 ALR 85; alleged failure to give reasons; whether need for spinal surgery resulted from accepted back injury; application of principles in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796

Keating P

20 June 2014

Facts:

The appellant employed the respondent worker as a meat boner at its abattoir in New South Wales.

The worker alleged that on 16 December 2010 he was pulling apart strip loins on the boning stand when he felt a sudden twinge and a burning sensation in his lower back.

On 6 April 2011, the worker resigned from the appellant in an attempt to try and find work that was less stressful for his back condition. The worker was successful in gaining employment with two different employers. Between 6 June 2011 and 1 July 2011 the worker was employed as a general cattle hand and from 13 September 2011 until 27 October 2011 as a farm hand.

It was not in dispute that the worker suffered from a disc protrusion at L5/S1 which extended into his spinal canal which required immediate surgery. However, the insurer refused to meet the costs of the proposed surgery.

On 22 June 2013 the worker underwent the proposed surgery, a L5/S1 Laminectomy Discectomy, Decompression and Rhizolysis operation. Therefore, the issue for determination by the Arbitrator involved an indemnity claim for reimbursement of the cost of the surgery, not a claim for proposed treatment as initially pleaded.

A Commission Arbitrator found that the worker’s need for treatment resulted from the injury on 16 December 2010 in the course of his employment with the appellant employer to which injury his employment was a substantial contributing factor. The employer was ordered to pay the worker’s s 60 expenses.

The issues in dispute on appeal were whether the Arbitrator erred in:

• finding a causal nexus between the injury of 16 December 2010 and the need for surgery, and
• failing to give adequate reasons for his decision.

Held: The Arbitrator’s determination was confirmed.

Submissions and discussion

1. The Arbitrator accepted that the worker had complained of back pain from time to time prior to the injury on 16 December 2010. However, for the reasons explained by the Arbitrator he concluded that there had been a misunderstanding as to the nature of the history of prior back pain [115].

2. After considering the medical evidence the Arbitrator correctly concluded that a history of continuous back pain for three and a half years (as noted in the general practitioner’s clinical notes) prior to 16 December 2010, was inconsistent with the records retained by the worker’s medical centre. If the worker was suffering back symptoms between 2007 and 2010, the symptoms were not of sufficient intensity to cause him to seek any medical advice or treatment. Therefore, viewed in the proper context, the worker’s back symptoms prior to 16 December 2010 were of limited relevance to the issues in dispute [116].

3. The purpose of the worker’s visit to the neurosurgeon was to explore treatment options for his condition which by then had become acute. In circumstances where it was accepted the worker had an accepted back injury, it was understandable that both the doctor and the worker would have been more focused on his condition than the minutiae of his history, and for these reasons the neurosurgeon’s history did not advance the issue before the Arbitrator [118].

4. The physiotherapist’s history supported the worker’s claim that although he may have had intermittent lower back pain, from time to time, he suffered from an episode of intense lower left back pain, following the reported incident, which persisted. Whilst the Arbitrator made no reference to the history recorded by the physiotherapist, it was of no consequence because, if anything, it supported the Arbitrator’s conclusion [119].

5. The medical records revealed that the only other recorded incident with respect to the worker’s back occurred on 9 November 2010, when the worker was involved in a fight on Melbourne Cup Day. It was apparent from the records that the worker was not offered any treatment or follow-up investigations and was invited to return to seek further treatment if his back did not improve. There was no evidence that he sought any further treatment. It was inferred that he continued working as a boner after that incident. When compared to the history of regular complaints and treatment following the injury on 16 December 2010, it was apparent that this was a minor and transient incident [120].

6. The appellant submitted that the report of the orthopaedic surgeon, which was accepted by the Arbitrator, did not satisfy the test for the acceptance of expert evidence discussed in Paric v John Holland (Constructions) Pty Ltd [1958] HCA 58; 62 ALR 85 (Paric). It was submitted that the inaccuracies in the reported history were not merely trifling, but were substantive [125]. The appellant submitted that the Arbitrator erred in his acceptance of the orthopaedic surgeon’s opinion as opposed to that of the appellant’s qualified specialist, who it was submitted had a more accurate history and whose opinion should have been preferred [126].

7. The facts assumed by an expert do not have to correspond “with complete precision” with the facts established. It is a question of fact whether they are “sufficiently like” the facts established “to render the opinion of the expert of any value” (Paric). The orthopaedic surgeon’s history satisfied this test and the Arbitrator was entitled to accept it. The fact that the orthopaedic surgeon did not record a history of two isolated episodes of short-lived back pain or whether the worker commenced on light duties within an hour or at some later time proximate to the occurrence of the admitted injury did not diminish the weight to be attached to his opinion. For these reasons the President rejected the submission that the orthopaedic surgeon’s evidence was not sufficiently like the established facts to make it reliable [131].

8. The Arbitrator’s decision did not turn on an assessment of the weight to be attached to the expert evidence. The Arbitrator’s decision turned on his acceptance of the worker’s evidence of a history of continuing back symptoms following the injury on 16 December 2010. The history provided ample evidence to support the Arbitrator’s conclusion that the worker suffered from continuing back symptoms following his accepted injury on 16 December 2010 [132].

9. The Arbitrator also correctly concluded that notwithstanding an investigation into the worker’s employment after leaving the appellant, there was no evidence of any further injury or any continuing aggravation of his back injury from his post injury employment. For this reason the Arbitrator was correct to reject the submission put to him at the arbitration that there had been a break in the causal chain by reason of the worker’s post injury employment [133].

10. The question in dispute was whether the need for the treatment (surgery) resulted from the accepted injury in the sense discussed in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796 (Koorangang) [135]. Although the Arbitrator did not refer to Koorangang, in its terms, he approached the assessment of the evidence by making a commonsense evaluation of the causal chain. His findings demonstrated that he applied the correct principles and acted in accordance with binding authority [136].

11. The President rejected the submission that the Arbitrator erred in not preferring the opinion of the appellant’s qualified specialist. There was ample evidence including the worker’s unchallenged evidence and the objective evidence of a continuity of symptoms to support the Arbitrator’s conclusion that there had been an unbroken causal chain between the onset of symptoms on 16 December 2010 and the need for subsequent surgery [139].

Reasons

12. The President accepted that the Arbitrator’s reasons did not recite all of the evidence and the submissions before him, however, he was not required to do so to discharge his statutory obligation (Mifsud v Campbell (1991) 21 NSWLR 725). His reasons addressed the critical issue, namely whether the treatment in 2013 resulted from the accepted injury in 2010 [151].

13. The Arbitrator’s reasons adequately explained the essential grounds on which his decision rested (Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247). They were sufficient to discharge his statutory obligation to provide reasons, consequently this ground of appeal failed [153].

Sedrak v Rooty Hill RSL Club Ltd [2014] NSWWCCPD 40

Claim for weekly compensation in addition to payments being voluntarily made at the maximum statutory rate; whether worker entitled to two separate payments of weekly compensation for two injuries; Cordina Chicken Farms Pty Ltd v Thoa Hong Le [2008] NSWWCCPD 125 discussed and applied

Roche DP

30 June 2014

Facts:

The appellant worker worked for the respondent employer as a kitchen hand from April 1999 until 2 September 2008. His duties were heavy and arduous and required him to regularly lift, among other things, 20 litre containers of oil. In the course of his employment, he suffered various incidents affecting his cervical spine (neck) and lumbar spine (back).

The worker’s case before the Arbitrator was that he suffered only two relevant injuries and was entitled to two separate payments of weekly compensation. The first injury was an injury to his neck, which, because of the disease provisions, was deemed to have happened on 29 April 2003 (the neck injury/cervical spine injury). The second was an injury to his back on 24 July 2007, which counsel described at the arbitration as a “frank injury” (the back injury/lumbar spine injury).

The Club’s case was that the worker suffered an aggravation injury to both his neck and his back caused by the nature and conditions of his employment up to September 2008 and that he was being paid the maximum statutory rate of weekly compensation for the effect of those injuries.

After the neck injury, the worker had various periods off work and ultimately returned to work on light duties. He continued those duties until they were withdrawn on 2 September 2008. A dispute arose as to the worker’s entitlement to compensation for his neck injury that resulted in him bringing proceedings in the Commission in 2009. That application was resolved, by consent, with an award in the worker’s favour on 8 September 2009 for the payment of weekly compensation of $125 per week from 1 June 2004 to 23 July 2007 and from 5 August 2007 to 1 August 2008.

Meanwhile, from 2 September 2008, the Club’s insurer, Allianz Australia Workers Compensation (NSW) Ltd (Allianz), had commenced paying the worker weekly compensation at the maximum statutory rate for a worker with a dependant spouse and child in respect of total incapacity. Whether these payments were for the back injury only, as the worker contended, or the combined effect of the back injury and the neck injury, or some other combination of injuries, as the Club contended, was the subject of submissions at the arbitration.

On 2 November 2010, the worker claimed additional weekly compensation for his neck injury. On 19 January 2011, Allianz issued a s 74 notice disputing the worker’s entitlement to any additional weekly compensation on the ground that:

“you are currently receiving the maximum amount of weekly benefits compensation to which you are entitled as you have no entitlement to receive separate payments of weekly benefits compensation in respect to the injury sustained on 29 April 2003 and in respect to the injury sustained on 24 July 2007 as each injury independently results in you being totally unfit for work and each injury also contributes to a single incapacity.”

Later in 2011, the worker claimed lump sum compensation for a whole person impairment due to his neck injury. The parties settled this claim for 25 per cent whole person impairment plus pain and suffering.

Also in 2011, but in separate proceedings, the worker claimed lump sum compensation in respect of his 24 July 2007 back injury. After an assessment by an AMS, and a subsequent appeal to a Medical Appeal Panel, the parties settled this claim for the amount assessed by the Medical Appeal Panel. They filed consent orders with the Commission on 18 April 2012 providing for an award for the worker under s 66 in the sum of $14,437.50 in respect of a 10 per cent whole person impairment as a result of injury to the worker’s lumbar spine “which notionally occurred on 24 July 2007”, plus $11,250 for pain and suffering.

In an Application filed with the Commission on 28 November 2012, the worker sought weekly compensation from 2 September 2008 to 31 December 2012 due to the injury to his cervical spine, arms and shoulders on 29 April 2003. Though it was not stated in the Application, it was accepted that the claim was for weekly compensation in addition to the weekly compensation being voluntarily paid by Allianz.

The Club’s Reply, filed on 15 January 2013, disputed liability on the ground stated in the s 74 notice, namely, that the worker suffered a single incapacity and was being paid on the basis that he was totally incapacitated. The Reply also disputed liability for the pleaded injury to the worker’s cervical spine, both arms and shoulders, but admitted that he suffered a back injury on 24 July 2007.

Given the history of the matter, the denial that the worker had injured his cervical spine, shoulders and right arm on 29 July 2003 was surprising. Nevertheless, the denial of liability for the cervical spine injury seems to have provided the basis for submissions at the arbitration on the issue of injury and for the Arbitrator’s decision that injury was in issue. (Had the Arbitrator not found that injury was in issue there would have been no basis for her order that the Club pay the worker’s costs of the arbitration.)

At the arbitration on 12 February 2014, counsel for the Club submitted that the incapacity for which Allianz was paying voluntary weekly compensation was the incapacity “both for the cervical spine and the lumbar spine” and that the worker had no further entitlement to such compensation. He said that the worker had to demonstrate that he suffered separate injuries and separate and distinct incapacities.

The Club contended that there was only one cause of action, with two separate consequences, one to the neck and one to the back. It said that both related to an aggravation of degenerative changes by a disease process caused by the nature and conditions of the worker’s duties (over the whole period of his employment with the Club) and that the incapacity that related to the neck was “intermingled” with the incapacity that related to the lumbar spine.

Counsel for the worker, Mr Harrington, submitted that the worker had suffered separate injuries, namely, an injury to his neck on 29 April 2003 and an injury to his back on 24 July 2007 and that those injuries resulted in two separate incapacities that entitled the worker to additional weekly compensation in addition to voluntary payments already made by Allianz.

The Arbitrator found that the worker suffered an injury to both his cervical spine and lumbar spine. She said it was necessary to determine whether those injuries resulted in one incapacity or two. After reviewing the evidence, the Arbitrator concluded that there was an “intermingling” of the worker’s symptoms leading to a single incapacity for employment. He therefore had no entitlement to two awards or payments of weekly compensation.

The Arbitrator’s formal findings were:

• the worker sustained injury to his cervical spine in the course of his employment with the Club on 24 October 2001 and again on 29 April 2003 and as a result of the nature and conditions of his employment with the Club up to September 2008;
• the worker sustained injury to his lumbar spine in the course of his employment with the Club on 27 February 2004 and in March 2007 and 24 July 2007 and as a result of the nature and conditions of his employment with the Club up to September 2008;
• the worker’s incapacity resulting from injury to his cervical spine was not separate and distinct from the incapacity resulting from the injury to his lumbar spine, each of which were (sustained) in the course of his employment with the Club, and
• the worker was in receipt of voluntary payments of compensation at the (maximum) statutory rate for a worker with a dependant wife and one child.

The worker appealed.

The issues in dispute on appeal were whether the Arbitrator erred in:

• finding that the worker’s two injuries did not result in two separate and distinct incapacities;
• her “assessment that the injury to the back and neck occurred as a result of the nature and conditions of employment when this issue was not a matter in dispute before the Arbitrator”, and
• in her assessment that there were not two distinct and separate incapacities flowing from the injury to the cervical spine as a result of the injury in April 2003 and the lumbar spine as a result of the injury in July 2007.

Held: The appeal was unsuccessful.

1. Given the history of the matter, it was not open to the Club to dispute the injury to the worker’s cervical spine on 29 April 2003. That being so, and given the Club accepted liability for the back injury of 24 July 2007, it is difficult to see how it could be argued that the cause of action related to an aggravation of degenerative changes by a disease process caused by the nature and conditions of the worker’s employment between April 1999 and September 2008. That was especially so in circumstances where there was no persuasive evidence to support that submission [35].

2. It is for applicants to plead their claims in the Commission (NSW Police Force v Gurnhill [2014] NSWWCCPD 12, applying Strasburger Enterprises Pty Ltd t/as Quix Food Stores v Serna [2008] NSWCA 354). The worker did so by relying on the injury to the cervical spine on 29 April 2003. However, though he also relied, in submissions, on the accepted lumbar spine injury on 24 July 2007, the worker had not pleaded that injury in the Application. Indeed, the Application made no attempt to properly explain the basis of the claim [36].

3. Moreover, it was far from clear, and certainly was not accepted by Allianz, that the voluntary payments of weekly compensation were being made solely as a result of the effects of the 24 July 2007 back injury. That being so, it was open to counsel for the Club to argue, as it did, that the incapacity related to the neck injury (whenever it occurred) was intermingled with the incapacity related to the back injury (whenever it occurred) [37].

4. It therefore followed that, even if it was accepted that the Arbitrator erred in determining that the worker suffered his injuries as a result of the nature and conditions of his employment, that error made no difference to the outcome. That was because the Arbitrator found that the worker suffered two injuries: an injury to his cervical spine and an injury to his lumbar spine [38].

5. Whether those injuries were received only on 29 April 2003 and 24 July 2007, as counsel for the worker had contended, or as a result of the nature and conditions of employment up to September 2008, as the Club had argued, made no difference to the ultimate issue the Arbitrator had to determine. The expressions “frank injury” and “nature and conditions of employment” were merely “descriptions of mechanisms for suffering an injury” (Wyong Shire Council v Paterson [2005] NSWCA 74; 5 DDCR 13) [39].

6. The crucial point was that the Arbitrator accurately identified the ultimate issue for determination to be:

“whether [the worker] ha[d] an incapacity for employment as a result of the injury to his cervical spine and whether that incapacity entitles him to a concurrent payment of compensation. In other words does he have two separate and distinct incapacities entitling him to a payment of two awards of compensation?” [40]

7. The Arbitrator’s analysis of the evidence comfortably established that the worker had a single incapacity, namely, an incapacity to engage in full-time employment involving bending, use of his arms at or above head height, or lifting over five kilograms. That incapacity resulted from the combined effect of his neck injury and his back injury. That was so regardless of when or how the worker received those injuries [47].

8. As explained in Cordina Chicken Farms Pty Ltd v Thoa Hong Le [2008] NSWWCCPD 125, the determination of whether two injuries have resulted in separate and distinct incapacities is not done in the abstract, but will be a question of fact depending on the circumstances in each case. It should not be assumed, as appears to have happened in the present case, that a worker who has received two injuries to different parts of the body will automatically be entitled to two payments of weekly compensation [48].

9. The evidence in the present case did not come close to establishing that the worker suffered two separate and distinct incapacities and his case was bound to fail, regardless of the Arbitrator’s finding that the injuries had been caused by the nature and conditions of his employment up to September 2008. On the evidence tendered, it was open to the Arbitrator to find that the worker suffered only one incapacity. That finding disclosed no error [49].

Wilkie Fleming & Associates Pty Ltd v Highlands [2014] NSWWCCPD 39

Interlocutory orders; leave to appeal; defective s 74 notice; leave to dispute unnotified matters refused; alternative finding if leave had been granted; alleged absence of jurisdiction

Roche DP

26 June 2014

Facts:

On 6 July 2005, the respondent worker injured his left knee in the course of his employment for the appellant employer. At that time, Allianz Australia Workers Compensation (NSW) Ltd (Allianz) insured the appellant.

On 23 September 2005, the worker underwent surgery to his knee, which revealed significant degenerative changes in the medial side of the knee and a torn meniscus. On 1 April 2009, due to a deterioration in the worker’s condition, he underwent further surgery on his left knee. On 27 May 2010, the worker stopped work for the appellant. On 16 March 2011, the worker underwent a unicompartmental left knee replacement.

On 27 June 2012, in a letter addressed to Allianz, the worker’s solicitors claimed lump sum compensation on his behalf in the sum of $24,500 under s 66 of the 1987 Act in respect of an 18 per cent whole person impairment as a result of the 2005 injury, plus $40,000 compensation for pain and suffering and unspecified medical and treatment expenses. The letter alleged the worker suffered a torn medical meniscus to his left knee on 6 July 2005 “which progressively worsened requiring arthroscopies in 2005 and 2009 before undergoing a unicompartmental left knee replacement in March 2011”. The letter also requested the insurer to determine liability for the worker’s claim for medical expenses within 21 days, but did not particularise expenses.

On 24 August 2012, Allianz issued a notice under s 74 of the 1998 Act in which it denied liability. So far as was relevant to the appeal, the letter said that Allianz had “concluded that”:

• the worker continued to be employed by the appellant until at least May 2010;
• Allianz ceased insuring the appellant on 24 November 2009;
• the worker’s knee claim was finalised on 14 February 2007;
• Allianz had no information of the 2009 or the 2011 operations or that treatment was a result of the 2005 injury, and
• (as the worker had continued to be employed by the appellant beyond the finalisation of the “06/07/2005 claim and proceeded to obtain treatment beyond finalisation and risk without our knowledge we deem that you have not fully particularised your claim and with the information available we dispute that we are on risk for the current claim of [sic] the knee”.

This notice was clearly defective and did not comply with s 74, which requires that the notice contain a concise and readily understandable statement of the reason the insurer disputes liability and the issues relevant to the decision. Nevertheless, the rejection of the claim triggered a dispute under s 289 of the 1998 Act to allow the matter to be referred to the Commission and to give the Commission jurisdiction. On 24 December 2012 the worker filed an Application to Resolve a Dispute in the Commission. He claimed hospital and medical expenses of $5,000 for treatment, care or related expenses incurred or needed for an arthroscopy on his left knee and for a left knee medial unicompartmental knee replacement, and $26,950 (the correct amount should have been $24,500) in respect of an 18 per cent whole person impairment due to the injury to his left knee, plus an unspecified amount for pain and suffering.

On 25 February 2013, the appellant’s solicitors filed a Reply confirming that the matters in dispute were the matters “as per the dispute notice(s) attached to the Application” (that is, as per the s 74 notice of 24 August 2012 referred to above) and adding:

“The [appellant] disputes that [the worker’s] claimed whole person impairment is attributable to injury on 6 July 2005.

The [appellant] has requested clinical notes from [the worker’s] treating doctors and if such records are not produced prior to [the] teleconference, the [appellant] intends to seek leave to issue Directions for Production.”

At the arbitration on 25 February 2014, counsel for the appellant sought leave under s 289A(4) of the 1998 Act to argue two issues not previously identified as being in dispute. They were:

• that the worker suffered a further injury with a deemed date of injury after its period of risk (the further injury issue), and
• that the need for the 2011 surgery did not result from the 2005 injury (the nexus issue).

The Arbitrator heard argument on the application for leave to dispute the additional matters and full argument on the merits of the nexus issue. He refused leave to dispute either matter. In respect of the further injury issue, the Arbitrator said that:

• the appellant had offered no explanation for having not raised the issue earlier;
• the argument that there was somehow a further injury “characterised by the disease provisions of the Act simply because a procedure occurred after the date of the insurer ceased being on risk, or indeed after the date of cessation of employment” had “no merit”, and
• the appellant produced no evidence that any of the activities undertaken by the worker in his work with the appellant, or in his subsequent employment, in any way materially or substantially contributed to any aggravation, acceleration, exacerbation of the disease.

The appellant has not challenged these findings.

In respect of the nexus issue, the Arbitrator said that:

• the difficulty the appellant faced was its “inexpert, incomplete and noncompliant” s 74 notice, which did not adequately set out that the worker was to address the issue of whether the (need for) the 2011 surgery resulted from the admitted injury in 2005;
• the worker was prejudiced (by the late raising of the issue) because he could have sought more detailed evidence to address the point, and
• the insurer had had since June 2012 to fully investigate the claim, to obtain an independent medical report, and put on evidence, but had not done so. Nor had it sought evidence from the appellant as to the nature of the worker’s duties subsequent to the initial injury.

If he was wrong in refusing to grant leave to the appellant to dispute the nexus issue, the Arbitrator considered, in the alternative, the merits of that issue. After hearing detailed submissions from counsel for the appellant, reviewing the evidence and relevant authorities, including Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796, the Arbitrator concluded that the condition that required the 2011 surgery resulted from a deterioration in the worker’s left knee as a result of the injury on 6 July 2005. The Commission issued a Certificate of Determination on 27 February 2014 in the following terms:

“The determination of the Commission in this matter is as follows:

1. The claim for lump sum compensation for permanent impairment arising from injury to the left lower extremity(knee) on 6 July 2005 is referred to the Registrar for referral to an Approved Medical Specialist (AMS) to assess Whole Person Impairment.

2. The AMS is to be provided with documents attached to the Application and reply and the applicant’s statement filed on 24 January 2014.

Finding:

The condition which required left knee replacement surgery results from the injury on 6 July 2005.”

The appellant did not challenged the Arbitrator’s orders in paragraphs one and two of the Certificate of Determination, but sought to challenge the Arbitrator’s finding that the condition that required the left knee replacement surgery resulted from the injury on 6 July 2005. The appellant contended that, having refused leave for that issue to be disputed, the Arbitrator had no jurisdiction to make that finding.

Held: Leave to appeal was refused.

Interlocutory

1. Counsel for the appellant submitted that the Arbitrator’s “finding” was “effectively final relief” because it dealt with the nature of the injury and it was not open to the Arbitrator to make that finding. He said that the finding was a direction to the AMS to apply AMA5 in a particular way [24].

2. The appellant’s submissions were inconsistent with established authority. The Arbitrator’s orders were interlocutory. The test of whether a court’s order, determination or ruling is interlocutory “depends on the nature of the order made; the test is: does the judgment or order, as made, finally dispose of the rights of the parties?” (Licul v Corney [1976] HCA 6; 180 CLR 213) [25].

3. With respect to the claim for lump sum compensation, the Arbitrator made no order finally disposing of the parties’ rights. He merely referred the claim for lump sum compensation to an AMS for assessment. In a case where injury has not been disputed, that order was appropriate (Greater Taree City Council v Moore [2010] NSWWCCPD 49; 12 DDCR 39) [26].

4. Neither that order, nor the challenged “finding”, finally disposed of the parties’ rights. An AMS will determine the extent of the worker’s whole person impairment and that finding, subject to any appeal to a Medical Appeal Panel under s 327, will be conclusively presumed to be correct as to the extent of whole person impairment as a result of the injury (s 326 of the 1998 Act). Contrary to counsel for the appellant’s submission, in making his or her assessment of whole person impairment, the AMS is not bound by the Arbitrator’s “finding” (Haroun v Rail Corp of New South Wales [2008] NSWCA 192; 7 DDCR 139). It followed that granting leave to appeal the Arbitrator’s finding was neither necessary nor desirable for the proper and effective determination of the claim for lump sum compensation [27].

5. With respect to the claim for hospital and medical expenses, which counsel for the appellant ignored in submissions, which wrongly stated that the claim was only for lump sum compensation, the Arbitrator made no order for the payment of those expenses. It follows that the Arbitrator made no order finally disposing of that part of the claim. As the Arbitrator refused leave to the appellant to dispute the two unnotified matters, and as the appellant offered no other valid reason for disputing the claim for hospital and medical expenses, he was entitled to enter an award for the payment of those expenses, without making the challenged “finding”. For reasons that have not been explained, he did not do so. Nevertheless, the worker did not challenge that failure and it was not appropriate to deal with it [28].

6. It followed that the Arbitrator’s finding with respect to the connection between the 2011 surgery and the 2005 injury, so far as it related to the claim for hospital and medical expenses, was also interlocutory because it did not finally determine the parties’ rights on that issue and the Arbitrator made no final orders. As with the claim for lump sum compensation, it was neither necessary nor desirable for the proper and effective determination of the claim for hospital and medical expenses that leave to appeal be granted [29].

7. Leave to appeal was refused because the orders made were interlocutory and it was neither necessary nor desirable for the proper and effective determination of the dispute that leave be granted. Moreover, the proposed appeal was without merit and, if leave were granted, had no prospect of success. If he erred in refusing leave to dispute the nexus issue, the Arbitrator dealt fully with the merits of the appellant’s arguments on that issue and rightly rejected those arguments. His reasons for doing so have not been challenged and it is those reasons that provided the basis for his challenged finding [34].