Chea v Woolworths Group Limited
[2022] NSWPIC 26
•20 January 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Chea v Woolworths Group Limited [2022] NSWPIC 26 |
| APPLICANT: | Khieng Chea |
| RESPONDENT: | Woolworths Group Limited |
| MEMBER: | Catherine McDonald |
| DATE OF DECISION: | 20 January 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Payment of compensation after the second entitlement period; insurer had not assessed the worker under section 38; jurisdiction of the Commission; Lee v Bunnings, Sabanayagam v St George Bank, Hochbaum v RSM Building Services Pty Ltd, Darcy v P &T Formwork and Welding Pty Ltd and Roberts v University of Sydney considered; Held- the Commission has jurisdiction to determine the dispute; award for the applicant pursuant to section 38(2). |
| DETERMINATIONS MADE: | 1. The Application to Resolve a Dispute is amended to claim: a. weekly compensation from 17 May 2021, and b. section 60 expenses. 2. Pursuant to s 38(2) of the Workers Compensation Act 1987, the respondent is to pay the applicant weekly compensation of $1,142.52 per week from 17 May 2021 to date and continuing. 3. I remit the matter to the President for referral to a Medical Assessor to assess the applicant’s whole person impairment as a result of: (a) injury to his lumbar spine on 12 November 2018, and (b) consequential condition in his right lower extremity (hip). 4. The documents to be sent to the Medical Assessor are: (a) Application to Resolve a Dispute; (b) Reply, and (c) Mr Chea’s Application to Admit Late Documents dated 28 October 2021. 5. The respondent is to pay the applicant’s s 60 expenses. |
STATEMENT OF REASONS
BACKGROUND
Kheing Chea was employed by Woolworths Group Limited as a storeman in a distribution centre. He suffered an injury on 12 November 2018 when he was standing on a ride on pallet jack which was hit by a forklift. Mr Chea injured his lumbar spine. As a result of the injury, he suffered a secondary psychological condition.
Woolworths accepted liability for the back injury and psychological condition and Mr Chea was paid weekly compensation until 16 May 2021, slightly more than 130 weeks after the injury. Payments ceased on that day based on a report from Dr Rimmer and Woolworths said that Mr Chea did not suffer any incapacity for work or permanent impairment.
Mr Chea claims that he suffered a consequential condition in his right hip. Woolworths disputes that Mr Chea suffered an injury to his right hip.
Mr Chea claims weekly compensation, s 60 expenses and permanent impairment compensation. The main dispute between the parties is whether the Commission has jurisdiction to award Mr Chea compensation after the second entitlement period as defined in s 32A of the Workers Compensation Act 1987 (the 1987 Act).
PROCEDURE BEFORE THE COMMISSION
The matter was listed for conciliation conference hearing on 2 December 2021. Ms Goodman of counsel appeared for Mr Chea and Mr Beran of counsel appeared for Woolworths.
Ms Goodman sought to amend the Application to Resolve a Dispute (ARD) to clarify the date from which weekly payments were sought to 17 May 2021 and to claim s 60 expenses. Woolworths did not object to those amendements.
The parties agreed that Mr Chea’s pre-injury average weekly earnings were $1,428.15 and that 80% of that amount is $1,142.52.
The parties also agreed that the claim for permanent impairment compensation in respect of Mr Chea’s back would be referred to a Medical Assessor regardless of the outcome of the claim for weekly compensation.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
EVIDENCE
The following documents were in evidence before the Commission and considered in making this determination:
(a) ARD and attached documents;
(b) Reply, and
(c) Mr Chea’s Application to Admit Late Documents dated 28 October 2021.
Mr Chea described the injury on 12 November 2018 in his statement dated 16 September 2021. He saw his general practitioner, Dr L Leong who ordered an MRI scan and referred him to Dr R Bazina, neurosurgeon, and later to Dr M Guirgis, orthopaedic surgeon. Dr Leong certified Mr Chea fit for suitable duties but he was unable to continue. He subsequently developed depression as a consequence of his injury.
After the injury, Mr Chea began to experience pain, numbness and burning travelling from his low back to his right leg and latest still, pain in his right hip. He first noticed pain in his right hip after he began to limp. Dr Bazina recommended surgery but Mr Chea was reluctant to undergo surgery.
Dr Leong summarised the injury and his treatment in a report to Mr Chea’s solicitor dated 4 October 2021. He said:
“He was initially managed by the company physio and there was pressure for the patient to return to work. He was in pain, and patient asked to see me as he felt he could not work due to the acute pain he was suffering.
I normally do not order scanning for low back injuries, but I recall this patient as different, He was in obvious pain and agony, and presented with signs of low back pain and sciatica, He had increased knee reflexes and was unable to walk on his heels and toes, indicating nerve irritation.”
Dr Leong said that Mr Chea suffered bilateral pars defects which were asymptomatic and of which Mr Chea was not aware. It was only after the incident in which he jarred his back that he became symptomatic with low back pain and sciatica. He said:
“In my opinion, the pars defect remains the same, this has not changed. What has possibly changed is possibly his spondylolisthesis. We do not know to what degree this has changed, as we do not have pre and post scans to compare. But what we do know, is that prior to the accident, we had a fully fit, productive worker, able to complete all of his duties, never once taking time off for lower back pain and or sciatica, stress, anxiety, depression. But after November 2018. we see a completely different person. A man in constant pain, suffering lower back pain, sciatica, unemployed, impoverished, financially stressed, anxious, depressed…”
Dr Leong considered that Mr Chea was unfit for work.
Mr Chea saw Dr Bazina for the first time on 30 November 2018 but he did not take the MRI scan. On 14 December 2018 Dr Bazina wrote to Woolworths’ insurer and said that he diagnosis was “mechanical low back pain secondary to aggravation of L5/S1 pars defects and spondylolisthesis”. She said that he should undertake selected duties. Dr Bazina saw the MRI scan on 19 December 2018 which confirmed her diagnosis. She recommended a CT guided left L5 perineural block.
On 19 February 2019 Dr Bazina noted that Mr Chea had no response to the nerve block and continued to have back pain and constant burning pain in both feet. She noted that he had foraminal stenosis and L5 bilateral neural impingement. She considered that years of physical work he had undertaken had resulted in early onset of symptomatic spondylolisthesis. She said that the condition is one of the true indications for spinal fusion and she considered it was reasonable in his case.
Dr Bazina wrote to Woolworths’ insurer again on 25 July 2019. She noted that Mr Chea was under treatment from a psychologist and said:
“The patient has pathology where surgery is reasonable and appropriate for his condition and has the potential to improve his situation. However this surgery should only be performed once the patient has a better understanding of his situation and his psychological distress is addressed and his expectations are realistic.”
Dr Bazina answered a long series of questions from the insurer. She considered that Mr Chea would be able to return to selected duties following surgery. She said that his prognosis for employment was significantly better with surgery. Dr Bazina said:
“Upon review of the medical literature adult isthmic spondylolisthesis typically becomes symptomatic in the third to fourth decade with a 2-6 year history of low back pain and or leg pain prior to surgical presentation. Applying the natural history to above, the patient is in his 5th decade of life with no history prior to the injury of limiting back or leg pain, therefore it is entirely likely his current symptoms are solely the result of his fall at work and not from a pre existing condition. The probability that surgery would have been required anyway, at about the same time or at the same stage of the workers life is <10%.”
Dr Leong referred Mr Chea to Dr Guirgis in February 2019. His early reports are illegible. In a report to Woolworths’ insurer dated 23 July 2019 he disagreed that Mr Chea’s ability to attend hydrotherapy was consistent with an ability to return to work. Dr Guirgis’ diagnosis was post-traumatic mechanical derangement of the lumbar spine.
In a report dated 28 November 2019 Dr Guirgis said that Mr Chea was fit to join a return to work program in a sympathetic environment from a physical point of view but was totally unfit when psychological factors and subjective symptomatology were considered.
Dr Guirgis prepared a medico-legal report dated 17 December 2019 in which he considered a number of reports obtained for Woolworths which are not part of the file. Dr Guirgis said that Mr Chea suffered a lumbar spine injury and a condition in his right lower extremity which he described as consequential spine-hip syndrome. He said that electro-physiological tests showed mild right L 5 radiculopathy with no evidence of acute denervation. He observed a restriction of movement in the right hip which he said showed:
“Consequent symptoms and signs of Greater Trochanter Pain Syndrome in the right hip. In my opinion this would represent a consequential injury fitting under the umbrella of 'Spine-Hip Syndrome'. This consequential involvement of the hip was caused by the radiculopathic hip abductor weakness and the altered kinematics and movement coordination of the deranged axial lumbar spine with its abnormally reduced range of movement, and the freely mobile femur at the hip joint leading to secondary impingent pathology in the right hip joint as what happened in this case.”
Dr Guirgis noted that Mr Chea suffered depression. He confirmed his opinion with respect to Mr Chea’s fitness for work and assessed 15% whole person impairment (WPI), comprised of 11% in respect of the back and 4% in respect of the right lower extremity.
Dr Guirgis continued to treat Mr Chea and on 5 November 2020 referred him for an MRI scan with the history of “greater trochanter pain syndrome right hip”. The radiologist reported that there was a small joint effusion and ligamentous strain, distal gluteus medius and minimus tendinosis and mild overlying trochanteric bursitis.
Dr Guirgis prepared a further report dated 4 February 2021 in substantially the same terms.
On 5 July 2021 Dr Guirgis responded to Dr Rimmer’s report, discussed below. Dr Guirgis disagreed that the aggravation of Mr Chea’s underlying lumbar spine disease had resolved and confirmed his opinion with respect to the consequential condition in his right hip. He said that Mr Chea suffered from a chronic pain syndrome. He said:
“From the pure physical point of view, he is fit to join a Return-to-Work Program including the appropriate restrictions, starting with 3 hours a day within a sympathetic work environment, and increasing gradually within his pain tolerance aiming at full-time suitable duties with restrictions.”
Dr Leong referred Mr Chea to Ms K Issavi, psychologist, and she reported on 11 April 2019. She considered that Mr Chea suffered chronic adjustment disorder with depressed mood and considered that psychological treatment was required. The final report in the file is dated 25 March 2020 and Ms Issavi considered that Mr Chea’s prognosis was guarded.
Mr Chea’s solicitors qualified Dr B Teoh, psychiatrist, who prepared a report dated 26 June 2021. Dr Teoh noted that Mr Chea was preoccupied with chronic pain and physical disability. He diagnosed chronic adjustment disorder with depressed mood. He said that Mr Chea was not fit for pre-injury duties but is fit for selected duties from a psychiatric perspective.
Woolworths’ insurer qualified Dr U Dias, occupational physician, who prepared a report dated 30 November 2020. Mr Chea relies on that report. He set out a detailed history of the injury and subsequent treatment. He noted that Mr Chea saw Dr Guirgis and his general practitioner. He also noted that Mr Chea suffered from symptoms of depression and anxiety as a result of chronic pain and due to the impact of the conditions on his life. He said:
“More recently, Mr Chea has been complaining of symptoms of right hip pain, due to altered gait mechanics associated with ongoing radicular symptoms affecting his right lower limb. He was referred by his treating orthopaedic surgeon, Dr Medhat Guirgis for an MRI scan of his right hip which was performed on s November 2020, and revealed a small right hip joint effusion, distal gluteus medius and minimus tendinosis, and mild trochanteric bursitis. Mr Chea has not had any specific treatment, for his right hip condition as yet.”
Dr Dias noted that Dr Leong had certified Mr Chea as having no work capacity. He recorded that Mr Chea hardly ever writes and generally does not use a computer. Household tasks are performed by family members. Dr Dias set out the results of his examination. He noted that Mr Chea’s right hip was normal to inspection though tender to palpation over the greater trochanter. He was able to flex his right hip to 100° and abduct to 30° before experiencing worsening pain. He had a full range of movement in other planes.
Dr Dias diagnosed persisting aggravation of pre-existing L5/S1 degenerative spondylolisthesis (on a background of bilateral L5 pars defect), with persisting right L5 radiculopathy secondary to acute muscular ligamentous strain. Dr Dias said that Mr Chea also developed psychological comordibity. He said:
“In my opinion, Mr Chea's chronic condition affecting his lumbar spine region continues to render him totally unfit for employment. Mr Chea's chronic symptomatology, significantly reduced functional tolerances, reliance on analgesia, and psychological comorbidity, would preclude a successful return to light duties on a restricted basis at the present time. His condition, both physical and psychological Is likely to be at high risk of symptomatic aggravation, if he were to attempt a return to the workforce at the present time.
In my opinion, Mr Chea's chronic symptomatology, reduced functional tolerances and reliance on analgesia are unlikely to be compatible with a sustainable attempt and a return to restricted duties, even at restricted hours of 15 to 20 hours per week at the present time. I note that Mr Chea is significantly pain focused, and has significant psychological comorbidity and these factors are also likely to prohibit a sustainable return to work, in any capacity at the present time.”
Woolworths’ medical reports
Dr D Samuell, psychiatrist, reported to Woolworths on 2020. Dr Samuell referred to medical reports which are not in evidence. He noted that Mr Chea has significant psychosocial stressors. He considered that Mr Chea had an adjustment disorder with mixed disturbance of mood and that the stressor was the alteration in his physical functioning from the subject accident. He noted that Mr Chea had experienced chronic pain.
Dr Samuell said that if the physical injury is accepted then the secondary psychological injury has been caused by it. He said it was caused by the alteration physical functioning following the physical injury. From a psychological perspective, Dr Samuel said that Mr Chea could work for 20 hours per week and it would be important to monitor his use of heavy machinery given a higher than normal probability of distraction due to his mental state.
A further appointment was arranged to be conducted by telehealth on 21 October 2021. The appointment was terminated because the connection was poor.
Mr T O’Neill, psychologist, provided a Stage 2 report on 25 March 2021 to assist the insurer to determine if ongoing psychological treatment was reasonably necessary. Mr O’Neill was of the opinion that it was not, because Ms Issavi told him that Mr Chea has adjusted to injury, is able to pace himself, is accepting of pain and can work within his physical restrictions. She did not believe that any further treatment would lead to further recovery or reduction in distress and believe that he had improved greatly with more positive mood and an optimistic outlook.
Mr O’Neill noted Dr Rimmer’s opinion. He considered that ongoing psychological treatment was not required. He considered that referral to a pain clinic may be of value though queried that the pain management strategies required may mirror the skills he had already mastered. He also considered that a progressive goal attainment program may be useful.
Mr O’Neill did not examine Mr Chea.
Dr S Rimmer prepared a report to Woolworths solicitors on 26 March 2021. He briefly set out the history and Mr Chea’s current symptoms. At the commencement of the formal examination he said that Mr Chea’s clinical appearance dramatically deteriorated, noting that his gait was entirely normal when viewed informally in the waiting area. He noted that
Mr Chea was anxious.Dr Rimmer set out his findings on examination and noted that Mr Chea claimed to have decreased sensation in the right L2, L3, L4, L5 and S1 dermatomes, which is inconsistent with any known organic pathology. He set out the range of active movement of Mr Chea’s hips and said that the right was the same as the left.
Having reviewed the MRI scan of 20 November 2018, Dr Rimmer said a further series of plain x-rays were required as well as a repeat MRI scan. He did not explain why. Dr Rimmer did not comment on the MRI scan of Mr Chea’s hip dated 5 November 2020.
Dr Rimmer considered that Mr Chea had suffered a result aggravation of pre-existing grade 2 spondylolisthesis at L5/S1, that there was a normal examination of the right hip and that Mr Chea demonstrated abnormal illness behaviour. He did not believe that Mr Chea had suffered an injury to his right hip.
Dr Rimmer did not consider that Mr Chea required any treatment other than a home-based exercise program and considered that he could return to pre-injury duties effective immediately. He assessed him in DRE lumbar category 1 which resulted in 0% permanent impairment.
Correspondence with Woolworths and the insurer
In April 2020, the Workers Compensation Commission issued an interim payment direction. The delegate noted that Woolworths withdrew a work capacity decision dated 19 November 2019 and agreed to reinstate weekly compensation from 17 February 2020. The work capacity decision is not in evidence in these proceedings.
Mr Chea made his claim for permanent impairment compensation on 11 February 2021. The letter and claim form did not say whether the impairment in his right hip was an injury or consequential condition but it enclosed Dr Guirgis’ report dated 4 February 2021 which described the consequential condition.
On 17 February 2021 Mr S Pelle, a Shift Operations Manager at Woolworths wrote to
Mr Chea after it had obtained a report from Dr Leong. That report, dated 25 November 2020, is summarised in the letter but neither the questions asked nor the report appears in the file. Woolworths noted that Dr Leong considered Mr Chea’s prognosis was guarded and that he recommended that Mr Chea perform light office work, with a bed provided for rests when required. Woolworths said it appeared that Mr Chea was unfit to perform the inherent requirements of his pre-injury position and asked him to provide information to demonstrate why his employment should not be terminated.
Mr Chea’s employment was terminated by a letter dated 10 March 2021.
On 31 March 2021, Woolworths’ solicitors wrote to Mr Chea, care of his solicitors, and said that they continued to act for Woolworths. They issued a notice under s 78 the 1998 Act disputing ongoing liability in respect of the lumbar spine injury and the permanent impairment claim because Mr Chea had been assessed with 0% WPI. They denied that Mr Chea suffered an injury to his right hip. The only evidence attached to the notice was Dr Rimmer’s report dated 26 March 2021. The notice told Mr Chea that payments of weekly compensation would cease on 16 May 2021.
Mr Chea completed an application for continuation of weekly compensation after 130 weeks on 15 April 2021. No details were provided in the section marked “work details”. That is not surprising because Mr Chea was not working.
On 14 July 2021 Mr Chea’s solicitors applied for a review of the decision in the s 78 notice.
Woolworths’ solicitors prepared a notice under s 287A of the 1998 Act dated 28 July 2020. Because it refers to documents provided in 2021, I presume that the date should have been 28 July 2021. They said that ongoing liability in respect of the lumbar spine and liability generally in respect of the right hip was denied for the reasons set out in the s 78 notice dated 31 March 2021 but that a medical examination had been arranged with a psychiatrist.
SUBMISSIONS
Mr Beran addressed first by agreement. He noted the provisions of s 38 of the 1987 Act which provides:
“38 Weekly payments after second entitlement period (after week 130)
(1)A worker’s entitlement to compensation in the form of weekly payments under this Part ceases on the expiry of the second entitlement period unless the worker is entitled to compensation after the second entitlement period under this section.
(2)A worker who is assessed by the insurer as having no current work capacity and likely to continue indefinitely to have no current work capacity is entitled to compensation after the second entitlement period.
(3)A worker (other than a worker with high needs) who is assessed by the insurer as having current work capacity is entitled to compensation after the second entitlement period only if—
(a)the worker has applied to the insurer in writing (in the form approved by the Authority) no earlier than 52 weeks before the end of the second entitlement period for continuation of weekly payments after the second entitlement period, and
(b)the worker has returned to work (whether in self-employment or other employment) for a period of not less than 15 hours per week and is in receipt of current weekly earnings (or current weekly earnings together with a deductible amount) of at least $155 per week, and
(c)the worker is assessed by the insurer as being, and as likely to continue indefinitely to be, incapable of undertaking further additional employment or work that would increase the worker’s current weekly earnings.
(3A) A worker with high needs who is assessed by the insurer as having current work capacity is entitled to compensation after the second entitlement period only if the worker has applied to the insurer in writing (in the form approved by the Authority) no earlier than 52 weeks before the end of the second entitlement period for continuation of weekly payments after the second entitlement period.
(4) An insurer must, for the purpose of assessing an injured worker’s entitlement to weekly payments of compensation after the expiry of the second entitlement period, ensure that a work capacity assessment of the worker is conducted—
(a)during the last 52 weeks of the second entitlement period, and
(b)thereafter at least once every 2 years.
Note—
An insurer can conduct a work capacity assessment of a worker at any time. The Workers Compensation Guidelines can also require a work capacity assessment to be conducted.(5) An insurer is not to conduct a work capacity assessment of a worker with highest needs unless the insurer thinks it appropriate to do so and the worker requests it. An insurer can make a work capacity decision about a worker with highest needs without conducting a work capacity assessment.
(6) The weekly payment of compensation to which an injured worker who has no current work capacity is entitled under this section after the second entitlement period is to be at the rate of 80% of the worker’s pre-injury average weekly earnings.
(7) The weekly payment of compensation to which an injured worker who has current work capacity is entitled under this section after the second entitlement period is to be at the lesser of the following rates—
(a)80% of the worker’s pre-injury average weekly earnings, less the worker’s current weekly earnings,
(b)the maximum weekly compensation amount, less the worker’s current weekly earnings.
(8) A worker’s entitlement to compensation under this section may be reassessed at any time.”
Mr Beran said that s 38 (2) and (3) require that a worker be assessed by the insurer and it was common ground that an assessment had not been made in Mr Chea’s case. If a work capacity decision had been made the Commission would have jurisdiction to determine Mr Chea’s entitlement. Mr Beran referred me to the decision of Senior Arbitrator Bamber in the Worker’s Compensation Commission in Darcy v P & T Formworking & Welding Pty Ltd[1] (Darcy) on 13 July 2020 where she said[2]:
“Section 38(3)(c) requires the worker to have been assessed by the insurer as being, and as likely to continue indefinitely to be, incapable of undertaking further additional employment or work that would increase the workers current weekly earnings. It is this sub-section that is problematic in Mr Darcy’s case. None of the work capacity decisions referred to above deal with this. Mr Halligan submitted that the report of Dr Anderson dated 29 June 2020 cannot fulfil the requirement in section 38(3)(c) because that section requires the insurer to assess the worker. I accept this submission.”
[1] [2020] NSWWCC 233.
[2] At [105].
Mr Beran said that there was a lacuna in the legislation which deprived the Commission of jurisdiction if no work capacity decision had been made. He said that the legislature had ample opportunity to amend the legislation but left the issue to the insurer and did not provide a sanction for an insurer’s failure to make a determination but had not done so.
If I was against him on that submission, Mr Beran submitted that Dr Rimmer’s opinion supported a finding that Mr Chea had not suffered an injury to his right hip because there were no relevant findings on examination. He was unable to point me to any other evidence to support that argument.
With respect to incapacity, Mr Beran said that the majority of the medical witnesses agreed that Mr Chea had some work capacity. He took me to the opinion of Dr Guirgis in his report dated 5 July 2021 and to the reports of Dr Teoh and Dr Samuell. He said that Mr Chea was assessed by those specialists as having the capacity to work 15 to 20 hours per week which brought him within s 38(3).
I asked Mr Beran what impact the letter dated 17 February 2021 had on that submission. He said that the letter relied solely on Dr Leong’s report dated 25 November 2020 which does not appear in the file and that the determination that Mr Chea was unable to perform the inherent requirements of his position was made for a different purpose.
Beginning with the dispute about Mr Chea’s right hip, Ms Goodman said that I would accept Dr Guirgis’ opinion about causation, supported by the EMG results on 4 April 2019. His opinion is supported by that of Dr Dias who said that the altered mechanics in the use of Mr Chea’s right leg led to the condition in his hip. Ms Goodman noted that Dr Rimmer did not consider whether Mr Chea suffered a consequential condition. She said that I would accept Dr Guirgis and Dr Dias and include the right hip in the referral to the Medical Assessor.
Dealing with incapacity, Ms Goodman said that Dr Dias “joined the dots” between the opinions of Dr Guirgis and Dr Teoh. They had considered the effects of the physical injury and the psychological condition separately but Dr Dias said that together the conditions prohibited a sustainable return to work.
Ms Goodman said that it was also important to note that from the time of her first consultation, Dr Bazina considered that Mr Chea needed a lumbar fusion and that the condition Mr Chea suffers is one of true indications for a fusion.
Ms Goodman said that I would accept the opinions of Dr Dias and Dr Leong that Mr Chea had no current work capacity.
With respect to the Commission’s jurisdiction, Ms Goodman referred me to the decision of Arbitrator Harris in Roberts v University of Sydney[3] (Roberts) on 21 January 2021 and to the statement that a submission that the Commission lacked jurisdiction, based on Lee v Bunnings Group Ltd[4] (Lee) was inconsistent with the decision of the Court of Appeal in Sabanayagam v St George Bank Ltd[5] (Sabanayagam). She noted the summary in [51] of Roberts:
“During the course of his Reasons, Sackville AJA (with whom Beazley P agreed) held:
(a) Pursuant to s 105 the Commission has jurisdiction over matters that must arise under either the 1987 Act or the 1998 Act. A matter arises under a law of the Parliament “if the right or duty in question owes its existence to the law or depends on the law for its enforcement”.
(b) The worker was entitled to weekly compensation after the second entitlement period ‘if she satisfied the requirements of s 38(2) or s 38(3)’ of the 1987 Act.
(c) Putting to one side the prohibition then provided by s 43(1) and s 43(3), the Commission had ‘jurisdiction to settle the controversy’.”
[3] [2021] WCC 25.
[4] [2013] NSWWCCPD 54.
[5] [2016] NSWCA 145.
Ms Goodman said that the s 78 notice issued on 31 March 2021 relied on Dr Rimmer’s opinion to place Mr Chea’s work capacity in issue so that it was a work capacity decision. She noted that after the 2018 amendments to the legislation, a decision notice can deal with both liability and incapacity. On that basis, the insurer had made a work capacity decision.
Alternatively, Ms Goodman noted that Mr Chea had provided notice as required by s 38(3)(a) on 15 April 2021. She said it was inappropriate for the insurer to fail to respond to that notice. She noted that an insurer has an obligation to respond to a claim for compensation and that a dispute arose if there was no response. Ms Goodman said it was inappropriate to sit on its hands and allow seven months to elapse without responding to the notice. She distinguished Darcy on the basis that the period since the request was much shorter. Ms Goodman said that it was totally inconsistent with the beneficial aspects of the legislation that an insurer would be able to sit on its hands.
In reply, Mr Beran said that the s 78 notice was not a work capacity decision and the only decision to be considered for the purpose of s 38 was a decision made by the insurer as to the worker’s capacity.
FINDINGS AND REASONS
Jurisdiction in the s 38 period
Section 105(1) of the 1998 Act provides:
“Subject to this Act, the Commission has exclusive jurisdiction to examine, hear and determine all matters arising under this Act and the 1987 Act.”
Section 288(1) of the 1998 Act provides:
“Any party to a dispute about a claim may refer the dispute to the President for determination by the Commission. However, if the dispute is about lump sum compensation, only the claimant can refer the dispute.”
Keating P’s decision in Lee was made at a time when the Commission did not have jurisdiction to determine disputes about work capacity decisions. His Honour held that the Commission had no jurisdiction to determine a worker’s entitlement under s 38 because a worker’s entitlement must be assessed by the insurer, not by the Commission. In the course of his decision, Keating P said:
“The Commission is a statutory tribunal. It may only exercise the powers and functions that are granted to it by statute. Section 105 of the 1998 Act sets out the jurisdiction of the Commission. It can be seen from the provisions of s 105, that the Commission has been vested with very broad powers to hear and determine all matters arising under both the 1987 and 1998 Acts.
The ‘exclusive jurisdiction”’ granted to the Commission pursuant to s 105(1) is qualified by express statutory provisions in s 43(3) and s 44(5) of the 1998 Act. These provisions remove the Commission’s jurisdiction to determine any dispute about a work capacity decision of an insurer and prevent the Commission making a decision in respect of a dispute before it that is inconsistent with a work capacity decision of an insurer (s 43(3)).”
The sections which expressly fettered the Commission’s jurisdiction and required an application for judicial review in the Supreme Court have subsequently been removed. Apart from that, s 38 remains in substantially the same form, subject to amendments about the calculation of weekly compensation.
Sabanayagam was also determined before the amendments to s 38. If a work capacity decision had been made, s 43(3) provided that the Commission did not have jurisdiction to determine a dispute about that decision and was unable to make a decision inconsistent with a work capacity decision of an insurer. Sackville AJA (with whom Beazley P agreed) said[6]:
“Pursuant to s 105(1) of the WIM Act, in order for the Commission to have jurisdiction over ‘matters’, they must ‘arise under’ the WC Act or the WIM Act. The general principle is that a matter arises under a law of Parliament if the right or duty in question owes its existence to the law or depends on the law for its enforcement.
The Worker’s claim to weekly compensation payments arose under ss 9(1) and 33 of the WC Act. Section 9 provides that a ‘worker’ who has received an “injury” is entitled to compensation in accordance with the WC Act. Section 33, which has antecedents in New South Wales going back to at least 1910, provides that if ‘total or partial incapacity results from an injury’, the compensation payable to the injured worker includes a weekly payment during the period of incapacity. Section 33 assumes that a worker has received an injury and therefore satisfies s 9(1) of the WC Act. However, it imposes additional conditions that must be satisfied before the worker becomes entitled to weekly compensation payments. In this case, the Insurer determined long before March 2015 that the Worker had received an injury in the course of her employment and that she had been totally incapacitated for work as a result of the injury.
The Worker’s Application to the Commission in the present case was made pursuant to s 288 of the WIM Act. The controversy the Worker sought to have determined by the Commission in May 2015 was her claim to be entitled to weekly compensation payments after the second entitlement period expired. She was entitled to compensation after the expiry of that period if she satisfied the requirements of s 38(2) or s 38(3) of the WIM Act. The Insurer asserted that the Worker was not entitled to a continuation of weekly compensation payments, while the Worker claimed that the Insurer should have assessed her as satisfying the statutory requirements for a continuation of the payments. The controversy between the parties arose under the WC Act and, subject to the operation of s 43(1) and (3) of the WC Act, was within the jurisdiction of the Commission to determine.
It follows that if s 43(1) and (3) are put to one side, the Commission would have jurisdiction to settle the controversy between the Worker and the Insurer (representing the Bank). For example, the Commission would have jurisdiction to evaluate the medical evidence relied on by the Insurer in order to determine whether the Worker was capable of returning to her pre-injury employment. Similarly, the Commission would have jurisdiction to determine whether the Insurer had misconstrued the legislation, thereby causing it to make an erroneous decision.”
[6] At [125]- [128].
The controversy between Mr Chea and Woolworths arose under the 1987 Act. On the basis of Sabanayagam, the Commission has jurisdiction to determine it.
Section 38 applies in the period between weeks 131 and 260 of a worker’s entitlement. After 260 weeks, s 39 provides that payments cease unless a worker’s permanent impairment resulting from the injury is more than 20%.
In Hochbaum v RSM Building Services Pty Ltd[7] the Court of Appeal overturned a Presidential decision to the effect that the Commission did not have jurisdiction to make an award of compensation after 260 weeks in the period before a worker was assessed as having more than 20% WPI. The Court of Appeal reinstated an order of an arbitrator awarding compensation in the period before the assessment was made.
[7] [2020] NSWCA 113.
The decision confirms that the Commission has the power to determine disputes about weekly compensation in the period after the s 38 period.
Simpson AJA noted that a delay in issuing Medical Assessment Certificates as to the extent of permanent impairment would operate to the benefit of insurers if compensation was not payable in the period before the assessment. In setting out her reasons for agreeing with the orders proposed by the other members of the Court, Her Honour said:
“The unfairness of the result, in the event that delays (however caused) prevented assessment before the expiration of the 5-year period would suggest that the legislature did not intend to make entitlement of a worker suffering the relevant degree of permanent impairment resulting from a work injury subject to the vagaries of processes and procedures in the system of assessment or obstacles that might be thrown in the way of assessment.”
If Mr Chea was later assessed as having more than 20% impairment, s 39 and the statements in Hochbaum would allow him to approach the Commission for compensation.
Section 38(2) provides that a worker who is assessed by the insurer as having no current work capacity and is likely to continue indefinitely to have no current work capacity is entitled to compensation after the second entitlement period. Sub-sections (3) and (3A) also refer to an assessment by the insurer.
Section 38(4) imposes a positive obligation on an insurer to conduct a work capacity assessment during the last 52 weeks of the second entitlement period “for the purpose of assessing an injured worker’s entitlement to weekly compensation”. There is no evidence that Woolworths’ insurer fulfilled its obligation to make a work capacity assessment during the last 52 weeks of the second entitlement period.
The earlier work capacity decision referred to in the Interim Payment Direction was made before the last 52 weeks of the second entitlement period. A work capacity assessment is not necessary for the making of a work capacity decision (s 44A (3) of the 1987 Act) so the fact of the work capacity decision does not mean that an assessment must have been made.
The only decision in evidence is the s 78 notice dated 31 March 2021 and the review decision which followed it. The s 78 notice dated 31 March was prepared by Woolworths’ solicitors. The notice refers to s 43 of the 1987 Act on the third page but does not otherwise explain that reference. A decision to dispute liability to weekly compensation is not a work capacity decision nor is a decision which can be the subject of a work capacity decision (s 43(2) of the 1987 Act).
The notice issued on 31 March 2021 disputed liability for weekly compensation and permanent impairment compensation and did not purport to be anything other than a s 78 notice. It disputed liability solely on the basis of Dr Rimmer’s report and relied on his opinion that the aggravation of Mr Chea’s underlying condition – described as degenerative changes – had ceased. On that basis, the notice said that Mr Chea did not suffer incapacity. It denied that he suffered a right hip injury. It did not otherwise deal with the question of capacity.
If Mr Beran’s submissions are correct and the Commission has no jurisdiction, a worker is subject to the consequences of any decision the insurer might make, or fail to make, whether or not it complied with the legislation and with no right of review and no mechanism for a worker to enforce his rights.
As Ms Goodman submitted, it is inconsistent with beneficial legislation for the insurer to be able to sit on its hands.
In Adco Constructions Pty Limited v Goudappel[8], the High Court said:
“It can be accepted, as was put by counsel for Mr Goudappel, that the WCA's remedial character reflects a beneficial purpose which requires a beneficial construction, if open, in favour of the injured worker. But to accept the beneficial purpose of the WCA as a whole does not mean that every provision or amendment to a provision has a beneficial purpose or is to be construed beneficially. The purpose of the provision must be identified. ...”
[8] [2014] HCA 18 at [29].
There is no reason why s 38 should not be given a beneficial construction. The purpose of the section is to provide for ongoing payments in appropriate circumstances, consistent with the philosophy underpinning the legislation in favour of return to work where applicable.
Other than the references to decisions made by the insurer, there is nothing in s 38 which specifically excludes the jurisdiction of the Commission. The Commission has the jurisdiction set out in s 105 of the 1998 Act together with “such powers which are incidental and necessary to the exercise of its statutory jurisdiction”[9].
[9] Raniere Nominees Pty Limited v Daley [2006] NSWCA 235 at [66]..
I agree with the statement of Arbitrator Harris in Roberts[10]:
“Consistent with these powers is the ability to make findings incidental to an order that a worker has satisfied the statutory preconditions in s 38(3). The Commission can make a preliminary finding that it is satisfied that a worker falls within either s 38(2) (has no current work capacity) or s 38(3) (has current work capacity), and if the latter, satisfies the conditions set out in s 38(3)(a), (b) and (c). Whilst the section refers to the insurer deciding the issue, when that becomes a dispute between the parties, it is then within the jurisdiction of the Commission to determine whether the worker has satisfied the various statutory preconditions in s 38(3) of the 1987 Act.
For these Reasons, the respondent’s submission that the Commission lacks jurisdiction to order weekly compensation pursuant to s 38 of the 1987 Act after the second entitlement period is inconsistent with binding Court of Appeal authority and is rejected.”
[10] At [66]-[67].
The Commission has jurisdiction to determine the dispute as to whether Mr Chea has satisfied the preconditions in s 38, after the second entitlement period.
Application of s 38
Mr Beran said that there was no evidence to support the contention that Mr Chea fulfilled the requirements of s 38(2) and that he had not returned to work so s 38(3) did not apply.
Mr Chea alleged that he suffered a back injury, a consequential condition in his right hip and a secondary psychological injury. He claims that he is incapacitated as a result of all three conditions. Woolworths’ s 78 notice only dealt with the physical aspects of the injury. The s 287A notice said that “new” evidence had been provided in respect of the psychological condition and a medical examination was arranged. That examination was not completed but there is no evidence that a further notice was issued.
The claim in respect of a psychological injury was not new and the insurer had been paying medical expenses in respect of it. Because it is a secondary psychological injury as defined in s 65A of the 1987 Act, it did not form part of Mr Chea’s permanent impairment claim nor could it. It only became relevant when the insurer chose to deny liability for weekly compensation in response to a claim for permanent impairment compensation.
Dr Guirgis, Dr Teoh and Dr Samuell agree that Mr Chea is partially incapacitated for work. Each opinion is expressed from the perspective of the doctor’s own specialty.
Dr Samuell considered in 2020 that Mr Chea had mild to moderate symptoms of an adjustment disorder and could work for up to 20 hours per week. Having conducted a file review and spoken to the treating psychologist, Mr O’Neill did not consider that further psychological treatment was warranted but he did not dispute that Mr Chea suffered a psychological condition.
Dr Rimmer considered that Mr Chea’s lumbar spine injury was an aggravation of pre-existing grade 2 spondylolisthesis, though he considered that the condition had resolved. The underlying condition suffered by Mr Chea does not, on any of the medical evidence in the file, constitute degenerative changes, as stated in the s 78 notice.
Dr Rimmer’s report is very brief, consisting of terse statements under a series of headings. He said that Mr Chea’s appearance deteriorated at the commencement of the formal examination and considered that he demonstrated normal illness behaviour but did not provide reasons that would allow the Commission to properly consider his report. He did not explain how he formed the opinion that the aggravation of underlying spondylolisthesis has ceased.
The presence of abnormal illness behaviour does not, of itself, explain Dr Rimmer’s opinion. The fact that a worker might overstate the impact of an injury does not necessarily mean that there are no ongoing consequences of the injury.
Dr Rimmer said that Mr Chea did not have any genuine disability. His opinion is based solely on that premise and he did not consider whether in fact the injury could have aggravated the spondylolisthesis. He said that further imaging was required but did not explain why. Despite the lack of that imaging, he expressed a final view, on which Woolworths acted to terminate compensation payments.
The Commission is required to consider and evaluate the medical evidence before it. We cannot do that if we are unable to understand the basis for the statements made in the reports. In South Western Sydney Area Health Service v Edmonds[11], McColl JA said:
“In Hevi Lift (PNG) Ltd v Etherington at [84] I said (Mason P and Beazley JA agreeing) that ‘[a] court should not act upon an expert opinion the basis for which is not explained by the witness expressing it’. In so saying, I referred with approval (inter alia) to Heydon JA’s analysis of the admissibility of expert evidence in Makita (Australia) Pty Limited v Sprowles (at [59] – [82]). In that case (at [59]) Heydon JA cited with apparent approval Lord President Cooper’s statement in Davie v The Lord Provost, Magistrates and Councillors of the City of Edinburgh (1953) SC 34 at 39-40 that:
‘… the bare ipse dixit of a scientist, however eminent, upon the issue in controversy, will normally carry little weight, for it cannot be tested by cross-examination nor independently appraised, and the parties have invoked the decision of a judicial tribunal and not an oracular pronouncement by an expert.’
This statement is apposite in the context of Commission hearings, and, indeed, is implicitly recognised in r 70. While it must be recognised that ‘[t]here is no legal right to cross-examine an applicant or other witness in the Workers Compensation Commission and decisions whether to allow cross-examination or to limit it are discretionary’ (Aluminium Louvres & Ceilings Pty Limited v Xue Qin Zheng [2006] NSWCA 34 at [37]), the fact that cross-examination of an expert witness may be permitted indicates the desirability of expert reports conforming as far as possible to common law standards of admissibility designed to ensure they have probative value.
Even if that is too stringent an approach in the face of s 354, as the rules recognise, evidence must be ‘logical and probative’ and ‘unqualified opinions are unacceptable’.
In my view Dr Rivett’s statement that ‘in general all the problems are work-related’ which the Arbitrator accepted in concluding that the respondent’s duties were sufficient to cause her injury (apparently within the meaning of s 16) amounted to a bare ipse dixit. It was not probative of the issue before the Arbitrator.”
[11] [2007] NSWCA 16 at [130]-[132].
Dr Rimmer’s opinion is in the nature of an “oracular pronouncement” and is not probative of the issues that I am required to determine.
As Ms Goodman submitted, Dr Dias – who saw Mr Chea at the request of Woolworths – drew the two strands of the case together. As an occupational physician, he was best placed to do that. Mr Chea has a significant condition in his lumbar spine for which surgery has been recommended. Dr Dias considered that condition rendered Mr Chea totally unfit but even if he was to return to restricted duties on restricted hours, his psychological condition would prevent a sustainable return to work.
In Darcy, the Senior Arbitrator said[12]:
“In theory the insurer could have assessed Mr Darcy by accepting Dr Anderson’s opinion or other medical opinion had it been available, but it has not. In any event, what the insurer is required to assess is whether Mr Darcy is likely to continue indefinitely to be incapable of undertaking further additional employment that would increase the worker’s current weekly earnings. Dr Anderson noted that Mr Darcy was working about 20 hours per week which he thought was more associated with his visa than his functional capacity and he says he would probably be able to work about 30 hours per week. So, even if one were to accept everything else in Dr Anderson’s report, he does not provide evidence that Mr Darcy would be incapable of undertaking further additional employment that would increase his current weekly earnings.”
[12] At [106].
Unlike the situation in Darcy, Woolworths had all of the material necessary to make an assessment with respect to Mr Chea’s capacity. Rather than considering the material on its merits, the insurer relied solely on Dr Rimmer’s report, which was deficient for the reasons set out above. There is information which would have allowed the insurer to determine that s 38(2) applied to Mr Chea.
I accept Dr Dias’ opinion and his evidence, together with that of Dr Guirgis, Dr Teoh and Dr Samuell, provides a basis to conclude that Mr Chea has no current work capacity. Dr Leong’s statement is also apposite – despite the underlying spondylolisthesis, Mr Chea was able to perform his duties until he suffered an aggravation of that condition.
The request for continuation of payments is irrelevant when s 38(2) applies. However, it was appropriate for Woolworths to acknowledge it, which they did not do.
I am satisfied that on the basis of the lumbar spine injury and secondary psychological condition, Mr Chea has no current work capacity and that he is likely to continue indefinitely to have no current work capacity, particularly given his reluctance to undergo surgery. He has therefore satisfied the conditions in s 38(2) of the 1987 Act and I order that Woolworths pay compensation of $1,142.52 per week from 17 May 2021 to date and continuing, being 80% of pre-injury average weekly earnings.
Right hip condition
Mr Chea says that he suffered a consequential condition in his right hip. He made a claim by lodging a permanent impairment claim form supported by a report from Dr Guirgis.
Despite Dr Guirgis’ clear statement that the condition was consequential, the decision notices prepared by Woolworths’ solicitors did not engage with that case and merely denied that he suffered an injury.
Dr Rimmer also did not engage with that question. On the basis of his examination he considered that Mr Chea’s right hip was normal. It does not necessarily follow that he did not suffer a consequential condition which warranted referral to a Medical Assessor. Dr Rimmer did not consider the MRI scan dated 5 November 2020 and there is no evidence to show if it was provided to him.
Mr Chea described the onset of pain in his right hip after he started to limp following the lumbar spine injury. Both Dr Guirgis and Dr Dias accepted that Mr Chea suffered a consequential condition in his right hip. The MRI scan supports that conclusion. The extent of any permanent impairment arising from that condition is a matter for the Medical Assessor.
I remit the matter to the President for referral to a Medical Assessor for an assessment of Mr Chea’s permanent impairment in respect of the injury to his lumbar spine and the consequential condition in his right hip.
Section 60
Mr Beran did not make any substantive submissions in respect of the claim for s 60 expenses in the event that I did not accept Dr Rimmer’s opinion that the aggravation had ceased. It follows from the findings I have made with respect to capacity, that s 60 expenses should continue to be paid in respect of Mr Chea’s lumbar spine injury, his secondary psychological condition and the consequential condition in his right hip.
I make the following orders:
(a) The ARD is amended to claim:
(i)Weekly compensation from 17 May 2021, and
(ii)Section 60 expenses.
(b) Pursuant to s 38(2) of the 1987 Act, Woolworths is to pay Mr Chea weekly compensation of $1,142.52 per week from 17 May 2021 to date and continuing.
(c) I remit the matter to the President for referral to a Medical Assessor to assess the applicant’s permanent impairment as a result of:
(i)Injury to his lumbar spine on 12 November 2018, and
(ii)Consequential condition in his right lower extremity (hip).
(d) The documents to be sent to the Medical Assessor are:
(i)ARD;
(ii)Reply, and
(iii)Mr Chea’s Application to Admit Late Documents dated 28 October 2021.
(e) Woolworths is to pay Mr Chea’s s 60 expenses.
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