Galluzzo v Commonwealth Bank of Australia - [2014] NSWWCCPD 82

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Galluzzo v Commonwealth Bank of Australia [2014] NSWWCCPD 82
APPELLANT:	Antoinette Galluzzo
RESPONDENT:	Commonwealth Bank of Australia
INSURER:	Self-insured
FILE NUMBER:	A1-5194/13
ARBITRATOR:	Mr J Phillips SC
DATE OF ARBITRATOR’S DECISION:	28 August 2014
DATE OF APPEAL DECISION:	15 December 2014
SUBJECT MATTER OF DECISION:	Injury; claim for lump sum compensation; purported determination of claim for lump sum compensation without assessment by Approved Medical Specialist
PRESIDENTIAL MEMBER:	Deputy President Bill Roche
HEARING:	On the papers
REPRESENTATION:	Appellant:	Carter & Blumer
Respondent:	TurksLegal
ORDERS MADE ON APPEAL:	1. The Arbitrator’s determination of 28 August 2014 is revoked and the matter remitted to another Arbitrator for determination of all outstanding issues. 2. The respondent employer is to pay the appellant worker’s costs of the appeal, as agreed or assessed. 3. Costs of the second arbitration, and of the first arbitration, are to follow the result of the second arbitration.

INTRODUCTION

This appeal concerns a claim for lump sum compensation. The issue in dispute on appeal is whether, having found that the worker suffered bruising to the right side of her body (including her right shoulder) and grazes to her right knee in a fall in the course of her employment in December 2002, the Arbitrator erred in not referring the assessment of whole person impairment that resulted from that injury to the Registrar for referral to an Approved Medical Specialist (AMS). For the reasons explained below, the appeal is successful.

BACKGROUND

The appellant worker, Antoinette Galluzzo, worked for the respondent employer, the Commonwealth Bank of Australia, as a financial planner. On 19 December 2002, Ms Galluzzo attended a team meeting at the Country Comfort Motel (the Motel) in Wagga Wagga. As she was leaving the meeting, she fell down the stairs leading from the first floor to the ground floor. She gave evidence that she immediately felt significant pain in her right knee, left knee, right shoulder and had bruising about her body.
The incident was witnessed by respondent’s area manager, Marcus Evans, and also by a Scott Mayfield. Ms Galluzzo reported the fall to her boss, Lynne Furse, and the Motel’s receptionist, Rebecca Wade. Ms Galluzzo relied on a document she described as “the incident report form”, which had been provided by the Motel. That document includes the following, under “Nature of Injury/Condition”:
“bruises right side shoulder, leg, hip, grazed knee”
Under “Narrative”, the following appears:
“Saw guest falling/tumbling down stairs near reception desk.”
Ms Galluzzo described the incident report form as “a report of the incident to Lynne Furse”. She said that Rebecca Wade completed the top half of the form, which set out Ms Galluzzo’s name, address, the name and address of a witness (Nicole Bourke), and the nature of the injuries. She said that “someone from the Commonwealth Bank got the form and it was completed also with motel staff”. After the fall, Ms Galluzzo was driven to Ms Furse’s office in Wagga Wagga. She then went home and stayed at home until Christmas/New Year (this assertion seems to be disputed).
The first time Ms Galluzzo saw the incident report form was when Ms Furse gave it to her on 5 July 2006. At the same time, Ms Furse gave Ms Galluzzo a letter stating that her role was to change to that of a paraplanner and threatening termination of her employment due to the condition of her right knee, which Ms Galluzzo said had been painful ever since the fall. Ms Galluzzo said that she also had pain in her right shoulder and right hip “up until the present day”, it being “basically a continual niggling type pain” (Ms Galluzzo’s statement of 14 May 2013, at [15]).
For various reasons that are not directly relevant to the appeal, Ms Galluzzo did not submit a claim form in respect of this injury until 2 April 2012. She said in the claim form that she injured her right knee, right shoulder, right hip and leg in the fall on 19 December 2002.
Also on 2 April 2012, Ms Galluzzo claimed lump sum compensation of $20,500 in respect of a 12 per cent whole person impairment (10 per cent for the right knee and two per cent for the right shoulder). Though she also later claimed the cost of hospital and medical expenses, that claim was withdrawn at the arbitration. She has made no claim for weekly compensation.
In support of her claim, Ms Galluzzo relied on several reports from Dr Patrick, orthopaedic surgeon. Dr Patrick had reported on Ms Galluzzo in 2004, 2005 and 2006. His first reports related exclusively to a fall in 2001 (which is unrelated to the present proceedings), in which Ms Galluzzo fractured her right wrist and injured her neck and back when she slipped on a skateboard at a friend’s house. However, he took no history of the 2002 fall, or the injuries in that fall, until his report of 25 July 2006.
In his report of 7 February 2012, Dr Patrick took a history of the incident on 19 December 2002 and that, as a result of the fall, Ms Galluzzo had significant bruising about her right hip/buttock region, her right shoulder, as well as an abrasion to her right knee, which was painful. She did not seek medical treatment immediately, largely because she was already apprehensive about losing her job. He also noted an incident in 2005 when she knelt down at work (with the respondent) to extract a file from a lower filing cabinet when she felt a crunching sensation in her right knee.
Dr Patrick recorded that Ms Galluzzo developed a large right knee effusion in 2005/6 and that she had arthroscopic surgery on that knee in April 2006, which he felt was a consequence of the 2002 fall. The surgery revealed significant right knee synovitis, which Dr Patrick said was probably post-traumatic synovitis, noting that Ms Galluzzo is “sero-negative”. Since then she had ongoing mono-arthropathy in her right knee with recurrent effusions.
Dr Patrick thought that, in the fall in 2002, Ms Galluzzo probably sustained some degree of twisting injury and direct trauma anteriorly, and probably some mild ligamentous damage. In addition, he thought that she also sustained injury to the right shoulder, with some direct trauma with bruising and likely some degree of post-traumatic subacromial bursitis/impingement continuing. There was no definite abnormality at the right hip. He felt that the 2005 incident was probably an exacerbation of Ms Galluzzo’s right knee problem rather than a “frank new incident of injury”.
The 2001 injury required extensive time off work in February 2002 and again in August 2002 for surgery to the right wrist. Because Ms Galluzzo had had a lot of time off in 2002, because of her serious wrist injury, she said that she did not want to jeopardise her position by taking time off because of her right knee pain.
In November 2005, Ms Galluzzo had a medical procedure on her back, again as a result of the 2001 fall. During physiotherapy after that procedure, the pain in her right knee became worse and, from late 2005, her knee was very swollen and painful. The first mention of her right knee to her general practitioner at Leeton Medical Centre was (apparently) on 3 February 2006. The entry for that date reads, “[p]roblems with (R) knee Swelling/acute [indecipherable] Saw GP in Wagga XR/US”.
In a s 74 notice dated 4 June 2012, the respondent disputed liability on the grounds that Ms Galluzzo had not given notice of injury as soon as possible after the injury happened, had not claimed compensation within six months after the injury, and had not suffered any injury on 19 December 2002. Given that the incident was witnessed by the respondent’s area manager, Marcus Evans, and reported to Lynne Furse, Ms Galluzzo’s boss, on the day it happened, it is difficult to see how it could seriously be argued that Ms Galluzzo did not report the injury.
In a reserved decision delivered on 28 August 2014, the Arbitrator accepted that the 2002 fall was not “an innocuous event”, but there was no “corroborating medical evidence that [Ms Galluzzo] suffered more than bruising to the right side of her body and grazes to her knee” ([53]). He said, contrary to Ms Galluzzo’s evidence, that she took no time off work and that she did not seek any medical treatment. He added that this was in the context of a significant non-work related injury in 2001 and “sudden symptoms she had to her knee in 2005 which appear to have an origin in exercises she was doing for her back and also an unpleaded event at work when she was kneeling down in 2005”.
Dealing with the medical evidence, the Arbitrator said, also at [53]:
“Such material provides sufficient competing possibilities and inferences which discount any finding or prevailing inference that [Ms Galluzzo] as a result of the fall in December 2002 injured her right shoulder and right knee other than passing bruises and grazes about which she sought no medical treatment. It is to stretch credulity to place on the fall in December 2002 the problems which arose in the later part of 2005 and subsequently. This so [sic] particularly keeping in mind that [Ms Galluzzo] continued in the intervening time to see Dr Patrick who has provided a number of reports. In the earlier ones which post date the December 2002 fall there is no mention of the December 2002 fall which is not raised by the applicant with Dr Patrick until a consultation with the applicant on 3 July 2006, see exhibit 2.” (emphasis added)
The Arbitrator concluded, at [54], that he was:
“not persuaded that [Ms Galluzzo’s] claim for lump sum benefits of [sic, for] injury to her right shoulder and right knee in the fall of December 2002 is made out. There will be an award for the respondent with respect to those claims for lump sum benefits.”
The Commission issued a Certificate of Determination on 28 August 2014 in terms consistent with this finding and adding “[n]o order as to costs”. In view of the Arbitrator’s finding, he did not deal with the other issues argued, namely, the notice of injury and notice of claim issues.
Ms Galluzzo has appealed this determination.

ON THE PAPERS

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.”
Ms Galluzzo’s solicitor, Mr Ian Geddes, has sought an oral hearing:
“as the presiding member is likely to ask questions of legal presentatives [sic] in relation to issues raised with respect to submissions in support of the appeal and in particular as to the findings and/or lack of findings of the Arbitrator with respect to the Arbitration Hearing.”
Since Mr Geddes made this submission, I held a teleconference in this matter on 26 November 2014 and Ms Galluzzo has, pursuant to leave granted by me, amended the grounds of appeal and the submissions in support. The respondent has filed submissions in response to that document.
Having regard to Practice Directions Nos 1 and 6 and the documents that are now before me, 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.

ISSUES IN DISPUTE

The appeal, as originally filed, contended that the Arbitrator erred in finding that Ms Galluzzo was not entitled to lump sum compensation and that the Arbitrator should have accepted Ms Galluzzo’s evidence because she was not cross-examined. As the second point was misconceived, and ignored the Arbitrator’s findings, I convened the teleconference referred to above.
At the teleconference, Ms Galluzzo was represented by Mr Hammond, of counsel, and the respondent was represented by Mr Andrew Parker, of counsel. I drew to the parties’ attention the Arbitrator’s findings at [53] (see [16]–[17] above), that Ms Galluzzo had received injuries in the fall in December 2002, and that, if that was correct, and it had not been challenged on appeal, the authorities were clear that any claim for lump sum compensation as a result of those injuries had to be assessed by an AMS.
Mr Hammond sought leave to file supplementary submissions. Over Mr Parker’s opposition, I granted leave to Mr Hammond to file an amended notice of appeal and set a timetable for further submissions.
On 3 December 2014, Mr Hammond filed a further Amended Application Appeal Against Decision of Arbitrator in which he submitted that, in light of the Arbitrator’s finding of injury at [53], the Arbitrator erred in not referring Ms Galluzzo’s claim to an AMS for assessment of her whole person impairment as a result of that injury, if any.
In response, Mr Parker submitted that the respondent accepted that the Arbitrator found that Ms Galluzzo sustained bruises and grazes as a result of the incident (in 2002) and also that that finding has not been challenged. He said that if the additional ground is upheld, the matter must be remitted to the Arbitrator (or another Arbitrator) to determine the outstanding disputes.

DISCUSSION AND FINDINGS

The Arbitrator’s decision is plainly wrong and cannot stand. The Arbitrator has failed to appreciate the nature of the issue in dispute. The issue was whether Ms Galluzzo suffered a s 4(a) injury to her right knee and right shoulder in the 2002 fall. That is, the Arbitrator had to determine if Ms Galluzzo suffered a “personal injury” in the fall.
A “personal injury” is “a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state” (Kennedy Cleaning Services Pty Ltd v Petkoska [2000] HCA 45; 200 CLR 286 per Gleeson CJ and Kirby J at [39]). The Commission has consistently applied this statement (North Coast Area Health Service v Felstead [2011] NSWWCCPD 51 from [79] (Felstead)). Moreover, as was explained in Felstead (at [81]), to constitute a personal injury, such a physiological change or disturbance change “may be as simple as a bruise or a soft tissue strain”.
The Arbitrator accepted that Ms Galluzzo suffered “bruises and grazes” to her right shoulder and right knee in the fall but failed to acknowledge that they were personal injuries. He then considered an issue he had no jurisdiction to consider, namely, whether Ms Galluzzo had made out her claim for lump sum benefits as a result of these injuries.
The degree of permanent impairment of the worker as a result of an injury is exclusively within the jurisdiction of an AMS to determine, not an Arbitrator (Bindah v Carter Holt Harvey Wood Products Australia Pty Ltd [2014] NSWCA 264 (Bindah); Jaffarie v Quality Castings Pty Ltd [2014] NSWWCCPD 79). I should add that, with respect to a claim for lump sum compensation only, such as the present claim, the limitation on an Arbitrator’s jurisdiction was clear well before Bindah (see Greater Taree City Council v Moore [2010] NSWWCCPD 49).
While it is correct that the respondent disputed that Ms Galluzzo had received any injury in the fall, the Arbitrator’s reasons make it clear that he did not accept that to be so. His reasoning is supported by the evidence from Ms Galluzzo and the evidence in the incident report form discussed at [3]–[4] above. As previously noted, the Arbitrator’s finding that Ms Galluzzo suffered “bruises and grazes” to her right shoulder and right knee in the fall has not been challenged.
Thus, Ms Galluzzo suffered a personal injury in the December 2002 fall and the Arbitrator erred in failing to acknowledge that a bruise or strain is a personal injury and in asserting, when he had no power to do so, that the claim for lump sum compensation had not been made out. Whether that claim is made out will depend on an assessment by an AMS.
This issue disposes of the appeal and it is not necessary to deal in any detail with the submissions initially filed in support of it. I note, in passing, that the original submissions asserted that the Arbitrator erred in not accepting Ms Galluzzo’s evidence and, therefore, in not finding “she had permanent injuries from the fall and subsequent exacerbation/aggravation”.
There are three observations I would make about these submissions. First, the Arbitrator accepted that Ms Galluzzo injured her right shoulder and right knee in the 2002 fall. Therefore, the question of rejecting Ms Galluzzo’s evidence does not arise, at least on the issue of whether she received an injury.
Second, it was not open to the Arbitrator to find that, as a result of those injuries, Ms Galluzzo “had permanent injuries from the fall”. The question of whether, as a result of those injuries, Ms Galluzzo has suffered any whole person impairment, and the extent of that whole person impairment, is a matter for an AMS.
Third, the “subsequent exacerbation/aggravation” was (presumably) a reference to the incident in 2005 when Ms Galluzzo knelt down at work to extract a file from a lower filing cabinet when she felt a crunching sensation in her right knee. That incident was never pleaded as part of the current claim and the Arbitrator did not err in not finding that it was a s 4 injury.

CONCLUSION

For the reasons outlined above, the appeal succeeds. However, as the Arbitrator expressed no opinion on the other issues in dispute, namely, the notice of injury and notice of claim issues, the matter must be remitted to another Arbitrator for those issues to be determined. No doubt, on these issues, Ms Galluzzo will want to tender evidence properly addressing the terms of ss 254(3) and 261(4) and (5) of the 1998 Act, which I note is currently lacking in detail.

DECISION

The Arbitrator’s determination of 28 August 2014 is revoked and the matter remitted to another Arbitrator for determination of all outstanding issues.

COSTS

The respondent employer is to pay the appellant worker’s costs of the appeal, as agreed or assessed.
Costs of the second arbitration, and of the first arbitration, are to follow the result of the second arbitration.

Bill Roche
Deputy President

15 December 2014

I, JACQUELINE HAGGER, 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