Connelly v Toll Pty Limited
[2009] NSWWCCPD 142
•4 November 2009
| WORKERS COMPENSATION COMMISSION | ||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||||
| CITATION: | Connelly v Toll Pty Limited [2009] NSWWCCPD 142 | |||||
| APPELLANT: | Graham Connelly | |||||
| RESPONDENT: | Toll Pty Limited | |||||
| INSURER: | Self Insurer | |||||
| FILE NUMBER: | A1-1926/09 | |||||
| ARBITRATOR: | Ms M Dalley | |||||
| DATE OF ARBITRATOR’S DECISION: | 3 June 2009 | |||||
| DATE OF APPEAL DECISION: | 4 November 2009 | |||||
| SUBJECT MATTER OF DECISION: | Section 151A Workers Compensation Act 1987 | |||||
| PRESIDENTIAL MEMBER: | Deputy President Kevin O’Grady | |||||
| HEARING: | 27 October 2009 | |||||
| REPRESENTATION: | Appellant: | Maurice Blackburn Lawyers | ||||
| Respondent: | Lucas & Staggs | |||||
| ORDERS MADE ON APPEAL: | The decision of the Arbitrator dated 3 June 2009 is revoked and the following decision is made in its place:. | |||||
| “1. The assessment of the claim under section 66 of the Workers Compensation Act 1987 in respect of left upper extremity (left shoulder) impairment is remitted to the Registrar for referral to an Approved Medical Specialist. | ||||||
| 2. The respondent is to pay the applicant’s costs as agreed or assessed.” | ||||||
| The respondent is to pay the appellant’s costs of this appeal. | ||||||
BACKGROUND TO THE APPEAL
Graham Connelly (‘the appellant’) commenced employment with Toll Pty Ltd (‘the respondent’) as a truck driver in 1999. He remained in that employment until 14 July 2005 at which time he received notice of termination from his employer. In the course of his work he received injury to his left shoulder on four separate occasions being 24 November 2003, 10 December 2003, 27 January 2005 and10 June 2005.
On 23 November 2006 the appellant instituted proceedings in the Supreme Court of the Australian Capital Territory against his employer as defendant. It was alleged in that statement of claim that, as a result of the negligence of his employer on 27 January 2005, he had suffered injury, loss and damage and a claim was made in respect of damages together with interest. A defence was filed in response to that statement of claim on behalf of the respondent.
Those proceedings, being matter number 891 of 2006 (‘the common law proceedings’), were settled by consent and a general form of consent judgment was filed with the Supreme Court registry on 10 October 2007. The appellant on 6 June 2008 claimed lump sums pursuant to the provisions of the Workers Compensation Act 1987 (‘the 1987 Act’) in respect of three injuries occurring on 24 November 2003, 10 December 2003 and 10 June 2005. The “body system affected by the injury” was particularised in the form as being “left upper limb”. The claim was for 8 per cent whole person impairment (‘WPI’).
The claim for lump sums was declined by the respondent and on 10 November 2008 a notice prepared pursuant to section 74 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) was forwarded to the appellant. Reference was made in that notice to the provisions of section 151A(1) of the 1987 Act. It was asserted by the respondent that the appellant had “received compensation (sic)” in respect of left shoulder injury and that he was “precluded from recovering additional compensation for that same injury”.
An ‘Application to Resolve a Dispute’ (‘Application’) was registered with the Workers Compensation Commission (‘the Commission’) on 13 March 2009. The dispute between the parties came before an arbitrator for conciliation/arbitration on 18 May 2009. The Arbitrator reserved her decision and a Certificate of Determination issued on 3 June 2009. The Arbitrator’s determination made findings in favour of the respondent and a Statement of Reasons (‘Reasons’) accompanied the issue of that certificate.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 3 June 2009 records the Arbitrator’s order as follows:
“The Commission determines:
1.That there be an award for the respondent in respect of the applicant’s claim for compensation for the injuries to the left upper extremity on the 24 November 2003 and 10 December 2003 and the 10 June 2005.
A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”
ISSUES IN DISPUTE
The issue in dispute in the appeal is whether the Arbitrator erred in determining that, having regard to the provisions of section 151A of the 1987 Act and its application to the facts, the appellant was debarred from recovering lump sum compensation in respect of the injuries alleged in the Application.
PRELIMINARY MATTERS
The proceedings conducted before the Arbitrator were recorded and a transcript of that recording has been produced (‘transcript’). Copies of that transcript were provided to the parties following which the Commission’s attention was drawn to the fact that the transcript was incomplete. Following enquiries it was established that, by reason of a technical fault, a part of the submissions put on behalf of the appellant by his solicitor had not been recorded.
The appellant submitted on this appeal that the Arbitrator had failed to address certain arguments raised on his behalf during the course of submissions. In the circumstances a direction was addressed by the Commission to the parties appointing a date for hearing of the appeal. That direction invited the parties to attempt agreement as to those matters which had occurred at the hearing before the Arbitrator but which were not recorded, and the parties were each invited to make any supplementary submissions they considered appropriate on the hearing of the appeal.
That hearing took place on 27 October 2009 at which time both parties were represented by counsel. Mr Campbell, counsel for the appellant, who had not appeared earlier before the Arbitrator, made it clear that his client did not wish to reiterate those submissions which, it was earlier suggested, had not been recorded nor addressed by the Arbitrator in the course of her Reasons. That course had been adopted following counsel’s examination of the evidence and the Arbitrator’s Reasons. It was counsel’s wish to put further argument as to “…other authorities of some other principles of law.” Following discussion at the hearing each party was afforded an opportunity to put supplementary submissions, detail of which appears below.
The respondent furnished written submissions at the hearing which specifically addressed the issue of the absence of a complete transcript. Those written submissions were supplemented by oral argument relating to the construction and proper application of the provision of section 151A of the 1987 Act. Neither party submitted at the hearing that any prejudice had been occasioned by reason of the incomplete state of the transcript. It is to be noted that the appellant did not press those matters of complaint concerning the state of the transcript and the Arbitrator’s manner of addressing argument raised before her.
Having regard to the absence of any suggestion that either party is prejudiced by reason of the state of the transcript, together with the fact that the Commission has the advantage of those oral and written submissions put on behalf of each party prior to and at the hearing of the appeal, I consider that a just determination of the dispute between the parties may be attained notwithstanding the deficiency found in the transcript.
LEAVE
There is no dispute between the parties concerning threshold requirements as prescribed by section 352 of the 1998 Act.
The appeal having been lodged within the time prescribed by that section and the fact that the monetary threshold prescribed by that section has been met, together with a consideration of the arguments raised on appeal, lead me to conclude that it is appropriate that leave be granted to proceed with the appeal and I so order.
EVIDENCE
The evidence before the Arbitrator, as is noted at [8] of Reasons, was documentary in its totality.
There is no dispute concerning the occurrence of the injuries noted at [1] above. Other factual matters which are not in dispute may be summarised as follows:
(i) the appellant, by reason of left shoulder disability, has undergone three surgical procedures which may be summarised as follows:
(a)16 June 2004 the appellant under went surgery at the hands of Dr Geoffrey Stubbs, orthopaedic surgeon at Calvary Private Hospital. That procedure was described as being “labral stabilisation” and a report of Dr Stubbs dated 17 June 2004 noted that:
“Mr Connelly presents with impingement syndrome which is due to a superior labral detachment.”
(b) 16 March 2005 the appellant underwent what is described as “EUA, arthroscopy” at the hands of Dr Stubbs at Calvary Private Hospital. A report of Dr Stubbs of that date states as follows:
“Mr Connelly had previous repair of SLAP tear to his left shoulder and the misfortune to injury [sic] the arm again when he fell from his truck before (sic) Christmas.
……
It appears likely that the repair has failed in the recent fall although the impression is of continuing instability in the shoulder which might still be amenable to a functional rehab programme.”
(c)26 October 2005 the appellant underwent a surgical procedure at the hands of Dr Katherine Gordiev, orthopaedic surgeon, the procedure being “SLAP repair left shoulder”. That procedure was described by Dr Gordiev in a report dated 26 October 2005. Dr Gordiev’s observations concerning the state of the appellant’s shoulder joint included:
“There was also a distinct SLAP lesion noted between the 11 o’clock and 2 o’clock position. This was a Type II SLAP and was freely mobile. The intra-articular portion of the biceps tendon was inspected; there was some injection of the more proximal biceps but no intra-tendinous lamination was visible.”
(ii) On 23 November 2006 the appellant commenced proceedings against the respondent by issue of a statement of claim seeking damages. The cause of action being one in negligence. The appellant’s allegation was that on 27 January 2005 he suffered damage by reason of that negligence when he wrenched his left shoulder alighting from his work vehicle, which wrenching was caused by the defective condition of a step;
(iii) On 19 February 2007 a defence (to the damages action) was filed on behalf of the respondent.
(iv) 10 October 2007 the common law proceedings commenced by the appellant were the subject of settlement by agreement and a general form of consent judgment was filed. That document made provision for an order by consent in the following terms:
“1.Judgment be entered for the plaintiff for $200,000.00 inclusive of costs and clear of workers compensation payments made by the defendant before 22 August 2007, in respect of the injury the subject of these proceedings.”
(v) The subsequent claim in respect of lump sum compensation noted at [3] above was declined. Denial of the claim was made, in part, having regard to the fact of settlement of the common law proceedings, the payment of damages and the provisions of section 151A (1) of the 1987 Act.
The appellant relied upon a report of Dr Richard A Evans, specialist surgeon, dated 20 February 2008. That report was forwarded to the respondent together with the notice of claim made against the respondent concerning lump sum entitlement. That report confirms the history of injury as has earlier been summarised. Detail of the surgery the appellant has undergone is to be found in that report. Dr Evans included in his report an assessment of the appellant’s whole person impairment following examination and expressed the view that the “disability” assessed was “…due in equal part” to the four injuries sustained by the appellant in the course of his employment.
There was a report in evidence by Dr Anthony Smith, orthopaedic surgeon dated 30 May 2005 addressed to the respondent. It is to be noted that Dr Smith’s report predates the fourth injury received by the appellant in the course of his work. It also precedes the surgical intervention by Dr Gordiev. Dr Smith’s report addresses the question of diagnosis and doubt is expressed that the “…SLAP lesion he was treated for is responsible for his symptoms.” In support of that proposition Dr Smith makes reference to a number of academic reports and studies. Dr Smith accepts that there is evidence of a degenerative process affecting the supraspinatus tendon and that the appellant’s symptoms “…emanate from an aggravation” of that degenerative process. Dr Smith accepts that the appellant’s work with the respondent up until that time “…would appear to be a substantial contributing factor to his operative intervention.” It appears to be Dr Smith’s opinion that the appellant had suffered an aggravation to his degenerative disease however he expresses doubt concerning the diagnosis of a SLAP lesion of type I.
There were in evidence two reports from Dr John Talbot, consultant orthopaedic surgeon, each addressed to either the respondent or its solicitors. The first of those reports is dated 26 May 2005 and the second is dated 16 December 2005. Dr Talbot took a history of the relevant injuries and treatment. In the earlier report Dr Talbot expressed the view that the injury sustained in January 2005 “…was an aggravation of the 24 November 2003” injury. Dr Talbot expressed the view that the effect of that aggravation was unlikely to cease and further that the aggravation has had a permanent effect. The latter report includes an expression of opinion as to diagnosis being “…a recurrent labral tear of the left shoulder which has been surgically repaired again on 26 October 2005.”
Both the appellant and the respondent tendered copies of the common law pleadings. Particulars of negligence specified, in part:
“…(d) knowing the Plaintiff already to have suffered from an injury to his left shoulder, assigning him to the truck where the truck step was missing and when the defendant knew or ought to have known that the Plaintiff could suffer further injury to his shoulder were he to exit the truck, expecting the missing step to be present.”
Particulars of injury included:
“…(b) Recurrent detachment of the anterior/superior labrum and biceps anchor.”
The appellant’s economic loss claim in those proceedings makes reference to injury in December of 2003 and the surgery in June 2004. It was alleged that he was “progressing well” and “expected to return to his position as a long haul truck driver in early 2005.” The further allegation was made that following the surgery required in October 2005, he will “…never return to the work of a long haul truck driver” and that there is “… a very real prospect that (he) will not be able to continue in his current work ( by reason of the shoulder condition).”
SUBMISSIONS
Submissions before the Arbitrator
Submissions made by the appellant at the hearing before the Arbitrator were not pressed on appeal and require no attention.
It was submitted on behalf of the respondent before the Arbitrator that, having regard to the provisions of section 151A(1)(a) of the 1987 Act the appellant, upon recovery of damages following settlement of the common law proceedings, ceased to be entitled to any further compensation under the Acts. That argument was founded upon the proposition that the term “injury” as it appears in that subsection was “…an injury to his left shoulder” (transcript page 5). It was put in argument that the condition of the appellant’s left shoulder joint was the product of the cumulative effect of the various injuries sustained by the appellant in the course of his employment.
It was acknowledged by the respondent that the cause of action was founded upon the circumstances of injury which occurred on 27 January 2005. Reference was made in the course of submissions to the manner in which the alleged negligence of the respondent was particularised in the pleadings. Emphasis was placed upon the fact that those particulars made reference to “…a recurrent detachment of the anterior/superior labrum and biceps anchor”. The thrust of this argument was that the damages sought in those proceedings had been particularised as being in respect of injury and disability received both before and after 27 January 2005.
The respondent’s submissions before the Arbitrator included reference to the manner in which the appellant’s economic loss had been particularised and claimed in the common law proceedings. It was put (at page 8 of transcript):
“…when one looks at the way in which it has been pleaded, the identification of the injuries relied upon, we would say that any workers’ compensation rights that he did have as a consequence of the injury to his left shoulder have been consumed by the judgment of October.”
The transcript reveals that the Arbitrator (at transcript page 10) invited the parties to address her as to the meaning of the word “injury” as it appears in section 151A(1). There followed considerable discussion between the Arbitrator and the appellant’s solicitor. The appellant argued that the correct construction of the word injury is that the word is to be taken as denoting an “injurious event”.
The transcript reveals that discussion continued between the Arbitrator and counsel appearing on behalf of the respondent. It was argued in the course of discussion that, having regard to the manner in which the common law action had been particularised, that is that damages were to be assessed having regard to all relevant injuries to the shoulder and the consequences of same, “injury” as it appears in section 151A(1) should be taken to mean “pathology”. Reliance was later placed upon the decision of the former Compensation Court in Lyons v Master Builders Association of NSW Pty Ltd (2003) 25 NSWCCR 422 (‘Lyons’) and the decision of the Commission in Department of Juvenile Justice v Edmed [2008] NSWWCCPD 6 (‘Edmed’). It was argued that the approach taken in those cases is appropriate in the present case and that the word “injury” is to be taken to mean, in the context of section 151A(1), “pathology”.
It was put on behalf of the respondent that acceptance by the Commission that the term “injury” meant “pathology” would lead to the conclusion that, by reason of the provisions of section 151A(1)(a), the appellant upon recovery of damages ceases to be entitled to any further compensation pursuant to the Acts in respect of all four injuries.
Submissions on this appeal
Written submissions
The appellant complains of error on the part of the Arbitrator in determining that application of section 151A of the 1987 Act has the effect of extinguishing the appellant’s right to recover lump sum compensation in respect of the injuries particularised in the Application. Attention is drawn to the terms of the relevant provision and argument is advanced that the Arbitrator failed to have “adequate regard” to the words “the subject injury” which appeared in the general form of consent judgment (‘Term 1’). The “injury the subject of these proceedings” may be identified, it was impliedly argued, by reference to the statement of claim where, at paragraph 3, the date 27 January 2005 is nominated as being the occasion on which injury was caused by reason of the employer’s negligence. It is again impliedly argued that application of the provisions of section 151A would have the effect of extinguishing any rights to compensation benefits only in respect of the injury occurring on that date once damages had been recovered by the appellant.
Emphasis is placed upon the history of injury as involving “4 distinct injuries”. It is put that the Arbitrator’s finding that the same pathology resulted from each of the four injuries contradicted other findings made in the course of her reasons.
The appellant argues that the Arbitrator’s reliance upon the decision in Fraser v The Irish Restaurant and Bar Company Pty Ltd [2008] QCA 270 has led her into error given that the wordage of legislation considered in that authority may be distinguished from that which appears in section 151A.
The appellant further argues that the Arbitrator’s reference to the provisions of section 322(2) of the 1998 Act, and in particular the Commission’s earlier approach to the construction of the word “injury” in that section, led her into error when construing the provisions of section 151A.
The respondent argued that there was “no distinction between the pathology arising from each of the four incidents” and that the term “injury” in respect of which the appellant had recovered damages should be taken as “the pathology in the left shoulder which commenced in 2003 and was aggravated by a subsequent aggravation and reoccurred in January 2005”.
It was further argued that the Arbitrator’s reliance upon the decision in Edmed permitted her finding that “…There could be no distinction between the pathology arising from each of the four incidents and therefore that ‘injury’ was, on the facts of the case, best described as the pathology in the left shoulder which commenced in 2003.”
The respondent asserts that the Arbitrator’s consideration of the provisions of section 322(2) of the 1998 Act demonstrated no error on her part. The operation of that provision led the Arbitrator to consider the medical evidence to determine the nature of the relevant pathology and it is asserted that “…the Arbitrator made proper findings of fact in accordance with the medical evidence”.
Submissions on Hearing
Counsel appearing on behalf of the appellant submitted that the Arbitrator’s findings concerning the extinguishment of rights to compensation benefits in respect of “… incidents which didn’t form part of the common law proceeding” was a finding that went against well established legal principles. Reference was made to a number of authorities and argument was advanced seeking to distinguish the present matter from those of Edmed and Madden v Kingston Industries [2005] NSWCA 440 (‘Madden’). It was argued that Edmed and Madden concerned construction of a provision in the legislation relevant to determination as to whether relevant thresholds had been attained thereby permitting recovery of certain entitlements. It was put that “…threshold issues are not the question in point in this case.” It was further argued that the principles which may be derived from Edmed “… are not the principles that relate to section 151A.”
The appellant’s counsel sought to emphasise the fact that in the common law proceedings no reference in the pleadings was made to any of the four injuries other than that which occurred on 27 January 2005. It was put:
“You can’t have damages following from something that is not pleaded. In other words, the settlement could never have been for injuries as a result of the 2003 incidents because they were never pleaded. If the case had run and the worker had tried to get, for instance, damages for the operation as a result of a (sic) 2003 incident, he would have failed on that because it wasn’t pleaded…”
Reliance was placed by the appellant’s counsel upon the commentary to be found in Mills Workers Compensation New South Wales at page 4894. That commentary includes consideration of authorities which address the meaning of “injury” as it appeared in the former section 151B(1) of the 1987 Act. That last mentioned subsection is in terms similar to the present section 151A(1). Particular reliance was placed upon the decision of the Court of Appeal in Vanramer Pty Ltd v Higgins (1991) 24 NSWLR 661 (‘Vanramer’) and reference was made to the decision in Kempsey District Hospital v Thackham (1995) 36 NSWLR 492 (‘Thackham’).
On behalf of the respondent, counsel argued that, having regard to the passage of the 1998 Act and the approach taken in the authorities since to the construction of the word “injury”, the earlier authorities are of no assistance. It was put that, “The concept of injury is an entirely different concept than it was in the time of Vanramer and Thackham.” Reference had earlier been made to the decision in Edmed in which matter the term “injury” was said to refer to both the injurious event and pathology arising from it. Reference was made to the manner in which the common law action had been particularised in support of the argument that the damages received were in respect of the pathology in the appellant’s shoulder, which pathology was the result of the combined effects of the four injuries received.
DISCUSSION AND FINDINGS
The provision at the centre of the appeal, relevantly, provides:
“151A Effect of recovery of damages on compensation
(1) If a person recovers damages in respect of an injury from the employer liable to pay compensation under this Act then (except to the extent that subsection (2), (3) or (4) covers the case):
(a)the person ceases to be entitled to any further compensation under this Act in respect of the injury concerned (including compensation claimed but not yet paid), and
(b)the amount of any weekly payments of compensation already paid in respect of the injury concerned is to be deducted from the damages (awarded or otherwise paid as a lump sum) and is to be paid to the person who paid the compensation, and
(c)the person ceases to be entitled to participate in any injury management program provided for under this Act or the 1998 Act.
(2) If damages in respect of an injury are recovered from the employer liable to pay compensation under this Act, pursuant to a cause of action that survives for the benefit of the estate of a deceased worker under the Law Reform (Miscellaneous Provisions) Act 1944 , the following amounts of compensation are to be repaid out of the estate of the deceased worker to the person who paid the compensation:
(a)the amount of any weekly payments of compensation already paid in respect of the injury concerned,
(b)the amount of any permanent impairment compensation and pain and suffering compensation already paid in respect of the injury concerned.
….”
The Arbitrator commenced her analysis of the section with consideration of the meaning of the phrase “with respect to”. That phrase does not appear in section 151A(1). It is unnecessary in my view to address the existence and relevance of any error with respect to that part of her reasoning given my views concerning the Arbitrator’s approach to the question as to the proper construction of the word “injury” as it appears in the section.
At [23] of Reasons the Arbitrator summarised the respondent’s argument concerning the meaning of the word “injury” as follows:
“The respondent submitted that the “injury” for which damages were paid in the consent judgment was the pathology to Mr Connelly’s shoulder arising from all the incidents of injury and not just a specific events [sic] or one of a series of frank injuries. Can injury mean this in the workers compensation legislation? The meaning of “injury” is not specifically defined in Part 5 Division 1 of the 1987 Act in which section 151A is found. “Injury” is defined in section 4 of the 1987 Act but this definition does not add anything relevant to the question here. “Injury” has however, elsewhere in the Workers Compensation legislation, been said to be capable of meaning either an “injurious event” or to refer to the “pathology” resulting from an injurious event or series of injurious events.”
The Arbitrator proceeded to make reference to the provisions of section 322(2) of the 1998 Act and addressed the decision of Roche DP in Edmed. That section, which regulates the recovery of lump sums which result from work injury, was considered by the Commission in Edmed in the context of there being a claim for a lump sum entitlement pursuant to section 67 of the 1987 Act founded upon the aggregation of suggested relevant impairment resulting from multiple injuries. It became necessary in the course of determining the workers rights in Edmed to consider the meaning of the word ‘injury’ as it appears in section 322. In the course of his reasoning Roche DP made reference to the decision of Neilson J in Lyons in which matter his Honour observed “…the word ‘injury’ refers to both the event and the pathology arising from it. It is often necessary to draw the distinction. The act makes the receipt of injury compensable, not the injury itself.”
Roche DP in Edmed proceeded to consider the definition of “injury” as appears in section 4 of the 1987 Act and noted as follows (at [26] and [27]):
“26. This definition is unhelpful in determining the issue before me. In Lyons, Judge Neilson held that ‘injury’ refers to ‘both the [injurious] event and the pathology arising from it’. I accept that definition as being appropriate for many purposes under the 1987 Act and the 1998 Act. That the term ‘injury’ can have two different meanings is acknowledged in section 322(3) of the 1998 Act where reference is made to ‘Impairments that result from more than one injury arising out of the same incident…’ (emphasis added). This reference to ‘injury’ can only mean the ‘pathology’ that has resulted from the relevant work ‘incident’ or injurious event. For example, if a worker falls and suffers a broken leg and separate and distinct nerve damage in the arm, he or she has suffered more than one ‘injury’ (an injured leg and an injured arm) within the terms of section 322(3) resulting from the one ‘incident’. In other words, he or she has suffered more than one pathology (‘injury’) as a result of the one incident or injurious event. Those ‘injuries’ are to be assessed together. This interpretation is consistent with section 65(2) of the 1987 Act and is uncontroversial.
27. The difficulty arises when a worker suffers one pathology (‘injury’) as a result of several independent ‘incidents’ or injurious events. This situation is partly addressed in section 322(2), which provides that ‘Impairments that result from the same injury are to be assessed together to assess the degree of permanent impairment of the injured worker’ (emphasis added). The reference to ‘the same injury’ in section 322(2) cannot be a reference to ‘the same incident’ because that situation is dealt with in section 322(3). The expression ‘the same injury’ is not defined but it follows that if ‘injury’ in section 322(3) means ‘pathology’ (as it must), then, for the section to be logically consistent, it must mean the same in section 322(2). If ‘injury’ in section 322(2) means ‘pathology’ then, for section 322(2) to be consistent with section 322(3), impairments resulting from the ‘same injury’ (the same pathology) are to be ‘assessed together’ regardless of whether they arise from the same ‘incident’ or separate incidents.”
I respectfully agree with the reasoning expressed by Roche DP as above quoted. The definition of ‘injury’ as found in section 4 of the 1987 Act does not assist the proper construction of the relevant sub sections. Having regard to the manner in which section 322 is expressed the word “injury” means “pathology” in the context of assessment of impairment.
The Arbitrator, relying upon the reasoning found in Edmed, proceeded to consider the question as to whether the medical evidence established that “…the pathology arising from the four ‘injurious incidents’ is the same” (at [25]). Following a consideration of the medical evidence the Arbitrator concluded that the pathology resulting from each incident was the “same”.
The Arbitrator proceeded to consider the relevance or otherwise of the notation in the general form of consent judgment which made provision for the judgment amount to be clear of workers compensation payments made to a date in August 2007. That provision made on settlement of the common law proceedings, together with the manner in which the appellant had particularised his entitlement to damages, led the Arbitrator to reach the following conclusion (at Reasons [40]):
“I find based on the medical evidence and the specific facts of this case that there is no distinction between the pathology arising from each of the four incidents and therefore find that the “injury” is on the facts of this case best described as the pathology in the left shoulder which commenced in 2003 and was aggravated by the subsequent incident, and re-occurred in January 2005 with a further exacerbation. Whatever the parties intended in the judgment settlement the applicant has in fact been compensated for all the impairments arising from the pathology in his left upper extremity. The injury in January 2005 simply recreated the situation before the surgery in 2004. The worker was compensated for a re-occurring labral detachment or SLAP lesion Therefore damages paid in 2007 must include compensation (sic) for all of the impairments arising from all of the injuries.”
Whilst I agree with the Arbitrator’s conclusion that the pathology resulting from each of the four incidents is identical, I am of the opinion that she has erred in concluding that “…damages paid in 2007 must include compensation for all the impairments arising from all of the injuries.” Leaving aside the Arbitrator’s reference to the term “compensation” rather than “damages” as is found in the provisions of section 151A(1) it is my view that the demonstrated duality of meaning which the word “injury” has in the context of section 322 of the 1998 Act is of no relevance in the present context. It is clear from the manner in which the claim for damages had been particularised that it was intended to treat as relevant each injury suffered before and after the allegedly negligent conduct which occurred on 27 January 2005. There is nothing surprising about such manner of particularisation. The defendant takes the plaintiff as he finds him. Damages in respect of entitlement might, in an appropriate case, take into account vulnerability to future injury or loss by reason of the damage caused by the negligent conduct of the defendant. Any such entitlement must be distinguished from rights the appellant may have to benefits under the Acts. Such rights under the Acts are to be taken into account in the assessment of damages, as occurred in Vanramer.
I have concluded that, on the present facts, section 151A has no application to the injuries, or their consequences, received on 24 November 2003, 10 December 2003 and 10 June 2005. I have reached this view having regard to the decision of the majority in Vanramer. The Court of Appeal was there considering the proper construction and application of the provisions of section 63(1) of the Workers’ Compensation Act 1926 now repealed (‘the 1926 Act’). A worker had suffered two distinct injuries in the course of his employment, firstly in 1981 causing an injury to the right knee in circumstances, it was agreed, where the employer’s negligence had caused such injury. Subsequently the worker, by reason of the weakness in his right knee, had a further injury which caused damage to his left knee. That second injury did not occur in circumstances where it could be said that the employer was negligent hence the worker had no cause of action in respect of the second injury. Following entry of a judgment in the Supreme Court in favour of the worker in proceedings brought with respect to the first injury the employer ceased compensation payments. The Supreme Court, when determining damages, had found that weakness and instability of the right knee which followed the first injury materially contributed to the second injury. A dispute in respect of entitlement to ongoing compensation benefits in respect of the second injury came before the former Compensation Court for determination. The matter came before the Court of Appeal by way of case stated from the Compensation Court.
Whilst the wording of section 63 of the 1926 Act bears no resemblance to the wording of section 151A it may be said that each of those provisions address the same subject matter, that is, each makes provision concerning cessation of entitlement to compensation benefits once damages have been recovered in respect of an injury. The matters of principle raised in Vanramer are pertinent to the present facts.
The majority in Vanramer concluded that the provisions of section 63 of the 1926 Act had no direct application to the second injury and the worker’s rights to compensation in respect of that injury were not barred by its provisions. The assessment of damages in Vamramer had taken into account continuing entitlement to compensation benefits notwithstanding entry of a judgment, and the Court of Appeal confirmed that such an approach was appropriate.
The common law action in the present matter was settled and a consent judgment was entered. In the circumstances it is impossible to identify the manner in which the judgment sum was determined. Guided by the observations made by the Court of Appeal in Vanramer I conclude that section 151A does not operate to bring to an end entitlement to further compensation except in relation to that injury relied upon by the appellant to found his claim at law. That injury is the one which occurred on 27 January 2005 recited in the statement of claim.
The distinction between injurious event and pathology resulting from such event needs to be drawn, as observed by Neilson J in Lyons, in some circumstances when the provisions of the Acts are being considered. That was clearly the case in the matter of Edmed. In the present matter the appellant had secured a judgment against his employer in proceedings where an allegation of negligence had been made only in respect of the injury that occurred in January 2005. That the antecedent injuries and the subsequent injury may be taken into account in determining quantum of damages does not give rise to extinguishment of entitlement to compensation following recovery of damages as claimed. In section 151A the opening words are, “If a person recovers damages in respect of an injury from the employer liable to pay compensation…”. The term “injury” as used there can have but one connotation and that is “injurious event”. On the present facts the subject injurious event is the event of January 2005 and no other. This is, in my view, because on the present facts the appellant has no entitlement to damages other than in respect of the incident which is pleaded in the statement of claim. Such an analysis is, in my opinion, consistent with the reasoning in Vanramer and may be made notwithstanding the significant differences between the wording of the relevant sections of the 1926 and 1987 Acts.
It may be seen that I have reached the conclusion, following a review on the merits, that the Arbitrator has erred in her determination of the dispute between the parties. In the circumstances her determination requires revocation and I am of the view that it is appropriate that the matter be corrected on this review rather than being remitted for further hearing before an arbitrator.
DECISION
The Arbitrator’s determination dated 3 June 2009 is revoked and the following orders made:
“1. The assessment of the claim under section 66 of the Workers Compensation Act 1987 in respect of left upper extremity (left shoulder) impairment is remitted to the Registrar for referral to an approved medical specialist.
2. The respondent is to pay the applicant’s costs as agreed or assessed.”
COSTS
The respondent is to pay the appellant’s costs of this appeal.
Kevin O’Grady
Deputy President
4 November 2009
I, MARIE JOHNS, 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.
ASSOCIATE
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