Country Energy formerly known as Great Southern Energy formerly known as Southern Riverina Electricity formerly known as Southern Riverina County Council v Lang
[2007] NSWWCCPD 174
•9 August 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Country Energy formerly known as Great Southern Energy formerly known as Southern Riverina Electricity formerly known as Southern Riverina County Council v Lang [2007] NSWWCCPD 174
APPELLANT: Country Energy in the interests of Employers Mutual Indemnity Workers Compensation (NSW) Limited
FIRST RESPONDENT: Colin Reginald Lang
SECOND RESPONDENT: Country Energy in the interests of Allianz Australia Workers Compensation (NSW) Limited for period 1 July 1996 to 30 June 2001
THIRD RESPONDENT: Country Energy in the interests of QBE Workers Compensation (NSW) Limited for period 1 July 2001 to 30 June 2005
INSURERS:
1. Allianz Australia Workers Compensation (NSW) Limited for period 1July 1996 to 30 June 2001.
2. QBE Workers Compensation (NSW) Limited for period 1 July 2001 to 30 June 2005.
3. Employers Mutual Indemnity Workers Compensation (NSW) Limited on risk from 1 July 2005.
FILE NUMBER: WCC11658-06
DATE OF ARBITRATOR’S DECISION: 29 November 2006
DATE OF APPEAL DECISION: 9 August 2007
SUBJECT MATTER OF DECISION: Sections 4(b)(i) and (ii), 16 and 22 of the Workers Compensation Act 1987; disease, frank injury and apportionment.
PRESIDENTIAL MEMBER: Acting Deputy President Kevin O’Grady
HEARING:On the papers
REPRESENTATION: Appellant: Rankin Nathan, Lawyers on behalf of Employers Mutual Indemnity Workers Compensation (NSW) Limited.
First Respondent: White Barnes.
Second Respondent: Sparke Helmore, Lawyers on behalf of Allianz Australia Workers Compensation (NSW) Limited (responding to appeal by Employers Mutual Indemnity Workers Compensation (NSW) Limited).
Third Respondent: Moray & Agnew, Solicitors on behalf of QBE Workers Compensation (NSW) Limited (responding to appeal by Employers Mutual Indemnity Workers Compensation (NSW) Limited).
ORDERS MADE ON APPEAL: 1. Paragraph 4 of the decision of the Arbitrator, dated 29/11/06 is revoked.
2. Paragraphs 1, 2, 3 and 5 of the decision of the Arbitrator dated 29/11/06 are confirmed.
3. Appellant is to pay Worker’s costs of this appeal.
BACKGROUND TO THE APPEAL
On 22 December 2006 Employers Mutual Indemnity Workers Compensation (NSW) Limited (‘EMI’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ on behalf of Country Energy (‘the Appellant’) in the Workers Compensation Commission (‘the Commission’) against a decision, dated 29 November 2006.
The First Respondent to the Appeal is Colin Reginald Lang (‘the Worker’).
A Notice of Opposition to Appeal Against Decision of Arbitrator has been filed on behalf of the Worker and on behalf of two Insurers of the Appellant whose periods of risk predate that of EMI.
The Worker, who was born on 11 February 1944, commenced employment with the Appellant in 1972 and remained in that employ until 6 January 2006. The Worker was employed as an Overhead Linesman and performed those duties until September 2005 when, by reason of physical disability, he was engaged as a Meter Reader.
The Worker, in the course of his employment, sustained a number of injuries to various parts of his anatomy. A claim on behalf of the Worker in respect of benefits pursuant to the Workers Compensation Act 1987 (‘the 1987 Act’) was made by his Solicitors against his former Employer in February 2006. That claim was declined and the Worker, on 31 July 2006, filed an Application to Resolve a Dispute with the Commission. That Application alleged a number of specific injuries to various parts of the Worker’s anatomy as well as a general allegation of injury as specified in that Application resulting from the performance of his normal duties.
The allegations of injuries which appeared in Part 3 Injury Details of the Worker’s original Application were the subject of amendment when the matter came before an Arbitrator for conciliation/arbitration on 30 October 2006
The Worker’s original Application sought orders in respect of payment of weekly compensation, medical, hospital and related expenses and lump sums in respect of permanent impairment/pain and suffering. Those claims were also the subject of amendment at the hearing before the Arbitrator. Detail of the amendments to both allegations of injury and heads of claim are addressed more fully hereunder.
Replies to the Worker’s original Application were filed on behalf of each of three Insurers of the Employer. The Arbitrator granted leave to each of those Insurers to appear at the conciliation/arbitration hearing. It is convenient to particularise the identity of those Insurers and relevant periods of risk at this point:
§Allianz Australia Workers Compensation (NSW) Limited (‘Allianz’) – 1 July 1996 to 30 June 2001
§QBE Workers Compensation (NSW) Limited (‘QBE’) – 1 July 2001 to 30 June 2005
§Employers Mutual Indemnity Workers Compensation (NSW) Limited (‘EMI’) – on risk from 1 July 2005.
A determination of the Worker’s original Application was made by the Arbitrator on 29 November 2006.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’ dated 29 November 2006 records the Arbitrator’s orders as follows:
“The determination of the Commission in this matter is as follows:
1.Respondent to pay $1100.00 per week from 7 January 2006 to 8 July 2006 pursuant to section 36.
2.Respondent to pay $439.60 per week from 9 July 2006 to 30 September 2006 and $447.80 per week from 1 October 2006 to date and continuing as adjusted pursuant to section 37.
3.The said Awards are to be paid two thirds by Allianz Australia Workers Compensation (NSW) Ltd and one third by Employers Mutual Indemnity Workers Compensation (NSW) Ltd.
4.The claim for permanent impairment benefits is referred to an AMS for assessment.
5.Respondent to pay the Applicant’s costs as agreed or assessed. Such costs to be born two thirds by Allianz Australia Workers Compensation (NSW) Ltd and one third by Employers Mutual Indemnity workers Compensation (NSW) Ltd.”
A Statement of Reasons for Decision (‘Reasons’) dated 29 November 2006 accompanied that Certificate of Determination.
ISSUES IN DISPUTE
The issues in dispute in the appeal are:
(i)whether the Arbitrator erred in finding that the Worker’s “impairment (if any) arises at the time of the last injury in January 2006”;
(ii)whether the Arbitrator lacked jurisdiction “ to make any finding as to the nature of or as to causation of or as to liability for payment of compensation in respect of any permanent impairment or loss of use of the Applicant’s arms”;
(iii)whether the Arbitrator “exceeded his jurisdiction in making or purporting to make findings as to the nature of or as to causation of or as to liability for payment of compensation in respect of any permanent impairment or loss of use of the Applicant’s arms”, and
(iv)whether the parties were denied natural justice by reason of the manner of conduct of the arbitration hearing and subsequent determination.
The summary of the issues as set forth above is taken from the Appellant’s document headed “Amended Grounds of Appeal and Submissions in Support” filed with the Commission on 29 January 2007.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘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.”
The Appellant, the Worker and each Insurer have submitted that the Application for Leave to Appeal and the Appeal itself may be decided solely on the basis of the written material lodged on behalf of the parties with the Commission.
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions made by the parties, 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.
LEAVE
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 amount of compensation at issue on the appeal is such that the subject matter of the appeal meets the relevant threshold requirements for section 352(2) of the 1998 Act which must be met before a grant of leave to appeal may be made by the Commission. I so conclude notwithstanding a submission made on behalf of QBE that, by reason of withdrawal by the Worker of his application for lump sums, the relevant threshold is not met. As the Arbitrator’s order presently stands, such a claim has been referred to an AMS for assessment and the quantum of such claim meets the requirements of section 352(2).
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
The requirements of section 352(2) and (4) having been satisfied and having regard to the subject matter of the appeal and the arguments raised I order that leave be granted to the Appellant to appeal to the Commission.
PRELIMINARY MATTERS
Injuries Alleged
Before proceeding to an examination of the evidence and submissions put on behalf of the parties it is necessary to examine the nature of the allegations of injury made by the Worker at the hearing before the Arbitrator and the nature of the relief sought by the Worker in his original Application. There is before the Commission a transcript of the proceedings conducted before the Arbitrator on 2 November 2006 (‘transcript’). It is clear that a number of amendments, both in respect of injury and relief sought, were made upon the application of the Worker at the hearing.
I note at the outset that the transcript does not represent a perfect record of the proceedings. It is apparent that, for technical reasons and because of the manner of conduct of the hearing, not everything stated by the parties on that occasion has been recorded. Notwithstanding the shortcomings of the transcript it is clear that the Arbitrator granted the Worker leave to amend his allegations of injury contained in “PART 3 INJURY DETAILS” appearing in his original Application. Detail of the amendments is recorded on pages 21, 22 and 23 of the transcript. Having regard to the quality of the transcript it is not possible to be certain as to the precise detail of the amendments sought and granted however there is before the Commission a copy of the relevant Application containing handwritten amendments to the Particulars of Injury. It may safely be assumed that those notations were effected by the Arbitrator and it seems that the following allegations of injury were before the Arbitrator for determination:
“On or about 22 November 1996 the applicant suffered injury to his right foot and knee when an object fell on his right foot.
On or about 27 February 1997 the applicant suffered injury to his left shoulder in a motor vehicle accident on his way home from work.
On [sic] or about 1 March 1999 the applicant further aggrivated [sic] his left shoulder when he was pulling cable from drum underground.
On and prior to 19 January 2005, the applicant caused further injury to his bilateral shoulder problems during the course of performance of his normal duties.
On or about 2nd August 2005, the applicant whilst performing normal duties, suffered a further exacerbation of pain in both shoulders.
On and prior to January 2006, the applicant exerted effort and strain in the course of performance of his duties to shoulders.”
Notwithstanding the form of the above notation, it appears from the transcript (page 22, lines 34 – 46) that further amendment was allowed by the Arbitrator in the following form:
“On or about 8 February 1998 the applicant suffered an injury to the right shoulder lifting a branch from a power line in the Carabost State Forest.”
It is to be noted that the transcript records the Worker’s representative as stating (transcript page 23, lines 32 – 34):
“… and we withdraw an allegation relying upon injuries to the applicant’s knees.”
This statement is made notwithstanding the apparent inclusion of an allegation of knee injury on 22 November 1996 as above noted.
Relief sought in Original Application
The original Application as filed with the Commission sought, inter alia, awards in respect of lump sum entitlement for permanent impairment/pain and suffering. That head of claim was the subject of discussion between the Arbitrator and the parties’ representatives at the conclusion of submissions as recorded in the transcript. It was noted by Counsel for EMI that the Worker intended undergoing surgery and in the circumstances the lump sum claim should be deleted. The Arbitrator responded by saying (transcript page 34, line 49):
“That’s probably right, isn’t it?”
The transcript records continuing discussion with respect to the lump sum claim and the earlier amendments deleting reference to alleged injuries to the Worker’s knees. The transcript, it must be said, is to an extent, incoherent. As recorded the Arbitrator and the parties’ representatives appear to deal with both the question of discontinuance of the lump sum claims and the question of what was described as “cost consequences”. The transcript does not record any order of the Arbitrator with respect to amendment effecting a deletion of the lump sum claim.
It is clear having regard to the submissions put on this appeal, particularly those filed on behalf of the Worker, that the lump sum claims in respect of alleged injuries to the Worker’s shoulders had been, by amendment, eliminated from the Application. The fact of such an amendment is common ground among the parties.
EVIDENCE AND SUBMISSIONS
It was noted by the Arbitrator at paragraph 9 of his Reasons that:
“9. The hearing has been recorded and a copy of the recording is available to the parties. Documents admitted into evidence are identified on the recording.”
That recording as above noted has been transcribed. The transcript, between pages 3 and 18, records the detail of documentary evidence adduced on behalf of each of the parties. The Worker relied upon those documents annexed to his original Application and tendered in evidence the following material following rulings by the Arbitrator as to admissibility:
(i)the entirety of Dr Jeffrey’s notes;
(ii)a bundle of documents not specifically identified in transcript which appear to relate to reports of injury by the Employer;
(iii)a Supplementary Statement of the Worker, and
(iv)Worker’s Wages Schedule.
Documentary evidence relied upon by Allianz included that material annexed to the Reply filed on its behalf on 22 August 2006. In addition to that material the following documents were tendered and received in evidence by the Arbitrator:
(i)a report of Dr James Bodel, Orthopaedic Surgeon dated 5 September 2006, and
(ii)report of Dr V J Mamo, Orthopaedic Surgeon dated 1 September 2006, (excised by order of the Arbitrator from that report was the author’s notation of the Worker’s history).
Evidence relied upon by QBE was that documentary evidence annexed to the Reply filed on its behalf on 26 October 2006.
The documentary evidence relied upon by EMI was that annexed to the Reply filed on its behalf and dated 16 August 2006.
An unsigned and undated Statement of the Worker is annexed to his original Application. The Worker describes an injury allegedly sustained on 8 February 1998 to his right shoulder. It is said that that injury occurred whilst he was lifting a pine tree branch off a power line located in the Carabost State Forest. The Statement contains some detail of medical treatment received by the Worker including a surgical procedure performed by Dr Alan Nicholls.
The Worker proceeds in his Statement to describe an incident which allegedly occurred on 1 March 1999 whilst pulling a cable off a drum causing injury to his left shoulder. The Worker refers to medical treatment received in respect of that injury including detail of a surgical procedure to his left shoulder carried out by Dr Mamo.
The Worker further states that his duties were altered from that of Overhead Linesman to that of Meter Reader. The undated Statement makes reference to a certification by Dr Jeffrey that the Worker was unfit to do his normal duties and that such certification led to his reclassification. Unhelpfully the Statement contains no mention of the date upon which the meter reading tasks were commenced. Of significance the Worker states that he was experiencing difficulty lifting the lids of the meter boxes given that, on many occasions, the lids needed to be lifted above shoulder height. The Worker further states:
“… since that time and whilst working as a Meter Reader I have been receiving my normal pay and suffering no loss.
It is however becoming harder and harder and I have, as a result of all my problems, wondered whether I can keep going.”
The Statement also contains some detail concerning injuries and medical treatment which detail is not directly relevant to the claim ultimately brought before the Arbitrator for determination.
The Worker’s Supplementary Statement dated 7 February 2006 contains detail of the Worker’s retirement effective from 6 January 2006. The Worker proceeds to state that he performed meter reading work until approximately 1 December 2005 following which he did office work until 6 January 2006 being his last day of employment.
A report of Dr Alan Nicholls dated 12 January 2006 is annexed to the Worker’s original Application. That Practitioner was first consulted by the Worker on 23 January 1998. The Worker’s complaints at that time related to the condition of his right shoulder and a diagnosis of rotator cuff injury with subacromial bursitis was made. Dr Nicholls details conduct of an operative procedure involving an acromioplasty which was carried out on 3 June 1998. Of significance, the history recorded of there being a right shoulder injury in February 1997 whilst the Worker was working in a cherry picker conflicts with the history of injury given by the Worker in his original Statement.
Dr Nicholls in his report makes reference to x-ray of the right shoulder dated 30 September 2005 which demonstrated “significant degenerative change in the gleno-humeral joint”. Dr Nicholls expressed the following opinion:
“The diagnosis of the right shoulder is rotator cuff arthropathy, that is degenerative change in the shoulder joint due to deficiency in the rotator cuff tendons, therefore being regarded as work related and due to and a complication of the rotator cuff injury sustained in 1997.”
Dr Nicholls’ report contains detail concerning the condition of the Worker’s left shoulder. Again the history recorded by Dr Nicholls contrasts with that which is stated by the Worker. Dr Nicholls recorded that the Worker initially injured his left shoulder in a fall from his motorbike on his way home from work on about 27 February 1997. Dr Nicholls noted that the Worker suffered a fractured clavicle in that accident which united without complication. Dr Nicholls proceeds to record a history of injury in March 1999 which is consistent with the history as stated by the Worker in his original Statement. Dr Nicholls’ report further notes that surgical treatment being left shoulder acromioplasty was carried out by Dr Mamo on 23 April 1999. Dr Nicholls notes that following good symptomatic relief the Worker had experienced recurrence of left shoulder pain “during the last 2 or 3 years” and states that the Worker’s symptoms had been aggravated “to a large degree by his work activities”.
Dr Nicholls’ diagnosis with respect to the Worker’s shoulders was summarised at page 3 of his report as being:
“Rotator cuff arthropathy of the right shoulder (osteoarthritis) mainly due to the injury sustained in 1997 and to some degree aggravated over the years by the nature of his work.
Rotator cuff arthropathy of the left shoulder due to the injury sustained in 1999.”
Two reports from Dr Bodel dated 13 June 2006 and 4 July 2006 are also annexed to the Worker’s original Application. In the first of those reports Dr Bodel notes the conflicting histories as recorded in relevant documentation and plainly states that there is “confusion over the dates of injury and the specific events that have occurred with each of the episodes.” Notwithstanding the conflicting histories Dr Bodel concluded under the heading “Opinion”:
“This gentleman’s main pathology is osteoarthritic change in both shoulders. The nature and conditions of work as a linesman is probably a contributing factor to the development of that degenerate process in his circumstance more so than the specific episodes he describes. Those episodes of injury appear to have aggravated the underlying pathology which is very long standing.
I note that he has worked as a linesman since at least the late 1970’s both in overhead work and in underground work and that is a contributing factor to his pathology. It is likely however that there is also some pre-existing degenerative change which is not work related which is also contributing.”
Dr Bodel, in his report of 4 July 2006, expressed the following view:
“This gentleman had episodes of injury at work. At the time of my assessment, on 13 June 2006 there was some confusion as to the correct dates of the injury. He has well established arthritic change in both shoulders and he has worked as a linesman for many years prior to those episodes of injury at work. Work is, therefore, a substantial contributing factor to the ongoing pathology and the nature and conditions of work is also a contributing factor apart from the defined events.
Under these circumstances this gentleman does have in part, a disease process of gradual onset, which has been aggravated and accelerated by the nature and conditions of his work and his employment generally.”
Dr Bodel, in that last mentioned report, proceeds to express a view as to Whole Person Impairment and made the following observation:
“Clinically the nature and conditions of work from 1 January 2002 until this gentleman was retired in January 2006 is a minor contributing factor and I would estimate that no more than one fifteenth of this total 15% Whole Person Impairment is due to the nature and conditions of work during that period of his employment. The vast majority of his ongoing impairment is due to the specific events that occurred at work in late 1990’s and the nature and conditions of work many years before those injuries in the late 1990’s.”
Annexed to the Worker’s original Application is a report of Dr Philip Zammit dated 23 February 1998 addressed to MMI Insurance. Dr Zammit notes that the Worker first consulted him concerning his right shoulder on 24 March 1997. The report notes:
“My notes record that at that time he had pulled something heavy at work approximately 2 months prior and since due to an unrelated injury concerning his left shoulder, the pain in his right shoulder became rather aggravated. Examination supported that he had a right rotator cuff syndrome affected [sic] his shoulder and that there was some degree of a frozen shoulder...”
Dr Zammit, in his report, proceeds to describe treatment and investigations conducted with respect to the Worker’s right shoulder and noted a history of further injury to that shoulder occurring on 8 February 1998. It was Dr Zammit’s opinion that the Worker’s right shoulder disability had occurred specifically as a result of work related injury and expressed the view that work was a substantial contributing factor to his condition. Dr Zammit noted that:
“Rotator cuff syndrome generally has a pattern of ongoing flaring and settling and this is often going to be aggravated by the heavy work that Mr Lang does and therefore it is likely that he is going to continue to get flare ups down the track unless he has some sort of surgical approach.”
Attached to the Worker’s original Application was a document of the Appellant’s headed “Return to Work Program 3”. That document notes an injury being “bilateral shoulder injuries – rotator cuff” and makes reference to “suitable duties” being meter reading and associated tasks, the first time frame referred to being 7 September 2005 to 7 December 2005.
Documents annexed to the Replies filed on behalf of each of the Insurers of the Appellant contained a deal of duplication of material. At the hearing, as noted above, Allianz tendered a further report of Dr Bodel dated 5 September 2006. That report addresses the question of extent of impairment. With respect to the condition of the Worker’s right shoulder Dr Bodel stated as follows:
“The 30% overall permanent loss of efficient use of the right arm at or above the elbow is one third due to that injury [February 1998], one third due to the nature and conditions of work at Country Energy and the remaining one third is due to constitutional factors unrelated to any injury or work in general.”
The report of Dr Mamo dated 1 September 2006 tendered on behalf of Allianz had, as above noted, been admitted subject to the excision of the history as there recorded. Dr Mamo reached the following conclusion:
“Mr Lang has debilitating bilateral shoulder pain with marked limitation in his ability to perform activities of daily living. This is confirmed on x-rays showing severe osteoarthritis of both gleno-humeral joints.”
Dr Mamo proceeds to note his recommendation for future surgery initially being right total shoulder replacement.
Submissions
It is argued on behalf of EMI, the Insurer of the Appellant having carriage of this appeal, that the Arbitrator erred in finding that the Worker’s “impairment (if any) arises at the time of the last injury in January 2006” as stated by him at paragraph 19 of his Reasons. It is acknowledged by EMI in its Submissions that the Arbitrator’s conclusion as quoted was reached upon reliance of statements of principle to be found in Sideropoulos v Able Replacements Pty Ltd (1998) 16 NSWCCR 123 (‘Sideropoulos’).
EMI’s Submissions proceed to summarise the Arbitrator’s findings and it is put that the Arbitrator had found:
“that each of the frank incidents relied upon occurred during the period in which Allianz Insurance was on risk, although the nature of the injury could only be categorised as the aggravation of a disease and in accordance with Rail Services Australia v Dimovski (2004) NSWCA 267 (‘Dimovski’) Section 16 applies to that injury and such injury occurred on 7 January 2006 whilst Employers Mutual Indemnity was on risk.”
EMI submits that the Arbitrator erred “in finding that each of the injuries could only be categorised as the aggravation of a disease”.
The Appellant’s Submissions proceed to note that the Arbitrator accepted the opinion of Dr Nicholls, the treating Surgeon, whose reports were before the Commission. It is argued that the “injury of 27 February 1997” involving the motor cycle accident causing fracture to the Worker’s left clavicle “could not be classified as the aggravation of a disease”. The Submissions proceed to analyse the evidence of Dr Nicholls with particular attention given to diagnosis of rotator cuff arthropathy of the left shoulder and it is put that “Section 16 should not apply in respect of [the left] shoulder injury on account of the fact that provision is confined to injuries caused entirely by aggravation and does not apply to personal injuries within the definition of Section 4(a) of the 1987 Act”.
The Appellant makes reference to the decision of Lyons v Master Builders Association of NSW (2003) 25 NSWCCR 422 (‘Lyons’). Reference is made in the course of submissions to the evidence as to the relevant pathology existent in the Worker’s right shoulder. It is put that Dr Nicholls found that there had been a “rotator cuff tear produced by the injury of February 1997 … and that degenerative change developed as a result of the deficiency in the rotator cuff tendons following from that injury”.
The Appellant proceeds to argue that the Arbitrator “erred in categorising the ‘injury’ solely as an injury by way of aggravation of a disease and therefore applying the provisions of Section 16”. It is put that “the Arbitrator should have concluded that any impairment of the left shoulder resulted from the injury of 27 February 1997 and that the injury to the right shoulder resulted from the injury of February 1997”. It is put, in the alternative that “the Arbitrator should have apportioned liability pursuant to Section 22”.
The Appellant, in its Amended Grounds of Appeal, asserts that the Arbitrator had no jurisdiction to make any finding as to matters relative to liability for payment of compensation in respect of any permanent impairment or loss of use of the Worker’s arms. It is further asserted that in making or purporting to make such findings the Arbitrator “exceeded his jurisdiction”. As an alternative ground of appeal it is asserted that the Arbitrator denied the parties natural justice and procedural fairness in proceeding to determine matters relevant to liability for payment of compensation in respect of permanent impairment or loss of use of the Worker’s arms in circumstances where the Worker had elected not to prosecute his “lump sum” claims. Submissions in support of those grounds assert that “the Arbitrator had no jurisdiction to make any of the findings or determinations set out in paragraph 19 of the Statement of Reasons for Decision and those findings or determination should be set aside”.
The Worker in submissions in opposition to the Appeal states that:
“There is no dispute that the formal claim for impairment and pain and suffering under section 66/7 of the Act in relation to the shoulder injuries suffered by the Worker Colin Lang, were withdrawn at the end of the Arbitration.”
It is argued that the findings set forth in paragraph 19 of the Arbitrator’s Reasons, which are the subject of challenge by the Appellant, do not “go beyond that election of the Worker but simply provide a mechanism for future dispute resolution”. It is put that the Arbitrator’s determination as expressed in paragraph 4 of the Certificate of Determination requires revocation.
The Worker further argues that the findings made by the Arbitrator are supported by the evidence and that the Arbitrator’s orders with respect to the payment of weekly payments were founded upon those findings and such orders or determinations are not the subject of appeal.
Submissions in opposition to the Appeal have been filed on behalf of the Insurer Allianz. Those Submissions seek to support the Arbitrator’s findings of fact founded upon the evidence, in particular the evidence of Drs Nicholls and Bodel, and it is argued that the Arbitrator has properly applied matters of principle founded upon the various authorities cited in the course of his Reasons. It is argued that the decision of the former Compensation Court in Lyons may be distinguished from the present matter upon a factual basis.
Submissions in opposition to the Appeal filed on behalf of QBE argue that, as framed, the appeal does not challenge the Arbitrator’s finding with respect to weekly payments, medical expenses nor “disease”. It is put that, there being no appeal against the Arbitrator’s finding of disease that the Appellant is “now estopped from challenging such a finding”.
It is stated on behalf of QBE that the Arbitrator’s referral for assessment to an Approved Medical Specialist was done in error. It is further asserted that “the only issue that is on appeal is the determination of “impairment” and as there has been no assessment of lump sum entitlements made, EMI cannot satisfy the threshold for appeal pursuant to section 353(2) of the 1998 Act …”
QBE proceeds to argue in support of the Arbitrator’s findings of fact asserting that such findings were open to him having regard to the totality of the evidence. It is further argued that there has been no denial of natural justice or procedural fairness and it is said that “all parties were provided with an opportunity to address the issues surrounding the mechanism of injury which determine the liability of the parties”.
DISCUSSION AND FINDINGS
Before dealing with the matters raised in argument by the Appellant it is convenient to examine the Arbitrator’s Reasons to determine those findings of fact made by him which are pertinent to the grounds of appeal.
At paragraphs 12 and 13 of his Reasons the Arbitrator states the history of injuries sustained by the Worker to his left and right shoulders. That summary appears under the heading “Findings and Reasons”. Whilst not expressly stated by the Arbitrator it is implicit that he accepted those matters summarised as being proven by the Worker. Those injuries noted by the Arbitrator are:
(i) 27 February 1997 – motor cycle accident – fractured left clavicle;
(ii) March 1999 – injury to left shoulder;
(iii)“the applicant has also reported that his left shoulder pain has been recurring, being aggravated to a large degree by his work activities”, and
(iv) February 1997 – injury to right shoulder whilst working in cherry picker.
In paragraph 16 of his Reasons the Arbitrator made the following finding:
“I accept the opinion of Dr Bodel that the disability in the shoulders is a combination of the individual incidents and the nature and conditions of employment at least up until the applicant ceased performing work of a linesman in September 2005.”
The Arbitrator, at paragraph 18 of his Reasons made the following finding:
“Each of the frank incidents relied on occurred during the periods in which Allianz was on risk. In my view each of those incidents contributed to the final pathology and to that extent I accept the opinion of Dr Nicholls who had the advantage of seeing the applicant at that time. I also accept the view of Dr Bodel that the underlying degenerative condition (which is a disease process) has been aggravated by the nature and conditions of the applicant’s employment with the respondent. In my view that injury can only be categorised as the aggravation of a disease and in accordance with [Dimovski] section 16 applies to that injury. Pursuant to section 16 that injury occurred when the incapacity occurred on 7 January 2006. Employers Mutual Indemnity was on risk at that time.”
The findings as to the issue of “injury” were made notwithstanding the considerably confused state of the evidence as to the precise history and conflict between the Worker’s history of injury and that history recorded by the medical witnesses whose reports were before the Commission.
At paragraph 6 of his Reasons the Arbitrator enumerated the issues in dispute requiring determination they being questions of “incapacity”, the duration of any incapacity, the quantum of any entitlement to weekly compensation and apportionment among the Insurers (section 22 of the 1987 Act). The Arbitrator had earlier (at paragraph 4 of his Reasons) made reference to the Worker’s amendment of his original Application and it was noted that there was a discontinuance with respect to the claim concerning injury to his knees. I note in passing that no finding has been made by the Arbitrator with respect to the Worker’s allegation of injury on 22 November 1996 as set forth in paragraph 21 above. No point of contention has been raised on behalf of the Worker with respect to this omission and it may safely be assumed that such allegation remained on the record by reason of oversight.
The Arbitrator, at paragraph 16 of his Reasons, determined that the Worker had established that he was entitled to weekly compensation “pursuant to section 36” of the 1987 Act. At paragraph 20 of his Reasons the Arbitrator stated:
“20.Considering all of the medical evidence I consider that the frank incidents were significant in the development that ultimately led to the Applicant’s retirement. On the other hand the Applicant was able to return to work following surgery and perform the duties of a linesman for a further six years. It was the aggravation caused by that work that ultimately rendered the Applicant incapacitated. Doing the best that I can I consider that the award should be born 2/3 by Allianz and 1/3 by EMI.”
The Arbitrator proceeded to make an award in favour of the Worker with respect to weekly payments pursuant to sections 36 and 37 of the 1987 Act. Those awards were ordered to be paid “2/3 by Allianz Australia Workers Compensation (NSW) Limited and 1/3 by Employers Mutual Indemnity Workers Compensation (NSW) Limited”. It is not expressly stated however it is clear that the finding as to apportionment of liability and the orders with respect to indemnity of the Appellant were made pursuant to section 22 of the 1987 Act. These orders have not been challenged by the Appellant.
What is challenged by the Appellant are the Arbitrator’s finding as stated at paragraph 19 of his Reasons that the Worker’s “impairment (if any) arises at the time of the last injury in January 2006”. The Appellant’s submissions proceeded upon the assumption that a finding had been made that “each of the injuries could only be categorised as the aggravation of a disease”. This appeal, no doubt, arises by reason of an apprehension on the part of EMI that such “finding” would operate to place liability for any future entitlement to lump sums under Part 3 Division 4 of the 1987 Act at the feet of EMI.
I am of the opinion that the arguments advanced on behalf of the Appellant are founded upon a misconception as to the nature of the findings made by the Arbitrator in the course of his Reasons for Decision. The Arbitrator has not, as asserted by the Appellant, “categorised” the subject injury “solely as an injury by way of aggravation of a disease”. What was determined by the Arbitrator at paragraph 18 of his Reasons was that the “final pathology” was “contributed to” by “each of the frank incidents relied on”. Each of those frank injuries are, in my opinion, to be characterised as personal injuries within the meaning of section 4(a) of the 1987 Act (see Dimovski per Hodgson JA at 68). The Arbitrator found also that “the underlying degenerative condition (which is a disease process) has been aggravated by the nature and conditions of the Applicant’s employment with the Respondent”. It is that injury (aggravation of a disease) which falls within the meaning of section 4(b)(ii) of the 1987 Act. Shortly stated the Arbitrator has found that the Worker’s incapacity which occurred on 7 January 2006 had resulted from the combined effects of the frank injuries and an aggravation of a disease by reason of the nature and conditions of work. The Arbitrator, correctly in my view, made reference to the decision of Dimovski which decision is authority for the proposition that where a finding that death, incapacity or loss results from more than one injury the Commission may invoke the provisions of section 22 of the Act and apportion liability even though one of the relevant injuries is one of aggravation of a disease in terms of section 4(b)(i) and falls within section 16(1) of the 1987 Act. It was upon the basis of those findings that liability to make weekly payments was apportioned as between the two insurers on risk at times relevant to injury as found.
The Appellant seeks an order that “the findings and determination set forth in paragraph 19 of the Statement of Reasons for Decision be set aside”. The Arbitrator there stated:
“19. The overall condition of the Applicant’s shoulders is the result of the cumulative effects of the frank injuries and the nature and conditions of employment. Each incident has acted on the same body part and the same pathology. Any impairment suffered by the Applicant is accordingly attributable to the last injury (Sideropoulos v Able Replacements Pty Ltd (1998) 16 NSWCCR 123). In other words the Applicant suffers from a single impairment as a result of the accumulated incidents and the nature and conditions of employment. The impairment (if any) arises at the time of the last injury in January 2006. Accordingly the assessment must be in accordance with AMA 5.”
It is my view that the Appellant, in seeking the relief outlined above, has misconceived the nature of this appeal. This appeal is brought pursuant to the provisions of section 352 of the 1998 Act. Subsection 5 of that section provides:
“(5) An appeal under this section is to be by way of review of the decision appealed against.”
It was stated by Dr Fleming DP in Mayne Health Group t/as Nepean Private Hospital v Sarah Sandford [2002] NSWWCCPD 6 (‘Sandford’) that such power to “review” is exercisable only where it can be demonstrated that the original decision of the Arbitrator was affected by legal, factual or discretionary error.
An appeal such as the present is directed to a review of the “decision” as defined in section 352(8) of the 1998 Act. Whilst the Appellant in the present matter seeks to challenge findings made in the course of the Arbitrator’s Reasons there is no challenge to his ultimate decision. However it is clear that there was no claim before the Arbitrator with respect to lump sum entitlement (sections 66 and 67 of the 1987 Act) and the Arbitrator was in error when he determined (paragraph 4 of Certificate of Determination) that such claim for permanent impairment be referred to an AMS for assessment. There being no such claim before the Commission such error requires correction by revocation of that determination.
Notwithstanding my view as to the inappropriate challenge to findings in the absence of a challenge to the Arbitrator’s decision, I consider it appropriate to address the matters raised by the Appellant with respect to what was stated by the Arbitrator in paragraph 19 of his Reasons.
The Arbitrator, following his statement that “Any impairment suffered by the Applicant is accordingly attributable to the last injury …” made reference to the decision of Sideropoulos. The Arbitrator’s findings of fact would lead to a conclusion, in my view, that the Worker suffers from impairment to both left and right arms. Each impairment is a single impairment and, in accordance with the principles stated in Sideropoulos, entitlement is to be assessed before any question of apportionment is addressed. I respectfully disagree with the suggestion contained in paragraph 19 of the Arbitrator’s Reasons that Sideropoulos is authority which requires the Commission to find, on facts similar to the present, that impairment is “attributable to the last injury”. I also, with respect, disagree with the Arbitrator’s observation that “the impairment (if any) arises at the time of the last injury in January 2006”. There is nothing stated by Neilson J in the matter of Sideropoulos that would support this conclusion as stated by the Arbitrator. His Honour, in Sideropoulos, was concerned with the correct approach to be taken under the 1987 Act in circumstances where two (or more) injuries had a cumulative effect resulting in a single loss or impairment. Sideropoulos is authority for the proposition that in such circumstances an assessment of entitlement with respect to impairment is to be made before any apportionment is made. His Honour’s observations as to the position prior to the enactment of section 22 (at 125 and 128) which were referred to by Handley JA in Dimovski (at 35) do not require a conclusion, in the present case, that impairment “arises at the time of the last injury”. Should the Worker bring a claim with respect to loss or impairment under section 66 following his surgery, any referral for assessment by an AMS would need to take into account the Arbitrator’s findings as to injury above summarised and consideration will need to be given to the operation of section 65 (as amended in 2002) and the transitional provisions of the 1987 Act, in particular Schedule 6 Part 18C thereto.
As I have observed above the Appellant does not, in this appeal, seek to challenge the decision of the Arbitrator. In the circumstances the relief sought by the Appellant, as expressed in the alternative, relates to a review of findings by the Arbitrator with respect to the Worker’s entitlement pursuant to section 66 of the 1987 Act. The Appeal is misconceived and must fail. With respect to the Appellant’s argument that the Arbitrator had “no jurisdiction” or alternatively “exceeded his jurisdiction” in making findings with respect to causation of or as to liability for payment of compensation being lump sums I note that no decision made by the Arbitrator, with the exception of referral to an AMS, was made upon the basis of any such suggested findings and that in those circumstances there is no scope for review within the meaning of section 352 of the 1988 Act. For similar reasons I reject the Appellant’s arguments with respect to the suggested denial of natural justice and procedural fairness. Given my views as to the Arbitrator’s reasoning process revealed in paragraphs 18 and 19 of his Reasons it is clear that the question of “liability for payment of compensation in respect of permanent impairment or loss of use of the Applicant’s arms” remains to be determined by application of correct principle at an appropriate time.
Given the Worker’s withdrawal of his application for lump sum compensation the Arbitrator’s referral to an AMS for assessment was made in error and requires revocation.
DECISION
Paragraph 4 of the Arbitrator’s Decision dated 29 November 2006 is revoked.
Paragraphs 1, 2, 3 and 5 of the Arbitrator’s Decision dated 29 November 2006 are confirmed.
COSTS
The Appellant is to pay the Worker’s costs of this appeal.
Kevin O’Grady
Acting Deputy President 9 August 2007
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O’GRADY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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