Chamma v P & M Quality Smallgoods Pty Ltd t/as Primo Smallgoods
[2015] NSWWCCPD 58
•29 September 2015
| WORKERS COMPENSATION COMMISSION | |||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||
| CITATION: | Chamma v P & M Quality Smallgoods Pty Ltd t/as Primo Smallgoods [2015] NSWWCCPD 58 | ||
| APPELLANT: | Mustapha Chamma | ||
| RESPONDENT: | P & M Quality Smallgoods Pty Ltd t/as Primo Smallgoods | ||
| INSURER: | QBE Workers Compensation (NSW) Ltd | ||
| FILE NUMBER: | A1-1977/15 | ||
| ARBITRATOR: | Ms K Haddock | ||
| DATE OF ARBITRATOR’S DECISION: | 30 June 2015 | ||
| DATE OF APPEAL DECISION: | 29 September 2015 | ||
| SUBJECT MATTER OF DECISION: | Claim for permanent impairment compensation; injury; whether worker suffered an injury as defined or a consequential condition; challenge to factual findings; whether impairment from the injuries as found sufficient to satisfy threshold requirements; s 66(1) of the Workers Compensation Act 1987 | ||
| PRESIDENTIAL MEMBER: | President Judge Keating | ||
| HEARING: | On the papers | ||
| REPRESENTATION: | Appellant: | Prominent Lawyers | |
| Respondent: | BBW Lawyers | ||
| ORDERS MADE ON APPEAL: | 1. Paragraph one of the Arbitrator’s determination of 30 June 2015 is confirmed. 2. By consent, paragraph two of the Arbitrator’s determination of 30 June 2015 is revoked and the following order made in its place: 1. The applicant worker injured his back in the course of his employment on 29 December 2010. 2. The claim for permanent impairment compensation is remitted to the Registrar for referral to an Approved Medical Specialist pursuant to Pt 7 of Ch 7 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment of any whole person impairment resulting from the injury to the applicant worker’s back (lumbar spine) on 29 December 2010. The whole of the Commission’s file is to be made available to the Approved Medical Specialist for consideration. | ||
INTRODUCTION
The worker suffered an accepted injury to his lower back in the course of his employment on 29 December 2010. The Arbitrator rejected the worker’s allegation that he also sustained injuries to the neck and shoulders in the subject incident or that, in the alternative, he developed symptoms in his neck and shoulders as a result of treatment for the accepted back injury. The appellant challenges the Arbitrator’s factual findings.
BACKGROUND
The appellant, Mustapha Chamma, was employed by the respondent, P & M Quality Smallgoods Pty Ltd t/as Primo Smallgoods (Primo), as a machine operator/process worker.
On 29 December 2010, Mr Chamma was carrying a large plastic roll weighing approximately 35 kg on his shoulders. Whilst lowering the plastic roll, to place it into a tub, he sustained an accepted injury to his lumbar spine. He alleged, but it is disputed, that he also injured his neck and shoulders in that incident.
On 31 October 2012, Mr Chamma made a claim on the respondent and QBE Workers Compensation (NSW) Ltd (QBE) for compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) in the sum of $53,652 in respect of 28 per cent whole person impairment. Mr Chamma relied on an assessment by Dr Khalid Qidwai, dated 20 November 2011. The impairment assessment was quantified as follows:
(a)lumbosacral spine – 10 per cent;
(b)cervical spine – 5 per cent;
(c)activities of daily living – 2 per cent;
(d)left shoulder – 8 per cent, and
(e)right shoulder – 5 per cent,
which resulted in a combined whole person impairment of 28 per cent using the combined values chart (AMA 5 p 604). Mr Chamma also claimed compensation under the repealed s 67 in respect of symptoms in the back, legs, neck and other symptoms. The claim for lump sum compensation pursuant to s 67 was not pursued.
There was a very significant delay before QBE responded to the claim. That delay is not explained. However, I note that in 2013 the parties were in dispute in respect of a claim for a psychological injury that was ultimately not pursued.
On 31 October 2014, QBE issued a notice under s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), disputing liability in respect of the alleged injuries to the neck, right shoulder, left shoulder, right leg and left leg, as a result of the incident on 29 December 2010. The denial of liability was due to the absence of initial complaints in relation to those body parts in the treating doctor’s reports (Dr Qidwai) and in the initial notification forms. QBE also relied on an absence of such complaints in Mr Chamma’s statements. QBE confirmed its acceptance of liability in respect of injury to the lower back.
On 8 April 2015, Mr Chamma lodged an Application to Resolve a Dispute in the Workers Compensation Commission. He claimed lump sum compensation in accordance with his claim outlined above. He claimed that the injuries to his neck, lower back, right shoulder, left leg and right leg were due either to the incident on 29 September 2010 or “[a]s a result of treatment prescribed for the above injuries, in the nature of physiotherapy & hydrotherapy, the applicant suffers injuries and/or aggravation of injury to his neck and both shoulders”.
On 22 April 2015, Primo filed a Reply in which it denied liability for the reasons stated in its s 74 notice.
On 18 June 2015, the matter proceeded to an arbitration hearing before Arbitrator Haddock. Both parties were legally represented. No oral evidence was called. At the completion of submissions the Arbitrator reserved her decision.
On 30 June 2015, the Arbitrator issued a Certificate of Determination and a Statement of Reasons. The Arbitrator was not satisfied that Mr Chamma suffered injuries to his cervical spine or his upper extremities or that his neck and shoulder symptoms resulted from his accepted back injury.
As the impairment in relation to the cervical spine (10 per cent) did not satisfy the threshold requirements of s 66(1), the Arbitrator declined to refer the matter to an Approved Medical Specialist (AMS) for an assessment.
Mr Chamma appealed the Arbitrator’s determination.
THE DECISION UNDER REVIEW
The Certificate of Determination, dated 30 June 2015, records the Arbitrator’s orders as follows:
“1. That there is an award for the respondent with respect to the applicant’s claim for injury to, or consequential condition of, his cervical spine and left and right upper extremities.
2. That there is no order in respect of the claim for permanent impairment as a result of injury to the applicant’s lumbar spine on 29 December 2010.”
PRELIMINARY MATTERS
There is no issue that the threshold requirements of s 352(3) and (4) of the 1998 Act are satisfied.
ON THE PAPERS
Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
On 23 September 2015, I convened a telephone conference. The appellant was represented by his solicitor Mr Abu-Ali and the respondent was represented by its solicitor Mr Wilkins. The telephone conference, which is discussed further below, was primarily convened to deal with the issues raised in the second last ground of appeal.
Having regard to the telephone conference, Practice Directions Nos 1 and 6; the documents that are before me, and the submissions 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’.
GROUNDS OF APPEAL
The appellant submits that the Arbitrator erred in:
(a) finding that Mr Chamma’s statements were completely inconsistent;
(b) finding that the medical history provided by the appellant was inconsistent;
(c) failing to give reasons why alleged complaints of neck and shoulder pain did not result from the pleaded injury;
(d) declining to remit the claim for whole person impairment of the lumbar spine (alleged to be less than 11 per cent) to the Registrar for referral for assessment by an Approved Medical Specialist, and
(e) failing to determine the claim for s 60 expenses.
THE ARBITRATOR’S REASONS
In his first statement, dated 20 January 2011, less than a month after the alleged injury, Mr Chamma stated that he injured his lower back in the incident on 29 December 2010. The initial notification of injury form, dated 29 December 2010, also referred only to the lower back.
It was not until November 2011, almost 12 months after the incident, that Mr Chamma said that he injured his neck and back, with associated leg pain, in the incident on 29 December 2010. He made no mention of his shoulders and gave no detail as to how he injured his neck. The Arbitrator found that Mr Chamma never explained how he allegedly injured his neck.
In a statement dated 23 September 2014, almost four years after the incident, Mr Chamma claimed that he injured his shoulders on 29 December 2010. Again, he provided no detail as to how this was said to have occurred. Mr Chamma added that he felt pain, mainly in the shoulders, during physiotherapy sessions (the reports from ASAP physiotherapy do not reveal the nature of the injuries being treated at that time). Mr Chamma said that it was Dr Lieng who advised him that the injuries to his shoulders were directly related to the injury to his back.
The Arbitrator noted that there was no evidence to this effect before the Commission from Dr Lieng, in fact there was no evidence from Dr Lieng at all. The Arbitrator noted that it was most unlikely that Dr Lieng would have provided such advice given his role as a workplace injury management consultant.
The Arbitrator concluded (at [125] of Reasons) that Mr Chamma’s statements were completely inconsistent. His evidence varied from having injured his neck and shoulders on 29 December 2010, to having developed shoulder pain some months after the initial incident to subsequently alleging that the injury was due to his physiotherapy and hydrotherapy.
Whilst Dr Qidwai’s notes record complaints of pain in the shoulders in April 2011 and that Mr Chamma had been attending hydrotherapy, Dr Qidwai offered no opinion on the relationship between the onset of shoulder pain and the attendance at hydrotherapy. The Arbitrator noted that Mr Chamma attended physiotherapy from April 2011 to June 2011, however his compliance was very poor and he refused to perform any exercise that caused discomfort. The Arbitrator concluded in those circumstances that it was unlikely that physiotherapy would have caused an injury or consequential condition.
The Arbitrator analysed the history of recorded neck and shoulder symptoms in the medical histories (at [130] of Reasons). She concluded that the history of onset of pain in the neck and shoulders and its aetiology was inconsistent.
Although the Arbitrator accepted that Mr Chamma may have felt pain and discomfort while undergoing physiotherapy or hydrotherapy, she was not satisfied that he had suffered a compensable injury in that he had not established a “sudden or identifiable pathological change” (Castro v State Transit Authority(NSW) [2000] NSWCC 12; 19 NSWCCR 496).
The Arbitrator accepted that there may be some pathology present in Mr Chamma’s shoulders but she was not satisfied that Mr Chamma had discharged the onus of establishing that it was related to either the injury on 29 December 2010 or as a consequence of medical treatment that was undertaken as a result of that injury.
The Arbitrator rejected a submission by counsel for Mr Chamma that, regardless of an adverse finding in respect of the allegation of injury or consequential condition to the neck and shoulders, the medical dispute must be referred to an AMS for assessment of the permanent impairment of Mr Chamma’s lumbar spine, even though it was conceded that the impairment in the lumbar spine was only 10 per cent as a result of that injury.
The Arbitrator concluded that the claim for permanent impairment compensation was made on 31 October 2012, after 19 June 2012, hence the amendments introduced by the Workers Compensation Legislation Amendment Act 2012 applied. The Arbitrator further found that the claimed impairment (10 per cent) did not satisfy the threshold provisions in s 66(1) of the 1987 Act and therefore the claim should not be referred to an AMS for assessment.
EVIDENCE
As the Arbitrator rightly pointed out, the evidence in this matter was voluminous. The Arbitrator recorded an accurate summary of the medical evidence at [29]–[98] of the Reasons. Except for where it is necessary to refer to other aspects of the medical evidence, I adopt the Arbitrator’s helpful summary.
Mr Chamma made four statements dated 20 January 2011 (the first statement), 18 November 2011 (the second statement), 19 June 2013 (the third statement) and 23 September 2014 (the fourth statement).
In his first statement, Mr Chamma described the circumstances of his injury on 29 December 2010. It is accepted that he injured his back on that occasion whilst placing a roll of plastic that he had been carrying on his shoulder into a tub. As to his injuries on that day, he said that he had bent over and felt a pain in his lower back. He sat on the floor and couldn’t move. He was taken to Dr Barlow, a general practitioner who treats Primo employees. Mr Chamma described his initial treatment which involved conservative management of the injury to his back. Mr Chamma said that he returned to work but he couldn’t continue to work because his back was too sore. Some initial attempts were then made at the workplace to accommodate him but they were unsuccessful.
Mr Chamma also described the incident on 4 January 2011. He said that whilst attempting to enter his vehicle he suffered pain in his lower back and fell to the ground. He felt unable to move and an ambulance was called. He was treated at Canterbury Hospital and thereafter undertook further conservative management for the back.
In his second statement, made almost a year after the incident, Mr Chamma stated that he sustained injuries to his neck, back, and pain in both legs in the incident. Other than commenting that he continued to have ongoing pain in the neck, back and both legs, he gave no detail to support the claim that he injured his neck in the incident on 29 December 2010.
In his third statement, Mr Chamma added some further detail in relation to his symptoms. He said that he continues to feel pain in his back which is made worse when he moves. He said he felt a constant dull aching pain in the lower back, some numbness in the left leg and cramping in both legs. He added that he felt a throbbing feeling in his legs that woke him at night and some numbness in the buttocks.
Mr Chamma added that he suffers regular neck pain radiating into the shoulders, worse in the mornings and worse if lifting anything above the arms. He also complained of a range of additional symptoms including headache, difficulty toileting, difficulty with intercourse and a loss of libido, depression and anxiety.
In his fourth statement Mr Chamma stated he had physiotherapy on seven occasions. He said “[m]y treatment involved Swimming and exercise”. He added:
“During my physiotherapy sessions I started to feel pain mainly in my shoulders especially after the swimming which was recommended to me by Elias [Khairallah]. The pain itself has only become apparent to me months after the back pain.”
Mr Chamma stated that Dr Liang advised him that the injury to the shoulders was directly related to the injuries to his back.
On the question of causation Dr Qidwai expressed the view, in his report of 20 November 2011, that Mr Chamma suffered soft tissue injuries involving his cervical muscles, ligaments and discs due to the incident at work on 29 December 2010. Although Dr Qidwai’s clinical notes record complaints of shoulder pain commencing in April 2011, about the time Mr Chamma commenced hydrotherapy and neck pain from May 2011, he did not associate those conditions with the treatment for the back condition.
SUBMISSIONS AND DISCUSSION
The finding that Mr Chamma’s evidence was inconsistent (ground (a))
An appeal under s 352 of the 1998 Act is characterised by the identification and correction of error. The appellant’s submissions under this ground principally seek to re-agitate the merits of Mr Chamma’s claim rather than identify any alleged error. Practitioners are reminded that an appeal under s 352 is not a review or a re-hearing.
The appellant maintains that Mr Chamma’s evidence was consistent. His counsel, Mr Barter, submitted that the absence of initial complaints of neck and shoulder pain are explained by the severity of the symptoms in the lower back overshadowing any complaints of neck and shoulder pain. The difficulty with this submission is that Mr Chamma never provided that information as an explanation for the absence of initial complaints in respect of the neck and shoulders. Whilst counsel may speculate that that was an explanation for inconsistency in complaints, there is no evidence to support that submission, certainly no evidence that counsel drew to my attention.
Mr Barter’s submission that Mr Chamma contended that he had injured his neck in the incident on 29 December 2010 “as early as 18 November 2011” is less than compelling. As the Arbitrator pointed out, that was almost a year after the incident of 29 December 2010 occurred.
Although this ground of appeal concerns the Arbitrator’s alleged error in terms of her findings that Mr Chamma’s statements were inconsistent, the submissions focus on the history Mr Chamma provided to Dr Qidwai. Mr Barter submitted that Dr Qidwai was sufficiently concerned about the neck and shoulder pain by November 2011 that he arranged for radiology to be undertaken. The submission lacks force because, as I have indicated, almost a year had elapsed before the symptoms in the neck and shoulders were sufficiently severe to warrant any form of investigation.
Mr Barter’s submission that Dr Qidwai recorded complaints of pain in the neck and shoulders in April 2011 does not advance the submission. The respondent accepts that Mr Chamma made complaints of pain in the neck and shoulders in April 2011. It was the absence of any complaints between December 2010 and April 2011 that the Arbitrator determined, correctly in my view, was inconsistent with Mr Chamma’s evidence that the injuries to the neck and shoulders were sustained in the initial incident on 29 December 2010.
As the Arbitrator noted Mr Chamma’s evidence was “completely inconsistent”. It was not until his fourth statement, of 23 September 2014, that he attributed his complaints of neck and shoulder pain to his treatment for his back. Until that time he had maintained that his neck and shoulders were injured in the initial incident on 29 December 2010, notwithstanding an absence of any symptoms for many months after the alleged injury.
For these reasons I reject the submission that the Arbitrator erred by concluding that Mr Chamma’s statements were inconsistent. It follows that this ground of appeal fails.
Did the Arbitrator err in finding that the medical history provided by Mr Chamma was inconsistent? (ground (b))
In substance the appellant’s submission, under this ground, is that because of the seriousness of Mr Chamma’s back injury, there was a lack of “applied forensic effort” in recording complaints of the neck and shoulders due to the relative severity of those symptoms compared with the more dominant symptoms in relation to the back.
Mr Barter submitted that the “only conclusion reasonably open to the arbitrator from the medical evidence is that [Mr Chamma] is unable to express himself with any sophistication” and that his treating medical practitioners “were not particularly concerned with those relatively minor complaints compared to the low back symptomatology”.
Further it is submitted that if it is accepted that Mr Chamma injured his neck and shoulders in the incident of December 2010 and became sufficiently concerned about them to complain of them somewhat later when engaging in therapeutic activities, there is no inconsistency.
The Arbitrator dealt with the inconsistent medical evidence at paragraphs [126]–[130] of her Reasons. The inconsistencies in the medical evidence can be summarised as follows:
· Although Dr Qidwai noted the onset of shoulder pain in April 2011, and that Mr Chamma had been doing physiotherapy, Dr Qidwai remained of the view that the injury to the neck and shoulders occurred in December 2010.
· Dr Kohan noted increasing upper limb pain since the start of exercises.
· Dr Smith obtained a history of injury only to the lower back with pain down the legs.
· Dr Hollo formed the view that the injuries to the neck and shoulders appeared to have related to the fall on 4 January 2011.
· Dr Bodel recorded no history of injury to the neck and shoulders.
· Dr Rosenberg recorded no symptoms of neck or shoulder pain as at December 2011. He did not record cervical-thoracic pain until March 2012.
· Dr Lam opined that physiotherapy aggravated Mr Chamma’s back and leg pain.
· Dr Roberts, in May 2013, recorded pain in the shoulders and neck.
· Dr Assem recorded that Mr Chamma reported pain in his neck and shoulders when he presented at Canterbury Hospital but the Hospital has no record of it. In January 2014 Dr Assem recorded that Mr Chamma stated that his neck and shoulder symptoms developed several months after the injury.
· Dr Hall recorded symptoms relating to the back injury from December 2010 and neck and shoulder pain “developed later”.
Given the conflicting state of the medical evidence, the Arbitrator’s findings were clearly open to her. The submission that the contrary finding was the “only finding” open is clearly without merit.
I reject the submission that the absence of complaints of neck and shoulder pain occurred because of “an absence of applied forensic effort”. Mr Chamma had every opportunity to complain if he was suffering from symptoms in his neck and back following the injury on 29 December 2010. Notwithstanding numerous visits for treatment of his lumbar condition in the months following the incident, Mr Chamma made no attempt to complain to anyone of symptoms related to his neck and shoulders.
This is confirmed by Dr Barlow’s evidence. Dr Barlow was the doctor who first assessed Mr Chamma immediately after the incident on 29 December 2010. His diagnosis was restricted to the injury to the lumbar spine. The radiological investigations he ordered thereafter were restricted to the lumbar area.
Further, Dr Qidwai diagnosed Mr Chamma’s injury as radiculopathy in the lumbar spine at L4/5 level in his initial medical certificates throughout January 2011. The radiological investigations, including a lumbar CT scan undertaken on 15 February 2011, concerned the lumbar spine only.
Did the Arbitrator fail to give adequate reasons with respect to the alleged consequential conditions? (ground (c))
It is submitted that the Arbitrator erred by failing to give reasons for concluding that Mr Chamma’s complaints of neck and shoulder pain did not result from the accepted injury on 29 December 2010.
In support of the submission, Mr Barter argued that the inconsistencies identified by the Arbitrator were: “not sufficient to reject the claim”.
Mr Barter also submitted that the Arbitrator:
“did not record a reasoning process between her findings that there were inconsistencies in the evidence with her conclusion that the claim should fail and provided no further or alternative reasons why the claim should fail.”
The appellant bore the onus to establish that he injured his neck and shoulders in the incident on 29 December 2010 or that his symptoms developed as a result of treatment for his back injury. The claim failed because the appellant failed to satisfy that onus. It was not a matter of the Arbitrator “providing alternative reasons why the claim should fail”.
When considering a challenge to the adequacy of reasons, it must be remembered that the decision must be read as a whole and that “reasons need not be lengthy or elaborate” (Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430 at 443–444).
The Arbitrator’s reasons when read in their entirety must expose the reasoning process and articulate the essential ground upon which the decision is based (Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 per McHugh JA at 280).
The Arbitrator adequately exposed her reasoning process for the decision reached. Essentially, those reasons are that she was not satisfied that Mr Chamma sustained injuries to his neck and shoulders in the alleged incident on 29 December 2010 or that he suffered any consequential condition arising from treatment of his back injury. That was because of inconsistency in Mr Chamma’s own evidence, the inconsistency in the histories provided to the numerous medical practitioners who assessed him, and the inconsistent opinions of the medical witnesses on the question of causation.
For the reasons I have discussed in dealing with grounds (a) (b) and (c), the Arbitrator’s reasons meet the standard required and no error has been demonstrated.
The findings with respect to the referral of the question of whole person impairment to an Approved Medical Specialist (ground (d))
The initial claim made by Mr Chamma, as quantified by Dr Qidwai, sought compensation based on a final combined whole person impairment of 28 per cent. The components of that assessment are referred to at [4] of this decision.
I note that Dr Qidwai’s assessment in relation to the lumbosacral spine is 10 per cent based on his assessment that Mr Chamma satisfies the definition contained in diagnosis-related estimates (DRE III) pursuant to the American Medical Association Guides to the Evaluation of Permanent Impairment 5th edition. In addition, I note that Dr Qidwai also assessed two per cent for activities of daily living (ADL) pursuant to paragraph 4.30 (WorkCover Guide). The reference to the WorkCover Guide is a reference to WorkCover Guides for the Evaluation of Permanent Impairment, 3rd ed. Paragraph 4.30 provides:
“The following diagram should be used as a guide to determine whether 0, 1, 2 or 3% WPI should be added to the bottom of the appropriate impairment range. This is only to be added if there is a difference in activity level as recorded and compared to the worker’s status prior to the injury.” (emphasis included in original)
The diagram provides “yard/garden, sport/recreation 1%; home care 2%; self-care 3%”.
In his report of 20 November 2011, dealing with the assessment of activities of daily living, Dr Qidwai noted:
“• He stated to me that he couldn’t sleep at night.
· It is hard for him to sit, stand or walk for more than [a] few minutes.
· He is unable to do any house work such as cooking, vacuuming, washing, etc.
He is unable to drive for more than 20 minutes due to pain in the back. The pain he said [was] particularly worse on getting in and out of the car.” (emphasis added)
It follows from Dr Qidwai’s description of the activities of daily living that he considered that Mr Chamma’s activities of daily living were impaired by reason of the accepted injury to his back. It is reasonable to infer therefore that some proportion, if not all, of the two per cent he assessed for difficulties associated with activities of daily living related to the back. Therefore, Mr Chamma’s claimed whole person impairment as a result of his back injury is 12 per cent and not 10 per cent. On that basis there would be no impediment to the referral of the back injury for assessment.
At the telephone conference, Mr Wilkins conceded that Dr Qidwai’s assessment of impairment to the lumbosacral spine was 12 per cent not 10 per cent as the Arbitrator found. Mr Wilkins also drew my attention to Dr Bodel’s report of 15 November 2011, in which Dr Bodel also assessed the impairment in the lumbar spine at 12 per cent.
Given Mr Wilkins’s concession and noting that there is no dispute in respect of the back injury, the parties agreed that ground (d) must be upheld on that basis and the matter must be referred to the Registrar for referral to an AMS for an assessment of the impairment of the lumbar spine. All other submissions in support of ground (d) were withdrawn.
The claim in relation to medical expenses (ground (e))
The appellant submits that he made a claim in relation to medical expenses pursuant to s 60 of the 1987 Act, which the Arbitrator failed to determine.
I accept the respondent’s submission that there is no dispute in relation to the payment of medical expenses relating to the accepted back injury and that it continues to make such payments in respect of the injury to the lumbar spine suffered on 29 December 2010. That was again confirmed by Mr Wilkins at the teleconference and accepted by Mr Abu-Ali. That being the case, this ground of appeal was not pressed.
CONCLUSION
Mr Chamma suffered an injury to his back when he lifted a large plastic roll in the course of his employment on 29 December 2010 and he is entitled to make a claim for permanent impairment compensation in respect of that injury. The Arbitrator did not err in finding no injury to the neck and shoulders as a result of the incident on 29 December 2010 or as a consequential condition arising from treatment of his accepted back injury.
DECISION
Paragraph one of the Arbitrator’s determination of 30 June 2015 is confirmed.
By consent, paragraph two of the Arbitrator’s determination of 30 June 2015 is revoked and the following order made in its place:
1.The applicant worker injured his back in the course of his employment on 29 December 2010.
2.The claim for permanent impairment compensation is remitted to the Registrar for referral to an Approved Medical Specialist pursuant to Pt 7 of Ch 7 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment of any whole person impairment resulting from the injury to the applicant worker’s back (lumbar spine) on 29 December 2010. The whole of the Commission’s file is to be made available to the Approved Medical Specialist for consideration.
Judge Keating
President
29 September 2015
I, KATHRYN CAMP, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JUDGE KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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