Ecowize North Pty Ltd v Weir
[2009] NSWWCCPD 119
•24 September 2009
| WORKERS COMPENSATION COMMISSION | ||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||||
| CITATION: | Ecowize North Pty Ltd v Weir [2009] NSWWCCPD 119 | |||||
| APPELLANT: | Ecowize North Pty Ltd | |||||
| RESPONDENT: | Darren James Weir | |||||
| INSURER: | CGU Workers Compensation (NSW) Limited | |||||
| FILE NUMBER: | A1-2250/09 | |||||
| ARBITRATOR: | Mr J Ireland | |||||
| DATE OF ARBITRATOR’S DECISION: | 4 June 2009 | |||||
| DATE OF APPEAL DECISION: | 24 September 2009 | |||||
| SUBJECT MATTER OF DECISION: | Injury; causation; delay in onset of neck symptoms; medical evidence; Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 | |||||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | |||||
| HEARING: | On the Papers | |||||
| REPRESENTATION: | Appellant: | Kemp & Co Lawyers | ||||
| Respondent: | Farrell Lusher | |||||
| ORDERS MADE ON APPEAL: | 1. Paragraphs one and two of the Arbitrator’s determination of 4 June 2009 are revoked and the following order made: | |||||
| “1. In respect of the allegation that the applicant worker injured his neck on 3 December 2005, there is an award for the respondent employer. | ||||||
| 2. The assessment of the whole person impairment, if any, resulting from the injury to the back on 3 December 2005 is referred to the Registrar for a referral to an Approved Medical Specialist for assessment in accordance with Part 7 of the 1998 Act.” | ||||||
| 2. Paragraph three of the Arbitrator’s determination of 4 June 2009 is confirmed. | ||||||
| 3. Each party is to pay his or its own costs of the appeal. | ||||||
BACKGROUND
The worker, Mr Weir, started work as a night shift cleaner with an abattoir known as Rockdale Beef in approximately 1995. His employment was transferred to the appellant, Ecowize North Pty Limited (‘Ecowize’), in about May 2003. Though his employer changed, his duties and place of employment remained the same.
Mr Weir alleges that he injured his back and neck in the course of his employment on 3 December 2005. On that day he was working on his knees under a platform or conveyor system and struck his back on the conveyor when he attempted to stand up.
Ecowize concedes that Mr Weir injured his back in the incident, but disputes that he sustained any injury to his neck.
In an Application to Resolve a Dispute (‘the Application’), registered in the Commission on 24 March 2009, Mr Weir claims lump sum compensation in respect of a 12 per cent whole person impairment as a result of having injured his neck and back on 3 December 2005.
The Commission listed the matter for conciliation and arbitration before an Arbitrator on 21 May 2009. On that day the Arbitrator heard lengthy submissions, but took no oral evidence. In a reserved decision delivered on 4 June 2009, the Arbitrator found in favour of Mr Weir. The Commission issued a Certificate of Determination on 4 June 2009 in the following terms:
“The Commission determines:
1. I find the Applicant to have sustained an injury to his cervical spine as a direct consequence of the impact of the injury to his back following the event of 3 December 2005 and as such ought be referred by the Registrar to an Approved Medical Specialist to determine the extent of the Whole Person Impairment attributable to both the cervical spine and as agreed the lumbar spine, the designated date of injury being 3 December 2005.
2. I find the Applicant’s employment at the time of injury to have been a substantial contributing factor to such injury.
3. The Respondent to pay the Applicant’s costs as agreed or assessed.”
By an appeal filed on 2 July 2009, Ecowize seeks leave to appeal the Arbitrator’s determination.
LEAVE TO APPEAL
Monetary Threshold
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
It is not disputed that the monetary thresholds in section 352(2) of the 1998 Act are satisfied.
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
I grant leave to appeal.
ON THE PAPERS
Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
ISSUE IN DISPUTE
The issue in dispute in the appeal is whether the Arbitrator erred in finding that Mr Weir injured his cervical spine as a direct consequence of the injury to his back on 3 December 2005.
THE EVIDENCE
Mr Weir’s evidence is set out in his statement of 30 October 2007. His duties included “ordinary abattoir cleaning duties” and required him to, among other things, crawl underneath platforms to remove waste. It was in the course of that activity that he sustained his injury on 3 December 2005.
At paragraph six of his statement Mr Weir describes his injury as having occurred in the following circumstances:
“6. On 3 December 2005 I was working underneath a platform and when getting up I struck my back on the steel platform. I told my supervisor Neil Fitzgerald what happened and he advised me to rest for an hour and then return to duties. It was a Saturday night and there was no-one else on call. I rested for an hour and then I returned to duties, at which time I was still in pain. My primary source of pain at that point was my back. I completed my shift.”
The following Monday, Mr Weir attended on “the Rockdale nurse” who certified him unfit for work and he saw his local doctor, Dr Setrak, the next day who also certified him unfit.
Mr Weir states (at paragraph eight) that his condition did not improve over the next two or three months and:
“8. In fact, the pain in my back got worse, and over the next two months. I began to notice the pain increase and move up my back. I started feeling more pain and problems with my neck and shoulders. Upon doing so, I reported the pain to Dr Setrak.”
Mr Weir had no other “incidents” between December 2005 and the time when he reported his neck and shoulder pain to Dr Setrak. He did not do anything “formal” in relation to his neck and shoulder pain because, as he had already reported his back injury and he thought that the injury to his neck was related to the December 2005 incident, because that is what Dr Setrak confirmed to him. Though the work at the abattoirs was fairly heavy, it was only after the incident on 3 December 2005 that he began to notice pain in his back, neck and shoulders.
At the time he started noticing neck and shoulder pain, Mr Weir was still off work. He did not return to work until April 2006. His employment was terminated on 19 January 2007 and, at the time of his statement he remained in receipt of weekly compensation payments.
Mr Weir completed a claim form on 18 May 2006 in which he described the incident on 3 December 2005 as having occurred as follows:
“injured back whilst working under a platform (normal work procedure)”
He described his injury as “lt side & lower back injury”. The claim form also includes a section headed “Treating Doctor’s Details” in which the following diagnosis of injury is included “lower back strain with (L) upper back & shoulder weakness”.
Medical evidence
Dr Setrak’s clinical notes confirm that Mr Weir attended on him on Tuesday 6 December 2005. The notes for that day include the following entry:
“Hurt his back at work on 3rd-12-05, he has pain and tenderness at lower back (L5) and to the RT. SLR +ve for LT and RT.
Mechanical injury?”
Dr Setrak’s initial WorkCover medical certificate of 6 December 2005 describes the injury as having occurred as follows:
“hurt his back, kneeling down & then felt the pain on standing”
The diagnosis in the certificate is “musculoskeletal injury (lumbar spine)”. In his certificates of 12 and 19 December 2005, Dr Setrak diagnosed “musculoskeletal back pain”. In his certificates of 4 and 27 January 2006, Dr Setrak diagnosed “lower back injury”. The first reference to neck or shoulder appears in Dr Setrak’s certificate of 1 March 2006, which diagnosed “musculoskeletal injury to the LT lower back and LT neck and shoulder.” The next certificate, dated 16 June 2006, diagnosed “lower back pain” and the following certificate, dated 8 August 2006, diagnosed “lower back pain, LT upper back and shoulder weakness, work related stress”.
Between 6 December 2005 and 1 March 2006, Mr Weir attended on Dr Setrak on eight occasions. The doctor’s clinical notes in that period make no mention of any complaint of neck pain. Between 1 March 2006 and the first entry in the notes relating to neck pain on 30 November 2007, Mr Weir attended on Dr Setrak’s surgery on 43 occasions.
Dr Setrak reported to the insurer on 6 October 2006. He confirmed that he saw Mr Weir on 6 December 2005 and took a history that he injured his back when he straightened and hit a board. On examination there was a limitation of back movement in all directions with tenderness at the L5 area. He diagnosed a muscular skeletal strain of Mr Weir’s lower back.
Dr Setrak then added:
“The problem became worse after he started to complain from [sic, of] left shoulder and upper back pain on 6th February 2006. That problem was supported by physiotherapist [sic] in that it needed further treatment and might need gym [sic] to strengthen the muscle. He then complained from [sic, of] stress related problems at work, after this he was reduced to do light duties as a program was set up to upgrade his duties gradually (30th May 2006). I think he will be able to get back to full duties in less than a month from now.”
On 20 February 2006, Mr Weir underwent an MRI scan of his entire spine. The radiologist, Dr Lawrence, reported on 21 February 2006 that there was no stenosis or abnormal disc protrusion in the cervical or thoracic canal and all nerve roots exited without evidence of impingement. There were, however, degenerative discs at L4/5 and L5/S1.
Ecowize’s insurer referred Mr Weir to Dr Langenegger for an injury management assessment on 6 June 2006. In her report of 23 June 2006, Dr Langenegger took a history that Mr Weir was hosing under a platform at work on 3 December 2005 and when he straightened up he hit his lower back on the edge of the platform. He developed immediate pain in his lower back and notified his supervisor. He saw his local doctor and x-rays taken on 8 December 2005 revealed minimal spondyloarthritic changes. He failed to improve significantly and he reported that his pain spread up to his thoracic and cervical spines and down his arms and legs.
Mr Weir complained to Dr Langenegger of constant low back pain that extended up his spine to his left upper trapezius region and the tip of his left shoulder. He also complained of weakness, numbness, and pins and needles in his left arm and pain in the muscles on the left side of his neck. He said he occasionally experienced pain in his left leg down to his foot with pins and needles and numbness intermittently over the lateral border of his foot.
Under “Opinion”, Dr Langenegger noted that Mr Weir was initially diagnosed with a musculoskeletal injury to his lower back and more recently was diagnosed with a musculoskeletal injury to his lower back, neck and left shoulder. It was unclear to the doctor when the shoulder and neck symptoms commenced.
Ecowize prepared a rehabilitation program for Mr Weir with the assistance of Advanced Personnel Management (‘APM’). In a report from Ms Cochineas, psychologist and rehabilitation consultant with APM, dated 10 August 2006 it was stated that Mr Weir had returned to work on suitable duties and that he continued to experience pain “in relation to his back injury”.
Dr Leitl, orthopaedic surgeon, examined Mr Weir on behalf of Ecowize on 7 September 2006 and reported to the insurer on 8 September 2006. He took a history that Mr Weir struck his lower back while standing up after cleaning under a platform. His general practitioner put him off work. Over the following weeks, his back pain worsened and “spread upwards to his spine and left shoulder”. X-rays in December 2005 revealed L4/5 and L5/S1 spondylosis. By 20 February 2006 he had pain in his neck, left shoulder and arm, thoracic spine, left lower back and left leg and, as a result, he had an MRI scan of his whole spine which was reported as showing degenerative changes at L4/5 and L5/S1, but no other significant lesions.
Mr Weir complained to Dr Leitl of persisting soreness in his left lower back, a burning pain in his left leg and discomfort in his neck and left posterior shoulder area with weakness in his left arm. Over the preceding two or three months he had developed intermittent shaking in his left hand and leg if he did too much. Examination of the cervical spine showed normal lordosis and there was reported mild tenderness to light palpation in the lower cervical spine, but a full range of active movement. Dr Leitl considered that the MRI scan revealed multi level disc degeneration in the cervical spine with an apparent bulge at C5/6. He diagnosed age related cervical and lumbar disc degeneration and concluded:
“The mechanism described would have resulted in a soft tissue contusion to the lower back area, which I believe would have resolved in the usual time frame over the next two to three weeks.
He describes worsening of his back condition with radiation to the cervical and thoracic spine areas, and with involvement of the left shoulder and left leg, clearly a most atypical sequence of events following the mechanism of injury described.” (emphasis added)
The doctor added (at page nine) that:
“in my view he suffered a soft tissue contusion to the lower lumbar spine on 3 December 2005 which I believe healed in the usual timeframe of two to three weeks but which has lead to bizarre and widespread constellation of symptoms which in my view do not have a physical basis.”
Dr Lietl also felt that Mr Weir had a myofascial pain syndrome affecting his left upper limb and a chronic regional pain syndrome to account for the left lower back and left leg symptoms. He felt that there was no pathology to account for these symptoms and that Mr Weir’s employment had not been a substantial contributing factor to his current condition.
Associate Professor Kiernan, neurologist, reported on Mr Weir at the request of the insurer on 13 October 2006. He took a history of Mr Weir injuring his lower back on a platform at work on 3 December 2005. On the day of the examination (12 October 2006), Mr Weir complained of pain in his lower back, left shoulder and of spasms involving the left side of his body. The Professor diagnosed Mr Weir to have musculoskeletal, mechanical-type lower back pain as a result of his injury at work.
Mr Weir relies on a medicolegal report from Dr Bodel, orthopaedic surgeon, dated 9 March 2007. Dr Bodel took a history that Mr Weir struck his back on a conveyor as he stood up at work on 3 November [sic December] 2005. He then referred to Mr Weir being off work for four and a half months, receiving conservative treatment and attempting to return to work on light duties. He added that Mr Weir “continued to deteriorate and last worked on 19 January 2007” when he was told no further light work was available.
Under “Current Complaints”, Dr Bodel reported that Mr Weir complained of pain in the lower part of his back, particularly on the left hand side, in the left hand side of the base of his neck, and in the periscapular region on the left hand side in the mid-thoracic region. On examination Mr Weir had a reduced range of neck flexion, extension and rotation in all directions. In respect of the MRI scan, Dr Bodel felt there was definite disc pathology, although it was relatively minor, in the cervical spine. Dr Bodel concluded that Mr Weir “suffered a minor disc injury in the cervical spine and a more significant disc injury at the lumbosacral junction as a result of the incident that occurred at work on 03 December 2005.”
Dr Setrak provided a further report dated 10 January 2008 in which he stated:
“he [Mr Weir] sustained an injury to his back on 3/12/2005 at work, he presented here at the Narrandera Medical Centre on the 6/12/2005 with pain and tenderness at his low back and right side of the back. He stated that he was kneeling and scrubbing under a conveyor system, as he came out, he stood up a little early and struck his back on the conveyor.”
Dr Setrak considered Mr Weir’s main problem to be a musculoskeletal injury to the lower back muscles “affecting the muscles of the left back up to the left shoulder”. He added that this muscle strain was “related partly to his ongoing heavy work at Rockdale and partly to the incident at work on 3 December 2005”. The doctor added:
“Also from the CT scan and the MRI that he had, we found that he has also [a] disc injury to [the] cervical spine, and lumbar spine, although they are mild, but with his muscle injury, they have a significant impact on his back pain. These disc problems are also related to his work at Rockdale over the past years. I hope this information will help.”
Dr Lietl reviewed Mr Weir on 12 May 2008 and prepared a further report on 13 May 2008. On this occasion, Mr Weir said that his upper back and left shoulder symptoms started about two or three weeks after his injury on 3 December 2005. He recorded that by 20 February 2006 the pain had spread to involve his neck, left shoulder and arm, thoracic spine, left lower back and left leg. On examination, Mr Weir complained of tenderness in the midline and at the junction of the head and neck, but there was no evidence of spasm and he demonstrated a full range of movement.
After referring to Mr Weir developing back pain on 3 December 2005, Dr Lietl concluded:
“Neck and left shoulder pain did not develop until many weeks later and there is no indication that he had suffered separate injuries to these areas as a result of the incident on 3 December 2005. Moreover, at his stated date of onset of these symptoms, some three weeks later, he was not at work. He had no prior history of neck or left shoulder symptoms coming on at work or at any other time and for these reasons I believe that his complaints of neck pain and left shoulder pain are not work related.”
THE ARBITRATOR’S REASONS
In a Statement of Reasons for Decision (‘Reasons’) delivered on 4 June 2009, the Arbitrator identified the issue in dispute to be whether Mr Weir had sustained an injury to his cervical spine “following the event on 3 December 2005” and whether employment was a substantial contributing factor to such injury (Reasons at [3]). He found:
(a) over successive months after the injury, but not later than 21 February 2006, the pain had radiated up the back into the shoulders and neck and precipitated the commission of the MRI scan on that date;
(b) he accepted Dr Lietl’s opinion in his report of 8 September 2006 that the worsening of the back condition and the radiation to the cervical and thoracic areas were “a most typical [sic] sequence of events following the mechanism of injury described” (emphasis added) and there was, through this comment, a sufficient foundation to establish a nexus between the event on 3 December 2005 and the onset over two months of worsening pain, culminating in the commissioning of the MRI of the entire spine (Reasons at [24]);
(c) Mr Weir’s uncontradicted evidence was that there was no intervening event between the incident on 3 December 2005 and the onset of symptoms in his neck that would provide any other explanation for the “causative nature of the pain to the neck other than as described by Dr Lietl” (Reasons at [24]), and
(d) accordingly, he found that Mr Weir “sustained an injury to the cervical spine as a direct consequence of the injury to his back on 3 December 2005” (Reasons at [25]).
SUBMISSIONS, DISCUSSION AND FINDINGS
Ecowize challenges the Arbitrator’s finding in respect of the injury to the cervical spine on the grounds that Dr Lietl did not say that the worsening of the back condition and the radiation of pain to the cervical and thoracic areas was “a most typical sequence of events” following the mechanism of injury described, but said that the sequence was “a most atypical sequence of events”. It is also argued that the Arbitrator’s decision is against the weight of the evidence and that Dr Bodel’s report breaches the principles discussed in Makita (Australia) Pty Limited v Sprowles (2001) NSWCA 305; (2001) 52 NSWLR 705 (‘Makita’).
It is submitted on behalf of Mr Weir that:
(a) though the Arbitrator incorrectly quoted Dr Lietl’s report, it was open to the Arbitrator to find that “there was an injury to the neck arising out of the event on 3 December 2005”;
(b) the Arbitrator’s error must be such that but for it a different decision should have been made (Snow Confectionary Pty Limited v Askin [2004] NSWWCCPD 56 (‘Askin’));
(c) the Arbitrator was justified in rejecting Dr Lietl’s evidence as it was inconsistent, unreliable and based on a wrong diagnosis;
(d) the weight of the evidence compels a finding that Mr Weir suffered an injury to his cervical spine in the accident on 3 December 2005. That evidence includes the referral for an MRI scan of the entire spine on about 6 February 2006, Mr Weir’s unchallenged evidence, Dr Setrak’s certificate of 1 March 2006, Dr Setrak’s report of 10 January 2008, and Mr Weir’s consistent complaint of pain, symptoms and injury to the neck;
(e) in the absence of any neck complaints prior to 3 December 2005 and in the absence of any post 3 December 2005 injury, it was open to the Arbitrator to find that Mr Weir suffered an injury to his cervical spine in the accident on 3 December 2005;
(f) Dr Bodel’s evidence ought be viewed with all the evidence and not isolated;
(g) Dr Langenegger’s report supports the allegation of injury to the cervical spine;
(h) Dr Setrak’s medical certificate of 1 March 2006 is not inconsistent with his notes, but is consistent with the history and sequence of events as provided by Mr Weir, and
(i) in Askin the Commission held that before an Arbitrator’s decision will be revoked on appeal it must be demonstrated that it contains or has resulted from an error of fact or discretion.
I do not accept the submissions made on behalf of Mr Weir. The decision of Askin is no longer good law. An appeal under section 352 of the 1998 Act is to be conducted by way of review. That review does not require that an error of fact, law or discretion be established but requires a determination of the true and correct position (Sapina v Coles Myer Limited [2009] NSWCA 71; State Transit Authority of NSW v Chemler [2006] NSWCA 249, (2007) 5 DDCR 286 (‘Chemler’)).
There are two alternative bases on which Mr Weir could succeed with his claim. First, that he injured his neck at work on 3 December 2005, or, in the alternative, that as a result of the back injury he sustained on that day he has developed symptoms in his neck. The Application alleges that the first basis is relied upon, namely that Mr Weir injured his neck at work on 3 December 2005. However, the matter is complicated because the submissions made on behalf of Mr Weir seem to adopt both bases without acknowledging that they are in fact different. In these circumstances it is appropriate that I consider each basis in the alternative.
The evidence clearly establishes that Mr Weir only injured his low back at work on 3 December 2005. That is the evidence in his statement and that evidence is consistent with Dr Setrak’s clinical notes and reports. It is completely untenable to suggest that he also injured his neck on that day and I reject that claim.
The only basis on which Mr Weir can succeed is if he can establish that his neck symptoms have resulted from his conceded back injury. This seems to have been the basis on which the worker succeeded before the Arbitrator and is confirmed by the Arbitrator’s finding that the condition in the cervical spine (described by him as the injury to the cervical spine) was “a direct consequence of the impact of the injury to his back following the event on 3 December 2005” (Reasons at [27]). That finding cannot stand, as it is inconsistent with the weight of the evidence.
It is unclear when Mr Weir’s neck symptoms commenced. There is no reference to neck pain in Dr Setrak’s clinical notes until 30 November 2007. Mr Weir’s statement is unclear and ambiguous. He says that his back got worse in the two months following 3 December 2005. At some stage the pain moved up his back and he reported that pain to Dr Setrak. Dr Setrak’s report of 6 October 2006 suggests that Mr Weir complained of left shoulder and upper back pain on 6 February 2006. Assuming that to be so and assuming that Mr Weir also complained of his neck at that time, it does not establish a connection between the low back injury sustained on 3 December 2005 and the pain complained of in February 2006.
Dr Setrak’s report of 10 January 2008 is unhelpful. It is poorly drafted and fails to address the issue in dispute. Rather than addressing whether Mr Weir’s cervical condition has resulted from the low back injury, it talks about there being a muscle strain and weakness that is partly related to ongoing heavy work and partly related to the incident on 3 December 2005. His conclusion that the “disc problems” are related to Mr Weir’s work at Rockdale over the past years is also unhelpful and unpersuasive in determining the issue in dispute. Dr Setrak simply does not address the question of how a complaint of neck pain in February 2006 can be related to a low back injury that occurred on 3 December 2005.
The Arbitrator clearly based his decision on an incorrect reading of Dr Lietl’s report of 8 September 2006. Dr Lietl did not say that the radiation of pain from the low back to the cervical and thoracic areas was “a most typical sequence of events” but in fact said such a sequence of events was “atypical”. After taking a detailed and substantially accurate history, Dr Lietl concluded that Mr Weir’s complaints of neck and left shoulder pain were not work related.
Dr Bodel’s report does not assist Mr Weir. First, Dr Bodel took no history of Mr Weir injuring his neck on 3 December 2005, but merely noted a complaint of neck pain at his examination on 9 March 2007. He took no history of when the neck symptoms developed and, as a consequence, did not consider whether the neck symptoms in February 2006 could be related to a lower back injury on 3 December 2005. Therefore, his conclusion that Mr Weir suffered a minor disc injury to his cervical spine as a result of the incident at work on 3 December 2005 is clearly a bare conclusion unsupported by any reasoning and, therefore, entitled to limited, if any, weight (Makita).
The submission that the Arbitrator’s finding is consistent with Mr Weir’s complaints of pain and symptoms in his neck is incorrect. Mr Weir’s evidence is that his neck symptoms developed some time after 3 December 2005, most probably in or about February 2006. The omission of an explanation as to the connection between the neck symptoms and the pleaded injury can sometimes be overcome by the use of “common sense” in the evaluation of evidence and the “sequence of events” (Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42, (2005) 2 DDCR 271 at [90] (‘Hevi Lift’)). However, the connection between a low back injury on 3 December 2005 and the subsequent development of neck symptoms months later is not within “the realm of common knowledge and experience” (see Mason J (with whom Barwick CJ and Gibbs J agreed) in Tubemakers of Australia Ltd v Fernandez (1976) 50ALJR 720 at 724 (cited by McColl JA in Hevi Lift at [91]) that would enable an arbitrator and Presidential member to rely on his or her “common sense” to conclude that the neck symptoms resulted from the back injury.
It follows that Mr Weir has not established that he injured his neck on 3 December 2005, or, in the alternative, that his neck symptoms in February 2006 resulted from the back injury he sustained on 3 December 2005 and the Arbitrator’s decision to the contrary must be revoked.
CONCLUSION
Having conducted a review on the merits (per Chemler at [28]), I am of the view that the Arbitrator erred in finding that Mr Weir sustained an injury to his cervical spine as a consequence of the impact of the injury to his back following the incident on 3 December 2005.
DECISION
Paragraphs one and two of the Arbitrator’s determination of 4 June 2009 are revoked and the following order made:
“1. In respect of the allegation that the applicant worker injured his neck on 3 December 2005, there is an award for the respondent employer.
2. The assessment of the whole person impairment, if any, resulting from the injury to the back on 3 December 2005 is referred to the Registrar for a referral to an Approved Medical Specialist for assessment in accordance with Part 7 of the 1998 Act.”
Paragraph three of the Arbitrator’s determination of 4 June 2009 is confirmed.
COSTS
Each party is to pay his or its own costs of the appeal.
Bill Roche
Deputy President
24 September 2009
I, TUYET WALLIS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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