Fowell v TNT Australia Pty Limited
[2007] NSWWCCPD 35
•6 February 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION
CONSTITUTED BY AN ARBITRATOR
CITATION:Fowell v TNT Australia Pty Limited [2007] NSWWCCPD 35
APPELLANT: Ronald Gricham Fowell
RESPONDENT: TNT Australia Pty Limited
INSURER:Allianz Australia Workers Compensation (NSW) Limited
FILE NUMBER: WCC 13425-05
DATE OF ARBITRATOR’S DECISION: 7 June 2006
DATE OF APPEAL DECISION: 6 February 2007
SUBJECT MATTER OF DECISION: Medical Assessment Certificate; causation; section 323 of the Workplace Injury Management and Workers Compensation Act 1998
PRESIDENTIAL MEMBER: Acting Deputy President Julian Martin
HEARING:On the papers
REPRESENTATION: Appellant: McClellands Lawyers
Respondent: Goldbergs Lawyers
ORDERS MADE ON APPEAL: 1. The decision of the Arbitrator dated 7 June 2006 is confirmed.
2.No order as to costs of the appeal.
BACKGROUND TO THE APPEAL
On 19 June 2006 Ronald Gricham Fowell (‘Mr Fowell’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 7 June 2006.
The Respondent to the Appeal is TNT Australia Pty Limited (‘TNT’).
Mr Fowell was working for TNT as a driver when on 26 August 1988 he injured his right ankle. The injury happened when dropping off some parcels at the TNT freight dock. Whilst jumping up onto the dock he slipped on some oil and was thereby injured.
After two weeks off Mr Fowell returned to lighter work as a supervisor. He continued to have trouble with his right ankle and underwent a number of surgical procedures. He returned to work with TNT as a supervisor after each of these procedures.
Mr Fowell commenced proceedings in the then Compensation Court of NSW for lump sum compensation as a result of the injury. On 6 March 1996 the parties, having reached agreement, filed Terms of Settlement under which Mr Fowell was paid lump sum compensation pursuant to section 66 and section 67 of the Workers Compensation Act 1987 (‘the 1987 Act’) based on 50% permanent loss of efficient use of the right leg below the knee.
In August 2001 Mr Fowell underwent a below knee amputation. He returned to work with TNT and although not entirely clear it appears he stopped work in December 2004 due to multiple myeloma affecting the sacrum.
On 14 January 2005 Mr Fowell wrote to TNT claiming further lump sum compensation as a result of the injury on 26 August 1988. As the matter did not resolve an Application to Resolve a Dispute was lodged in the Commission on 10 August 2005.
THE ARBITRATOR’S DECISION
A teleconference was arranged with the parties for 19 October 2005, however it was rescheduled to 7 November 2005. On this last mentioned date the matter was referred to Dr John Beer, Orthopaedic Surgeon and Approved Medical Specialist. On 25 January 2006 the Medical Assessment Certificate was issued.
On 1 March 2006 Mr Fowell lodged an Application to Appeal the Decision of the Approved Medical Specialist. On 4 May 2006 the Registrar refused leave to appeal as the Application was filed out of time.
A further teleconference was held between the parties on 1 June 2006. A ‘Certificate of Determination’ dated 7 June 2006 records the Arbitrator’s orders as follows:
“An award in favour of the Respondent in respect to an increase in an award for s.66 and s.67 for the right leg at or below the knee [sic] in accordance with the Medical Assessment Certificate of Dr John C Beer, Approved Medical Certificate dated 25 January 2005 [sic].”
On 19 June 2006 Mr Fowell sought leave to appeal the Arbitrator’s decision.
ISSUES IN DISPUTE
The issues in dispute in the appeal are:
·did the Arbitrator err in failing to determine the issue of causation, and
·what is the status of the Medical Assessment Certificate?
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by both parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
The amount of compensation at issue on the appeal is at least $5,000.00 (section 352(2)(a) of the 1998 Act).
No amount was awarded in the decision appealed against and therefore section 352(2)(b) of the 1998 Act has no application (Mawson v Fletchers International Exports Pty Limited [2002] NSWWCCPD 5).
Accordingly I grant leave to appeal.
FRESH EVIDENCE
Neither party seeks leave to introduce fresh evidence.
PRELIMINARY
In the Application to Resolve a Dispute Mr Fowell sought lump sum compensation in respect of the right leg, back and left leg as a result of the injury on 26 August 1988.
At the teleconference on 7 November 2005 the Application was amended to claim lump sum compensation for the right leg below the knee only. It was agreed at this teleconference that the Approved Medical Specialist was to assess the ‘permanent impairment [sic] of the right leg below the knee due to injury on 26 August 1988’. The Approved Medical Specialist was informed of the previous settlement of 50% permanent loss of efficient use of the right leg below the knee and specifically asked:
“Did the need for the subsequent amputation on 23.8.2001 of the applicant’s right leg below the knee arise because of a pathology established prior to the injury of the applicant on 26.8.1988?”
Dr Beer answered no to this question but qualified it as follows:
“As such the Below knee amputation of the applicant’s right leg of 2001 did have some contribution from the pre-existing pathology but the major contribution was the lateral ligament injury of the ankle joint and continued aggravation of the pre-existing arthritis of the ankle joint by the initial injury and the continued instability.”
Dr Beer went on to assess 75% permanent loss of efficient use of the right leg below the knee. The doctor then deducted one-third of this amount due to pre-existing injury, abnormality or condition. This left Mr Fowell with 50% loss of efficient use of the right leg below the knee and accordingly no increase from the earlier agreement between the parties.
EVIDENCE AND SUBMISSIONS
Mr Fowell had injured his right ankle in 1979 whilst playing basketball in a gymnasium. At the time of this injury he was in the Army and states he was out of commission for 3 to 4 weeks. After this injury Mr Fowell has stated that he was very active playing a great deal of sport. He further states that on leaving the Army he was given a full medical examination and was cleared as being fully fit on discharge. On commencing employment with TNT, prior to the injury, he was medically examined and passed as fully fit.
In January 1988, 7 months before the injury, Mr Fowell had aching in his right ankle and saw his general practitioner who prescribed anti-inflammatories and arranged for x-rays to be taken. Mr Fowell states he was off work for a few days only and thereafter carried on working until the accident in August 1988. He has stated that his work with TNT before the accident was very physical and involved him in loading/unloading trucks and jumping up and down off the platform at work.
The x-rays taken in January 1988 clearly showed a lateral tilted talus with incongruity of the ankle joint. Dr Bodel, who examined Mr Fowell at the request of TNT on 18 February 2005, noted these earlier x-rays and was of the opinion that the injury with TNT merely caused a soft-tissue aggravation of a longstanding pathology in the right ankle. The doctor was of the view that the subsequent amputation had arisen as a result of pathology prior to his injury at work.
Dr Philip Marnie, Orthopaedic Surgeon, examined Mr Fowell at the request of his solicitors on 4 October 1995. Dr Marnie also had regard to the x-rays of January 1988 and was of the opinion that the injury in August 1988 changed the whole picture of Mr Fowell’s ankle. The doctor was of the view that the work injury produced quite marked soft tissue damage from his history of swelling and bruising and further damage to his ankle, probably to the lateral ligament. Dr Marnie was of the opinion that in 1995 Mr Fowell had 50% permanent loss of efficient use of the right leg below the knee. Although the doctor did not spell out any deduction for previous injury or pre-existing condition or abnormality, he did state the 50% loss was as a result of the work injury.
Dr Marnie examined Mr Fowell again on 22 January 2004, after the amputation, and on this occasion assessed the permanent loss of efficient use of the right leg at and below the knee [sic] at 70%. On this occasion there is no deduction for previous injury, nor does the doctor specifically state the loss was as a result of the work injury.
There are three medical reports from Dr Ian Meakin, Orthopaedic Surgeon, who had treated Mr Fowell in 1992. The medical reports are dated 3 June 1992, 19 July 1995 and 23 August 1995. Dr Meakin assessed 35% loss of efficient use of the right leg below the knee as a result of the work injury.
Status of the Medical Assessment Certificate
Mr Fowell submits that the deduction made by Dr Beer of one-third due to pre-existing injury, abnormality or condition “did not relate to the powers of an Approved Medical Specialist”. It is therefore submitted that the matter should have proceeded to arbitration in order to determine the issue of causation. Mr Fowell goes on to submit that at the arbitration hearing he would have had the opportunity to argue that the need for the amputation arose from the work injury.
TNT submits that there was no error by the Arbitrator and in fact Dr Beer made a finding that the amputation was related to the injury. There is no doubt on reading the Medical Assessment Certificate that Dr Beer found the need for the amputation arose from the injury at work. However this issue answered by the Approved Medical Specialist is not binding on the parties. Section 326 of the 1998 Act sets out what is binding:
“(1)An assessment certified in a medical assessment certificate pursuant to a medical assessment under this Part is conclusively presumed to be correct as to the following matters in any proceedings before a court or the Commission with which the certificate is concerned:
(a)the degree of permanent impairment of the worker as a result of an injury,
(b)whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality,
(c)the nature and extent of loss of hearing suffered by a worker,
(d)whether impairment is permanent,
(e)whether the degree of permanent impairment is fully ascertainable.
(2)As to any other matter, the assessment certified is evidence (but not conclusive evidence) in any such proceedings.”
As Deputy President Fleming stated in Cole v Baytech Industrial Pty Limited [2005] NSWWCCPD 70 (‘Cole’s case’):
“Section 323(1) of the 1998 Act provides that in assessing the degree of permanent impairment that arises as a result of an injury, a deduction must be made for any proportion of the impairment that is due to a previous injury. It is clear from section 323(3) of the 1998 Act that it is the AMS who is required to undertake this assessment. Thus, while section 326(1)(b) of the 1998 Act does not specifically state that the AMS’s finding on the amount of that proportion is binding, a reading of Part 7 of Chapter 7 of the 1998 Act as a whole, leads inescapably to that conclusion.”
Although issues of injury and causation are matters which should be determined by the Arbitrator prior to the referral to the Approved Medical Specialist (Cole’s case), these were not issues in this matter. In the Reply to the Application TNT clearly stated the issues as:
·Whether any deduction is applicable to any assessed permanent impairment or loss of use pursuant to Section 323 of the Workplace Injury, Management and Workers’ Compensation Act and if so, in what amount.
·Whether the Applicant has any further entitlement or entitlements under Section 66 of the Act and if so, in what amount.
·Whether the Applicant has any further entitlement under Section 67 of the Act and if so, in what amount.
·Whether there has been a change in circumstances to justify an increase in the amounts previously awarded under the Act.
As Deputy President Fleming stated in Cole’s case:
“Prior to legislative changes in 2001 affecting the assessment of claims made under section 66 of the 1987 Act, it was common in cases of deterioration or further alleged permanent loss to present evidence as to the assessment of any change from the same medical practitioner who initially examined the worker. Under the current scheme for the resolution of medical disputes it is the AMS who makes this latter determination.”
Although the Arbitrator had asked the Approved Medical Specialist to comment on an issue that was not binding on the parties, the assessment of loss and deduction are binding.
DECISION
For the above reasons the decision of the Arbitrator dated 7 June 2006 is confirmed.
COSTS
TNT has submitted that Mr Fowell should be ordered to pay their costs. Having considered this matter I am not satisfied that such an order is appropriate.
No order as to costs of the appeal.
JULIAN MARTIN
Acting Deputy President
6 February 2007
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JULIAN MARTIN, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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