Edmund Diab v Salem Naji
[2010] NSWWCCPD 33
•31 March 2010
| WORKERS COMPENSATION COMMISSION | |||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||||
| CITATION: | Edmund Diab v Salem Naji [2010] NSWWCCPD 33 | ||||||
| APPELLANT: | Edmund Diab | ||||||
| RESPONDENT: | Salem Naji | ||||||
| INSURER: | CGU Workers Compensation (NSW) Limited | ||||||
| FILE NUMBER: | A1-7099/09 | ||||||
| ARBITRATOR: | Mr B McManamey | ||||||
| DATE OF ARBITRATOR’S DECISION: | 15 December 2009 | ||||||
| DATE OF APPEAL DECISION: | 31 March 2010 | ||||||
| SUBJECT MATTER OF DECISION: | Section 352(8) Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) - determination of an interlocutory nature; Section 293(3)(a) of the 1998 Act - role of Arbitrator determining issue of liability before assessment by an AMS; Proof of injury; Order of remitter | ||||||
| PRESIDENTIAL MEMBER: | Deputy President Kevin O’Grady | ||||||
| REPRESENTATION: | Appellant: | Sparke Helmore | |||||
| Respondent: | Keddies Lawyers | ||||||
| ORDERS MADE ON APPEAL: | Paragraph (1) of the Certificate of Determination dated 15 December 2009 is revoked and the following order is made in its place: | ||||||
| “1. The matter is to be remitted to the Registrar for referral to an AMS to assess impairment resulting from soft tissue injury to the neck together with injuries to the right shoulder and elbow caused by an assault at work on 30 April 2005.” | |||||||
| The Appellant employer is to pay the costs of the Respondent worker incurred with respect to this appeal. | |||||||
BACKGROUND TO THE APPEAL
Salem Naji (‘the worker’), who is 53 years of age, was employed by Edmund Diab (‘the employer’) as a taxi driver in 2005. These proceedings concern the occurrence and consequences of injuries received by Mr Naji in the course of that employment. There is considerable confusion concerning the date or dates of the occurrence of such injuries however the allegation made was that on or about 6 May 2005 the worker received injury to his neck, lumbar spine, right elbow, right shoulder and a resultant adjustment disorder with anxiety and depressed mood. Mr Naji alleged that those injuries were received when he was assaulted by a number of teenagers. The circumstances of the assault had been described as involving Mr Naji being struck by a brick on his right arm, right shoulder and neck, and of being kicked in the back. The evidence concerning the occurrence of injury is examined more closely hereunder, however it is clear from the content of a workers compensation claim form, signed by Mr Naji and presented to his employer’s insurer on or about 30 May 2005, that he then alleged receiving injury in two incidents, the first occurring on 25 April 2005 and the second on 6 May 2005.
It appears that the employer’s insurer accepted liability with respect to the claim as particularised by Mr Naji and weekly compensation and medical expenses were paid for a period. The evidence is that Mr Naji returned to full-time work in approximately November 2005. He continued performing his work until a date in 2007, when in “about the middle” of that year, he could not continue to work on a full-time basis because of increased pain in his low back. Since that time he has received ongoing treatment for his back pain and those other injuries suffered by him including the injury to his neck.
Mr Naji made a renewed claim against his employer and the insurer in respect of weekly payments of compensation, lump sum compensation and medical expenses. It seems that a dispute arose concerning Mr Naji’s entitlement to those benefits and an Application to Resolve a Dispute (‘ARD’) was filed on his behalf in the Workers Compensation Commission (‘the Commission’) on 4 September 2009.
The employer’s insurer gave Mr Naji written notice of its reasons for disputing the claim by letter dated 25 September 2009. That notice was given, as stated in that correspondence, in accordance with the provisions of section 74 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’). That notice was comprehensive and included a denial that Mr Naji had received an injury to his back and/or neck as alleged.
The dispute came before an Arbitrator for conciliation/arbitration on 2 December 2009. At that time Mr Naji was granted leave to amend his ARD. It appears from the Arbitrator’s subsequent Statement of Reasons (‘Reasons’) that the claim litigated by Mr Naji was limited to that as particularised by him with respect to “permanent impairment benefits”. It was noted by the Arbitrator in the course of those Reasons that the employer did “not dispute injury to the right elbow and shoulder. Injury to the neck and back are disputed”. The Arbitrator reserved his determination at the conclusion of the hearing and a Certificate of Determination was issued on 15 December 2009.
THE DECISION UNDER REVIEW
The Certificate of Determination dated 15 December 2009 records the Arbitrator’s orders as follows:
“The Commission determines:
1. I remit the matter to the Registrar for referral to an AMS to assess impairment resulting from soft tissue injuries to the neck and back together with injuries to the right shoulder and elbow caused by an assault at work on 30 April 2005.
A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”
An application seeking leave to appeal against the decision of the Arbitrator was filed on the behalf of the employer on 8 January 2010.
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred:
(i) in determining that Mr Naji received injury to his neck and low back as a result of an assault whilst at work in 2005;
(ii) in failing to determine whether the effects of the back and neck injury had resolved prior to 2007;
(iii) in failing to determine whether a further aggravation in 2007 of Mr Naji’s back injury was related to the injury found to have occurred in 2005, and
(iv) in failing to provide specific directions concerning assessment of whole person impairment when remitting the matter to the Registrar for referral to an AMS.
ON THE PAPERS REVIEW
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 Direction 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.
LEAVE
The provisions of section 352 of the 1998 Act regulate the rights of a party to bring an appeal against a decision of the Commission constituted by an Arbitrator. Before leave is granted to bring an appeal, the Commission must be satisfied that the requirements of that section, particularly with respect to time limitations and quantum as specified, have been met. There is no dispute in the present matter concerning those threshold questions, however it is submitted on behalf of Mr Naji that the decision which is the subject of challenge by the Appellant is of an interlocutory nature and may not be the subject of an appeal. Whilst Mr Naji makes no specific reference to the provision, it is clear that such submission is founded upon the provisions of section 352(8) which 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.”
Mr Naji in his notice of opposition to this appeal has submitted at 2.5.1 that “since all questions in dispute have not been determined, it is submitted that the matter may be considered ‘interlocutory’.”
It is necessary to determine whether the decision which is the subject of the appeal is a ruling or determination of an interlocutory nature within the terms of section 352(8). Reference must be made to the provisions of clause 200B of the Workers Compensation Regulation 2003 which provides:
“For the purposes of section 352(8) of the 1998 Act, all preliminary or interim orders, determinations, rulings and directions of an interlocutory nature are prescribed.”
Whilst the term interlocutory is not defined, the proper construction of section 352(8) has been the subject of numerous Presidential decisions since its enactment. I recently had occasion to consider the provision in the matter of RE & PD Richards Pty Ltd v Eggins [2010] NSWWCCPD 2 (‘Eggins’). As was observed in Eggins, valuable guidance may be gained when deciding whether a decision of an Arbitrator is interlocutory or otherwise by consideration of the decision of the High Court in Licul v Corney [1976] HCA 6; [1976] 50 ALJR 439 (‘Licul’) where it was stated by Gibbs J (at 443-444):
“The test is: Does the judgement or order, as made, finally dispose of the rights of the parties?”
There is a need for caution, as highlighted by Roche DP in P&O Ports Ltd v Hawkins [2007] NSWWCCPD 87 (‘Hawkins’), when reference is made to common law authority concerning the nature of interlocutory orders when construing and applying the provisions of section 352(8). That need for caution arises by reason of the nature of the Commission’s objectives and powers, the Commission’s power to review and, of particular significance in the present matter, the role of an AMS as prescribed by the legislation in determining disputes concerning whole person impairment.
I am of the opinion that the term “decision” as it appears in Section 352(8) includes not only the determination as appears in the Certificate of Determination set forth above at [6], but also those findings of fact with respect to matters in dispute between the parties as found in the course of the Arbitrator’s Reasons.
In the present matter the Arbitrator has noted at (3) of Reasons that the issues for determination concerned the question as to whether Mr Naji received injury to his neck and back in the subject assault. The Appellant had raised that issue of dispute prior to the commencement of the proceedings and it is clear from the manner in which the Appellant conducted the defence of Mr Naji’s claim that the alleged injuries to his neck and his back were denied.
The Arbitrator’s Reasons include the following finding of fact at (18):
“In my view Dr Maniam’s notes are consistent with the Applicant having suffered soft tissue injuries to his neck and lower back in the incident in which he was assaulted at work.”
The Arbitrator, having found as facts that Mr Naji received injury to his neck and back, and having noted that the Appellant “accepted injuries to the right elbow and shoulder” at (23) of Reasons, proceeded to order that the matter be remitted to the Registrar for referral to an AMS for appropriate assessment of whole person impairment (‘WPI’). It may be seen that such remitter was made by the Arbitrator in compliance with the provision of section 65(3) of the 1987 Act which provides:
Determination of degree of permanent impairment
If there is a dispute about the degree of permanent impairment of an injured worker, the Commission may not award permanent impairment compensation or pain and suffering compensation unless the degree of permanent impairment has been assessed by an approved medical specialist.”
The Arbitrator’s order concerning remitter has been made following his determination of a question concerning liability, that is, the occurrence of injury to both the neck and back. The determination of those issues was made as required by the provisions of section 293(3) of the 1998 Act which provides relevantly:
“293 Medical assessment
The Registrar may not refer for assessment:
(a)a medical dispute concerning permanent impairment (including hearing loss) of an injured worker where liability is in issue and has not been determined by the Commission, or
(b)……...”
The Arbitrator’s determination concerning the dispute as to the nature of the injury received by Mr Naji is such that, in the words of Gibbs J, it does “…..finally dispose of the rights of the parties." Those findings are conclusive, and bind the parties and define the rights and liabilities of each concerning the various heads of entitlement to compensation benefits as provided by the Acts. The Appellant, on this appeal, challenges those findings of fact made by the Arbitrator concerning injury. In the circumstances, I conclude that the Arbitrator’s decision, including those findings of fact, is not one of an interlocutory nature within the meaning of section 352(8).
As noted above, there is no dispute concerning the threshold requirements as to time and quantum specified by section 352 of 1998 Act. In these circumstances, and having regard to the arguments raised on appeal, I conclude that it is appropriate that leave be granted to proceed with the appeal and I so order.
EVIDENCE
The proceeding conducted before the Arbitrator was recorded and a transcript (‘T’) has been produced. No oral evidence was adduced, the totality of the evidence being documentary in form. The evidence relied upon by the parties is summarised by the Arbitrator at (5) of his Reasons.
Mr Naji’s evidence
Mr Naji relied upon a statement made by him on 18 August 2009. He stated that he is a married man with four children, the youngest of whom is 17 years of age. He is a native of Iraq and arrived in this country as a refugee in 1992. Mr Naji obtained a taxi driver’s licence and began driving taxis as an occupation from 1993. He states that he was involved in a motor vehicle accident in “about 1995” which caused an injury to his back. That injury was received in the course of his employment and he claimed and was paid workers compensation benefits. Following the commencement of proceedings in the former Compensation Court of New South Wales, he consented to a commutation of his employer’s liability by payment of $40,000.00. Mr Naji was off work for “about one year as a result of that motor vehicle accident”. He experienced improvement to his back disability and was able to return to work as a taxi driver. He worked full-time “until suffering injury on 6 May 2005.”
Mr Naji described in his statement the circumstances of injury which occurred as he was stationary at traffic lights at Quakers Hill, an outer suburb of Sydney. At that time, he was attacked by a group of teenagers one of whom had a brick. Mr Naji was struck with the brick through his open window. He was struck on the right arm, right shoulder and right side of his neck. Mr Naji stated that he attempted to get out of his taxi at which time he was set upon by a member of the group who kicked him in the back. The group of assailants kicked and damaged his vehicle following which Mr Naji contacted both the police and his taxi base.
Mr Naji attended his local doctor, Dr Raouf Selim of Auburn. Dr Selim referred Mr Naji to Dr Vijay Maniam, orthopaedic surgeon, and to Dr Sherif. I note in passing that there is no evidence of Dr Sherif before the Commission. It is stated that treatment included “facet joint injections” to the back, physiotherapy, acupuncture and the administration of cortisone. No dates of such treatment are stated. Other evidence established that CT-guided facet joint injection was conducted by Dr Mark Waterland in September 2007.
Mr Naji stated that he was absent from work for “about 10 weeks” during which period he was paid weekly compensation. He returned to full-time work in “about November 2005” and it is stated that “by about the middle of 2007” he was unable to continue to work full-time because “the pain increased at my lower back”. Mr Naji stated that he had pain in his lower back, his neck and shoulders. He had been working part-time since June 2007. Mr Naji also experienced pain in his right elbow and suffered headache, stress and depression. He had been referred to Mr Medhat Metry, consultant psychologist, for treatment of anxiety and fear, which Mr Naji experiences when driving his taxi.
Mr Naji relied upon numerous reports prepared by Dr Maniam. Those reports included copies of correspondence forwarded by Dr Maniam to Dr Selim, following Dr Maniam’s first consultation in May 2005. That correspondence had been produced by Dr Selim in response to a Notice to Produce. Later reports from Dr Maniam are before the Commission, the detail of which is addressed below. The latest reports from Dr Maniam were dated 21 November 2008 and 29 April 2009. Those reports were addressed to Mr Naji’s solicitors and included an assessment of WPI, which is relied upon in support of the present claim.
Mr Naji relied upon numerous radiological studies of various parts of his anatomy including his right shoulder, right elbow, cervical spine, lumbar spine and his right hand. One of those studies was an x-ray of Mr Naji’s right elbow and forearm which was conducted, together with an ultrasound examination of that elbow joint, by Dr Bruce Jones on 28 April 2005. The detail of that report is addressed at [67] and [68] below.
Mr Naji relied upon medical reports provided by numerous other practitioners including Dr M Shareef Dowla dated 26 September 2007, and Mr Madhat Metry dated 20 July 2009.
Mr Naji relied upon various other documents including numerous WorkCover NSW medical certificates, records from CGU Workers Compensation (NSW) Ltd, the employer’s insurer, concerning payment of benefits, correspondence between that insurer and Mr Naji’s solicitors concerning his claim, and copies of his taxation returns in respect of years ending June 2005 to June 2009 inclusive. Not all of these documents are relevant to the issues raised on this appeal, however reference is made to their contents, where relevant, below.
Mr Naji also relied upon the content of medical records as produced by Dr Maniam and Fairfield Heights Physiotherapy & Sports Injury Centre. Dr Maniam’s notes do not appear to to be a complete copy of that practitioner’s records. As noted below at [47], the employer has tendered that which appears to be a full copy of those records. The details of those documents are addressed below.
Mr Naji relied upon the records produced by Dr Selim. I note that those documents were attached to an Application to Admit Late Documents under cover of correspondence dated 1 December 2009. The Arbitrator granted Mr Naji leave to tender those documents. It is to be noted that the material relied upon includes various items of correspondence addressed to Dr Selim from colleagues to whom Mr Naji had been referred from time to time. Those records do not include Dr Selim’s handwritten clinical notes. The later documents were tendered, as noted below, by the employer at the hearing. The details of the various items of correspondence are addressed below.
Employer’s evidence
The employer relied upon the evidence of Dr Peter Conrad contained in his two reports dated 15 August 2008. The reports had been prepared at the request of Mr Naji’s solicitors and addressed, among other matters, the question of quantification of WPI.
A copy of a notice issued pursuant to section 74 of the 1998 Act addressed to Mr Naji dated 25 September 2009 is attached to the employer’s Reply. That notice disputed, among other matters, the allegation concerning injury to Mr Naji’s back and neck as having occurred on 6 May 2005.
The employer relied upon three reports from Dr Maniam addressed to the insurer dated 18 July 2005, 22 October 2007 and 14 July 2008. The contents of these reports are addressed below.
The employer relied upon two reports from Dr John D Garvan, the first dated 22 August 2008 and the latter dated 16 April 2009. Dr Garvan recorded a detailed history during consultation with Mr Naji. That history included details of a previous workers compensation “case” in 1995. Mr Naji informed Dr Garvan that the body part affected in that work-related injury was his back. Dr Garvan, who had access to a report from a Dr Guirgis, who had earlier treated him, made the observation that it had been recorded that Mr Naji had in fact also made a claim in respect of a neck injury and right shoulder injury in that earlier claim. Dr Garvan was of the opinion that any aggravation of those earlier injuries caused in 2005 had ceased as at the date of his first examination in 2008.
The employer relied upon the content of a medical certificate issued by Dr Selim on 2 May 2005 as well as a WorkCover NSW medical certificate issued by Dr Maniam dated 19 May 2005. Dr Selim’s certificate made reference to a right elbow injury. The diagnosis stated by Dr Maniam in his certificate is “traumatic R external epicondylitis”.
A copy of an Employee’s Compensation Claim addressed to the insurer completed by the worker and dated 30 May 2005 together with a form headed “Initial Notification of Injury” are in evidence before the Commission. The claim form particularised two distinct injuries. The first is stated to have occurred on 25 April 2005 at 5:00pm at Sydney Airport. The circumstances were described by Mr Naji as involving an injury to his right elbow when a passenger closed the boot of his taxi onto his arm as he was unloading. The second injury is stated to have occurred on 6 May 2005 at 2:40am at Quakers Hill. The circumstances were described as involving an attack by five boys when Mr Naji was struck on the right arm. That claim form nominated Dr Maniam as Mr Naji’s treating doctor. The document had a stamp noting receipt by the insurer on 31 May 2005. Similar details concerning alleged injury appear in the initial notification form tendered by the employer.
A number of Applications to Admit Late Documents had been filed on behalf of the employer. Leave was granted by the Arbitrator permitting reliance upon the material attached to those applications. Included amongst those documents were letters of Dr Norman C Janu, general surgeon, who wrote to Dr Selim on 8 August and 20 August 2007. Those letters followed consultation by Mr Naji concerning groin and testicular pain. Dr Janu expressed the view that the pain may be explained by the presence of an indirect inguinal hernia. Subsequently, a right inguinal hernia repair was conducted by that practitioner at Auburn Hospital. Dr Janu reported to Dr Selim concerning that treatment. The date of the surgery was not specified, however Dr Janu noted that “On the day of admission he presented at the hospital with extreme back pain and right thigh pain. A CT has shown some spondylosis of L5/S1 but no disc protrution. Nonetheless, I was convinced his pain was related more to nerve entrapment than to his hernia. The hernia repair was uncomplicated. He had a small indirect hernia sac and small hydrocoele of the testicle.” Dr Janu further noted that since surgery, Mr Naji’s back pain had been treated with acupuncture and physiotherapy.
Included among the documents tendered with leave were the handwritten notes of Dr Selim recording his attendances upon Mr Naji between March 1996 and August 2008. Those notes are not easily read and the quality of the copies is poor. It is clear that on 17 June 1996, Dr Selim recorded a consultation by Mr Naji on which occasion he reported a motor vehicle accident, which had occurred on 15 June 1996. The following notation is made “ v. sore over (?) neck R/shoulder lower back.”
A number of radiological studies conducted in 1996 and 1997 concerning Mr Naji’s cervical spine, lumbar spine and right shoulder were in evidence. Where relevant, details of these documents are addressed below. A report from Dr Halpern, consultant neurologist, dated 20 November 1996 was before the Commission. That report was addressed to Dr Medhat F Guirgis, orthopaedic surgeon, and concerned the results of a motor nerve conduction study. Dr Halpern’s interpretation of that study was – “there was electrophysiological evidence of mild to moderately severe chronic denervation in muscles supplied primarily by the C5 nerve root and to a lesser extent the right C6 nerve root.”
There was a report of Dr Guirgis dated 20 August 1996 in evidence. That report was addressed to Dr Abdalla and relates to Dr Guirgis’ treatment of Mr Naji following the motor vehicle accident which occurred on 15 June 1996. Dr Guirgis recorded that Mr Naji sustained injuries to his neck, right shoulder and lower back in that collision.
Handwritten clinical notes produced by the Auburn Hospital (Sydney West Area Health Service) relating to admissions in June 1996 and September 2007 were before the Commission. Those notes related to Mr Naji’s attendance at the Emergency Department on 15 June 1996 at which time he was seeking treatment for injuries received in a motor vehicle accident. His complaints related to his right shoulder and lumbar back pain. There are also handwritten progress notes concerning an admission to that hospital on 18 September 2007 which concern the hernia procedure earlier noted. An entry dated 19 September 2007 reads “c/o shooting back pain w/c was present several weeks prior to this surgery abdo: s of a, non-tender.” A number of other documents from that source are in evidence which are not directly relevant to the present appeal.
There were a number of radiological studies in evidence before the Commission. Those related to investigations following the 1996 motor vehicle accident as well as investigations conducted in 2005. Among those studies was an x-ray of report dated 28 April 2005 concerning Mr Naji’s right elbow and forearm and included a report of an ultrasound study of the right elbow. This report is addressed below.
The employer was granted leave to rely upon those documents attached to an Application to Admit Late Documents dated 11 November 2009. Those documents included a copy of correspondence from Fairfield Heights Physiotherapy & Sports Injury Centre dated 3 March 2008 addressed to Dr Maniam and the clinical notes of Dr Maniam relating to treatment of Mr Naji. The latter notes commence on a date in May 2005 and the last entry appears to have been recorded on 3 July 2009. The contents of these notes are addressed below.
The employer was granted leave to rely upon the contents of the letter from Dr Guirgis addressed to the Commission stating that Dr Guirgis’ practice was unable to locate any records relating to treatment of Mr Naji.
The employer tendered the handwritten notes of Dr Selim, which related to treatment between July 2003 and August 2008. The contents of those notes are addressed below.
SUBMISSIONS
Submissions Before the Arbitrator
The first matter addressed by counsel appearing on behalf of the employer was the question as to the occurrence of injury to Mr Naji’s neck and back. It was argued (at T4) that there was “insufficient contemporaneous material to persuade (the Commission) that there was any injury to the neck and to the back arising out of this incident.” Counsel proceeded to draw the Arbitrator’s attention to the detail found in the notes of Dr Selim and it was put that “the only injury that is referred to there is right elbow injury aggravated by assault”. Reference was made to the clinical notes produced by Dr Maniam and it was accepted that there was an entry which appeared to read, as put by counsel, “Min, m-i-n pain in L. Spine.” Having drawn the Arbitrator’s attention to that entry, it was put that there was no evidence in Dr Maniam’s notes or in his reports “about that pain being related in any way to the incident.” Reference was made to the evidence of Mr Naji that he was kicked in the back when he went out of his car and it was put that there was no contemporaneous note as to that matter nor was there any corroborating evidence “from anyone”. It was acknowledged by counsel that there was an entry “L. spine” to be found in Dr Maniam’s notes concerning a consultation which took place in June 2005. It was also accepted by counsel that there was reference made by Dr Maniam in his notes to “some issue in relation to neck” in June 2005. It was also stated by counsel in the course of submissions that “the complaints in June 2005 in relation to the neck are more persuasive, I think than anything in relation to the lower back …..”.
Counsel for the employer (at T5) sought to emphasise the absence of “corroborating material” concerning “the way this accident happened”. This submission seems to be directed towards the allegation made by Mr Naji that he was kicked in the back at the time of the assault. It was put that the clinical notes, which were in evidence, did not contain evidence of a “continuation of symptoms”. Reference was then made to the entry in Dr Maniam’s clinical notes concerning back pain recorded in 2007 where the history “seems to be a complaint that started eight weeks ago.” Counsel argued that acceptance of that history would lead to a conclusion that the problem experienced with Mr Naji’s back cannot “be said to have arisen out of the incident in 2005.” The point was made during an argument that Mr Naji “has had a back pain for many, many years, prior to the 05 accident.”
Counsel for the employer (at T6) proceeded to argue concerning the allegation of injury to the cervical spine and lower back that, in the event of a finding being made that there was an onset of symptoms at those levels of the spine in 2005 “as a result of this accident, then there must be injury.” Having stated that proposition, counsel proceeded to state “But in order for anything to be referred to the AMS, I would submit that that injury must be, for want of a better word, permanent.” That submission gave rise to an exchange between the Arbitrator and counsel concerning the role of the AMS and that of an Arbitrator. Counsel’s position appears to be encapsulated in the following submission which appears at T6 “it would be irregular to refer to an AMS a soft tissue injury that has had a transient effect and has resolved…..”.
Counsel for Mr Naji (at T7) addressed the content of Dr Maniam’s clinical notes including the reference made therein to the occurrence of two separate incidents in 2005. Reference was also made to Dr Maniam’s report dated 20 May 2005 which contained details concerning treatment of Mr Naji’s elbow condition and his complaints, as recorded, concerning his neck made on 3 June 2005. Counsel noted that Dr Maniam certified Mr Naji to be capable of returning to work for two days per week, in July 2005, and that “the basis of that restriction at that time was with respect to the right arm and the neck.” Reference was further made to Mr Naji’s complaints to Dr Maniam concerning right elbow pain and neck pain as recorded in February 2006.
Counsel for Mr Naji (at T7) in the course of submissions drew attention to the content of Dr Maniam’s report of 22 October 2007. Counsel sought to emphasise the following extract from Dr Maniam’s report:
“He returned on 11.10.07 complaining of – indicating that all along he had continued with his work. The lumbar spine gradually – the pain gradually intensifies and started radiating to the right lower limb. And he was investigated.”
It was acknowledged by counsel for Mr Naji that, in Dr Maniam’s report, there had been noted “recent onset of acute symptoms only 8 weeks old.” The transcript records an exchange between the Arbitrator and counsel for Mr Naji concerning the question as to whether a finding should be made in the proceedings concerning continuation of symptoms. It appears that this exchange was premised on the assumption that a finding of injury as alleged to the neck and back was to be made. Counsel appeared to take two positions concerning this matter. Counsel observed (at T8) “if there have been no ongoing effects of an incident, it is a matter for you whether you refer it to AMS at all.” Having made that statement, counsel proceeded to seek an order “that it be referred in view of the complaints made by the worker that the complaints were continuing.” The transcript later records counsel as stating “I would be content if you made a finding of injury …. and have the AMS determine what consequences flow that are permanent consequences.” Counsel proceeded to address the contents of the various medical reports in evidence before the Commission. Reference was made to the evidence of Dr Garvan and to his view that Mr Naji had suffered soft tissue injuries to his neck, right shoulder, right elbow and back in the subject assault. Counsel proceeded to observe (at T12) “so I don’t think there is any dispute that the injury occurred at the back, it’s just a question of ….”.
Submissions on the appeal
The submissions provided in support of the appeal make it clear that the challenge to the Arbitrator’s findings is limited to his determination that Mr Naji received injury to his back and neck as a result of an assault at work on 30 April 2005. Those submissions make clear that whilst such findings are disputed, the Appellant also challenges the Arbitrator’s “referral” to an AMS to determine the existence of a causal connection “between the 2005 incident and the disc protrusions [in the lumber spine] identified in 2007.” Error was also suggested by reason of failure by the Arbitrator to determine “whether the further complaints in 2007 were related to [Mr Naji’s] employment and the soft tissue injury allegedly sustained as a result of the assault in 2005.” It is argued that the issues identified are questions of “liability” and that failure to determine those matters “may be considered an error of law.”
The Appellant employer highlights the history as recorded by both Dr Selim and Dr Maniam in support of its argument that there was no sufficient evidence of the occurrence of back and neck injury in the assault. The Appellant seeks to emphasise the apparent delay between the occurrence of the assault and the occurrence of neck and back symptoms as recorded in the evidence provided by the expert medical witnesses. Reference is made to relevant authority concerning the issue of causation in compensation law.
The Appellant’s submissions include a challenge to the terms of the Arbitrator’s “referral to the AMS”. It is suggested in those submissions that “lack of specific direction to the AMS” may result in “a demonstrable error” which would give rise to a “possible appeal” against any finding made by the AMS. Such outcome, it is argued, is “against the objectives of the Commission as set out under section 367 of the 1998 Act.”
I note that the Appellant raised an argument during the course of submissions on this appeal suggesting that employment “is not a substantial contributing factor to the disc protrusions diagnosed in 2007”. Such argument was not advanced at the hearing before the Arbitrator.
Mr Naji has provided written submissions in support of his opposition to the appeal. Those submissions deal firstly with the dispute raised by the Appellant concerning the occurrence of injury to his back and his neck. The submissions proceed to deal with the Appellant’s complaints concerning the Arbitrator’s remitter to the Registrar for referral to an AMS for assessment of whole person impairment.
A general submission is put that the Arbitrator’s determination of the question of the occurrence of injury to both neck and back were questions of fact and it is asserted that those questions were “determined on the evidence in a manner open to the Arbitrator”. With respect to the finding of injury to the neck, Mr Naji draws attention to the Appellant’s acknowledgement as recorded at T5 that “…the complaints in June 2005 in relation to the neck are more persuasive…”.
Mr Naji in the course of submissions notes the Arbitrator’s finding, concerning injury to the back, that such was a “soft tissue injury”. It is asserted that the Arbitrator’s finding was open to him on the evidence and “the description of disc protrusion is consistent with the description ‘soft tissue’”. Reference is made to the report of Dr Maniam dated 21 November 2008 where he recorded that Mr Naji’s symptoms “gradually intensify”.
Mr Naji’s submissions concerning the Arbitrator’s remitter to the Registrar for referral for assessment are to be found at 2.7.7.1 to 2.7.7.14 of submissions. The thrust of his argument may be found at 2.7.7.14 where it is put:
“Notwithstanding the uncertainty of the boundary between an Arbitrator’s and an AMS’s jurisdictions and their respective powers and duties, it is submitted that the Arbitrator herein, before referring the matter for assessment by an AMS properly determined liability in accordance with s 321(4)(a) WIM”
DISCUSSION AND FINDINGS
The Appellant challenges the Arbitrator’s finding at (18) of Reasons that Mr Naji “suffered soft tissue injuries to his neck and lower back in the incident in which he was assaulted at work”. As earlier noted, the Appellant does not dispute the occurrence of injury to Mr Naji’s right elbow and right shoulder. I note in passing that no attention has been given by the parties to the allegation by Mr Naji that, as a result of the subject injuries, he has suffered an adjustment disorder with anxiety and depressed mood.
As noted at [1] above, there has been confusion and doubt concerning the date on which the subject assault occurred. The Arbitrator has addressed this problem at (22) of Reasons and has concluded that, contrary to the allegations particularised in the ARD, the contemporaneous records of Dr Selim establish that “the injury in fact occurred on 30 April 2005.” Whilst no submission has been made by either party with respect to that finding, I consider it appropriate to record, on this review, the contents of Dr Selim’s notes which were relied upon by the Arbitrator in reaching his conclusion. Those notes record a consultation with Mr Naji on 26 April 2005 at which time Dr Selim recorded “R elbow sevpn (one word illegible) at work taxi driver 21/4/05”. It appears that Dr Selim arranged for x-rays and physiotherapy.
There is in evidence a copy of an x-ray and ultrasound report of Dr Bruce Jones dated 28 April 2005 concerning Mr Naji’s right elbow and forearm. The findings are noted and Dr Jones’ conclusion is expressed as “partial tear of common extensor origin is noted but findings are otherwise normal.”
Dr Selim’s notes record an attendance for further treatment on 2 May 2005. On that occasion, it was recorded “R elbow injury aggravated by an assault on 30/4/05 2.15am when attending to people”. I respectfully agree with the Arbitrator’s conclusion that the history as recorded by Dr Maniam concerning the date of the subject assault is likely wrong and that, on the probabilities, that incident occurred as recorded by Dr Selim in the course of Mr Naji’s work on 30 April 2005. Mr Naji has made no allegation of work injury other than that which occurred in the assault. Neither party has made any submission before the Arbitrator nor on this appeal concerning the relevance or otherwise of the earlier radiological and ultrasound findings reported by Dr Jones.
Injury to Cervical Spine
Mr Naji, in his statement dated 20 August 2009, describes the circumstances of the assault where he was struck with a brick on his right arm, right shoulder and the right side of his neck. He states at [36] of that statement that he continues to “get problems” in his neck. It is the Appellant’s argument that there is an absence of corroborative evidence concerning the occurrence of such an injury.
Counsel for the Appellant before the Arbitrator clearly conceded in the course of discussion with the Arbitrator (at T5) concerning the contents of Dr Selim’s notes that “the complaints in June 2005 in relation to the neck are more persuasive, I think than anything in relation to the lower back….”. Mr Naji relies upon the content of Dr Maniam’s report dated 3 June 2005 addressed to Dr Selim. That report includes the following notation:
“At his second visit, he indicated that he also harbors a right side of the neck pain and a right shoulder pain. These were also injuries sustained in the incident that occurred on 25/4/05.”
Dr Maniam’s report records that upon examination of Mr Naji’s cervical spine, there was exhibited “sterno mastoid tenderness and spasm and cervical spine movement limitation in forward flexion, extension, lateral flexion and left rotation. The neurological signs in the abdomen were normal.”
The evidence establishes that Dr Maniam arranged for radiological studies to be conducted with respect to Mr Naji’s cervical spine and right shoulder. Those investigations were carried out by Dr Kenneth Cooke on 6 June 2005. The findings concerning the cervical spine were as follows:
“X-ray Cervical Spine: there is some mild spondylotic changes about the C6/C7 disc margins. The disc heights remain normal.
No facet joint arthritis is seen. However, the exit foramina appeared narrowed bilaterally at C3/C4 and C4/C5.”
As was recorded by the Arbitrator at (9) of his Reasons, Dr Maniam reported to the insurer concerning Mr Naji’s injuries by letter dated 18 July 2005. The injuries noted in that report included “musculo-ligamentous strain, cervical spine.” An earlier report dated 3 June 2005 from Dr Maniam to Dr Selim records the complaint by Mr Naji of neck pain.
The Appellant in submissions draws attention to the description of injury, which appears in the Workers Compensation Claim form signed by Mr Naji and dated 30 May 2005. It is emphasised that no mention is to be found in that document of any alleged injury to Mr Naji’s neck.
Notwithstanding the concession made by counsel at the hearing as noted at [69] above, the Appellant submits (at 2.19 of submissions):
“Dr Selim’s notes do not include reference to cervical spine pain. The Arbitrator noted in paragraph 17 of his decision that there were no further references to [Mr Naji’s] cervical spine until 9 February 2006.”
It is apparent, having regard to the medical evidence which is contemporaneous with the assault, that Mr Naji’s principal complaint immediately following that incident concerned the condition of his right elbow and shoulder. That fact, in my view, may well explain the omission, highlighted by the Appellant, to make immediate mention of injury to the neck. It is clear from that material that the complaint was made, and clinical investigations conducted, within a relatively short period following the assault. On balance it appears, in my view, more probable than not that Mr Naji sustained injury to his cervical spine at that time. It may be seen that I respectfully agree with the conclusion reached by the Arbitrator concerning this allegation and, having regard to the medical evidence as a whole, I agree that the probability is that such was a soft tissue injury as found by the Arbitrator and recorded at (18) of his Reasons. The Appellant’s submissions concerning the manner of remitter to the Registrar for the purpose of referral to an AMS are addressed hereunder.
Injury to Back
The recent medical evidence, that is those medical reports and radiological investigations conducted since the emergence of disabling symptoms in 2007, establish that Mr Naji suffers a significant disability in his lumbar spine. Acceptance of the findings following MRI lumbar spine conducted on 19 October 2007 establishes that Mr Naji has a disc bulge at L4/5 and a small right paracentral disc protrusion. That protrusion is seen to be displacing the traversing right L5 nerve root. There is also a broad-based posterior disc protrusion at the L5/S1 level. That protrusion indents the anterior aspect of the thecal sac but does not abut the S1 nerve root. The Arbitrator’s finding is that Mr Naji suffered a soft tissue injury to his lumbar spine in the subject assault and found at (21) of Reasons that he was “not satisfied that the disc protrusions noted in the MRI scan conducted on 19 October 2007 occurred at the time of the incident in 2005.” The Arbitrator also found that it was more likely that the protrusions occurred in 2007 and proceeded to make the observation that “it is a matter for an AMS whether there is any causal connection between the 2005 incident and the disc protrusions identified in 2007.” I note in passing that, when summarising the MRI findings, the Arbitrator appears to have made a slip in omitting the word “not” before the word “abutting on the S1 nerve root”. Whilst that slip has no direct relevance to the appeal, I consider it appropriate to clarify the state of the evidence.
The Appellant, in a careful analysis of the contemporaneous medical evidence, seeks to demonstrate an absence of complaint by Mr Naji at the time of the assault concerning injury to his back. The onus is upon Mr Naji to establish the occurrence of injury to his back. In his statement made on 18 August 2009, Mr Naji provides this description of the events (at [23]):
“In order to stop this person hitting me with the brick, I swung my door open to push him away, and I went to get out of my taxi. But when I went to get out, I was then set upon by another one of the group who kicked me in the back.”
It is the Appellant’s argument that a close examination of the contemporaneous clinical evidence does not corroborate that description nor, on balance, does it corroborate the occurrence of a back injury having been received.
The following is a summary of matters recorded in the medical evidence, many of which have been highlighted by the Appellant in the course of submissions:
(i)An examination of Dr Selim’s notes indicates that there was no complaint made concerning back injury at the first relevant consultation which occurred on 2 May 2005. Those handwritten notes which are in evidence are difficult to read however, upon careful examination, the first entry that may be seen to be relevant to a back complaint was made on 3 September 2007 at which time, Mr Naji reported experiencing sciatica. Dr Selim then arranged for a CT scan investigation of the lumbar spine.
(ii)The first report of Dr Maniam addressed to Dr Selim concerning the subject assault and its consequences was dated 3 June 2005. The injuries noted by Dr Maniam following a second consultation were to the right elbow, the right side of the neck and the right shoulder. That report contains details concerning Dr Maniam’s examination of Mr Naji’s cervical spine and right shoulder and it is recorded that “investigative tests for the cervical spine and right shoulder” were to be arranged. There is no mention of any complaint by Mr Naji concerning the condition of his back. There is no evidence before the Commission of any radiological studies in respect of the lumbar spine post-dating the assault until September 2007, at which time the earlier mentioned CT investigation was carried out.
(iii)The earliest medical certificate in evidence which post-dates the subject assault was that of Dr Selim dated 2 May 2005. That certificate makes reference only to right elbow injury.
(iv)A medical certificate dated 19 May 2005 issued by Dr Maniam includes a reference to an injury occurring when a “booth [sic, boot] closed on right elbow.” There is no mention in that certificate of any back injury.
(v)A report from Dr Maniam to the insurer dated 18 July 2005 enumerates the injuries sustained in the “two separate accidents on 25/4/05 and on 6/5/05” as being traumatic right subacromial bursitis and impingement, traumatic right external epicondylitis and musculo-ligamentous strain, cervical spine. There is no mention of injury to the back.
(vi)In contrast to the abovementioned documentation, the handwritten clinical notes produced by Dr Maniam contain a lengthy entry with respect to consultation on 19 May 2005. That entry, which appears on a standard form of RACGP Health record form under the heading “Findings: Subjective, Objective, Assessment” includes details of both incidents, being the boot incident and the assault, and records findings on examination concerning Mr Naji’s elbow injury. These entries appear to the right of the column of the notes and are recorded in an apparently orderly fashion, and include a notation “stopped at traffic light was hit with a brick punched several times police stn.” Midway down the page to the left of the principal entry concerning that consultation is an entry, which is noted by the Arbitrator at (14) of Reasons, as follows: “Min pain in L. Spine”. I agree with the Arbitrator’s inference that such entry was intended to mean “minimal pain in lumbar spine.”
(vii)Dr Maniam’s notes concerning a consultation on 2 June 2005 contain a record of an elaboration by Mr Naji of his injuries and complaints which included right shoulder, right-sided neck and headaches. That entry is in a similar form to the earlier entry made on the occasion of the first consultation and appears to the right of the column. It contains particular details concerning findings on examination and notations concerning referral for investigations of the cervical spine and the right shoulder. Again, curiously, there is an additional notation to the left of that paragraph which, as noted by the Arbitrator at (15) of Reasons, appears to mean lumbar spine reduced range of movement and reduced straight leg raising on the right.
(viii)Dr Maniam’s clinical notes contain no reference to Mr Naji’s lumbar spine between that consultation in June 2005 and October 2007. On that latter occasion, Dr Maniam recorded “developed pain in L. spine” and there appears to be a numeral 8 followed by a forward slash and the numeral 52. I infer, as has apparently been assumed by counsel during the course of submissions, that such a reference denotes a period of eight weeks. Pain in the right lower limb is also noted.
(ix)The earlier radiological investigations arranged by Dr Maniam were conducted by Dr Cooke on 6 June 2005. Those investigations concern the cervical spine, the right shoulder (x-rays) and an ultrasound study of the right shoulder. There was no investigation of the lumbar spine on that occasion.
(x)Dr Selim’s clinical records have, as noted, been tendered on behalf of Mr Naji and the employer. Those records include copies of correspondence received by Dr Selim from Dr Maniam following referral in May of 2005. Those reports are dated 20 May 2005, 3 June 2005, 7 September 2005 and 17 February 2006. The first of those reports contains a full history, however there is no mention in that correspondence of any reported back injury. The report dated 3 June 2005 is again detailed and contains no reference to Mr Naji’s back. The report of 7 September 2005 enumerates the injuries suffered by Mr Naji. Again there is no mention of back injury. The report of 17 February 2006 reports that Mr Naji indicated that he had made a “significant improvement in relation to the right elbow pain”. Also recorded in that correspondence is that Mr Naji’s right shoulder pain continues to affect his physical capabilities. It is noted that the shoulder pain radiates into the right side of his neck. It is also noted that Mr Naji has returned to work. There is no reference to any back injury or disability.
(xi)The compensation claim form completed by Mr Naji on 30 May 2005 describes his injury as involving the right arm only. No mention in that form was made by Mr Naji concerning the alleged back injury.
(xii)Mr Naji’s solicitors requested a medico-legal report from Dr Maniam in 2008. It is the report of 21 November 2008 from that practitioner which includes details of Mr Naji’s past medical history which included being involved in a motor vehicle accident in June 1996 when he suffered intervertebral disc protrusions at four levels of his cervical spine, right shoulder supraspinatus tendonitis and an intervertebral disc protrusion at L5/S1. Of particular significance, Dr Maniam records the injuries sustained in the subject assault in May 2005 as being to the neck, lumbar spine, right elbow and right shouder. Circumstances of the assault are summarised in the report. There is no mention of Mr Naji being kicked in the back.
(xiii)Dr Maniam had earlier reported to Dr Selim concerning his resumption of treatment of Mr Naji by letter dated 22 October 2007. That report confirms that which is found in his handwritten notes, that there was no consultation between February 2006 and October 2007. Dr Maniam’s report to Dr Selim includes the following:
“He returned on 11/10/2007 indicating that all along he had continued with his work. The lumbar spine pain gradually intensified and started radiating into the right lower limb. He was submitted to facet joint injections but the pains were not relieved. Electro-diagnostic studies were obtained by Dr Dowla where there was evidence of a left L5 radiculopathy.”
It may be seen that a nexus between the assault and the back disability diagnosed in 2007 is suggested by Dr Maniam in his reports addressed to Mr Naji’s solicitor and to Dr Selim. It is this evidence, together with the notations found in the handwritten notes of Dr Maniam that are relied upon by Mr Naji to establish the occurrence of a back injury in the subject assault. The weight of that evidence relied upon must be evaluated having regard to the evidence in its totality.
The evidence of Mr Naji as found in his statement is troubling given the absence of any express statement that he received injury to his lower back in the assault. As noted above, that fact may be inferred from his statement that he was kicked in the back, however, given the issue which has arisen concerning the occurrence of back injury, it may reasonably be expected that there be some express, unequivocal evidence from Mr Naji on that point. Another troubling aspect of the evidence concerns the complete absence of any contemporaneous record as to the circumstance of Mr Naji being kicked in the back.
Dr Maniam’s reports written in the year 2007 suggest that Mr Naji’s lumbar spine pain “gradually intensified and started radiating into the right lower limb”. That history is not reflected either in Dr Selim’s notes nor Dr Maniam’s records. As noted above, Mr Naji sought no consultations with Dr Maniam over the 20-month period between February 2006 and October 2007. The notation in Dr Maniam’s notes of “8/52” is not alluded to by that practitioner in his later reports. The relevance of that notation and its likely meaning may be gleaned from the report of Dr Dowla, consultant in neurology and clinical neurophysiology, dated 26 September 2007. Dr Dowla recorded a history in that report addressed to Dr Selim of Mr Naji presenting “with two weeks history of severe lower back pain with a right-sided sciatica.” The assault is not mentioned by Dr Dowla as having been implicated as an initiating factor of such pain or that such pain had persisted over a period of many months in which period the pain had deteriorated.
The evidence establishes that Mr Naji was treated by Dr Janu in September 2007 and underwent a right inguinal hernia repair at Auburn Hospital at that time. The clinical notes maintained in the surgical ward of that hospital concerning his treatment includes an entry, made on 19 September 2007, of pain in the right side of lower limb and the administration of morphine. On the same date there is a further entry “c/o shooting back pain w/c was present several weeks prior to the surgery abdo: s of a non tender.”
Dr Janu in his report to Dr Selim dated 8 October 2007 which is in evidence includes the following entry: “On the day of admission he presented at the hospital with extreme back and right thigh pain. A CT has shown some spondylosis of L5/S1 but no disc protrusion. Nonetheless, I was convinced his pain was related more to nerve entrapment than to his hernia.”
The two handwritten entries concerning Mr Naji’s back to be found in Dr Maniam’s notes do not, as I have attempted to describe, appear to be integrated with the narrative concerning complaints and treatment following the assault. There is certainly in those notes no suggestion of a historical nexus between the state of Mr Naji’s back and the assault. Such historical connection appears first in the evidence when expressly stated by Dr Maniam in his report to Dr Selim dated 22 October 2007. The suggested involvement of an injury to the lumbar spine is repeated by Dr Maniam in his report to Mr Naji’s solicitors dated 21 November 2008. It may be that the inclusion of lumbar spine injury follows not from those brief handwritten notations to be found in the notes but rather from that history apparently given to Dr Maniam when Mr Naji returned for consultation in October 2007 as noted in [79(xiii)] above. Such question does not require resolution on this review.
Having regard to the evidence in its totality I am not satisfied on the balance of probabilities that Mr Naji received an injury to his lumbar spine in the subject assault. The almost complete absence of direct and unequivocal evidence from Mr Naji together with the absence of contemporaneous notations made by those practitioners attending him clearly identifying an historical nexus between back complaints and the assault are the matters which I find persuasive on this issue. What is known is that Mr Naji received significant injury to both his lumbar spine and cervical spine in the motor vehicle accident in 1996. It may not be surprising in those circumstances that thereafter Mr Naji, from time to time, experienced pain and discomfort in his back. The question as to the cause of those abnormalities now detected in Mr Naji’s lumbar spine is not one that requires adjudication on this review.
It may be seen that I have concluded, following a review on the merits, that the Arbitrator has erred in his determination that Mr Naji received injury to his lumbar spine in the assault which occurred on 30 April 2005. The finding which has been made on this review is one with respect to liability and resolves the dispute between the parties with respect to the allegation of injury to the lumbar spine in toto. In the circumstances there is no necessity that there be a remitter to the Registrar for referral to an AMS to determine the question of whole person impairment concerning that part of Mr Naji’s anatomy. In the circumstances the order made by the Arbitrator requires amendment in terms as appear hereunder.
The Arbitrator’s Order of Remitter
Having regard to my finding concerning the allegation of injury to the lumbar spine it is unnecessary to address the Appellant’s complaint concerning the Arbitrator’s remitter to the AMS for determination as to the existence of any causal nexus between the assault and the disc protrusions in the lumbar spine identified in 2007.
However, should I be wrong in the manner of my assessment of the evidence I consider it desirable to state briefly my views concerning the Arbitrator’s orders as to remitter. I am required, in addition, to deal with the Appellant’s submission recorded at 2.32 of submissions that there has been some “lack of specific direction to the AMS” which is “likely to result in a demonstrable error in the Medical Assessment Certificate”.
I am of the view that, once a determination concerning a liability question has been made and, as in the present matter, the only dispute which remains for determination is one concerning the existence and extent of any whole person impairment resulting from injury as found, the appropriate course to adopt, as the Arbitrator has in the present matter, is to remit the matter to the Registrar for assessment by an AMS. The dispute which required determination before such remitter as required by the provisions of section 321(4)(a) has been made by the Arbitrator and, in part, been revoked on this review. The dispute which remains concerns only a “medical dispute” as defined in section 319(c) of the 1998 Act. An Arbitrator may not award permanent impairment compensation until same has been assessed by an AMS: section 65(3) of the 1987 Act. In the circumstances, leaving aside the question concerning injury to the lumbar spine, the Arbitrator’s order of remitter was correct. The terms of such remitter were, in my view, appropriate, and are reiterated, subject to the amendment foreshadowed above, in the determination as amended.
I note that the Arbitrator deferred the question of costs of the hearing and no order in respect of those costs has yet been made. Mr Naji’s submissions seek particular orders with respect to costs of the hearing. Those matters may properly be determined by the Arbitrator following assessment by the AMS and the issue of his certificate. The parties are to have leave to relist the matter to enable a proper determination concerning costs of the hearing to be determined by the Arbitrator. Appropriate orders or directions concerning conduct of teleconference or otherwise may be made by the Arbitrator.
DECISION
Paragraph (1) of the Certificate of Determination dated 15 December 2009 is revoked and the following order is made in its place:
“1. The matter is to be remitted to the Registrar for referral to an AMS to assess impairment resulting from soft tissue injury to the neck together with injuries to the right shoulder and elbow caused by an assault at work on 30 April 2005.”
COSTS
Whilst the Appellant has succeeded in part on this appeal, Mr Naji has succeeded in his application against the Appellant in respect of most of his heads of claim, subject to assessment by an AMS. In all the circumstances I consider it appropriate that the Appellant pay the costs of Mr Naji incurred with respect to this appeal and, in the exercise of the Commission’s discretion as granted by section 112 of the 1998 Act, I so order.
Kevin O’Grady
Deputy President
31 March 2010
I, RAMON LOYOLA, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O’GRADY, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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