Forestry Corporation of New South Wales v Mawson
[2015] NSWWCCPD 34
•11 June 2015
| WORKERS COMPENSATION COMMISSION | |||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||
| CITATION: | Forestry Corporation of New South Wales v Mawson [2015] NSWWCCPD 34 | ||
| APPELLANT: | Forestry Corporation of New South Wales | ||
| RESPONDENT: | Anne-Maree Mawson | ||
| INSURER: | Self-insured | ||
| FILE NUMBER: | A1-8060/13 | ||
| ARBITRATOR: | Mr J Wynyard | ||
| DATE OF ARBITRATOR’S DECISION: | 22 January 2015 | ||
| DATE OF APPEAL DECISION: | 11 June 2015 | ||
| SUBJECT MATTER OF DECISION: | Challenge to finding of fact where concessions made by a party are disregarded by Arbitrator; Arbitrator’s duty to do justice to the issues posed by the parties; Approved Medical Specialist to have access to decision made on appeal | ||
| PRESIDENTIAL MEMBER: | Deputy President Kevin O'Grady | ||
| HEARING: | On the papers | ||
| REPRESENTATION: | Appellant: | Bartier Perry | |
| Respondent: | Gerard Malouf & Partners | ||
| ORDERS MADE ON APPEAL: | 1. Paragraph [2] of the Certificate of Determination dated 22 January 2015 is revoked and the following findings are made in its place: “2. The applicant received injury to her back on 13 April 2005 and on 13 March 2007 arising out of or in the course of her employment.” 2. The Arbitrator’s finding of injury caused by the nature and conditions of employment is confirmed. 3. Paragraph [4] of the Certificate of Determination dated 22 January 2015 is amended by revocation of what appears at dot point one and substitution with the following: “• Date of injuries: injury to back on 13 April 2005, 13 March 2007 and by reason of nature and conditions of employment from January 2001 to November 2008 (deemed date of injury being 12 April 2011).” 4. The Arbitrator’s findings and the Certificate of Determination dated 22 January 2015 are otherwise confirmed. 5. The Approved Medical Specialist is to have access to this decision on appeal following referral for assessment by the Registrar. | ||
BACKGROUND
Ms Anne-Maree Mawson commenced employment with Forestry Corporation of New South Wales (the appellant) as a casual field officer, grade 1, in January 2001. Ms Mawson’s duties involved the handling and planting of seedlings at the respondent’s nursery within the Narrandera State Forest. The work was performed on a seasonal basis, usually commencing in August and continuing through until April or May the following year.
Ms Mawson alleged that she received injury to her lower back in the course of that work. By reason of incapacitating symptoms experienced by her, she ceased work on 5 November 2008. Ms Mawson has not returned to work since that date.
A claim for workers compensation benefits was presented by Ms Mawson to the appellant on 12 November 2008. The date of injury in that claim form was particularised as being 5 November 2008 at “3.30 approx pm”.
The appellant, on 30 December 2008, gave notice to Ms Mawson that it disputed the claim made by her and that liability had been declined. That notice, given in accordance with s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), included full particulars of the reasons for the decision. Among the matters particularised was a denial that Ms Mawson suffered injury as alleged. That notice included reference to other facts and circumstances which the respondent relied upon when denying the claim. Where relevant, those matters are addressed below.
It appears that Ms Mawson took no further action concerning her claim immediately following receipt of that notice. She remained absent from work and sought medical treatment from time to time. On 22 September 2009, she underwent a surgical procedure, being laminectomy and discectomy, at the L4/L5 level of her spine at Wagga Base Hospital as a public patient. The procedure was conducted by Dr Kerin Fielding, orthopaedic surgeon.
Ms Mawson continued to experience incapacitating symptoms arising from her back disability and ultimately underwent a spinal fusion between L3 and S1 at Calvary Hospital on 17 October 2011 at the hands of Dr Fielding.
On 5 August 2011, that is some months before Ms Mawson underwent surgical spinal fusion, Ms Mawson’s solicitors gave notice of a claim to the appellant in respect of lump sum compensation pursuant to ss 66 and 67 of the Workers Compensation Act 1987 (the 1987 Act). It appears that nothing relevant occurred until the solicitors wrote again to the respondent on 4 April 2013. Negotiations then took place between the parties, however no settlement was attained.
These proceedings were commenced by the filing of an Application to Resolve a Dispute with the Commission on 27 September 2013. That Application was, from time to time, amended by Ms Mawson. The amendments are discussed below. The Application brought by Ms Mawson sought orders with respect to her alleged entitlement to lump sums pursuant to ss 66 and 67 of the 1987 Act as it stood before the passage of the Workers Compensation Legislation Amendment Act 2012. Entitlement to such compensation was asserted in correspondence forwarded to the appellant by Ms Mawson’s solicitor, reliance having been placed upon the decision of the High Court in ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18; 88 ALJR 624 (Goudappel).
The matter came before Arbitrator John Wynyard for conciliation and arbitration on 21 October 2014. The matter proceeded to hearing and was part heard. Upon resumption of the hearing on 17 December 2014, the parties’ submissions were concluded and the Arbitrator reserved his decision. A Certificate of Determination accompanied by a Statement of Reasons was issued on 22 January 2015. That Certificate set out the following orders:
“The Commission determines:
1. I grant leave to the parties to advise the Commission by email within 14 days of this determination, should they agree that an amendment is necessary.
2. There will be an award for the respondent in relation to the claim for injury to the lower back on 13 March 2007.
3. There will be an award for the respondent in relation to the claim for injury to the lower back on 5 November 2008.
4. I remit this matter to the registrar for referral to an AMS for a whole person impairment assessment on the following bases:
·Date of Injury: Nature and conditions of employment from March 2001 to November 2008 (Deemed Date of Injury being 12 April 2011)
·Matter for assessment: Lumbar spine
·Evidence
For the applicant:-
·Application to Resolve a Dispute plus attached documents lodged on 27 September 2013 (Exhibit A)
·ALDs [Application to Admit late Documents] dated 9 May 2014 (Exhibit C)
·ALDs dated 16 May 2014 (Exhibit D)
·ALDs dated 8 August 2014 (Exhibit E)
For the respondent:-
·Reply and attached documents (Exhibit 1)
·ALDs dated 14 July 2014 (Exhibit 3)
·A letter dated 16 March 2007, Greater Southern Area Health Service (Exhibit 5)
·Work place incident report dated 14 April 2005 (Exhibit 6)
A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”
ISSUES IN DISPUTE
The appellant relies upon four separate grounds. Two of those grounds (grounds one and four) suggest error of law on the part of the Arbitrator having regard to the terms in which the remitter to the Registrar for referral to the Approved Medical Specialist (AMS) had been made. Those grounds are expressed as follows:
“1) An error of law in that the Arbitrator failed to provide for referral to an AMS of the issue of whether whole person impairment had resulted from the undisputed injury which the worker had received to her lower back in April 2005;
4) An error of law in failing to issue an Order (to be included in the Registrar’s referral to the AMS) directing the AMS to the finding that the worker had injured her back when lifting her father on the night of 4 November 2011 and suffered a non-work injury to her lumbar spine – a matter of material relevance to the assessment to be made as to impairment resulting from compensable injuries, as distinct from non-compensable events.”
Grounds two and three suggest that the Arbitrator erred in determining that particular injuries alleged by Ms Mawson, the occurrence of which was conceded by the appellant, had not been established on the evidence or, in the alternative, in finding that such injuries “were self-limiting and had resolved”. Those grounds are as follows:
“2) An error of law in that the Arbitrator made ‘an award for the respondent in relation to the claim for injury to the lower back on 13 March 2007’, when there was no dispute between the parties, and before the Arbitrator, that the worker had sustained a compensable injury to her back on 13 March 2007; the Arbitrator was bound to provide for the issue of whether whole person impairment had resulted from that injury to be referred to an AMS;
3) An error of mixed fact and law in determining that any [sic] of the frank injuries (which include the undisputed injuries of 13 April 2005 and 13 March 2007) did not fall within the definition of injury contained in section 4(a) of the 1987 Act or, in the alternative, an error of mixed fact and law and jurisdiction in determining that the effects of those injuries were self-limiting and had resolved.”
Notwithstanding the confusing state of the amendments made by Ms Mawson to her original Application before the Arbitrator, it is agreed between the parties that, ultimately, the allegations made were of injury to her back as a result of frank injuries occurring on 13 April 2005, 13 March 2007 and 5 November 2008 and that the nature and conditions of her work between March 2001 and November 2008 had caused relevant injury.
There is some common ground between the parties on appeal concerning the suggested erroneous approach taken by the Arbitrator to the questions concerning the occurrence of particular injuries. The parties agree on this appeal, as had been agreed before the Arbitrator, that the frank injuries alleged to have occurred on 13 April 2005 and 13 March 2007, had been received by Ms Mawson. I note further that, whilst the question of the relevance as to injury by reason of the “nature and conditions” of work was in dispute before the Arbitrator, no challenge to the Arbitrator’s finding concerning that allegation is made on this appeal.
From this fragmented and confusing set of circumstances it is apparent that the substantive issue between the parties on this appeal is whether the Arbitrator’s decision and, in particular, his terms of remitter to the Registrar, require revocation either by reason, firstly, of the Arbitrator’s suggested erroneous approach to the allegations of injury or, secondly, by reason of the suggested erroneous omission by the Arbitrator to refer for the attention of the AMS a non-work related injury that was said to have been received in November 2008.
PRELIMINARY MATTERS
Time
There is no dispute between the parties that the threshold requirements as to time as found in s 352(4) of the 1998 Act have been met.
Monetary threshold
Ms Mawson disputes that the monetary thresholds as provided by s 352(3) have been met. That sub-section provides:
“There is no appeal under this section unless the amount of compensation at issue on the appeal is both:
(a) at least $5,000 (or such other amount as may be prescribed by the regulations), and
(b) at least 20% of the amount awarded in the decision appealed against.”
The argument advanced by Ms Mawson suggests that the outcome of this litigation “will be the same [compensation payable] whether or not this appeal is successful” (submissions at [4]). In such circumstances, it seems to be suggested, there is no monetary amount at issue on the appeal.
Ms Mawson’s argument must be rejected. Her claim is for a s 66 sum of $43,312.50, being in respect of an alleged whole person impairment of 24 per cent as assessed by Dr James Bodel, orthopaedic surgeon. Ms Mawson’s entitlement, if there be any such entitlement, is to be determined, regardless of the outcome of the appeal, by an AMS following referral for assessment by the Registrar. The appellant relies upon evidence, being that of Dr Richard Powell, orthopaedic surgeon, which suggests a whole person impairment substantially less than that assessed by Dr Bodel. The appellant on this appeal is seeking relief which includes an amendment to the terms of reference prescribed by the Arbitrator in his determination. In argument it has been put that, given the relevant history of injury, Ms Mawson’s entitlement must be reduced on assessment by the AMS having regard to the proper application of the terms of s 323 of the 1998 Act to the facts.
Given that the submissions on this appeal include argument that the terms of referral made by the Arbitrator require correction, it cannot be said that the outcome of the AMS’s ultimate assessment is either certain or that it must be a fixed result regardless of the outcome of the appeal. I note that the monetary difference between the assessments made by Dr Bodel and that of Dr Power, whose assessments represent the fundamental dispute between the parties, far exceeds the monetary threshold fixed by s 352(3)(a). I further note that the terms of the assessment to be made by the AMS will determine the question as to whether Ms Mawson is entitled to an award, as sought, pursuant to s 67 of the 1987 Act.
I conclude that the requirements of s 352(3)(a) have been met. Notwithstanding the fact that no monetary amount has been ordered payable, the provisions of s 352(3)(b) have no application: Mawson v Fletchers International Exports Pty Ltd [2002] NSWWCCPD 5.
Interlocutory
Section 352(3A) of the 1998 Act provides:
“There is no appeal under this section against an interlocutory decision except with the leave of the Commission. The Commission is not to grant leave unless of the opinion that determining the appeal is necessary or desirable for the proper and effective determination of the dispute.”
The Commission, when deciding whether an Arbitrator’s decision is or is not interlocutory, has consistently applied the test as stated by Gibbs J in Licul v Corney [1976] HCA 6; 180 CLR 213 at 225:
“The test is: Does the judgment or order, as made, finally dispose of the rights of the parties?”
The appellant has failed to address the matters raised by s 352(3A) in the Application filed with respect to this appeal. In the circumstances a telephone conference was conducted on 21 May 2015, at which time it was accepted by the appellant’s solicitor that the Arbitrator’s order was interlocutory in nature and that leave of the Commission was required to proceed with the appeal.
The appellant was permitted to make an oral application for such leave during the course of that telephone conference. Leave was not opposed by Ms Mawson. Leave to proceed with the appeal was granted at that time. Reasons for granting leave were deferred to the occasion of delivery of this determination on appeal. My views concerning the Arbitrator’s approach to the undisputed frank injuries, the need to revoke certain findings, and to amend the terms of his remitter to the Registrar, were the bases for the granting of such leave. Such leave was necessary, in my opinion, for the proper and effective determination of the dispute.
Teleconference 21 May 2015
The earlier mentioned teleconference was attended by Mr Underwood, solicitor for the appellant, and Mr McManamey, counsel for Ms Mawson.
Following discussion and some argument, the following matters concerning the hearing before the Arbitrator were established:
(a) whilst the documents before the Arbitrator made no reference to alleged injury having occurred on 13 April 2005, the matter was conducted upon the basis that the appellant had conceded the occurrence of an injury to Ms Mawson’s back on that day;
(b) that Ms Mawson had argued that on the last day of employment, being 5 November 2008, she had received a frank injury to her back, or, in the alternative, that the appearance at that time of incapacitating symptoms had resulted from the onerous nature and conditions of her employment;
(c) that Ms Mawson had argued that the evidence supported a conclusion that the diagnosed disc lesion suffered by her had resulted from the injury received in April 2005, but that such question was one for the AMS, and
(d) that the appellant had argued that a back injury had been received by Ms Mawson at her home on the evening of 4 November 2008 and that such finding should be made by the Arbitrator.
During the course of the telephone conference, the appellant was granted leave to put supplementary oral submissions in support of the suggestion made in written submissions of error on the Arbitrator’s part in “failing to provide for a referral which addresses [the non-work related injury on 4 November 2008].”
It was argued that “…it’s an error that comes down to inadequate reasons and inadequate expression of the finding which comes within the broad umbrella of inadequate reasons” (T15, 21 May 2015). Both parties were granted leave to submit supplementary written submissions limited to the complaint made by the appellant relating to the “discrete issue of the suggested injury unrelated to work [said to have been received] immediately before cessation of employment” (at T31, 21 May 2015). A Direction was made that the appellant’s supplementary submissions were to be provided no later than 4.00 pm on 26 May 2015. As at the date of publication of this decision, no such submissions have been received by the Commission.
THE ARBITRAL PROCEEDINGS
The proceedings before the Arbitrator were recorded, a transcript has been produced and copies have been provided to the parties. The documentary evidence which was before the Arbitrator was noted by him at [9] of his Statement of Reasons (Reasons). Oral evidence was received at the hearing from Ms Mawson and from Mr John Hornbuckle, former foreman/manager of the nursery conducted by the appellant.
Evidence as to injury
Ms Mawson described the arduous aspects of her work to both Dr Bodel and Dr Powell. On 13 April 2005, she experienced back pain when lifting a crate, causing her to remain off work for “a week or so”. Her evidence established that on 13 March 2007, she again experienced disabling pain in her back whilst lifting at work. She ceased work and went home. Ms Mawson was unable to get out of her car upon arrival. An ambulance was called and she was transported to hospital where she remained for “about a week”.
The history recorded by Dr Bodel concerned Ms Mawson’s experience of increasing back pain whilst bending, twisting and lifting in the course of her work on 5 November 2008 causing her to again cease work.
Concessions by the appellant
As noted earlier, the appellant conceded that Ms Mawson had received back injury on 13 April 2005 and on 13 March 2007. It disputed the occurrence of injury on 5 November 2008 and disputed the allegation of injury resulting from the nature and conditions of her employment.
The factual issue
The oral evidence of Ms Mawson and that of Mr Hornbuckle concerned the question as to whether Ms Mawson had, on 5 November 2008, said to Mr Hornbuckle that she might have injured her back at her parents’ home on the evening of 4 November 2008 when lifting her disabled father. Ms Mawson denied making such a statement to Mr Hornbuckle and denied the occurrence of such an incident or injury. Mr Hornbuckle had said, in a statement made by him on 27 November 2008, concerning circumstances on 5 November 2008 the following:
“When I arrived in the area of Anne Maree I observed that she was standing in one spot, and transferring seedlings very slowly. I hopped off the tractor and walked towards Anne Maree. She did look as though she was in a lot of pain and I suggested to her that she go home, because she was in obvious pain. I think all she said to me at this stage was righto. She then walked with very small steps from the area down towards the office. By the time she arrived at the office I arrived in the vicinity of the office. I spoke with Anne Maree and she said to me that she didn’t do anything to her back and it could have been when she was lifting her disabled father the night before. She did not indicate at this point that there was an incident at work that caused the injury, as she didn’t know what caused her back to be sore. She did say (at the time I was talking to her in the office) that her back had been a little sore in the morning when she started work, but she kept working anyway. I mentioned to her that I could drive her home or organise someone to drive her home, however she said that she had an automatic vehicle and she would be able to drive herself home. She then left the work place at about 3.45 pm.”
Ms Mawson, in evidence-in-chief, denied that it was “possible that [she] strained [her] back lifting [her] father, [on 4 November 2008]” (T29, 21 October 2014). That denial was maintained when she was cross-examined (T50–51, 21 October 2014).
Mr Hornbuckle, in oral evidence, confirmed his statement made in November 2008. When cross-examined, Mr Hornbuckle confirmed that on the morning of 5 November 2008 Ms Mawson participated in routine stretching exercises which involved the back, legs, arms and neck. Mr Hornbuckle confirmed, when cross-examined, his earlier evidence as to what may have been said to him by Ms Mawson on the afternoon of 5 November 2008.
The medical evidence
Dr Bodel, who had been qualified on behalf of Ms Mawson to provide an opinion for the purposes of this litigation, provided a number of reports dated between 4 February 2011 and 16 January 2013. Dr Bodel recorded a history of recurring episodes of injury to Ms Mawson’s back at work.
In his report dated 16 January 2013, Dr Bodel diagnosed “disc pathology causing nerve root irritability in the legs leading to the need for decompressive surgical procedure and then subsequently a fusion…”. As to causation, Dr Bodel stated in that report:
“This lady’s injury has occurred as a consequence of the nature and conditions of her work in general. There have been a number of frank injuries over the years but the main injury in my view is the nature and conditions of work over time.”
Dr Powell, who had been qualified to provide an opinion on behalf of the appellant, accepted in his report dated 24 June 2011 that Ms Mawson suffered from degenerative lumbar disc pathology and that it was:
“… possible that the nature and conditions of her employment and in particular the workplace incidents in April 2005 and March 2007 have resulted in aggravation, exacerbation or progression of the well established pre-existing degenerative changes. On that basis, they may have contributed to her need for surgery [a]s well as to her ongoing incapacity for work.”
Submissions before the Arbitrator
The appellant submitted that the matter should be referred for assessment by an AMS “at least in respect of injuries … sustained [on 13 April 2005] and 13 March 2007” (T8, 21 October 2014). Injury caused by the nature and conditions of employment was denied by the appellant, as was the allegation of a frank injury occurring on 5 November 2008.
The appellant’s submission concerning the evidence of Mr Hornbuckle was as follows (at T17–18, 17 December 2014):
“… there is no basis to find that there was a mechanism which caused injury on 5 November 2008. The more logical explanation is what occurred to the applicant herself on the day, that is that she had hurt herself lifting her father. My submission is that it would be appropriate for you to specifically address that as the basis on which the applicant’s pathology might have been aggravated prior to commencing work that day.
The matter is to be referred to an AMS, who will need to make assessments with reference to at least the injuries in 2005 and 2007. And my submission is that it is in the interests of an appropriate assessment of impairment resulting from particulars [sic] injuries that the attention of the AMS is drawn to the fact that there is a basis of injury distinct from the compensable one, in order that there isn’t an assessment on the assumption that the pathology results exclusively from work-related causes.”
The Arbitrator responded to counsel as follows (at T18, 17 December 2014):
“Thank you. I agree with you; it’s vital to draw the AMS’ attention to that.”
Ms Mawson argued before the Arbitrator that, “on one view of the matter, what happens [sic] on 5 November 2008 should really be seen as being – rather than a separate injury but rather a manifestation of the general injury”. It was argued that the “nature and conditions included the events of 5 November 2008” (at T28, 17 December 2014).
It was further argued that the question concerning Mr Hornbuckle’s evidence as to lifting Ms Mawson’s father was a “non-issue” and that there was “no evidence [Ms Mawson] injured herself the night before”. The Arbitrator responded by stating that Mr Hornbuckle’s evidence raised an issue “because [counsel for the appellant] has made it an issue”, and that he, the Arbitrator, had “to deal with it” (T28, 17 December 2014).
The Arbitrator’s decision
The Arbitrator, when summarising the allegations made by Ms Mawson, omitted to record the allegation of injury occurring on 13 April 2005. Whilst both parties had made reference to that particular matter in the course of submissions, and the appellant had conceded the occurrence of injury on that day, the Arbitrator’s omission may be explained having regard to the seriously flawed state of the documentation presented to the Commission by Ms Mawson’s solicitors.
The Arbitrator accepted Mr Hornbuckle’s evidence and the following finding was recorded at [35] of Reasons:
“… [Ms Mawson’s] statement that she had been suffering a ‘nigglish’ back is reflected in Mr Hornbuckle’s statement, and the probabilities are that if she made that statement, she most likely made her comment about lifting her father.”
The Arbitrator found Ms Mawson to be an unreliable witness concerning the “impugned comments”.
The Arbitrator proceeded to make the following findings (between [37] and [40] of Reasons):
“37. I am satisfied that the applicant’s back became symptomatic at around 3.20 pm on 5 November 2008, after she had been working for about 7 hours with some awareness of back weakness during that time. I am satisfied that the applicant may indeed have lifted her father the evening before, and that she may have noticed that her back had been ‘a little sore’ when she started work in the morning.
38. Mr Tanner submitted in the course of argument that the actual onset of her back pain in the afternoon of 5 November 2008 was the revelation of an injury which the applicant had sustained the night before whilst she was lifting her father. He submitted that I would not find any of the activity the applicant had engaged in whilst working for the respondent had the requisite mechanism to cause any injury at all. I agree that the onset of pain was a revelation, but I differ from Mr Tanner as to what was revealed. For the reasons I shall shortly come to, I am satisfied that the revelation was of the pre-existing degenerative condition.
39. The applicant undoubtedly suffered a degenerative back which had been causing her occasional discomfort for years. I accept the applicant’s evidence that the seasonal work with the respondent did cause the onset of symptoms. Mr Hornbuckle agreed that the applicant undertook the stretching regime in the morning without complaint and there was no indication that she had suffered an injury until a fellow worker had informed Mr Hornbuckle in the smoko room. The applicant undoubtedly had a grumbling back, as her medical history demonstrated. In that context, the lifting of the applicant’s father becomes, along with any other non work related events, a matter for the consideration of the AMS as to the contribution made by the applicant’s pre-existing condition to the impairment caused by her injury.
40. Mr Tanner submitted that there was no precise explanation as to how the aggravation developed during the day. He submitted that the description by Mr Hornbuckle of the activity carried out indicated that there was no part of the nature of conditions [sic] of the applicant’s employment that could have caused the onset of her injury. I think that submission ignores the temporal connection between the amount of time the applicant was working that day before the onset of her condition. It also overlooks the detail of the nature of the work being performed. The repetitive nature of the applicant’s duties, the prolonged standing, the occasional bending and the necessity of having to work on soft sand were contributory factors in their potential to aggravate an already degenerate spine.”
Following a detailed summary of the expert medical evidence, the Arbitrator made the following finding concerning the occurrence of injury (at [71] of Reasons, omitting footnotes):
“The consensus of the opposing medico-legal experts is that the injury (and impairment, should an AMS find there so to be) may be described as being caused as a whole by the nature and conditions of the applicant’s employment ‘encompassing all of the work place incidents or aggravations that occurred in the period’, as Dr Powell put it. Or, as Dr Bodel said, ‘as a consequence of the nature and conditions of her work in general’.”
The Arbitrator proceeded to find that he was not satisfied that “any of the so-called ‘frank’ injuries pleaded or indeed mentioned in the course of this matter fall within the definition of ‘injury’” as found in s 4 of the 1998 Act and s 4 of the 1987 Act (at [79] of Reasons). The Arbitrator’s reasoning was based upon his finding that the “incidents pleaded were self-limiting” (at [82] of Reasons).
Following a further examination of the medical evidence, the Arbitrator concluded (at [90] and [91] of Reasons):
“90. I therefore do not regard the concession made by the respondent that it has ‘no issue’ with those of the frank incidents pleaded being remitted for referral as being soundly made. Indeed, there seems no logical reason why only selected frank incidents should be referred over those that have not been selected. I am satisfied that the opinions of Doctors Bodel and Powell are correct and that the nature and conditions of the applicant’s employment aggravated the applicant’s underlying degenerative condition. No argument was directed to the deemed date which I accept as being properly pleaded.
91. It follows that there will be awards for the respondent in relation to the claims for injury on 13 March 2007 and 5 November 2008, as no injury has been proven pursuant to s 4(a) of either Act.”
DISPOSITION OF THE APPEAL
Grounds 2 and 3
It is convenient to firstly address grounds two and three. Those grounds are noted at [11] above. The dispute before the Arbitrator had been conducted by the parties in circumstances where Ms Mawson alleged, and the appellant did not dispute, that she had received injury to her back on 13 April 2005 and on 13 March 2007. No finding was made by the Arbitrator concerning the alleged injury which was said to have been received in April 2005. Notwithstanding the concession made by the appellant concerning the occurrence of injury in March 2007, the Arbitrator concluded that proof of injury on that occasion had not been made out. A similar finding was made that no injury had been received on 5 November 2008. That last finding has not been challenged on this appeal.
The Arbitrator stated his reasons for concluding as he did concerning the “frank” injuries between [86] and [91] of his Reasons. Following discussion of relevant authority, the Arbitrator expressed his view that no “sudden or identifiable pathological change has been demonstrated in relation to the frank incidents pleaded, or indeed reported in this matter” (Reasons [89]). That conclusion appears to have been founded upon the Arbitrator’s assessment of radiological evidence which demonstrated, as observed by him, “no relevant change” found in investigations dated between March 2006 and November 2008, as well as statements made by Dr Bodel and Dr Powell concerning the relevance of Ms Mawson’s work to the causation of injury.
Submissions advanced on behalf of the appellant suggest error of law concerning his finding of no injury in March 2007 in circumstances where “there was no dispute between the parties” (ground two). That submission, which suggests that such a finding must have been made, should be rejected. The appellant’s concession cannot bind the Commission and such concession may be disregarded by the Arbitrator in circumstances where there is some sound basis to question the admission or concession. Such a conclusion was reached by the Full Federal Court in Comcare v Fiedler [2001] FCA 1810, albeit in circumstances where the Court was considering the function of a tribunal that was reviewing an administrative decision. It was there stated by the Court (Drummond, Kiefel and Dowsett JJ) at [39]:
“The Tribunal is not, as a general rule, required to ignore the fact that one or both parties have made admissions or concessions, express or implied, that particular issues which the original decision-maker may have had to consider need not be the subject of inquiry and determination by the Tribunal. The Tribunal will, however, fall into error of law by failing to inquire of its own motion into, and make a finding on, an issue the subject of an admission or concession by a party that is material to its decision if there is reason to doubt that the admission or concession is factually justified. But in the absence of there being some reason to question the admission or concession, the Tribunal will generally be entitled not to inquire into the issue for itself, but to act on that admission or concession in making its decision.”
It is nevertheless clear that both the appellant and Ms Mawson anticipated findings in accordance with the matters not in dispute, namely injury received on 13 April 2005 and 13 March 2007. Whilst it has not been specifically raised in argument, it is clear that the Arbitrator’s failure to address the injury agreed to have occurred in April 2005 constitutes error on the Arbitrator’s part in failing to “do justice to the issues posed by the parties”: per McColl JA in Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 (at [59]). Such error may, in my view, be corrected on this appeal.
Having regard to the evidence of Ms Mawson, the fact that the parties agree that such injury occurred, and given that no prejudice might arise, I consider it appropriate to determine on this appeal that Ms Mawson received a back injury on 13 April 2005, and I so find.
The appellant suggests error of fact and law concerning the Arbitrator’s reasoning and conclusion when he rejected the conceded injury said to have occurred in March 2007. Leaving aside the Arbitrator’s failure to alert the parties to his intention to disregard the concession or admission made by the appellant, an argument which has not been raised, I am of the opinion that, having regard to the unchallenged evidence of Ms Mawson concerning the events and consequences of work performed on 13 March 2007, the Arbitrator has erred in fact. The uncontroverted evidence was that significant and disabling incapacity occurred whilst Ms Mawson was performing arduous physical duties on that day which led to a hospital admission and a need to cease work, which need endured to the end of the season. The Arbitrator’s conclusion that no injury as defined in the legislation had been received must be revoked. I am satisfied, and I find on this appeal, that Ms Mawson received a back injury arising out of or in the course of her employment on 13 March 2007.
Grounds 1 and 4
Grounds one and four are noted at [10] above. Ground one suggests error on the part of the Arbitrator in failing to refer to the AMS “the issue of whether whole person impairment had resulted from the undisputed injury which the worker had received to her lower back in April 2005”.
I have earlier determined on this appeal that the Arbitrator had erred in failing to make a finding concerning the April 2005 injury. The consequence was that a relevant injury was not the subject of referral to the AMS. That omission by the Arbitrator constitutes error, which error may be corrected on this appeal. In the circumstances, it is appropriate that the terms of referral made by the Arbitrator be amended to include reference to injury occurring on 13 April 2005 as appears below.
Ground four, whilst it is drafted in an argumentative form, suggests error of the Arbitrator in “failing to issue an order (to be included in the Registrar’s referral to the AMS) directing the AMS to the finding that [Ms Mawson] had injured her back when lifting her father on the night of 4 November 2011 [sic, 2008]”. It is this ground, and the written submissions which seem to be put in support, which necessitated conduct of the earlier mentioned teleconference.
It was then raised with Mr Underwood that the relief sought by the appellant appeared to seek “a referral to be made to the AMS expressly stating that there was an injury [at Ms Mawson’s parents’ home on 4 November 2008]”. The terms of the Arbitrator’s findings were then the subject of discussion. The first difficulty faced by the appellant is that there had been no express finding by the Arbitrator, as is asserted, that Ms Mawson “had injured her back” as described. I have earlier (at [45] and [46] above) noted the Arbitrator’s conclusions concerning Ms Mawson’s probable statements to Mr Hornbuckle and her probable experience of pain at relevant times.
It was raised during exchanges with Mr Underwood (at T15, 21 May 2015) that the question of injury at home had been argued before the Arbitrator and that the appellant had the Arbitrator’s determination on that issue. When questioned as to the identification of error, argument seemed to be advanced, for the first time, that there had been a failure by the Arbitrator to provide adequate reasons for the determination of the question concerning non work-related injury occurring on 4 November 2008 (at T15). Those tentative submissions have not been supplemented as was permitted at the conclusion of the teleconference.
It was, in my view, appropriate, as acknowledged by the Arbitrator, that the Arbitrator’s findings concerning the comments made by Ms Mawson to Mr Hornbuckle, and her probable physical state when commencing work on 5 November 2008, be brought to the attention of the AMS. Given the manner in which the matter was conducted by the parties, I conclude that the Arbitrator’s failure to direct that his findings, concerning Ms Mawson’s comments and her probable experience of pain, be brought to the attention of the AMS constitutes error. Such may be corrected on this appeal by directing that this decision, which has addressed the matters in dispute before the Arbitrator and his findings, be brought to the notice of the AMS together with those documents enumerated at [4] of the Arbitrator’s Certificate of Determination. Appropriate orders appear below.
DECISION
For the reasons earlier stated, the following orders are made on this appeal:
1. Paragraph [2] of the Certificate of Determination dated 22 January 2015 is revoked and the following findings are made in its place:
“2. The applicant received injury to her back on 13 April 2005 and on 13 March 2007 arising out of or in the course of her employment.”
2. The Arbitrator’s finding of injury caused by the nature and conditions of employment is confirmed.
3. Paragraph [4] of the Certificate of Determination dated 22 January 2015 is amended by revocation of what appears at dot point one and substitution with the following:
“• Date of injuries: injury to back on 13 April 2005, 13 March 2007 and by reason of nature and conditions of employment from January 2001 to November 2008 (deemed date of injury being 12 April 2011).”
4. The Arbitrator’s findings and the Certificate of Determination dated 22 January 2015 are otherwise confirmed.
5. The Approved Medical Specialist is to have access to this decision on appeal following referral for assessment by the Registrar.
Kevin O'Grady
Deputy President
11 June 2015
I, STEVEN HAMPSON, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O'GRADY, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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