Boral Resources (NSW) Pty Ltd v Gardiner - [2010] NSWWCCPD 124

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Boral Resources (NSW) Pty Ltd v Gardiner [2010] NSWWCCPD 124
APPELLANT:		Boral Resources (NSW) Pty Ltd
RESPONDENT:		John Gardiner
INSURER:		QBE Workers Compensation (NSW) Limited
FILE NUMBER:		A1-2155/10
ARBITRATOR:	Mr J Wynyard
DATE OF ARBITRATOR’S DECISION:		25 June 2010
DATE OF APPEAL HEARING:	17 November 2010
DATE OF APPEAL DECISION:		24 November 2010
SUBJECT MATTER OF DECISION:		Hip injury; assessment of medical evidence; aggravation of degenerative changes
PRESIDENTIAL MEMBER:		Deputy President Bill Roche
HEARING:		Oral
REPRESENTATION:		Appellant:	Mr D Saul, instructed by Astridge & Murray Solicitors
Respondent:		Mr J Jobson, instructed by Gerard Malouf & Partners
ORDERS MADE ON APPEAL:		The Arbitrator’s determination of 25 June 2010 is revoked and the matter remitted to another Arbitrator for re-determination in accordance with the reasons in this decision.
The appellant employer is to pay one-half of the respondent worker’s costs of the appeal, as assessed or agreed. Costs of the first arbitration, and of the second arbitration, are to follow the event of the second arbitration.

BACKGROUND

The respondent worker, John Gardiner, started work for the appellant employer, Boral Resources (NSW) Pty Ltd (Boral) (wrongly sued as Boral Construction Materials Group Limited), as a driver in January 2005. He drove a concrete-mixing truck and delivered pre-mixed concrete to various sites in and around Sydney.
On 26 July 2006, Mr Gardiner delivered concrete to a site at Maroubra. Concrete flowed from the truck through a six-inch tube. As pressure built up, a clamp near where Mr Gardiner stood gave way and back-pressured concrete struck Mr Gardiner with great force on his right groin and thigh area and blew him off the step on which he had been standing. On starting the pumping process a second time, the pressure again built up and “blew the line” and hit Mr Gardiner. After clearing the line once more, the pumping process started again, but it again blocked and the load was rejected.
Mr Gardiner reported the accident to his manager and sought medical treatment from Dr Ma, a general practitioner at Green Square Medical Centre. Dr Ma certified Mr Gardiner fit for suitable duties and ultimately fit for his pre-injury duties. Mr Gardiner continued his pre-injury duties, but with continuing pain. The employer declined his request for reduced hours. Because of his pain, he was unable to sleep properly and felt tired. The employer stood Mr Gardiner down in May 2009 until he obtained a certificate saying that he would not fall asleep. The reason for his excessive tiredness was lack of sleep due to pain in his right hip and thigh.
In a letter dated 15 May 2009, Mr Gardiner’s solicitors claimed lump sum compensation in respect of a 20 per cent whole person impairment as a result of his injury. In support of the claim, Mr Gardiner relied on evidence from Dr Matalani that, as a result of the incidents on 26 July 2006, he had suffered a soft tissue injury to his right thigh and right hip region and developed secondary degenerative changes in the right hip, which the altered mechanics of his gait accelerated.
Boral’s workers compensation insurer, QBE Workers Compensation (NSW) Limited (QBE), accepted provisional liability and paid voluntary compensation until the end of September 2009. In a s 74 notice dated 19 August 2009, QBE disputed liability on the following grounds:
(a)Mr Gardiner had not received an injury to his right hip on or about 26 July 2006;
(b)Mr Gardiner had recovered from the effects of any injury occurring on or about 26 July 2006;

(c)any condition from which Mr Gardiner suffered was not related to a work injury on or about 26 July 2006;

(d)Mr Gardiner had a pre-existing condition in relation to his adductor region of the right groin, and

(e)employment was not a substantial contributing factor “in relation to any right thigh and/or right hip condition”.

Essentially, QBE relied on evidence from Dr Hitchen, orthopaedic surgeon, to the effect that Mr Gardiner had suffered only a minor injury to his hip from which he had recovered within weeks and that his symptoms were due to a pre-existing arthritic condition in his right hip.
In an Application to Resolve a Dispute (the Application) registered in the Commission on 17 March 2010 and amended at the arbitration, Mr Gardiner claimed weekly compensation in the sum of $1,275 from 30 September 2009 to date and continuing, together with lump sum compensation in the sum of $27,500 in respect of an alleged 20 per cent whole person impairment as a result of the condition of his right lower extremity. The Application described the injury as an injury to the hip, buttocks, right leg, left leg, groin and thigh.
In a Reply filed on 7 April 2010, Boral confirmed the issues in dispute to be those set out in the s 74 notice prepared by QBE on 19 August 2009.
The Commission listed the matter for conciliation and arbitration on 22 June 2010. Over objection by counsel for Boral, the Arbitrator allowed Mr Gardiner to give brief oral evidence in chief, but also allowed extensive cross-examination. After hearing lengthy submissions, he delivered an extempore decision in which he found that Mr Gardiner had injured his right thigh and right hip region in the incidents on 26 July 2006 and rejected the employer’s argument that the continuing right hip symptoms were due to pre-existing osteoarthritis.
Consistent with the Arbitrator’s finding, the Commission issued a Certificate of Determination on 25 June 2010 in the following terms:
“The determination of the Commission in this matter is as follows:
Findings
1.       I find the applicant was injured on 26 July 2006 and incapacitated thereby.
2.       I find that the applicant would have been able to earn in similar employment but for his injury the sum of $1,275 per week.
3.       I find that the applicant is able to earn in some suitable employment reasonably assessable to him the sum of $400 per week.
4.       I see no reason to exercise my discretion herein.
The orders made are as follows:
1.       Therefore there will be an award in favour of the applicant as follows:-
a.$55.58 (1/7^th of $389.10) 30 September 2009;
b.$396.10 from 1 October 2009 to 31 March 2010;
c.$403.70 from 1 April 2010 to date and continuing as adjusted.
2.       I remit this matter to the Registrar for referral to an AMS on the following bases:-
a.Date of injury: 26 July 2006
b.Matters for assessment: Right lower extremity (hip)
c.Method of assessment: WPI
d.Evidence:
i.The Application to Resolve a Dispute plus attached documents;
ii.The Reply plus attached documents.
3.       The respondent is to pay the applicant’s costs as agreed or assessed. I certify this matter as complex and order an uplift of 20 percent applicable to both parties.”
In an appeal filed on 19 July 2010, Boral seeks leave to challenge the Arbitrator’s findings and determination.

LEAVE TO APPEAL

Monetary threshold

Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of s 352 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).

It is not disputed that 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.

I grant leave to appeal.

ISSUES IN DISPUTE

Boral has not identified any grounds of appeal, but has merely asserted that the Arbitrator’s decision should be revoked and that an award should be entered in its favour. It has alleged that the Arbitrator erred in that he:

(a)accepted Mr Gardiner as a witness of truth;
(b)found that Mr Gardiner injured his right hip on 26 July 2006;

(c)found that Mr Gardiner’s incapacity was related to the injury on 26 July 2006, having not paid sufficient regard to the medical opinion of Dr Hitchen, Mr Gardiner’s pre-injury complaints, Mr Gardiner’s subsequent right hip injury on 2 April 2008 and the inconsistencies in Mr Gardiner’s statements, histories and oral evidence, and

(d)referred the matter to an Approved Medical Specialist for assessment of whole person impairment in respect of the right lower extremity.

THE EVIDENCE

Mr Gardiner’s evidence is set out in his statement dated 15 January 2010 and in his oral evidence before the Arbitrator on 22 June 2010.
In his statement, Mr Gardiner said that, after arriving at Almer Road, Maroubra on 26 July 2006, he reversed his truck onto a concrete pump. He lined up the truck’s chute with the pump and started the discharge with the remote control. He said:
“I was required to stand at the back of the truck on the steps to see the hopper to insure [sic] that it does not overfill. Once the pumping started it flowed from the truck to the line into a 6 inch tube, within a few seconds the pump built up pressure and the elbow clamp joint where I was standing at the back of the truck gave way and I was hit with great force by the back-pressurised concrete.”

Mr Gardiner said he was hit “in the groin and thigh area and suffered great pain” and was “blown off the step” on which he had been standing. The step was two to three feet off the ground. Another pump operator cleared the line and Mr Gardiner was told to start the pump again. The pressure built up a second time and again “blew the line” and hit him and another truck driver. Mr Gardiner did not say which part of his body the concrete struck on this occasion. The line was again cleared but blocked a third time and the load was ultimately rejected.
Mr Gardiner reported the accident to his manager, who took him to see Dr Ma. Dr Ma certified the worker fit for suitable duties from 26 July 2006 until 2 August 2006. His pain continued and he was ultimately referred to a specialist who informed him that his “hip had rapidly deteriorated from the injury”. His pain continued, but he was not permitted to take pain-relieving medication and drive his truck.
Mr Gardiner worked 15 hours a day in “continual pain”. He requested Boral to reduce his hours, but there was no change. Because of his pain, he was unable to sleep properly and felt tired.
In May 2009, Boral stood Mr Gardiner down on full pay until he obtained a doctor’s certificate saying that he would not fall asleep. Mr Gardiner said that his tiredness had been due to the pain in his “hip and thigh” and lack of a proper night’s sleep. Once he stopped work, Mr Gardiner started taking Panadeine Forte. He said that, prior to 26 July 2006, he had never had any “complaints to [sic] [the] hip or thighs”. Since the accident, the quality of his life had significantly diminished to the point where he suffered from “constant pain”. He was unable to ride his motorbike because he could not lift his leg over it and could not go fishing because he feared that he would lose his balance on the rocks. He had difficulty shopping and needed to hold the trolley for balance.
In his oral evidence, Mr Gardiner referred to an incident on 2 April 2008 at a job in North Sydney where he stepped out of his truck and, because it was muddy, slipped and did the “splits” on the mud, which “sort of aggravated my hip” (T9.38). He also experienced an increase in hip pain on 5 April 2008 (T10.45). Mr Gardiner said that he had been told that any time he was in pain he had to “fill out an early notification form” (T10.46) and that is what he did on most occasions. Whilst he completed a few forms, he eventually stopped because every time he completed a form his case manager would take him to see a doctor (T10.54).
In cross-examination, Mr Gardiner agreed that, when he slipped on 2 April 2008, he felt immediate pain in his hip (T13.8) and that was why he completed an Early Notification of Injury form on the same day. He agreed that he described his injury on that form as “hip pain” (T13.25). He added that he had been told by Boral that every time he felt pain he was to “put it down as hip pain because it was a recurring – not a new injury each time” (T13.34).
Mr Gardiner agreed that he completed an Early Notification of Injury form in respect of his 2006 injury. That document described the injury or condition as a “strain”. The same document described the parts of the body that were affected as “right thigh/groin”. Mr Gardiner agreed that they were the parts of the body that he injured on 26 July 2006.
Counsel also cross-examined Mr Gardiner about the contents of a document headed “WorkCover register of injuries”. He agreed that he completed that document and signed it on 26 July 2006 and that he described his injury as “pain in right thigh”. The following exchange then occurred (T15.49):
“Q. You don’t put, I want to suggest to you, in either of those forms whether you dictated on the typed form or in your own handwriting on the form that I’m now asking you about, anything to do with your hip, do you?
A. But I classified from there – if I get hit there by concrete, I call that as my thigh, or in there. From there up around there, I class as my thigh.
Q. You are now indicating, sorry, from what I can see, right from the upper part of your hip, right up to what, further up past your waist up to your –
A. From there down. Well, that’s what I call my thigh.
Q. Well, why did you say that?
ARBITRATOR: He’s indicating it looks like from the pelvis out upwards.
THE WITNESS: I got hit. The concrete hit me all there – all around there. So I just called that groin and thigh area.
MR SAUL: Yes.
A. And it’s - and eventually it’s --
Q. But you know the difference between a hip which is part of your pelvis, as the Arbitrator has just said, on the right-hand side, and the lower part or the upper part
of your leg – the inside of your leg which is your thigh and your groin, you know the difference, don’t you?
A. I only mentioned it to the doctors and said that’s where I got hit. And he said groin – well, I guess, the manager said groin and thigh, so I just let it go at
that.”
When it was put to Mr Gardiner that, on 26 July 2006, he injured his groin and thigh, he replied (at T16.41):
“Well, I don’t know, because that’s not what the doctor told me eventually. That’s what they – you see, when I got hurt originally, they didn’t send me for an X-ray
or anything so I had no idea.”

After an exchange between counsel, the Arbitrator said (T16.51):

“ARBITRATOR: I’ll stop you both.
Q. Mr Gardiner, you have just indicated an area which you call your thigh and said that’s where it hit you, that’s where the concrete hit you; is that right?
A. Yep.
Q. Is there any other part of your body that was injured as well?
A. Well, it hit me – it was the same when I went to the doctors, it hit me there, right, which to me, is there.
ARBITRATOR: He is indicating groin back to the pelvis.
THE WITNESS: Well, where’s your hip? Your hip is there.
MR SAUL: Exactly.
THE WITNESS: So if it has hit me there – well, if it’s hit me there, it hasn’t hit me in the bum has it? So it’s hit me there.
ARBITRATOR: All right. Okay, Mr Gardiner.
THE WITNESS: I just – I can’t explain.
ARBITRATOR: It’s all right. Lay language is not always the best way of imparting information.
THE WITNESS: I understand, I just get frustrated at times, because I can’t – I can’t explain.”

Counsel then put to Mr Gardiner that he injured his thigh and groin on 26 July 2006 and Mr Gardiner responded “that’s where I got hit by the concrete, yes” (T17.55). Mr Gardiner then added, “but the injury was when I fell off the truck” (T17.58).
After further questions about the 2008 incident, Mr Gardiner said (at T18.26):
“Well, the doctor – after I’d been back the second time and had the MRI, the doctor explained to me that it was my hip. Because originally, they said it was soft tissue damage - they thought it was soft tissue damage - and they were treating me for soft tissue damage. When it didn’t improve, I went back for another MRI. When I come back and the doctor said it’s your hip, it’s not – so then they started treating me for a hip, and he said that the symptoms are the same where you get pain all down the side, in your thigh and everywhere. And that’s why he couldn’t understand they never sent me for an X-ray when it first happened.”

Mr Gardiner agreed that he injured his right hip in 2008 (T18.53). However, in respect of the 2006 incident, he said that he did not know what was wrong with him (T18.58), but agreed that he wrote down that the concrete hit his thigh and groin.
On the question of whether Mr Gardiner had ever previously had problems with his hip or thighs, he said that he had slipped on the back of trucks and strained his groin “a couple of times” (T19.35). He agreed that he had previously complained of his groin because “it was a common occurrence” to slip on the back of trucks (T19.42). Mr Gardiner classified his groin symptoms before July 2006 as “different sorts of injuries” (T20.19). When he was questioned about previous symptoms in his groin and thigh, Mr Gardiner said (at T20.26):
“A. Yeah, but my interpretation is that if I get really hurt, I’m hurt. But if I just – my leg slips and you tear a groin muscle getting out of the truck, that’s – that to me is just a work – keep working on a daily basis sort of thing. To me they’re two different sorts – like, it’s a strain that you do when you slip. That’s not the case on the day when I got hurt, I got hurt sort of thing. But the others are just slips and strains that you get every day driving a truck, when you’re delivering in mud and concrete and that’s my – I just interpret things different as injuries or just a daily sort of occurrence sort of thing. I don’t know.
MR SAUL: Q. I want to suggest to you, sir, that your statement – what you say in your statement is very clear. That is that you are telling the Commission that prior to that date those parts of your body you had never had problems with before 26 July ‘06. That’s what you are telling the Commission isn’t it? Yes or no, please?
A. Well, might have done. I just don’t interpret it that way. It’s just that (inaudible 0:45:42).
Q. Well, how else do you interpret it, sir, if when you say you haven’t had problems with those parts of your body before that date?
A. Well, to me it’s just as I explained, it’s a different injury. I could put down yes all my life from playing football, you tear a groin muscle or something. That wasn’t what I interpreted this as.
Q. Well, had you had football injuries?
A. Well, over the years I’ve probably torn groin muscles. Working I’ve torn – you tear groin muscles. Everybody tears a groin muscle, but you don’t –
Q. Let’s not worry about everybody at the moment. Let’s just worry about yourself.
A. Oh, well, but I’m just trying to explain it to you how – how my mind thinks when I fill out these forms.
Q. That’s all right. But I just want to know, have you had football injuries and hurt your groin in the past?
A. God, over 20 years I probably have. I can’t remember when.
Q. And similarly with your right hip, have you had football injuries and felt pain in your right hip before?
A. Not with my right hip. I’ve had no problem with my right hip up until the day I got blown off the truck.”

Counsel then asked the following question (at T22.12):

“Q. As I understand your case, sir, just look at me for a moment. As I understand your case, you are saying to the Commission that before the concrete incident in July ‘06, you never had any problems with these parts of your body ever before, that’s what you were saying?

A. No, I’m not. I’m just saying that they were different types of – it’s – you know the difference when you pull a muscle to snap a bone, or something like that, and that’s just the difference. If you slip and you pull a muscle, you can feel it. But the day the accident happened when I got blown off the truck, I just couldn’t – I couldn’t bear any weight whatsoever on me leg. I couldn’t do anything. And it took me about 20 minutes before I could hobble – hobble around.”

Documentary evidence

Boral tendered several documents relating to the claim. The first was a WorkCover register of injuries completed and signed by Mr Gardiner on 26 July 2006. In that document, he described his injury as “pain in right thigh”. He described the “cause of injury” as:
“Pump line blew – causing me to turn sharply twisting right leg – cannot lift right leg.”
Boral also tendered an Early Notification of Workplace Injury form completed by Wayne Biggs, safety and environmental officer, on 27 July 2006. Mr Biggs described the injury as having occurred as follows:
“While avoiding concrete being blown out of a concrete pump hopper John turned sharply and felt pain in his right thigh/groin area.”
This form described the injury as a “strain” and the parts of the body affected as “right thigh/groin”. The severity of the injury was described as “minor/moderate”.
A third document, unidentified and undated, described the incident as follows:
“Concrete hit me in the groin with force.”
This third document described the injury as a “strain to right groin area”.
An undated document headed “Incident Report” referred to an incident on 2 April 2008 involving Mr Gardiner in the following terms:
“As John was getting out of his truck, he slipped on some mud & experienced some pain in his hip.
[T]his appears to be a re-aggrevation [sic] of a previous injury (DOI 26.07.06 – SF0287856)”.
The Incident Report added that Mr Gardiner required no first aid and declined the offer to see a doctor.
Boral also tendered an Early Notification of Injury document dated 2 April 2008 in which Mr Gardiner described having slipped on mud whilst getting out of a truck on that day and having “hip pain”. An additional handwritten note at the top of the document recorded:
“SF0287856
DOI – 26/7/06
·no Doctors visit”.
Last, Boral relied on an Early Notification of Injury document completed by Mr Gardiner on 5 May 2008. That document referred to an injury on 5 April 2008. The injury was described as “pain increasing on daily basis”. The injury was described as “hip pain”. A handwritten notation at the top of that document recorded “THIS IS NOT A NEW INJURY”.

Medical evidence

Mr Gardiner tendered clinical notes from his general practitioner, Dr Sellathurai, which cover attendances from January 2004 until November 2009.
Mr Gardiner saw Dr Sellathurai on 10 March 2006. The doctor’s notes recorded “adductor muscle strain (R) groin”. The doctor prescribed Voltaren and referred the worker to Dr Bloomberg. There is no record that the worker ever saw Dr Bloomberg.
Mr Gardiner again saw Dr Sellathurai on 13 June 2006. The notes record “recurrence of adductor muscle strain (R) groin, worse with strain of (R) hip”. The doctor prescribed Voltaren and local heat, and referred Mr Gardiner for physiotherapy. The notes do not record if Mr Gardiner received any physiotherapy treatment.
The worker saw Dr Ma, general practitioner at the Green Square Medical Centre, on 26 July 2006. In a WorkCover certificate on that date, Dr Ma described the injury as having occurred when “concrete pipe burst and concrete falling [sic] on his R leg”. Dr Ma certified the worker fit for suitable duties until 9 August 2006. On 9 August 2006, Dr Ma certified the worker fit for his pre-injury duties with a diagnosis “right groin – settled”. He issued an identical certificate on 16 August 2006. In all of his certificates, Dr Ma diagnosed “right groin strain”.
Mr Gardiner saw Dr Sellathurai on 25 September 2006. The doctor’s notes are difficult to read, but they clearly refer to an injury to the right groin “when a concrete pump blew & hit him at work on ? 26/7/06”. They also refer to Mr Gardiner “getting worse”. On examination, Mr Gardiner was tender in the right groin and there was a decreased range of movement in the right hip.
On 26 September 2006, Dr Sellathurai referred the worker to Dr Clark, orthopaedic surgeon. Dr Sellathurai issued a WorkCover certificate on the same day certifying the worker unfit from 25 to 27 September 2006 with a diagnosis of “chronic Rt groin pain - ? soft tissue injury, ? ref from L/S spine”. The certificate recorded the date of injury as 26 July 2006.
Dr Clark reported to Dr Sellathurai on 5 October 2006. He took a history that Mr Gardiner was standing behind his truck during a concrete pour when part of the mechanism came loose and concrete “suddenly flung around striking him on the inner side of his right thigh”. He said that he felt a “snap” in that region at the time and “since then there has been ongoing pain”. The worker denied any previous similar complaints. His symptoms appeared to arise from the region of the “sartorius or the adductor muscle group” on the inner side of the thigh. Pain was produced on hip flexion with slight external rotation. X-rays of the right hip and femur were “essentially clear”. Dr Clark recommended an MRI scan.
In an MRI scan of the right thigh dated 12 October 2006, Dr Gale said that the “proximal femur and right hip joint define[d] normally”. Dr Gale wrote that the “indication” for the scan was “pain in the medial aspect of the upper right thigh, ? muscle tear”. Dr Clark noted the normal MRI scan in a report dated 19 October 2006, but added that Mr Gardiner continued to complain of pain with tenderness, “mainly along the upper aspect of the adductor longus muscle”. He thought that Mr Gardiner had sustained a “soft tissue strain to that area without any disruption”.
Dr Clark reviewed the worker on 21 February 2007 and noted that he continued to complain of pain in the inner aspect of his right thigh. It was “still episodic and present with certain movements of hip flexion with slight external rotation”. Mr Gardiner continued with his normal work duties. Dr Clark thought there was evidence of a tear involving a small part of the adductor longus muscle, but Mr Gardiner remained fit for his normal work duties.
Gary Hua, physiotherapist, examined Mr Gardiner on 14 March 2007. In his report of the same date, Mr Hua stated that the worker suffered from “chronic right groin/thigh pain following a twisting/strain injury at work on the 26^th July 2006”. He presented “with clinical signs of [a] right hip flexors strain”. Mr Gardiner’s walking tolerance was limited to 15 minutes and squatting was half the normal range. He also had difficulty swinging his leg out of the car, climbing on his truck, and was still unable to resume recreational activities such as fishing, boating and motorbike riding.
Dr Clark reviewed the worker on 4 October 2007. Mr Gardiner continued to complain of pain around the upper and inner aspect of his right thigh and groin. He had minimal symptoms at rest, but with further twisting movements, the pain returned. He had been performing light duties at work, but had been given a two-storey building to paint and had further pain. Dr Clark recommended a repeat MRI scan.
An MRI scan of the right groin on 8 October 2007 revealed “moderate osteoarthritis of the right hip”, but no abnormality in the right inguinal region or groin region. The radiologist, Dr Mander-Jones, recorded a clinical history of “right groin pain continuing after injury July 2006”.
Dr Clark reviewed Mr Gardiner on 17 October 2007 and reported to Dr Sellathurai on that date. He said that it was “most likely” that Mr Gardiner sustained a “capsular injury to the hip at work in July 2006”. He said that subsequent x-rays revealed mild degenerative changes in the hip, but they had increased in severity. He advised Mr Gardiner about strict weight control and to continue with his exercise program. Mr Gardiner was fit to return to work driving a truck.
Dr Matalani, consultant occupational physician, examined Mr Gardiner for medicolegal purposes on 19 November 2007. In a report of the same date, he took a history that Mr Gardiner was hit by concrete in his right groin and right thigh after clamps gave way on 26 July 2006. He felt pain “in the groin, upper part of the right leg and right hip region”. Mr Gardiner returned to work on light duties for a few days and then resumed his normal duties. However, his symptoms persisted and intensified.
Mr Gardiner complained to Dr Matalani of the following symptoms:
(a)pain in the right hip region radiating down to the right groin and into the right testicle;
(b)pain on the anterior and medial aspect of the right thigh to just above the knee joint;

(c)numbness with loss of sensation and reduced sensation in the lateral aspect of the hip and just above the hip, and

(d)favouring his right leg and a tendency to limp slightly.

Mr Gardiner estimated his maximum walking capacity to be approximately five minutes before he had to stop and rest. Standing for longer than 10-15 minutes was very uncomfortable and he tended to stand mostly on his left leg. Prolonged sitting for more than 30 minutes became very uncomfortable and he needed to change his position. He was unable to drive for more than 60 minutes non-stop. The pain often disturbed his sleep. Ascending and descending stairs was difficult and something he avoided. Squatting was also painful. He took Panadeine Forte when necessary, but was unable to take them when driving.
Under “relevant past and medical history”, Dr Matalani noted that Mr Gardiner had a work-related lower back injury in 2005. However, he returned to work within three to four days and his symptoms resolved completely. Mr Gardiner said that “his right hip was asymptomatic on the day of the injury and prior to his employment with Boral Concrete”. Prior to starting with Boral, Mr Gardiner had worked as a delivery driver at Flemington Markets for approximately four to five years.
Dr Matalani reviewed the radiological evidence and stated that x-rays of the right hip and thigh dated 25 September 2006 demonstrated an early narrowing of the right hip space in the weight bearing area compared to the normal appearance on the left side. There were also degenerative changes in the lumbar spine. He confirmed that the October 2006 MRI scan revealed no significant abnormality and that the October 2007 MRI scan demonstrated moderate osteoarthritic changes in the right hip.
On examination, Mr Gardiner walked with an antalgic gait and was limping favouring his right leg. Measurements revealed 3 cms of wasting of the right thigh. He denied any pain in his lower back.
Dr Matalani diagnosed a soft tissue injury to the right thigh and right hip region. He thought that Mr Gardiner appeared to have developed “secondary degenerative changes in the right hip” which were likely to have been “caused by the altered mechanics of his gait”. There was a significant difference in the degree of osteoarthritis reported in September 2006 and that reported in the MRI scan of 8 October 2007. Dr Matalani concluded:
“Mr Gardiner’s right hip was asymptomatic prior to the above injury and prior to his employment with Boral concrete. The events as described and his clinical presentation are consistent. His injuries are consistent with the stated cause. His employment has been a substantial contributing factor in the development of his current disability.”
He felt that Mr Gardiner was unfit for work involving prolonged standing, prolonged walking or walking on uneven ground, walking on inclines, repetitive squatting, repetitive stair- or ladder-climbing, or prolonged driving. He thought he needed to cut down on his hours of work, as his symptoms were likely to be aggravated towards the end of the day.
Dr Matalani reviewed Mr Gardiner on 23 February 2009 and prepared a supplementary report on that date. He stated that x-rays of the right hip on 5 March 2008 revealed marked osteoarthritic changes in the right hip with deformity of the neck suggesting “accelerated degenerative changes related to old pathology such as slipped epiphysis”. Dr Clark had recommended hip replacement surgery. Essentially, Mr Gardiner’s symptoms were the same as those noted by Dr Matalani in his 2007 report. His ability to drive non-stop had reduced from 60 minutes to 45 minutes. His other restrictions were essentially as noted by Dr Matalani in 2007. The doctor repeated that pain often disturbed Mr Gardiner’s sleep.
As in his first report, Dr Matalani diagnosed a soft tissue injury to the right thigh and right hip region and that Mr Gardiner had “developed degenerative changes in the right hip, accelerated by the altered mechanics of his gait”.
Under “opinion”, Dr Matalani said:
“Mr Gardiner’s right hip was asymptomatic prior to the above injury and prior to his employment with Boral Concrete. His injury is consistent with the stated cause. His employment has been a substantial contributing factor in the development of his current disability.”

Dr Matalani added additional information about Mr Gardiner’s educational and occupational history. Mr Gardiner completed year 9 at the age of 15 and then worked as an apprentice pastry cook. He then worked with Australia Post as a telegram boy and then for the railways as a fettler/labourer, a truck driver and, for a short time, a timekeeper. He also worked as a brickie’s labourer, cement labourer and a truck driver, and a deckhand on a fishing boat. Dr Matalani felt that the worker was fit for restricted duties with the same restrictions listed in his 2007 report. He added that he was able to continue at work because he was permitted to have frequent rest breaks and was usually able to alternate between sitting and standing. Getting in and out of his truck sometimes precipitated his pain.

Dr Matalani prepared a supplementary report on 1 May 2009 dealing with whole person impairment assessments.
At the request of QBE, Dr Hitchen, orthopaedic surgeon, examined Mr Gardiner on 19 June 2009. In his report of 22 June 2009, Dr Hitchen took the following history:
“Mr Gardiner alleges a right groin injury on 26 July 2006. On that occasion he was standing on the rear of his concrete truck. Some concrete was being pumped. Apparently a hose blew, causing the liquid concrete contents to splatter. Some of the splattering caught Mr Gardiner in the groin causing him to jump down from his truck. He fell to the ground. He experienced pain in his groin and thigh. He was attended to by a work colleague. He was able to drive his truck later. He finished work in the usual time, but recalled going to see his GP. He states that he was diagnosed with a groin injury and believes he had about a week off work. He states that no x-rays were undertaken.”
Dr Hitchen referred to the worker’s attendances on Dr Sellathurai on 10 March 2006 and 13 June 2006, when he complained of pain in the right adductor or groin region that was treated with a course of anti-inflammatory medication. By October 2006, the worker was complaining of increasing episodes of groin pain and was referred to Dr Clark. His symptoms did not resolve “to his satisfaction” throughout 2008 and he was “increasingly prone to limping”. He felt that he had been limping “increasingly in the last 12 months”. He experienced pain in his groin and thigh.
On examination, Mr Gardiner had a “right short leg gait that was lurching in nature”. He also had “the obligatory external rotation of the right leg as he walked that is classically seen with an old slipped femoral epiphysis”. His right hip was “irritable” to examination and had a reduced range of movement. His right leg was 1.5 cm shorter than the left leg. X-rays dated 5 March 2008 reported an “old slipped upper femoral epiphysis”. Dr Hitchen added that the MRI scan of the right groin dated 12 October 2006 revealed a “posteriorally tilted femoral head and posterior femoral head osteophytes on the right side as is classically seen with an old epiphysis”. The MRI of the right hip dated 8 October 2007 revealed arthritic changes in the hip, but no evidence of inguinal or groin pathology.
Dr Hitchen diagnosed osteoarthritis of the right hip. He added:
“Osteoarthritis can be primary or secondary. Secondary causes can arise following paediatric or adolescent hip pathology. For example, congenital dislocated hips, acetabular dysplasia or a condition such as Perthes disease or a slipped epiphysis are all childhood identities that can result in premature hip arthritis when an adult is in their 40’s or 50’s.”
Dr Hitchen considered it “irrefutable” that the March 2008 x-rays showed an old slipped femoral epiphysis. An epiphysis is a secondary bone-forming (ossification) centre separated from a parent bone in early life by cartilage. The changes had been present since Mr Gardiner was a teenager and placed his hip “at [a] biomechanical disadvantage causing premature and secondary osteoarthritis”. Further, the fact that Mr Gardiner’s right leg was short and externally rotated were classic signs seen following an “adolescent slipped femoral epiphysis”. Dr Hitchen stated:
“Mr Gardiner’s severe right hip pathology is completely unrelated to [his] workplace injury. I note his general practitioner’s report reveals that indeed he presented on a couple of occasions with groin pain before the alleged injury on 26 July 2006. These were signs that his hip arthritis was slowly getting worse. Hip pathology classically causes groin, thigh and sometimes knee pain. He is now at the point where his arthritis is end stage causing significant mobility problems and daily pain.
Mr Gardiner would have experienced symptoms at or around the same time in his life regardless of his vocation. The work injury on July 2006 has had no role to play in the evolution or deterioration of his hip arthritis.”

Dr Hitchen added that there was “no aggravation of a pre-existing condition”. He thought Mr Gardiner was unfit for his pre-injury duties because of his “end stage hip pathology”.
In his supplementary report dated 22 July 2009, Dr Hitchen said that he had examined the x-rays from 25 September 2006, which revealed evidence of an old slippage epiphysis from the right femoral head, “with mild coxa vara seen on the AP pelvic film and posterior tilting of the head on the lateral”. There was also associated joint space narrowing consistent with “established secondary right hip osteoarthritis”. Having seen this x-ray, Dr Hitchen confirmed that Mr Gardiner’s hip arthritis was pre-existent and was secondary to an old adolescent slipped upper femoral epiphysis. This was also consistent with Mr Gardiner’s shortened and mildly externally rotated right leg that was a “common sequelae of an unreduced slip”. The described work injury had not altered the “natural outcome for his hip”.
In a further supplementary report dated 18 August 2009, Dr Hitchen said that the worker would have suffered a minor jarring injury to his right hip on 26 July 2006 which would have caused an aggravation of symptoms arising from arthritis of the right hip. He added that Mr Gardiner recovered from the effects of the injury and that the “jarring event” would not have altered the natural outcome for his hip. It was inevitable that he would have experienced symptoms at or around the same time in his life. Dr Hitchen believed that the worker’s presentation to his general practitioner with groin pain in March and June 2006 was consistent with “evolution of symptoms arising from an arthritic hip”. The jarring event would not have altered the natural outcome and Mr Gardiner would have recovered from the effects of the work injury within a matter of weeks. In other words, the effects of the injury on 26 July 2006 were not continuing. The osteoarthritis came on prematurely “due to an old slipped femoral epiphysis”.

THE ARBITRATOR’S REASONS

The Arbitrator made the following observations and findings:
(a)so far as there was an inconsistency between the worker’s evidence in his statement and the entries in Dr Sellathurai’s notes about symptoms in March and June 2006, it was “minor” and did not impinge on the worker’s credit, who the Arbitrator found to be a “straight forward witness who answered the questions frankly and did not appear to be seeking to avoid any of the issues put before him” (T38.54);
(b)he accepted the worker’s evidence that it wasn’t until he saw Dr Clark that he realised the extent of the damage to his hip (T39.18);
(c)Dr Matalani took a “consistent history” including the review by Dr Clark and x-rays on 5 March 2008 (T39.44). Dr Matalani’s diagnosis – that Mr Gardiner suffered a soft tissue injury to the right thigh and right hip region and developed secondary degenerative changes in the right hip accelerated by the altered mechanics of his gait – was confirmed by the repeat MRI scan that showed there was in fact degenerative osteoarthritis in the right hip (T40.5);

(d)Mr Gardiner suffered a soft tissue injury to his right thigh and right hip region that “caused the onset of the osteoarthritis” (T40.12). Dr Matalani said “that that has been caused by altered mechanics of the applicant’s gait which he noted” (T40.13);

(e)he did not accept Dr Hitchen’s evidence because he did not accept that the incident on 26 July 2006 could be described as a “minor injury” (T42.4) and, though medical certificates certified the worker fit for his pre-injury duties, it was clear from his statement that he worked in pain and that there was no indication that he had “recovered from the effects of that injury and then the onset had come on” (T42.8). In any event, it was not sufficient for a medical expert to speculate on what would happen;

(f)there was no basis for Dr Hitchen’s view that the condition would have come on at the same time regardless of what Mr Gardiner had been doing. The only basis for that view was “speculation” by the medical expert looking at the
x-rays and having the advantage of “20/20 hindsight in view of the fact that this condition has overcome the applicant” (T42.18). He was not convinced by Dr Hitchen’s reasoning that the accident on 26 July 2006 was unrelated to the worker’s present condition and he accepted Dr Matalani’s evidence that the “alteration in gait caused by the symptoms arising from this injury had accelerated that diagnosis” (T42.22) and qualified the worker for compensation, and

(g)he found Mr Gardiner to be partially incapacitated and determined probable earnings but for the injury to be $1,275 per week and ability to earn after the injury to be $400 per week. As the differential exceeded the statutory maximum and as there were no reasons for the exercise of the discretion, the Arbitrator awarded compensation at the statutory maximum.

SUBMISSIONS

After setting out a summary of relevant parts of the evidence, it was submitted on behalf of Boral that:
(a)as he had no history of the March and June 2006 symptoms or the hip injury in 2008, Dr Matalani’s evidence was of diminished value, particularly in respect of causation (Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705);
(b)Dr Hitchen had access to Dr Sellathurai’s clinical notes. Those notes supported his opinion that the worker’s right hip condition was unrelated to any work injury. Therefore, Dr Hitchen’s opinions regarding diagnosis and causation should be preferred to those expressed by Dr Matalani;

(c)the Arbitrator erred in accepting Mr Gardiner as a witness of truth when the cross-examination demonstrated that he was “evasive and vague”;

(d)the Arbitrator erred in finding that Mr Gardiner injured his right hip on 26 July 2006 and in finding that his incapacity resulted from that injury;

(e)the Arbitrator erred in not paying sufficient regard to the evidence from Dr Hitchen, the worker’s pre-injury complaints, the worker’s subsequent right hip injury in April 2008 and the inconsistencies in the worker’s statements, histories and oral evidence, and

(f)the Arbitrator’s decision should be revoked and there should be an award made in favour of Boral together with a finding that Mr Gardiner did not injure his right hip in the incidents on 26 July 2006.

It was submitted on behalf of Mr Gardiner that:
(a)it is reasonable to accept that “within the groin and thigh area is the hip”. The worker’s description of the area of injury should not be “found wanting when giving a less than perfect anatomical description”;
(b)the worker denied that the incident on 2 April 2008 was a “frank injury” and the Arbitrator accepted his evidence. The employer provided no “statement to the contrary”. The worker’s evidence, accepted by the Arbitrator, was that he had been told to report any pain or injury “received whilst at work”. The incident report dated 2 April 2008 accepted that it was a “re-aggravation of a previous injury”;

(c)the entries made by Dr Sellathurai in March and June 2006 do not contradict the worker. They refer to a muscle strain of the right groin. In cross-examination, the worker denied that he had previous hip problems;

(d)the Arbitrator was entitled to prefer the evidence from Dr Matalani and there is no error. Mr Gardiner provided truthful and direct responses in cross-examination and was not evasive, and

(e)the Arbitrator’s decision should be confirmed.

DISCUSSION AND FINDINGS

Boral’s case at arbitration and on appeal was that Mr Gardiner only suffered a groin strain from which he had fully recovered by 9 August 2006, the date on which Dr Ma certified that the strain had settled and that he was fit for his pre-injury duties. This argument is inconsistent with the overwhelming weight of the evidence and I do not accept it.

Counsel for Boral, Mr Saul, cross-examined Mr Gardiner extensively about which part of his body the concrete struck. Mr Gardiner’s indication of where the concrete hit him was summarised by the Arbitrator as “from the pelvis out upwards” (T16.6). That description encompasses the hip and satisfies me that the concrete came into contact with the general area of the worker’s hip. I do not accept that the initial reports of the injury (that Mr Gardiner merely turned sharply) were completely accurate. They were inconsistent with Mr Gardiner’s evidence and Dr Ma’s initial WorkCover certificate that concrete struck him and I accept, as the Arbitrator did, that that is what happened.
More importantly, the argument that the injury was no more than a groin strain and nothing to do with the hip is untenable as it is inconsistent with Boral’s own medical expert. Dr Hitchen stated that hip pathology “classically causes groin” pain. This evidence, combined with Mr Gardiner’s evidence of the circumstances of the incident, is compelling evidence that Mr Gardiner injured his right hip. This conclusion is also consistent with Dr Clark’s ultimate opinion that Mr Gardiner suffered a capsular injury to his right hip at work on 26 July 2006. I therefore accept that Mr Gardiner injured his right hip when concrete struck his right thigh and groin on 26 July 2006. The exact nature and extent of the pathology caused by that incident, and whether the effect of the injury is continuing, are more difficult to determine.
Boral placed great weight on Dr Ma’s certificate of 9 August 2006, which stated that the groin strain had settled and that Mr Gardiner was fit for his pre-injury duties. Whilst that certificate is relevant, it is far from conclusive. Mr Gardiner’s evidence, which the Arbitrator accepted after having heard and seen him give evidence, was that he continued to have symptoms after he returned to work and resumed his normal duties. There is no persuasive evidence, let alone “incontrovertible” evidence (Fox v Percy [2003] HCA 22; 214 CLR 118), that the Arbitrator erred in accepting Mr Gardiner’s evidence on this point.
The objective evidence supports the Arbitrator’s finding that Mr Gardiner had not fully recovered from the effects of his injury by 9 August 2006. Dr Sellathurai’s notes and Dr Clark’s reports corroborate the worker’s evidence that, though he had returned to work, he continued to have groin symptoms. On 25 September 2006, Dr Sellathurai took a history of the work incident and that Mr Gardiner was “getting worse”, not that he had recovered. Because of his continuing symptoms, Dr Sellathurai referred the worker for specialist treatment from Dr Clark, who took a consistent history of “ongoing pain” since the work incident. In all the circumstances, I do not accept that, by 9 August 2006, Mr Gardiner had recovered from the effects of his injury.
Mr Saul made much of the incident on 2 April 2008 when Mr Gardiner slipped on mud and experienced hip pain. That incident is not determinative of the issues in the present case. Dr Clark diagnosed Mr Gardiner’s hip problems in October 2007, well before April 2008. In any event, “it is well accepted that incapacity may result from an injury for the purposes of workers’ compensation legislation even though the incapacity is also the product of other – even later – causes” (Calman v Commissioner of Police [1999] HCA 60; 73 ALJR 1609 at [38]). In light of this authority, the 2 April 2008 incident is of little, if any, relevance. The complaint of hip pain on 5 April 2008 was clearly a manifestation of the damage already done to Mr Gardiner’s hip and is also of limited relevance. This is consistent with the notation on the Early Notification of Injury form dated 5 May 2008 that stated, “This is not a new injury”.
Mr Saul next argued that I would give no weight to Dr Matalani’s evidence because he based his opinion on a wrong and/or incomplete history. His history was said to be incomplete in that it did not refer to the 2 April 2008 incident. As I have noted, that incident is of little relevance and nothing turns on Dr Matalani’s failure to refer to it. However, Dr Matalani’s history that Mr Gardiner’s hip was asymptomatic prior to 26 July 2006 is relevant. As hip pathology classically causes groin pain, the entries in Dr Sellathurai’s notes on 10 March and 13 June 2006 when Mr Gardiner complained of symptoms of an “adductor muscle strain (R) groin” were clearly relevant to whether Mr Gardiner had hip problems before his work injury. Dr Matalani’s failure to refer to those problems has diminished the weight I attach to his evidence and the Arbitrator erred in saying that the inconsistencies between Mr Gardiner’s evidence (that he had no complaints with his hip or thighs before 26 July 2006) and Dr Sellathurai notes for 10 March and 13 June 2006 were “minor”.
In the course of oral argument on appeal, I raised a further difficulty with Dr Matalani’s evidence, namely that he had not explained why he concluded that Mr Gardiner’s employment was a substantial contributing factor to his current disability. His purported explanation was that Mr Gardiner had developed secondary degenerative changes in his right hip, which were likely to have been caused by the altered mechanics of his gait. Though Dr Matalani took a history of Mr Gardiner having a slight limp in his November 2007 report, he took no history of when that limp started or what caused it. In the absence of evidence on the point, there was no basis for inferring (as the Arbitrator did) that the limp resulted from the work incident. Dr Hitchen provided an explanation for Mr Gardiner’s altered gait that was inconsistent with it having been caused by the injury. He noted that Mr Gardiner’s right leg was shorter than his left leg and that he walked with his leg externally rotated, as was “classically seen with an old slipped femoral epiphysis”. This evidence is relevant to whether Mr Gardiner’s current condition has resulted from his injury or from some other cause.
Contrary to submissions made by Mr Gardiner’s counsel, and accepted by the Arbitrator, Mr Gardiner’s evidence did not offer a proper explanation for his attendances on Dr Sellathurai on 10 March and 13 June 2006, or for his statement that, prior to 26 July 2006, he had “never had any complaints to [sic] [the] hip or thighs”. His explanation was that he had slips and strains from driving a truck. He distinguished those strains from the incident on 26 July 2006 when he “got hurt” (T20.32), which was a “different injury” (T20.52). He did not deny that he had complained to Dr Sellathurai of groin symptoms on 10 March and 13 June 2006. Dr Sellathurai’s notes did not suggest that the symptoms the worker complained of on those days had been caused by a slip at work or elsewhere. The evidence in Dr Sellathurai’s notes, together with the evidence of the narrowing of the right hip space in the x-rays dated 25 September 2006, support Dr Hitchen’s opinion that the symptoms the worker complained of on 10 March and 13 June 2006 were consistent with the evolution of symptoms arising from an arthritic hip. However, that opinion does not rule out Mr Gardiner having suffered an aggravation or exacerbation or acceleration of the degenerative condition in his hip as a result of the work incident on 26 July 2006, or that his current symptoms and need for treatment have resulted from that aggravation or exacerbation or acceleration.

The Arbitrator also erred in finding that the injury to the right hip on 26 July 2006 “caused the onset of osteoarthritis” (T40.12) when, on proper analysis, there was no evidence to that effect.

However, the Arbitrator’s errors do not necessarily lead to the conclusion urged by Mr Saul, namely an award in favour of Boral. The claim must be assessed in light of all the evidence. That includes Dr Hitchen’s evidence in his report of 18 August 2009 that Mr Gardiner suffered a “jarring injury causing an aggravation of symptoms arising from arthritis of the right hip”. This opinion is inconsistent with his report of 22 June 2009 where he said (at page 5) that there had been no aggravation of a pre-existing condition. The inconsistency can be explained by the fact that Dr Hitchen did not have the September 2006 x-rays until he prepared his 22 July 2009 report. If Dr Hitchen’s evidence in his report of 18 August 2009 is accepted, and it is difficult to see why it would not be, Mr Gardiner suffered an aggravation injury under s 4(b)(ii) of the 1987 Act in that the work incident made his hip symptoms more severe or more grave (Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; 110 CLR 626). The Arbitrator failed to consider this evidence and the parties made no submissions about it at the appeal hearing, but focused mainly on Dr Matalani’s evidence.
Dr Hitchen concluded that the effect of the aggravation injury had ceased and would not have altered the natural outcome for the worker’s hip. He seems to have based that conclusion on four things: first, that the initial incident was a minor “jarring event”; second, that Mr Gardiner “would have recovered from the effects of [the] work injury within a matter of weeks”; third, the radiological evidence of degenerative changes in the right hip; and, last, that Mr Gardiner’s altered gait was something that was classically seen with an old slipped femoral epiphysis and, presumably, had nothing to do with his injury. The first two statements by Dr Hitchen were inconsistent with the evidence and the parties (either in submissions or in evidence) did not properly address the second two. For this reason, and the additional reasons noted at [94] below, the matter must be re-determined by a different Arbitrator.
Dr Hitchen based his conclusion that the incident on 26 July 2006 was a minor injury on his history that a hose blew causing “liquid concrete to splatter” and “some of the splattering caught Mr Gardiner in the groin causing him to jump down from his truck”. That was not the evidence the Arbitrator accepted. The evidence from Mr Gardiner was that he was hit with great force by “back-pressured concrete”, was “blown off the truck” and “couldn’t bear any weight whatsoever” on his leg and “couldn’t do anything” (T22.22). It took him 20 minutes before he could hobble around (T22.24). This was consistent with Dr Ma’s WorkCover certificate that a concrete pipe burst and concrete fell onto his right leg. It was also consistent with Dr Ma certifying the worker unfit for several days and with Dr Clark’s history that “concrete suddenly flung around striking him on the inner side of his right thigh”, that he felt a “snap” in that region at that time and, since then, had had ongoing pain. The evidence is clear, and the Arbitrator was right to find, that the incident was much more than a mere “jarring event”.
Dr Hitchen’s assumption that Mr Gardiner would have recovered from the effects of the work injury within a matter of weeks is contrary to the evidence that he has continued to experience groin and hip symptoms ever since 26 July 2006. Whilst I do not accept that Mr Gardiner recovered from his work injury by 9 August 2006 (see [84] above), as the matter is to be re-determined, I express no concluded view on whether his continuing symptoms, and need for further treatment, are a result of the injury or the degenerative changes. The relevance of the radiological changes and Mr Gardiner’s altered gait must be considered at the second arbitration in the light of the evidence tendered and submissions made on that occasion.

It follows that the questions about the nature of the injury, and whether the effect of the injury is continuing, must be re-determined. Normally, I would conduct that re-determination. In the present case, however, there are several reasons why it is appropriate that I remit the matter for re-determination before a different Arbitrator. First, important credit issues arise and I have not had the advantage of seeing and hearing Mr Gardiner give evidence. Second, the evidence is less than ideal in several respects and will need to be updated to deal with the issues still in dispute. It might be considered prudent (at the least) that evidence be obtained from Dr Clark and Mr Gardiner on these issues. Last, though it was not argued on appeal, Boral’s insurer has (apparently) failed to comply with cl 37 of Workers Compensation Regulation 2003 (the Regulation) in that it has not served certain medical reports on Mr Gardiner. Clause 37 is in mandatory terms and applies regardless of whether the report supports the insurer’s case (see Beale v Walgett DistrictHospital & Anor [2009] NSWWCCPD 60 at [41]). Whether those reports will be admissible at the second arbitration will depend, among other things, on the terms of cl 43 of the Regulation and the other medical evidence relied on at that hearing.

CONCLUSION

Having conducted a review on the merits, I have determined that Mr Gardiner injured his right hip when he was struck by concrete in the course of his employment with Boral on 26 July 2006. That issue is no longer in dispute. However, the exact nature of the injury, and whether the effect of the injury is continuing, must be re-determined by a different Arbitrator in the light of the evidence and submissions presented at the second arbitration.

Though I have revoked the Arbitrator’s determination, the appellant employer has failed on the main ground of its appeal, namely that Mr Gardiner did not injure his right hip. That argument was doomed to fail because of Boral’s own evidence from Dr Hitchen. The remaining issues must be re-determined. It is appropriate in the circumstances that Boral pay half of Mr Gardiner’s costs of the appeal.

DECISION

The Arbitrator’s determination of 25 June 2010 is revoked and the matter remitted to another Arbitrator for re-determination in accordance with the reasons in this decision.

COSTS

The appellant employer is to pay one-half of the respondent worker’s costs of the appeal, as assessed or agreed. Costs of the first arbitration, and of the second arbitration, are to follow the event of the second arbitration.

Bill Roche
Deputy President

24 November 2010

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

ASSOCIATE