Department of Juvenile Justice v Edmed
[2008] NSWWCCPD 6
•18 January 2008
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
STATUS: Reported Decision: Department of Juvenile Justice v Edmed (2008) 7 DDCR 288
CITATION:Department of Juvenile Justice v Edmed [2008] NSWWCCPD 6
APPELLANT: Department of Juvenile Justice
RESPONDENT: Stephen Craig Edmed
INSURER:Employers Mutual Limited as agent for NSW Self Insurance Corporation
FILE NUMBER: WCC17678-06
DATE OF ARBITRATOR’S DECISION: 21 September 2007
DATE OF APPEAL DECISION: 18 January 2008
SUBJECT MATTER OF DECISION: Lump sum compensation; multiple post 31 December 2001 injuries; circumstances in which the effects of multiple injuries can be aggregated to meet the threshold for compensation under section 67 of the Workers Compensation Act 1987
PRESIDENTIAL MEMBER: Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION: Appellant: Moray & Agnew
Respondent: Adams Leyland Lawyers
ORDERS MADE ON APPEAL: Paragraphs one and three of the Arbitrator’s determination of 21 September 2007 are revoked and the following order made:
“1.That the Respondent pay to the Applicant the sum of $11,250.00 in respect of a 9% whole person impairment as a result of injury to the right upper extremity on 1 March 2003.”
Paragraphs two and four of the Arbitrator’s determination are confirmed.
No order as to costs of the appeal.
BACKGROUND TO THE APPEAL
On 3 March 2004 Stephen Edmed (‘the Respondent Worker/Mr Edmed’) injured his right wrist in the course of his employment as a prison officer with the Department of Juvenile Justice (‘the Appellant Employer/the Department’). The injury occurred when Mr Edmed was removing a weapon from a detainee and he caught his wrist between the detainee and the floor. As a result he attended Dubbo Base Hospital where x-rays revealed a fracture of his scaphoid and the radial styloid.
Though the fractures healed, he continued to experience pain in his wrist and was referred for an MRI scan. The scan revealed a tear of the triangular fibrocartilage for which he underwent surgical repair on 19 May 2003 and again in late 2003. In addition to symptoms in his right wrist, Mr Edmed also noticed paraesthesia in the right ring and little fingers and intermittent shooting sensations emanating from the medial elbow radiating down the medial forearm. Nerve conduction studies on 3 September 2003 showed evidence of mild ulnar neuropathy at the right elbow. Liability for this injury was accepted.
Mr Edmed ultimately returned to work as a prison officer. On 25 August 2004 he suffered further injury to his right wrist when a detainee kicked him in the right forearm making his wrist painful and aggravating the problem with his right ulnar nerve. X-rays revealed that he had re-fractured his right scaphoid and an MRI scan showed a tear of the scapho-lunate ligament. He underwent surgery on 21 March 2005 when debridement of the partial sapho-lunate ligament tear was performed. He continued to experience pain as a result of a painful right ulnar nerve and underwent an ulnar nerve decompression and transposition at his right elbow on 26 August 2005. This procedure did not help his ulnar nerve symptoms and a further operation was performed on his elbow in May 2006.
By an Application to Resolve a Dispute (‘the Application’) registered in the Commission on 17 November 2006 Mr Edmed sought lump sum compensation in respect of an alleged whole person impairment of 16% as a result of his injuries on 1 March 2003 and 25 August 2004. The claim was referred to an Approved Medical Specialist (‘AMS’) for assessment. The AMS (Dr Lahz) prepared a Medical Assessment Certificate (the first MAC) on 16 January 2007 (wrongly dated 16 January 2006) in which she assessed Mr Edmed’s ulnar nerve dysfunction had not stabilised. The AMS again assessed Mr Edmed on 25 June 2007 and issued a second MAC on 10 July 2007.
The second MAC assessed Mr Edmed to have a 13% whole person impairment as a result of the condition of his “right upper extremity – ulnar nerve dysfunction”. Dr Lahz then applied a one-third deduction because of the injury on 25 August 2004, giving a 9% whole person impairment “arising from the injury occurring 1/3/03” (MAC 10 July 2007, page 11). She applied a two-thirds deduction because of the injury occurring on 1 March 2003 giving a 4% whole person impairment “arising from injury occurring 25/8/04”.
The matter was listed for conciliation and arbitration before a Commission Arbitrator on 30 August 2007 when the Respondent Worker argued that as he had a whole person impairment of 10% or more he was entitled to compensation for pain and suffering under section 67 of the Workers Compensation Act 1987 (‘the 1987 Act’). The Appellant Employer argued that as Mr Edmed had sustained two injuries and had been assessed to have two separate impairments as a result of those injuries, both of which were below the section 67 threshold, he had no entitlement to compensation for pain and suffering. The matter proceeded to arbitration and in a Certificate of Determination dated 21 September 2007 the Arbitrator found in favour of Mr Edmed and made the following orders:
“1.That the Respondent pay the Applicant the sum of $12,375 in respect of a 9% Whole Person Impairment to the right upper extremity as a result of injury on 1 March 2003.
2.That the Respondent pay to the Applicant the sum of $5,000 in respect of a 4% Whole Person Impairment to the right upper extremity as a result of injury on 25 August 2004.
3.That the Respondent pay to the Applicant the sum of $7,500 for the pain and suffering under section 67 of the Workers Compensation Act 1987.
4. That the Respondent pay the Applicant’s costs as agreed or assessed.”
By an appeal filed on 19 October 2007 the Department seeks leave to appeal the Arbitrator’s decision to award Mr Edmed compensation for pain and suffering.
LEAVE TO APPEAL
Monetary Threshold
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
The thresholds in section 352(2)(a) and (b) of the 1998 Act are satisfied.
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
I grant leave to appeal.
PRELIMINARY MATTERS
Section 354(6) of the 1998 Act provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in determining that:
(a)the injury suffered by the Mr Edmed on 25 August 2004 resulted in a degree of whole person impairment of 10% or more;
(b)Mr Edmed is entitled to compensation for pain and suffering under section 67 of the 1987 Act, and
(c)the correct compensation payable for a 9% whole person impairment is $11,250.00 rather than $12,375.00.
REVIEW
The nature of a review and the role and function of a Presidential member on appeal has been considered in many cases in the Commission. In The King Island Company Ltd v Deery [2005] NSWWCCPD 1 it was held at [19]:
“19. A Presidential Member on appeal has a specific and limited role in the review of a decision of an Arbitrator. The review is not a rehearing. The Presidential member is not dealing with the matter de novo and is not arriving at a fresh decision based on all of the evidence available at a later time (Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616). The powers of the Presidential Member to revoke the decision pursuant to section 352(7) of the 1998 Act and to substitute a new decision in its place, are exercisable only where it is demonstrated that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172). Alternatively, the Presidential Member may remit the matter back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions made.”
The nature of a review was considered by the Court of Appeal in Aluminium Louvres & Ceilings Pty Limited v Zheng [2006] NSWCA 34 where Bryson JA said at [38]:
“A review is a different process to an appeal and the matters which may be considered and the manner in which they may be considered are somewhat wider. See Boston Clothing Co Pty Ltd v. Margaronis (1992) 27 NSWLR 580 at 584 (Kirby P). An attack, on review or otherwise, on an Arbitrator's discretionary decision in controlling procedure may be based on the test stated in House v. R (1936) 55 CLR 499 at 504 - 505; but that is not the only basis on which the Presidential member may act. The powers of a Presidential member on review are somewhat wider and extend to power to reopen consideration of a matter of which an Arbitrator has disposed; the manner in which the powers of the Presidential member are to be exercised is itself the subject of discretion of the Presidential member.”
This passage was recently quoted with approval by McColl JA in South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 at [134] (‘Edmonds’). To describe the relative weight and relevance of the expert evidence as “a discretionary decision which could only be disturbed on House v The King principles” was described by McColl JA as “an over-generalisation” (at [133]).
The nature of a review was further considered by the Court of Appeal in State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249 where Spigelman CJ said at [28] and [30]:
“28. The concept of a review on the merits is wider than the concept of an appeal in a judicial context. There is a well established line of authority on the use of the terminology of ‘review’ instead of ‘appeal’ with respect to the workers compensation system in this State which establishes the breadth of a review on the merits.
30. A Presidential member exercising a power to review a decision must decide whether the original decision is wrong or, as it is often put in the context of administrative appeals on merits, must decide what is the true and correct view. If s/he does so decide then s/he should substitute his or her own views, unless it is an appropriate case to remit. The power to remit is not constrained in the manner for which the Appellant contends.”
Before an Arbitrator’s decision will be revoked on review it must be demonstrated that it contains or has resulted from an error of fact, law or discretion. The error must be such that, but for it, a different decision should have been made (see Snow Confectionary Pty Ltd v Askin [2004] NSWWCCPD 56; Section 294 of the 1998 Act; YG & GG v Minister for Community Services [2002] NSWCA 247, and Absolon v NSW TAFE [1999] NSWCA 311).
I intend to apply the above principles in the matter before me.
SUBMISSIONS AND FINDINGS
The Appellant Employer submits:
(a)Mr Edmed suffered two separate and distinct injuries and the AMS assessed the whole person impairment resulting from each discrete injury, as distinct from a single indivisible impairment resulting from two separate injuries;
(b)a “medical dispute”, as defined in section 319 of the 1998 Act, arose between the parties about the degree of permanent impairment suffered by Mr Edmed as a result of each injury, and, in the case of the second injury, whether any proportion of permanent impairment was due to the first injury and the extent of that proportion;
(c)that dispute was referred to an AMS under section 321 for assessment under section 322, with appropriate deductions under section 323;
(d)the MAC was then issued under section 325 of the 1998 Act;
(e)under section 326 “An assessment certified in a medical assessment certificate pursuant to a medical assessment under this Part is conclusively presumed to be correct as to …(a) the degree of permanent impairment of the worker as a result of an injury, (b) whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality…”;
(f)thus, the assessment by the AMS that Mr Edmed has a 4% whole person impairment as a result of the injury on 25 August 2004 is conclusively presumed to be correct;
(g)as both of Mr Edmed’s injuries occurred after the repeal of section 65(3) of the 1987 Act, there is no scope for the application of the approach in Sidiropoulos v Able Placements Pty Ltd (1998) 16 NSWCCR 123; Scanlon v Powercoal Pty Ltd (2001) 20 NSWCCR 82; Pickles v Staples Waste Removals Pty Ltd (2000) 20 NSWCCR 729 and Rail Services Australia v Dimovski & anor [2004] NSWCA 267;
(h)the attainment of a certain level or degree of permanent impairment (the ‘overall or cumulative impairment’) may be the result of the super imposition on a pre-existing impairment of a discrete additional impairment resulting from a subsequent injury, but it cannot be said that the cumulative or overall impairment “results from” that subsequent injury. Any ‘overall’ impairment has resulted from all the discrete injuries, including work injuries, and other conditions that give rise to it. In terms of the overall degree of permanent impairment, each injury or condition is contributory but not causative. In the absence of any special provision in the legislation, each injury is now treated as causative only of the impairment that specifically results from it;
(i)compensation is payable only for that part of the assessed degree of permanent impairment that actually results from a particular injury (section 323 of the 1998 Act);
(j)where two or more injuries give rise to a single overall impairment it cannot be said that the “overall” degree of permanent impairment “results from” only one of those injuries or conditions, whether or not it is the last;
(k)the legislation clearly and specifically prescribes an assessment protocol directed at compensating separately and distinctly the degree of permanent impairment that results from each separate and distinct compensable injury, and
(l)in respect of the 9% whole person impairment suffered by Mr Edmed as a result of his first injury, the Arbitrator has wrongly awarded the amount applicable for injuries sustained after 1 January 2007 ($12,375.00) and the correct compensation is $11,250.00.
The Respondent Worker submits:
(a)he suffered “incidents” on 1 March 2003 and 25 August 2004;
(b)both incidents have contributed to the present persisting symptoms of right ulnar neuropathy;
(c)he has a whole person impairment of the right upper extremity of 13%;
(d)a 13% whole person impairment is sufficient for the purposes of section 67 of the 1987 Act to receive compensation for pain and suffering;
(e)the incidents on 1 March 2003 and 25 August 2004 were incidents producing an effect on his right upper extremity;
(f)as described by Judge Neilson in Lyons v Master Builders Association of NSW (2003) 25 NSWCCR 423 (Lyons), the word “injury” in section 65(2) of the 1987 Act means “the pathology that arises out of an injurious event”;
(g)section 65(2) refers to “more than one injury arising out of the same incident”. It is therefore a recognition of the definition of injury in section 4 of the 1987 Act, which refers to the personal physiology, as opposed to the external event that causes the physiology;
(h)a worker’s entitlement and an employer’s liability flow from section 9 of the 1987 Act which provides that “A worker who has received an injury …shall receive compensation from the worker’s employer in accordance with this Act” (emphasis added);
(i)an injury is something that is “inflicted” as opposed to an event occasioning an injury (per Dixon CJ in Kavanagh v The Commonwealth (1960) 103 CLR 547 at 557);
(j)an employer is liable for the consequences of causing “pathology”;
(k)by referring to the degree of permanent impairment “that results from an injury” section 65(1) of the 1987 Act determines the process or the manner of assessment of permanent impairment that results from a “pathology”;
(l)under section 323 of the 1998 Act, the degree of permanent impairment is assessed as having “resulted from an injury” (section 323(1));
(m)in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang) the Court of Appeal discussed the concept of “results from” and held that a commonsense causal chain operates and that the term means “to arise as a consequence…” (at 461);
(n)what is to be assessed in section 65 is the “pathology” that has been caused by the worker’s employment with the relevant employer;
(o)section 65A of the 1987 Act refers to permanent impairment that “results from”, but sections 66 and 67 both refer to an injury that “results in” permanent impairment. The term “results from” is “as to causation” and the term “results in” is “the product, effect or end result of the injury in terms of whole person impairment” (Respondent Worker’s submissions, page four lines 63 and 64);
(p)in determining the amount of compensation payable under section 66 and 67 of the 1987 Act one must determine the worker’s overall permanent impairment “that is produced or made effective or been the end result of the ‘pathology’ suffered by the worker in the worker’s employment with the worker’s employer” (Respondent Worker’s submissions, page five lines 75-77);
(q)the MAC determined there was “the same injury” (section 322(2) of the 1998 Act) which had to be assessed together and that was done by assessing a 13% whole person impairment. The impairments “result from” or were caused or emanate from the same injury. The “injury”, that is to say “the pathology”, has resulted in an impairment of 13%. The AMS then apportioned between the two incidents;
(r)at page nine of the MAC the AMS stated that “Mr Edmed has sustained two work related injuries to the right upper extremity. Both of these have contributed to the present persisting symptoms of the right ulnar neuropathy” and “there is permanent WPI arising from the right ulnar nerve dysfunction”, and
(s)the Appellant Employer’s argument confuses the definition of injury.
The resolution of the above arguments requires careful consideration of the terms of the legislation that took effect on 1 January 2002 (see Workers Compensation Legislation Amendment Act 2001 (‘the 2001 Amending Act’)). For the present purposes, the main changes to the 1987 Act introduced by the 2001 Amending Act were:
“65 Determination of degree of permanent impairment
(1) For the purposes of this Division, the degree of permanent impairment that results from an injury is to be assessed as provided by this section and Part 7 (Medical assessment) of Chapter 7 of the 1998 Act.
(2) If a worker receives more than one injury arising out of the same incident, those injuries are together to be treated as one injury for the purposes of this Division.Note: The injuries are to be compensated together, not as separate injuries. Section 322 of the 1998 Act requires the impairments that result from those injuries to be assessed together. Physical injuries and psychological/psychiatric injuries are not assessed together. See section 65A.
(3) If there is a dispute about the degree of permanent impairment of an injured worker, the Commission may not award permanent impairment compensation or pain and suffering compensation unless the degree of permanent impairment has been assessed by an approved medical specialist.”
“66 Entitlement to compensation for permanent impairment
(1) A worker who receives an injury that results in permanent impairment is entitled to receive from the worker’s employer compensation for that permanent impairment as provided by this section. …
(3) The amount of permanent impairment compensation is to be calculated under this section as it was in force at the date the injury was received.”
“67 Compensation for pain and suffering
(1) Worker who receives an injury that results in a degree of permanent impairment of 10% or more is entitled to receive from the worker’s employer as compensation for pain and suffering resulting from the permanent impairment an amount not exceeding $50,000….”
(6) If an amount mentioned in this section at any time after the commencement of this Act:
(a) is adjusted by the operation of Division 6;(b) is adjusted by an amendment of this section,
the compensation payable under this section is to be calculated by reference to the amount in force at the date of injury.”
So far as is relevant to the present appeal, the following provisions were added to the 1998 Act by the 2001 Amending Act:
“319 Definitions
In this Act:
…
medical dispute means a dispute between a claimant and the person on whom a claim is made about any of the following matters or a question about any of the following matters in connection with a claim:
(a)…
(c) the degree of permanent impairment of the worker as a result of an injury,
…”
“322 Assessment of impairment
(1) The assessment of the degree of permanent impairment of an injured worker for the purposes of the Workers Compensation Acts is to be made in accordance with WorkCover Guidelines (as in force at the time the assessment is made) issued for that purpose.
(2) Impairments that result from the same injury are to be assessed together to assess the degree of permanent impairment of the injured worker.
(3) Impairments that result from more than one injury arising out of the same incident are to be assessed together to assess the degree of permanent impairment of the injured worker.Note: Section 65A of the 1987 Act provides for impairment arising from psychological/psychiatric injuries to be assessed separately from impairment arising from physical injury.
(4) …”
“323 Deduction for previous injury or pre-existing condition or abnormality
(1) In assessing the degree of permanent impairment resulting from an injury, there is to be a deduction for any proportion of the impairment that is due to any previous injury (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act) or that is due to any pre-existing condition or abnormality.
(2) …”
“326 Status of medical assessments
(1) An assessment certified in a medical assessment certificate pursuant to a medical assessment under this Part is conclusively presumed to be correct as to the following matters in any proceedings before a court or the Commission with which the certificate is concerned:
(a) the degree of permanent impairment of the worker as a result of an injury,
(b) whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality,
(c) the nature and extent of loss of hearing suffered by a worker,
(d) whether impairment is permanent,
(e) whether the degree of permanent impairment is fully ascertainable.
(2) As to any other matter, the assessment certified is evidence (but not conclusive evidence) in any such proceedings.”
The term “injury” was not amended in the 2001 Amending Act. It is defined in section 4 of the 1987 Act as follows:
“4 Definition of ‘injury’
In this Act:
‘injury’:(a) means personal injury arising out of or in the course of employment,
(b) includes:(i) a disease which is contracted by a worker in the course of employment and to which the employment was a contributing factor, and
(ii) the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration, and
(c) does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942 , or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
This definition is unhelpful in determining the issue before me. In Lyons, Judge Neilson held that “injury” refers to “both the [injurious] event and the pathology arising from it”. I accept that definition as being appropriate for many purposes under the 1987 Act and the 1998 Act. That the term “injury” can have two different meanings is acknowledged in section 322(3) of the 1998 Act where reference is made to “Impairments that result from more than one injury arising out of the same incident…” (emphasis added). This reference to “injury” can only mean the ‘pathology’ that has resulted from the relevant work “incident” or injurious event. For example, if a worker falls and suffers a broken leg and separate and distinct nerve damage in the arm, he or she has suffered more than one “injury” (an injured leg and an injured arm) within the terms of section 322(3) resulting from the one “incident”. In other words, he or she has suffered more than one pathology (“injury”) as a result of the one incident or injurious event. Those “injuries” are to be assessed together. This interpretation is consistent with section 65(2) of the 1987 Act and is uncontroversial.
The difficulty arises when a worker suffers one pathology (“injury”) as a result of several independent “incidents” or injurious events. This situation is partly addressed in section 322(2), which provides that “Impairments that result from the same injury are to be assessed together to assess the degree of permanent impairment of the injured worker” (emphasis added). The reference to “the same injury” in section 322(2) cannot be a reference to “the same incident” because that situation is dealt with in section 322(3). The expression “the same injury” is not defined but it follows that if “injury” in section 322(3) means ‘pathology’ (as it must), then, for the section to be logically consistent, it must mean the same in section 322(2). If “injury” in section 322(2) means ‘pathology’ then, for section 322(2) to be consistent with section 322(3), impairments resulting from the “same injury” (the same pathology) are to be “assessed together” regardless of whether they arise from the same “incident” or separate incidents.
In my view the words “the same” in section 322(2) must be given their normal meaning. The Macquarie Dictionary, second edition, defines “same” to mean:
“1.identical with what is about to be or has just been mentioned: the very same man;
2. being one or identical, though having different names, aspects, etc: these are one and the same thing;
3.agreeing in kind, amount, etc; corresponding: two boxes of the same dimensions;
4.unchanged in character, condition, etc. –pron;
5.the same person or thing;
6.the same, with the same manner (used adverbially);
7.all the same, a. notwithstanding; nevertheless; b. immaterial; unimportant;
8.just the same, a. in the same manner, b. nevertheless.”
Applying this definition, the “same” means “identical”.
The question therefore arises: did Mr Edmed suffer the “same” injury (pathology) in each incident?
Mr Edmed underwent two AMS assessments with two MACs being issued. The first MAC was issued on 16 January 2007. The AMS noted Mr Edmed’s injuries (or pathologies) in the first incident to be:
(a)fractures of the right scaphoid and distal radius (first MAC, page two);
(b)a graze to the right elbow (first MAC, page two);
(c)a tear to the right triangular fibrocartilage (first MAC, page three), and
(d)bruising of the ulnar nerve at the elbow (first MAC, page seven).
She noted his injuries (or pathologies) in the second incident to be:
(a)a new right scaphoid fracture (first MAC, page three);
(b)a tear of the scapho-lunate ligament (first MAC, page three), and
(c)increased ulnar nerve symptoms (first MAC, page three).
The AMS assessed Mr Edmed to have a 6% whole person impairment “arising from the right wrist on the basis of observed restriction of active range of motion” and a 3% whole person impairment “arising from the right elbow on the basis of observed restriction of active range of motion” (first MAC, page 11). She thought that Mr Edmed would also have permanent whole person impairment as a result of his right ulnar nerve dysfunction at the elbow but it was too soon after his May 2006 surgery to consider stable for assessment. In respect of the assessed impairments, the AMS stated that the first “injury on 1/3/03 was more significant in orthopaedic terms than the second” (page 12) and she accordingly apportioned 2/3 of the found impairment to that injury and 1/3 to the “second incident on 25/8/04”.
The same AMS again assessed Mr Edmed on 25 June 2007 with the second MAC being issued on 10 July 2007. The AMS took substantially the same history as that recorded in the first MAC and gave the same assessments for the right wrist and right elbow with the same apportionment. In respect of the right ulnar nerve dysfunction she assessed a 4% whole person impairment (second MAC, page 10), giving a total impairment of 13%. She again apportioned that impairment 2/3 to the first injury and 1/3 to the second injury.
As the above analysis demonstrates, the AMS assessed Mr Edmed to have a 13% whole person impairment as a result of the combined effect of the incidents on 1 March 2003 and on 25 August 2004. However, contrary to Mr Edmed’s submissions, he did not sustain “the same” injury in each incident. There are at least three relevant differences:
(a)in the first incident Mr Edmed fractured his scaphoid and radius, but only his scaphoid in the second incident;
(b)in the first incident Mr Edmed injured his right triangular fibrocartilage, but in the second injured his scapho-lunate ligament, and
(c)there is no history of any graze to the right elbow in the second incident though it is accepted that his ulnar nerve symptoms increased after this incident.
Mr Edmed’s pathology resulting from the second accident was not identical with the pathology resulting from the first accident. Therefore, the AMS did not determine that the injuries (the pathologies) were “the same” for the purposes of section 322(2). She assessed that the first and second incidents resulted in an impairment of 13%. That is not the same as finding that the worker suffered “the same” injury (pathology) in each incident. Had Mr Edmed suffered “the same injury” (pathology) in each incident, I believe his argument would be correct and it would be appropriate to aggregate the effects of the two incidents. The evidence does not support that conclusion, as Mr Edmed did not suffer “the same injury” (pathology) in each incident.
It is also argued that the use of the expression “results in” in section 67 of the 1987 Act means that it is only necessary to look at the “product or end result of the injury in terms of whole person impairment”. This reasoning formed the basis of the Arbitrator’s conclusion in support of the award for pain and suffering. The Arbitrator referred to the terms of section 65 of the 1987 Act and noted that the criterion for the recovery for non-economic loss is now the “degree of permanent impairment that results from an injury” (Reasons, paragraph 19). He then referred to the terms of section 67 which provides that a worker “who receives an injury that results in a degree of permanent impairment of 10% or more is entitled to receive…” (emphasis added) compensation for pain and suffering. He observed that section 67 does not speak of an injury “causing” a degree of permanent impairment of greater than 10%, but of an injury “resulting in” a degree of permanent impairment of greater than 10% (Reasons, paragraph 22). The Arbitrator found (Reasons, paragraph 22) that the second injury resulted in Mr Edmed:
“having a permanent impairment of the right upper extremity of 13% i.e. that level of impairment arises as a consequence of the second injury. He had a 9% impairment caused by the first injury. The second injury caused an additional 4% impairment but the result is that he now has a 13% impairment and this is over the threshold for an award under section 67.”
I do not believe this interpretation is reasonably open. On the evidence from the AMS, the second incident resulted in an impairment of only 4%. The two incidents combined have resulted in an impairment of 13%. To be entitled to compensation for pain and suffering a worker must establish that he or she has sustained “an injury” (that is, one injury in either one incident or one pathology in two or more incidents) that has “resulted in” a degree of permanent impairment of 10% or more. The evidence does not establish that either of Mr Edmed’s incidents has, on its own, resulted in such a loss. Nor does it establish that he sustained “the same” injury (pathology) in each incident so as to obtain the benefit of section 322(2) of the 1998 Act.
This conclusion is consistent with the new scheme of lump sum compensation introduced by the 2001 Amending Act. If there is a dispute as to the degree of permanent impairment suffered by a worker “as a result of an injury” (section 319(c) of the 1998 Act) that dispute must be referred for assessment under Part 7 of the 1998 Act. The degree of permanent impairment of an injured worker is made in accordance with the WorkCover Guidelines (section 322 of the 1998 Act). Impairments that result from more than one injury (pathology) arising out of the same incident are to be assessed together (section 322(3) of the 1998 Act and section 65(2) of the 1987 Act). Impairments that result from the “same injury” (pathology) are to be assessed together even if they have resulted from different incidents, but the pathology (injury) resulting from each incident must be identical (section 322(2)).
In assessing the degree of permanent impairment resulting from an injury there is to be a deduction for any proportion of the impairment that is due to any previous injury or any pre-existing condition or abnormality (section 323(1) of the 1998 Act). This provision must be read subject to section 322 discussed above.
I also reject the Respondent Worker’s argument because of the form of the Arbitrator’s determination. He determined the employer to be liable for a 9% whole person impairment as a result of the injury on 1 March 2003 and 4% whole person impairment as a result of the injury on 25 August 2004. In the circumstances of the present case, these amounts cannot be aggregated so as to meet the section 67 threshold. Therefore, Mr Edmed has no entitlement to compensation for pain and suffering and that part of the Arbitrator’s determination must be revoked.
The amount awarded by the Arbitrator in respect of the injury on 1 March 2003 ($12,375.00) was incorrect. The correct amount for a 9% impairment resulting from an injury sustained between 1 January 2002 and 31 December 2006 is $11,250.
DECISION
Paragraphs one and three of the Arbitrator’s determination of 21 September 2007 are revoked and the following order made:
“1.That the Respondent pay to the Applicant the sum of $11,250.00 in respect of a 9% whole person impairment as a result of injury to the right upper extremity on 1 March 2003.”
Paragraphs two and four of the Arbitrator’s determination are confirmed.
COSTS
No order as to costs of the appeal.
Bill Roche
Deputy President
18 January 2008
I MELANIE CURTIN CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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