Conargo Shire Council v Quor
[2007] NSWWCCPD 245
•14 December 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
Reported Decision: Conargo Shire Council v Quor (2007) 6 DDCR 506
CITATION:Conargo Shire Council v Quor [2007] NSWWCCPD 245
APPELLANT: Conargo Shire Council
RESPONDENT: Mark Anthony Quor
INSURER:Statecover Mutual Limited
FILE NUMBER: WCC18278-06
DATE OF ARBITRATOR’S DECISION: 26 September 2007
DATE OF APPEAL DECISION: 14 December 2007
SUBJECT MATTER OF DECISION: Section 329 of the Workplace Injury Management and Workers Compensation Act 1998; reasons; denial of procedural fairness
PRESIDENTIAL MEMBER: Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION: Appellant: Bartier Perry
Respondent: White Barnes
ORDERS MADE ON APPEAL: Paragraphs one, two and four of the Arbitrator’s determination of 26 September 2007 are confirmed.
Paragraph three of the Arbitrator’s determination of 26 September 2007 is revoked and the assessment of the Respondent Worker’s entitlement to compensation under section 67 of the Workers Compensation Act 1987 Act is remitted to a different Arbitrator for re-determination.
The Appellant Employer is to pay the Respondent Worker’s costs of the appeal.
BACKGROUND TO THE APPEAL
Mark Quor (‘the Respondent Worker’) started work with Windooran Shire Council in November 1994 and then with Conargo Shire Council (‘the Council/Appellant Employer’) in 2001, when the two councils amalgamated. He initially worked for the Appellant Employer as a loader driver for 12 months and then as a water cart driver.
On 23 February 2004 Mr Quor injured his back when he lifted a roller tyre onto the work utility in the course of his employment with the Council. The incident was reported but Mr Quor remained at work. He was off work on 26 February 2004 and saw his general practitioner, Dr Paul, on 27 February 2004. Dr Paul declared him to be unfit for work until 2 March 2004 when he declared him fit for modified duties for four hours per day five days per week lifting up to “10-15 kilos, walking up to one hour, sitting up to one hour, standing up to one hour, travelling up to one hour’. Mr Quor was also to avoid bending his spine and to have a 10-minute break every hour. He had chiropractic treatment on 5 and 10 March 2004. He saw Dr Paul on 12 March 2004 when he was working three days per week.
A CT scan on 19 March 2004 (referred to by Dr Isbister in his report of 8 August 2006, page five) revealed Mr Quor to have a bulge at the L5/S1 level of his spine.
Having further problems, Mr Quor again saw Dr Paul on 26 March 2004 when he was declared fit for “six hours duties on alternate days with same restrictions as per the last certificate”.
In late March 2004 Mr Quor was required to attend a training course as part of his duties. What then unfolded has assumed some significance in the matter and is set out at paragraphs 15 to 21 of his statement of 16 June 2004 where he said:
“15.On 29 March 2004 I had a training course. The Foreman told me that I had to continue working beyond the four (4) hours and he said he had spoken to Michael Todd, the pay master, and that I could not refuse to keep working.
16.What I was doing was, working normally till lunchtime, but on this day, I was told I couldn’t. I had to work on the truck for some two (2) hours and on the loader for one (1) hour to about 4.00 pm and by the time I got back into town it was about 5.00 pm and I had just worked an extra five (5) hours over my certificate.
17.I went home following that feeling very sore and suffering from tingling in my legs.
18.The following day, 30 March 2004, when I woke up I was very sore, with bladder and bowel dysfunction, and I had tingling. I continued a course in the yard and went home at lunch time.
19.On Wednesday 31 March 2004, I worked again and I was still on the course and I was doing a tractor implement course and I was out on the Jerilderie Road for two (2) or three (3) hours doing the driving test.
20.I finished at about 11.30 and was told to go home. I was back at the depot at about midday, and my back was very sore.
21.The following day, 1 April 2004, I could not get out of bed and I then saw the chiropractor on 5 April 2004 and Dr Paul. At this stage, I was having problems with my bowel and bladder function and I also had leg pain.”
Mr Quor did not return to work after 31 March 2004 and an MRI scan on 10 May 2004 showed desiccation of the L5/S1 and L4/5 discs. He underwent a second CT scan on 8 June 2004, which again showed a bulge of the L5/S1 disc.
On 12 July 2004 Mr Quor returned to work three hours per day three days per week. By December 2004 his hours had increased to eight per day for three days per week. His claim for compensation having been accepted, he remained in receipt of compensation payments and suffered no loss of income.
Mr Quor stopped work on 21 February 2005 and underwent a discogram on 23 February 2005, which showed a severe rupture of the L5/S1 disc. The Council terminated his employment on 30 March 2005. On 6 August 2005 Mr Quor underwent an L5/S1 discectomy and instrumented fusion.
On 18 August 2006 Mr Quor claimed lump sum compensation in respect of a 27% whole person impairment as a result of his injury on 23 February 2004. By letter dated 17 October 2006, the Council’s insurer, StateCover Mutual Limited (‘StateCover’) offered to settle Mr Quor’s claim in the sum of $8,750.00, representing a 7% whole person impairment based on an assessment by Dr Matheson. That offer was rejected and an Application to Resolve a Dispute (‘the Application’) was registered in the Commission on 18 December 2006 in which Mr Quor sought lump sum compensation in the sum of $45,000.00 in respect of a 27% whole person impairment plus compensation for pain and suffering as a result of his injury on 23 February 2004.
By its Reply filed on 8 January 2007, the Council did not dispute “injury” nor did it indicate that leave would be sought to argue that Mr Quor had sustained injuries in addition to the injury on 23 February 2004. The Reply merely referred to the “Matters in Dispute” as being “Confirmed as per exchange of offers attached to the Application”. This is presumably a reference to the offer of settlement by StateCover in the letter of 17 October 2006.
On 17 January 2007 the matter was referred to an Approved Medical Specialist (‘AMS’) for assessment of Mr Quor’s whole person impairment as a result of his injury on 23 February 2004. The AMS (Dr Silver) examined Mr Quor on 21 March 2007 and issued a Medical Assessment Certificate (‘MAC’) on 30 March 2007 assessing him to have a whole person impairment of 18%, after allowing for a 10% reduction under section 323 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) for pre-existing degenerative changes.
The matter was listed for a post MAC teleconference on 4 May 2007. As a result of that teleconference a Direction was issued on 7 May 2007 noting that the Appellant Employer was to make an application to the Registrar under section 378 of the 1998 Act by 11 May 2007. It is agreed that the reference to section 378 in the Direction was an error and the correct section was section 329 of the 1998 Act.
On 11 May 2007 the Appellant Employer lodged with the Registrar an application for a further assessment by Dr Silver in accordance with section 329(1A) of the 1998 Act (‘the 329 application’). The application is based on an allegation that Mr Quor sustained further injuries to his back on 29 and 31 March 2004 and, as the AMS was not asked the right question/s, he did not consider those injuries in his assessment and a further assessment is necessary in the interests of justice.
The 329 application was listed for teleconference on 19 July 2007 and for conciliation and arbitration on 7 August 2007. The matter could not be resolved and proceeded to arbitration.
In an amended Certificate of Determination dated 26 September 2007 the Arbitrator rejected the Appellant Employer’s application and made the following orders:
“1.Application for referral for further assessment declined.
2.Respondent to pay $24500.00 in respect of 18 percent WPI [sic].
3.Respondent to pay $20,000.00 for pain and suffering.
4.Respondent to pay the Applicant’s costs as agreed or assessed. I certify that the matter is complex and that both parties are entitled to a 30 percent uplift.”
The Appellant Employer seeks leave to appeal the Arbitrator’s decision.
LEAVE TO APPEAL
Monetary Threshold
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The Respondent Worker takes no issue that the quantum in issue on appeal meets the thresholds in section 352(2) of the 1998 Act.
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
I grant leave to appeal.
PRELIMINARY MATTERS
Section 354(6) of the 1998 Act provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the 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’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred:
(a)in finding Mr Quor sustained no further injury to his lumbar spine on 29 and/or 31 March 2004 when such finding was against the evidence and the weight of evidence (‘injury’);
(b)in finding that the injury or injuries (allegedly) sustained on those days were just as easily explained as a manifestation of the accepted injury on 23 February 2004 (‘injury’);
(c)failing to provide an adequate analysis of the evidence and provide adequate reasons in relation to his finding that there were no further injuries on 29 or 31 March 2004 (‘reasons’);
(d)by taking into account irrelevant criteria by determining that even if there were further injuries it did not mean the MAC was incorrect and by stating that a single impairment could result from more than one injury (‘irrelevant criteria’);
(e)by taking into account irrelevant criteria by discussing the principles relating to section 22 of the 1987 Act and the decisions of Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (‘Kooragang’) and Kempsey District Hospital v Thackam (1995) 36 NSWLR 492 (‘Thackam’) (‘irrelevant criteria’);
(f)in stating that the Court of Appeal decision in South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 (‘Edmonds’) has cast doubt over whether the Commission has the powers the former Compensation Court of NSW had with respect to drawing conclusions about the medical condition of a worker (as per MMI Workers Compensation (NSW) v Kennedy & others (1993) 9 NSWCCR 482 (‘Kennedy’)) (‘the Commission’s power to draw conclusions about a worker’s medical condition in the absence of expert evidence’);
(g)in denying the parties procedural fairness by awarding compensation under section 67 of the 1987 Act in circumstances where the parties did not ask him to determine that component of the claim and where no submissions were invited or received from either party at the arbitration in relation to the section 67 compensation (‘Section 67 compensation’), and
(h)in exercising his discretion not to grant the Appellant Employer’s application under section 329 of the 1998 Act in circumstances where the dictates of justice require a further referral (‘exercise of discretion’).
REVIEW
The nature of a review and the role and function of a Presidential member on appeal has been considered in many cases in the Commission. In The King Island Company Ltd v Deery [2005] NSWWCCPD 1 it was held at [19]:
“19. A Presidential Member on appeal has a specific and limited role in the review of a decision of an Arbitrator. The review is not a rehearing. The Presidential member is not dealing with the matter de novo and is not arriving at a fresh decision based on all of the evidence available at a later time (Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616). The powers of the Presidential Member to revoke the decision pursuant to section 352(7) of the 1998 Act and to substitute a new decision in its place, are exercisable only where it is demonstrated that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172). Alternatively, the Presidential Member may remit the matter back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions made.”
The nature of a review was considered by the Court of Appeal in Aluminium Louvres & Ceilings Pty Limited v Zheng [2006] NSWCA 34 where Bryson JA said at [38]:
“A review is a different process to an appeal and the matters which may be considered and the manner in which they may be considered are somewhat wider. See Boston Clothing Co Pty Ltd v. Margaronis (1992) 27 NSWLR 580 at 584 (Kirby P). An attack, on review or otherwise, on an Arbitrator's discretionary decision in controlling procedure may be based on the test stated in House v. R (1936) 55 CLR 499 at 504 - 505; but that is not the only basis on which the Presidential member may act. The powers of a Presidential member on review are somewhat wider and extend to power to reopen consideration of a matter of which an Arbitrator has disposed; the manner in which the powers of the Presidential member are to be exercised is itself the subject of discretion of the Presidential member.”
McColl JA quoted this passage with approval in Edmonds at [134]. To describe the relative weight and relevance of the expert evidence as “a discretionary decision which could only be disturbed on House v The King principles” was described by McColl JA as “an over-generalisation” (at [133]).
The nature of a review was further considered by the Court of Appeal in State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249 where Spigelman CJ said at [28] and [30]:
“28. The concept of a review on the merits is wider than the concept of an appeal in a judicial context. There is a well established line of authority on the use of the terminology of ‘review’ instead of ‘appeal’ with respect to the workers compensation system in this State which establishes the breadth of a review on the merits.
30. A Presidential member exercising a power to review a decision must decide whether the original decision is wrong or, as it is often put in the context of administrative appeals on merits, must decide what is the true and correct view. If s/he does so decide then s/he should substitute his or her own views, unless it is an appropriate case to remit. The power to remit is not constrained in the manner for which the Appellant contends.”
Before an Arbitrator’s decision will be revoked on review it must be demonstrated that it contains or has resulted from an error of fact, law or discretion. The error must be such that, but for it, a different decision should have been made (see Snow Confectionary Pty Ltd v Askin [2004] NSWWCCPD 56; Section 294 of the 1998 Act; YG & GG v Minister for Community Services [2002] NSWCA 247, and Absolon v NSW TAFE [1999] NSWCA 311).
I intend to apply the above principles in the matter before me.
PRELIMINARY ISSUE
The Council’s application filed on 11 May 2007 is stated to be under section 329(1A) of the 1998 Act. The Council’s solicitor referred to that subsection at T12.27 and T13.39 at the arbitration, though the Council’s written submissions dated 11 May 2007 and 2 October 2007 each also refer to section 329(1)(b). The Certificate of Determination dated 26 September 2007 only states that the “Application for referral for further assessment [is] declined”. The Arbitrator’s Statement of Reasons for Decision (‘Reasons’) only refer to “section 329 of the 1998 Act” (Reasons, paragraph five) but do not identify which subsection is relied upon.
Section 329 states:
“329 Referral of matter for further medical assessment or reconsideration
(1) A matter referred for assessment under this Part may be referred again on one or more further occasions for assessment in accordance with this Part, but only by:
(a) the Registrar as an alternative to an appeal against the assessment as provided by section 327, or
(b) a court or the Commission.
(1A) A matter referred for assessment under this Part may be referred again on one or more further occasions by the Registrar to the approved medical specialist for reconsideration.
(2) A certificate as to a matter referred again for further assessment or reconsideration prevails over any previous certificate as to the matter to the extent of any inconsistency.” (emphasis added)
On appeal, the Council again seems to be relying on subsection 329(1A) though it has also referred to section 329(1)(b) (see Appellant Employer’s submissions 2 October 2007, page nine). Section 329(1A) gives power to the Registrar (not an Arbitrator) to refer a matter to an Approved Medical Specialist “for reconsideration”. The application filed on 11 May 2007 was directed to the Registrar. By email dated 9 July 2007 the Registrar referred the matter to an Arbitrator and a teleconference was confirmed for 19 July 2007. At that teleconference the matter was listed for arbitration on 7 August 2007.
The following points must be noted:
(a)the power to again refer a matter to an Approved Medical Specialist for reconsideration under section 329(1A) is conferred on the Registrar, not on an Arbitrator;
(b)the circumstances in which the Registrar may refer a matter under section 329(1A) are set out in the Registrar’s Guideline “Requests for Reconsiderations under sections 329(1A), 350(3) and 378 of the Workplace Injury Management and Workers Compensation Act 1998” dated 22 October 2007;
(c)a matter may be referred again for assessment under Part 7 of the 1998 Act on one or more further occasions by the Registrar as an alternative to an appeal under section 327 (section 329(1)(a)), and
(d)a matter may be referred again for assessment under Part 7 of the 1998 Act on one or more further occasions by a court or the Commission (an Arbitrator) (section 329(1)(b)).
On the face of it the Registrar appears not to have determined the application under section 329(1A). The Arbitrator dealt with the application before him as “an application for the matter to be remitted…to the AMS pursuant to section 329” (T1.21) and heard lengthy argument on the substantive merits of the application without distinguishing between subsection (1)(b) and subsection (1A) of section 329. On appeal, neither party objects to the way the arbitration was conducted.
Having regard to this background and to the parties’ submissions, it is clear that the critical issues in determining whether the matter should be referred again for a further assessment under section 329(1)(b) are substantially the same as the issues in determining whether the matter should be referred again for reconsideration under section 329(1A). However, as the Registrar, or her delegate, must deal with applications under section 329(1A) and there is no right of appeal from a Registrar to a Presidential member, the present appeal is technically restricted to the application under section 329(1)(b).
In conducting the review I have had regard to all of the issues raised in the Appellant Employer’s submissions.
SUBMISSIONS AND FINDINGS
Injury
The Appellant Employer submits:
(a)in a hand written letter on the letterhead of Deniliquin Chiropractic Centre dated 5 April 2004 (said to be written by Mr Quor), it is stated that Mr Quor was “doing [a] driving test on 29 March 2004 from 12.00 until 4.00 then drove [a] tractor for another test 2 days later. Then next morning had to go to [the] toilet and sat down and had numbness in both legs and expesia [sic] feet and didn’t have faith in moving for about half an hour afterwards. And have experienced not much sleep and numbness and trouble getting around ever since.”;
(b)in Mr Quor’s statement of 16 June 2004 he complained only of back symptoms until 29 March 2004;
(c)on going home on 29 March 2004, Mr Quor felt very sore and had tingling in his legs;
(d)on 30 March 2004 Mr Quor was very sore when he woke up and had bladder and bowel dysfunction and tingling;
(e)on 31 March 2004 Mr Quor was doing a tractor implement course. He finished at 11.30 and was back in the depot by midday “and his back was very sore”;
(f)on 1 April 2004 Mr Quor could not get out of bed and saw the chiropractor on 5 April 2004. By that stage he was having problems with his bowel and bladder function and had leg pain;
(g)Dr Isbister’s report of 8 August 2006 recorded Mr Quor’s injury of 23 February 2004 and that he developed immediate low back pain in that incident. Dr Isbister recorded at page three that while Mr Quor was on a training course driving plant and machinery he “had further difficulties with his back which deteriorated with the jarring incurred with driving a loader in the pit. On this occasion he reports developing bilateral leg pain. The next morning he reports suffering from severe pins and needles sensations and numbness in his legs. He attempted to continue with his work but suffered from pain in the buttocks and persisting numbness in his legs.”;
(h)Dr Matheson, neurosurgeon qualified on behalf of the Appellant Employer, took a similar history to Dr Isbister but incorrectly referred to the training activities as having occurred in April;
(i)Mr Quor’s neurological symptoms were first experienced “after the subsequent injury of 29 March 2004” and/or after the “two further injuries of 29 and 31 March 2004” (Appellant Employer’s submissions filed 11 May 2007, paragraph 3.18);
(j)if Mr Quor’s symptoms on 29 and 31 March 2004 are accepted as genuine, there ought to be a strong inference that there was some further damage to his lumbosacral disc or some additional pathology in his disc that caused those symptoms after the injuries of 29 and 31 March 2004. If that evidence had been before the AMS and if the AMS had been asked to give an opinion on whether a proportion of Mr Quor’s whole person impairment related to the subsequent injuries on 29 and 31 March 2004, there would probably be an apportionment of some degree of the loss against one or both of those injuries;
(k)the AMS was only asked to provide an assessment in respect of the injury on 23 February 2004, and
(l)the injury on 29 March 2004 was not a mere recurrence from an innocuous work task. It can only be seen as a subsequent traumatic event and frank injury, not a mere manifestation of symptoms emanating from the original injury on 23 February 2004.
The Respondent Worker submits:
(a)the Arbitrator’s findings are supported by fact and evidence;
(b)the Arbitrator is the arbiter of matters of fact;
(c)the Appellant Employer’s submissions are based on assumptions for which there is no factual evidence;
(d)the Appellant Employer’s assertion that Mr Quor suffered separate injuries on 29 and 31 March 2004 has not been found to be the case, and
(e)all doctors, including the AMS, had the necessary material upon which to make a decision. The fact that they did not make such a decision (presumably, along the lines now sought by the Appellant Employer) would seem to deny the Appellant Employer’s assertions that there were separate injuries on 29 and 31 March 2004.
After reviewing the evidence the Arbitrator found at paragraphs 21 and 22 of his Reasons:
“21.None of the medical material before me makes a diagnosis of further or separate injury on either of the 2 dates. Following what was said by the Court of Appeal in South Western Sydney Area Health Service v Edmunds [2007] NSWCA 16 there must be some doubt whether the Commission has the powers that were formerly enjoyed by the Compensation Court with respect to making its own conclusions about the medical condition of a worker ( see MMI Workers Compensation (NSW) v Kennedy (1993) 9 NSWCCR 482 and Belmont Night Patrol v Woolworths & Anor [2004] NSWCA 235) .
22.In any event I would not be prepared to conclude that there was further injury on those dates. The symptoms experienced on those dates are just as easily explained as the manifestation of the accepted injury on 23 February 2004.” (emphasis added)
I agree with the Arbitrator’s finding that none of the material before him made any diagnosis of further or separate injuries on either 29 or 31 March 2004. All of the medical experts in the case, including Dr Matheson, had a history (either directly from Mr Quor or from the documents forwarded to them) of the events of 29 and 31 March 2004 but none of them suggested that Mr Quor’s impairment had resulted from anything other than the injury on 23 February 2004. None drew the conclusion that the Appellant Employer now urges.
Dr Matheson stated at page four of his report of 26 June 2006 that:
“Mr Quor has some minor degenerative changes in the lumbosacral spine which were evident after his pushing event on 23 February 2004. This never encompassed any neural occlusion and there is no reason for him to have any leg pain or autonomic dysfunction. Indeed the degree of pathology within that disc would be no more than one would expect from most people of his age. He may have some relationship to work. He has gone onto an operation because of complaints that are hard to verify and certainly have not improved since the operation. These symptoms cannot be due to his disc. Whether they are contrived or due to some other underlying problem, it is not clearly known to me. He would require to have some urodynamics studies to see what is going on with his bladder function. His autonomic loss has got nothing to do with his back disability nor his operation.
In answer to the question “Your diagnosis and whether the injury seems consistent with the stated cause?” Dr Matheson said:
“The diagnosis here is the lumbosacral fusion. The injury is not consistent with the stated cause. He merely has a minor degenerative back disorder with no reason to explain his leg symptoms or autonomic symptoms.”
In answer to the question “Do you believe the injury to be an aggravation of a pre-existing condition?”, Dr Matheson said:
“This is possibly the case. He may have aggravated his lumbosacral disc lesion by way of this injury causing some back pain but it does not account for his leg pain or his autonomic disability. This aggravation has not ceased in the sense that he had an operation and had [sic] been left permanently worse off.”
The material forwarded to the AMS included the “Application and Reply and the medical reports submitted by the parties in accordance with Clause 43A of the Workers Compensation Regulation 2003 “ (see “Request for Assessment of Permanent Impairment by Approved Medical Specialist” dated 17 January 2007). At the examination on 21 March 2007, the AMS took a history of the 23 February 2004 injury and that it initially only affected Mr Quor’s low back. Dr Silver then recorded that there was no improvement in the level of pain “that extended into both buttocks, after prolonged sitting, within a few days of the injury” (MAC, page three). The reference to the pain extending into both buttocks within a few days is incorrect, but is of little relevance because Dr Silver thought the history was “not indicative of a radiculopathy” (MAC, page five) nor did the doctor think there was any evidence of radiculopathy in the reference material, which he obviously read and considered. The “reference material” included all the attachments to the Application and Reply. Dr Silver also stated that there were “no subsequent injuries or medical problems” (MAC, page three).
Dr Silver certified that as a result of the injury on 23 February 2004, Mr Quor has a 20% whole person impairment which he reduced to 18% after deducting 10% for pre-existing abnormalities under section 323 of the 1998 Act. His assessment is conclusively presumed to be correct as to Mr Quor’s degree of permanent impairment as a result of the injury on 23 February 2004 (section 326(1)(a) of the 1998 Act). Neither party has appealed the MAC under section 327 of the 1998 Act. Therefore, as “injury” is not in issue, Mr Quor is prima facie entitled to an award under section 66 of the 1987 Act in the sum of $24,500.00.
Dr Isbister took a detailed history of the injury on 23 February 2004. He also took a detailed history of Mr Quor’s activities on 29, 30 and 31 March 2004 and the symptoms he experienced at that time. At page seven of his report of 8 August 2006 he recorded Mr Quor to have a 27% whole person impairment with a date of accident of 23 February 2004. He made no allowance for any pre-existing conditions under section 323 of the 1998 Act.
A review of the above medical evidence demonstrates that there is no expert evidence to support the Appellant Employer’s submission that Mr Quor suffered additional injuries on 29 and 31 March 2004. The Appellant Employer’s own expert, Dr Matheson, is firmly against the proposition. He stated that Mr Quor’s autonomic loss has nothing to do with his back disability. In his opinion there is no reason for Mr Quor to have any leg pain or autonomic dysfunction. The Appellant Employer’s application is based on the unproven and unfounded assumption that Mr Quor sustained further injuries on 29 and/or 31 March 2004. The Arbitrator did not accept those submissions and his conclusion demonstrates no error. I agree with it. His conclusion is not against the weight of the evidence, but is consistent with the weight of the evidence.
Reasons
The failure to provide adequate reasons constitutes an error of law and may be a ground to set aside an Arbitrator’s decision. It is clear that Arbitrators have a statutory obligation to provide adequate reasons for their decisions (section 294(2) of the 1998 Act; Part 15 Rule 15.6 of the Rules; Absolon v NSW TAFE [1999] NSWCA 311).
Relevantly, Rule 15.6 provides that:
“(1) A statement of the Commission’s reasons referred to in section 294(2) of the 1998 Act is to include:
(a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based, and
(b) the Commission’s understanding of the applicable law, and
(c)the reasoning processes that lead the Commission to the conclusions it made.
(2) Without limiting subrule (1), the reasons set out in a statement referred to in subrule (1) are to be stated sufficiently (in the opinion of the Commission) to make the parties aware of the Commission’s view of the case made by each of them.”
To succeed in having the decision set aside on this ground the Appellant Employer must demonstrate not only that the reasons are inadequate, but that their inadequacy discloses that the Arbitrator has failed to exercise his statutory duty to fairly and lawfully determine the application (YG & GG v Minister for Community Services [2002] NSWCA 247; Absolon v NSW TAFE [1999] NSWCA 311; ADCO Constructions Pty Ltd v Ferguson [2003] NSWWCCPD 21).
The standard by which the adequacy of reasons must be determined is relative to the nature of the decision itself and the decision-maker (Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSWWCCPD 6). An Arbitrator’s reasons should be read as a whole and it is not for a Presidential member on review to comb through the Arbitrator’s findings and reasons in search of error (Beale v GIO (NSW) (1997) 48 NSWLR 430 at 444; Minister for Immigration and Multicultural Affairs v Wu Shu Liang (1996) 185 CLR 259). It is not necessary for an Arbitrator to refer to every piece of evidence (Yates Property Corporation Pty Limited (in Liq) v Darling Harbour Authority (1991) 24 NSWLR 156; Ainger v Coffs Harbour City Council [2005] NSWCA 424).
In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 (‘Soulemezis’) McHugh JA (as he then was) stated at 280:
“If an obligation to give reasons for a decision exists its discharge does not require lengthy or elaborate reasons: Ex parte Powter; Re Powter (1945) 46 SR (NSW) 1 at 5: 63 WN 34 at 36. But it is necessary that the essential ground or grounds upon which the decision rests should be articulated. In many cases the reasons for preferring one conclusion to another also need to be given.” (emphasis added)
The resolution of disputes between medical experts requires a rational examination and analysis of the evidence and the issues (per Ipp JA in Sourlos v Luv A Coffee Lismore Pty Ltd & anor [2007] NSWCA 203 at [25] citing Wiki v Atlantis Relocations (NSW) Pty Ltd (2004) 60 NSWLR 127). In Hume v Walton [2005] NSWCA 148, McColl JA said at [69]:
“The primary judge’s duty was not only to record the evidence but also to record the findings she made based on that evidence: Mifsud v Campbell (1991) 21 NSWLR 725 at 728. While the extent of that duty may depend upon the circumstances of the individual case, where there is disputed expert evidence, the ‘parties are entitled to have the judge enter into the issues canvassed before the Court and to an explanation by the judge as to why the judge prefers one case over the other’: Archibald v Byron Shire Council [2003] NSWCA 292; (2003) 129 LGERA 311 at [54] per Sheller JA (with whom Beazley JA agreed); see also Bright v Joodie Holdings No 2 Pty Ltd [2005] NSWCA 134 at [33] per Santow JA (with whom Sheller JA and Campbell AJA agreed).”
Her Honour’s comments in Hevi-Lift (PNG) Limited v Etherington [2005] NSWCA 42 at [100] are also relevant:
“The primary judge must state generally and briefly the grounds which have led him or her to conclusions concerning disputed factual questions and to list the findings on the principal contested issues. Although it is not necessary that the judge refer to all the evidence, ‘[w]here nothing exists but an assertion of satisfaction on undifferentiated evidence the judicial obligation has not been discharged’: Soulemezis, at 259, per Kirby P.”
In the present matter it is argued that the Arbitrator was obliged to consider and deal with the submission that “the subsequent injury on 29 March 2004 was not a mere recurrence from an innocuous work task or a mere manifestation of symptoms emanating from the original injury of 23 February 2004 (as found by the Arbitrator)” (Appellant Employer’s submissions 2 October 2007, page six).
Considering the nature of the decision the Arbitrator was required to make (whether the matter should be referred again for assessment in accordance with Part 7 of the 1998 Act), it is doubtful whether his reasons had to be as detailed as would be required if he was determining a liability issue prior to referral to an AMS. The Appellant Employer had already conceded liability for the work injury.
The Appellant Employer argues that the Arbitrator failed to take into account or analyse the evidence at paragraphs 15 to 21 of Mr Quor’s statement of 16 June 2004, the note under the Deniliquin Chiropractic Centre letterhead dated 5 April 2004 or the histories to Dr Isbister and Dr Matheson. The Arbitrator did refer to Mr Quor’s evidence of tingling in his legs (Reasons, paragraph 13) but made no reference to Mr Quor’s bowel and bladder symptoms. He also referred to the evidence from Dr Isbister (Reasons, paragraph 15) and Dr Matheson (Reasons, paragraph 16). He expressly referred to the history Dr Isbister took of Mr Quor’s back deteriorating with jarring and of his developing symptoms in his legs
The Arbitrator did not refer to the note of 5 April 2004 and did not refer to all of Mr Quor’s evidence in his statement of 16 June 2004.
The Arbitrator then expressed his conclusions at paragraphs 21 and 22 of his Reasons (see [39] above). His reasons expressed clearly and concisely the grounds that led him to his conclusion concerning the dispute. They made it clear the essential ground for his conclusion, namely, none of the medical material before him made a diagnosis of further or separate injury on either 29 or 31 March 2004. It is not necessary for an Arbitrator to refer to every piece of evidence. It is clear that the Arbitrator did have regard to the salient features of the evidence and that he properly identified the basis for his decision. I am not satisfied that the Arbitrator’s Reasons demonstrate that he failed to exercise his statutory duty to fairly and lawfully determine the application. In a case where no medical evidence supported the Council’s contentions, the Arbitrator did not have to give reasons for preferring one conclusion to another. I do not accept this ground of appeal.
If I am wrong and the Arbitrator’s reasons are inadequate then on a re-determination, I would reach exactly the same conclusion. The Appellant Employer’s argument is not persuasive and is not supported by any cogent evidence. The fact that Mr Quor’s symptoms increased at the end of March 2004 does not establish that he sustained a further injury at that time. Mr Quor’s statements of 16 June 2004 and 5 April 2004 do not, without more, establish injury in circumstances where he was already working on light duties because of a low back injury. The CT scans of 19 March 2004 and 8 June 2004 are very significant. They are in identical terms: both refer to bulging at L5/S1. This evidence is strongly suggestive that Mr Quor did no further damage to his back on 29 or 31 March 2004. On the available evidence, I am not satisfied that Mr Quor injured his back on 29 or 31 March 2004.
Irrelevant Criteria
The Arbitrator held at paragraph 23 of his Reasons:
“23.Even if there was further injury as argued by the Respondent it does not follow that the medical assessment certificate is incorrect. The AMS was required to certify the impairment that results from the injury. The test to be applied was described in Kooragang Cement Pty Ltd v Bates (1994) 10 NSWCCR 796 as a common sense test applying the words of the statute. Any further injury suffered in March 2004 could only be by way of aggravation of the initial injury. Seen that way the need for the surgery still results from the original injury. For an example see the facts in Kempsey District Hospital v Thackham (1995) 36 NSWLR 492. It does not matter that the surgery could also be said to have resulted from any subsequent injury. As was explained by Justice Clarke in Sutherland Shire Council v Baltica General Insurance Co (1996) 12 NSWCCR 716 a single incapacity or impairment can result from more than one injury. In the case of each injury, however, the impairment has resulted from the injury.”
The Appellant Employer argues that the Arbitrator “had no jurisdiction to conclude that the impairment had resulted only from the first injury on 23 February 2004” (Appellant Employer’s submissions 2 October 2007, page seven).
I do not accept this submission. The Arbitrator stated, as an alternative to his main finding of no further injury, that even if Mr Quor sustained a further injury on 29 and/or 31 March 2004, it did not follow that the MAC was incorrect. He was entitled to express that view as an alternative basis for refusing the order sought by the Appellant Employer.
The argument that the AMS had not been given the opportunity to express his view on whether some of the permanent impairment he assessed had resulted from one or both of the subsequent injuries on 29 and/or 31 March 2004 depends on the acceptance of an unproven assumption, namely, that Mr Quor suffered an injury or injuries on 29 and/or 31 March 2004. The Arbitrator was not satisfied that Mr Quor sustained an injury on either 29 or 31 March 2004 and I am firmly of the view that his conclusion discloses no error. I agree with it.
I reject the submission that the Arbitrator usurped the role of the AMS and came to his own conclusion as to whether permanent impairment may have resulted from more than one injury. Again, this submission is misguided. It assumes that Mr Quor did sustain a further injury or injuries on 29 and/or 31 March 2004. That assumption is not warranted and is contrary to the Arbitrator’s factual finding, which is confirmed on appeal.
Further, issues of “injury” are for the Commission to determine, not an AMS (see Connor v Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2006] NSWWCCPD 124; Issott v North Sydney Leagues Club Ltd t/as Seagulls Club [2005] NSWWCCPD 38; Total Steel of Australia Pty Ltd v Waretini [2007] NSWWCCPD 33, and Ooi v NEC Business Solutions Limited [2006] NSWWCCPD 1).
The Appellant Employer has to establish that there is some basis for relief under section 329. The circumstances in which such relief will be granted are not set out in the 1998 Act, but were discussed in Target Australia Pty Ltd v Mansour [2006] NSWWCCPD 286 where section 329 was used to require a further medical assessment by an AMS in circumstances where an injustice had resulted because the worker had been denied procedural fairness.
In Read v Liverpool City Council & anor [2007] NSWSC 320 (‘Read’) Associate Justice Malpass stated at [27]:
“…it may be that s329 was intended to provide a remedy in cases where no grounds of appeal can be made out but the dictates of justice require a further referral for assessment.”
I agree with this statement of general principle. The precise circumstances in which a further medical assessment will be ordered under section 329(1)(b) cannot be the subject of any general guideline but will depend on the circumstances of each matter. The Commission will always be guided by the objectives set out in section 367 of the 1998 Act. Subsection (1)(a) of section 367 includes the objective to “provide a fair and cost effective system for the resolution of disputes under the Workers Compensation Acts”.
I can see nothing unfair about the conduct of the present proceedings. The Appellant Employer was given every opportunity to dispute liability when it filed its Reply. It did not do so. As a result, the matter was referred to an AMS for assessment of the impairment resulting from the injury on 23 February 2004. He did that. Neither party has lodged an appeal under section 327 of the 1998 Act. There is no valid reason for requiring a further medical assessment. The “dictates of justice” do not require it. The Appellant Employer was not denied procedural fairness and has suffered no prejudice. It was given an opportunity to present its evidence to the AMS and did so. The AMS took that evidence into account in preparing the MAC and referred to it at page seven.
The Appellant Employer submits that the decisions of Kooragang, Thackham and Sutherland Shire Council v Baltica General Insurance Co (1996) 12 NSWCCR 716 (‘Baltica’) are irrelevant and were incorrectly factored into the exercise of the Arbitrator’s discretion under section 329 of the 1998 Act. I do not accept this submission. The Arbitrator merely referred to these authorities in the alternative, on the assumption (contrary to his clear finding) that Mr Quor did sustain further injury on 29 and/or 31 March 2004. The Arbitrator may or may not have been correct in his reference to Baltica, but it is not something that is necessary for me to determine in order to dispose of the appeal. The issue of apportionment does not arise, as there is only one injury and one employer.
The Commission’s Power to Draw Conclusions About a Worker’s Medical Condition
The Arbitrator’s reference to Edmonds (see [39] above) was in the context of the absence of “medical material” (Reasons, paragraph 21) making a diagnosis of further or separate injury on either 29 or 31 March 2004. In Edmonds, McColl JA stated at [130] and [131] (Giles and Tobias JJA agreeing):
“130. 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.’
131. This statement is apposite in the context of Commission hearings, and, indeed, is implicitly recognised in r 70 [see now Part 15 Rule 15.2 of the Workers Compensation Commission Rules 2006]. 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 Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42; (2005) 2 DDCR 271 (‘Hevi Lift’) her Honour said at [82] (Mason P and Beasley JA agreeing):
“82. Members of specialised tribunals such as the Compensation Court are entitled to rely upon general knowledge acquired in that capacity in certain circumstances: see ICI Australia Operations Pty Limited v WorkCover Authority of New South Wales [2004] NSWCA 55; (2004) 60 NSWLR 18 at [219] - [232]. However in my opinion the primary judge was not entitled to rely upon general knowledge of back impairments derived from his experience in the Compensation Court to infer how, in the absence of any identified factual basis, Doctor Selby Brown formed his opinion so as to conclude the Makita test was satisfied.”
In Kennedy, the worker injured his back in 1979 and underwent a spinal fusion as a result of that injury. Thereafter he experienced pain in his back and was partially incapacitated for work. While at work in 1987 he drove a vehicle over some deep wheel ruts, which caused a significant increase in pain causing him to cease work. The Court accepted that for there to be an “injury” within section 22 of the 1987 Act there must be something of the nature of a physiological change produced by trauma. An issue arose as to whether a judge of the Compensation Court of NSW could infer, without the assistance of expert medical evidence, that the worker had sustained a new “injury” merely from the increase in pain. Mahoney JA (Kirby P and Meagher JA agreeing) held at 489:
“In a context such as the present, it is in my opinion not necessary that the judge have a medical opinion to support his inference that there was such a separate injury…
To an extent, a specialised tribunal may be accepted as having, from what has been frequently proved before it or otherwise, special knowledge in this regard. The Compensation Court had in some respects been seen as having experience enabling it to draw inferences from facts which an ordinary tribunal may not:…These references are not limited to matters of pay, awards and the like. The Compensation Court may accept for its judicial knowledge that, in the case of a worker with such a work injury, what happened in 1987 was apt to disturb the physiology of his back.
…It was open to the Judge to infer that the increased pain come, not merely from the GIO injury [in 1979] and as an exacerbation of the pain produced by it, but from something which, within the Act, constituted another and distinct physiological change.” (emphasis added)
After reviewing the medical evidence his Honour added at 491:
“In these circumstances, and upon the basis of the medical opinions expressed, Egan CCJ could, in my opinion, draw the inference that the possibility to which Dr Marnie referred was what happened: he could conclude that ‘one of his injuries since the operation’, as the doctor described them, in particular what happened in 1987, had produced a fracture of the graft or otherwise such a condition as to constitute an injury for this purpose.” (emphasis added)
In Hevi Lift, the worker suffered extreme pain in his back after getting up from a couch in staff quarters in which he resided for the purpose of carrying out his employment. An MRI revealed a central prolapsed disc at L4/5 requiring surgery. Because the worker was on 24-hour call at the time of the injury, it was accepted that the injury occurred in the course of his employment. The trial judge relied on the medical evidence, his common sense and the sequence of events to find that employment was a substantial contributing factor to the injury. The medical evidence included an opinion from a specialist that the worker’s employment had been “a significant contributing factor to his present condition”. The doctor did not state any factual basis for his opinion or identify an aspect of Mr Etherington’s employment that could have contributed to the injury. On appeal, it was held that the doctor’s opinion was no more than a “bare ipse dixit” that carried no weight and the trial judge was in error in using his knowledge and expertise gained as a judge of the Compensation Court to infer that employment was a substantial contributing factor to the injury.
In Edmonds, the Court of Appeal confirmed the “desirability of expert reports conforming as far as possible to common law standards of admissibility designed to ensure they have probative value”. As a result, medical opinions that amount to no more than a “bare ipse dixit” carry little or no weight.
In the present matter, there is no medical evidence to support the proposition that Mr Quor sustained an injury on either 29 or 31 March 2004. In that sense the question is different to the one that arose in Hevi Lift and Edmonds. However, it would be incongruous if it were permissible for a Commission Arbitrator to use his or her expertise to conclude, in the absence of expert evidence, that a worker had sustained a work injury in circumstances where it would have been impermissible for an expert witness to support such a claim with a bare ipse dixit. If an unexplained opinion from a medical expert is insufficient, then surely no opinion at all carries even less weight.
Whilst there appears to me to be a potential tension between the authority of Kennedy and the more recent decisions of Hevi Lift and Edmonds, it is neither appropriate nor necessary for me to attempt to resolve that tension because, on any view of the authorities, the evidence in the present matter falls well short of establishing that Mr Quor sustained a further injury to his back on either 29 or 31 March 2004. Evidence before the Commission must be “logical and probative” and “unqualified opinions are unacceptable” (Part 15 Rule 15.2 of the Workers Compensation Commission Rules 2006). The bare assertion that Mr Quor experienced an increase in symptoms does not, without properly qualified and explained expert medical evidence, support a conclusion that he sustained an injury within the meaning of section 4 of the 1987 Act.
The Arbitrator made no error in not using his knowledge gained as a member of a specialist tribunal to infer that Mr Quor sustained an injury on 29 or 31 March 2004. Such an inference was not reasonably open on the evidence.
Section 67 Compensation
Whilst the Arbitrator referred to the section 67 application at T1.25, neither party made submissions on that part of the claim. The hearing before the Arbitrator focused exclusively on the Appellant Employer’s section 329 application. The Commission is bound to comply with rules of procedural fairness and natural justice (Edmonds at [91]). Parties are entitled to the opportunity to deal with matters adverse to their interests (Muin v Refugee Tribunal [2002] HCA 30 at [123]). In the context of the present matter, the parties were entitled to be heard on the quantum of compensation payable to Mr Quor for pain and suffering under section 67 of the 1987 Act. That did not happen and the Arbitrator was in error in failing to afford the parties the opportunity to make submissions on that issue.
Unfortunately the parties have not made any submissions on appeal on this issue and it is therefore not possible for me to re-determine this part of the claim. Regrettably, this issue must be remitted to a different Arbitrator for re-determination.
Exercise of Discretion
The Appellant Employer submits that the “dictates of justice” require a further referral for assessment under section 329(1)(b) of the 1998 Act and that there are no compelling or countervailing reasons why the discretion should not be exercised to refer the matter for a further assessment. I do not accept this submission. The AMS was requested to assess Mr Quor’s whole person impairment as a result of the injury on 23 February 2004. He did that. For the reasons set out above, I do not accept that any further “injury” within the meaning of the 1987 Act occurred on 29 or 31 March 2004. There is no justification for requiring a further referral. Such a referral would result in a further unnecessary delay in the resolution of the matter, which is unwarranted and unacceptable.
DECISION
Paragraphs one, two and four of the Arbitrator’s determination of 26 September 2007 are confirmed.
Paragraph three of the Arbitrator’s determination of 26 September 2007 is revoked and the assessment of the Respondent Worker’s entitlement to compensation under section 67 of the Workers Compensation Act 1987 Act is remitted to a different Arbitrator for re-determination.
COSTS
The Appellant Employer has failed on its main ground of appeal. In these circumstances the proper order is that it must pay the Respondent Worker’s cost of the appeal and that is the order I make.
Bill Roche
Deputy President
14 December 2007
I, TUYET WALLIS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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