Cemco (Australia) Pty Ltd t/as Carrall's Engineering & Mining v Carrall
[2009] NSWWCCPD 76
•8 July 2009
| WORKERS COMPENSATION COMMISSION | ||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||||
| CITATION: | Cemco (Australia) Pty Ltd t/as Carrall’s Engineering & Mining v Carrall [2009] NSWWCCPD 76 | |||||
| APPELLANT: | Cemco (Australia) Pty Ltd t/as Carrall’s Engineering & Mining | |||||
| RESPONDENT: | Christopher Carrall | |||||
| INSURER: | CGU Workers Compensation (NSW) Ltd | |||||
| FILE NUMBER: | WCC 6572 - 08 | |||||
| ARBITRATOR: | Mr R Whitelaw | |||||
| DATE OF ARBITRATOR’S DECISION: | 5 March 2009 | |||||
| DATE OF APPEAL DECISION: | 8 July 2009 | |||||
| SUBJECT MATTER OF DECISION: | Lump sum compensation claim; whether the assessments can be aggregated to reach the threshold for compensation for pain and suffering; application of section 322 of the Workplace Injury Management andWorkers Compensation Act 1998. | |||||
| PRESIDENTIAL MEMBER: | Acting Deputy President Deborah Moore | |||||
| HEARING: | On the papers | |||||
| REPRESENTATION: | Appellant: | Sparke Helmore Lawyers | ||||
| Respondent: | Bale Boshev Lawyers | |||||
| ORDERS MADE ON APPEAL: | 1. Paragraphs 1, 2 and 3 of the decision of the Arbitrator dated 5 March 2009 are revoked and the following decision made in its place: (1) The Respondent pay to the Applicant $10,000.00 in respect of an 8% Whole Person Impairment of the left upper extremity as a result of the nature and conditions of his employment from 2002 to date together with the injury on 2 October 2003. (2) The Respondent pay to the Applicant $11,250.00 in respect of a 9% Whole Person Impairment of the right upper extremity as a result of the nature and conditions of his employment from 2002 to date together with the injury on 29 October 2004. 2. Paragraphs 4 and 5 are confirmed. 3. No order as to costs of the appeal. | |||||
BACKGROUND TO THE APPEAL
On 31 March 2009 Cemco (Australia) Pty Ltd t/as Carrall’s Engineering & Mining (‘the Appellant/Cemco’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision dated 5 March 2009.
The Respondent to the Appeal is Christopher Carrall (‘the Respondent/Mr Carrall’).
Mr Carrall is presently 59 years old. He describes himself as a self-employed “Director / Manager” of the Appellant. He worked as a fitter / machinist carrying out maintenance and repair work on mining equipment. His work involved lifting, bending climbing and other tasks he described as “very physical.”
He claimed that in about 2002 he began to develop quite severe pain and restriction of movement in his left shoulder. He also noticed symptoms in his right shoulder at that time, but they were less severe. After consulting his GP, Dr Baker, he was referred to Dr Dan Posel, orthopaedic surgeon, in October 2003. He underwent left shoulder arthroscopic debridement, arthroscopic acromioplasty and arthroscopic AC joint resection on 9 February 2004.
In February 2005 Mr Carrall returned to see Dr Posel this time with increasing pain and discomfort in his right shoulder. He said that following his return to work after the left shoulder surgery he was doing a lot of work with his right shoulder which he told Dr Posel had “…deteriorated over the past six months.” He also said that on 29 October 2004 he was using a breaker bar as a lever to undo a nut on an excavator when the nut gave way jarring his right shoulder. Dr Posel then performed arthroscopic surgery on the right shoulder in December 2005.
On 21 August 2008 Mr Carrall filed an “Application to Resolve a Dispute” (‘ the Application’) in the Commission seeking lump sum compensation for his injuries. In that Application, he nominated three ‘injuries’ as follows:
“Injury 1. 2002 to date and continuing as a result of the nature and conditions of employment. (Right and Left Upper Extremities).
Injury 2. 29 / 10 / 2004. Removing bolts when felt pain in right shoulder. (Right Upper Extremity).
Injury 3. 02 / 10 / 2003. Lifting a torquing machine and felt pain in left shoulder. (Left Upper Extremity).”
Mr Carrall was then referred to an Approved Medical Specialist (‘AMS’), Dr Pillemer. A Medical Assessment Certificate (‘MAC’) was issued on 6 November 2008. Dr Pillemer set out his assessments as follows:
| Body Part or system | Date of Injury | Chapter, page and paragraph number in WorkCover Guides | Chapter, page, paragraph, figure and table numbers in AMA5 Guides | % WPI | % WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality | Sub-total/s % WPI (after any deductions in column 6) |
| Left upper extremity Right upper extremity | 2/10/03 2002 to date and continuing 29/10/04 2002 to date and continuing | Chapter 2 Pages 11-12 Chapter 2 Pages 11-12 | Chapter 16, Pages 433 to 521 Chapter 16 Pages 433 to 521 | 4% 8% 4% 9% | nil ½ nil 4/9 | 4% 4% 4% 5% |
The parties attended a conciliation/arbitration hearing on 6 February 2009. The only issue in dispute was whether Mr Carrall could aggregate the assessments made by Dr Pillemer so as to entitle him to an award for pain and suffering pursuant to section 67 of the Workers Compensation Act 1987 (‘the 1987 Act’).
On 5 March 2009 a Certificate of Determination and Statement of Reasons (‘Reasons’) was issued. The Arbitrator found that the assessments could be aggregated, and awarded Mr Carrall $12,500 for pain and suffering.
It is from this decision that the Appellant seeks leave to appeal.
OTHER PRELIMINARY MATTERS
The Arbitrator’s summary of Dr Pillemer’s assessments set out at [4] of his Reasons appeared incomplete. In order to clarify the matter, I arranged for a teleconference with the parties on 2 July 2009. The parties agreed that the summary set out at [4] was inaccurate, and failed to include all the assessments set out in the original MAC. Having resolved this error, I therefore concluded that I could proceed to determine the matter.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 5 March 2009 records the Arbitrator’s orders as follows:
“1. That the Respondent pay to the Applicant $17,000 in respect of a 13% Whole Person Impairment covering injury suffered as a result of the nature and conditions of his employment and injury to his right upper extremity.
2. That the Respondent pay to the Applicant $5,000 in respect of a 4% Whole Person Impairment as a result of injury to his left upper extremity.
3. That the Respondent pay to the Applicant $12,500 in respect of pain and suffering pursuant to s67 of the 1987 Act.
4. That the Respondent pay the Applicant’s costs as agreed or assessed.
5. I certify this is a complex matter with an uplift of costs of 10%.”
ISSUES IN DISPUTE
The only issue in dispute is whether the Arbitrator was entitled to aggregate the assessments. The Appellant submits that the Arbitrator failed to correctly apply section 322 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) in distinguishing between the injuries (pathology) Mr Carrall sustained, and failed to correctly apply the principles enunciated in Department of Juvenile Justice v Edmed [2008] NSWWCCPD 6 (‘Edmed’) and New South Wales Fire Brigades v Turton [2008] NSWWCCPD68 (‘Turton’).
Mr Carrall submits that the injuries (pathology) were the same such that he was entitled to aggregate the assessments.
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 the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of 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 amount at issue on appeal satisfies the threshold requirements of section 352(2).
Leave to appeal is granted.
THE LEGISLATIVE FRAMEWORK
The injuries the subject of the claim arose after the introduction of the Workers Compensation Amendment Act 2001 which took effect on 1 January 2002. Changes to the 1987 Act introduced by the amending Act included section 65 of the 1987 Act and section 322 of the 1998 Act. They are in the following terms:
“65 Determination of degree of permanent impairment
(1) For the purposes of this Division, the degree of permanent impairment that results from an injury is to be assessed as provided by this section and Part 7 (Medical assessment) of Chapter 7 of the 1998 Act.
(2) If a worker receives more than one injury arising out of the same incident, those injuries are together to be treated as one injury for the purposes of this Division.
Note. The injuries are to be compensated together, not as separate injuries. Section 322 of the 1998 Act requires the impairments that result from those injuries to be assessed together. Physical injuries and psychological/psychiatric injuries are not assessed together. See section 65A.
(3) If there is a dispute about the degree of permanent impairment of an injured worker, the Commission may not award permanent impairment compensation or pain and suffering compensation unless the degree of permanent impairment has been assessed by an approved medical specialist.”
322 Assessment of impairment
(1) The assessment of the degree of permanent impairment of an injured worker for the purposes of the Workers Compensation Acts is to be made in accordance with WorkCover Guidelines (as in force at the time the assessment is made) issued for that purpose.
(2) Impairments that result from the same injury are to be assessed together to assess the degree of permanent impairment of the injured worker.
(3) Impairments that result from more than one injury arising out of the same incident are to be assessed together to assess the degree of permanent impairment of the injured worker.
Note. Section 65A of the 1987 Act provides for impairment arising from psychological/psychiatric injuries to be assessed separately from impairment arising from physical injury.
(4) An approved medical specialist may decline to make an assessment of the degree of permanent impairment of an injured worker until the approved medical specialist is satisfied that the impairment is permanent and that the degree of permanent impairment is fully ascertainable. Proceedings before a court or the Commission may be adjourned until the assessment is made.”
Also of relevance to this claim is section 326 of the 1998 Act. It provides:
“326 (1) An assessment certified in a medical assessment certificate pursuant to a medical assessment under this Part is conclusively presumed to be correct as to the following matters in any proceedings before a court or the Commission with which the certificate is concerned:
(a) the degree of permanent impairment of the worker as a result of an injury,
(b) whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality,
(c) the nature and extent of loss of hearing suffered by a worker,
(d) whether impairment is permanent’
(e) whether the degree of permanent impairment is fully ascertainable.(2) As to any other matter, the assessment certified is evidence (but not conclusive evidence) in any such proceedings.”
Thus there are two circumstances where it is appropriate to combine impairment assessments to ascertain whether a worker has exceeded the threshold in section 67(1) of the 1987 Act. The first is where a worker receives more than one injury arising out of the same incident: section 65(2) and section 322(3). The second is where multiple impairments result from the same injury: section 322(2). In the present case, in order to determine which category is applicable, careful consideration of the evidence is required.
THE EVIDENCE
In his statement dated 26 June 2007, Mr Carrall made no mention of any frank injury to his left shoulder on 2 October 2003. He said:
“In or about 2002 I began to develop pain and restrictions in my left shoulder. At the time I knew that the pain and injury to my left shoulder were the result of my heavy work….I also began to develop symptoms in my right shoulder although my left shoulder pain appeared to be more severe at the time.
My left shoulder has made a pretty good recovery [following surgery in February 2004]. I had three months off work as a result of the surgery. I went back to work and have recovered full movement with no restriction in the left shoulder.
When I went back to work I was doing a lot of work with my right shoulder so as to protect my left shoulder after the surgery. During this time the pain in the right shoulder increased as did the restriction.On 29 October 2004 I was using a breaker bar to act as a lever while undoing a nut on an excavator. When the nut gave I felt a jarring sensation in my right shoulder.
I continued working…for about 12 months…until one day when I went to pick up [a tool] …my right arm just did not have the strength to do so any more and was extremely painful.
As a result of this incident I went back to Dr Posel [who] recommended surgery to the right shoulder. This was …undertaken at Toronto Private Hospital. At the time of the operation it was found that I had torn tendons in my bicep and right shoulder.I had some time off work following the surgery and eventually returned gradually back to work…”
The only claim document included in Mr Carrall’s Application was one made on 17 November 2004 in reference to the incident on 29 October 2004. Mr Carrall did say however that he had suffered from “Other similar injuries” including “shoulder strain and soreness” over the period 1 June 2003 to 29 October 2004.
Mr Carrall consulted his general practitioner, Dr Baker, on 25 August 2003. In a report dated 1 September 2003, he obtained this history:
“Affected joints: L shoulder.
Clicks and feels a lump.
Operating the grease gun last week and since then noticed some problems. Perhaps initially injured it a few weeks prior to that.”
Dr Baker then referred him to Dr Posel. Dr Posel appears to have first seen Mr Carrall on 2 October 2003. In a report of that date, Dr Posel said:
“Many thanks for referring Chris with his left shoulder impingement syndrome and AC joint discomfort…
Chris reports left shoulder discomfort for the past four to five years, recently with an aggravation with heavy lifting of a torquing machine weighing 25 kilograms. When using the machine he is required to extend out to his left side. His discomfort deteriorated with such two months ago.
Assessment of his left shoulder revealed AC joint pain…He has evidence of a supraspinatus tendonitis and mild impingement at 90degrees of abduction…
X-rays of the left shoulder reveal AC joint degenerative change…Ultrasound performed on 28 August 2003 identifies the impingement syndrome.”
In a report dated 9 February 2004 Dr Posel said:
“Today…I performed an arthroscopic debridement on Chris’ left shoulder., arthroscopic acromioplasty and arthroscopic AC joint resection. The rotator cuff was scuffed but there was no evidence of significant partial thickness rotator cuff tearing.
Arthroscopy of the shoulder revealed circumferential glenoid labral degenerate tearing which was debrided…there was chronic inflammation in the rotator interval anteriorly by virtue of the ongoing impingement…
[There was a] very degenerate AC joint with complete loss of the intra-articular disc…”
On 30 March 2004 Dr Posel reported that, six weeks following the “… left shoulder arthroscopic debridement, arthroscopic acromioplasty and arthroscopic AC joint resection” progress was good and “on target.”
Dr Posel next saw Mr Carrall on 1 February 2005. In a report of that date, he said:
“Many thanks for referring Chris back to me now with right shoulder discomfort.
Chris is happy with his left shoulder function following [surgery] in February 2004.
Chris reports right shoulder discomfort for a few years now, such has deteriorated over the past six months. This was aggravated when he undid a bolt with a bar with a long extension on 25 November 2004, jarring his right shoulder and elbow when the bolt cracked loose. Chris now feels his right shoulder problems are similar to that prior to its (sic) surgery with the shoulder being noisy and discomfort with swinging a hammer…
X-rays of the right shoulder reveal an old probable remodelled subcapital neck of humerus fracture (more than likely incurred as a child when the growth plate was open) with good remodelling. A subacromial spur is evident together with irregularity of the greater tuberosity in keeping with chronic rotator cuff overload. The AC joint status isn’t documented on the x-ray report but there is evidence of degenerative change of such with slight superior subluxation of the distal clavicle.
Chris appears to have three problems with his right shoulder: chronic low grade glenohumeral joint degenerative change – this doesn’t require treatment at this stage.
In view of Chris’ supraspinatus tendonitis and impingement syndrome and symptomatic AC joint degenerative change I have recommended an arthroscopic acromioplasty and concomitant arthroscopic AC joint resection (as was performed on the left shoulder previously).”
The last report from Dr Posel is dated 12 May 2005. He referred to discussions regarding proposed surgery to the right shoulder noting:
“On examination…left shoulder function is fine. Assessment of the right shoulder reveals a supraspinatus tendonitis and impingement syndrome, AC joint discomfort and associated crepitus…
I am reasonably happy for Chris to delay surgery …but Chris is aware …a further injury to a predisposed shoulder could result in a rotator cuff tear…”
Mr Carrall was referred by his solicitors to Dr Ghabrial, orthopaedic surgeon, whom he saw on 29 January 2007. In a report of the same date, Dr Ghabrial said:
“Mr Carrall gave me the history of developing symptoms in his left shoulder in 2002 which he has attributed to the nature and conditions of his employment…At that time he reported symptoms in his right shoulder but not as severe.
Following his left shoulder surgery he returned to work and he noticed increasing symptoms in his right shoulder.
He had an incident on 29 October 2004 when he was using a breaker bar to lever a nut on an excavator. The nut gave way and he jarred his right shoulder. He saw Dr Posel who performed arthroscopic surgery to the right shoulder.”
After detailing his findings on examination, Dr Ghabrial opined:
“Mr Carrall developed symptoms in his left shoulder some time in 2002. He started to develop some symptoms in his right shoulder during that time however he had an incident on 29 October 2004 and as a result of that injury he required surgery for his right shoulder…He has been experiencing symptoms in his right hand consistent with right carpal tunnel syndrome with sensory changes.
I believe that his employment is considered to be a substantial contributing factor to the present clinical features, disabilities and impairment.”
Dr Ghabrial then proceeded to make an assessment of 5%Whole Person Impairment (‘WPI’) in respect of the right upper extremity and 4% for the left. He did not apportion the claimed injuries.
The Appellant relied upon reports from Dr Wallace, orthopaedic surgeon. In the first dated 22 March 2005, he noted this history:
“He first noted the onset of pain at his right shoulder in the course of duties at work in September 2003. At that time, he was tightening a chuck on the lathe when he noticed the onset of pain in his right shoulder.
He subsequently noted intermittent ongoing pain at the right shoulder in the course of duties at work including tightening chucks, pushing and pulling movements, using hammers or climbing ladders.
He was referred for review with Dr Posel…who assessed him on 1 February 2005.
At that time, he was complaining of an exacerbation of right shoulder pain after an incident at work on 25 November 2004…”
Dr Wallace opined:
“Mr Carrall has suffered chronic rotator cuff strain at the right shoulder, subacromial impingement syndrome and a temporary aggravation of pre-existing glenohumeral and acromioclavicular joint osteoarthritis as a result of injuries sustained in the course of duties of work in the period September 2003 to November 2004.”
Dr Wallace assessed Mr Carrall as suffering from a 4% WPI in relation to the right arm only, of which 2% was due to pre-existing osteoarthritis at the glenohumeral and acromioclavicular joints, and 2% due to “…injuries sustained in the course of duties at work in the period 2003 to 2004.”
Dr Wallace next saw Mr Carrall on 10 January 2007. He confirmed his earlier diagnosis in relation to the right shoulder, noting that, since his last report, Mr Carrall had undergone surgery on the right shoulder on 7 December 2005. He then made further WPI assessments in relation to the right arm only, this time assessing 11% WPI with 5% due to pre-existing conditions and 6% “…due to injuries sustained in the course of his duties at work in October 2004.” Dr Wallace did not assess the left shoulder.
The radiological material attached to the Application included an x-ray report of the right shoulder dated 25 January 2005 which noted:
“Mild/moderate osteoarthrosis of glenohumeral joint.
Slight remodelling / cortical spur abnormality at the neck of humerus may be a congenital exostosis or from previous trauma (/history of previous fracture).
There is evidence of rotator cuff tendinopathy.”
A left shoulder x-ray and ultrasound dated 28 August 2003 is an extremely poor copy but appears to show:
“There are degenerative changes present in both the AC and glenohumeral joints with some loss of joint space and early marginal osteophyte formation.There is also mild superior subluxation of the humeral head with respect to the glenoid…
On the ultrasound examination, there was marked thickening of the proximate aspect of the long head of biceps tendon…
The supraspinatus and subscapulans components of the cuff were moderately thickened…
IMPRESSION
There is generalised thickening and heterogeneity of the supraspinatus and subscapulans components of the cuff consistent with tendonitis. There is a possible partial thickness tear with degenerative enthesal change at the supraspinatus tendon insertion, very anteriorly. The patient had moderate difficulty with abduction with the tendon and bursa bunching at the outer margin of the acromion. This is consistent with an element of subacromial impingement.”
Dr Pillemer in his MAC recorded this history:
“Mr Carrall informs me that he is self employed, and he recalls originally developing discomfort in both shoulder regions in 2002 but symptoms were mainly in his left shoulder at that time and this is the shoulder that he concentrated on.
He informs me that on 2 October 2003 he was lifting a heavy torquing machine, weighing about 25kg and this significantly aggravated the symptoms in his left shoulder region. On 29 October 2004 he was using a breaker bar to act as a lever…and the nut gave way and he jarred his right shoulder region.”
THE ARBITRATOR’S FINDINGS AND REASONS
After setting out details of the MAC, the Arbitrator then summarised the parties’ submissions. Briefly, Mr Carrall submitted that the nature and conditions of his employment together with the two frank injuries contributed to the same pathology in each shoulder, namely degenerative changes, such that he was entitled to aggregate the WPI attributable to the ‘nature and conditions’ injury with the WPI attributable to “one or other of the other frank injuries…” so as to obtain an award for pain and suffering. The Arbitrator noted at [10]:
“He says that this can be done with each shoulder but elects in this instance to focus on the right shoulder so that he is entitled to 9% [WPI ] for the nature and conditions injury and 4% for the right shoulder injury which occurred on 29 October 2004 and which aggregate to 13% [WPI].”
At [12] he noted:
“[Mr Carrall] cited the decision in…Edmed which held that in s322, the word ‘injury’ means ‘pathology’ and within that section, the word ‘same’ means ‘identical’ and that this leads to the conclusion that the impairment to the Applicant’s right shoulder and his impairment as a result of the nature and conditions of his employment should be assessed together…
The Appellant submitted that the assessments in the MAC referred to two different body parts and different pathologies and referred to the decision of Turton. The Arbitrator said:
“15. In that case, the worker suffered injury to his right lower extremity and lumbar spine as a result of the nature and conditions of his employment and as a result of a frank injury.
16. …the worker sought to rely on the provisions of s322(3)…
17. Deputy President Snell’s conclusion there was that the…worker suffered injury to his lumbar spine resulting from both the nature and conditions of employment and the frank incident but found ‘ that s322(3) does not apply as the injuries do not arise out of the same incident. There are two causative incidents…it was inappropriate that the two impairments be added together to permit the…worker to cross the threshold.’ That is the approach [the Appellant] asks me to adopt here.”
The Arbitrator continued:
“18. In the present case had the nature and conditions element been assessed as one figure, the matter would have been made easier but it appears that Dr Pillemer has seen fit to break up the nature and conditions element of the claim and attribute 4% to the left upper extremity and 5% to the right upper extremity. I do not think that this was what he was asked to do.
19. The Application…sets out 3 injuries occurring on 3 separate dates ie
1. 2002 to date and continuing
2. 269(sic)/10/2004 & 02/10/2003
20. In his [MAC] Dr Pillemer has set out in paragraph 1 those 3 dates and classified them as 3 separate injuries. He was not asked to, did not set out to and should not have apportioned the [WPI] for nature and conditions between the two body parts. It is a separate injury as defined by s4 of the 1987 Act, specifically, s4(b)(ii) ie, an aggravation, acceleration, exacerbation or deterioration of a disease (the degenerative changes mentioned at paragraph 9 above) contributed to by the Applicant’s employment.
21. The two percentage figures at Table 2 ought to be aggregated so that the Applicant has suffered a 9% [WPI] that impairment relating to the nature and conditions of the Applicant’s employment from 2002 to the date of the [MAC].
22. Another way of putting it would be to apply the Turton principle and say that the Applicant had more than one injury (ie injuries to his left upper extremity and right upper extremity) arising from the same incident, ie, the nature and conditions of his employment and pursuant to s322(3) they should be assessed together.
23. The question then remains whether that assessment can be aggregated with either of the assessments of [WPI] for the right or left upper extremities so as to bring the Applicant across the threshold contained in s67(1) and entitle him to an award under s67.
24. Here, the principles in Edmed apply and it is necessary to see whether the impairment to the right upper extremity arose from the same injury ie pathology.
25. Dr Wallace thought that it did saying in his report of 22 March 2005 ‘Mr Carrall has suffered chronic rotator cuff strain at the right shoulder, subacromial impingement syndrome and a temporary aggravation of pre-existing glenohumeral and acromioclavicular joint osteoarthritis as a result of injuries sustained in the course of duties of work in the period September 2003 to November 2004.’
26. Dr Posel thought it did too (see his report to Dr Baker of 1 February 2005).’ His injuries are consistent with the mechanism described of carrying out repetitive heavy tasks involving his right arm including tightening chucks, pushing and pulling movements and using heavy hammers in the course of work as a plant maintenance worker.’
27. I therefore find that the Applicant can aggregate the [WPI] arising from the nature and conditions of his employment of 9% with the [WPI] relating to his right shoulder 4% for a [WPI] of 13% for the purposes of the threshold contained in s67(1) of the 1987 Act.”
DISCUSSION AND FINDINGS
At the outset, notwithstanding the Arbitrator’s comments on the way in which Dr Pillemer assessed Mr Carrall’s injuries, I note that there was no appeal filed in relation to his findings such that they are conclusively presumed to be correct for the purposes of this review. Indeed, I cannot see how Dr Pillemer could have assessed the claimed ‘single injury’ being the nature and conditions of employment from 2002 involving both arms other than as he set out. The Arbitrator was certainly entitled to aggregate the finding of a WPI of 4% of the left upper extremity due to the nature and conditions of employment with the WPI of 5% of the right upper extremity due to the same ‘injury’, that is, the nature and conditions of employment. The Appellant quite rightly accepts this as a possible outcome. But on all of the evidence, is this correct?
The real dispute is in relation to the impact of the frank injuries. The resolution of this dispute is by no means an easy task, given the medical evidence and the nature of the pathology in each shoulder.
The parties referred extensively to the decisions of Edmed and Turton. In Edmed, the worker suffered a frank injury to his right wrist on 1 March 2003. He suffered a further injury to that wrist on 25 August 2004. An AMS assessed a 9% WPI as a result of the first injury, and a 4% WPI as a result of the second. The Arbitrator aggregated the assessments and awarded compensation pursuant to section 67 of the 1987 Act. The employer appealed, arguing that the worker had sustained two separate injuries. The appeal was upheld. Deputy President Roche found that, since the worker did not suffer ‘the same’ injury, that is, ‘identical’, in each incident, the assessments could not be aggregated. He found that there were several differences in the pathology found following each incident. His summary of the application of section 322 of the 1998 Act is particularly useful in the present case. After considering the definition of ‘injury’ in section 4 of the 1987 Act he said:
“26. This definition is unhelpful in determining the issue before me. In Lyons, Judge Neilson held that ‘injury’ refers to ‘both the [injurious] event and the pathology arising from it’. I accept that definition as being appropriate for many purposes under the 1987 Act and the 1998 Act. That the term ‘injury’ can have two different meanings is acknowledged in section 322(3) of the 1998 Act where reference is made to ‘Impairments that result from more than one injury arising out of the same incident...’ (emphasis added). This reference to ‘injury’ can only mean the ‘pathology’ that has resulted from the relevant work ‘incident’ or injurious event. For example, if a worker falls and suffers a broken leg and separate and distinct nerve damage in the arm, he or she has suffered more than one ‘injury’ (an injured leg and an injured arm) within the terms of section 322(3) resulting from the one ‘incident’. In other words, he or she has suffered more than one pathology (‘injury’) as a result of the one incident or injurious event. Those ‘injuries’ are to be assessed together. This interpretation is consistent with section 65(2) of the 1987 Act and is uncontroversial.
27. The difficulty arises when a worker suffers one pathology (‘injury’) as a result of several independent ‘incidents’ or injurious events. This situation is partly addressed in section 322(2), which provides that ‘Impairments that result from the same injury are to be assessed together to assess the degree of permanent impairment of the injured worker’ (emphasis added). The reference to ‘the same injury’ in section 322(2) cannot be a reference to ‘the same incident’ because that situation is dealt with in section 322(3). The expression ‘the same injury’ is not defined but it follows that if ‘injury’ in section 322(3) means ‘pathology’ (as it must), then, for the section to be logically consistent, it must mean the same in section 322(2). If ‘injury’ in section 322(2) means ‘pathology’ then, for section 322(2) to be consistent with section 322(3), impairments resulting from the ‘same injury’ (the same pathology) are to be ‘assessed together’ regardless of whether they arise from the same ‘incident’ or separate incidents.”
The word “same” he said, means “identical”. He concluded:
“38. To be entitled to compensation for pain and suffering a worker must establish that he or she has sustained ‘an injury’ (that is, one injury in either one incident or one pathology in two or more incidents) that has ‘resulted in’ a degree of permanent impairment of 10% or more. The evidence does not establish that either of Mr Edmed’s incidents has, on its own, resulted in such a loss. Nor does it establish that he sustained ‘the same’ injury (pathology) in each incident so as to obtain the benefit of section 322(2) of the 1998 Act….
39. Impairments that result from more than one injury (pathology) arising out of the same incident are to be assessed together (section 322(3) of the 1998 Act and section 65(2) of the 1987 Act). Impairments that result from the ‘same injury’ (pathology) are to be assessed together even if they have resulted from different incidents, but the pathology (injury) resulting from each incident must be identical (section 322(2)).”
In Turton, the worker suffered an injury to his lumbar spine and right lower extremity (right sciatica) as a consequence of the nature and conditions of his employment over a period of time. He also complained of symptoms in his right foot consequent upon an injury to that foot in 1999. An AMS (following appeal) found that the worker had a 6%WPI in respect of the lumbar spine, and 4%WPI in respect of the right lower limb. ADP Snell held that the impairments could not be aggregated since the referred pain in the right leg from the back had been included in the lumbar spine assessment. It was clear that the finding of 4%WPI in respect of the right lower limb was for symptoms associated with a right foot injury, rather than radicular symptoms. In those circumstances, section 322(3) did not apply since the injuries did not arise out of the same incident; there were two causative incidents.
Similar issues were considered in Kolak v Hunami Pty Ltd & Anor [2008] NSWWCCPD 60 (‘Kolak’). In that case, the worker claimed that he injured his back as a consequence of two frank injuries together with the nature and conditions of employment between 2002 and 2004.. An AMS assessed him as suffering from a 4%WPI in respect of the three claimed injuries. The Arbitrator accepted that he suffered three separate injuries, and declined to aggregate the assessments. On appeal, Deputy President Roche found that the worker sustained the same injury in all three incidents. The same pathology was present in 2002 and in 2005. As a consequence, he was entitled to have his claim assessed on the basis that the work incidents resulted in one injury (pathology) and he could aggregate the assessments.
In XITMS Pty Ltd formerly known as Ion Transmissions Pty Limited v Castles [2007] NSWWCCPD 222 (‘Castles’) the worker suffered a serious injury to his right shoulder in July 2003. He resumed work predominantly using his left arm. As a consequence, he developed symptoms in his left shoulder. An AMS assessed him as suffering from a 9% WPI in respect of each upper extremity, combined to give a 17% WPI. In that case, I held that, on balance, it was appropriate to aggregate the assessments since they arose out of the same incident.
These decisions clearly illustrate the need to carefully consider the evidence in each particular case.
The facts in the present case can be distinguished from those in Castles since Mr Carrall initially developed symptoms in both shoulders, the left, he said, worse than the right. It appears that it was the incident lifting the torquing machine or perhaps using the grease gun that prompted him to finally consult Dr Baker: the evidence in relation to this ‘injurious event’ is by no means clear.
The difficulty I have had in determining the present case is the nature of the pathology in each shoulder. On the face of it, the pathology in both shoulders appeared very similar. However, I am satisfied that, on close scrutiny of the medical evidence, it was not identical. Without traversing all of that evidence, it is probably best summed up by Dr Pillemer when he concluded:
“Mr Carrall developed symptoms in both shoulder regions in 2000 (sic-2002) and these symptoms became progressively worse and he was eventually shown to have degenerative changes in both shoulders involving the glenohumeral joint on the right side and also the acromioclavicular joints, as well as a rotator cuff repair lesion on the right side.”
Dr Pillemer also noted that Mr Carrall had undergone “…excision of the outer end of his clavicle…” on the right side, while on the left, he underwent”…excision of the AC joint.”
These observations are consistent with the reports of Dr Posel and the radiological investigations, which also noted some congenital abnormalities in the right shoulder.
Thus the facts of this case can be distinguished from those of Kolak. The difficulty in this case is that it is impossible to distinguish what ‘incident’ or ‘injurious event’ caused the pathology in each shoulder. It is not a situation where it is possible to say, for example, whether it was the nature and conditions of employment ‘injurious event’ or the claimed frank injury on 2 October 2003 that caused the supraspinatus tendonitis and impingement syndrome found by Dr Posel on initial examination on a background of AC joint degenerative change in the left shoulder. The same must be said in relation to the right shoulder. As Dr Posel commented on his initial examination, “Chris reports right shoulder discomfort for a few years now…this was aggravated when he undid a bolt…”
I agree with the Arbitrator’s findings to the extent that the ‘injury’ sustained by Mr Carrall in each shoulder falls into the category of section 4(b)(ii) of the 1987 Act, that is, the aggravation, acceleration, exacerbation or deterioration of a disease contributed to by his employment. That being the case, the two ‘frank injuries’ in my view must be seen as merely contributing to the overall pathology found in each shoulder.
Dr Pillemer was asked to assess the impairments arising from three specified injuries, however, those various assessments he said, were by way of “suggestion” only: there is no explanation by him as to the basis upon which he concluded that, in the right upper extremity for example: “I have suggested that 4% of this impairment [9%] is due to his injury on 29 October 2005 (sic) and 5% due to the nature and conditions of his employment from 2002(sic) to date and continuing.”
There is no doubt that the impairments assessed as a consequence of the ‘nature and conditions’ injury are capable of being assessed together since they clearly arose as a consequence of the same ‘injurious event’. But on my analysis of the evidence, the same pathology has occurred as a consequence of both the ‘nature and conditions’ injury and each of the frank incidents such that, notwithstanding Dr Pillemer’s ‘split’, it is impossible to separate the consequences of each ‘event’. In other words, adopting the findings of Deputy President Roche in Edmed:
“If ‘injury’ in section 322(2) means ‘pathology’ then, for section 322(2) to be consistent with section 322(3), impairments resulting from the ‘same injury’ (the same pathology) are to be ‘assessed together’ regardless of whether they arise from the same ‘incident’”(emphasis added).
That being the case, the proper conclusion given the facts and evidence in this particular case is that Mr Carrall has suffered a 9%WPI in the right upper extremity and an 8%WPI in the left. It is not appropriate to aggregate those two assessments since the pathology in each shoulder is not ‘identical’.
I did consider whether, if the ‘nature and conditions’ assessments were aggregated [9%WPI} it was then appropriate to add to that the assessment of 4%WPI in the left upper extremity as a result of the claimed frank injury on 2 October 2003 since that ‘injury’ (pathology) was the same. However, that would lead to an anomaly with respect to the right upper extremity, since I have similarly found that the incident in October 2004 using the lever to undo a bolt was not a separate ‘event’ as far as the pathology in that shoulder was concerned. It would be inconsistent to thus find that the October 2004 incident resulted in a separate impairment of 4%WPI.
This appears to have been the approach adopted by Mr Carrall at the Arbitration but in reverse. As the Arbitrator noted at [10], Mr Carrall elected to focus on the right shoulder, claiming that he was entitled to the 9%WPI in respect of the ‘nature and conditions’ injury together with the 4%WPI in respect of the October 2004 incident. It is not clear on what basis this approach was adopted.
The Arbitrator was correct in concluding at [25] – [26] that both Dr Wallace and Dr Posel thought that “…the impairment to the right upper extremity arose from the same injury ie pathology.” I note however that both those doctors concluded that it was the ‘nature and conditions’ of employment that was responsible for the pathology in the right upper extremity.
But the same has to be said in relation to the left upper extremity. In other words, it seems that it was the ‘nature and conditions’ of employment together with the claimed aggravating frank incidents that were responsible for Mr Carrall’s impairments. The pathology in each shoulder not being identical, the assessments in respect of each cannot be aggregated.
CONCLUSION
Having conducted a review on the merits (per Spigelman CJ in State Transit Authority ofNew South Wales v Fritzi Chemler [2007] NSWCA 249) I am of the view, for the reasons stated, that the “true and correct view” of this matter is that Mr Carrall is entitled to an award in respect of 8%WPI for the left upper extremity and 9%WPI in respect of the right upper extremity.
DECISION
Paragraphs 1, 2 and 3 of the decision of the Arbitrator dated 5 March 2009 are revoked and the following decision made in its place:
“1. The Respondent pay to the Applicant $10,000.00 in respect of an 8% Whole Person Impairment of the left upper extremity as a result of the nature and conditions of his employment from 2002 to date together with the injury on 2 October 2003.
2. The Respondent pay to the Applicant $11,250.00 in respect of a 9% Whole Person Impairment of the right upper extremity as a result of the nature and conditions of his employment from 2002 together with the injury of 29 October 2004.”
Paragraphs 4 and 5 are confirmed.
COSTS
I make no order as to costs of the appeal.
Deborah Moore
Acting Deputy President
8 July 2009
I, MARIE JOHNS CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DEBORAH MOORE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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