Bhutta v RailCorp NSW - [2010] NSWWCCPD 108

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Bhutta v RailCorp NSW [2010] NSWWCCPD 108
APPELLANT:		Afzal Bhutta
RESPONDENT:		RailCorp NSW
INSURER:		Self-insured
FILE NUMBER:		A1-377/10
ARBITRATOR:	Ms E Grotte
DATE OF ARBITRATOR’S DECISION:		21 April 2010
DATE OF APPEAL DECISION:		7 October 2010
SUBJECT MATTER OF DECISION:		Causation; effects of head injury; role of AMS; incapacity; weekly payments.
PRESIDENTIAL MEMBER:		Acting Deputy President Anthony Candy
HEARING:		On the papers.
REPRESENTATION:		Appellant:	Law Partners Solicitors & Barristers
Respondent:		Sparke Helmore Lawyers
ORDERS MADE ON APPEAL:		The decision of the Arbitrator dated 21 April 2010 is confirmed.
Each party is to pay his or its own costs of the appeal.

BACKGROUND TO THE APPEAL

Afzal Bhutta (‘the worker’) was a train cleaner employed by RailCorp NSW (‘RailCorp’). On 16 August 2007 shortly after 1 pm while carrying out his duties on a moving double-decker train he fell backwards down a number of steps leading from the upper deck. An ambulance was called and the worker was taken from Central Station to St Vincent’s Hospital where he was X-rayed and observed for a number of hours. A doctor at that hospital, Dr Mobbs, gave the worker a certificate of unfitness for work up to 20 August 2007 because of a soft tissue injury to his lower back and headache. On the latter date the worker obtained a further certificate of unfitness from a general practitioner, Dr Qidwai, whom he had consulted since his regular doctor, Dr Vago, was away. However, the worker did see Dr Vago on 3 September 2007 and from that time Dr Vago has furnished him with medical certificates as to his unfitness for work because of head, back and neck injuries. The worker has not returned to any employment since his injury.
RailCorp paid workers compensation to the worker on a provisional basis until 16 October 2007 when it gave the worker notice that it denied further liability to make payments because of the opinion of an orthopaedic surgeon, Dr Stephen, who had seen the worker on 4 October 2007.
Dr Vago referred the worker to an orthopaedic surgeon, Dr Grahame Mahony, who first saw the worker on 15 April 2008 and has continued to see him.
The worker first complained of a buzzing noise in his left ear to Dr Vago on 16 October 2008. The worker was then referred by Dr Vago to an audiologist, Ms Ngo, who carried out an audiological assessment on 10 December 2008 and found severe asymmetrical hearing loss. The worker’s solicitors referred him to an Ear Nose and Throat Specialist, Dr Scoppa, who examined him on 2 April 2009. Dr Scoppa assessed binaural hearing impairment of 8.7 per cent.
An Application to Resolve a Dispute (‘Application’) was lodged by the worker’s former solicitors on 14 January 2008, matter number153/08, which sought weekly payments only from 16 October 2007. The relevant injury was described as “Head, Neck, Back”. Those proceedings were discontinued. A further Application, matter number 5011/09, was issued on 29 June 2009 claiming weekly and permanent impairment compensation including a claim in respect of binaural hearing loss. It is unclear what happened in those proceedings although it may be assumed they were not taken to completion. Essentially the same claim for compensation has been made in these current proceedings, although in a much greater sum for permanent impairment pursuant to s 66 of the Workers Compensation Act 1987 (‘the 1987 Act’). Dr Mahony had increased his assessment of 22 per cent whole person impairment, made on 4 June 2008, to 47 per cent on 22 September 2009.
In the current Application weekly compensation was sought from 17 October 2007 at the rate of $767.16 per week, the worker’s current weekly wage rate, for the balance of the initial 26 week period of total incapacity not yet paid with an award at the statutory maximum thereafter pursuant to ss 36 and 37 of the 1987 Act. Additional compensation was claimed under ss 66 and 67 of the same Act based on the assessments of Drs Mahony and Scoppa.
The Application was referred to a Commission Arbitrator (‘the Arbitrator’) before whom the matter was set down for arbitration on 23 March 2010. On that day agreement was reached on certain aspects of the claim although other issues remained which were dealt with by counsel three days later. The Arbitrator reserved her decision which was given on 21 April 2010. It is not necessary, I think, to set out the Arbitrator’s decision in full as recorded in the Certificate of Determination. In summary, she found that the claimed hearing loss, tinnitus and dizziness did not result from the injury of 16 August 2007. She noted that claims in respect of the thoracic spine, right arm and left leg were discontinued. She entered an award in the worker’s favour for weekly compensation pursuant to s 40 of the 1987 Act at the rate of $167.60 per week from 17 October 2007 and she remitted the permanent impairment dispute in respect of the worker’s cervical and lumbar spines to the Registrar for referral to an Approved Medical Specialist (‘AMS’). The assessment by the AMS has not taken place as the worker did not attend an initial appointment arranged with that doctor and later sought that the examination be deferred until the determination of this appeal.

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.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the parties 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.

LEAVE

Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of s 352 of the 1998 Act.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with s 352(4) of the 1998 Act and RailCorp does not dispute that the monetary threshold prescribed in s 352(2) is met. Accordingly, leave to appeal is granted.

EVIDENCE

The Worker’s Evidence

The worker relied on his statement of 14 January 2010. However, RailCorp attached to its Reply filed in the proceedings three earlier statements of the worker to which it is convenient to refer here.
In his statement of 7 January 2008 the worker said that he was employed by RailCorp as a carriage cleaner in 2001. On 16 August 2007 at approximately 1 pm he was travelling on a train which was heading towards the city from Strathfield. He had fallen backwards from the stairs at the top floor onto the ground floor of the carriage and had lost consciousness. Two fellow workers came to his assistance, an ambulance was called and he was taken to hospital. When he regained consciousness he had severe pain in his neck, back and head and had abrasions on his back. He listed the following injuries and disabilities which he said were as a result of the fall, namely:
·     Injury to back;
·     Injury to neck;
·     Pain and stiffness in back;
·     Pain and stiffness in neck;
·     Radiation of back pain into right leg;
·     Increased headaches;
·     Sleep disturbance; and
·     Cannot sit or stand for long periods at a time due to extreme pain.
On 15 June 2009 the worker described the noisy work which he had carried out for RailCorp at its Mortdale Depot between 2001 and 2003. Since the fall he had experienced hearing loss and “different ringing sounds in [his] left and right ears”. A greatly increased list of disabilities was claimed in this statement including dizziness as well as nasal symptoms. He was depressed and anxious and had difficulty sleeping because of pain in his lower back, head and neck. He said he needed to lie down and rest every several hours.
On 16 August 2009 the worker referred to the medical treatment which he had received, including physiotherapy, hydrotherapy, remedial massage and pain medication. However because of the decision by RailCorp to deny liability he had been unable to afford regular treatment and had to limit his visits to specialists and other practitioners. At that time he was in receipt of a disability pension which he said was not sufficient to enable him to pay for the treatment which he required. The performance of domestic duties had aggravated his condition.
In the statement relied on by the worker in these proceedings, he said he had been born in Pakistan in 1956 and had travelled to Canada on a student visa in 1988 but came to Australia the following year. He had obtained permanent residence in 1993 and became a citizen in 1995. He enrolled in a course in International Relations at the University of New South Wales and graduated in 1998. He had applied for many jobs unsuccessfully and did some factory work for a short period before he started work for RailCorp. He had been medically examined prior to starting work with RailCorp and was certified fit to carry out Category 3 employment. He became a team leader with approximately 10 to 15 staff in his team and he described his duties in that position.
The worker related experiencing harassment at work because of his appearance and he had sought psychiatric treatment. This does not form any part of the current claim. The worker then related the events of 16 August 2007 and that he had become unconscious and dizzy and did not remember what had happened for a little while after the fall. When he regained consciousness he saw a co-worker and passengers on the train who had come to his assistance. The ambulance officers had put his neck in a brace. He said he felt severe pain in his head, right side of his neck and his low back and experienced some numbness in his two little fingers, especially the right, which he said he still had. He was fuzzy in the head and there was ringing in his ears. He described his treatment at St Vincent’s Hospital and also by Drs Qidwai and Vago. He had not obtained any benefit from physiotherapy. He complained that Dr Stephen who examined him for Railcorp had been rude, had questioned him about (? the need for) the interpreter who had been sent to the examination and was insensitive in pulling him around and giving him orders.
He had pain in his middle back and lower back with the latter being worse. He had pain in his right buttock to just above the knee. He listed the various medications and ointments which he used. The pain was worse during the day but at night he had spasms in his back which interfered with his sleep. He woke with a severe headache and had pain and numbness in his legs and foot [sic]. The pain in the back of his head moved to his right shoulder and he had numbness in his two little fingers. Sometimes he had bleeding which he attributed to taking so much medication.
He also complained of feeling light-headed if he did not lie down after a few hours of activity. He needed to rest every several hours. He had pain on lifting and bending and could not walk much without making his pain worse. He attended an examination at HealthQuest organised by RailCorp and his employment had been terminated on medical grounds on 9 December 2008. Since his fall he said he continued to experience hearing loss and different ringing sounds in his left and right ears. He had dizziness and chronic headaches. He noticed increased pain in his neck between his shoulder blades when he turned his head and still had pain in his arms. He complained of pain in both legs with the pain in the right being more frequent but the pain in the left being more severe. He was unable to sit or drive for long distances and wore a belt to provide support to his back. When his pain was severe, once a week, he used a walking stick.
The ambulance records show that the worker was conveyed from Central Station to St Vincent’s Hospital and that a call was made for that ambulance at 1:09 pm. These contain the usual shorthand expressions which I have endeavoured to translate and the relevant part is as follows:
“Nil past medical history. On arrival .R16 [ambulance number] on scene. patient states patient was walking upstairs on a train fell back ? loss of consciousness. On examination alert, orientated, well perfused nil shortage of breath. Patient complains of headache, neck pain and lumbar pain post fall, complains of numbness to right hand and fingers, nil motor or sensory loss. [illegible] No other deficits complained of or found. Patient complained of feel dizzy and nauseous after fall, given Maxalon intravenously and oxygen therapy. Nil other injuries or deficits complained of or found. Patient transported for further treatment.”
The St Vincent’s Hospital initial nursing assessment data at 2.21 pm was as follows:
“Walking upstairs inside train, fell backwards down stairs, not witnessed,? loss of consciousness, denies dizziness, pre-event, but dizzy post event. Complains of headache, neck pain, and lumbar pain, neck pain on palpation at scene – collar, pearl
Glasgow Coma Scale 15, IVC – 10mg Maxalon, no known drug allergies, nil history. “
He was to be investigated with lumbar X-rays and a CT scan of his head however he refused to undergo the CT scan and this was not carried out. The progress notes signed by Dr Mobbs record that the worker had a questionable loss of consciousness to which “unwitnessed” has been added in brackets. The worker was said to be amnesic for the event and complained of lower back and right-sided neck pain. The doctor found the worker to be “alert, orientated, calm and lying supine”. The doctor has recorded in his examination of the worker’s head “NAD” which I take to mean no abnormality detected. A similar entry is made in respect of the chest, abdomen, pelvis, and lower limbs. In respect of the worker’s neck the doctor has written: “Non tender, cleared clinically” and in respect of the worker’s upper limbs “Slight discomfort dorsum right hand nil swelling/erythema”. However the doctor has recorded an abrasion over L3 and tenderness of L2 to L4 and sacrum. In a separate entry Dr Mobbs has recorded that the worker recalled falling and landing on the train which meant there was no loss of consciousness or amnesia. In a still further entry Dr Mobbs has recorded that the worker complained of headache behind his right eye and had nil radiation in respect of his lumbar spine ache and nil neurological signs. The worker was given head injury advice with a script for analgesics, together with a WorkCover certificate. He commented on the X-ray of the lumbar spine which showed no fracture and he noted that the worker was “freely mobile”.
The clinical notes of Dr Vago are in evidence for the period from 26 April 2007 to 21 December 2007 and from 16 June 2008 to 26 March 2009. These are not completely legible and there is no explanation for the apparent absence of records for the intervening period. Three reports of Dr Vago are in evidence. In the first of these dated 6 January 2008 he records that he saw the worker on 3 September 2007. The history given by the worker was that he had fallen down stairs hitting the back of his head and losing consciousness. He had injured his lower back and neck as well. Dr Vago found tenderness at the back of the worker’s neck and noted para-cervical spasm. Cervical flexion and extension were limited as was lateral flexion in both left and right directions and rotational movements. There was tenderness in the trapezius muscles. He found nothing abnormal in the worker’s arms or thoracic spine, however, there was tenderness in the lumbar spine and para-lumbar spasm with reduction in lumbar flexion and extension. He thought the worker’s cerebral and cerebellar functions were normal and he found no abnormal central nervous system reflexes. His gait was normal. He concluded that the worker’s injuries were:
“(1)   Concussion – head injury.
(2)    Cervical spinal soft tissue injury.
(3)    Traumatic soft tissue injury of the lumbar spinal mechanism.”
He thought the worker was severely incapacitated with chronic pain and persisting disability but the worker was well motivated and did not have any secondary functional overlay symptoms.
In a handwritten report of 22 August 2009 (or possibly 2008; it is unclear) Dr Vago stated that the worker has been complaining of continuing problems regarding his lumbar and cervical regions and his head as a result of injuries received in the course of his work. He said that the worker had been seen regularly over the preceding year and had been provided with physiotherapy, hydrotherapy, remedial massage, exercise programs and medication. He would need medical treatment and supervision to continue indefinitely into the future.
In a report of 19 October 2009 Dr Vago reported that the worker had been suffering sleep disturbance as a result of his chronic pain and had been unable to return to work because of his symptoms. He had pain between the shoulder blades and pain on movement of the head to either side. This was aggravated by changes in the weather. His lifting capacity and general movement had been restricted due to what the doctor described as “painful spastic muscles in the lower back area”. Dr Vago then sets out his findings on physical examination, however, it is unclear when such examination took place. It appears to be a repetition of the findings on physical examination as set out in the doctor’s first report except for there being no reference to para-lumbar spasm and a reference to the worker’s legs being normal which does not appear earlier.
In summary, Dr Vago considered the worker suffered from residual symptoms arising out of the subject fall. His condition had “not really improved since the accident” and he had severe symptoms in his neck and lower back. An MRI scan showed posterior bulges at a number of levels, together with a disc protrusion at L5/S1. Dr Vago did not consider that the worker could return to his previous job at RailCorp because of symptoms affecting his neck and back and the prognosis was poor. He agreed with Dr Mahony’s findings in his report of 8 September 2009 but disagreed with Dr Stephen’s opinion of 22 April 2008 that the worker had no whole person impairment. He also disagreed with Dr Stephen’s conclusion that the worker was not genuine in his complaints and was embellishing his symptoms.
I have already referred at [1] to the certificate of Dr Mobbs given on the date of injury. This gave as a diagnosis “Soft tissue injury lower back. Skin abrasion lower back and headache”. Dr Qidwai has in his certificate of 20 August 2007 referred to “neck, back injury, head injury” and Dr Vago’s has consistently referred in his certificates to “head neck back injury”. Dr Vago’s notes do however have an entry on 16 October 2008 which is as follows:
“Buzzing noise left ear, noisy environment in RTA over many years, headaches.”
There are a number of reports of Dr Mahony in evidence, some of which are addressed to Dr Vago and some to the worker’s legal advisors. Although the worker has not relied on all of Dr Mahony’s reports these have been put in evidence by RailCorp and it is convenient to deal with all of his reports together. On 16 April 2008 he reported to Dr Vago that he had examined the worker the preceding day. The worker told him that he was reluctant to undergo a CT scan because of a history of cancer in his family. Dr Mahony has recorded the worker’s complaints as being in relation to his neck, right hand and shoulder, mid back and low back radiating to his right foot with pins and needles and numbness in his right leg. Dr Mahony felt that the worker had developed symptoms referable to a cervical strain with nerve root irritation affecting his right arm as well as thoracic and low lumbar strains in association with nerve root irritation affecting his right leg. He thought it was consistent that the fall described could have produced such lesions and the worker was unfit for work. He ordered further radiological investigations of the worker’s neck and back.

Dr Mahony again reported to Dr Vago on 20 May 2008. The worker’s complaints were as before. Dr Mahony referred to an X-ray of the cervical spine dated 13 May 2008 and enclosed a photocopy of the report. He did however comment that there was calcification at the lower anterior border of C6. His opinion was substantially as before except that he noted there was pain radiating from a thoracic strain to the worker’s chest and a right gluteal bursitis.
Dr Mahony reported to the worker’s former legal advisors on 4 June 2008. The worker had been reviewed on 20 and 27 May 2008 and an MRI of the lumbosacral spine was done on 26 May 2008. He considered that the worker had symptoms referable to a cervical strain with nerve root irritation and thoracic and low lumbar back strains with radiation to his chest and right leg, as well as right gluteal bursitis. On this occasion he considered the worker had symptoms as a result of a right lateral and medial epicondylitis, a right olecranon bursitis, a right DeQuervain’s tendovaginitis as well as a right ulnar nerve neuritis. He considered that the worker was permanently unfit for work as a carriage cleaner and should restrict himself to activities not involving significant bending or lifting, use of the right upper limb or significant walking, climbing or squatting. In a separate report of that date he assessed whole person impairment as a result of the injury at 22 per cent with separate figures of six per cent in respect of the cervical spine, thoracic spine, lumbosacral spine and right leg.
He reported to Dr Vago on 26 June 2008 following the consultations in May of that year. There is then a gap in reports from Dr Mahony until 16 April 2009 when he saw the worker and wrote to a physiotherapy provider asking that hydrotherapy and remedial massage be continued. He did however report to Dr Vago following this consultation on 4 and 26 August 2009. His opinion was substantially as before. He recorded the worker’s complaints but did not refer to any findings on examination.
Dr Mahony saw the worker again at the request of his legal advisors on 8 September 2009. On this occasion, Dr Mahony again referred to the same conditions in the worker’s right arm as he had on 4 June 2008. He found that the worker’s cervical flexion was restricted to about one-half normal and he said there was little remaining movement carried out because of guarding by the patient. He considered the worker was permanently unfit to work as a carriage cleaner and suggested he be re-trained in areas consistent with his education and experience.
In a report of 22 September 2009 Dr Mahony assessed the worker’s whole person impairment at 47 per cent made up as follows with deductions for pre-existing changes as indicated:
Cervical Spine             7 per cent (8 per cent -1 per cent)
Thoracic Spine             6 per cent
Lumbosacral Spine      11per cent (13 per cent - 2 per cent)
Right arm  27 per cent (45 per cent right arm)
Right leg   6 per cent (15 per cent right leg)
Combined value:          47 per cent whole person impairment
Dr Mahony responded on 12 October 2009 to a letter from the worker’s legal advisors of 6 October 2009 which is not in evidence. Dr Mahony explained how he had come to the conclusion which he had expressed in his report of 22 September 2009 by taking account of subjective complaints. He considered that the worker’s condition had reached maximum medical improvement.
The worker was examined by Dr Conrad, an orthopaedic surgeon, at the request of his former legal advisors on 1 April 2008. He complained of pain in his lumbar spine radiating into his right leg and pain and stiffness in his neck and found it difficult to stand or sit for long periods of time. Dr Conrad considered that the worker should have an MRI scan of his neck and back in order to exclude a disc prolapse and should have physiotherapy as required. He thought the worker “may” have difficulty in going back to his work as a carriage cleaner and he was fit for light work only starting at 12 to 15 hours per week as part of a structured rehabilitation program. In a separate report Dr Conrad assessed whole person impairment at 14 per cent, being seven per cent in respect of the worker’s neck and seven per cent in respect of his back.
When the worker saw the audiologist, Ms Ngo, on 10 December 2008 he complained of falling from a ladder and suffering a head injury which caused him to notice constant tinnitus in both ears of varying intensities. He said he also had a lot of difficulty in hearing conversations. Audiometry carried out by Ms Ngo showed moderate to severe sensorineural hearing loss to the right ear and a severe to profound sensorineural hearing loss in the left ear. She thought there was marked asymmetry however she has not, so far as I can see, stated the extent of the losses beyond the descriptions which she has employed. She noted that the results on speech discrimination for the left ear were not consistent with the audiogram. Some responses were inconsistent and supra-threshold responses may have been recorded. She suggested further medical investigation might be considered.
Dr Scoppa, an ear, nose and throat specialist, saw the worker at the request of his legal advisors on 2 April 2009 and took a history of hearing loss, tinnitus and dizziness. The worker said he had become aware of hearing loss since his fall, worse on the left side. He also complained of the onset of constant a high pitched screeching sound in his left ear and a low tone roaring sound in his right ear which pulsated. This interfered with activities such as sleep and concentration. The worker also said that since his injury he had developed severe dizziness. He complained of dysequilibrium and imbalance which was there for most of the day and he had to sleep and rest every three hours otherwise he was extremely dizzy. He gave no history of rotary vertigo.
Dr Scoppa could not test the worker for benign positional vertigo because of severe neck pain and restriction of neck movement but he did perform an audiogram which showed bilateral sensorineural hearing loss of 8.8 per cent in the right ear and 9.7 per cent in the left ear, giving, he said, a binaural hearing impairment of 8.7 per cent. Dr Scoppa considered the worker’s loss of hearing had probably resulted from trauma to his inner ears superimposed on some pre-existing industrial deafness which it was not possible to quantify in the absence of earlier audiograms. The history of onset of tinnitus also suggested, he thought, that damage to the cochleae occurred in the injury as post-traumatic hearing loss was not uncommonly associated with the onset or aggravation of tinnitus.
Dr Scoppa did not consider from the worker’s description of his symptoms that the dizziness was of vestibular (inner ear) origin since this almost invariably caused a sense of rotation of self or the environment which was absent in this case. He thought the dizziness was probably due to the worker’s neck injury notwithstanding that the inner ear had, he thought, sustained some damage. He recommended that further testing be done of which there is no evidence. In respect of a loss of hearing and tinnitus, Dr Scoppa made an assessment of six per cent whole person impairment.
Three reports of radiological investigation are relied on, the earliest of these is that of Dr Ian Benn at the hospital on the day of injury. He reported on a plain X-ray of the lumbar spine as follows:
“There is slight scoliosis of the lumbar spine presumably due to muscular spasm. No fracture detected.”
Dr Kaushik reported on X-rays of the cervical spine of 13 May 2008 as follows:
“There is loss of normal cervical lordosis. There is reduction of body or disc heights. Focal ossification in the anterior longitudinal ligament at the C6 level is noted incidentally.
CONCLUSION
Minor cervical paravertebral muscular spasm. No fracture or subluxation is seen.”
Dr Schlaphoff reported on the MRI of the lumbar spine carried out on 26 May 2008 at the request of Dr Mahony. His report is as follows:
“Findings:
The lumbar lordosis is within normal limits.
There is no significant antero or retrolisthesis noted and the position of the conus medullaris is within normal limits.
There are mild disc bulges demonstrated at the L1/2, L2/3 and L3/4 levels without significant nerve root compression or other impingement associated.
L4/5 Level:
A broad-based posterior disc bulge is noted and this has a zone of increased intensity on the T2 weighted scans in the left paracentral protruded component which may represent a small annular tear.
There is mild encroachment of the lateral recesses noted, however no significant displaced [sic] of nerve roots is present.
The exiting nerve roots are not impinged.
L5/S1 Level:
At L5/S1 there is a more prominent posterior disc protrusion noted with a paracentral component that is more prominent on the left than the right. This appears to contact the descending S1 nerve root in the lateral recess and this should be correlated clinically.
There is also hypertrophic facet joint arthrosis demonstrated at L5/S1.
The paravertebral soft tissues and S1 joints visualised on this scan appear within normal limits.
COMMENT
There are multilevel spondylotic changes noted in the lumbar spine however the most significant abnormalities appear to be at the L5/S1 level on the left side with less prominent changes and a possible annular tear at the L4/5 level noted.”
In a claim form completed by the worker on 18 October 2007 he described suffering injury to his head, neck and back.
There are two notices under s 74 of the 1998 Act in evidence which relate to matters disputed by RailCorp. In the first dated 16 October 2007 the claim was denied pursuant to ss 4 and 9A of the 1987 Act and on the report of Dr Stephen of 4 October 2007.
A further notice under s 74 was given on 21 December 2009 following a claim by letter of 26 October 2009 for lump sum compensation which was made in accordance with the reports of Dr Mahony and Dr Scoppa. In short, liability was denied on the basis that the worker had recovered the effects of any injury sustained on 16 August 2007 and had not given notice of injury and made claims for compensation under ss 254 and 261 of the 1998 in relation to his hearing loss and injuries to his thoracic spine and left leg.

RailCorp’s Evidence

A number of reports from Dr Stephen are in evidence. Dr Stephen first saw the worker on 4 October 2007. He said he found the worker evasive and vague and many of his questions were answered by the worker saying “I don’t remember”. The worker complained of pain in his low back, neck and head. He also felt pain extending upwards into the thoracic area and into the right upper buttock and outer right calf. Neck pain was felt more on the right side. He had no pain down his arms but complained of an area of paraesthesia over the back of his right hand. On examination of the worker’s neck he found that there was voluntary restriction of movement which was inconsistent with what he had earlier observed. He thought the thoracolumbar posture was normal and there was no muscle wasting in the legs. He noted that lumbar movements were voluntarily restricted to one half but when indicating the site of right leg pain the worker had a full painless range of lateral flexion to the right. While sitting bolt upright on a couch and leaning forward he demonstrated a good range of painless lumbar flexion. Dr Stephen did not have access to any X-rays since these were with the hospital but concluded he could find no evidence of continuing disability and thought that the worker’s complaints were not longer work-related. He thought the worker was fit from a physical point of view for his pre-injury employment.
Dr Stephen again saw the worker on 22 April 2008 when his complaints were “not improved and if anything worse” and once again Dr Stephen observed what he considered an excellent range of neck, shoulder and lumbar movement when the worker was not being formally examined. He considered the X-rays of the lumbar spine taken at St Vincent’s Hospital to be normal and could find no physical explanation for the worker’s widespread complaints. Not surprisingly, Dr Stephen did not consider that there was any permanent impairment referable to the injury in question.
Dr Stephen last saw the worker on 3 September 2009. Dr Stephen commented on the X-ray of the cervical spine of 13 May 2008 and the MRI of 26 May 2008. In relation to the MRI he considered there was not a disc bulge at L4/5 but there was a small tear of the posterior annular [sic] with no evidence of nerve root compression. So far as the lumbosacral level was concerned, he disagreed that there was a disc protrusion and he did not think there was any evidence of nerve root compression at this level. He also disagreed with Dr Kaushik’s reporting on the X-ray of the cervical spine and considered that the lordosis when measured was well within the normal range rather than showing a loss as the radiologist had reported. In short, he concluded that the effects of any injuries suffered by the worker had resolved and there were no objective findings to indicate a physical basis for the worker’s complaints. He thought there were multiple inconsistencies.
An ear, nose and throat specialist, Dr Seymour, examined the worker at the request of RailCorp on 7 December 2009. The worker complained of hearing loss which was getting worse, tinnitus dating from the accident and dizzy turns which commenced approximately one month after the accident. The latter occurred three or four times a day, lasted up to two hours and were relieved by sleep. The doctor concluded there was a definite postural component to them since they were aggravated or brought on by looking upwards or downwards or quick movements of the head or body. Unlike Dr Scoppa, Dr Seymour did obtain from the worker a complaint of a sense of rotation. The audiogram carried out by Dr Seymour showed a bilateral sensorineural hearing loss of 3.7 per cent. He considered the configuration of the audiogram, being bilateral and symmetrical, was typical and characteristic of noise induced deafness and no hearing loss had been suffered as a result of the worker’s fall. However, Dr Seymour considered that tinnitus was possibly related to the injury. There were no objective physical findings of dizziness but he thought because of this that the worker was not fit for full-time or part-time work. This was not related to his fall.
The worker was seen by two doctors at HealthQuest at the request of RailCorp on 20 February 2008 and a joint report dated 5 March 2008 was prepared. A psychiatric assessment was done by Dr Roberts and a medical assessment by Dr Julia Ying. The report is signed by Dr Ying only. Dr Roberts saw the worker in connection with his prior psychological complaint, arising from the worker’s perception of harassment in the workplace. It is not necessary, in my view, to deal with Dr Roberts’ opinion since no psychiatric claim has been made in these proceedings. Dr Ying obtained a history of neck pain, headache and low back pain from the date of injury which was gradually getting better. The worker would not rate the severity of the pain and said he did not want to go into specifics or give more details than to say that sometimes he had pain and sometimes he did not, nor did he wish to answer questions about his tolerances for movement or sitting, standing or walking. He said he did not want any answers he gave to be used against him. He complained of difficulty bending and sometimes pain when walking. He was unable to lift weights and had been careful since his injury. He did want to return to work but he did not wish to injure himself and thought he would have difficulty in carrying out some of the work he formerly did. Dr Ying reported that neck movements were full in range. Physical examination did not show significant objective signs beyond reported tenderness in the right lower lumbar area and pain in his right leg which prevented him from walking on his heel or toes. The worker declined to allow Dr Ying to contact his treating doctors for medical information.
Dr Ying, in the absence of reports from treating doctors and based solely on her examination of the worker, considered that he would be fit for an assessment of his functional abilities at work after which he would be fit for a graduated return to work program as recommended by his treating doctor and rehabilitation provider. Nonetheless, she considered that he was fit for the work he had previously performed as a Category 3 Rail Safety Worker.
RailCorp also relied on previous Applications filed on behalf of the worker in the Commission namely matter numbers 153/08 and 5011/09 to which I have referred at [5].

ARBITRATOR’S REASONS

The Arbitrator noted that the matters which were disputed were as follows:
“(i)    The claims for the traumatic injury of hearing loss, dizziness and tinnitus is disputed;
(ii)    Continuing incapacity on the basis of any injury sustained on 16 August 2007 is disputed and it is submitted that any injury has resolved;
(iii)    The claim for continuing section 60 treatment expense is disputed;
(iv)    There should be no remittal to an Approved Medical Specialist because there is no permanent impairment resulting from any of the injuries sustained on 16 August 2007.”
The Arbitrator first noted that there was no dispute that the worker had fallen down stairs on a moving train in the course of his employment. This was established by the contemporaneous ambulance report and the hospital notes. She noted also that there was evidence that he complained of headaches and dizziness at that time, however, there had been no further complaint to either Dr Vago or any other medical practitioner until 16 October 2008 when the worker had complained to Dr Vago of a buzzing noise in his left ear. This was not attributed by the doctor at that time to the injury but rather his noisy employment. Nor had Dr Vago in his reports referred to any traumatic hearing loss, tinnitus or dizziness as related to the injury. She said she was unable to rely on the opinions of Drs Scoppa or Seymour because they were based on the worker’s account of his complaints which she did not accept. Because the first complaint regarding the worker’s hearing was made 14 months after the injury in question, she was not satisfied that his hearing loss was causally related to it.
So far as tinnitus was concerned, she considered that the worker’s claim that he had experienced ringing in his ears at the time of his injury should not be accepted since there was no contemporaneous evidence of this. Relying on Dr Vago’s notes of the first (and it would seem only) complaint of tinnitus in October 2008 she found that he had not suffered tinnitus in the injury in question.
She noted that Dr Seymour, based on what he had been told by the worker, had expressed the opinion that the worker’s dizziness would render him unfit for work, however, the only complaint of dizziness was shortly after the incident in question on 16 August 2007 and there was no account of dizziness given to Dr Vago or Dr Mahony. She considered that if he had experienced such dizziness he would have told one of his treating doctors about it. She noted that the worker had told Dr Seymour that his dizziness commenced about a month after August 2007 but this was not supported by any contemporaneous evidence. Although the Arbitrator accepted that the worker had hit his head at the time of the injury and had lost some consciousness, she did not think that the head injury was as serious as was claimed. By the time the ambulance arrived the worker was found to be alert and orientated. Accordingly, she considered there should be an award for RailCorp in respect of the claims for hearing loss, tinnitus and dizziness.
So far as the worker’s neck and back was concerned Dr Stephen’s view was that he was exaggerating and was not genuine. She rejected Dr Stephen’s view as to the worker’s fitness and preferred the opinions of Drs Vago, Conrad and Ying. She herself assessed that the worker was exaggerating his complaints but she was satisfied that he continued to be partially incapacitated by reason of continuing symptoms in his neck and back. The Arbitrator rejected the claim made under s 38 of the 1987 Act since the worker had not provided medical certificates for other than total incapacity and had not indicated that he was ready, willing and able to carry out suitable employment. However, she did enter an award pursuant to s 40 of the same Act in relation to partial incapacity in the sum of $167.16 per week, being the difference between the worker’s earnings but for injury and the sum which she assessed he would be able to earn, namely $600.00 per week. The Arbitrator made orders in relation to the payment of treatment expenses and, as I have earlier indicated, remitted the assessment of permanent impairment in respect of the cervical and lumbar spines to the Registrar for referral to an AMS.

GROUNDS OF APPEAL, SUBMISSIONS and DISCUSSION

There are four stated grounds of appeal which are as follows:
“Ground 1 The worker’s continuing complaints
Ground 2 Analysis of Medical Evidence

Ground 3 Decision re Hearing Loss
Ground 4 The decision concerning incapacity”

These are not grounds of appeal at all. The single ground of appeal is contained in the description of the decision appealed against at 2.6 of the Application to Appeal, namely:
“The Arbitrator’s decision that the worker’s current Hearing Loss and ‘dizziness’ do not result from employment injury is erroneous and not supported by the evidence.”
From submissions made it is clear that the worker wishes to challenge the Arbitrator’s finding as to the extent of his incapacity and it is, in my opinion, just that he be allowed to do so since RailCorp has responded to these submissions. It is not clear from the statement of the decision appealed against that the worker is in fact appealing against the Arbitrator’s finding against him as to his tinnitus. However, this is, in the light of the submissions made, a mere oversight and no injustice will be done to RailCorp in considering the appeal in relation to the Arbitrator’s decision in this regard.
The submissions made in respect of each stated ground of appeal overlap to some extent and some submissions in support of one “ground” I consider relate more properly to another. It is difficult to deal with the submissions as made in any logical or orderly manner and for, I hope, greater clarity I will consider them under different headings from those used by the worker’s legal advisors.
I intend to consider the submissions in relation to the correctness of the Arbitrator’s decision under the following headings:
(i)     Hearing loss;
(ii)     Tinnitus;
(iii)    Dizziness; and
(iv)    The worker’s incapacity and the award of weekly payments.

(i) Hearing loss

The delay in the worker complaining to doctors or anyone else concerning hearing loss was fundamental to the Arbitrator’s decision. As I have earlier noted there was a delay of over a year before the worker first complained to Dr Vago concerning a buzzing noise in his left ear. There was no complaint of deafness made at that time however, Dr Vago understandably, following the complaint of tinnitus, obtained a history of noisy employment. It is not to the point that the relevant employer is described as “RTA” rather than RailCorp; this confusion is perhaps understandable in dealing with the two statutory corporations. Dr Vago has not in his reports made any reference to the worker’s hearing loss or the other alleged sequelae of his head injury. It is sought to explain the worker’s apparently admitted failure to complain to Dr Vago on the basis that he would not reasonably make such complaint to his general practitioner. I am unable to accept this submission. On the contrary, it is to a general practitioner that such report would initially be made so that there might be a referral to an ear nose and throat specialist such as Dr Scoppa and indeed it was to Dr Vago that the complaint of tinnitus was made. This submission has greater force when made in relation to Dr Mahony who is an orthopaedic surgeon and who might be expected to confine his attention to matters within his specialty. It is however significant that Dr Ying of HealthQuest obtained no history of hearing loss or other sequelae of the worker’s head injury when she saw him in February 2008, six months after the injury in question.
There is a specific submission regarding the Arbitrator’s failure to inform the worker at the arbitration that his credit depended on his reporting of his head symptoms to his treating doctors and that he was not given an opportunity to explain this and to say why it was he had not recovered from the effects of any head injury. This issue was something which could have come as no surprise to the worker and his legal advisors and was the subject of submissions by counsel at the arbitration. I do not consider that any special obligation rests on an Arbitrator to behave in the manner in which it is alleged she should have. An application could have been made on behalf of the worker to rely on further evidence but this was not done. There is no substance in this complaint.
It is said that the Arbitrator failed to explain the asymmetry in hearing loss found by the audiologist which, it is suggested, supported the hearing loss being traumatic in origin. As I have earlier noted, Ms Ngo found that some responses were inconsistent. Neither Dr Scoppa nor Dr Seymour found asymmetrical hearing loss nor could the levels of hearing loss found by them be considered as “moderate to severe” and “severe to profound” which were Ms Ngo’s descriptions. I do not consider that the correctness of Ms Ngo’s audiogram ought be accepted and I do not think that the Arbitrator erred in the manner suggested.
Dr Scoppa in April 2009 took a history of the worker becoming aware of hearing loss “since the accident”. The worker submits that Dr Scoppa’s use of this expression does not necessarily mean from the date of his fall but simply sometime after. Thus it is submitted his expression of opinion regarding causation does not depend on it being established that there was an immediate hearing loss noted by the worker after his fall. I do not accept this submission in the light of the doctor’s finding of probable damage to the worker’s cochleae as a result of his fall. In the absence of any medical explanation as to the delayed onset of awareness of hearing loss being consistent with traumatic damage to the worker’s internal hearing organs, I would not accept that such was possible; nor do I accept Dr Scoppa’s opinion that the traumatic hearing loss was superimposed on prior mild industrial deafness. Why such traumatic hearing loss produced a result which was still symmetrical is unexplained. Dr Scoppa’s opinion clearly, in my view, rests upon the worker experiencing hearing loss shortly after his injury.
In the worker’s statement of 14 January 2010 the worker said that “Since my fall I have continued to experience hearing loss …”. No such allegation was made in the worker’s first statement obtained in connection with earlier proceedings, nor was any hearing loss claimed in those proceedings despite the worker being represented by legal advisors who I think may reasonably be assumed to have sought specific instructions as to what injuries and disabilities were to be claimed.
Given that the worker had suffered a head injury and some loss of consciousness, it is submitted that there is no evidence that he had recovered from such head injury. This appears to reverse the onus which I consider rests on the worker to establish that the symptoms of which he complains, including hearing loss, result from the injury in question. The Arbitrator decided that, so far as hearing loss and related symptoms were concerned, they did not. This is clearly correct in my opinion. There was no medical evidence establishing what the effects of the head injury were beyond the worker’s complaints and the reports of Ms Ngo and Drs Scoppa and Seymour. The only testing of which there is evidence is the audiology. It is difficult to understand why if the worker’s complaints were as he said that Dr Vago did not refer him for appropriate medical attention and treatment even allowing for the worker’s reduced financial circumstances.
Dr Seymour’s view that the worker’s hearing loss was not traumatic but due to prior occupational noise exposure is, in my opinion, consistent with the audiogram performed and is the preferable view.
It is submitted that the finding of the Arbitrator that the worker’s hearing loss did not result from his employment was contrary to the requirements of s 326(1)(c) of the 1998 Act and that only an AMS may decide conclusively the nature and extent of a loss. That section relevantly provides:
“(1)   An assessment certified in a medical assessment certificate pursuant to a medical assessment under this Part is conclusively presumed to be correct as to the following matters in any proceedings before a court or the Commission with which the certificate is concerned:
(a)     …
(b)     …
(c)     the nature and extent of loss of hearing suffered by a worker, …”
The worker’s counsel did not make such submission at the arbitration but urged that the Arbitrator should make a finding of loss of hearing as a result of a head injury and then refer the question to an AMS. This submission is also contrary to a number of authorities in the Commission including Ooi vNEC Business Solutions Limited [2006] NSWWCCPD 131; (2006) 5 DDCR 461, Total Steel Australia Pty Limited v Waretini [2007] NSWWCCPD 33 and Peric v Chul Lee Hyuang Ho Shin Jong Lee and another [2009] NSWWCCPD 47. Whether there is a causal connection between an injury and an impairment or loss is a matter for the Arbitrator to decide. No authority is relied on by the worker in relation to this submission and I reject it.
The Arbitrator’s reference, at [33] of her reasons, to the worker’s level of consciousness being good “immediately after the incident” is complained of as being incorrect since there was a delay, it appears, of 35 minutes or so before the ambulance officers attended the worker. The use of the word “immediately” here is perhaps misleading but the Arbitrator in the preceding sentence referred to the worker’s Glasgow Coma Scale score and his being alert and orientated “by the time the ambulance arrived on the Scene”. Counsel for RailCorp in addresses put the correct time of arrival shown in the ambulance record to the Arbitrator and I have no doubt that the Arbitrator did not consider that that ambulance officers were on the scene “immediately” in the sense of that word on which the worker relies.
The Arbitrator described the worker’s account of his fall and its immediate consequences as being in very dramatic terms which was, it is submitted, not borne out by the ambulance and hospital records. Thus she concluded that he had exaggerated what had happened to him on the day in question. In his statement of 14 January 2010 the worker related that he was unconscious, dizzy and could not remember what happened for a little while. He said he still felt “fuzzy” in the head and there was ringing in his ears. The ambulance record shows that the worker was alert and orientated when examined but complained, inter alia, of headache and feeling dizzy and nauseous after his fall. This record also shows a doubtful loss of consciousness. It appears from the hospital notes that initially the worker was amnesic in respect of the fall but later recalled it happening following which Dr Mobbs has concluded “No LOC/amnesia”. It is not apparent to me that the worker’s account of what happened shortly after the fall was markedly at variance with the ambulance or hospital records except that there is no complaint of ringing in the ears recorded. The Arbitrator said that this exaggeration fortified her decisions regarding the claims for hearing loss etc. I do not consider there was exaggeration in this regard as the Arbitrator found but it was not necessary, in my view, for the Arbitrator to seek to support her decision in this way. The reasons which she otherwise gave were, in my view, sufficient standing alone.
I have reviewed all of the evidence in the light of the submissions made by the worker on appeal and am satisfied that the decision reached by the Arbitrator in relation to the worker’s hearing loss was the correct one.

(ii) Tinnitus

In his statement of 14 January 2010 the worker said that there was ringing in his ears immediately after the injury and since his fall he had continued to experience different ringing sounds in his ears. The audiologist, Ms Ngo, took a history that the worker had suffered a head injury which had caused him, he noticed, constant tinnitus in both ears of varying intensities. Dr Scoppa has recorded that the tinnitus occurred soon after the accident and was in his opinion caused by the accident, while Dr Seymour obtained a history of tinnitus dating from the accident but not present prior. Based on this history Dr Seymour thought that the tinnitus was “possibly related to the accident”. The reasons given by the Arbitrator in rejecting the claim in respect of tinnitus were like those given in relation to the worker’s hearing loss. As I have earlier indicated, the first statement of the worker of 7 January 2008 makes no reference to tinnitus or, for that matter, to any other alleged consequence of the worker’s head injury, apart from what he describes as “increase headaches”. However in the second statement of the worker dated 15 June 2009 he does say that since his injury he had experienced hearing loss and differing sounds in his ears. Despite the worker’s last statement that he had ringing in his ears following his accident, there is no complaint made to the ambulance officers or the hospital staff concerning this. The Arbitrator did not accept, nor do I, that the worker had established that his tinnitus was causally related to the fall in question.

(iii) Dizziness

As I have earlier said, the ambulance record shows that the worker complained of dizziness at the time of his accident. This is also noted in the hospital’s nursing assessment data which appears to have been taken from the ambulance report. However, once again, there is no complaint of dizziness to any doctor until the worker told Dr Scoppa in April 2009 that he developed this since the accident. He described the dizziness as severe and said he had it for most of the day. He had to sleep and rest every three hours in order to avoid this. He told Dr Seymour that dizziness came on approximately a month after his injury which would be September 2007. This allegation by the worker in my opinion ought not be accepted because it is inexplicable why this was not reported to Dr Vago. As I have earlier said, Dr Vago makes no reference to it or to hearing loss or tinnitus in any of his reports. The further testing suggested by Dr Scoppa in order to establish whether the organs of balance in the inner ears had been damaged has not been carried out or, if it has, is not in evidence.
Because of the description of the worker’s symptoms Dr Scoppa did not consider that his dizziness was of vestibular origin and he thought it was probably due to the worker’s neck injury. The worker submits that the Arbitrator did not deal with this alternative aspect of the worker’s claim in respect of dizziness and this is quite correct. The reason why the Arbitrator did not do so was that this was not put to her but rather the worker’s counsel sought to relate the dizziness to cochlear damage which Dr Scoppa surmised had occurred. There is no objective evidence that there was cochlear damage and I am satisfied that the Arbitrator was correct in her conclusion that the worker’s dizziness was unrelated to the fall in question. Dr Scoppa’s opinion regarding the neck injury and dizziness does, with respect, appear to be mere supposition outside that doctor’s area of expert knowledge. He gives no explanation of the mechanism whereby he says the worker’s neck injury has brought about his dizziness. I do not accept that the Arbitrator erred in not making reference to Dr Scoppa’s opinion in this regard nor do I think that when considered that opinion requires a different conclusion.
A further submission was that it was not open for the Arbitrator to find at [32] of her reasons that the effects of the head injury had resolved. That paragraph dealt with the claim in respect of dizziness and the Arbitrator did decide that any dizziness the worker may have experienced immediately following the accident had resolved rather than the effects of the head injury.
It is submitted that the Arbitrator should have left it to an AMS to determine whether there was a causal nexus between the worker’s dizziness and the injury in question by reason of the terms of s 326(1)(a) of the 1998 Act. I have set out the terms of s 326(1) at [69]. Subsection (a) identifies the issue in respect of which the certificate of an AMS is conclusively presumed to be correct as:
“The degree of permanent impairment of the worker as a result of an injury”
No further submission is made in support of this. For the reasons which I have given at [69] this submission is not consistent with authority and should not be accepted. It is for an Arbitrator to determine whether the effects of an injury have ceased and this the Arbitrator was obliged to do by reason of the claim made in respect of weekly payments.

(iv) Incapacity

The worker submits that the HealthQuest report on which the Arbitrator relied dealt only with the worker’s psychological symptoms. This is not correct. The Arbitrator incorrectly attributed the report to the psychiatrist, Dr Roberts, to the exclusion of Dr Ying. Dr Ying who made a physical examination of the worker expressed an opinion as to his fitness which the Arbitrator took to be a statement that the worker was fit for full time work. I do not agree with this interpretation for the following reasons. Dr Ying did not have access to the opinions of treating specialists or reports of radiological examinations. She was accordingly limited in coming to a conclusion as to the fitness of the worker to her examination of him and his complaints to her. She found that on physical examination he did not have significant objective signs apart from reported tenderness and pain in the right lumbar area on back movement and leg-raising. Her recommendations were that the worker was fit for an assessment at his workplace and would then be fit for a graduated return to work program. She did however say in answer to a specific inquiry, having regard to the worker’s account that he had lost consciousness when injured in August 2007, that he was fit for the appropriate category of rail safety work. I take this statement to be limited to his having had a loss of consciousness which had not recurred and not his physical state having regard to his back and neck. Thus, with great respect to the Arbitrator, I do not agree that Dr Ying’s opinion was that the worker was fit for full-time work. Accordingly I must look at the evidence in order to determine whether the award entered by the Arbitrator for weekly payments is proper and correct.
I must first determine what the physical consequences of the injury in question were. For the reasons I have given, I do not consider that the worker has established that his loss of hearing, tinnitus or dizziness resulted from the subject injury. His incapacity is confined to that arising from his orthopaedic injuries.
The opinion of Dr Mahony, which the Arbitrator does not appear to have considered in her reasons, apart from setting out the contents of his reports, was that the worker was not fit to work as a carriage cleaner and had restrictions on bending, lifting, use of the right arm, walking, climbing or squatting. He thought he should be retrained.
It does appear to me that Dr Mahony has accepted the worker’s account of his symptoms unquestioningly. A complaint by the worker of tenderness in his right buttocks produced an assessment of six per cent whole person impairment by reason of right gluteal bursitis and a complaint of tenderness on palpating the right lateral and medial epicondyles produced a diagnosis of five separate conditions in the right arm attracting a whole person impairment of 27 per cent. The difference between Dr Mahony’s assessment of permanent impairment in June 2008 of 22 per cent and 47 per cent in September 2009 is not satisfactorily explained. I think that Dr Mahony overstates the worker’s incapacity.
The Arbitrator put Dr Stephen’s opinion aside completely since it was not in accordance with that of Dr Vago, Dr Conrad and Dr Ying of HealthQuest. While disregarding the conclusions of Dr Stephen that there was no evidence of continuing disability and that the worker’s complaints were no longer work-related, the Arbitrator was nonetheless entitled to take account of the inconsistencies observed by Dr Stephen and come to the view that the worker was exaggerating. For the reasons give by Dr Stephen on his examination I am satisfied that the worker was exaggerating his complaints.

I have already expressed my views on Dr Ying’s opinion as to the worker’s fitness.
Dr Conrad’s opinion was based on his examination of the worker and his complaints. He had no X-rays available to him then but did have the hospital notes which showed no fracture and a slight scoliosis in the lumbar spine. Dr Conrad’s opinion is not greatly supportive of the worker’s continuing incapacity because he says that he “may have difficulty going back to fullon work as a carriage cleaner”. (my emphasis) He thought he was fit for light work only with restrictions on lifting and bending. There should be a gradual return to work starting at 12 to 15 hours per week.
Dr Vago supplied the worker with certificates of total incapacity up to 17 December 2008. If there are later certificates they are not in evidence. In his reports Dr Vago agrees with Dr Mahony’s findings and relates that the worker has been unable to return to work because of his symptoms. Dr Vago thought that the worker could not return to his former job at RailCorp and I think it is reasonable to accept this opinion. He expresses no opinion as to the worker’s fitness for other work.
Taking account of all the medical opinion, I consider that the worker has aggravated degenerative changes in his neck and low back and does have continuing symptoms from this aggravation but these are relatively minor. I consider that the worker would be fit for full-time employment in some lighter occupation such as that specified by the Arbitrator as a service station console operator, a ticket collector or a car park attendant. The assessment by the Arbitrator of the worker’s ability to earn at $15.00 an hour for 40 hours a week is I think a reasonable estimate and accordingly the award entered in respect of weekly payments is one with which I would agree. Thus I have come to the same conclusion as the Arbitrator but on a different view of the medical evidence.

DECISION

The decision of the Arbitrator dated 21 April 2010 is confirmed.

COSTS

Each party is to pay his or its own costs of the appeal.

Anthony Candy
Acting Deputy President
7 October 2010

I, MARGOT UNDERCLIFFE CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ANTHONY CANDY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE