City Commercial Painting NSW Pty Limited v Pargovski
[2015] NSWWCCPD 59
•2 October 2015
| WORKERS COMPENSATION COMMISSION | |||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||
| CITATION: | City Commercial Painting NSW Pty Limited v Pargovski [2015] NSWWCCPD 59 | ||
| APPELLANT: | City Commercial Painting NSW Pty Limited | ||
| RESPONDENT: | Nikola Pargovski | ||
| INSURER: | Allianz Australia Workers Compensation (NSW) Limited | ||
| FILE NUMBER: | A1-6839/14 | ||
| ARBITRATOR: | Mr J Harris | ||
| DATE OF ARBITRATOR’S DECISION: | 11 June 2015 | ||
| DATE OF APPEAL DECISION: | 2 October 2015 | ||
| SUBJECT MATTER OF DECISION: | Second claim for lump sum compensation for whole person impairment; preclusion of additional claim by application of s 66(1A) of the Workers Compensation Act 1987; consideration of Cram Fluid Power Pty Ltd v Green [2015] NSWCA 250; challenge to Arbitrator’s factual finding of consequential right shoulder condition; weight of evidence | ||
| PRESIDENTIAL MEMBER: | Deputy President Kevin O'Grady | ||
| HEARING: | On the papers | ||
| REPRESENTATION: | Appellant: | HWL Ebsworth Lawyers | |
| Respondent: | Milicevic Solicitors | ||
| ORDERS MADE ON APPEAL: | 1. Paragraphs one and two found in Certificate of Determination dated 11 June 2015 are confirmed. 2. Orders found in paragraphs three, four, five and six of the Certificate of Determination dated 11 June 2015 are revoked. | ||
BACKGROUND
Mr Nikola Pargovski received injury when he fell in the course of his employment with City Commercial Painting NSW Pty Limited (the appellant) on 12 October 2010. Mr Pargovski claimed lump sum compensation against his employer which, at first, gave rise to a dispute between the parties as to entitlement. Proceedings were commenced in the Commission (matter number 6909/2012) seeking orders with respect to lump sum payments pursuant to ss 66 and 67 of the Workers Compensation Act 1987 (the 1987 Act). Mr Pargovski alleged that he had suffered whole person impairment by reason of injuries to his cervical spine and left upper extremity.
The matter was referred for assessment by an Approved Medical Specialist, Dr Kalev Wilding, orthopaedic surgeon, who issued a Medical Assessment Certificate on 7 February 2013. Dr Wilding certified that Mr Pargovski had whole person impairment of 13 per cent.
Agreement was subsequently reached between the parties concerning Mr Pargovski’s claim, and orders were made by an Arbitrator on 24 April 2013, by consent, which made provision for the payment by the appellant to Mr Pargovski of $18,700 in respect of 13 per cent whole person impairment (s 66) together with the sum of $12,500 in respect of pain and suffering (s 67).
On 10 February 2014, a second claim was made by Mr Pargovski in respect of lump sum compensation pursuant to s 66 and additional compensation pursuant to s 67. That claim particularised an alleged further loss of one per cent whole person impairment relating to the left upper extremity, five per cent whole person impairment in respect of the right upper extremity, which loss was said to be a consequence of the injury which occurred in 2010, and lump sum compensation in respect of 11 per cent whole person impairment by reason of a lumbar spine condition which was alleged to have been relevantly caused by the 2010 injury. Those claims were disputed by the appellant.
These proceedings were commenced by the filing of an Application to Resolve a Dispute on 12 December 2014. At [5.6] of that Application, the claim was particularised as being in respect of alleged whole person impairment of 17 per cent. The “body parts/systems claimed” were particularised as being left upper extremity, right upper extremity and lumbar spine. I note that the claim earlier made in respect of further lump sum compensation pursuant to s 67 was, expressly, not pursued.
The matter came before Arbitrator John Harris for conciliation and arbitration on 9 June 2015. The matter proceeded to hearing on that day. The claim heard by the Arbitrator concerned an alleged further one per cent loss in respect of the left upper extremity, a five per cent whole person impairment in respect of what was described as a consequential loss involving the right upper extremity and 11 per cent whole person impairment in respect of Mr Pargovski’s lumbar spine which, it was alleged, had been suffered as a result of the fall in 2010.
The Arbitrator, following submissions put on behalf of each party, determined the dispute on that date and delivered his reasons extempore. A finding was made that Mr Pargovski had failed to establish that his lumbar spine had been injured in the subject fall. A further finding was made that Mr Pargovski suffered a right shoulder condition as a consequence of the 2010 injury. An order was made remitting the matter to the Registrar for referral to an Approved Medical Specialist in terms set out in the Certificate of Determination issued on 11 June 2015, which is in the following terms:
“The determination of the Commission in this matter is as follows:
1. Award in favour of the Respondent in respect of the allegation of injury to the lumbar spine;
2. I find that the Applicant suffered a right shoulder condition as a consequence of the injury to the left shoulder on 12 October 2010;
3. I remit the matter to the Registrar for referral to an Approved Medical Specialist as follows:
Date of Injury: 12 October 2010
Body Parts/Systems: Left Upper extremity (shoulder)
Right Upper extremity (shoulder)
Method of Assessment: Whole Person Impairment
I note the prior medical assessment certificate dated 7 February 2013 (Application, page 2) which assessed:
(a)Cervical spine - 6% WPI;
(b)Left Upper extremity - 7% WPI;
4. The documents to be sent to the AMS are:
a)The Application to Resolve a Dispute and all attached documents;
b)The Reply and all attached documents;
c)Application to admit late documents filed 28 May 2015;
d)These orders.
5. The report of Dr Vote dated 7 May 2012 is excluded. The report of Dr Wallace dated 17 August 2011 is admitted only as to the history recorded.
6. (By consent) The parties request the AMS to provide a combined assessment noting the impairments from the prior Medical Assessment Certificate.”
PRELIMINARY MATTERS
The Arbitrator’s finding concerning the correctness of Mr Pargovski’s allegation of consequential loss suffered with respect to his right shoulder condition has finally determined that issue as between the parties. The Arbitrator’s decision is thus not interlocutory in nature. In the circumstances, the appellant is correct to submit that it does not require leave to proceed with this appeal.
Having regard to the quantum of the claim made by Mr Pargovski, I find that the monetary thresholds as specified in s 352(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) have been met. I reach that conclusion notwithstanding the consequences, as discussed below, of the enactment of s 66(1A) of the 1987 Act following the passage of the Workers Compensation Legislation Amendment Act 2012 (the amending Act). Mr Pargovski’s submission that the appeal cannot be maintained, that it must fail, and should be dismissed must be rejected given that, as argued on behalf of the appellant in supplementary submissions, the claim made on behalf of Mr Pargovski “remains on foot”, and the quantum of that claim, which may be defeated by operation of law, exceeds the relevant threshold.
The appeal has been commenced within the time specified by s 352(4) of the 1998 Act.
ISSUES IN DISPUTE
The appeal as presented in submissions is limited to a challenge to the Arbitrator’s factual finding that the condition of Mr Pargovski’s right shoulder is a consequence of the subject injury.
It may be seen from my earlier summary of the facts that Mr Pargovski had made an earlier successful claim against the appellant in respect of lump sum compensation in 2013. It must be noted that significant amendments of the provisions relevant to lump sum entitlement were effected upon the commencement of the amending Act. It is of particular relevance to the present facts that the amending Act introduced a new provision, s 66(1A), which provided:
“Only one claim can be made under this Act for permanent impairment compensation in respect of the permanent impairment that results from an injury.”
The amending Act came into operation on 27 June 2012 and its application was governed by particular savings and transitional provisions found in Sch 6 to the 1987 Act and regulations subsequently enacted.
As at the date of the Arbitrator’s determination there was no question as to Mr Pargovski’s entitlement to pursue the present claim before the Commission. The relevant facts, having regard to a decision of the President of the Commission, Keating DCJ, were such that the further claim, and the allegation concerning consequential loss, were not defeated by the terms of s 66(1A). That Presidential decision was Cram Fluid Power Pty Ltd v Green [2014] NSWWCCPD 84 (Green No 1) which had been decided on 17 December 2014. The reasoning of the President in Green No 1 included adoption of reasoning concerning the 2012 amending Act which had been expressed in an earlier Presidential decision of Caulfield v Whelan Kartaway Pty Ltd [2014] NSWWCCPD 34 (Caulfield). Those two decisions were subsequently followed in other decisions of the Commission.
Whilst the reasoning in Green No 1 concerning the operation of relevant transitional provisions was not the subject of discussion by the Arbitrator, it is clear that Mr Pargovski’s entitlement to pursue the further claim was, having regard to that decision, treated as being permissible notwithstanding the introduction of s 66(1A).
The decision in Green No 1 was the subject of an appeal to the Court of Appeal by the employer in that matter. The Court of Appeal delivered its judgment on 27 August 2015, that is some ten weeks after the Arbitrator’s decision in the present matter (Cram Fluid Power Pty Ltd v Green [2015] NSWCA 250 (Green No 2)). The employer’s appeal was upheld. It is made clear in that decision that Mr Green, who had successfully made a claim for lump sum compensation in 2010, was disentitled by operation of the provisions of s 66(1A) from making a further claim in 2013.
There is no relevant point of distinction between the facts of Green No 2 and the present facts. In the circumstances, the Arbitrator’s approach to the adjudication of the rights and liabilities of the parties, as well as the manner of presentation of this appeal, have been, by reason of that authoritative decision of the Court of Appeal, overtaken by events.
In the circumstances, a telephone conference was conducted on 10 September 2015 at which time both the appellant and Mr Pargovski were represented by their respective solicitors. That telephone conference was arranged to enable the parties to put any argument concerning the relevance of the decision in Green No 2.
It seemed to have been accepted by Mr Pargovski’s solicitor during the course of that telephone conference that, having regard to the Court of Appeal’s construction and application of the provisions of s 66(1A), Mr Pargovski was not entitled to make the further claims which are the subject of these proceedings (T10.21, 10 September 2015). That concession was confirmed by Mr Pargovski’s further submissions (at [1]) filed with the Commission on 1 October 2015. It follows that, on this appeal, the order made by the Arbitrator concerning remitter to the Registrar for referral to an Approved Medical Specialist should be revoked. An appropriate order is made as noted below. Such order is made having regard to the submissions presented at and following conduct of the earlier mentioned telephone conference.
In the circumstances, the only remaining substantive issue to be determined on this appeal is the question of the correctness or otherwise of the Arbitrator’s determination of fact concerning the alleged consequential condition suffered by Mr Pargovski in his right shoulder.
CHALLENGE TO FINDING OF CONSEQUENTIAL RIGHT SHOULDER CONDITION
The appellant challenges the Arbitrator’s factual finding which appears at T68.32–35 (9 June 2015):
“I make a finding that the right shoulder condition is consequential to the accepted injury to the left shoulder.”
The Arbitrator’s finding concerning the condition of the right shoulder was reached following a careful consideration of all the evidence and argument presented on behalf of the parties. That evidence included the following matters stated by Mr Pargovski in his statement dated 12 September 2014:
“One of the injuries that I sustained in this accident was an injury to my left shoulder. I was unable to use my left shoulder and arm due to the pain that I was experiencing and also the reduced mobility.
I relied on my right shoulder and arm to do everything and I tried to avoid using the left shoulder and arm.
Consequently I started to feel pain in my right shoulder. I do not recall exactly how long but I believe that it was about 12 months following the initial injury. I continued to favour my right arm and the pain and the disability increased in the right shoulder.
Over time the pain became more significant and in late 2013 and [sic] I spoke to my General Practitioner Dr Verma. He referred me for a right shoulder x-ray and ultrasound in August 2013. I saw Dr Verma with the results of the x-ray and ultrasound”.
In the course of his reasoning, the Arbitrator considered the evidence of Dr Richard Powell, orthopaedic surgeon, who had been qualified by the appellant to provide an opinion for the purposes of this litigation. The Arbitrator noted that Dr Powell, who had recorded in September 2014 complaint by Mr Pargovski of right shoulder symptoms, was of the view that such symptoms were “constitutional”. The Arbitrator accepted that there was “no injury to the right shoulder in the workplace accident” (at T.57.13, 9 June 2015).
The Arbitrator accepted a submission put on behalf of Mr Pargovski that Dr Powell had not considered the question as to whether the right shoulder condition had arisen as a consequence of overuse following injury to the left shoulder.
The Arbitrator proceeded to note the evidence of Dr Medhat Guirgis, found in his report dated 9 December 2013, that Mr Pargovski had complained of “secondary symptoms in his right shoulder because of him [sic] favouring the right arm in his daily living activities to avoid the pain felt in his left arm on stress using it”.
The Arbitrator also noted Dr Guirgis’ opinion, which he ultimately preferred to that expressed by Dr Powell, concerning the condition of the right shoulder which was as follows:
“As [Mr Pargovski] was favouring his right arm in his Daily Living activities to avoid the pain felt in his left shoulder on using his left arm in any stressful degree, he started developing secondary symptoms in his right shoulder and on presentation he continued to complain of painful stiffness and heaviness of the right shoulder. There was ultrasound scan evidence of rotator cuff arthropathy in the right shoulder.”
The contents of the clinical notes of the general practitioner treating Mr Pargovski, Dr A Verma, were noted by the Arbitrator and particular reference was made in the course of his reasoning to an entry made on 12 August 2013 where complaint, it seems, was made concerning pain experienced by Mr Pargovski in his right shoulder. Dr Verma, in a report dated 29 November 2014, described the various injuries suffered by Mr Pargovski as a result of the subject fall. That description included the following:
“Lastly in terms of his physical injuries, he has suffered secondary injuries in his right shoulder and there is radiological evidence in the form of an ultrasound showing right rotator cuff arthropathy.”
Submissions on appeal and findings
The appellant’s submissions do not expressly identify the grounds upon which the challenge to the Arbitrator’s factual finding concerning Mr Pargovski’s right shoulder is founded. Those submissions merely assert error as appears at [12.8] of those submissions. It is there noted:
“12.8The Appellant submits the Arbitrator erred in finding [Mr Pargovski] suffered a consequential injury to this [sic] right shoulder in circumstances where:
12.8.1 There was no evidence [Mr Pargovski] was undertaking physical activities due to his left shoulder injury.
12.8.2There was no evidence any physical activities [Mr Pargovski] may have been undertaking were sufficient to cause consequential injury to the right shoulder.
12.8.3[Mr Pargovski’s] qualified expert Dr Guirgis reported [Mr Pargovski] had significant restrictions in activities of daily living as a result of his lower back condition.
12.8.4There was no medical evidence – other than the bare ipsi dixit [sic] that [Mr Pargovski] had problems with his right shoulder and this occurred about 12 months after the workplace injury to his left shoulder – to support a finding of consequential injury to the right shoulder.
12.8.5[Mr Pargovski’s] qualified expert, Dr Guirgis, did not specify what ‘daily activities of living’ he considered had caused consequential injury to the right shoulder, which was particularly significant given Dr Guirgis found [Mr Pargovski] was restricted in relation to his activities of daily living as a result of his lower back condition.
12.8.6The Arbitrator conceded that Dr Guirgis had not identified what ‘daily activities of living’ he considered had caused consequential injury to the right shoulder.”
It may be seen from the matters noted immediately above that the appellant complains that the Arbitrator’s factual conclusion concerning a causal nexus between the subject fall and the condition of his right shoulder was reached in the absence of evidence concerning the nature of physical activity which had, apparently, been taken into account by Dr Guirgis. The submissions do not make clear whether the appellant is asserting error of law committed by reason of an absence of evidence. Upon an assumption that such error of law is asserted, the appellant’s submission must, in my view, be rejected. I note that the arguments advanced on appeal were also put on behalf of the appellant during submissions before the Arbitrator. When dealing with those arguments, the Arbitrator, correctly in my view, concluded that the criticism concerning the state of the evidence were matters going to the weight of that evidence. The Arbitrator’s approach to those arguments is to be found at T65.22, 9 June 2015, where it was stated:
“I agree with Mr Dodd’s submission that the doctor has not identified the particular activities mentioned in his report as forming the basis for his view. That is a matter going to weight. [Mr Pargovski] himself has not identified the particular activities that he did not do, but again that is a matter of weight. However Dr Guirgis’ view, is to the extent corroborated by the opinion of Dr Brmar [sic, Verma], the general practitioner, in two relevant respects.
They are, the provision of WorkCover certificates showing a link and the short, one-line report that I have referred to and provided by Dr Brmar [sic, Verma]. Whilst I agree that the nature of the evidence from [Mr Pargovski] is not strong, in my view the totality of the evidence including the further evidence form [sic, from] the general practitioner, is sufficient to satisfy, on the balance of probabilities that the right shoulder condition is a consequence of the accepted injury to the left shoulder.”
It may be seen from the extract from the Arbitrator’s reasons noted immediately above that the absence of any description of “daily activities of living” to be found in Dr Guirgis’s reports was treated by the Arbitrator as being a factor relevant to the assessment of the weight of the views expressed by that witness. That question, concerning the weight of relevant evidence, was one to be determined by the Arbitrator. The appellant has, in my opinion, failed to identify any relevant error on the part of the Arbitrator concerning his evaluation of the evidence relevant to this matter in dispute. The Arbitrator, correctly in my view, cited the observations of Basten JA in State of New South Wales v Bishop [2014] NSWCA 354 (15 October 2014) at [20] where his Honour, dealing with the question of proof of causation of a consequential condition, observed:
“In the present case, the question of causation was purely a question of fact for the arbitrator. How other courts have dealt with such questions on their own facts will not provide precedents, because they are not statements of legal principle. The statement from [Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452] that ‘the mere passage of time ... is not determinative’ is not a legal principle, nor does it give helpful guidance in the present case. The mere passage of time may in some circumstances be determinative; in other circumstances it may be irrelevant. Further, to discuss a ‘link in the chain of causation’ becoming attenuated (not an entirely happy metaphor) may also mislead. In a case of mesothelioma, a period of seven years between exposure to asbestos and diagnosis may be too short to indicate any causal connection. Nor are references to ‘common sense evaluation’ necessarily helpful: certainly in the present circumstances they cannot excuse a failure to address a conflict in the expert medical evidence.”
The manner in which argument has been presented on this appeal suggests that the appellant is seeking a review or rehearing of the matter in dispute. As is expressly provided in s 352(5) of the 1998 Act, this appeal is limited to a determination of whether the decision appealed against was or was not affected by an error of fact, law or discretion. Such an appeal is not a review or new hearing. The appellant’s failure to make out any relevant error has the consequence that the Arbitrator’s finding concerning the causal relationship between the condition of Mr Pargovski’s right shoulder and the subject fall must be confirmed. Appropriate orders appear below.
DECISION
Paragraphs one and two found in Certificate of Determination dated 11 June 2015 are confirmed.
Orders found in paragraphs three, four, five and six of the Certificate of Determination dated 11 June 2015 are revoked.
Kevin O'Grady
Deputy President
2 October 2015
I, STEVEN HAMPSON, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O'GRADY, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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