Falee v Harris Farm Markets Pty Ltd - [2010] NSWWCCPD 82

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Falee v Harris Farm Markets Pty Ltd [2010] NSWWCCPD 82
APPELLANT:		Yar Mohammad Falee
RESPONDENT:		Harris Farm Markets Pty Ltd
INSURER:		QBE Workers Compensation (NSW) Ltd
FILE NUMBER:		A1- 991/10
ARBITRATOR:	Mr G Charlton
DATE OF ARBITRATOR’S DECISION:		28 April 2010
DATE OF APPEAL DECISION:		4 August 2010
SUBJECT MATTER OF DECISION:		Injury; claim for lump sum compensation; referral to Approved Medical Specialist
PRESIDENTIAL MEMBER:		Deputy President Bill Roche
HEARING:		On the papers
REPRESENTATION:		Appellant:	P K Simpson & Co
Respondent:		Bartier Perry
ORDERS MADE ON APPEAL:		Paragraph 2 of the Arbitrator’s determination of 28 April 2010 is revoked and the following order made in its place: “2. The applicant worker’s claim for compensation for whole person impairment as a result of injury to his cervical spine (neck) on 10 January 2006 is remitted to the Registrar for referral to an Approved Medical Specialist for assessment. The referral is to include all documents included in the evidence file, save for the report from Dr Nash dated 10 March 2009 and the report from Dr Dave dated 12 August 2006.” Paragraphs 1, 3, 4, 5 and 6 of the Arbitrator’s determination are confirmed. The respondent employer is to pay the appellant worker’s costs of the appeal, assessed at $600.00 plus GST.

BACKGROUND

The appellant worker, Mr Falee, started work as a cool room attendant for the respondent employer, Harris Farm Markets Pty Ltd, on or about 7 December 2005.
He alleges that, on 10 January 2006, he injured his back, neck, left shoulder, bowel and liver as a result of lifting boxes of fruit in the course of his employment with the respondent employer.
Mr Falee originally claimed compensation in the Commission in an Application to Resolve a Dispute registered on 28 March 2007. In that application, he alleged that he injured his “abdomen, lumbar spine, right lower extremity, left lower extremity, sexual organs, and anxiety and/or depression” as a result of lifting boxes of fruit on 10 January 2006 and/or as a result of the “nature and conditions of his employment”. Those proceedings were resolved by consent orders filed on 2 May 2007, under which the respondent employer agreed to pay the worker’s hospital and medical expenses and costs. In addition, the parties agreed to file a Complying Agreement providing for the payment of $12,500.00 in respect of an agreed 10 per cent whole person impairment as a result of injury to the worker’s lumbar spine. That Agreement was signed on 16 May 2007.
Under consent orders signed on 15 October 2009, the respondent employer agreed to pay compensation in respect of an additional two per cent whole person impairment as a result of the worker’s injury to his lumbar spine.
In an Application to Resolve a Dispute (‘the Application’) registered in the Commission on 10 February 2010, Mr Falee sought hospital and medical expenses in the sum of $6,832.84, together with compensation for a two per cent whole person impairment as a result of injury to his lower digestive tract, five per cent whole person impairment as a result of injury to his cervical spine, and six per cent whole person impairment as a result of injury to his left upper extremity. His impairments were alleged to have resulted from injury to his back, neck, left shoulder, bowel and liver as a result of lifting boxes of fruit at work on 10 January 2006.
The respondent employer disputed that Mr Falee injured his neck or left shoulder arising out of or in the course of his employment and, if he had received such injuries, that his employment was a substantial contributing factor to such injuries.
The Commission listed the matter for conciliation and arbitration on 12 April 2010. On that day, Mr Falee’s counsel consented to an award being entered for the respondent employer in respect of the alleged injury to the left shoulder, and withdrew the claim for hospital and medical expenses. The respondent employer consented to the claim for whole person impairment in respect of the lower digestive system being referred for assessment by an Approved Medical Specialist (‘AMS’). As a result, the only matter in dispute at the arbitration was whether Mr Falee injured his neck when lifting boxes of fruit in the course of his employment on 10 January 2006. The Arbitrator resolved that issue in favour of the employer on the ground that there was insufficient evidence to establish even a minor injury to the neck on that day.
The Commission issued a Certificate of Determination on 28 April 2010, setting out the Arbitrator’s orders as follows:

“The Commission determines:
1.By consent, award in favour of the Respondent in respect of the Applicant’s claim for injury to the left shoulder on 10 January 2006.
2.By determination, award in favour of the Respondent in respect of the Applicant’s claim for injury to the cervical spine on 10 January 2006.
3.That the Applicant’s claim for section 60 of the Workers Compensation Act 1987 expenses is discontinued.
4.That, since:
(i)the Respondent does not dispute that on 10 January 2006 the Applicant sustained a personal injury to his lower digestive system (bowel) in the course of, or arising out of, his employment with the Respondent, and that the Applicant’s employment with the Respondent was a substantial contributing factor to such injury; and
(ii)the sole issue in dispute between the parties is the extent (if any) that the Applicant has permanent impairment resulting from such injury, the claim for permanent impairment pursuant to s66 of the 1987 Act arising out of such injury is remitted to the Registrar for referral to an Approved Medical Specialist in accordance with s293 of Workplace Injury Management and Workers Compensation Act 1998.

5.That the requirement to file a Notice of Discontinuance pursuant to Rule 15.7(3) of the Workers Compensation Commission Rules 2006 is dispensed with.
6.That the Respondent pay the Applicant’s costs as agreed or assessed.”

In an appeal filed on 17 May 2010, Mr Falee seeks leave to appeal the Arbitrator’s determination.

LEAVE TO APPEAL

Monetary threshold

Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).

It is not disputed that the monetary thresholds in section 352(2) of the 1998 Act are satisfied.

Time

The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.

I grant leave to appeal.

ON THE PAPERS

Section 354(6) of the 1998 Act provides:

“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”

Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.

ISSUE IN DISPUTE

The issue in dispute is whether the Arbitrator erred in making an award for the respondent in respect of the worker’s allegation that he injured his neck (cervical spine) on 10 January 2006.

THE EVIDENCE

Lay evidence

Mr Falee completed an employee’s report of injury form on 6 February 2006, in which he said that he felt pain about 23 days earlier because of lifting in the cool room. He described his injury as “back pain”. He described the parts of his body affected as “lower back and effect [sic] to [indecipherable]”.
The employer’s report of injury form completed on 8 February 2006 described the worker’s injury or condition as “back”.
Mr Falee’s evidence is set out in three statements, the first dated 12 March 2007, the second dated 5 May 2009, and the last dated 10 July 2009.
In his first statement, Mr Falee described his injury in the following terms:
“4. On or about 10 January 2006 I suffered injury to my abdomen, back, right leg, left leg, sexual organs, anxiety and/or depression as a result of lifting boxes of fruit. The injury happened at [the] respondent’s premises at Broadway. At the time of the injury, I was working as a Cool Room Attendant.”
He said that he continued to suffer from symptoms affecting his abdomen, back, right leg, left leg, sexual organs, and anxiety and/or depression. He told all of his doctors of the details of his injury.
In his second statement, Mr Falee said that his duties required him to bend, lift, side-twist, carry and manhandle heavy items many times each day. On this occasion, he described his injury as follows:
“4. On or about 10 January 2006 I hurt my back, neck, right leg, left leg, right arm, left arm, digestive system, liver, sexual organs, bowel function, psoriasis, anxiety and/or depression. I believe the injury has also caused symptoms that affect the proper use or cause impairment of [my] back, neck, right leg, left leg, right arm, left arm, digestive system, liver, sexual organs, bowel function, psoriasis, anxiety and/or depression.”
Mr Falee added that he hurt himself as a result of lifting boxes of fruit at the respondent employer’s premises at Broadway. He said that he was taken to the emergency department of Prince of Wales Hospital and treated with medication. He then consulted his general practitioner, Dr Salem, who certified him fit to return to work on restricted duties. Dr Salem then referred him to Dr Diwan. As a result of increasing symptoms, Mr Falee came under the care of Dr Manohar and received physiotherapy and hydrotherapy treatment. He also consulted two neurosurgeons, Dr Balsam and Professor Van Gelder. Surgery was recommended, but Mr Falee was “reluctant and scared”.
As a result of his chronic pain, Mr Falee developed reactive depression and sought treatment from Dr Kaye. He has been prescribed antidepressant medication.
In his third statement, Mr Falee said that he injured himself at work on 10 January 2006, but worked until 25 January 2006. The pain in his low back and both legs was “very intense”. He added:
“6. I went to the Prince of Wales Hospital for treatment on 26 January 2006. I also had pain in my neck because of my injury at this time but I did not mention it as the focus of myself and the doctor at Prince of Wales Hospital was my severe pain in my low back and legs.
7. After going to Prince of Wales I consulted my GP – Dr Salem about my injury. Once again, my focus and the focus of the doctor was the severe pain in my back and both legs. However, I did have neck pain at this time. I mentioned the complaint of neck pain to my doctor but he said: ‘Maybe it is related to your back’, so he didn’t record it on my WorkCover Certificate on my first visit.”
Mr Falee said that he continued to experience neck pain over the period from 26 January 2006 to 16 September 2008, but he was “focused on” his severe back pain and pain in the legs.
By 16 September 2008, the pain in his neck became so intense that he mentioned it to Dr Salem and Dr Manohar, who arranged for a CT scan of his neck on 19 September 2008 and an MRI scan on 26 September 2008.
Mr Falee added that his left shoulder was also injured on 10 January 2006 and that all the comments he made about his neck also applied to his left shoulder. From September 2008, he received active treatment for his left shoulder because of the increased severity of his pain in that shoulder.

Medical evidence

The first medical evidence is a WorkCover medical certificate from Prince of Wales Hospital dated 26 January 2006, which certified Mr Falee to be unfit for work because of “mechanical back pain”.
Dr Salem’s clinical notes reveal that he saw the worker on a date in February 2006. The notes record:
“Recent onset of low back pain   seen POWH casualty.
Area mechanical back pain   lifting boxes at Harris Farm
Bilat [sic] leg radiation [sic]   upper cervical pain.”
Dr Salem also recorded “upper neck NAD – muscular back pain Feldene”.

Mr Falee remained under Dr Salem’s care and saw him on many occasions through 2006, 2007 and 2008. The notes make no further reference to neck pain until 5 October 2008, when there is a reference to “cervical pain/[indecipherable] need CT scan”.
Dr Salem also provided a medicolegal report on 20 August 2009, in which he recorded the following history:
“Mr Falee was referred to myself from Prince Wales Hospital for follow up to a recent lower back and neck injury due to lifting of fruit boxes on 10/01/2006 sustained at Harris Farm market (Broadway Branch).
Initially, he complained of cervical pain but owing to the mechanical nature of his injury, focus was directed more to his lower back, yet owing to progressive pain and mobility impairment, it was decided that his neck [was] to be investigated on 19/09/2008 when he was sent for a Cervical CT Scan examination.”
A CT scan of the lumbar spine on 6 March 2006 revealed a large left posterolateral focal disc protrusion at L5/S1, causing compression of the nerve roots. Dr Salem referred the worker to Dr Diwan for examination of his lower back on 4 April 2006.
Dr Salem stated that the first time he mentioned the worker’s neck on a WorkCover certificate was on 5 October 2008 “after reviewing his Cervical CT scan and MRI Result when actual injury was tested”.
Records from the Spine Service St George Hospital UNSW (‘St George Hospital’) dated 5 April 2006 reveal a “tick” for low back and left leg, but no mark against “neck”. In answer to the question of how bothersome his symptoms were, Mr Falee ticked “not at all” against “neck pain” and “arm pain”. On a scale of zero to 10, where zero was no discomfort and 10 was unbearable, Mr Falee ticked “0” against “neck”. In a diagram included in the records, the location of the pain is indicated as the lumbar region, with a line drawn down the whole of the left leg to the foot. There are no markings on either the neck, shoulders or arms.
Dr Diwan reported to Dr Salem on 5 April 2006. He recorded that Mr Falee’s presenting complaint was of low back pain and left leg pain, which started on 15 February 2006 while lifting heavy material in the cold room at Harris Farm. On examination, cervical spine range of movement was pain-free and upper limb neurology was normal. He confirmed that the CT scan revealed a significant herniation at L5/S1 in the lumbar spine.
At the request of the respondent employer’s insurer, QBE Workers Compensation (NSW) Ltd (‘QBE’), Dr Spittaler, consultant neurosurgeon, examined Mr Falee on 21 April 2006 and reported on 24 April 2006. He took a history that Mr Falee’s duties were quite heavy and that, in January 2006, he noted “several weeks of increasing lower back pain”. He continued working until late January, when he developed severe low back pain while lifting boxes in the cool room. Soon after, he developed left leg pain. By the time of Dr Spittaler’s examination, the low back pain had reduced and the major problem was the left leg pain. Dr Spittaler recorded no complaint of neck symptoms and did not examine the worker’s neck or shoulders. He diagnosed a left L5/S1 disc prolapse.
Mr Falee again attended at St George Hospital on 4 May 2006. Again, in answer to the question about how often he had neck pain, Mr Falee ticked “never”. In contrast to this answer, he recorded on the following page that his neck symptoms were “somewhat” bothersome. He then answered that, on a scale of zero to 10, his neck discomfort was zero.
Mr Falee again attended at St George Hospital on 7 September 2006. The records for that date indicate that he still had pain in his back and left leg. He said that he had neck pain “infrequently” (once in four months) and that his neck pain was “slightly” bothersome. On a scale of zero to 10, he ranked his neck discomfort at one.
Mr Falee saw Dr Manohar, consultant physician, on 4 December 2007, on referral from Dr Salem. Dr Manohar took a history of low back pain extending down the left leg to the left heel. Dr Manohar referred the worker to Dr Darwish, neurosurgeon.
In his report of 12 December 2007, Dr Darwish recorded that the worker presented with lower back pain and left sciatica that started after a work-related accident when he was lifting heavy fruit boxes.
Mr Falee saw Dr Manohar on several occasions for his low back pain in 2008. On 16 September 2008, Dr Manohar recorded a complaint of neck ache extending across the shoulders. He asked the worker to obtain a letter from his family physician “relating the neck pain to his work-related injury”. It is unclear if Dr Salem provided that letter, but, in his report of 20 August 2009, Dr Salem stated:
“On 16/9/08 Dr Manohar requested my opinion as to whether his neck symptoms were work-related. After reviewing CT scan results and his job history at Harris Farm Market, where he was working as a cool room attendant with a lot of lifting, pulling and pushing of fruit boxes, which he then had to tacked [sic] then on to shelves and twisting neck and back at the same time are involved and also his previous complaint about neck and using a twisting movement of his neck and back, it is my opinion that his neck and back injury are work-related.”
A cervical MRI scan on 26 September 2008 revealed:
“Minor disc bulging at C4/5, C5/6 and C6/7. On the left side at C6/7 there was a cystic structure at the exit foramen, which was consistent with a perineural cyst. The radiologist felt that the cyst may have accounted for the worker’s left-sided symptoms and stated that ‘correlation with the affected dermatome [was] advised’.”

After referring to the MRI scan, Dr Salem stated in his August 2009 report:
“He complained about his cervical pain on the day of his injury at Harris Farm Market. He was experiencing minor burning sensations on his lower cervical spine, which extended to his upper cervical spine. Over the last 3½ years, he has experienced minor to significant neck pain. His neck pain intensified and extended to his left shoulder and arm. I examined his cervical spine due to increase of pain. After the examination I found there was an injury to his cervical spine as well.”
Dr Manohar first examined Mr Falee’s neck and shoulders on 23 September 2008, when cervical flexion, extension, rotation and side flexion bilaterally were “uncomfortable”. He added that Mr Falee said he was “lifting and twisting” and that he related these symptoms to “these activities at work”.
Dr Salem referred the worker to Sydney Trauma Clinic in September 2008. Mr Falee was assessed at that clinic on 12 September 2008. In a report dated 3 October 2008, Ms Issavi, consulting psychologist, recorded that Mr Falee injured his lower back whilst lifting fruit boxes.
Associate Professor Van Gelder examined Mr Falee on 22 October 2008 and reported to QBE on 28 October 2008. He took a history of the worker’s back and neck pain. In respect of the cervical MRI scan, he noted the perineural cyst at C7 and stated that it correlated “with his neck and left arm symptoms”.
Dr Kwong, consultant physician and rheumatologist, examined Mr Falee for medicolegal purposes on 23 February 2009 and reported on the same day. He took a history that the worker developed back pain in early January 2006. He reported his symptoms, but continued to work as a stacker. On 10 January 2006, he “had a lifting injury at work and developed back and severe left leg pain”. He was taken to Prince of Wales Hospital and saw Dr Salem. He returned to work on modified duties in February 2006, but stopped after three days because of worsening back and left leg pain. The worker said he also developed neck pain in 2006 and initially thought the pain was related to his back and did not seek treatment. His case was settled in May 2007, but, since then, he has had a progressive worsening of his back and left leg pain. He had a “flare of neck pain in September last year”. As at February 2009, Mr Falee complained of constant pain in his back and left leg. He also had left-sided neck pain most of the time and intermittent pain in his left arm. Among other things, Dr Kwong diagnosed a cervical strain.

Dr Kafataris, injury management consultant, provided an injury management assessment on 6 April 2009. He took a history that Mr Falee developed pain in his lumbar spine approximately two weeks prior to the date of injury. He asked for lighter work, but was asked to continue his normal job and, “on the date of injury awoke from his bed unable to get out of bed due to severe lower back pain”. During the course of the consultation, Mr Falee “perseverated about coexisting neck pain”. He said that he complained of cervical pain “at the same time but his back pain was more severe”. Mr Falee readily admitted that his cervical pain had only become a “more significant issue” in the past seven to eight months. Dr Kafataris felt that “liability for his cervical symptoms will need to be formally assessed”. It was “much less likely” that a perineural cyst was due to trauma and more likely that it was a “developmental or co-existing condition”.
Dr Stephen, orthopaedic surgeon, examined Mr Falee for medicolegal purposes at the request of QBE on 28 April 2009. In his report of 30 April 2009, Dr Stephen recorded that the worker began to develop back trouble in January 2006. It became most evident on 10 January 2006 when he was lifting boxes and twisting all day, and he developed back pain and left leg pain. He said that he developed neck pain “about the same time”, but it was not nearly as troublesome as his back.
Dr Stephen considered that the radiological findings for the neck were “unremarkable”. There was no evidence radiologically of any nerve root compression that would produce a radiculopathy consistent with the left arm symptoms of which Mr Falee complained. There were marked inconsistencies on physical examination, such as voluntary restriction of cervical movements, a complaint of cervical pain at the extremes of shoulder rotation, and quite early on shoulder elevation on the left side and a little later on the right side, and widespread tenderness. The one definite physical diagnosis that emerged was that of a left-sided lumbosacral disc prolapse with a left-sided S1 radiculopathy. Dr Stephen did not believe that Mr Falee sustained any “significant neck injury” on 10 January 2006. He did not believe the cervical and shoulder symptoms were consistent with the history given.
Dr Salem provided a short handwritten report on 8 June 2009, in which he stated:
“Initial complaint/predominant
lower back pain/discal in origin – also admitted cervical pain.
Primary attention given to his back due to history of heavy weight-lifting.
8 month [sic] ago owing to persistent cervical pain – the neck region was investigated.”
Dr Bolin, Associate Professor of Medicine at the University of New South Wales, examined Mr Falee for medicolegal purposes in respect of his claim for impairment as a result of the condition of his digestive tract on 26 May 2009. In his report of 24 June 2009, Dr Bolin recorded that Mr Falee complained of low back pain “with a little neck pain” on 10 January 2006. His low back was investigated with a CT scan. His neck pain “subsequently became severe during the past 9 months”.
Nerida Grewal, clinical nurse co-ordinator with St George Hospital, reported to QBE on 28 August 2009 that:
“… at no time was it mentioned or indicated, as per Dr Diwan’s reports, and patient information questionnaires, that this gentleman was suffering at that time with cervical spine issues. In fact, he had stated that he had only had low back pain and leg pain. All treatments and recommendations for the period of consultation with Dr Diwan were thoraco-lumbar related, particularly the lumbar spine at that time. The injury to the lower back was quite significant at that time and surgery had been recommended.
The issue that would need to be taken into consideration would be that the spine, as a whole generally, is connected, and issues affecting or restricting movement and physical ability in one area can be known to affect areas surrounding the main area of injury due to added stressors caused by the injury itself being imposed on those surrounding areas.”
Dr Peter Giblin, AMS and orthopaedic surgeon, assessed the worker’s degree of permanent impairment as a result of his back injury on 2 September 2009 and issued a Medical Assessment Certificate on 8 September 2009. He took a history that Mr Falee developed pain in his low back radiating into both legs on 10 January 2006.

THE ARBITRATOR’S REASONS

After reviewing the evidence and submissions, the Arbitrator concluded that, in the absence of complaints of neck symptoms from 2006 until September 2008, the evidence supported a conclusion that “any initial symptoms in the neck from the incident in January 2006 had resolved” (Statement of Reasons at [21]). He added that there was “insufficient evidence to establish even a minor injury to the neck on 10 January 2006 within the meaning of s 4 of the 1987 Act” (Reasons at [22]). Even if the incident on 10 January 2006 resulted in an “insignificant neck injury”, such an injury would not have “given rise to work being a substantial contributing factor in relation to the neck pathology experienced from 2008, within the meaning of s 9A” (Reasons at [22]). The Arbitrator therefore concluded that the worker had not discharged the onus of proof in relation to the claimed injury to the cervical spine.

SUBMISSIONS, DISCUSSION AND FINDINGS

It was submitted on behalf of the worker that:
(a)     the finding that there was no separate injury to the cervical spine is contradicted by all the medical and lay evidence. Complaints of pain were made “for some period” after the injury and before treatment for the neck started in earnest. Dr Stephen stated that he did not believe any “significant neck injury” had been sustained on 10 January 2006;
(b)     Dr Salem’s report explained that, as a result of the significant back pain, there had not been a constant complaint of neck pain after the initial complaint in February 2006;
(c)     the Arbitrator wrongly stated that Dr Salem made no mention of the MRI scan of 26 September 2008. In fact, Dr Salem referred to the MRI scan at page 2 of his 2009 report;
(d)     the Arbitrator erred in concluding that Dr Kwong’s opinion should carry little weight because he failed to comment on the cyst at C6/7;
(e)     the Arbitrator erred in applying the principles in Haroun v Rail Corporation NSW & ors [2008] NSWCA 192; (2008) 7 DDCR 139 (‘Haroun’). The Arbitrator was asked to determine injury. All the evidence points to the worker’s neck having been hurt in the injurious event, even if the pathology is described as “soft tissue”. It is then a matter for an AMS to determine if permanent impairment has resulted from the injury, and
(f)   the Arbitrator erred in considering the weight and quality of the medical evidence.
It has been submitted on behalf of the respondent employer that:
(a)     there is evidence that the worker’s cervical symptoms have resulted from the cyst at C6/7;
(b)     though the worker complained to Dr Salem of “upper cervical pain” in February 2006, there were no further complaints of cervical pain until he saw Dr Manohar on 16 September 2008. Forms completed for St George Hospital (Dr Diwan) did not suggest the worker’s neck symptoms were related to the work injury;
(c)     Dr Manohar did not identify any neck pathology;
(d)     Dr Salem failed to provide a conclusive opinion in regard to the cervical spine injury and did not address the possibility that the cyst was causing the neck pain;
(e)     the radiological evidence revealed minor bulges in the lower thoracic region, together with a cyst at C6/7. That evidence was not consistent with the worker’s initial complaint of pain in the upper cervical spine. Dr Salem failed to explain the discrepancy between the worker’s initial complaint of neck pain in the upper cervical spine and the later complaint in the lower cervical spine. He failed to provide an opinion as to the mechanism of injury. Rather than dealing with an event on 10 January 2006, Dr Salem referred to pushing and pulling fruit pallets and lifting fruit boxes;
(f)   if Dr Salem had discussed the MRI scan in more detail, he may have come to a different conclusion;
(g)     the Arbitrator was justified in giving little weight to Dr Kwong’s report. Dr Kwong ignored the cyst and only diagnosed a cervical strain, without explaining the mechanism that caused the injury;
(h)     other than the notation by Dr Salem in February 2006, there is no evidence of any cervical spine pain caused by the work injury until Dr Manohar examined the worker in September 2008;
(i)   there is no evidence to suggest that the cyst was caused by work, and
(j)   the worker failed to establish that, as a consequence of the work injury on 10 January 2006, he suffered pathology in the cervical spine which was consistent with his initial complaint of pain in the upper cervical spine. Therefore, the worker failed to establish a cervical spine injury.
The respondent employer’s submissions have failed to properly address the issue in dispute. That issue is whether Mr Falee injured his neck at work on 10 January 2006. There is no dispute that he injured his low back on that day and, similarly, there is no dispute that he complained of neck symptoms to Dr Salem in early February 2006. Whether he complained of upper cervical symptoms or lower cervical symptoms is not determinative. Therefore, the worker’s complaint of neck symptoms having arisen from his duties on 10 January 2006 is corroborated by Dr Salem’s clinical notes and his later report.
It is also not disputed that Mr Falee suffered a major disc prolapse in his lumbar spine. That injury caused significant pain and discomfort and became the clear focus of attention in treatment provided in the subsequent months. This was confirmed in Dr Salem’s report of August 2009, where he said that, though Mr Falee initially complained of cervical pain, the focus was directed to his lower back.
It may well be, as the respondent employer has submitted, that Mr Falee’s current neck symptoms are due to the cyst at C6/7. However, the issue before the Commission is whether Mr Falee injured his neck while lifting boxes on 10 January 2006. His assertion that he did is supported by Dr Salem’s clinical notes and by his report of August 2009, which concluded that both the neck and back injuries were work-related. He based that opinion on the nature of the duties undertaken by Mr Falee at work. That conclusion was perfectly logical and consistent with the history. It provided a fair climate for the acceptance of the doctor’s conclusion (Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 at 509-10; (1985) 59 ALJR 844; [1985] HCA 58).
The respondent employer’s submissions do not go to the occurrence of an injury, but to its consequences. In a case where the only compensation claimed is lump sum compensation, the question of assessment of whole person impairment is exclusively a matter for an AMS (Haroun). It may well be that most, if not all, of Mr Falee’s neck symptoms have resulted from the C6/7 cyst, but, in the circumstances of this case where the only issue is injury, whether that is in fact the case is a matter for an AMS.
That Mr Falee injured his neck at work on 10 January 2006 is also supported by Dr Stephen who concluded that he did not believe “any significant neck injury” had been sustained on that day. It follows that he effectively conceded that, accepting the history, Mr Falee did injure his neck on 10 January 2006, though it was not a significant injury. In these circumstances, the question is whether Mr Falee has a whole person impairment as a result of that injury.
Had Mr Falee claimed compensation for medical expenses or weekly compensation, it would have been necessary for the Commission to determine whether the effect of the neck injury had ceased. However, he made no such claim in the present application. Therefore, as injury is established and, as the only remaining issue is the quantum of whole person impairment as a result of that injury, that issue must be referred to an AMS for assessment.
Though it is irrelevant to the AMS’s assessment, I note that there is no evidence to suggest that the cyst at C6/7 was either caused or aggravated by the events at work on 10 January 2006. I also note that the overwhelming evidence is that Mr Falee suffered no more than minor strain to his neck on 10 January 2006 and that the effect of that strain resolved within a few weeks. The evidence in support of that conclusion is found in the worker’s claim form (which referred only to a back injury and made no reference to any neck symptoms), the records from St George Hospital (which initially referred only to back symptoms and only referred to infrequent neck pain in September 2006), and the absence of any complaint of neck symptoms to Dr Salem between February 2006 and the second half of 2008.
The Arbitrator erred in his approach to the matter in that, rather than merely determining whether the worker had received an injury, he embarked upon an assessment of the nature and extent of that injury in circumstances where, given the nature of the claim, that question must be determined by an AMS.
He also erred in his approach to whether employment was a substantial contributing factor to the injury. He based his conclusion on that issue on the “minor level of pain” recorded in the St George Hospital records, which he felt would not have given rise to work being a substantial contributing factor to the neck pathology experienced in 2008. The question under section 9A was whether employment was a substantial contributing factor to the injury. The relevant injury in the present case was a neck strain. Mr Falee’s employment was the cause of that injury. It follows that employment was a substantial contributing factor to the neck injury on 10 January 2006.

CONCLUSION

Having conducted a review on the merits, I am satisfied that the Arbitrator erred in his approach to the matter and that Mr Falee received a soft tissue injury to his neck at work on 10 January 2006 and that his employment was a substantial contributing factor to that injury. The question of whether he has suffered a whole person impairment as a result of that injury must be determined by an AMS and the matter will be remitted to the Registrar for appropriate referral and assessment.

DECISION

Paragraph 2 of the Arbitrator’s determination of 28 April 2010 is revoked and the following order made in its place:
“2.The applicant worker’s claim for compensation for whole person impairment as a result of injury to his cervical spine (neck) on 10 January 2006 is remitted to the Registrar for referral to an Approved Medical Specialist for assessment. The referral is to include all documents included in the evidence file, save for the report from Dr Nash dated 10 March 2009 and the report from Dr Dave dated 12 August 2006.”
Paragraphs 1, 3, 4, 5 and 6 of the Arbitrator’s determination are confirmed.

COSTS

The respondent employer is to pay the appellant worker’s costs of the appeal, assessed at $600.00 plus GST.

Bill Roche
Deputy President

4 August 2010

I, PENELOPE FLEMING, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE