De Witte v Tawnay Pty Ltd t/as Country Coast Real Estate - [2006] NSWWCCPD 109

WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:De Witte v Tawnay Pty Ltd trading as Country Coast Real Estate [2006] NSWWCCPD 109
APPELLANT:  Margaret Irene De Witte
RESPONDENT:  Tawnay Pty Ltd trading as Country Coast Real Estate
INSURER:GIO Workers Compensation (NSW) Pty Limited
FILE NUMBER:  WCC2540-04 and WCC12628-05
DATE OF ARBITRATOR’S DECISION:          29 November 2005
DATE OF APPEAL DECISION:  2 June 2006
SUBJECT MATTER OF DECISION:                Reconsideration, estoppel, section 40 assessment, reasonably necessary medical treatment
PRESIDENTIAL MEMBER:  Acting Deputy President Michael Snell
HEARING:On the papers
REPRESENTATION:  Appellant:      Higgins & Higgins
Respondent:   Rankin Nathan Lawyers

ORDERS MADE ON APPEAL: Paragraphs 1 and 3 of the decision of the Arbitrator, dated 29 November 2005 are revoked and the following decision is made in its place:

1.That the respondent pay to the appellant weekly compensation at the rate of $105.00 per week from 17 December 2003 to 31 December 2004, and at the rate of $110.00 per week from 1 January 2005 to date and continuing, pursuant to section 40 of the 1987 Act.

3. The respondent is to pay the appellant’s costs.
Paragraphs 2 and 4 of the decision of the arbitrator dated 29 November 2005 are confirmed.
The respondent is to pay the costs of the appeal.

BACKGROUND TO THE APPEAL

On 16 December 2005 Margaret Irene de Witte (‘the appellant’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 29 November 2005.

The Respondent to the Appeal is Tawnay Pty Ltd trading as Country Coast Real Estate (‘the respondent’).

The procedural background to the decision became important, both in the arbitrator’s determination, and in the issues raised in this appeal. It is necessary that it be set out in some detail

The appellant was injured in three motor vehicle accidents on 11 June 1998, 17 August 1998 and 25 June 1999. Each of these occurred in compensable circumstances, and the occurrence and circumstances of the accidents were not the subject of serious dispute. The appellant was employed by the respondent on a part-time basis, five days a week. The respondent had a St George Bank agency at its office at Wauchope, and the appellant carried out banking duties at this agency. The appellant’s statement of 2 February 2004 says she was fired by the respondent in August 1999. She was then employed by the St George Bank as a casual customer service officer, from September/October 1999 to July 2000. In her statement she says she left this job as she could no longer tolerate the pain from her injuries. Voluntary payments of compensation were made by the respondent for a period, and then ceased.

The appellant commenced proceedings in the Compensation Court of NSW numbered 13979 of 2002. The material before the arbitrator included the amended application for determination filed in those proceedings on 24 June 2003. That application relied upon the same three motor vehicle accidents as are pleaded in the Applications to Resolve a Dispute which commenced the current two sets of proceedings. There is some confusion regarding the date of the first of these incidents, which is pleaded as occurring on 11 July 1998 in the earlier Compensation Court proceedings, but 11 June 1998 in the current proceedings. There is similar confusion regarding this date in some of the medical evidence. The difference does not appear to have been regarded as material by the parties or the arbitrator. The amended application in the earlier proceedings claimed weekly compensation from 5 October 2001 to date and continuing, multiple lump sum awards in respect of the neck, back, left arm and both legs, a lump sum for pain and suffering, and medical expenses.

Those earlier proceedings were listed for hearing before O’Toole CCJ on 30 September 2003. They were resolved by consent between the parties. A letter from the Compensation Court of NSW dated 15 October 2003 refers to “Order in accordance with the short minut (sic) Award Accordingly”. This is a reference to the Terms of Settlement, signed by counsel for the parties, a copy of which is attached to the letter. The Terms relevantly provide as follows:

“By consent:
1.   That there be an Award for the Respondent in respect of the Applicant’s claim for weekly compensation.
2. That the Applicant withdraws her claim pursuant to Section 66.
3. That the Applicant withdraws her claim pursuant to Section 67.
4.   That the Applicant’s claim for interest be withdrawn.
5.   That the respondent pay the applicant’s section 60 expenses.”

Paragraph 22 of the appellant’s statement says “At one earlier stage there was a problem with the payments, which was later sorted out. When the matter came before the Compensation Court of NSW on the 30 September, 2003 that matter had long been resolved and no weekly payments were outstanding.” This does not appear to have been the subject of dispute. At the arbitration hearing the appellant’s legal representative submitted on the basis that weekly payments were being made voluntarily as at 30 September 2003 (see T5 to T6). The respondent’s legal representative made submissions accepting this to be so (see T10.55 to T11.5).

The respondent ceased making voluntary weekly payments of compensation to the appellant as from 17 December 2003. It is common ground the respondent did not give the appellant notice pursuant to section 74 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’), prior to ceasing payments at that time.

The appellant’s solicitors wrote to the respondent’s insurer on 19 December 2003, referring to the consent award, and asserting inter alia “There being no issue in relation to arrears of compensation our client therefore consented to an order in favour of the respondent in relation to that claim”. The solicitors requested that the insurer “reconsider this claim”. Weekly payments were not reinstated, and the appellant instituted the earlier of the current proceedings by Application to Resolve a Dispute registered on 9 February 2004. That Application relied upon the same injuries as had been pleaded in the Compensation Court proceedings (save for the confusion regarding the date of the first injury). It made the same claims for lump sums under sections 66 and 67 of the Workers Compensation Act, 1987 (‘the 1987 Act’). It did not make a claim pursuant to section 60 of the 1987 Act, there being an existing consent award for benefits under that section. It claimed weekly payments of compensation from 17 December 2003 to date and continuing.

The respondent filed a Reply to Application to Resolve a Dispute on 27 February 2004. That document pleaded multiple issues in dispute, by way of defence. It did not refer to the consent award of 30 September 2003, nor raise any issue regarding estoppel.

The appellant was referred to an approved medical specialist, Dr Murray Hyde Page, to assess her losses for the purpose of her claim for lump sum compensation under section 66 of the 1987 Act. He provided a binding medical assessment certificate dated 4 November 2004. It assessed permanent losses and impairments of all of the various body parts claimed by the appellant. An agreement between the parties, consistent with the assessments of the approved medical specialist, was registered on 21 February 2005. It provided as follows:

Back  12.5%             $7,500.00
Left arm at or above the elbow          5%                  $3,750.00
Left leg at or above the knee             2.5%               $1,875.00
Right leg at or above the knee  2.5%               $1,875.00
Neck  10%                $4,000.00

There was also agreement between the parties, recorded in the agreement, that there be a sum of $12,000.00 for pain and suffering pursuant to section 67 of the 1987 Act.

The matter was listed before the arbitrator for conciliation/arbitration hearing on 4 February 2005. I do not have transcript of what transpired that day. There are letters from the solicitors for the appellant and the respondent dated 8 February 2005 and 9 February 2005 respectively, which contain versions of that day’s events. These letters were prepared by the solicitors, for submission to the President Sheahan J, on a referral described later in these reasons.

The letter of the appellant’s solicitors described a submission by the appellant’s legal representative on 4 February 2005, as a preliminary point, that notice by the respondent pursuant to section 74 of the 1998 Act was required before payments ceased on 17 December 2003. Failure to comply with this notice provision was said to disentitle the respondent from denying liability for weekly payments. The letter goes on:

“The Arbitrator found on the facts that the Respondent’s conduct in continuing compensation until 17 December 2003 was consistent with the Applicants (sic) belief that liability was admitted and that notice under S74 was required to be given.
Upon the Arbitrator finding the Respondent breached S74, the Respondent then sought immediate review of that decision under S350(3) Workplace Injury Management Act. It was agreed to refer to the President as a ‘question of law’ the question of whether in the above circumstances notice was required under section 74 for the Respondent to deny liability as and from 17 December 2003.
Please confirm the above accurately reflects the summary of facts and issue for referral to the President.”

The letter of the respondent’s solicitors sets out various submissions regarding the merits of the case. After setting out these submissions, the respondent’s solicitors say “Subject to the foregoing we agree that your letter reflects an accurate summary of the facts and issues for referral to the President”. No factual dispute is raised as regards the version of what transpired on 4 February 2005, as described in the letter dated 8 February 2005 of the appellant’s solicitors.

The appellant’s submissions on this appeal state the arbitrator “found in favour of the Applicant finding that on the evidence the Respondent in the circumstances of continuing payment should have complied with Section 74 of the Workplace Injury Management Act should it wish to cease payments”. That document goes on “The Respondent then directed the Arbitrator to immediately review her own decision.” The submissions of the respondent on this appeal describe the events in the following fashion:

“The Arbitrator decided the preliminary legal issue that the Respondent was required to give notice pursuant to Section 74 of the Workplace Injury Management and Workers Compensation Act 1998 of its intention to cease weekly payments in late 2003. Following the Arbitrator’s decision the Respondent made an Application pursuant to Section 350(3) of the 1998 Act for the Arbitrator to rescind her decision. Following further argument the Arbitrator rescinded her decision and referred the matter to the President on a Question of Law.”

The matter was, by the arbitrator’s own motion, on 8 March 2005, referred to the President Justice Sheahan, by way of an Application for Leave to Refer a Question of Law to the President. In De Witte v Tawnay Pty Ltd t/as Country Coast Real Estate [2005] NSWWCCPD 116 Sheahan J noted “no specific question is stated in the Application”, but after referring to the correspondence of 8 and 9 February 2005 said:

“The question is whether in the above circumstances ‘Section 74 of the 1998 Act compelled the insurer to give written notice of its intention to cease weekly payments…If this is answered in the affirmative, then a further question is whether the Insurer is required to reinstate weekly payments until a valid section 74 notice is given…’”. (at [3])

This is consistent with the arbitrator having rescinded her original finding regarding section 74 of the 1998 Act, before making the referral. Otherwise it would have been nonsensical to refer a question of law to the President, when she had already, at least in part, decided the point. Sheahan J delivered a decision on the Application on 29 September 2005. His Honour refused the application, holding the question referred to him was not novel or complex, and it was up to the arbitrator to determine the relevant questions of jurisdiction and statutory interpretation and apply them to the particular facts of the case.

A separate dispute had arisen between the parties regarding payment of specific medical expenses by the respondent, pursuant to the consent award for medical expenses which was in place. In particular the respondent had declined to pay for treatment with botox. A further Application to Resolve a Dispute was registered by the appellant on 28 July 2005, seeking orders in this regard. The respondent filed a Reply on 18 August 2005 disputing the appellant’s entitlement to these orders. The two sets of proceedings were consolidated pursuant to a direction of 6 October 2005.

A further hearing occurred before the arbitrator on 9 November 2005. The two Applications filed by the appellant were listed for hearing together. No oral evidence was called. Both parties addressed on the questions of whether a notice had been required pursuant to section 74 of the 1998 Act, and whether an estoppel had been created consequent upon the consent award of 30 September 2003, and if so, its effect. They also dealt with the question of whether the arbitrator had made a binding decision on 4 February 2005, and if so, its significance. There were some submissions of a more general nature on the merits of the case.

THE DECISION UNDER REVIEW

The ‘Certificate of Determination’, dated 29 November 2005 records the Arbitrator’s orders as follows:

“1. The Applicant’s claim for weekly payment compensation is dismissed;
2. Award in favour of the respondent in respect of the Applicant’s claim for s60
expenses relating to the claim for Botox treatment.
3. No order as to costs
4. The matter is certified as complex.”

Leaving to one side the discrete issue regarding compensability of the appellant’s botox treatment, the arbitrator’s reasoning process is to be found at pages 10 to 12 of her reasons. She reviewed a number of authorities relating to principles of res judicata and issue estoppel, accepting such principles apply in workers compensation matters. In relation to the consent award of 30 September 2003 she then said:

“I find that in (sic) the Applicant has failed to provide sufficient evidence that the issue of weekly payments is not different from that addressed in the 2003 Compensation Court proceedings before O’Toole J. I find that there is no objective evidence that the award entered was not an issue in dispute and would lead me to consider the award a nullity.”

She then proceeded to consider the claim for weekly payments on the basis it was a claim in which the appellant sought a review, pursuant to section 55 of the 1987 Act, of the consent award of 30 September 2003. She said:

Pursuant to s55 Workers Compensation Act 1987 I find no change in the Applicant’s circumstances to enable the operation of that section. The Applicant has submitted only one circumstance for consideration, that is, the fact that her payments were stopped. I find that this was a consequence of the award made by Justice O’Toole and is therefore not in the category of circumstance or purpose to which s55 is contemplated. Section 55 relates to changes in circumstances which would affect the Applicant’s capacity for work. I find no evidence in Dr Hyde Page’s medical assessment certificate which would indicate a change in the Applicant (sic) circumstances. This is the only medical report which post dates the 2003 judgment.”

ISSUES IN DISPUTE

The issues raised by the appellant in the appeal are expressed as twenty-one separate grounds. They are to some extent repetitive. The grievances fall into certain areas which essentially are as follows:

(a)the arbitrator, having made an initial decision regarding section 74 of the 1998 Act on 4 February 2005, erred in acceding to the respondent’s application to review that decision, and again in not applying that decision when she finally dealt with the matter in November 2005. In tandem with this, it is argued she erred in not applying section 74 in the manner contended for by the appellant;
(b)the arbitrator erred in her treatment of the consent award of 30 September 2003, and the consequences of it;
(c)the arbitrator erred in failing to give adequate reasons, particularly in circumstances where it is said she made two conflicting findings on the different arbitration dates;
(d)the arbitrator denied the appellant procedural fairness in not giving her an opportunity to address on the question of costs;
(e)the arbitrator erred in failing to attach appropriate weight to the findings of the approved medical specialist;
(f)the arbitrator erred in failing to reconsider the consent award of 30 September 2003, pursuant to section 350(3) of the 1998 Act, and
(g)on the discrete issue of the botox treatment, the arbitrator applied the wrong test regarding whether the treatment was compensable under section 60 of the 1987 Act, and erred in preferring the evidence of Dr. Rabonne (tendered by the respondent).

The respondent takes issue with the grounds raised by the appellant, and contends the decision of the arbitrator should be affirmed, in both sets of proceedings.

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 has submitted the matter should not be determined on the papers due to its complexity. The respondent submits the matter can be decided solely on the basis of the written material. There is no application to admit fresh evidence. Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the respondent 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.

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 weekly component of the claim was at a rate of $434.50 per week from 17 December 2003 to date and continuing. This claim failed totally. Clearly the amount of compensation in issue exceeds the sum of $5,000 referred to in section 352(2)(a) of the 1998 Act. The requirements of section 352(2)(b) are also satisfied, in so far as the weekly claim is concerned. This also extends to the section 60 claim, it having been consolidated with the proceedings for weekly compensation.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
In all of the circumstances it is appropriate that leave to appeal be granted.

DISCUSSION AND FINDINGS

The initial challenge to the arbitrator’s decision relates to her ‘decision’ of 4 February 2003, and her subsequent ‘reconsideration’ of that decision. Section 350(3) of the 1998 Act provides:

“(3) The Commission may reconsider any matter that has been dealt with by the Commission and rescind, alter or amend any decision previously made or given by the Commission.”

Having regard to the correspondence between the respective solicitors on 8 and 9 February 2005, it is common ground the arbitrator made a finding that cessation of benefits in December 2003 was properly subject to the notice provisions of section 74 of the 1998 Act. It is common ground that finding was then the subject of an immediate application by the respondent pursuant to section 350(3) of the 1998 Act. This must have been an application to reconsider, rather than a ‘review’ (as it is described in the letter of 8 February 2005). A provision similar (although not identical) to section 350(3) was contained in section 17(4) of the Compensation Court Act, 1984, and before that in section 36(2) of the Workers Compensation Act 1926 (‘the 1926 Act’).

In Hardaker v Wright & Bruce Ltd [1962] S.R.(NSW) 244 (‘Hardaker’) Owen and Walsh JJ, dealing with the corresponding provision in the 1926 Act said:

“I see no reason for limiting the generality of the words used in the section, and whether the question be one of fact or one of law, if the circumstances warrant it, I think that there is power in the court to entertain an application for variation or rescission so long as the original order is current, and to make such order in the way of variation or rescission as to it may seem proper.” (at 248)

This passage has been applied in Galea v Ralph Symonds Pty Ltd (1989) 5 NSWCCR 192. However it has also been observed in Blackwell v North Broken Hill Ltd (1998) 17 NSWCCR 237 (‘Blackwell’):

“While the terms of the power are cast in wide terms, it has long been recognised that the Court should distinguish between the existence of the power and occasion of its exercise. The authorities upon S 36 generally restricted reconsideration to reopening awards upon discovery of fresh evidence, it being necessary to show that with reasonable care and diligence, that evidence could not have been brought forward in the original proceedings. A mistake on the part of the legal advisers of a party to the proceedings is not sufficient to justify a reopening: Hurst v Goodyear Tyre & Rubber Co Australia Ltd [1953] 27 WCR (NSW) 29; Selfe v A Cook & Sons Pty Ltd (1966) 40 WCR (NSW) 88. The appeal provisions were intended to be the primary method of correcting an error of law.” (per Curtis J at [8])

Describing the corresponding reconsideration power in the 1926 Act Professor Mills in Workers Compensation (New South Wales) 2^nd ed. after reviewing the authorities, says:

“The Commission is not entitled to limit its power to reconsider an award by self-imposed rules. On the other hand, the section is not to be regarded as a mere liberty to a judge to change his mind or for the applicant to seek a different decision from a different judge. The requirement that the applicant show a change of circumstance distinguishes the review from an appeal.” (at P. 418)

Based upon the agreed facts in the correspondence of 8 and 9 February 2005, the application to reconsider was made after the arbitrator had expressed a finding that a certain legislative provision had application in the matter. She had not pronounced any award or made any formal order. The legal consequences of her finding remained to be spelt out. The parties agree there had been a formal finding, not merely a provisional expression of opinion inviting submissions in response to it. Yet there were at that stage no formal orders. As the respondent’s submissions point out, no certificate of determination issued from the Commission encapsulating any order made. The circumstances are not those where the reconsideration power has customarily been exercised.
Was there a ‘matter’ to be reconsidered, or a ‘decision’ to be rescinded, altered or amended? ‘Decision’ is defined in section 352(8) of the 1998 Act, but that definition is only for the purposes of section 352 (governing appeals against decisions of arbitrators). It does not purport to apply to section 350. In different legislative contexts, it has been held a ‘decision’ susceptible to appeal under the Government and Related Employees Appeal Tribunal Act, 1980 extends to a Tribunal decision on a question of law on which the Tribunal’s ultimate decision is based (Clisdell v Commissioner of Police (1993) 31 NSWLR 555). There is a ‘decision’ on a question of law for the purposes of section 54 of the Government and Related Employees Appeal Tribunal Act 1980 whenever the Tribunal decides a question of law (Metropolitan Water Sewerage & Drainage Board v Histon & Ors [1982] 2 NSWLR 720). It has been held an expression of opinion on a question of law by the Supreme Court is a ‘decision of a court’ for the purposes of the Suitors Fund Act 1951 (Mir Bros Developments Pty Ltd v Atlantic Constructions Pty Ltd (1985)1 NSWLR 491). The meaning will always, however, depend upon the legislative context. In Registrar of the Workers Compensation Commission of New South Wales v FAI Insurances Ltd [1980] 1 NSWLR 276 the NSW Court of Appeal held the word ‘decision’ in section 29 of the 1926 Act referred to a final decision, that being the clear legislative intent in that section.
I have formed the view section 350(3) of the 1998 Act should not be construed so broadly as to include reconsideration of a finding, such as that made initially by the arbitrator on 4 February 2003. The arbitrator had not pronounced any formal award or orders. She had simply made a finding which was one step along the path towards a final award or orders. In the course of delivering oral reasons for a final decision, which is a common occurrence, an arbitrator will frequently decide multiple different questions of fact and law, all or many of which will affect the outcome, and the rights of the parties. It cannot in my view have been the legislative intent that each such finding, as pronounced, could potentially be the subject of reconsideration under section 350(3).
If I am wrong on this point, I have formed the view that even if the reconsideration power was potentially available at the time when it was exercised on 4 February 2005, the arbitrator was in error in then exercising it. She had apparently heard argument from the parties on the point she decided, and then made a finding. It has been pointed out in Hardaker and Blackwell that it is necessary to distinguish between the existence of the power and the occasion of its exercise. I accept the point made by Professor Mills in the quotation at [36] that the power should not be regarded as a mere liberty to a judge to change his mind. In the circumstances of the current case the arbitrator exercised the power to rescind her finding virtually straight after making it. It is difficult to see there could have been any valid basis for exercising the power, if it existed, in this fashion. The respondent, in its submissions on this appeal, does not point to any fresh evidence or other material which is said to justify the reconsideration. Rather, “The respondent submits that it is not required to prove a change in circumstances or adduce new evidence in order to make an application under Section 350(3) of the 1998 Act”. However there must be some basis to justify exercise of the reconsideration power. In the circumstances, there is no basis put forward which would justify exercise of the reconsideration power, even if such power were available in the circumstances. This, even if the power was available in the circumstances, amounts to a discretionary error.

Accordingly I have formed the view the arbitrator was in error in purporting to exercise a power to reconsider the finding she had made, on 4 February 2005.
I do not, however, in reviewing the decision, intend applying the decision the arbitrator initially made on 4 February 2005. When the matter came before the Compensation Court on 30 September 2003, clearly the court had jurisdiction to deal with the appellant’s pleaded claim, including that for weekly payments on a continuing basis. The appellant had pleaded the claim, and no jurisdictional point had been raised by the respondent. As the respondent has pointed out in its letter of 9 February 2005, there was no suggestion the pleading was in breach of section 101 of the 1998 Act. Terms of settlement were then signed on behalf of both parties, and consent orders made, which included provision for an award for the respondent on the ongoing weekly claim. The clear effect of this award, in my view, was (at that point) to relieve the respondent of any obligation to make further weekly payments to the appellant. The respondent was perfectly entitled to act upon this award, and cease the payments it had been making, on a voluntary basis. There was no other logical meaning to be attached to an award for the respondent on the ongoing weekly claim that was pleaded.
If it had been the intention of the parties that the weekly claim need not be the subject of orders, as there was no weekly compensation outstanding, it was an available option that the appellant’s claim for weekly compensation be withdrawn at that stage. Clearly there was a recognition by the parties of the difference between withdrawal of a claim, and entry of an award for the respondent on the claim. Withdrawal by consent is precisely what occurred in respect of the claim for lump sums pursuant to sections 66 and 67 of the 1987 Act.

The respondent did not act with any great haste, but eventually ceased weekly payments as at 17 December 2003. The interval between 30 September 2003 and 17 December 2003 may represent a lengthy reaction time to the award in its favour, but it does not amount to a reacceptance by the respondent of liability for the weekly payments. There was no evidence of a further claim in respect of which the respondent could have accepted voluntary liability, and the question of liability flowing from the claims the subject of the Compensation Court proceedings had already been dealt with on 30 September 2003.
It follows that in my view it was not necessary that the respondent give notice to the appellant pursuant to section 74 of the 1998 Act, prior to ceasing payments of weekly compensation, in compliance with the award entered by consent in its favour on 30 September 2003.
Grounds of appeal are raised regarding the arbitrator’s treatment of the consent award of 30 September 2003, and its effect. The existence and alleged effect of the award of 30 September 2003 are matters which should have been pleaded by the respondent in its Reply, and were not. However the existence of the award was well known to both parties, and had been raised by the appellant’s solicitors in their letter to the respondent’s insurer of 19 December 2003, seeking restitution of weekly payments, after the respondent ceased making them. The matter has been conducted by the parties on the basis the earlier award, and its legal consequences, are matters in issue, which require determination. It is not necessary to rely upon strict pleadings to define the issues between the parties in “the informal less technical environment of the Commission”, providing rules of procedural fairness are observed, and a party has notice of the case against it, and an opportunity to respond (Far West Area Health Service v Radford [2003] NSWWCCPD 10). This clearly has been the situation in this case, in respect of the estoppel issue, notwithstanding the respondent’s failure to plead it.
The arbitrator approached the weekly claim on the basis there was a pre-existing award which was not a nullity, and accordingly it was necessary for the appellant to demonstrate a change of circumstances since the date of that award, pursuant to section 55 of the 1987 Act, if she was to succeed. This attached more significance to the status of the consent award than was justified in the circumstances.
There is a very helpful review of the authorities by Neilson J, relating to both cause of action estoppel and issue estoppel, and their application in workers compensation litigation, in Bruce v Grocon Ltd (1995) 11 NSWCCR 247 (‘Bruce’). His Honour says:

“Of course, the doctrine of res judicata, meaning cause of action estoppel and also the doctrine of issue estoppel can have no application in a claim for reconsideration pursuant to section 17(4). It is to overcome such principles that the power of reconsideration exists. That is what Rainbow J. was referring to in Humphries v Shell Co of Australia Ltd. However, in my view, absent an application under section 17(4) of the Compensation Court Act 1984, any determination made by this court does create an issue estoppel: see Somodaj v Australian Iron & Steel Ltd (1963) 109 CLR 285. Therefore, there is no reason in principle why a determination of this court could not in appropriate circumstances create a cause of action estoppel, absent an application under section 17(4).” (at 264D)

The arbitrator, after referring to Bruce and Lambidis v Commissioner of Police (1995) 12 NSWCCR 225 held that principles of res judicata and issue estoppel apply in relation to workers compensation. Clearly this is so. However the prior award in this case is a consent award, and accordingly there was no determination of factual matters, leading to entry of the earlier award.

In Rail Services Australia v Dimovski & Anor [2004] NSWCA 267 (‘Dimovski’) one of the issues related to the status to be ascribed to a prior consent award for a lump sum. There had been a consent award under section 66 of the 1987 Act, for 25% loss of use of the leg resulting from one injury. There was evidence of two subsequent injuries with the same employer. As a matter of fact, the trial judge found these to have resulted in permanent aggravation of the same leg. However the trial judge also made a factual finding that the loss at the time she was assessing the matter was 25%, that being a figure for which the worker had already been compensated. Accordingly she made no additional award for lump sums in respect of that leg, although logically the loss should have increased beyond 25%, due to the effects of the two further permanent aggravations. Handley JA found that a consent award can create a res judicata estoppel (at [9]). However His Honour then applied the following passage from O’Donel v Commissioner for Road Transport (1938) 59 CLR 744:

“The argument involves and is based upon the fallacy that where an issue between A and B related to a state of things which is capable of subsequent alteration, the conclusive determination in A’s favour of that state of things as at one date plus conclusive proof that up to a later date there has been no alteration of that state of things establishes in A’s favour as against B an estoppel as to the state of things existing at the later day…this method, though logically sound, is not permitted by law…The unsuccessful party is bound by the authoritative determination of every fundamental issue but when a distinct and separate issue arises subsequently, he is not bound to submit to the second issue being established by the combination of a former issue with additional evidence, no matter how strong such evidence may be.” (Evatt J at 763, quoted in Dimovski at [12])

In upholding the approach taken by the trial judge, that the prior consent award did not oblige her to make an award for a figure higher than the 25% loss she had found to exist, Handley JA went on:

“She had to determine the extent of the impairment at the date of trial. The consent award involved admissions by the parties and these, coupled with the presumption of continuance, were of some weight. However there was much other evidence, lay and expert, relating to the worker’s impairment at the later date and the weight to be given to the admissions and the presumption of continuance was a question of fact for the judge.
Her task was to assess the extent of the worker’s current impairment following the later injuries without legal constraints flowing from the earlier award.
Having made her award she was not obliged to find an explanation for the discrepancy.” (at [14] and [15])

The status to be ascribed to a prior consent award between the parties, in subsequent litigation, is considered by Neilson J in Anderson v Charles Sturt University (2002) 25 NSWCCR 407 (‘Anderson’). There had been litigation involving a claim for lump sums pursuant to sections 66 and 67 of the 1987 Act. This was settled, and short minutes of order providing for consent awards for lump sum compensation were signed and handed up. An award was made in accord with the short minutes of order. Certain admissions and agreed facts were also signed by the legal representatives of the parties, and placed with the court file. Subsequently the worker commenced proceedings, relying upon the same injuries, claiming weekly compensation from a date after to the date of the earlier consent award. In these later proceedings the worker sought to rely upon the earlier award as creating an estoppel in respect of the injuries the subject of the earlier consent award. Neilson J quotes from the judgment of Jacobs JA in Ashenden v Stewarts & Lloyds (Australia) Pty Ltd [1972] 2 NSWLR 484:

“Judge Ferrari reached the conclusion, with which I respectfully agree, that the making of an agreement between the parties does not take away or diminish the jurisdiction of the Court.” (at 490)

Neilson J continues:

“Parties can ask the Court to enter up an award in accordance with their agreement. The Court, provided jurisdiction exists, can enter up that award. However, even though formed in the terms of a Court award, it is still in effect an agreement between the parties. It does not create any issue estoppel. Mere payment of compensation cannot amount to an estoppel but at most, if anything, an admission. Such was the decision of the Court of Appeal in APD Snack Foods Pty Ltd v Vuic [1984] 58 WCR (NSW) 62, a decision of Hutley AP, Glass and Mahoney JJA.” (at [30])

Anderson is also authority for the proposition that it is necessary to plead an estoppel, although for the reasons expressed above I would not regard the failure of the respondent to plead the estoppel in its Reply as being fatal in this matter.
Applying the reasoning in Anderson, as I do, in my view the arbitrator has erred in the approach she has taken to the prior consent award. It did not involve any findings by the court, but rather enshrined in an award what was an agreement between the parties. Its legal effect on the later proceedings did not go beyond whatever evidentiary force lay in the admissions by the parties, which were inherent in the terms and consent award. Accordingly it was not appropriate to approach the weekly claim, as the arbitrator did, on the basis the appellant had to demonstrate a change in circumstances since the date of the consent award, if she was to succeed.
In so far as the section 60 claim in matter no. 12628-2005 is concerned, on the face of it those proceedings sought orders in respect of a wide array of expenses, including the costs of botox injections, travelling and accommodation expenses, osteopathy, a lumbar support, dumbbells and yoga. Ultimately the arbitrator, in her reasons for decision and certificate of determination, dealt only with the reasonableness of the botox treatment. This also was the only area of treatment raised by the appellant in her grounds of appeal. It appears this was the only area of contention between the parties, on which the arbitrator’s decision was required, so far as section 60 expenses are concerned. I will accordingly restrict myself in the same fashion. The appellant claims error by the arbitrator in preferring the evidence of Dr Rabone (who had not examined the appellant) over other evidence, and in failing to apply an appropriate test as regards whether the treatment was reasonable and necessary. It will be convenient to consider whether there was error in the approach taken on this issue, when considering the medical evidence overall in respect of the weekly claim.
Given the errors of law which I have found in how the weekly claim was dealt with, it is necessary the award of the arbitrator in paragraph 1 of the Certificate of Determination dated 29 November 2005, be revoked. Having reached the view which I have regarding the issues raised, relating to the exercise of the reconsideration power, and the significance of any estoppel flowing from the prior proceedings, it is unnecessary that I deal with the balance of the grounds of appeal. This is with the exception of the discrete ground relating to the section 60 dispute. It is desirable that a Presidential member who upholds an appeal finally determine the matter, if this is possible (Chubb Security Australia Pty Ltd v Trevarrow [2004] NSWCA 344). The evidence in the matter was all documentary, no witnesses gave evidence. There are no findings on credit to be considered. I have the benefit of the material available to the arbitrator. I have the benefit of transcript of the submissions made on behalf of the parties on the arbitration hearing on 9 November 2005, and also written submissions filed by both parties on this appeal. It is appropriate I determine the matter.

The appellant commenced in the respondent’s employ in April 1998. She earned $255.60 per week for part-time work Monday to Friday. A letter from the respondent dated 12 April 2001 says she worked 22.5 hours per week. The respondent’s office had an agency for the St George Bank, and the appellant says the position was doing “bank duties”. Her employment background is clerical, with considerable experience in the banking industry.
The appellant was involved in three motor vehicle accidents whilst engaged in journeys between her place of work and place of abode, such that section 10 of the 1987 Act had application. There was no serious issue taken by the respondent that the accidents were compensable. A number of the medical practitioners who have reported in the matter comment on the fact that the appellant is a difficult historian (eg Dr Glenn in his report of 24 September 2001). There are variations in the histories as regards precisely when the appellant took time off, sought medical treatment, and commenced suffering symptoms in different parts of her body. As all of these motor vehicle accidents are compensable, I shall not dwell unduly on such details.
The first of these accidents has been described as occurring on 11 June 1998 (pleaded in the current applications), and also 11 July 1998 (the date pleaded in the earlier Compensation Court proceedings). The date is said to be 11 June 1998 in a relatively contemporaneous document, the claim form of 23 November 1998, and I find this the more likely date of that occurrence. Nothing is alleged to turn on the discrepancy, or on which of the dates is correct. The appellant was travelling to work at the time, when she ran into the rear of another car which had stopped.
Histories vary somewhat as regards the initial consequences of that accident. The appellant’s statement says that, as she was still on probation at the time, she simply worked on in “terrible pain”. Some doctors have been told she did not seek medical treatment after the first accident (eg Dr O’Keefe on 23 September 1999), some have been told she consulted a GP (eg Dr Patrick on 3 September 2003). In any event there was not much (if any) medical treatment after this accident, and little (if any) loss of time from work.
The second accident occurred on 17 August 1998. The appellant was driving to work when she hit a kangaroo which jumped onto the road. She may have had a little time off work (see the history recorded by Dr Patrick), and consulted a GP. She thinks she had some physiotherapy later that year (see Dr Glenn’s history).
The third accident occurred on 25 June 1999 as she was driving home from work. Again she hit a kangaroo on the road. She told Dr O’Keefe, on 23 September 1999, that she had three days off work in August 1999, due to problems from these accidents, and the following month her employment was terminated.
As mentioned above, the histories are not unanimous regarding precisely which symptoms commenced after which accident, however due to a combination of the accidents the appellant complains of injury to her back, neck, left shoulder and both knees. There are related complaints such as headaches, and radiating symptoms. She also relies upon an allegation of anxiety and depression.
Having been terminated by the respondent in August 1999, the appellant commenced work “in late September/October 1999” at the St George Bank. She describes earning $800 to $1,200 per fortnight, working “5 ½ days per week as a Customer Service Officer/Casual”. She says she worked “in incredible pain taking more and more pain killers to keep going”. She “had to pull out and stop work in July, 2000 because I could no longer tolerate the pain and was taking more and more time off”. She has not worked since. As discussed above, she was paid voluntary compensation benefits by the respondent for a period. It appears these ceased at one stage, but recommenced for reasons which are unclear. There is no issue the appellant was paid her appropriate weekly benefits up to 17 December 2003, when these ceased in circumstances already discussed. The pleaded weekly claim commences from that date.
There is considerable divergence of medical opinion. The orthopaedic surgeon Dr O’Keefe examined the appellant on a number of occasions, the last being 24 June 2003. His summary of the appellant’s injuries at that time was “bilateral patellofemoral chondromalacia (dashboard knees)”, “low back pain which appears to be mainly degenerate in origin but was certainly worsened by the accidents with annular tears in her L4/5 lumbar disc”, and “some arthritis pathology affecting her shoulders on both sides and a partial thickness tear of her left rotator cuff…her cervical pain is almost certainly related to trapezial muscle spasm resulting from her left shoulder but does in fact give her a neck impairment”. He thought her “not fit to return to clerical work and would most likely benefit from running a home business if something suitable could be found. That way she could manage her own hours and the pace of work, etc”.
There are some short handwritten reports from Dr Liaw, orthopaedic surgeon, who treated the appellant’s knee problems. He carried out an arthroscopic procedure to the right knee in June 2001. Dr Smith’s report quotes a report of Dr Liaw dated 22 June 2001 (which was not itself in evidence) detailing an arthroscopic finding of “a flap on the medial femoral condyle of 1 by 1 centimetre in size. A chondroplasty was undertaken. An anomaly is described with regard to the anterior horn of the medial meniscus”. Dr Liaw’s report of 3 August 2001 records the appellant’s “right knee pain has settled”. This situation did not continue. The report of the approved medical specialist, Dr Murray Hyde Page, describes a further procedure by Dr Liaw in December 2002, when arthroscopy of the left knee “showed a Grade 11 medial femoral chondral defect where a chondroplasty was performed and there appeared to be slight lateral tracking or tilt of the patella and a lateral release of the patella was performed”.
Dr Patrick, surgeon, examined the appellant at the request of her own solicitors on 3 September 2003. He believed it reasonable the need for surgical intervention on the knees resulted from the motor accidents. He said the multiple symptoms in the appellant’s neck, back, knees and left shoulder resulted from the work related motor accidents. He thought her condition stabilised, and believed her fit for suitable lighter part-time work, not involving various specified activities.
The appellant was treated by the rheumatologist and pain management specialist Dr Schwarzer, whose reports of 11 November 2002 and 9 July 2003 detail his treatment and views up to that time. The diagnosis he reached in the later of these reports was “internal disc disruption of the L4-5 intervertebral disc and pain arising from the right C2-3 zygapophysial joint”. He said the appellant was likely to be left with “a significant degree of pain that will render her unfit for occupations for which she had been previously trained”.
There was a short report from one of the appellant’s general practitioners, Dr David Bennett, dated 11 May 2005, annexed to the second of her Applications to resolve a Dispute. Dr Bennett there said “she is totally incapable of any kind of work at all at present. The future is unknown regarding this, but I am very doubtful that she will be able to work again.”

There was also evidence in the appellant’s case from two psychologists, Ms Nolan and Ms Lewis. Ms Lewis saw the appellant for a number of sessions of pain management counselling in 2001. Her report does not add significantly to a consideration of the appellant’s economic incapacity subsequent to 17 December 2003. Ms Nolan treated the appellant from 18 July 2001. Her report describes the appellant’s symptoms of anxiety and depression as fulfilling “the DSM IV criteria for Adjustment Disorder with anxiety”. Her symptoms were consistent with the trauma of the accidents, and their sequelae, including chronic pain and restricted activities. As at 21 August 2003 (the last consultation detailed in her report) Ms Nolan thought the appellant could not cope in her pre-injury occupation, based upon her reported levels of pain.
In the respondent’s case, Dr Smith examined the appellant on 17 August 2001. He found her anxious on examination. There was global power loss in all movements of the left upper limb. He could find nothing wrong with either knee. He thought there was “no explanation for her ongoing symptoms and consider(ed) that she is exhibiting a hysterical over-reaction”. He regarded her as fit to work in a clerical occupation with no restriction as regards hours. He thought any accident caused aggravation of the degenerative changes, demonstrated in the radiological investigations, of the lumbar and cervical regions of the appellant’s spine had ceased.
Dr Glen, examining the appellant on 20 September 2001, found her difficult to assess. He thought there may have been some permanent aggravation of the degenerative changes in the appellant’s lumbar spine. It was possible the right knee had also been injured in one of the accidents. He found no abnormality on examination of the limbs or neck. He considered there to be “a very strong overlying functional or psychological disturbance”, which he was not qualified to assess. On the basis of her structural abnormalities, he thought her fit to carry out “light semi-sedentary clerical work on a full-time basis. She should avoid situations which require repetitive bending, stooping and lifting.”
Dr Roberts assessed the appellant on 25 June 2002. He thought the most likely explanation of her “multitude of symptoms” was a soft tissue inflammatory disorder (arthralgia and myalgia), together with the onset of a depressive illness as a result of her personal circumstances. He found her fit for clerical duties.
Dr Lowy examined the appellant at the request of the respondent on 10 June 2003. He described her as suffering “chronic pain for some years without relief”, “more or less throughout her entire body for which there are minimal if any abnormal physical signs recorded in the file”. He thought “learned pain behaviour” to be the primary diagnosis. From a physical point of view he thought her fit for any work for which she was suited by virtue of her education, training and experience. Somewhat paradoxically, he goes on to assess permanent impairment of ten percent of the neck, ten percent of the back, and ten percent of both legs at or above the knee, although says this is predominantly related to constitutional factors, and minimally if at all to the motor vehicle accidents.
Dr Bodel assessed the appellant on 10 June 2003. He diagnosed “mechanical symptoms in the neck and back”, and said the appellant “should be capable of a wide range of work tasks including her pre-injury work as a bank teller”.
This leaves the opinion of the approved medical specialist Dr Murray Hyde Page, who examined the appellant on 24 September 2004. His is the only comprehensive medical report in evidence which post-dates commencement of the weekly claim from 17 December 2003. I find his views helpful. He records a comprehensive description of the appellant’s history, treatment, symptoms, and clinical investigations. He reviews multiple medical reports from treating and qualified doctors, and records his findings on examination. Unlike some of the respondent’s doctors, he “found Mrs De Witte to be straightforward in her presentation and answering of various questions. There is no suggestion of exaggeration or embellishment overall”. Dr Murray Hyde Page assessed multiple permanent impairments and losses, set out at page 14 of his report and recited at [11] above. These assessments were binding on the parties for the purpose of the appellant’s claims pursuant to sections 66 and 67 of the 1987 Act, and an agreement pursuant to section 66A was registered consistent with the assessments of Dr Murray Hyde Page.
As regards capacity for work, Dr Murray Hyde Page’s views are not binding on the parties. He discusses this topic at page 13 of his report, where he says:

“I have come to the conclusion that a combination of Ms de Witte’s symptoms involving her neck back left shoulder and knees would interfere with her ability to undertake the type of work she has done in the past. However the nature of the type of work she would be doing is such that she could continue with clerical and office type work on a casual or part time basis. I would estimate she is able to work four hours a day five days a week in this capacity. After doing this level of work activity for four months it would be sensible for her then to have an occupational assessment with a view to whether or not she could increase her hours of work and participation in the workplace.”

I find Dr Murray Hyde Page’s views the most compelling of the medical views in the case. He has approached assessment of the appellant with apparent objectivity. He has had the benefit of the multiple reports of other medical practitioners to consider. His assessment post dates the others, and occurs during the period the subject of the weekly claim. It is also consistent with the statement of the appellant, in that she attempted to continue in banking duties after the last of the motor vehicle accidents, and found she was unable to do so on a long term basis. I accept the opinion of Dr Murray Hyde Page that the appellant has a partial incapacity for work. I accept she would probably, given the multiple symptoms from which she suffers, have trouble with “the type of work she has done in the past”, that is, banking duties. Whilst some of the medical evidence refers to functional and depressive problems, the evidence overall does not convince me problems of a psychiatric nature have added to the appellant’s incapacity, during the period of this claim, that is, since 17 December 2003.
In assessing the appellant’s entitlement pursuant to section 40 of the 1987 Act, it is necessary first to ascertain the weekly amount she would probably have been earning as a worker but for the injury had she continued to be employed in the same or some comparable employment. She was employed by the respondent on a part-time basis for 22 ½ hours per week. These hours are said to have suited her, as she could be home by 3pm to be with her children (see paragraph 6 of her statement). It is likely she worked longer hours at the St George Bank (where she worked for a period after being terminated by the respondent), as the earnings there are higher. It is not clear how much longer these hours were. The evidence does not permit a conclusion the appellant’s earnings for the purposes of section 40(2)(a) should be calculated on a basis other than that of part-time work with the respondent for 22 ½ hours per week.
The fact that the appellant was able, during this period of employment at St George Bank, to earn more than her earnings had been with the respondent, is not inconsistent with a finding of economic incapacity. In Alexander v Ashfield Municipal Council (NSW Court of Appeal, No. 78/81, 27 October 1982, unreported) Hutley JA says:

“Capacity is diminished, even though in selected instances the worker can earn as much as he did before, if there are fields from which he is excluded by reason of injury in which he laboured at the time of the injury.”

The material before the arbitrator included a document headed “Amended Respondent’s Wage Schedule”, dated 10 September, which had been filed on 11 September 2003 in the earlier proceedings in the Compensation Court. That document was annexed to the respondent’s Reply, and contains figures it concedes as representing “Comparable Earnings”, which I take to be the figures required for the upper end of the section 40 calculation, pursuant to section 40(2)(a). Those figures expire as at 30 September 2003 (this having been the hearing date in those earlier proceedings). There is, hand written into the document, the words “From 1/1/05 $300pw”. This I take to represent an agreement between the parties, or at least a concession by the respondent, that this was the appropriate figure from 1 January 2005. The previous figure to that, in this document, was $285 per week, as at 30 September 2003. On the basis of these concessions, I find the appellant’s probable earnings but for injury, to be $285.00 per week from 17 December 2003 to 31 December 2004, and $300.00 per week thereafter.
Dr Murray Hyde Page, whose views I have accepted as regards partial incapacity, expressed the view the appellant was physically capable of four hours per day, five days per week, of clerical work. The hourly rate the appellant would be able to earn if not for injury, in her work with the respondent, was $12.66 from 17 December 2003 to 31 December 2004, and $13.33 thereafter. Twenty hours per week at these rates would equate to $253.20 per week for the first period, and $266.60 for the second. However this in my view would overstate the appellant’s ability to earn in some suitable employment, for the purposes of the lower limb of the section 40 equation (section 40(2)(b)). Section 43A of the 1987 Act directs that I look to various matters in identifying ‘suitable employment’. Relevantly in this matter, the appellant’s work experience (at least since 1994 – see Dr Murray Hyde Page at page 6.2) and pre-injury employment have been in the banking industry, a field in which she would now have difficulty working, according to the medical evidence I have accepted. One would expect her to be able to command a higher hourly rate in that industry (in which her more recent work experience lies), than in clerical work of a more general nature, to which she does not bring recent relevant experience. A calculation of her ability to earn in some suitable employment should reflect this.
The appellant’s place of residence is Bonny Hills, on the north coast of NSW. One would expect opportunities for part-time restricted clerical duties, on the labour market reasonably accessible to her, to be less frequent than in a large metropolis. Having regard to the restricted class of work for which the appellant can now compete, her work experience since 1994, and her place of residence, it is likely her ability to earn in some suitable employment will be further reduced by intermittency of employment. This is a valid factor to take into account in calculating the lower limb of section 40 (section 40(2)(b)) (see Summerson v Alcan Australia Ltd (1994) 10 NSWCCR 571). Considering all of these matters, I find the appellant’s ability to earn in some suitable employment to be $180.00 per week from 17 December 2003 to 31 December 2004, and $190.00 per week thereafter.
These findings leave an arithmetical difference pursuant to the section 40(2) of $105.00
per week from 17 December 2003 to 31 December 2004, and $110.00 per week from 1 January 2005 to date and continuing. There are no factors which would call for the exercise of discretion, to reduce that arithmetical difference, pursuant to section 40(1) of the 1987 Act.
This leaves the grounds of appeal relating to the botox treatment. It is claimed the arbitrator applied the wrong test in considering this question, and also erred in preferring the evidence of Dr Rabone to that proffered by the appellant.
The evidence in support of this aspect of the appellant’s case was sparse. The following material was annexed to the second Application to Resolve a Dispute, relevant to whether such treatment constituted “reasonably necessary” medical or related treatment for the purposes of section 60:

(i)short report of Dr Julie Knight dated 13 October 2004 which stated she had treated the appellant with botox that day, “in an attempt to treat Margaret for her severe and disabling frontal/temporal headaches which have been a problem since her accident in 1998.”
(ii)short handwritten report of Dr David Bennett dated 6 January 2005, which states “Margaret is still getting severe pain across temple, forehead (?) and neck. She had great relief from BOTOX INJ and she is now due for a repeat.” There is a handwritten notation at the foot of that report which appears to be in the appellant’s writing, and says “next injections 18/1/05 approx $620.00 as before, will be having them on an as needed basis. Stops eye weeping with migraines and relaxes jaw muscles & stops pain down right cheek.”

(iii)Paragraphs 8 and 9 of the appellant’s statement dated 5 June 2005 say radiofrequency combined with botox injections in the forehead and temple “give even more relief”, and prevent eye weeping, right sided face pain and pain across forehead, “for longer time than my medication can with less side effects”.

The respondent’s case on the point was a report from Dr Rabone dated 3 March 2005. It does not appear he examined the appellant. It is apparent he had access to some form of medical file, having regard to his comments about the history. He does not specify just what material he had access to. He quotes the question he was asked to answer regarding the botox treatment as being “whether this treatment is reasonable?” He briefly describes part of the history, including noting there have been periods when the effects of the appellant’s percutaneous neurotomies have overlapped with periods when she has insisted on botox injections. To paraphrase his opinion, he says there are no good trials at this stage to support its use. It could help pain from muscle spasm. Professor Bogduk maintains botox in this situation is not helpful. Paralysing muscles could cause neck weakness and cause neck damage in the longer term. Long term effects of repeated treatments are unknown. In the appellant’s case the cost is over $2,000 per annum and there has been a lack of improvement. He ultimately recommends “Botox injections are not required.”
The arbitrator’s treatment of this discrete point is to be found at pages 12.3 to 13.1 of her Statement of Reasons for Decision. She describes the general factors to be considered in deciding whether treatment is reasonably necessary as including whether a treating doctor recommends it over a long period of time, a concurrence by most medical specialists that the treatment is reasonably necessary, a belief from the worker that she benefits from it, a failure by the employer to suggest alternative treatment, and evidence that the treatment program will maintain the worker at current levels or prevent deterioration.
The arbitrator says she is persuaded by certain of Dr Rabone’s comments. She also notes percutaneous neurotomy appears to be an alternative treatment advanced by Dr Bennett. She notes she could not see any reference in the reports of Dr Schwarzer (whose material was annexed to the earlier Application to Resolve a Dispute) to him recommending botox. She notes Dr Schwarzer is the appellant’s pain management specialist.
I do not take the arbitrator, in describing the general factors to be considered, to be laying down an exhaustive test which she proposes applying in considering this aspect. In a general sense, whether treatment is recommended by a treating doctor, whether a worker benefits from the treatment, whether there is an alternative treatment that is better, and whether a treatment is accepted by the medical profession are relevant factors in considering the question. These represent a number of the factors set out by Burke J in Pelama Pty Ltd v Blake (1988) 4 NSWCCR 264 (‘Pelama’). They were legitimate matters to consider.
The medical evidence on the point, in the appellant’s case, established the botox treatment had been recommended to her by two of her general practitioners. There was also the lay evidence from the appellant that she had found it helpful. Dr Rabone’s report presented valid matters to be balanced with these factors, in considering the reasonableness. The absence of clinical trials goes potentially to whether it is accepted by the medical profession. The possibility of it doing harm in the long term goes to its appropriateness. The use from time to time of percutaneous neurotomy goes to alternative treatment which is available, and which may, on Dr Rabone’s views, be safer.
I am not persuaded ground 21 of the grounds of appeal is made out. The arbitrator set out a number of matters as being of general relevance to the question of whether this treatment was reasonably necessary. Whilst she did so in a short point form, and not exhaustively, the matters described were consistent with authorities such as Pelama and Bartolo v Western Sydney Area Health Service (1997) 14 NSWCCR 233. She has then considered such matters, having regard to the limited medical evidence available on this specific point. She took the evidence of Dr Rabone into account in considering the relevant matters, which she described as being “general matters”. I would not necessarily say that she preferred the evidence of Dr Rabone (which is how ground 21a describes it). Her approach on this point did not, in my view, demonstrate error.

DECISION

For the above reasons, the appeal is upheld in respect of paragraph 1 of the decision of the arbitrator dated 29 November 2005. That paragraph is revoked, and the following decision is made in its place:
“1. That the respondent pay to the appellant weekly compensation at the rate of $105.00 per week from 17 December 2003 to 31 December 2004, and at the rate of $110.00 per week from 1 January 2005 to date and continuing, pursuant to section 40 of the 1987 Act”.
Consequently, it is appropriate the respondent pay the appellant’s costs of the proceedings before the arbitrator. I revoke paragraph 3 of the decision of the arbitrator dated 29 November 2005, and make the following order in it’s place:

“3.The respondent is to pay the appellant’s costs.”

Paragraphs 2 and 4 of the decision of the arbitrator dated 29 November 2005 are confirmed.

COSTS

The appellant has succeeded substantially in the appeal. I order the respondent to pay the costs of the appeal.

Michael Snell
Acting Deputy President
2 June 2006

I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF MICHAEL SNELL, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE