Department of Aging, Disability and Home Care v Findlay - [2011] NSWWCCPD 65

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Department of Ageing, Disability and Home Care v Findlay [2011] NSWWCCPD 65
APPELLANT:		Department of Ageing, Disability and Home Care
RESPONDENT:		Judith Findlay
INSURER:		Allianz Australia Workers Compensation (NSW) Ltd
FILE NUMBER:		A1-3113/11
ARBITRATOR:	Mr G Edwards
DATE OF ARBITRATOR’S DECISION:		5 July 2011
DATE OF APPEAL DECISION:		11 November 2011
SUBJECT MATTER OF DECISION:		Injury; aggravation of disease; need for independent corroboration of complaints of pain; expert evidence; application in the Commission of the principles in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705 in light of Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11
PRESIDENTIAL MEMBER:		Deputy President Bill Roche
HEARING:		On the papers
REPRESENTATION:		Appellant:	McLean Lawyers
Respondent:	Steve Masselos & Co
ORDERS MADE ON APPEAL:		Paragraph 1 of the Arbitrator’s determination of 5 July 2011 is revoked and the following order made in its place: “1. The matter is remitted to the Registrar for referral to an Approved Medical Specialist (AMS) to assess the applicant worker’s whole person impairment as a result of injury to her lumbar spine deemed to have happened on 4 February 2008 and as a result of injury to her cervical spine deemed to have happened on 8 February 2011. The following documents are to be sent to the AMS: (a) Application to Resolve a Dispute and attached documents; (b) Application to Admit Late Documents and attached documents filed by the applicant on 7 June 2011; (c) Reply and attached documents, and (d) Application to Admit Late Documents and attached documents filed by the respondent on 23 June 2011. After assessing the worker’s whole person impairment as a result of the injury to the worker’s cervical spine and as a result of the injury to her lumbar spine, the AMS is to use the Combined Value Chart to give the worker’s total whole person impairment.” Paragraphs 2 and 3 of the Arbitrator’s determination of 5 July 2011 are confirmed. The appellant employer is to pay the respondent worker’s costs of the appeal, as agreed or assessed.

BACKGROUND

The respondent worker, Judith Findlay, is currently 57 years old. She started work with the appellant employer, the Department of Ageing, Disability and Home Care (the Department), as a careworker in August 1997. Her duties required her to shower, dress, and generally care for elderly and disabled clients.
She has claimed lump sum compensation in respect of a 12 per cent whole person impairment she alleges has resulted from an injury to her back and neck caused by her heavy and repetitive duties since 1997. The injury is said to be an aggravation, acceleration or exacerbation of a disease process.
The Department admitted liability in respect of the injury to the lumbar spine (low back). It disputed liability in respect of the alleged injury to the cervical spine (neck) because, it argued, Ms Findlay suffered no injury to her cervical spine and, in the absence of any radiological evidence of a disease, it was not open to the Arbitrator to find an injury in the nature of an aggravation of a disease.
The matter proceeded to arbitration before Arbitrator Edwards on 30 June 2011. The Arbitrator heard submissions, but neither side applied to call any oral evidence.
The Arbitrator delivered his decision orally on 1 July 2011. Based on the evidence of Dr Matthew Giblin, orthopaedic surgeon, and Ms Findlay’s evidence of the nature of her duties, the Arbitrator accepted that she has a disease in her cervical spine and that, as a result of the heavy duties she performed with the Department since 1997, she aggravated that disease in the course of her employment. He remitted the matter to the Registrar for referral to an Approved Medical Specialist (AMS) for assessment of her whole person impairment as a result of injury to both the lumbar spine and the cervical spine.
The Department has appealed the Arbitrator’s decision.

ON THE PAPERS

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.”
Having regard to Practice Directions Nos 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed on the papers, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.

THE ARBITRATOR’S DECISION

The Arbitrator recorded that Ms Findlay relied on the disease provisions in ss 15 and 16 of the Workers Compensation Act 1987 (the 1987 Act) and on the heavy duties she performed as a careworker involving repetitive lifting of elderly and disabled clients up to 18 May 2010.
He referred (at T14.8–43) to her statement dated 4 April 2011 and quoted the following passages from it:
“I commenced employment as a care worker with the Department of Age Disability and Home Care in August 1997. My duties as a care worker involve respite care, caring for elderly and disabled clients, cleaning and shopping. The care work involves showering, dressing and generally repetitive lifting whilst in awkward situations.”
And:
“In or about the latter half of 2007 I was feeling pain in my lower back. I consulted a general practitioner, Dr Tsui and he gave me a general sickness certificate for one or two days off work. In particular, in the period leading up to January 2008, I was feeling pain in my lower back. In the period leading up to January I recall moving a paraplegic and my back has never felt the same since that time. I developed a slow deterioration of problems in my back and neck in performing my work tasks, showering, dressing and caring for elderly and disabled clients. My work included repetitive lifting in awkward positions, carrying shopping and performing cleaning tasks such as sweeping, mopping floors, bending to clean bathroom showers. Prior to 2007 I was in relatively good health and had not experienced any back or neck problems for which I needed to consult a doctor.”
The Arbitrator then recorded that Ms Findlay consulted Dr Mathews, general practitioner, on or about 2 February 2008 “in respect of her complaints” (T14.46). He noted that Dr Mathews took a “very comprehensive history” in relation to Ms Findlay’s work tasks, but recorded only complaints about her lumbar spine and no complaints about her cervical spine.
Ms Findlay then saw Dr Etherington, spine surgeon, on 2 October 2008 for her lumbar spine. He took no history of Ms Findlay complaining about her neck or cervical spine.
Ms Findlay returned to work on suitable duties some time in 2008, and worked five-and-a-half hours per day for three days per week, with a lifting restriction of 5 kg and 30-minute limits on her sitting, standing and walking. She continued those duties until the insurer denied her claim and withdrew them on 22 September 2009. The Department terminated Ms Findlay’s employment on 18 May 2010.
The Arbitrator referred to clinical notes from Dr Tsui, one of Ms Findlay’s general practitioners. Those notes record that Ms Findlay attended on 3 April 2005 complaining of neck pain. On examination, Dr Tsui recorded “Neck: tender, full ROM, restriction present, no contusion, [l]eft, shoulder”. Under “Reason for visit”, he recorded “cervical spondylosis”. He did not record the cause of the pain.
Next, the Arbitrator referred to the reports from Dr Matthew Giblin dated 7 September 2009 and 6 December 2010 addressed to the worker’s solicitor. Dr Giblin took the following history in his first report:
“She is a 55 year old Care Worker, who has had low back and neck pain for the last two and a half years. She tells me that around two and a half years ago she was moving a paraplegic when she felt some pain in her back and since that time she started to develop a slow deterioration of the low back and cervico thoracic regions. She continued on at work just trying to manage her problems.”
Under “Examination”, Dr Giblin recorded:
“On examination of her cervical spine; she is able to put her chin on her chest; left lateral rotation free to move initially, but then suddenly the neck pain caught her and it was restricted by 20%. This was associated with pain and spasms. Right lateral motion was restricted by 30% with pain at the extremes. She had a good range movement of the shoulders and there were no significant peripheral neurological signs.”

Dr Giblin noted that an MRI scan of the lumbar spine dated 28 October 2008 revealed mild degenerative changes at L4/5 and L5/S1. He concluded:
“It is my opinion today’s symptoms relate to nature of the work activities, which has involved a lot of repetitive bending and heavy lifting over a period of 12 years. The facet blocks were helpful for a period of two weeks indicating her pain most likely is facet.”

In respect of the cervical spine, he said:
“I am unable to comment as to the cause of any cervico/thoracic pain, as no current investigations are available.”

In his second report, Dr Giblin recorded that Ms Findlay continued to complain of neck pain on an intermittent basis, which seemed to be activity-related. Under “present disabilities” “general”, he said:
“Her neck bothers her with activities such as vacuuming, reading, sitting watching television, reverse parking the car or driving. It aches in the cold weather and other things involving quick movements aggravate her.”

Examination of the neck revealed that extension was reduced and lateral rotation was reduced by 20 per cent on each side at the extremes, with guarding and muscle spasm. There were no significant peripheral neurological signs. He concluded that:
“My opinion remains the same as my previous report, there has been some slight improvement in her neck symptoms since I last saw her, but she still has ongoing disabilities. There has been no significant improvement in her back pain. I consider she has an aggravation of her underlying degenerative change of the lumbar spine. Considering her age and the absence of x-rays of her cervical spine, I consider she probably has some degenerative changes in the cervical spine and most likely has an aggravation of those changes as well.”
The Arbitrator also referred to a report from Dr Ginsberg dated 26 March 2008, which referred to Ms Findlay’s lumbar spine symptoms, which were due to facet joint arthrosis, but made no reference to her cervical spine.
After setting out the above evidence, the Arbitrator noted submissions made by the Department that, in the absence of any x-rays, Dr Giblin’s opinion could not be accepted and the Arbitrator would not be satisfied that Ms Findlay suffers from a disease in her cervical spine. The Arbitrator said that, on the basis of Dr Ginsberg’s diagnosis of facet joint arthrosis in the lower lumbar spine, and Dr Giblin’s opinion, he was satisfied, taking into account Ms Findlay’s duties from “1997 through to 2009”, that she “does suffer with a disease process of [the] cervical spine” (T18.47).
He added (at T19.29):
“I accept, as a finding of fact, that the type of work that the Applicant did and the work tasks she performed were real and of substance and that she did that work over a number of years from 1997 up until she stopped work in 2009. I also accept what the history has recorded in the Applicant’s Statement as to the work tasks and also the type of duties set out in Dr Matthews’ work [sic] – as work tasks of a nature which would aggravate, accelerate, exacerbate or deteriorate a degenerative process in the Applicant’s spine.”

The Arbitrator said that he accepted Dr Giblin’s opinion and that, in his view, based on Paric v John Holland Constructions Pty Ltd [1985] HCA 58; 59 ALJR 844; [1984] 2 NSWLR 505 at 509–510, Dr Giblin “had a fair climate upon which he based his decision” (T19.52). He added (at T19.54– 20.10) that Dr Giblin had:
(a)a comprehensive history of Ms Findlay’s work tasks;
(b)viewed the MRI scan of the lumbar spine;
(c)found a restriction in movement of Ms Findlay’s neck on examination (as had Dr Tsui in April 2005), and
(d)concluded that, while he did not have any x-rays or scans of the cervical spine, “probably the Applicant has some degenerative changes in the cervical spine and most likely had an aggravation of [degenerative change in spine 0:46:14.1] as well” (T20.10).
In the passage quoted at [25(d)] above, the Arbitrator said he was quoting from Dr Giblin’s report of 6 December 2010 under “Opinion & Prognosis”. The quote has been incorrectly transcribed. Though nothing turns on it, Dr Giblin said, “I consider she probably has some degenerative changes in the cervical spine and most likely has an aggravation of those changes as well”.
After quoting Dr Giblin, the Arbitrator said (at T20.16):
“I infer and accept and make a finding of fact that the changes and the aggravation he refers to will be the tasks performed by the Applicant in the course of her employment.”
While there was an absence of radiological evidence, the Arbitrator said (at T20.31–34) that he had the opinions of Dr Giblin and Dr Tsui that Ms Findlay suffers from degenerative changes to the cervical spine.
The Arbitrator was comforted by the views of Dr Ginsberg, which he said were consistent with Dr Giblin’s opinion that Ms Findlay has degenerative changes in her lumbar spine (facet joint arthrosis) that had been aggravated by her work. He inferred, based on Dr Ginsberg’s report, and having accepted the histories set out in Ms Findlay’s statement and given to the doctors, that it was likely that Ms Findlay suffered degenerative changes in the cervical spine.
He concluded (at T20.57) that Ms Findlay’s cervical disease “was aggravated, accelerated, exacerbated or deteriorated as a result of the work tasks that she performed over a long period of time with … the deemed date of injury being the 4^th February 2008 when she … made her claim for compensation”.

ISSUES IN DISPUTE

The issues in dispute in the appeal are whether the Arbitrator erred in:
(a)finding that the worker had sustained an injury to her neck by way of an aggravation of a disease process that occurred with the Department on 4 February 2008;
(b)in relying on the opinion of Dr Giblin;
(c)in finding that Dr Tsui had made a diagnosis of “cervical spondylosis”, and
(d)in finding a deemed date of injury of 4 February 2008.

SUBMISSIONS

The Department submitted that:
(a)the Arbitrator erred in finding that the worker had sustained an injury to her neck because the evidence “fell short of what is required for expert opinion evidence and would not persuade the Arbitrator of the existence of that fact”;
(b)the Arbitrator erred in finding injury when there were no independent complaints of pain that were contemporaneous with the claimed injury as required by authorities such as The Department of Education and Training v Ireland [2008] NSWWCCPD 134 (Ireland);
(c)the Arbitrator erred in accepting Dr Giblin’s evidence because Dr Giblin failed to set out the basis for his opinion and, as a result, his opinion lacked weight and probative value to establish that the worker was suffering from a degenerative disease in her neck or that her employment aggravated that disease process (Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705 (Makita); Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42; 2 DDCR 271 (Hevi Lift);
(d)the Arbitrator erred in accepting the evidence from Dr Giblin and Dr Tsui because their opinions lacked the necessary probative value and weight to actually persuade the Arbitrator that Ms Findlay suffers from a degenerative condition in her neck and that such condition was aggravated by her employment;
(e)Dr Tsui only recorded one instance of neck pain over the period when the aggravation is said to have occurred and gave no reason for his conclusion that Ms Findlay has cervical spondylosis;
(f)there are no contemporaneous records of Ms Findlay’s neck pain being in any way connected to her employment with the Department;
(g)the Arbitrator failed to exercise caution when accepting the diagnosis of Dr Tsui (Davis v Council of the City of Wagga Wagga [2004] NSWCA 34; 4 DDCR 358 (Davis) and Mason v Demasi [2009] NSWCA 227 (Demasi);
(h)the Arbitrator erred in drawing the conclusion that, because there were non–specific degenerative changes in the lumbar spine, a degenerative process or disease existed in the neck. An “equal explanation for pain [in the neck] could be transient mechanical neck pain”, and
(i)the deemed date of injury of 4 February 2008 cannot be correct for the cervical spine. That date was agreed to be the deemed date of injury for the lumbar spine because that was the date on which Ms Findlay claimed compensation for that injury. As there is no evidence that Ms Findlay has suffered an incapacity as a result of any injury to her cervical spine, the correct deemed date of injury is the date of claim for compensation on 8 January 2011.

DISCUSSION AND FINDINGS

Save for the correct deemed date of injury, I do not accept the above submissions.
Ireland gives the Department little, if any, assistance. It was not a disease case. Ms Ireland alleged that she had injured her left arm and shoulder and her back in a fall in the course of her employment on 4 November 2004. The respondent conceded injury to the left arm and shoulder, but disputed that she had injured her back. The Arbitrator found in favour of Ms Ireland.
On appeal, conducted as a review, Keating P reversed the Arbitrator’s decision because Ms Ireland had made no mention of having injured her back in the fall until October 2007 ([98]) and, as a result, the medical opinions based on a history that she had back symptoms from the time of the fall were of limited probative value ([99]).
His Honour concluded, after referring to the need for a tribunal of fact to be actually persuaded of the existence of a fact before it can be found (Nguyen v Cosmopolitan Homes [2008] NSWCA 246), that, given the evidence before him, he was not persuaded that Ms Ireland had injured her back in the fall. Ireland was decided on its facts and states no principle of law that is binding in the present matter.
Nothing in Ireland suggests or implies that a worker cannot succeed without independent contemporaneous evidence to corroborate his or her complaints. In civil law, corroboration is not a legal requirement; a judge’s (and arbitrator’s) task is to decide cases on an assessment of the whole of the evidence (Chanaa v Zarour [2011] NSWCA 199 at [86]). While independent corroboration of complaints of pain will often be helpful and relevant in assessing the probative value of the evidence overall, such evidence is not a “requirement” that must be satisfied before an arbitrator can feel actual persuasion about the existence of a fact in issue.
Whether the Arbitrator erred in finding in favour of Ms Findlay requires an assessment of the evidence and the Arbitrator’s reasons. It is not dependent on factual findings in a different case.
The submission that the evidence fell short of what is required for expert opinion evidence is based on the argument that Dr Giblin’s evidence failed to comply with the principles in Makita. In Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11, the Court of Appeal examined the application of Makita to proceedings in the Commission. Beazley JA (Giles and Tobias JJA agreeing) said (at [82]) there could be no doubt that the Commission is required to be satisfied that expert evidence provides a satisfactory basis upon which the Commission can make its findings. However, even in evidence-based jurisdictions, “that does not require strict compliance with each and every feature referred to by Heydon JA in Makita to be set out in each and every report”.

Her Honour referred (at [78]) to the following statement by Spigelman CJ in Australian Securities and Investments Commission v Rich [2005] NSWCA 152 at [105] as “clearly correct”. The Chief Justice said:
“Although expressed in terms of ‘usefulness’, the starting point for Heydon JA’s detailed analysis of the case law on admissibility does not suggest any focus on the true historical process by which the expert first formed the relevant opinion. The focus of attention – the ‘prime duty’ – is to ensure that the court, as the tribunal of fact, is placed in a position where it can examine and assess the evidence presented to it. That can occur without adopting the true factual basis approach. What Heydon JA identified as the expert’s ‘prime duty’ is fully satisfied if the expert identifies the facts and reasoning process which he or she asserts justify the opinion. That is sufficient to enable the tribunal of fact to evaluate the opinions expressed.” (emphasis added)
Her Honour added (at [83]) that, in non-evidence based jurisdictions (such as the Commission), the question of “acceptability of expert evidence will not be one of admissibility but of weight”. What is required for satisfactory compliance with the principles governing expert evidence is for the expert’s report to set out “the facts observed, the assumed facts including those garnered from other sources such as the history provided by the appellant, and information from x-rays and other tests” ([85]).
The principles in Makita were also explained in Adler v Australian Securities and Investments Commission [2003] NSWCA 131, where Giles JA (Mason P and Beazley JA agreeing) held (at [631]):
“Whether an opinion has been shown to be based on the specialised knowledge is a question of fact, and s 79 provides that it is sufficient that it is substantially based on that knowledge. What is required by way of the explanation of which Heydon JA spoke in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at [85] will depend on the circumstances. The disconformity in HG v The Queen [1999] HCA 2; (1999) 197 CLR 414 to which his Honour referred was gross, in that the psychologist’s evidence went to when the complainant was abused and who abused her, outside a psychologist’s expertise and based on matters other than a psychologist’s expertise. Other circumstances will be quite different. And, as was said in Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157, absolute certainty that the opinion is based on the specialised knowledge is not required (at [14]) and many of the stated qualities of the opinion evidence by Heydon JA ‘involve questions of degree, requiring the exercise of judgment’ (at [87]).”
Dr Giblin’s opinion that, notwithstanding the absence of x-rays, Ms Findlay has degenerative changes in her cervical spine and most likely aggravated those changes was based on:
(a)the history he took from Ms Findlay that her duties with the Department “involved a lot of repetitive bending and heavy lifting over a period of twelve years” and that she developed a “slow deterioration of her low back and cervico thoracic regions” in the two-and-a-half years since she hurt her back moving a paraplegic;
(b)his findings on examination of Ms Findlay’s cervical spine, which revealed a restricted range of movement associated with pain and spasm, and
(c)her age.
These matters explained the basis for Dr Giblin’s opinion and complied with the principles governing expert evidence in the Commission. It was therefore open to the Arbitrator to accept the doctor’s conclusions and to find that Ms Findlay suffered from a disease in her cervical spine and that, as a result of her duties with the Department over a long period, she had aggravated, exacerbated or accelerated that disease.
Dr Tsui’s evidence was of limited relevance to the outcome and was certainly not determinative. Had Ms Findlay sought to rely solely on his evidence in support of her case, she would have had obvious difficulties because Dr Tsui expressed no opinion on causation and recorded no history. However, Dr Tsui’s opinion on diagnosis was open to him and was based on his findings on examination. The weight to be attached to his opinion is another matter. Dr Tsui’s diagnosis was only one factor the Arbitrator considered with regard to whether Ms Findlay suffers from a disease. He was entitled to consider it. However, he did not base his conclusion on it.
I do not accept that the Arbitrator failed to exercise caution when considering Dr Tsui’s diagnosis. The Department’s solicitor has taken Davis and Demasi completely out of context. Those decisions give no support for the Department’s position on appeal. They considered the failure of general practitioners (and other health professionals) to record accurately full histories in the course of treating patients, and the need to use caution when comparing treating doctors’ notes with apparently inconsistent statements or oral testimony. Dr Tsui’s notes are not inconsistent with Ms Findlay’s evidence; they support her claim that she developed neck symptoms well before she saw Dr Giblin in 2009. At its highest for the Department, the notes do not, on their own, establish Ms Findlay’s case. The Arbitrator did not hold that they did.
The criticism of the Arbitrator’s reference to Ms Findlay having degenerative changes in her lumbar spine is also without merit. The Arbitrator did not base his decision on that fact, but merely observed that he was comforted (in reaching his conclusion) by the views of Dr Ginsberg. As his conclusion is sustainable by reference to Dr Giblin’s evidence, that statement involves no error.
The submission that an equal explanation for Ms Findlay’s neck pain “could be transient mechanical neck pain” is unsupported by any expert evidence and is contrary to Ms Findlay’s evidence that she developed a slow deterioration of problems with her back and neck in performing her work tasks. That is not consistent with transient mechanical neck pain.
Having regard to the evidence from Dr Giblin and Ms Findlay, which the Arbitrator accepted, it was open to him to conclude that Ms Findlay suffered an aggravation injury to her cervical spine as a result of her heavy duties over time with the Department. That conclusion was reinforced by, but not based on, Dr Tsui’s opinion on diagnosis and by Dr Ginsberg’s evidence that Ms Findlay has primary constitutional osteoarthritis affecting her “axial skeleton”. The Arbitrator’s approach and conclusion disclose no error.
Though it has not been argued on appeal, and I have not based my decision on it, once it is accepted that the Arbitrator was entitled to accept Dr Giblin’s evidence, and that that evidence established a prima facie case, the acceptance of inferences in favour of Ms Findlay were more readily open in circumstances where the Department called no expert evidence to contradict Dr Giblin’s opinions.
Last, I agree that the Arbitrator erred in finding the deemed date of injury in respect of the cervical spine injury to be 4 February 2008. Having found the injury to be an aggravation of a disease, the injury shall be deemed to have happened at the time of the worker’s death or incapacity, or, if death or incapacity has not resulted from the injury, at the time the worker makes a claim for compensation with respect to the injury (s 16(1)(a) of the 1987 Act).
The parties agreed on the deemed date of injury of 4 February 2008 for the injury to the lumbar spine (presumably) because that was the date of claim for weekly compensation. Ms Findlay did not claim compensation for her cervical spine injury at that time. As there is no evidence that the aggravation injury to the cervical spine caused any incapacity, the correct deemed date of injury for the cervical spine injury is the date on which Ms Findlay claimed compensation for that injury. That was on 8 February 2011, not 8 January 2011 as submitted on appeal by the Department’s solicitor.
The fact that there are two deemed dates of injury raises the question of whether the assessments for the whole person impairment resulting from the cervical spine injury and from the lumbar spine injury can be assessed together for the purpose of reaching the threshold for compensation for pain and suffering under s 67 of the 1987 Act. The Commission considered that question in Department of Juvenile Justice v Edmed [2008] NSWWCCPD 6, where it was held that, if a worker suffers the same injury (pathology) from separate injurious incidents, or two separate injuries (pathologies) from the same injurious incident, those injuries are to be assessed together when calculating lump sum compensation. The parties made submissions on this point at a teleconference on 10 November 2011.
Ms Findlay’s solicitor submitted that the injury (pathology) to the worker’s cervical spine is the same as the injury (pathology) to her lumbar spine and she is entitled to have those injuries assessed together under s 322(2) of the 1998 Act. The Department’s solicitor submitted that the injuries are different and that, as there is no evidence, apart from Dr Giblin’s, of what caused the condition in Ms Findlay’s cervical spine, it cannot be said that they have resulted from the same injurious event or incident under s 322(3). He submitted that the impairments should be assessed separately and cannot be added together.
While the injury to Ms Findlay’s cervical spine may well be the same as the injury to her lumbar spine, I prefer to base my decision on the fact that the injuries (whether or not they resulted in the same pathology) have resulted from the same injurious incident, namely, the heavy repetitive duties Ms Findlay performed with the Department since 1997.
The Commission determines whether a worker has received “an injury” by applying s 4, not s 15 or s 16. Mahoney AP explained this point in Crisp v Chapman (1994) 10 NSWCCR 492. In that case, it was submitted that the worker’s case had been pressed on two alternative bases, “the section 15 basis and the section 16 basis”. In response to that submission, his Honour said (at 495):
“It is, I think, a confusion to treat section 15 or section 16 of the 1987 Act as, in the sense here relevant, creating liability for compensation. In general, each of the sections assumes that an injury has occurred and each provides the means of determining when the injury is deemed to have happened, by whom compensation is payable, and other ancillary matters. In principle, it remains for the worker to prove that an injury has occurred and accordingly that section 9(1) had been satisfied. To prove that, it is necessary for the worker to prove the ‘happening’ of an injury within section 4. However, section 15 applies essentially in the case of an injury of the second kind to which I have referred [a work-caused disease] and section 16 to an injury of the third kind [a work-aggravated disease]. It is, therefore, no doubt convenient to refer to injuries of those kinds as cases within section 15 and section 16 respectively. However it is necessary in doing so to recall that essentially the injuries are those provided for in section 4.”
This passage is consistent with the statement by Hodgson JA (Ipp JA and Hoeben J agreeing) in Gales v Lovett McCracken & BrayPty Ltd [2008] NSWCA 171; 6 DDCR 352 (Gales) at [31] that “Antaw does not support a proposition that s 15 (1)(b) can in effect create an injury, simply by deeming an injury to have occurred on a particular date”. It is also consistent with Powell JA’s decision in Kelly v Glenrock Pastoral Co Pty Ltd (1994) 10 NSWCCR 178 at 187G.
It follows from the above authorities, and from Ms Findlay’s evidence, that she developed a slow deterioration of problems in her back and neck in performing her work tasks over time, that the aggravation injury to her cervical spine and lumbar spine has resulted from the “same incident” under s 322(3) of the 1998 Act, and any impairments resulting from that incident should be assessed together.
The same result could have been reached by an alternative and much simpler method. As 8 February 2011 was also the first date of claim for lump sum compensation for the back, it would have been open to find that date is also the correct deemed date of injury for the purpose of lump sum compensation for the injury to the lumbar spine (Alto Ford Pty Ltd v Antaw [1999] NSWCA 234; 18 NSWCCR 246; Stone v Stannard Brothers Launch Services Pty Ltd [2004] NSWCA 277; 1 DDCR 701). The parties did not address on this approach.
The end result is the same with either method: the impairments from the aggravation injury to the cervical spine and the aggravation injury to the lumbar spine should be combined to give one whole person impairment.

CONCLUSION

The Arbitrator’s approach and conclusion that Ms Findlay suffers a disease in her cervical spine and that she aggravated, exacerbated or accelerated that disease as a result of the duties she performed with the Department over a long period of time were open to him and disclose no error. However, the Arbitrator erred in finding the same deemed date of injury for the injury to the cervical spine as for the injury to the lumbar spine. Neither side has suggested that the matter should be remitted for this error to be corrected and it is appropriate that it be done on appeal. As there is no power to amend an Arbitrator’s decision, it is appropriate that paragraph 1 of the Arbitrator’s orders be revoked and a new order made in its place, and that is the course I propose to adopt.

DECISION

Paragraph 1 of the Arbitrator’s determination of 5 July 2011 is revoked and the following order made in its place:
“1. The matter is remitted to the Registrar for referral to an Approved Medical Specialist (AMS) to assess the applicant worker’s whole person impairment as a result of injury to her lumbar spine deemed to have happened on 4 February 2008 and as a result of injury to her cervical spine deemed to have happened on 8 February 2011. The following documents are to be sent to the AMS:
(a)Application to Resolve a Dispute and attached documents;
(a)Application to Admit Late Documents and attached documents filed by the applicant on 7 June 2011;
(b)Reply and attached documents, and
(c)Application to Admit Late Documents and attached documents filed by the respondent on 23 June 2011.
After assessing the worker’s whole person impairment as a result of the injury to the worker’s cervical spine and as a result of the injury to her lumbar spine, the AMS is to use the Combined Value Chart to give the worker’s total whole person impairment.”
Paragraphs 2 and 3 of the Arbitrator’s determination of 5 July 2011 are confirmed.

COSTS

The appellant employer is to pay the respondent worker’s costs of the appeal, as agreed or assessed.

Bill Roche

Deputy President
11 November 2011

I, PENELOPE FLEMING, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE