Issue 1: January 2016

Tokich v Tokich Holdings Pty Ltd [2015] NSWWCCPD 72

Claim for permanent impairment compensation for primary psychological injury where prior claim made for such compensation for physical injury arising out of the same incident; whether worker making more than one claim for “an injury”; ss 65, 66(1A) and 65A of the 1987 Act; extension of time to appeal; Pt 16 r 16.2(12) of the 2011 Rules

Roche AP

21 December 2015

Facts:

In 2004, the worker was assaulted in the course of his employment. As a result of the assault, the worker received physical injuries and a primary psychological injury. In proceedings before the Commission, the worker sought, and obtained, compensation for permanent impairment resulting from the physical injuries. At the time that the worker obtained compensation for the physical injuries, no claim was made regarding the primary psychological injury as it had been under-treated or misdiagnosed.

On 2 October 2014, the worker commenced proceedings in the Commission, claiming “further” permanent impairment compensation in respect of a whole person impairment of 25 per cent as a result of a primary psychological injury from the 2004 assault.

A Commission Arbitrator held that the worker had previously made a claim for permanent impairment compensation in respect of his physical injuries, and s 66(1A) prevented him from making a further claim in respect of whole person impairment resulting from his primary psychological injury. The worker appealed.

The issue in dispute on appeal was whether “injury” in s 66(1A) means the incident concerned or the pathology that has resulted from the incident. That directed attention to whether the Arbitrator erred in failing to find that the worker was entitled to make one claim for his physical injury and one claim for his primary psychological injury, where both injuries arose from the same incident.

Held: The Arbitrator’s determination was revoked.  

Discussion and findings

1. The worker’s claim regarding his physical injuries was not “re-opened” by the later claim for permanent impairment compensation for the primary psychological injury. The claim for permanent impairment compensation for the primary psychological injury was an independent and separate claim that must be assessed on its merits [46].

2. The application of s 66(1A) turned on the meaning of “an injury”. The question was whether the one claim restriction means one claim for all injuries (of any type) arising from an “incident” or, in cases where the worker has suffered a primary psychological injury and a physical injury arising out of the same incident, it means that one claim may be made for the primary psychological injury (or injuries) and one claim for the physical injury (or injuries). The second interpretation is to be preferred [47].

3.Section 65(2) provides that if a worker receives more than one injury (meaning more than one pathology) “arising out of the same incident, those injuries are together to be treated as one injury for the purposes of” permanent impairment compensation in Div 4 of the 1987 Act. However, the note to the provision reads “[p]hysical injuries and psychological/psychiatric injuries are not assessed together. See section 65A” (emphasis added) [52]–[53].

4. Section 65A acknowledges that there is a difference between a psychological/psychiatric injury, on the one hand, and a physical injury, on the other, and that different provisions apply to each kind of injury. There are different thresholds for the recovery of permanent impairment compensation for a primary psychological injury than for a physical injury (see ss 65A(3) and 66(1)) [54], [56].

5. Sub-section (4) of s 65A makes the distinction between a primary psychological injury and a physical injury even clearer. If, arising out of the same incident, a worker receives a primary psychological injury and a physical injury, as happened in this case, the worker is only entitled to receive (permanent impairment) compensation under Div 4 in respect of the impairment resulting from one of those injuries [57].

6. Multiple physical injuries (pathologies), and secondary psychological injuries, arising out of the one incident (injurious event) are to be treated as one injury (s 65(2)). They are assessed and compensated together as one injury. Under s 66(1A), a worker is only entitled to make one claim for permanent impairment compensation for the permanent impairment that has resulted from those injuries [59].

7. However, different (“special”) provisions apply to a psychological/psychiatric injury or injuries that arise out of the same incident in which the worker has also suffered a physical injury or injuries. In that situation, the legislation expressly acknowledges that a primary psychological injury is a separate and distinct injury from a physical injury. The degree of permanent impairment that results from the psychological/psychiatric injury (or injuries) must be assessed separately from the physical injury (or injuries) [60].

8. For the relevant provisions to work in harmony, when dealing with a primary psychological injury to which s 65A applies, the reference to “an injury” in s 66(1A) must distinguish between a primary psychological injury and a physical injury. In other words, a claim for permanent impairment compensation for the permanent impairment that has resulted from a physical injury or injuries arising out of one incident (that is, multiple pathologies from the one injurious event) is different from and separate to a claim for permanent impairment compensation for permanent impairment that has resulted from a primary psychological injury or injuries arising out of the same incident [61].

9. As s 65A expressly acknowledges that the worker’s primary psychological injury is a separate and distinct injury, even though it arose out of the same incident, the worker was entitled to make one claim for permanent impairment compensation for permanent impairment that had resulted from that injury [62].

10. Though there may well be some cases where a claimant’s physical injuries and primary psychological injuries can be assessed at or about the same time, there will be many cases, the present one being an example, where that is not so [63].

11. In circumstances where s 65A expressly distinguishes between physical injuries and primary psychological injuries arising from the same incident, it would be illogical and contrary to commonsense to require claims for permanent impairment compensation for those injuries to be made at the same time. They are clearly different injuries and are treated differently in s 65A. They are not intended to be assessed “together” (s 65(2)) and cannot be treated as “one injury”, as is required for multiple physical injuries that arise from the one incident [64].

12. In cases involving physical injuries and primary psychological injuries arising out of the same incident, the reference in s 66(1A) to “one claim” for permanent impairment compensation in respect of the permanent impairment that results from “an injury” is a reference to one claim for the physical injuries and one claim for the primary psychological injuries. As a result, the worker’s claim for permanent impairment compensation for his primary psychological injury was not a second claim, but was his one claim for that injury and the Arbitrator erred in finding to the contrary [65].

13. This interpretation was reinforced by the combined effect of s 322(3) and the notes to that sub-section and to s 65(2). Consistent with s 65(2), s 322(3) states that impairments that result from more than one injury arising out of the same incident are to be assessed together to assess the degree of permanent impairment of the injured worker. However, the notes explain that physical injuries and psychological/psychiatric injuries, which arise from the same incident, are “not assessed together” (see also the WorkCover Guides for the Evaluation of Permanent Impairment, 3^rd ed, 6 February 2009 at cl 1.18) [67]–[68].

14. Nothing in s 322A was inconsistent with this approach. Any other interpretation would mean that a person in the worker’s position would not be entitled to have his primary psychological injury assessed because he had already had an assessment of his physical injuries. That was clearly not what the legislation intended. The intention of s 65A was that a worker who has suffered a primary psychological injury and a physical injury arising out of the same incident shall be compensated for whichever injury results in the greater amount of (permanent impairment) compensation payable under Div 4 of the 1987 Act. That can only be determined by there being two claims and two assessments, one for the physical injury and one for the primary psychological injury [69]–[70].

15. The end result gave effect to the intention of s 66(1A), namely, to restrict to one the number of claims a worker may make for permanent impairment compensation in respect of the permanent impairment that results from “an injury”. It also acknowledged the “special” provisions in s 65A, which distinguish between primary psychological injuries and physical injuries that arise from the same incident. It gave a harmonious interpretation to the provisions overall and did so in a way that was consistent with the text and context of the legislation. It was also consistent with the exception recorded in the note to s 65(2) [71].

16. The worker had suffered a primary psychological injury and a physical injury in the same incident. He was only entitled to receive permanent impairment compensation in respect of the permanent impairment resulting from whichever injury results in the greater amount of compensation being payable. That could only be determined after the permanent impairment from his two separate injuries had been claimed and assessed. Having been compensated for his physical injuries, the insurer was entitled to credit for payments previously made for the physical injuries [72].

Perri v Adriatic Concrete Pty Ltd [2015] NSWWCCPD 70

Section 66 of the 1987 Act; consequential condition resulting from injury; proof of causation; application of wrong test and consideration of irrelevant matter affecting Arbitrator’s decision; raising new point on appeal; need for remitter for redetermination

O’Grady DP

15 December 2015

Facts:

The worker was a concreter. It was not disputed that the worker had injured his ankle on 18 February 2011 in the course of his employment. The worker experienced disability, not only in his right ankle but had suffered, as he alleged, consequential conditions in his right knee and lumbar spine as well as post-surgical scarring to his right ankle. In the course of treatment, the worker put on a substantial amount of weight. On the advice of those treating him the worker underwent bariatric surgery, the aim of which was to decrease the worker’s weight, which, it was intended, would likely assist his orthopaedic recovery.

The worker claimed compensation pursuant to s 66 of the 1987 Act in respect of 44 per cent whole person impairment resulting from the ankle injury, right knee and back disability as well as alleged whole person impairment which arose following the bariatric surgery.

In March 2015, proceedings in the Commission were commenced regarding the worker’s entitlement to lump sum compensation. The matter was referred by the Arbitrator to an AMS, Dr Berry, in accordance with Pt 7 of the 1998 Act. On 6 July 2015, Dr Berry issued a MAC stating that the right knee and lumbar spine injuries, as well as the right ankle scarring, were causally related to the right ankle injury, but the bariatric surgery, while helpful to his overall condition, was not causally related to his injury.

On 13 August 2015, following a hearing before the Arbitrator, the Commission issued a Certificate of Determination making an award for the respondent in respect of the claim for consequential injury to the upper digestive tract (from the bariatric surgery) and referred the permanent impairment in respect of the right ankle and knee, the lumbar spine and scarring to an AMS. The worker appealed the award regarding the findings concerning upper digestive tract.

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

(a) finding that the injury to the worker’s upper digestive tract was not causally related to the injury to the ankle;

(b) finding that the worker’s weight gain related to his lifestyle;

(c) not finding that the worker’s weight gain related to his lack of mobility following the ankle injury;

(d) finding that it would be simplistic in terms of causation that injury, inability to move or exercise, weight gain, gastric surgery are all connected;

(e) finding her decision could have been different as to causation in terms of inactivity had the worker been a person with a pre-injury normal weight;

(f) suggesting that the worker needs evidence other than his own statement as to his pre-injury weight;

(g) finding that there is no evidence of the worker’s lifestyle, eating or factors such as this prior to the accident;

(h) stating that there was a need for evidence as to what steps the worker took to lose weight and that such evidence would be of assistance;

(i) finding that the worker had to establish that his weight gain was solely due to the ankle injury, and

(j) concluding that although inactivity could lead to a person to put on weight, it was not possible to put on as much weight as the worker did due to inactivity.

Held: The Arbitrator’s determination was revoked in part.  

Grounds one, two and three

1. It was apparent that submissions put before the Arbitrator were being restated and that no error other than that suggested concerning the correctness of the finding was identified. The argument that “[a]s a matter of common sense, which is the touchstone of causation, it is obvious that the reduction in mobility is a cause of the very significant weight gain” demonstrated this failure to identify relevant error. It was not suggested that error as stated by the Chief Justice in Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 (at 506) was committed by the Arbitrator. The submissions merely sought to cavil with the Arbitrator’s factual conclusion. Those arguments did not make out grounds one, two or three [76].

Ground four

2. It was suggested that, in concluding it would be “simplistic”, in terms of causation, “that injury, inability to move or exercise, weight gain and gastric surgery are all connected”, the Arbitrator had erred. The Deputy President was not satisfied that the Arbitrator had impermissibly disregarded a relevant matter as suggested in this ground. No relevant error was made out and this ground was rejected [78].

Ground five

3. The Arbitrator’s comment “[i]t seems to me that, as I said, I could accept certainly a degree of inactivity and, in a person with a pre-injury normal weight, the situation might be different”, appeared to be an observation by the Arbitrator that, accepting that injury had resulted in “a degree of inactivity”, had the worker been of normal weight pre injury, “the situation might be different”. The last mentioned words did not constitute a meaningful conclusion. The Deputy President was not persuaded that any conclusion was reached that required the support of expert medical evidence. It was not argued that the Arbitrator’s reasons were inadequate. Ground five failed [79]–[80].

Ground six

4. Ground six suggested error on the Arbitrator’s part in determining that the worker was required to present evidence corroborating his evidence as to his pre-injury weight. The difficulty with this complaint was that it seemed that there was no dispute as to the worker’s pre-injury weight. The Arbitrator accepted the worker’s “own evidence” that he was “significantly overweight prior to his injury”. What was meant by the Arbitrator in the relevant passage of her reasons was unclear. However, that statement could not be construed in the context of her reasons as a whole as being a statement that corroboration was required. Ground six was not made out [81]–[82].

Ground seven

5. Dr Greenberg’s (general and gastro-intestinal surgeon) history, which had been noted by the Arbitrator, did, in fact, include such detail of the worker’s “lifestyle” pre-injury. The difficulty with this ground was that no argument had been advanced as to the relevance of the Arbitrator’s suggested omission to take into account Dr Greenberg’s history, that is, there was no suggestion that any such error affected the Arbitrator’s decision. Whilst the relevance of matters such as pre-injury lifestyle was not apparent, no argument had been advanced that the Arbitrator had failed to take into account a matter relevant to the issue of causation. The Deputy President was not persuaded that any relevant error was demonstrated by the suggested disregard by the Arbitrator of the history as recorded by Dr Greenberg [83]–[85].

Ground eight

6. It was asserted that the Arbitrator, in taking into account the absence of evidence as to “steps [the worker] took to lose weight”, had addressed the question of causation by taking into account an irrelevant consideration. It was not apparent what relevance post-injury weight loss efforts had to the question of causation of weight gain and, in turn, the question of causation of whole person impairment. The respondent’s argument that such matters were relevant to the ultimate question of causation was rejected. It was clear that this matter was treated by the Arbitrator as being of some considerable significance in her deliberation of the question before her, and in so doing had erred in taking into account an irrelevant consideration. That error had, it was found, affected her decision. Ground eight was made out [86], [90].

Ground nine

7. Complaint was made that the Arbitrator applied the wrong test as to causation when it was stated that proof was necessary that the weight gain “was solely due to the ankle injury”. In Bullabidgee Pty Ltd v McCleary [2011] NSWCA 259, Allsop P (with whom Basten and Young JJA agreed) stated: “One aspect of [March v Stramare (E & MH) Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 at 509] which remains uncontentious is that causation in terms of legal responsibility does not require the impugned cause to be the sole cause; it must be a cause”. Reference by the Arbitrator that failure to establish that the weight gain was “solely due to the ankle injury” demonstrated that the Arbitrator had applied a wrong test and had asked the wrong question concerning the issue of causation. That approach led to error of law and such error had affected the Arbitrator’s decision. Ground nine was made out [91], [94], [96].

Ground ten

8. It was unnecessary to consider this ground, as it challenged the correctness of the statements made in the portion of the Arbitrator’s reasons challenged in ground nine [97].

9. The Arbitrator’s award for the employer in respect of the claim for consequential injury to the upper digestive tract was revoked and the matter was remitted to another Arbitrator for redetermination. The Arbitrator’s orders regarding the ankle and knee, the lumbar spine and scarring were confirmed [100]–[102].

Dick’s Diesel Pty Ltd v Caddaye [2015] NSWWCCPD 68

Credit findings; relevance of failure to cross-examine; application of principles in New South Wales Police Force v Winter [2011] NSWCA 330; whether Arbitrator erred in assessment of worker’s credit; whether Arbitrator erred in finding that psychological factors played a part in worker giving inaccurate histories about prior injuries and disability; correct approach where worker has given inaccurate histories; whether bowel and bladder incontinence resulted from injury; whether effect of aggravation of degenerative changes ceased; whether Arbitrator erred in finding injury to the neck; assessment of expert evidence; application of principles in Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43

Roche AP

7 December 2015

Facts:

The worker was a temporary casual plant operator. On 24 March 2014, the “scraper” that he was driving hit a pothole. The worker alleged that the impact caused him to hit his head on the top of the cabin and caused severe pain across his hips, the bottom of his spine, and “from his lumbar spine all the way up into [his] neck”. In an Application to Resolve a Dispute filed in the Commission, the worker alleged that he injured his cervical spine (neck), thoracic spine and lumbar spine in the accident and also alleged that, as a result of the injury to his spine, he suffered from bladder and bowel incontinence.

The employer conceded that the worker suffered a compression fracture at T12 and an aggravation injury to his low back, but disputed that the worker had injured his cervical spine and disputed that his incapacity resulted from the accepted injuries to the thoracic spine and the lumbar spine. It asserted that the effect of the thoracic spine and lumbar spine injuries had ceased by October 2014 and that the worker’s continuing complaints were due to pre-existing degenerative changes caused by previous injuries.

On 11 August 2015, following a hearing before a Commission Arbitrator, the Commission issued a Certificate of Determination making an award for the worker for ongoing weekly compensation and for the worker’s s 60 medical expenses in respect of injury to the cervical, thoracic, and lumbar spine. The employer appealed.

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

(a) relying on the absence of cross-examination of the worker for the purposes of assessing the worker’s credit when the appellant’s documentary case had placed the worker on notice that his credit would be challenged (absence of cross-examination and credit);

(b) finding injury to the neck when there was no evidence or adequate evidence to explain the worker’s initial denial of the injury and subsequent failure to report the injury for an extended period, there was no evidence or no adequate evidence of the mechanism of injury as found by the Arbitrator, and by relying on interpretations of medical reports that were not open (injury to the neck);

(c) finding that the worker’s bladder and bowel problems resulted from the injury on 2 April 2014 by relying on evidence from Dr Hopcroft (qualified orthopaedic surgeon), whose opinion was based on incorrect assumptions and did not provide any or any proper analysis or reasoning in material respects, by failing to consider radiological evidence that did not support Dr Hopcroft’s conclusion, and failing to consider evidence from the worker’s general practitioner that the incontinence issues were temporary (the bladder and bowel problems);

(d) finding that the worker’s back condition resulted from the injury on 2 April 2014 by relying on the evidence of Dr Hopcroft, whose opinion was based on incorrect assumptions and did not provide any or any proper analysis or reasoning in material respects, by failing to consider or have regard to relevant evidence, and by failing to give any or any adequate reasons for rejecting the evidence of the appellant’s experts (whether the worker’s back symptoms are causally related to the injury on 2 April 2014);

(e) finding that the worker’s incapacity resulted from the injury on 2 April 2014 by relying on the evidence of Dr Hopcroft, whose opinion was based on incorrect assumptions and did not provide any analysis or reasoning in material respects, and by finding that the worker was capable of heavy employment prior to the injury in the absence of any evidence and contrary to the evidence (whether the worker’s incapacity is causally related to the injury on 2 April 2014);

(f) finding that the worker was and is totally incapacitated as a result of the injury on 2 April 2014 by relying on the evidence of Dr Hopcroft, whose opinion was based on an incorrect assumption and did not provide analysis or reasoning in material respects, by relying on a medical certificate from Dr Shilton (the treating general practitioner) to support a finding as to the continuation of symptoms that was not open, and by failing to give any or any adequate reasons for rejecting the evidence from the appellant’s experts (finding of total incapacity as a result of the injury on 2 April 2014), and

(g) failing to consider the appellant’s submissions in relation to average weekly earnings and/or failing to exercise the discretion provided by s 44C(2) of the 1987 Act (s 44C(2)).

Held: The Arbitrator’s determination was revoked.  

Absence of cross-examination and credit

1. The Arbitrator did not use the absence of cross-examination as a basis for not making an adverse credit finding against the worker [25].

2. The Arbitrator’s statement that some elements of the worker’s history were inaccurate (or incomplete) was correct. However, the difficulty was with the Arbitrator’s explanation for the inaccuracies in the worker’s evidence. His statement that the worker was “merely affected by the distress of symptoms, which have had a psychological effect on the evidence” was not supported by any reference to the evidence. There was no evidence that psychological factors played a role in the worker giving an inaccurate history and the Arbitrator erred in suggesting that they did [32]–[33].

3. While it may be accepted that the thoracic spine injury was the more serious injury, and that this (and back pain in general) was the focus of attention in the first few months after the accident, the evidence did not support a conclusion that, because of the thoracic spine injury, either the worker (or any of the medical experts) “overlooked” the neck injury. It was not open to the Arbitrator to say that the injury to the neck was “overlooked” and he erred in doing so [36]–[39].

4. As the worker’s credit was a central issue in the case, said to affect the assessment of several (but not all) of the other issues in dispute, it followed that the Arbitrator’s errors required that the case be re-determined by another Arbitrator [42]–[42].

5. If it is found that the worker’s histories were deliberately false, that does not automatically lead to the rejection of his case. It merely means that the balance of the testimony calls for careful assessment to determine whether it can be properly accepted (Malco Engineering Pty Ltd v Ferreira (1994) 10 NSWCCR 117) [43].

Injury to the neck

6. The evidence did not support a conclusion that the neck symptoms were “overlooked”. The evidence was that the worker had told the hospital that he had not injured his neck. However, that did not mean that the neck injury must fail [61].

7.The submission that there was no basis to find that Dr Hopcroft’s opinion, in relation to the injury to the neck, was consistent with Dr Korber’s (specialist radiologist) opinion raised a question of interpretation of the Arbitrator’s reasons. There were two interpretations open [62].

8. Given the context of the Arbitrator’s statement that Dr Hopcroft’s evidence was “consistent with Dr Korber’s opinion”, namely, coming immediately after the Arbitrator said that he accepted Dr Hopcroft’s opinion “as to the injuries to the neck”, the better view was that the Arbitrator thought that Dr Korber agreed with Dr Hopcroft that the incident on 2 April 2014 aggravated the degenerative changes in the worker’s cervical spine. That was an error. Dr Korber did not give that evidence. He merely said that the worker had degenerative changes in his cervical spine [64].

9. The fact that the worker’s spine may have already been in a weakened state did not assist the appellant. Employers take their employees as they find them (State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249 at [40]) [70].

10. The submission that there was no proper basis for the Arbitrator to find that the worker struck his head on the cabin roof had overlooked the worker’s evidence, which the Arbitrator accepted and ignored the fact that the appellant’s solicitor at the Arbitration never argued that the worker did not strike his head. The submission that there was no evidence of a discrete injury to the neck was correct, if it was meant that there was no evidence of a fracture or other specific trauma. The submission that the Arbitrator should have found that the worker suffered no injury to his neck and, by inference, erred in not doing so, had some merit. Because of the error in the assessment of the worker’s credit, and the error concerning Dr Korber’s evidence, the issue of whether the worker injured his neck on 2 April 2014 must be re-determined [76]–[78], [81].

The bowel and bladder problems

11. The fact that Dr Hopcroft did not have a history of the problems noted by Ms O’Sullivan was of no consequence. The submission that Dr Hopcroft did not provide an adequate explanation for his opinion was without merit, as it was not raised before the Arbitrator and could not be raised for a first time on appeal (Metwally v University of Wollongong [1985] HCA 28; 60 ALR 68) and the appellant’s submission had ignored the correct approach to expert evidence in the Commission as explained in Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43 (Hancock) (see also Adler v Australian Securities and Investments Commission [2003] NSWCA 131; 179 FLR 1 at [631] and Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157; 117 FCR 189 at [89] and Spigelman CJ at [170] in Australian Security and Investments Commission v Rich [2005] NSWCA 152) [98], [102]–[105].

12. Nothing in the worker’s credit impinged on this issue and it was open to Dr Hopcroft to express the opinion he did and it was open to the Arbitrator to accept that opinion [107].

Whether the worker’s back symptoms are causally related to the injury on 2 April 2014

13. Whether the effect of the accepted injury to the lumbar spine was continuing largely depended on whether the worker’s evidence is accepted. In determining that question, the worker’s credit will obviously be a relevant factor, but not the only factor. As the matter must be re-determined in any event, the Acting President did not intend to express a concluded view on this issue, but observed that the attack on Dr Hopcroft’s evidence based on Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705; 25 NSWCCR 218 (Makita)was not well founded and the appellant’s submissions completely ignored the principles in Hancock [139]–[140].

Whether the worker’s incapacity is causally related to the injury on 2 April 2014

14. The Acting President’s comments regarding the appellant’s Makita submissions also applied to this issue. The attack on Dr Hopcroft’s statement that, since 2 April 2014, the worker’s “work capacity has been left very severely compromised, as up until that time he was both ready and capable of undertaking significant work practices previously detailed” was without substance and was rejected [155]–[156].

15. The fact that the worker had been on a Newstart allowance for four or five months leading up to starting with the appellant was of limited, if any, relevance. The receipt of such an allowance supported the worker’s submission that he had a capacity for employment prior to starting with the appellant. It was open to the Arbitrator to conclude that the worker was “working at heavy duty employment up to the incident and has not been able to do that afterwards” [160]–[161].

Finding of total incapacity as a result of the injury on 2 April 2014

16. An additional attack on Dr Hopcroft’s evidence was made under this ground of appeal. It was that Dr Hopcroft failed to adjust his opinion on incapacity when he later discovered that the worker had only fractured the T12 vertebra on 2 April 2014 and not the T12 and the T11 vertebra. The submission that the Arbitrator did not understand the pre-injury and post-injury situation was incorrect. The submission that the Arbitrator gave no reasons for rejecting the evidence of Dr English and Dr Drummond was rejected [171], [175], [177].

Section 44C(2)

17. The Acting President accepted that the Arbitrator erred in not dealing with the appellant’s s 44C(2) submission. As this issue involved the application and interpretation of a statutory provision, its determination was not affected by any of the credit issues discussed earlier and neither side objected to it being determined on appeal. The appellant’s submissions were not accepted [187].

18. The use of the modal verb “may” in sub-s (2) of s 44C carries with it a clear and general discretion. The provision may or may not apply, depending on the circumstances. There is nothing in the context or structure of the provision that suggests that it should be interpreted to mean “must” and, rightly, the appellant did not suggest that that interpretation should be applied [188].

19. Talking of the exercise of a general discretion, Bathurst CJ, Beazley P and McColl JA in Lachlan v HP Mercantile Pty Ltd [2015] NSWCA 130 made the following observation, at [30]:

“As Wilson J stated in FAI General Insurance [Company Ltd v Southern Cross Exploration NL [1988] HCA 13; 165 CLR 268] and Barwick CJ explained in Klein [v Domus Pty Ltd [1963] HCA 54; 109 CLR 467], where a discretion is conferred on the court in general terms, the court is required to exercise that discretion so as to ‘prevent injustice’ or in accordance with the judge’s view of the justness of the case.” (emphasis in original) [189].

20. In the present case, that the worker’s employment with the appellant would have come to an end on 17 April 2014 in any event, would mean that, applying s 44C(2), the worker’s pre-injury average weekly earnings would be nil or very close to it. That would result in him obtaining virtually nil weekly compensation, even if he succeeds on all issues that remain in dispute. Assuming that the worker’s claim is otherwise successful, that would be a gross injustice. It followed that once the issues discussed earlier have been determined, the worker’s entitlement to weekly compensation is to be decided by applying the terms of the legislation, but without resort to s 44C(2) [190]–[191], [194].

State Transit Authority of New South Wales v El-Achi [2015] NSWWCCPD 71

Injury; aggravation and acceleration of disease; whether employment the main contributing factor to the aggravation and acceleration; assessment of expert evidence; causation; points not argued at arbitration; claim for the cost of treatment and service provided without prior approval of insurer; exemption from need for prior approval under WorkCover Guidelines for Claiming Compensation Benefits; ss 4(b)(ii) and 60(2A) of the 1987 Act; improper attempt to raise new issues in submissions in reply

Roche AP

16 December 2015

Facts:

The worker had been a bus driver since 1978. He gave unchallenged evidence that he frequently experienced pain in his back and never really experienced pain other than when he was driving, particularly for long periods. On 8 September 2014, Dr Mobbs, neurosurgeon, performed a laminectomy and rhizolysis on the L3/4 and L4/5 levels of the worker’s spine.

The worker made a claim on 3 December 2014, in which he related his back problems to the “nature and conditions of being a bus driver”, relying on s 4(b)(ii) of the 1987 Act. In a s 74 notice, the appellant employer denied liability, relying on the evidence of Dr Casikar, neurosurgeon, who said that the worker had chronic degenerative disease in his lumbar spine and lumbar canal stenosis, but no work related medical condition. It also denied liability for any associated medical expenses on the grounds that, under s 60 of the 1987 Act, they were not reasonably necessary. The worker relied on the evidence from Dr Bodel, orthopaedic surgeon, Dr Mobbs and Dr Rifi, general practitioner.

A Senior Arbitrator found in favour of the worker on all issues. The employer appealed.

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

(a) finding that the worker suffered an injury as defined in s 4(b)(ii) of the 1987 Act (injury);

(b)    finding that the worker’s employment was the main contributing factor to the aggravation or acceleration of an underlying disease (injury);

(c) accepting the evidence of Dr Bodel in preference to the evidence of Dr Casikar (medical evidence);

(d) failing to deal with the submission, and failing to find, that the worker’s incapacity for work resulted not from any injury arising out of or in the course of his employment, but from non-compensable factors which caused, aggravated or accelerated his canal stenosis (cause of incapacity), and

(e) finding that the medical and other treatment expenses incurred by the worker in contravention of s 60(2A) of the 1987 Act were reasonable costs incurred in respect of the aggravation or acceleration of a disease during the course of the worker’s employment (s 60(2A)).

Held: The Arbitrator’s determination was confirmed.  

The legislation

1. The definition of injury in s 4 of the 1987 Act was amended by the 2012 amending Act. The definition of injury in s 4 of the 1998 Act differs. While the 1987 Act is to be construed with, and as if it formed part of the 1998 Act (s 2A(2) of the 1987 Act), in the event of an inconsistency between the 1987 Act and the 1998 Act, the 1998 Act prevails to the extent of the inconsistency (s 2A(3) of the 1987 Act). Neither party addressed on the inconsistent definitions of injury in the two Acts and the case proceeded before the Arbitrator, and on appeal, as if the 1987 Act definition of injury, as amended by the 2012 amending Act, applied [17]–[20].

Grounds 1 and 2: injury

2. The appellant raised several issues not argued before the Senior Arbitrator. They amounted to an attempt to conduct the appeal as a rehearing, which is forbidden in a s 352 appeal. Most of the points argued on appeal were not argued before the Senior Arbitrator and he did not err in not considering them (Brambles Industries Ltd v Bell [2010] NSWCA 162; 8 DDCR 111) [39], [43], [69], [75], [78].

3. On any view of the meaning of “main”, the evidence from Drs Bodel, Mobbs and Rifi, which it was open to the Senior Arbitrator to accept, and which he did accept, comfortably established that the worker’s employment was the main contributing factor to the aggravation or acceleration of the pre-existing disease in the worker’s lumbar spine [71].

4. The appellant’s main complaint was that Dr Bodel had not said that the worker’s employment was the ‘main’ contributing factor to the injury [25].

5. Though it would have been helpful if Dr Bodel had expressed his opinion in the terms of the legislation, the fact that he did not did not mean that the Senior Arbitrator erred in accepting his evidence. That a doctor does not address the ultimate legal question to be decided is not fatal (Guthrie v Spence [2009] NSWCA 369; 78 NSWLR 225 at [194] to [199] and [203]). In the Commission, an Arbitrator must determine, having regard to the whole of the evidence, the issue of injury, and whether employment is the main contributing factor to the injury. That involves an evaluative process. The Senior Arbitrator properly engaged in that process and the conclusions he reached were open on the evidence [72].

6. The submission that if Dr Bodel thought that the worker’s work was the main cause of the aggravation then he would have said so was presumably meant to establish that the Senior Arbitrator erred in accepting the doctor’s evidence. That submission was without substance [73].

7. The complaint that Dr Mobbs did not outline any historical detail that might have informed him of what it was about bus driving that was relevant (besides not being made at the arbitration) was without substance. All that is required for satisfactory compliance with the principles governing expert evidence is for the expert’s report to set out “the facts observed, the assumed facts including those garnered from other sources such as the history provided by the appellant, and information from x-rays and other tests” (Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43 per Beazley JA (as her Honour then was) at [85] (Giles and Tobias JJA agreeing)). [79]–[80].

8. The complaint that the Senior Arbitrator’s reasons did not include a discussion of the relative weight of employment as a contributing factor to the aggravation or acceleration of the disease compared to that of non-employment factors was without merit and was rejected. The Senior Arbitrator did not err in not discussing the relative weight of employment as a contributing factor compared to other factors [82], [84].

9. It was open for the Senior Arbitrator to consider and accept the worker’s unchallenged evidence as to the physical nature of his duties and the development of symptoms while performing those duties and the evidence from Dr Bodel. He did not refer to the worker’s evidence that he did not engage in any physical recreational pursuits or exercise, other than walking from time to time, but that involved no error because that evidence supported, rather than undermined, the Senior Arbitrator’s conclusion [85].

10. It was correct that the test is one of causation. It was also correct that the fact that the worker’s employment placed him at the employer’s premises does not prove causation. However, the submission that the Senior Arbitrator emphasised the “perception of bus driving tasks without regard to other indicia including holiday activity” ignored the evidence and the Senior Arbitrator’s reasons and was rejected [87].

11. The issue was not whether the tendencies, incidents or characteristics of the work of a bus driver could give rise to an aggravation of spinal canal stenosis, but whether in fact the worker’s employment was the main contributing factor to the aggravation and acceleration of his pre-existing disease. The Senior Arbitrator concluded that it was. That finding and conclusion was open on the evidence and involved no relevant error [91]–[92].

Ground 3: medical evidence

12. The assertion that the Senior Arbitrator failed to consider the pathologies present in the worker’s spine, set out in Dr Casikar’s supplementary report, was without merit. No submissions were made on this part of Dr Casikar’s evidence and the Senior Arbitrator did not err in not expressly referring to it. The Senior Arbitrator did not have to refer to every line in Dr Casikar’s confused and contradictory evidence. He had to deal with the issues presented by the parties. He did that. This ground of appeal was rejected [103], [105].

Ground 4: cause of incapacity

13. The submissions regarding this ground were a repetition of matters argued in support of the first two grounds of appeal. They were not matters argued before the Senior Arbitrator and he did not err in not expressly addressing them. This ground was rejected [115], [117].

Ground 5: section 60(2A)

14. The appellant’s counsel’s submissions ignored the words of the legislation, the relevant WorkCover Guides, and the terms of the Senior Arbitrator’s orders. The provision that an employer is not liable under s 60 to pay the cost of any treatment or service unless the insurer has given prior approval for that treatment or service does not apply to treatment provided within 48 hours of the injury or to “treatment or service that is exempt under the WorkCover Guidelines from the requirement for prior insurer approval” (s 60(2A)(a)) [120].

15. An exemption applies when liability for that treatment or service has initially been disputed, but the Commission has “subsequently” found for the worker on liability and it is “agreed or determined” that the treatment or service “was reasonably necessary” [123].

16. The appellant disputed liability for the cost of the surgery performed on 8 September 2014. That dispute was properly referred to the Commission. However, counsel for the worker only asked the Senior Arbitrator to make a “general order under section 60 accompanied by a finding, if appropriate, that [the] surgery undergone by [the worker] resulted, in the relevant sense, from the employment injury” [124].

17. Consistent with what he was asked to do, the Senior Arbitrator made a finding that the surgery resulted from the aggravation injury and ordered the appellant pay the worker’s expenses pursuant to s 60, those expenses to include “the reasonable cost of and incidental to surgery carried out on 8 September 2014” [128]–[129].

18. Section 60(2A) does not prevent the Commission ordering the payment of reasonably necessary treatment or service in circumstances where that treatment has been provided without the prior approval of the insurer and counsel for the appellant’s submission to the contrary was clearly wrong. However, because of the restricted nature of the order made by the Senior Arbitrator, the question of the “reasonable cost” of the worker’s surgery remained outstanding and must be agreed or, if not agreed, be the subject of a further determination before the appellant is liable for the cost of that surgery [130].

Stanley v Lachlan Shire Council [2015] NSWWCCPD 69

Claim for cost of proposed hospital and medical expenses under s 60 of the 1987 Act; whether proposed treatment reasonably necessary; assessment of evidence; reasons

Roche AP

7 December 2015

Facts:

The worker was a plant operator/labourer for the respondent. On about 17 February 2014, the worker injured his back when driving a roller on uneven ground.

On 4 August 2014, Dr David Bell, orthopaedic surgeon, recommended that the worker have a right L5/S1 discectomy. On 5 August 2014, Dr Bosanquet, orthopaedic surgeon, examined the worker and concluded that the incident on 17 February 2014 had “aggravated some degenerative disc changes at [the] L5/S1 level and caused some right leg pain”. In a supplementary report, Dr Bosanquet stated that the CT report of 18 February 2014, which showed a broad based posterior disc protrusion at L5/S1 with no nerve root impingement, combined with the clinical picture, which showed no sign of radiculopathy, led him to conclude that surgery was “certainly not an option”.

Following Dr Bosanquet’s report, the insurer declined liability for the proposed surgery on the ground that it was not reasonably necessary as a result of the accepted injury.

In an Application to Resolve a Dispute, the worker sought a declaration that the proposed surgery was reasonably necessary as a result of the accepted injury to his back. Pursuant to s 60(5) of the 1987 Act, the matter was referred to an AMS, Dr Breit, for a non-binding opinion. He found that the proposed surgery was not reasonably necessary because there was “no evidence of a compressive lesion that will benefit” from surgery.

On 17 August 2015, the Commission issued a Certificate of Determination, finding that the proposed treatment of L5/S1 discectomy surgery was not reasonably necessary within the meaning of s 60 of the 1987 Act and declining to order that the employer is liable for it. The worker appealed.

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

(a) misdirecting himself with respect to the test for whether medical treatment is reasonably necessary (the test);

(b) failing to give proper reasons as to his rejection of the evidence of Dr Bell (reasons for rejecting Dr Bell’s evidence);

(c) failing to take into account relevant evidence and having regard to irrelevant evidence in concluding that the worker had not discharged his onus of establishing that the proposed surgery is reasonably necessary medical treatment (relevant and irrelevant evidence), and

(d) expressing his own quasi-medical opinion as to the significance of the pathology identified in the MRI reports of 23 June 2014 and 25 June 2015 (quasi-medical opinion).

Held: The Arbitrator’s determination was confirmed.  

The test

1. The Arbitrator stated that the test regarding reasonable necessity for medical treatment was, in essence, that it will be reasonably necessary if there are sound reasons for thinking that it will have the desired outcome [17].

2. The Arbitrator’s statement was not intended to be a definitive or comprehensive statement of the “test” in cases of this kind. It was no more than a brief statement of the “essence” of the test. Once that was properly understood, it was unobjectionable [35].

3. Though it might have been more helpful if the Arbitrator had referred to Diab v NRMA Ltd [2014] NSWWCCPD 72, nothing turned on his failure to do so [36].

4. The worker’s submission that the Arbitrator erred in failing to apply the proper test could not be accepted. Save for the cost of the proposed surgery, which was not an issue, the Arbitrator was aware of and considered all of the matters identified by the worker’s solicitor. It was not argued that the cost of the proposed surgery was unreasonable, or that the same outcome could be achieved with a cheaper alternative. The Arbitrator’s failure to refer to the cost of the proposed surgery involved no error [41].

5. The issue of whether the proposed surgery was reasonably necessary turned on whether it was likely to relieve the worker’s symptoms. That turned on whether the worker had genuine radiculopathy. Accepting the evidence in the radiology and from Dr Breit and Dr Bosanquet, the Arbitrator determined that the worker did not have genuine radiculopathy and that, therefore, the treatment was not reasonably necessary. That finding was open on the evidence and did not involve the application of the wrong “test”. This ground was not made out [42]–[43].

Reasons for rejecting Dr Bell’s evidence

6. The submission that the Arbitrator did not consider the “precise evidence given by Dr Bell as to his reasoning for the need for surgery” was plainly wrong and was rejected. The Arbitrator was well aware of Dr Bell’s reasoning. He did not accept that reasoning. That conclusion disclosed no error [51]–[52].

7. Dr Breit agreed with Dr Bosanquet that the proposed surgery was not reasonably necessary, as there was “no evidence of a compressive lesion that will benefit” (from surgery). This evidence, to which the Arbitrator referred in his summary of the evidence and in his analysis of that evidence, provided a sound basis for not accepting Dr Bell’s opinions [54].

8. The contention that the Arbitrator did not give adequate reasons for rejecting Dr Bell’s explanation for the absence of compressive pathology on the MRI scans was also without substance [57].

9. Given the reliance that Dr Breit and Dr Bosanquet placed on the first MRI scan, and given their unequivocal statements that they were unable to identify any objective signs of radiculopathy, which followed or correlated to a particular nerve root distribution, the Arbitrator’s statement was open and involved no error. Moreover, Dr Bell’s “explanations” were expressed as being merely “possible”. In light of the other evidence that there was no objective sign of radiculopathy (apart from Dr O’Keefe), the Arbitrator did not err in not accepting those explanations [58].

10. The submission that the reasons for “rejecting Dr Bell’s opinion as a whole were not proper” and that the Arbitrator failed to have proper regard to the doctor’s opinion with respect to the reasoning for the need for surgery was rejected [60].

11. Based on the MRI scans, and the opinions of Dr Breit and Dr Bosanquet, who were unable to find any evidence of radiculopathy (that is, nerve root compromise), the Arbitrator was not persuaded that the worker had radiculopathy that was amenable to surgery. The Arbitrator’s reasons, when read in their entirety, exposed his reasoning process and articulated the essential ground on which he based his decision (Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 per McHugh JA at 280). He did not have to give any further reasons for not accepting Dr Bell’s evidence [61].

Relevant and irrelevant evidence

12. The submission that there was no explanation for the cause of the worker’s leg pain, other than it being radiculopathy, was incorrect. The submission that the Arbitrator failed to have regard to Dr Bell’s opinion that the worker’s complaints of right leg pain were consistent with radiculopathy was wrong. After reviewing the whole of the evidence, the Arbitrator did not accept Dr Bell’s opinion. That conclusion involved no error [69]–[72].

13. The Arbitrator’s statements that the radicular symptoms, such as they were, seemed to fluctuate in terms of their intensity and the particular parts of the legs affected and that there was a suggestion that the worker had similar pain in his left leg were consistent with the evidence and involved no error [74].

14. The submission that the Arbitrator did not take into account the fact that Dr Bell was aware that there were no positive findings on MRI scan and that there were no hard neurological signs was plainly wrong. The Arbitrator was well aware of those matters and expressly referred to them when he summarised Dr Bell’s evidence. He preferred the evidence of Dr Breit and Dr Bosanquet, which was consistent with the findings in the MRI scans [77].

15. The Arbitrator did not accept there was an entirely consistent reporting of leg symptoms. This observation, though not critical to the outcome, was open on the evidence [78].

16. The submission that the Arbitrator placed undue weight on Dr Bell’s statements such as “may” and “possible” was unpersuasive. The Arbitrator did not give undue weight to this point [79].

17. It was plainly wrong to submit that the Arbitrator failed to have regard to the evidence from Dr Bell and the worker. The Arbitrator was not satisfied that the worker had radiculopathy and, therefore, accepting the evidence of Dr Breit and Dr Bosanquet, was not satisfied that the proposed surgery was reasonably necessary. That finding was open on the evidence [83].

18. The submission that the Arbitrator took into account irrelevant matters when he referred to Dr Bosanquet’s evidence that the surgery may create more problems for the worker than it was likely to solve was not accepted [84].

Quasi-medical opinion

19. The second MRI confirmed the first scan and the opinions of Dr Breit and Dr Bosanquet, which the Arbitrator accepted. It was a further piece of evidence that supported the Arbitrator’s conclusion and his reference to it involved no error [89]–[90].