Brewster v Proline Pumping Pty Limited - [2010] NSWWCCPD 32

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Brewster v Proline Pumping Pty Limited [2010] NSWWCCPD 32
APPELLANT:		Liam John Brewster
RESPONDENT:		Proline Pumping Pty Limited
INSURER:		CGU Workers Compensation (NSW) Limited
FILE NUMBER:		A1-4266/09
ARBITRATOR:		Mr M Douglas
DATE OF ARBITRATOR’S DECISION:		19 November 2009
DATE OF APPEAL DECISION:		31 March 2010
SUBJECT MATTER OF DECISION:		Section 67 of the Workers Compensation Act 1987; adequacy of reasons; alleged errors in fact finding.
PRESIDENTIAL MEMBER:		Acting Deputy President Michael Snell
HEARING:		On the papers
REPRESENTATION:		Appellant: Peninsula Law
Respondent: Sparke Helmore
ORDERS MADE ON APPEAL:		The decision of the Arbitrator dated 19 November 2009 is confirmed.
No order as to costs of this appeal.

BACKGROUND TO THE APPEAL

On 17 December 2009 Liam John Brewster (‘the Appellant Worker’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 19 November 2009.

The Respondent to the Appeal is Proline Pumping Pty Limited (‘the Respondent Employer’).

The proceedings arise from an accident on 10 July 2006, further described below. The Appellant Worker was 21 years of age at that time, and is now 25. He is right handed. He commenced employment with the Respondent Employer as a concrete pump linesman in about February 2006.

On 10 July 2006 the Appellant Worker was working on the second floor of a building site at Vaucluse. He fell to the ground, a distance described variously as between seven and nine metres, landing on a pile of broken bricks and steel. He suffered multiple injuries. He states he was not knocked unconscious. He was taken by ambulance to St Vincent’s Hospital. A fracture of the left thumb was detected, and he was discharged home with a back slab on the left hand. He returned to St Vincent’s Hospital on 13 July 2006. A CT scan of the right knee on that date is reported as demonstrating “an undisplaced, slightly comminuted fracture of the posteromedial aspect of the patella”.

The Appellant Worker’s statement records a number of injuries, including the fracture of the left thumb, injury to the right knee, low back injury, a fracture involving the right foot, cuts and grazes to the head, blunt injury to the chest and abdomen, and a puncture wound to the right thigh. He also states he developed a post-traumatic/depressive psychological condition. His claim for compensation was voluntarily accepted by the Respondent Employer. There is no dispute as regards the Appellant Worker’s entitlement to weekly compensation, or the payment of medical expenses.

The Appellant Worker came under the care of Dr Tavakoli, a hand surgeon, at St Vincent’s Hospital. On 26 July 2006 he underwent surgery involving closed reduction of the left thumb fracture, and fixation with two K-wires. He was discharged on the same date. He subsequently attended the Hand Clinic at St Vincent’s hospital.

On 9 August 2006 Dr Woodgate, an orthopaedic surgeon at St Vincent’s hospital, recorded that an MRI scan of the right knee “showed a medial patella retinacular and capsular avulsion from the medial aspect of the patella, with a chondral fracture on the medial patella facet, and an impaction injury on the medial side of the femoral condyle/trochlea with a moderate effusion”.

The Appellant Worker was admitted to St Vincent’s hospital on 23 August 2006. On that date Dr Woodgate carried out arthroscopic surgery to the right knee involving cartilage harvest and repair of the medial patella retinaculum. This demonstrated “an unstable tear of the posterior horn of the lateral meniscus”. The tear was resected, and a chondral harvest was taken. The knee was irrigated. Arthrotomy was carried out to treat the “avulsion of the capsule and medial retinaculum”. The Appellant Worker underwent physiotherapy subsequent to this procedure.

The Appellant Worker was readmitted to St Vincent’s Hospital on 13 December 2006. On that date Dr Woodgate performed chondral graft implantation to the right patella. The ‘Progress Notes Report’ in the hospital records indicates that post-operatively the Appellant Worker suffered from nausea and was vomiting. Complaints of pain were managed with morphine and Endone. He was discharged on 18 December 2006. His statement records he underwent physiotherapy after this procedure.

The Appellant Worker’s statement records the injury to his lower back “became more pronounced” after he was certified fit for light duties (around March 2007). He consulted Dr Woodgate in connection with this problem. An MRI scan report of the lumbar spine dated 23 September 2008 described “L4/5 disc degeneration and central posterior disc protrusion with marked deformity of the thecal sac and potential for compromise of both L5 nerve roots as they cross the disc”.

The Appellant Worker’s statement is relatively silent as regards his work activities subsequent to 10 July 2006. A history recorded by Dr Silva (an orthopaedic surgeon who examined the Appellant Worker for the Respondent Employer on 27 February 2009) recorded that from about February to September 2008 the Appellant Worker worked full-time as a general hand for a bathroom removalist company, and then as a concrete finisher for about three months before being laid off. The history recorded by Dr Ellis (who examined the Appellant Worker at the request of his solicitors on 11 June 2008) recorded “some training in driving earthmoving machinery” over the previous six months. It recorded an injury to the back in a “trial at concreting” in 2007. It recorded “He does some casual work doing kitchen removals, he carries out doors, etc. He lifts weights up to 25 kg and he now gets about two days work weekly, 8 hours per day.” The history recorded by Dr Ellis is of low back injury in the original fall. It is said the Appellant Worker then suffered “from further low back pain” after a “trial of concreting” in 2007.

The Appellant Worker’s solicitors made a claim on his behalf by letter dated 11 November 2008, for a sum of $24,875.00 in respect of 18per cent whole person impairment, pursuant to section 66 of the Workers Compensation Act 1987 (‘the 1987 Act’), and $20,000 pursuant to section 67, representing 40per cent of the maximum. These claims did not initially resolve, and an Application to Resolve a Dispute was lodged on 1 June 2009 claiming the same sum pursuant to section 66, but an amount of $30,000.00 (60per cent of the maximum) pursuant to section 67.

The Appellant Worker was assessed by Professor Higgs, an approved medical specialist (‘AMS’) on 21 September 2009. A medical assessment certificate (‘MAC’) dated 28 September 2009 certified the Appellant Worker suffered 13per cent whole person impairment resulting from the relevant injury. The injuries giving rise to this impairment were to the back, the left upper extremity (the thumb), and the right lower extremity (the knee). Settlement of the Appellant Worker’s entitlement pursuant to section 66 was reached on 2 November 2009 at a teleconference, consistent with the impairment assessed in the MAC.

The parties could not agree on the entitlement pursuant to section 67, and that aspect was determined by an arbitrator, on the papers, with both parties lodging written submissions.

THE DECISION UNDER REVIEW

The ‘Certificate of Determination’, dated 19 November 2009 records the Arbitrator’s orders as follows:

“1. That the Respondent pay the Applicant as compensation under s 66 of the Workers Compensation Act 1987 $17,392.00 for 13per cent permanent impairment assessed as a percentage of whole person impairment, attributable to the injury of 10 July 2006.
2. That the Respondent pay the Applicant as compensation under s 67 of the Workers Compensation Act 1987 $16,667.00 for pain and suffering resulting from that impairment.
3. That the Respondent pay the Applicant’s costs as agreed or assessed.”

ISSUES IN DISPUTE

The Appellant Worker has appealed the decision on the basis the sum awarded pursuant to section 67 is inadequate. The Appellant Worker argues an appropriate amount would be “in excess of 50per cent of a worst case and would be in the range of 60per cent of a worst case”. His submissions seek to identify various errors in the arbitrator’s analysis of the evidence. Additionally he refers to Sapina v Coles Myer Limited [2009] NSWCA 71 (‘Sapina’) as authority that it is unnecessary to establish ‘error’ to succeed in an appeal pursuant to section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’). It is sufficient if an appellant can demonstrate “the Arbitrator failed to reach the true and correct decision”.

The Respondent Employer argues against the proposition that the award pursuant to section 67 should be increased. Indeed, the Respondent Employer argues the award was excessive, and an amount of $12,500.00 should be substituted for the figure awarded by the arbitrator.

ON THE PAPERS REVIEW

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 both parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.

LEAVE

Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.

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

The arbitrator awarded a sum of $16,667.00 pursuant to section 67, representing one third of the available maximum. The Appellant Worker claimed a sum of $30,000.00 (60per cent of the available maximum) in his Application, and this remains the figure he argues should be awarded, on this appeal. The Respondent Employer concedes the threshold in section 352(2) is met. I grant leave to appeal

DISCUSSION AND FINDINGS

The Grounds Raised

The Appellant Worker’s grounds and submissions raise the following issues:

(i) At [22] of his reasons the arbitrator referred to the Appellant Worker’s statement and said:
“…this summary by Mr Brewster is really a summary of the effect of the injuries on him, which is necessarily broader than the effect on him from his permanent impairment from the injuries.”

The effects of the injuries, it is submitted, may be co-existent with the effects of the impairments, the former is not necessarily broader. Reference is made to Fugen Holdings Pty Ltd v Brassington ]1999] NSWCA 107 at [24] (‘Fugen Holdings’). It is submitted the whole of the pain and suffering, from the three injuries that resulted in permanent impairment, should be regarded as resulting from the permanent impairment, and therefore be taken into account in assessing quantum pursuant to section 67.
(ii) The arbitrator failed to refer to various specific matters set out in the Appellant Worker’s statement, and to some of the history and signs noted by medical practitioners.

(iii)   The arbitrator misread the report of the AMS. At page 3.8 it recorded the Appellant Worker’s back pain “…was further described to vary from ‘8 to 9 out of 10’ with regard to severity”. In his reasons at [14] the arbitrator recorded this description as “…can vary from 8 to 9 out of 10”. This, it is submitted, indicated the “Arbitrator therefore appeared to gain an impression that Mr Brewster’s extreme back pain was less than constant”. This also led to a devaluing of the left thumb and right knee symptoms, as the Arbitrator inferred these were not as bad as the back pain (see the reasons at [15]).
(iv)   The arbitrator should have found the extensive treatment undergone by the Appellant Worker was, of itself, an indicator of the pain and suffering that preceded such treatment.
(v)     The arbitrator found (at [18] of his reasons) that the Appellant Worker’s inability to play sport resulted from pain in the back, right knee and foot. This was “notwithstanding Mr Brewster’s evidence of left thumb pain caused by driving and fishing” (this is apparently a reference to the history recorded by Dr Ellis at page 5.1).
(vi) The arbitrator’s reasons at [22] referred to the need to differentiate pain and suffering that results from the injuries in a general sense, from pain and suffering that results from the permanent impairments for which compensation is awarded pursuant to section 66. He said it is the latter for which compensation is payable pursuant to section 67, and the Appellant Worker’s “summary” (his statement) “does not analyse his suffering by reference to what relates to his injuries and what relates to his permanent impairment from his injuries.” The Appellant Worker submits the requirement to divide “injury-related pain and suffering into two groups” “is not only onerous but without legal precedent”. It is submitted it is the arbitrator’s task to exclude those injuries not productive of permanent impairment. It is submitted that in the absence of “specific evidence to the contrary an arbitrator should infer that an injured worker’s pain related distress and anxiety… is wholly a result of the injuries productive of the most painful symptoms (ie. on the facts of this case the lower back, right knee and left thumb).”

(vii) The Appellant Worker places reliance on his written submissions at first instance, and submits the true and correct decision is a figure higher than that awarded by the arbitrator, and I should substitute a higher figure without the need to find error (Sapina is referred to).

The Respondent Employer’s submissions essentially support the reasoning of the arbitrator on the above issues. Additionally, the Respondent Employer submits various of the complaints made by the Appellant Worker relate to matters already compensated pursuant to section 66, and they should not again be compensated pursuant to section 67 (Pacific Dunlop Limited v Krivec (1996) 13 NSWCCR 353 is referred to, as are the Workcover Guides for the Evaluation of Permanent Impairment). The Respondent Employer also referred to the need for proportionality. It submitted, referring to Government Supply Department v Abbott (1993) 9 NSWCCR 276, that the state of quadriplegia is a most extreme case. 25per cent of the maximum is submitted to be an appropriate award, by way of proportionality to quadriplegia.

The Review Process Pursuant to Section 352 of the 1998 Act

Much of the case law dealing with the nature of the ‘review’ process is set out in the joint judgment of Allsop P and Hoeben J in Sapina. The nature of the process is described particularly at [56] to [58]. It is clear that it is not necessary that I find error, before a decision of an arbitrator can be disturbed on appeal. It is necessary that I reach my own view “on the questions involved in the decision”. If I do not conclude the decision of the arbitrator is the “true and correct view”, I should substitute my view for that of the arbitrator. “(E)rror (or lack of it) by the Arbitrator will or may be relevant to the task of the Presidential member, but it does not define the task.” It follows that I am required to consider whether the decision demonstrates error. However even if it does not, I should substitute my view for that of the arbitrator, if I conclude his view was not the “true and correct view”.

Pain and Suffering Resulting From the Permanent Impairment

The appeal grounds that I have identified as (i) and (vi) above deal with a similar point, being the arbitrator’s approach to the problem of identifying that part of the pain and suffering that resulted from the permanent impairment. Section 67 of the 1987 Act relevantly provides:

Compensation for pain and suffering
A worker who receives an injury that results in a degree of permanent impairment of 10per cent or more is entitled to receive from the worker’s employer as compensation for pain and suffering resulting from the permanent impairment an amount not exceeding $50,000. Pain and suffering compensation is in addition to any other compensation under this Act.

Note. Section 65A provides that pain and suffering compensation for permanent impairment arising from psychological injury is not payable unless the injury is a primary psychological injury (as defined in that section) and the degree of permanent impairment arising from the injury is 15per cent or more.

Because there is a distinction between injury and impairment resulting from an injury (and compensation is payable under this section only for pain and suffering resulting from impairment), the pain and suffering for which compensation is payable does not include pain and suffering that results from the injury but not from the impairment.
The maximum amount of compensation under this section is payable only in a most extreme case and the amount payable in any other case shall be reasonably proportionate to that maximum amount having regard to the degree and duration of pain and suffering and the severity of the permanent impairment.
The amount of compensation payable under this section in any particular case shall, in default of agreement, be determined by the Commission.

…

In this section:
pain and suffering means:
(a) actual pain, or
(b) distress or anxiety,

suffered or likely to be suffered by the injured worker, whether resulting from the permanent impairment concerned or from any necessary treatment.”

The section makes it clear that compensation for pain and suffering is available only for pain and suffering that results from the impairment. The passages in the reasons, to which the Appellant Worker’s submissions refer on this topic, deal with the arbitrator’s attempts to distinguish between pain and suffering that results from the impairment, as opposed to pain and suffering that “results from the injury but not from the impairment”. This was, in my view, a necessary enquiry for the arbitrator to engage in, to give effect to the section.

The Appellant Worker refers to the Court of Appeal decision of Fugen Holdings. That decision dealt with the section in a slightly different form, but the distinction now drawn in sub-section (2) was contained (in substantially similar form) in sub-section (1A) at that time. Giles JA (Priestley JA and Studdert J agreeing) at [22] said:

“Section 67(1A) was inserted in the Act by the Workcover Legislation Amendment Act 1995. It is evident from the explanatory memorandum and the second reading speech that the amendment was intended to put beyond doubt, not necessarily because it had been brought to the fore in Borovac v Corporate Ventures Pty Ltd, the limitation to which Mahoney JA had referred: for example, in the second reading speech it was said that the proposed amendment "reinforces that the entitlement is confined to the `permanent loss' resulting from a worker's injury, rather than encompassing other effects of the injury." Thus the effect of s 67(1A) is to exclude from the compensation for pain and suffering any pain and suffering prior to the onset of a loss for the purposes of the Act, and any pain and suffering thereafter resulting from the injury but otherwise than from the loss. As Mahoney JA noted, even prior to s 67(1A), difficult dissections may be required and there may be artificial distinctions, and the terms of this provision have not done away with them.”

In Fugen Holdings Giles JA concluded that, on the particular facts found by the trial judge in that case, the permanent impairments and losses suffered by the worker were present from the time of the injury. “There was no suggestion of pain and suffering arising from something other than the (worker’s) losses.” On those facts, “there was no difference between pain and suffering resulting from injury and pain and suffering resulting from a loss.”

That situation may be distinguished from the facts in the current matter. The summary signed by the Registrar in Emergency Medicine at St Vincent’s Hospital dated 10 July 2006 records minor abrasions to the face and chest, a fracture to the base of the first metacarpal (the left thumb injury), a (?) fracture of the distal third metatarsal (a reference to the right foot I infer), and a puncture wound to the right thigh. X-rays were taken that day of the right knee and back (amongst other things). The notes from 13 July 2006 record complaints involving the left thumb, right knee and the wound to the right thigh. Although it was the subject of x-rays on the date of accident, complaints regarding the lumbar region of the back do not much feature in the Appellant Worker’s presentation during 2006. This would be consistent with the histories going to the low back symptoms described at [10] and [11] above.

The Appellant Worker’s statement at [0.6] described “multiple injuries”, many of which were unconnected with the impairments later identified in the MAC. These included injury to the head, resultant scarring to the face, blunt injury to the chest and abdomen, puncture wound to the right thigh with resultant scarring, and a fractured toe of the right foot. The statement described the Appellant Worker as suffering “post traumatic depressive/psychological condition including personality changes, ongoing nightmares and sleep disturbance and/or aggravation of pre-existing depressive disorder.”

The report from the Appellant Worker’s general practitioner, Dr Bramston, dated 16 March 2007 referred to injuries to the left thumb, left thigh, right foot, right knee, and numerous cuts and bruises. It described the loss of function from the thumb injury as “below the threshold of measurement”. Lower back symptoms were not mentioned. The doctor noted the Appellant Worker was “quite depressed about the situation”.

Dr Ellis’ report dated 21 July 2008 listed the Appellant Worker’s “present complaints in order of importance to the patient”. The orthopaedic complaints were listed in the following order: the right knee, the low back, the right foot, the left thumb, and pain passing down the right leg. He also listed a loss of weight (said to result from not working, playing sport or going to the gym), and feelings of frustration and depression. There were “falling dreams” once per month, and a problem with heights. It was recorded the Appellant Worker took some antidepressant medication, but not since December 2007.

The Appellant Worker’s statement at [0.17] said the “injuries that I sustained in my fall and the incapacity, which I suffered from, which prevented me from doing my pre-injury activities including playing rugby league, soccer, surfing, boxing, etc and has had a profound psychological impact upon me. I needed a referral to a counsellor to help me cope with this emotional and psychological problem.”

The Appellant Worker’s statement at [0.26] set out his present problems and disabilities. I shall not attempt to recite them in full. They included problems relating to the right knee, left thumb and back. They also include neck pain, and scarring to the right thigh (I infer the site of the puncture wound). They included “Inability to play pre injury sports including rugby league, soccer, surfing and boxing”, “Difficulty with sexual activities”, “Disturbance with relationships”, “Ongoing depression and anxiety”, “Nightmares”, “Personality change” and “Interference with sleep”.

The St Vincent’s Hospital “Trauma Response Form” on 10 July 2006 (the date of accident), under “Past Medical/Surgical History” recorded asthma and depression. The “Patient Assessment Record” of that date also referred to depression and asthma under the heading “Past History”. Clearly there was a history of depression predating the accident. “Depression” is mentioned in “Other Conditions Present” in the St Vincent’s Hospital notes at the time of the admission in August 2006. The St Vincent’s Hospital progress notes for the December 2006 admission recorded, on 14 December 2006, a history of “ETOH (alcohol) abuse”. There are two brief references in Dr Bramston’s report to the Appellant Worker being “quite depressed about the situation”, and “moderately depressed”. Dr Ellis recorded “He is suffering from nervous stress and depression. A psychiatrist’s opinion would be necessary for expert advice.” There is no medical evidence from a psychiatrist.

In the current matter there were a number of injuries productive of pain, not all of which resulted in permanent impairment. Some of these were orthopaedic. The right foot injury, at least at the time the Appellant Worker was assessed by Dr Ellis, was ranked by him as being more important than that to the left thumb. The Appellant Worker’s statement referred to “Pain, aching limitation of movement and tenderness in the neck.” No medical witness in the matter has assessed permanent impairment resulting from neck injury. Additionally, there is a history of depression prior to the accident. The Appellant Worker’s statement described a number of complaints of an emotional nature, at [0.26 (p), (q), (s) and (t)] and [0.29]. The causal relationship between such complaints, and the relevant accident, is not necessarily apparent in the absence of psychiatric evidence, particularly in circumstances where there was a prior history of depression, and a history of alcohol abuse, recorded at St Vincent’s Hospital.

The passage from Fugen Holdings quoted above, and indeed the clear words of section 67 itself, make it apparent that the Commission can award compensation pursuant to section 67 for pain and suffering resulting from a worker’s impairment and necessary treatment for it, rather than for “other effects of the injury”. There is a helpful review of a number of authorities dealing with section 67, in the decision of ADP Candy in New South Wales Police Service v Westling [2008] NSWWCCPD 99 (‘Westling’). That decision quotes the following passage of the judgment of Mahoney JA in Glennos Constructions Pty Limited v Beccari [1993] NSWCA 109 (‘Glennos Constructions’):

“The damages which may be granted under s67 of the Workers Compensation Act1987 are limited. Damages may be given only for ‘pain and suffering resulting from the loss’ there referred to, namely, ‘a loss mentioned in the Table to’ the relevant part of the Act. If a worker has pain and suffering resulting partly from a Table loss or partly from a loss not referred to in the Table, there must in principle be a dissection; he can be given damages for the former but not for the latter. This was referred to in Concrete Constructions Group Pty Ltd v Nelson (Court of Appeal, 5 April 1993 unreported [(1993)9 NSWCCR 213]).
The distinction may be artificial but it is obviously the result of a policy decision to limit the operation of s67. I see no alternative, consistent with the terms of the Act, to the dissection of the pain and suffering in this way. In some cases, the dissection may be so artificial as to make the process seem lacking in credibility. If the policy of limiting s67 in this way is to be maintained, it would, I think, be appropriate for the Act to be amended to enable a result more functionally satisfactory to be achieved.”

It follows from the above, that the effects of the injury were not co-existent with the effects of the permanent impairment. It was necessary, as the arbitrator recognised, that he restrict his award to one in respect of pain and suffering compensable pursuant to section 67, rather than pain and suffering, in a more general sense, resulting from the accident. The Appellant Worker carried the persuasive onus of establishing what pain and suffering there had been, resulting from the impairments and necessary treatment. The submission at [1a] of the Appellant’s application must fail.

It is submitted by the Appellant Worker that the arbitrator should have inferred, in the absence of specific evidence to the contrary, that the Appellant Worker’s pain related stress and anxiety wholly resulted from the injuries that caused permanent impairment (the back, right knee and left thumb). This would invert the onus. Additionally, there was evidence contrary to this conclusion. The left thumb, at least for various periods in the past, does not appear to have been productive of significant symptoms. Dr Ellis recorded such symptoms were less significant to the worker than his right foot symptoms. Dr Bramston said impairment from the thumb injury was “below the threshold of measurement”.

The state of the medical evidence would not, in my view, permit a conclusion the Appellant Worker’s emotional problems, identified in his statement, result from the permanent impairment and necessary treatment. The test of causation is a commonsense one (see Kooragang Cement Pty Limited v Bates (1994) 35 NSWLR452 at 463G-464B). The only oblique support for a causal connection in the medical evidence is to be found in the reference in Dr Bramston’s report dated 16 March 2007 to the Appellant Worker being “quite depressed about the situation”. The Appellant Worker had “recently” come under Dr Bramston’s care. There was no indication Dr Bramston was aware of the relevant prior history recorded at St Vincent’s Hospital. This would deprive his (barely expressed) view on causation, of weight (see Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705).

The arbitrator, in considering this issue, accepted that the “psychological impact” resulted from restrictions on the Appellant Worker’s recreational activities, and that depression, about which a history was given to Dr Ellis, “was secondary to the pain Mr Brewster had in his back, right knee and right foot.” This is not a conclusion I would reach, given the matters of prior history referred to in the St Vincent’s Hospital documents, in the absence of more specific medical evidence going to causation of the psychological problems.

It follows the argument advanced by the Appellant Worker at [1f] of his appeal must fail. The requirement to divide “injury-related pain and suffering into 2 groups” is one required by the clear words of the section. The distinction may be artificial, as was observed in Glennos Constructions, but it must be applied. The submission that it should be inferred “pain related distress and anxiety”, in the circumstances of this case, result from the injuries to the left thumb, right knee and lower back, also must be rejected. Where there are a number of other injuries alleged, with the capacity to result in pain and suffering, one could not comfortably infer pain and suffering resulted only from those injuries productive of permanent impairment. Such an inference would also involve ignoring parts of the evidence, for example the ranking to Dr Ellis of the right foot symptoms as more important to the Appellant Worker than those in the left thumb, and the other possible causes of the emotional problems.

The Appellant Worker submits at [1b] of his submissions that the injuries to the lower back, right knee and left thumb “produced immediate or early permanent impairment”. This submission cannot be accepted insofar as the lower back is concerned. There is no complaint of the lower back recorded in the ambulance report on the date of accident, nor in the Emergency Unit report of Dr Woods dated 10 July 2006. I cannot find a reference to it in the Progress Notes taken 13 July 2006 (the left thumb, right knee and right thigh are mentioned at that point). I can find no reference to lower back pain during the subsequent admissions to St Vincent’s Hospital on 26 July 2006, 23 August 2006 and 13 December 2006. A document signed by the Appellant Worker and dated 18 August 2006, prior to the surgery of 23 August 2006, headed “History Reviewed by PSC RN & Entered on Delacy?” asks, in part, about neck or back problems. The response ticked is “no”. The report of the Appellant Worker’s general practitioner, Dr Bramston, dated 16 March 2007 contains no reference to any injury to the lower back, nor to symptoms there.

When the Appellant Worker saw Dr Ellis on 11 June 2008 he told him of low back pain from when he went home after the second operation, about Christmas 2006. Bearing in mind the lack of lower back complaint in Dr Bramston’s report, and the histories referred to at [10] and [11] above, it may well be the onset of any significant symptoms in the lower back was during 2007. At the least, it cannot be accepted there was immediate or early permanent impairment of the lower back. The binding MAC, of course, established the certified permanent impairment of the lower back resulted from the injury on 10 July 2006.

For the reasons given above, the pain and suffering resulting from the permanent impairment is not co-existent with that resulting from injuries in the accident. Those grounds of appeal (that I identified as (i) and (vi) at [23] above) fail.

Failing to Refer to Evidence

The ground I have identified as (ii) is that the arbitrator failed to refer to various matters in the Appellant Worker’s statement, and some matters raised in the medical evidence. The submissions refer to sixteen paragraphs (and part of a seventeenth) from the Appellant Worker’s statement, which the arbitrator failed “to expressly consider or otherwise refer to”. The submissions say many of these paragraphs “contain either express or strongly implied references to pain and suffering”.

Some of the nominated paragraphs refer to pain and suffering at the time of the accident and thereafter, without differentiating between pain and suffering resulting from the permanent impairments, and that potentially resulting from other causes. By way of example, [0.7] says “I was not knocked unconscious but I was severely shocked and shaken and in great pain.” Other of the nominated paragraphs set out details of the history and treatment, for example [0.8] says “I was taken by ambulance to St Vincent’s Public Hospital. I came under the care of Dr Ian Woodgate, an Orthopaedic Surgeon, and Dr Kuman Tavakoli, a Hand/Plastic Surgeon.” Some of the paragraphs are of direct relevance to the pain and suffering resulting from the permanent impairments, for example [0.22] and [0.25].

The medical evidence, said not to have been expressly considered or referred to, relates to the right knee and lower back. The submissions refer to extensive pathology in the right knee, wasting of the right thigh in October 2006, daily right knee pain, with an inability to squat or kneel. Dr Bramston described the right knee pain as significant, Dr Ellis was told the right knee pain was getting worse. Back pain occurred every day and night, and there was a sitting tolerance of 30 to 40 minutes.

The arbitrator’s reasons at [2] set out the Appellant Worker’s injuries to his right knee, low back, left thumb and right foot. Description of the various surgical procedures, and the epidural injection to the lumbar spine, is set out at [3] of the reasons. The arbitrator noted at [12] that, due to the Appellant Worker’s youth, he will “endure the pain and suffering from his permanent impairment for many years”. He said at [13] that the “evidence establishes that immediately after he fell and in the subsequent days, Mr Brewster endured severe pain”. The arbitrator then, at [14] to [20] set out passages of the evidence, both from the Appellant Worker’s statement and medical histories, going to the pain and suffering of the Appellant Worker. There is not specific reference to all of the matters referred to at [1b] of the Appellant Worker’s submissions.

The Appellant Worker’s complaint is that the arbitrator failed to specifically refer to the nominated matters. It is essentially a challenge to the adequacy of the reasons. It is not necessary for a judge to refer to all of the evidence: Hevi-Lift (PNG) Limited v Etherington (2005) 2 DDCR 271 at [100]; Department of Corrective Services v Bowditch [2007] NSWWCCPD 244 at [45] and the cases cited therein. In Zaronias v Papaiani [2002] NSWCA 207 Meagher JA (Foster JA and Ipp AJA agreeing) said:

“A judge is certainly not under any obligation to sift through all the evidence before him and explain at length why he rejects each item which is conceivably inconsistent with his decision.”

In Mifsud v Campbell (1991) 21 NSWLR 725 Samuels JA at 728D stated:

“Similarly, in my opinion, it is an incident of judicial duty for the judge to consider all the evidence in the case. It is plainly unnecessary for a judge to refer to all the evidence led in the proceedings or to indicate which of it is accepted or rejected. The extent of the duty to record the evidence given and the findings made depend, as the duty to give reasons does, upon the circumstances of the individual case.”

However a failure to refer to evidence, or expose the reasoning process that led a judge or arbitrator to a conclusion, may constitute error. In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 McHugh JA (as his Honour then was) at 280D stated:
“If an obligation to give reasons for a decision exists its discharge does not require lengthy or elaborate reasons: Ex parte Powter; Re Powter(1945) 46 SR (NSW) 1 at 5: 63 WN 34 at 36. But it is necessary that the essential ground or grounds upon which the decision rests should be articulated. In many cases the reasons for preferring one conclusion to another also need to be given.”
A failure to expose why some evidence was preferred over competing evidence may “reveal an error in the process of fact finding”(see Waterways Authority v Fitzgibbon & Ors. [2005] HCA 57; 221 ALR 402 per Hayne J at [129] to [131]; Ainger v Coffs Harbour City Council [2005] NSWCA 424 per McColl JA at [53]).

The duty of an arbitrator to give reasons is to be found not only in his or her common law duty, but also in section 294(2) of the 1998 Act, and Rule 15.6 of the Workers Compensation Commission Rules 2006. In Duinker v St Vincent de Paul Society Aged and Special Services Limited (Lewisham Nursing Home) [2008] NSWCA 127; 6 DDCR 266 Hodgson JA (Beazley and McColl JJA agreeing) concluded that, in the context of section 294(2) and Rule 15.6, it would not be an error for an arbitrator not to have referred specifically to an opinion of a medical practitioner.

The reasons given by the arbitrator in the current matter are, in my view, adequate having regard to both the statutory provisions, and the arbitrator’s common law duty. In Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 Meagher JA at 443 said:

“No mechanical formula can be given in determining what reasons are required. However, there are three fundamental elements of a statement of reasons, which it is useful to consider. First, a judge should refer to relevant evidence. There is no need to refer to the relevant evidence in detail, especially in circumstances where it is clear that the evidence has been considered. However, where certain evidence is important or critical to the proper determination of the matter and it is not referred to by the trial judge, an appellate court may infer that the trial judge overlooked the evidence or failed to give consideration to it: North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435. Where conflicting evidence of a significant nature is given, the existence of both sets of evidence should be referred to.”

This was not a matter in which there was any particular contest on the medical or lay evidence. Whilst there may have been some differences of degree between the opinions of the medical practitioners, there was no significant contest between competing views, requiring resolution. This was particularly so, given the binding nature of the MAC, pursuant to section 326 of the 1998 Act. It is clear, in my view, that the arbitrator considered the evidence in the matter, including the statement of the Appellant Worker, and the reports of Dr Ellis and the AMS. He referred, at different parts of his reasons, to the contents of such documents. No oral evidence was called, and indeed there was no conciliation/arbitration hearing held, the matter being dealt with on the written material. The arbitrator’s description of the evidence, on the authorities, did not need to be lengthy or detailed.

There was a single question requiring resolution, the quantum of the Appellant Worker’s undoubted entitlement pursuant to section 67. In my view the arbitrator’s reasons adequately set out his reasons for the conclusion he reached. Whilst he did not refer to every item of evidence in the matter, he was under no obligation to do so.

Misdescription of Medical Evidence

The Appellant Worker submits the arbitrator misread the report of the AMS in one specific respect. At page 3.8 of the report of the AMS dated 28 September 2009, under “Present symptoms”, the Appellant Worker described his back pain:

“The pain was described to be aggravated by any ‘crouching and bending’ and the pain was further described to vary from ‘8 to 9 out of 10’ with regard to severity.”

The arbitrator at [14] of his reasons referred to this aspect of the history:

“He described to the AMS that his back pain was aggravated by crouching and bending and can vary from ‘8 to 9 out of 10’.”

It is submitted by the Appellant Worker that the use of the word “can” indicates the arbitrator gained an impression the Appellant Worker’s “extreme back pain was less than constant”. At [15] of his reasons the arbitrator inferred pain in the right knee, right foot and left thumb was “not as bad as his back pain”. It is submitted the “earlier false assessment of the back pain” meant the level of pain in these other parts was “devalued” as a consequence.

At [17] of his reasons the arbitrator referred to a history obtained by Dr Ellis that the Appellant Worker’s left thumb was not “too bad now”. It is submitted the arbitrator took this “self assessment” “out of context”, and on the whole of the evidence should have “read down” that part of the history, taking it to apply to the left thumb symptoms on that particular day only.

The arbitrator clearly did not simply rely on the statement to Dr Ellis that the left thumb was not too bad now (although such an admission would be entitled to weight). At [17] of his reasons, after referring to that history, the arbitrator then referred to the history obtained by the AMS, saying “contrary to Mr Brewster’s report to Dr Ellis of the pain not being too bad, Professor Higgs noted Mr Brewster described the pain in his left thumb as ranging on occasion up to 6 out of 10”.

The submission, going to the arbitrator’s alleged misdescription of the history recorded by the AMS of back symptoms, involves (to quote from a judgment in a different statutory context) construing the decision “minutely and finely with an eye keenly attuned to the perception of error” (Minister for Immigration and Ethnic Affairs v Liang (1996) 185 CLR 259). The variation between the description in the MAC, and the arbitrator’s recording of that description, is slight. It is helpful to set out paragraph [14] of the arbitrator’s reasons in full:
“Mr Brewster describes, in paragraph 22 of his statement, that he suffers continuing ‘significant’ pain and discomfort in his back. He described to the AMS that his back pain was aggravated by crouching and bending and can vary from ‘8 to 9 out of 10’. The pain can radiate to his right buttock and thigh. He told Dr Ellis that his back pain makes coitus painful.”

When the passage is viewed in context, it is clear the arbitrator proceeded on the basis the Appellant Worker was saying he had continuing “significant” back pain. It is clear the arbitrator considered the evidence of the severity of back pain, in the histories recorded by both Dr Ellis, and the AMS. In my view nothing turns on the slight variation between the description in the MAC and the arbitrator’s reference to it at [14] of his reasons. If it is regarded as an error (and I do not so regard it) it is not one that would be likely to affect the result. I do not accept appealable error is demonstrated by the submission at [1c] of the Appellant Worker’s submissions.

Treatment and Pain and Suffering

In support of a submission the matter was “a significant claim for pain and suffering”, the Appellant Worker’s submissions before the arbitrator inter alia, referred to “extensive periods of physiotherapy”, and “multiple hospital admissions and operations”. At [21] of his reasons the arbitrator stated there was no evidence to indicate what pain the Appellant Worker suffered as a result of the surgical procedures and physiotherapy he had undergone. This was with the exception of the reference in the St Vincent’s Hospital records to the Appellant Worker exhibiting anxiety on each day he underwent a procedure on his right knee.

The Appellant Worker on this appeal submits it was an error not to find this treatment was “itself an indicator of pain and suffering that predated each item of treatment”. It is submitted the arbitrator “reversed the causal link” and interpreted the submission to him “as being relevant to section 67(7) whereas it was intended to relate to section 67(1)”.

This submission is not easy to follow. I cannot understand how a submission can relate to section 67(1) without relating to section 67(7). Section 67(7) defines “pain and suffering” for the purposes of the section, including section 67(1). Nor do I understand the reference to reversal of “the causal link”. When this submission is looked at in context, its gravamen appears to be that pain and suffering should be inferred from the Appellant Worker’s willingness to undergo the treatments referred to, and the submission to the arbitrator was put on this basis, rather than relating to pain and suffering resulting “from any necessary treatment”.

As a general proposition a need for, and preparedness to undergo, medical treatment, including surgical procedures and physiotherapy, is not necessarily indicative of pain and suffering. A worker suffering a heart condition, or cancer, for example, caused or aggravated by his employment, may require and undergo surgical treatment to deal with such a condition, in the absence of significant symptoms. It will obviously vary from case to case, depending on the nature of the injury involved. In the circumstances of the current matter, it is perfectly reasonable to infer a significant level of actual pain in the Appellant Worker’s right knee and left thumb, prior to the surgical procedures on these parts. I do not understand the arbitrator’s reasons to be at odds with this proposition.

The arbitrator, at [24] of his reasons, assessed an appropriate award pursuant to section 67 as one third of a most extreme case, “(b)ased on the matters I have indicated above”. The matters above included a description of the various surgical procedures (and the epidural injection), set out at [3].

The arbitrator set out a passage of the decision of Commissioner Wright in Tyler v Marsden Industries (2001) 22 NSWCCR 644 (‘Tyler’), and described it as “a useful compendium of the factors and principles to take into account when determining an appropriate amount of compensation to award under s 67.” This decision had been referred to by the Appellant Worker, in his submissions before the arbitrator, as considering “(f)actors relevant to the determination of an applicant’s entitlement to compensation pursuant to Section 67”. One such factor, in the passage quoted by the arbitrator, was that “(o)bjective factors may include the type of surgical procedures undergone, the nature of the convalescent process and any complications.” I note the decision in Tyler has been referred to with approval by his Honour the President Judge Keating (in NSW Police Service v Snape [2009] NSWWCCPD 89), and ADP Roche (as he then was) (in Ilic v Aldus Engineering Pty Ltd [2006] NSWWCCPD 157).

It appears from the above that the arbitrator accepted surgical procedures undergone were relevant factors in his assessment, set out the relevant surgical procedures, and fixed on a figure representing one third of a most extreme case taking into account (amongst other things) the surgical procedures. I can see no error in this. The Appellant Worker’s submissions at [1d] fail.

Finding Allegedly Inconsistent With the Evidence

At [18] of his reasons the arbitrator referred to the Appellant Worker’s statement that “his injuries prevent his playing sports, and I infer that in all likelihood that it is the pain in his back and right knee and foot that prevent his doing so. (sic)” At [19] the arbitrator referred to the inability to undertake recreational activities having a psychological impact on the Appellant Worker. He said “Dr Ellis also reported that Mr Brewster had taken anti-depressant medications until December 2007, and it seems to me that in all likelihood, given the context in which Dr Ellis relates this, the depression that was being treated by this medication was secondary to the pain Mr Brewster had in his back, right knee and right foot.”

The Appellant Worker’s submissions at [1d] state this finding was inconsistent with Mr Brewster’s “evidence of left thumb pain caused by driving and fishing”. The source of this “evidence” is not identified in the submissions. The sports to which the arbitrator was referring are set out at [0.17] of the Appellant Worker’s statement as “my pre-injury activities, including playing rugby league, soccer, surfing, boxing, etc”. Paragraph [0.26(j)] of the Appellant Worker’s statement, reads “Inability to play pre-injury sports including rugby league, soccer, surfing and boxing”. A passage in Dr Ellis’ report at P5.2 records (of the left thumb) “It does ache and it hurts the Left hand to grab the steering wheel, it hurts to hold a fishing rod using his Left hand.” Dr Silva’s report dated 5 March 2009 records at page 4.3 that “he cannot play soccer”.

Grabbing the steering wheel in the course of driving is hardly an activity that would conventionally be referred to as ‘playing sports’. Fishing probably could be regarded as a sport. The attack on this part of the arbitrator’s reasons appears to be based on the fact the arbitrator failed to refer to pain in the left thumb holding a fishing rod, when he was dealing with passages in the Appellant Worker’s statement that specifically dealt with restrictions on more active sports (rugby league, soccer, surfing and boxing). The references to these restrictions on more active sports at [0.17] and [26(j)], did not identify which of the various injuries were responsible for such restrictions. There is no specific evidence the left thumb symptoms were responsible for such restrictions. When the arbitrator’s reasons on this issue are viewed in context, it is apparent he was referring to the sporting activities set out at [0.17] and [0.26(j)]. He was dealing with the cause of such restrictions, in the absence of any specific evidence in the statement going to which of the permanent impairments (or other injuries) were responsible. This submission, at [1e] of the Appellant Worker’s submissions, is in my view without merit.

It follows from the above that I have not found any of the errors for which the Appellant Worker argued.

Was the Decision True and Correct?

The Appellant Worker submits, correctly and consistently with Sapina, that it is unnecessary for an appellant, pursuant to section 352 of the 1998 Act, to demonstrate ‘error’, for his appeal to succeed. If I form the view, on reviewing the decision, that the arbitrator did not reach the true and correct decision, I should substitute my view for that of the arbitrator. It is submitted the arbitrator did not reach the true and correct decision, and a higher award pursuant to section 67 was appropriate.

The Respondent Employer, in its submissions, does not argue against this proposition regarding the nature of ‘review’, and impliedly accepts it, having regard to its submission that the arbitrator did not reach a true and correct decision, and a figure representing 25per cent of the maximum should be substituted for the figure awarded by the arbitrator.

Much of the evidence has already been set out above. The Appellant Worker has a life expectancy of 60 years on the medium life tables. The permanent impairment results from the injuries to the left thumb, the back and the right knee. The initial injuries, and treatment, including the surgical procedures and hospital admissions, are set out at [4] to [10] above.

The Right Knee

The medico-legal report relied on by the Appellant Worker is that of Dr Ellis dated 21 July 2008. In respect of the right knee, the Appellant Worker complained at that time of pain present every day, worse in cold weather and walking on the flat ground for 20 minutes. The knee felt weak, as if it wanted to go into hyperextension. It would crack often during the day, there was sharp pain if the kneecap was bumped; the Appellant Worker could not kneel or squat. The right knee was always sore, and worse after working. It had given way about ten times, it locked for a few seconds, to a significant degree, about once weekly. It was weak walking up stairs; he could not kick a ball. He told Dr Ellis his right knee condition was “becoming worse”.

On examination the right thigh was equal in circumference to the left, although the right calf was one centimetre less than the left. There was scarring around the right knee. There was crepitus in the right patella. Movement was almost normal, and the cruciate ligaments were intact. Dr Ellis described the right knee as being severely injured, and still having a cartilage deficiency. He said the knee had “a surprisingly good range of movement but is unfit for the most strenuous use”. It was the site of osteoarthritis that would inevitably increase, and the Appellant Worker would eventually require a right total knee replacement. He was unfit for strenuous use of the right knee, and could not play sport. Dr Ellis stated “He has had considerable pain from his multiple injuries and still has a material degree of pain from his Right knee, low back and Right foot injuries.” He was “unfit for the most strenuous use of his Right lower limb and spine.” He was “unfit for labouring work or work that required strenuous use of his lumbar spine and Right lower limb.” Dr Ellis assessed 12per cent whole person impairment resulting from the injury to the right knee.

Dr Bramston in a report dated 16 March 2007 said “the principle [sic] disability is significant arthritis in the right knee”. There was significant pain in the knee. The prognosis was for “moderate function over the next 10 to 15 years with steady deterioration and eventual need for a knee replacement.” There was a 90per cent range of movements in the knee. The Appellant Worker was “suitable for more sedentary work”.

The Respondent Employer relied on a report of Dr Silva dated 5 March 2009. The knee complaints were recorded there as “some anterior knee pain with grating and a sensation of weakness and difficulty with squatting because of anterior pain in the right knee.” On examination there was no wasting of the right calf or thigh. Movements in both knees were equal. Ligaments were intact, there was retropatella tenderness with grating. There was difficulty with squatting, resulting from chondromalacia patellae in the right knee. Dr Silva assessed whole person impairment of 3per cent resulting from the right knee injury.

The AMS Professor Higgs examined the Appellant Worker on 21 September 2009. Present symptoms in the right knee involved discomfort varying from “2 to 7 out of ten”. The more severe pain was shooting in character. The pain was aggravated by both cold and warm weather. There was scarring. The right knee was postured in 5 degrees of measurable valgus. There was tenderness on palpation of the medial and lateral aspects of the knee joint. There was restriction of movement, with one half normal squat posture being achieved. There was no muscle atrophy or wasting (thus the right calf wasting detected by Dr Ellis had apparently resolved by the time of the examinations with Dr Silva and Professor Higgs). The Appellant Worker walked normally without a limp. Professor Higgs set out the various results of x-rays and investigations at page 6 of his report, and I shall not repeat those here. Professor Higgs assessed 4per cent whole person impairment resulting from the right knee injury.

Dr Bramston and Dr Ellis both commented on the likelihood of a right knee replacement being required. Dr Bramston said it would be within 10 to 15 years, and he “will require almost certainly more than one operation”. Dr Ellis recorded as a matter of history that the treating surgeon “forecast eventually a Right total knee replacement”, a proposition Dr Ellis then described as “very reasonable”. The Appellant Worker’s understanding, recorded by Dr Ellis, was that he “will need a knee replacement at the age of 35”. Dr Ellis did not actually venture his own opinion regarding when the procedure would be necessary, or whether more than one such procedure would be required. Neither Dr Silva nor the AMS Professor Higgs commented on the likelihood of such a procedure being necessary.

Professor Higgs at page 10 of the MAC commented on Dr Ellis’ methodology in assessing the impairment resulting from the right knee injury. He said that Dr Ellis, examining the Appellant Worker in 2008, used an “arthritis methodology”, having regard to x-rays taken in 2006. Professor Higgs regarded this as an error. Professor Higgs summarised the various radiological reports and investigations, at pages 6 to 7 of the MAC. An x-ray of the right knee on 29 August 2008 is said not to identify any abnormality. An MRI of the right knee on 14 December 2007 “reports that there is evidence of chondral wear at the apex of the right patella”. Dr Ellis had access to this MRI. His reports indicated he had access to an x-ray of the right knee reported on 7 August 2008 (referred to in his report dated 3 November 2008), but his reports do not refer to the right knee x-ray performed on 29 August 2008.

Dr Ellis’ views on arthritic change in the right knee are based (at least in part) on x-ray appearances in 2006. He did not have the 29 August 2008 x-ray that is described by Professor Higgs as not demonstrating any abnormality. Dr Ellis did not express a view of his own regarding when the Appellant Worker would come to knee replacement, or whether he would require more than one such procedure. I note the view of Dr Bramston, however he is, with respect, a general practitioner, and the views of orthopaedic surgeons would be of more assistance on this point. Overall I am not, on the evidence available to date, satisfied on the probabilities regarding the need for right knee replacement in the future, nor (should there be such a need) the number of such procedures or their timing. My assessment of the Appellant Worker’s entitlement pursuant to section 67 will not take account of a likely need for any such procedures. Should knee replacement ultimately prove necessary, the Appellant Worker would potentially have an entitlement to pursue any further entitlement under sections 66 and 67, in respect of additional permanent impairment and pain and suffering (see generally Lourdes House Hospital v Wheeler (1996) 13 NSWCCR 495).

I also will not take account of scarring, which has not been assessed for the purposes of section 66, at least on the material before me. The Appellant Worker’s submissions before the arbitrator stated at [6] that “A separate application for section 66 for whole person impairment in respect of scarring will be made in the future.”

The Lower Back

Although the Appellant Worker’s spine was x-rayed at St Vincent’s Hospital on the date of the accident, there is very little mention of back symptoms in the hospital records. Dr Bramston makes no reference to it in his report dated 16 March 2007.

The Appellant Worker told Dr Ellis low back pain had been present for the last eighteen months (i.e. from about early 2007), and had “occurred after he went home following the second operation about Xmas 2006. He noticed it first when lying down with his Right leg elevated…”. Thereafter the “back was not too bad”. It recurred while he was doing physiotherapy. “In December 2007 he picked up a wheelbarrow which was half full of sand, he lifted and pushed it and as he took his second step he felt a pain passing down his Left leg and was unable to stand or walk.”

On 11 June 2008 Dr Ellis recorded the Appellant Worker had low back pain every day and night, worse on exertion and straight leg raising. It hurt to bend over to put on footwear or swim. After 50 minutes driving the Appellant Worker had to get out and stretch his back. Sitting tolerance was 30 or 40 minutes. Straining at stool and coitus were painful. He could vacuum for 15 minutes, hanging out washing hurt his back. I shall not repeat Dr Ellis’ findings on examination of the lower back, which are set out at page 5 of his report. Dr Ellis records the report of a lumbar CT scan dated 6 December 2007 that shows (according to the conclusion of that report) large paracentral disc herniation at L4/5 slightly to the left of midline, causing considerable thecal sac compression. There is also bulging at L3/4 and L5/S1. Dr Ellis said the Appellant Worker had disc damage at three levels “almost certainly caused by his fall”. He thought the Appellant Worker unfit for strenuous use of his back. He assessed 6per cent whole person impairment resulting from the injury to the lower back.

Dr Silva recorded the Appellant Worker was aware of low back pain and stiffness that worsened with sitting for an hour and a half, standing for one hour and heavy lifting. There was tenderness over the lumbosacral junction, and some painful restriction of movement. Straight leg raising was restricted. Dr Silva assessed 6per cent whole person impairment resulting from the lower back injury.

An MRI on 20 September 2008 was reported as demonstrating “L4/5 disc degeneration and central posterior disc protrusion with marked deformity of the thecal sac and potential for compromise of both L5 nerve roots as they cross the disc.”

Professor Higgs recorded sharp pinching pain in the lower lumbar and lumbosacral regions. It was aggravated by any crouching and bending, and varied from 8 to 9 out of 10. There was pain in the right buttock and posterior thigh. On examination, there was no evidence of spasm. Flexion, rotation and lateral flexion were limited. Neurological examination of the lower limbs was entirely normal. There was no tenderness to palpation. Professor Higgs noted there was evidence of previous mild compression fracture at L1, and of “intervertebral disc degeneration (and protrusion) at the L4/5 level”. He concluded these conditions were not symptomatic, and did “not contribute any impairment of lumbo-sacral spinal function”. Rather, Professor Higgs concluded the Appellant Worker had “suffered a soft tissue musculo-ligamentous strain injury”, that was responsible for his low back symptoms.

The Left Thumb

The Appellant Worker is right hand dominant Dr Bramston’s report refers to “some arthritic change in the left thumb”, and ongoing pain in it. He thought the prognosis was for “ongoing moderate pain and stiffness”. As regards permanent impairment, he thought the thumb was “below the threshold of measurement”. Dr Ellis on 11 June 2008 recorded a history the thumb was “not ‘too bad now’”. It ached, and there was pain if he grabbed the steering wheel or held a fishing rod in the left hand. The condition was not altering, and “would affect his hand if he was concreting”. Dr Ellis thought it “inevitable that (the Bennett’s fracture) will cause some weakness of his left thumb and osteoarthritis later in life”. Notwithstanding this, his present grasp was “well within the normal average for adult males”. Dr Ellis did not assess any “impairment rating” in respect of the left thumb injury.

Dr Silva recorded a complaint of “some pain over the base of the thumb”. He assessed 2per cent whole person impairment from this injury. Professor Higgs recorded a complaint of pain localised to the “metacarpal region of the left thumb”, “gripping” in character, and aggravated by activities such as typing. The pain could be more severe “sharp and shooting pain”, and “on occasions the pain is ‘six out of ten’”. On examination there was some restriction of left thumb motion. Professor Higgs assessed 3per cent whole person impairment resulting from the left thumb injury.

Restrictions on the Appellant Worker’s activities, and his pain and suffering, are set out in his statement, particularly at [0.16], [0.17], [0.21], [0.22], [0.26] and [0.29]. Various of these matters are set out above. I will not recite them. On the evidence overall, it is reasonable to accept that most of the restrictions, and the pain and suffering, resulted from the impairments to the left thumb, right knee and lower back. However I also note the symptoms in the right foot described to Dr Ellis, Dr Silva and Professor Higgs. The right foot injury did not result in compensable permanent impairment. It would, in part, be responsible some of the pain, distress and anxiety suffered by the Appellant Worker.

Additionally, I note the references to emotional or psychological symptoms, referred to in some of the doctors’ reports, and the Appellant Worker’s statement. As the arbitrator observed at [20] of his reasons, the Appellant Worker did not have the “expertise or qualification” to make the “self-diagnosis” of “ongoing anxiety and depression”. There is no medical evidence to support the contention that there is an ongoing, diagnosable psychiatric illness, much less one that results from the permanent impairments for which compensation is payable pursuant to section 66. For the reasons referred to at [40] to [42] above, I would not be satisfied the Appellant Worker has suffered from a diagnosable psychiatric illness that results from the relevant permanent impairments.

Be that as it may, I have no difficulty in accepting the relevant impairments, and necessary treatment for them, would have resulted in significant distress and anxiety. Dr Ellis recorded the Appellant Worker was “frustrated, depressed and a bit short tempered”. Dr Bramston recorded he was “quite depressed about the situation”. The Appellant Worker’s statement refers to constant pain, and his loss of the ability to develop a career. The Appellant Worker is young, and the pain and suffering that results from the impairments will be something he has to contend with for many decades. This in my view is relevant to the assessment of pain and suffering in this matter (see Ainsworth Nominees Pty Ltd t/as Aristocrat Leisure Industries v Crouch (1995) 11 NSWCCR 640).

The Respondent Employer, in submitting an appropriate sum pursuant to section 67 is one quarter of the maximum ($12,500.00), has raised two specific arguments, which I will deal with in turn.

Avoiding Double Compensation – Application of Pacific Dunlop Limited v Krivec

The Respondent Employer refers to the following passage of the judgment of Handley JA in Pacific Dunlop Limited v Krivec (1996) 13 NSWCCR 353 (‘Krivec’) at 358D:

“There will normally be evidence before the tribunal of fact of the practical consequences of back impairment in terms of the restrictions on the person’s movements and activities, which may include the results of examinations and measurements by medical practitioners. To the extent to which that evidence is accepted, it will enable the tribunal of fact to make the required comparison with a most extreme case, even if there has been no expert opinion on that question expressed as a percentage.
Where pain is avoided by restricting back movements, compensation is properly payable under section 66 for impairment and not under section 67 for pain and suffering. Where back movements which the worker chooses to make, or cannot help making, cause pain, compensation is properly payable under section 67 for pain and suffering rather than under section 66 for impairment. At all events compensation should not be awarded twice for what is in substance the same pain and suffering.”

It will be observed Krivec involved section 66 of the 1987 Act in an earlier form, in which such compensation was payable for back impairment, that was assessed on the basis of reasonable proportionality to a most extreme case. The Respondent Employer submits various of the physical complaints made by the Appellant Worker are of such a nature that they are compensated pursuant to section 66. Examples given include restriction of movement, weakness in body parts, any impact on the Appellant Worker’s sexual function, difficulties engaging in rugby league, surfing, soccer and boxing, and difficulties in certain activities such as kneeling, squatting, sitting, using stairs, running, lifting and carrying. The Respondent Employer submits an entitlement pursuant to section 67 does not lie in the Appellant Worker’s inability or difficulty in performing such activities, but rather in pain and suffering that flows from such inability or difficulty. It is submitted that, in his statement, the Appellant Worker does not identify any “pain and suffering flowing from his inability to participate in the above activities”.

The Respondent Employer makes an associated submission, based on the Workcover Guides for the Evaluation of Permanent Impairment and the Medical Assessment Guidelines (‘the Guidelines’). Assessment of the degree of permanent impairment is made in accordance with the Guidelines: sections 322, 331 and 376 of the 1998 Act. The Guidelines are issued pursuant to section 376(1), and are based on the American Association Guides to the Evaluation of Permanent Impairment, 5^th Edition. The Guidelines relating to permanent impairment of the spine (Chapter 4) have provision (at 4.30) for building into the assessed impairment a figure to take account of the effect of spinal injury on activities of daily living (‘ADL’s’). This may add between 0per cent and 3per cent, to the figure that would otherwise apply.

Professor Higgs added 1per cent to his assessment of impairment resulting from the lower back injury, “for inability to perform all those normal activities of daily living associated with yard care activities”. The Respondent Employer submits that as this restriction has been compensated pursuant to section 66, it should not also be compensated pursuant to section 67, consistent with Krivec. It also submits that Professor Higgs did not add an increment for activities of daily living to reflect complaints in respect of hygiene, physical activity, lifting, driving and sleep, and this is inconsistent with some of the Appellant Worker’s complaints in this regard. It is put that Professor Higgs should be preferred to the complaints of the Appellant Worker in his statement, to the extent that Professor Higgs impliedly rejected such complaints, by not reflecting them in his allowance for ADL’s.

I do not understand Professor Higgs to reject any complaints made to him by the Appellant Worker. He specifically said “I have identified there to be no inconsistency with regard to the Worker’s presentation.” His adjustment of impairment to reflect ADL’s was based on a specific history, noted at P 4.7 of his report, that “The Worker has admitted to suffering from an inability to perform all of those normal activities of daily living that are associated with yard care activities. The Worker has advised me that he does have assistance with regard to lawn maintenance activities.” Consistent with the Guidelines at 4.30, Professor Higgs added 1per cent to his impairment assessment on this basis. I cannot see Professor Higgs’ adjustment of his assessment to reflect ADL’s is in any way inconsistent with the complaints made by the Appellant Worker, going to other maters.

There is validity in the submission that, as interference with yard care activities has already been compensated pursuant to section 66, it should not also be compensated pursuant to section 67. However, it is valid to draw a distinction between inability to carry out an activity (or avoidance of the activity due to pain), and pain and suffering (as defined in section 67(7)) that results from that inability or avoidance. Faced with a similar submission, based on the above passage in Krivec, in Oxford Art Supplies & Books Pty Limited v Gardiner (No 2) [2008] NSWWCCPD 122 (‘Gardiner’) I said this at [58]:
“What this passage seeks to do, in my respectful view, is simply to draw an appropriate distinction between the concepts of permanent impairment (compensable pursuant to section 66), and actual pain or distress or anxiety (compensable pursuant to section 67). The latter must result from the former, to be compensable (see sub-sections 67(1) and 67(2) of the 1987 Act in its current form). If a worker with a back injury never lifted more than ten kilograms, because it hurt, then it would be inappropriate to award damages for pain and suffering to compensate the pain associated with lifting over ten kilograms, which the worker did not experience, as he avoided the activity. If, however, the worker experienced significant distress because this lifting restriction prevented him lifting his children, this distress would be compensable, although it resulted from the lifting restriction. It is actual distress resulting from the permanent impairment.”
The point is largely academic in the current matter in any event. The Appellant Worker in his statement does not complain of an inability to carry out yard care activities, nor does he refer to distress or anxiety at any such inability. Out of deference to the Respondent Employer’s submission on this point, I accept an award pursuant to section 67 in this matter should not reflect a component for inability to carry out yard care activities.

The Respondent Employer’s submission, paraphrased at [102] above, is generally consistent with the passage from Gardiner I have set out. It simply underlines the distinction to be drawn between inability to carry out an activity (that may sound in permanent impairment compensable pursuant to section 66), and distress that results from permanent impairment (compensable pursuant to section 67).

The Respondent Employer submits the Appellant Worker’s statement does not identify pain and suffering resulting from inability to carry out the activities to which it refers. It is true the Appellant Worker has not, after setting out each facet of his life that is changed or restricted, then spelled out what actual pain, distress or anxiety he experienced as a result. However at [0.29] he described the effect the accident, his injuries and his convalescence had on him. He stated he had lost the enjoyment of life generally, and that he was in constant pain.

It is necessary (as was discussed above in considering the errors alleged by the Appellant Worker) to distinguish between pain and suffering resulting from the permanent impairment, as opposed to the accident in a more general sense. The statement does not do this with any great precision. However, of the various complaints made to him, Professor Higgs found permanent impairment resulted from all except the right foot. Clearly most of the orthopaedic complaints the Appellant Worker made resulted from the impairments that have been compensated pursuant to section 66.

I would accept that the Appellant Worker suffers from ongoing complaints of depression and anxiety (as those terms would be used by a lay person), and that this reflects distress and anxiety he suffers, largely due to his impairments. I would not be satisfied he suffers from any diagnosable psychiatric condition resulting from the impairments.

Dr Ellis’ history, dealing with the back complaints, recorded “Coitus is painful but possible.” The statement at [0.26] includes a complaint “Difficulty with sexual activities”. I accept the back injury interferes with the Appellant Worker’s ability to engage in sexual intercourse. He is a young man, and I readily infer this would cause distress. Similarly I would infer a level of distress at the inability to engage in various sporting activities identified in the statement. There is no element of double compensation in compensating such distress pursuant to section 67.

The St Vincent’s Hospital Progress Notes Report, relating to the admission in December 2006 for the second surgical procedure to the right knee, contain evidence going to pain, distress and anxiety resulting from that treatment. He is variously described as anxious, and agitated; there are a number of references to him shaking and suffering from nausea.

Proportionality

Section 67(3) requires the award “shall be reasonably proportionate to the maximum amount having regard to the degree and duration of pain and suffering and the severity of the permanent impairment.”

Wright C in Tyler at [14] set out a useful summary of factors to be taken into account in determining an amount under section 67. As noted above, that summary has been referred to with approval by his Honour the President Judge Keating, and by Roche ADP. The second factor referred to by the Commissioner is the need for comparison with a most extreme case. He notes this does not require comparison with the most extreme case (emphasis added).

The Respondent Employer has submitted that the state of quadriplegia is “a reasonable reference to a most extreme case”. On this basis it is submitted proportionality requires an award of 25per cent of the maximum amount. Reference is made to Government Supply Department v Abbott (1993) 9 NSWCCR 276. In that case Meagher JA identified a quadriplegic as a most extreme case, and then continued “the relevant question is how does the pain and suffering, real and unpleasant as it must have been, suffered by Mrs Abbott, compare to that of a quadriplegic?” Quadriplegia may well represent a most extreme case, but it is not the only example of a most extreme case. In Jones Bros Bus Co Pty Ltd v Baker (1992) 26 NSWLR 322 Kirby P (as his Honour then was) noted at 338F “that it was not necessary to establish ‘the most extreme case’ as being at the apex of a descending list of injuries catalogued according to their severity.” Candy ADP in Westling at [41] said “It is not necessary to be a quadriplegic in order to obtain the maximum sum under section 67 nor is that the sole point of reference by which other entitlements are measured. I agree. See also Rapford Pty Ltd t/as Gilbert Foil Container Co v Williams (1993) 9 NSWCCR 320.

Determining quantum pursuant to section 67 involves “in a sense, a value judgment” (Alvorac General Engineering Pty Limited v Arlotta (1993) 29 NSWLR 734 at 739A). In Galley v Pasminco Mining Limited (1993) 9 NSWCCR 288 at 297 Johns J said:

“The expression ‘a most extreme case’ is not the subject of statutory definition. The words have been stated to have no technical, legal significance, and there is no indication that Parliament intended any meaning other than that which the words ordinarily have (Dell v Dalton).
I conclude that this particular matter does not fall into the category of a most extreme case. In my view, when assessing pain and suffering pursuant to the provisions of section 67, the same approach to the assessment of damages for personal injury is to be applied in that its resolution involves questions of fact and degree, matters of opinion, impression, speculation and estimation calling for the exercise of commonsense and judgment (Dell v Dalton).”

Taking into account the circumstances of the matter overall, I have concluded the view reached by the arbitrator was the true and correct one, and a sum representing one third of the maximum is appropriate, applying principles of reasonable proportionality in compliance with section 67(3).

DECISION

The decision of the arbitrator dated 19 November 2009 is confirmed.

COSTS

I make no order as to costs of this appeal.

Michael Snell
Acting Deputy President
31 March 2010

I, TUYET WALLIS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF MICHAEL SNELL, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE