Donohue v The Reject Shop Limited - [2013] NSWWCCPD 63

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Donohue v The Reject Shop Limited [2013] NSWWCCPD 63
APPELLANT:	Tony Mark Donohue
RESPONDENT:	The Reject Shop Limited
INSURER:	Allianz Australia Workers’ Compensation (NSW) Limited
FILE NUMBER:	A1-12768/12
ARBITRATOR:	Mr J Phillips
DATE OF ARBITRATOR’S DECISION:	27 August 2013
DATE OF APPEAL DECISION:	22 November 2013
SUBJECT MATTER OF DECISION:	Sections 4 and 40 of the Workers Compensation Act 1987 (as it stood before amendment by the Workers Compensation Legislation Amendment Act 2012); aggravation of disease; s 352(5) of the Workplace Injury Management and Workers Compensation Act 1998; requirement that relevant error be established; proper approach to calculation of entitlement to weekly compensation benefits in respect of partial incapacity
PRESIDENTIAL MEMBER:	Deputy President Kevin O'Grady
HEARING:	On the papers
REPRESENTATION:	Appellant:	Lee Sames Egan
Respondent:	HWL Ebsworth Lawyers
ORDERS MADE ON APPEAL:	1. The awards and orders made by the Arbitrator found in paragraphs 1, 2, 3 and 5 of the Certificate of Determination dated 27 August 2013 are confirmed. 2. The order made in paragraph 4 in Certificate of Determination dated 27 August 2013 is revoked and the following determination is made in its place: “4. No order is made in respect of the claim for weekly compensation.” 3. No order as to costs of this appeal.

BACKGROUND

Mr Tony Donohue was, until recently, employed by The Reject Shop Limited (the respondent) performing selected duties on reduced working hours following an injury he received in the course of his employment on 15 July 2011. He had commenced work with the respondent in approximately 2002. Since 2007, and at the date of his injury, he was employed as Area Manager of eight retail stores conducted by the respondent in the region bounded by Yamba and Port Macquarie on the coast and Gunnedah in the west of New South Wales.
The injury was received by Mr Donohue when he and other staff members at the respondent’s Tamworth store were moving rows of shelving. During that procedure Mr Donohue was struck in the neck and back by falling boxes of soft drink which had become dislodged from a shelf.
There is no dispute that Mr Donohue received injury to his face, neck, and lower back as a result of the subject incident. Compensation benefits, being weekly payments and medical expenses, have been paid by the respondent’s insurer on a voluntary basis. It seems that, upon Mr Donohue’s commencement of selected duties, weekly compensation in respect of ongoing partial incapacity has been paid, currently in the sum of $439.50 per week.
Following the injury Mr Donohue experienced an episode of deep vein thrombosis (DVT) commencing in November 2011 which required intensive treatment. It seems that that condition was treated by the insurer as being compensable. A claim, separate to the claim in respect of the July injury, was completed by Mr Donohue and compensation benefits were paid.
A further difficulty was encountered by Mr Donohue in January 2012 when, by reason of ongoing pain in his neck, lower back, left leg and knee, he consulted Dr Hanish Bagga, specialist in rheumatology, musculoskeletal medicine and osteoporosis. It was during that consultation that Dr Bagga diagnosed “severe osteoarthritis clinically at least in both hips especially left side”. At that time Dr Bagga speculated that Mr Donohue’s symptoms involving his hip and left knee might be explained by physical twisting at the time of the July 2011 injury which may have caused some labral pathology. Investigations of the cervical spine, lumbar spine and both hips were arranged by Dr Bagga. Mr Donohue was referred for consultation to Dr Peter Summersell, orthopaedic surgeon.
Dr Summersell, a specialist in hip and knee disorders, advised that Mr Donohue undergo a “resurfacing” procedure to his left hip. Following correspondence between Dr Summersell and the respondent’s insurer, liability with respect to alleged hip injury was denied. Written notice of that decision was given by letter to Mr Donohue dated 27 May 2012. It seems that the surgery proposed by Dr Summersell was carried out in April 2013.
In August 2012 the insurer gave notice to Mr Donohue that a claim “for osteopathic and exercise physiology treatment” was also denied.
A dispute arose concerning Mr Donohue’s entitlement to an increase of weekly payments and concerning the cost of treatment expenses in respect of the alleged hip injury and in respect of future therapeutic treatment of his neck and lower back. An Application seeking orders in respect of those benefits was filed with the Commission in September 2012. The Application came before Arbitrator Jeffrey Phillips SC for conciliation/arbitration on 27 May 2013. The matter proceeded to hearing and the Arbitrator reserved his decision. A Certificate of Determination accompanied by a Statement of Reasons was issued on 22 August 2013. The following orders were made:
“The Commission determines:
1.       Award for the respondent in respect of the applicant’s allegation of injury to the left hip on 15 July 2011.
2. Award for the respondent in respect of any claim pursuant to section 60 of the Workers Compensation Act 1987 in respect of treatment related to the applicant’s left hip.
3. The issue of whether osteopathic and exercise physiology treatment related to the applicant’s neck and back is reasonably necessary is remitted to the Registrar, in order that it be referred, pursuant to section 60(5) of the Workers Compensation Act 1987, to an Approved Medical Specialist for assessment. The Approved Medical Specialist shall have regard to the exhibits in this case.
4.       Award for the respondent in respect of the applicant’s claim for additional weekly compensation based upon an alleged loss of earning capacity related to the condition of the applicant’s left hip.
5.       The question of the applicant’s entitlement to costs is reserved pending ultimate determination of the issue referred to in Order 3 above.
Certification as to Costs
I certify that the matter is complex and that the respondent’s costs shall be subject to an uplift of 25 per cent.
A statement is attached to this Certificate of Determination setting out the Commission’s reasons for the determination.”

ISSUES IN DISPUTE

The issue in dispute in this appeal is whether the Arbitrator erred in determining that Mr Donohue had not received injury to his left hip on 15 July 2011 and was thus not entitled to medical treatment expenses and an increase of weekly payments.

PRELIMINARY MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time as found in the provisions of ss 352(3) and 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) have been met.
The parties consent to the matter being heard ‘on the papers’.
Having regard to Practice Directions Nos 1 and 6 and the documents that are before me, I am satisfied that I have sufficient information to proceed without holding any conference or formal hearing as is permitted by s 354(6) of the 1998 Act.

THE ARBITRAL PROCEEDINGS

The proceedings before the Arbitrator were recorded. A transcript (T) has been produced and made available to the parties. The documentary evidence before the Commission was noted by the Arbitrator at T1-T2. Additional evidence from Mr Donohue in chief was permitted by the Arbitrator. The respondent was granted leave to cross-examine Mr Donohue.

THE EVIDENCE

The evidence of Mr Donohue is to be found in three written statements made by him, and in his oral testimony before the Arbitrator. The first statement, dated 26 September 2012, includes detail of the circumstances of the subject injury. Mr Donohue was working between shelves shifting them with other employees and states that he “didn’t have much room between the shelf [he and others] were pushing and the next [shelf]”. Boxes of soft drink were dislodged from a position above him and he was struck in the upper back (near his neck) and down towards his lower back. He staggered “backwards into the other shelf so that [he] didn’t fall over”. Mr Donohue experienced “immediate very bad pain in [his] neck. [He] also had immediate very bad pain in [his] lower back and noticed the pain down [his] left leg”. The left leg pain “travelled across [his] left buttock down the back of [his] leg as far as the left knee”.
Mr Donohue’s treatment, at first, was provided by his general practitioner Dr Radovan Petro. It seems that Mr Donohue continued to work on suitable duties as certified by Dr Petro.
By reason of pain and discomfort following the injury Mr Donohue travelled, in the course of his work, by air rather than by car.
On 25 October 2011 Mr Donohue attempted to get out of a chair at home when he experienced “excruciating knife pain down [his] leg again and [he] was basically immobilised and unable to move”. He was transported by ambulance to Coffs Harbour hospital. He experienced pain in his left hip and it was stated that “[the pain] was most severe down the back of [his] leg so he didn’t really notice [the hip pain] too much at the time”.
In early November 2011 Mr Donohue developed DVT. That was treated as a compensable injury by the insurer. Mr Donohue could not drive or fly. He was certified as being unfit for work for some weeks by Dr Petro. He was then certified as fit for selected duties.
In January 2012, Mr Donohue consulted Dr Bagga. Dr Bagga, in a report dated 12 January 2012, concluded that Mr Donohue had “had a very significant injury and since then he describes pain in the neck and left lower back”. Dr Bagga expressed the view that “significant disc lesions” are demonstrated in CT scan investigations of the lower lumbar spine. Dr Bagga noted that, clinically, Mr Donohue had severe osteoarthritis in both hips, “especially left side”. Dr Bagga stated in that report:
“I wonder whether severe osteoarthritis of the left hip is in fact his predominant lesion causing the pain radiating to the left knee. I cannot explain why this has suddenly flared up however following the accident unless he twisted and has sustained some labral pathology.”
Dr Bagga arranged conduct of an MRI investigation of Mr Donohue’s pelvis and left hip. Professor Suzanne Anderson reported following that examination on 22 February 2012, concerning his left hip:
“CONCLUSION:
Secondary osteoarthritis of the left hip most marked with compete cartilage loss, labral avulsion and geode formation – large greater than 1.5 cm osteophytic spurring inferior femoral head.
This is on a background of Cam predominant femoroacetabular impingement.
Prominent sized ‘os acetabulae’ / stress reaction – fracture anterior superior acetabulum on right with labral attached with cone predominant femoroacetabular impingement and secondary osteoarthritis.”
Mr Donohue was referred to Dr Summersell in March 2012. A report of Dr Summersell records a history of the subject injury in July 2011 which resulted in “ significant pain”. It is also recorded that “if [Mr Donohue] stands for any length of time the knee pain becomes more severe”. Dr Summersell diagnosed “acute deterioration of left hip osteoarthritis following injury at work, associated labral pathology”. Subsequent reports from Dr Summersell reveal that Mr Donohue had elected to undergo hip surgery, and that approval from the respondent’s insurer concerning a claim in respect of treatment expenses was awaited.
A report of Dr Summersell, dated 21 May 2012, addressed to the insurer had the following responses to questions put by the insurer:
“1/I did mention in the initial report that he was leaning forwards and the boxes ‘landed on his neck and back’, I didn’t say the injury was to his ‘neck and back’. The symptoms he has had since the injury have involved his back, lateral left hip, thigh and knee. Initially it was thought the cause of all of his symptoms was his back. Investigations and treatment were targeted at his back and not surprisingly the treatment did not help. I would think the majority of the symptoms are in fact arising from his hip and have been since the start. I do not think the original misdiagnosis should preclude him from being treated for the work related injury.
2/The arthritis that is in his hip was asymptomatic prior to the specific work place injury. He was functioning normally and without pain prior to the injury. He may have had years of pain free function if the injury had not happened.
3/Given the arthritis that is present, at some point, he may have required a replacement but if the injury had not occurred it may have been years before a replacement was required. The requested replacement is required now due to the work related injury.”
Other evidence establishes that the claim made by Mr Donohue in respect of hip surgery had been denied by the insurer.
A report, dated 21 August 2012, of Dr Murray Hyde Page, orthopaedic surgeon, was tendered by Mr Donohue. Dr Hyde Page had been qualified to give evidence in these proceedings. That report contains a history that Mr Donohue, when struck by the falling boxes, “staggered backwards onto the shelf behind so he didn’t fall over”. Dr Hyde Page was of the opinion that the incident had caused “significant injuries to [Mr Donohue’s] cervical spine and lumbar spine, as well as his left hip”. That practitioner recorded that Mr Donohue had “no symptoms whatsoever” in his hip prior to the incident. His view was that the incident had “aggravated an underlying osteoarthritic left hip condition that was asymptomatic prior to this injury”. Hip resurfacing was, in his view, an appropriate procedure to undertake.
In a statement made 23 October 2012 Mr Donohue stated:
“Even though the back and left leg pain were the most severe, I have always had pain in my left hip from the time the bottles fell on me to the present time. However, as the other pain was more severe, it has fallen into the background a bit.”
The respondent relied upon the evidence of Dr Thomas A Silva, consultant orthopaedic surgeon, who provided a report dated 20 June 2012. Dr Silva noted the circumstances of the subject injury as follows:
“The injury occurred on 15/07/2011 when a stack of boxes fell on the back of [Mr Donohue’s] neck causing neck pain and low back pain and it was much later that he complained of left hip pain.”
Dr Silva noted a number of radiological and other investigations of the cervical and lumbar spines. I note that Dr Silva did not record that he had seen Professor Anderson’s MRI of the left hip noted at [20] above. In response to a question put by the insurer Dr Silva stated:
“… I agree with you that the left more than right osteoarthritis is an age-related condition with no direct or indirect bearing on the work incident of 15/07/2011 as far as the requirement for treatment in the form of hip replacement surgery is concerned.”
Dr Silva also stated his acceptance of a proposition put by the insurer that Mr Donohue would have required the hip surgery regardless of the incident which occurred at work.
A report of Dr Con Kafataris, injury management consultant, dated 27 December 2012 had been tendered by Mr Donohue. Dr Kafataris examined Mr Donohue on behalf of the insurer. That practitioner noted that Mr Donohue had a left hip condition which was, in his opinion, “the most significant cause of [Mr Donohue’s] current symptoms”. No opinion was expressed by Dr Kafataris as to any causal connection between the subject injury and the hip symptoms.
Mr Donohue’s oral evidence given before the Arbitrator included a statement that he had not experienced any symptoms in his left hip before the subject injury. He also stated that after the injury he could only walk a short distance, following which he “had severe pain in the lower back, hip, left leg. It was basically after walking probably up to 100 metres, basically I couldn’t walk after that”.
When cross-examined, Mr Donohue accepted that he had consulted Dr Chan, a practitioner to whom he had been referred to by Dr Petro, concerning left knee pain on a date prior to the subject injury. Mr Donohue said in response to questions put to him that he had been treated by Dr Chan concerning back pain.
The clinical records of Dr Petro included a notation made, it seems, on 5 September 2009 when Mr Donohue consulted that practitioner as follows:
“Pain in the left knee raditing [sic] to the left hip continues. Had review by Dr Chan, who believes it may be related to hip OA.”
Mr Donohue was further questioned concerning a letter of referral by Dr Petro to a physiotherapist, Ms Faye Wiffen, in July 2011. That referral was in evidence and included “Past Medical History” being, in part, “left osteoarthritis of hip”. Mr Donohue stated that he “wasn’t aware there was an issue with [his] left hip” (at T29).
Mr Donohue, in reply to counsel for the respondent, stated that he had “mentioned hip pain throughout the whole lot and when Dr Bagga suggested that [he] might have an issue with [his] hip which was causing the pain because nothing else was working to fix it” (at T33).

SUBMISSIONS BEFORE THE ARBITRATOR

An argument seemed to be advanced on behalf of Mr Donohue that it would be accepted that the speculation of Dr Bagga had been confirmed by the MRI findings made in February 2012 and that there had, by reason of the other injuries received by Mr Donohue, been a delay in diagnosis of the aggravation of the pre-existing hip condition which gave rise to a need for surgical intervention.
It was noted during exchanges between the Arbitrator and Mr Donohue’s solicitor that the MRI of the hip conducted in February 2012 had not been brought to the attention of Dr Silva. An argument seemed to be advanced, though it is not entirely clear, that Mr Donohue’s medical witnesses should be preferred because they had that information which included reference to labral avulsion (at T45).
So far as any evidence of diagnosis of hip disability before injury, it was argued that Mr Donohue should be taken to be “a witness of truth” and that he should not be taken to have been aware of a preliminary diagnosis of osteoarthritis in the hip or of any discussions between his doctors concerning such diagnosis.
Reliance was placed upon the evidence of Dr Hyde Page as to the likely mechanism, at the time of the injury, of the aggravation of the left hip condition. The evidence of Mr Donohue that he was caused to stagger back at that time would, it was argued, be accepted and that that “mechanism” was the movement considered by Dr Bagga, Dr Summersell and Dr Hyde Page which had caused the relevant aggravation.
Submissions, which lacked clarity and precision, were then put concerning the claim for weekly compensation (between T49 and T54).
Counsel for the respondent emphasised in submissions the absence of any contemporaneous record of complaint being made, either in the claim documents or when history was recorded by the medical witnesses, of hip pain or disability following the injury until a date well after its occurrence. The history concerning Dr Petro’s referral of Mr Donohue to Dr Chan was relied upon as evidence which tended to establish that relevant hip symptoms had likely been experienced before the injury. Such history had not been recorded by Dr Summersell or Dr Hyde Page. The evidence, it was submitted, suggested that disabling hip symptoms were first experienced by Mr Donohue, post injury, in October 2011 when he reported severe pain at a time when he was attempting to stand up from a chair where he had been seated. That incident had not, it was submitted, been taken into account by the medical witnesses relied upon by Mr Donohue.

It was noted by counsel that the claim for weekly compensation “runs from 25 July 2012”. It was put that the evidence established that the reduction in work capacity demonstrated by the content of the medical certificates was related to the hip disability. It was submitted that, upon a finding that the hip condition was not aggravated by the injury, Mr Donohue’s entitlement to weekly compensation “should only be in the order of $330 or perhaps even $350 per week”.
Counsel returned to the question as to whether the hip disability was compensable. It seems that reliance was placed upon Dr Silva’s view as to the need for surgery by reason of the degenerate state of the hip as being relevant to matters raised by s 9A(2) of the Workers Compensation Act 1987 (the 1987 Act).
In reply, Mr Donohue’s solicitor argued that the history of onset of pain in the latter part of 2011 did not involve hip pain and that that history is, in any event, in a confused state. It would not be accepted, it was argued, that there had, at that time, been a relevant intervening incident which affected the hip.
It was also argued that “the s 74 notice didn’t raise any suggestion of a reduction [of weekly compensation]” (at T74). Following discussion between the Arbitrator and the respondent’s counsel it was stated by counsel that the respondent’s argument was that Mr Donohue was “not entitled to an increase in payments”.

THE ARBITRATOR’S DETERMINATION

The Arbitrator identified the issues in dispute (at [14] of Reasons) and proceeded to summarise the evidence which had been tendered by the parties. During the course of that summary, some mention was made of submissions concerning the issue as to whether any relevant injury to the hip had been received by Mr Donohue in the subject injury.
The Arbitrator noted the absence of any recorded complaint of hip pain for a number of months following the injury. The evidence, it was stated, did not contain a reference “to any twisting, or other activity involving the hips or legs”. The Arbitrator’s reasoning and conclusion concerning the alleged hip injury are found between [58] and [60] of his Reasons as follows:
“58.   The applicant’s account of the circumstances of injury, as recorded in his statement of 27 September 2012, does not refer to twisting, or activity that would explain sudden trauma affecting the hips, and the left hip in particular. It is relevant that, whereas the applicant can be expected to have experienced pain in his left hip had he aggravated the arthritic condition of that body part on 15 July 2011, the applicant does not state that he experienced symptoms affecting his left hip on the date of the accident. His description of pain across the left buttock and down the back of the left leg as far as the knee, as described in that statement, is consistent with an injury to the lumbar spine, hence the diagnosis recorded by Dr Petro. It is, moreover, plain from Dr Petro’s notes and certificates that no history of hip symptoms was provided by the applicant.
59.    Dr Hyde Page’s opinion that the applicant developed pain and stiffness in his left hip “as a consequence of work injury suffered on 15^th July 2011” is based on his understanding that the applicant “had no symptoms until the time of his work accident”. That understanding is erroneous, in that there is no record of symptoms affecting the applicant’s left hip in the immediate wake of the incident on 15 July 2011, or until early 2012. If the applicant did aggravate the arthritic condition of his left hip on 15 July 2011, no medical practitioner has explained why it took six months for that aggravation to manifest itself.
60.    For the reasons discussed above, I do not accept that the applicant injured his left hip on 15 July 2011. It follows that the applicant is not entitled to reimbursement of medical expenses which relate to treatment of his hip condition.”
The Arbitrator proceeded to note that the question whether future treatment was reasonably necessary was one which required referral to an AMS in accordance with s 60(5) of the 1987 Act.
The claim for weekly compensation was then considered by the Arbitrator. His resolution of that aspect of the claim is found at [74] of his Reasons where it is stated:
“As discussed above, the applicant is not entitled to weekly payments in respect of his hip condition because no compensable injury to that body part was sustained, but no case has, in any event, been made out that his hip condition has affected his earning capacity. The issue of the appropriate level of weekly compensation that is payable having regard to the incapacity that is consequent upon the injury to the applicant’s neck and back was not the subject of the dispute raised in the section 74 Notice issued on 25 July 2012, and was therefore not ventilated at the hearing. It is therefore appropriate that my award in relation to the claim for weekly payments refers explicitly to the claim for compensation in respect of incapacity that is alleged to have resulted from the applicant’s hip condition. That leaves alone the question of the applicant’s correct entitlements to weekly compensation in respect of the condition of his neck and back, which Dr Petro considered in January 2012 to warrant that the applicant’s work hours be limited to four hours per day.”
The Arbitrator proceeded to enter the award as noted at [8] above.

SUBMISSIONS, DISCUSSION AND FINDINGS

This appeal is governed by the provisions of s 352 of the 1998 Act. The nature and scope of such an appeal is as provided by s 352(5):
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
The powers of the Commission upon conduct of such an appeal are defined by the provisions of s 352(7):
“On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.”
The “grounds of appeal” relied upon by Mr Donohue identify the following matters:
(1)     suggested error of fact made by the Arbitrator in concluding that Mr Donohue did not receive injury to his left hip on 15 July 2012;
(2)     that the Arbitrator misdirected himself “by focusing unduly on whether [Mr Donohue] described a twisting motion during the injurious event, and whether Mr Donohue, or his treating GP specifically, identified localised pain in the left hip at, immediately after or soon after the injury”;
(3)     that the Arbitrator misdirected himself in failing to give proper consideration “to the full definition of ‘injury’ including the aggravation, acceleration, exacerbation, or deterioration of disease” in Mr Donohue’s left hip, and
(4)     that the Arbitrator erred in dismissing the claim brought by Mr Donohue in respect of medical expenses and increased weekly payments.

The finding of no injury to hip

The factual error complained of, being the finding of no hip injury, may only be disturbed on an appeal such as the present if it is established, as was stated by Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 (at 506), that;
“… material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn; or the available inference in the opposite sense to that chosen by the trial judge is so preponderant in the opinion of the appellate court that the trial judge’s decision is wrong.”
The submissions provided in support of the suggested error include a summary of the evidence, and it is put that there was “implicit acceptance” by the Arbitrator of certain matters. No complaint is made that there had been an erroneous failure on the part of the Arbitrator to give reasons. Those arguments, otherwise, appear to be a restatement of matters touched upon during argument before the Arbitrator.
It is suggested that the Arbitrator paid “undue regard to GP recording and the failure to diagnose, and [Mr Donohue’s] own inability to isolate his problem as a hip problem” (at [31] of submissions). The difficulty with that submission is, firstly, that the relevant evidence had been acknowledged by the Arbitrator and secondly, it was a matter for the Arbitrator to determine the weight to be ascribed to such evidence and to determine what, if any, available inference may be drawn therefrom. The argument, again, constitutes a reiteration of matters argued before the Arbitrator and fails to demonstrate any relevant error.
The Arbitrator’s apparent reliance upon the evidence of Dr Silva, which evidence is criticised as being “inconsistent with the evidence as a whole”, appears to be asserted as demonstrating relevant error. It is important to note that no submission is put concerning the relevance of the apparent absence of the MRI dated 22 February 2012, conducted by Professor Anderson, among investigations considered by Dr Silva. The argument, such as it is, merely demonstrates a conflict of opinion between the medical experts and in no way makes out a basis upon which relevant error may be asserted.
It is correctly put on behalf of Mr Donohue that no adverse finding was made by the Arbitrator as to his credit as a witness. Whilst reference was made by the Arbitrator to the evidence which suggested that Mr Donohue had experienced hip and knee disability prior to the injury (at [46] of Reasons) no inference appears to have been drawn from that evidence when reaching his conclusion concerning the alleged aggravation of the hip condition.
The fundamental basis of the Arbitrator’s rejection of the allegation of hip injury seems to have been the absence of relevant contemporaneous complaint. The absence, as found, of convincing evidence concerning a twisting or similar action at the time of the injury also seems to have been taken by the Arbitrator as being relevant to his adjudication of the dispute.
It is clear that the Arbitrator had rejected the argument that the awkward position in which Mr Donohue found himself at the time of injury and his being forced back against the adjacent shelf constituted ‘twisting’ as contemplated by the medical experts. That rejection was a conclusion open to him and demonstrates no error.
As earlier noted this appeal, if it is to succeed, requires the establishment of relevant error. It is not a review. Whilst the state of the evidence before the Arbitrator might have permitted a persuasive argument that relevant aggravation had been caused at the time of injury, argument as presented at the hearing was rejected by the Arbitrator. That rejection was founded upon an evaluation of the evidence before the Commission and argument as then presented. The Arbitrator’s conclusion as to there being no relevant aggravation was open to him on that evidence. His acceptance of that evidence demonstrates no error as is asserted by Mr Donohue on appeal. The contention of error in finding no hip injury must be rejected.

The Arbitrator’s conclusion concerning the claim for increased weekly payments

It must be stated at the outset that a consideration of this aspect of the Arbitrator’s determination has been made particularly difficult by reason of the failure by Mr Donohue’s representatives to clearly formulate the nature of this claim. There are no less than three wage schedules in evidence. However, nowhere in the evidence or in submissions before the Arbitrator, was the precise nature of the claim defined, nor was any attention given to relevant principle concerning determination of his alleged entitlement to an “increase” of weekly payments.
The significant confusion which attended this claim for weekly benefits is plainly demonstrated by the Arbitrator’s attempt, during submissions, to elucidate the nature of the claim by questioning Mr Donohue’s solicitor. That exchange appears between T49 and T53 at which point counsel for the respondent put certain submissions which were subsequently withdrawn (see [40] and [43] above).
What is clear is that the claim commenced on 25 July 2012 and was one for continuing weekly benefits at the maximum relevant statutory rate. Such rate must be determined having regard to proof of dependency. There is evidence, being the statutory declaration made by Mr Donohue on 6 May 2013, that he has two dependent children. No reference appears to have been made to that evidence by the parties at the hearing. However the Arbitrator, at [65] of Reasons, proceeded upon an assumption that, at relevant times, those children were dependent.
The claim must have been brought pursuant to s 40 of the 1987 Act as it stood prior to the 2012 amendments, given that Mr Donohue was apparently employed performing selected duties during most of the relevant period. I use the term “most” given that it is clear that surgery, which occurred in April 2013, caused Mr Donohue to be absent from work for some unknown period.
It is also clear that the payments made on a voluntary basis by the insurer correspond to the maximum statutory rate for a worker without dependants. Whilst it was argued that Mr Donohue’s entitlement to an increase of weekly payments was “by reason of the hip disability”, it is clear that there had been a failure to appreciate and apply correct principle to the facts. The dilemma which faced the Arbitrator led him to reach the conclusions noted at [47] above. Whilst reference was made in submissions to the decision of the Full Court in Aitkin v Goodyear Tyre & Rubber Co (Aust) Ltd (1945) 46 SR (NSW) 20, no clarification of the nature of the claim for weekly benefits was attempted.
A proper approach to determination of any entitlement Mr Donohue may have to weekly compensation required an assessment made in accordance with the principles made clear by the Court of Appeal in Mitchell v Central West Health Service (1997) 14 NSWCCR 526 (Mitchell). Such a determination would follow the Arbitrator’s decision as to whether the hip disability was relevantly work related. Once a determination was made that the hip disability was not compensable it would have been open to the respondent to argue that the Commission’s discretion should be exercised to reduce any entitlement as is addressed in the decision of Mitchell. This appears to have been intended by the respondent’s counsel when submissions noted at [40] above were put. As earlier noted, those submissions were subsequently withdrawn. The content of the respondent’s s 74 Notice undoubtedly distracted all concerned and, correctly or otherwise, prevented a proper examination of Mr Donohue’s entitlement.
Given the undisputed level of Mr Donohue’s probable earnings but for injury and the earnings that he has made performing selected duties as demonstrated in the latest wage schedule he is, prima facie, entitled to the difference in earnings subject to the maximum rate as fixed by statute and, further, subject to any reduction found to be proper in the circumstances. Upon proof of the dependency of Mr Donohue’s children, that statutory maximum is currently $643.30. Those matters were not argued before the Arbitrator and resolution of the question of entitlement must await agreement between the parties, failing which a fresh application accompanied by all relevant evidentiary material may be made.
Returning to the matters raised on the present appeal, the complaint of error concerns the Arbitrator’s dismissal of the claim for weekly payments. The ineptitude of argument advanced before the Arbitrator is compounded by a complete absence of argument in support of the contention of error presented on this appeal. The only matter put in argument is found at [43] of submissions where it is argued that entitlement to “increased weekly benefits follows upon a finding of injury to the left hip, as [Mr Donohue’s] incapacity resulting from that injury was not put in issue by the s 74 Notice”. That submission revives the confusion with which the Arbitrator was confronted.
The Arbitrator’s order concerning the misconceived claim in respect of weekly benefits is noted at [8] above. Whilst that order reflects the confused manner in which argument was presented, I consider that it should be revoked on appeal and in substitution it is determined on this appeal that no order concerning weekly compensation should be made.
I have earlier found that Mr Donohue has failed in his challenge to findings concerning injury to his left hip. It follows that the Arbitrator’s order concerning his claim for relevant medical expenses must be confirmed. Appropriate orders appear below.

DECISION

The awards and orders made by the Arbitrator found in paragraphs 1, 2, 3 and 5 of the Certificate of Determination dated 27 August 2013 are confirmed.
The order made in paragraph 4 in Certificate of Determination dated 27 August 2013 is revoked and the following determination is made in its place:
“4. No order is made in respect of the claim for weekly compensation.”

COSTS

No order as to costs of this appeal.

OTHER MATTERS

I note that the AMS has issued a MAC in response to the referral noted in the order made by the Arbitrator. The matter must be relisted before the Arbitrator to have that aspect of the claim, and the question of costs, determined by him.

Kevin O'Grady
Deputy President

22 November 2013

I, KATHRYN CAMP, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O'GRADY, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE