Filippou v Northern Sydney Central Coast Area Health Service (Manly Hospital)
[2009] NSWWCCPD 35
•30 March 2009
| WORKERS COMPENSATION COMMISSION | ||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||||
| CITATION: | Filippou v Northern Sydney Central Coast Area Health Service (Manly Hospital) [2009] NSWWCCPD 35 | |||||
| APPELLANT: | Kathy Filippou | |||||
| RESPONDENT: | Northern Sydney Central Coast Area Health Service (Manly Hospital) | |||||
| INSURER: | Treasury Managed Fund (GIO General Limited) | |||||
| FILE NUMBER: | A1-0006/08 | |||||
| DATE OF ARBITRATOR’S DECISIONS: | 8 February 2008; 28 November 2008 and 19 December 2008 | |||||
| DATE OF APPEAL HEARING: | 26 March 2009 | |||||
| DATE OF APPEAL DECISION: | 30 March 2009 | |||||
| SUBJECT MATTER OF DECISION: | Lump sum compensation; multiple injuries; whether an impairment due to an incident at home resulted from earlier work injury/s; whether the effects of an incident at home could be combined with an earlier work injury/s to meet the threshold in section 67 of the Workers Compensation Act 1987; section 322 of the Workplace Injury Management and Workers Compensation Act 1998; need for the Application to Resolve a Dispute to clearly and precisely identify the nature of the claim and the relief sought; amendments; proper application of the reconsideration provisions in section 350(3) of the Workplace Injury Management and Workers Compensation Act 1998. | |||||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | |||||
| HEARING: | Oral | |||||
| REPRESENTATION: | Appellant: | Mr Perry, instructed by Drexler & Partners | ||||
| Respondent: | Mr Batten, instructed by TurksLegal | |||||
| ORDERS MADE ON APPEAL: | The determination of 8 February 2008 is confirmed. The determination of 28 November 2008 is revoked. Paragraphs 1(3) and 1(4) of the determination of 19 December 2008 are revoked and the following orders made: “1(3) $23,000.00 in respect of 17% whole person impairment resulting from injury on 26 December 2003. 1A. In respect of the injury on 26 December 2003, the respondent is to pay the applicant compensation for pain and suffering under section 67 of the Workers Compensation Act 1987 in the sum of $15,000.00.” The remaining orders made in the determination of 19 December 2008 are confirmed. | |||||
| That each party pay her or its own costs of the appeal. | ||||||
BACKGROUND
Ms Filippou started work for the Northern Sydney Central Coast Area Health Service (‘the Health Service’) at Manly Hospital as a ‘food distributor’ in about 2000. Her duties were essentially physical, requiring her to lift and carry heavy trays and to load and unload food trolleys.
In the course of her employment she sustained several injuries to different parts of her body. First, to her back and left leg on 17 May 2001 and is of no direct relevance to the appeal. Second, to her left knee, left shoulder and left buttock when she fell at work on 24 January 2003. Third, to her left shoulder, pelvis and left hip when she slipped and fell at work on 3 December 2003. Fourth, to her left knee, left arm and left shoulder when she alleges that her left knee and leg gave way causing her to fall on 26 December 2003. And last, to her right shoulder when she was trying to get out of bed at her home on 17 October 2004 while convalescing after surgery to her left shoulder.
By letter dated 23 August 2007, her solicitor claimed lump sum compensation under the Table of Disabilities in respect of a 20% permanent impairment of her back and a 15% permanent loss of efficient use of her left leg at or above the knee and compensation for pain and suffering, as a result of an injury to her back and left leg on 17 May 2001 (‘the Table of Disabilities claim’). The solicitor also claimed lump sum compensation in respect of a 21% whole person impairment as a result of injuries to her left shoulder, right shoulder and right knee (later amended to be left knee) on 24 January 2003, 3 December 2003, 26 December 2003 and 17 October 2004 (‘the whole person impairment claim’).
The Health Service’s insurer, GIO General Limited (‘GIO’), arranged for Ms Filippou to be examined by Dr Hyde-Page, orthopaedic surgeon, on 28 September 2007. In a letter dated 27 November 2007, the GIO offered to settle the whole person impairment claim for $17,000 (13% whole person impairment) plus $8,000 in respect of pain and suffering. In a separate letter of the same date, the GIO offered to settle the Table of Disabilities claim for $9,750 in respect of 10% permanent impairment of the back and 5% permanent loss of use of the left leg at or above the knee. That offer was not accepted.
By an Application to Resolve a Dispute (‘the Application’) registered in the Commission on 3 January 2008, Ms Filippou claimed lump sum compensation in the same percentages as set out in the letter of 23 August 2007. In respect of the whole person impairment claim, however, she identified the “Body Parts/Systems Claimed” (Part 5.7 of the Application) to be “Right upper extremity (right shoulder), Left upper extremity (left shoulder), Right lower extremity (right knee), Regional Spinal Impairment – Pelvic Injury (pelvis) – Cervical Spine”.
Ms Filippou set out a full description of her injuries in a document headed “Annexure A” attached to the Application. She described five injuries:
“17 May 2001 – back and left leg
24 January 2003 – left knee, left shoulder and left buttock
3 December 2003 – left shoulder, pelvis and left hip
26 December 2003 – left knee, left arm and left shoulder
17 October 2004 – right shoulder”
Annexure A also included a description of how each injury occurred. The incident that occurred at Ms Filippou’s home on 17 October 2004 is described as having occurred as follows:
“On about 17 October 2004 the Claimant was trying to get out of bed and in doing so put all her weight on her right shoulder, as her left arm was still strapped to her torso and in a sling from the operation performed by Dr MacDougal, when she severely injured her right shoulder.”
As a result of a teleconference before a Commission arbitrator on 7 February 2008, when Ms Filippou was represented by her solicitor, the Commission issued the following Certificate of Determination – Consent Orders on 8 February 2008 (referred to in several documents as dated 7 February 2008) (‘the Consent Orders’):
“In this matter a telephone conference was held where the parties were assisted by me, acting as an Arbitrator, to come to an agreed resolution of the issues in dispute. By reason of their agreement, and in accordance with Rule 15.9(1) of the Workers Compensation Commission Rules 2006, the determination of the Commission in this matter is as follows:
1. Paragraph 5.7 of the Application to Resolve a Dispute is amended to delete the reference to the cervical spine and to delete the reference to the right lower extremity and insert the left lower extremity.
2. The Respondent does not dispute liability in relation to the application for lump sum compensation for permanent impairment for injuries arising out of or in the course of employment with the Respondent as specified below. The only issue in dispute is the degree of permanent impairment if any.
3. The Referral is in respect of the following claim:
·17 May 2001: back and left leg at or above the knee
·24 January 2003: left lower extremity (left knee and buttock) left upper extremity (left shoulder)
·3 December 2003: left upper extremity (left shoulder) Pelvis (pelvis and left hip)
·26 December 2003: left lower extremity (left knee) left upper extremity (left arm and shoulder)
·17 October 2004: right upper extremity (right shoulder)
4. The matter is remitted to the Registrar for referral to an Approved Medical Specialist (the AMS) for assessment of the degree of permanent impairment, if any.
5. The documents to be included in the referral to the AMS comprise the following:
For the Applicant
·all the documents annexed to the Application
For the Respondent
·all the documents annexed to the Reply.”
Pursuant to section 319 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’), the Registrar’s delegate referred the medical dispute to an Approved Medical Specialist (‘AMS’) on 8 February 2008. The referral listed the dates of injury as per the dates in Annexure A of the Application, the body part/s referred were essentially those listed in Annexure A, and the method of assessment was described as “Table of Disabilities” for the injury on 17 May 2001 and “whole person impairment” in respect of all other injuries.
An AMS (Dr Mastoianni) assessed Ms Filippou on 7 March 2008 and issued a Medical Assessment Certificate (‘MAC’) on 13 March 2008 (‘the first MAC’), in which he certified Ms Filippou to have the following disabilities and impairments:
(a)in respect of the injury on 17 May 2001: 10% permanent impairment of her back (after deducting 1/3 for a pre-existing injury, abnormality or condition) and a 0% loss of use of the left leg at or above the knee;
(b)in respect of the injury on 24 January 2003: 2% whole person impairment in respect of the left lower extremity and 0% whole person impairment in respect of the left upper extremity;
(c)in respect of the injury on 3 December 2003: 0% whole person impairment in respect of the left upper extremity, 0% whole person impairment in respect of the left lower extremity (hip), and 0% whole person impairment in respect of the spine (pelvis);
(d)in respect of the injury on 26 December 2003: 10% whole person impairment in respect of the left upper extremity (left arm and shoulder), and 0% whole person impairment in respect of the left lower extremity (left knee), and
(e)in respect of the injury (incident) on 17 October 2004: 10% whole person impairment in respect of the right upper extremity (right shoulder).
For reasons not relevant to the current appeal, the Health Service filed an appeal to a Medical Appeal Panel under section 327 of the 1998 Act. The Registrar’s delegate was satisfied that the MAC contained a demonstrable error and, as an alternative to an appeal (section 327(6)), referred the matter back to the AMS for re-assessment. The referral related to the assessment of the whole person impairment for the left and right upper extremities. The AMS re-assessed those parts and issued a “Further Assessment or Reconsideration” (‘the second MAC’) on 27 May 2008. In the second MAC he assessed the whole person impairment resulting from the injury to the left upper extremity on 26 December 2003 to be 9% and the whole person impairment resulting from the injury to the right upper extremity on 17 October 2004 to be 9%.
The Registrar issued a Certificate of Determination on 4 July 2008 in the following terms:
“The Commission orders:
1.That the Respondent pay the Applicant, as lump sum compensation under section 66:
(1)$6,000.00 in respect of 10% permanent impairment of the back resulting from injury on 17 May 2001.
(2)$2,500.00 in respect of 2% permanent impairment resulting from injury on 24 January 2003.
(3)$11,250.00 in respect of 9% permanent impairment resulting from injury on 26 December 2003.
(4)$11,250.00 in respect of 9% permanent impairment resulting from injury on 17 October 2004.
2. That the Applicant suffers 0% permanent loss of efficient use of the left leg at or above the knee resulting from injury on 17 May 2001.
3. That the Applicant suffers 0% permanent impairment resulting from injury on 3 December 2003.
4. That the Respondent pay the Applicant’s costs as agreed or assessed.”
At the request of Ms Filippou’s solicitor, and relying on the reconsideration power in section 350(3) of the 1998 Act, by letter dated 10 July 2008 the Registrar rescinded the Certificate of Determination of 4 July 2008 on the ground that the “issue of a possible section 67 entitlement remained alive”.
A further teleconference was held on 24 July 2008 at which Ms Filippou’s solicitor indicated that he wished to dispute “causation” in respect of the injuries the subject of the claim (see the Arbitrator’s Statement of Reasons for Decision dated 28 November 2008 (‘Reasons’), paragraph 9). As a result, the Arbitrator listed the matter for conciliation and arbitration on 18 September 2008.
There is no transcript of the proceedings on 24 July or 18 September 2008, but it is clear from the Arbitrator’s Reasons that the parties argued whether the issue of causation remained to be determined. At the direction of the Arbitrator (Reasons, paragraph 10), Ms Filippou then filed an application under section 350(3) of the 1998 Act (‘the reconsideration application’). This application sought orders that Annexure A be amended to add the following to the description of the 17 October 2004 incident:
“Therefore the injury to the right shoulder is a consequential injury arising out of injury to the left shoulder from 2 and/or 3 and/or 4 and/or 5 herein.”
It also sought to amend the Consent Orders (set out at [8] above) to read:
“On or about 17 October 2004 the Claimant was trying to get out of bed and in doing so put all her weight on her right shoulder, as her left arm was still strapped to her torso and in a sling from the operation performed by Dr MacDougal, when she severely injured her right shoulder. Therefore the injury to the right shoulder is a consequential injury arising out of injury to the left shoulder from injuries sustained on 24 January 2003 and/or 3 December 2003 and/or 26 December 2003.”
The purpose of the reconsideration application was to “avoid any suggestion that the Commission has already made a determination on causation – that is, by making findings as to what incident/injury, within the meaning of the Act, has resulted in a whole person impairment.” Ms Filippou’s solicitor also disputed that the Consent Orders amounted to any ‘consent’ on the issue/s of liability/causation.
The parties filed written submissions dealing with the reconsideration application and the Arbitrator listed it for hearing on 21 October 2008. The parties made submissions, but called no oral evidence. In a Certificate of Determination issued on 28 November 2008, the Arbitrator made the following determination:
“1. Award for the Respondent in respect of the application for reconsideration to amend Part 4 of the Application to Resolve a Dispute and the “Certificate of Determination - Consent Orders” dated 7 February 2008 [sic, 8 February 2008] in matter WCC0006-08.”
On 4 December 2008, Ms Filippou’s solicitor wrote to the Registrar requesting an urgent teleconference with the Arbitrator to “seek directions for the further hearing of this case on the basis that we respectfully submit that the question of causation of the injury, the subject of the claim, and the MAC determination is still a live issue.” A Commission Dispute Management Officer replied to this letter by email dated 10 December 2008, stating that the Arbitrator had been consulted and she advised that no further material had been provided and the matter had been finalised. This email was forwarded to Ms Filippou’s solicitor by letter dated 15 December 2008.
The Health Service’s solicitor wrote to the Registrar on 15 December 2008 agreeing that no further teleconference was required, but pointing out that the Certificate of Determination of 4 July 2008 had been rescinded and the file could not be “finalised until a new Certificate of Determination is issued” and that “new Orders will need to be made by the Arbitrator and/or Commission regarding the Medical Assessment Certificate” (emphasis included).
By an appeal filed on 23 December 2008, Ms Filippou sought leave to appeal the Arbitrator’s determination of 28 November 2008 and the Consent Orders of 8 February 2008.
In response to the Health Service’s solicitor’s letter of 15 December 2008, the Registrar issued a further Certificate of Determination on 19 December 2008 in the same terms as the 4 July 2008 Certificate of Determination (see [12] above). At the oral hearing of the appeal on 26 March 2009, counsel for Ms Filippou, Mr Perry, sought leave to amend the appeal to include a challenge to the Certificate of Determination of 19 December 2008. Counsel for the Health Service, Mr Batten, did not make any submissions in opposition to that application.
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 1998 Act.
There is no issue that the thresholds in section 352(2) are met.
Time
The appeal against the Arbitrator’s determination of 28 November 2008 was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act. The appeal from the Consent Orders of 8 February 2008 is several months out of time and Ms Filippou seeks an extension of time in which to appeal.
The application to extend time is misconceived because the Consent Orders did not finally determine any rights. An order determining the nature of the question or questions to be referred to an AMS does not finally determine the parties’ rights and liabilities and is clearly interlocutory (see Arquero v DJ & T Denning Pty Limited t/as Capital Coast Steel [2007] NSWWCCPD 126; Fine Meats (Boners PM) Pty Ltd v Hart [2007] NSWWCCPD 164 and YKK Australia Pty Ltd v Skoric [2008] NSWWCCPD 44). Therefore it was not possible to appeal those orders until the matter was finally determined by the 19 December 2008 Certificate of Determination.
The appeal from the Arbitrator’s determination of 28 November 2008 was filed in time. It is arguable, however, that that determination did not finally determine the parties’ rights because the Arbitrator did not make any final orders, but merely dismissed the reconsideration application. The parties’ rights were not finally determined until the Certificate of Determination of 19 December 2008, issued by the Registrar, acting as an Arbitrator. That Certificate contains the orders the Arbitrator should have made, to give effect to the decision of 28 November 2008. It therefore follows that the orders of 28 November 2008 were a “step in the procedure leading up to final judgment” (Crowley v Glissan (1905) 2 CLR 402) and it is appropriate to grant leave to appeal those orders.
On the basis of the arguments presented before me on 26 March 2009, I also grant leave to Ms Filippou to amend the appeal to challenge the Certificate of Determination of 19 December 2008. If it is necessary, I extend time to appeal that Certificate under Part 16 Rule 16.2(11) of the Workers Compensation Commission Rules 2006. In circumstances where there is no prejudice to the Health Service, I am satisfied that exceptional circumstances exist and that it would work a demonstrable and substantial injustice if time to appeal were not extended.
I grant leave to appeal the Certificates of Determination dated 8 February 2008, 28 November 2008 and 19 December 2008.
FRESH EVIDENCE
Ms Filippou sought to tender as fresh evidence on appeal a file note prepared by her solicitor relating to the teleconference on 7 February 2008. Though the note has limited, if any, relevance to the issues on appeal, as the Health Service has not objected to the admission of the note I will admit it as additional evidence on appeal.
THE ARBITRATOR’S REASONS
In respect of the reconsideration application, the Arbitrator stated the issue for determination to be whether the reconsideration application should be granted so as to allow the amendment of Annexure A of the Application and the Certificate of Determination dated 8 February 2008 in the terms set out at paragraphs [15] and [16] above, respectively. She found that Ms Filippou’s solicitor consented to the matter being referred to the AMS in the manner it was referred and to allow the reconsideration application would cause significant prejudice to the Health Service because it would deny it the chance of meeting the claim in these proceedings.
SUBMISSIONS AND DISCUSSION
Ms Filippou’s written submissions on appeal challenged the Arbitrator’s Reasons relating to her refusal to grant the reconsideration application. At the oral hearing, however, it became apparent that the real challenge to the Arbitrator’s decision is that she erred in deciding that, because of terms of the Consent Orders and the consequential MAC, the question of whether the multiple impairments could be combined on the ground that they had resulted from an earlier injury or injuries (what Ms Filippou referred to as the causation issue) was no longer arguable.
Ms Filippou has always argued that the Commission has power to determine the causation issue after a MAC is issued. That is, the Commission has power to determine “which incident/s were responsible for the impairment to the applicant’s upper extremities” (see Ms Filippou’s submissions before the Arbitrator dated 25 September 2008). The Health Service took a contrary view and the Arbitrator agreed with its view. On the apparent assumption that the Commission does not have power to determine the causation issue in the circumstances of this case, the Arbitrator directed Ms Filippou to file the reconsideration application. That was done and the Arbitrator found that Ms Filippou’s solicitor had consented to the matter being referred to the AMS in the manner it was referred and to allow the reconsideration application would cause significant prejudice to the Health Service because it would be denied the chance of meeting the claim in these proceedings. She therefore declined to reconsider the matter.
Whilst it is true that Ms Filippou’s solicitor did consent to the orders made in the Certificate of Determination on 8 February 2008, that the Application was drafted in a way likely to obscure rather than clarify the issues, and that the poor drafting of the Application led to the current confusion, the Arbitrator erred in her approach at the post MAC teleconference and arbitration.
Though a matter cannot be referred to an AMS for assessment if liability is in issue (section 321(4) of the 1998 Act), that does not mean that the issuing of a MAC equates to an award of compensation (Jopa Pty Ltd t/as Tricia’s Clip-n-Snip v Edenden [2004] NSWWCCPD 50). The terms of the award to be entered, if any, must still be determined by the Commission. That is not to say that an employer will be permitted to dispute liability after a valid MAC is issued following a valid referral. Normally, it won’t.
However, there will be rare cases, and the present claim is an example, where the question will arise as to whether the impairments assessed by the AMS have resulted from an earlier injury or injuries, rather than the pleaded incident. A similar, but not identical, question arose in Kolak v Hunani Ltd and anor [2008] NSWWCCPD 60 (‘Kolak’); Central West Group Apprentices Ltd v Barrett [2008] NSWWCCPD 137 (‘Barrett’); Department of Juvenile Justice v Edmed [2008] NSWWCCPD 6 (‘Edmed’) in the context of whether impairments from multiple work injuries could be aggregated in order to meet the section 67 threshold. In none of those cases was it argued, either before the Arbitrator or on appeal, that the Commission had no power to entertain the argument on causation, restricted, as it was, to the question of whether the impairments certified by the AMS could be aggregated.
The question in the present case raises the same point of principle. It requires a determination of whether the 9% impairment of Ms Filippou’s right shoulder, as certified by the AMS, has resulted from an earlier work incident or incidents. Whilst that issue was never properly identified in the Application or the referral to the AMS, because of the unsatisfactory wording of Annexure A, which resulted in the misleading referral, that does not prevent the Commission from performing its statutory obligation to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal form (section 354(3) of the 1998 Act). Ms Filippou was entitled to have that question determined without the need to seek a reconsideration under section 350(3) of the 1998 Act. All that was required was an amendment of the Application. The Arbitrator erred in directing Ms Filippou to file a reconsideration application.
Mr Batten submitted that relief should not be granted because Ms Filippou delayed in seeking a determination on this issue until after the second MAC dated 27 May 2008, which re-assessed her impairments to be 9% for each shoulder. He argues that the delay was a deliberate decision and that, but for the second MAC, Ms Filippou would have been happy to accept the first MAC’s assessment of 10% for each shoulder and then claim two entitlements to compensation for pain and suffering under section 67. I do not accept this submission. Based on the first MAC, Ms Filippou could never have claimed two awards under section 67 because the 10% assessment for her right arm related to an incident that happened at home. On the face of the Application the Health Service has no liability for the incident on 17 October 2004, because it happened at home. Liability for that incident can only arise if the impairment that it caused resulted from one or more of the earlier accepted work injuries. That was the issue the Arbitrator was required to determine.
Neither party disputes the correctness of the general approach adopted in Kolak, Barrett and Edmed. Consistent with those decisions, and with the obligations in section 354(3) of the 1998 Act, the Arbitrator should have considered and determined Ms Filippou’s argument that her right shoulder impairment resulted from one or more of her pleaded work incidents. Her failure to do so means that the matter must be re-determined. The parties consent to the re-determination being conducted by me.
It is not appropriate or necessary to use the reconsideration power to seek an amendment to an Application to Resolve a Dispute. The reconsideration power is restricted to the limited circumstances discussed in Samuel v Sebel Furniture Limited [2006] NSWWCCPD 141 at [58] and an amendment in order to correct a drafting error or oversight by a solicitor is not one of those circumstances. Whether an amendment should be allowed in such circumstances will, subject to the application of the Workers Compensation Acts and the Commission’s Rules, generally depend on the application of the principles discussed in Queensland v JL Holdings Pty Ltd (1997) CLR 189 146 and Walshe v Prest [2004] NSWCA 94.
Though the Commission is not a tribunal bound by strict pleadings (see Far West Area Health Service v Colin Robert Radford [2003] NSWWCCPD 10) it is appropriate that the Application in the present matter be amended to accord with the claim that is being made. That will cause no prejudice to the Health Service because the evidence on which it relies in answer to the amended claim has already been tendered. I therefore amend Annexure A to the Application to add the following to the description of the 17 October 2004 incident:
“Therefore the injury to the right shoulder is a consequential injury arising out of injury to the left shoulder from 2 and/or 3 and/or 4 and/or 5 herein.”
There is no purpose to be served, however, in amending the Consent Orders at this late stage of the proceedings. The MAC has already been issued on the basis of the terms of the referral of 8 February 2008 (see [9] above), which itself was based on the Consent Orders. The practical course is for the Commission to now hear submissions and make a determination on the merits of the case. The parties agree, based on the appropriate guidelines, that the combined whole person impairment for the left and right shoulders is 17%. Therefore, the re-determination can be made on the basis of the second MAC and will involve no prejudice to either party.
RE-DETERMINATION
On 24 January 2003, Ms Filippou slid a crate of milk along the floor when it caught on a tile causing her to fall heavily to the ground and injure her left knee, left shoulder and left buttock. On 3 December 2003, she was walking through the kitchen when she slipped on water and fell heavily injuring her left shoulder, pelvis and left hip. It is submitted that, as a result of the left knee injury sustained on 24 January 2003, Ms Filippou’s left knee gave way when she was on her way to work on 26 December 2003 and that that giving way caused her to fall and injure her left knee, left arm and left shoulder. Ms Filippou underwent surgery to her left shoulder on 15 September 2004. As a result of that surgery, her left arm was either in a sling or strapped to her torso and when she attempted to get out of bed at home on 17 October 2004 she placed all her weight on her right shoulder and injured that shoulder. It is therefore argued, relying on the principles in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452, that the impairment caused by Ms Filippou’s right shoulder incident at home resulted from the injury on 24 January 2003 and/or on 3 December 2003 and/or on 26 December 2003 and should be treated as having resulted from one of those injuries for the purposes of section 322(3) of the 1998 Act and her impairments should be combined.
The argument turns on whether Ms Filippou’s left knee gave way on 26 December 2003 as a result of a weakness caused in the 24 January injury, as she claims at paragraph 11 of her statement of 10 December 2007, or whether that incident was a separate and independent event unrelated to the earlier knee injury, as submitted by the Health Service. In support of his argument, Mr Perry relies on Ms Filippou’s statement and the histories recorded by Dr Endrey-Walder in his report dated 12 July 2007 and by the AMS in the first MAC.
Dr Endrey-Walder referred to a report from Northern Beaches Physiotherapy dated 23 March 2004, which said that Ms Filippou first presented there in March 2003 for treatment on and off for “various problems including back, left shoulder and left knee pain following falls at work and left tennis elbow”. Dr Endrey-Walder then recorded that while getting into her car on her way to work on 26 December 2003, her left knee gave out on her and she fell. The AMS, Dr Mastronianni, also recorded that Ms Filippou fell on 26 December 2003 when her left leg gave way.
Mr Batten argues that Ms Filippou fell on 26 December 2003 because she tripped while running to a car and that the incident has no connection with the 24 January incident. He relies on a document headed “Accident/Incident Report Form” (‘the accident form’) completed by Ms Filippou. Under “Description of Accident/Incident”, the following entry appears:
“I was running to the car I triped [sic] & fell on the road! As I called for help from Harriett she was already in my car to come & pick me up! I lended [sic] hard & could not move.”
Under “Description of Injury”, Ms Filippou wrote:
“My left side again not long before the fall I had in the kitchen. left shoulder [indecipherable] & elbow. I has [sic] still in pain from my last fall & still in therapy.”
Mr Perry submits that the indecipherable word above is “knee”. Even if that is so, it makes no difference to the conclusion I have reached on this issue.
At part 4B of the accident form, the following entry appears:
“my left side is has [sic] been copping [sic] all the falls so it was very weak & could not be helped. My left leg had a chip [sic]. it was givin [sic] in time to time.”
I do not accept that the fall on 26 December 2003 resulted from the left knee injury sustained on 24 January 2003. The evidence in support of that proposition is primarily in the medical histories recorded by Dr Endrey-Walder and the AMS, and in Ms Filippou’s statement, all given years after the event. I do not accept that evidence, but place greater weight on the description of the incident in Ms Filippou’s accident form, which is in clear and unequivocal terms. On the basis of the description in the accident form, I find that Ms Filippou fell on 26 December 2003 when she tripped while running to a car.
Part 4B of the accident form does not diminish the weight to be attached to her clear statement of what caused her to fall. At its highest for Ms Filippou, part 4B merely suggests that her left side was weak and her left leg ‘was giving in from time to time’. That may well have been so, but it does not detract from the clear description of the incident in the form, namely, that Ms Filippou tripped while running to a car.
This conclusion is reinforced when one considers the evidence of continuing problems with the left knee after the January fall, which is scant and unpersuasive. There is no probative evidence that Ms Filippou’s left knee gave way regularly, or at all, after the 24 January injury, or that her knee was a significant ongoing problem after that incident. The reference to the report from Northern Beaches Physiotherapy does not advance Ms Filippou’s case. It provides no history of the left knee giving way after the 24 January incident. I therefore find that Ms Filippou fell on 26 December 2003 when she tripped while running to a car and that that fall did not result from the injuries sustained on 24 January 2003.
There is no persuasive evidence that the right shoulder injury resulted from the injuries sustained on 3 December 2003 and I do not accept that submission. The evidence is, and I find, that Ms Filippou fell on that day because she slipped on water, not because of any pre-existing problem with her left knee.
Based on the evidence from the AMS, I find that the right shoulder injury and impairment resulted from the injury to the left shoulder on 26 December 2003. The AMS recorded, and I accept, that Ms Filippou recovered from the left shoulder injury she sustained on 24 January 2003. He also noted that she continued to work normally after her injury on 3 December 2003. He assessed her to have nil impairment as a result of the injuries to her left shoulder on 24 January and 3 December 2003. He assessed a 9% impairment as a result of the injury to her left shoulder on 26 December 2003. In these circumstances the evidence leads to the conclusion that the right shoulder incident and the impairment caused by that incident, have resulted from the injury to the left shoulder on 26 December 2003.
It follows from this analysis that the impairments assessed by the AMS for the left and right shoulders have resulted from the “same incident [the incident on 26 December 2003] and are to be assessed together” (section 322(3) of the 1998 Act). The parties agree that if the assessments of the left and right shoulders are assessed together the correct whole person impairment under the appropriate guidelines is 17%. That is the correct award under section 66. This award entitles Ms Filippou to compensation for pain and suffering under section 67 of the 1987 Act. The parties have agreed that the pain and suffering compensation should be assessed by me rather than be remitted to an arbitrator.
Ms Filippou is 52 years of age and has a life expectancy of 36 years. The injury on 26 December 2003 has left her with a whole person impairment of 17%. As a result of that impairment she has experienced and will continue to experience pain and suffering in both shoulders. She is unable to lift even moderate weights or perform repetitive tasks without exacerbating her pain. She has difficulty in dressing, with self-care and washing because of her impairment. She has undergone three operations, two to her left shoulder and one to her right shoulder. She is restricted in her ability to engage in her pre-injury social and recreational activities, such as dancing, gardening and shopping. She finds herself constantly stressed, anxious, irritable and depressed as a result of not being able to do things and her constant pain. The AMS expressly noted that Ms Filippou presented in a genuine manner and that there were no inconsistencies. I accept her complaints of continuing pain as being genuine.
Having regard to the degree and duration of Ms Filippou’s pain and suffering and the severity of her permanent impairment, I find that the amount of compensation that is reasonably proportionate to the maximum compensation under section 67 is 30% of a most extreme case. That entitles Ms Filippou to compensation in the sum of $15,000.00 in addition to her lump sum compensation under section 66.
OTHER MATTERS
Whilst the current claim was not straight forward, some care in drafting the Application may have avoided the confusion that followed. If a worker is claiming that compensation is payable for a particular condition because that condition has resulted from an earlier work incident, that should be clearly and precisely identified in the Application to Resolve a Dispute. On its face, the Application in the present matter suggested that the incident on 17 October 2004 was a separate work injury and the AMS was asked to assess it as such.
CONCLUSION
Having conducted a review on the merits (per Spigelman CJ in State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249; (2007) 5 DDCR 287 at [28]), I am of the view that the Arbitrator erred in failing to consider whether the right shoulder impairment resulted from one or more of the earlier work injuries and in directing Ms Filippou to file a reconsideration application. Having re-determined the matter, I find that the true and correct position is that the impairment of the right shoulder resulted from the injury to the left shoulder on 26 December 2003 and that the two impairments should be combined to give a single whole person impairment of 17%.
DECISION
The determination of 8 February 2008 is confirmed. The determination of 28 November 2008 is revoked.
Paragraphs 1(3) and 1(4) of the determination of 19 December 2008 are revoked and the following orders made:
“1(3)$23,000.00 in respect of 17% whole person impairment resulting from injury on 26 December 2003.
1A.In respect of the injury on 26 December 2003, the respondent is to pay the applicant compensation for pain and suffering under section 67 of the Workers Compensation Act 1987 in the sum of $15,000.00.”
The remaining orders made in the determination of 19 December 2003 are confirmed.
COSTS
The Health Service submits that, irrespective of the outcome of the appeal, Ms Filippou should not be granted costs. I agree with that submission. In its written submissions before the Arbitrator, the Health Service offered to resolve the claim on the basis that has been determined in the appeal, namely, that the right shoulder impairment resulted from the left shoulder injury on 26 December 2003 and that Ms Filippou had an entitlement to section 66 compensation of 17% once both impairments were combined. That was a reasonable offer of settlement. In these circumstances, I am satisfied that the costs of the appeal have been unreasonably incurred because they were incurred after a reasonable offer of settlement was made (section 342(1) and 342(2)(a) of the 1998 Act). Therefore, I make the following costs order:
“Each party is to pay her or its own costs of the appeal.”
Bill Roche
Deputy President
30 March 2009
I, TUYET WALLIS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
5
14
0