Gibson v Royal Life Saving Society of Australia
[2009] NSWWCCPD 137
•23 October 2009
WORKERS COMPENSATION COMMISSION DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR CITATION: Gibson v Royal Life Saving Society of Australia [2009] NSWWCCPD 137 APPELLANT: Susan Gaye Gibson RESPONDENT: Royal Life Saving Society of Australia INSURER: Employers Mutual NSW Ltd FILE NUMBER: A1-25/09 ARBITRATOR: Mr D Nolan DATE OF ARBITRATOR’S DECISION: 3 June 2009 DATE OF APPEAL DECISION: 23 October 2009 SUBJECT MATTER OF DECISION: Injury; reconsideration; section 350(3) of the Workplace Injury Management and Workers Compensation Act 1998; medical expenses; section 60 of the Workers Compensation Act 1987; failure to determine issues in dispute PRESIDENTIAL MEMBER: Deputy President Bill Roche HEARING: On the papers REPRESENTATION: Appellant: Nikolovski Lawyers Respondent: Stephen Lee Legal ORDERS MADE ON APPEAL: The Arbitrator’s determination of 3 June 2009 is revoked and the following orders made:
“The determination of 20 February 2009 is amended to delete paragraphs one and six and insert in their place:
1. The applicant worker received injuries to her right shoulder, neck, and thoracic and lumbar spines in a fall in the course of her employment with the respondent employer on 1 November 2006 to which her employment was a substantial contributing factor, and the effect of those injuries is continuing.
6. The respondent employer is to pay the applicant worker’s hospital and medical expenses under section 60 of the Workers Compensation Act 1987 incurred as a result of the injuries referred to in paragraph one above.”
The respondent employer is to pay the appellant worker’s costs of the appeal, which are assessed at $1,250.00 plus GST.
BACKGROUND
1.The worker, Ms Gibson, started work for the respondent as a part-time swimming instructor in 2003. On 1 November 2006, whilst working at Corrimal Pool, she stepped on a piece of stainless steel and fell backwards landing heavily on her back. The incident was reported, but she had no time away from work.
2.She experienced pain in her shoulders, neck, back, and right arm. She initially sought remedial massage for her symptoms, but when her symptoms did not abate she sought treatment from her general practitioner, Dr Di Marco, who referred her for physiotherapy. Of her own volition, she also sought treatment from a chiropractor and an osteopath.
3.Her symptoms did not resolve and she submitted a claim form on 28 March 2007 stating that in her fall she injured her right shoulder, back, neck and arm. It is unclear if liability was initially accepted, but from the list of payments included in the Reply, it appears that it may have been because the insurer claims to have paid $1,508.48 for medical and related expenses.
4.The insurer initially denied liability in a section 74 notice dated 5 November 2007. By a letter dated 29 September 2008, Ms Gibson’s solicitors requested that that decision be reviewed. In an amended section 74 notice issued on 28 November 2008, the insurer again denied liability “as of 23 August 2007”.
5.On 9 November 2008, Ms Gibson submitted a Permanent Impairment Claim for 6 per cent whole person impairment as a result of injury to her thoracic spine. On 27 November 2008, Ms Gibson’s solicitors made a claim on her behalf for $7,875.00 in respect of the same whole person impairment.
6.The amended section 74 notice purports to raise 20 issues alleged to be relevant to the decision to deny liability. The practice of denying every conceivable issue regardless of its relevance to the claim at hand does not comply with section 74 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) and must stop. In the present matter the first eight issues in the notice relate to incapacity and have no relevance to the present claim because the applicant has not claimed weekly compensation. The issues said to relate to the claim for medical expenses are not expressed in the terms of the legislation. Moreover, the notice does not indicate if injury is disputed.
7.By an Application to Resolve a Dispute (‘the Application’) registered in the Commission on 5 January 2009, Ms Gibson alleged that she injured her “neck, right shoulder, back and pelvis” in her fall and she claimed $5,130.05 in respect of hospital and medical expenses and $7,875.00 in respect of a 6 per cent whole person impairment as a result of injury to her thoracic spine on 1 November 2006.
8.By a Reply filed on 27 January 2009, the Respondent disputed the claim on the grounds listed in its section 74 notice, but indicated that it sought leave to dispute liability on an additional seven grounds, namely that the Applicant had not suffered injury to her neck, right shoulder, back or pelvis as alleged and that she had no entitlement to hospital or medical expenses or lump sum compensation.
9.The matter was listed for hearing before a Commission Arbitrator on Thursday 19 February 2009. Mr Moffet of counsel appeared for the applicant and Mr Perry of counsel appeared for the respondent. Though the Arbitrator’s reasons are unclear, it seems that he approached his task on the basis that the following matters were disputed and required determination:
(a)whether Ms Gibson sustained an injury (T13.51);
(b)whether there was “sufficient pathology to support a referral to an Approved Medical Specialist” (T13.52), and
(c)whether Ms Gibson was entitled to recover the cost of her medical expenses, which issue the Arbitrator considered to be one of “causation” (T1.41; T18.14).
10.In an ex tempore decision the Arbitrator found that there was “sufficient pathology for referral” (T18.4) to an Approved Medical Specialist (‘AMS’) for assessment of whole person impairment in respect of injury to the thoracic spine. In respect of the claim for medical expenses, the Arbitrator found that the “respondent bears liability with respect to medical expenses” (T18.22) and he made a “general order accordingly” (T18.23).
11.The Commission issued a Certificate of Determination on 20 February 2009 in the following terms:
“1. The Commission determines that on 1 November 2006 the Applicant suffered injury to her Thoracic Spine in the course of her employment with the Respondent and that the Applicant’s employment with the Respondent was a substantial contributing factor to such injury.
2. The remaining issue in dispute between the parties is whether or not the Applicant has any whole person impairment, and if so the extent of whole person impairment, that results from injury to her Thoracic Spine on 1 November 2006.
3. The matter is remitted to the Registrar for referral to an Approved Medical Specialist.
4. The Approved Medical Specialist shall be requested to provide an assessment of the degree, if any, of whole person impairment that results from the injury sustained by the Applicant to her Thoracic Spine on 1 November 2006.
5. The documents to be sent to the Approved Medical Specialist are those accepted into the proceedings, being the Application and all attached documents, and the Reply and all attached documents.
6. That the Respondent pays the Applicant’s reasonable expenses under s60 of the Workers Compensation Act 1987, on production of accounts, receipts or HIC notice of charge.
7. That the Respondent pays the Applicant’s costs as agreed or assessed.
8. I certify that this is a complex matter pursuant to costs Schedule 6 Part B Table 4 Item 4 of the Workers Compensation Regulation 2003. The determination of the matters in dispute involved out of the ordinary medical and legal issues including s4, s9A and claims under s60 and s66 of the Workers Compensation Act 1987. More preparation than normal was necessary including research in respect of the event and pathology of injury. An uplift of 5 % should apply to both the Applicant’s and Respondent’s costs.”
12.Ms Gibson’s solicitors wrote to the Registrar on 18 May 2009 stating that the Arbitrator had made a finding in respect of injury to her thoracic spine, but was silent in relation to her claims for injury to her neck, right shoulder, back and pelvis, as particularised in the Application. As a result, the insurer had only paid medical expenses for treatment to the thoracic spine, but denied liability in respect of all other expenses. The letter added:
“It is our view that an oversight caused the Arbitrator to omit to make any finding of injury in relation to the body parts particularised in the Application to Resolve a Dispute. However, because of the significance of the omission it is not capable of being characterised as an error under the ‘slip’ rule. Nor is it a matter that would be appropriately dealt with by an Appeal to a Presidential Member.
It is our view that an application for reconsideration is the most appropriate vehicle to address the position in which the Applicant now finds herself.”
13.The Registrar referred the letter of 18 May 2009 to the Arbitrator on the basis that it was an application for reconsideration under section 350(3) of the 1998 Act. In a Statement of Reasons (‘the reconsideration decision’) delivered on 3 June 2009, the Arbitrator declined to “rescind, alter or amend” his decision of 19 February 2009. The Commission issued a Certificate of Determination in respect of the reconsideration application on 3 June 2009 in the following terms:
“The Commission determines:
That the Commission having reconsidered the issue of ‘injury’ under section 350(3) of the Workplace Injury Management and Workers Compensation Act 1998 declines to ‘rescind, alter or amend’ its ex-tempore decision of 19 February 2009.
No order as to costs.”
14.By an appeal filed on 30 June 2009, Ms Gibson seeks leave to appeal the Arbitrator’s reconsideration decision.
LEAVE TO APPEAL
Monetary Threshold
15.Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
16.The respondent disputes that the quantum in issue on appeal exceeds $5,000.00. In response, Ms Gibson refers to documents attached to the Application that clearly confirm she claims medical and related expenses that exceed $5,000.00. There is no evidence, and the applicant does not concede, that any of the claimed expenses relate only to treatment of her thoracic spine. I therefore infer that the whole of the sum claimed for medical and related expenses is in dispute. Therefore, the monetary thresholds in section 352(2) are satisfied.
Time
17.The respondent submits that the appeal alleges that the Arbitrator failed to make findings of injury for all claimed body parts in his decision on 19 February 2009 and, if that is the challenge that is made, the appeal is out of time. I do not accept this submission. The appeal is against the Arbitrator’s reconsideration decision delivered on 3 June 2009 and that appeal was filed within the 28-day period set in section 352(4) of the 1998 Act. If I am wrong on this issue and what is really sought is to challenge the Arbitrator’s decision of 19 December 2009, and it is therefore necessary to extend time to appeal, I would have no hesitation in finding that exceptional circumstances exist to justify an extension of time to appeal in this matter because to lose the right of appeal would, in the circumstances of the present case, result in a demonstrable and substantial injustice (Part 16 Rule 16.2(11) Workers Compensation Commission Rules 2006).
18.I grant leave to appeal.
ON THE PAPERS
19.Section 354(6) of the 1998 Act provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
20.Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
FRESH EVIDENCE
21.‘Fresh evidence’ on appeal is governed by section 352(6) of the 1998 Act, which provides as follows:
“(6)Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.”
22.The respondent seeks to tender, as fresh evidence on appeal, the Medical Assessment Certificate (‘MAC’) issued by the Approved Medical Specialist (‘AMS’) (Dr Jones) on 17 April 2009. Ms Gibson has neither consented nor objected to the tender of this document. Whilst I believe the MAC is of limited probative value in the determination of the issues before me, I am prepared, in the absence of objection by Ms Gibson, to admit it on appeal as it was clearly not in existence at the time of the arbitration.
THE EVIDENCE
23.Ms Gibson’s evidence is set out in her statement of 3 June 2008. She was born in Wollongong in 1949. She started work as a swimming instructor with the respondent in about 2003. She injured her left shoulder in 2003 whilst working out in the gym.
24.She slipped and fell in the course of her employment as a swimming instructor on 1 November 2006, landing heavily on the concrete behind the swimming pool. She reported the incident to the lifeguard on duty, Bill Davis, and completed an Accident Report Form. She described her injuries as being to her “right neck, shoulder, arm, back”.
25.The following morning she was stiff and sore and had pain in her lower back. As the accident happened on the last day of her working week (Wednesday) she stayed at home and rested over the next few days. She returned to work the following week feeling stiff and uncomfortable. She arranged for her own massage therapy.
26.In February 2007, she saw Dr Di Marco who referred her for physiotherapy. She also sought treatment from a chiropractor and an osteopath. She found that these treatments did not assist with her ongoing pain between her shoulder blades, into her neck and right shoulder and low back. At some stage she developed pain down her right leg into her calf. She was also getting pins and needles in the fingers in her right hand and tension and tightness in her neck. The pins and needles abated, but the pains in her shoulder and neck have not. If she assumes a stooped position, for example, gardening, she experiences an increase in pain in her neck and into her right shoulder.
27.On 28 March 2007, Ms Gibson submitted a claim form to Employers Mutual Limited, the respondent’s workers compensation insurer. She described slipping on a metal strip and falling heavily on her back and shoulder. Her injuries were listed as “right shoulder, back, neck, arms and right wrist.”
Medical Evidence
28.A short report from Brett Shirvington, osteopath, confirms that he treated Ms Gibson’s back on 28 February and 9 March 2007.
29.On 27 April 2007, Ms Gibson underwent x-rays to her cervical spine, thoracic spine and lumbar spine. The cervical spine x-ray revealed mild right convex scoliosis and a loss of lordosis with disc narrowing and spondylophytic lipping at C5/6 and C6/7. X-rays of the thoracic spine revealed moderate left convex scoliosis and small anterior and lateral spondylophytes in keeping with mild deforming spondylosis. X-rays of the lumbar spine were unremarkable.
30.Ms Gibson came under the care of the Corrimal Family Chiropractic Centre in April 2007. In a report dated 9 October 2007 from Ms Nicholson, chiropractor, a history is recorded that Ms Gibson received treatment for a neck, shoulder and back complaint following a fall at work in November 2006. Examination revealed tenderness and restriction of the right sacro-iliac joint and tenderness throughout the thoracic spine. There were also restrictions in cervical flexion, extension and lateral flexion, with a decrease of the deep tendon reflexes of the right bicipital, tricep and digital tendons.
31.Ms Gibson received chiropractic treatment, consisting of spinal adjustments, traction therapy, ultrasound and soft tissue work, from April to October 2007. At the time of her report, Ms Nicholson felt that the worker had reached the point of occasional lower back stiffness, muscular discomfort in the right shoulder girdle with intermittent referral into the right arm. She continued to treat the worker monthly and felt that Ms Gibson would benefit from “continued corrective care to minimise postural stresses from daily activity and to stabilise her spine”.
32.An MRI scan of the cervical, thoracic and lumbar spines on 28 November 2007 revealed disc protrusions at C6/7, C5/6 and C4/5. In the lumbar region, there were broad based posterior disc bulges at L3/4 and L4/5.
33.Ms Gibson also relies on a report from an unidentified chiropractor dated 28 April 2008, which states that she remained under the care of that chiropractor for a “neuro-spinal condition” and that it was recommended she use a cervical support.
34.For medicolegal purposes, Ms Gibson saw Dr Deveridge on 29 April 2008. In his report of 7 May 2008, Dr Deveridge recorded a history of Ms Gibson’s fall and that she noticed aches around her upper back and shoulders. By the next morning she had widespread aches, pains and stiffness, maximal in her mid back just below the right shoulder blade. She also complained of “deep pain” from the lower part of her neck through her shoulders down her arms, particularly on the right side where it extended as far as the wrist, in her lower back and later into her knees and right leg. She initially sought massage therapy but by February 2007 she could no longer tolerate the painful symptoms and she saw her local doctor who prescribed analgesics and anti-inflammatory medication. She was apparently referred to a rheumatologist, Dr Reardon, and a specialist in occupational medicine, Dr Ng. She was advised to continue with conservative treatment.
35.At the time of her consultation with Dr Deveridge, Ms Gibson complained of widespread aches, pains and stiffness involving all of her spine, shoulder girdles, arms and right leg. Her painful symptoms were “maximal” in the mid thoracic segment of her spine. Her symptoms increased with physical activity and she therefore avoided bending, lifting and twisting. She was still unable to sleep through the night and was stiff each morning. She was restricted in many activities of daily living since the fall and her husband did most of the housework including vacuum cleaning, mopping, sweeping and most of the gardening.
36.On examination, mid back movement was moderately limited and associated with muscle spasm and dysmetria (an inability to fix the range of a movement in muscular activity). She had a full range of motion in both shoulder joints. There was a mildly painful arc with possible impingement on the left side, but not on the right. There were some minor restrictions of neck motion. Ms Gibson initially had difficulty rotating her neck to the right, but with repeated assessment there was no dysmetria or significant muscle spasm.
37.Under “Opinion”, Dr Deveridge stated:
“I have assessed the following injuries/disabilities arising from the subject work injury:
1. Neck pain and stiffness with possible somatic symptoms referred to both upper limbs – due to cervical strain/injury and aggravation of age related spondylosis.
2. Mid back pain and stiffness – due to chronic thoracic spinal strain injury and aggravation of developmental kyphoscoliosis and age related spondylosis.
3. Low back pain, stiffness and somatic symptoms referred to the right lower limb – due to lumbar strain injury and aggravation of age related spondylosis.
4. Right shoulder joint pain and stiffness – due to soft tissue strain injury and mild rotator cuff tendinosis.
5. Left shoulder pain and stiffness – due to aggravation of previous tendonitis [in the] left shoulder joint.”
38.On balance, Dr Deveridge felt that the above disabilities were all attributable to the fall at work on 1 November 2006 and that the effects of any aggravation appeared to be continuing and were expected to do so on a long-term basis. He felt that her future treatment would remain along conservative lines and that she would require intermittent analgesics and/or anti-inflammatory medication indefinitely. Physiotherapy on a regular basis was reasonable for the first twelve months and thereafter “sporadically” at times of more significant relapse. He considered that her condition was chronic and stabilised.
39.In respect of assessments of whole person impairment under the WorkCover Guidelines, Dr Deveridge assessed nil impairment for the cervical spine, lumbo-sacral spine, left upper extremity, right upper extremity, and right lower extremity. In respect of the thoracic spine he assessed six per cent whole person impairment on the basis that the injury was a DRE category II on the basis of a specific injury, the presence of muscle spasm and dysmetria.
40.In a further report from Corrimal Family Chiropractic Centre dated 30 May 2008, Carsen Tannberg, chiropractor, stated that Ms Gibson continued to receive chiropractic treatment for her neck, shoulder and back complaint and that her last appointment was in February 2008. The treatment consisted of chiropractic adjustments, cervical traction therapy, flexion/distraction therapy and mineral supplementation.
41.Ms Gibson relies on two medical certificates from Dr Di Marco dated 8 February 2007 and 16 August 2007, which refer to a right shoulder problem.
42.The insurer referred Ms Gibson to Dr Machart, orthopaedic surgeon, for medico-legal assessment on 17 September 2007. In his report dated 18 September 2007, Dr Machart took a history of the fall in November 2006 and of the subsequent development of pain in the neck, back, shoulders, hips, arms and legs. Ms Gibson complained of pain in her neck, thoracic spine, low back, shoulders, her right arm and right ankle.
43.On examination, Dr Machart found no spasm, deformity or local tenderness in Ms Gibson’s neck. She had a symmetrical range of rotation to 60 degrees on each side and reflexes in her upper limbs were intact. Examination of the thoracic spine elicited tenderness in the upper thoracic area, but no deformity and no spasm. He found no spasm or deformity or local tenderness in the lumbar spine and reflexes in the lower limbs were normal. In respect of the shoulders, he observed Ms Gibson to have full elevation of both shoulders with negative impingement, though there was mild local tenderness over the left subacromial region. There was no local tenderness in the right shoulder, but there was tenderness over the right distal humerus.
44.Dr Machart diagnosed Ms Gibson to have age related degenerative changes affecting the cervical and thoracic spinal segments, a long-standing rotator cuff tear in the left shoulder (suffered in 2003), but no “structural or skeletal injury in relation to the incident dated 01/11/2006”. In his opinion, the fall did not result in the multitude of symptoms Ms Gibson reported at his examination. It was a “low-velocity trauma” and there was “no evidence of a structurally-based skeletal injury that caused ongoing symptoms in several areas of her body.” The fact that Ms Gibson continued to work and did not seek medical attention until February 2007 indicated to Dr Machart that there was no structural injury. In his opinion Ms Gibson was preoccupied with her symptoms and appeared to be psychologically unstable. Employment was, in the doctor’s opinion, no longer a contributing factor to Ms Gibson’s current condition.
45.In answer to a question as to whether Ms Gibson’s treatment (including physiotherapy, remedial massage, osteopathic and chiropractic treatment) was reasonably necessary, Dr Machart said:
“My assessment is that Mrs Gibson suffered a fall. I found that she came to medical treatment in February 2007. There was no impact from this fall on her general health. I could not confirm that treatment four months after the incident whether it be physiotherapy or remedial massage, osteopathic or chiropractic treatment or seeing a rheumatologist was necessary in relation to the incident dated 01/11/2006.”
46.He added that Ms Gibson suffered a soft tissue injury on 1 November 2006 and that she recovered from that injury within two weeks. He felt there had been no aggravation of a pre-existing condition and that her problems were psychologically based.
47.Dr Machart reported again on 6 November 2008 when he responded to Dr Deveridge’s report, but did not re-examine Ms Gibson. He confirmed his previous opinion that the incident on 1 November 2006 “could not be held responsible for the multitude of symptoms affecting several areas of the spine, neck, thoracic spine, low back pain, both shoulders, right arm and right leg.” He did not agree there had been an injury to the thoracic spine “as a structural entity”. He referred to Dr Deveridge having “labelled the injury as a sprain, which by the nature of the pathological descriptive term indicates a non-structural and a temporary injury.” In Dr Machart’s opinion a “non-structural injury would be expected to improve over [a twelve month] period of time and not be associated with new symptoms or signs such as muscle spasm or dysmetria.
THE ARBITRATOR’S REASONS
48.In his ex tempore decision delivered on 19 February 2009, the Arbitrator stated:
(a)the Commission had been asked to determine whether there was an injury (T13.51) and whether there was “sufficient pathology” to support a referral to an AMS (T13.52);
(a)it was not disputed that the incident on 1 November 2006 occurred, but the insurer disputed whether an injury had been sustained and “whether or not there has been any pathology” (T14.50);
(b)Ms Gibson had “ongoing difficulties and pain and suffering” (T15.35);
(c)notwithstanding the therapy Ms Gibson had received, there was ongoing symptomatology (T15.52);
(d)Ms Gibson suffered a very significant fall, one that would cause significant pain and suffering, and “she has suffered that pain” (T 17.28). She saw doctors about it, had massages and tried mud baths, none of which alleviated the problem (T17.33);
(e)his role was “limited to determining whether or not an event has occurred and whether or not there is sufficient pathology to support a referral to an AMS so far as the section 66 component of the claim is concerned” (T17.43);
(f)accepting Dr Deveridge’s opinion, the Arbitrator was prepared to refer the matter to an AMS (T18.11), and
(g)with respect to the claimed medical expenses, having accepted Dr Deveridge’s finding of dysmetria, muscle spasm and aggravation of underlying spondylosis, the Arbitrator accepted “that the Respondent bears liability with respect to medical expenses” and he made a general order accordingly (T18.21).
49.After receiving the letter from Ms Gibson’s solicitors dated 18 May 2009, the Arbitrator delivered his reconsideration decision on 3 June 2009, notwithstanding that he had not received any detailed submissions from either of the parties. The Arbitrator noted that the original Application requested orders for referral to an AMS, but only in respect of the thoracic spine, and also requested orders for the payment of section 60 expenses. He then referred to the evidence from Dr Deveridge and Dr Machart.
50.After referring to the complaint in the letter of 18 May 2009 that he had required no submissions on the question of “injury”, the Arbitrator said (at [20] of his reconsideration decision):
“Whilst it is noted that the Application to Resolve a Dispute in Part 4 identified injuries to the ‘neck, right shoulder, back and pelvis’, the determination made was that the Applicant suffered injury to her ‘thoracic spine’ and this was referred to an AMS for assessment. Accordingly it appears that was the only issue argued at the hearing. Otherwise I would have made determinations in respect of other body parts.”
51.The Arbitrator stated, apparently without checking the transcript or seeking submissions from the parties, that he would not have directed counsel to limit their submissions to the thoracic spine and if they only addressed on that issue, it was their oversight as he “would have decided whatever was disputed and the Application to Resolve a Dispute indicates the only area of dispute argued by the parties was injury to the ‘thoracic spine’” (reconsideration decision at [21]).
52.He added that if, as was asserted in the letter of 18 May 2009, neither side made any submissions on the issue of injury to the neck, right shoulder and pelvis, it would be a denial of procedural fairness to the respondent to make “such a significant redetermination solely at the request of the Applicant at this stage” (reconsideration decision at [23]). He concluded that the absence of submissions about body parts other than the thoracic spine could not be remedied by a reconsideration under section 350(3) of the 1998 Act without denying procedural fairness to the respondent. Having reconsidered his ex-tempore decision he felt unable to “rescind, alter or amend” his determination of 19 February 2009.
ISSUES IN DISPUTE
53.The issues in dispute in the appeal are whether the Arbitrator erred in:
(a) misunderstanding the breadth of his discretion to reconsider the determination of 19 February 2009;
(b) approaching the reconsideration on the basis that an arbitrator cannot make findings in relation to matters unless they are argued;
(c) finding that the issue of injury to the neck, right shoulder, back and pelvis was not argued at the arbitration, and
(d) finding that the respondent’s medical evidence supported a finding of no injury.
SUBMISSIONS
54.Relying on Hardaker v Wright & Bruce Limited (1962) 62 SR (NSW) 244 (‘Hardaker’) it is argued that a reconsideration is not necessarily limited to an examination of changed circumstances or fresh evidence, but “may, in an appropriate case, extend to considering whether an error had been made, whether of fact or of law, and to making such new or altered award as the circumstances, when thus reconsidered, appeared to require” (per Owen and Walsh JJ in Hardaker at 249).
55.It is submitted that, rather than conducting a reconsideration, the Arbitrator attempted to identify whether his first decision contained a mistake. The power to reconsider a decision is much broader and applies “to making such new or altered award as the circumstances, when thus reconsidered, appear to require” (Hardaker at 249).
56.The respondent submits that the Arbitrator clearly rejected the assertion by Ms Gibson that his earlier decision was blighted by “oversight”. The power to reconsider a decision is discretionary. The Arbitrator clearly looked again at his decision, but declined to rescind, alter or amend it. The gist of the Arbitrator’s reconsideration decision, so it is submitted, lies in his observation that Ms Gibson had not put before him proper grounds for rescission, alteration or amendment.
57.Ms Gibson argues that the Arbitrator erred in finding (at [23] of the reconsideration decision) that the issue of injury to the neck, right shoulder, back and pelvis had not been argued. It is submitted that counsel made submissions on those issues by quoting from the Accident Report Form, but was told by the Arbitrator that there was no need for submissions on that point and was directed to focus on the issue of the referral to the AMS in respect of the claim for whole person impairment resulting from the injury to the thoracic spine. It is conceded that the parties’ submissions on the issue of injury were brief, but that resulted from the Arbitrator’s assertion, known to the parties at the conclusion of the conciliation stage, that he required assistance only on the issue of the referral to the AMS.
58.The respondent submits that the only claim Ms Gibson made was that set out in her solicitor’s letter of 27 November 2008, namely a claim for lump sum compensation under section 66 in the sum of $7,875.00 in respect of a 6 per cent whole person impairment as a result of the injury to the thoracic spine. It was legitimate for the Arbitrator to consider whether Ms Gibson had established that the injurious event on 1 November 2006 had resulted in pathology. Having heard from the parties, he concluded that Ms Gibson injured her thoracic spine. This conclusion is “vindicated” by Ms Gibson’s history to the AMS on 17 April 2009 when she complained of soreness in her thoracic spine. The Arbitrator’s decision on 19 February 2009 was given in the presence of the applicant, her solicitor and her counsel. If anything was “amiss in the award or the referral” the time to raise an issue concerning those matters was on 19 February 2009, or at the latest, within 28 days.
DISCUSSION AND FINDINGS
59.It is true that the reconsideration power gives the Commission a wide discretion to reconsider its previous decisions (Hardaker; applied in Samuel v Sebel Furniture Limited [2006] NSWWCCPD 141; (2006) 5 DDCR 482 (‘Samuel’)). Though the power is usually restricted to circumstances where there is fresh evidence (Maksoudian v J Robins & Sons Pty Ltd (1993) 9 NSWCCR 642) or a relevant change in the law after the first decision (Bluescope Logistics Co Pty Ltd (formerly BHP Transport & Logistics Pty Ltd) v Finlow [2006] NSWWCCPD 338R)), it may be appropriate, in a limited number of exceptional cases where all parties consent and the issue is simple and obvious, to use the reconsideration power to correct an omission. Such a course will avoid the additional cost and delay associated with a section 352 appeal.
60.Usually, however, where it is alleged that an Arbitrator has failed to determine all issues in dispute the appropriate course is for the parties to draw the Arbitrator’s attention to the omission and to request that he or she deal with it. If the Arbitrator declines to determine the matter, the aggrieved party may have a right of appeal (Samuel at [58(6)]). It is regrettable that Ms Gibson’s counsel did not ask the Arbitrator to provide additional reasons at the conclusion of the arbitration. However, the present appeal from the reconsideration decision engages the issues in dispute and, given the Commission’s statutory obligation to act according to “equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms” (section 354(3)) and the wide powers on review, and given the history of the matter and the fact that the parties have had every opportunity to make detailed submissions on those issues, it is appropriate that the issues be determined as a review of the reconsideration decision.
61.The Arbitrator erred in concluding that the only issue argued before him was whether Ms Gibson had injured her thoracic spine (reconsideration decision at [20]). The Application claimed section 60 expenses as a result of the injuries received in the fall. Those injuries were alleged to be to the “neck, right shoulder, back and pelvis”. The respondent’s submission on appeal that the only claim Ms Gibson made was a claim for compensation as a result of injury to her thoracic spine is incorrect and is rebutted by the content of the Application, the section 74 notices, the Reply, the transcript and the evidence. The section 74 notice (though it is in a most unsatisfactory form) and the Reply disputed Ms Gibson’s entitlement to those expenses. At T1.33 of the arbitration, the Arbitrator identified two issues. First, whether there should be a referral to an AMS in respect of the injury to the thoracic spine and, second, “whether or not any medical expenses are in issue”. The medical expenses claimed were not restricted to the treatment of the thoracic spine. The Commission is not a tribunal bound by strict pleadings and the Arbitrator was clearly on notice that the claim for section 60 expenses were disputed and, as a result, he was obliged to determine that issue unless the parties indicated that that part of the claim had been resolved.
62.When Mr Moffet made submissions about the nature and extent of Ms Gibson’s injuries (T2.44; T4.19-40) the Arbitrator interrupted and said he was only interested in knowing the pathology (T4.53) and that there was no dispute about the “history” (T5.4). Mr Moffet made further submissions about the history and the nature and extent of Ms Gibson’s injuries (T6 – 7) and added (at T7.57) that if Ms Gibson won “on symptoms” she was entitled to “a general award for section 60’s”. That submission was clearly not restricted to the section 60 expenses for the thoracic spine. The respondent’s submissions focused on whether Ms Gibson had proved that the fall had caused “a pathology” (T8.25). In respect of the claim for section 60 expenses, Mr Perry merely submitted that the Arbitrator would order that the employer pay reasonable expenses. Though the parties could have provided the Arbitrator with greater assistance, the dispute relating to section 60 expenses was clearly before him and had to be determined in the context of the injuries alleged in the Application.
63.It is therefore clear that the Arbitrator erred when he said that the Application indicated, “the only area of dispute argued by the parties was injury to the thoracic spine” (reconsideration decision at [21]).
64.It is correct that the Arbitrator concluded that Ms Gibson had injured her thoracic spine, but it is clear from his reasons on 19 February 2009 that he failed to properly determine the claim for medical expenses. That part of the claim could not be determined without determining the issue of injury to the neck, right shoulder, back and pelvis, which, save for the thoracic spine, the Arbitrator ignored. I do not accept the respondent’s submission that the Arbitrator properly dealt with the injury issue by dealing with the claim for lump sum compensation for the thoracic spine.
65.In these circumstances, it is necessary that the matter be re-determined. Given the issues involved and the parties’ submissions on appeal, I am in as good a position as an arbitrator to conduct that re-determination and that is the course I propose to adopt.
66.Based on Ms Gibson’s evidence in the Accident Report Form, completed the week after the accident, her claim form, completed on 28 March 2007, and her statement of 3 June 2008, I accept that she injured her right shoulder, neck, and upper and lower back in the fall.
67.The respondent’s argument is that Ms Gibson may have “hurt” her right shoulder, neck and low back in her fall, but she did not suffer an “injury” to those parts within the meaning of that term considered in Lyons v Master Builders Association of NSW (2003) 25 NSWCCR 423 because, as I understand the argument, she has no pathology in those parts of her body. For the reasons set out below, I do not accept that submission as it ignores the fundamental fact that, depending on the evidence, soft tissue strains and spondylosis are pathological conditions capable of sustaining a finding of injury. It also ignores the fact that an injury that results in the aggravation of a disease (such as spondylosis) is capable of sustaining a finding of injury under section 4(a) (Rail Services Australia v Dimovski & another [2004] NSWCA 267 at [68]; (2004) 1 DDCR 648; Norambuena v Transfield Services (Australia) Pty Ltd [2009] NSWWCCPD 52).
68.The respondent’s case, based on Dr Machart’s evidence, is that Ms Gibson only suffered a soft tissue injury from which she recovered within weeks and that her continuing symptoms are due to age related degenerative changes. Even if that evidence were accepted it is evidence of an “injury”, but the effect of the injury has, on that evidence, ceased. The Arbitrator rightly rejected that evidence in respect of the thoracic spine and I reject it in respect of the claim for section 60 expenses relating to the right shoulder, neck and lower back.
69.Dr Machart’s assertion that Ms Gibson suffered a “non-structural” and “temporary” injury is not consistent with Ms Gibson’s evidence, which I accept, of continuing symptoms in the injured areas. Though her statement is of limited help on the state of her pre-injury health (save for her left shoulder injury in 2003), Dr Deveridge noted, and I accept, there was no other relevant past history of injury or disability. Dr Deveridge’s findings on examination of a restricted range of movement of the neck and back are consistent with Ms Gibson’s complaints of continuing symptoms in those areas. Ms Nicholson’s evidence that Ms Gibson continued to complain of muscular discomfort in her right shoulder girdle with intermittent referral into the right arm and the evidence from the unidentified chiropractor in April 2008 is also consistent with Ms Gibson’s evidence that her complaints have continued much longer than Dr Machart suggested should be the case.
70.Given the nature of the incident – a heavy fall onto a hard surface – Ms Gibson’s evidence of continuing symptoms since that fall, Dr Deveridge’s findings on examination, and the findings on the radiological investigations, I prefer and accept Dr Deveridge’s conclusions that, as a result of her fall, Ms Gibson suffered a soft tissue injury to her neck and aggravation of spondylosis; a strain to her lumbar and thoracic spines with aggravation of spondylosis, and a soft tissue strain injury to her right shoulder and mild rotator cuff tendinosis, and that the effect of those injuries is continuing. Those conditions are pathological conditions that have resulted from the fall and, as their effect is continuing, Ms Gibson is entitled to an award for the cost of her reasonably necessary section 60 expenses relating to treatment of her right shoulder, neck, and upper and lower back.
71.The respondent’s reliance on the MAC is misplaced. In circumstances where Dr Jones was asked to assess the degree of whole person impairment resulting from the fall as a result of the condition of the thoracic spine, it is hardly surprising and of no consequence that she did not deal with Ms Gibson’s complaints about her right shoulder, neck or lower back.
72.However, given that Ms Gibson made no mention of her pelvis in either her claim form or her Accident Report Form, and given that Dr Deveridge has made no diagnosis in respect of it, I do not accept that she injured her pelvis in the fall. The Application makes no claim in respect of the left shoulder.
CONCLUSION
73.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 have concluded that the true and correct position is that Ms Gibson injured her neck, right shoulder, thoracic and lumbar spines in her fall on 1 November 2006, that her employment was a substantial contributing factor to her injuries, that the effect to her injuries is continuing and she is entitled to recover under section 60 of the 1987 Act her reasonably necessary hospital and medical expenses incurred as a result of those injuries. As Ms Gibson has not sought an order for the payment of a specific amount, I intend to make a general order for the payment of the section 60 expenses.
DECISION
74.The Arbitrator’s determination of 3 June 2009 is revoked and the following orders made:
“The determination of 20 February 2009 is amended to delete paragraphs one and six and insert in their place:
1. The applicant worker received injuries to her right shoulder, neck, and thoracic and lumbar spines in a fall in the course of her employment with the respondent employer on 1 November 2006 to which her employment was a substantial contributing factor, and the effect of those injuries is continuing.
6. The respondent employer is to pay the applicant worker’s hospital and medical expenses under section 60 of the Workers Compensation Act 1987 incurred as a result of the injuries referred to in paragraph one above.”
COSTS
75.The respondent employer is to pay the appellant worker’s costs of the appeal, which are assessed at $1,250.00 plus GST.
Bill Roche
Deputy President23 October 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
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