Email Ltd (in the interests of Allianz Australia Workers Compensation (NSW) Limited) v Qummou and others
[2006] NSWWCCPD 198
•23 August 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Email Ltd (in the interests of Allianz Australia Workers Compensation (NSW) Limited) v Qummou and others [2006] NSWWCCPD 198
APPELLANT: Email Ltd (in the interests of Allianz Australia Workers Compensation (NSW) Limited)
FIRST RESPONDENT: Nabeeha Qummou
SECOND RESPONDENT: Email Ltd (in the interests of Smorgon Steel - Self Insurer)
THIRD RESPONDENT: Electrolux Home Products Pty Limited
INSURERS: First Insurer: Allianz Australia Workers Compensation (NSW) Limited (in respect of Email Ltd at risk from 28 February 1998 to 30 June 1999)
Second Insurer: Smorgon Steel (Self Insurer) (in respect of Email Ltd at risk from 1 July 1999 to 19 February 2001)
Third Insurer: GIO Workers Compensation (NSW) Ltd (in respect of Electrolux Home Products Pty Limited at risk from 19 February 2001 to 31 December 2001)
Fourth insurer: Electrolux Home Products Pty Limited (Self Insurer) (as self insurer at risk from 1 January 2002 to date)
FILE NUMBER: WCC 18944-04
DATE OF ARBITRATOR’S DECISION: 12 October 2005
DATE OF APPEAL DECISION: 23 August 2006
SUBJECT MATTER OF DECISION: Apportionment, section 22 and 22A of the Workers Compensation Act 1987
PRESIDENTIAL MEMBER: Dr Gabriel Fleming, Deputy President
HEARING:On the Papers
REPRESENTATION: Appellant: Goldbergs Solicitors
First Respondent: McIntosh, McPhillamy
& Co, Solicitors
Second Respondent: Rankin Nathan Lawyers
Third Respondent
(in the interests
of GIO WorkersCompensation
(NSW) Ltd): Turks Legal
Third Respondent
(as self insurer): Leitch Hasson Dent
ORDERS MADE ON APPEAL:
Leave to Appeal is granted.
The decision of the Arbitrator dated 12 October 2005 as contained in Orders 1 and 3 of the Certificate of Determination is confirmed.
The decision of the Arbitrator, dated 12 October 2005 as contained in Orders 2, 4, 5 and 6 of the Certificate of Determination, is revoked and the following decision is made in its place:
1. …
2.That Email Limited and Electrolux Home Products Pty Limited (Insured by the First, Second, Third and Fourth Insurers) pay the Applicant as lump-sum compensation under s66 of the Workers Compensation Act 1987, $7,520 in respect of 9.4% permanent impairment of the right arm at or above the elbow such sum to be apportioned as to 30% to the First Insurer, 38% to the Second Insurer, 20% to the Third Insurer and 12% to the Fourth Insurer.
3 …
4.That Email Limited and Electrolux Home Products Pty Limited (Insured by the First, Second, Third and Fourth Insurers) pay the Applicant’s expenses under s60 of the Workers Compensation Act 1987 on production of accounts and receipts and such sums to be apportioned as to 30% to the First Insurer, 38% to the Second Insurer, 20% to the Third Insurer and 12% to the Fourth Insurer.
5.That Email Limited and Electrolux Home Products Pty Limited (Insured by the First, Second, Third and Fourth Insurers) pay the Applicant weekly compensation at the maximum statutory rate (currently $334.10) from 4/3/2004 to date under section 40 of the Workers Compensation Act 1987. Liability for the weekly payments is to be apportioned as to 30% to the First Insurer, 38% to the Second Insurer, 20% to the Third Insurer and 12% to the Fourth Insurer.
6.That Email Limited and Electrolux Home Products Pty Limited pay the Applicant’s costs as agreed or assessed and such costs to be apportioned as to 30% to the First Insurer, 38% to the Second Insurer, 20% to the Third Insurer and 12% to the Fourth Insurer. I certify this as a complex matter for the purposes of costs assessment.
The decision of the Arbitrator, dated 12 October 2005 as contained in Order 7 of the Certificate of Determination, is revoked.
BACKGROUND TO THE APPEAL
On 8 November 2005, Allianz Australia Workers Compensation (NSW) Limited sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision dated 12 October 2005.
Ms Qummou is named as the First Respondent to the Appeal. Email Ltd employed Ms Qummou as a process worker from 28 February 1998 to 12 July 2002. Email was insured for workers compensation by:
·Allianz Australia Workers Compensation (NSW) Limited (‘Allianz’) up until 30 June 1999; and
·Smorgon Steel (‘Smorgon’), as a self-insurer, from 1 July 1999 to 19 February 2001.
While Ms Qummou’s actual duties remained the same, the corporate identity of her employer changed to Electrolux Home Products Pty Limited (‘Electrolux’) on 19 February 2001. Electrolux was insured for workers compensation by:
·GIO Workers Compensation (NSW) Limited (‘GIO’) from 19 February 2001 to 31 December 2001; and
·Electrolux, as a self-insurer on and from 1 January 2002 to date.
The parties have been variously identified in the proceedings before the Arbitrator and in the Application to Appeal. However there are in effect two employers in the proceedings, and four insurers, two in respect of each employer. Each of the Insurers was separately represented in the proceedings before the Arbitrator. To allow consistency in understanding of the Arbitrator’s orders and the parties’ submissions on appeal, the following references are used as appropriate:
·Allianz (First Insurer)
·Smorgon (Second Insurer)
·GIO (Third Insurer)
·Electrolux (Fourth Insurer)
Ms Qummou’s claim is for workers compensation benefits pursuant to the Workers Compensation Act 1987 (‘the 1987 Act’) by way of weekly payments from 4 March 2004 to date and continuing, and lump sum compensation for permanent impairment to her back, right and left arms.
At arbitration, Ms Qummou received an award in her favour, the liability for which was apportioned between Allianz (First Insurer) and Smorgon (Second Insurer). Allianz (First Insurer) now challenges that award, set out below, and seeks to have it revoked.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 12 October 2005 records the Arbitrator’s orders as follows:
1.That the First Respondent [Email Limited] (insured by the Second Insurer) pay the Applicant as lump-sum compensation under s66 of the Workers Compensation Act 1987 $5,400 in respect of 13.5% permanent impairment of the Applicant’s neck, $3600 in respect of 4.5% permanent impairment of the Applicant’s right arm at or above the elbow, and $3,375 in respect of 4.5% permanent impairment of the Applicant’s left arm at or above the elbow.
2.That the First Respondent pay the Applicant as lump-sum compensation under s66 of the Workers Compensation Act 1987 $7,520 in respect of 9.4% permanent impairment of the right arm at or above the elbow such sum to be apportioned as to 50% to the First Insurer and 50% to the Second Insurer.
3.That the First Respondent (insured by the Second Insurer) pay the Applicant as lump sum compensation under s67 of the Workers Compensation Act 1987 $12,000 in respect of pain and suffering.
4.That the First Respondent pay the Applicant’s expenses under s60 of the Workers Compensation Act 1987 on production of accounts and receipts and such sums to be apportioned as to 20% to the First Insurer and 80% to the Second Insurer.
5.That the First Respondent pay the Applicant weekly compensation at the maximum statutory rate (currently $334.10) from 4/3/2004 to date under section 40 of the Workers Compensation Act 1987. Liability for the weekly payments is to be apportioned as to 50% to the First Insurer and 50% as to the Second Insurer.
6.That the First Respondent pay the Applicant’s costs as agreed or assessed and such costs to be apportioned as to 50% to the First Insurer and 50% to the Second Insurer. I certify this as a complex matter for the purposes of costs assessment.
7.Award in favour of the Second Respondent in respect of the Applicant’s claims against it and with respect to those claims I make no order as to costs.”
The Arbitrator gave his reasons for the decision orally, at the conclusion of the arbitration hearing. The transcript of the reasons has been provided to the parties and is before me on the appeal.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘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.”
I have before me all of the evidence that was before the Arbitrator, the transcript of the proceedings and the Certificate of Determination. The parties do not seek to submit fresh evidence on the appeal.
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by all of 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
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act, which provides:
“352 Appeal against decision of Commission constituted by Arbitrator
(1)A party to a dispute in connection with a claim for compensation may, with leave of the Commission constituted by a Presidential member, appeal to the Commission as so constituted against a decision in respect of the dispute by the Commission constituted by an Arbitrator.
(2)The Commission is not to grant leave to appeal unless the amount of compensation at issue on the appeal is both:
(a)at least $5,000 (or such other amount as may be prescribed by the regulations), and
(b) at least 20% of the amount awarded in the decision appealed against.
(3)If the Commission refuses to grant leave to appeal, the Commission must state reasons for the refusal in writing to the parties.
(4)An appeal can only be made within 28 days after the making of the decision appealed against.
(5)An appeal under this section is to be by way of review of the decision appealed against.
(6)Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.
(7)On appeal, the decision may be confirmed or may be revoked and a new decision made in its place. Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.
(8)In this section, decision includes an award, interim award, order, determination, ruling and direction.”
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
Allianz (First Insurer) submits that 23.33% of the total award, of approximately $60,000, is challenged on the appeal. Section 352(2) is satisfied.
Leave to appeal is granted.
ISSUES IN DISPUTE
Allianz (First Insurer) does not challenge Orders 1 and 3 of the Arbitrator’s decision. These orders attribute liability arising from the alleged frank injury of 14 December 2000, to Smorgon (Second Insurer), only, in relation to lump sum compensation for permanent impairment of the neck, right arm at or above the elbow and left arm at or above the elbow, plus compensation for pain and suffering.
The primary issue in dispute is the apportionment of liability as between the two employers and their respective four insurers. Allianz (First Insurer) submits that it should bear no liability for Ms Qummou’s injury, which, it argues, should fall to be apportioned between the remaining insurers. It submits that:
“3.…the Arbitrator erred in his decision to attribute any liability to the Appellant. The Appellant submits that the Arbitrator should have made the following decision:-
i.First Respondent (Allianz) no liability in respect of the Applicant’s claims against it. No order as to costs.
ii.Alternatively, the Arbitrator should have made a decision which apportioned liability for the orders, numbered 2, 4, 5 and 6 between the four insurers, depending on the period of time that they insured the respondent for the relevant nature and conditions period.
Relevant only to the alternative decision referred to in 3(ii) above. The relevant percentages for the proportions of the insurers periods of risk for the nature and conditions claim of 23 February 1998 to 4 July 2002 is as follows:-
Allianz-30%
- 38% (Second Insurer)
- 20% (Third Insurer)
- 12% (Fourth Insurer).
…
9.If the Commission were to agree with the Appellant’s submission that Allianz should bear no liability, then the Appellant suggests the following apportionment for orders number 2, 4, 5 and 6:
-Second Insurer-50%
-Third Insurer-31.25%
-Fourth Insurer-18.75%”
In support of this submission Allianz (First Insurer) argues, in summary, that:
· The Arbitrator erred in finding that “the critical date is 14 December 2000 with the employment period prior being relevant and a small period, a very small period perhaps, thereafter that is also relevant to the nature and conditions claim” (‘The Injury Error’).
· The Arbitrator erred in law in apportioning liability to Allianz (First Insurer) pursuant to section 22 of the 1987 Act in circumstances where there was a “frank injury in addition to the nature and conditions of employment”. Allianz (First Insurer) relies upon Rail Services Australia v Dimovski & Anor [2004] NSWCA 267 (‘Dimovski’) in support of this submission (‘The Apportionment Error-Section 22 of the 1987 Act’).
· The Arbitrator erred in giving inadequate reasons for the decision not to apportion liability to GIO (Third Insurer) and Electrolux (Fourth Insurer), and more generally (‘The Inadequate Reasons Error’).
Ms Qummou submits the Arbitrator’s award of compensation to her was correct and should stand. She makes no submission with respect to the issue of the apportionment of liability pursuant to section 22 of the 1987 Act and ‘submits to any decision of the Commission on this question, save as to costs”.
Smorgon (Second Insurer); GIO (Third Insurer) and Electrolux (Fourth Insurer) made submissions on the appeal. These submissions are outlined and addressed in the consideration of the issues set out below.
Allianz (First Insurer) purports to rely upon sections 22 and 22A of the 1987 Act, which provide, in part, as follows:
22 Compensation to be apportioned where more than one injury
(1) If:
(a) the death or incapacity of a worker, or
(b) a permanent impairment suffered by a worker as referred to in Division 4 of Part 3, or
(c) a liability under Division 3 of Part 3 to a worker, results from more than one injury to the worker, liability to pay compensation under this Act is to be apportioned in such manner as the Commission determines.
(1A)Death, incapacity, loss or liability that results partly from one injury and partly from one or more other injuries is taken to have resulted from more than one injury.
(2) Liability to pay compensation under this Act includes:
(a) the liability of an employer (including an employer who is a self-insurer), and
(b) the liability of an insurer under a policy of insurance in respect of the payment of that compensation (including a direct liability to the worker), and
(c) a liability under the Uninsured Liability and Indemnity Scheme, and
(d) in the case of a worker who is partially incapacitated for work, a liability that arises because the worker is entitled to be compensated under this Act as if totally incapacitated.
. . .
22AFurther provisions concerning apportionment of liability under section 22
(1) The apportionment of liability under section 22 is:
(a) in the case of the apportionment of liability between employers—to be on the basis of the relative length of the worker’s employment with each employer concerned (not including any period of employment after the last relevant injury was received), or on such other basis as the Commission considers just and equitable in the special circumstances of the case, and
(b) in the case of the apportionment of liability between insurers of the same employer—to be on the basis of the relative length of the employer’s period of insurance with each insurer concerned during which the worker concerned was employed by the employer (not including any period of insurance after the last relevant injury was received), or on such other basis as the Commission considers just and equitable in the special circumstances of the case.
(2)If a worker’s partial incapacity for work results from more than one injury to the worker and consequently more than one person would be liable to pay compensation in respect of that incapacity were the worker not entitled to compensation under section 38 of this Act or section 11 (2) of the former Act (as applied by Schedule 6 to this Act), those persons are nevertheless liable for the compensation so payable and accordingly that liability may be apportioned under section 22.
(3)Liability may be apportioned under section 22 even if the liability has been discharged.
CONSIDERATION OF THE ISSUES
The ‘Injury’ Error
Submissions
Allianz (First Insurer) submits that:
“…the whole period after 14 December 2000 up until the date the Applicant went off work on 4 July 2002 is relevant and it is clear that the nature and conditions of the Applicant’s work after 14 December 2000, in addition to 14 December 2000, contributed to her injuries. This is clear as the Applicant could not continue with her work because of pain and that is why she ceased working on 4 July 2002.” (I note that the Appellant refers to 4 July 2002 and that the Worker refers to 12 July 2002 as the date on which she ceased employment. Ultimately nothing turns on this reference and I will refer to 12 July 2002 in these reasons).
Although the submission by Allianz (First Insurer) as to the nature of the error the Arbitrator has committed is not clear, it appears to concern the necessary findings as to the ‘injury’ (or injuries) Ms Qummou suffered, the date of that injury for the purpose of establishing her entitlement under the 1987 Act and establishing any apportionment between Insurers that flows from such findings. Any finding as to apportionment must be based upon the findings of fact in relation ‘injury’, in particular the nature and date of that injury (see discussion in Westbus Pty Limited v Benjamin [2006] NSWWCCPD 25).
Section 4 of the 1987 Act defines ‘injury’ as follows:
‘injury’:
(a) means personal injury arising out of or in the course of employment,
(b) includes:
(i)a disease which is contracted by a worker in the course of employment and to which the employment was a contributing factor, and
(ii)the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration, and
. . .
The distinction between ‘personal injury’ and ‘disease’ is less important to the determination of an entitlement to compensation since the enactment of section 9A of the 1987 Act, which requires that no compensation is payable unless employment was a ‘substantial contributing factor’ to the injury. However, the distinction remains important for the determination of liability pursuant to section 15 of the 1987 Act, which applies to a “disease, which is of such a nature as to be contracted by a gradual process”, and section 16 of the 1987 Act, which applies to an injury that consists of “an aggravation, acceleration, exacerbation or deterioration of a disease”. Sections 15 and 16 only become relevant where the ‘injury’ is found to be a ‘disease’ within section 4 of the 1987 Act. It is possible that the application of the statutory provisions (particularly section 16 of the 1987 Act) may result in the setting of different dates of injury in relation to claims for weekly payments of compensation for incapacity and lump sum compensation for permanent impairment (Alto Ford Pty Ltd v Antaw (1999) 18 NSWCCR 246, cited with approval in Stone v Stannard Brothers Launch Services Pty. Ltd [2004] NSWCA 277).
Smorgon (Second Insurer) submits that the Arbitrator’s decision contains errors of law, fact and/or discretion and should be revoked. On the issue of ‘injury’ in particular, it submits that:
·the Arbitrator failed to determine liability in accordance with section 16 of the 1987 Act, or, in the alternative;
·the Arbitrator erred by failing to correctly apply section 22 of the 1987 Act.
Smorgon (Second Insurer) submits that the Arbitrator should have found, consistently with the evidence of Dr Gilchrist, Dr Morgan and Dr Errey, that Ms Qummou suffered from an injury “consisting in the aggravation, exacerbation, acceleration or deterioration of a disease of gradual process, such that all liability resulting from such injury should have been apportioned to” Electrolux (Fourth Insurer). In particular, it submits that Ms Qummou “became incapacitated, in the sense of becoming entitled to weekly compensation, on 12 July 2002” and that her:
“…employment from 19 February 2001 to 12 July 2002 continued to be a substantial contributing factor to the aggravation, exacerbation, acceleration or deterioration of a disease of gradual process such that all liability should be apportioned to the last Insurer.
In the alternative, . . . if the Worker’s injury consists of a series of minor, non specific traumata, arising out of the nature and conditions of her employment, then liability should be apportioned pursuant to section 22 of the 1987 Act in respect of the whole period of her employment with Email and Electrolux, and not only in respect of the period up to 19 February 2001”.
GIO (Third Insurer) submits that “the Arbitrator made his decision based on the balance of the medical evidence and evidence of the worker”. It argues that:
“ . . . the balance of the evidence including the medical evidence would indicate that the worker did not suffer injury during the [third insurer’s] period of insurance and thus the Arbitrator has exercised his discretion correctly. I provide the following reasons:
(a)The evidence was that during the period of insurance of my client [19 February 2001- 31 December 2001] there were no exacerbations of the Applicant’s condition, there was no time lost from work and the worker performed her full normal duties.
(b)The report of Dr Gilchrist clearly indicates that the worker did not make any complaints throughout the entire period of my client’s period of risk. The report of Dr Gilchrist who treated the worker during my client’s period of risk indicates that certainly the worker did have discomfort on 14 December 2000 which was outside my client’s period of risk. Dr Gilchrist cleared the worker for pre-injury duties of 24 January 2001 just prior to my client’s period of risk.
(c)The report of Dr Gilchrist dated 19 June 2002 indicates that from 23 January 2001 the worker consulted him on four occasions for unrelated problems. Significantly there was no work related complaint to him during my client’s period of risk.
Therefore, as on the balance of the evidence there was no injury during my client’s period of risk, the arbitrator is correct in not apportioning any liability for that period and certainly did not act unfairly or unlawfully.
…
…there were submissions made during the arbitrator [sic] regarding disease. If the presidential member finds there is a disease, my client has no liability as Section 15 to Section 16 of the WCA 1987 refers to liability of employers. If the last employer is found liable my client [GIO] has no right of contribution under Section 15 or Section 16 of the WCA 1987.”
Electrolux (Fourth Insurer) submits that the Arbitrator did not err and that the decision should be confirmed. It argues that the Arbitrator’s orders rest on his findings on the issue of ‘injury’. It argues that the Arbitrator found, correctly, a frank injury on 14 December 2000 and a ‘nature and conditions’ injury for a period before and shortly after that date. Consequently, it is submitted, GIO (Third Insurer) and Electrolux (Fourth Insurer) have no liability.
The Arbitrator’s Findings on Injury
I have searched the transcript of the reasons for decision and the documents on the Commission file for a finding on the question of what ‘injury’ or injuries the Arbitrator found Ms Qummou had suffered and the date of injury/injuries. This matter went before the Arbitrator for a telephone conference on 16 February 2005. Following that telephone conference the Arbitrator referred the matter to an Approved Medical Specialist (‘AMS’) for assessment of the ‘medical dispute’ (section 319 of the 1998 Act) about permanent impairment to assist in the determination of the claim for lump sum compensation. The Arbitrator’s notation of the outcome of that conference states, among other things, that:
“The date of injury is 14/12/00 however Mr Chapman noted that his client does not concede there has been a frank injury. The nature and conditions period is 23/2/98 to 4/7/02.”
This telephone conference notation is ambiguous. The Arbitrator’s accession to the continuing argument over the nature and date of injury would seem to indicate that the Arbitrator had not decided the issue. Later documents on file support this view. Email Ltd wrote to the Commission on 25 May 2005 in the following terms:
“…The AMS referral form refers to a frank injury on 14 December 2000. The First Respondent [Email] in its interests as self insurer stated quite clearly at the Teleconference on 16 February 2005 that it does not concede that the Applicant suffered a frank injury on that date. Please note that the First Respondent in its interests as self insurer objects to the Applicant being described as having suffered a frank injury on 14 December 2000.”
This correspondence was bought to the Arbitrator’s attention and he directed that it be admitted in the proceedings and brought to the attention of the AMS. Without explanation, or reference to the ‘injury’ upon which the AMS is to make his assessment, the disclosure of this document to the AMS does not seem to clarify his task.
The ‘Practice of the Conciliation/Arbitration Process in the Commission’ states that the Arbitrator, at the telephone conference, will:
·Identify whether there are preliminary and/or threshold issues, which should be determined first so as to maximise the efficiency of the proceedings.
·If possible, determine disputed liability before a matter is referred to an Approved Medical Specialist.
The “Referral for Assessment of Permanent Impairment” to the AMS identifies the ‘Date of Injury’ as “Frank Injury 14/12/00 and Nature and Conditions: 23/2/98-4/7/02”. There is no identification of whether or not Ms Qummou suffered a disease, or an aggravation (etc) of a disease, during this later period. The AMS issued a Medical Assessment Certificate on 18 July 2005. This was discussed at a further telephone conference with the Arbitrator and the parties on 9 August 2005. A difficulty arose because the AMS did not address the degree of ‘Whole Person Impairment’ attributable to the injury post 1 January 2002. This is perhaps not surprising as the referral to the AMS does not identify the injury/injuries suffered by Ms Qummou in the terms of the 1987 Act and does not identify a ‘date of injury’ in relation to the period following 14/12/00. The AMS subsequently issued an amended MAC attributing nil ‘Whole Person Impairment’ for the period “1/1/02 to 4/7/02”.
The Arbitrator’s reasons for decision do not disclose any clear finding on ‘injury’ or the date of injury. Even a holistic reading of the reasons, without combing them for error, and with a view to understanding the Arbitrator’s particular findings within his consideration of all the issues, does not assist (Beale v GIO (NSW) (1997) 48 NSWLR 430 at 444, Minister for Immigration and Multicultural Affairs v Wu Shan Liang (1996) 185 CLR 259). The Arbitrator’s reasons translate the AMS’s finding on the degree of permanent impairment into an award of lump sum compensation, address the issue of apportionment between insurers, and move to the calculation of a section 40 entitlement for partial incapacity. The only reference to a finding of the nature and date of the injury is as follows:
“On all the medical evidence, I tend to prefer the view that the critical date is 14 December 2000, with the employment period prior being relevant and a short period, and a very short period perhaps, thereafter as also relevant to the nature and conditions claim. The fact is, however, that Dr Gilchrist put the applicant worker on light duties after 14 December 2000, though the applicant does dispute there was an absence of aggravation in that post-December 2000 period”
These findings are inadequate to address the determination of what ‘injury’ (or injuries), pursuant to section 4 of the 1987 Act, Ms Qummou suffered, and what the date of her injury (or injuries) was. There is no reference to the relevant statutory provisions in relation to ‘injury’ and ‘date of injury’ in the reasons, namely sections 4, 9A, 15 and 16 of the 1987 Act and the Arbitrator’s consideration, and application of the relevant law to the facts of this case is not expressed.
I appreciate that the Arbitrator gave his reasons orally at the conclusion of the arbitration, in a genuine effort to give the parties finality and certainty in the resolution of the dispute. This is consistent with the aims and objectives of the Commission and the guideline document, ‘The Practice of the Conciliation/Arbitration Process in the Commission’ issued by the President of the Commission. There is, however, no reference to any agreement between the parties on the question of the nature and date of the ‘injury’ and indeed the transcript and the correspondence noted above clearly identifies this was a live issue between the parties as late as the arbitration hearing, with submissions made on the characterisation of the injury as a ‘disease’. The factual findings on ‘injury’ are critical to the issue of apportionment as between employers/insurers. The reasons for decision, whether given orally, or reserved and reduced to writing, should have addressed this critical issue.
The Arbitrator repeatedly referred to the ‘nature and conditions’ claim, without further findings, or explanation, in terms of the statutory definition of ‘injury’ in section 4 of the 1987 Act. This issue was discussed recently in J Robins & Sons Group Pty Limited v Ly [2006] NSWWCCPD 162, as follows:
“. . . refer to the phrase ‘nature and conditions’ of employment. This latter phrase does not appear in the workers compensation legislation and it does not always accurately describe the nature of the injury for which compensation is claimed under the Workers Compensation Acts (the 1987 and the 1998 Act). The phrase ‘nature and conditions of employment’ is frequently used, but not synonymous with, either ‘disease’ or ‘aggravation of a disease’ or a ‘disease of gradual process’. As Neilson J has stated in Bowthorpe v Fred Clark Australia (a division of McIlwraith Pty Ltd) [2001] NSWCC 96:
“...the Workers Compensation Act speaks of injury and speaks of disease. It does not speak of ‘nature and conditions’. I have had cause in many judgments to point out that the words are not terms of art. They have been referred to by the Court of Appeal as ‘quaint’. I have repeatedly referred to them as ‘cant’.
...I had cause to comment on the use of the phrase “nature and conditions of employment” as long ago as Mirkovic v David’s Holdings Pty Ltd (1995) 11 NSW CCR 656. A worker must allege either injury or disease. He can, of course, allege both.”
It is for the Arbitrator to determine whether the worker has suffered an ‘injury’ pursuant to section 4 of the 1987 Act and the nature of that injury, namely, whether it is a ‘personal injury’, a ‘disease injury’ or the ‘aggravation (etc) of a disease’. The Arbitrator must also determine the date of the injury, which, in the case of a ‘disease’ or ‘aggravation’ will fall to be determined by section 15 or 16 of the 1987 Act. The failure of the Arbitrator in this matter, to clearly decide the issue of ‘injury’, has had ramifications for the resolution of the other issues in dispute, in particular the ‘medical dispute’ referred to the AMS. As Associate Justice Malpass observed in Aircons Pty Limited v Registrar of the Workers Compensation Commission of NSW & Anor [2006] NSWSC 322:
“it is a matter of importance that the medical dispute referral identify with precision the matters that are referred for assessment. A failure to do so may infect the whole assessment process [by an AMS]”.
Appeal Findings on Injury
I have reviewed the evidence and submissions that were before the Arbitrator on the issue of ‘injury’. Ms Qummou filed a statement, dated 22 December 2004 in which she stated, relevantly, that:
·She began working for Email Limited in about 1998 doing manual, repetitive labour making fridges.
·Her duties included lifting and carrying fridge parts and putting them into fridges on a production line. She is 150 cm tall and had to reach above her head and shoulders repeatedly to lift parts. She also cleaned the fridges, assembled parts, lifted boxes and used a drill.
·She found the work hard and physical and in 1999 developed problems with her knees because of walking up stairs at work. She had some time on light duties following this.
·She did not complain about the effect of the work on her because she ‘needed the job”. She did overtime. However her arms ached at the end of the day.
·During 2000 she worked putting rubber gaskets, weighing about 7 kilos, on fridge liners at the rate of about 700 per shift. On 14 December 2000 she reports “reaching up above my head to get some door seals when I felt a crack in my neck which gave me immediate pain in the lower part of my neck. The pain extended down to both my shoulders, and in particular down my right shoulder and arm. It was very painful and I tried to work for a little bit but it felt as though my right arm was going numb so I went to the First Aid to get some help. I was taken to see Dr Gilchrist who put me on some light duties except the light duties that I was given were just the same as my normal duties . . . Because I needed the job I kept on working but the pain got worse.”
·She complained of continuing pain in her neck, shoulders and arms and “the pain never went away”. She stopped work on 12 July 2002 because of the pain.
·She now has constant pain in her neck, back, shoulders and arms. Her hands are numb and weak, particularly the right hand. She has difficulty sleeping but becomes easily tired from the pain.
Ms Qummou had a number of radiological investigations including an x-ray of her cervical spine on 14 January 2000, which revealed degenerative changes at C5/6 level.
Following Ms Qummou’s injury on 14 December 2000 a ‘Return to Work’ plan was established, on 19 December 2000, based on her fitness for “suitable duties at normal hours”. A second ‘Return to Work’ plan, dated 5 January 2001, placed a restriction on duties requiring Ms Qummou “to work with her hands above shoulder height, particularly her right hand/arm”. Co-workers were to assist in duties that involved this action. ‘Independent Injury Solutions’, a rehabilitation provider, monitored Ms Qummou’s return to work in December and January 2001, and their report of 18 January 2005 is in evidence. Initially her symptoms worsened but in January 2001 she allegedly reported to them that the symptoms had resolved. She recommenced her ‘pre-injury’ duties after 24 January 2001, including work above shoulder height and lifting of door panels. Independent Injury Solutions reviewed Ms Qummou’s progress on 26 February 2001 and at that time reported:
“…she reported no concerns with her maintenance of pre-injury duties. Ms Qummou stated she had ‘good and bad days’, and on some days needed her husband to massage her left and right trapezius due to ‘tightness’. Ms Qummou stated however that on other days she felt ‘fine’ ”.
On this basis, Independent Injury Solutions reported that Ms Qummou could maintain her pre-injury employment and ceased their involvement in her case.
On 8 January 2001 Dr Gilchrist referred Ms Qummou to Dr Gordon for assessment. Dr Gordon examined Ms Qummou in January 2001 and reported on 8 May 2002. He considered she had a neck injury plus symptoms in the shoulders and arms.
Dr Errey, General Practitioner, treated Ms Qummou from 25 June 2002. She reported on 29 December 2004 and 4 February 2005. She conducted a workplace assessment on 24 July 2002 and viewed the worksites where Ms Qummou performed her duties and reported that:
“ The work required of Mrs Qummou put considerable and ongoing strain on her shoulders and neck. The workplace environment lacked understanding from the supervisor and colleagues to be able to appropriately adapt the work to reduce the strain on Mrs Qummou’s shoulders and neck. Mrs Qummou’s personality and background included a strong work ethic, a tendency to do as she was told without question, a family including two school aged children dependent on her income and a fear that if she didn’t comply with her supervisors demands that she would lose her work.
…
I believe that the injury and depression which Mrs Qummou suffers are a result of the work and the working environment at Email/Electrolux from 1997 [sic] to 2002. Mrs Qummou has had no similar problems before she started work at Email. She stated that the pain problems had been present on and off for some time before the injury in December 2000 but at this point the pain became a constant issue with the exacerbations with certain activities such as raising her arms above the shoulders and with use of drills.”
Dr Worsley, Consultant in Pain and Musculo-Skeletal Medicine, examined Ms Qummou on 2 September 2002 and reported on 3 September 2002. He opined that Ms Qummou had clinical signs of degenerative changes in her cervical spine at C4/5 and C5/6. He considered that her condition at that point was chronic, although initiated by “musculo-capsular disruption over the postero-lateral elements of the cervical spine”.
Dr Dalton, a consultant in Sports Medicine, examined Ms Qummou on 14 October 2002 and reported on the same day. He noted that clinical investigations had revealed “degenerative disc disease at C4/5 and C5/6 with a small annular tear at C4/5”. He consider Ms Qummou also had a chronic pain condition as a result of her injury.
Dr Khan, Consultant Surgeon, examined Ms Qummou on 14 October 2002, 15 September 2003 and 11 January 2005. His report of 12 January 2005 offered the following diagnosis of Ms Qummou’s condition, accepting her report of what occurred:
“1.Musculoligamentous injury to the cervical spine causing aggravation of a pre-existing condition in the cervical spine.
2.Soft tissue injury to the right shoulder and arm causing aggravation of pre-existing degenerative condition of the rotator cuff and resulting in impingement syndrome in the right arm and mild carpal tunnel syndrome in the right wrist.
3.Soft tissue injury to the left shoulder and arm in the form of musculoligamentous strain and rotator cuff strain with minor symptoms of carpal tunnel syndrome in the left wrist.”
He considered that Ms Qummou was never ‘asymptomatic’ following the injury of 14 December 2000 and that:
“…in December 2000 she sustained an aggravation of a pre-existing early degenerative condition in the neck and right shoulder girdle. I do not believe that the aggravation of December 2000 settled down completely and she continued to have lingering symptoms in the neck and right arm which became worse by March/April 2002”.
Dr Meachin, Orthopaedic Surgeon, reported in December 2003. He concluded that Ms Qummou had:
“…in the course of her work on or about 14/12/00 and subsequent to that, sustained a disc injury at C4/5, rotator cuff tendonitis, right carpal tunnel syndrome and has aggravated some pre-existing asymptomatic degenerative changes.
…as regards the neck 50% of her symptoms are due to the nature and conditions of her work on or about 14/12/00 and 50% to her pre-existing degenerative changes which have been rendered symptomatic since the incident.
As regards the right shoulder she has evidence of mild rotator cuff tendonitis which is a combination of constitutional degenerative changes and the work related incident of 14/12/00.”
Dr Burgess, Orthopaedic Surgeon, reported in April 2003 that, in his opinion, Ms Qummou had:
“…work-related ‘wear and tear’ in her neck and both of her shoulders. Superimposed on this it appears is an overt injury to her cervical discs resulting in worsening of her cervical spondylitis and neuralgia affecting both of her shoulder girdle muscles, particularly those on the right.”
Dr Porges, AMS, examined Ms Qummou on 12 July 2005 and issued Medical Assessment Certificates on 18 July 2005 and 31 August 2005. Dr Porges is of the view that Ms Qummou has degenerative changes in her cervical spine and rotator cuff on both sides, at the date of the incident of 14 December 2000 and the ‘nature and conditions’ of her work contributed to her permanent impairment. He noted the aggravation of the acute trauma of 14 December 2000, which he considers was in relation to her neck. Dr Porges also diagnosed progressive carpal tunnel syndrome, which he considered to be predominantly ‘constitutional’ in nature.
The determination of whether an injury is an ‘injury simpliciter’ or a ‘disease’ is a question of fact to be determined on the facts of the particular case (Zickar v MGH Plastics Industries Pty Ltd (1996) 13 NSWCCR 680 (‘Zickar’)). In my view the weight of the medical evidence supports the finding that on 14 December 2000 Ms Qummou suffered a ‘frank injury’ (or ‘injury simpliciter’) to her cervical spine, which involved her shoulders and arms. This has been variously documented in the medical evidence as musculo-ligamentous strain and possibly some disc trauma. There was clearly a traumatic physiological change to her body when she felt a ‘crack’ in her neck and then suffered acute pain. The fact that this incident also aggravated a pre-existing degenerative condition of her cervical spine and rotator cuff of both shoulders does not mean that she did not at that time suffer what may be described as a ‘frank injury’ (Dimovski).
Dr Khan, Dr Burgess and Dr Meachin report consistently that on 14 December 2000 Ms Qummou suffered an acute trauma affecting both her neck and shoulders, with pain radiating down her arms. Dr Porges, whose opinion is persuasive, considers that she suffered an acute trauma to the neck on 14 December 2000 and an aggravation of a degenerative condition in her cervical spine, and considers the left shoulder symptoms to originate from the spine; the right shoulder symptoms being from the shoulder itself.
The evidence of Ms Qummou herself is persuasive and details the incident of 14 December 2000 and the failure of her symptoms to ever completely resolve following that date. Ms Qummou, in her statement, refers to the fact that she was doing ‘heavy work’ prior to 14 December 2000 and that her arms sometimes were tired and ached at the end of the day. She consistently stated that it was not until the incident of 14 December 2000 that she experienced symptoms that affected her work and caused her to seek medical attention. This was an acute injury, which, according to the diversity of medical evidence, caused, at least musculo-ligamentous strain, and at worst, disc damage.
Dr Errey’s report and visit to the workplace support Ms Qummou’s account of continuing pain, despite the changes that were made to her duties following the incident on 14 December 2000. The report of ‘Independent Injury Solutions’ also details Ms Qummou’s report of ongoing difficulties at work. She was returned to her pre-injury duties after stating that on some days she was ‘fine’. Although Dr Gilchrist reports that Ms Qummou did not complain of further symptoms in 2001, I accept Ms Qummou’s account that she continued to so complain and to suffer pain in her neck, shoulders and arms. Ms Qummou continued to undertake duties that involved lifting, repetitive movements and, at least for some of the time, reaching above her head and shoulders. It was heavy, repetitive process work and as a result, her symptoms did not ever completely resolve after the acute incident of 14 December 2000. They were directly aggravated by her duties. I do not accept, as submitted by Allianz (First Insurer), that there was a “complete absence of complaint by Ms Qummou between January 2001 and April 2002”. I prefer Ms Qummou’s evidence of the symptoms of aching arms after a day at work, in the period prior to December 2000, the continuance, and mostly worsening, of symptoms from December 2000 onwards. Dr Errey’s evidence supports this conclusion.
The nature of Ms Qummou’s injury is not an uncommon one in workers compensation matters. The facts are not dissimilar to the facts in Australia Conveyor Engineering Pty Limited v Mecha Engineering Pty Limited (1998) 17 NSWCCR 309 (‘Mecha’) where it was found that an injury simpliciter initiated a degenerative disease process. In those circumstances, the Court found an injury simpliciter within section 4(a) of the 1987 Act. Consequently, there was no need to have recourse to sections 15 or 16 of the Act (this reasoning is to be preferred to the reasoning in Colliar v Bulley (2000) 19 NSWCCR 302). In Mecha, Powell J, referred to the ratio of Zickar in relation to the issue of ‘injury’ and ‘disease’ as follows:
“…the effect of the decision of the majority is, thus, first that if there can be identified an incident which involves - either by being itself the change, or by bringing about the change - a physical change in the worker, then - even though that change may be no more than the culmination of a progressive disease, and not the product of some external force-that damage is to be regarded as an ‘injury’ within the meaning of par(a) of the definition of ‘injury’ in s 4 of the Act (at 324).
…
There thus having been an identifiable incident, which incident appears to have caused, at least, ligamentous injury to the lumbar spine segment, the sequelae of which involved pain, which was, for a time disabling, and which, in any event, has continued over the years, the decision of the majority in Zickar . . .would seem to dictate that, even if it be the fact that the result of the incident was merely that the worker’s pre-existing back condition was rendered symptomatic, he was nonetheless to be regarded as having sustained an injury within the meaning of par(a) of the definition of ‘injury’ ”(at 325).In Dimovski, Hodgson J, considering a situation where there was an injury simpliciter followed by an ‘aggravation’ injury, stated that:
“…the decision in Mecha is to be preferred. Section 16 applies only if the injury ‘consists in’ the aggravation etc of a disease. If there is an event that satisfies paragraph (a) of the definition of injury, and if that is the injury relied on and proved, the circumstance that it aggravated the disease and thus could have supported a case under paragraph (b)(ii) does not mean that this injury ‘consists in’ the aggravation of a disease.”
The weight of medical opinion (Doctors Errey, Khan, Burgess and Porges) is also consistent with the position that as Ms Qummou continued to work, doing duties that were repetitive and heavy, she suffered what is sometimes described as ‘repeated microtraumata’, which was aggravating pre-existing degenerative pathology in her neck and shoulder. Ms Qummou has claimed a ‘nature and conditions’ injury from the start of her employment with Email in 1998 to 4 July 2002. She was essentially doing the same job, of putting together fridges and fridge components on an assembly line throughout the whole of that time. The type of work Ms Qummou was doing, i.e. the ‘nature and conditions’ of her work from 1998 to 2002 aggravated her degenerative condition (‘the aggravation injury’). As Dr Porges stated:
“My opinion is that she has had pre-existing cervical degenerative changes and rotator cuff degenerative changes on both sides and the nature and conditions of her work would have contributed to the impairment from this, particularly on the right shoulder” (page 7, question 9, Second Medical Assessment Certificate).
I note that Dr Porges was of the view that the degenerative process was ‘far more likely’ to have predated her work with Email.
To the extent that the Arbitrator found that “the critical date is 14 December 2000” he did not err. In applying section 4 of the 1987 Act to the facts of this matter as I have found above I find that:
· Ms Qummou suffered a frank ‘injury’, on 14 December 2000, being a musculo-ligamentous strain of her neck/cervical spine with pain and restriction of movement in her left and right arms and shoulders, and arising out of and in the course of her employment (section 4(a) of the 1987 Act).
· Ms Qummou suffered a further ‘injury’, being an aggravation of her degenerative disease of the neck/cervical spine and rotator cuff in both shoulders, arising out or and in the course of her employment from 1998 to 12 July 2002 (section 4(b)(ii) of the 1987 Act).
Both of these injuries arose out of or in the course of Ms Qummou’s employment and her employment was a substantial contributing factor to them (section 9A of the 1987 Act).
Date of Injury
These findings of fact lead to the determination of the date that the injuries are said, or deemed to have occurred, pursuant to the 1987 Act. The injury simpliciter on 14 December 2000 must obviously be considered to have occurred on that date.
The ‘date of injury’ of the second ‘injury’, being the aggravation of Ms Qummou’s degenerative condition in her cervical spine and rotator cuff, falls to be determined in accordance with section 16 of the 1987 Act. Section 16 provides, in part, that:
“16(1)If an injury consists in the aggravation, acceleration, exacerbation or deterioration of a disease-
(a)the injury shall, for the purposes of this Act, be deemed to have happened-
(i) at the time of the worker’s death or incapacity;
(ii)if death or incapacity has not resulted from the injury – at the time the worker makes a claim for compensation with respect to the injury:
(b)compensation is payable by the employer who last employed the worker in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration.”
It is not contentious that Ms Qummou did not become incapacitated for work as a result of her ‘aggravation’ injury until she could not continue working and left her employment on 12 July 2002. The deemed date of injury of the ‘aggravation injury’ is therefore 12 July 2002.
Referral to the AMS
The implications of these findings for the referral of the medical dispute to the AMS and the assessment of Ms Qummou’s entitlement to lump sum compensation for permanent impairment must be considered. The parties agreed, and the legislation provides, that while it is for an AMS to assess the degree of permanent impairment suffered by a worker (section 326 of the 1998 Act) it is for the Arbitrator to determine ‘injury’ and causation. At first glance there is a contradiction in the basis upon which the Arbitrator referred the medical dispute to the AMS. He referred to the Arbitrator “Frank Injury 14/12/00 and Nature and Conditions: 23/2/98-4/7/02”. However, apparently with reference to the ‘nature and conditions’ claim he also made a finding that “the critical date is 14 December 2000, with the employment period prior being relevant and a short period, and a very short period perhaps, thereafter as also relevant to the nature and conditions claim” (i.e. not the entire period from 23.1.98 to 4 or 12/7/02). Despite the errors made by the Arbitrator with respect to the finding of ‘injury’, ultimately the AMS has undertaken an assessment of the injury in substantially the same terms as my findings on review and I am satisfied that the Arbitrator’s error does not invalidate that assessment.
The Apportionment Error – Section 22 of the 1987 Act.
Section 22 of the 1987 Act operates to empower the Commission to apportion liability ‘in such manner’ as the Commission determines. Section 22A details a mechanism for apportionment (see sections 22 and 22A set out above). As noted above, apportionment of liability as between employers/insurers can only be considered once liability has been established pursuant to the Workers Compensation Acts ( the 1987 Act and the 1998 Act) (Sutherland Shire Council v Baltica General Insurance Co Ltd (1996) 39 NSWLR 87; Rail Services Australia v Dimovski (2004) NSWCA 267).
The Arbitrator, in his reasons for decision, makes no reference to the statutory provisions relevant to ‘apportionment’, i.e. sections 22 and 22A of the 1987 Act. His reasons for the apportionment were:
“The section 66 component should be as per the binding supplementary medical assessment certificate of Dr Porges…for the injury sustained on 14 December 2000…the respondent Email Limited insured by Smorgon Steel is liable for those injuries [the neck, right and left arms at or above the elbow].
I am satisfied on all of the evidence, however, that certainly by the time of the third insurer . . . certainly by the time of the third insurer coming on risk on 19 February 2001, the applicant worker was well aware of her limitations, and there should be no apportionment of liability to the third and fourth insurers. Therefore, the section 66 nature and conditions claim relating to the right arm at or above the elbow, and which has been assessed at 9.4 per cent, should be apportioned between the first and second insurers. The relevant insurers were on risk over the relevant period for approximately equal period, and I apportion liability as to 50 per cent each”.
This reasoning is difficult to reconcile with the legislative provisions and the relevance or legal force of the Arbitrator’s finding that Ms Qummou was at some point “well aware of her limitations” is not clear. She was not incapacitated for work until 12 July 2002.
The submission by Allianz (First Insurer) on apportionment is set out at paragraph 17 above. In summary, it submits that the Arbitrator should have found either that no liability rested with it or, alternatively, that liability should be apportioned between each of the four insurers according to the period for which they were on risk. In relation to the latter submission it submits that the relevant proportions are: Allianz - 30%, 38% (Second Insurer), 20% (Third Insurer), 12% (Fourth Insurer). Smorgon (Second Insurer) makes the same submission.
Ms Qummou makes no submission on apportionment.
GIO (Third Insurer) submits that there was no injury during its period of risk and therefore no liability rests with it.
Electrolux (Fourth Insurer) submits, correctly in my view, that the “the Court of Appeal decision in Dimovski is authority for the proposition that it is possible to apportion liability between a frank injury and a later injury due to the nature and conditions of employment, but the need to do this ultimately depends upon the precise terms of the finding of injury which is made”. On the basis of this reasoning and the Arbitrator’s finding that the ‘nature and conditions’ of Ms Qummou’s employment prior to December 2000 and ‘for a short period after that date’ contributed to her injury, Electrolux (Fourth Insurer) argues it has no liability.
The Arbitrator erred in apportioning liability only to Allianz (First Insurer) and Smorgon (Second Insurer) for Ms Qummou’s claim for weekly benefits and lump sum compensation. It follows from my findings on ‘injury’ that liability should be apportioned between each of the four insurers on risk in relation to ‘the aggravation injury’. This finding is consistent with the evidence that Ms Qummou, although employed by different corporate entities over the period from 1998 to 2002, who in turn were insured by different insurers, did essentially the same job that is found to have caused her injuries.
Dr Porges (AMS) found that Ms Qummou suffered a 9.4% loss of efficient use of her right arm at or above the elbow as a result of the ‘nature and conditions’ of her employment from 23/02/1998 to 4/7/2002.
Liability for lump sum compensation for the ‘aggravation’ injury, being to Ms Qummou’s right upper arm, should be apportioned between the First, Second, Third and Fourth Insurers according to the relative length of Ms Qummou’s employment with them. Allianz (First Insurer) have submitted an ‘on risk’ assessment as a percentage. It is difficult to calculate these figures with absolute accuracy, however the submission of Allianz (First Insurer) matches closely my own calculations and are agreed by Smorgon (Second Insurer). I therefore make the apportionment in terms of the submission by Allianz (First Insurer). This is as follows:
·Allianz Australia Workers Compensation (NSW) Limited - on risk from 23 February 1998 to 30 June 1999 - 30%.
·Smorgon Steel Self Insurance - on risk from 1 July 1999 to 19 February 2001 - 38%.
·GIO Workers Compensation (NSW) Limited - on risk from 19 February 2001 to 31 December 2001 - 20%.
·Electrolux Home Products Pty Limited (Self Insurer) - 12%.
Liability for weekly benefits and medical expenses should also be apportioned in accordance with the relative period of risk for each insurer.
As indicated at the commencement of this Determination, Allianz (First Insurer) does not challenge Orders 1 and 3 of the Arbitrator’s decision. These orders attribute liability to Smorgon (Second Insurer) in relation to lump sum compensation for permanent impairment of the neck, right arm at or above the elbow and left arm at or above the elbow, plus compensation for pain and suffering. This award is consistent with Dr Porges MAC and relates to the frank injury of 14 December 2000. It is consistent with the findings made above and need not be disturbed.
Allianz (First Insurer) seeks to have the Arbitrator’s costs order apportioned in accordance with the substantive orders. I accept this submission and, having found that liability should be apportioned between the Insurers propose to review the costs order to reflect the periods on risk for each insurer. The Arbitrators determination of the matter as ‘complex’ ought not be disturbed.
The Inadequate Reasons Error
Allianz (First Insurer) submits that the Arbitrator’s reasons are inadequate. Ms Qummou, Smorgon (Second Insurer) and GIO (Third Insurer) make no submission on the adequacy of the reasons for decision. Electrolux (Fourth Insurer) submits that the Arbitrator’s reasons for decision are “sufficient”.
As noted above, it is significant that the Arbitrator gave his decision and reasons orally at the conclusion of the arbitration. An Arbitrator has a duty to provide adequate reasons for decision. Rule 73 provides as follows:
“73 Certificates of determination
(1)A statement of the Commission’s reasons referred to in section 294(2) of the 1998 Act is to include:
(a)the findings on material questions of fact, referring to the evidence or other material on which those findings were based, and
(b)the Commission’s understanding of the applicable law, and
(c)the reasoning processes that lead the Commission to the conclusions it made.
(2)Without limiting sub-rule (1), the reasons set out in a statement referred to in subrule (1) are to be stated sufficiently (in the opinion of the Commission) to make the parties aware of the Commission’s view of the case made by each of them.”
It is not necessary, nor generally appropriate, for a Commission Arbitrator to give lengthy reasons for decision (Barbour v BHP Steel Pty Limited [2004] NSWWCCPD 42; Australian Traineeship System (Cargill Meat Processes Pty Limited v Ramage [2004] NSWWCCPD 31). Provided that Rule 73 is complied with, the reasons will be adequate, notwithstanding they do not set out the statutory provisions at length, nor specify and examine all relevant judicial authority on the matters decided. The standard by which adequacy of reasons must be determined is relative to the nature of the decision itself and the decision-maker (Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSW WCC PD 6). The Commission is not a court and proceedings are conducted with as little formality and technicality as the proper consideration of the matter permits (section 367 of the 1998 Act). This approach is equally applicable to the preparation of statements of reasons or the giving of oral reasons. The reasons must be capable of adequately conveying to the parties, in clear and unambiguous language, the basis upon which the Arbitrator came to his or her decision.
Commission Arbitrators are encouraged to provide ex tempore reasons in appropriate cases. This gives the parties a timely resolution of their dispute. However, reasons given orally must comply with Rule 73. There has been some discussion above of the inadequacies of the reasons in this matter. These include the failure to make clear findings of fact and to identify the law that is to be applied. The findings that were material and relevant to the ultimate determination were also not clearly articulated. The relevant legislation was not explained and no legal principles clearly emerge. The reasons therefore fall short of the requirements of Rule 73. The Arbitrator has erred in law in failing to provide adequate reasons for the decision.
DECISION
The decision of the Arbitrator, dated 12 October 2005 as contained in Orders 1 and 3 of the Certificate of Determination is confirmed.
The decision of the Arbitrator, dated 12 October 2005 as contained in Orders 2, 4, 5 and 6 of the Certificate of Determination, is revoked and the following decision is made in its place:
1. …
2.That Email Limited and Electrolux Home Products Pty Limited (Insured by the First, Second, Third and Fourth Insurers) pay the Applicant as lump-sum compensation under s66 of the Workers Compensation Act 1987, $7,520 in respect of 9.4% permanent impairment of the right arm at or above the elbow such sum to be apportioned as to 30% to the First Insurer, 38% to the Second Insurer, 20% to the Third Insurer and 12% to the Fourth Insurer.
3 …
4.That Email Limited and Electrolux Home Products Pty Limited (Insured by the First, Second, Third and Fourth Insurers) pay the Applicant’s expenses under s60 of the Workers Compensation Act 1987 on production of accounts and receipts and such sums to be apportioned as to 30% to the First Insurer, 38% to the Second Insurer, 20% to the Third Insurer and 12% to the Fourth Insurer.
5.That Email Limited and Electrolux Home Products Pty Limited (Insured by the First, Second, Third and Fourth Insurers) pay the Applicant weekly compensation at the maximum statutory rate (currently $334.10) from 4/3/2004 to date under section 40 of the Workers Compensation Act 1987. Liability for the weekly payments is to be apportioned as to 30% to the First Insurer, 38% to the Second Insurer, 20% to the Third Insurer and 12% to the Fourth Insurer.
6.That Email Limited and Electrolux Home Products Pty Limited pay the Applicant’s costs as agreed or assessed and such costs to be apportioned as to 30% to the First Insurer, 38% to the Second Insurer, 20% to the Third Insurer and 12% to the Fourth Insurer. I certify this as a complex matter for the purposes of costs assessment.
The decision of the Arbitrator, dated 12 October 2005 as contained in Order 7 of the Certificate of Determination, is revoked.
COSTS
The parties have not made submissions on the costs of the appeal. Section 345 of the 1998 Act applies to costs on appeal. The parties are urged to come to an agreement as to costs in accordance with the statutory provisions. Failing such agreement an application may be made.
Dr Gabriel Fleming
Deputy President
23 August 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DR GABRIEL FLEMING, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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