Bozinovski v Sydney South West Area Health Service Fairfield Hospital - [2010] NSWWCCPD 89

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Bozinovski v Sydney South West Area Health Service – Fairfield Hospital [2010] NSWWCCPD 89
APPELLANT:		Ljuba Bozinovski
RESPONDENT:		Sydney South West Area Health Service – Fairfield Hospital
INSURER:		Employers Mutual Limited
FILE NUMBER:		A1-1196/10
ARBITRATOR:	Ms J David
DATE OF ARBITRATOR’S DECISION:		21 April 2010
DATE OF APPEAL DECISION:		18 August 2010
SUBJECT MATTER OF DECISION:		Failure to give reasons; failure to consider and analyse medical evidence; failure to consider worker’s evidence of continuing symptoms
PRESIDENTIAL MEMBER:		Deputy President Bill Roche
HEARING:		On the papers
REPRESENTATION:		Appellant:	Gajic & Co
Respondent:	Thompson Eslick Solicitors
ORDERS MADE ON APPEAL:		Paragraphs 1 and 3 and the direction included in the Determination of 21 April 2010 are revoked and the matter is remitted to a different Arbitrator for redetermination in accordance with the reasons in this decision. Paragraph 2 of the Determination of 21 April 2010 is confirmed. The respondent employer is to pay the appellant worker’s costs of the appeal, as assessed or agreed.

BACKGROUND

The appellant worker, Ms Bozinovski, was born in Macedonia in 1955. She came to Australia in 1974 and started work in a factory at Tempe. She worked intermittently between then and 1988, when she started work for the respondent employer at Fairfield Hospital in February 1988 as a full-time cleaner.
Her duties required her to collect rubbish, sweep floors, clean toilets and sinks, polish and vacuum floors, and use a mop. Essentially, her duties involved repetitive bending, twisting and kneeling.
Ms Bozinovski stated that she developed pain in her neck, arms and shoulders some time in 2003 or 2004. After a few weeks off work, she returned on light duties and then resumed her normal duties. Her symptoms intensified and she sought treatment from her local doctor, Dr Aran.
In March 2005, Ms Bozinovski slipped at work on a wet floor and experienced neck and back pain. She had a few days off work and then returned to work on her normal duties, but her back pain “got worse and worse”. She again saw Dr Aran, but remained at work, though she had trouble performing her duties. The pain was “particularly bad” in 2007. That pain included right knee pain, but it is not known when that pain started.
On 17 October 2007, Ms Bozinovski was mopping at work when she experienced back and right knee pain. She reported her symptoms to her supervisor and saw a doctor at Fairfield Hospital, who arranged for x-rays of her back. She also saw her general practitioner, who certified her unfit for work. She has not returned to work since.
Ms Bozinovski completed a “Notification of Injury/Illness” form on 18 October 2007 in which she described her injury as “(R) sciatica”. She described the injury as having occurred “during the day 17/10/07 mopping corridors felt pain lower back & (R) leg”.
The respondent employer’s insurer, Employers Mutual Limited (‘Employers Mutual’), accepted liability and commenced voluntary payments of compensation. Details of those payments are not in evidence.
In a section 54 notice dated 18 December 2009, Employers Mutual disputed liability and gave notice that it would stop weekly compensation payments on 1 February 2010. The section 54 notice gave inconsistent reasons for disputing liability. Under “Statement of Matters in Dispute”, it said that Ms Bozinovski no longer suffered the effects of any injury and was not incapacitated for work as a result of any injury. It added that employment was “no longer a substantial contributing factor to any injury” to the worker’s neck, back, right arm and lower limbs and that medical expenses incurred were no longer reasonable or necessary. Under “Reason(s) for the Decision”, it was stated that Ms Bozinovski had not “sustained an injury arising out of or in the course of” her employment as required by section 4 of the Workers Compensation Act 1987 (‘the 1987 Act’), employment was “no longer a substantial contributing factor” to the worker’s “condition”, and any incapacity was not attributable to any injury sustained in the course of the worker’s employment.
The notice was based on evidence from Dr Stephenson, who concluded that the worker’s complaints were not consistent with any continuing musculoskeletal condition requiring any treatment or preventing work activity.
There are at least two fundamental problems with the section 54 notice. First, the denial that an injury had occurred was inconsistent with the assertion that the effect of the injury had ceased. If the effect of the injury had ceased, then (obviously) an injury must have occurred. The denial of injury was inconsistent with the acceptance of the claim and the voluntary payment of compensation for more than two years. If those matters were intended to be expressed as alternatives, that should have been made clear in the notice. If it was intended to deny some of the injuries but not others, that should have been made clear. Second, the reference to employment “no longer” being a substantial contributing factor indicates an elementary misunderstanding of the legislation. If it is accepted that an injury occurred in circumstances giving rise to an entitlement to compensation, and that employment was a substantial contributing factor to the injury, that does not change if the effect of the injury later resolves. There is a difference between the receipt of an injury, on the one hand, and the consequences of that injury, on the other.
The Commission and the former Compensation Court have held in literally hundreds of cases that employment does not have to be a substantial contributing factor to the incapacity or the relevant impairment. The claimant must establish that the incapacity and/or impairment resulted from the injury (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452). The insurance industry’s repeated failure to grasp the basic concepts in the legislation is unacceptable and demonstrates, yet again, that notices under sections 54 of the 1987 Act and under section 74 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) should be drafted by those familiar with the legislation.
In an Application to Resolve a Dispute (‘the Application’) registered in the Commission on 17 February 2010, Ms Bozinovski claimed weekly compensation in the sum of $589.92 from 2 February 2010 to date and continuing. She also claimed hospital and medical expenses in the sum of $4,092.45 and lump sum compensation in the sum of $143,000 in respect of a 55 per cent whole person impairment. The date of injury was described in the Application as “nature and conditions of employment: 17 October 2007”. The injury was described as “back, neck, right shoulder, left shoulder, left knee”. The reference to the left knee was subsequently deleted and the right knee inserted. The injury was described as having occurred as follows:
“The applicant was in the employ of the respondent as a cleaner. The applicant would generally work 7 to 8 hours per day on a rotating roster. The nature and conditions of the applicant’s employment with the respondent required the applicant to perform duties that were repetitive. The applicant was required to mop floors, kneel on to the floor to clean under the hospital beds, complete high dusting in order to clean the air vents, clean the hospital toilets, clean the hospital basins and dust the hospital rooms. On or about 17 October 2007, whilst in the employ of the respondent and in the course of completing her duties, the applicant noticed severe pain. The applicant has not returned to her employment since 17 October 2007.”
The above “pleadings” were inadequate. Whilst it is clear that the worker’s duties required her to perform the physical activities required of a cleaner, it is not clear if the worker relied upon a specific incident on 17 October 2007 or if she relied upon the repeated stresses and strains of her work over a period of time. It is not known if she relied upon the events that occurred in March 2005 or merely on the events that occurred on 17 October 2007.
In a Reply filed on or about 2 March 2010, the respondent employer relied on the matters identified in the insurer’s section 54 notice dated 18 December 2009.
The Commission listed the matter for conciliation and arbitration on 8 April 2010. The matter proceeded without any discussion about the issues in dispute. Each side made lengthy submissions, but called no oral evidence.
Despite the deficiencies in the section 54 notice and the pleadings, without objection from the parties, the Arbitrator identified (at [7] of her Statement of Reasons (‘Reasons’)) the following issues to be in dispute:
“— Did the Applicant suffer personal injury arising out of or in the course of her employment with the Respondent up to and including 17 October 2007? (the 1987 Act s 4)
·Was the Applicant’s employment a substantial contributing factor to her injury? (the 1987 Act s 9A)
·Since 2 February 2010, was the Applicant totally or partially incapacitated for work as a result of her alleged injuries? (the 1987 Act s 33)
·For what period was the Applicant totally incapacitated? (the 1987 Act ss 36 and 37)

·For what period was the Applicant partially incapacitated? (the 1987 Acts 40)

·In respect of any period of partial incapacity for work since 2 February 2010:

(a) What is the weekly amount which the Applicant would probably have been earning but for the injury had he [sic, she] continued to be employed in the same or comparable employment? (the 1987 Act ss 40(2)(a), 42, 43)
(b) What is the average weekly amount the Applicant is earning or would be able to earn in some suitable employment from time to time after 2 February 2010? (the 1987 Act ss 40(2)(b), 40(3), 42, 43, 43A(definition)).”

The Arbitrator found that Ms Bozinovski injured her back (lumbar spine) and right knee (right lower extremity), and that her employment had been a substantial contributing factor to those injuries. Though it is unclear from her decision, the Arbitrator appears to have found that those injuries resulted from the performance of repetitive and heavy duties throughout the whole period of the worker’s employment with the respondent employer up to and including 17 October 2007. The Arbitrator also found that the worker had not suffered any injury to her cervical spine or either upper extremity as a result of her work with the respondent employer.
In respect of the claim for weekly compensation, the Arbitrator found that, on the basis of evidence from Dr Stephenson, orthopaedic surgeon qualified by the respondent employer, Ms Bozinovski had been fit for work without restriction since 17 October 2008. She added that the worker had not proved that there was a “real and substantial connection” (Reasons at [49]) between her claimed inability to work and the aggravation of her lumbar spine and right knee degenerative changes, which had resolved by 17 October 2008. Despite finding that the worker had been fit for work since 17 October 2008, the Arbitrator did not find that the effect of the injury had ceased. She ordered the respondent employer to pay hospital and medical expenses in respect of the lumbar spine and right lower extremity, and referred the assessment of whole person impairment to an Approved Medical Specialist (‘AMS’).
The Commission issued a Certificate of Determination giving effect to the Arbitrator’s findings on 21 April 2010 in the following terms:
“The Commission determines:
1.    Award in favour of the Respondent in respect of the Applicant’s claim for weekly payments of compensation.
2. That the Respondent pay the Applicant’s expenses under section 60 of the Workers Compensation Act 1987 in respect of her lumbar spine and right lower extremity (knee) on production of accounts or receipts.
3.    That the Respondent pay the Applicant’s costs as agreed or assessed.
Directions
As a result of the above determination, the following direction is made:
1.    The matter is to be referred to the Registrar for appointment of an Approved Medical Specialist (AMS).
Whilst not a direction of the Commission, the AMS is to assess the Applicant’s whole person Impairment in respect of the injuries to her lumbar spine and right lower extremity (knee) as a result of the nature and conditions of her employment with the Respondent up to and including 17 October 2007. The Registrar is to choose the AMS and all documents in the Application to Resolve a Dispute and the Reply are to be forwarded to the AMS.”
In an appeal filed on 17 May 2010, Ms Bozinovski seeks leave to challenge the Arbitrator’s findings on incapacity resulting from the back and right knee injury. She has not challenged the Arbitrator’s finding that she received no injury to her neck or shoulders.

LEAVE TO APPEAL

Monetary threshold

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

It is not disputed that the monetary thresholds in section 352(2) of the 1998 Act are satisfied.

Time

The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.

I grant leave to appeal.

ON THE PAPERS

Section 354(6) of the 1998 Act provides:

“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”

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.

ISSUES IN DISPUTE

The issues in dispute in the appeal are whether the Arbitrator erred in:

(a) finding that Ms Bozinovski had been fit for work without restriction since 17 October 2008;
(b) making a finding that was against the evidence and the weight of the evidence;

(c) failing to give adequate reasons as to why she preferred the evidence of Dr Stephenson;

(d) failing to consider whether Ms Bozinovski suffered from a partial incapacity as a result of the injury to her back and right knee, and

(e) failing to apply the steps in Mitchell v Central West Area Health Service (1997) 14 NSWCCR 527 (‘Mitchell’).

SUBMISSIONS, DISCUSSION AND FINDINGS

It has been submitted on behalf of Ms Bozinovski that:
(a)     apart from referring to several medical certificates from Dr Mahony and Dr Mukherjee, the Arbitrator “completely disregarded” the balance of the worker’s medical evidence and the evidence in the worker’s statement dated 8 February 2010 when dealing with the question of incapacity. Dr Mahony’s reports carry significant weight because he is the treating specialist. Having examined the worker on several occasions, he considered her to be unfit for work;
(b)     the worker’s capacity for work had to be assessed in light of her ongoing complaints of pain and disability, the objective radiological evidence and her evidence regarding the heavy nature of her pre-injury duties with the respondent employer. The Arbitrator failed to refer to the worker’s statement or the radiological evidence when assessing her capacity for work;
(c)     Dr Stephenson stated on 1 February 2008 that the worker’s history was consistent with a “work-related aggravation of lumbar and right knee degenerative change”, and that it was reasonable that she “work on somewhat lighter restricted duties for the time being”. At his re-examination on 16 October 2008, Dr Stephenson recorded a complaint of continuing back and right knee pain, but concluded that the worker was fit for work;
(d)     the Arbitrator failed to explain her finding that the worker was fit for work without restrictions since 17 October 2008 on the basis of Dr Stephenson’s medical reports. She did not explain why she preferred Dr Stephenson’s evidence over other evidence in the case (Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 (‘Soulemezis’)), and
(e)     even though the Arbitrator found the worker to be fit for work without restrictions, she erred in not considering whether the worker was partially incapacitated for work as a result of the injury to her back and right knee. It was incumbent upon the Arbitrator to apply the five-step process in accordance with the principles in Mitchell.
It has been submitted on behalf of the respondent employer that:
(a)     the worker’s grounds and submissions have not disclosed any “error” by the Arbitrator, but are merely an expression of complaint and dissatisfaction with the findings with respect to incapacity resulting from the injury to the lumbar spine and right lower extremity;
(b)     Dr Mahony’s evidence was not accepted as credible by the Arbitrator and she preferred the views expressed by Dr Stephenson;
(c)     the Arbitrator “carefully and deliberately” considered all of the evidence and provided ample reasons for her findings;
(d)     the Arbitrator was correct to find that the only injury received was an injury to the lumbar spine and right leg, and
(e)     the Arbitrator was entitled to prefer and accept Dr Stephenson’s views that any work-related aggravation of the worker’s lumbar spine and right leg had resolved by 17 October 2008.
I do not accept the respondent employer’s submissions.
It is not necessary for a party appealing under section 352 of the 1998 Act to establish error before a Presidential member may intervene (Sapina v Coles Myer Limited [2009] NSWCA 71; 7 DDCR 54). In any event, the Arbitrator has erred in her approach and conclusions.
The Arbitrator accepted that Ms Bozinovski injured her back and right knee in the course of her employment. Though she did not make a finding of the nature of those injuries, it is clear that the injury was in the nature of an aggravation of degenerative changes in the lumbar spine and right knee. The fact that the Arbitrator ordered the payment of hospital and medical expenses under section 60 of the 1987 Act without restriction to any particular period suggests that she considered that the effect of the injury was continuing.
In respect of the alleged ongoing incapacity, the Arbitrator stated that, based on Dr Stephenson’s report, the worker had been fit for work without restrictions since 17 October 2008. However, the Arbitrator did not analyse Dr Stephenson’s evidence and did not give any reason or explanation for accepting it and rejecting other evidence. Nor did she consider the worker’s evidence of her continuing symptoms.
The Arbitrator’s statement that she “carefully and deliberately” considered all the evidence does not stand up to analysis. On the issue of incapacity, the Arbitrator made no reference to Ms Bozinovski’s statement, but merely referred to medical certificates from Drs Mahony, Mukherjee and Aran, and Dr Stephenson’s reports of 1 February and 17 October 2008. She then concluded under “Issue 2 Findings” (at [49]):
“On the basis of Dr Stephenson’s medical reports, set out in paragraphs 47 and 48 above, I find that the Applicant has been fit for work without restrictions since 17 October 2008. The Applicant has not proved on balance that there is a real and substantial connection between her present claimed inability to work and the aggravation of her lumbar spine and right knee degenerative changes which had certainly resolved by 17 October 2008 (a year after 17 October 2007).”

This conclusion involved no consideration of the issues and, for this reason alone, cannot stand. Further, without explanation, the Arbitrator appears to have accepted part of Dr Stephenson’s evidence (that Ms Bozinovski was fit for work) but rejected another part (that the effect of the injury had ceased). In addition, the Arbitrator repeated the error in Employers Mutual’s section 54 notice of requiring that there be a “substantial connection” between the incapacity and the injury. To succeed in establishing an entitlement to weekly compensation, a worker must establish that his or her incapacity has resulted from the relevant injury. It is not necessary to prove that employment was a substantial contributing factor to the incapacity.

Dr Stephenson’s evidence is unsatisfactory in several respects and lacks probative value. In his first report (dated 1 February 2008), he stated that the worker’s history was consistent with “work relation [sic] aggravation of lumbar and right knee degenerative change”. He noted that the lumbar CT scan of 24 October 2007 showed some minimal disc bulging at L2/3 and L3/4. He also referred to a bone scan of the right knee dated 4 December 2007, which was consistent with a stress fracture at the right medial tibial plateau, and an MRI study dated 10 December 2007 that reported moderate degenerative joint disease with bone oedema in the anterior portion of the tibia.
In view of the findings with respect to the right knee, Dr Stephenson felt it was reasonable that the worker continue under specialist advice. In view of the worker’s continuing complaints of back and right knee pain, he added that it was reasonable that she work on “somewhat lighter restricted duties for the time being”. It was also reasonable that she continue with a back exercise program, possibly combined with hydrotherapy and some general quadriceps muscle exercises for the right knee. Progress review, x-rays and specialist advice was reasonable. He noted that the worker was using crutches, which would not have made much difference to her complaints of back pain, but may have reduced any stress on the right knee.
Dr Stephenson concluded that, in view of the findings and complaints of pain in the right knee, with bone oedema and degenerative changes, the symptoms in the right knee “could have been aggravated or increased by a lot of walking and heavier work as a cleaner on or about 17.10.07”. He said that the back pain “may have been complained of at work”.
In answer to a question of whether the injury represented an aggravation of a pre-existing condition and, if so, whether the aggravation had ceased, Dr Stephenson said:
“Rather than a new injury it is probably more likely that there may have been some aggravation of some degenerative change in the right knee and of some lumbar spondylosis if there was a period of markedly increased workload on about 17.10.07. Symptoms should gradually improve with appropriate physical treatment and lessening the load to perhaps more normal duties if one is to take account of the history given to me.”
Dr Stephenson stated that the radiological studies and the reference to the MRI study were examples of “consistency”. He noted the WorkCover certificates that declared the worker unfit for work in January and February 2008. In view of the apparent need for crutches and the complaints of pain with restricted movement in the back and right knee, he felt that the worker “may require some further rest from work and further assessment”. He felt the worker was fit for lighter work on normal hours, but not fit for heavier work or cleaning work in view of her presentation.

In summary, Dr Stephenson’s February 2008 report supported the worker on injury, incapacity and the need for continuing treatment.
Dr Stephenson reviewed the worker in October 2008, when he noted her to have continuing pain in her neck and shoulder region, and in her right knee and back. He did not think there was any need for the worker to be using crutches. There were no objective findings of radiculopathy in the upper or lower limbs. The doctor was asked to provide an opinion “in relation to the worker’s condition and rationale for the opinion”. He responded:
“I do not rule out orthopaedic knee specialist advice from a doctor regarding [the worker’s] right knee condition. I note Dr Kafataris, injury management consultant, has alluded to that in his report of 12/08/2008.”
On the question of “diagnosis of the injury”, Dr Stephenson stated:
“I did not achieve a diagnosis of a musculoskeletal condition related to work conditions or any accident at work when she attended. The patient was somewhat unusual with reliance on a knee brace, right knee, and crutches and complaining of pain as a result of the history of symptoms which she related to work.”
This statement was inconsistent with the doctor’s previous diagnosis of an aggravation of degenerative changes in the lumbar spine and right knee. It is difficult to see why the use of a knee brace and crutches would prevent the doctor “achieving a diagnosis”.
Dr Stephenson then stated that the “description of the injury” was consistent with his opinion on diagnosis. How this could be so when he “did not achieve a diagnosis” was not explained. He added that the injury was not reasonably attributable to the “alleged incident”. These statements were inconsistent with the opinions in his first report.
The doctor was asked whether the worker’s employment had been a substantial contributing factor to her “compensable condition”. He replied:
“Not in my opinion based on the current presentation and reports and assessment. The current presentation is not consistent in my opinion with a significant work-related injury. It is not my opinion that this or a similar injury would have happened around the same time in the worker’s life.” (emphasis added)
Contrary to his earlier report, and without explanation, Dr Stephenson stated that, “in the history”, there was no evidence of a pre-existing condition, but there was “some radiological reporting of cervical, lumbar and right knee degenerative change”. He said that that condition had not been aggravated or exacerbated by the worker’s employment. Without considering the nature of Ms Bozinovski’s duties or symptoms, he said that she was “fit to work now” with no restrictions.
Dr Stephenson provided a supplementary report on 28 October 2008 in which he responded to a further series of questions from Employers Mutual. The doctor was asked if he still agreed with his previous diagnosis of “aggravation of lumbar and right knee degenerative change”. The doctor responded:
“That was not my previous clinical diagnosis as noted in my report of 17/10/2008. I have stated at page 4 that I did not achieve a diagnosis of musculoskeletal condition relating to work conditions or any accident at work when she attended.”
In answer to the question of whether the stated injury was reasonably attributable to the alleged incident, Dr Stephenson said that he accepted that there had been a complaint of back and right knee pain, but added:
“As to whether the stated injury is reasonably attributable to the alleged incident the answer is no because there were no remarkable clinical findings when I saw her.”
In answer to the question of whether there was evidence of “pre-existing underlying pathology”, Dr Stephenson said:
“No apart from some radiological findings as set out in my report on page 2 and 3, namely CT lumbar ‘mild degenerative change’.
X-ray right knee ‘marginal osteophyte formation’.
A neurologist might consider dizziness.”
He then stated that, if the worker’s condition was an aggravation of a pre-existing degenerative condition, the aggravation had ceased. His view of the worker’s fitness for work was no different to the view he expressed in his report of 17 October 2008. He did not think Ms Bozinovski required any further treatment.
Dr Stephenson concluded that there were “no remarkable clinical findings of a significant continuing musculoskeletal condition that would prevent normal work activity or require any treatment”.
Dr Stephenson’s opinions were inconsistent. After initially diagnosing an injury in the nature of an aggravation of degenerative changes to the back and knee, it was not then open to the doctor to say that he was unable to achieve a diagnosis of a musculoskeletal condition related to work conditions. He had already made a diagnosis, namely aggravation of degenerative changes. That diagnosis was consistent with the radiological evidence, the commencement of Ms Bozinovski’s symptoms at work, and the nature of her duties.
It seems that it was on the basis of his second examination that he concluded that any work aggravation had ceased. The conclusions in his second report were unexplained. In any event, his second report was inconsistent with the worker’s continuing complaints of symptoms in her back and right knee, and the radiological evidence of pathology in those parts of her body. The worker’s evidence of continuing back and right knee symptoms (which the Arbitrator did not reject) was consistent with the effect of the accepted work injury (an aggravation of degenerative changes in the lumbar spine and right knee) continuing and I accept that to be the fact.
Dr Stephenson’s second opinion – that there was no evidence of a pre-existing condition – was inconsistent with the clear radiological evidence of degenerative changes in the back and of a stress fracture at the right medial tibial plateau in the right knee. The doctor failed to consider the correlation between those changes and the worker’s development of symptoms while performing her duties. He also failed to consider the relevance of Ms Bozinovski’s continuing back and knee symptoms.
The meaning of Dr Stephenson’s statement that he did “not rule out orthopaedic knee specialist advice” regarding Ms Mitchell’s right knee is obscure. It seems to be a concession that Ms Bozinovski has pathology in her knee that should be assessed by an orthopaedic surgeon. The statement does not sit with his later opinion that there was no injury or that the effect of the injury had ceased.
For the above reasons, Dr Stephenson’s evidence was not persuasive and the Arbitrator erred in accepting it. The worker’s complaints of pain in her lumbar spine and right knee were consistent with Dr Stephenson’s initial opinion that she had suffered an aggravation injury arising out of and in the course of her employment with the respondent employer. Her continuing complaints of pain were consistent with that diagnosis and Dr Stephenson’s subsequent reports provided no proper basis for his conclusion that either the effect of the injury had ceased, or that the worker was fit for work without restriction.
This does not resolve the issue of the nature and extent of the worker’s incapacity. As the transcript of proceedings before the Arbitrator is largely inaudible, and as the parties have made no useful submissions on this issue on appeal, the matter must be remitted to a different Arbitrator for redetermination. The only issue for redetermination is the question of incapacity as a result of the worker’s aggravation of degenerative changes in her back and right knee.
Though the future conduct of this case is a matter for the parties and the next Arbitrator, I would have thought that, at the least, evidence would have been obtained from a qualified specialist dealing with the incapacity as a result of the back and right knee injuries.

CONCLUSION

Having conducted a review on the merits, I have determined that the true and correct position is that the Arbitrator erred in finding that Ms Bozinovski was fit for work without restrictions from 17 October 2008 on the basis of Dr Stephenson’s evidence. As Ms Bozinovski did not challenge the Arbitrator’s finding that she received no injury to her neck or either upper limb, the only issue that remains to be redetermined is the extent of incapacity resulting from the back and right knee injuries. That issue must be determined by a different Arbitrator.
Though it has not been argued on appeal, the Arbitrator also erred in the wording of her remittal to the Registrar for assessment of whole person impairment. In circumstances where the Arbitrator found that the worker had not received an injury to her cervical spine or either upper limb, the appropriate referral was for assessment of the lumbar spine and the right lower extremity only.

DECISION

Paragraphs 1 and 3 and the direction included in the Determination of 21 April 2010 are revoked and the matter is remitted to a different Arbitrator for redetermination in accordance with the reasons in this decision.
Paragraph 2 of the Determination of 21 April 2010 is confirmed.

COSTS

The respondent employer is to pay the appellant worker’s costs of the appeal, as assessed or agreed.

Bill Roche
Deputy President

18 August 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