Central West Group Apprentices Ltd v Barrett

[2008] NSWWCCPD 137

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Central West Group Apprentices Ltd v Barrett [2008] NSWWCCPD 137
APPELLANT:		Central West Group Apprentices Ltd
RESPONDENT:		Mark Thomas Barrett
INSURER:		Allianz Australia Workers Compensation (NSW) Limited
FILE NUMBER:		WCC8933-07
DATE OF ARBITRATOR’S DECISION:		22 August 2008
DATE OF APPEAL DECISION:		20 November 2008
SUBJECT MATTER OF DECISION:		Lump sum compensation; multiple post 31 December 2001 injurious events; circumstances in which the effects of multiple injurious events may be aggregated to meet the threshold for compensation under section 67 of the Workers Compensation Act 1987; section 322 of the Workplace Injury Management and Workers Compensation Act 1998
PRESIDENTIAL MEMBER:		Deputy President Bill Roche
HEARING:		On the papers
REPRESENTATION:		Appellant:	Ellison Tillyard Callanan
Respondent:	White Barnes
ORDERS MADE ON APPEAL:		Paragraphs one and two of the Arbitrator’s determination of 22 August 2008 are revoked and the following orders made: “1.The Applicant sustained the same injury to his lumbar spine arising out of or in the course of his employment with the Respondent in incidents on 8 April 2003 and 25 January 2005. As a result, under section 322(2) of the Workplace Injury Management and Workers Compensation Act 1998, his impairments, assessed by an Approved Medical Specialist in a Medical Assessment Certificate dated 11 March 2008, are to be assessed together. 2.   The Respondent is to pay the Applicant the following lump sum compensation: (i) $15,000 under section 66 of the Workers Compensation Act 1987 in respect of a 12% whole person impairment made up as follows: 6% permanent impairment as a result of the incident on 8 April 2003 and 6% permanent impairment as a result of the incident on 25 January 2005; (ii) $12,500 under section 67 of the Workers Compensation Act 1987 in respect of pain and suffering. 3.  The orders made in paragraph 2 of the Certificate of Determination of 10 June 2008 and in paragraph 2(i) above will be satisfied on the payment of $15,000, if that has not already been paid.” Paragraphs three and four of the Arbitrator’s determination of 22 August 2008 are confirmed. The appellant employer is to pay the respondent worker’s costs of the appeal.

INTRODUCTION

1. This appeal concerns the circumstances in which the effects of two work incidents may be aggregated to meet the threshold for the recovery of compensation in section 67 of the Workers Compensation Act 1987 (‘the 1987 Act’).

BACKGROUND

1. The worker, Mr Barrett, injured his back whilst working for Central West Apprentices Ltd (‘Central West’) on 8 April 2003.  After a few months off work, during which time he received physiotherapy, his back settled and he returned to his original job.  He had no restrictions in the use or movement of his back and he continued his full pre-injury duties until 25 January 2005, when he suddenly developed severe pain in his low back and right leg whilst swinging an axe in the course of his employment.  He stopped work and attended at Coonamble Hospital that afternoon.  He has not returned to work since.

1. On 5 September 2007, Mr Barrett claimed lump sum compensation in respect of a 12% whole person impairment as a result of his injury on 25 January 2005.  In support of his claim, Mr Barrett relied on a report from Dr Burgess, orthopaedic surgeon, who diagnosed Mr Barrett to have “symptoms and signs of a lumbar disc prolapse”. 

1. On receipt of the claim, Central West’s insurer, Allianz Australia Workers Compensation (NSW) Limited (‘Allianz’) referred Mr Barrett to Dr Bosanquet, consultant orthopaedic surgeon, for assessment.  In his report of 27 October 2007, Dr Bosanquet took a history of both incidents and noted that the pain from the first incident “settled completely”.  In a supplementary report dated 18 November 2007, he diagnosed Mr Barrett to have suffered an aggravation of underlying degenerative changes (lumbar spondylosis) in the incident on 25 January 2005.

1. By an Application to Resolve a Dispute (‘the Application’) registered in the Commission on 23 November 2007, Mr Barrett claimed lump sum compensation in respect of a 12% whole person impairment as a result of the injury on 25 January 2005 plus compensation for pain and suffering under section 67 of the 1987 Act. By consent, the Application was amended at a teleconference on 18 January 2008 to add the incident of 8 April 2003, but no amendment was made to the compensation claimed. The orders made on 18 January 2008 were incorporated in formal “Consent Orders” dated 24 January 2008. Those orders noted the relevant amendment and included the following order:

“3.I remit this file for the Registrar to organise an assessment by a relevant Approved Medical Specialist of the permanent impairment to the Applicant’s lumbar spine as a result of injuries sustained on 8/4/2003 and 25/1/2005.”

1. On 28 January 2008, the Commission referred Mr Barrett’s claim for 12% whole person impairment to an Approved Medical Specialist (‘AMS’) for assessment.  The AMS (Dr Porges) issued a Medical Assessment Certificate (‘MAC’) on 11 March 2008 in the following terms:

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)
1.Lumbar spine	8/4/2003	Para 4.23, page 22	Table 15.3 page 384	6%	0	6%
2.Lumbar spine	25/1/2005	Para 4.23, page 22	Table 15.3 page 384	12%	1/2	6%

1. On the assumption that no further matters were in dispute, the Registrar issued a Certificate of Determination on 17 April 2008 ordering the respondent to pay to Mr Barrett the sum of $7,500 in respect of 6% permanent impairment attributable to the injury on 8 April 2003 and $7,500 in respect of 6% permanent impairment attributable to the injury on 25 January 2005, and noting that “In accordance with the Medical Assessment Certificate, the Applicant has no entitlement to lump sum compensation under section 67 of the Workers Compensation Act 1987”.

1. By letter dated 8 May 2008, Mr Barrett’s solicitors, White Barnes, wrote to the Registrar advising that, as there had been no argument in relation to their client’s potential entitlement under section 67, it was inappropriate for the Commission to unilaterally determine the matter. They requested that the matter to be listed for a teleconference so Mr Barrett’s potential entitlement to section 67 compensation could be further considered.

1. The Registrar wrote to the parties on 16 May 2008, as follows:

“As is evidence from the Statement of Reasons, this Certificate was issued in the absence of the knowledge that the issue of a possible section 67 entitlement remained live.

The Certificate of Determination is rescinded under section 350(3) of the Workplace Injury Management and Workers Compensation Act 1998 to enable the application to [be] referred to a teleconference.”

1. On 23 May 2008, Central West’s solicitors, Ellison Tillyard Callanan, wrote to White Barnes and noted that the Registrar’s letter of 16 May 2008 rescinded the previous Certificate of Determination and their client was therefore not able to pay the section 66 awards. They had no objection to White Barnes “seeking to persuade the Registrar to reinstate paragraphs 1 and 2 of the Certificate of Determination dated 17 April 2008”, as that would “at least enable our client to pay the s66 assessment”. In the alternative, it was suggested that the Arbitrator could be asked to do that at the teleconference scheduled for 9am on 6 June 2008. The second suggestion was apparently acted on and at the teleconference on 6 June 2008 the Arbitrator made Consent Orders (formally dated 10 June 2008) in the following terms:

“In respect of Permanent Impairment:

1.   I note that the parties accepted the conclusive findings of AMS, Dr Stuart Porges with respect to the assessment of permanent impairment as set out in the Medical Assessment Certificate dated 11/3/2008.

2. That the Respondent pay to the Applicant as lump sum compensation under section 66 of the Workers Compensation Act 1987:

a)the sum of $7,500.00 in respect of 6.0 per cent permanent impairment assessed as a percentage of whole person impairment attributable to injury on 8 April 2003 as conclusively determined by Dr Stuart Porges, AMS.

b)the sum of $7,500.00 in respect of 6.0 per cent permanent impairment assessed as a percentage of whole person impairment attributable to injury on 25 January 2005 as conclusively determined by Dr Stuart Porges, AMS.”

1. The issue of whether the two awards could be aggregated for the purposes of the threshold under section 67 of the 1987 Act was listed for formal arbitration on 13 June 2008. In a reserved decision, delivered on 22 August 2008, the Arbitrator made the following determinations:

“1.I determine that the Applicant, who sustained injuries to his lumbar spine on 8 April 2003 and on 25 January 2005 is entitled to have the impairments that have resulted from those injuries assessed together as they arose out of the same incident.

2.That the Respondent pay to the Applicant as lump sum compensation:

1) under section 66 of the Workers Compensation Act 1987 as conclusively determined by Dr Stuart Porges, AMS the sum of $15,500.00 [sic] in respect of 12.0 per cent WPI.

2) under section 67 of the Workers Compensation Act 1987 in respect of pain and suffering the sum of $12,500.00

3.The Respondent is to pay the Applicant’s costs as agreed or assessed.

4.I certify that this was a complex matter and determine that pursuant to Clause 4 of Schedule 6 and Item 4 of Table 4 of the Workers Compensation Regulation 2003 that in respect of the Applicant’s and Respondent’s costs that a percentage increase of 25% be applied.”

1. By an appeal filed on 11 September 2008, Central West seeks leave to appeal against the Arbitrator’s determination of 22 August 2008.

LEAVE TO APPEAL

Monetary Threshold

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

1. There is no issue that the thresholds in section 352(2) are satisfied.

Time

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

1. I grant leave to appeal.

ON THE PAPERS

1. 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.”

1. Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances. 

ISSUES IN DISPUTE

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

(a)failing to apply the decision of Glebe Rowing Club Pty Ltd v Pride & anor (unreported Court of Appeal, 6 December 1995, BC9501895) (‘Pride’);

(b)failing to correctly identify the factual issue he had to determine;

(c)deciding that the disc protrusion due to each injury was the same, and

(d)by reformulating and remaking the award pursuant to section 66 of the 1987 Act.

SUBMISSIONS

1. Central West submits:

(a)the dispute was referred to the AMS under section 321 of Part 7 of the 1998 Act and an assessment in a MAC issued under Part 7 is:

“conclusively presumed to be correct as to the following matters in any proceedings before …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,…” (section 326 of the 1998 Act)

(b)the reference to “as a result of an injury” in section 326 can be regarded as including “injuries”, plural (see section 8(3) of the Interpretation Act 1987);

(c)the AMS noted that he was assessing the degree of whole person impairment that resulted from the injury on 8 April 2003 and the injury on 25 January 2005;

(d)under “summary of injuries and diagnosis”, at page four of the MAC, Dr Porges recorded, “Mr Barrett appears to have sustained disc protrusion following two episodes at work”.  Under “an explanation of my calculations (if applicable)”, at page five of the MAC, Dr Porges recorded, “I have assessed that his initial protrusion occurred at the initial injury and further disc protrusion occurred at the second injury”;

(e)in accordance with the MAC, the Commission issued a Certificate of Determination on 17 April 2008 (see paragraph [7] above);

(f)the MAC is conclusively presumed to be correct as to:

(i) the degree of permanent impairment resulting from the injury of 8 April 2003, which was 6%, and

(ii) the degree of permanent impairment resulting from the injury of 25 January 2005, which was 6%.

(g)the MAC clearly distinguished that each injury had produced a separate degree of whole person impairment as the whole person impairment entry in the table for the 8 April 2003 injury was 6% and the initial whole person impairment entry in the table of 12% for the 25 January 2005 injury was reduced by “1/2” under section 323 of the 1998 Act in respect of the pre-existing injury on 8 April 2003.  The resultant whole person impairment assessment for the injury of 25 January 2005 was thus 6%;

(h)the section 66 awards were therefore correctly expressed as being losses that resulted from separate injuries;

(i)to meet the threshold in section 67(1) of the 1987 Act, the injury must result in a degree of impairment of 10% or more. That requirement is not attained where one injury resulted in a permanent impairment of 6% and another injury resulted in a permanent impairment of 6%;

(j)in Pride, the Court of Appeal confirmed this interpretation. In that case Meagher JA and Rolfe A-JA inferred that the findings of the trial judge were that two injuries had resulted in two losses. As there was no loss from a single injury that exceeded the section 67 threshold, no compensation was payable under section 67;

(k)sections 66 and 67 when Pride was decided were not different “in conceptual terms” to the current wording of those sections.  Hence it remains binding authority;

(l)the decision of Department of Juvenile Justice v Edmed [2008] NSWWCCPD 6 (‘Edmed’) was wrongly decided, as it did not follow Pride, and “proceeded on the basis that injury and pathology are effectively interchangeable concepts, whereas injury is a defined term”, and

(m)the worker submitted, relying on Edmed, that the losses could be aggregated as the pathology suffered was the same.  That case requires that the pathology resulting from the separate injuries has to be identical before it can be aggregated and, in the present matter, it was not established that the pathology described by the AMS was identical.

DISCUSSION AND FINDINGS

Failing to Apply Glebe Rowing Club Pty Ltd v Pride

1. At first instance in Pride, Judge Burke found a 22% impairment of the worker’s back resulting from two injuries with two employers, and ordered each employer to contribute equally to that award. His Honour also awarded compensation under section 67, which was also apportioned equally between the two employers. On appeal, Meagher JA held at page three that the apportionment provisions had no application because the trial judge found “two distinct injuries, each with a quantified amount of damage resulting”. The other Justice forming the majority was Rolfe A-JA who held that Judge Burke found two losses resulting from two injuries. Rolf A-JA quoted from Burke J’s decision and then noted at page 5:

“Those findings, in my opinion, meant the two injuries gave rise to two losses, each of which was, in the view his Honour took, compensable under s66. However, he held the extent to which each was compensable, in financial terms, was at a figure which did not meet the threshold for compensation under s67(1) required by s67(2). That flows from his finding that the amount payable under s66 was $13,000 of which one half was attributable to each injury.”

1. Rolf A-JA summarised the appellant’s submission (at page 11):

“The submissions on behalf of the appellant were that his Honour erred, having found that Miss Pride suffered two injuries that equally contributed to her impairment and having found that the total impairment was between 1:5 and 1:4, in that there was no loss from a single injury that was not less than ten percent of the maximum amount referred to in s66(1). His Honour, having found that $13,000 was payable pursuant to s66, found, so it was submitted, that only $6,500 was payable ‘in respect of the loss resulting from each of the injuries’ and it was not in issue, if that be the correct view as to what his Honour did, that the amount of the award under s66 was insufficient to attract the provisions of s67, so that Miss Pride was not entitled to an award thereunder.”

1. At page 13, Rolf A-JA added:

“The problem, at this stage, is whether there was one loss resulting from two injuries, or whether there were two losses resulting from two injuries within the meaning of s 66. For the appellant to succeed it must show the latter. It cannot be disputed that after the second incident Miss Pride was suffering from a loss different from that from which she was suffering after the first incident. But the proper inference from his Honour’s findings is that each injury gave rise to a loss compensible equally under s66. That is made clear by his Honour’s findings at AB71, which I have quoted. Thus as a matter of fact his Honour found two injuries giving rise to two losses each of which was compensible in the sum of $6,500, which sum was insufficient to justify an award of compensation under s67.”

1. His Honour continued, at page 14:

“The problem I have with the submission is that it overlooks the existence of two injuries each of which gave rise to a compensable loss under s66, and it is clear from his Honour’s findings that had he been considering each such loss separately he would have found that the amount of compensation payable for each was $6,500.  This, as was not in issue, was below the threshold.  The aggregation of the two losses into one loss was not, in my opinion, a permissible exercise.  The situation may have been different if the factual findings had been that the first incident did not give rise to a compensable loss.” (emphasis added)

1. The end result was that the appeal was allowed and the award under section 67 was set aside.

1. Pride has been considered by several judges of the Compensation Court of NSW.  In Sidiropoulos v Able Placements Pty Ltd (1998) 16 NSWCCR 123 (‘Sidiropoulos’) Neilson CCJ noted that the strict ratio decidendi in Pride was the interpretation of the first instance factual findings by Burke CCJ (Sidiropoulos at 127). A similar view was expressed by Bishop CCJ in Scanlon v Powercoal Pty Ltd (2001) 22 NSWCCR 82 and by Armitage CCJ in Pickles v Staples Waste Removals Pty Ltd (2000) 20 NSWCCR 729 at 747.

1. Central West submits that because a MAC is “conclusively presumed to be correct” as to “the degree of permanent impairment of the worker as a result of an injury” (section 326 of the 1998 Act), Mr Barrett has no entitlement to section 67 compensation because he has suffered two impairments, neither of which meets the section 67 threshold.

1. This submission ignores two fundamental points.  First, whilst the parties accept that the MAC is conclusively presumed to be correct as to the matters identified in section 326 of the 1998 Act, the issuing of a MAC does not equate to the determination of liability by the Commission.  An AMS is not part of the Commission and only the Commission is empowered to determine the quantum of compensation payable as a result of injury (Jopa Pty Ltd t/as Tricia’s Clip-n-Snip v Edenden [2004] NSWWCCPD 50; (2004) 5 DDCR 321; and Connor v Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2006] NSWCCPD 124; (2006) 5 DDCR 337). A MAC is not necessarily determinative of the question of whether a worker’s impairments have satisfied the thresholds in section 67 of the 1987 Act. That question requires an assessment of all the evidence and the legislation, including section 322 of the 1998 Act.

1. Second, it ignores the terms of section 322 of the 1998 Act, a provision that did not exist when Pride was decided.  It provides:

“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) …” (emphasis included)

1. The term “injury” has not been amended in any relevant way since Pride.  It is defined in section 4 of the 1987 Act and in section 4 of the 1998 Act as follows:

“4 Definition of ‘injury’

In this Act:  
‘injury’:

(a) means personal injury arising out of or in the course of employment,
(b) includes:

(i) a disease which is contracted by a worker in the course of employment and to which the employment was a contributing factor, and
(ii) the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration, and

(c) does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942 , or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”

1. This definition is unhelpful in determining the issue before me.  In Lyons v Master Builders Association of NSW (2003) 25 NSWCCR 423 (‘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 (but not all) purposes under the 1987 Act and the 1998 Act. 

1. For many years the courts have determined “personal injury” in workers’ compensation legislation, both in England and Australia, by reference to whether the worker has suffered a pathological change.  The High Court considered the meaning of “injury” in the 1987 Act in Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310 (‘Zickar’).  In that case, a worker collapsed at work after the rupture of a cerebral aneurism and suffered severe brain damage.  The aneurism was a congenital weakness.  The High Court held that he had suffered a personal injury in the course of his employment.  Kirby J noted (at 347) that for a long time under English legislation, the rupture of an artery has been held to be capable of constituting a “personal injury by accident”.  That was because “it had the hallmarks of an ‘injury’, being a sudden or identifiable pathological change” (emphasis added).  Referring to this passage, Armitage CCJ held (at [129]) in Castro v State Transit Authority (NSW) (2000) 19 NSWCCR 496 that:

“This passage…makes it clear that what is required for an ‘injury’ within par (a) [of section 4] to occur is a ‘sudden or identifiable pathological change’ in the body, whether internal or external.”

1. Armitage CCJ then quoted at length from Willis v Moulded Products (Australia) Ltd [1951] VLR 58 (‘Willis’), a case also cited by Kirby J in Zickar. In that case the Full Court of the Supreme Court of Victoria held that the rupture of a cerebral artery constituted an “injury by accident”. Armitage CCJ observed (at [134]) that Willis was “all of a piece with the line of authority ending in Zickar that a sudden pathological change whether internal or external is sufficient to constitute an ‘injury’…”.

1. That the term “injury” means pathology, or pathological change, 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) resulting from the “same 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” (pathologies) are to be assessed together.  This interpretation is consistent with section 65(2) of the 1987 Act and is uncontroversial.

1. In Edmed, I said (at [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.”

1. This interpretation is logical and consistent with the clear intention of the legislation, namely, that impairments from one injury (pathology) or from the same incident are to be assessed together.  It is also consistent with the long line of authority that has defined or determined ‘injury’ in terms of the pathology or ‘pathological change’ that has resulted from the particular work incident. 

1. In the present case, for the reasons set out below, the result works in favour of the worker, but it could just as easily work against the worker. If, for example, a worker suffered one pathology (‘injury’) to his back in two separate incidents and each incident resulted in an impairment that met the section 67 threshold, he would only be entitled to one amount of compensation for pain and suffering, not two. That is the same result that would follow if he had suffered multiple impairments that resulted from “more than one injury arising out of the same incident” (section 322(3)).

1. Central West’s interpretation of section 322(2) would deprive the provision of any effective operation. The legislation cannot be taken to have an enacted a provision that is of no effect.

1. The principles set out in Edmed were applied by Acting Deputy President Snell in New South Wales Fire Brigades v Turton [2008] NSWWCCPD 66 (‘Turton’) and, reaching a different conclusion on the facts, by me in Kolak v Hunani Pty Ltd and anor [2008] NSWWCCPD 60 (‘Kolak’).  None of these cases has been appealed.

1. Pride was not referred to in Edmed, Turton or Kolak.  In view of the totally different legislative regime put in place after Pride, that is not surprising.  The Arbitrator did not err in not applying it.

Failing to Correctly Identify the Factual Issue He Had to Determine

1. In Edmed, I held (at [29]) that the pathology from two injuries had to be “identical” before impairments resulting from them could be aggregated. It is argued that the Arbitrator posed a different and lesser test, namely, that the two injuries had to produce “similar effects” (see Arbitrator’s Statement of Reasons for Decision (‘Reasons’), at paragraph 21) before they could be aggregated.

1. If the Arbitrator applied a test different to that set out in section 322(2) of the 1998 Act, he erred. The section does not justify the aggregation of impairments that result from the injuries that produce “similar effects”, but only the aggregation of impairments that result from “the same injury”. Consistent with my finding in Edmed, “same” means “identical”.  Whether the relevant impairments have resulted from “the same injury” will be a question of fact in each case having regard to the legislative context in which the words appear.  It will often be the case that the determination of the exact injury will be difficult, especially with a back condition (see Kolak).  However, that is the task that must be undertaken.

1. On reading the Arbitrator’s decision as a whole, however, I do not believe he identified the incorrect factual issue he had to determine.  He correctly noted that a worker does not have to prove his case on a scientific basis and that the commonsense approach to causation is quite different from a scientist’s approach to causation (Reasons, paragraph 21, citing Seltsam Pty Ltd v McGuiness [2000] NSWCA 29 at [88]; (2000) 49 NSWLR 262). He then considered the terms of the MAC, together with Dr Porges’ reasons, and concluded that the “assessments were made solely in relation to the injuries that the Applicant had sustained to his lumbar spine due to disc bulging” (Reasons, paragraph 23). He concluded, at paragraph 24 of his Reasons:

“In my view, on the evidence available and the inferences that can be reasonably drawn from it, the two injuries the Applicant sustained to his lumbar spine on 8 April 2003 and on 25 January 2005 should be treated as ‘impairments that result from the same injury’, such that the impairments that have resulted from those injuries are assessed together.”

1. Whilst this wording may not precisely accord with the wording of section 322, I believe that the Arbitrator found, or intended to find, that the impairments resulted from the same injury and were therefore to be assessed together. If the Arbitrator did apply the wrong test, I do not believe it has affected the outcome because, on review, applying the words of section 322(2), I have reached the same conclusion.

Deciding That the Disc Protrusion Due to Each Injury Was the Same

1. Dr Porges said (at page six of the MAC) that Mr Barrett’s “initial protrusion occurred at the initial injury and further disc protrusion occurred at the second injury”.  He did not identify at what level or levels in the lumbar spine he believed “the protrusions occurred” (Central West’s submissions, paragraph 2.7.26(c)).  The radiological investigations, noted at page four of the MAC, described disc bulges at L3/4, L4/5 and L5/S1, and pressure of the right L3 and right L4 nerve roots.

1. It is submitted that it is difficult to see how two protrusions could be the same if they are at different levels in the spine.  Hence, so it is argued, if the Arbitrator found they were the same, even though they are at different levels, the finding is affected by factual error as it is logically flawed. 

1. If the Arbitrator found that the two protrusions were at the same level, it is argued that the finding is still affected by legal and factual error because:

(a)such findings are typically and sensibly based on expert opinion;

(b)there is no expert opinion relied upon by the Arbitrator as to the level of the protrusions;

(c)making a finding in the absence of evidence is an error of law;

(d)there is no logical reason why a “further protrusion” cannot occur at a different level;

(e)if there is a “further protrusion” at the same level it is logically not the same protrusion, as it has extended further, and

(f)illogical reasoning must demonstrate factual error.

1. I do not accept the above submissions.  At page four of the MAC, Dr Porges set out the following summary of Mr Barrett’s “injuries and diagnoses”:

“Mr Barrett appears to have sustained disc protrusion following two episodes at work.  He has clinical and radiological evidence of right leg radiculopathy in association with his disc pathology.   He had some degenerative changes in the lumbar spine pre-existing however they were apparently not causing significant symptoms.”

1. Dr Porges did not say Mr Barrett sustained two disc protrusions, but merely that he sustained “disc protrusion” following two episodes at work.  That is clearly the same injury, but from two incidents.

1. At page five of the MAC, Dr Porges said that Mr Barrett had impaired reflexes in his right leg with muscle atrophy in the right leg and “lumbar disc protrusion on imaging, particularly on the right at L3/4 level”.  Dr Porges did not say that that pathology occurred as a result of one or other of the incidents. 

2. At page six of the MAC, Dr Porges explained his calculations as follows:

“I have assessed that his initial protrusion occurred at the initial injury and further disc protrusion occurred at the second injury.  He had pre-existing degenerative changes but no evidence that they were unduly symptomatic or impairing.”

1. Dr Porges did not say, or even imply, that Mr Barrett sustained two different injuries (pathologies) in the two incidents.  His opinion is consistent throughout the MAC, namely, that the initial protrusion occurred at the initial injury (incident) and further protrusion occurred at the second injury (incident).  Thus, Dr Porges plainly identified the one injury, namely, “disc protrusion following two episodes at work”.  This evidence provided ample support for the conclusion that the impairments resulted from “the same injury” and for the Arbitrator’s approach in assessing the impairments together.  I firmly agree with that approach and the conclusion that follows from it.

1. The Arbitrator’s findings were based on the expert evidence of Dr Porges.  It was not necessary that that evidence precisely identify the level of the disc injury in each incident, but merely that the injury was “the same” in each incident.  Dr Porges’ evidence comfortably established that fact to the required standard, namely, on the balance of probabilities. 

1. It is obviously correct that there is no reason why a “further protrusion” could not occur at another level.  However, the evidence does not establish that that is what happened.

1. The submission that if the “further protrusion” was at the same level then it is logically not the same protrusion misses the point.  The test is whether Mr Barrett’s impairments have resulted from the same injury.  Dr Porges’ evidence comfortably establishes that they have.

Reformulating and Remaking the Award Pursuant to Section 66 of the 1987 Act

1. Central West argues that the awards entered on 10 June 2008 were correctly made and that the making of the award under section 66 on 22 August 2008 was barred as res judicata (Salmon Street Ltd v Jorgensen (1991) 56 SASR 158).

1. I do not accept this submission. The reinstatement of the Registrar’s original section 66 awards was done at the suggestion of Central West’s solicitors in their letter of 23 May 2008, so as to “enable our client to pay the s66 assessment”. There is no dispute that, at the time the Arbitrator made that order on 6 June 2008, the dispute as to whether the section 66 lump sums could be aggregated was very much alive. That was the issue that was referred for arbitration.  Having determined that issue in favour of Mr Barrett, the Arbitrator was not only entitled, but was obliged, to then make an award in the general terms he did, subject to the arithmetical error that the award should be for $15,000 not $15,500 and another error, referred to below, in the terminology of the award. 

1. The Arbitrator’s reference to the “same incident” in paragraph one of his orders is also inconsistent with the terms of section 322(2) and should be corrected. The correct finding is that the impairments resulted from the “same injury”, not from “the same incident”, as the Arbitrator found.

1. There is no issue that Mr Barrett is not entitled to recover the section 66 amounts twice. For the avoidance of doubt, however, the Arbitrator’s orders should be amended to properly reflect his ultimate findings, and to accord with the terms of section 322(2).

CONCLUSION

1. Having conducted a review on the merits (per Spigelman CJ in State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249; (2007) 5 DDCR 287 at [28]), it follows that, as Mr Barrett’s impairments have resulted from the same injury, that is, disc protrusion following two incidents at work with Central West, he is entitled to have his impairments resulting from that injury aggregated. As a result, he has sustained “an injury” that has resulted in a degree of permanent impairment of 10% or more and he is entitled to recover compensation for pain and suffering under section 67. The quantum of the section 67 compensation assessed by the Arbitrator has not been challenged.

DECISION

1. Paragraphs one and two of the Arbitrator’s determination of 22 August 2008 are revoked and the following orders made:

“1.The Applicant sustained the same injury to his lumbar spine arising out of or in the course of his employment with the Respondent in incidents on 8 April 2003 and 25 January 2005. As a result, under section 322(2) of the Workplace Injury Management and Workers Compensation Act 1998, his impairments, assessed by an Approved Medical Specialist in a Medical Assessment Certificate dated 11 March 2008, are to be assessed together.

2.    The Respondent is to pay the Applicant the following lump sum compensation:

(i)$15,000 under section 66 of the Workers Compensation Act 1987 in respect of a 12% whole person impairment made up as follows: 6% permanent impairment as a result of the incident on 8 April 2003 and 6% permanent impairment as a result of the incident on 25 January 2005;

(ii)$12,500 under section 67 of the Workers Compensation Act 1987 in respect of pain and suffering.

3.   The orders made in paragraph 2 of the Certificate of Determination of 10 June 2008 and in paragraph 2(i) above will be satisfied on the payment of $15,000, if that has not already been paid.”

1. Paragraphs three and four of the Arbitrator’s determination of 22 August 2008 are confirmed.

COSTS

1. The appellant employer is to pay the respondent worker’s costs of the appeal.

Bill Roche
Deputy President

20 November 2008

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

ASSOCIATE