Duncan v Roads & Traffic Authority of NSW
[2007] NSWWCCPD 113
•15 May 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Duncan v Roads & Traffic Authority of NSW and Anor [2007] NSWWCCPD 113
APPELLANT: Peter Wayne Duncan
FIRST RESPONDENT: Roads & Traffic Authority of NSW
SECOND RESPONDENT: Sungate Pty Limited
INSURERS:GIO General Limited (First Respondent prior to 30 June 1989)
GIO (Treasury Managed Fund) (First Respondent subsequent to 30 June 1989)
GIO Workers Compensation (NSW) Limited (Second Respondent)
FILE NUMBER: WCC13735-04
DATE OF ARBITRATOR’S DECISIONS: 24 November 2005 and 18 January 2006
DATE OF APPEAL DECISION: 15 May 2007
SUBJECT MATTER OF DECISION: Meaning of ‘decision’ in section 352 of the Workplace Injury Management and Workers Compensation Act 1998; extension of time; application of the ‘disease’ provisions of the Workers Compensation Act 1987; medical histories and section 60 of the Evidence Act 1995; section 40 assessment – intermittency of employment; notice of injury pursuant to section 61 of the 1998 Act.
PRESIDENTIAL MEMBER: Acting Deputy President Michael Snell
HEARING:On the papers
REPRESENTATION: Appellant: McCabe Partners
Respondent: Thompson Cooper (First Respondent – prior to 30 June 1989)
Leitch Hasson & Dent (First Respondent – after 30 June 1989)
Abbott Tout (Second Respondent)
ORDERS MADE ON APPEAL: The decision of the Arbitrator, dated 18 January 2006, is revoked and the following decision is made in its place:
1. That the First Respondent Employer in respect of its insurance interest on risk as at
26 February 1993 pay the Appellant Worker weekly compensation pursuant to section 40 of the 1987 Act as follows:
(i) $88.69 from 27 February 1993 to 30 June 1993;
(ii) $98.21 from 1 July 1993 to 30 June 1994;
(iii) $123.28 from 1 July 1994 to 30 June 1995;
(iv) $250.80 from 1 July 1995 to 30 September 1995;
(v) $252.10 from 1 October 1995 to 31 March 1996;
(vi) $253.70 from 1 April 1996 to 30 June 1996;
(vii) $190.54 from 1 July 1996 to 30 June 1997;
(viii) $256.40 from 1 July 1997 to 30 September 1997;
(ix) $261.30 from 1 October 1997 to 31 March 1998;
(x) $263.30 from 1 April 1998 to 30 September 1998;
(xi) $267.90 from 1 October 1998 to 31 March 1999;
(xii) $272.60 from 1 April 1999 to 30 June 1999;
(xiii) $68.18 from 1 July 2000 to 30 June 2001;
(xiv) $243.94 from 1 July 2001 to 30 June 2002;
(xv) $128.36 from 1 July 2002 to date and continuing.
2. That the First Respondent Employer in respect of its insurance interest on risk as at 26 February 1993 pay the Appellant Worker’s expenses pursuant to section 60 of the 1987 Act.
3. That the First Respondent Employer in respect of its insurance interest on risk as at 26 February 1993 pay the Appellant Worker’s costs of the proceedings before the arbitrator, and of this appeal. No order as to the costs of the other insurance interest of the First Respondent Employer, or of the Second Respondent Employer.
4. Award for the Second Respondent Employer.
5. That the Appellant Worker’s claim pursuant to section 66 in respect of permanent loss of use of his right leg at or above the knee, left leg at or above the knee, severe bodily disfigurement and sexual organs, be referred to approved medical specialists for assessment in accordance with these reasons.
BACKGROUND TO THE APPEAL
1.The matter has a somewhat confused procedural background, which requires disentanglement.
2.The proceedings were commenced by Application to Resolve a Dispute (‘the Application’) filed in the Workers Compensation Commission (‘the Commission’) on 16 August 2004. Peter Wayne Duncan (‘the Appellant Worker’) claimed, from the Roads & Traffic Authority of NSW (‘the First Respondent Employer’) weekly compensation at varying rates, from 1 July 1989 to date and continuing. He claimed weekly compensation at varying rates from Sungate Pty Limited (‘the Second Respondent Employer’), from 29 March 2002 to date and continuing. He claimed orders for the payment of medical and related expenses from each of these employers.
3.The Appellant Worker also claimed lump sum compensation from both employers. As against the First Respondent Employer, he pursued multiple claims pursuant to section 66 of the Workers Compensation Act 1987 (‘the 1987 Act’), for permanent loss or impairment of the back, legs and sexual organs, together with severe bodily disfigurement. Against the Second Respondent Employer he pursued similar relief for multiple losses and impairments, said to have resulted from injury in that employment, prior to 31 December 2001. He also claimed against the Second Respondent Employer pursuant to section 66, in respect of 33% whole person impairment, resulting from injury prior to 28 March 2002. There were associated claims pursuant to section 67 for pain and suffering, against each of the employers. The differing pleadings pursuant to section 66 resulted from amendment of section 66 in the Workers Compensation Legislation Amendment Act 2001. The amendment results in such claims being compensated on the basis of whole person impairment, where the causative injury occurred on or after 1 January 2002. This is instead of the now repealed Table in the previous Section 73 of the 1987 Act, which applies where the causative injury pre-dates 1 January 2002.
4.The allegations of injury against both employers are set out in prolix form in the Application. In essence, what is alleged is injury due to the general nature and conditions of employment with each of them, accompanied by reliance upon the ‘disease’ provisions of the 1987 Act. The relevant period of employment with the First Respondent Employer was from 28 October 1968 to 26 February 1993. With the Second it was from 10 September 2001 to 28 March 2002. The Appellant Worker’s statement dated 5 August 2003, attached to the Application, indicates he worked with the First Respondent Employer as a truck driver, and with the Second Respondent Employer as a security guard.
5.The matter came before the Arbitrator by way of teleconference on 29 November 2004 (it may be 24 November 2004, references to the date vary, and nothing turns on the discrepancy). The Arbitrator described what occurred at [36] of his Reasons of 18 January 2006. He referred the matter to two approved medical specialists (‘AMSs’), to assess the losses and impairments the subject of claims pursuant to section 66. He referred to an orthopaedic surgeon, the orthopaedic losses and the claim for severe bodily disfigurement, and to a urologist the claim for loss of sexual organs. A medical assessment certificate (‘MAC’) issued by an AMS is conclusively presumed to be correct as regards various matters specified in section 326(1) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’), including the degree of permanent impairment resulting from an injury.
6.The Arbitrator, after some discussion with the parties representatives at the teleconference, produced an “Attachment”, to provide the AMSs with some assistance regarding the matters to be assessed. That document is part of the Commission file, and is also set out at [39] of the arbitrator’s reasons of 18 January 2006. The document, amongst other things, sought to direct the attention of the AMSs to separately assessing any loss of use of the legs, occurring both prior to 30 June 1987, and thereafter. It sought to differentiate between the level of impairments that resulted from work causes, as opposed to other causes.
7.The orthopaedic AMS, Dr Ashwell, examined the Appellant Worker on 30 May 2005, and issued a medical assessment certificate (‘MAC’). He described the applicable dates of injury as 24 April 2003 and 4 December 2003 (at page 3.1). These are in fact the dates of notice of injury against the First and Second Respondent Employers respectively, as described in the Application. Both such dates post date the Appellant Worker’s last date of employment with these employers, and also post date the amendments to section 66 referred to at [3] above. Dr Ashwell summarised the Appellant Worker’s injuries as “moderate osteoarthritis of his right knee, mild osteoarthritis of his left knee, neck pain with radiation to both arms and low back pain” (at page 5.7). He described the absence of any history of specific injury, and described the development of symptoms as being more consistent with “age related degenerative change, rather than a work injury” (page 5.9). He went on to describe the Appellant Worker’s symptoms in his cervical and lumbar regions as falling within DRE Category 1 (at page 8.2). He noted this equated to nil per cent whole person impairment pursuant to the applicable AMA 5 Guidelines. He also found nil per cent whole person impairment flowing from the arthritic condition in the Appellant Worker’s knees, using the “Range of Movement Guidelines” (page 8.4). Dr Ashwell specifically noted he made the assessment of the knees using only the range of movement guidelines, as there were no x-rays available to assess the arthritis in the knee joints (page 8.2).
8.Dr Ashwell discussed the reports available from other medical practitioners at pages 8 to 9 of the report. He quoted from a section of the report of Dr Dan (who carried out surgery to the Appellant Worker’s arthritic right knee in 1991) dated 3 June 2003. He noted Dr Dan’s opinion “that all the conditions are degenerative in nature and accumulative over the prolonged years of working as a Labourer”. Dr Ashwell continued “I agree that his work activities may be partly responsible for his symptoms, it appears more likely that the majority of his symptoms are due to the aging process”. Dr Ashwell noted Dr Dan’s assessment of 20% and 15% loss of the right and left legs at or above the knee, respectively, and said “This is assessed on the table of disabilities. I have been asked to assess him under the Whole Person Impairment Guidelines.” (at page 8.8)
9.It is apparent, from the foregoing, that the opinion of Dr Ashwell was not inconsistent with the proposition that, if any relevant causative injury occurred prior to 31 December 2001, the Appellant Worker could have suffered permanent impairment or loss within the Table of Disabilities applying to such injuries. For example, impairment of the lumbar or cervical regions, falling within DRE Category 1, could quite conceivably result in permanent impairment of the back or neck, even if it equated to nil per cent whole person impairment applying the AMA 5 Guidelines. Rather, Dr Ashwell confined himself to the question of whether the Appellant Worker suffered whole body impairment, assessed having regard to the AMA 5 Guidelines, potentially compensable under section 66 in its amended form. It is also apparent, particularly from Dr Ashwell’s treatment of the views of Dr Dan, that his opinion was not inconsistent with the proposition the Appellant Worker’s employment constituted a contributing factor to the aggravation, acceleration, exacerbation or deterioration of degenerative disease. This would potentially constitute ‘injury’ within the meaning of section 4 of the 1987 Act.
10.Dr Taylor, urologist, in his capacity as an AMS, examined the Appellant Worker on 23 February 2005, pursuant to the referral to determine the loss of use of the Appellant Worker’s sexual organs. Like Dr Ashwell, Dr Taylor noted the dates of injury as 24 April 2003 and 4 December 2003, these being the alleged dates of notice. Dr Taylor recorded a history of the Appellant Worker’s sexual function being adversely affected following surgery to his right knee in 1991. He recorded a history that there was no change in the level of the Appellant Worker’s sexual functioning in April or December 2003. He went on to conclude “Mr Duncan told me that the loss of use of sexual organs as described above pre-dated the two injury dates on the request for Medical Assessment by Approved Medical Specialist Form by some twelve years, and those two injuries did not have any affect on the loss of use of his sexual organs.” (at page 6.3) He accordingly concluded there was no loss of use of the Appellant Worker’s sexual organs as a result of the employment injuries.
11.On 28 June 2005 a Medical Assessment Certificate was issued, attaching the assessments of Drs Taylor and Ashwell. These certified to a total of nil per cent whole person impairment.
12.On 7 July 2005 the Appellant Worker’s solicitor forwarded to the Commission, for filing, an Application to Admit Late Documents. The correspondence bears a Commission stamp indicating it was received on 11 July 2005. The documents attached to it include some radiological reports, relating (in part) to the knees.
13.On 11 July 2005 the Appellant Worker’s solicitors lodged in the Commission an Application to Appeal Against Decision of Arbitrator. This is the form utilised for an appeal to a Presidential member, from an arbitrator, pursuant to section 352 of the 1998 Act. The document describes the decision appealed against as an “interlocutory decision” of 28 June 2005. There was no arbitral decision of that date, and this can only have been a reference to the MAC of that date. An appeal from a MAC does not lie to a Presidential member. The Commission wrote to the Appellant Worker’s solicitors on 14 July 2005, noting there did not appear to be any decision of an arbitrator on 28 June 2005, and seeking clarification of the decision appealed against. The appeal was ultimately rejected on 26 July 2005 “for failure to comply with Appeal requirements”, and that appeal file was closed.
14.The Appellant Worker also lodged an Appeal Against the Decision of Approved Medical Specialist, on 11 July 2005 (‘the medical appeal’). Such appeals lie pursuant to sections 327 and 328 of the 1998 Act. They are made to the Registrar of the Commission (section 327(4)), on the basis of grounds set out in section 327(3). Such appeals are not to proceed unless the Registrar is satisfied one of the grounds in sub-section (3) is made out. If the appeal does proceed, it is heard by an Appeal Panel, the procedures of which are set out in section 328. Such appeals do not lie to a Presidential member.
15.The submissions of the Appellant Worker on the medical appeal raised the issue that the MAC did not deal with the question of whether there were losses or impairments due to injuries prior to 31 December 2001, potentially compensable, notwithstanding the finding of nil per cent whole person impairment, applying the AMA 5 Guidelines. The submissions also noted the reasoning of Dr Taylor which led to his assessment of nil loss of use of the sexual organs. It was submitted the AMS was not asked the appropriate questions. It was not asserted the radiological material, referred to at [12] above, constituted “additional relevant information” within the meaning of section 327(3)(b).
16.The Registrar (through her delegate) delivered a decision on the appeal pursuant to section 327(4), dated 31 October 2005. That decision noted the dates of injury specified in the Arbitrator’s referral to the AMSs, and said the Appellant’s submissions appeared to take issue with the contents of the referral by the Arbitrator. The Registrar’s delegate noted questions of injury and causation are properly to be determined by an Arbitrator, and once determined, these findings are indicated in the referral. He noted the dates of injury in the referral (24 April 2003 and 4 December 2003) were the dates of injury determined by the Arbitrator, and “by implication, the AMSs were required to provide assessments of whole person impairment” (as both dates post-dated 31 December 2001). The Registrar’s delegate concluded the AMSs had provided “respective assessments in accordance with the Arbitrator’s referral”. The Registrar’s delegate concluded none of the grounds specified in section 327(3) were made out, and accordingly declined to permit the medical appeal to proceed, pursuant to section 327(4). This ended the Appellant Worker’s challenge to the MACs. The decision of the Registrar’s delegate is not susceptible to review on a Presidential appeal.
17.The matter was then listed for teleconference on 24 November 2005. A transcript is not available of what transpired at the teleconference. The Arbitrator’s description of the “teleconference arrangements and outcomes” is in the Commission file. It records the Appellant Worker’s solicitor submitted the matter should be referred to a further AMS, and also submitted the Arbitrator should disqualify himself, as he “was not independent”. The Arbitrator declined these applications. The Appellant Worker’s solicitor submitted the MACs were not binding, having regard to the decision of the Registrar on the medical appeal. The Arbitrator records “I did not accept that view”. The Arbitrator continued “I indicated that, at this stage, the s66 assessment is binding (at 0%) however I would decline to issue a COD (Certificate of Determination) until the determination of all issues.” The Arbitrator set the matter down for a conciliation/arbitration hearing in Moree on 19 December 2005. No Certificate of Determination issued in respect of any orders made on that teleconference.
18.The Appellant Worker filed an Application to Appeal Against Decision of Arbitrator in the Commission, on 8 December 2005. That document sought to appeal the “determination” “handed (down) on the 24.11.2005”. The submissions state the Appellant Worker’s position, at the teleconference of 24 November 2005, was that the decision of the Registrar’s delegate indicated questions of injury and causation should have been decided prior to referral of the matter to an AMS. Accordingly the Appellant Worker wanted the Arbitrator to decide questions of injury and causation, and then issue an appropriate referral to a further AMS (pages 13.9 to 14.2 of those submissions). It was also asserted the Arbitrator, on 24 November 2005:
“…made a determination in accordance with the Approved Medical Specialist opinion as follows:
1) That the Applicant suffers Nil per cent lumbar spine, Nil per cent cervical spine, Nil per cent right knee, Nil per cent left knee, Nil per cent sexual organs.” (at page 14.5)
19.The Arbitrator’s description of the “outcomes” of the teleconference (referred to at [16] above) specifically states that although he regarded the MAC as binding, he refrained from issuing a formal determination on the claim for lump sum compensation at that point. This is consistent with the fact no Certificate of Determination was issued at that time. It is also consistent with the fact no statement of reasons was issued at that time.
20.On 19 December 2005 the matter was listed for arbitration hearing at Moree. All parties were represented by counsel. There was no oral evidence. Counsel addressed, and the Arbitrator reserved his decision. At the commencement of the arbitration hearing the Arbitrator said to the Appellant Worker’s counsel “this matter has been set down today to deal with weeklies and section 60’s. That’s your case now?”, to which the Appellant Worker’s counsel responded “That’s correct.” (T1.57 to 2.1). Notwithstanding this, the Appellant Worker’s counsel addressed on the basis his client suffered from significant permanent losses of both legs (T3.20). He described the AMS assessments as being “the subject of an application to review and all sorts of things” (5.15). This may have been a reference to the Presidential appeal filed 8 December 2005. It could not logically have been a reference to the medical appeal, which by then had been concluded. The parties did not otherwise address on the topic of lump sum compensation.
21.The Certificate of Determination is dated 18 January 2006, and sets out the following orders:
“1.Award for the Respondents with respect to the Applicant’s claim for weekly payments of compensation.
2.Award for the Respondents with respect to the Applicant’s claim for payments for medical expenses under s60 of the Workers Compensation Act 1987.
3.No order as to costs.”
22.Whilst the Arbitrator did not make any specific orders going to the question of lump sum compensation, the nature of the findings he made was sufficient to dispose of the proceedings as a whole, including that aspect. He found the Appellant Worker was not injured in the employ of either of the Respondent Employers, and was not incapacitated for any relevant period (at [87] of the Reasons).
23.On 13 February 2006 the Appellant Worker’s solicitors filed an Application to Appeal Against Decision of Arbitrator, nominating the decision of 18 January 2006 as that appealed against. It was submitted in the document that the appeal could not be determined on the basis of the written material, and a hearing was necessary. The document was rejected by the Registry, by letter of 15 February 2006, due to its failure to attach reasons in support of the submission the matter could not be determined on the papers. The appeal was re-lodged on 22 February 2006. By this stage, the appeal was being lodged outside the twenty-eight day period within which an appeal may be brought, pursuant to section 352(4) of the 1998 Act. The Appellant Worker’s solicitors covering letter (dated 21 February 2006) made some short submissions, potentially going to the question of whether time for making the appeal should be extended, pursuant to what is now rule 16.2(11) of the Workers Compensation Commission Rules 2006 (‘the Rules’).
24.Provisions of the Rules, now found in sub-rules 16.2(5) and 16.2(6), require an appealing party to serve all other parties within fourteen days of registration of an appeal, and require lodgement of a certificate of service within seven days of the date of service. Certificates of service had not been lodged by the Appellant Worker’s solicitors, in respect of the appeal instituted on 8 December 2005, referred to at [18] above. That appeal was consequently struck out by the Registrar, on 24 February 2006. Certificates of service were filed by the Appellant Worker’s solicitors on 30 June 2006, and the Registrar rescinded the strike out order, on 4 July 2006.
25.Thus there are two appeals now on foot. The first is that lodged on 8 December 2005, against the ‘decision’ of 24 November 2005 made at a teleconference after the MAC issued (‘the first appeal’). The second is that lodged (ultimately) on 22 February 2006, against the decision of 18 January 2006 (‘the second appeal’).
26.The multiple appeals filed in the matter, sometimes misguidedly, left a situation where some of the parties had not put on submissions in respect of the two appeals which remain on foot. On 20 February 2007 I issued the following Direction:
“1. The First Respondent in the interests of GIO General Limited, the First Respondent’s insurer on risk for relevant periods prior to 30 June 1989, to make such written submissions as it wishes, on or prior to 7 March 2007, on the Appellant Worker’s appeal against the decision dated 24 November 2005.
2. The First Respondent in the interests of Allianz Workers Compensation NSW as agent for the NSW Treasury Managed Fund, the First Respondent’s insurer on risk for relevant periods subsequent to 30 June 1989, to make such written submissions as it wishes, on or prior to 7 March 2007, on the Appellant Worker’s appeals against the decisions dated 24 November 2005 and 18 January 2006.”
27.In view of the difficulties which had existed at one stage in respect of service of some documents, and the difficulty in ensuring all parties had been served from time to time with appropriate documents, the Registrar wrote to the solicitors for all of the parties on the same day the Direction was issued, advising the parties they were at liberty to inspect the files of the Commission, prior to 7 March 2007, for the purpose of taking copies of any pleadings and existing submissions.
28.Given the overlapping nature of the two appeals, I propose dealing with them in a single decision.
ON THE PAPERS REVIEW
29.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.”
30.The Appellant Worker submits the appeals should not be determined on the papers, and a hearing should occur. The various interests representing the two Respondent Employers submit the appeals can be determined on the papers. Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions on behalf of both employers that the appeals can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
LEAVE
31.Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The First Appeal
32.The first appeal is brought against the ‘decision’ of 24 November 2005, made at the teleconference after the MAC had been issued, and the Appellant Worker’s medical appeal had been dealt with. The circumstances surrounding that ‘decision’ are set out at [17] above. The Arbitrator recorded he regarded the MACs as binding, but would decline to issue a Certificate of Determination until all issues had been determined. The only Certificate of Determination issued in the matter related to the decision of 18 January 2006. The only Reasons for Decision in the matter related to the decision of 18 January 2006.
33.Section 294 of the 1998 Act is in the following terms:
“(1) If a dispute is determined by the Commission, the Commission must as soon as practicable after the determination of the dispute issue the parties to the dispute with a certificate as to the determination.
(2) A brief statement is to be attached to the certificate setting out the Commission’s reasons for the determination.
(3) If the Registrar is satisfied that a certificate as to a determination or a statement attached to the certificate contains an obvious error, the Registrar may issue, or approve of an Arbitrator issuing, a replacement certificate or statement to correct the error.”
34.Rule 16.2(2) of the Rules (which Part deals with appeals from decisions of arbitrators) provides:
“(2) For the purposes of subrule (1), a decision is made, in respect of a dispute, when the Commission issues a certificate as to the determination of the dispute as required by section 294(1) of the 1998 Act.”
35.Section 352(1) of the 1998 Act, which governs appeals against decisions of arbitrators, provides:
“(1) A party to a dispute in connection with a claim for compensation may, with leave of the Commission constituted by a Presidential member, appeal to the Commission as so constituted against a decision in respect of the dispute by the Commission constituted by an arbitrator.” (emphasis added)
36.Section 352(8) of the 1998 Act provides:
“(8) In this section decision includes an award, interim award, order, determination, ruling and direction, but does not include any award, order, determination, ruling or direction of an interlocutory nature prescribed by the regulations.”
37.The exclusion of orders of an interlocutory nature has been recently dealt with by Roche DP in P & O Ports Limited v Hawkins [2007] NSWWCCPD 87. The characterisation of an order as ‘interlocutory’ or otherwise, is not a distinction with which I need to deal for current purposes.
38.Clearly, for an appeal to lie to a Presidential member, it is necessary that there be a ‘decision’. The Arbitrator’s description of what transpired at the teleconference, as recorded in the document headed “Teleconference Arrangements and Outcomes”, relevantly provides:
“I indicated that, at this stage, the s66 assessment is binding (at 0%) however I would decline to issue a COD until determination of all issues.”
39.I have found the question of whether the Arbitrator made a ‘decision’ on 24 November 2005, capable of being appealed pursuant to section 352 of the 1998 Act, a troubling one. On the one hand, the behaviour of the parties (and the Arbitrator) subsequently, at the commencement of the arbitration hearing, was consistent with a decision already having been made on the lump sum aspect. The failure by the Arbitrator to make a specific award on the lump sum claim, although he separately made awards on the weekly and section 60 claims, also is consistent with the matter being approached, at the arbitration hearing, on the basis the lump sum claim no longer required determination. Whilst it is true the finding made on ‘injury’ was sufficient to dispose of the matter overall, this did not inhibit the Arbitrator from pronouncing separate awards for the employers on the weekly and section 60 claims.
40.On the other hand, objective procedural matters point to a ‘decision’ not having been made, on 24 November 2005. If the Arbitrator were making a decision, it would have been necessary that a Certificate of Determination issue, accompanied by a statement of reasons, in compliance with section 294 of the 1998 Act. This did not occur. The absence of a Certificate of Determination was not mere oversight, it is clear from the passage quoted at [38] above, this course was intentional.
41.There would be good reasons why the Arbitrator potentially would have wished to defer making a final decision on the lump sum claim, until all issues had been determined. There are a number of Presidential decisions dealing with the respective roles of arbitrators and AMSs in determining matters. It has been frequently held that, whilst a MAC is conclusively presumed correct as regards the matters specified in section 326(1) of the 1998 Act, questions such as injury, substantial contributing factor, and causation are properly matters for an Arbitrator to determine (see the decisions discussed in Ooi v NEC Business Solutions Limited [2006] NSWWCCPD 131 at [36] to [40]).
42.For whatever reason, the MACs dealt with the question of the Appellant Worker’s impairment only on a whole person impairment basis. This was appropriate (assuming the Appellant Worker succeeded) if such impairment were to be assessed on the basis the date of causative injury was after 31 December 2001. However, if the Appellant Worker succeeded on the basis the causative injury occurred prior to 31 December 2001, then whole person impairment would not be the appropriate way to assess entitlement pursuant to section 66 of the 1987 Act. Whatever views may have been formed by the Arbitrator, it would be understandable he would defer making final orders on the claim pursuant to section 66, until after he had determined fundamental matters such as ‘injury’ and ‘causation’.
43.A further impediment to the argument that a ‘decision’ was made on 24 November 2005 is that, if a ‘decision’ were made, it is difficult, in the absence of a Certificate of Determination or statement of reasons, to know precisely what that ‘decision’ was. The submissions filed by the Appellant Worker in support of the appeal assert the Arbitrator:
“…on the 24.11.2005 made a determination in accordance with the Approved Medical Specialist opinions as follows:
1) That the Applicant suffers Nil percent lumbar spine, Nil percent cervical spine, Nil percent right knee, Nil percent left knee, Nil percent sexual organs.” (at page 14.5)
44.There are a number of difficulties with this assertion regarding what was decided on 24 November 2005. The first is that the MACs assessed the Appellant Worker only on the basis of whole person impairment, rather than on the Table of Disabilities contained in the previous section 73 of the 1987 Act. So any findings or orders in terms of the Table could not be in accordance with the MACs. The second is that, to purport to make findings on the lump sum claim based upon the Table, would involve presupposing something which had not been decided, that the causative injury pre-dated 31 December 2001. The third is that, even if it is assumed any relevant orders on the lump sum claim should be based upon the Table, the suggested orders quoted in [43] above are not, by and large, in accordance with items forming part of that Table. The fourth is that the assertion regarding such orders is quite inconsistent with the Arbitrator’s record of what transpired, as noted in the document “Teleconference Arrangements and Outcomes”. In short, it is implausible a ‘decision’ was made in the terms asserted in the passage quoted at [43] above.
45.On balance, I have concluded there was no ‘decision’ dated 24 November 2005, capable of being appealed pursuant to section 352(1). In so far as it is necessary, the leave to appeal sought by the Appellant Worker in the Application for Leave to Appeal dated 8 December 2005 is refused.
The Second Appeal
46.In so far as the second appeal is concerned, the compensation claimed was greatly in excess of the sum of $5,000.00 prescribed in section 352(2) of the 1998 Act, and the Appellant Worker’s claim failed totally. The threshold provision of section 352(2) is clearly satisfied.
47.Section 352(4) of the 1998 Act provides an appeal can only be made within twenty-eight days after the making of the decision appealed against. Rule 16.2(2) provides the date of the decision is the date of the Certificate of Determination, in this case, 18 January 2006. The Appellant Worker’s appeal was initially lodged on 13 February 2006, within the available twenty-eight days. However it was rejected by the Registry for procedural reasons, and re-lodged on 22 February 2006, outside the period of twenty-eight days. Accordingly, the Appellant Worker requires an extension of time in which to bring the appeal, pursuant to Rule 16.2(11).
48.Rule 16.2(11) provides:
“The Commission constituted by a Presidential member may, if a party satisfies the Presidential member, in exceptional circumstances, that to lose the right to seek leave to appeal would work demonstrable and substantial injustice, by order extend the time for making an appeal.”
49.The submissions on the Appellant Worker’s behalf in support of an extension of time could not be described as extensive. The solicitors for the Appellant Worker assert the appeal was lodged within time, on the basis its original attempted lodgement was within the twenty-eight day period. However reference is then made to a judgment of Malpass AJ in Aguiar v Registrar of the Workers Compensation Commission & Ors [2005] NSWSC 1017 and a passage is quoted in which His Honour referred to “the length of period of default, the explanation of the default, prejudice and the merits of what is sought to be litigated” as matters generally relevant to an extension. The following passage from the judgment of McHugh J in Gallo v Dawson (1990) 93 ALR 479 has frequently been applied in Presidential decisions, dealing with extensions pursuant to Rule 16.2(11), or its predecessor (which was in identical terms):
“The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194-5; 70 ALR 185. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871 at 872; Hughes at 263-4, Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has “a vested right to retain the judgment” unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201.” (at 480)
50.The reason why the appeal was lodged out of time is obvious enough – it was originally lodged within time, but rejected for procedural reasons. The period by which it was then instituted out of time is short, a matter of days. The Appellant Worker’s solicitors acted with promptness in re-lodging the appeal, accompanied by correspondence remedying the defect. Having regard to the history of the matter overall, the Appellant Worker’s solicitors could not be described as sitting on their hands in relation to exercise by the Appellant Worker of his appeal rights. None of the interests representing the Respondent Employers has submitted there is any form of prejudice. Messrs Leitch Hasson & Dent (representing the last of the insurers of the First Respondent Employer) made submissions denying service on them of the Application to Appeal in the first appeal, but did not make any submission going to service, or time, in the second appeal. For reasons which will emerge, I am of the view the second appeal has reasonable prospects of success, and that refusal to extend time would result in injustice to the Appellant Worker. It is appropriate that the circumstances which led to the appeal being lodged slightly out of time be characterised as “exceptional circumstances” within the meaning of Rule 16.2(11).
51.I am of the view the interests of justice require that time to appeal be extended. I grant leave to appeal to the Appellant Worker pursuant to section 352(1) of the 1998 Act.
DISCUSSION AND FINDINGS
The Appellant Worker’s Grounds of Appeal
52.The Application to Appeal does not contain grounds of appeal as such, only submissions from which the grounds must be divined. Some of the submissions are in terms which are generally unhelpful in identifying issues. After making a short formal submission on the opening page of the submissions, going to the threshold requirements of section 352(2), the document continues:
“It is submitted that the referral to the Approved Medical Specialist on the basis of incorrect criteria (ie dates of injury), the Registrar failing to allow the Appeal and the decision of Arbitrator Michael Antrum, are all examples of the Workers Compensation Commission system failing to provide natural justice to injured workers in New South Wales.” (at page 1.7)
53.The submissions do not otherwise contain any submissions which purport to go to a denial of procedural fairness.
54.Whilst the submissions do not specify grounds of appeal as such, they touch on the following:
(i)The Appellant Worker, in the submissions on appeal, puts his case solely on the basis of the ‘disease’ provisions, as against the First Respondent Employer. It is submitted the Arbitrator failed to consider and apply an appropriate test, as regards whether ‘injury’ was established on this basis. Reference is made to Austin v Director General of Education (1994) 10 NSWCCR 373, Crisp v Chapman (1994) 10 NSWCCR 492, Smith v Mann (1932) 47 CLR 426, Connair Pty Limited v Frederiksen (1979) 53 ALJR 505, and also a number of unreported decisions of single judges of the Compensation Court of NSW.
(ii)It is submitted, for the purposes of the argument the Appellant Worker makes on the ‘disease’ provisions, the First Respondent Employer is the last relevant employer in time. The Appellant Worker does not, in these submissions, make any submission against the Second Respondent Employer.
(iii)The Appellant Worker’s employment with the First Respondent Employer came to an end in 1993, prior to the insertion of section 9A into the 1987 Act, by the Workcover Legislation Amendment Act 1996, which commenced 12 January 1997. Section 9A applies only to injuries occurring after 12 January 1997 (Schedule 6 Part 2 clause 9 of the 1987 Act). Accordingly Section 9A has no application to the Appellant Worker’s case on ‘injury’ as against the First Respondent Employer. The Appellant Worker does not need to establish ‘substantial contributing factor’ to succeed on ‘injury’ against the First Respondent Employer.
(iv)It is submitted the medical evidence overall is consistent with employment with the First Respondent Employer being a contributing factor, at least to the aggravation, acceleration, exacerbation or deterioration of diseases from which the Appellant Worker suffered.
(v)The Arbitrator erred in attaching significance to a perceived lack of contemporaneous documentation going to complaint of injury whilst the Appellant Worker was in the employ of the First Respondent Employer. This failed to take adequate account of the fact the Appellant Worker resigned from that employment due to the condition of his right knee. It also failed to take account of what might reasonably be expected from an aboriginal worker at Moree, of limited education, who would not necessarily be expected to know an arthritic condition may be compensable because of contribution to that condition by his work.
(vi)The Arbitrator’s analysis of the medical evidence reflected a misreading of the views of the AMS, Dr Ashwell.
The Notices of Opposition
55.Messrs Thompson Cooper, who act for the First Respondent Employer in respect of the period of risk prior to 30 June 1989, filed two Notices of Opposition. The first was lodged on 23 May 2006. After setting out a chronology, and a precis of the case sought to be made by the Appellant Worker in his submissions, the Notice of Opposition made the following points:
(i)To successfully prove injury relying on the ‘disease’ provisions, it was incumbent upon the Appellant Worker to establish the existence of a ‘disease’ and a relevant employment injury. This he had not done.
(ii)Dr Conrad’s reports did not assist in this regard, as he did not opine the conditions diagnosed by him were properly characterised as ‘disease’. In addition Dr Conrad’s view did not give an explanation for the mechanism by which “osteoarthritis of the femur is contracted by work”, and his opinion is not persuasive having regard to Makita (Australia) Pty Limited v Sprowles (2001) 52 NSWLR 705 (‘Makita’) at [85].
(iii)The Arbitrator correctly found the Appellant Worker had not discharged his onus of establishing ‘injury’ with either Respondent Employer. Reference is made to the submission on the Respondent Employer’s behalf that there was a lack of contemporaneous evidence to establish ‘injury’.
56.Messrs Thompson Cooper filed a further Notice of Opposition on 7 March 2007. That document was apparently filed pursuant to the Direction referred to at [26] above. That document directs its attention to arguments raised by the Appellant Worker in the medical appeal, against the MACs issued 28 June 2005. It is not relevant to the Appellant Worker’s appeal against the decision dated 18 January 2006.
57.Messrs Leitch Hasson & Dent, who act for the First Respondent Employer in respect of the period of risk subsequent to 30 June 1989, lodged a Notice of Opposition on 14 September 2006. That document dealt with the Application for Leave to Appeal lodged 8 December 2005 (the first appeal). It asserted the first appeal was not served upon the solicitors acting for that insurance interest until 11 September 2006. It stated those solicitors do not concede jurisdiction, given the lack of timely service, and seek further time to file and serve submissions. I have already found the first appeal is not competent, as there was not a ‘decision’ of 24 November 2005, capable of being the subject of that appeal. No further submissions have been lodged by that insurance interest, pursuant to the Direction referred to at [26] above.
58.Messrs Abbott Tout, who act for the Second Respondent Employer, on 31 August 2006 lodged a Notice of Opposition, containing submissions pertinent to both the first and second appeals. The points raised relevant to the second appeal are as follows:
(i)There was no evidence to support a finding of ‘injury’, based upon either the ‘disease’ provisions of the legislation, or discrete traumatic incidents. Dr Dan did not relate the condition of the knee on which he operated, to the Appellant Worker’s employment. Dr Conrad’s opinion was not persuasive having regard to Makita.
(ii)The Appellant Worker had, after leaving the employ of the First Respondent Employer, been able to earn more than he did with that Respondent. This was “not consistent with a finding of injury and incapacity”.
(iii)The Second Respondent Employer was not the last relevant employer, if there was a finding of ‘injury’ based upon the ‘disease’ provisions.
The Evidence for the Appellant Worker
59.The Appellant Worker was born on 17 September 1943. The Arbitrator’s reasons record a claim for six dependants was withdrawn at the arbitration hearing. In fact, the Application claimed in respect of a dependant wife and six dependant children. I take the Appellant Worker’s counsel to have conceded, at page 8 of the transcript, that any weekly award should be approached on the basis of a worker without dependants. The Appellant Worker left school in 1959 aged sixteen years. He is literate. He worked for the Moree Council and in the shearing industry, before commencing with the Department of Main Roads (a forerunner of the First Respondent Employer) in 1968. His statement of 5 August 2003 records he worked with that employer as a truck driver. He said the work involved a lot of climbing, a lot of steps, jumping up and down from the truck cabin, walking kilometres when doing line marking, and using light jackhammers. He would carry items such as signs, digging equipment, jackhammers, crowbars and petrol. He worked around the Moree area. He also did labouring work, and shovelling work such as patching potholes, and dig outs. The labouring is described as “extremely heavy work”. None of the Respondent interests sought to cross-examine the Appellant Worker to challenge his account of his duties, and there was no evidence put on by other parties to contradict the Appellant Worker’s evidence of his duties. The Appellant Worker said he took a voluntary redundancy from the First Respondent Employer in 1991, because of pain in his right knee. At that stage he intended having knee surgery. He described pain, which he attributed to his work with the First Respondent Employer, in the knees, legs, neck and back. The statement does not actually nominate a time of onset of these various pains, although says at the time he left the First Respondent Employer “I felt that the most severe pain I was suffering was in my knees” (at [24] of the statement).
60.The Appellant Worker describes then working as a youth worker at a Juvenile Justice Centre from about 1995 to about 1997. He says this was light work, although describes ongoing pain in the knees associated with walking and bus driving. He then obtained work as a security guard at a shop. This involved walking (including up and down stairs), unpacking pallets, stacking shelves and carrying heavy items. He says “This was heavy work and the work aggravated the back problems with pain radiating down the right and left legs, and also aggravated neck pain, with the pain in the right and left knees.” (at [32] of the statement). Moving pallets was the hardest part of the job. If someone attempted to steal from the shop, his knees precluded him from chasing them. The identity of the Appellant Worker’s employer changed on a couple of occasions whilst he was carrying out this security work, to “Go-Lo”, and then “Crazy Clarke’s”. He said there continued to be a lot of walking, and he tried to sit when he could. He was eventually terminated by Crazy Clarke’s. The pleadings suggest the date of ceasing that work was 28 March 2002. At the time he ceased, this shop business was operated by the Second Respondent Employer.
61.After being terminated by the Second Respondent Employer, the Appellant Worker obtained employment at Moree Spa Village Travel Inn from about 8 May 2002 to July 2002. He said there was no heavy lifting, although he did spend a lot of time on his feet. He was terminated when ownership of the motel changed hands. His statement records no further employment, although a history recorded by Dr Potter (who examined him for one of the insurance interests) suggests occasional work thereafter as a security officer.
62.There is a report from Dr Dan, the orthopaedic surgeon who performed an osteotomy of the femur in about 1991, due to advanced uni-compartmental arthritis of the right knee. He describes a history of the Appellant Worker’s duties at the First Respondent Employer involving “hard work getting in and out of trucks, repairing roads etc” There is a history of duties at the Second Respondent as a “Security Guard”, involving “lifting heavy items and going up and down stairs”. Dr Dan diagnosed advanced osteoarthritis of the knees, and arthritis of the lumbar and cervical spines. He said “All the conditions above are degenerative in nature and are cumulative over the prolong (sic) years of working as a labourer”. He described the Appellant Worker as “not fit for any hard work”, but “he may be able to do light duties as a Security Officer etc”.
63.The Appellant Worker was examined at the request of his own solicitors, by Dr Conrad, a surgeon, on 23 January 2003. Dr Conrad’s report of 29 January 2003 recorded a history generally similar to that contained in the Appellant Worker’s statement. Work at the First Respondent Employer was recorded as involving truck driving, shovelling, jumping from trucks, standing, walking, and carrying materials such as signs, digging equipment, jackhammers, crowbars and petrol. There is a history of “heavy labouring work”, which included pushing shovels with his legs. The history records knee pain commencing in 1989 or 1990, in both knees, with surgery to the right knee in 1991. The history is of jobs after the First Respondent Employer, including that with the Second Respondent Employer, being “of a much lighter nature”. The “Present Symptoms” described involve pain in the knees, back, and occasional neck pain. The history does not record any particular date of onset of back or neck symptoms. By way of opinion, Dr Conrad says “This man was employed by the RTA as outlined under History. As a result of his conditions of work, he sustained severe arthritis of both knees, a back strain and a mild neck strain.” He makes various assessments of both whole person impairment, and of losses and impairments under the Table of Disabilities. The assessments do not include any allowance for impairment resulting from neck symptoms. The whole person impairment is assessed including an element for “his back injury”. However the short report assessing losses under the Table assesses both legs, bodily disfigurement and sexual organs. It includes no assessment of back impairment. That report describes the losses assessed as relating “directly to the nature and conditions of his work at the RTA”.
64.The Appellant Worker’s case on injury also included some other material attached to an Application to Admit Late Documents dated 4 July 2005. This material was amongst that admitted and considered by the Arbitrator. It included some radiological reports. It appears these reports were not available to the AMS, Dr Ashwell, when he examined the Appellant Worker. There is an X-ray report of the right knee dated 28 September 1993, on the letterhead of Tamworth Base Hospital, that report being pursuant to a referral from Dr J Dearin. It recorded a plate in place from the previous osteotomy, mild osteoarthritic changes, and a possible loose body. There is a copy X-ray report of the right tibia and fibula from Moree District Hospital Radiology Department dated 25 December 2001. The copy is cut off so as to be only partially legible. It describes changes suggestive of a previous fracture in the region, and osteoarthritis of the medial compartment. It does not indicate whether the previous fracture is potentially a reference to the osteotomy procedure. There is an X-ray report from Moree District Hospital Radiology Department dated 4 July 2003, with the referral being from Dr Dan. That report involves X-rays of the Appellant Worker’s lumbar spine, cervical spine, and both knees. The appearances in the knees are described as “those of degenerative osteoarthritis”. The lumbar spine is described as demonstrating “minor degenerative change” at the lower facet joints, some narrowing and osteophyte formation at L3/4, and very slight anterior wedging of the body of T12. The cervical spine is described as showing slight loss of disc space at C5/6 and (more marked) at C6/7.
65.The Application to Admit Late Documents included a ‘report’ signed by a “John Davies” dated 3 January 1994, addressed to Dr Dan. It referred to the Appellant Worker being referred to John Davies by “John Dearin”, that being the name of the doctor who requested the X-ray report of 28 September 1993. I infer “John Davies” is a health professional of some description, it is unclear in precisely what capacity. The report of 3 January 1994 describes the Appellant Worker at that stage as “having problems with his right knee despite a femoral osteotomy performed in October 1991 for presumably medial compartment osteoarthritis”. There is the following history of complaint in the right knee at that time:
“He is still getting pain on sitting and walking and he can only manage about one block. It tends to be worse when walking on hard surfaces e.g. concrete. He cannot kneel or squat and manages stairs with difficulties and the knee is inclined to swell. The knee gives way sometimes but there has been no locking.”
John Davies described joint effusion on examination, together with laxity of the medial and anterior cruciate ligaments. He advised a knee brace and exercises, together with weight loss. He said “At the moment one could not say that he was fit for work which is of a heavy manual nature.”
66.Documents attached to the Application to Admit Late Documents also include a “work injury/illness report” on the letterhead of the Department of Main Roads. It relates to the Appellant Worker. It is unclear who filled it out, different parts are described as being signed by the “First Aid Attendant” and the “Works Engineer”. It describes an injury to the Appellant Worker’s “left hand lower back” on 27 June 1989, while “pulling iron post out of ground”. The “result” is described as “returned to work 4/7/89”, and the section of the document signed by the “Works Engineer” is described as one “For Lost Time Injury/Illness Only”. Thus the document appear to describe the Appellant Worker being absent from 27 June 1989 to 3 July 1989 due to this back injury. Question 9 of the document indicates its author did not know whether workers compensation would be claimed.
67.The last document attached to the Application to Admit Late Documents is a handwritten resignation signed by the Appellant Worker, addressed to “Rex Goodwin. RTA”, dated 20 January 1993. It states:
“I wish to advise you that I will be retiring Medically Unfit with my last day of service being 26 Feb 1993.”
68.The Appellant Worker’s case also included a number of taxation returns and a Wages Schedule.
The Evidence for the Respondent Employers
69.Messrs Thompson Cooper, acting for the First Respondent Employer in respect of its risk prior to 30 June 1989, attached one medical report to its Reply, of Dr Katelaris, a urological surgeon. He had examined the Appellant Worker at the request of those solicitors on 8 July 2004, and his report bears that date. Dr Katelaris recorded being told the Appellant Worker underwent a “right total knee replacement in 1990 and complains of ongoing pain, swelling and stiffness of the right knee”. The reference to a knee replacement would appear to be a reference to the osteotomy. There is a history of obesity, and poorly controlled non-insulin dependant diabetes. Dr Katelaris recorded a history of the sexual aspect of the Appellant Worker’s marriage. He concluded the Appellant Worker had diminished erectile dysfunction. He described the Appellant Worker’s diabetes and excessive weight as “very major risk factors for erectile dysfunction”, and went on “The sexual impairment does not relate to his work related knee problems”. Dr Katelaris clearly approached the matter on the basis of his particular specialty, being his “particular clinical interest in sexual dysfunction”. He did not purport to enquire in any detail, into the question of the causative relationship between the Appellant Worker’s employment duties, and his orthopaedic problems. He certainly did not cast any particular doubt on that relationship.
70.Messrs Leitch Hasson & Dent, who acted for the First Respondent Employer in respect of the period after 30 June 1989, also attached one report to their Reply, Dr Potter, rheumatologist, dated 26 June 2004. Dr Potter noted he was assessing the Appellant Worker without the benefit of investigations or objective data. He also recorded a history, it would seem inaccurately, of a total knee replacement on the right side. He said he had noted correspondence from the treating doctor, Dr Dan (at page 1.5). He said if there had been a continuum of physical injury or impairment he would have expected “the treating GP, Dr Dan, to be able to define from his records a continuum of ongoing symptoms and signs”, but “None such is recorded”. (at page 2.3). He later recorded that the Appellant Worker visited the Aboriginal Medical Service to assist him. Dr Potter did not indicate an awareness Dr Dan was the operating specialist. Dr Potter recorded a history that the Appellant Worker “worked for the RTA for 24 years”. He recorded:
“For the RTA he was ‘mainly a truck driver’. This meant doing road building and also climbing in and out of the truck, lifting when required, carrying cement and lime when required, shovelling pre-mix when required and rolling drums.” (at page 3.9)
Dr Potter recorded “quite widespread” pains, however “The main complaint is the knees, right worse than left, and in the back” (at page 4.4). He found wasting in both thighs, and a flexion deformity in the right leg (at page 4.9). There was crepitus in both knees (at page 5.1). He said the Appellant Worker “presents as disabled” (page 5.2). Dr Potter says:
“He confirms the nature of work and the duration of work. He confirms the variety of symptoms.
I have no reason to doubt the symptoms or the chronology and the work history given.” (at page 5.8)
He later said “I have been given no details of exaggeration or fabrication” (at page 6.6). Dr Potter dealt with the causal relationship between the Appellant Worker’s duties and symptoms in this way:
“I have no evidence that his muculoskeletal pathology was initiated or permanently aggravated or accelerated by the nature of work.” (at page 6.9)
On the topic of work fitness Dr Potter says:
“Mr Duncan is fit to work.
His limitations are obesity and symptoms.
He is clearly doing work as a security officer.
In principle, there is no reason why he could not work as a security officer full-time if he were so willing.” (pages 5.9 to 6.2)
This opinion is in the context of a history recorded by Dr Potter, that the Appellant Worker “works occasional hours in occasional months locally in the town as a security officer.” (at page 1.8). I would not read it, particularly given Dr Potter’s views on permanent impairment and loss (however caused) as being an opinion the Appellant Worker was fit on an unrestricted basis for all forms of employment.
71.In a separate shorter report, Dr Potter assessed 5% permanent impairment of the back, 30% permanent loss of use of the right leg at or above the knee, and 15% permanent loss of use of the left leg at or above the knee. In relation to all of these assessments, Dr Potter opined that no part of the losses and impairments was attributable to the Appellant Worker’s employment duties with the First Respondent Employer.
72.The file of the Commission does not include any Reply filed on behalf of the Second Respondent Employer. The submissions filed on the Appellant Worker’s behalf in relation to the first appeal, refer to the solicitors for the Second Respondent Employer having served an unsealed Reply, but not a sealed copy. Those submissions recite the matters said to have been put in issue by the Second Respondent Employer, and I shall not recite them here. They included injury, incapacity, section 9A, quantum, and whether, if employment with the Second Respondent Employer was a contributing factor to disease, the Second Respondent Employer was the last relevant employer (at pages 10.4 to 11.9 of those submissions). The submissions do not suggest any evidence, medical or otherwise, was attached to the unsealed Reply served by the Second Respondent Employer. Nor is any such evidence referred to in the Arbitrator’s reasons (clearly the reference to the “Second Respondent” on page 3.4 of the reasons is in error, it refers to the report of Dr Katelaris utilised by Messrs Thompson Cooper).
73.The Second Respondent Employer was represented by counsel at the arbitration hearing, and the matter has been conducted throughout, by all parties, on the basis the Second Respondent Employer disputed the Appellant Worker’s claim. The Second Respondent Employer has filed documentation on this appeal making submissions seeking to defend the Award in its favour entered by the Arbitrator. For current purposes, nothing turns upon the procedural irregularity, in its failure to file the served copy of its Reply.
The Arbitrator’s Reasons
74.The Arbitrator recited the evidence and submissions. His ‘Findings and Reasons’, containing the reasoning process leading to the decision, are to be found at [67] to [84] of his reasons. He described the “Respondent’s position” being strengthened by the report of the AMS, Dr Ashwell. He said “The question must arise as to whether or not there can be incapacity where there is a 0% whole person impairment.” He noted Dr Ashwell’s opinion the Appellant Worker’s work activities may be partly responsible for his symptoms. He then said “it remains the fact that the medical conclusions of the Applicant’s doctors on the one hand remain diametrically opposed to the conclusions of Dr Potter and the Approved Medical Specialist.” (at [72] to [74]).
75.The Arbitrator then dealt with the potential liability of the Second Respondent Employer. He noted the Appellant Worker’s employment there was for a relatively short period, and there was no evidence of any report of injury or medical certificate to support any claim against that employer. He said there was scant evidence to the type of activity giving rise to the aggravation or injury (presumably with that Respondent), and said work of similar vigour with another employer had occurred after the Appellant Worker’s employment with the Second Respondent Employer, that further employer not having been joined. The Arbitrator thought it “beyond a reasonable possibility” the Second Respondent Employer could have a liability to the Appellant Worker (at [76]).
76.As regards the First Respondent Employer, the Arbitrator noted the lengthy period of employment (at [78]), and continued:
“In that time, and if it is said either there was a frank injury or an aggravation of a disease, then one would have thought there would at least be a report of injury, or some medical attendance to substantiate the Applicant’s claim. The earliest evidence of any injury is the “Wok (sic) Injury Report” of 27 June 1989 in which the Applicant hurt his back pulling out an iron post. That report notes that no time would be lost as a result of the injury. We then have a report of Dr Davies which is dated 3 January 1994, some four and a half years after the work injury report. This report is silent as to any relationship between work and the injury, even though this report post-dates the Applicant’s last day with the First Respondent.” (at [79])
77.After noting the Appellant Worker’s resignation did not say why he was resigning ‘medically unfit’ (at [81]), the Arbitrator said Dr Ashwell “on his observations and in his assessment could not find any work-related impairment”. The Arbitrator said he preferred Dr Ashwell’s views to those of Drs Dan and Conrad, “having regard to the evidence of an early degenerative condition, the work history of the Applicant, and the almost complete absence of objective corroborating material” (at [82]). He then said:
“83.My determination may have been different if there had been at least one document relating to rehabilitation, one document evidencing time off work, one document relating to light duties, one document relating to consultations with medical practitioners, or evidence of enquiries relating to alternative work. It is not expected that a worker will keep meticulous records of their (sic) incapacity, but it is the very nature of this system that work injuries are recorded and periods of incapacity monitored.”
84.In short, I am not persuaded that the Applicant has suffered any work injury giving rise to any period of incapacity, either with the First or Second Respondents.”
The Nature of the Review Process
78. In Westpac Banking Corporation v Kilby & Bananacoast Credit Union Ltd [2005] NSWWCCPD 24 (Byron DP) at [54] said:
“As stated in South Western Sydney Area Health Service v Edmonds [2005] NSW WCC PD 18, the weight and relevance to be given to evidence before an Arbitrator is a matter in the discretion of that Arbitrator. The decision of the Arbitrator should not be overturned unless it can be demonstrated that the Arbitrator has failed to exercise that discretion fairly and according to law. This may occur when an Arbitrator has acted upon an incorrect legal principle, allowed irrelevant considerations to influence the decision, made a material mistake as to the facts, or failed to take into account relevant and material considerations, (House v The King (1936) 55 CLR 499 at 504-505; Norbis v Norbis (1986) 161 CLR 513 at 520, and In the Matter of National Roads and Motorists Association Ltd [2003] FCAFC 206 at [21]).
79.The review process is broader than correction of error of the kind identified in House v The King. In Aluminium Louvres & Ceilings Pty Limited v Zheng [2006] NSWCA 34 (‘Zheng’) Bryson JA at [38] said:
“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.”
80.This passage was recently quoted with approval by McColl JA in South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 (‘Edmonds’) at [134].
‘Injury’ and the ‘Disease’ Allegations
81.The pleadings made it clear the Appellant Worker placed reliance upon the ‘disease’ provisions of the 1987 Act. Section 4 is in the following terms:
“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.
82.Sections 15 and 16 of the 1987 Act provide machinery for fixing a date of injury, and determining the employer by whom compensation is payable, where the injury consists of a ‘disease’, or the aggravation, acceleration, exacerbation or deterioration of a disease, within the meaning of sub-section 4(b).
83.Three specific factors were nominated by the Arbitrator, in his reasons, for his failure to accept the Appellant Worker’s case on injury. The first was his analysis of the medical evidence. He approached this task on the basis there was a sharp dichotomy between Drs Dan and Conrad (on the Appellant Worker’s side), and Drs Potter and Ashwell. This represented an oversimplification of the views of both Drs Dan and Ashwell. Both of those doctors thought the Appellant Worker’s condition degenerative in nature. As is noted above at [8], Dr Ashwell accepted the view of Dr Dan, that the Appellant Worker’s work duties could well be partly responsible for his symptoms (Dr Ashwell’s report at page 8.6). The Arbitrator dealt with the conflict in the medical evidence, as he perceived it, by preferring the view of Dr Ashwell (at [82] of his reasons):
“Dr Ashwell, on his observations and in his assessment, could not find any work- related impairment. On the facts and evidence before me, I too am unable to conclude that there has been any ongoing incapacity. I prefer Dr Ashwell’s conclusions to that of Drs Dan and Conrad having regard to the evidence of an early degenerative condition, the work history of the Applicant, and the almost complete absence of objective corroborating material.”
84.There are a number of difficulties with this passage. To some extent it misstates the views of Dr Ashwell as regards the Appellant Worker’s symptoms. Whilst Dr Ashwell concluded there was no whole person impairment applying the appropriate AMA 5 Guidelines, he did not conclude there was no incapacity. The specific basis on which he reached the view he did regarding whole person impairment is referred to at [7] above. Dr Ashwell did not, in his report, express any view as regards incapacity. The Arbitrator blurs the two issues of ‘injury’ and ‘incapacity’, in purporting to find a lack of incapacity as supportive for his view the Appellant Worker did not suffer injury. It is also difficult to see how matters such as “an early degenerative condition” and “the work history of the Applicant” are used by the Arbitrator in the circumstances. The work history included a long period of employment with the First Respondent Employer, and only periodic (and lighter) work since. The labouring aspect of the work duties with the First Respondent Employer had been described by the Appellant Worker, in his statement, as “extremely heavy work”. This description was uncontradicted. The early degenerative condition was consistent with the medical case mounted on the Appellant Worker behalf, at least on the views of Dr Dan.
85.In my view the Arbitrator’s fact finding at this point demonstrates error of the kind described in the passage quoted at [78] above. He has misstated the evidence, particularly the views of Dr Ashwell. He has sought to support a finding on ‘injury’ with purported reliance upon a view of Dr Ashwell that there was no ‘incapacity’, when Dr Ashwell did not say this. He has failed to properly consider the significance of the “early degenerative condition”, in the context of the Appellant Worker’s ‘disease’ allegations. He has failed to give proper consideration to the uncontradicted evidence of the Appellant Worker’s duties, which were relatively physical, and sometimes “extremely heavy work”.
86.The passage of the reasons set out at [77] above also demonstrates error. Although not expressed in this way, what it amounts to effectively is a finding on credit, that the Appellant Worker did not suffer symptoms when he said he did, associated with his work duties, as if he had, there would have been recorded complaints, injury reports, and the like. This presupposes the Appellant Worker, at the time, would have been aware of the compensable nature of a work caused contribution to his degenerative condition. It presupposes he would have been aware such a contribution was occurring (if it was). The argument of the Appellant Worker has merit, in that it is unreasonable to expect a worker in the position of the Appellant Worker to be aware of such matters, and to hold it against him if injury reports and the like are not documented.
87.The Appellant Worker submits at [54(iii)] above, correctly, that his employment with the First Respondent Employer ended prior to insertion into the 1987 Act of section 9A. For the Appellant Worker to succeed on ‘injury’ against the First Respondent Employer, he needed only prove such employment was a contributing factor to a disease, or the aggravation, acceleration, exacerbation or deterioration of a disease. He did not rely on any frank incident. Thus it was necessary that the Arbitrator consider whether the employment duties with the First Respondent Employer were such, that they were a contributing factor to the contraction of a disease, or the aggravation, etc of a disease. This required a consideration of the work duties carried out by the Appellant Worker, and the medical evidence regarding the contribution of such duties to any disease process.
88.The reasoning process in the Arbitrator’s reasons, from [67] to [84], does not in any way quote the ‘disease’ provisions in the Act, or deal with what the Appellant Worker needed to prove to succeed on this basis. The concept of ‘disease’ is referred to in passing, for example at [75] and [79], but no attempt is made to engage with those provisions. The submissions of the Appellant Worker refer to the decision of the NSW Court of Appeal in Austin v Director General of Education (1994) 10 NSWCCR 373 (‘Austin’). In that case Clarke JA, applying Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 (‘Federal Broom’), said a judge, faced with the potential application of the ‘disease’ provisions, should ask the following questions:
“(a) Was the applicant suffering from a disease?
(b)If so, was there an aggravation, acceleration, exacerbation or deterioration of it?
(c)If so, was her (his) employment a contributing factor?
(d)If so, did a total or partial incapacity for work result from such aggravation, acceleration, exacerbation or deterioration?” (at 378B)
89.The failure of the Arbitrator to apply an appropriate legal test, in considering the ‘disease’ allegations, also demonstrates error.
90.Having found error which requires interference in the Arbitrator’s decision, I must either remit the matter to another arbitrator for re-determination (the course advocated by the Appellant Worker), or alternatively re-determine the matter myself. It is desirable that a Presidential member who upholds an appeal finally determine the matter, if this is possible: Chubb Security Australia Pty Ltd v Trevarrow [2004] NSWCA 344. Notwithstanding my remarks at [86] above, there was no cross-examination, the evidence of the Appellant Worker was not contradicted by any lay material put on by any of the Respondents, and the Arbitrator did not make any stated finding on credit adverse to the Appellant Worker. I have all of the documentary material which was available to the Arbitrator, and transcript of the parties’ submissions. The desirability of my finally deciding the matter is increased by the age of the matter. The original Application was filed on 16 August 2004. To remit the matter to another arbitrator would inevitably involve more time and expense, and the possibility of yet another Presidential appeal. Accordingly the preferable course is that I re-determine it.
RE-DETERMINATION
How The Appellant Worker Now Presents His Case
91.The case was originally presented against both of the Respondent Employers. However submissions made by the Appellant Worker’s counsel made it clear the primary case the Appellant Worker sought to mount was against the First Respondent Employer. The pleading against the Second Respondent Employer was essentially defensive, in case the First Respondent Employer contended security work was also contributory to the alleged disease or aggravation (T6.45 to 7.15). The Appellant Worker has not, on this appeal, sought to disturb the award entered in favour of the Second Respondent Employer by the Arbitrator. The submissions on this appeal at page 3.9 make it clear the Appellant Worker now adopts the stance the First Respondent Employer is the last relevant employer, it being the last employer which employed him to carry out “labouring duties”. This is consistent with the submission at page 9.1 of those submissions, that all of the Appellant Worker’s work since leaving the First Respondent Employer has been “lighter work indicative of partial incapacity”. In the circumstances, I take the Appellant Worker to no longer be pursuing his claim against the Second Respondent Employer, and shall not consider the evidence against that employer in detail. Suffice it to note the evidence against the Second Employer was scant. The duties with that employer had been described by the Appellant Worker to Dr Conrad as of “a much lighter nature”. Dr Conrad’s views implicate only the First Respondent Employer. Dr Dan describes security officer work as “light duties”, and attributes the Appellant Worker’s problems (in part) to his “years of working as a labourer”, which was not his function with the Second Respondent Employer. The Appellant Worker’s claim, as pleaded against the Second Respondent Employer, cannot succeed on ‘injury’. The medical evidence does not support the conclusion the duties with the Second Respondent Employer contributed to any aggravation, etc of a disease process.
92.The claim against the First Respondent Employer was originally framed as one based upon “nature and conditions”, with reference to the ‘disease’ provisions. The submissions filed on this appeal make it clear the Appellant Worker presents his case on the basis of the ‘disease’ provisions to be found in section 4(b) of the 1987 Act. This is how I shall approach it.
Injury
93.An appropriate starting point, in my view, is to ask the four questions postulated by Clarke JA, quoted at [88] above.
94.The first of these is “Was the (Appellant Worker) suffering from a disease?” The medical evidence is relatively uncontroversial, as regards what the Appellant Worker suffers from. He suffers from arthritis in both knees. This is the opinion of Drs Conrad, Dan, Potter and Ashwell. It is consistent with the X-rays taken on 28 September 1993, 25 December 2001 and 4 July 2003. The condition (amongst others) is described by Dr Dan as “degenerative in nature”, and “cumulative” over prolonged years (page 9.8 of his report). Dr Ashwell’s comments at page 8.7 describe the Appellant Worker’s symptoms as predominantly due to the aging process, although he agrees with Dr Dan that “work activities may be partly responsible for his symptoms”. Dr Potter, although describing the Appellant Worker as suffering from “moderate knee arthritic change” (page 6.8), gives as a diagnosis “chronic widespread pain/chronic generalised pain” (page 5.2). This diagnosis does not much assist in characterising the condition from which the Appellant Worker suffers. It is clear Dr Potter does not disagree with the view of the other doctors, that the Appellant Worker has arthritis in his knees.
117.As regards the back, there is a work injury report dated 27 June 1989, dealing with an injury to the Appellant Worker’s back on that date, pulling an iron post out of the ground. That incident is not relied upon in the claim. There is no recorded ongoing complaint in the back thereafter, it appears the Appellant Worker carried on with his normal duties after that incident, save for perhaps a few days off. The document refers to him returning to work on 4 July 1989. It is not suggested the back symptoms were a reason for the Appellant Worker leaving the First Respondent Employer. The Appellant Worker’s statement does not describe any particular problems with the back after leaving the First Respondent Employer, until he was working at Fair Dinkum Bargains as a security officer, where he said the lifting made his back problems play up ([32] and [33]). The employment summary attached to the Appellant Worker’s Schedule of Earnings, which is based upon the annexed taxation returns, indicates the earliest employment this could be, is that with “FDB Retail Variety Store Pty Ltd”, which commenced in the financial year 1998/99, about five years after he resigned from the First Respondent Employer. The back is not the subject of recorded complaint by John Davies in January 1994. The x-ray of the lumbar spine dated 4 July 2003 is reported as showing minor degenerative changes at L3/4, and some very slight wedging at T12. These are the only x-rays of the lower back, in evidence.
118.Although I have found injury to the back, by way of contribution of the employment duties with the First Respondent Employer to aggravation of the disease process in the back, I am unable to be satisfied the effects of that aggravation have continued. There is little convincing evidence, even in the Appellant Worker’s own statement, to support the proposition the effects of that aggravation continued on a long term basis. The Appellant Worker’s statement does not describe back problems during the time he worked as a youth worker. The employment summary attached to the Schedule of Earnings indicates the Appellant Worker’s first employment after the First Respondent Employer, was with Moree Aboriginal Sobriety House, which commenced 1 July 1995. The summary refers to various other employments thereafter, which I also take to be the youth work referred to in the statement, at Nardoola Farm, and the Department of Juvenile Justice. I am not satisfied the Appellant Worker has, on the probabilities, discharged his onus of proving the effects of the aggravation of the disease in his back continued beyond 1 July 1995, when he commenced in other employment connected with youth work, in which he does not describe his back as troubling him particularly.
119.The situation in respect of the Appellant Worker’s aggravation of his neck is similar, except his case on the neck is, if anything, less compelling. There is no record of any work related neck pain. Neck symptoms are described at a low level, “occasional pain in the neck, with pain radiating down the right and left arms” ([23] of the statement). The description in the statement, of neck symptoms after leaving the First Respondent Employer, is sparse. There is a reference to an aggravation of the neck pain when carrying, whilst working as a security guard (at [32]), but otherwise very little reference to the neck causing difficulties in the Appellant Worker’s activities after leaving the First Respondent Employer. There is no evidence symptoms in the neck were incapacitating, prior to that time. Applying the commonsense test propounded in Koorgang Cement, I am not persuaded the aggravation of the neck condition in the First Respondent Employer’s employ, was the cause of the neck symptoms which manifested themselves when the Appellant Worker was working as a security guard. There is a period of about five years between when he left the First Respondent Employer, and when he was first employed as a security guard. The evidence, including the Appellant Worker’s statement and medical histories, does not chart any continuity of neck complaint over that period. I am not satisfied the effects of the aggravation of the disease in the Appellant Worker’s neck, continued beyond 1 July 1995. I am not satisfied the aggravation of the disease process in the Appellant Worker’s neck was productive of incapacity, at any time.
Periods of Incapacity
120.The Appellant Worker’s weekly claim is pleaded from 1 July 1989. There is no logical basis on which one could formulate an entitlement to weekly compensation going back to that time. The statement and other material do not describe facts which would be expected to lead to time off work, or diminished earnings, prior to the right knee surgery.
121.The surgery was carried out in “about 1991”. Clearly, in the normal course of events, there would be a period of total incapacity associated with the surgery. However, the evidence is completely silent as regards what that period was, or when it occurred. The reduced earnings during 1991/92, and possibly also part of 1992/93, may well reflect time off work due to the surgery and associated recuperation. However I cannot see it is possible for me to make any award for incapacity associated with the surgery, in the absence of better evidence. To attempt to fix a period of incapacity on that basis, prior to the Appellant Worker’s resignation on 26 February 1993, would be pure conjecture. In my view it is impossible, on the available evidence, to be satisfied there was any actual period of total or partial incapacity, with economic consequences, resulting from the injury to the knees, prior to the date of resignation. The evidence is silent as regards periods off work, any partial incapacity which may have reduced the Appellant Worker’s earnings when he came back to work after the surgery, and the reason/s for the reduction in earnings in 1991/92 and 1992/93, compared with 1990/91. Thus I cannot be satisfied there were periods of incapacity prior to 27 February 1993.
122.The Appellant Worker’s evidence in his statement is that he left the employ of the First Respondent Employer in 1991 because of pain in his right knee. He is mistaken regarding the date, and regarding whether the resignation occurred before or after the osteotomy carried out by Dr Dan. However, I still accept his statement regarding his reason for resigning from the First Respondent Employer. It is consistent with his retirement on the basis he was “medically unfit”. I accept that, from the date of resignation, the Appellant Worker was unfit for his duties with the First Respondent Employer, which included not only driving duties, but also labouring work. The evidence overall is consistent with incapacity for work associated with the Appellant Worker’s knee injuries, after his resignation on 26 February 1993. This incapacity was of a partial (rather than total) nature. This is consistent with the report of John Davies on 3 January 1994, describing the Appellant Worker as unfit for work of a heavy manual nature. It is consistent with Dr Dan’s view as at 3 June 2003 “he is not fit for any hard work”. It is consistent with the employment history since the resignation, of carrying out work from time to time, of a lighter nature than the duties with the First Respondent Employer, but with periodic difficulties when those later jobs had physical aspects. Accordingly, the Appellant Worker’s entitlement is to be calculated pursuant to section 40 of the 1987 Act.
123.Section 16 of the 1987 Act provides for the fixing of a deemed date of injury, where the injury consists of the aggravation, acceleration, exacerbation or deterioration of a disease. As the first incapacity of which I can be satisfied on the evidence occurred when the Appellant Worker resigned on 26 February 1993, that is the deemed date of injury pursuant to section 16(1)(a)(i).
The Section 40 Equation
124.The steps to be followed in calculating an entitlement pursuant to section 40 of the 1987 Act are set out in judgment of the NSW Court of Appeal in Mitchell v Central West Health Service (1997) 14 NSWCCR 526 (‘Mitchell’). Firstly, it is necessary to determine the probable earnings of the Appellant Worker in the same or some comparable employment, but for injury (section 40(2)(a)). The Appellant Worker’s Schedule of Earnings sets out his actual earnings from time to time with the First Respondent Employer prior to his resignation. It increases the figure by the consumer price index, on an annual basis, to calculate probable earnings. I see nothing objectionable in approaching the question in this way. None of the employer interests took objection to this method of calculation, on the arbitration hearing. None suggested alternative figures, or submitted on some alternative method of calculation. Accordingly, I accept the Appellant Worker’s probable earnings from time to time, in the employ of the First Respondent Employer, but for injury, are in accordance with the figures in the Appellant Worker’s Schedule.
125.The second step is to determine the average weekly amount which the worker is earning, or would be able to earn in some suitable employment, from time to time after the injury. Dr Dan suggests the Appellant Worker “may be able to do light duties as a Security Officer, etc”. Dr Potter recorded a history the Appellant Worker “works occasional hours in occasional months locally in the town as a security officer” (at page 1.8 of his report). The Appellant Worker’s description of his past experience in security work, in his statement, makes it clear he is not fit for unrestricted duties as a security officer. If someone tried to shoplift, the Appellant Worker was unable to chase after them (statement at [35]). At times he would try to find a chair to sit down to rest his knees (statement at [38]). He would need security work where he could sit from time to time, where there were not extended periods of walking, and where it was not necessary to run. The work as a youth worker, when it was available, was suitable work for the Appellant Worker, in his partially incapacitated condition.
126.The evidence does not suggest the Appellant Worker’s hours need to be restricted in lighter work, such as security work where he could sit from time to time, and did not need to run or carry out active manual duties. However given the Appellant Worker’s educational and vocational background, and the labour market reasonably accessible to him in the Moree area, one would expect intermittency of employment to be a significant feature of his capacity to earn. The restrictions on his earning capacity are such, that work of a type suitable for him would be unlikely to be available to him fifty-two weeks per year. The history recorded by Dr Potter, of occasional security work, is consistent with this. The Schedule of Earnings demonstrates this feature of intermittency, during the period the Appellant Worker was in employment from time to time, from 1 July 1995 to 30 June 2002. It is legitimate to take intermittency of employment of a partially incapacitated worker into account, in assessing the worker’s capacity to earn in some suitable employment: Summerson v Alcan Australia Ltd (1994) 10 NSWCCR 571. It is unlikely lighter work, such as in the security industry, of a type suitable for the Appellant Worker, would be available to him more than eighty per cent of the time. This is the approximate frequency with which he was in suitable lighter employment over the period 1 July 1995 to June 2002, a period over which he was working fairly consistently.
127.The first period to be determined is that from 27 February 1993 to 30 June 1995. The Appellant Worker was not in employment over this period. It is necessary to determine the amount he would be able to earn in some suitable employment. The first employment he obtained after this period was as a youth worker, from 1 July 1995. The Schedule of Earnings indicates it then paid $479.25 per week. When the Appellant Worker worked at one stage for a full year as a security officer, in 1999/2000, this yielded average weekly earnings of $727.04. The earnings in that occupation would not have been so high from 27 February 1993 to 30 June 1995. Having regard to movements in wages over the years, the security work, from 17 February 1993 to 30 June 1995, would be expected to attract remuneration of $700.00. Over this period the Appellant Worker’s capacity to earn was restricted by both the injury to his knees, and the injury to his lower back, which I have found continued until 30 June 1995. I am satisfied his capacity to earn from 27 February 1993 to 30 June 1995 was in employment such as that of a youth worker, paying $479.25 per week, or as a security officer, with some restrictions as outlined at [125] above, paying $700.00. Such employment would not be expected to be available to him, on the labour market reasonably accessible to him, for more than eighty per cent of the time. This is broadly consistent with the frequency with which he could find such work, between 1 July 1995 and 30 June 2002.
128.There is a helpful passage in the judgment of Burke J in Mangion v Visy Board Pty Ltd (1991) 8 NSWCCR 175 at [180]:
“When assessing a capacity to earn under section 40(2), it is not sufficient to merely identify a particular potential avenue of employment and attribute the income from such a job as a man’s capacity to earn. Allowance must be made for the availability of work – availability, not so much in the sense of a presently depressed labour market but in the sense of the general availability in any labour market. A rarely available niche in the labour market which carries, perhaps, substantial remuneration, does not serve as a sole criterion of capacity to earn. A good proportion of the workforce are engaged in clerical or sales type occupations. They are avenues of employment with higher than average availability as far as the less physical types of work are concerned. To someone in Brewarrina or Mungindi there is little point in considering jobs such as console operator in a self-service garage or a lift-driver in a department store. Whether the man has the capacity to do such a job or not, it doesn’t constitute any real part of his accessible labour market. One always seeks to assess the capacity to earn of this particular worker in his particular circumstances.
When one assesses an ability to earn under section 40(2), one is really arriving at a weighted average. Wage rates for jobs within capacity that are rarely available, though perhaps highly paid, rate poorly in such an assessment. Conversely, the income derivable from more readily available work rates highly.”
129.The average of the two jobs I have nominated as being suitable is $589.62 per week, during those times when they are available. When the figure is reduced by twenty per cent to reflect intermittency of employment, this yields a figure of $471.69. I determine this figure to represent the Appellant Worker’s ability to earn in some suitable employment, from 27 February 1993 to 30 June 1995.
130.The third step required by Mitchell is to deduct the lower end of the equation from the upper, which leaves figures, for this period, of $88.69 from 27 February 1993 to 30 June 1993, $98.21 from 1 July 1993 to 30 June 1994, and $123.28 from 1 July 1994 to 30 June 1995.
131.The Appellant Worker was then in intermittent employment, as a youth worker and security guard, from1 July 1995 to 30 June 2002. The words of section 40(2)(b) direct me to average the earnings, and I will do so on an annual basis, this being the same frequency as that with which the probable earnings if not for injury are adjusted, to reflect movements of the consumer price index. When a worker is in employment, his average earnings normally will represent the lower end of the section 40 equation: Aitken v Goodyear Tyre & Rubber Company Australia Limited (1945) 46 SR (NSW) 20, Novello v Zinc Corporation Ltd (1988) 14 NSWLR 25. In J C Ludowici & Son Ltd v Cutri (1992) 26 NSWLR 580 (‘Ludowici’) Kirby P (as he then was) said:
“2. Parliament included the reference to what the worker “is earning” for a purpose. The phrase cannot be ignored. The earnings are not mere evidence of what the worker is “able to earn”. In fact, if the worker is “earning” that will normally be the end of the inquiry. It is only if, for some reason, that amount, where it exists, or existed, is suggested to be an under-estimate or a false measure of the worker’s ability to earn that the alternative inquiry will be embarked upon.” (at 593D)
132.During the period from 1 July 1995 to 30 June 2002, there is no reason, such as shirking, or deliberately taking lower paid work, which would require that I regard the Appellant Worker’s actual earnings as a false measure of his ability to earn. I find the lower level of the section 40 equation over this period, to be represented by the Appellant Worker’s actual earnings, averaged each financial year. Those figures are $219.90 (1995/96), $424.71 (1996/97), $284.76 (1997/98), $281.88 (1998/99), $727.04 (1999/2000), $617.00 (2000/01), and $460.42 (2001/02). The differences between the upper and lower figures of the section 40 equation over these years are $393.51 (1995/96), $190.54 (1996/97), $334.79 (1997/98), $344.48 (1998/99), nil (1999/2000), $68.18 (2000/01), and $243.94 (2001/2002). These are the figures yielded by the third stage of the process laid down in Mitchell, over that period.
133.The Schedule of Earnings reveals an entry “??” as actual earnings from “1.7.02 to ??.11.02”. The Schedule indicates the Appellant Worker worked for the Second Respondent Employer over that period, and suggests the earnings from that employment are unknown. This entry is inconsistent with the Appellant Worker’s statement, which indicates he ceased work with the Second Respondent Employer in March 2002, and his association with it thereafter involved a telephone call in November 2002, in which he was offered security work over the Christmas period, but this offer was then withdrawn (at paragraphs [43] to [47]). I prefer the evidence in the statement, which the Appellant Worker has adopted by signing it, to the assertion in that entry of the Schedule of Earnings.
134.The history taken by Dr Potter refers to some spasmodic work in the security industry, for “occasional hours in occasional months”, as at June 2004. There are no figures for this in the Schedule of Earnings. The earnings from such employment would be likely to be so low as to be “an under estimate or a false measure” of the Appellant Worker’s ability to earn in any event, so it is necessary that I assess the Appellant Worker’s ability to earn in some suitable employment, for the period subsequent to 1 July 2002, when the Appellant Worker ceased to be in fairly regular employment. The most recent security work he had carried out prior to that time, was at the Moree Spa Motel, from about 10 April 2002 to about 30 June 2002. The Schedule of Earnings reveals average weekly earnings from this employment of $718.67. The most recent work as a youth worker was from 1 July 1997 to 25 November 1997 at Nardoola Farm Inc, where he had average weekly earnings of $705.14. One would anticipate the earnings of a youth worker would have increased a little since that time, and the figure of $720.00 per week would be a reasonable reflection of an average of the earnings the Appellant Worker may have been able to attract in these occupations, if working in them full-time. For reasons I have already expressed, it is appropriate that this figure be reduced to reflect intermittency of employment, by twenty per cent. Thus I find the Appellant Worker’s ability to earn in some suitable employment subsequent to 1 July 2002 is $576.00 per week. The Schedule of Earnings does not seek to increase the figure for probable earnings to reflect inflation, subsequent to 1 July 2002. In turn, it is inappropriate to adjust the figure I have found for ability to earn, from that applying as at July 2002, to take account of inflation.
135.The difference between the upper and lower limbs of the section 40 equation, for the period from 1 July 2002 to date, is $128.36.
136.The fourth stage of the process laid down in Mitchell is the discretionary exercise, to “decide whether and to what extent the reduction calculated as above bears ‘such relation to the amount of that reduction as may appear proper in the circumstances of the case’”. Counsel for the insurer of the First Respondent Employer, on risk as at the date of deemed injury which I have found, submitted any arithmetical difference should be reduced on a discretionary basis, as there are “other things in this man’s life which prevent him from working” (T23.40). I take this to be a reference to other non-work related medical conditions, mentioned by some of the doctors who have reported in the case.
137.Dr Dan describes the Appellant Worker as suffering from obesity, hypertension and diabetes. Dr Potter records a history of the same complaints, and also records “There are several other health issues, hence he is on a disability pension on the basis of his medical problems” (page 1.9). Dr Katelaris describes the Appellant Worker as “significantly overweight”, and a “chronic poorly controlled diabetic” (page 2.5). Dr Ashwell takes a history of the Appellant Worker’s general health, that he suffers from diabetes and hypertension, with a past history of varicose veins, appendectomy and hernia repair (page 4.4). Dr Taylor does not comment on other health problems. The only doctor who comments on the other health problems as being productive of incapacity is Dr Potter, who describes the Appellant Worker’s receipt of a “disability pension on the basis of his medical problems including his sore knees”. Overall, I am not satisfied the Appellant Worker’s incapacity results in any material degree from non-work related health problems. In my view, there are no discretionary factors which would require reduction of the arithmetical difference thrown up by the section 40(2) calculation.
Notice of Injury
138.The Reply filed on behalf of the insurer on risk as at 26 February 1993, the deemed date of injury, also raised in its Reply an issue “That notice of injury was not given to the Respondent as required by the Act.” (at [15] of the issues in dispute). The Arbitrator did not deal with this aspect, he having found against the Appellant Worker on other grounds. The legislative provision governing notice of injury is to be found at section 61 of the 1998 Act. The previous provision, which pre-dated the 1998 Act and had application as at the deemed date of injury, was in section 88 of the 1987 Act. The two provisions are in substantially the same terms.
139.The Reply did not raise, as a defence, an argument that recovery of compensation was precluded by failure by the Appellant Worker to make a claim for compensation at an appropriate time. That is a separate and quite different statutory defence, now found in section 65 of the 1998 Act. The relevant provision governing the need to make a claim was in section 92 of the 1987 Act, prior to commencement of the 1998 Act.
140.Counsel for the First Respondent Employer on risk as at 26 February 1993, made submissions at the arbitration hearing, which related to failure to make a claim, rather than failure to report an injury, which was the defence raised in the Reply. That interest should not, in my view, be permitted to raise at the hearing a statutory defence which had not been pleaded. It should be restricted to the issue it raised on the pleadings, being the failure to report the injury in compliance with what is now section 61 of the 1998 Act.
141.Section 61 is in the following terms:
“(1) Compensation may not be recovered under this Act unless notice of the injury has been given to the employer as soon as possible after the injury happened and before the worker has voluntarily left the employment in which the worker was at the time of the injury.
(2) Notwithstanding subsection (1), the absence of, or any defect or inaccuracy in, any such notice is not a bar to the recovery of compensation if it is found in proceedings to recover that compensation:
(a) that the person against whom the proceedings are taken has not been prejudiced in respect of the proceedings, or
(b) that the absence of, or defect or inaccuracy in, the notice was occasioned by ignorance, mistake, absence from the State or other reasonable cause, or
(c) that the person against whom the proceedings are taken had knowledge of the injury from any source at or about the time when the injury happened, or
(d) where the employer is the owner of a mine or quarry, or the occupier of a factory, workshop, office or shop:
(i) that the summary referred to in section 231 has not been posted up in accordance with that section or the employer has otherwise contravened that section, or
(ii) that the injury has been reported by or on behalf of the employer to an inspector of mines or factories, shops and industries, or
(iii) that the injury has been treated in a first aid room at the mine, quarry, factory, workshop, office or shop, or
(e) that the injury has been reported by the employer to the Authority in accordance with this Act.”
142.The First Respondent Employer has not put on evidence to establish that notice of injury was not given at an appropriate time under sub-section 61(1), however nor has the Appellant Worker put on evidence to establish notice was given, containing all of the information required by what is now section 62 of the 1998 Act. I will assume for current purposes that notice was not given, containing all of the material required by section 62, prior to the Appellant Worker leaving the employ of the First Respondent Employer.
143.The statement of the Appellant Worker establishes that he informed unidentified persons, I infer people in authority with the First Respondent Employer, of trouble he was having with his knees, at a meeting at Glen Innes where redundancy packages were being discussed, before he left that employer. He said he informed those people he was having an operation on his knees, and it was possible he would not come back after the operation (paragraphs [20] to [22]). While the statement does not suggest the Appellant Worker conveyed all of the information required by section 62 of the 1998 Act (previously section 89 of the 1987 Act), he would have conveyed much of it. It is sufficient compliance with that provision if the notice is given orally. The Appellant Worker’s name and address would already have been known to the First Respondent Employer. It is unlikely he informed the First Respondent Employer at that time of the cause of the injury and the date on which it happened. However it is appropriate to excuse such defect pursuant to sub-section (2). There is no evidence the First Respondent Employer was prejudiced by any such defect in the notice. In addition, I would readily be prepared to find ignorance justified the defect. One would not expect a worker in the position of the Appellant Worker, to be aware of the fact he had arguably suffered injury by way of contribution by his work duties, to an aggravation of degenerative conditions from which he suffered. Accordingly, the absence of notice, or any defect in the notice given, is appropriately excused pursuant to section 61(2), formerly section 88(2) of the 1987 Act.
144.Even if leave had been given for the First Respondent Employer to rely on an unpleaded defence, that a claim for compensation had not been made within the time specified in what is now section 65 of the 1998 Act, that defence would not have succeeded. For reasons given above relating to the defence pleaded under what is now section 61 of the 1998 Act, it would have been appropriate to excuse the failure to make a claim, pursuant to section 65(12). In addition, section 65(13)(b) would have precluded the First Respondent Employer from relying on this defence. Having regard to the findings I have made on incapacity resulting from the injury with that employer, the injury resulted in “serious and permanent disablement” within the meaning of that sub-section: Broken Hill Pty Co Ltd v Kuhna (1992) 8 NSWCCR 401.
DECISION
145.For the reasons I have given, the decision of the Arbitrator dated 18 January 2006 is revoked.
146.The fifth stage of the process described in Mitchell is to make an award for the weekly sum arrived at. There are periods where the weekly sum is reduced to the statutory maximum prescribed by section 37(1)(a)(i) of the 1987 Act, beyond the first twenty-six weeks of incapacity, on the basis the Appellant Worker does not have dependants. There is no award in respect of the period 1 July 1999 to 30 June 2000, as the actual earnings of the Appellant Worker for that period exceeded his probable earnings if not for injury: Ludowici. The appropriate weekly award to be entered, at all times pursuant to section 40 of the 1987 Act, is as follows:
(i)$88.69 from 27 February 1993 to 30 June 1993;
(ii)$98.21 from 1 July 1993 to 30 June 1994;
(iii)$123.28 from 1 July 1994 to 30 June 1995;
(iv)$250.80 from 1 July 1995 to 30 September 1995;
(v)$252.10 from 1 October 1995 to 31 March 1996;
(vi)$253.70 from 1 April 1996 to 30June 1996;
(vii)$190.54 from 1 July 1996 to 30 June 1997;
(viii)$256.40 from 1 July 1997 to 30 September 1997;
(ix)$261.30 from 1 October 1997 to 31 March 1998;
(x)$263.30 from 1 April 1998 to 30 September 1998;
(xi)$267.90 from 1 October 1998 to 31 March 1999;
(xii)$272.60 from 1 April 1999 to 30 June 1999;
(xiii)$68.18 from 1 July 2000 to 30 June 2001;
(xiv)$243.94 from 1 July 2001 to 30 June 2002;
(xv)$128.36 from 1 July 2002 to date and continuing.
147.There is to be a general order for the payment of the Appellant Worker’s medical, hospital and related treatment expenses pursuant to section 60 of the 1987 Act. In so far as the back and neck are concerned, I have found the effects of the aggravation to those parts ceased by 1 July 1995, and accordingly the cost of treatment of those parts beyond that date, would not be payable pursuant to this order.
148.The Appellant Worker’s costs of the proceedings before the Arbitrator are to be paid.
149.The award and costs are to be paid by the First Respondent Employer, on the basis of a deemed date of injury of 26 February 1993. They will be paid by the insurance interest on risk at that date. There will be an award in favour of the Second Respondent Employer.
150.As regards the Appellant Worker’s claim for lump sum compensation, the MACs proceeded on the basis of deemed dates of injury of 4 April 2003 and 4 December 2003, and consequently made assessments based upon whole person impairment. Based upon the findings I have made on ‘injury’, this is inappropriate. What requires assessment (and is not the subject of the existing MACs) is the percentage permanent loss of use of the Appellant Worker’s right leg at or above the knee, left leg at or above the knee, sexual organs, and severe bodily disfigurement, resulting from the injury which I have found. It is unnecessary that permanent impairment of the back and neck be assessed, as I have found the effects of aggravation of these parts has ceased. The matter is to be referred to an orthopaedic approved medical specialist for assessment of these questions relating to the right and left legs, and severe bodily disfigurement, and to a urological approved medical specialist to assess the question of loss of use of the sexual organs. In each instance, the approved medical specialist is to be selected by the Registrar. The approved medical specialists selected should have access to all of the medical material in the matter, including the available radiological reports.
COSTS
151.The insurance interest of the First Respondent Employer on risk as at 26 February 1993 is to pay the Appellant Worker’s costs of the appeal. I make no order as to the costs of the other insurance interest of the First Respondent Employer, or of the Second Respondent Employer.
Michael Snell
Acting Deputy President
15 May 2007
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF MICHAEL SNELL, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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