Andrew v Dowling Real Estate Pty Ltd
[2006] NSWWCCPD 193
•22 August 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Andrew v Dowling Real Estate Pty Ltd [2006] NSWWCCPD 193
APPELLANT: Bryson Andrew
RESPONDENT: Dowling Real Estate Pty Ltd
INSURER:QBE Workers Compensation (NSW) Ltd
FILE NUMBER: WCC20754-04
DATE OF ARBITRATOR’S DECISION: 13 October 2005
DATE OF APPEAL DECISION: 22 August 2006
SUBJECT MATTER OF DECISION: Lump sum compensation; pre and post 1 January 2002 injuries; correct method of assessment
PRESIDENTIAL MEMBER: Acting Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION: Appellant: Harris Wheeler Lawyers
Respondent: Arnold Lawyers
ORDERS MADE ON APPEAL: Paragraphs 2 and 3 of the Arbitrator’s decision dated 13 October 2005 are revoked and the following orders made:
“2.In respect of the Applicant’s injuries before 1 January 2002 there is an award for the Applicant as follows:
(a) $9,000.00 in respect of a 15% permanent impairment of the Applicant’s back;
(b) $4,500.00 in respect of a 6% permanent loss of use of the Applicant’s left leg at or above the knee, and
(c) $2,250.00 in respect of a 3% permanent loss of use of the Applicant’s right leg at or above the knee.
3. In respect of the Applicant’s injury on 3 June 2002 there is an award for the Applicant in the sum of $2,500.00 in respect of a 2% whole person impairment.
4.The Respondent is to pay the Applicant’s costs as agreed or assessed.”
Paragraph 1 of the Arbitrator’s decision dated 13 October 2005 is confirmed.
The matter is remitted to a different Arbitrator for the Appellant Worker’s entitlement under section 67 of the Workers Compensation Act 1987 resulting from the pre 2002 impairment and losses to be assessed.
The Respondent Employer is to pay the Appellant Worker’s costs of the appeal.
BACKGROUND TO THE APPEAL
On 9 November 2005 Bryson Andrew (‘the Appellant Worker/Mr Andrew’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 13 October 2005.
The Respondent to the Appeal is Dowling Real Estate Pty Ltd (‘the Respondent Employer’).
On 16 December 2004 the Appellant Worker filed an Application to Resolve a Dispute (‘the Application’) with the Commission seeking compensation in respect of back injuries sustained by him in the course of his employment with the Respondent Employer on 19 May 1995, in 1997, in 1998 and on 3 June 2002.
In respect of his pre 1 January 2002 injuries he claimed lump sum compensation pursuant to the Table of Disabilities, as it applied in the Workers Compensation Act 1987 (‘the 1987 Act’) immediately before 1 January 2002, in respect of a 30% permanent impairment of the back, 15% loss of efficient use of his left leg at or above the knee and 5% loss of efficient use of his right leg at or above the knee, together with compensation for pain and suffering under section 67 of the 1987 Act.
In respect of his post 1 January 2002 injury he claimed compensation for a 13% whole person impairment plus compensation for pain and suffering under section 67. The claims in respect of the 2002 injury were made pursuant to the amended provisions of sections 66 and 67 of the 1987 Act, those amendments having been made by Schedule 3 to the Workers Compensation Legislation Amendment Act 2001 and Schedule 2 to the Workers Compensation Legislation Further Amendment Act 2001.
A teleconference was held on 8 April 2004 at which the parties indicated they would reach agreement as to how the Appellant Worker’s claims under section 66 would be assessed. The parties prepared a document headed ‘Statement of Agreed Facts’ (‘Agreed Facts’) which provided:
“The Applicant and the Respondent agree to the following facts:
1.In 1995 the Applicant injured his back when he fell backwards off a balcony.
2.In 1997 whilst climbing through a window the Applicant fell injuring his back.
3.In 1998 whilst carrying a box of real estate magazines the Applicant tripped injuring his back.
4.On the 3rd June 2002 the Applicant, whilst carrying out the valuation of a house at Carrington injured his back when he assisted in lifting a large woman who had fallen over.
5.That any permanent impairment or loss suffered by the Applicant is as a result of the cumulative effect of the injuries suffered in 1995, 1997, 1998 and 2002.
6.The Applicant and the Respondent agree that any assessment of permanent impairment or loss suffered by the Applicant as a result of the injuries above should be apportioned between the injuries suffered by the Applicant prior to the 1st January 2002, that is the injuries in 1995, 1997 and 1998, and the injury suffered by the Applicant after the 1st January 2002, that is the injury suffered on the 3rd June 2002.
7.The Applicant and the Respondent agree that the Applicant be referred to an Approved Medical Specialist (AMS) appointed by the Workers Compensation Commission for assessment.
8.The Applicant and the Respondent agree that the following reports be made available [sic] the AMS:
· Dr C Eastham, the Applicant’s treating GP dated 14.11.04.
· Dr Y Ghabrial, the Applicant’s treating orthopaedic specialist dated 7.8.04.
· Dr C Davis, two reports dated 2nd August 2004.
· Dr J Stephen, two reports dated 19th February 2004.”
After receiving the Agreed Facts an Arbitrator issued a Direction to the parties on 29 April 2005 purporting to deal with the referral to the Approved Medical Specialist (‘AMS’) in the terms sought by the parties. The Direction did not accurately reflect the Agreed Facts and the Appellant Worker’s solicitor wrote to the Registrar on 6 May 2006 stating that fact and adding:
“It was the intention of the parties that whilst any permanent impairment or loss was as a consequence of the accumulated affect of all the injuries, that the assessment of the injury in 2002 was to be assessed on a whole of person impairment basis and that the injuries in 1995, 1997 and 1998 were to be assessed on the basis of the method of assessment that existed prior to 1 January 2002.”
A copy of the letter of 6 May 2006 was forwarded to the solicitor for the Respondent Employer without protest as to its accuracy.
The Referral For Assessment of Permanent Impairment Dispute was prepared by an Arbitrator on 19 May 2005. It noted that the Agreed Facts were to be forwarded to the AMS but did not clearly convey the intention set out at [7] above.
A Medical Assessment Certificate (‘MAC’) was issued on 8 August 2005 after an assessment was conducted by Dr Higgs (‘the AMS’). As requested, the AMS assessed the Appellant Worker’s impairments under the Table of Disabilities in respect of the injuries before 1 January 2002 and did a whole person impairment assessment in respect of the 3 June 2002 injury.
In respect of the pre January 2002 injuries the AMS assessed Mr Andrew to have a 25% permanent impairment of his back, a 10% permanent loss of efficient use of his left leg at or above the knee and a 5% permanent loss of efficient use of the right leg at or above the knee. The impairment and the losses were subject to a 40% deduction due to pre existing “injury, abnormality or condition and due to injury subsequent to 01/01/02 (ie 03/06/02)” (MAC page 12). Therefore, as a result of the cumulative effect of the pre January 2002 injuries the Appellant Worker has been assessed to have a 15% permanent impairment of his back, a 6% permanent loss of use of his left leg at or above the knee and a 3% permanent loss of use of the right leg at or above the knee.
In respect of the post January 2002 injury the AMS assessed the Appellant Worker to have a 12% whole person impairment less an 80% deduction under section 323 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) giving a net 2% whole person impairment after rounding down from 2.4%.
The parties made it clear that the pre and post January 2002 impairments and losses were to be assessed separately and that was done by the AMS. However, the AMS was not asked to apportion between the three pre January 2002 injuries.
On 28 September 2005 the matter came on for an Arbitration hearing before a different Arbitrator to the one who made the Direction and AMS referral. After hearing submissions from both parties the Arbitrator determined that the Appellant Worker had no entitlement to compensation under section 67 because all of his assessments were under the relevant threshold.
The Appellant Worker now seeks to appeal that decision.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 13 October 2005 records the Arbitrator’s orders as follows:
“1.Respondent is to pay the Applicant’s reasonably necessary Section 60 expenses upon production of accounts and receipts.
2.The Applicant has no entitlement to Section 67 [sic] as a result of the findings of the AMS in his Medical Assessment Certificate of Permanent Impairment.
3.No order as to costs.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred:
1.in making no order with respect to the Appellant Worker’s claim under the provisions of 1987 Act;
2.in not assessing the pre January 2002 injuries as having had a cumulative effect, and
3.in not applying the assessment of the AMS.
LEAVE TO APPEAL
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
The quantum in issue on the appeal is in excess of $5,000.00 and therefore the threshold in section 352(2)(a) of the 1998 Act is satisfied. No award of compensation has been made in this case but the Arbitrator’s finding would result in the Respondent Worker receiving no compensation under section 67 and therefore the second limb of section 352(2) does not apply (see Mawson v Fletchers International Exports Pty Ltd [2002] NSWWCCPD 5).
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
I grant leave to appeal.
PRELIMINARY MATTERS
Section 354(6) of the 1998 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 Worker seeks an oral hearing because the appeal raises complex issues of law. The Respondent Employer is silent on this issue. I have the benefit of written submissions from both parties and a transcript of the proceedings before the Arbitrator. I do not believe the issues are so complex that an oral hearing in required.
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, I believe that the appeal can proceed to be determined on the basis of these documents, 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.
SUBMISSIONS AND FINDINGS
Whilst the Agreed Facts are not as precise as one would like, they do, when read with the letter of 6 May 2006, convey with reasonable clarity what the parties agreed. Parties are free to reach agreement on how a claim is to be assessed, so long as that agreement is consistent with the terms of the legislation and does not seek an order that is outside the Commission’s jurisdiction.
The Appellant Worker submits that pre and post 2002 assessments “cannot be added together for the purpose of section 67” (Appellant Worker’s submissions paragraph seven). I agree with that submission. Losses and impairments resulting from injuries received after 1 January 2002 are assessed and compensated on a totally different basis to those resulting from injuries sustained before that date. In addition, different legislative provisions apply. The post 1 January 2002 provisions do not apply to pre January 2002 injuries and, as a result, it is impossible to aggregate pre and post January 2002 the losses. They must be assessed separately.
This issue is dealt with in clause 3 Schedule 6 Part 18C of the 1987 Act which provides:
“3 Lump sum compensation amendments
(1) The lump sum compensation amendments do not apply in respect of an injury received before the commencement of the amendments (even if the injury is the subject of a claim made after the commencement of the amendments) except as follows:
(a) the amendments to section 66A apply in respect of an injury received before the commencement of the amendments (even if the injury is the subject of a claim made after the commencement of the amendments) and so apply:
(i) subject to such modifications to that section as may be prescribed by the regulations, and
(ii) as if an agreement registered before that commencement by the Authority were registered by the Commission,
(b) the repeal of section 72 applies in respect of an injury received before the commencement of the amendments, but only to the extent that the injury is the subject of a new claim.”
The exceptions noted above do not apply to Mr Andrew’s claim. The term “lump sum compensation amendments” is defined to mean:
“…the amendments made by Schedule 3 to the Workers Compensation Legislation Amendment Act 2001 and Schedule 2 to the Workers Compensation Legislation Further Amendment Act 2001.”
Therefore, it is my opinion that it was perfectly appropriate for the Appellant Worker to seek to clarify method of calculation of the lump sum compensation in the Agreed Facts and in the letter of 6 May 2005. If there had been no agreement, it is my view that the authorities lead to the same conclusion that was sought to be achieved in the Agreed Facts. The resolution of the issue raised requires a detailed analysis of the legislation and authorities.
The Legislation
At the time of the Appellant Worker’s first three injuries the relevant provisions of the 1987 Act were as follows; Section 65(3) provided:
“If a loss mentioned in the Table to this Division resulted both from an injury received before the adjustment of an amount mentioned in section 66 or 67 and an injury received after that adjustment, the loss shall, for the purposes of determining the amount of compensation payable under those sections, be treated as having resulted from the injury received after that adjustment.” (emphasis added)
Section 66(1) provided:
“66(1) A worker who has suffered the loss of a thing mentioned in the Table to this Division as the result of an injury is entitled to receive from the worker’s employer by way of compensation for the loss, in addition to any other compensation under this Act, the amount equal to the percentage of $100,000 set out opposite to that loss in that Table.” (emphasis added)
And Section 67 provided:
“(1) A worker who has suffered a loss mentioned in the Table to this Division (or 2 or more of any such losses as the result of the same injury) is entitled to receive from the worker’s employer by way of compensation for pain and suffering resulting from the loss or all losses, in addition to any other compensation under this Act, an amount not exceeding $50,000.
(1A) Because there is a distinction between injury and loss resulting from an injury (and compensation is payable under this section only for pain and suffering resulting from a loss), the pain and suffering for which compensation is payable under this section does not include pain and suffering that results from the injury but not from the loss.
(2) This section does not apply if the compensation paid or payable under s 66 for the loss or all those losses is less than 10 per cent of the maximum amount from time to time referred to in section 66(1).”
The Authorities
In Glebe Rowing Club Pty Ltd v Pride NSWCA 6 December 1995, unreported, (‘Pride’) the NSW Court of Appeal considered the situation where a worker suffered two injuries to her back with different employers. At first instance Judge Burke found a 22% impairment of the worker’s back resulting from both injuries and ordered each employer to contribute equally to that award. His Honour also awarded compensation under section 67 which was apportioned equally between the two employers. On appeal Meagher JA held at page three that the apportionment provisions had no application because the trial judge found “two distinct injuries, each with a quantified amount of damage resulting”. The other Justice forming the majority was Rolfe A-JA who held that Judge Burke found two losses resulting from two injuries. Rolf A-JA quoted from Burke J’s decision and then noted at page 5:
“Those findings, in my opinion, meant the two injuries gave rise to two losses, each of which was, in the view his Honour took, compensable under s66. However, he held the extent to which each was compensable, in financial terms, was at a figure which did not meet the threshold for compensation under s67(1) required by s67(2). That flows from his finding that the amount payable under s66 was $13,000 of which one half was attributable to each injury.”
The appellant’s submission is Pride was summarised by Rolf A-JA at page 11:
“The submissions on behalf of the appellant were that his Honour erred, having found that Miss Pride suffered two injuries that equally contributed to her impairment and having found that the total impairment was between 1:5 and 1:4, in that there was no loss from a single injury that was not less than ten percent of the maximum amount referred to in s66(1). His Honour, having found that $13,000 was payable pursuant to s66, found, so it was submitted, that only $6,500 was payable ‘in respect of the loss resulting from each of the injuries’ and it was not in issue, if that be the correct view as to what his Honour did, that the amount of the award under s66 was insufficient to attract the provisions of s67, so the Miss Pride was not entitled to an award thereunder.”
At page 13 Rolf A-JA said:
“The problem, at this stage, is whether there was one loss resulting from two injuries, or whether there were two losses resulting from two injuries within the meaning of s 66. For the appellant to succeed it must show the latter. It cannot be disputed that after the second incident Miss Pride was suffering from a loss different from that from which she was suffering after the first incident. But the proper inference from his Honour’s findings is that each injury gave rise to a loss compensible equally under s66. That is made clear by his Honour’s findings at AB71, which I have quoted. Thus as a matter of fact his Honour found two injuries giving rise to two losses each of which was compensible in the sum of $6,500, which sum was insufficient to justify an award of compensation under s67.”
His Honour continued at page 14:
“The problem I have with the submission is that it overlooks the existence of two injuries each of which gave rise to a compensable loss under s66, and it is clear from his Honour’s findings that had he been considering each such loss separately he would have found that the amount of compensation payable for each was $6,500. This, as was not in issue, was below the threshold. The aggregation of the two losses into one loss was not, in my opinion, a permissible exercise. The situation may have been different if the factual findings had been that the first incident did not give rise to a compensable loss.”
The end result was that the appeal was allowed and the award under section 67 was set aside.
In the present case the Respondent Employer relies on Pride to support its argument that Mr Andrew has suffered four separate losses from four separate and distinct injuries and, therefore, he has no entitlement to compensation under section 67 because none of the losses meet the section 67(2) threshold. At first consideration that argument has some appeal. However, on a more detailed analysis I do not believe it is correct in the circumstances of the present case.
Pride has been considered in a number of cases by judges of the Compensation Court of NSW. In Sidiropoulos v Able Placements Pty Ltd (1998) 16 NSWCCR 123 (‘Sidiropoulos’) Judge Neilson noted that the strict ratio decidendi in Pride is the interpretation of the first instance factual findings by Burke J (Sidiropoulos at 127). A similar view has been expressed by Judge Bishop in Scanlon v Powercoal Pty Ltd (2001) 22 NSWCCR 82 and by Judge Armitage in Pickles v Staples Waste Removals Pty Ltd (2000) 20 NSWCCR 729 at 747 (‘Pickles’).
In Sidiropoulos the worker suffered two injuries to his back with two employers. Judge Neilson found that the injuries had a cumulative effect resulting in the worker having an 18% impairment of his back and a 9% loss of use of his left leg at or above the knee. That is, the two injuries caused an impairment to the back and a consequential or secondary loss of use of the left leg at or above the knee. There was no separate injury to the leg. Therefore, there was held to be only one impairment or loss. As a result the worker was entitled to compensation under section 67.
In Pickles the worker suffered three discrete injuries to his left shoulder with two employers over several years. The worker accepted a settlement of his claim for his first two injuries with an award for 16% loss of use of his left arm at or above the elbow plus compensation under section 67. He later brought a claim for additional lump sum compensation after his third shoulder injury May 1999. At the hearing before Armitage J he was found to have a 30% loss of use of his left arm at or above the elbow (that is, one loss) as a result of his three injuries. As such he was entitled to additional lump sum compensation.
In the present case the issue is whether the Appellant Worker’s injuries have resulted in two separate and distinct impairments (one before January 2002 and one after that date), or have resulted on four separate impairments. If all injuries had happened before January 2002 the answer would be relatively straight forward: applying Sidiropoulos and Pickles, together with the terms of the previous legislation, means that the results of more than one injury may be aggregated.
The change in the law on 1 January 2002 further complicates the analysis. However, once it is accepted that Schedule 6 Part 18C prevents the lump sum compensation amendments applying to the pre January 2002 injuries then there is no choice but to deal with pre and post January 2002 injuries separately.
But there is nothing in the amendments that diminishes the standing or authority of Sidiropoulos and Pickles so far as they relate to injuries sustained before January 2002. The question is whether a worker’s pre January 2002 injuries have resulted in one loss or one impairment (as was found to be the case in Sidiropoulos and Pickles), or two or more losses or impairments (as Judge Burke was held to have found in Pride). If a worker has only one loss or impairment resulting from multiple injuries it is appropriate to look at the cumulative effect of those injuries to determine the worker’s section 66 entitlements. If that entitlement meets the section 67(2) threshold the worker is entitled to compensation for pain and suffering even though his loss has resulted from more than one injury. Whether a worker has suffered one loss or two will be a question of fact to be determined on the evidence in each case.
Apportionment Authorities
No question of apportionment between employers or insurers arises in the present case as there is only one employer and one insurer. However, the Respondent Employer argues that the Appellant Worker’s loss should be apportioned between the four injuries. Therefore, in resolving the current issue, it is instructive to consider the approach the Court of Appeal has taken to apportionment in multiple injury cases.
In Sutherland Shire Council v Baltica General Insurance Co Ltd (1996) 39 NSWLR 87 (‘Baltica’) it was held that the employer’s liability to the worker is to be determined first before any apportionment under section 22 of the 1987 Act. In Sidiropoulos at [48] Judge Neilson quotes the following passage from Justice Clarke in Baltica:
“Liability here to pay compensation for death or incapacity is, relevantly, created by ss 25 and 33. It arises when incapacity results from an injury or from more than one injury. It is not expressed to arise when incapacity partly results from an injury. Yet s22A(2) speaks of a liability to pay compensation arising from more than one injury and, by virtue of the extended definition, that must include the situation where incapacity results partly from one, and partly from another injury. In this way the terms of s22A(2) may be thought to widen the tests in ss25 and 33. I do not think that they do. No amendment was made to either s25or s33. The test of causation ‘results from’ has not been altered in those sections and it is inconceivable that the legislature intended that it be altered. The better view, in my opinion, is that the test of causation remains as it was and s22(1A) is limited in its operation to the widening of the meaning of the expression ‘results from more than one injury’ where it is found in the Act. Where that expression appears in s22A(2), it is to be understood in the wider sense so that apportionment may be carried out in cases of deemed incapacity. The subsection does not, however, qualify the test of causation in ss25 and 33. It follows that I agree with Burke CCJ's conclusion that a trial judge's initial task is to determine the liability of an employer or employers to pay compensation to a worker. If the worker satisfies the test in the case where are a number of work injuries and apportionment is sought, the trial judge is then to apply the s22 test and that test will be satisfied if the incapacity resulted partly from one injury (presumably the injury which led to the finding under s33) and partly from another or other injuries. While, therefore, I disagree with Burke CCJ in his description of the primary test of causation, I do agree with his view that there is a two-stage process when apportionment is sought.”
Judge Neilson added at [49]:
“Prior to the insertion of the current s22, only the employer at the time of the second injury in the current case, and the insurer then at risk, would have been liable to pay the compensation because as a matter of law the incapacity results from the last injury causative of incapacity or loss. There is no difference in my view between the tests under ss25 and 33 and the tests under s66 and s67. There was no amendment made to those sections at the time that s22 was enacted in its current guise.”
Sidiropoulos was considered by the Court of Appeal in Rail Services Australia v Dimovski & anor [2004] NSWCA 267 (‘Dimovski’). Justice Handley expressly approved Judge Neilson’s reasoning in that case and said at [35]:
“Since s 22 in its current form does not affect the test of causation that the Compensation Court is bound to apply before making awards under ss 66 and 67, and compensation must be assessed before apportionment and contribution are considered, the injury or injuries to his left leg that the worker suffered while employed by the second respondent are ignored at this stage of the inquiry. The cumulative affect of all injuries to the left leg which caused one loss of its efficient use at or above the knee are treated as a result of the last causative injury. See Sidiropoulos at 125 and 128. The appeal against the lump sum awards therefore fails.” (emphasis added)
In my opinion, the principles are the same when there is only one employer. It would be irrational if, because of the apportionment provisions, a worker who suffered two injuries with two employers resulting in one loss was able to be compensated for the cumulative effect of his injuries but a worker who suffered two identical injuries with the same employer was not.
I agree with Judge Neilson in Sidiropoulos that there is no difference between the causation test in sections 25 and 33 and the test in sections 66 and 67. Section 66 talks about “the loss of a thing” mentioned in the Table “as the result of an injury”. Section 25 says “if death results from an injury”. Section 33 says “if total or partial incapacity for work results from an injury”. It therefore follows that the Appellant Worker is entitled to have his loss assessed as one loss if that loss has resulted from more than one injury. This conclusion is consistent with the authorities cited above and with the terms of section 65(3) as it was at the time of Mr Andrew’s pre 2002 injuries. That section expressly states that a worker may have a “loss” from more than one injury, and, in the event that that happens, he or she is to be compensated for “the loss” at the adjusted rate of compensation.
Correct Approach
In my view the correct approach to issues such as the present is to ask: have the worker’s pre 2002 injuries resulted in one loss or two? If the answer is that the worker has only sustained one loss then the cumulative effect of the injuries can be considered. To answer that question it is necessary to consider the meaning of a “loss”. In section 66(1) compensation is payable for the “loss of a thing mentioned in the Table”. The Table refers to “permanent impairment of the back” and “loss of either leg at or above the knee. The MAC found the Appellant Worker to have a 25% permanent impairment of his back, a 10% loss of use of the left leg at or above the knee and a 5% loss of use of the right leg at or above the knee. That is, he only has one loss as a result of his pre 2002 injuries. The losses of efficient use of the legs are consequential losses resulting from the single back impairment and are not new or separate losses arising from separate injuries (see Sidiropoulos).
It is important to note that the wording of the current section 65 is quite different to the wording applicable at the time of Mr Andrew’s pre 2002 injuries and that may well bring about a different conclusion for multiple injuries after 31 December 2001.
Therefore, whilst in principle there is no reason why a person who suffers from two or more injuries cannot ask the Commission to look to the cumulative effect of those injuries to determine if the section 67(2) threshold has been met, the question remains: is that the appropriate finding in this case? The answer to this question requires a consideration of the evidence and the MAC.
Medical Evidence
The Appellant Worker relies on a report from Dr Ghabrial dated 7 August 2004. In that report the doctor took a detailed history of Mr Andrew’s work accidents. He assessed Mr Andrew to have a 30% permanent impairment of his back and a 15% loss of use of his left leg at or above the knee “as a result of the injuries prior to 1 January 2002” (report 7 August 2004, page three). There is no evidence in his report to support a conclusion that Mr Andrew suffers from separate and distinct losses or impairments as a result of his pre 2002 injuries.
For the Respondent Employer Mr Andrew was seen by Dr Davis and Dr Stephen. In his report of 2 August 2004 Dr Davis stated that Mr Andrew’s problems were due to degenerative changes and that any work aggravation had ceased. Dr Stephen prepared a report dated 19 February 2004 in which he stated that any work aggravation had probably ceased and that work was not a substantial contributing factor (report 19 February 2004, page four). However, in his short report of the same dated he concluded that Mr Andrew had an 8% whole person impairment of which he felt 75% was constitutional and “predates the incident of June 2002” and 25% was the result of the incident of June 2002.
The AMS took a detailed history of the Appellant Worker’s injuries and noted the Agreed Facts referred to above. Under ‘Summary’ on page five of the MAC he noted that Mr Andrew has age caused degenerative changes and then added:
“Injuries have been suffered in 1995, 1997, 1998 and in June 2002. All of these injury incidents are cause for the Worker to suffer from continuing and permanent aggravation to his pre-existing, and co-existing, age caused degenerative spinal pathology.” (emphasis added)
At page nine of the MAC the AMS expressed his opinion on the Appellant Worker’s impairment and losses:
“It is my opinion that the Worker suffers from an impairment of back function. The impairment of back function can be represented in percentage terms by a 25% permanent impairment of function of the back when function of the back is considered as a whole and when the impairment of back function is compared to that of a most extreme case.
I am also of the opinion that the Worker suffers from a loss of efficient use of the left leg…[of] 10%…” (emphasis added)
The AMS found a loss of use of the right leg at or above the knee of 5%.
At page 10 of the MAC the AMS stated:
“My consideration of all of the evidence has caused me to conclude that one-fifth (1/5) of the impairment of back function and of the loss of efficient use of each leg can be causally associated with pre-existing, and co-existing, age caused degenerative pathology. I have also formed the opinion that four-fifths (4/5) of the impairment of back function and of the loss of efficient use of each leg can be causally associated with consequences of injury that has been suffered at work during the period 1995 to 03/06/02. It is also my opinion that, with regard to the work caused impairment and loss of efficient use it is the case that three-fifths (3/5) of the impairment and loss of efficient use can be causally associated with injury suffered prior to 01/01/02 and that one-fifth (1/5) of the work caused impairment can be causally associated with injury that was suffered after 01/01/02 (ie. On 03/06/02).” (emphasis added)
The above passages have been highlighted to emphasis the fact that the AMS was talking about one impairment (‘loss’) as a result of the three pre 2002 injuries. The AMS was not asked to apportion between those injuries and his reasons set out above indicate that he did not do that. Therefore, the appropriate conclusion is that the AMS certified the Appellant Worker to have a 15% permanent impairment of his back, a 6% permanent loss of efficient use of his left leg at or above the knee and a 3% loss of efficient use of his right leg at or above the knee under the Table of Disabilities as a result of his pre 2002 injuries. This assessment is consistent with the Agreed Facts submitted to the AMS and is consistent with authority and with the terms of Schedule 6 Part 18C. These assessments entitle the Appellant Worker to recover compensation under section 67 for pain and suffering as a result of his pre 2002 ‘loss’. That ‘loss’ is the 15% permanent impairment of his back with consequential losses affecting his legs (Roads & Traffic Authority (NSW) v Malcolm (1996) 13 NSWCCR 272).
The Respondent Employer argues that the Appellant Worker’s interpretation of the Agreed Facts “involves an interpretation that the injuries had a cumulative effect up to 31/12/01 but not thereafter and that is contrary to the express terms of paragraph 5 of the agreed facts” (Respondent Employer’s submissions paragraph seven). That is partly correct. However, the apparent inconsistency is explained by the necessary application of Schedule 6 Part 18C which makes it clear that the lump sum amendments do not apply in respect of injuries received before 1 January 2002.
The Respondent Employer also submits that the Appellant Worker has incorrectly applied Sidiropoulos. The argument is that the cumulative effect of all four injuries should be treated as having resulted in one impairment or loss. But for the effect of Schedule 6 Part 18C that submission would be correct. However, the only way Schedule 6 Part 18C can be given any effective work to do in the present case is for the assessment of the impairments and losses to be split into pre and post January 2002 assessments. That is what the AMS was asked to do and MAC reflects that assessment. This approach was agreed to by both parties and seems to me to be a fair and reasonable way of dealing with a difficult issue and is consistent with the transitional provisions as contained in Schedule 6 Part 18C.
If I am wrong in the above analysis and Schedule 6 Part 18C is ignored, then Sidiropoulos would dictate that all four injuries have resulted in only one impairment. If that approach is taken then the Appellant Worker’s has a 12% whole person impairment but with a deduction of only 20% under section 323 of the 1998 Act leaving a net impairment of 10% after rounding up as required by the American Medical Association Guides to the Evaluation of Permanent Impairment fifth edition (‘AMS Guides’). In that event the Appellant Worker would still be entitled to receive compensation for pain and suffering under section 67 of the 1987 Act. It is not correct to ignore the rounding up requirement in determining whether the section 67 threshold is reached. The threshold is reached once the AMS certifies a loss of 10% or more. An AMS must apply the AMA Guides in giving his certification and those guides require that all assessments above 0.5 be rounded up to the next whole number.
CONCLUSION
It follows from the above analysis that the Arbitrator was in error in failing to consider the provisions of Schedule 6 Part 18C and in his application of Sidiropoulos. Whilst the Agreed Facts involve an inconsistency between clause 5 and clause 6, it seems reasonably clear that the parties intended the pre 2002 injuries to be dealt with on a cumulative basis, as was the case in Sidiropoulos, and to have the injury from June 2002 dealt with separately. Though it is not referred to, this approach is consistent with Schedule 6 Part 18C.
The Arbitrator’s statement that the MAC is “precisely in accordance with the methodology required to be undertaken by Part 7 of the 1998 Act and the WorkCover Guidelines” (Statement of Reasons for Decision (Reasons) paragraph 30) is not strictly correct. The AMS is required to provide an assessment in respect of “medical disputes” (section 319 of the 1998 Act). A valid MAC must comply with section 325 of the 1998 Act which provides:
“325 Medical assessment certificate
(1) The approved medical specialist to whom a medical dispute is referred is to give a certificate (a medical assessment certificate) as to the matters referred for assessment.
(2) A medical assessment certificate is to be in a form approved by the Registrar and is to:
(a) set out details of the matters referred for assessment, and
(b) certify as to the approved medical specialist’s assessment with respect to those matters, and
(c) set out the approved medical specialist’s reasons for that assessment, and
(d) set out the facts on which that assessment is based.” (emphasis added)
The AMS was not asked to provide an assessment of impairment resulting from each of the Appellant Worker’s four injuries. An analysis of the body of the MAC indicates that he did not do that (see pages 9 & 10 of the MAC). Confusion has arisen when one looks at the fifth column on page 12 of the MAC. The percentages set out in that column were not sought by the parties and are not referred to anywhere in the body of the MAC and are inconsistent with the AMS’s reasoning set out above. Effectively that part of the MAC purports to apportion the pre 2002 impairment and losses equally between the three injuries. That was not part of the “medical dispute” referred to him and is of no effect.
The result is that the Appellant Worker is entitled to an award in the terms of the valid part of the MAC. As a result he is entitled to recover compensation under section 67 of the 1987 Act for so much of his pain and suffering as has resulted from his pre 2002 loss. That is, for his 15% impairment of his back and the consequential or secondary losses to his legs.
DECISION
Paragraphs 2 and 3 of the Arbitrator’s decision dated 13 October 2005 are revoked and the following orders made:
“2.In respect of the Applicant’s injuries before 1 January 2002 there is an award for the Applicant as follows:
(a) $9,000.00 in respect of a 15% permanent impairment of the Applicant’s back;
(b) $4,500.00 in respect of a 6% permanent loss of use of the Applicant’s left leg at or above the knee, and
(c) $2,250.00 in respect of a 3% permanent loss of use of the Applicant’s right leg at or above the knee.
3.In respect of the Applicant’s injury on 3 June 2002 there is an award for the Applicant in the sum of $2,500.00 in respect of a 2% whole person impairment.
4.The Respondent is to pay the Applicant’s costs as agreed or assessed.”
Paragraph 1 of the Arbitrator’s decision is confirmed.
The matter is remitted to a different Arbitrator for the Appellant Worker’s entitlement under section 67 of the Workers Compensation Act 1987 resulting from the pre 2002 impairment and losses to be assessed.
COSTS
The Respondent Employer is to pay the Appellant Worker’s costs of the appeal.
Bill Roche
Acting Deputy President
22 August 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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