Air Grilles Pty Limited v Kiparizov
[2005] NSWWCCPD 74
•22 July 2005
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Air Grilles Pty Limited v Kiparizov [2005] NSW WCC PD 74
APPELLANT: Air Grilles Pty Limited
RESPONDENT: Alexander Kiparizov
INSURER:CGU Workers Compensation NSW Limited
FILE NUMBER: WCC14870-03
DATE OF ARBITRATOR’S DECISION: 20 August 2004
DATE OF APPEAL DECISION: 22 July 2005
SUBJECT MATTER OF DECISION: Leave to appeal; whether finding of date of injury is a procedural or substantive issue for purposes of appeal pursuant to section 352(2) of the Workplace Injury Management and Workers Compensation Act 1998; evidence and weight of evidence; procedural fairness.
PRESIDENTIAL MEMBER: Deputy President Gary Byron
HEARING:Determined on the papers
REPRESENTATION: Appellant: Bartier Perry Solicitors
Respondent: Carroll & O’Dea
ORDERS MADE ON APPEAL: The decision of the Arbitrator is confirmed.
The Appellant Employer is ordered to pay the costs of the appeal, as agreed or assessed.
BACKGROUND TO THE APPEAL
While employed by Air Grilles Pty Limited, the Appellant Employer, Mr Alexander Kiparizov, the Respondent Worker, began experiencing numbness and pain in his hands and arms from February 1994. He had been employed as a process worker in the Appellant Employer’s factory since 1986, making spare parts for air conditioners, and had used an air gun to join air conditioner parts, on a daily basis. The Respondent Worker states that he now suffers constant pain in both hands and in his arms up to his elbows, as well as neck pain, as a result of the nature and conditions of his work. As a consequence, he has difficulties with tasks of daily living including tying shoelaces, personal grooming, and driving. He requires his wife to help with such tasks. The Respondent Worker states that he cannot walk with his hands by his side as the rush of blood to his fingers causes problems such that he“…cannot walk without having [his] arms at around stomach level”.
On 12 September 2003 the Respondent Worker lodged an Application to Resolve a Dispute in the Commission, claiming an injury to both arms/hands and indicating that the claim for lump sum compensation under sections 66 and 67 of the Workers Compensation Act 1987 (the 1987 Act) had been “notified both to the insurer and to employer by letters dated 20 June 2003. No response has yet been received”. Although the Respondent Worker did not initially claim the neck in the Application, it was included in the letter of 20 June 2003. In that Application, the information provided about the Respondent Worker’s injury was described as:
“Over a period of years from 1986 until 15 July 2002 the Applicant was required to perform repetitive process work the nature and conditions of which work caused and/or aggravated problems with both of the Applicant’s hands/arms. In particular the Applicant was required to constantly use an air gun to put together the various parts of an air conditioning system and he was also required to handle a press machine, which required him to carry heavy frames. The general nature and conditions of his work as a process worker caused and/or aggravated an injury to both of the Applicant’s hands and/or arms.”
The injuries to the neck and arms were disputed in the Reply submitted by the Appellant Employer.
On 14 January 2004, a teleconference was held before the Arbitrator, at which the parties agreed that the matter could be referred to an Approved Medical Specialist (‘AMS’), but no agreement was reached as to the date of injury. The Appellant Employer asserted that the neck injury was caused by different aspects of the Respondent Worker’s work, from that of the arm injuries and consequently, each should be regarded as separate injuries. The Respondent Worker asserted that the injury was a series of micro traumata that occurred both before and after 1 January 2002. The Arbitrator stated, “Both Parties requested that the AMS express an alternate opinion representing each parties [sic] position. Both parties were of the view that there was a greater prospect of a settlement of the claim in those circumstances. Accordingly I attach a request for medical assessment which seeks the alternate opinions.” The Arbitrator submitted a ‘Request for Medical Assessment by an Approved Medical Specialist’ on 25 January 2004, asking the AMS to consider the alternative positions put by each of the parties.
On 19 July 2004, a Medical Assessment Certificate (‘MAC’) was issued certifying that the Respondent Worker suffered an 11% Whole Person Impairment as a result of the injuries to his cervical spine and both arms. The AMS found inter alia that the nature and conditions of the Respondent Worker’s “working activities between 1986 and 15 July 2002, with repeated strains of both wrists/hands and the neck, most likely contributed to the precipitation of:
(1) Paraesthesia in both hands, supported by evidence on nerve conduction studies of bilateral median neuropathy, more marked on the right side, leading to surgical procedures for decompression at both wrists, albeit not followed by the expected improvement of symptoms.
(2) Neck symptoms most likely related to the irritation of pre-existent but up till then asymptomatic multilevel spondylosis.”
The Appellant Employer subsequently lodged an appeal to the Medical Appeal Panel against the MAC. The Medical Appeal Panel issued its decision, confirming the MAC, on 18 January 2005, which was after the date of lodgment of this appeal that is now before me.
A teleconference was held on 9 August 2004, and an arbitration hearing was held on 18 August 2004 to determine the date of injury. On 20 August 2004 the Arbitrator made the following determination:
“The determination of the Commission in this matter is as follows:
1. On 15 July 2002 the Applicant suffered injuries being bilateral carpal tunnel syndrome and aggravation of cervical spondylosis as a result of the nature and conditions of his employment with the Respondent.
2. The determination of the Applicant’s entitlements must await the outcome of the appeal against the Medical Assessment Certificate.
On 17 September 2004 the Appellant Employer lodged in the Commission, an Application to Appeal Against Decision of [an] Arbitrator. In the appeal document headed “Appellant’s Submissions in Support of Appeal Against Decision of Arbitrator” the Appellant Employer submits that the Arbitrator erred in denying the Appellant Employer natural justice and procedural fairness, and in making a finding that was against the weight of the evidence. The Appellant Employer seeks orders that the appeal be allowed and the determination of the Arbitrator be set aside. The Appellant Employer also seeks that the substantive proceedings before the Arbitrator be adjourned pending the determination of the appeal against the MAC. The Respondent Worker submits that leave to appeal should not be granted.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act (the1998 Act) provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.
The Appellant Employer has made no submissions as to whether the Appeal may be determined on the papers, whereas the Respondent Worker submits that the appeal may be determined on the basis of the written submissions and evidence. Having carefully read all of the documents before me, including the evidence that was before the Arbitrator, and the submissions made by the parties on appeal, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
LEAVE TO APPEAL
The amount of compensation at issue on appeal in this matter exceeds $5,000. Section 352(2)(a) of the 1998 Act is satisfied in that regard. However, the Arbitrator made no award. The Appellant Employer submits therefore, that section 352(2)(b) has no application and that leave to appeal should be granted (Mawson v Fletchers International Exports Pty Limited [2002] NSW WCC PD 5 (Mawson)). The Respondent Worker submits that the finding of date of injury is purely a procedural matter, “where the findings by the Arbitrator as to the date of injury do not affect the ability of either party to pursue or to defend the amount claimed in the Commission.” (Steven Tagg v International Flavours and Fragrances (Australia) Ltd [2003] NSW WCC PD 5 (Tagg); Hien Huu Tran v AP Facilities Pty Limited t/as Atlab Australia [2004] NSW WCC PD 3 (Tran)).
The Respondent Worker submits that Mawson is inconsistent with Tagg and Tran. It states:
“As noted by the Presidential Member being Dr /Fleming in the case of Tagg it is not the intention of the legislature that all decisions of Arbitrators be amendable to appeal to a Presidential Member and the right of appeal by the Appellant Employer in relation to the substantive issues in the matter remains once the application seeking leave to appeal against the AMS findings of Dr Benanzio is determined. In fact, the Respondent Worker submits that the finding of date of injury is a procedural matter which is an inevitable finding given the concession by the Appellant Employer on the date of the arbitration on 18 August 2004 that the Worker suffers from diseases of the neck and of the arms which are related to his work. This still leaves open the substantive question of the appeal against the AMS as to whether the worker’s injuries to his neck and arms constitute two separate injuries, which should be allocated two separate assessments of Whole Person Impairment. This question is already the subject of the Application by the Appellant Employer in respect of the findings of Dr Benanzio.”
The Respondent Worker submits therefore, that the threshold requirements of section 352(2) of the 1998 Act have not been met because the Arbitrator, in his Statement of Reasons for Decision (‘Reasons’), made it clear in paragraph 15, that he was unable to make any orders determining the claim and was only therefore in a position to make findings about the date of injury. It is submitted by the Respondent Worker that, “such findings do not in fact constitute an appealable decision under Section 352 and accordingly the threshold requirements of Section 352 have not been met.”
In Tran the appeal before the President related only to an issue of costs. There was no dispute before him about an amount of compensation at issue on appeal, as required by section 352 of the 1998 Act. Consequently, leave to appeal was refused. Tran has no bearing on the instant case.
Deputy President Fleming considered the decision of Mawson in Tagg. She said, inter alia:
“The Deputy President [in Mawson] accepted the argument that such a decision had the potential to affect the Applicant’s ability to fully present his case and therefore affect the substantive issues, namely the whole of the compensation at issue in the appeal. Such an argument would also be persuasive where, for example, the decision was one as to the jurisdiction of the Commission to hear the claim, or concerned a direction in relation to the admission of evidence in an appeal.”
The appeal in Tagg concerned a decision to grant an adjournment of a telephone conference in a dispute over payments of workers compensation. Deputy President Fleming found that an appeal against a decision to grant an adjournment of a telephone conference did not concern the amount of compensation at issue in the dispute, nor in the appeal. She pointed out that courts have often been asked to review interlocutory decisions that are procedural in character and have been cautious in their approach to doing so. She further observed that the circumstances of each case, in particular whether the decision appealed against causes a substantial injustice to one of the parties, are relevant to a determination of whether a decision concerns purely procedural or substantive issues (Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170). She said that there was no evidence in Tagg that the grant of the adjournment put in issue the amount of the Appellant’s claim, affected the ability to pursue the amount claimed in the Commission or caused the Appellant a substantial injustice.
I do not accept the Respondent Worker’s submission that the decisions in Mawson and Tagg are inconsistent. Nor do I accept that the finding of the date of injury is a purely procedural matter as that concept is explained in Tagg. A decision to grant an adjournment is obviously a purely procedural matter and in the circumstances of Tagg, it was found that the appeal did not meet the threshold test in section 352 of the 1998 Act. A purely procedural matter such as an adjournment is not an element of the claim in dispute that is to be proven, nor is it integral to the range of issues that together, comprise the whole of the substantive decision to be made. In the instant case, the date of injury was initially in fact, one of three specific and substantive issues in dispute before the Arbitrator, and in relation to which the Arbitrator was required to arrive at a decision. And he has done so. Absent the date of injury, the dispute between the parties simply could not be resolved. Being a substantive issue in the dispute before the Arbitrator, it has been determined by the Arbitrator in the process of the proceedings relevant to the compensation claimed in the Commission, and that process has by definition, begun. Accordingly, I find that the finding of date of injury is not a purely procedural issue and is in fact, an integral and substantive issue in and relevant to, the overall dispute between the parties. I note however, that the deemed date of injury is not in dispute between the parties, in this appeal.
This appeal was made within 28 days of the decision appealed against, and therefore, Section 352(4) of the 1998 Act is satisfied.
Leave to appeal is granted.
SUBMISSIONS AND EVIDENCE
The Appellant Employer
The Appellant Employer submits that the Arbitrator “exceeded his jurisdiction and denied the Appellant Employer natural justice and procedural fairness in determining the issue of injury in circumstances where there was a pending AMS appeal and in circumstances where he had earlier indicated there would be an adjournment.” The Appellant submits that during the teleconference of 9 August 2004, the Arbitrator had indicated that the conciliation/arbitration conference scheduled for 18 August 2004 would be vacated if an appeal were lodged against the MAC. It further submitted that the Arbitrator also denied the Appellant Employer procedural fairness by proceeding with the conciliation/arbitration of 18 August 2004 without forewarning the Appellant Employer as to what issues would be the subject of the arbitration, despite requests for such information by the Appellant Employer. The Appellant Employer submits therefore, that it was denied the fullest opportunity to have its case considered.
The Appellant Employer submits that the Arbitrator erred in determining the dispute as to whether the neck and arm injuries were separate injuries in circumstances where that issue was the subject of a pending AMS appeal. The Appellant Employer’s objection to the arbitration proceedings was noted on the record.
The Appellant Employer submits that the Arbitrator erred in not referring the matter back to the AMS pursuant to section 329 of the 1998 Act, for clarification as to whether the permanent impairment flowing from the neck injury and the arm injury were separate impairments from separate and distinct injuries. It is submitted that in not making the referral, the Arbitrator has unreasonably limited the medical evidence, and in any event, a referral could have resolved the medical appeal.
In the alternative, the Arbitrator’s findings on injury were not supported by the evidence, nor the weight of the evidence. The Appellant Employer submits that the Arbitrator erred in making the decision that the impairments were attributable to one cause rather than separate causes, in circumstances where some of the medical evidence upon which this finding was based, was under appeal. The Arbitrator did not have before him all of the medical evidence required to make such a decision.
The Appellant Employer submits that the evidence given in the Respondent Worker’s statement, the MAC and the oral evidence given at the arbitration, all support the conclusion that the neck injury was a separate and distinct injury from the arm injuries. The Arbitrator erred in making the finding that the two disabilities arose from one injury, as this finding was based on no evidence, or was at least against the weight of the evidence, and relied on a flawed MAC that wrongly aggregated the permanent impairment from each injury.
The Respondent Worker
The Respondent Worker submits that the question as to whether the Respondent Worker’s injuries to his arms and neck constitute two separate injuries, is the subject of the appeal against the Medical Assessment Certificate of the AMS.
The Respondent Worker submits that the Arbitrator did not deny the Appellant Employer natural justice or procedural fairness by proceeding with the arbitration on 18 August 2004, as the Appellant Employer had inquired and was aware on 17 August 2004 that the arbitration was to proceed the next day. Each party was at all times privy to the same information regarding the subject of the arbitration, and was given equal time to prepare. Accordingly, there was no prejudice to the Appellant Employer.
It is further submitted that given that the Appellant Employer conceded that the Respondent Worker suffered from two work related diseases, it was inevitable under the deeming provisions of sections 15 and 16 of the 1987 Act, that the correct date of injury should be found to be 15 July 2002, as this was the date of last employment. In regard to the Respondent Worker’s injuries being diseases, the Respondent Worker refers to Perry v Tanine Pty Ltd t/a Ermington Hotel and Others (1998) 16 NSWCCR 253 and Australian Padding Co Pty Ltd v Zarb NSWCA, unreported, 16 August 1996, and submits that the Arbitrator was entitled to conclude, on the preponderance of medical evidence, that the two medical conditions were diseases which were caused, materially contributed to, or aggravated by, the nature and conditions of employment.
The Respondent Worker submits that the Arbitrator made no error in determining that injuries on 15 July 2002, arose out of or in the course of employment, as it was the province of the Arbitrator, and not the AMS, to make such a determination. Therefore, regardless of the outcome of the appeal against the MAC, the decision of the Arbitrator as to the date of the injury cannot be affected. It is submitted that the Arbitrator therefore, made no error in not referring the matter back to the AMS pursuant to section 329 of the 1998 Act, for clarification of whether two impairments arose from two distinct injuries, as this was a matter for the Arbitrator to decide according to law.
It is submitted that in the absence of a finding as to the correct date of injury, the appeal against the MAC would be ill-founded, as the AMS’s finding as to date of injury is not a matter under section 326 of the 1998 Act that is “conclusively presumed to be correct”. Therefore, according to section 327(2) of the 1998 Act, no appeal could be validly pursued against such determination.
The Respondent Worker submits that the Arbitrator’s findings on injury are supported by the evidence, and the weight of the evidence, having regard to the reports of Drs Maniam, Davis and Bray. The only report that does not attribute the injuries to the nature and conditions of employment is that of Dr Stapleton, which was referred to by the Arbitrator in his Reasons, and in any event, was inconsistent with the concessions made by the Appellant Employer.
DISCUSSIONS AND FINDINGS
A Presidential Member on appeal has a specific and limited role in the review of a decision of an Arbitrator. The review is not a rehearing. The Presidential Member is not dealing with the matter de novo and is not arriving at a fresh decision based on all of the evidence available at a later time (Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616). The powers of the Presidential Member to revoke the decision pursuant to section 352(7) of the 1998 Act and to substitute a new decision in its place, are exercisable only where it is demonstrated that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172). Alternatively, the Presidential member may remit the matter to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions made.
All documents that were before the Arbitrator and that were taken into account in making this determination are before me in this appeal. Additionally, the decision of the Medical Appeal Panel, dated 18 January 2005, confirming the MAC, is before me.
The Arbitrator recorded inter alia, at paragraph 10 of his Statement of Reasons for Decision:
“Both parties were of the view that both conditions [bilateral carpel tunnel syndrome and aggravation of cervical spondylosis] were diseases which had either been caused or aggravated by the Applicant’s employment with the Respondent. It was common ground that the provisions of Sections 15 and 16 of the 1987 Act deemed the injuries to have occurred on the same day. The Respondent [the Appellant Employer] however submitted that the neck injury was caused by different aspects of the Applicant’s work from the arm injuries and as such should be viewed as a separate injury. The Respondent pointed to the fact that the Applicant first experienced arm pain whilst performing work with an air gun whilst the onset of the neck symptoms was associated with work assembling air conditioning grills.”
The Arbitrator found at paragraph 14 that the Respondent Worker’s injuries were attributable to the same cause being the nature and conditions of his employment up to 15 July 2002. He determined the deemed date of injury for both conditions for the neck and the arms, and stated at paragraph 15 that the extent of impairment resulting from the injuries “is a matter to be determined by the outcome of the Appeal from the MAC.”
Was there a denial of procedural fairness/natural justice because the Arbitrator proceeded to make a determination as to injury while an AMS appeal was pending, and notwithstanding that he indicated that the proceedings before him would be adjourned?
The Appellant Employer submits that, “The appellant foreshadowed at the [second] teleconference on 9 August 2004 that it intended filing an appeal against the medical assessment certificate of Dr Benanzio”, and that, “In response, [the Arbitrator] said words to the effect, ‘if an appeal is filed, then the conciliation/arbitration will be vacated’.”
The Appellant Employer outlines in his submissions a course of communication with an officer of the Commission, on 17 August 2004, culminating in the verbal response that, “the Arbitrator said the conciliation/arbitration is still going to go ahead as the parties will be able to deal with other matters.” It submits that notwithstanding a further verbal and written request, it was unable to ascertain, as late as the morning of 18 August 2004, the “other matters” that the Commission intended to deal with on that day. At the conciliation/arbitration proceedings, the Arbitrator indicated that he would proceed to make a finding only in relation to injury. The Appellant Employer states that a request was made to the Arbitrator to refer the matter back to the AMS to “clarify his opinion on whether the permanent impairment assessment results from separate injuries or not.” However, the Arbitrator proceeded to determine the matter as to injury.
Finally, the Appellant Employer submits that it was noted on the record on 18 August 2004 that it objected to the matter proceeding. That is so.
In support of the Appellant Employer’s submission, there appears in the Commission file, an email, dated 17 August 2004, addressed to the Arbitrator, seeking clarification as to whether the conciliation/arbitration was to proceed the next day. A letter from the Appellant Employer, also dated 17 August 2004, requesting that the matter should not proceed, was faxed to the Arbitrator from the Commission.
The teleconference on 9 August 2004 was not recorded and no transcript is available. This is normal Commission practice as no substantive decision was to be made at these proceedings. However, the following note was made by the Arbitrator on the document headed ‘Teleconference Arrangements and Outcomes’:
“A teleconference was held on Monday 9 August 2004. The Respondent advised that they [sic] were still considering whether to appeal the MAC. Following some discussions the Respondent’s solicitor appreciated that such appeal was not likely to be successful however he needed to give further advice before being able to obtain those instructions. To allow the matter to advance I have set it down for a Con/Arb at 11am on Wednesday 18 August 2004 at 1 Oxford Street. Would you please book a room.”
No details of the “discussions” that were held, were given. However, it is clear that the Arbitrator was made aware at that time that no decision had been made to appeal against the decision of the AMS. Indeed, according to the Arbitrator’s note, the Appellant Employer’s legal representative informed him that at that point in time, he had no firm instructions in the matter. No other documents or endorsements on the Commission file are of further assistance.
It is clear from the transcript of the proceedings before the Arbitrator of 18 August 2004 that the Arbitrator was requested not to proceed because an appeal had been lodged against the assessment of the AMS. That is consistent with the communications that took place between the Commission administration and the Arbitrator on 17 August 2004. However, there is no reference in that transcript to any indication previously given by the Arbitrator, that he would adjourn the proceedings before him, if such an appeal was lodged. Morever, there is no suggestion in email correspondence or the Appellant Employer’s letter to the Commission dated 17 August 2004 that any such indication had been given by the Arbitrator. The letter simply asks whether the matter is to proceed on 18 August 2004; indicates that it should not proceed; and asks for reasons to be advanced in the event that the matter was to proceed.
The submissions in Reply put by the Respondent Worker do not assist the Appellant Employer in this regard, but state that the Appellant Employer was well aware that the matter was to proceed on 18 August 2004; that both parties had an equal opportunity to prepare; that the information available to both parties in relation to what was to take place on 18 August 2004 was identical, and that as a consequence, there is no prejudice to the Appellant Employer. On what is before me, that is precisely the case.
It is further submitted that the Arbitrator denied procedural fairness in “determining the issue of injury in circumstances where there was a pending AMS appeal”.
There is no dispute that the Respondent Worker had suffered from injuries, being bilateral carpal tunnel syndrome and aggravation of cervical spondylosis. There is no dispute that both conditions were diseases that had been aggravated by the Respondent Worker’s employment with the Appellant Employer. It is common ground between the parties that, having regard to the provisions of sections 15 and 16 of the 1987 Act, the injuries are deemed to have occurred on the same day. There is no claim of frank injury. The Appellant Employer submits however, that the neck injury and the arm injury had different causes.
The power of the AMS to make conclusive findings is limited by the provisions of section 326 (1) of the 1998 Act. The matter of injury and the date of injury do not fall within the section. The determination of the Arbitrator of 18 August 2004, the subject of this appeal, was not conditional upon or determined by the assessment of the AMS, and there was no obligation or compelling reason why the Arbitrator could not or should not proceed to make that determination, even though the appeal against the medical assessment had just been lodged. The outcome of the appeal before the Medical Appeal Panel could make no material difference, given that the very issue to be determined was one for the Arbitrator, and not the AMS. The Arbitrator had the benefit of the assessment of the AMS, in response to his referral, in any event. The Arbitrator took the matter only as far as he could, recognizing that he could go no further until the appeal against the medical assessment had been concluded. This is clear from his comments at paragraphs 4 and 15 of his Reasons.
The appeal against the assessment of the AMS has now been concluded and the Panel determined that the MAC dated 19 July 2004 should be confirmed. The Panel considered that the appeal was misconceived as it addressed issues that were the province of the Arbitrator, and not that of the AMS. The error alleged by the Appellant Employer in that appeal in this regard, was therefore, rejected.
The assessment in the MAC is clear, in any event. The AMS found that the nature and conditions of the Respondent Worker’s “working activities between 1986 and 15 July 2002, with repeated strains of both wrists/hands and the neck, most likely contributed to the precipitation of [his injuries].”
Having regard to the evidence that is before me, I find that there was no denial of procedural fairness/natural justice on the part of the Arbitrator. This ground of appeal is therefore, not made out.
Did the Arbitrator err in determining the dispute as to whether there were separate injuries in circumstances where this was the subject of an appeal against the assessment of an AMS, and further, did he err in not referring the matter back to the AMS for clarification of this issue?
I can find nothing in the documents and evidence before me to support the proposition that the Arbitrator was requested to refer the Respondent Worker back to the AMS so that the AMS could clarify his opinion on whether the permanent impairment assessment resulted from separate injuries, or not. The Appellant Employer submits that the Arbitrator was obliged to do so pursuant to section 329 of the 1998 Act. The Respondent Employer exercised its prerogative to lodge an appeal against the MAC, but that did not impose an obligation on the Arbitrator to pursue the matter, particularly when the initial referral had put the question to the AMS, who had given his opinion. In any event, the determination of injury was the responsibility of the Arbitrator, not the AMS. While the Arbitrator made the referral to the AMS ‘in the alternative’, he did so purely at the request of the parties, both of whom indicated to him that it may assist in the settlement of the dispute between them. The AMS’s view on injury, whatever it may have been, was not binding on the Arbitrator.
The Arbitrator, in responding to the request that he not proceed to determine injury and date of injury, stated his reasons for doing so. These are recorded at page 2 of the transcript of the proceedings. He states, inter alia, that the appeal against the medical assessment could only be determined against a background where there has been a finding as to what the injuries are and when they occurred. He goes on to say:
“In the absence of such a finding, the medical appeal panel would not be in a position to determine those matters … basically, it couldn’t proceed in any meaningful form as those matters are essential to the determination without actually determining the matter. Once those matters are determined, the appeal would still proceed. For those reasons I would propose to proceed with the hearing to determine the question of injury and date of injury at the current time.”
In the circumstances, and having regard to what I have said in paragraphs 42-45 above, I find that the Arbitrator has not erred in this regard.
It follows that the Appellant Employer’s submission that it has not been afforded the fullest opportunity to have its case considered, is not correct, and I find accordingly.
This ground of appeal is not made out.
Are the Arbitrator’s findings on injury supported by the evidence or the weight of the evidence?
As stated in paragraph 42, there is much common ground between the parties. However, the Appellant Employer submits that the Arbitrator’s findings on injury are not supported by the evidence or the weight of the evidence.
Essentially, the Appellant Employer submits that the Respondent Worker gave evidence that his neck problems commenced in about 1997 when performing light duty work. This involved making frames and required him to bend and move his neck up and down and from side to side on numerous occasions. “He said this is what led to his neck pain in about 1997.” The Appellant Employer submits that the evidence overwhelmingly establishes that the Respondent Worker suffered two separate and distinct injuries, each capable of producing a permanent impairment, which cannot be aggregated. It further submits that the Arbitrator has erred in finding that the two disabilities are the product of the one cause, being the nature and conditions of the Respondent Worker’s employment up to 15 July 2002. It submits, “There was no evidence to support this finding. Alternatively, the weight of the evidence was overwhelmingly against this finding.”
The Appellant Employer conceded at the hearing before the Arbitrator that both conditions are diseases, but claimed that they arose from separate causes, even if the deemed date of injury is the same.
The Respondent Worker’s legal representative, in final submissions before the Arbitrator stated, “I think they are two different diseases.” He went on to say, “So we would say that they’re due to the same or similar nature and conditions and, therefore, should be considered as one, particularly given that we’re now dealing with a system where there’s one measurement of impairment rather than in terms of impairment of the neck and in terms of each arm.”
The Respondent Worker’s written statement and oral evidence before the Arbitrator is that he developed the wrist pain from around 1994 and the neck pain from 1997. He stated that the problems in his hands and arms worsened throughout his employment, initially as a result of working with an airgun and carrying heavy frames. He said that he ceased work and required an operation on his wrists in 2002. He said that his neck pain “intensified and it started to sort of be a problem.” He stated that he had not raised the matter of his neck pain when he first noticed it in 1997, but spoke to the “same doctor who operated on my wrists” some time later when it became a problem. He said that he paid little attention to it at first, “because I thought it was just sort of part and parcel of my job … it wasn’t … something that really worried me at that particular time.” Ultimately, he said that the doctor arranged for him to have an x-ray and an examination of his neck in 2002, and “this is when they discovered… that there was some sort of damage inside my neck.”
As indicated by the Arbitrator at paragraph 11 of his Reasons, there has been no challenge to the reliability of the evidence of the Respondent Worker. There is no claim of frank injury and the evidence is of aggravation, acceleration, exacerbation or deterioration of disease over time, in the course of employment.
I have closely examined the medical reports that were before the Arbitrator and agree with his assessment of them in terms of their evidentiary value. He says at paragraph 12 of his Reasons:
“Dr Davis expressed the view that the Applicant had developed bilateral carpal tunnel syndrome and chronic cervical injury as a result of the nature and conditions of his employment over a period of 16 years. Dr Maniam also attributed the neck and arm symptoms to the work conditions. Dr Bray could not exclude the possibility that the Applicant’s condition was at least partly attributable to his work though he does not express a clear opinion in respect of the neck. Dr Stapleton does not assist as his opinion that the condition is not work related is inconsistent with the concessions made by the Respondent and is inconsistent with the other medical opinion.”
The AMS, in disagreeing with Dr Stapleton’s report said, inter alia, “I point out that the causes of carpal tunnel syndrome are multiple, and occupation is one of the factors contributing to this type of pathology.”
The evidence in support of the Arbitrator’s decision as to injury is substantial. Having regard to the Respondent Worker’s evidence, and the medical evidence, it was open to the Arbitrator to find that the Respondent Worker suffered injury to both arms and neck as a result of the same cause, that is, the nature and conditions of his employment, which caused an aggravated disease process in both his neck and both wrists. Dr Stapleton’s opinion is inconsistent not only with the other medical assessments in evidence, but is also contrary to the concessions made by the Appellant Employer, as indicated by the Arbitrator. In the circumstances, the Appellant Employer has failed to demonstrate that the decision of the Arbitrator was contrary to the evidence and/or not supported by the weight of the evidence.
I can find no error on the part of the Arbitrator in this regard. Consequently, this ground of appeal fails.
The deemed date of injury is not in dispute and it now remains for the Arbitrator to proceed to finally determine the disputed claim that is before him, unless settlement is reached beforehand.
DECISION
The decision of the Arbitrator is confirmed.
COSTS
The Appellant Employer is ordered to pay the costs of the appeal, as agreed or assessed.
Gary Byron
Deputy President 22 July 2005
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF GARY BYRON, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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