Evans-Toyne v Dream Homes (NSW) Pty Ltd (in liquidation) - [2010] NSWWCCPD 64

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Evans-Toyne v Dream Homes (NSW) Pty Ltd (in liquidation) [2010] NSWWCCPD 64
APPELLANT:		Adam Evans-Toyne
RESPONDENT:		Dream Homes (NSW) Pty Ltd (in liquidation)
INSURER:		GIO General Limited
FILE NUMBER:		A1-8728/09
ARBITRATOR:	Mr J McDermott
DATE OF ARBITRATOR’S DECISION:		12 February 2010
DATE OF APPEAL DECISION:		9 June 2010
SUBJECT MATTER OF DECISION:		Sections 53 and 162 of the Workers Compensation Act 1987; clause 43 of the Workers Compensation Regulation 2003
PRESIDENTIAL MEMBER:		Deputy President Kevin O’Grady
HEARING:		On the papers
REPRESENTATION:		Appellant:	Stacks/Goudkamp
Respondent:	TurksLegal

ORDERS MADE ON APPEAL:		The appeal is upheld and orders 1 and 2 made by the Arbitrator as appear in the Certificate of Determination dated 12 February 2010 are revoked. The following determination and orders are made in their place:
“1. It is determined that the applicant’s incapacity for work resulting from injury received on 18 June 2004 is likely to be of a permanent nature within the meaning of section 53 of the Workers Compensation Act 1987. 2. The title of the respondent is amended by deleting reference to ‘GIO General Limited – agent for NSW Workcover Scheme’ and substituting ‘Dream Homes (NSW) Pty Ltd (in liquidation)’. 3. A declaration is made that Dream Homes (NSW) Pty Ltd (in liquidation) has entered into a contract with GIO General Limited in respect of liability under the Workers Compensation Act 1987 to the applicant, and that Dream Homes (NSW) Pty Ltd has ceased to exist. 4. The respondent is to pay the applicant’s costs of the application.”
The matter is remitted to another Arbitrator for determination of the quantum of the applicant’s weekly entitlement in respect of incapacity from 28 February 2008 to the present and continuing.
The respondent is to pay the appellant’s costs of this appeal.

BACKGROUND TO THE APPEAL

Mr Adam Evans-Toyne (‘the appellant’) was employed by Dream Homes (NSW) Pty Ltd (in liquidation) (‘the respondent’) as a builder/carpenter/site manager. The respondent company had been established by the appellant and he was, at all relevant times, a working director.

On 18 June 2004, the appellant received injury whilst in the course of his employment. He was at that time travelling between jobs when he was involved in a motor vehicle accident. The appellant alleged that he suffered significant injury to his spine as a result of that collision.

The appellant has not, until very recently, had the benefit of legal representation in respect of the dispute which had arisen concerning his entitlement, or otherwise, to continuing payments of weekly compensation. In the circumstances, the state of the evidence before the Commission is, to an extent, confused.
It seems that the appellant made a claim for workers compensation benefits against the respondent’s insurer. There is in evidence a copy of a compensation claim form signed by the appellant dated 22 March 2005. It is reasonably clear from other evidence that the insurer did not immediately accept that claim. It is suggested by the appellant that payments of weekly compensation were first made in June 2007 following representations made by him to the WorkCover Authority of New South Wales. A summary of payments made confirms that the appellant had received weekly benefits from the date of the subject injury to 27 February 2008. It is not clear from that summary as to when the first payment was made. It seems that the rate at which payments were made was in the sum of $307.68 per week. The evidence suggests that the appellant remained at work, performing light supervisory duties for an indeterminate period of time. In December 2007, he departed Australia and travelled to the United Kingdom, his country of birth. Voluntary payments of weekly benefits were terminated on 27 February 2008.

The appellant has remained in the United Kingdom to the present time and has from that distance, and without the advantage of legal representation, attempted to have payment of compensation benefits restored. On 23 September 2009, the appellant wrote to the Registrar of the Commission in which a request was made “that an order be made that GIO continue my weekly benefits from 27/02/2008 as required by section 53”. The appellant was plainly seeking to rely upon the provisions of section 53 of the Workers Compensation Act 1987 (‘the 1987 Act’). He did not, at the time of the correspondence, have the security of an award of the Commission with respect to his entitlement to weekly benefits. His reliance upon that provision had, unsurprisingly, been misconceived by the appellant. Notwithstanding the formal defects found in the appellant’s correspondence, the Registrar treated that document as one that initiated proceedings in the Commission. It appears that a lot of documentation was served upon the respondent and a Reply was filed upon its behalf on 23 November 2009.
The matter was listed for hearing before an Arbitrator in Sydney on 8 January 2010. On that day a telephone link was arranged between the Commission, the appellant who was then in the United Kingdom, and the legal representatives of the respondent. Significant technical difficulties were encountered with the telephone connection during the conciliation/arbitration process. In the circumstances directions were made by the Arbitrator requiring the parties to provide written submissions. The parties complied with those directions and, on 12 February 2010, a Certificate of Determination was issued by the Arbitrator which was accompanied by a statement of reasons (‘Reasons’).

THE DECISION UNDER REVIEW

The Certificate of Determination, dated 12 February 2010, records the Arbitrator’s orders as follows:
“The Commission determines:
1.Award for the Respondent.
2. No order as to costs.
A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”

The applicant filed with the Commission an application seeking leave to appeal against the Arbitrator’s decision on 12 March 2010.

PRELIMINARY MATTERS

The parties informed the Commission that the respondent company had been wound up and had ceased to exist. The Arbitrator had been informed of that fact following which, with the consent of the parties, an order was made by him substituting the insurer (GIO General Limited) as respondent to the proceedings in the place of the employer. The Arbitrator purported to make that order pursuant to section 162 of the 1987 Act. That section does not empower the Commission to order that an insurer be substituted for an employer in proceedings but, rather, permits a declaration to be made pursuant to section 162(1). Such declaration addresses the date of injury and the existence of a contract between the employer and the insurer. In the circumstances of the present case, such a declaration needs to be made. The terms of that declaration and associated orders appear below.

ISSUES IN DISPUTE

The application brought by the appellant had been treated by both the Commission and the respondent as one seeking a determination pursuant to section 53 of the 1987 Act that the incapacity for work suffered by the appellant resulting from the injury received on 18 June 2004 is likely to be of a permanent nature.
The appellant, in his correspondence to the Registrar which initiated these proceedings, stated that he was seeking to have his weekly benefits “re-instated”. In the circumstances, it is clear that the primary issue raised is whether the appellant is entitled to receive weekly payments of compensation pursuant to an award of the Commission. Should that entitlement be established, the question arises as to whether such incapacity as found is likely to be of a permanent nature within the meaning of section 53(1).
The Arbitrator’s factual findings led him to enter an award in favour of the respondent.

The respondent at [10] of submissions in opposition to the appeal concedes that “the Arbitrator’s reasons are defective”. The defect acknowledged relates to the Arbitrator’s reasoning concerning section 9A of the 1987 Act. The respondent fairly acknowledges that the section was not raised at the hearing. Having regard to this matter alone, the respondent reasonably “concedes that the decision must be set aside and either [it be] remitted to another arbitrator or be re-determined by a Presidential Member”.
The appellant is fortunate, as is the Commission, that as from a date early in May 2010, Stacks/Goudkamp Solicitors have undertaken the task of his legal representation in these proceedings. On 12 May 2010, a reply to the respondent’s submissions was filed with the Commission by that firm on behalf of the appellant. It was stated at [2] of those submissions that “the appellant agrees with the respondent’s submissions in Paragraph 10 of the submissions in opposition to grounds of appeal and [sic] that the matter should be remitted to another arbitrator to be re-determined”.
The respondent, accepting that there may be a re-determination of the matter upon this appeal in accordance with section 352 of the Workplace Injury Management and Workers Compensation Act 1998 reiterates its submissions put before the Arbitrator and amplifies those arguments in written submissions. It appears that the issues raised on this appeal are whether:
(i)the appellant received injury as alleged;
(ii)the appellant has suffered any incapacity giving rise to an entitlement to weekly compensation payments since cessation of voluntary payments in February 2008, and
(iii)any such incapacity for work resulting from the injury is likely to be of a permanent nature within the meaning of section 53 of the 1987 Act.

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.”

Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and notwithstanding the submission by the appellant that the appeal should proceed to hearing, 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

There is no dispute between the parties concerning threshold requirements as prescribed by section 352 of the 1998 Act. In the circumstances, particularly the respondent’s acknowledgment in submissions that there is a need for re-determination of the Arbitrator’s determination or alternatively remitter of the matter for re-determination by an Arbitrator, I conclude that it is appropriate that leave be granted to proceed with the appeal and I so order.

FRESH EVIDENCE

Both the appellant and the respondent have sought leave pursuant to section 352(6) of the 1998 Act to adduce fresh evidence or evidence in addition to or in substitution for the evidence adduced at the hearing before the Arbitrator.

The appellant seeks leave to tender a report of Dr William Bye, orthopaedic surgeon, dated 10 July 2007 which is addressed to the respondent’s insurer. The appellant has substantially complied with the requirements of Practice Direction Number 6 which concerns procedural requirements in circumstances where the admission of new evidence is sought by a party. The appellant also seeks to have admitted a report of Dr R Assadourian dated 5 March 2010 together with a schedule of dates of attendance relating to the period from February 2008 to May 2008. Also included in the appellant’s application are six medical certificates issued by Dr Assadourian which relate to the period from 19 February 2008 to 2 April 2010. The respondent in its written submissions on appeal has expressly opposed the admission of Dr Bye’s report. The respondent relies upon the provisions of clause 43 of the Workers Compensation Regulation 2003. That clause limits the number of forensic reports that may be relied upon by a party in proceedings before the Commission to one such report: clause 43(1). It is argued by the respondent that the appellant “has previously relied on qualified opinions from Dr John Davis (dated 18 September 2006), Dr John Bentivoglio (dated 10 June 2005) and Dr Apler (dated 24 May 2006), although the latter is a report from a Psychiatrist”. The regulation makes provision for the admission of additional forensic medical reports in the following circumstances:
“Clause 43
(3) Where the injury has involved treatment by more than one specialist medical practitioner, with different qualifications, then an additional forensic medical report may be admitted from a medical practitioner with qualifications in that specialty.”
The term “forensic medical report” is defined as follows:

“Clause 43
(4) In this clause:
forensic medical report:
(a)means a report from a specialist medical practitioner who has not treated the worker and has been obtained for the purpose of proving or disproving an entitlement, or the extent of an entitlement, in respect of a claim or dispute, and
(b)includes a medical report provided by a specialist medical practitioner in respect of an examination of an injured worker pursuant to section 119 of the 1998 Act.”

Dr Davis is a legally qualified medical practitioner who is a member of the American College of Occupational and Environmental Medicine. His area of practice is described at the head of his report as being “injury management consultant, occupational medicine”. It is arguable that, notwithstanding clause 43(3), the admission of Dr Bye’s report is not precluded by reason of the appellant’s reliance upon the evidence of Dr Davis. The situation is somewhat different in the case of Dr Bentivoglio whose field of specialty corresponds with that of Dr Bye, namely, orthopaedics. Both reports by Dr Bentivoglio and Dr Bye are forensic medical reports within the meaning of the clause. A literal construction and application of the clause to the present facts prevents the admission of Dr Bye’s report. This is an unfortunate and, perhaps, unintended consequence of the application of clause 43. Dr Bye’s report has been obtained by the respondent for medico-legal purposes and it has sought not to rely upon its contents. The appellant has come into possession of that report. The circumstances of the present case are such that, arguably, the Commission by reason of the operation of clause 43 is, to an extent, prevented from obtaining its objectives as prescribed by section 367 of the 1998 Act. It may also be arguable that the Commission is hindered in conducting the proceedings in accordance with section 354(3) of the 1998 Act by reason of the literal application of the clause. Having regard to the circumstances of this case, and the likelihood that a recurrence in future matters heard before the Commission is probable, it may be seen as appropriate by Parliament that there be some review of the terms of clause 43.

The appellant, for the reasons stated above, is refused leave to adduce the evidence of Dr Bye as sought in his application.
The evidence of Dr Assadourian is of a different character to the evidence contained in Dr Bye’s report. Dr Assadourian is the appellant’s treating general practitioner resident in Hampshire. The respondent opposes the admission of Dr Assadourian’s evidence. A number of the certificates forming part of the material which is the subject of the application are in evidence. The Arbitrator did not acknowledge the respondent’s objection to those certificates which had been attached to an application to admit late documents. That objection was founded upon the provisions of section 59 of the 1987 Act where “medical practitioner” is defined. The respondent’s objection is repeated concerning the further certificates issued by Dr Assadourian. The definition of “medical practitioner” relied upon is relevant only to matters provided for in Division 3 of Part 3 of the 1987 Act (Compensation for Medical, Hospital and Rehabilitation Expenses, etc), and has no relevance to the question of admissibility of the certificates as sought by the appellant. Such evidence is admissible (Wilinski v Federal Express Pty Ltd [1997] NSWCC 23; (1997) 14 NSWCCR 546). The latter medical certificates issued relate to the appellant’s unfitness for work up to 2 April 2010. The report of Dr Assadourian dated 5 March 2010 plainly post dates the hearing before the Arbitrator. I am of the opinion that Dr Assadourian’s report and the accompanying medical certificates should be in evidence before the Commission and, accordingly, I grant leave to the appellant to adduce that material by way of fresh evidence in this appeal. The form of the medical certificates, their relevance to issues raised on the appeal, and the question of their weight, are addressed hereunder.
The respondent seeks leave to adduce evidentiary material summarised at Annexure A to its notice of opposition. That material includes copies of correspondence between the respondent’s solicitors and the solicitors acting on behalf of the Compulsory Third Party (‘CTP’) insurer, surveillance reports and DVD copies of such surveillance, and a number of medical reports.
The appellant objects to the admission of the evidentiary material, submitting that the respondent could have obtained the additional material at a date earlier than the hearing before the Arbitrator. It is further argued that the evidence is “substantial” and, for that reason, it is inappropriate for it to be “admitted as part of the appeal process”. The appellant submits, in the alternative, that, should the respondent’s application be granted, he be permitted to adduce further evidence, being a copy of a review conducted by the Motor Accidents Authority of New South Wales Medical Assessment Service (‘MAS’) dated 4 May 2010 and associated documents.
It is reasonably clear that the material which the respondent seeks to adduce came into its possession following correspondence to the CTP insurer’s solicitors in December 2009. Whilst the respondent may be criticised for seeking access to material held by that insurer at a very late date, it is plain that receipt of the insurer’s response post dated the hearing.
I have reached the view that it is in the interests of justice that those documents nominated by the respondent should be admitted in evidence on this appeal. Accordingly I grant the respondent leave pursuant to section 352(6) to tender in evidence the following fresh or additional evidence:
i.Correspondence dated 10 December 2009 and 13 January 2010 between TurksLegal and Moray and Agnew.
ii.Report of Dr F J Harvey dated 21 September 2009.
iii.Surveillance reports from M & A Investigations, as particularised in Annexure A to the respondent’s Reply, together with DVD electronic recordings of surveillance conducted by those investigators.
iv.The report of Dr Angus Bathgate dated 8 September 2005, the assessment certificate and report of Dr Peter Honeyman dated 14 February 2006, the assessment certificate and report of Dr Robert Kaplan dated 23 August 2006, and the assessment certificate and report of Dr Michael Ryan dated 9 July 2008.
The appellant as noted in [26] above seeks to rely upon two documents issued by the Motor Accidents Authority of New South Wales (‘the MAA’). The first is a ‘Further Certificate’ issued under Part 3.4 of the Motor Accidents Compensation Act 1999 by Dr Ian Cameron, MAS medical assessor, dated 17 January 2010, and a statement of reasons for the decision relating to an application for review of Dr Cameron’s certificate signed by a Ms Josephine Redmond, Acting Proper Officer of the Medical Assessment Service, dated 4 May 2010.

It is plain that these documents could not have been obtained for the purpose of presentation at the hearing. Their content addresses material which has found its way into evidence both at the hearing and on this appeal. The further certificate issued by Dr Cameron and the results of Ms Redmond’s review supplement the other evidentiary material which has been adduced following production to the parties of the records of the MAA. It is my view that the complete and up-to-date record of the MAA’s medical certification of the appellant should, in the interests of justice, be in evidence before the Commission. In the circumstances, I grant leave to the appellant to adduce those documents identified in [29] above.

EVIDENCE

As earlier noted, this matter has progressed from the initial application filed with the Commission to the presentation of submissions on this appeal without the appellant having the advantage of legal representation. One consequence of that fact has been that proper procedures have not been strictly followed. In so saying, I intend no criticism of the appellant, who has, in the circumstances, managed to present a reasonably coherent argument which accompanies a vast body of documentary evidence. I note that the respondent took only limited objection at the hearing to the appellant’s various applications to adduce late evidence. This approach was adopted by the respondent in circumstances where a vast volume of material arrived from the United Kingdom at a very late hour prior to the conduct of the teleconference and subsequently prior to the hearing. It must be said that the conduct of the respondent in respect of procedures before the Arbitrator and on this appeal has been both cooperative and helpful in clarifying the issues which required determination and expedition of the hearing process.

There is no comprehensive statement by the appellant in evidence. There is however a large volume of written material, which includes correspondence and submissions authored by the appellant. It is from that material that most of the salient facts may be derived.
The Arbitrator at [25] of Reasons summarised the documentary evidence that was before him. There is a further notation made there that the Arbitrator had before him written submissions from each party. There was no oral evidence adduced before the Arbitrator.

The appellant’s evidence

The evidence is that the appellant, who is 42 years of age and a native of the United Kingdom, had worked as a carpenter/builder for a period of approximately 20 years before he was injured in the subject motor vehicle accident which occurred on 18 June 2004. At that time he was a director of the respondent company and its only employee. The evidence is unclear as to the period of time during which the appellant had been so employed. There is no evidence before the Commission as to the appellant’s earnings as a working director other than statements to be found in the evidence that he drew very small amounts by way of payment for his work.
There is in evidence a copy of a workers compensation claim form that appears to address circumstances relevant to injury received whilst on a journey within the terms of section 10 of the 1987 Act. The evidence establishes that the motor vehicle accident occurred at a time when the appellant was driving his work vehicle between jobs. In the circumstances it is clear that the subject injury was received whilst the appellant was in the course of his employment.
The motor vehicle accident was caused, it appears clear from the evidence, by reason of the negligence of the driver of the other vehicle which was involved in the collision. The appellant was able to drive his vehicle after that incident, however on that day he consulted a medical practice at Bondi Junction where he reported that he had immediately felt pain in his neck and upper and lower back. He also reported transient paraesthesia in the right upper limb. He was on that occasion prescribed anti-inflammatory medication and was referred to a physiotherapist. On 21 June 2004, the appellant returned to that practice and was attended by Dr Michael Piliotis. There is a report from that practitioner in evidence which is dated 30 May 2006.
Dr Piliotis recorded that the appellant reported to him that he suffered persistent pain over the lumbar sacral region. A CT scan of the lumbar spine was arranged. The scan revealed disc bulges at the L4/5 and L5/S1 levels with effacement of the thecal sac. The appellant was referred to Dr Warwick Stening for specialist assessment. Dr Piliotis reported that Dr Stening felt that surgery “was not indicated”.
The appellant continued to consult Dr Piliotis and, in October 2004, at a time when he complained of persistent pain in the right lower back, a referral to a pain management clinic was arranged. The appellant there came under the care of Dr Matthew Crawford who ultimately administered botulinum injections. Those injections proved not to be of benefit to the appellant. At this time the appellant reported that he was not able to perform the work that he used to be able to do nor was he able to do the recreational activities that he used to enjoy.
Dr Piliotis arranged for the appellant’s referral to Dr Andreas Loefler, orthopaedic surgeon, in January 2006. Dr Loefler arranged for an MRI scan of the lumbar spine which, Dr Piliotis reported, revealed small disc protrusions at L4/5 and L5/S1 with an annular tear at the L4/5 disc. Dr Loefler advised no form of surgical intervention but suggested continuation of pain management in an attempt to increase physical output to regain former strength.
There is in evidence a report from Dr Leonard Levy who practices as a general practitioner at Coogee, New South Wales. It seems that the appellant first consulted Dr Levy in January 2007 concerning chronic back pain which he had experienced since the subject motor vehicle accident. Dr Levy’s report dated 29 October 2007 recorded painful restriction of movement in the thoraco-lumbar spine. Dr Levy also recorded a history of bladder and sexual dysfunction and episodes of depression. Dr Levy noted that his patient had seen “multiple specialists” and commenced a treatment regime described as “conservative” which included physiotherapy, pilates, exercise program and psychological counselling. Dr Levy did not believe that surgery was indicated.
The evidence establishes that the appellant consulted specialist practitioners at the Spine Service, Department of Orthopaedic Surgery, St George Hospital Campus, University of New South Wales, in 2007. There is a report of Dr Ashish Diwan, chief of that service, dated 14 February 2008. The date of the appellant’s first consultation was not noted in that report however a history was recorded of constant suffering of back disability since the occurrence of the subject motor vehicle accident. That report recorded that the appellant experienced pain in his back, neck and thoracic spine and that he suffered a disturbance of sleep and extreme restriction of almost all activities. Given the appellant’s report of a change in micturition habit and change in sexual functions, he was referred to Dr Denis Cordato, neurologist, for further investigations.
Dr Diwan made reference to an MRI scan which was stated to show “a contained herniation of nucleus pulposes at L5/S1 and L4/5”. Dr Diwan compared that scan result, the date of which was not particularised, with earlier studies, and he made the observation that there was no significant difference between the studies. It was noted that a discogram was conducted and that the result was “concordant for pain in both levels”. That report recorded Dr Diwan’s recommendation that the appellant consider a two-level anterior spinal column reconstruction involving an L5/S1 anterior lumbar interbody fusion and an L4/5 total disc replacement. Dr Diwan expressed the view that such surgical procedure was “reasonable and necessary”.
There is a report of Dr James Vote dated 10 December 2007 in evidence before the Commission. That report recorded that Dr Vote reviewed and examined the appellant at the Spine Service overseen by Dr Diwan on 10 December 2007. Dr Vote recorded that the appellant’s presenting symptoms related to his lumbar spine. Dr Vote recorded the occurrence of the subject motor vehicle accident and the persistence of significant lower back pain thereafter, causing restriction of spinal movement and “some referred [sic, pain(?)] and paraethesia in the left thigh”. It was noted later in that report that the appellant had attended the Spine Service in early 2007 at which time he reported “constant low back pain and referred aching primarily in the left leg, associated with paraethesia although sometimes on the right side”. Dr Vote made reference to the MRI scan referred to by Dr Diwan in his report and noted that they showed “significant changes in the lower two lumbar discs”. Dr Vote also referred to the results of the discography and stated that the study “showed a significantly positive response at L4/5, and a marked response at L5/S1”. The advice concerning surgical intervention was noted.
Dr Vote’s report included a summary of the appellant’s occupational history. It was recorded that the appellant had been a self-employed builder for 20 years and that he was unable to continue working as a builder by reason of his back problems and that his company was “wound up” in early 2007. It was recorded that the appellant had not worked since. Dr Vote also recorded that the appellant was not able to indulge in any recreational activities such as basketball, running and jumping.
Dr Vote noted that the appellant’s x-rays indicated significant changes in the two lower lumbar discs and that stimulation of those discs accurately reproduced pain. The view was expressed that “surgery is the best hope of upgrading him”. It was Dr Vote’s view that the appellant would not be able to return to work doing heavy physical work, irrespective of the outcome of the surgery. Dr Vote further expressed the view that he believed there was a relationship between the appellant’s complaints and the subject motor vehicle accident. It was his view that the appellant had a degree of desiccation of the lower two lumbar discs which was asymptomatic prior to the accident. Dr Vote observed that such would not be unusual for a man in the building trade for over 20 years. Dr Vote expressed the belief that the accident had “probably caused a further degree of internal disruption, and mild prolapse of the lumbar discs, which has caused pain, as evidenced by his response to MRI and discography”. Dr Vote’s final remark was “I would consider that overall, he is best seen as an aggravation which continues in a symptomatic sense, of an underlying previously asymptomatic mild degenerative low lumbar problem”.
The appellant relied upon a large volume of medical reports, hospital clinical notes and investigation reports, many of which relate to treatment he had received in the United Kingdom. Relevant portions of those documents are referred to hereunder.
The documentation relied upon by the appellant includes copies of correspondence from the appellant to the Registrar of the Commission. That correspondence, signed by the appellant, included considerable detail of relevant facts. It was alleged by the appellant that the respondent’s insurer declined liability with respect to the spinal surgery proposed by Dr Diwan. The appellant departed Australia for the United Kingdom in December 2007 where he has since resided. He had been in receipt of weekly compensation benefits, liability for which had been accepted earlier in 2007. However, by reason of his departure from this country, the insurer terminated payments. There are in evidence a number of items of correspondence between the appellant and the insurer concerning termination of payments and the requirements of section 53 of the 1987 Act with respect to payment of compensation benefits to incapacitated workers resident overseas.
The appellant sought medical treatment in the United Kingdom and has been treated by a general practitioner, Dr Assadourian. The appellant was referred for consultation to Dr L F Wilson, consultant spinal surgeon, in May 2008. There is in evidence a copy of correspondence between Dr Wilson and Dr Assadourian dated 28 May 2008. Dr Wilson recorded the history concerning the motor vehicle accident and the appellant’s subsequent symptoms and disabilities. Dr Wilson recorded his diagnosis in that correspondence as follows:
“1.Cauda equina dysfunction cause. I presume this represents a traction injury.
2. Mechanical low back pain and the symptom complex would implicate both discs and facet joints.
3. Neurological symptoms in the lower limbs, particularly the left L4 nerve root.
4. sacroiliac joint pain.
5.Coccydynia”
A report dated 4 June 2008 from Dr Wilson to Dr Assadourian recorded the results of a discography investigation conducted on 2 June 2008. Dr Wilson noted:
“I performed provocative discography on Mr Evans at L4/5 and L5/S1. At L4/5 there is a grade 2 degenerative tear with no leakage and on moderate pressure of distension there was marked back pain. The annulus had an unusually soft consistency. At L5/S1 there was grade 4 degeneration with no posterior leakage and pain provocation.
I then performed a coccygeal injection and again there was marked pain and tenderness around the coccyx. I injected 40 mg Depo Medrone and 2 mls 0.25% Marcain. I will review him in the outpatients in two weeks and go through the proposed surgery.”
The evidence includes medical records from the Royal National Orthopaedic Hospital, Middlesex, UK, and correspondence from Dr Wilson’s specialist Registrar addressed to Dr Assadourian dated 27 February 2009. That documentation confirmed conduct by Mr Wilson of the surgical procedure at that institution on 8 January 2009 which was described as L5/S1 fusion ALIF, L4/L5 disc replacement.
There is in evidence a copy of correspondence dated 3 July 2009 from Dr Wilson addressed to the appellant (copy to Dr Assadourian) which stated:
“I can confirm that your CT scan shows a good quality interbody fusion at L5/S1. This means that we withdraw most restrictions on your physical activities as long as you gradually build things up over the next 3-6 months. I would suggest restricting lifting and carrying to 10-15 kgs and no more over this period. Overall, it will take a good 2 years for your rehabilitation to peak.”
There is in evidence correspondence signed by Dr Leech, physiotherapist, which relates to the appellant’s rehabilitation program which had been conducted in August and September 2009. The appellant intended to retrain given ongoing disability in his back.
Among the documents which have been admitted as fresh or further evidence on this appeal are a number of medical certificates issued by Dr Assadourian. Those documents certified that the appellant had been unfit for work by reason of his back disability, the last date certified in those documents being 2 April 2010.
A ‘Further Certificate’ issued in relation to the motor vehicle accident claim brought by the appellant issued by Dr Cameron, MAS medical assessor, dated 17 January 2010 is in evidence. Earlier certificates had been issued concerning that claim and had been tendered in evidence on behalf of the respondent and are noted hereunder. Dr Cameron found that the degree of permanent impairment of the appellant was 20 percent whole person impairment (‘WPI’). He also found that the surgical treatment conducted in January 2009 was not reasonable and necessary and it was noted that that determination was subject to a review application. Dr Cameron’s certification was challenged by the CTP insurer which challenge was determined on 4 May 2010 by Ms Redmond, Acting Proper Officer of the Medical Assessment Service. The review application was dismissed.
The appellant relied upon a report of Dr Davis, injury management consultant, dated 18 September 2006. Dr Davis had been qualified to provide an opinion for the purposes of litigation by the appellant’s former solicitors. Dr Davis recorded the history of the motor vehicle accident and the symptoms as described and treatment that had been conducted to that date. He noted that following the motor vehicle accident there was “only a short period of lost time and Mr Evans, being the owner of the company continued at work in his management and supervisory role, although he was unable to undertake any physical activities”. Dr Davis also noted that the appellant involved himself in some light carpentry duties although he continued to avoid any heavy work. Dr Davis hypothesised in that report that the appellant’s business may fail, in which circumstance he would lack suitable transferable skills and may have to be considered for retraining. Dr Davis accepted that the disabilities suffered by the appellant had resulted from the subject motor vehicle accident.
The Arbitrator at [41] of Reasons referred to a report of Dr Bentivoglio dated 10 June 2005. As noted by the Arbitrator that report had been referred to by the appellant in his submissions presented on hearing. There is no record to be found in the transcript of the teleconference conducted on 8 December 2009 or in the transcript of the hearing conducted per telephone on 8 January 2010 concerning the tender of that report. That report was not attached to the correspondence instituting these proceedings addressed to the Registrar nor did it appear as an attachment to any of the applications seeking admission of late evidence.
Enquiries conducted by the Commission have established that the respondent did not tender the report. A copy of that report has been provided by the solicitors acting on behalf of the respondent together with two shorter reports bearing the same date. Having regard to the reference made by the Arbitrator in the course of his Reasons to the three-page report of Dr Bentivoglio, I am bound to infer that it had been treated by him as evidence and further that such evidence had been tendered, though such is not recorded, by the appellant. I have had no regard to the content of the two shorter reports bearing the date 10 June 2005. The three-page report remains with the Commission’s documents and I have marked it with the letter ‘A’.
The history recorded by Dr Bentivoglio in his report included a notation that the appellant had conducted the respondent company for a period of five years. His work involved carpentry duties and other manual activities. His duties were essentially heavy in nature. It was also recorded that the appellant, as owner of the company, lost little in the way of time off work following the subject motor vehicle accident. It was noted that he had done “lesser work activities”. It was Dr Bentivoglio’s opinion that, as a result of the subject motor vehicle accident, the appellant had suffered injury to his low back which he described as “some degree of discal damage at the L4/5 and L5/S1 levels of his lumbar spine region”. Dr Bentivoglio also expressed the view that the appellant had received an injury to his thoracolumbar spine region and his neck. The view was expressed that the appellant needed to avoid activities that were arduous in nature or that required him to do bending and twisting movements of his back.

The respondent’s evidence

The respondent relied upon a report of Dr Crawford, pain management, intensive care and anaesthesia specialist, dated 26 May 2006 addressed to Dr Piliotis. It was noted in that report that Dr Crawford did not find “a great deal” upon examination. Dr Crawford observed in the course of that report as follows:

“It is likely that he has a number of causes for his pain including the annular tear that he has in his L4/5 disc and a small protrusion at the L5/S1 level. The pain that he has in his mid-thoracic region may well be related to the end plate pathology that he has at T5 but that is unclear. There is no doubt however that he has significant neuropathic pain and that he is suffering.”

The respondent tendered a number of documents including claim forms addressed to the insurer and a payment summary relating to the claim. That summary indicated that payments of weekly compensation had been made from 21 June 2004 until 27 February 2008, generally at the rate of $307.68 per week. That summary also included a notation that the insurer had recovered from QBE Insurance Limited the sum of $61,209.18. Other evidence established that QBE is the CTP insurer.
The Reply filed by the respondent had a number of other documents attached which included a surveillance report dated 12 July 2007 from an organisation described as Verifact and a number of copies of correspondence between the insurer and the appellant and his former solicitors. These documents do not have direct relevance to the issues raised on this appeal, however, where appropriate, they are referred to hereunder.
The evidence of Dr Harvey, as comprised in a number of medical reports including that which had been tendered as fresh or additional evidence on this appeal, is before the Commission. Dr Harvey, in the first of those reports dated 6 June 2005, expressed the diagnosis that the appellant may have suffered soft tissue injuries to his neck and lower back. Dr Harvey expressed the view that he could find no objective evidence that the appellant suffered an injury which would prevent him from returning to his full pre-accident work. The balance of Dr Harvey’s reports referred to video surveillance viewed by him which had been made available by the solicitors acting on behalf of the CTP insurer. Where relevant, these reports are referred to hereunder. Dr Harvey’s report dated 10 December 2007 made reference to a number of other reports by practitioners and reports of investigations. Concerning an MRI scan conducted on 30 January 2006, which revealed a small disc protrusion at L4/5 and L5/S1 with an annular tear at the L4/5 disc, Dr Harvey expressed the view that such pathology “is clearly degenerative in nature and is not the result of trauma”.
The surveillance reports and DVD recordings, which have been admitted as fresh or further evidence on this appeal, relate to investigation activities that occurred between July 2005 and August 2007. I have viewed the DVD recordings. I am satisfied that those films depict, among other individuals, the appellant. I so conclude having regard to the evidence relied upon by the appellant, which includes a series of photographs of himself taken following the surgery conducted in the United Kingdom. Where relevant, the material displayed, which includes the appellant attending building sites in his utility truck and playing golf, is referred to hereunder.
Reports from the following medical practitioners were admitted as fresh or further evidence:
(i)Dr Angus Bathgate. A report dated 8 September 2005 recorded that Dr Bathgate, a sports physician, had reviewed the appellant on 8 July 2004. That was the only consultation he had with the appellant. Dr Bathgate recorded the relevant history including a notation of the appellant’s involvement in a motor vehicle accident one month before the subject motor vehicle accident. That first accident caused a flexion/extension injury to the appellant’s neck. Dr Bathgate noted that symptoms were significantly improving with treatment following the first accident when he was involved in the accident on 18 June 2004. Reference in that report was made to a CT scan of the lumbosacral spine which Dr Bathgate stated was “normal”. Dr Bathgate expressed the view that the appellant did not require any surgical intervention. It was his opinion that, by reason of disability, there were particular limitations concerning the appellant’s ability to return to full work. The view was expressed that there would be a complete resolution of symptoms in a period of three to six months.
(ii)Dr Peter Honeyman. Dr Honeyman examined the appellant in January 2006 for the purpose of an assessment in accordance with the Motor Accidents Compensation Act 1999. The history was noted including the appellant’s statement that he was unable to continue his sports life and felt highly restricted from doing any of the physical carpentry work. Dr Honeyman noted that he understood that on a number of occasions the appellant had tried to carry out these activities but found it aggravated his pain. Also noted was that the appellant had assumed a supervisory role at work, having other workers do the physical work. The injuries being assessed were neck strain and lower back strain. Dr Honeyman accepted in that certificate that each of those injuries had been caused by the subject motor vehicle accident. Dr Honeyman’s diagnosis was that of soft tissue injury and that there was no evidence of structural or neurological findings. It was his view that the neck and lower back pains were likely to persist as intermittent complaints, and will provide ongoing restrictions “to former full physical activities”. The degree of permanent impairment was found to be zero percent WPI.
(iii)Dr Robert Kaplan, psychiatrist. Dr Kaplan provided a certificate of determination following medical assessment conducted pursuant to the Motor Accidents Compensation Act 1999. As part of the relevant history, Dr Kaplan recorded that following the subject motor vehicle accident the appellant “did his best to continue working as he had to run the business. He supervised the other workers and avoided physical activity. He was easily irritable and would shout when frustrated”. Dr Kaplan found no psychiatric injury to assess with respect to impairment.
(iv)Dr Michael Ryan. Dr Ryan provided a certificate of determination concerning an assessment under the Motor Accidents Compensation Act 1999 dated 9 July 2008. The subject of that certificate was the question as to whether the proposed lumbar spine surgery was “reasonable and necessary” in the circumstances. That certificate recorded that Dr Ryan had seen the surveillance films recorded in July 2005, May and June 2006, July 2006 and June 2007. It was Dr Ryan’s view that the appellant “appeared to have no overt limitations in work or golfing activities”. Dr Ryan expressed his view that Dr Diwan had been “grossly misled” by the appellant concerning the extent of his impairment. Dr Ryan’s conclusion was that the proposed treatment was not “reasonable and necessary”.

SUBMISSIONS

Submissions before the Arbitrator

Both parties provided written submissions following the telephone hearing conducted by the Arbitrator on 8 January 2010. Those documents setting out those submissions remain with the papers held by the Commission.

The respondent acknowledged that the appellant’s application was one brought pursuant to section 53 of the 1987 Act. It was also acknowledged that the Commission, in determining the appellant’s rights, needed to consider the question of his entitlement to weekly compensation. It was argued that the Commission would not be satisfied, having regard to the medical evidence and the surveillance evidence, that the appellant was entitled to “an order pursuant to s.53 of the Act”.
The respondent took no objection to the tender of the many documents filed by the appellant with the Commission other than the document described as “various Workcover Certificates”. An argument was advanced that those certificates were not admissible given that they were not certificates given by a medical practitioner as defined in section 59 of the 1987 Act.
The respondent argued that, given the “scant evidence” concerning the appellant’s “pre-injury earnings”, quantification of any entitlement raised a number of difficulties. The thrust of the respondent’s argument was that, in the absence of detailed evidence of “previous earnings”, there should be a finding that the appellant’s earnings were modest before his injury and that his earning capacity post injury is “in excess of his pre-injury earnings”.
The appellant replied to the respondent’s 30-paragraph submissions by email from the United Kingdom on 14 January 2010. That detailed document sought to refute the arguments raised by the respondent particularly those with respect to the state of the medical evidence. As anticipated by the respondent in its submissions, the appellant sought to rely upon the terms of an offer of settlement with respect to lump sum entitlement made by the insurer in November 2007 as being an admission.
It is apparent, and is perfectly understandable, that the appellant has misapprehended the nature of a number of issues which had been agitated before the Arbitrator. By way of illustration, it appears in response to [24] of the respondent’s submissions that confusion arose between an entitlement to weekly payments and the question of entitlement to lump sums. There was another difficulty with the submissions in that the matters raised by the appellant appears on occasions to be assertions of fact rather than argument with respect to the evidence. By way of illustration, the appellant stated in response to [25] of the respondent’s submissions concerning the absence of evidence of relevant earnings that he has submitted to the insurer detailed documentation concerning pre-injury earnings.
The appellant, in his submissions, made it perfectly clear that he was seeking resumption of his weekly compensation benefits as from 27 February 2008. It is also clear that the appellant, no doubt by reason of his understanding of correspondence received from the insurer, misunderstood the manner in which section 53 operates in circumstances where a worker departs Australia (page 6 of the appellant’s submissions).

Submissions on appeal

The appellant has provided written submissions which accompany his application with respect to this appeal. Those submissions refer to numerous email communications, copies of which are attached to the application. Most of that material is not directly relevant to the issues which require attention on this appeal.
It is clear that the appellant in those submissions raises complaint concerning the procedure on hearing before the Arbitrator, and makes particular complaint concerning the permission granted to the respondent to be represented by Counsel. The further matter of complaint raised in the course of the submissions is the belated receipt by the appellant of a CD recording of the proceedings.
The respondent has provided written submissions which accompany its reply to the appellant’s application. It is argued that the appellant’s complaints concerning the manner in which the proceedings before the Arbitrator were conducted are unfounded.
At [10] of submissions the respondent, as noted earlier, accepts that the Arbitrator’s decision must be set aside and that the matter be either remitted to another Arbitrator or be re-determined on this appeal. That acknowledgment is founded upon the Arbitrator’s erroneous reference to a defence based upon section 9A of the 1987 Act.
The respondent argues that there is no evidence of injury involving the L5/S1 disc in the appellant’s lumbar spine. With respect to the disc bulging noted at L4/5 it is suggested that such was “pre-existing and degenerative in nature”.
Reliance is placed by the respondent upon the surveillance evidence and it is argued that the appellant’s assertions of chronic back pain and severe limitation of movement are contradicted by his recorded activities as found in the films. Particular reference is made to histories given to the various medical practitioners including Dr Vote, Dr Davis, Dr Diwan and Dr Apler. It is argued that the appellant’s description of the extent of his disability should not be accepted having regard to that which is demonstrated in the surveillance material.
The respondent argues that the evidence establishes that the pain experienced by the appellant in his thoracic spine did not “arise until some six months post the accident when the pain occurred following a plane trip to the United Kingdom”. Reference is made to the matters recorded by Dr Harvey in his report of 6 June 2005. It is put that any “thoracic condition” is not causally related to the subject accident.
It is argued that any injury suffered by the appellant to his cervical spine “was minor and there is little evidence of the ongoing effects for any incapacity arising from that injury”.
The respondent’s argument is that the appellant suffers no incapacity of a permanent nature resulting from the subject injury. This submission is put in the context of section 53 of the 1987 Act. Reference is made to the decision of Universal Consultancy Services Pty Ltd v Datta [2008] NSWWCCPD 87 (‘Datta’).
The respondent seeks to highlight in its submissions the absence of evidence concerning the appellant’s pre-injury earnings or his probable earnings but for injury. It is argued that, upon the assumption that the Commission finds that the worker is suffering from incapacity of a permanent nature, it is “necessary for the worker to establish the quantum of his entitlement for compensation”.
The respondent acknowledges the difficulty which exists concerning formulation of submissions with respect to the quantum of any entitlement to weekly compensation that the appellant may have. The respondent again states that it is appropriate that the matter be re-determined. The order sought is that the appeal be dismissed. In the alternative it is suggested that the matter be remitted to a different Arbitrator for re-determination.

DISCUSSION AND FINDINGS

The respondent, quite properly, has conceded that it is appropriate that the Arbitrator’s determination be reviewed. That concession is limited to the need for review by reason of error on the part of the Arbitrator, however the respondent maintains its position as adopted before the Arbitrator that the appellant has failed to make out a case in support of his entitlement to weekly benefits. It is accepted by the respondent that the application brought by the appellant sought a determination by the Commission that the incapacity for work suffered by the appellant resulting from the injury is likely to be of a permanent nature within the terms of section 53 of the 1987 Act.

This appeal is brought pursuant to the provisions of section 352 of the 1998 Act. Such an appeal is to be by way of review of the decision appealed against: section 352(5). The concept of “review” was considered by the Court of Appeal in State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249; (2007) 5 DDCR 286 (‘Chemler’). It was there observed by Spigelman CJ (with whom Basten JA and Bryson AJA agreed) at [30]:

“A presidential member exercising a power to review a decision must decide whether the original decision is wrong or, as is often put in the context of administrative appeals on merits, must decide what is the true and correct view. If s/he does so decide then s/he should substitute his or her own views, unless it is an appropriate case to remit.”

I accept the respondent’s submission that there is scant evidence before the Commission concerning relevant economic matters being pre-injury earnings and probable earnings but for injury. In the circumstances it is clear that if, upon review, it is found that the appellant had suffered injury and resultant incapacity, the state of the evidence concerning such economic matters would impede the Commission from determining the question of quantum of entitlement to weekly compensation. It is this circumstance which has led the respondent to argue that the matter should be remitted to a different Arbitrator for re-determination. It is implicit in the respondent’s argument that there would be need for presentation of supplementary evidence concerning those economic matters.
I have formed the view that there are a number of issues in dispute which may properly be determined on this appeal. Those issues include: the need to determine the nature of any injury suffered by the appellant in the subject accident; the question as to the existence of any incapacity resulting from such injury beyond 27 February 2008; and, whether the appellant is entitled to the relief sought pursuant to the provisions of section 53 of the 1987 Act. The state of the evidence permits a determination of those issues and, in accordance with views expressed by the Court of Appeal concerning the manner of conduct of a review such as the present, I consider it preferable that those issues be determined on appeal without the need for remitter. A compelling reason for adopting that course is the considerably confused state of the evidence and other material before the Commission which has required exhaustive examination on this appeal. Should there be a remitter without addressing those issues I have enumerated there would arise, unnecessarily in my view, the need for an Arbitrator to assume the task of assimilating all this material, thereby duplicating that which has been accomplished on this appeal.
At the time the appellant ceased to reside in Australia, that is December 2007, he was in receipt of voluntary weekly payments of compensation. He took up residence in the United Kingdom where he has remained since. The insurer terminated those voluntary payments of compensation on 27 February 2008. It is clear that termination of those payments was made by the insurer relying upon the provisions of section 53. In its correspondence to the appellant dated 2 June 2009 the insurer stated as follows:
“Under S53 of the 1987 Act you can only be in receipt of weekly benefits whilst residing overseas if you are on an ongoing award for weekly benefits which has been determined by either [the] Compensation Court of NSW or the Workers [sic] Commission”.
The insurer’s correspondence does not accurately reflect the relevant legislation. It is appropriate to firstly consider the provisions of section 53 of the 1987 Act which provides:
“53 (1) If a worker receiving, or entitled to receive, a weekly payment of compensation under an award ceases to reside in Australia, the worker shall thereupon cease to be entitled to receive any weekly payment, unless an approved medical specialist certifies, or the Commission determines, that the incapacity for work resulting from the injury is likely to be of a permanent nature.
(2) If the incapacity is so certified or determined to be of a permanent nature, the worker is entitled to receive quarterly the amount of the weekly payments accruing due during the preceding quarter, so long as the worker establishes, in such manner and at such intervals as the Authority may require, the worker’s identity and the continuance of the incapacity in respect of which the weekly payment is payable.”
Having regard to the present circumstances, the terms of section 53 require that a determination be made as to whether the appellant was entitled to receive a weekly payment of compensation under an award at the time he ceased to reside in Australia. Once a determination has been made with respect to that matter consideration may be given, if relevant, to the balance of the provisions of section 53. It is intended to examine the evidence to determine the issues of injury and incapacity, following which a determination of that first question raised by section 53 may be made.

Injury

There is no dispute concerning the occurrence of the motor vehicle accident. The issue in dispute concerns the consequences of that collision. The evidence establishes that the appellant, on the day of the collision, consulted a medical practitioner at the practice of Dr Piliotis at Bondi Junction. The history recorded on that occasion was that the appellant immediately felt pain in the neck and upper and lower back regions with developing stiffness in these regions. When the appellant was assessed by Dr Piliotis on 21 June 2004, a note was made by that practitioner that there was “tenderness over the cervical spine and trapezius with reduced range of movement by approximately 50 percent. There was tenderness also over the lumbar and sacral regions”. Dr Piliotis then diagnosed “strain of the neck and lower back”.

The report of Dr Piliotis includes notations that the neck and shoulder pain experienced by the appellant had largely resolved by late July 2004. The appellant had persistently complained of pain in his lumbar spine. The first notation of pain or discomfort in the appellant’s thoracic region was made at some time after December 2004. A curious feature of Dr Piliotis’ report is that there is a degree of focus with respect to diagnosis upon those complaints at the thoracic level. This is despite the need for extensive investigation and referral for specialist opinion concerning his lower lumbar spine.
The respondent argues that the evidence suggests that the appellant’s thoracic spine complaints occurred some six months following the collision as recorded by Dr Harvey. That history is consistent with matters recorded by Dr Piliotis. It is true that reference is made to the “upper back” on the first occasion the appellant attended the general practice, however specific complaint of symptoms at the thoracic level were not recorded until some indeterminate time following December 2004. I am not satisfied that the appellant, as a result of the subject collision, received any injury to his thoracic spine.
Dr Harvey in his report of 6 June 2005 stated under the heading “diagnosis” that the appellant “may have suffered soft tissue injuries to the neck and lower back”. The examination of the medical evidence which is before the Commission reveals that, with the passage of time, the appellant’s complaint of disability relating to his neck had become less frequent. Such complaints may be described as having been made intermittently following the first weeks of treatment. In 2005 the appellant reported to Dr Harvey that his neck pain had improved. Dr Vote recorded in his report of 10 December 2007 that the appellant informed him that his cervical symptoms settled over a two-week period. The weight of the evidence suggests, and I so find, that as a result of the subject collision the appellant received a strain injury to his neck as described by Dr Piliotis which resolved within a short period of weeks.
The question remains as to whether injury was received by the appellant to his lumbar spine. I have earlier remarked that there is no statement of the appellant in evidence. There is thus no direct evidence as to the appellant’s state of health, particularly with respect to his lumbar spine, prior to the collision. The Commission is not bound by the rules of evidence but may inform itself on any matter in such manner as the Commission thinks appropriate and as the proper consideration of the matter permits: section 354 of the 1998 Act. It is clear from the reports of Dr Harvey and Dr Vote that the appellant gave a history of no back disability suffered pre-injury. A similar history was recorded by Dr Wilson in the United Kingdom in May 2008. It was noted by Dr Wilson that the appellant was “highly active physically before the car crash” and that he had played rugby, basketball, competitive sailing and had worked as a builder. There is no evidence before the Commission that suggests the appellant had experienced any painful symptoms or disability in his lumbar spine prior to the collision. I am satisfied on the evidence found in the various reports I have referred to that the appellant had no pre-injury history of lower back disability.
Dr Harvey had a history recording the onset of the lower back pain occurring on the day after the collision. This history as recorded is at odds with other evidence. The most compelling evidence as to the correct history is to be found in the report of Dr Piliotis where lumbar spine symptoms were reported to his colleague at the Bondi Junction practice on the very day of the collision. At the time of his report of 10 December 2007, Dr Vote stated that he understood that the appellant did not immediately attend a hospital following the collision but developed lower back pain and also cervical spine discomfort within 48 hours. Dr Vote’s understanding of the facts is to be contrasted with the history which was recorded by Dr Wilson in May 2008 being that the appellant developed immediate symptoms in his neck and lumbar region and attended a medical centre. Having regard to the state of the evidence, I am satisfied that the appellant in fact experienced immediate lumbar spine discomfort following the collision, and I so find.
The appellant had consistently complained of severe and disabling pain in his lower back. He had consulted a vast array of medical practitioners whose specialties range from pain management through to spinal surgery. It is clear from the evidence that those practitioners consulted by the appellant during the first several years following the collision considered that, whatever be the diagnosis, conservative treatment was indicated or, particularly, surgery was not indicated.
The radiological investigations, which have been extensive, do reveal abnormalities at L4/5 and L5/S1. The significance of the changes at those levels had been the subject of variable opinions expressed by the medical practitioners who had treated the appellant and those who had been qualified to provide an opinion for the purpose of this litigation. Dr Harvey at the time of his examination in June 2005 had the advantage of x-rays of the lumbar spine and other radiological investigations which focused on other levels of the spine. He did not have the advantage of subsequent investigations including the MRI study and discography. It was Dr Harvey’s view that the appellant had suffered soft tissue injuries to the lower back but that they could not have been of great severity. He was of this view because of the history taken that the appellant had not developed symptoms until the day following the collision. Dr Harvey stated that had he suffered an injury of any magnitude to the lower back one would expect the onset of symptoms to be immediate (page 5 of report dated 6 June 2005).
In contrast to the views expressed by Dr Harvey there is the evidence of Dr Diwan who concluded that there were abnormalities at the lumbar level of sufficient severity to justify surgical intervention. Dr Diwan had the advantage of an MRI scan and the knowledge that the appellant’s discogram “was concordant for pain in both levels”. The MRI scans have demonstrated abnormalities at L5/S1 and L4/5.
The opinion of Dr Diwan is reinforced when one examines the report of Dr Vote dated 10 December 2007. Dr Vote had the benefit of the MRI studies which he reported showed significant abnormalities at the lower two lumbar discs. Dr Vote further observed that the appellant underwent a discography which showed a significantly positive response at L4/5, and a marked response at L5/S1. The most significant feature of Dr Vote’s evidence is that he specifically addressed the question of the existence or otherwise of a relationship between the appellant’s complaints and the collision. I have summarised Dr Vote’s evidence concerning this question at [45] above.
The views of Dr Diwan and Dr Vote correspond in important respects with the views expressed by Dr Wilson which I have noted at [49] above. I consider the evidence of Dr Wilson concerning the provocative discography conducted by him upon the appellant is of particular significance. The response recorded by Dr Wilson corresponds to the matters recorded concerning the discography conducted in Sydney. The weight of the evidence, in my view, supports a conclusion that Dr Vote’s opinion as expressed is correct, and that as a result of the subject collision the appellant suffered an aggravation of a pre-existent asymptomatic degenerative condition of his lumbar spine, giving rise to disabling symptoms which have persisted to the present. The question as to whether those symptoms are incapacitating is addressed below. It is apparent that I prefer the evidence of Dr Diwan, Dr Vote and Dr Wilson to the opinion of Dr Harvey. I have rejected Dr Harvey’s opinion given that he had an inaccurate history, albeit apparently provided by the appellant, and that he did not have the benefit of all subsequent radiological investigations which have been relied on by the other practitioners.
One matter I have taken into account when assessing the expert medical evidence which is before the Commission is the failure on the part of the respondent to tender any evidence from Dr Bye. The failure to call that evidence is not explained and, as earlier noted, objection was taken by the respondent to the tender of that report by the appellant. In the circumstances, as is permitted having regard to the decision in Jones v Dunkel (1959) 101 CLR 298, I infer that the evidence of Dr Bye would not have advanced the respondent’s case.

Incapacity

Reliance is placed by the respondent upon the surveillance films to support the submission that the appellant had overstated the extent of his back disability when describing his restrictions to the various medical practitioners. The appellant is seen in the film apparently working. At no time is the appellant seen performing any heavy or arduous activity and indeed on one occasion appeared to place his hand in the small of his back as he descended a driveway. I infer that his actions on that occasion probably demonstrates that he was experiencing discomfort.
It is correct as emphasised by the respondent that the film records the appellant playing golf. That golfing activity occurred in 2006 and 2007 and shows the appellant swinging his golf club on numerous occasions. The appellant is also seen leaning forward to reach the golf ball and tee. He is seen walking in the company of his fellow players either pushing or pulling a golf buggy. The appellant had at all relevant times stated that he continued to work following his injury, however he was restricted concerning his physical activities. The film in no way contradicts what had been stated by the appellant. I have considered the evidence which records the appellant playing golf and I conclude that his activities in no way contradict the manner in which he had presented to the various medical practitioners nor does it contradict his statements from time to time as to the extent of his disability. Whilst it is reasonable to infer that swinging a golf club would place a degree of strain upon the lumbar spine, the activity demonstrated on the film is not such as to raise serious doubt concerning the appellant’s credit. I observed, as is recorded by the investigator in his report, that the appellant on occasion demonstrated what appeared to be discomfort in his back whilst on the golf course. It has been suggested by the appellant in the course of his submissions that he had been advised by physiotherapists to attempt “minimal physical activity”.
I accept that the appellant has, since the subject accident, experienced significant pain and discomfort in his lumbar spine. The condition of his back has limited his physical capacity and I accept that he has been and remains incapacitated for his pre-injury work as a builder/carpenter. Dr Wilson in his report dated 28 May 2008 recorded that the appellant’s spine “has become progressively dysfunctional since [the subject accident] and has gradually deteriorated”. Dr Assadourian certified that the appellant had been unfit to work from 19 February 2008 to the present time. In his report dated 14 September 2009, Dr Assadourian recorded that the appellant was undergoing rehabilitation following his surgery and that at the time of that report he remained “unable to pursue employment”. I conclude having regard to the evidence generally that the appellant has since February 2008 to the present been totally incapacitated for work.
The appellant is entitled to an award in respect of weekly payments. The Commission is confronted with the task of quantifying the appellant’s entitlement to weekly compensation. The state of the evidence is such that, regrettably, the computation cannot be made on this appeal. The first difficulty is that there is no evidence as to whether any payment made to the appellant to date represents entitlement pursuant to section 36 of the 1987 Act. Another difficulty arises by reason of the absence of evidence to enable calculation of the appellant’s current weekly wage rate or average weekly earnings. Without such evidence, the Commission is unable to determine the appellant’s entitlement in respect of total incapacity whether pursuant to section 36 and/or section 37. It is therefore necessary to remit the matter to another Arbitrator for the purpose of quantifying the appellant’s entitlement to weekly compensation. The Arbitrator may make appropriate directions concerning presentation of evidence which would enable calculation of the appellant’s average weekly earnings in accordance with section 43 and, if relevant, his current weekly wage rate by reference to section 42. It appears that some agreement has been reached between the parties in relation to payments made in the past. It is to be hoped that such agreement can be reached in relation to the matters relevant to quantification of the appellant’s entitlement in respect of his total incapacity. It may be that the evidence supports an award at the maximum statutory rate (section 37), however such an assumption cannot be made on this appeal.

Section 53

The appellant, having resided in the United Kingdom since December 2007, is only entitled to receive compensation payments from that date in the event that the Commission determines that his incapacity for work resulting from the injury is likely to be of a permanent nature: section 53. The term “incapacity” as it appears in section 53 was considered by Roche DP in Datta where reference was made to the decision of Bishop CCJ in Harvey v Fliway – AFA International Pty Ltd [1994] NSWCC 6; (1994) 10 NSWCCR 51 and the following observation was made at [45]:
“Whilst I agree that the reference to incapacity in section 53 is probably a reference to incapacity in a medical sense, the incapacity must be an ‘incapacity for work’ and I do not understand his Honour to have found otherwise. Thus, it is not sufficient for a worker to establish only that he or she has a medical condition, or loss, that is likely to be of a permanent nature. The medical condition or impairment must be one that has caused an incapacity for work, though it may not result in an entitlement to an award of weekly compensation at the time the claim is heard because, at that time, there is no economic loss…”
I have earlier at [104] found that the appellant has been totally incapacitated for work from February 2008 to the present. It remains to be determined as to whether incapacity is likely to be of a permanent nature. The terms “likely” and “permanent nature” were also considered by the Commission in the matter of Datta. I respectfully agree with the conclusion reached in Datta that “incapacity is ‘likely to be of a permanent nature’ within the meaning of section 53, if it is an incapacity that is lasting and likely (on the balance of probability) to be of an indefinite duration. It does not mean a perpetual state of affairs that will continue for all time” (at [52]).
The appellant has suffered disabling symptoms in his lumbar spine since June 2004. I have earlier accepted that the symptoms experienced by the appellant since that time have deteriorated. He has undergone a significant spinal surgical procedure at two levels. He continues to undergo rehabilitation following that surgery. It is Dr Cameron’s opinion that the appellant presently suffers permanent impairment caused by the injury assessed at 20 percent WPI. That assessment has been made in accordance with the American Medical Association’s Guide to Evaluation of Permanent Impairment (fourth edition) and the Motor Accident Authority’s Impairment Assessment Guidelines. In July 2009, Dr Wilson expressed the view that “it will take a good two years for (the appellant’s) rehabilitation to peak”. Dr Vote’s view, which I have accepted, is noted at [45] above. I am satisfied that the evidence establishes that the appellant’s incapacity for work resulting from the injury is likely to be of a permanent nature within the meaning of section 53. It follows that, once the appellant’s entitlement to weekly compensation has been quantified he will become entitled to receive such payments whilst he remains absent from Australia given the terms of the determination I have just made. That such entitlement may be ordered retrospectively is not in doubt (see Slack v Crop Equities Pty Ltd (1985) 9 NSWLR 231).

DECISION

The appeal is upheld and orders 1 and 2 made by the Arbitrator as appear in the Certificate of Determination dated 12 February 2010 are revoked. The following determination and orders are made in their place:
“1. It is determined that the applicant’s incapacity for work resulting from injury received on 18 June 2004 is likely to be of a permanent nature within the meaning of section 53 of the Workers Compensation Act 1987.
2. The title of the respondent is amended by deleting reference to ‘GIO General Limited – agent for NSW Workcover Scheme’ and substituting ‘Dream Homes (NSW) Pty Ltd (in liquidation)’.
3.A declaration is made that Dream Homes (NSW) Pty Ltd (in liquidation) has entered into a contract with GIO General Limited in respect of liability under the Workers Compensation Act 1987 to the applicant, and that Dream Homes (NSW) Pty Ltd has ceased to exist.
4.The respondent is to pay the applicant’s costs of the application.”
The matter is remitted to another Arbitrator for determination of the quantum of the applicant’s weekly entitlement in respect of incapacity from 28 February 2008 to the present and continuing.

COSTS

The respondent is to pay the appellant’s costs of this appeal.

Kevin O’Grady
Deputy President
9 June 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