Issue 2: February 2016

O’Callaghan v Energy World Corporation Ltd [2016] NSWWCCPD 1

Application for reconsideration of consent orders; whether any “compensation” at issue on appeal; monetary threshold to appeal not satisfied; alleged deterioration in claimant’s condition after assessment by AMS; appeal against AMS’s assessment because of alleged deterioration; whether deterioration must relate to the body part assessed by original AMS or is at large; ss 352(3)(a) and 327(3)(a) and (b) of the 1998 Act; application of Aircons Pty Ltd v Registrar of the Workers Compensation Commission (NSW) [2006] NSWSC 322 and Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission [2007] NSWCA 149

Roche AP

5 January 2016

Facts:

This appeal concerned a challenge to an Arbitrator’s refusal to set aside consent orders under the reconsideration power in s 350(3) of the 1998 Act.

On 7 January 2011, the worker suffered various injuries when she fell in the course of her employment with the respondent.

In proceedings before the Commission in 2013, the worker was assessed by an AMS, Dr Ho, to have a 10 per cent whole person impairment and was awarded compensation for that impairment in a Certificate of Determination by consent (consent orders). The assessment by the AMS was in relation to the worker’s lumbar spine (which also included the injury to the coccyx).

In May 2015, the worker applied to the Commission for assessment by an AMS, stating that it was for a “[t]hreshold dispute for [a] work injury damages claim”. The respondent opposed that application, relying on s 322A of the 1998 Act. In further correspondence, the worker’s solicitor said that the worker was not making a ‘top up’ claim for additional lump sum compensation, but was seeking a whole person impairment to bring a potential work injury damages claim against the employer.

On 12 June 2015, the worker filed an appeal against the AMS’s MAC under s 327 of the 1998 Act. On 17 July 2015, the appeal against the MAC was dismissed by a delegate of the Registrar on the ground that there is no appeal against a medical assessment once the dispute has been the subject of a determination by the Commission (s 327(7)).

On 31 July 2015, relying on the reconsideration power in s 350(3) of the 1998 Act, the worker’s solicitor applied to have the consent orders set aside. The worker’s solicitor argued that there had been a deterioration in the worker’s neck that resulted in an increase in the degree of permanent impairment and that was sufficient to invoke a right of appeal under s 327(3)(a) and that the consent orders should be set aside to allow her to pursue her s 327(3) appeal.

On 14 September 2015, a Commission Arbitrator determined that the deterioration referred to in s 327(3)(a) must relate to the assessment of permanent impairment that was the subject of the referral to the AMS under s 325(1). As there was no challenge to the AMS’s assessment of the degree of permanent impairment as a result of the injury to the lumbar spine, the Arbitrator said it was difficult to see how there could be an appeal in respect of a deterioration of a condition (the neck) not referred to, or assessed by, the AMS. The Arbitrator did not accept that the worker had a valid appeal under s 327(3)(a) for a deterioration of a condition that was not the subject of an assessment by the AMS. The Arbitrator declined to grant the relief sought. The worker appealed.

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

(a) finding that the deterioration in s 327(3)(a) must relate to the assessment of the impairment that was the subject of the referral to the AMS pursuant to s 325, and

(b) finding that the MAC is only binding in the proceedings in which it was obtained.

Held: The monetary thresholds in s 352(3) of the 1998 Act had not been met and there was no right of appeal.  

Monetary Threshold

1. Where, as in the present matter, the Commission has made no order for the payment of compensation, the amount of “compensation at issue on appeal” must be determined by reference to the amount of compensation at issue in the proceedings before the Arbitrator. In the present matter, no compensation was at issue in the proceedings before the Arbitrator because the worker did not claim any compensation in addition to that which she received under the consent orders. She sought an order revoking the consent orders so that she could pursue her s 327 appeal with a view to establishing the work injury damages threshold. As the monetary threshold in s 352(3)(a) had not been met, there was no right of appeal. If he was wrong on this issue, the Acting President also determined the substantive issue [48], [52].

Ground 1

2. As Dr Ho was not asked to do so, it was not open to him to assess any other body part (Aircons Pty Ltd v Registrar of the Workers Compensation Commission (NSW) [2006] NSWSC 322). It was not open to use s 327(3)(a) to appeal against an assessment that Dr Ho did not make, namely, an assessment of whole person impairment as a result of injury to the cervical spine. As the respondent submitted, s 327 does not contemplate a situation where a worker can continue to bring claims, under the guise of an appeal, for a deterioration in respect of parts of the body that were not previously the subject of a dispute or an assessment by an AMS [72].

3. It may be accepted that the injury to the worker’s neck and back arose out of the same incident and that s 322(3) provides that, in such circumstances, impairments that result from more than one injury arising out of the same incident are to be assessed together. However, that had no relevance where the referral to Dr Ho was for the lumbar spine (and, implicitly, the sacro coccygeal spine) only. That referral set the parameters or limits for Dr Ho’s assessment [75].

4. It was correct that s 65(2) of the 1987 Act states that if a worker receives more than one injury arising out of the same incident, those injuries are to be treated as one injury for the purposes of Div 4 of the 1987 Act. However, that does not mean that the appeal rights in s 327 must relate to the “overall impairment”, however and whenever it may arise. Claims for permanent impairment compensation must be properly particularised and supported with appropriate medical evidence. Those particulars set the parameters within which the AMS must conduct his or her assessment. It followed that “condition” in s 327(3) does not mean any condition, whenever arising, as a result of the relevant work incident [82].

5. It was not the situation where the worker had been assessed as having a nil permanent impairment as a result of her neck injury, and now had a five per cent permanent impairment as a result of that injury. She did not claim permanent impairment compensation for her neck injury and was not assessed for that injury [85].

6. Section 322A works in concert with s 66(1A) of the 1987 Act, which restricts a worker to only one claim under the 1987 Act for permanent impairment compensation in respect of the permanent impairment that results from an injury. Consistent with a worker now having the right to make only one claim for permanent impairment compensation, only one assessment may be made of the degree of permanent impairment of an injured worker (s 322A(1)). The worker had made one claim and had one assessment of the degree of her permanent impairment for that claim. However, s 322A does not affect the operation of s 327 (s 322A(4)). Therefore, if the worker were entitled to rely on s 327(3)(a), s 322A would not prevent her from doing so [88]–[89].

7. The “condition in question” in the present case was the worker’s lumbar spine and sacro coccygeal spine, not her cervical spine. “Deterioration”, being “an inherently relational concept”, operates on or with respect to the deterioration of the degree of impairment of “a matter” as to which the assessment of an AMS, certified in the MAC, is conclusively presumed to be correct (s 327(2)) (Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission [2007] NSWCA 149). As Dr Ho did not assess the worker’s cervical spine, he provided no assessment of any “matter” with respect to it that was conclusively presumed to be correct and no question of a deterioration in that condition arose in s 327(3)(a). As the neck was not assessed, it was not “a matter” that was appealable under s 327(1) [93].

Ground 2

8. The Arbitrator said that JC Equipment Hire Pty Ltd v Registrar of the Workers Compensation Commission of NSW [2008] NSWCA 43 (JC Equipment) held that a MAC is only presumed to be correct in the proceedings in which it was obtained. It was difficult to see how this could stand in light of s 322A. That provision provides that only one whole person impairment assessment may be made (s 322A(1)) and that the MAC given in connection with that assessment is the only MAC that can be used in connection with any further or subsequent medical dispute about the degree of permanent impairment as a result of the injury concerned (s 322A(2)) [99].

9. This applies whether the subsequent or further dispute is in connection with a claim for permanent impairment compensation, the commutation of a liability for compensation, or a claim for work injury damages. It follows that the one MAC must be able to be used, and be binding, for purposes other than the purpose for which it was obtained [100].

10. However, it was not accepted that JC Equipment was an essential part of the Arbitrator’s reasoning. If it was, and if it no longer applies, in light of s 322A, the same result on appeal followed [101]–[102].

Sabanayagam v St George Bank Ltd  [2016] NSWWCCPD 3

Section 38 of the 1987 Act; entitlement to weekly payments upon expiration of first two entitlement periods; s 43(1) and (2) of the 1987 Act; whether work capacity decision made by insurer; s 43(3) of the 1987 Act; jurisdiction of Workers Compensation Commission to determine dispute about a work capacity decision

O’Grady DP

21 January 2016

Facts:

The appellant worker was injured in the course of her employment in 2006, following which payments of compensation benefits were made by the insurer. On 24 September 2014, on internal review, the insurer made a work capacity decision that the worker had no current work capacity as defined by s 32A. The weekly payments ceased in May 2015 following notice, given on 20 March 2015, in the form of a s 74 notice denying liability. In that notice, it was stated that the injury had now resolved and the worker did not continue to suffer any injury within the meaning of s 4 of the 1987 Act and stated that the injury “is no longer causing you any incapacity for work” as required by s 33 of the 1987 Act. Reviews of that decision on 26 March 2015 and 9 April 2015 maintained that decision.

The worker commenced proceedings in the Commission, seeking orders concerning resumption of weekly payments. In a Certificate of Determination issued on 17 August 2015, Senior Arbitrator Catherine McDonald determined that the Commission had no jurisdiction to determine a dispute as to weekly payments after the end of the second entitlement period as defined by s 32A and declined to make an order. The worker appealed.

The grounds of appeal relied upon by the worker were that the Senior Arbitrator erred when she:

(a) found that the Commission did not have jurisdiction after the second entitlement period in circumstances where the requirements of s 38 had been met in that the insurer had assessed the worker as having no work capacity;

(b) considered that the Commission has no jurisdiction to determine a dispute whether a work capacity decision is binding, and

(c) found that the section 74 notices of 20 March 2015, 26 March 2015 and 9 April 2015 were work capacity decisions.

Argument in support of the allegations of error on the part of the Senior Arbitrator gave rise to a primary question as to whether the insurer had made a work capacity decision, within the meaning of s 43 of the 1987 Act.

Note: The Deputy President considered it appropriate that ground three be addressed before the other grounds were considered.

Held: The Arbitrator’s determination made in [2] of the Certificate of Determination was confirmed, subject to the finding recorded in [1] being amended.  

Ground three

1. The notice and reviews may themselves not be taken to be relevant work capacity decisions. Should the Senior Arbitrator’s expression of belief that the s 74 notice and subsequent reviews were work capacity decisions, expressed at [67] of her Reasons, be taken as a finding on the evidence, such finding was made in error. It remained to be determined whether, having regard to all the circumstances, it may be inferred that a work capacity decision had been made before service of the s 74 notice [57]–[58].

2. It was clear that the material referred to in the notice had been considered by the insurer and that a decision had been made to discontinue weekly payments to the worker. Such a decision is contemplated by the terms of s 43(1)(f). If it be that such decision was made “on the basis of any decision referred to in paragraphs (a)–(e)”, the decision is one which falls within s 43 and is a work capacity decision [59].

3. It was the worker’s case that a decision to discontinue payments cannot, as was argued on behalf of the respondent, be a decision described in s 43(1)(a). That was so, it was put, given that the term “current work capacity” is defined in s 32A and such definition does not include a decision to discontinue weekly payments [60].

4. Whilst the worker’s argument had, at first, considerable appeal, the Deputy President reached the view that it should be rejected. This conclusion was reached given that a decision “about a worker’s current work capacity” should be taken to include a decision as to the existence, or otherwise, of such current work capacity as defined. This was plainly so given that the statute, in s 43(1)(f) addresses decisions “to suspend, discontinue or reduce the amount of weekly compensation”. Reading subclauses (a) and (f) of s 43(1) together had the consequence, on the present facts, that the decision to discontinue payments was a work capacity decision within the meaning of the Act. The Commission may not make a decision that is inconsistent with that work capacity decision [61].

5. Given the Deputy President’s finding that a work capacity decision had been made by the insurer in March 2015, it followed that the force and effect of the earlier 2014 decision had come to an end. In those circumstances the fundamental basis of the worker’s argument that an award consistent with that earlier work capacity decision may be made by the Commission once the medical dispute had been determined by the Commission was negated and her argument must fail. It was unnecessary to determine, on this appeal, the question as to what, if any, jurisdiction the Commission may have to grant such relief, if the facts were otherwise. This ground failed [63].

Ground one

6. The worker was incorrect in asserting that in Lee v Bunnings Group Limited [2013] NSWWCCPD 54 (Lee) there was no finding that the Commission “did not have jurisdiction” as to s 38 entitlement [68].

7. The Deputy President agreed with the reasoning and conclusion reached on the facts in Lee and rejected the submission that, in its conclusion as to absence of jurisdiction, the Commission was in error. It was further found that there was no relevant distinction to be drawn between this matter and the facts in Lee [69].

8. It must be remembered that the worker’s argument that there had been no relevant work capacity decision made in March 2015 had been rejected on this appeal. In the circumstances, the 2014 work capacity decision ceased to have effect once the 2015 decision was made. In that circumstance the worker could seek no comfort from that which may be found in the Court’s decision in Inghams Enterprises Pty Ltd v Sok [2014] NSWCA 217; 87 NSWLR 198; 13 DDCR 139, in which case there had been no relevant work capacity decision made to which s 43(3) had application [75].

9. The worker’s entitlement ceased at the expiration of the second entitlement period subject to the insurer’s work capacity decisions (see Rawson v Coastal Management Group Pty Ltd [2015] NSWWCCPD 3 at [71]) [76].

10. There was nothing in the Acts which would tend to support the worker’s argument that, in some way, the role of the insurer as prescribed by s 38 is somehow limited to a simple question of quantification of monetary entitlement. The Act provides that the insurer determines entitlement. The question for the insurer is to determine whether the worker had a right or claim to weekly benefits. In the case of disagreement between the insurer and the worker on that question, the Act makes provision for review as prescribed in s 44BB or by judicial review by the Supreme Court (s 43(1)). The Commission has no power to rule on, or determine, any such dispute [77].

11. The worker had failed to establish error on the part of the Senior Arbitrator in concluding as she did concerning an absence of jurisdiction. Ground one failed [78].

Ground two

12. In any dispute before the Commission, such as the present, concerning entitlement of a worker to weekly payments following the expiration of the first two entitlement periods, it is necessary that a threshold question be answered as to the existence or otherwise of a work capacity decision. Such question, that is whether such work capacity decision has been made, was, in the Deputy President’s opinion, not one which was “about” a work capacity decision within the meaning of s 43(3). That the Commission is bound by such a decision, once made, was not in doubt: s 43(3) [79], [81].

13. If a work capacity decision has been made, the Commission may not make a decision that is inconsistent with that decision: s 43(3). But for the making by the insurer of the work capacity decision in March 2015, as found on this appeal, it may have been arguable, as put by the worker, that the Commission had jurisdiction to determine the medical dispute and, if such was favourable to the worker, proceed to award weekly compensation in accordance with the September 2014 work capacity decision. It was unnecessary on this appeal to determine that last question [82].

14. The Senior Arbitrator (at [58] of Reasons) spoke of a dispute concerning whether the September 2014 work capacity decision “is binding” and she considered that such dispute was “about” a work capacity decision and was thus outside the Commission’s jurisdiction. Adoption of that approach involved, having regard to the facts and argument raised by the parties, asking a wrong question and was made in error. Such error had, however, not relevantly affected the Arbitrator’s decision. Whilst the Senior Arbitrator’s finding requires amendment, argument raised under ground two did not successfully challenge the Arbitrator’s findings and orders. Ground two was not made out [83].

Conclusion

15. Whilst a finding had been made on this appeal that a relevant work capacity decision was, by implication from the facts, made by the insurer in 2015, it was clear that the procedure laid down by the terms of the 1987 Act and as required by the content of the relevant WorkCover Guidelines (those concerning work capacity decisions, internal reviews by insurers and merit reviews by the Authority) had not been followed by the insurer [85].

Watson’s Culcairn Hotel Pty Ltd v Dwyer [2016] NSWWCCPD 5

Claim for the cost of proposed hospital and medical treatment; assessment of medical evidence; correct test to apply in claim for cost of hospital and medical treatment; whether need for proposed treatment reasonably necessary as a result of work injury; aggravation of pre-existing condition; relevance of prior symptoms; s 60 of the 1987 Act; whether history recorded provided a fair climate for the acceptance of medical expert’s opinion; application of principles in Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; 59 ALJR 844; [1984] 2 NSWLR 505 at 509–510 and Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43; failure to give reasons for rejecting employer’s medical experts; approach to claim for medical and hospital expenses for consequential conditions; application of principles in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796

Roche AP

25 January 2016

Facts:

This appeal concerned an Arbitrator’s factual finding that certain proposed medical treatment, namely a total left knee replacement, right carpal tunnel release, right shoulder physiotherapy and cervical traction and immobilisation of the cervical spine, was reasonably necessary as a result of an accepted injury to the left knee.

On 8 November 2012, the worker tripped and fell and injured his left knee and right hand (the hand injury from this fall appeared to have been of little consequence and resolved without any treatment) (the 2012 injury). Dr Khoury, orthopaedic surgeon, recommended that the worker undergo arthroscopic surgery on his left knee. The insurer disputed liability.

Following commencement of proceedings in the Commission, by way of consent in March 2014, the insurer agreed to pay for the arthroscopic surgery. However in April 2014, Dr Khoury advised that the worker’s condition had deteriorated since he recommended the arthroscopic surgery, and that the worker would not benefit from the surgery. Dr Khoury said that the worker now required a total left knee replacement.

As a result of the injury to the left knee, the worker alleged that his knee gave way on several occasions in 2013 and 2014, causing him to fall and sustain further injuries to his right wrist, right shoulder and cervical spine (neck), which were not injured in the fall of 8 November 2012 and were not injuries as defined in s 4 of the 1987 Act.

The worker commenced proceedings in the Commission in October 2014, claiming weekly compensation and compensation for hospital and medical expenses as a result of injuries to his left knee and the further injuries. The insurer denied liability on the basis that the knee replacement was due to arthritis and as a result of a motorbike accident 25 years ago; in April 2012, the worker had reported to his GP, Dr Mobilia, symptoms in his wrist concerning carpal tunnel syndrome, and in March 2011, the worker had injured his right shoulder and neck.

On 15 October 2015, a Commission Arbitrator found in favour of the worker on all issues, awarding the worker weekly compensation and ordered that the employer pay the worker’s s 60 expenses. The employer appealed.

The issues in dispute on appeal with respect to the proposed knee replacement surgery were whether the Arbitrator erred in:

(a) accepting Dr Hopcroft’s (qualified orthopaedic surgeon) evidence despite his history being inconsistent with Dr Mobilia’s clinical notes;

(b) finding that there was any additional pathology (in the worker’s left knee) caused by the injury on 8 November 2012 when that extra pathology was caused by an arthritic condition;

(c) finding that the worker’s injury on 8 November 2012 resulted in increased pathology, which contributed to pathology in the right upper limb (wrist, right shoulder) and neck and the need for the proposed medical treatment in respect of same, and,

with respect to the other proposed treatment, whether the Arbitrator erred in:

(d) failing to provide adequate reasons for preferring the opinion of Dr Hopcroft to that of Dr Mobilia and/or Dr Panjratan (orthopaedic surgeon), and

(e) accepting the evidence of Dr Hopcroft when the history he obtained (regarding the worker’s pre-November 2012 symptoms in his right shoulder and right wrist) was inconsistent with Dr Mobilia’s clinical notes.

Held: The Arbitrator’s determination was confirmed.  

Proposed surgery to the left knee

1. Both the appellant’s solicitor and the insurer approached the claim for medical expenses on the incorrect assumption that, to succeed, the worker had to establish that the proposed treatment was “reasonable and necessary”. That was a fundamentally incorrect approach. Treatment does not have to be “reasonable and necessary”, a much higher standard than the test of “reasonably necessary”, before compensation is payable. The test is whether the treatment is “reasonably necessary” as a result of the injury (see Diab v NRMA Ltd [2014] NSWWCCPD 72) [34]–[35].

2. The Arbitrator accepted that the worker had osteoarthritis in his left knee prior to the incident on 8 November 2012 and that the pre-existing rotational deformity may also have “contributed to the presentation and development of the pathology”. However, he (correctly) acknowledged that the evaluation of causation must include the possibility of multiple causes [38].

3. On the proposed knee surgery issue, the Arbitrator rejected the evidence from Dr Machart, AMS, and Dr Panjratan and his findings were open on the evidence [41].

4. The Arbitrator was satisfied that, notwithstanding the presence of osteoarthritis in the left knee, the 2012 injury materially contributed to the need for the total left knee replacement surgery. That finding was open on the evidence and the appellant’s submissions had not pointed to any relevant error by the Arbitrator in his approach or conclusion. This ground of appeal was not made out [42]–[43].

Proposed treatment for the right wrist, right shoulder and cervical spine

5. The Arbitrator was satisfied that the further falls “materially contributed to other symptoms or pathology affecting [the worker’s] right shoulder, wrist and neck as indicated by Dr Hopcroft”. These findings were open on the evidence and involved no error. Dealing with the symptoms and pathology that resulted from the post 2012 falls, the Arbitrator (correctly) noted that the resulting medical conditions may include pathology in the nature of an aggravation of a pre-existing condition. He added (also correctly), that for an aggravation (of a disease) to be found, it was not necessary for there to be a worsening of the disease itself, but merely for an increase in the symptoms resulting from the disease (Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; 110 CLR 626 (Semlitch)) [51]–[52].

6. The Arbitrator noted, relying on Murray v Shillingsworth [2006] NSWCA 367; 68 NSWLR 451, that the Compensation Court did not have to determine cases with scientific certainty, but could be guided by its impressions. He added that a similar “interpretation” applies to proceedings in the Commission. Both of these observations were correct [58].

7. While it was accepted that the Arbitrator gave reasons for rejecting the evidence from Dr Machart and Dr Panjratan concerning the left knee injury and its consequences, he gave no reasons for rejecting their evidence with regard to the proposed treatment for the right wrist, right shoulder and cervical spine. That was an error. The issue of whether the proposed treatment for the worker’s right wrist, right shoulder and cervical spine is reasonably necessary as a result of the 2012 injury to the left knee was re-determined [61].

8. Applying the test in Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43 at [85], it was open to the Arbitrator to accept Dr Hopcroft’s opinions. That was so even though Dr Hopcroft did not refer to Dr Mobilia’s notes on 20 April 2012 which record “r hand paresthesia [sic] pain thum [sic] index middle finger”. It was clear beyond doubt that the symptoms upon which Dr Hopcroft relied to make his diagnosis of carpal tunnel compression syndrome arose after the May 2013 fall. Dr Hopcroft’s failure to refer to the notes from April 2012 was of no consequence. Dr Hopcroft’s failure to refer to the 2011 shoulder symptoms was also of no consequence [66], [70]–[71].

9. It was open to the Arbitrator to accept Dr Hopcroft’s evidence as to the need for the proposed treatment for the worker’s right wrist, right shoulder and cervical spine being reasonably necessary as a result of the 2012 injury. However, the question remained whether that evidence should be preferred to the evidence of Dr Machart and Dr Panjratan, a question the Arbitrator did not consider [72].

10. The history that the worker injured his right wrist on 8 November 2012, as recorded by Dr Machart and Dr Hopcroft, and found by the Arbitrator, was incorrect. The only reasonable conclusion was that the worker injured his right wrist when he fell (because of the instability in his left knee) in April or May 2013. When Dr Hopcroft spoke of the worker aggravating the pre-existing arthritis in his right wrist in the November 2012 fall, he was in fact referring to the May 2013 fall. Nothing turned on this error. Dr Machart made a similar error [74], [83]–[84].

11. The worker’s claim was not based on the “notion of cascading pathology” as suggested by Dr Machart. It was based on longstanding and accepted principles of compensation law that a worker is entitled to recover compensation for the effects that have resulted from a compensable s 4 injury (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796). That raised a straightforward question of causation. That issue had been determined in favour of the worker and Dr Machart’s comments about cascading pathology indicated that he failed to consider the correct question. This rendered his opinion of no weight [91].

12. Dr Panjratan took no history of the May 2013 fall. His opinions were fundamentally flawed and could not be accepted. In respect of the right wrist, right shoulder and cervical spine, Dr Panjratan was mistaken as to the relevant causation test. He wrongly assumed that, for the worker to succeed, those conditions had to be workplace injuries. They were consequential conditions said to have resulted from the 2012 injury [93], [96].

13. The statement that the degenerative arthritis in the right wrist was not “attributable to the incident of 8 November 2012” further demonstrated the error in Dr Panjratan’s approach. That was not the worker’s case. Dr Panjratan failed to appreciate that what was being considered was not a s 4 injury, but a condition that had resulted from a s 4 injury [98], [100].

14. Medical conditions that result from a s 4 injury may include pathology in the nature of an aggravation of a pre-existing condition. When dealing with a consequential condition, it is not necessary that employment be a substantial contributing factor to the consequential condition or, in the case of a disease, that it be the main contributing factor to the contraction or aggravation of the disease. All that is necessary is that the condition has resulted from the accepted s 4 injury (Rootsey v Tiger Nominees Pty Ltd (2002) 23 NSWCCR 725; Bielecki v Rianthelle Pty Ltd [2008] NSWWCCPD 53 at [19]–[25]) [101].

15. For a relevant aggravation to be found in a case such as the present, it is not necessary for there to be a worsening of the disease itself, but merely for an increase in the symptoms resulting from the disease (Semlitch). Nor is it necessary, in a claim for the cost of medical treatment of a consequential condition, that the degenerative changes be “reasonably attributable” to the s 4 injury. All that is necessary is that the treatment be reasonably necessary as a result of the injury. In the present case, accepting Dr Hopcroft’s evidence, that test was satisfied. That was because the proposed treatment was reasonably necessary to treat symptoms that resulted from the 2012 injury and the consequential falls when the worker’s left knee gave way. Rather than considering this issue, Dr Panjratan focused on the cause of the degenerative changes [102].

16. Dr Panjratan’s opinion was of no probative value. Although the Arbitrator erred in not giving reasons for rejecting the evidence of Dr Machart and Dr Panjratan, having re-determined the issue, the Acting President found that that error made no difference to the outcome [104]–[105].

Weekly compensation

17. As Dr Machart’s opinion had not been accepted, it followed that the appellant’s submission on the worker’s entitlement to weekly compensation could not be accepted and the worker was entitled to the weekly compensation awarded by the Arbitrator [108].

Super Retail Group Services Pty Ltd v Uelese [2016] NSWWCCPD 4

Whether employment a substantial contributing factor to injury; assessment of expert evidence; alleged absence of history of trauma; application of principles in Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43; concessions made by counsel at arbitration; parties bound by conduct of counsel at arbitration; issues not argued at arbitration; application of principles in University of Wollongong v Metwally (No 2) [1985] HCA 28; 59 ALJR 481; reliance on unchallenged schedule of earnings; Pt 15.5(3) of the 2011 Rules

Roche AP

22 January 2016

Facts:

The appellant employer challenged the Arbitrator’s finding that the worker’s employment was a substantial contributing factor to her injury and the quantum of the award of weekly compensation.

The respondent worker was a “picker/packer” riding on a stand up pallet mover, stopping frequently and picking up boxes to put onto the pallet. The worker’s case was that on 28 November 2014, while in the course of her employment, she believed that she twisted or turned awkwardly as she stepped off a pallet mover and injured her right ankle and foot.

The insurer disputed liability on the ground that the worker’s right ankle condition was not the result of an injury related to, or caused by, her employment and, in the alternative, raised a s 9A defence, based on the assertion that there was no clear evidence of how the injury occurred.

A Commission Arbitrator found that, in the absence of any other evidence as to why pain and swelling might have occurred at the time of the injury, commonsense supported an inference that, in the process of stepping off the pallet mover, the worker’s right foot and ankle were subjected to some “abnormal strain” and “twisting motion”, which placed stress upon the tissues, sufficient to produce immediate pain and swelling.

The worker’s employment was found to be a substantial contributing factor to her injury. The Arbitrator made an award for weekly compensation based on the figures in the worker’s (unchallenged) wage schedule and a general order for the payment of hospital and medical expenses. The appellant challenged the finding that employment was a substantial contributing factor to the injury and the quantum of the award of weekly compensation.

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

(a) finding that the worker had discharged the onus of proof for the purposes of s 9A (substantial contributing factor);

(b) finding that the appellant had failed to discharge its evidentiary onus of proof with respect to the issue of injury (substantial contributing factor);

(c) his determination that the worker’s actual earnings from time to time were a proper reflection of her current work capacity and her ability to earn in suitable employment in accordance with s 32A of the 1987 Act (weekly compensation), and

(d) awarding weekly compensation to the worker in the period from 27 January 2015 to 22 August 2015 in accordance with ss 36 and 37 of the 1987 Act (weekly compensation).

Held: The Arbitrator’s determination was confirmed.  

Substantial contributing factor

1. The Arbitrator correctly observed that s 9A directs attention to the strength of the causal linkage between the employment and the injury. In order to be “substantial” the contribution by the employment must be “real and of substance”, but the employment need not be the only contributing factor, or even the most significant contributing factor (Badawi v Nexon Asia Pacific Pty Ltd t/as Commander Australia Pty Ltd [2009] NSWCA 324; 75 NSWLR 503). All of the Arbitrator’s findings and observations concerning s 9A(2) were consistent with the evidence and all pointed overwhelmingly to the worker’s employment being a substantial contributing factor to her injury [37], [40].

2. The Arbitrator accepted that the worker’s evidence was “somewhat vague”, but his analysis of the expert evidence demonstrated that the experts did not rely wholly on the worker’s history. Dr Pillemer, qualified orthopaedic surgeon, for example, relied on the history of a sudden onset of symptoms, the absence of any prior symptoms, his clinical examination and the radiological examinations. This approach was consistent with the principles discussed in Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43, which the Commission has consistently applied and which insurers consistently ignore. It followed that it was open to the Arbitrator to accept Dr Pillemer’s evidence on cause of the injury [43].

3. The appellant’s reliance on Taylor v PJM Building Management Pty Ltd [2013] NSWWCCPD 52 (Taylor), which was relevant to s 9A(2)(d), was misplaced. The Arbitrator distinguished Taylor on grounds that minimised its relevance to the present case but also “served to illustrate the strength of the causal connection required by section 9A in the present case”. Having regard to the distinguishing features, the Arbitrator considered Taylor to have been decided on its own facts and did not accept that it contained any statement of principle that would lead him to a different conclusion to that which he expressed. That statement was correct [46], [48]–[49].

4. The appellant’s submission was that the presence of a pre-existing condition is not essential in the determination of whether or not the employer has discharged the evidentiary onus. This criticism was without merit and was based on the false assumption that the Arbitrator held that the presence of a pre-existing condition is essential before the employer could discharge the evidentiary burden it carries under paragraph (d) in s 9A(2). He did not do that or anything like it [50].

5. The submission that the important feature of this case is the complete absence of a reliable history of trauma arising out of the tasks required of the worker had ignored the Arbitrator’s reasons and the evidence. The Arbitrator dealt with the medical histories and concluded that the experts’ opinions were based on clinical observations of pain, tenderness and swelling, which “could only have been caused by a strain or sprain placing undue stress on the affected tissues”. This reasoning was logical and consistent with the evidence. It clearly supported the Arbitrator’s conclusion that, though the worker’s evidence was vague, the reasonable inference from all the evidence was that she suffered a twisting injury to her right foot and ankle and that her employment was a substantial contributing factor to that injury [56]–[57].

Weekly compensation

6. The first issue was whether counsel for the employer, Mr Halligan, made the concessions attributed to him by counsel for the worker. The concession, as understood by the Arbitrator, was that the worker’s actual hours worked ought to be accepted as the extent of her current work capacity within the meaning of s 32A and that her actual earnings ought to be applied as the “E” figure as provided for by s 35. The Arbitrator’s decision was consistent with this concession [77], [81].

7. Though he had the opportunity to do so, Mr Halligan did not object to or challenge the Arbitrator’s stated understanding of the concession. That the Arbitrator was correct in his interpretation of Mr Halligan’s concession was confirmed by the fact that neither party made any submissions about the calculation of the worker’s entitlement to weekly compensation. Mr Halligan made none of the submissions he had sought to argue on appeal [82]–[83].

8. The appellant was bound by the conduct of its counsel (Smits v Roach [2006] HCA 36; 227 CLR 423 at [46]). It followed that, in a case where the insurer never disputed the quantum of weekly compensation payable if the worker succeeded on liability, where counsel for the appellant made clear concessions about the worker’s entitlement to weekly compensation, and no other submissions to clarify or restrict those concessions, as they were understood by the Arbitrator, it was not open to argue on appeal that the Arbitrator erred in adopting an approach consistent with that concession. Moreover, it is not an error for an Arbitrator not to deal with an issue never argued (Brambles Industries Ltd v Bell [2010] NSWCA 162; 8 DDCR 111) (see also Mamo v Surace [2014] NSWCA 58, at [75]) [89]–[90].

9. Contrary to Mr Halligan’s submissions, the Arbitrator did not err in adopting the wage schedule filed by the worker. As the appellant never disputed the worker’s earnings in the s 74 notice, and never filed a competing wage schedule, the figures in the worker’s wage schedule were “deemed to be admitted” by the appellant (Pt 15.5(3) of the 2011 Rules). It was therefore open to the Arbitrator to accept those figures, regardless of Mr Halligan’s concessions [93].

10. Last, Mr Halligan sought, in the alternative, that the Arbitrator’s decision be reconsidered under s 350 of the 1998 Act. An express provision (s 352) excludes a general provision (s 350(3)) (R v Wallis; Ex parte Employers Association of Wool Selling Brokers [1949] HCA 30; 78 CLR 529 per Dixon J at 550, applied in Casey v Cullen Auto Group Pty Ltd [2012] NSWWCCPD 7 at [93]–[100]). Therefore, a s 352 appeal is not a reconsideration and cannot be converted into an application for reconsideration (Preston v Randwick City Council [2012] NSWWCCPD 1) [95].

HammondCare v Calka [2016] NSWWCCPD 2

Injury; causation; factual findings; assessment of expert medical evidence; need for an expert to explain his or her opinion; application of the principles in Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43; secondary psychological injury

Roche AP

20 January 2016

Facts:

This appeal involved a challenge to an Arbitrator’s factual findings on injury and causation. The worker suffered an abdominal and groin injury on 7 September 2012 in the course of his employment.

The worker worked in a commercial laundry. His duties involved, among other things, loading and unloading industrial washing machines. On 7 September 2012, he removed heavy wet laundry from one washing machine, placed it on a trolley, and loaded it into another machine. He then went to the “folding room” and began folding towels. After folding one towel, he dropped a towel on the floor. While straightening, after picking up the towel, he felt a very sharp pain in the right side of his groin, which spread to the left side over the next hour. The worker gave no evidence of the length of the interval between moving the washing and lifting the towel, but Dr Assem, consultant in rehabilitation medicine qualified by the insurer, recorded that it was “a couple of minutes”.

The worker claimed weekly compensation, compensation for the cost of medical and related treatment expenses under s 60 of the 1987 Act and that the employer pay for the costs of the proposed bilateral adductor longus surgery. A Commission Arbitrator found that the proposed surgery was reasonably necessary as a result of an adductor longus tendon injury and that the worker suffered a secondary psychological injury as a result of his physical injury.

In a Certificate of Determination issued on 6 October 2015, the employer was ordered to pay weekly compensation and expenses under s 60 of the 1987 Act, including to pay for the costs of the proposed bilateral adductor longus surgery. The employer appealed.

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

(a) concluding that Dr Berry (qualified general surgeon) supported the proposition that the worker had sustained injury while moving wet washing (injury);

(b) directing herself that there was evidence supporting the proposition that the worker had sustained injury while moving wet washing (injury);

(c) directing herself that the interval between moving the washing and bending to pick up a towel was “only moments” and that she was entitled to ignore it (the interval between moving the washing and bending to pick up a towel);

(d) concluding that there was evidence to satisfy the standard required by Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705 (Makita); Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42; 2 DDCR 271 (Hevi Lift); South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16; 4 DDCR 421 (Edmonds) and Rule 70 of the Workers Compensation Commission Rules 2003 (Makita v Sprowles);

(e) directing herself that the only evidence suggesting a causal link between coughing, sneezing or straining to go to the toilet, on the one hand, and the existence of tendonotic changes, on the other, was that of “a miss-statement [sic] of Dr Halpin’s comment” when in fact there was opinion evidence from Dr Breit (consultant orthopaedic surgeon and AMS) supporting the link, independent of Dr Halpin (sports physician) (coughing and sneezing), and

(f) finding a secondary psychological condition when the same was not contended for by the worker in submissions, nor formed part of the claim disputed by the insurer, nor was supported by the evidence (secondary psychological injury).

Held: The Arbitrator’s determination that the worker suffered a secondary psychological injury was revoked but all other orders in the Certificate of Determination were confirmed.  

Injury and the interval between moving the washing and bending to pick up a towel

1. Counsel for the appellant’s submissions, which had largely ignored the Arbitrator’s reasons, selectively quoted from the evidence, and ignored recent and binding authority (see Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43 (Hancock); Adler v Australian Securities and Investments Commission [2005] NSWCA 152 at [631]; Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157; 117 FCR 189 at [89], and Brambles Industries Ltd v Bell [2010] NSWCA 162; 8 DDCR 111 at [20]), could not be accepted [29], [42], [46], [48].

2. The history recorded by Dr Berry was largely consistent with the worker’s evidence. The submission that Dr Berry did not support the Arbitrator’s conclusion was wrong and involved a failure to consider the evidence and the Arbitrator’s reasons as a whole. The Arbitrator’s acceptance of Dr Berry’s evidence was open on the evidence and disclosed no error [31], [33], [41].

3. The appellant’s reliance on Makita was misplaced. The submission that Dr Berry failed to demonstrate the “scientific or other intellectual basis of the conclusions reached” was not accepted as it ignored the correct approach to expert evidence in the Commission, as explained in Hancock. Hancock made it clear that, even in evidence based jurisdictions, compliance with the usual requirements for expert evidence “does not require strict compliance with each and every feature referred to by Heydon JA in Makita to be set out in each and every report” (per Beazley JA at [82]). Beazley JA added at [83], in non-evidence based jurisdictions (such as the Commission), the question of “acceptability of expert evidence will not be one of admissibility but of weight”. What 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” (at [85]) [42]–[44].

4. Dr Berry, an experienced specialist general surgeon, took a detailed and accurate history of the worker’s activities on 7 September 2012 and, in particular, of exactly when the worker first experienced symptoms on that day, namely, “very shortly” after he had moved the wet washing. Armed with that history, his findings on examination, the radiological investigations and, in particular, the results of the injection of local anaesthetic to the left groin by Dr Halpin, Dr Berry concluded that the worker’s “ongoing groin and thigh pain was work caused as a result of heavy lifting and twisting he carried out at work”, that the worker’s bilateral adductor tendon strains were “a direct result of his work injury”, and that, with regard to “work-causation”, the worker did “not have a history to suggest any other cause apart from his work which was heavy and involved lifting, twisting and bending”. These statements provided the explanation for Dr Berry’s conclusions [49]–[50].

5. The complaint that there was no “demonstration” that Dr Berry considered the matters referred to by the appellant’s counsel were without substance. It was open to the doctor to conclude that moving the heavy laundry involved “heavy lifting and twisting” [51].

6. The compelling conclusion was that, consistent with the evidence, the time gap between the transfer of clothes from one machine to another and the straightening up while picking up the towel was very short. Dr Berry’s failure to record the time between the transfer and the worker experiencing pain while picking up the towel was of no consequence. The Arbitrator did not err in her consideration of the interval, which she described as “only moments” [53]–[55], [66]–[69].

7. Dealing with causation, the Arbitrator rejected the evidence of Dr Krishna (general surgeon) and Dr Halpin, though the Arbitrator accepted their evidence on diagnosis. It is not an error of law to accept part of a witness’s evidence but not all of it (Byers v Civil Aviation Safety Authority [2005] FCA 1751 at [33]). There is no requirement for the judge to accept the whole of the evidence of any one witness (Chanaa v Zarour [2011] NSWCA 199 at [86]; see also similar observations by Beazley P in Sgro v Australian Associated Motor Insurers [2015] NSWCA 262 at [43]) [61].

Makita v Sprowles

8. The Arbitrator’s reference to the Liverpool Hospital discharge referral was in the context of distinguishing the facts in the present case from those in Devi v Fairfield Nursing Home [2010] NSWWCCPD 131 (Devi). Unlike Devi, within 24 hours of moving the washing, the hospital notes recorded the worker as having lower abdominal pain and complaining of symptoms in the region of both groins. In these circumstances, it was open to the Arbitrator to note the complaints recorded at Liverpool Hospital and to contrast them with the significant delay of several months in the complaint of neck pain in Devi. That the precise diagnosis of the condition (bilateral adductor longus tendon injury) was not made until some months later was not, in the circumstances of this case, of any consequence [74]–[76], [80].

9. The causation issue required, as the Arbitrator appreciated, an assessment of all the evidence, both expert and lay. After assessing that evidence, and for reasons stated, the Arbitrator found in favour of the worker on causation. That finding was open on the evidence and involved no error. The Arbitrator’s approach did not “dispense with the requirement of evidence” and the appellant’s implied suggestion that she did was without substance [78]–[79].

10. Though there is no prohibition on opinion evidence (or hearsay), “the Commission is required to draw its conclusions from material that is satisfactory, in the probative sense, in order that it act lawfully and in order that conclusions reached by it are not seen to be capricious, arbitrary or without foundational material” (Onesteel Reinforcing Pty Ltd v Sutton [2012] NSWCA 282 at [2]). The material upon which the Arbitrator relied was satisfactory, in the probative sense, and it supported her conclusion on causation [83].

Coughing and sneezing

11. The submission that the Arbitrator rejected Dr Breit’s evidence because of the absence of evidence of the occurrence of coughing, sneezing or straining was not accurate. A fair reading of the Arbitrator’s reasons demonstrated that she rejected Dr Breit’s evidence for several reasons. Her conclusions were open on the evidence and disclosed no relevant error [92], [99].

12. In any event, the Arbitrator’s conclusion was correct, there was no evidence that coughing, sneezing or straining to go to the toilet instigated or caused the worker’s condition. Indeed, there was no evidence that it aggravated his condition. The submission that the Arbitrator did not “consider these potential causes in the light” of s 9A(2)(d) was plainly wrong. The Arbitrator was correct to find that s 9A was satisfied [104], [108]–[109].

13. The appellant’s submission that it was not open to the Arbitrator to dismiss the distinction between symptoms at the left adductor longus tendon insertion site and the lower abdominal pain was not accepted. Relying on the reference to pain on both sides of the iliac fossas in the Liverpool Hospital notes, the Arbitrator was correct to dismiss that point [110]–[111].

14. The appellant’s medical case conceded that the worker suffered a lower abdomen strain, which it argued had resolved. Given the worker’s continuing symptoms, it clearly had not. The presence of groin pain was perfectly consistent with an adductor tendon longus injury. It followed that the finding that the worker “sustained injury to his abdomen/groin, specifically to his bilateral adductor longus” was open on the evidence [113]–[114].

Secondary psychological injury

15. The only expert evidence relied on by the Arbitrator in support of her finding that the worker suffered a secondary psychological injury was from Dr Maharaj (general practitioner). Dr Maharaj’s evidence did not support such a finding. A psychological injury is an injury that is a psychological or psychiatric disorder (s 11A(3) of the 1987 Act) [119].

16. It was correct that the worker gave evidence that he had been suffering from constant stress, anxiety, depression and feelings of hopelessness. However, there was no expert evidence that those symptoms amounted to a psychological or psychiatric condition. Without evidence of a diagnosis of a psychological or psychiatric condition, and without submissions in support of such a finding, it was not open to the Arbitrator to find that the worker suffered from such a condition and she erred in doing so. The Arbitrator’s finding that the worker suffered a secondary psychological injury was revoked [119], [121], [123].