Issue 7: July 2014
On Appeal
Welcome to the 7th issue of ‘On Appeal’ for 2014.
Issue 7 – July 2014 includes a summary of the June 2014 decisions.
These summaries are prepared by the Presidential Unit and are designed to provide an
overview of, and introduction to, the most recent Presidential, Court of Appeal and High
Court decisions. They are not intended to be a substitute for reading the decisions in
full, nor are they a substitute for a decision maker’s independent research.
Please note that the following abbreviations are used throughout these summaries:
ADP
AMS
Commission
DP
MAC
Reply
1987 Act
1998 Act
2003
Regulation
2010
Regulation
2010 Rules
2011 Rules
Acting Deputy President
Approved Medical Specialist
Workers Compensation Commission
Deputy President
Medical Assessment Certificate
Reply to Application to Resolve a Dispute
Workers Compensation Act 1987
Workplace Injury Management and Workers Compensation Act 1998
Workers Compensation Regulation 2003
Workers Compensation Regulation 2010
Workers Compensation Commission Rules 2010
Workers Compensation Commission Rules 2011
Level 21 1 Oxford Street Darlinghurst NSW 2010 PO Box 594 Darlinghurst 1300 Australia
Ph 1300 368018 TTY 02 9261 3334 www.wcc.nsw.gov.au
1
Table of Contents
Presidential Decisions:
Caulfield v Whelan Kartaway Pty Ltd [2014] NSWWCCPD 34 .......................................... 4
Second claim for lump sum compensation where the first claim for such compensation
was “specifically sought” prior to 19 June 2012; whether amendments introduced by the
Workers Compensation Legislation Amendment Act 2012 apply to such a claim; cl 15 of
Pt 19H of Sch 6 to the 1987 Act; cl 11 of Sch 8 to the Workers Compensation Regulation
2010; ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18 discussed and applied;
whether any need to establish deterioration since initial claim for lump sum compensation;
estoppel; no estoppel in a changing situation; effect of initial assessment by an Approved
Medical Specialist; power of Arbitrator in claim for lump sum compensation where liability
is not in issue; application of principles in Abou-Haidar v Consolidated Wire Pty Ltd [2010]
NSWWCCPD 128 ............................................................................................................. 4
Ware v NSW Rural Fire Service [2014] NSWWCCPD 33 ................................................... 9
Meaning of firefighter in cl 25 of Pt 19H of Sch 6 to the 1987 Act; boilermaker’s deafness;
deemed date of injury; s 17 of the 1987 Act ...................................................................... 9
Luxotica Retail Australia Pty Ltd v Susak [2014] NSWWCCPD 36 ................................ 14
Partial incapacity; weekly compensation under s 40 of the 1987 Act (as it stood prior to the
amendments introduced by the Workers Compensation Legislation Amendment Act
2012); calculation of ability to earn; effect of subsequent injury on ability to earn; exercise
of discretion in determining the proper amount of weekly compensation; assessment of
medical evidence; application of the principles in Hancock v East Coast Timber Products
Pty Ltd [2011] NSWCA 11; 80 NSWLR 43 and Paric v John Holland (Constructions) Pty
Ltd [1985] HCA 58; 59 ALJR 844; issues not argued at the arbitration; application of the
principles in University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 and
Brambles Industries Ltd v Bell [2010] NSWCA 162; 8 DDCR 111; alleged failure to give
reasons ........................................................................................................................... 14
Hunter New England Local Health District v James [2014] NSWWCCPD 38 ................ 22
Review under s 55 of the 1987 Act; alleged failure to give reasons; weight of evidence; s
40 of the 1987 Act (as it stood prior to the introduction of the amendments in the Workers
Compensation Legislation Amendment Act 2012); exercise of discretion in s 40(1) of the
1987 Act .......................................................................................................................... 22
Roche DP........................................................................................................................ 22
Grzenda v Menzies Property Services Pty Ltd [2014] NSWWCCPD 35 ......................... 28
Section 17 of the 1987 Act; employment to the nature of which the injury was due; findings
made in absence of argument having been advanced; procedural fairness..................... 28
2
Cargill Meat Processors Pty Ltd v Tuson [2014] NSWWCCPD 37 ................................. 31
Weight of evidence; assessment of expert evidence; application of principles in Paric v
John Holland (Constructions) Pty Ltd [1958] HCA 58; 62 ALR 85; alleged failure to give
reasons; whether need for spinal surgery resulted from accepted back injury; application
of principles in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR
796 .................................................................................................................................. 31
Sedrak v Rooty Hill RSL Club Ltd [2014] NSWWCCPD 40 ............................................. 34
Claim for weekly compensation in addition to payments being voluntarily made at the
maximum statutory rate; whether worker entitled to two separate payments of weekly
compensation for two injuries; Cordina Chicken Farms Pty Ltd v Thoa Hong Le [2008]
NSWWCCPD 125 discussed and applied ....................................................................... 34
Wilkie Fleming & Associates Pty Ltd v Highlands [2014] NSWWCCPD 39 ................... 38
Interlocutory orders; leave to appeal; defective s 74 notice; leave to dispute unnotified
matters refused; alternative finding if leave had been granted; alleged absence of
jurisdiction ....................................................................................................................... 38
3
Caulfield v Whelan Kartaway Pty Ltd [2014] NSWWCCPD 34
Second claim for lump sum compensation where the first claim for such compensation was
“specifically sought” prior to 19 June 2012; whether amendments introduced by the Workers
Compensation Legislation Amendment Act 2012 apply to such a claim; cl 15 of Pt 19H of
Sch 6 to the 1987 Act; cl 11 of Sch 8 to the Workers Compensation Regulation 2010; ADCO
Constructions Pty Ltd v Goudappel [2014] HCA 18 discussed and applied; whether any need
to establish deterioration since initial claim for lump sum compensation; estoppel; no
estoppel in a changing situation; effect of initial assessment by an Approved Medical
Specialist; power of Arbitrator in claim for lump sum compensation where liability is not in
issue; application of principles in Abou-Haidar v Consolidated Wire Pty Ltd [2010]
NSWWCCPD 128
Roche DP
11 June 2014
Facts:
On 9 August 2005, the appellant worker injured his right knee in the course of his
employment with the respondent employer. Liability for this injury was never disputed. On
2 February 2009, the worker underwent surgery on his knee, which revealed a complex tear
of the medial meniscus and a complex tear of a discoid lateral meniscus, which the treating
surgeon described as “quite an extensive tear requiring a subtotal lateral meniscectomy”. He
also had full thickness articular cartilage defect.
In proceedings in the Commission in 2010 (matter No 6076/10), the worker claimed
permanent impairment compensation under s 66 of the 1987 Act in the sum of $20,000 in
respect of a 15 per cent whole person impairment due to his injury. Dr Guirgis, consultant
orthopaedic surgeon, supported the claim in a report dated 23 February 2010, his second
report. Dr Guirgis’s assessment under the WorkCover Guides for the Evaluation of
Permanent Impairment, 3rd ed, and the AMS Guides to the Evaluation of Permanent
Impairment, 5th ed, was:
“• According to Chapter 17 Table 17-33 Impairment Estimates for Certain Lower
Extremity Impairments page 546 the medial and lateral meniscal injury attracts 4%
Whole Person Impairment;
 According to Table 17-31 page 544, ‘Arthritis Impairments Based on Radiologically
Determined cartilage Intervals’ there is 4% whole-person impairment for the knee joint
(2 mm cartilage interval in the patellofemoral compartment of the knee).
 According to Table 17-31 Page 544, ‘Arthritis Impairments Based on Radiologically
Determined cartilage Intervals’ there is 8% whole-person impairment for the knee joint
(2 mm cartilage interval in the medial compartment of the knee as compared to the
normal 4 mm in the lateral compartment).
Total Whole Person Impairment according to the combined charts = 15% Whole
Person Impairment.” (emphasis included in original)
Impairments under the second and third bullet points above were for assessments for
arthritis and were based on investigations in 2008.
In an earlier report, dated 11 August 2009, Dr Guirgis assessed the worker to have an eight
per cent whole person impairment made up by combining the assessments in the first and
second bullet points set out above.
4
The Commission referred the worker’s claim to an AMS for assessment under s 321 of the
1998 Act. The referral included a copy of Dr Guirgis’s report of 23 February 2010, among
other documents.
On 14 October 2010, the AMS, Dr Crane, issued a MAC. In his reasons for assessment, Dr
Crane said that there was “potential impairment for restricted range of motion in the knee,
arthritis and impairment related to partial medial lateral meniscectomy”. He said that “[i]t was
not possible to combine these three types of impairment and the highest is taken”, namely,
an eight per cent whole person impairment as a result of the worker’s injury.
On 19 November 2010, the Commission issued a Certificate of Determination ordering the
respondent to pay the worker lump sum compensation under s 66 in the sum of $10,000 in
respect of eight per cent whole person impairment as a result of the injury on 9 August 2005.
The respondent has paid that amount. In March 2011, the worker underwent further surgery
to his right knee in the form of further trimming of the meniscal remnant and further
chondroplasty.
On 6 December 2011, Dr Guirgis reviewed the worker and, in his report of the same date,
stated that the injury had initiated the onset of post-traumatic osteoarthritis in the knee joint.
Apparently applying the same individual assessments as used in his 2010 report, Dr Guirgis
assessed the worker to have a 17 per cent whole person impairment “according to the
combined charts” including “any previously awarded impairments”. (Whether Dr Guirgis
actually applied the same individual assessments is discussed below.) On 29 August 2012,
the worker claimed lump sum compensation of $13,000, being $23,000 for a 17 per cent
whole person impairment less the $10,000 previously paid. On 18 September 2012, the
worker filed an Application to Resolve a Dispute (the Application) in the Commission
claiming lump sum compensation of $13,000 for a further nine per cent whole person
impairment.
The respondent disputed liability on the grounds that:
(a) the worker was not entitled to pursue a claim for further lump sum compensation
pursuant to s 66(1A) of the 1987 Act (as amended by the 2012 amending Act) as he
received lump sum compensation on 19 November 2010 in respect of the injury on
9 August 2005;
(b) there had been no deterioration in the condition of the worker’s right lower extremity
(knee), because the assessment by Dr Guirgis was identical to that made by him in
his 23 February 2010 report, and
(c) the worker was estopped from pursuing a claim for further lump sum compensation
because “the assessment on which he relies has already been determined by the
AMS”.
The Arbitrator determined there was no prima facie case of a deterioration since the award
of 19 November 2010 and, because of that award, the worker was estopped from claiming
additional compensation and the matter could not be referred to an AMS.
The Arbitrator did not determine the first issue identified in the Reply because of the decision
in Goudappel v ADCO Constructions Pty Ltd [2013] NSWCA 94 (Goudappel No 1).
The Commission issued a Certificate of Determination on 10 February 2014, which made an
award for the respondent and no order as to costs.
5
The issues in dispute in the appeal were initially identified as whether the Arbitrator erred in:
(a) finding that it was necessary for the worker to establish a deterioration in his
condition before his claim could be referred for assessment;
(b) determining the claim without remitting the claim to the Registrar for referral to an
AMS to assess the impairment resulting from the admitted injury to the right knee;
(c) finding that the worker was estopped by the previous award;
(d) considering he could analyse the assessment of whole person impairment
expressed by Dr Guirgis to determine whether there was a relevant increase in
impairment resulting from injury, and
(e) failing to appreciate that Dr Guirgis’s assessments in 2010 and 2011 were based on
different x-rays.
An issue also arose as to the effect of the 2012 amending Act, in light of ADCO
Constructions Pty Ltd v Goudappel [2014] HCA 18 (Goudappel No 2) and the amending
Regulation.
Held: The Arbitrator’s determination of 10 February 2014 was revoked and the matter
remitted to the Registrar for referral to an Approved Medical Specialist (AMS) for
assessment.
The Deputy President dealt with the issue of Goudappel No 2 first and then considered the
issues identified above under the heading “Deterioration and Determination of the Claim”.
The 2012 Amendments
1.
Counsel for the worker correctly submitted that, in the circumstances of the present
matter, the amendments introduced by the 2012 amending Act did not apply to the
worker. That was because of the combined effect of cls 3 and 15 of Pt 19H of Schedule
6 to the 1987 Act and cl 11 of Sch 8 to the Workers Compensation Regulation 2010 in
circumstances where the worker “specifically sought” compensation under s 66 prior to
19 June 2012. As the worker “specifically sought” compensation under s 66 prior to 19
June 2012, the clear words of the High Court were that the amendments did not apply
where the worker made a claim for s 66 prior to 19 June 2012 [26], [35].
2.
This conclusion was consistent with cl 15 of Pt 19H and cl 11 of Sch 8. This was
because, as accepted by the Court of Appeal, and not challenged in the High Court, the
amendments do not apply to claims for compensation made before 19 June 2012. As
cl 15 must be “read subject to” cl 11, the proper interpretation of the two provisions was
that the permanent impairment amendments apply to claims made on and after 19 June
2012 but not where a worker claimed before that date. However, cl 11 modified that
position to make the amendments apply to claims made before 19 June 2012 but not if
the worker made a claim that “specifically sought” compensation under s 66 or 67 [38]–
[39].
3.
It followed that, applying the text of the legislation, having regard to its context and
history, as the worker “specifically sought” compensation under s 66 before 19 June
2012, the amendments to s 66 in the 2012 amending Act did not apply to him and his
claim is entitled to be determined without regard to the restrictions in the new s 66. In
6
other words, he was not caught by the new threshold and not restricted to making only
one claim for permanent impairment compensation [40].
4.
It followed that, though this was the worker’s second claim for permanent impairment
compensation, he was entitled to make the claim. Though the combined value of his
claims was over 10 per cent, as the amendments do not apply to him, it would not
matter if they were not [41].
Deterioration and Determination of the Claim
5.
The reasoning in Abou-Haidar v Consolidated Wire Pty Ltd [2010] NSWWCCPD 128
(Abou-Haidar) was tolerably clear and applied to this case. Unless the Court of Appeal
overturns Abou-Haidar it should be accepted as correct and should be applied [66]–[67].
6.
An Arbitrator’s task is to determine injury and other liability issues. Once that is done,
the question of the extent of any whole person impairment as a result of the injury is a
matter for an AMS (Abou-Haidar at [54]). It is not necessary for the Commission to
determine, as a threshold issue, whether the worker has demonstrated that his or her
condition has deteriorated before the matter is referred to an AMS (Abou-Haidar at [55])
[66].
7.
The Arbitrator analysed Dr Guirgis’s evidence to determine if deterioration had in fact
occurred. Indeed, he identified the issue in terms of whether the worker had “lodged any
proof prima facie demonstrating deterioration of [the worker’s] condition since the award
of 19 November 2010”. He then embarked upon an analysis of the evidence to
determine whether the worker’s condition had deteriorated and whether he had an
impairment greater than the impairment determined by the AMS in 2010. That was the
very thing an Arbitrator is not permitted to do (s 65(3) of the 1987 Act and s 293(2) of
the 1998 Act) [69].
8.
The Commission has jurisdiction to determine liability issues. However, once those
issues are determined, the Commission has no jurisdiction to determine medical
disputes that come within the terms of s 319. A claim for further or additional lump sum
compensation as a result of an alleged increased impairment since a previous
assessment or award, where there is no dispute as to injury, is such a medical dispute.
A worker does not have to establish a prima facie case of a deterioration before such a
claim can be referred to an AMS for assessment and, to the extent that E v Sydney
South West Area Health Service (Concord Hospital) [2009] NSWWCCPD 108 (E)
suggests the contrary, it is not consistent with the legislation and should not be followed
[70].
9.
The question of deterioration is not strictly relevant and is certainly not determinative of
a later claim for whole person impairment (Abou-Haidar at [60]). An assessment of
whole person impairment is not based on a worker’s subjective complaints of a
deterioration, but depends on an objective assessment based on the American Medical
Association’s Guides to the Evaluation of Permanent Impairment (5th ed) (AMA5) and
the WorkCover Guidelines. The argument that the Arbitrator was entitled to consider if
there was evidence of an increase in impairment was incorrect. Whether, since the
previous award, there has been an increase in impairment is a matter for an AMS, not
an Arbitrator [72]–[73].
10. It is well established that there is no estoppel in a changing situation (The Doctrine of
Res Judicata by Spencer Bower, Turner and Handley, 3rd ed, 1996; O’Donel v
7
Commissioner for Road Transport & Tramways [1938] HCA 15; 59 CLR 744; Rail
Services Australia v Dimovski [2004] NSWCA 267; 1 DDCR 648; Hamersley Iron Pty Ltd
v The National Competition Council [2008] FCA 598; Prisk v Department of Ageing,
Disability and Home Care (No 2) [2009] NSWWCCPD 13; Brumar (Vic) Pty Ltd v Norris
and Brown v Maurice Blackburn Cashman [2010] VSCA 206). A claim for lump sum
compensation, which depends on a person’s physical condition, is such a situation [75].
11. The only estoppel that arose from the 2010 award was that the parties were estopped
from denying that, as a result of the accepted work injury to his right knee, the worker
had an eight per cent whole person impairment. That did not prevent the worker from
later claiming additional lump sum compensation because of a change in his condition.
However, whether there has been a relevant change will depend on whether there has
been an increase in whole person impairment as a result of the injury. Assuming there
are no liability issues, an AMS must determine that question and, unless it was alleged
that the claim is vexatious, frivolous or lacking in substance (s 354(7A) of the 1998 Act),
it was not open to the Arbitrator to undertake a preliminary medical assessment to
determine if there was prima facie evidence of a change [76].
12. While Dr Guirgis’s second and third reports appeared to be substantially the same,
when one closely examined the third report, it was apparent that the doctor may have
assessed the arthritis impairment based on radiologically determined cartilage intervals
to in fact be 10 per cent and not eight per cent. If that was so, then the assessment of
17 per cent under the combined chart was arithmetically correct. While it is not strictly
necessary for the Commission to conduct that kind of analysis of the doctor’s report,
though it would have to do so if it were considering dismissing the claim as vexatious or
frivolous under s 354(7A), it gave a potential explanation for the apparently illogical
assessment of 17 per cent in the third report [77].
13. The decision involved another error. In considering estoppel, the Arbitrator said that
Dr Crane had rejected Dr Guirgis’s reasoning in his second report, about combining the
three assessments made in that report, and the worker was therefore estopped from
relying on that approach in his current claim. This was because Dr Crane said that it
was “not possible to combine assessments for range of motion, arthritis or impairment
arising from a meniscectomy”. The Arbitrator said that that “ruling” was accurate which
meant Dr Guirgis’s methodology could not be accepted. Even if that statement were
correct, it was not for the Arbitrator to assess the validity of Dr Guirgis’s methodology.
More importantly, Dr Crane’s “ruling” was not a finding that was “legally indispensable”
to the award and could not create an estoppel in any event (Blair v Curran [1939] HCA
23; 62 CLR 464). Dr Crane based his assessment of eight per cent impairment on the
restricted range of motion in the worker’s right knee [78]–[79].
14. As Dr Crane did not have the x-rays, and was not able to assess the impairment from
the arthritis, he selected the higher of the impairments for restricted range of motion
(eight per cent) and for the meniscectomy (four per cent). It is for an AMS, not an
Arbitrator, to assess if there was a higher impairment, as claimed, because of the effects
of the operation and/or osteoarthritis, or for some other reason, such as a greater
restricted range of motion. The AMS would make that assessment in light of the current
evidence, which, on this occasion, will include the x-rays [81].
8
Ware v NSW Rural Fire Service [2014] NSWWCCPD 33
Meaning of firefighter in cl 25 of Pt 19H of Sch 6 to the 1987 Act; boilermaker’s deafness;
deemed date of injury; s 17 of the 1987 Act
Roche DP
3 June 2014
Facts:
The appellant worker, Mr Ware, started work for the respondent as a motor mechanic in
1988. In 2001, he was promoted to the position of district team zone fleet officer but his
duties remained those of a mechanic. His duties in both positions required him to repair fire
trucks and fire-fighting equipment, such as chain saws, brush cutters and pumps. He
performed the majority of his duties at the respondent’s workshop at Katoomba, but from
time to time, he also performed similar work at other Brigade Stations. Whenever there was
a bush fire, he was “on call” to carry out emergency repairs on fire trucks and fire-fighting
equipment at the “fire front”. When he attended the fire front, he was often as close to the
fires as “the people holding the fire hoses”. Since 2001, he attended the fire front on about
31 occasions.
The worker’s duties, both at the workshop and on the fire front, exposed him to noise from
equipment and other sources. It is not disputed that his employment, both in the workshop/s
and on the fire front, was employment to the nature of which boilermaker’s deafness or
deafness of a similar origin is due (s 17(2) of the 1987 Act). After noticing a gradual loss of
hearing in the 10 years up to 2012, Mr Ware sought legal advice and was referred to
Professor Paul Fagan, ear, nose and throat specialist. In his report of 24 May 2012,
Professor Fagan took a history that Mr Ware’s work with the respondent from 2000 exposed
him to noise from rattle guns, grinders, hammers, compressors and machinery. He
concluded that the work posed a real risk of sensorineural hearing loss (boilermaker’s
deafness). He assessed Mr Ware to have a binaural hearing loss of 12.3 per cent, which
equated to a whole person impairment of six per cent.
On 20 June 2012, Mr Ware claimed $8,250 lump sum compensation under s 66 of the 1987
Act for a six per cent (amended on appeal to be seven per cent) whole person impairment
due to boilermaker’s deafness. Under s 17(1)(a), 20 June 2012 was the deemed date of
injury. This letter also attached a Notice of Claim under s 260 of the 1998 Act in which it
described Mr Ware’s occupation as “Motor mechanic and fleet officer”. Under “EXPOSURE”,
the following appeared, “rattle guns, grinders, brake drums, hammers, compressors, various
air tools and general worksite machinery. Hearing protection provided”.
By amendments to s 66 of the 1987 Act, introduced by the Workers Compensation
Legislation Amendment Act 2012 (the 2012 amendments), which apply to claims made on or
after 19 June 2012, no compensation is payable for permanent impairment unless the
impairment is greater than 10 per cent (cl 15 of Pt 19H of Sch 6 to the 1987 Act).
However, cl 25 of Pt 19H of Sch 6 to the 1987 Act (cl 25) provides that:
“The amendments introduced by the 2012 amending Act do not apply to or in respect of
an injury received by a police officer, paramedic or firefighter (before or after the
commencement of this clause), and the Workers Compensation Acts (and the
9
regulations under those Acts) apply to and in respect of such an injury as if those
amendments had not been enacted.”
On 31 July 2012, the respondent’s insurer issued a s 74 notice in which it disputed liability
on the ground that Mr Ware had not met the 10 per cent threshold in s 66, as amended by
the 2012 amendments. It asserted that the amendments applied to Mr Ware because he
was not a firefighter for the purposes of the 1987 Act. After seeing Mr Ware’s statements,
which described the noise to which he was exposed at fire fronts, Professor Fagan said in a
second report, dated 15 May 2013, that Mr Ware’s employment while attending fire fronts
was “even more injurious to his hearing than his regular mechanical repair duties”.
The Arbitrator found:
(a) when working in his capacity as an employee of the respondent, the worker did not
fall within the definition of “firefighter” in the Workers Compensation (Bush Fire,
Emergency and Rescue Services) Act 1987 (the Emergency Services Act) and in
any event, the Commission does not deal with claims under that Act; and
(b) that the worker was entitled to bring a claim for industrial deafness arising out of his
employment with the respondent as he worked (for 31 days over about 10 years) in
active fire grounds with other emergency service personnel, and as it was integral
to the job of extinguishing fires that he be present at those fires, to repair trucks and
equipment, he could be classified under the term “firefighter” in cl 25.
The Arbitrator referred the assessment of his whole person impairment to an AMS for
assessment (s 319 of the 1998 Act). However, the question referred required the AMS to
assess the degree of industrial deafness “relating to Mr Ware’s employment with the
[respondent] confined to exposure to noise in an active fire ground as distinct from at
Brigade Stations or at the workshop at Fire Control Katoomba”.
The issues in dispute in the appeal were whether the Arbitrator erred in:
(a) finding that Mr Ware was exempt from the 2012 amendments in respect of injuries
while in an active fire ground but was not exempt in respect of injuries sustained at
other times and places;
(b) her interpretation of the exemption for firefighters in cl 25;
(c) limiting the remittal to the AMS to an assessment of industrial deafness confined to
exposure to noise in an active fire ground, and
(d) determining that Mr Ware suffered a nil impairment in respect of hearing loss
resulting from the injury deemed to have happened on 20 June 2012.
The grounds of appeal essentially raised two main issues: the first, which encompassed the
first two grounds of appeal, was whether the 2012 amendments applied to Mr Ware. This
question turned on whether Mr Ware was a firefighter. The second, which encompassed the
third and fourth grounds, was whether the Arbitrator erred in limiting the remittal to the AMS
to an assessment of industrial deafness confined to exposure to noise at an active fire
ground.
Held: Paragraph 1 of the Certificate of Determination of 31 January 2014 was revoked
and the following order was made in its place: “1. That the respondent pay the
10
applicant lump sum compensation in the sum of $9,625 under s 66 of the Workers
Compensation Act 1987 in respect of a seven per cent permanent impairment
resulting from a loss of hearing deemed to have happened on 20 June 2012.”
Paragraphs 2 and 3 of the Certificate of Determination of 31 January 2014 were
confirmed.
Discussion and findings
Did the 2012 amendments apply to Mr Ware?
1.
In considering Certain Lloyd’s Underwriters v Cross [2012] [2012] HCA 56; 248 CLR 378
and Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, the
Deputy President concluded that the legal meaning of firefighter corresponded with its
normal grammatical (dictionary) meaning and there was nothing in the context, purpose
or policy behind cl 25 that led to a different conclusion. It follows that firefighter means
“someone whose activity or employment is to extinguish fires, especially bushfires”. As
the worker was employed as a mechanic, he was only a firefighter, for the purposes of
cl 25, when he was engaged in providing support at the fire front during a fire [42].
2.
The interpretation urged by counsel for the appellant would extend the meaning of
firefighter from “someone whose activity or employment is to extinguish fires” to include
someone “involved in the task of extinguishing fires”, however remote that involvement
may be. Such an interpretation would result in the respondent’s receptionist being a
firefighter. That would be an artificial extension of the meaning of firefighter that is not
justified by the words used, or by the context in which they appear in cl 25. The
appellant’s “type of employment” was that of a mechanic: he maintained and repaired
equipment for use in fighting fires. Though it may be accepted that the maintenance of
that equipment is necessary for the efficient operation of the respondent’s activities, that
does not change the essential character or “type” of Mr Ware’s employment. He was a
mechanic and, plainly, not a firefighter [43]–[44].
3.
The only feature of the worker’s employment that might bring him within the term
firefighter was the work he performed at the fire front during bush fires. Though he was
not a firefighter in the sense of attempting to extinguish fires with a water hose, or
through some other method, his work on those occasions was incidental to the control
or suppression of a fire, which the respondent conceded. That was the conclusion
reached by the Arbitrator, who applied the reasoning and conclusion in The Australian
Workers Union, New South Wales v Office of Environment and Heritage [2012]
NSWIRComm 133 (AWU) to the effect that a worker who is not employed as a firefighter
should be considered a firefighter immediately when he or she commences to perform
firefighting duties [59].
4.
The Arbitrator did not err in her conclusion that the worker was a firefighter only when he
was repairing equipment at the fire front, which was an integral part of the job of
extinguishing fires. If, at those times, workers, including the worker here, were injured,
they would be exempt from the amendments and entitled to compensation according to
the terms of the applicable legislation [64].
Did the Arbitrator err in limiting the remittal to the AMS to an assessment of industrial
deafness confined to exposure to noise in an active fire ground?
5.
Clause 25 provides that the 2012 amendments do not apply “to or in respect of an
injury” (emphasis added) received by a firefighter before or after 19 June 2012. Section
11
66, both before and after the amendments introduced in 2012, talks about a worker who
“receives an injury” (emphasis added) being entitled to permanent impairment
compensation. The “injury” in the present case is a loss of hearing of such a nature as to
be caused by a gradual process (s 17(1)). In these circumstances, s 17 applies to
determine when the injury is deemed to have happened and by whom the compensation
is payable [78].
6.
The principles from Rico Pty Ltd v Road Traffic Authority (1992) 28 NSWLR 679;
8 NSWCCR 515 are applicable in the present case. The submission that, apart from the
impairment that resulted from injury that occurred while performing firefighting at an
active fire ground, the worker had no entitlement to s 66 compensation for his hearing
loss was incorrect and involved the same error identified in A & G Engineering Pty Ltd v
Civitarese (1996) 41 NSWLR 41; 14 NSWCCR 158. It sought to look at what caused Mr
Ware’s injury. Section 17 does not work in that way [87].
7.
Once it was established (or accepted) that the worker suffered an injury which is of such
a nature as to be caused by a gradual process, and that his employment was
employment to the nature of which the injury was due, and both those things were
accepted in the present case, s 17 applied according to its terms. The section does not
permit the assessment of the impairment to be divided in the way the Arbitrator directed
the AMS [88].
8.
Section 17 is not concerned with how much of the injury was received in one activity and
how much in another. The injury is taken to have been received “in one blow”, namely,
in this case, on 20 June 2012. Once that is accepted, as it must be, the compensation is
payable by the employer who employed the worker in employment to the nature of
which the injury was due. In this case, that was the respondent [89].
9.
While the assumption that the injury is received “in one blow” is a fiction, that is how the
section works. Nothing in cl 25, which talks about “an injury received by a ... firefighter”,
alters the terms of s 17, or its operation. Clause 25 does not talk about part of the injury.
Nor does it talk about apportioning the impairment, in the case of a hearing loss claim,
between different activities. Nor does it talk about thresholds. It follows that, once s 17
applies, it applies for all purposes and nothing in cl 25 suggests the contrary [90].
10. The legislation leaves no scope for reading into s 17 the power to find one injury due to
exposure to noise while working at the fire front and one injury while working in the
workshop. There is no such power and the proposed approach is not open. If the injury
is a loss of hearing, which is of such a nature as to be caused by a gradual process, the
provisions of s 17 apply [92].
11. There was no analogy between this case and a deduction made by an AMS for a nonoccupational loss. The worker’s hearing loss, and his consequential impairment, was all
due to his occupation and it was not open, under s 17, to “factor out” the impairment due
to Mr Ware’s work as a mechanic in the workshop [93].
12. The Arbitrator erred in directing the AMS to divide the impairment between that caused
by the work on the fire front and that caused by work in the workshop and the orders
made on 31 January 2014 could not stand [95].
12
Conclusion
13. Consistent with AWU, the Arbitrator correctly found that the worker was only a firefighter
whilst working at an active fire front. However, she erred in directing the AMS to divide
the worker’s impairment between that caused while working at an active fire front and
that caused while working in the workshop at Katoomba. The parties agreed that, should
either part of the appeal succeed, the worker was entitled to compensation in the sum of
$9,625 in respect of the seven per cent whole person impairment assessed by the AMS.
That order was made by the Deputy President [96].
13
Luxotica Retail Australia Pty Ltd v Susak [2014] NSWWCCPD 36
Partial incapacity; weekly compensation under s 40 of the 1987 Act (as it stood prior to the
amendments introduced by the Workers Compensation Legislation Amendment Act 2012);
calculation of ability to earn; effect of subsequent injury on ability to earn; exercise of
discretion in determining the proper amount of weekly compensation; assessment of medical
evidence; application of the principles in Hancock v East Coast Timber Products Pty Ltd
[2011] NSWCA 11; 80 NSWLR 43 and Paric v John Holland (Constructions) Pty Ltd [1985]
HCA 58; 59 ALJR 844; issues not argued at the arbitration; application of the principles in
University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 and Brambles Industries Ltd
v Bell [2010] NSWCA 162; 8 DDCR 111; alleged failure to give reasons
Roche DP
13 June 2014
Facts:
On 26 November 2004, the respondent worker injured her back in the course of her
employment as an optical technician/process worker with the appellant employer (the 2004
injury/the back injury). She suffered a further injury, to her neck, right shoulder and right
knee, and aggravated the back injury, in a car accident on 27 January 2009 (the car
accident) while driving home from a rehabilitation program for the original back injury.
The worker also injured her right wrist at work on 23 September 2004 and her back in a car
accident in 2001. As it was accepted that she recovered from both of these injuries, neither
was directly relevant to the appeal.
In 2005, the parties agreed that the worker had a seven per cent whole person impairment
as a result of the 2004 injury. In May 2011, an AMS (Dr Beer) assessed her to have a 14 per
cent whole person impairment as a result of the car accident, but accepted that there should
be a 5/7th reduction in respect of the impairment because of the effects of the 2004 injury to
the lumbar spine.
After the 2004 injury, the worker worked on suitable duties with the appellant for 30 hours
per week until December 2006, when those duties were no longer available. She did not
work since that time. From July 2007 until the car accident, Dr Todorovic, the worker’s
general practitioner, certified her fit for suitable duties for 30 hours per week.
After the car accident, the worker had periods of total incapacity but Dr Guirgis, the treating
orthopaedic surgeon, certified her to be fit for suitable duties for 12 hours per week from
February 2010, which he increased to 16 hours per week by about October 2012. He
considered that she was permanently unfit for her pre-injury duties and was unfit for work
that applied stresses to her neck and back. He apportioned the worker’s incapacity equally
between the car accident and the 2004 injury.
The worker claimed damages for the injuries received in the car accident, which claim she
settled on 30 June 2011. That settlement, the terms of which were not in evidence,
extinguished her rights to receive workers compensation benefits for all injuries received in
that accident (s 151Z(1)(b) of the 1987 Act). The appellant’s insurer paid voluntary weekly
compensation at the appropriate statutory rate until it issued a notice on 19 March 2012
reducing that rate to $101.29 per week, effective from 25 April 2012. It arrived at that rate by
deducting its assessment of the worker’s ability to earn ($621.29) from its assessment of
14
probable earnings but for the injury ($722.58). The insurer gave no other reason for reducing
the worker’s payments.
In a report of 15 January 2013, Dr Todorovic stated that the worker was fit for suitable duties
for only 20 hours per week, notwithstanding that, prior to the car accident, he had certified
her fit for suitable duties for 30 hours per week. He said that he had previously certified her
fit for 30 hours per week because of a request by her rehabilitation provider, to increase her
chances of finding a job, though his opinion was that she was realistically fit for only 20
hours per week.
The issue before the Arbitrator was the worker’s entitlement to weekly compensation as a
result of the 2004 back injury. The Arbitrator applied the five steps in Mitchell v Central West
Health Service (1997) 14 NSWCCR 526 (Mitchell) and made the following findings:
(a) the worker’s probable earnings but for the injury to be $770.39 per week from
25 April 2012 to 24 April 2013 and $789.03 from 25 April 2013 to date (these figures
were not challenged on appeal);
(b) working 20 hours per week in suitable employment, the worker’s ability to earn from
25 April 2012 to date was $300 per week;
(c) deducting $300 from $770.39 and from $789.03 gave a difference of $470.39 and
$489.03 respectively;
(d) having taken into account the effects of the car accident in step two, there was no
evidence to justify exercise of the discretion in s 40 to reduce the figures at step
three, and
(e) the worker was entitled to an award as per the figures at step three.
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a) accepting the evidence from Dr Todorovic that prior to the car accident the worker
could only work 20 hours per week, when that evidence was in contradiction of
evidence previously provided by that doctor;
(b) accepting the evidence from Dr Todorovic that prior to the car accident the worker
could only work 20 hours per week when such statement was a bare ipse dixit
without adequate reasons or explanation, particularly in circumstances where such
opinion was in direct contradiction of opinions previously expressed by him and he
gave the different opinion after the settlement of the claim for damages for the car
accident;
(c) finding that the car accident reduced the worker’s capacity to perform suitable
duties by only four hours per week;
(d) failing to take into account or address the evidence supporting the proposition that
the worker’s incapacity had been significantly increased by the effects of the car
accident;
(e) failing to take into account the additional difficulties in obtaining suitable work
arising from the car accident due to a greater number of body parts being subjected
15
to restrictions by reason of having been injured in the car accident and where the
likelihood of the worker obtaining suitable duties was further reduced;
(f) declining to exercise the s 40 discretion to reduce the amount of the s 40 award so
as to take account of the effect of the car accident on the worker’s ability to seek,
obtain and maintain suitable employment;
(g) failing to apply the three per cent notional consumer price index increases applied
to the worker’s probable earnings but for injury to her ability to earn in suitable
employment, and
(h) failing to give any or any adequate reasons in relation to the above.
The Deputy President dealt with the above grounds under the following headings: Dr
Todorovic’s evidence, the effects of the car accident, the s 40 discretion, and
assessment of probable earnings.
Held: The appeal was unsuccessful and the Arbitrator’s determination was confirmed.
Dr Todorovic’s Evidence (grounds (a) and (b))
1.
The criticism of Dr Todorovic’s evidence on appeal could not be sustained. It was a
clear attack on the doctor’s credit in circumstances where the doctor had had no
opportunity to defend himself. If impropriety were suggested in what Dr Todorovic said,
that should have been put to the doctor in cross-examination (Hancock v East Coast
Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43 (Hancock)) [32].
2.
Dr Todorovic’s assertion that he certified the worker fit for suitable duties for 30 hours
per week at the request of her rehabilitation provider, Active Occupational Health
Services (Active), to increase her chance of finding work, was not challenged in any
evidence from the appellant, or in any submission from their counsel. The appellant
called no evidence from Active to rebut the suggestion that the increase to 30 hours per
week was made, at their request, to increase the worker’s chance of finding work, and
no criticism was made of Dr Todorovic’s report at the arbitration [34].
3.
The Arbitrator accepted Dr Todorovic’s evidence in his report of 15 January 2014 for
three reasons:
(a) it accorded with Ms Susak’s own view in her statement;
(b) she accepted his explanation for why he changed Ms Susak’s certifications in
July 2007, and
(c) Dr Todorovic’s earlier certifications should be considered and weighed in light of
his subsequent explanation and clear statement of his opinion on the extent of
Ms Susak’s capacity as at July 2007 [36].
4.
The submission that Dr Todorovic’s subsequent statement should only have been
accepted with “extreme caution and scepticism and attended by for [sic] more detailed
reasons” was without foundation. An Arbitrator’s obligation to give reasons depends on
the circumstances of the individual case (Mifsud v Campbell (1991) 21 NSWLR 725 and
must be considered in the light of the issues raised for consideration by the parties
(Brambles Industries Ltd v Bell [2010] NSWCA 162 (Bell)) [37].
16
5.
The Arbitrator exposed her reasoning on the critical issues in dispute and articulated the
essential ground on which she based her decision (Soulemezis v Dudley (Holdings) Pty
Ltd (1987) 10 NSWLR 247). Those reasons were adequate in the circumstances and
there was no need for more detailed reasons. It was open to the Arbitrator to accept the
opinion of Dr Todorovic in his report of 15 January 2013 and that acceptance involved
no error [39].
6.
The submission that the Arbitrator erred in accepting Dr Todorovic’s opinion, because it
was a bare ipse dixit, was rejected for the same reasons. This point was not argued
before the Arbitrator. Had it been raised at the arbitration, the point could have been met
by calling additional evidence from Dr Todorovic. No reason was advanced as to why
leave should be given for it to be raised for the first time on appeal. In the
circumstances, it was not open to argue that an Arbitrator erred in not dealing with a
point never argued (Bell) [40].
7.
What is required as an explanation for the basis of the expert’s opinion will depend on
the circumstances in each case (Adler v Australian Securities and Investments
Commission [2003] NSWCA 131). However, an expert does not have to “offer chapter
and verse in support of every opinion” (Sydneywide Distributors Pty Ltd v Red Bull
Australia Pty Ltd [2002] FCAFC 157). Additionally, “[a]n expert frequently draws on an
entire body of experience which is not articulated and, is indeed so fundamental to his or
her professionalism, that it is not able to be articulated” (Australian Security and
Investments Commission v Rich [2005] NSWCA 152) [45]–[46].
8.
Consistent with the principles discussed in Hancock, Dr Todorovic’s opinion in his
January 2013 report had to be read with his earlier reports. In his report of 25 July 2010,
Dr Todorovic took a full history of the relevant events and complaints, set out his
findings on examination and made appropriate references to radiological tests. He said
that, prior to the car accident, the worker had been fit for light duties for 30 hours per
week and that, after that accident, she was fit for light duties for 12 hours per week [47].
9.
In his January 2013 report, Dr Todorovic explained that he had increased the worker’s
working hours (on light duties) “on the request of her rehabilitation provider”, to increase
her chances of finding a job, and that “realistically” his opinion was that she was only fit
for light duties for 20 hours per week. Exactly what more Dr Todorovic was meant to
explain was unclear. His reports, when read together, provided a fair climate for the
acceptance of his opinion (Paric v John Holland (Constructions) Pty Ltd [1985] [1985]
HCA 58; 59 ALJR 844). That is particularly so in circumstances where his ultimate
opinion accorded with the worker’s evidence, which evidence the Arbitrator accepted
[48].
The Effects of the Car Accident (grounds (c), (d), (e) and (h))
10. The Arbitrator said that she “considered all the medical and other evidence before” her,
as well as the parties’ submissions. She felt that, given the continuing effects of the
2004 injury, the pain the worker continued to suffer from that injury, as well as her
physical restrictions, limited work background and limited English skills, the labour
market accessible to the worker was very limited. These findings were consistent with
an acceptance of the worker’s evidence and disclosed no error [77].
11. Dealing with the assertion in the insurer’s s 54 notice that the worker had an ability to
earn “more than” $621.29 per week, the Arbitrator accepted that the insurer had not set
out clearly the evidentiary foundation for that conclusion. She correctly observed that the
17
notice referred to various rehabilitation reports and vocational assessment reports, but
said that they were “quite old”, pre-dating the car accident and the current claim by
several years. She therefore found them of “very limited assistance”. Those findings
were open on the evidence and disclosed no error [79].
12. The Arbitrator expressly dealt with the ARC Work Assessment, which the s 54 notice
suggested provided the basis for the assertion that the worker had an ability to earn
$621.29 per week. She correctly noted that that report was not a proper s 40
assessment report which assessed the worker’s capacity to work. Rather, the report
merely provided information on market rates applicable to the positions of general clerk,
call-centre operator, hand packer, assembler and sales assistant. The Arbitrator
correctly recorded that the worker had not been seen or assessed for the purposes of
the report and its limitations had been conceded in submissions before her [80].
13. It is not open to infer that Dr Guirgis did not consider the certification of 30 hours per
week by Dr Todorovic to have been unreasonable. Dr Guirgis did not see the worker
before the car accident and he expressed no opinion as to her capacity to earn at that
time. He merely noted she had been certified fit for 30 hours per week. The complaint
that the worker considered she was only fit for 20 hours per week in her statement of
15 November 2012 but raised no such qualification in her undated statement, was not a
point made at the arbitration. To that extent, it was an attack on her credit (or reliability),
it was improper to attempt to raise such a matter for the first time on appeal [84]–[85].
14. The submission that the Arbitrator failed to refer to the large body of evidence indicating
that the worker’s incapacity had been greatly increased by the effects of the car accident
was incorrect. The Arbitrator referred to the relevant medical and lay evidence and
accepted the evidence from Dr Todorovic and, implicitly, but clearly, accepted the
worker’s evidence. The worker’s evidence included her statement that her neck, right
shoulder and right knee had improved greatly since the settlement of the damages
claim. The Arbitrator’s conclusion was open and disclosed no error [86].
15. The appellant’s submission about the worker’s evidence in her damages claim, in
support of her claim for domestic assistance, was not a submission made at the
arbitration. It was not an error for an Arbitrator not to refer to arguments never put (Bell).
In any event, the Arbitrator is well aware of the injuries the worker received in the car
accident that did not require her to reject Dr Todorovic’s evidence [87].
16. The submission that the Arbitrator failed to take account of relevant evidence and failed
to give any or any adequate reasons could not be sustained. The Deputy President
noted that an Arbitrator’s obligation to give reasons depends on the circumstances of
the individual case and the issues run at first instance. The Arbitrator dealt with the
issues argued and, for reasons given, determined those issues against the appellant.
Her reasons fully explained her conclusion and satisfied her obligation to give reasons
[91].
17. Contrary to the appellant’s submission, the Arbitrator did not ignore the effects of the car
accident. She noted counsel’s submissions about it, the medical evidence that dealt with
it, and the worker’s evidence. Accepting the evidence from Dr Todorovic and the worker,
which it was open to the Arbitrator to do, she concluded that, as a result of the 2004
injury, the worker had a capacity to earn $300 per week. That finding was open on the
evidence and disclosed no error [92].
18
18. The submission that the Arbitrator failed to take a “more considered approach” to the
effects of the car accident was without substance. An Arbitrator’s approach must always
be considered in light of the circumstances of the case and the submissions made. The
Arbitrator considered the evidence and the parties’ submissions and did not accept the
submissions made on behalf of the appellant, which were quite different to the
submissions made on appeal [93].
19. The submission that, after the car accident, the worker was assessed to have a 14 per
cent whole person impairment ignored the 5/7th deduction that applied to that
assessment because of the continuing effects of the 2004 injury. It also ignored the fact
that an assessment of whole person impairment does not equate to a finding of
economic incapacity under s 40 (Muir v Ric Developments Pty Ltd t/as Lane Cove
Poolmart [2008] NSWCA 155) [94].
20. The submission that the Arbitrator failed to properly consider the impact of the car
accident on the worker’s earning capacity was just another way of expressing the same
complaints previously raised. For the reasons explained earlier in the decision, the
Deputy President did not accept that submission [95].
The Section 40 Discretion (ground (f))
21. The appellant argued that the Arbitrator erred in declining to exercise the s 40 discretion
to reduce the mathematical difference in order to ensure that the amount awarded “is to
bear such relation to the amount of that reduction as may appear proper in the
circumstances of the case”. He said it was well established that a relevant matter to be
considered in the context of the s 40 discretion is the occurrence of a supervening injury
(Australian Wire Industries Pty Ltd v Nicholson (1985) 1 NSWCCR 50 (Nicholson);
Cordina Chicken Farms Pty Ltd v Thoa Hong Le [2008] NSWWCCPD 125 (Cordina
Chickens)) [99].
22. The first point noted by the Deputy President was that the Arbitrator was understandably
uncertain if counsel for the employer had submitted that the effects of the car accident
should be taken into account at step two or step four. That left it open to the Arbitrator to
consider the effect of the car accident at either step two or step four, but not both. It was
clear from the Arbitrator’s reasons that she took the effects of the car accident into
account at step two, when she assessed the worker’s ability to earn in suitable
employment to be $300 per week. This followed from her statement that she considered
the fact of the motor vehicle accident in January 2009, and its consequential effects on
the worker’s capacity for work, in making her determination at step two of the Mitchell
process. Therefore, she did not consider it necessary to consider it at step four. That
approach disclosed no error [106]–[107].
23. The appellant’s complaint may have had substance if the Arbitrator had assessed the
worker’s ability to earn at step two by reference to both the 2004 injury and the car
accident. She did not do that. She accepted Dr Todorovic’s evidence that, as a result of
the 2004 injury, the worker could only work in suitable employment for 20 hours per
week. The Arbitrator said that the type of work the worker could realistically have done
for 20 hours per week, within the restrictions listed by Dr Todorovic, would have
“attracted on average $300 per week”. This assessment was based on the effect of the
2004 back injury only and was consistent with the approach endorsed in Ward v
Corrimal-Balgownie Collieries Ltd [1938] HCA 70; (1938) 61 CLR 120 where the High
Court held that compensation is only payable for the incapacity that has resulted from
the relevant work injury [107].
19
24. Had the Arbitrator calculated the worker’s ability to earn at step two by reference to the
effect of both accidents (which was an available approach), then, given her other
findings, she would have found an ability to earn of $240 per week (16 hours by $15 per
hour). Deducting this amount from the probable earnings of $770.39 would have given a
difference of $530.39. As this difference resulted from the effect of both the
compensable 2004 injury and the non-compensable car accident, it would have been
necessary to use the discretion to adjust that figure down by $60 to arrive at a figure that
properly represented the loss caused by the 2004 injury. However, as the Arbitrator had
already allowed for the effects of the car accident in her calculations at step two, by
calculating the worker’s ability earn solely by reference to the effects of the 2004 injury,
to allow for it at step four would be to take it into account twice. That was not permissible
[108].
25. It was accepted that a subsequent non-compensable injury is relevant to the exercise of
the discretion (Nicholson), but not if the effect of that injury has, as it clearly has in this
case, already been considered in calculating the worker’s ability to earn at step two
[111].
26. Cordina Chickens did not assist the appellant and, in any event, was not relied on
before the Arbitrator. That case considered the circumstances in which a worker may
obtain two awards of compensation: one for partial incapacity and one for total
incapacity. It held that while a finding of total incapacity, subsequent to a finding of
partial incapacity, will not eliminate the liability for the initial partial incapacity, the
calculation of compensation payable under s 40 for the initial partial incapacity calls for
the application of the discretion in s 40(1). As the claim did not concern any period of
total incapacity, it therefore followed that, in addition to the reasons noted above, the
principles discussed in Cordina Chickens had no application [112].
27. The submission that there was no evidence before the Commission that, since the car
accident, the worker made any attempt to obtain suitable employment was not a
submission made at the arbitration and, as it could have been met by additional
evidence, was not a submission that could be made on appeal. In any event, failure to
look for work is not relevant to the exercise of the discretion (Mitchell) [113].
28. Having regard to the Arbitrator’s approach to step two, it was not necessary for her to
have regard to the claim for domestic assistance in the exercise of her discretion. The
appellant’s submission was simply another attack on the Arbitrator’s finding at step two.
[114].
29. The submission that it may be inferred that it would be more difficult for the worker to
obtain suitable employment because she was only certified fit to work for 16 hours per
week (compared to 20 hours per week) was not a submission made at the arbitration
and was unsupported by any evidence. In any event, given the Arbitrator’s approach at
step two, it was not a matter that could be taken into account in the exercise of the
discretion. That was because, at step two, the Arbitrator only assessed the worker’s
ability to earn by reference to the effect of the 2004 injury [115].
30. The submission that the worker had no incapacity additional to that which would have
resulted from the car accident in any event was untenable and ignored the evidence
from Dr Todorovic and the worker, which the Arbitrator accepted, as to the worker’s
ability to earn as a result of the work injury [116].
20
31. The Deputy President did not accept the submission that the “proper amount” to be
awarded under s 40, after the exercise of the discretion, should not exceed $200. The
appellant’s real complaint was that, by accepting the evidence from Dr Todorovic, the
Arbitrator erred in her calculation of the worker’s ability to earn at step two. That
argument was rejected. It was not open to reintroduce that argument at step four [118].
Assessment of Probable Earnings (ground (g))
32. No submissions were made before the Arbitrator on the application of the three per cent
notional consumer price index increases to be added to the worker’s ability to earn and
even if applied, the change in the award would be minimal. In those circumstances,
given the de minimus impact on the award, this ground of appeal was not to be made
out. As the point was raised “primarily for the purpose of any reconsideration of the
Arbitrator’s award”, and, as the award is not being reconsidered, as no relevant error
was established, it was not appropriate to recalculate the step two figure in the manner
suggested.
33. Counsel for the appellant essentially conducted the appeal as a re-hearing, with no
proper regard to the Arbitrator’s reasons or the way counsel conducted the arbitration. In
an appeal restricted to the identification and correction of error, that approach was not
permissible. The Commission has repeatedly held that parties are bound by the conduct
of their counsel at the arbitration [121].
21
Hunter New England Local Health District v James [2014] NSWWCCPD 38
Review under s 55 of the 1987 Act; alleged failure to give reasons; weight of evidence; s 40
of the 1987 Act (as it stood prior to the introduction of the amendments in the Workers
Compensation Legislation Amendment Act 2012); exercise of discretion in s 40(1) of the
1987 Act
Roche DP
24 June 2014
Facts:
The respondent worker worked for the appellant employer as a laundry assistant. On
9 September 1993, he was crushed between two large industrial dryers and injured his
head, neck, torso, low back and legs, and was later diagnosed with a consequential
psychological condition. He was hospitalised for one week and off work for about three
months.
The worker returned to work on suitable duties, which he continued until 31 October 1997
when those duties were no longer available and the appellant terminated his employment. In
order to obtain alternative employment, at his own expense, the worker completed a number
of courses in electronics, security work and first aid.
On 19 March 1998, the worker settled a claim for lump sum compensation for permanent
impairment as a result of his injuries. Terms of Settlement filed in the former Compensation
Court of NSW (the Compensation Court) provided for the following awards:
(a) $5,168 in respect of 10 per cent permanent impairment of his neck;
(b) $7,752 in respect of 10 per cent permanent impairment of the back;
(c) $9,690 in respect of 10 per cent loss of use of his right leg at or above the knee;
(d) $2,422.50 in respect of 2.5 per cent loss of use of his left leg at or above the knee,
and
(e) $12,930 for pain and suffering.
In October 2000, the worker obtained work as a security guard with Pembo Security. In the
same year, he commenced proceedings in the Compensation Court claiming weekly
compensation of $470.50 from 9 December 1999 to date and continuing. In 2002, Pembo
Security ceased operations and the worker worked at the same premises doing the same
duties with JCB Security.
After a hearing on 30 January 2002, Hughes CCJ determined that claim in favour of the
worker, making an award of $100 per week from 9 December 1999 and continuing. The
award was based on the difference between the worker’s actual earnings as a security guard
and probable earnings had he not been injured, which appeared to have been about $127
per week. However, rather than awarding that amount, the judge said that $100 “seem[ed] to
be reasonable in that for quite a period the worker was capable of working as a security
guard”.
22
Though the work with JCB Security was lighter than the worker’s pre-injury employment, due
to prolonged standing and exposure to the elements at night, he found it difficult and he
resigned in August 2005. The worker gave evidence that he resigned because of his injuries.
Other evidence suggested that the worker resigned because of a proposal that he change to
day shifts and because he had decided to become a full-time homemaker.
On 5 June 2009, the worker obtained work at the Wests Diggers Club, Tamworth, as a parttime receptionist, working between 20 and 25 hours per week. He continued this work until
he resigned on 23 July 2011 because new management was not as accommodating of his
continuing disabilities. While working at the Club, he earned $443.65 per week between 5
June 2009 and 30 June 2010, and $335.60 per week between 1 July 2010 and 23 July
2011. Between 8 August 2011 and 18 December 2011, the worker worked as a bus driver
with Tamworth BusLines, where he earned $610.90 per week. He has not worked since that
time, but has remained in receipt of the award made by Hughes CCJ.
In September 2012, the worker filed an Application in the Commission seeking a review,
under s 55 of the 1987 Act, of the award made by Hughes CCJ because of a change in
circumstances since that award. He initially sought an increase in the weekly compensation
payable from 31 January 2002 to date and continuing, but only pressed his claim from
8 August 2005.
The Arbitrator found that there had been a relevant change in circumstances, which would
warrant a review of the award of Hughes CCJ, from 1 April 2008 when the worker was again
seeking full-time employment. This finding was not challenged on appeal. After reviewing the
relevant medical evidence, the Arbitrator found that, at all material times, the worker
remained partially incapacitated for work and that, by reason of his physical disabilities, he
would be “significantly disadvantaged” in securing suitable employment and that his labour
“would be less saleable by reason of his physical disability, even if he were fit physically to
perform them in accordance with his restrictions, as against persons without such
restrictions”.
For the period of the claim, the Arbitrator assessed the worker’s probable earnings but for
the injury, step one in the five step process dictated by Mitchell v Central West Health
Service (1997) 14 NSWCCR 526 (Mitchell), to be between $667.80 and $786.90 per week,
and his ability to earn, step two in Mitchell, to be $500 per week. The figure of $500 per
week was calculated on the basis that the worker could work, in some suitable employment,
25 hours per week earning $20 per hour. Where this amount exceeded the worker’s actual
earnings, the Arbitrator accepted, consistent with Aitkin v Goodyear Tyre & Rubber Co
(Aust) Ltd [1945] NSWStRp 29; (1945) 46 SR (NSW) 20 (Aitkin), the actual earnings as the
proper figure for the worker’s ability to earn. In respect of the periods when the worker was
not working, the Arbitrator, in the exercise of his discretion, reduced the difference between
step one and step two of Mitchell “in accordance with Judge Hughes[’] decision”. The
Commission issued a Certificate of Determination on 26 February 2014 in the following
terms:
“The Commission determines:
1. That the name of the respondent is amended by consent to Hunter New England
Local Health District.
2. The Application to Resolve a Dispute is amended by consent in Part 5.2 by deleting
‘27/7/01’ and substituting ‘31/1/02’.
3. Award in favour of the applicant pursuant to section 40 of the Workers
Compensation Act 1987 (as in force prior to the weekly payments amendments
23
4.
5.
6.
7.
8.
9.
made by the Workers Compensation Legislation Amendment Act 2012), pursuant to
a review under the former section 55 of the Workers Compensation Act 1987, as
follows:
(a) at the rate of $135 per week from 1 April 2008 to 30 June 2008;
(b) at the rate of $160 per week from 1 July 2008 to 4 June 2009;
(c) at the rate of $250.15 per week from 5 June 2009 to 30 June 2009;
(d) at the rate of $286.25 per week from 1 July 2009 to 30 June 2010;
(e) at the rate of $413.40 per week from 1 July 2010 to 30 June 2011;
(f) at the rate of $432.10 from 1 July 2011 to 23 July 2011;
(g) at the rate of $267.70 per week from 24 July 2011 to 7 August 2011;
(h) at the rate of $156.80 per week from 8 August 2011 to 18 December 2011;
(i) at the rate of $215 per week from 19 December 2011 to 30 June 2012;
(j) at the rate of $235 per week from 19 December 2012 to date and continuing
or on the expiration of a period of 3 months after the insurer first conducts a
work capacity decision whichever first occurs.
Credit is to be given to the respondent for payments made during the period of the
award.
Order that the respondent pay the applicant’s section 60 expenses in relation to
psychological treatment.
The decision of His Honour Judge Hughes of 30 January 2002 in matter No 32605
of 2000 is otherwise confirmed.
Order that the respondent pay the applicant’s costs as agreed or assessed.
Having regard to the significant and unusual issues of law, fact, medicine and
earnings history raised, I certify the matter is complex and order the costs payable,
in respect of both parties, are to be subject to an uplift of 30 per cent.
Liberty to apply.”
The appellant challenged the Arbitrator’s findings on incapacity and the calculation of the
award of weekly compensation. The issues in dispute in the appeal were whether the
Arbitrator erred in:
(a) failing to give adequate reasons in determining that the worker’s ability to earn,
when not employed, was only $500 per week, which finding was contrary to the
weight of the evidence (reasons and weight of evidence);
(b) failing to determine the worker’s ability to earn in the period from 24 July 2011 to
7 August 2011 (when he was not working) by reference to his ability as a bus driver,
a job in which he earned $610.90 per week from 8 August 2011 to 18 December
2011, rather than by reference to $500 per week (the period from 24 July 2011 to
7 August 2011), and
(c) not clearly explaining the manner in which he applied the discretion in s 40 at step
four of his calculations (the discretion).
Held: The appeal was unsuccessful and the Arbitrator’s decision was confirmed.
Reasons and Weight of Evidence
1.
It was difficult to see the relevance of the appellant’s submission that the worker
demonstrated a capacity for employment as a security guard. First, that work was
several years prior to 1 April 2008, the date on which the Arbitrator varied the award.
Second, the worker gave evidence that the security work required him to spend ten
hours on his feet, without scheduled breaks or rest periods, and that caused his knees
24
and back, which he injured in 1993, to “become painful and agitated”. Given
Dr Bornstein’s evidence of the difficulties with the worker’s right knee, it was difficult to
see how security work would be considered suitable employment for him. Third, being
aware of the worker’s history of work as a security guard, Dr Hopcroft, the worker’s
qualified orthopaedic specialist, said that he would “be wise to remain away from
security guard work” and continue in the more sedentary role of receptionist. Last, the
WorkCover medical certificates from Dr Manners, the treating General Practitioner, did
not assist the appellant. It was correct that Dr Manners said in his certificates of
7 August 2008 and 1 December 2008 that the worker was fit for suitable duties for
normal hours and normal days per week. However, though both Mr Harris and Mr Levick
made passing references to these certificates, neither made any detailed submissions
about them. Therefore, it was not surprising that the Arbitrator did not refer to them [52]–
[55].
2.
The restrictions in the certificates of 7 August 2008 and 1 December 2008 was that they
were much more extensive than merely limiting the weights that the worker could lift.
They involved extensive restrictions that would clearly affect the worker’s ability to
obtain and retain employment in the labour market accessible to him and, in particular,
his ability to work in any job that required prolonged standing, such as work as a
security guard. Thus, the Arbitrator’s failure to refer to these certificates was of no
consequence [57].
3.
The Arbitrator’s task was to assess the worker’s ability to earn in the open labour
market. As noted in Lawarra Nominees Pty Ltd v Wilson [1996] NSWSC 584; (1996) 25
NSWCCR 206, when speaking of the former Compensation Court, the court will
ordinarily not be concerned to determine an artificial or theoretical situation that a worker
could do, if work were available that allowed the worker to stand for a time, sit for a time,
cease when the pain becomes unacceptable, and generally work as he or she would
wish to work. Consistent with this statement, the Arbitrator undertook a practical
approach to the assessment of the worker’s ability to earn. That disclosed no error [72].
4.
The evidence in support of the Arbitrator’s conclusion, and to which he made express
reference, was:
(a) the evidence of the worker’s pursuit of qualifications and, following leaving the
Wests Diggers Club, his obtaining of another job as a bus driver within two
weeks;
(b) the evidence from Dr Bornstein that the worker had a torn meniscus in his right
knee and a five per cent loss of use of his right leg at or above the knee as a
result of the 1993 injury;
(c) the evidence from Dr Hopcroft;
(d) the evidence of the worker’s agreed impairments and losses, and
(e) the evidence of the worker’s work at the Wests Diggers Club [73].
5.
Each of the above matters was relevant to the issue in dispute and was a matter the
Arbitrator was entitled to consider in his assessment of the claim. They explained the
basis for the Arbitrator’s conclusions on the worker’s ability to earn and that was
sufficient to discharge his duty to give reasons [74].
25
6.
The Arbitrator’s conclusion as to the worker’s ability to earn was not contrary to the
weight of the evidence. When considering a challenge to the adequacy of reasons, the
decision must be read as a whole and “reasons need not be lengthy or elaborate”
(Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430). The Arbitrator
exposed his reasoning on the critical issue in dispute (the extent of the worker’s
incapacity) and articulated the essential grounds on which he based his decision
(Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 per McHugh JA at
280). His reasons were adequate in the circumstances [88].
The period from 24 July 2011 to 7 August 2011
7.
The work as a school bus driver was short term, ceasing when school term ended in
December 2011. There was no evidence as to why it was not renewed in 2012 [91].
8.
In sitautions where, post-injury, a worker has (briefly) earned more than his or her preinjury earnings, that does not prevent a finding of partial incapacity and does not mean
that the income in the short term post-injury employment is the proper measure of the
worker’s ability to earn under s 40(2)(b) [94].
9.
The same principle applied in the present matter with regard to the worker’s work as a
bus driver. One must always assess the prospects of a worker obtaining and retaining
the relevant suitable employment (Muir v Ric Developments Pty Ltd t/as Lane Cove
Poolmart [2007] NSWWCCPD 161 approved in Ric Developments Pty Ltd t/as Lane
Cove Poolmart v Muir (2008) 71 NSWLR 593). The worker’s prospects in that regard
were, due to his injuries, substantially reduced. It was therefore open to the Arbitrator to
assess his ability to earn at $500 per week.
10. The figure of $500 per week was consistent with the evidence from the worker and
Dr Hopcroft, which the Arbitrator accepted. It was slightly higher than the worker’s wage
with the Club but slightly lower than his wage as a bus driver. Although not expressed
this way, the Arbitrator adopted the kind of “weighted average” approach referred to in
Mangion v Visy Board Pty Ltd [1991] NSWCC 1; 8 NSWCCR 175 and approved in
Cowra Shire Council v Quinn [1996] NSWSC 143; 13 NSWCCR 175 [96].
11. The Arbitrator did not err in not finding that the worker’s ability to earn was the sum of
$610.90 he earned for the few months he worked for Tamworth BusLines [97].
The Discretion
12. The Arbitraror dealt with the discretion, in s 40(1), step four in the Mitchell analysis when
deciding:
“…in accordance with section 40(1) whether and to what extent the reduction so
calculated appears proper in the circumstance of the case and exercise that
discretion accordingly. There have been various circumstances in the matter which
create some reservation in my mind. In all the circumstances I propose to discount
the reduction in accordance with Judge Hughes[’] decision.” [104]
13. Hughes CCJ made an award under s 40 for $100 per week from 9 December 1999 to
date and continuing. The reduction in the exercise of the discretion appeared to have
been $27 per week. However, his Honour did not explain why he made that deduction.
The schedule of earnings filed in the Compensation Court showed the difference
between the worker’s probable earnings and his actual earnings between November
26
2000 and April 2001 to be $101.01 per week. Thus, even when working as a security
guard, the worker’s loss was $101.01 per week. His loss between December 1999 and
October 2000 was between $470.50 and $483.30 per week. The explanation may be
that the parties agreed on different wage figures at the hearing. Nevertheless, there was
no explanation in the judgment for the exercise of the discretion [105].
14. As there was no explanation in the judgment for the exercise of the discretion, it follows
that exactly what the Arbitraror meant when he said that he proposed to discount the
reduction in accordance with the decision of Hughes CCJ was unclear. In those
circumstances, one would have thought that, if the Arbitraror erred in the exercise of the
discretion, the error was (arguably) against the worker’s interests. However, the worker
did not challenge the award [106].
15. The discretion in s 40(1) is a broad one (Mitchell) and appellate intervention will only be
warranted only upon the principles stated in House v The King [1936] HCA 40; 55 CLR
499. No submission on appeal came close to establishing the kind of error envisaged in
that decision. The main complaint appeared to be that the Arbitrator did not reduce the
step three figures by a sufficient amount. Other than the submission about the work as a
security guard, which the Deputy President rejected, it is unclear why that was so [110].
16. If the Arbitrator erred on this issue, he erred in saying that he proposed to “discount the
reduction in accordance with Judge Hughes[’] decision” in circumstances where it was
unclear how his Honour exercised the discretion. It was arguable that the discretion did
not apply and there should have been no reduction at step four. However, as the worker
did not challenge the award the Arbitrator’s decision stands [112].
27
Grzenda v Menzies Property Services Pty Ltd [2014] NSWWCCPD 35
Section 17 of the 1987 Act; employment to the nature of which the injury was due; findings
made in absence of argument having been advanced; procedural fairness
O’Grady DP
13 June 2014
Facts:
The appellant worker was employed by the respondent between 1993 and 15 February
2001. The worker had not worked since. A summary of the worker’s employment history
between 1965 and February 2001 established that the worker had, during that period, been
employed in numerous jobs, all of which were described by her as being noisy working
environments. Her work with the respondent was that of a cleaner. The worker worked at the
Thurgoona Public School, near Albury New South Wales. During school term she worked a
broken shift being 5.00 am to 8.00 am and thereafter between 3.00 pm and 6.00 pm, five
days a week. The worker’s statement dated 4 September 2013 identified the equipment
used in the course of that work and included a backpack vacuum cleaner, an electric
polisher and an industrial blower. The statement included detail of the duration of individual
tasks and a description of the noise level of each machine.
During school holidays, the worker’s work hours were altered to a single shift between 6.00
am and 12.00 midday, 5 days per week to conduct a major clean up of the school premises.
The worker was required to operate the vacuum cleaner throughout one shift and for a few
hours the following day. During holidays, the worker was occupied cleaning outdoors using
the industrial blower for the entirety of her shift. The polisher was operated by the worker for
two full straight days during the holiday cleaning operation. The worker described having a
“buzzing noise” in her ears for “a couple of hours after” using the machines which she
identified in that statement. It was also stated that whilst operating any of the equipment
identified she could not hear any person who attempted to speak to her. She would need to
turn off the machine to enable her to hear what was being said. The worker stated that she
always wore “earmuffs” when using the blower.
In May 2012, the worker forwarded a notice of claim against the respondent and its insurer in
respect of lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987
(the 1987 Act). The worker alleged she had suffered 16.5 per cent binaural loss of hearing
as a result of exposure to relevant industrial noise and that the respondent was the last
employer who had employed her in employment to the nature of which the injury was due
within the meaning of s 17 of the 1987 Act. The alleged deemed date of injury was
15 February 2001. The notice had also included a claim in respect of the cost of hearing
aids.
The respondent’s insurer, on 20 December 2012, gave written notice to the worker’s
solicitors that the claim had been declined. That correspondence constituted notice, as
required by the provisions of s 74 of the 1998 Act, as to the matters in dispute and the
reasons for denial of liability.
The denial of liability was founded upon two matters; firstly it was disputed that the worker’s
employment with the respondent was employment to the nature of which the alleged injury
was due and, secondly, that the worker had no entitlement as she had not sustained an
injury, or in the alternative, “she had not met the six per cent binaural hearing loss or more
28
due to employment with [the respondent]”. The respondent’s reference to “due to
employment with [the respondent]” in the notice demonstrated a fundamental
misunderstanding of those provisions which govern claims concerning loss of hearing such
as the present, being one in respect of a loss “which is of such a nature as to be caused by a
gradual process”: s 17(1) of the 1987 Act.
The issues in dispute on appeal were that the Arbitrator erred in:
(a) the manner of determining whether the tendencies, incidents or characteristics of
Mrs Grzenda’s employment were of a type which could give rise to injury being
industrial deafness;
(b) disregarding the evidence of Dr Bal Krishan;
(c) failing to deal with the evidence found in the Noise Survey dated November 2003,
and
(d) in determining that the appellant, when operating the leaf/fuel blower did so “at safe
acoustic levels because she always wore ear protection”.
Held: The findings made by the Arbitrator and the orders made as found in the
Certificate of Determination dated 6 March 2014 are revoked. The matter is remitted
for hearing afresh by another Arbitrator.
Disposition of the appeal
1.
On the present facts, adopting the analysis of Cole JA in Blayney Shire Council v Lobley
(1995) 12 NSWCCR 52 (Lobley), it was necessary that the Arbitrator determine whether
the employment in which the worker was engaged by the respondent, being her last
employment prior to notice of claim, was employment which “had the tendencies,
incidents or characteristics ... of a type which could give rise to the injury in fact
suffered”. The Arbitrator appeared to have considered those authorities relevant to the
proper application of s 17, and the evidentiary requirements of proof of “noisy”
employment. However, when addressing the respondent’s defence that it was not
relevantly “noisy”, the Arbitrator erred, as argued by the worker, in the manner of his
application of the relevant test [53]–[54].
2.
It is clear that the Arbitrator’s conclusion that the worker had failed “to prove hearing
loss while in the employment of the respondent” had led him to find in favour of the
respondent. Whether the worker had suffered hearing loss “while in the employment of
the respondent” had no relevance to the question before the Arbitrator. The error in so
approaching the questions raised by the terms of s 17 had been foreshadowed by the
Arbitrator’s statement of the issues for determination. The Deputy President noted in
passing that the Arbitrator’s statement contained another error in that, contrary to the
Arbitrator’s assertion, there was never any issue as to whether the worker was
employed by the respondent [55].
3.
Whilst the respondent acknowledged that the Arbitrator failed to explicitly state that his
findings led him to conclude that the respondent had not been shown to be relevantly
“noisy”, the Deputy President identified difficulties concerning the findings as to ear
protection. At the hearing, the Arbitrator acknowledged that the Commission could not
speculate as to the effects, if any, of the use of ear protection. The Arbitrator noted that
the noise surveys demonstrated that the fuel blower operated by the worker emitted
noise in excess of 85 decibels, the acknowledged safe upper limit of noise exposure.
The Arbitrator in so concluding had not, in the Deputy President’s view, touched upon
29
the difficult questions addressed in Lobley which may arise in a matter concerning an
allegation of relevantly “noisy” employment and the use of ear protection [57]–[60].
4.
Given the respondent’s acceptance before the Arbitrator that the “effect” of ear
protection was unknown, the Deputy President found that the Arbitrator had erred in the
finding concerning the consequences of the worker’s use of ear protection. Such finding
was made in the absence of any such argument having been advanced on behalf of the
respondent. Leaving aside the question of onus of proof and those other matters raised
by Cole JA in Lobley, it was clear that the worker’s complaint as to the Arbitrator’s
“approach” was well founded. With respect to this finding, the worker had been denied
procedural fairness. Further error on the part of the Arbitrator had, in the Deputy
President’s view, been made out [62].
5.
The Arbitrator’s errors in asking the wrong question concerning the application of s 17
and failing to accord procedural fairness concerning the ear protection finding to the
worker had each relevantly affected his decision. In the circumstances, it was necessary
that the Arbitrator’s decision be revoked on this appeal. In such circumstances, other
matters raised in submissions were not addressed [63].
6.
The parties may consider whether the state of the expert evidence is such as to permit a
fair and just determination of the matters in dispute. The liability question, being whether
Mrs Grzenda’s employment with the respondent was relevantly “noisy” might, arguably,
give rise to the need to consider the relevance of the use by Mrs Grzenda of ear
protection. That issue, if it is to be ventilated, will necessitate examination of those
matters raised by Cole JA in Lobley. The questions raised by his Honour would
undoubtedly require close attention in argument [69].
7.
The Deputy President noted that should a finding be made in favour of Mrs Grzenda
with respect to the fundamental liability question, that is whether the employment was
relevantly noisy, a referral to an AMS as required by s 65(3) of the 1987 Act would then
be appropriate (cf Boggian v James Hardie & Co Pty Ltd, McGrath J, Workers
Compensation Commission, No 8847 of 1982, 20 April 1983, unreported, where his
Honour considered the legislative predecessor of the presently relevant provisions; see
also discussion per Neilson J in Smith v Norton Pty Ltd [1996] NSWCC 23; (1996) 13
NSWCCR 277). That being so, the question as to the “nature” of the loss, that is the
existence or otherwise of noise related hearing loss, would be conclusively determined
by the AMS: s 326(1)(c) of the 1998 Act. In such circumstances the difficulties which
have, in the past, attended the resolution of matters concerning the distinction, as
perceived, between liability disputes and medical disputes where causation is disputed
(see Greater Western Area Health Service v Austin per Campbell J [2014] NSWSC 604)
may not arise [70].
30
Cargill Meat Processors Pty Ltd v Tuson [2014] NSWWCCPD 37
Weight of evidence; assessment of expert evidence; application of principles in Paric v John
Holland (Constructions) Pty Ltd [1958] HCA 58; 62 ALR 85; alleged failure to give reasons;
whether need for spinal surgery resulted from accepted back injury; application of principles
in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796
Keating P
20 June 2014
Facts:
The appellant employed the respondent worker as a meat boner at its abattoir in New South
Wales.
The worker alleged that on 16 December 2010 he was pulling apart strip loins on the boning
stand when he felt a sudden twinge and a burning sensation in his lower back.
On 6 April 2011, the worker resigned from the appellant in an attempt to try and find work
that was less stressful for his back condition. The worker was successful in gaining
employment with two different employers. Between 6 June 2011 and 1 July 2011 the worker
was employed as a general cattle hand and from 13 September 2011 until 27 October 2011
as a farm hand.
It was not in dispute that the worker suffered from a disc protrusion at L5/S1 which extended
into his spinal canal which required immediate surgery. However, the insurer refused to meet
the costs of the proposed surgery.
On 22 June 2013 the worker underwent the proposed surgery, a L5/S1 Laminectomy
Discectomy, Decompression and Rhizolysis operation. Therefore, the issue for
determination by the Arbitrator involved an indemnity claim for reimbursement of the cost of
the surgery, not a claim for proposed treatment as initially pleaded.
A Commission Arbitrator found that the worker’s need for treatment resulted from the injury
on 16 December 2010 in the course of his employment with the appellant employer to which
injury his employment was a substantial contributing factor. The employer was ordered to
pay the worker’s s 60 expenses.
The issues in dispute on appeal were whether the Arbitrator erred in:
(a) finding a causal nexus between the injury of 16 December 2010 and the need for
surgery, and
(b) failing to give adequate reasons for his decision.
Held: The Arbitrator’s determination was confirmed.
Submissions and discussion
1.
The Arbitrator accepted that the worker had complained of back pain from time to time
prior to the injury on 16 December 2010. However, for the reasons explained by the
31
Arbitrator he concluded that there had been a misunderstanding as to the nature of the
history of prior back pain [115].
2.
After considering the medical evidence the Arbitrator correctly concluded that a history
of continuous back pain for three and a half years (as noted in the general practitioner’s
clinical notes) prior to 16 December 2010, was inconsistent with the records retained by
the worker’s medical centre. If the worker was suffering back symptoms between 2007
and 2010, the symptoms were not of sufficient intensity to cause him to seek any
medical advice or treatment. Therefore, viewed in the proper context, the worker’s back
symptoms prior to 16 December 2010 were of limited relevance to the issues in dispute
[116].
3.
The purpose of the worker’s visit to the neurosurgeon was to explore treatment options
for his condition which by then had become acute. In circumstances where it was
accepted the worker had an accepted back injury, it was understandable that both the
doctor and the worker would have been more focused on his condition than the minutiae
of his history, and for these reasons the neurosurgeon’s history did not advance the
issue before the Arbitrator [118].
4.
The physiotherapist’s history supported the worker’s claim that although he may have
had intermittent lower back pain, from time to time, he suffered from an episode of
intense lower left back pain, following the reported incident, which persisted. Whilst the
Arbitrator made no reference to the history recorded by the physiotherapist, it was of no
consequence because, if anything, it supported the Arbitrator’s conclusion [119].
5.
The medical records revealed that the only other recorded incident with respect to the
worker’s back occurred on 9 November 2010, when the worker was involved in a fight
on Melbourne Cup Day. It was apparent from the records that the worker was not
offered any treatment or follow-up investigations and was invited to return to seek
further treatment if his back did not improve. There was no evidence that he sought any
further treatment. It was inferred that he continued working as a boner after that
incident. When compared to the history of regular complaints and treatment following
the injury on 16 December 2010, it was apparent that this was a minor and transient
incident [120].
6.
The appellant submitted that the report of the orthopaedic surgeon, which was accepted
by the Arbitrator, did not satisfy the test for the acceptance of expert evidence discussed
in Paric v John Holland (Constructions) Pty Ltd [1958] HCA 58; 62 ALR 85 (Paric). It
was submitted that the inaccuracies in the reported history were not merely trifling, but
were substantive [125]. The appellant submitted that the Arbitrator erred in his
acceptance of the orthopaedic surgeon’s opinion as opposed to that of the appellant’s
qualified specialist, who it was submitted had a more accurate history and whose
opinion should have been preferred [126].
7.
The facts assumed by an expert do not have to correspond “with complete precision”
with the facts established. It is a question of fact whether they are “sufficiently like” the
facts established “to render the opinion of the expert of any value” (Paric). The
orthopaedic surgeon’s history satisfied this test and the Arbitrator was entitled to accept
it. The fact that the orthopaedic surgeon did not record a history of two isolated episodes
of short-lived back pain or whether the worker commenced on light duties within an hour
or at some later time proximate to the occurrence of the admitted injury did not diminish
the weight to be attached to his opinion. For these reasons the President rejected the
32
submission that the orthopaedic surgeon’s evidence was not sufficiently like the
established facts to make it reliable [131].
8.
The Arbitrator’s decision did not turn on an assessment of the weight to be attached to
the expert evidence. The Arbitrator’s decision turned on his acceptance of the worker’s
evidence of a history of continuing back symptoms following the injury on 16 December
2010. The history provided ample evidence to support the Arbitrator’s conclusion that
the worker suffered from continuing back symptoms following his accepted injury on 16
December 2010 [132].
9.
The Arbitrator also correctly concluded that notwithstanding an investigation into the
worker’s employment after leaving the appellant, there was no evidence of any further
injury or any continuing aggravation of his back injury from his post injury employment.
For this reason the Arbitrator was correct to reject the submission put to him at the
arbitration that there had been a break in the causal chain by reason of the worker’s
post injury employment [133].
10. The question in dispute was whether the need for the treatment (surgery) resulted from
the accepted injury in the sense discussed in Kooragang Cement Pty Ltd v Bates (1994)
35 NSWLR 452; 10 NSWCCR 796 (Koorangang) [135]. Although the Arbitrator did not
refer to Koorangang, in its terms, he approached the assessment of the evidence by
making a commonsense evaluation of the causal chain. His findings demonstrated that
he applied the correct principles and acted in accordance with binding authority [136].
11. The President rejected the submission that the Arbitrator erred in not preferring the
opinion of the appellant’s qualified specialist. There was ample evidence including the
worker’s unchallenged evidence and the objective evidence of a continuity of symptoms
to support the Arbitrator’s conclusion that there had been an unbroken causal chain
between the onset of symptoms on 16 December 2010 and the need for subsequent
surgery [139].
Reasons
12. The President accepted that the Arbitrator’s reasons did not recite all of the evidence
and the submissions before him, however, he was not required to do so to discharge his
statutory obligation (Mifsud v Campbell (1991) 21 NSWLR 725). His reasons addressed
the critical issue, namely whether the treatment in 2013 resulted from the accepted
injury in 2010 [151].
13. The Arbitrator’s reasons adequately explained the essential grounds on which his
decision rested (Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247). They
were sufficient to discharge his statutory obligation to provide reasons, consequently
this ground of appeal failed [153].
33
Sedrak v Rooty Hill RSL Club Ltd [2014] NSWWCCPD 40
Claim for weekly compensation in addition to payments being voluntarily made at the
maximum statutory rate; whether worker entitled to two separate payments of weekly
compensation for two injuries; Cordina Chicken Farms Pty Ltd v Thoa Hong Le [2008]
NSWWCCPD 125 discussed and applied
Roche DP
30 June 2014
Facts:
The appellant worker worked for the respondent employer as a kitchen hand from April 1999
until 2 September 2008. His duties were heavy and arduous and required him to regularly
lift, among other things, 20 litre containers of oil. In the course of his employment, he
suffered various incidents affecting his cervical spine (neck) and lumbar spine (back).
The worker’s case before the Arbitrator was that he suffered only two relevant injuries and
was entitled to two separate payments of weekly compensation. The first injury was an injury
to his neck, which, because of the disease provisions, was deemed to have happened on
29 April 2003 (the neck injury/cervical spine injury). The second was an injury to his back on
24 July 2007, which counsel described at the arbitration as a “frank injury” (the back
injury/lumbar spine injury).
The Club’s case was that the worker suffered an aggravation injury to both his neck and his
back caused by the nature and conditions of his employment up to September 2008 and that
he was being paid the maximum statutory rate of weekly compensation for the effect of
those injuries.
After the neck injury, the worker had various periods off work and ultimately returned to work
on light duties. He continued those duties until they were withdrawn on 2 September 2008. A
dispute arose as to the worker’s entitlement to compensation for his neck injury that resulted
in him bringing proceedings in the Commission in 2009. That application was resolved, by
consent, with an award in the worker’s favour on 8 September 2009 for the payment of
weekly compensation of $125 per week from 1 June 2004 to 23 July 2007 and from
5 August 2007 to 1 August 2008.
Meanwhile, from 2 September 2008, the Club’s insurer, Allianz Australia Workers
Compensation (NSW) Ltd (Allianz), had commenced paying the worker weekly
compensation at the maximum statutory rate for a worker with a dependant spouse and child
in respect of total incapacity. Whether these payments were for the back injury only, as the
worker contended, or the combined effect of the back injury and the neck injury, or some
other combination of injuries, as the Club contended, was the subject of submissions at the
arbitration.
On 2 November 2010, the worker claimed additional weekly compensation for his neck
injury. On 19 January 2011, Allianz issued a s 74 notice disputing the worker’s entitlement to
any additional weekly compensation on the ground that:
“you are currently receiving the maximum amount of weekly benefits compensation to
which you are entitled as you have no entitlement to receive separate payments of
weekly benefits compensation in respect to the injury sustained on 29 April 2003 and
34
in respect to the injury sustained on 24 July 2007 as each injury independently results
in you being totally unfit for work and each injury also contributes to a single
incapacity.”
Later in 2011, the worker claimed lump sum compensation for a whole person impairment
due to his neck injury. The parties settled this claim for 25 per cent whole person impairment
plus pain and suffering.
Also in 2011, but in separate proceedings, the worker claimed lump sum compensation in
respect of his 24 July 2007 back injury. After an assessment by an AMS, and a subsequent
appeal to a Medical Appeal Panel, the parties settled this claim for the amount assessed by
the Medical Appeal Panel. They filed consent orders with the Commission on 18 April 2012
providing for an award for the worker under s 66 in the sum of $14,437.50 in respect of a
10 per cent whole person impairment as a result of injury to the worker’s lumbar spine
“which notionally occurred on 24 July 2007”, plus $11,250 for pain and suffering.
In an Application filed with the Commission on 28 November 2012, the worker sought weekly
compensation from 2 September 2008 to 31 December 2012 due to the injury to his cervical
spine, arms and shoulders on 29 April 2003. Though it was not stated in the Application, it
was accepted that the claim was for weekly compensation in addition to the weekly
compensation being voluntarily paid by Allianz.
The Club’s Reply, filed on 15 January 2013, disputed liability on the ground stated in the
s 74 notice, namely, that the worker suffered a single incapacity and was being paid on the
basis that he was totally incapacitated. The Reply also disputed liability for the pleaded injury
to the worker’s cervical spine, both arms and shoulders, but admitted that he suffered a back
injury on 24 July 2007.
Given the history of the matter, the denial that the worker had injured his cervical spine,
shoulders and right arm on 29 July 2003 was surprising. Nevertheless, the denial of liability
for the cervical spine injury seems to have provided the basis for submissions at the
arbitration on the issue of injury and for the Arbitrator’s decision that injury was in issue.
(Had the Arbitrator not found that injury was in issue there would have been no basis for her
order that the Club pay the worker’s costs of the arbitration.)
At the arbitration on 12 February 2014, counsel for the Club submitted that the incapacity for
which Allianz was paying voluntary weekly compensation was the incapacity “both for the
cervical spine and the lumbar spine” and that the worker had no further entitlement to such
compensation. He said that the worker had to demonstrate that he suffered separate injuries
and separate and distinct incapacities.
The Club contended that there was only one cause of action, with two separate
consequences, one to the neck and one to the back. It said that both related to an
aggravation of degenerative changes by a disease process caused by the nature and
conditions of the worker’s duties (over the whole period of his employment with the Club)
and that the incapacity that related to the neck was “intermingled” with the incapacity that
related to the lumbar spine.
Counsel for the worker, Mr Harrington, submitted that the worker had suffered separate
injuries, namely, an injury to his neck on 29 April 2003 and an injury to his back on 24 July
2007 and that those injuries resulted in two separate incapacities that entitled the worker to
additional weekly compensation in addition to voluntary payments already made by Allianz.
35
The Arbitrator found that the worker suffered an injury to both his cervical spine and lumbar
spine. She said it was necessary to determine whether those injuries resulted in one
incapacity or two. After reviewing the evidence, the Arbitrator concluded that there was an
“intermingling” of the worker’s symptoms leading to a single incapacity for employment. He
therefore had no entitlement to two awards or payments of weekly compensation.
The Arbitrator’s formal findings were:
(a) the worker sustained injury to his cervical spine in the course of his employment
with the Club on 24 October 2001 and again on 29 April 2003 and as a result of the
nature and conditions of his employment with the Club up to September 2008;
(b) the worker sustained injury to his lumbar spine in the course of his employment with
the Club on 27 February 2004 and in March 2007 and 24 July 2007 and as a result
of the nature and conditions of his employment with the Club up to September
2008;
(c) the worker’s incapacity resulting from injury to his cervical spine was not separate
and distinct from the incapacity resulting from the injury to his lumbar spine, each of
which were (sustained) in the course of his employment with the Club, and
(d) the worker was in receipt of voluntary payments of compensation at the (maximum)
statutory rate for a worker with a dependant wife and one child.
The worker appealed.
The issues in dispute on appeal were whether the Arbitrator erred in:
(a) finding that the worker’s two injuries did not result in two separate and distinct
incapacities;
(b) her “assessment that the injury to the back and neck occurred as a result of the
nature and conditions of employment when this issue was not a matter in dispute
before the Arbitrator”, and
(c) in her assessment that there were not two distinct and separate incapacities flowing
from the injury to the cervical spine as a result of the injury in April 2003 and the
lumbar spine as a result of the injury in July 2007.
Held: The appeal was unsuccessful.
1.
Given the history of the matter, it was not open to the Club to dispute the injury to the
worker’s cervical spine on 29 April 2003. That being so, and given the Club accepted
liability for the back injury of 24 July 2007, it is difficult to see how it could be argued that
the cause of action related to an aggravation of degenerative changes by a disease
process caused by the nature and conditions of the worker’s employment between April
1999 and September 2008. That was especially so in circumstances where there was
no persuasive evidence to support that submission [35].
2.
It is for applicants to plead their claims in the Commission (NSW Police Force v Gurnhill
[2014] NSWWCCPD 12, applying Strasburger Enterprises Pty Ltd t/as Quix Food Stores
v Serna [2008] NSWCA 354). The worker did so by relying on the injury to the cervical
spine on 29 April 2003. However, though he also relied, in submissions, on the accepted
lumbar spine injury on 24 July 2007, the worker had not pleaded that injury in the
Application. Indeed, the Application made no attempt to properly explain the basis of the
claim [36].
36
3.
Moreover, it was far from clear, and certainly was not accepted by Allianz, that the
voluntary payments of weekly compensation were being made solely as a result of the
effects of the 24 July 2007 back injury. That being so, it was open to counsel for the
Club to argue, as it did, that the incapacity related to the neck injury (whenever it
occurred) was intermingled with the incapacity related to the back injury (whenever it
occurred) [37].
4.
It therefore followed that, even if it was accepted that the Arbitrator erred in determining
that the worker suffered his injuries as a result of the nature and conditions of his
employment, that error made no difference to the outcome. That was because the
Arbitrator found that the worker suffered two injuries: an injury to his cervical spine and
an injury to his lumbar spine [38].
5.
Whether those injuries were received only on 29 April 2003 and 24 July 2007, as
counsel for the worker had contended, or as a result of the nature and conditions of
employment up to September 2008, as the Club had argued, made no difference to the
ultimate issue the Arbitrator had to determine. The expressions “frank injury” and “nature
and conditions of employment” were merely “descriptions of mechanisms for suffering
an injury” (Wyong Shire Council v Paterson [2005] NSWCA 74; 5 DDCR 13) [39].
6.
The crucial point was that the Arbitrator accurately identified the ultimate issue for
determination to be:
“whether [the worker] ha[d] an incapacity for employment as a result of the injury to
his cervical spine and whether that incapacity entitles him to a concurrent payment
of compensation. In other words does he have two separate and distinct
incapacities entitling him to a payment of two awards of compensation?” [40]
7.
The Arbitrator’s analysis of the evidence comfortably established that the worker had a
single incapacity, namely, an incapacity to engage in full-time employment involving
bending, use of his arms at or above head height, or lifting over five kilograms. That
incapacity resulted from the combined effect of his neck injury and his back injury. That
was so regardless of when or how the worker received those injuries [47].
8.
As explained in Cordina Chicken Farms Pty Ltd v Thoa Hong Le [2008] NSWWCCPD
125, the determination of whether two injuries have resulted in separate and distinct
incapacities is not done in the abstract, but will be a question of fact depending on the
circumstances in each case. It should not be assumed, as appears to have happened in
the present case, that a worker who has received two injuries to different parts of the
body will automatically be entitled to two payments of weekly compensation [48].
9.
The evidence in the present case did not come close to establishing that the worker
suffered two separate and distinct incapacities and his case was bound to fail,
regardless of the Arbitrator’s finding that the injuries had been caused by the nature and
conditions of his employment up to September 2008. On the evidence tendered, it was
open to the Arbitrator to find that the worker suffered only one incapacity. That finding
disclosed no error [49].
37
Wilkie Fleming & Associates Pty Ltd v Highlands [2014] NSWWCCPD 39
Interlocutory orders; leave to appeal; defective s 74 notice; leave to dispute unnotified
matters refused; alternative finding if leave had been granted; alleged absence of jurisdiction
Roche DP
26 June 2014
Facts:
On 6 July 2005, the respondent worker injured his left knee in the course of his employment
for the appellant employer. At that time, Allianz Australia Workers Compensation (NSW) Ltd
(Allianz) insured the appellant.
On 23 September 2005, the worker underwent surgery to his knee, which revealed
significant degenerative changes in the medial side of the knee and a torn meniscus. On
1 April 2009, due to a deterioration in the worker’s condition, he underwent further surgery
on his left knee. On 27 May 2010, the worker stopped work for the appellant. On 16 March
2011, the worker underwent a unicompartmental left knee replacement.
On 27 June 2012, in a letter addressed to Allianz, the worker’s solicitors claimed lump sum
compensation on his behalf in the sum of $24,500 under s 66 of the 1987 Act in respect of
an 18 per cent whole person impairment as a result of the 2005 injury, plus $40,000
compensation for pain and suffering and unspecified medical and treatment expenses. The
letter alleged the worker suffered a torn medical meniscus to his left knee on 6 July 2005
“which progressively worsened requiring arthroscopies in 2005 and 2009 before undergoing
a unicompartmental left knee replacement in March 2011”. The letter also requested the
insurer to determine liability for the worker’s claim for medical expenses within 21 days, but
did not particularise expenses.
On 24 August 2012, Allianz issued a notice under s 74 of the 1998 Act in which it denied
liability. So far as was relevant to the appeal, the letter said that Allianz had “concluded that”:
(a) the worker continued to be employed by the appellant until at least May 2010;
(b) Allianz ceased insuring the appellant on 24 November 2009;
(c) the worker’s knee claim was finalised on 14 February 2007;
(d) Allianz had no information of the 2009 or the 2011 operations or that treatment was
a result of the 2005 injury, and
(e) as the worker had continued to be employed by the appellant beyond the
finalisation of the “06/07/2005 claim and proceeded to obtain treatment beyond
finalisation and risk without our knowledge we deem that you have not fully
particularised your claim and with the information available we dispute that we are
on risk for the current claim of [sic] the knee”.
This notice was clearly defective and did not comply with s 74, which requires that the notice
contain a concise and readily understandable statement of the reason the insurer disputes
liability and the issues relevant to the decision. Nevertheless, the rejection of the claim
triggered a dispute under s 289 of the 1998 Act to allow the matter to be referred to the
38
Commission and to give the Commission jurisdiction. On 24 December 2012 the worker filed
an Application to Resolve a Dispute in the Commission. He claimed hospital and medical
expenses of $5,000 for treatment, care or related expenses incurred or needed for an
arthroscopy on his left knee and for a left knee medial unicompartmental knee replacement,
and $26,950 (the correct amount should have been $24,500) in respect of an 18 per cent
whole person impairment due to the injury to his left knee, plus an unspecified amount for
pain and suffering.
On 25 February 2013, the appellant’s solicitors filed a Reply confirming that the matters in
dispute were the matters “as per the dispute notice(s) attached to the Application” (that is, as
per the s 74 notice of 24 August 2012 referred to above) and adding:
“The [appellant] disputes that [the worker’s] claimed whole person impairment is
attributable to injury on 6 July 2005.
The [appellant] has requested clinical notes from [the worker’s] treating doctors and if
such records are not produced prior to [the] teleconference, the [appellant] intends to
seek leave to issue Directions for Production.”
At the arbitration on 25 February 2014, counsel for the appellant sought leave under
s 289A(4) of the 1998 Act to argue two issues not previously identified as being in dispute.
They were:
(a) that the worker suffered a further injury with a deemed date of injury after its period
of risk (the further injury issue), and
(b) that the need for the 2011 surgery did not result from the 2005 injury (the nexus
issue).
The Arbitrator heard argument on the application for leave to dispute the additional matters
and full argument on the merits of the nexus issue. He refused leave to dispute either
matter. In respect of the further injury issue, the Arbitrator said that:
(a) the appellant had offered no explanation for having not raised the issue earlier;
(b) the argument that there was somehow a further injury “characterised by the disease
provisions of the Act simply because a procedure occurred after the date of the
insurer ceased being on risk, or indeed after the date of cessation of employment”
had “no merit”, and
(c) the appellant produced no evidence that any of the activities undertaken by the
worker in his work with the appellant, or in his subsequent employment, in any way
materially or substantially contributed to any aggravation, acceleration,
exacerbation of the disease.
The appellant has not challenged these findings.
In respect of the nexus issue, the Arbitrator said that:
(a) the difficulty the appellant faced was its “inexpert, incomplete and noncompliant”
s 74 notice, which did not adequately set out that the worker was to address the
issue of whether the (need for) the 2011 surgery resulted from the admitted injury in
2005;
39
(b) the worker was prejudiced (by the late raising of the issue) because he could have
sought more detailed evidence to address the point, and
(c) the insurer had had since June 2012 to fully investigate the claim, to obtain an
independent medical report, and put on evidence, but had not done so. Nor had it
sought evidence from the appellant as to the nature of the worker’s duties
subsequent to the initial injury.
If he was wrong in refusing to grant leave to the appellant to dispute the nexus issue, the
Arbitrator considered, in the alternative, the merits of that issue. After hearing detailed
submissions from counsel for the appellant, reviewing the evidence and relevant authorities,
including Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796, the
Arbitrator concluded that the condition that required the 2011 surgery resulted from a
deterioration in the worker’s left knee as a result of the injury on 6 July 2005. The
Commission issued a Certificate of Determination on 27 February 2014 in the following
terms:
“The determination of the Commission in this matter is as follows:
1. The claim for lump sum compensation for permanent impairment arising from injury
to the left lower extremity(knee) on 6 July 2005 is referred to the Registrar for
referral to an Approved Medical Specialist (AMS) to assess Whole Person
Impairment.
2.
The AMS is to be provided with documents attached to the Application and reply
and the applicant’s statement filed on 24 January 2014.
Finding:
The condition which required left knee replacement surgery results from the injury on
6 July 2005.”
The appellant did not challenged the Arbitrator’s orders in paragraphs one and two of the
Certificate of Determination, but sought to challenge the Arbitrator’s finding that the condition
that required the left knee replacement surgery resulted from the injury on 6 July 2005. The
appellant contended that, having refused leave for that issue to be disputed, the Arbitrator
had no jurisdiction to make that finding.
Held: Leave to appeal was refused.
Interlocutory
1.
Counsel for the appellant submitted that the Arbitrator’s “finding” was “effectively final
relief” because it dealt with the nature of the injury and it was not open to the Arbitrator
to make that finding. He said that the finding was a direction to the AMS to apply AMA5
in a particular way [24].
2.
The appellant’s submissions were inconsistent with established authority. The
Arbitrator’s orders were interlocutory. The test of whether a court’s order, determination
or ruling is interlocutory “depends on the nature of the order made; the test is: does the
judgment or order, as made, finally dispose of the rights of the parties?” (Licul v Corney
[1976] HCA 6; 180 CLR 213) [25].
40
3.
With respect to the claim for lump sum compensation, the Arbitrator made no order
finally disposing of the parties’ rights. He merely referred the claim for lump sum
compensation to an AMS for assessment. In a case where injury has not been disputed,
that order was appropriate (Greater Taree City Council v Moore [2010] NSWWCCPD
49; 12 DDCR 39) [26].
4.
Neither that order, nor the challenged “finding”, finally disposed of the parties’ rights. An
AMS will determine the extent of the worker’s whole person impairment and that finding,
subject to any appeal to a Medical Appeal Panel under s 327, will be conclusively
presumed to be correct as to the extent of whole person impairment as a result of the
injury (s 326 of the 1998 Act). Contrary to counsel for the appellant’s submission, in
making his or her assessment of whole person impairment, the AMS is not bound by the
Arbitrator’s “finding” (Haroun v Rail Corp of New South Wales [2008] NSWCA 192;
7 DDCR 139). It followed that granting leave to appeal the Arbitrator’s finding was
neither necessary nor desirable for the proper and effective determination of the claim
for lump sum compensation [27].
5.
With respect to the claim for hospital and medical expenses, which counsel for the
appellant ignored in submissions, which wrongly stated that the claim was only for lump
sum compensation, the Arbitrator made no order for the payment of those expenses. It
follows that the Arbitrator made no order finally disposing of that part of the claim. As the
Arbitrator refused leave to the appellant to dispute the two unnotified matters, and as the
appellant offered no other valid reason for disputing the claim for hospital and medical
expenses, he was entitled to enter an award for the payment of those expenses, without
making the challenged “finding”. For reasons that have not been explained, he did not
do so. Nevertheless, the worker did not challenge that failure and it was not appropriate
to deal with it [28].
6.
It followed that the Arbitrator’s finding with respect to the connection between the 2011
surgery and the 2005 injury, so far as it related to the claim for hospital and medical
expenses, was also interlocutory because it did not finally determine the parties’ rights
on that issue and the Arbitrator made no final orders. As with the claim for lump sum
compensation, it was neither necessary nor desirable for the proper and effective
determination of the claim for hospital and medical expenses that leave to appeal be
granted [29].
7.
Leave to appeal was refused because the orders made were interlocutory and it was
neither necessary nor desirable for the proper and effective determination of the dispute
that leave be granted. Moreover, the proposed appeal was without merit and, if leave
were granted, had no prospect of success. If he erred in refusing leave to dispute the
nexus issue, the Arbitrator dealt fully with the merits of the appellant’s arguments on that
issue and rightly rejected those arguments. His reasons for doing so have not been
challenged and it is those reasons that provided the basis for his challenged finding [34].
41