Balfours NSW Pty Ltd v Karam
[2011] NSWWCCPD 56
•18 October 2011
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| CITATION: | Balfours NSW Pty Ltd v Karam [2011] NSWWCCPD 56 | ||||
| APPELLANT: | Balfours NSW Pty Ltd | ||||
| RESPONDENT: | Youssef Karam | ||||
| INSURER: | CGU Workers Compensation (NSW) Ltd | ||||
| FILE NUMBER: | A1-326/11 | ||||
| ARBITRATOR: | Mr G Edwards | ||||
| DATE OF ARBITRATOR’S DECISION: | 6 July 2011 | ||||
| DATE OF APPEAL DECISION: | 18 October 2011 | ||||
| SUBJECT MATTER OF DECISION: | Claim for consequential loss as a result of injuries sustained while participating in a rehabilitation program | ||||
| PRESIDENTIAL MEMBER: | President Judge Keating | ||||
| HEARING: | On the papers | ||||
| REPRESENTATION: | Appellant: | Rankin Nathan Lawyers | |||
| Respondent: | Stephen Smart & Associates | ||||
ORDERS MADE ON APPEAL: | The Arbitrator’s decision of 6 July 2011 is confirmed. The appellant employer is to pay the respondent worker’s costs of the appeal. | ||||
BACKGROUND
The respondent worker, Mr Karam, was employed by the appellant, Balfours NSW Pty Ltd (Balfours), as a labourer.
On 29 January 2005, Mr Karam was pushing a large rubbish bin when, as a result of a defective wheel on the bin, it jammed, causing Mr Karam to suffer an injury to his lower back.
Balfours accepted liability for the back injury and commenced weekly compensation.
Mr Karam made a claim for lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) for whole person impairment in respect of the lumbar spine. The quantum of the impairment was disputed and the matter was referred to Dr W Bye, an Approved Medical Specialist (AMS), to assess the degree of permanent impairment as a result of the injury to the lumbar spine. Dr Bye issued a Medical Assessment Certificate (MAC) dated 3 November 2006 certifying Mr Karam as suffering seven per cent whole person impairment. A Certificate of Determination was issued in accordance with the MAC and Mr Karam received lump sum compensation of $8,750.
Mr Karam alleges that he suffered a consequential loss as a result of an injury to his left shoulder and neck sustained while he was participating in an exercise/gym program undertaken in 2006 as part of his rehabilitation and treatment program for his back injury.
On 8 November 2010, Mr Karam’s solicitors wrote to his employer and CGU, making a claim on his behalf under s 66 and s 67 of the 1987 Act. Mr Karam claimed a lump sum of $116,000 in respect of a combined whole person impairment of 51 per cent, calculated as follows:
Cervical spine injury DRE category 4
26% whole person impairment
Thoracic spine injury DRE category 2
7% whole person impairment
Lumbosacral spine injury DRE category 4
(21% whole person impairment less 7% whole person impairment from the previous claim)14% whole person impairment
Traumatic capsulitis of the left shoulder
18% whole person impairment
The claim in respect of the lumbosacral spine was based on a deterioration of the worker’s condition during the period from the previous settlement. While it was not made clear in the letters of demand, the claims in respect of the cervical spine and the left shoulder are claimed as consequential losses arising from the treatment undertaken in respect of the accepted back injury sustained on 29 January 2005. The claim in respect of the thoracic spine injury was not pressed.
On 24 December 2010, CGU issued a notice under s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). It put the following matters in dispute:
“a.We dispute that you suffered injuries to your cervical spine, thoracic spine and left shoulder as a result of the incident on 29 January 2005.
b.We dispute that your condition has deteriorated since you were awarded lump sum compensation in 2006. Accordingly, we say that you are not entitled to further lump sum compensation in respect of your back injury.
c.We dispute that you are entitled to lump sum compensation for pain and suffering.”
CGU listed 25 particulars in support of its refusal of the claim. The notice is referred to in full at [7] of the Arbitrator’s Statement of Reasons (the Reasons).
Essentially, CGU disputed that the worker suffered any injury to the cervical spine or left shoulder and it denied that there had been any deterioration of the injury to the worker’s lumbar spine since the MAC was issued on 3 November 2006.
On 18 January 2011, Mr Karam lodged an Application to Resolve a Dispute with the Commission. With the exception of the claim for the thoracic spine injury, he claimed the lump sum compensation as detailed at [6]. He claimed that, on 29 January 2005, he injured his back in the circumstances previously described. He alleged that the injuries to the neck and left shoulder “developed later during a rehabilitation/gym program”.
The employer lodged a Reply to the Application to Resolve a Dispute on 3 February 2011. It denied liability for the reasons referred to in the s 74 notice.
The Commission listed the matter for arbitration before Arbitrator Edwards on 1 June 2011. Mr Baker of counsel appeared for Mr Karam and Ms Dulhunty appeared for Balfours. Neither side sought to call any oral evidence. Mr Karam was not cross-examined.
In a reserved decision delivered on 6 July 2011, the Arbitrator held that Mr Karam suffered injury to his neck and shoulder arising out of his employment with the respondent on 29 January 2005 as a result of participating in a gymnasium exercise program which was part of a rehabilitation and treatment program for the injury to his back. The Arbitrator made orders remitting the matter to the Registrar for referral to an Approved Medical Specialist to assess any impairment in relation to the cervical spine and left upper extremity, and any deterioration with respect to the lumbar spine as a result of injury suffered by the worker arising out of or in the course of his employment with the employer on 29 January 2005.
Balfours has appealed the Arbitrator’s decision.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (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.”
Both parties have submitted that the appeal can proceed to be determined on the basis of the documents submitted to the Commission.
Having regard to Practice Directions Nos 1 and 6, the documents that are before me, and the submissions by the parties, 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.
ISSUES ON APPEAL
The issues on appeal are whether the Arbitrator erred:
(a) in finding that Mr Karam undertook a gym program in 2006 when there was insufficient evidence to support the finding;
(b) by failing to provide reasons for preferring “the report of the GP” (which I infer is a reference to Dr Latif) over the report of the Approved Medical Specialist, Dr Bye, in relation to whether the worker suffered an injury at a gym program in 2006;
(c) by failing to address inconsistencies in the evidence regarding the circumstances of the worker’s alleged injuries to his cervical spine and left shoulder;
(d) by failing to consider the application of s 254 of the 1998 Act in terms of the timely notification to the employer of the alleged injuries to the cervical spine and left shoulder.
PRELIMINARY MATTERS
Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of s 352 of the 1998 Act.
Monetary threshold
The monetary thresholds in s 352(2) of the 1998 Act are satisfied.
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with s 352(4) of the 1998 Act.
THE EVIDENCE
Youssef Karam
Mr Karam provided a signed, undated statement of evidence. He stated that, on 29 January 2005, he was pushing a large rubbish bin when a defective wheel of the bin became jammed, as a result of which he experienced immediate severe lower back pain. He finished the shift in great pain and with difficulty. He was unable to drive and his wife collected him from work. The injury occurred on a Saturday and he was unable to seek immediate medical treatment from his doctor. The following Monday morning, his wife drove him to Dr Latif, who had been his treating general practitioner for many years.
Mr Karam stated:
“In approximately June 2005 I underwent a course of physiotherapy for approximately eight (8) weeks. Unfortunately, the physiotherapy did not ease my symptoms. I also underwent hydrotherapy and a gymnasium program, however these too were unsuccessful.”
Mr Karam stated:
“As part of the treatment plan issued by the insurer for my back injury I was required to take part in a rehabilitation/gymnasium program. I had to do repetitive upper limb strenuous pulling down movements against the resistance of heavy weights, from above my head level downward. After partaking in these activities I started feeling pain in my left shoulder and neck which radiated to my right shoulder.”
Mr Karam stated that, on 1 September 2006 and 27 October 2006, he consulted Dr Latif in relation to the pain in his neck and left shoulder. He stated that he thought that, once he had completed the rehabilitation program, the symptoms would eventually stop.
Mr Karam attempted unsuccessfully a return to work on light duties in mid-2006. He continues to suffer pain in his back, neck and shoulders, and is currently unemployed.
Other evidence
On 28 February 2006, an “occupational rehab status report number 1” was prepared and I infer submitted to CGU. The status report is not in evidence, although its existence is referred to in the report of Dr Ron Muratore of 31 January 2007. Dr Muratore is a sports physician and injury management consultant to whom the worker had been referred by CGU.
On 28 March 2006, Mr Karam was referred by his solicitors to Dr Max Ellis, a specialist independent medical examiner, for a medicolegal assessment. In a report dated 3 April 2006, Dr Ellis noted that the worker’s complaints at that time related to his lower back condition. Dr Ellis stated that the worker’s neck, shoulders and arms were not affected.
According to Dr Muratore’s report, Dr Robin Chase, whom I understand to be an occupational physician, submitted a report to CGU on 7 July 2006. There is no report from Dr Chase in evidence.
On 14 August 2006, Mr Karam was seen by Dr Grahame Mahony, an orthopaedic surgeon, on referral from his general practitioner, Dr Latif. Dr Mahony noted, among other things, “He [Mr Karam] had been treated with physiotherapy, hydrotherapy, gymnasium exercises but he had not been helped with such treatment”. The worker’s complaints at that time again related to problems with his back and left knee. He did not complain of neck, arm, upper back or right leg symptoms. Dr Mahony continued to treat the worker.
Dr Latif issued a series of WorkCover medical certificates between November 2005 and November 2010. The certificates refer to lower back injury and/or lower back injury – chronic pain – depression. The medical certificates issued by Dr Latif make no reference to an injury to the neck, arms or shoulders.
On 30 October 2006, a further “rehabilitation progress report number 4” was prepared and I infer submitted to CGU. It too is referred to in Dr Muratore’s report of 31 January 2007. The report is not in evidence.
As part of the dispute concerning Mr Karam’s initial claim for lump sum compensation in respect of his back injury, he was referred to one of the Commission’s Approved Medical Specialists, Dr W Bye. Dr Bye examined the worker on 30 October 2006. The documents provided to Dr Bye included reports from the worker’s then treating orthopaedic surgeon, Dr Geoff Rosenberg, radiology reports of Drs Schinwalla and Mackie, and reports of Dr Bhattacharyya and Dr Ellis. Dr Bye was assisted by an Arabic interpreter. Dr Bye obtained a history of injury on 29 January 2005 when a garbage bin Mr Karam was pushing locked up due to a faulty wheel, causing immediate pain in the lower back. Dr Bye noted the results of the MRI, which demonstrated desiccation at two lumbar levels, L2/3 and L4/5, and a disc bulge at L4/5. He noted that Mr Karam had submitted to an injection in the nerve root performed by Dr Mackie under CT, which did not assist. He stated:
“He then underwent a gym-based exercise program, which also did not relieve his pain. During this time he continued to experience low backache, restriction of back movements and left thigh pain.”
After noting the physical findings with respect to the lumbar spine, Dr Bye noted:
“I did assess the upper limbs and noted that he had normal range of neck movement, with no pain experienced, full range of all upper limb joint movements. There was no sensory disturbance, normal power and brachial plexus tension test was negative, as was the Tinel sign at both the ulnar canal in the elbow and the ulnar tunnel region at the wrist and, as for the lower limb, the reflexes were difficult to elicit but seemed symmetrical on reinforcement.”
Dr Bye added:
“The Arbitrator has asked me to assess both upper limbs and I note that there is a report that this man has bilateral carpal tunnel syndrome. I might point out that, on several occasions, I asked Mr Karam if he had any pain or sensory disturbance in the upper limbs and he denied this and I checked this with the interpreter. I found no evidence to corroborate any diagnosis of bilateral carpal tunnel syndrome.”
Dr Bye assessed seven per cent whole person impairment with respect to the lumbar spine, but found no evidence of upper extremity impairment.
On 30 November 2006, a rehabilitation “closure report” from Quality Occupational Health was submitted to CGU. The report is also referred to in Dr Muratore’s report. The closure report is not in evidence.
On 31 January 2007, Mr Karam was assessed by Dr Muratore. His report refers to a number of documents that pertain to the worker’s rehabilitation and treatment, including the Quality Occupational Health report that are not in evidence. Dr Muratore noted:
“He was subsequently referred to Dr Ron Lawford, who recommended physiotherapy and Mr Karam attended for 10 sessions and this made no difference to his symptoms. He attempted a gym-based exercise program for approximately six weeks, also making no difference to his symptoms …”
Dr Muratore recorded Mr Karam’s current symptoms with respect to the injury to his back, adding the following comment in relation to his complaints of shoulder pain:
“In the last few months he has developed pain in the left shoulder, with numbness in the left arm especially severe in the ring and little finger. He has no history of neck injuries and was not working when these symptoms commenced.”
Dr Muratore noted on examination localised pain to the left shoulder and over the lumbar spine from L1 to L5. He recorded the findings with respect to the examination of the neck as follows:
“He had poor posture, with a poked cervical spine. He reported tenderness globally and was restricted in his range of movement in rotation, flexion and extension. Extension was accompanied by pain. There was no neural tension signs [sic] in the upper limbs and he has no wasting of any upper limb muscle group. He exhibited global weakness in all muscle groups in the left upper limb. Reflexes were present and equal bilaterally.”
Mr Karam was reviewed by Dr Mahony on 9 February 2007. Dr Mahony recorded complaints of pain in the back, radiating to the left knee, and numbness in the left thigh. He did not record any complaints of neck symptoms. The report of the examination on 9 February is very brief.
Dr Mahony next reviewed the worker on 9 March 2007. On that occasion, in addition to the continuing complaints of lower back pain, he complained of pain in his neck and left shoulder. Dr Mahony noted that the epidural injection of steroid which he had recommended in August 2006 had not proceeded, as CGU had not approved the cost. Dr Mahony noted that flexion of the neck was restricted in extremes, and that the examination was restricted by reason of the worker’s guarding of the neck. He noted shoulder movements were also restricted in extremes of elevation, but remaining movements were within normal limits. He ordered an x-ray and ultrasound of the shoulder.
On 18 April 2007, Mr Karam was assessed by Dr Albert Bencsik, an orthopaedic surgeon, at the request of CGU. Dr Bencsik obtained a history that, on 29 January 2005:
“a wheeled barrow which he [Mr Karam] had cleaned had jammed wheels. As he attempted to push it he states that this caused back pain in the lower lumbar area on the left side with pain radiating down the left leg as far as the left knee.”
Under the heading “Subsequent progress”, Dr Bencsik noted:
“Nine or 10 months post-accident, he was referred for a gymnasium program which he stated gave him a little benefit but did not alleviate his pain.”
Dr Bencsik recorded the worker’s social history, his treatment, past medical history and the details of his findings on examination and radiological findings. Dr Bencsik recorded the worker’s complaints of severe back pain, referring to the left buttock and leg as far as the knee. He concluded that the worker suffered an aggravation of degenerative changes in his lumbar spine. Dr Bencsik did not record any complaints of pain in the neck or shoulder.
Mr Karam was reviewed by Dr Mahony on 7 March 2008. The worker’s complaints at that time included pain in the lower back radiating to the left knee and constant numbness in the left thigh. He also complained of pain in his neck and left shoulder.
On 28 August 2008, Peter McMullan, a physiotherapist, completed an “Initial Peak Conditioning Upgrading Program Assessment”. The report commented upon the conditioning goals, barriers, strategies and timeframes. Under the heading “Injury details”, Mr McMullan noted:
“Mr Youssef Karam presented with low back pain radiating into the front of his right leg. He also states that he has pain over the left shoulder radiating into his left hand. He states the pain is severe and has been since the date of injury however it has increased in the last six months. He injured his back while working as a cleaner/handyman. He trialled a return to work on light duties but was unable to continue.”
Mr Karam was reviewed again by Dr Mahony on 8 December 2008. He continued to complain of pain in the back, knee, neck and left shoulder, and numbness in the left thigh. Dr Mahony advised physiotherapy and remedial massage, and advised against participating in a gymnasium program.
Mr Karam was reviewed by Dr Ellis on 14 August 2009 at the request of his solicitors. In addition to the persisting complaints in respect of the back injury, Dr Ellis noted the worker’s complaint of neck pain commencing in the last two years. He noted that the neck pain spread to both shoulders and arms, particularly on the left side. He also noted complaints of paraesthesia in the hands. Dr Ellis diagnosed soft tissue injuries and an aggravation of degenerative changes in the cervical spine. He expressed the view that it is not uncommon for a strain of the cervical discs to result from the loss of alignment, balance and muscle spasm at the lower lumbar level He assessed 25 per cent whole person impairment, which included 15 per cent whole person impairment for the cervical spine.
On 26 August 2009, Dr Kitchener performed the MRI of the cervical spine and left shoulder. His findings were:
“1.There is a central disc protrusion at C3/4 with a minor associated retrolisthesis on C3 and C4.
2. Small disc bulge at C6/7.”
In respect of the left shoulder, he reported:
“There is a small full thickness tear of the distal supraspinatus tendon just before the insertion.”
On 24 September 2009, Dr Ellis prepared a further report in response to the recent MRI. He agreed with Dr Kitchener’s diagnosis and revised his whole person impairment assessment to 29 per cent.
On 24 November 2009, Dr Mahony prepared a report to Mr Karam’s solicitors. He diagnosed a cervical strain with nerve root irritation radiating to the left shoulder, and evidence of a discogenic lesion at C3/4, with retrolisthesis of C3 on C4. He also diagnosed a disc lesion at C6/7. With respect to the left shoulder, he diagnosed a full thickness tear of the supraspinatus tendon. He assessed 55 per cent whole person impairment.
Dr Latif prepared a report dated 21 September 2010. He stated:
“I reviewed my records in relation to his neck and left shoulder complaints and found that he first presented complaining of left shoulder pain on 1 September 2006. He later presented with neck pain problem on 27 October 2006. Mr Karam continued to complain of pain in both areas and limited shoulder movements since that time.”
Dr Latif added:
“Mr Karam believes that the pain in his neck and right shoulder was the result of the heavy physical exercises which he had to do as part of his rehabilitation program after the low back injury. He mentioned that he had to do repetitive upper limbs strenuous pulling down movements against the resistance of heavy weights, from above the head level downwards. After that particular exercise he started to feel pain around the back of the neck and radiating into the right shoulder.
Mr Karam has not been involved in any sports, accidents, injuries or manual strain work since the time of his lower back injury. He has been very sedentary and limited with his daily activities since he stopped work as a result of a lower back injury in 2005. He denies any past history of neck or shoulder injuries or strain prior to the lower back injury in 2005.”
Dr Latif concluded:
“In the absence of history of any injuries or strain to the neck or the left shoulder whether before or after the injury which happened at work in 2005, apart from the strenuous exercises during his rehabilitation treatment for the lower back injury, I consider that the strenuous physical exercise described above could be the cause of this patient’s neck chronic musculo–skeletal strain injury and also the cause of the left rotator cuff tear.”
On 14 December 2010, Mr Karam was assessed by Dr Peter Isbister at the request of CGU. He noted that, some two years after the original injury, Mr Karam began to suffer from shoulder and neck problems, adding, “Mr Karam wonders whether the physiotherapy may have contributed to these symptoms”. Dr Isbister reported continuing complaints of neck and back pain. Dr Isbister concluded that there was radiological evidence of pre-existing degenerative changes which had been asymptomatic until the worker suffered injury on 29 January 2005. This he found was consistent with the injury and had resulted in permanent impairment and non-verifiable radiculopathy. He assessed seven per cent whole person impairment.
DISCUSSION AND FINDINGS
Were the Arbitrator’s reasons for finding that the worker participated in a gymnasium program adequate?
Balfours submits that the Arbitrator erred in finding that Mr Karam undertook a gym program in 2006. It alleges there was insufficient evidence for such a finding. Balfours submits that the onus of proof on this issue is on the worker. It submits that, although the Arbitrator stated that there was evidence that the worker had participated in rehabilitation in 2006, he did not refer to any evidence to support a finding that the rehabilitation included participation in a gym program.
Balfours further submits that the worker has not produced any evidence to substantiate the claim that he participated in a gym program at the request of the insurer during 2006. Balfours states that, at the worker’s request, it has provided copies of all documents relating to rehabilitation and any gym programs. These documents fail to confirm the worker’s participation in a gym program in 2006. Balfours submits that the Arbitrator did not have before him any evidence to support the conclusion that the rehabilitation involved a gym program.
The failure to provide adequate reasons constitutes an error of law and may be a ground to set aside an Arbitrator’s decision. Arbitrators have a statutory and common law obligation to provide adequate reasons for their decisions (s 294(2) of the 1998 Act; Pt 15 r 6 of the Workers Compensation Rules 2011 (the Rules); Absolon v NSW TAFE [1999] NSWCA 311 (Absolon)).
To succeed in having the decision set aside on this ground, the appellant must demonstrate not only that the reasons are inadequate, but that their inadequacy discloses that the Arbitrator has failed to exercise his or her statutory duty to fairly and lawfully determine the application (YG & GG v Minister for Community Services [2002] NSWCA 247; Absolon; ADCO Constructions Pty Ltd v Ferguson [2003] NSWWCCPD 21).
The standard by which the adequacy of reasons must be determined is relative to the nature of the decision itself and the decision-maker (Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSWWCCPD 6). An Arbitrator’s reasons should be read as a whole and it is not for a Presidential member on appeal to comb through the Arbitrator’s findings and reasons in search of error (Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 at 444; Minister for Immigration and Multicultural Affairs v Wu [1996] HCA 6; 185 CLR 259). It is not necessary for an Arbitrator to refer to every piece of evidence (Yates Property Corporation Pty Ltd (in liq) v Darling Harbour Authority (1991) 24 NSWLR 156 (Yates); Ainger v Coffs Harbour City Council [2005] NSWCA 424).
The reasons given by the Arbitrator in support of his finding that the worker undertook a gym exercise program are:
(a) The worker’s complaint to Dr Latif on 1 September 2006 (that he was suffering left shoulder pain) (Reasons at [20]);
(b) His complaint to Dr Latif on 27 October 2006 (of neck pain) (Reasons at [20]);
(c) The worker’s complaints to Dr Mahony on 14 August 2006 (wrongly referred to by the Arbitrator at [20] of the Reasons as 9 February 2009) that he had engaged in gymnasium exercises (Reasons at [20]);
(d) The worker’s complaints to Dr Bye, the AMS, on 3 November 2006, where he again referred to his involvement in a “gym-based exercise program”(Reasons at [20]);
(e) The inference drawn by the Arbitrator based on the report of Dr Muratore, which indicated that there had been a number of rehabilitation progress reports prepared relating to the worker (Reasons at [21]);
(f) The history obtained by Dr Muratore that the worker reported to him “he attempted a gym-based exercise program for approximately six weeks”(Reasons at [21]);
(g) The history obtained by Dr Bencsik that the worker reported to him also that he had engaged in a “gymnasium program” that occurred “nine or 10 months post-accident” (Reasons at [21]);
(h) Dr Latif’s opinion, supported by recent radiological evidence, of injuries to the neck and shoulder, which he considered could result from the strenuous physical exercise undertaken during the course of the worker’s rehabilitation program for the lower back injury (Reasons at [31]–[32]).
Balfours submits that the worker was unable to provide evidence that he was required to participate in a gym program at the request of CGU during 2006. Whether the worker participated in a gym program at the request of the insurer is not determinative. What the worker was required to establish was that he in fact participated in the program as part of his rehabilitation as a result of his back injury and, in doing so, suffered an injury. It did not matter that his participation in the gymnasium program was at the request of the insurer or on the advice of his treating doctors.
Balfours submits that, at the request of the worker, it provided copies of all documents relating to the worker’s rehabilitation and any gym programs, and these documents fail to reveal any evidence that the worker participated in a gymnasium program during 2006. The documents attached to the Application to Admit Late Documents dated 12 April 2011 relate to the worker’s participation in a rehabilitation program by “Peak Conditioning” in 2008. I note that the report of Dr Muratore demonstrates that the worker engaged in a rehabilitation program during 2006 with an organisation known as “Quality Occupational Health”; however, no documents were produced from that organisation concerning the worker’s rehabilitation during 2006.
The absence of records to corroborate the worker’s participation in a gymnasium program in 2006 is a relevant factor. However, for the reasons given by the Arbitrator (summarised at [60] of this decision) and the strong inference to be drawn form the report of Dr Muratore that the worker engaged in a rehabilitation program conducted by Quality Occupational Rehabilitation in 2006, the weight of evidence supported the Arbitrator’s finding that the worker did participate in a gymnasium program in 2006.
The reasons disclosed by the Arbitrator are more than adequate to support the finding that the worker’s participation in a rehabilitation program in 2006 included his participation at that time in a gymnasium program. The submission that there is no evidence to support such a finding is completely unfounded.
Were the Arbitrator’s reasons for finding the worker sustained an injury while participating in the gymnasium program adequate?
Balfours submits that the Arbitrator failed to provide reasons “for preferring the report of the GP over the report of the Approved Medical Specialist, Dr Bye” in relation to the issue of whether the respondent worker suffered an injury at the gym program in 2006.
Balfours submits that, when the worker was examined by Dr Bye on 3 November 2006, two months after allegedly reporting left shoulder pain to Dr Latif and just one week after he allegedly reported neck pain to Dr Latif, the worker told Dr Bye that he had undertaken a gym-based exercise program, but did not say that the gym program increased his pain or caused any other injuries. Mr Karam denied any pain or sensory disturbance in the upper limbs and Dr Bye noted a full range of neck and upper limb movement. Balfours submits that, although Dr Bye was looking for evidence of carpal tunnel syndrome at that time, it is clear that he undertook a thorough examination of the worker’s neck and shoulders. Balfours submits that the Arbitrator did not address the fact that Dr Bye failed to find any impairment of the neck or shoulders at this assessment.
Balfours submits that the MAC issued by Dr Bye in 2006 does not support the worker’s allegations but, on the contrary, indicates that, as of November 2006, after he had undertaken the gym program, he did not complain of pain in the upper limbs, despite being specifically asked about it by Dr Bye. Balfours submits that the Arbitrator, in determining whether the worker suffered injury in 2006 at a gym program, considered various reports from 2007 to 2010 and, after considering these reports, preferred the opinion of Dr Latif. Balfours submits that the Arbitrator gave no explanation for favouring the report of Dr Latif over Dr Bye.
Balfours submits that the Arbitrator erred in failing to give sufficient reasons for preferring the report of Dr Latif over that of Dr Bye (ING Administration Pty Ltd v Singh [2008] NSWWCCPD 48 (Singh)).
Although Balfours cites Singh in support of its case, no submissions were made in terms of the specific application of that authority to the issues on appeal. The error found in Singh was the Arbitrator’s failure to properly analyse a significant body of evidence to determine the factual issues in dispute. The Arbitrator failed to weigh the evidence or provide any reasons in support of his conclusions.
I do not accept the premise which underlies the submission made by Balfours, namely, that the Arbitrator preferred Dr Latif’s evidence over that of Dr Bye. Mr Karam only relies on Dr Bye’s evidence to the extent that it records, at the relevant time, a history of him having undertaken a gym-based exercise program. His examination took place on 30 October 2006, not 3 November 2006 as submitted, although the MAC was issued on 3 November 2006, which, if anything, strengthens the submission made by Balfours. However, Mr Karam was seeing Dr Bye as an Approved Medical Specialist for a determination of the dispute in relation to the quantum of his whole person impairment related to the accepted back injury. It was not Dr Bye’s task to examine him or provide any opinion or assessment in relation to the alleged injuries to his neck and shoulder. Dr Bye’s examination of the worker’s upper limbs was for the purpose of determining whether he was suffering from carpal tunnel syndrome.
The Arbitrator gave clear reasons at [36] of the Reasons for the significant weight that he attached to the opinion of Dr Latif, namely, that Dr Latif had been the worker’s treating doctor for over 20 years. He has been treating him continuously for his lumbar spine since he was first injured in 2005. Dr Latif obtained a contemporaneous history of the injuries to the neck and shoulder. The doctor had regard to the radiological evidence and excluded any other potential causes of the injury to his neck and shoulder. Citing Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 (at 509–510), the Arbitrator accepted that this represented a fair climate for the acceptance of Dr Latif’s opinion that the strenuous physical exercise the worker described could have caused the injury to the worker’s neck and left shoulder.
At [29]–[35], the Arbitrator weighed the evidence, in so far as it was relevant to the injuries to the neck and shoulder, of Drs Mahony, Isbister, Muratore and Bencsik. Neither Dr Mahony nor Dr Ibister offered any opinion as to the causation of the worker’s neck and left shoulder condition. Dr Muratore confined his comments to the lumbar spine, as did Dr Bencsik.
I am satisfied that the Arbitrator provided clear, logical and compelling reasons for the weight he attached to the opinion of Dr Latif.
The Arbitrator’s assessment of inconsistencies in the evidence
Ground three of the appeal by Balfours alleges that the Arbitrator failed to address inconsistencies in the evidence concerning the alleged injury to the neck and left shoulder. Balfours submits that Dr Latif’s report dated 25 June 2007, which was more than six months after the worker began to complain of left shoulder and neck pain, made no mention of the left shoulder or neck pain at that time, and medical certificates make no reference to the shoulder and neck. Balfours submits that this is an inconsistency in Dr Latif’s evidence that was not addressed by the Arbitrator.
Dr Latif’s report of 25 June 2007 was written in response to a letter from CGU, and appears to respond to a series of questions, such as, “History of injury”, “Past history of similar conditions, previous injuries and pre-existing conditions”, “symptoms on first presentation” and a series of other questions concerning findings on examination, radiological investigations, specialist referral, and so on.
The questions do not differentiate between the worker’s lower back injury and the consequential injury to his neck and shoulder. It is apparent that the doctor responded to the request in so far as it concerned the worker’s lower back condition.
Dr Latif’s report to Mr Karam’s solicitors in September 2010, on the other hand, specifically addressed the causation of the injuries to his neck and left shoulder. For the reasons stated at [71], he clearly expressed the view that the worker’s injuries to his neck and shoulder, in the absence of any other potential cause, could have been caused by the participation in the rehabilitation program.
Given that Dr Latif, in the two reports, appears to be addressing only issues that had been put to him for comment, I do not accept that they are inconsistent. The alleged inconsistency now argued on appeal was not argued before the Arbitrator. I reject the submission that the Arbitrator erred by failing to resolve any alleged inconsistency in the evidence of Dr Latif.
Balfours further submits that the Arbitrator erred in failing to deal with an alleged inconsistency disclosed in the reports of Peak Conditioning. Balfours submits that the worker provided a history to Peak Conditioning of having suffered the injury to his left shoulder at the same time as the injury to his back. It notes that there is no report of neck injury in the Peak Conditioning histories. Balfours alleges that these are inconsistencies between the statements made to Peak Conditioning and the worker’s evidence. This, coupled with the fact that Dr Bye did not report any neck or shoulder pain, are inconsistencies which were not addressed by the Arbitrator.
The alleged inconsistencies were not matters that were raised before the Arbitrator. The failure to address a matter that was not raised before the Arbitrator as an identifiable issue is not a matter in respect of which an error in point of law can be identified (Brambles Industries Ltd v Bell [2010] NSWCA 162; 8 DDCR 111). Although the circumstances in which the worker suffered injuries to his left shoulder and neck were in issue before the Arbitrator, it had never been suggested prior to the submissions on appeal that the worker claimed to have sustained injuries to his left shoulder and neck as a result of the injury on 29 January 2005. The failure to put that proposition during the course of the proceedings before the Arbitrator denied the worker the opportunity to answer that allegation or to comment upon the history obtained in the Peak Conditioning reports.
Moreover, the history obtained by Peak Conditioning is at odds with the history given by the worker in his evidence, and with the histories recorded by Drs Latif, Bye, Muratore, Mahony and Isbister. Mr Karam’s language difficulties were identified as an issue by Peak Conditioning in terms of his returning to the workforce. Whether he was assisted by an interpreter in the course of his initial assessment by Peak Conditioning is not known, but it seems to me extremely unlikely that the history obtained by Peak Conditioning is accurate. For these reasons the Arbitrators failure to refer to the history recorded by Peak Conditioning is of no consequence.
Balfours submits that the failure by Dr Bye to record complaints of neck or shoulder pain at the time of his assessment, despite the fact that the worker was making complaints of neck and shoulder pain by that time, is an inconsistency the Arbitrator failed to address. While I accept that the Arbitrator did not address the alleged inconsistency in terms, he did note (at [16] of the Reasons) that Dr Bye examined the upper extremities and, despite being asked several times by Dr Bye, through an interpreter, the applicant denied any pain or sensory disturbance in the upper limbs. The Arbitrator is required to explain his reasons for preferring one piece of evidence over another where they conflict. However, this is not a case of conflicting medical evidence. Dr Bye was charged with the responsibility of assessing the condition with respect to the worker’s back. He was not required to undertake an assessment of the worker’s neck or arms, except to the extent to determine whether or not he was suffering from carpal tunnel syndrome. Moreover, the Arbitrator was not required to refer to every piece of the evidence to indicate which evidence is accepted or rejected.(Mifsud v Campbell (1991) 21 NSWLR 725; Wiki v Atlantis Relocations (NSW) Pty Ltd [2004] NSWCA 174; 1 DDCR 554; 60 NSWLR 127; Minister for Immigration and Multicultural Affairs v Wu [1996] HCA 6; 185 CLR 259; BHP Steel (AIS) Pty Ltd v Barbour [2004] NSWWCCPD 75)
It is submitted that the Arbitrator also erred concerning his assessment of Dr Bencsik’s evidence. It is alleged that he “overlooked a significant part of Dr Bencsik’s report of 18 April 2007”. Particular reference is made to the history obtained by Dr Bencsik, which confirmed that, nine or 10 months post-accident, the worker was referred to a gymnasium program, “which he stated gave him a little benefit but did not alleviate his pain”. It is submitted that this evidence is inconsistent with a finding that the gym program to which Dr Bensick referred had caused neck or shoulder problems. Instead, Balfours submits that “an accurate reading of Dr Bencsik’s report would be that any gym program undertaken prior to his assessment in 2007 improved the worker’s condition”. Dr Bencsik’s report was concerned entirely with the worker’s back and leg complaints. The reference in his report to the gym program providing the worker relief is in that context. Apart from corroborating the worker’s participation in a gym program, the Arbitrator was correct to find that Dr Bencsik’s evidence provided no assistance on the question of causation of the neck and left shoulder injury as it was silent on that issue. It follows that this submission is rejected.
Notice of injury/claim
Balfours submits that the Arbitrator erred in failing to consider the application of ss 254 and 261 of the 1998 Act. Section 254(1) provides that neither compensation nor workplace injury damages are recoverable by an injured worker unless notice of injury is given to the employer as soon as possible after the injury happened and before the worker has voluntarily left the employment in which the worker was at the time of injury.
Section 261 of the 1998 Act provides:
“(1) Compensation cannot be recovered unless a claim for the compensation has been made within 6 months after the injury or accident happened or, in the case of death, within 6 months after the date of death.”
Balfours merely submits that the Arbitrator erred in failing to consider these sections when they were specifically raised by the s 74 notice.
Failure to comply with s 254 and s 261 of the 1998 Act was not argued before the Arbitrator. Mr Karam submits that Balfours abandoned reliance on s 254 and s 261 of the 1998 Act at the arbitration hearing. He submitted that the abandonment of those defences was not recorded on the transcript of the proceedings, but it occurred during the unrecorded conciliation phase.
Mr Karam submits that counsel for Balfours did not refer to any of these provisions during submissions. There is an oblique reference to s 254 at T22.40 in reference to the absence of any mention of the neck and shoulder complaints on the WorkCover certificates.
In confirmation of Mr Karam’s submissions, I note that, at [8] of the Reasons, the Arbitrator said:
“The issue raised by the respondent in the s 74 notice that the claim in respect to the injury to the neck and left shoulder was not duly made and within the time limit prescribed by the relevant sections in the 1998 Act was not relied upon at the arbitration hearing.”
The Arbitrator set out the issues in dispute that required his determination at T2.47, namely, that the issue for determination concerned the causation of the claim for lump sum compensation in respect of the cervical spine and left upper extremity. Counsel for Balfours did not raise any objection to the formulation of the issues and certainly did not indicate that the defences under ss 254 and 261 were pressed.
After the appeal was filed, the Commission made a series of directions issued by the Registrar’s delegate on 5 November 2011. The directions included, among other things, a direction that Balfours was to lodge with the Commission and serve on the respondents to the appeal any submissions in reply, if required, by 30 September 2011. No submissions in reply were received by the Commission. I infer from the absence of any submissions in reply that Balfours does not dispute Mr Karam’s submission that the relevant defences were abandoned. In the circumstances, this ground of appeal cannot succeed.
CONCLUSION
For the reasons given, the Arbitrator’s finding that the worker participated in a gymnasium exercise program, being part of a rehabilitation and treatment program for his lower back injury, discloses no error.
The Arbitrator’s conclusion that the worker suffered injury to his neck and left shoulder while participating in the rehabilitation program was open on the evidence and disclosed no error.
OTHER MATTERS
If I am wrong in concluding that the Arbitrator’s findings disclose no error, there is another basis for concluding that the worker’s application should succeed, namely, the opinion of Dr Ellis that it is not uncommon for a strain of the cervical discs to result from muscle spasm and the loss of alignment and balance at the lower lumbar level. However, that issue was not argued before the Arbitrator and I do not base my decision on it.
DECISION
The Arbitrator’s decision of 6 July 2011 is confirmed.
COSTS
The appellant employer is to pay the respondent worker’s costs of the appeal.
Judge Keating
President
18 October 2011
I, MARGOT UNDERCLIFFE, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JUDGE KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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