Greater Taree City Council v Moore - [2010] NSWWCCPD 49

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Greater Taree City Council v Moore [2010] NSWWCCPD 49
APPELLANT:		Greater Taree City Council
RESPONDENT:		Kay Moore
INSURER:		StateCover Mutual Limited
FILE NUMBER:		A2-4142/08
ARBITRATOR:	Mr S Lancken
DATE OF ARBITRATOR’S DECISIONS:		7 October 2008; 11 May 2009 and 4 November 2009
DATE OF APPEAL DECISION:		5 May 2010
SUBJECT MATTER OF DECISION:		Claim for lump sum compensation where injury conceded; referral to Approved Medical Specialist; issues in dispute
PRESIDENTIAL MEMBER:		Deputy President Bill Roche
HEARING:		On the papers
REPRESENTATION:		Appellant:	Bartier Perry
Respondent:	Stacks Taree
ORDERS MADE ON APPEAL:		Paragraphs two and three of the determination of 7 October 2008 are revoked. All other orders in the determination of 7 October 2008, and the determinations of 11 May 2009 and 4 November 2009, are confirmed.
The appellant employer is to pay the respondent worker’s costs of the appeal, as agreed or assessed.

INTRODUCTION

This appeal concerns the application of the principles in Haroun v Rail Corporation NSW & ors [2008] NSWCA 192 (‘Haroun’) where the only compensation claimed was lump sum compensation for whole person impairment and the employer conceded that the worker received an injury.

BACKGROUND

The respondent worker, Kay Moore, started work with the appellant employer, Greater Taree City Council (‘the Council’) as an executive assistant in May 1989. Her duties were essentially clerical but, from time to time, she organised and set up functions held at the Council’s Chambers, which required physical exertion by her to move plants and other heavy objects.

While preparing for a function on 16 September 2004, Ms Moore injured her back whilst moving a very heavy potted palm plant in the Council’s foyer. She reported the incident to the Council’s general manager. The Council has not disputed that the incident occurred or that Ms Moore injured her back. However, it has disputed the nature and extent of the injury.

Ms Moore continued to perform her clerical duties with the Council but did not seek medical treatment for her back until she saw her general practitioner, Dr Arnold, on 12 November 2004. She completed a claim form on 28 January 2005 and liability was initially accepted. Dr Arnold referred her to Professor Ghabrial, who first saw her on 15 April 2005. On 28 June 2005, Ms Moore underwent an L5/S1 laminectomy at the hands of Professor Ghabrial. She resumed duties with the Council in October 2005. However, her back and leg symptoms worsened during 2006. On 15 May 2007, she underwent a L5/S1 decompression and a lower lumbar fusion. The Council’s workers’ compensation insurer, StateCover Mutual Limited (‘StateCover’) met the cost of both operations.

On 6 September 2007, Ms Moore’s solicitors claimed work injury damages from the Council. StateCover denied liability in a section 74 notice dated 7 December 2007. Among other things, the notice disputed whether Ms Moore suffered from at least a 15 per cent whole person impairment.

At some stage, Ms Moore claimed lump sum compensation under sections 66 and 67 of the Workers Compensation Act 1987 (‘the 1987 Act’). In a further section 74 notice dated 19 June 2008, StateCover disputed liability for that claim. The notice stated, among other things, that StateCover disputed liability on the ground that Ms Moore had suffered only a “minor soft tissue injury or strain” in the incident on 16 September 2004, and any incapacity beyond “a few days” from the date of injury resulted from causes other than the incident. StateCover never disputed that Ms Moore had injured her back on 16 September 2004.

In an Application to Resolve a Dispute (‘the Application’), registered in the Commission on 2 June 2008, Ms Moore sought lump sum compensation in respect of a 22 per cent whole person impairment as a result of her back injury, together with compensation for pain and suffering. She made no claim for weekly compensation or for hospital and medical expenses.

In a Reply filed on 23 June 2008, the Council disputed liability on the grounds set out in the section 74 notices previously served by StateCover.

The Commission listed the matter for conciliation and arbitration on 3 September 2008. Both parties were legally represented. Regrettably, the first 50 pages of the transcript in this matter were taken up with multiple procedural objections taken by the Council’s solicitor, Mr Underwood. Many of those objections were without merit and should not have been argued. Parties are reminded that proceedings in the Commission are less formal and technical than proceedings in a court, and that the Commission has a 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)) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’)).

Ultimately, the arbitration proceeded with the Arbitrator questioning the worker and giving leave to the Council’s solicitor to cross-examine Ms Moore. That cross-examination was so protracted that the matter could not conclude on 3 September 2008 and the Arbitrator directed the parties to make their submissions in writing.

In the course of the hearing, the Arbitrator identified the “real issue” to be whether Ms Moore damaged a disc in her low back when she moved the pot plant on 16 September 2004 (T50.55). In a reserved decision delivered on 7 October 2008, the Arbitrator found that Ms Moore’s injury was a “strain”, and that it “did not involve further damage or rupture to the disc”. He then referred the assessment of Ms Moore’s whole person impairment to an Approved Medical Specialist (‘AMS’).

The Commission issued a Certificate of Determination on 7 October 2008 in the following terms:

“The Commission determines/makes the following findings:
1.   Find that the Applicant suffered an injury on 16^th September 2004 when she moved a pot plant at her work and that the injury occurred when she dragged the pot plant across a tiled floor with one hand.
2.   Find that prior to the injury referred to in the previous paragraph the Applicant suffered from a degenerative back condition including a disc protrusion at L4/5
3.   Find that the said injury was a strain and did not involve further damage or rupture to the disc.
4.   Direct that the Registrar refer the Applicant to an AMS on the basis of these findings and my reasons for evaluation of the Applicant’s Whole Person Impairment as a result of the injury of 16 September 2004.
5.   The documents that are to be sent to the AMS are

(a)These findings and Orders and my reasons

(b)The documents referred to in paragraph 17 of my reasons.

6. Certify that the proceedings are complex and that the parties be entitled to an increase of 30% on their professional costs pursuant to Schedule 6 Table 4 of the Workers Compensation Regulation 2003.”

In an appeal filed on 4 November 2008, Ms Moore sought leave to challenge the Arbitrator’s determination that she had only suffered a strain. The Council opposed the granting of leave to appeal on the grounds that the Arbitrator’s decision was an interlocutory order that had not finally determined the parties’ rights. The Council’s solicitor also made lengthy submissions dealing with the merits of the appeal in general.

In a decision delivered on 20 February 2009, Acting Deputy President Snell refused leave to appeal on the ground that the Arbitrator’s decision was an interlocutory order of a preliminary nature (Moore v Greater Taree City Council [2009] NSWWCCPD 17).

In a letter dated 20 March 2009, the Council requested the Arbitrator to reconsider his determination under section 350(3) of the 1998 Act. It argued that the result of the Arbitrator’s determination was that the effects of the work injury had resolved within one or two weeks and, consistent with the principles in Total Steel of Australia Pty Limited v Waretini [2007] NSWWCCPD 32 (‘Waretini’), the Arbitrator should have entered an award for the Council and should not have referred the assessment of whole person impairment to an AMS. The Council sought orders that paragraphs 4 and 5 of the determination be revoked and the following orders be made in their place:

“4. The applicant’s pre-existing degenerative back condition was temporarily aggravated by the injury of 16 September 2004, but the effects of the aggravation ceased within one or two weeks of that injury.
5. An award for the respondent in respect of the applicant’s sections 66 and 67 claims on the basis of the finding on causation in Order 4 above.”

Ms Moore’s solicitors opposed the reconsideration application and submitted that, as there was no dispute that Ms Moore received an injury and, as there was no claim for weekly compensation, “the jurisdiction as to the extent of the injury” rested with an AMS. They therefore submitted that the Arbitrator should not include his reasons among the documents to be forwarded to the AMS. In all, the parties made eight separate submissions relating to the reconsideration applications.

In a decision delivered on 11 May 2009, the Arbitrator declined to vary his previous determination. He confirmed that the parties agreed that Ms Moore suffered an injury on 16 September 2004. The dispute that he determined was “as to the precise nature of that injury” (reconsideration determination at [14]). He added that, if an AMS was to assess properly the worker’s whole person impairment, it was important that he or she have his “full reasoning as to the determination of the nature of the injury”. He concluded:

17.“The Applicant argues that the finding of fact as to the symptoms that the Applicant suffered … are beyond my power. These findings of fact are included in the Reasons so as to explain how I come to the conclusion about injury. Findings about how long symptoms continued [were] findings of the factual issues that I needed to take into account to determine what was the nature of the injury.

18.Such findings of fact about symptoms does [sic] not bind or predetermine the issue to be decided by an AMS about the impairment resulting from the injury. I am not an expert and it would be presumptuous of me to think that just because I find as a matter of fact that symptoms were or were not suffered that a Worker has or does not have an impairment.

19.For the same reason I could not enter an Award for the Respondent based on some factual findings made in the course of determining the nature of the injury suffered by the Applicant.

20.Arbitrators are not medical practitioners, trained in applying the medical guides and tables upon which assessments of impairment are made. For an Arbitrator to determine Impairment based on findings of fact made to decide the nature of an injury would be to enter into the jurisdiction of the AMS.”

Dr Hyde Page, orthopaedic surgeon and AMS, assessed Ms Moore on 2 April 2009 and issued a Medical Assessment Certificate (‘MAC’) on 4 June 2009. He assessed her to have a 22 per cent whole person impairment as a result of the condition of her lumbar spine. After deducting 40 per cent for pre-existing “degenerative and disc changes at L4-S1”, he certified her to have a 13 per cent whole person impairment as a result of her injury on 16 September 2004.

Both parties appealed to a Medical Appeal Panel (‘Appeal Panel’). Neither appeal succeeded. In a decision delivered on 9 October 2009, the Appeal Panel confirmed the MAC issued by Dr Hyde Page on 4 June 2009.

The Commission listed the matter for a teleconference on 4 November 2009 for all outstanding issues to be determined. Those issues were resolved by consent, and the Commission issued a Certificate of Determination – Consent Orders on 4 November 2009 in the following terms:

“In this matter a telephone conference was held where the parties were assisted by me, acting as an Arbitrator, to come to an agreed resolution of the issues in dispute. By reason of their agreement, and in accordance with Rule 15.9(1) of the Workers Compensation Commission Rules 2006, the determination of the Commission in this matter is as follows:
1. That the Respondent pay the Applicant lump sum compensation under section 66 of the Workers Compensation Act 1987 in respect of 13% whole person impairment in the sum of $17,000.
2. That the Respondent pay the Applicant lump sum compensation under section 67 of the Workers Compensation Act 1987 in respect of pain and suffering in the sum of $16,500.

3. That the Respondent pay the Applicant’s costs as agreed or assessed.
It is noted that the parties agree:
1. That they have negotiated a resolution of the section 67 aspect of the dispute today on the basis that it is without prejudice to the Respondent’s rights to pursue their appeal of the decision of the former arbitrator, Arbitrator Lancken, dated 7 October 2008.”

In an appeal filed on 1 December 2009, the Council seeks leave to challenge the determinations of 7 October 2008, 11 May 2009 and 4 November 2009.

LEAVE TO APPEAL

Monetary Threshold

Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.

It is not disputed that the monetary thresholds in section 352(2) of the 1998 Act are satisfied.

Time

The appeal was lodged within 28 days of the determination of 4 November 2009. As leave to appeal the determination of 7 October 2008 was refused on the grounds that that decision was an interlocutory decision, it is not disputed that the Council is entitled to challenge that determination in this appeal.

I grant leave to appeal.

ON THE PAPERS

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.”

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

‘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.”

Ms Moore seeks to rely upon the MAC issued by Dr Hyde Page on 4 June 2009, together with the Appeal Panel Decision of 9 October 2009, as fresh evidence or additional evidence on appeal. Neither document existed at the date of the Determination on 7 October 2008. Both documents are relevant to the issues in dispute on appeal and, it is submitted, should be admitted in the appeal.

The Council opposed the introduction of the MAC and the Appeal Panel Decision. It has referred to the presidential decisions of Naidu v Able Manufacturing Pty Ltd and anor [2007] NSWWCCPD 237 and Mayne Group Limited v Roberts & Faulding Health Care Pty Ltd [2005] NSWWCCPD 15. It also submitted that the main argument in the appeal is that the Arbitrator’s decision to refer the section 66 claim to an AMS amounted to an error of law. If those submissions are accepted, then the appropriate order is that the subsequent MAC and Appeal Panel Decision should be revoked, as they will “effectively be nullities”. In these circumstances, the Council submitted that it would be inconsistent with such orders for the documents to be admitted into evidence in the appeal.

The Court of Appeal considered the introduction of fresh evidence or additional evidence on appeal in Haider v JP Morgan Holdings Aust Ltd t/as JP Morgan Operations Australia Ltd [2007] NSWCA 158; (2007) 4 DDCR 634 (‘Haider’) where Basten JA referred to Akins v National Australia Bank (1994) 34 NSWLR 155 (‘Akins’) and other authorities. In Akins, Clarke JA (Sheller JA and Powell JA agreeing) stated at 160 that three conditions need to be met before ‘fresh evidence’ can be admitted:

“These are: (1) It must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; (2) The evidence must be such that there must be a high degree of probability that there would be a different verdict;
(3) The evidence must be credible.”

However, in Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346; (2001) 53 NSWLR 116 Heydon JA (as his Honour then was) stated at [15]:

“Even if the three tests stated in Akins case are applicable and are not satisfied, a question remains: is it just to admit the further evidence in this case?”

As Basten JA observed in Haider, the power to admit evidence that is in addition to, or substitution for, the evidence received at the arbitration hearing, pursuant to section 352(6) of the 1998 Act, must be exercised having regard to the Commission’s statutory duty to “act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms” (section 354(3) of the 1998 Act). Basten JA added (at [45]):

“Assuming for present purposes that the evidence was material and probative, the statutory obligations and powers imposed and conferred on the tribunal suggest that the material should have been considered in order to address the substantial merits of the case.”

Applying the principles discussed in Haider, it is clear that the evidence in the MAC and the Appeal Panel decision is “material and probative” to the issues in dispute. In these circumstances, and having regard to the fact that the documents were not in existence at the time of the original arbitration, it is in the interests of justice that they be admitted on appeal, and that is the course I propose to adopt.

THE EVIDENCE

Medical Evidence

In view of the limited nature of the issues in dispute, I will limit my review of the medical evidence to the essential histories that have been the subject of submissions both at the arbitration and on appeal. The relevant clinical evidence was summarised in the Council’s submissions filed before the Arbitrator on 29 September 2008. That summary is as follows:

“Wynter Street Medical Centre
· 12.10.01. Back from o/s [indecipherable]? UK/Vienna. 6/10 LBP → L > R; chiropractor. Better today. Valtrex. Panadeine. Disc pain. ∆ shingles. L2-3. Sick leave certificate issued certifying her unfit from 12 to 17 October 2001 due to a ‘medical problem’.
· 17.10.01. Rash improved but increased pain L LBP → L knee. P.H. neuralgia. Paracetamol. Neurofen. Panadeine.

Albert Street Medical Centre (Dr Holliday and Dr Arnold)

· 26.9.03. Bone mineral density dual energy x-ray absorptiometry of the lumbar spine and the femoral neck revealed lumbar spine measurements 0.6 of a standard deviation above the young reference and femoral neck measurements 1.2 standard deviations below the young reference. The femoral neck measurements showed slight minimal trauma fracture risk and mild osteopenia.
· 5.1.04. Left sciatica – absent (L) KJ. SLR 45 deg. Normal bone density. Discussion re parents’ future care requirements. Script written re Caltrate tablets (120), Voltaren tablets (50mg) – 50, Panamax tablets 500mg (100 x 1), Tramal (capsules) – 50mg (20).

· 16.3.04. Script written – fluvax injection.

· 31.8.04. Peri-menopausal Sx. Intolerable night sweats and irregular periods. Scripts written – Microgynon 20 ED (tablets) – 28 x 4 and Temazepam (tablets) 10mg (25).

· 12.11.04. Dr Arnold. Two week increase (L) leg and LBP. PHx sciatica 1/4. No relief with Voltaren and Tramadol. Physiotherapy Network has rooms at Taree and Harrington.

· 29.11.04. Ongoing L leg and dy[s]aesthesia. Back pain is much better. Concerned it may not be sciatica. SLR 60 (L) and 85 (R). Neuro LL normal referred for CT. Sciatica left leg.

· 21.12.04. Endep.

· 28.1.05. Put an incident report in at work for her injury. Sudden pain pulling pot plant in about September 2004 then exacerbation of Sx after moving house. Ongoing sciatica interfering with quality of life. LBP OK. Knee jerk – depressed.

· …

Taree Chiropractic & Osteopathic Centre

· 7/6/01 and 13/6/01. Attended due to a very tight neck and occipital region. [Ms Moore] gave a history of years of tennis and working at a desk with a computer. There was also a history that she fell onto the ground on to her head years ago which resulted in a stiff neck. She complained of right neck pain and occipital headaches. The first attack was two to three weeks earlier. She attended again on 13 June 2001 when she had put her neck out again.
· 9/10/01. Went on flying holiday to UK and Europe. 30 hour flight. Saturday got cold. Woke at 3.00 – 4.00 am with pain in her lower back, left leg and some pins and needles in her left leg for a short while. Little residual pain – left iliac crest.

· 10/2/03. Onset 5 days. Occip ↑ temple. Gets stiff in back. LB ↑ mid back.

· 28/1/04. LB ↓ L leg to toes – problem since end of November. Hasn’t improved at all – getting up from sitting position (on ground). Hard to sleep. Hard to get comfortable. Same P as ten years ago for 7/12.

· Feb 04. Sciatic P relapse. Not as bad but still L hip → calf. Bruise ‘OK’. ‘Did pull a pot plant’. Too sore to use golf ball at home.

· 16/3/04. Hamstrings lateral ↓ knee ↓ lateral L leg; p + ns in foot. LBP – parents. P starts ischium (?) → L knee.

Physiotherapy Network Taree

· 16/11/04. Initial assessment sheet. Chronic LBP since Jan this year. Past history LBP 15 years ago, helped with exercises. Aggravated by leaning forward, driving, sitting. Eased by walking. Examination. Left leg shorter. Left pelvis uplift. Tender sacroiliac joint. In the section asking the person who was responsible for fees she [Ms Moore] circled ‘self’ rather than other options such as ‘WorkCover’ or ‘third party’. She [Ms Moore] wrote down her private health fund details.
· Nov – Dec 2004. She [Ms Moore] attended for further physiotherapy treatment on 19, 23, 25 and 30 November 2004. She [Ms Moore] generally complained of intermittent sciatica and ache in her left leg and stiffness in her lumbar spine. There were occasional complaints of pins and needles in her left foot. There was a pattern of some short term improvement but then deterioration. She [Ms Moore] attended for treatment on five occasions in December 2004.

· …”

Dr Arnold issued an initial WorkCover medical certificate on 28 January 2005. In that document, he answered “unknown” to the question of whether the worker’s employment was a substantial contributing factor to the injury. He answered “yes” to that question in a certificate dated 14 March 2005.

Dr Straughan, injury management consultant, examined Ms Moore at the request of StateCover on 1 March 2005. In his report of the same date, the doctor took a history that Ms Moore’s duties involved some bending and, at times, heavy lifting and pushing, pulling and twisting. He recorded that she felt immediate severe low back pain while dragging a heavy potted plant on “6 September 2004” [sic, 16 September]. When she stood up, the pain eased, but she reported the incident. Over the following two weeks, the pain became more severe and more constant, and radiated into the left buttock and left leg. She saw her local doctor (Dr Arnold) in October 2004 and attended physiotherapy. Ms Moore denied having had any back problems in the past. The doctor concluded that the worker was suffering from two-level lumbosacral disc disease, which had been confirmed by a CT scan dated 9 December 2004. He felt that the condition had not been completely caused by her employment, but that the nature of her work, as well as the incident in September 2004, had aggravated, and possibly worsened, the condition. He felt that employment was a substantial contributing factor to the injury.

Dr Arnold reported to StateCover on 5 March 2005 that he saw Ms Moore on 12 November 2004, when she complained of low back and left leg symptoms “increasing over the two weeks prior to the presentation”. He added that, on reflection, Ms Moore “attributed her increase in symptoms to an episode of back pain that had occurred while pulling a pot plant at work during September 2004”. She then experienced a further increase in her symptoms after moving house. She had previously experienced sciatica in her left leg in January 2004. Dr Arnold diagnosed sciatica and mechanical low back pain. On the issue of causation, Dr Arnold stated:

“Given that Ms Moore had experienced sciatica in the left leg as far back as January of 2004, it is difficult to attribute the events at work in September as the sole cause of her condition. However, it is well recognised that heavy lifting can certainly aggravate or exacerbate fairly regularly in regards to her sciatica since November 2004. She had no presentations to this practice between January and November relating to left leg symptoms.”

An MRI scan dated 22 March 2005 revealed bulging at L4/5 without compression and a left paracentral protrusion at L5/S1, displacing the left S1 nerve root.

Professor Ghabrial examined Ms Moore on 15 April 2005 and reported to Dr Arnold on the same day. He took a history that she had injured her lower back whilst dragging a large potted plant at work on 16 September 2004. She had a week off work and then returned to work on selected duties. Physiotherapy and medication improved her back symptoms, but she continued to have symptoms in her left leg, and some residual symptoms in her back. Sitting for lengthy periods, bending, kneeling or squatting aggravated her pain. She reported that she had no previous lower back or left leg symptoms, but had previously had left buttock symptoms on two occasions, which settled quickly with an exercise program.

At surgery on 28 June 2005, Professor Ghabrial performed a left L5/S1 laminectomy. The disc was found to be “markedly prolapsed and sequestrated”. The Professor excised and decompressed the left S1 nerve root.

Dr Wade King, pain management specialist, reported on 7 September 2006 that Ms Moore felt pain in her lower back as she pulled a plant in a heavy terracotta pot across a floor. She straightened up and the pain eased, but some discomfort persisted and increased over time. She had not been able to work normally or enjoy her leisure activities. Previous attempts at relieving her condition had not been successful.

Dr Bookallil, consultant neurosurgeon, examined Ms Moore at the request of StateCover on 7 September 2006. In his report of 14 September 2006, the doctor took a history that Ms Moore developed “quite severe back pain, which she had never had before” when she moved a pot at work in September 2004. She had a few days off work and then physiotherapy, which did not really help. Though she remained at work, she struggled. She had both back pain and left leg pain. He diagnosed L5/S1 disc degeneration and protrusion, and concluded that the injury was consistent with the stated cause.

Dr Spittaler, consultant neurosurgeon, examined Ms Moore at the request of Dr Arnold on 7 February 2007. He recorded that she had “no significant past history”. He added that, in essence, she suffered a left L5/S1 disc prolapse lifting a pot plant at work.

Professor Ghabrial prepared a medico-legal report on 3 October 2007. He recounted the history of the September 2004 incident, and that Ms Moore had no previous lower back or left leg symptoms. He added, however, that she had twice previously had symptoms in her left buttock, which settled quickly with an exercise program. His examination on 15 April 2005 revealed a decreased sensation in the S1 dermatome. He concluded that Ms Moore developed lower back pain and left sciatica as a result of the injury to her lower back on 16 September 2004. Clinical assessment and investigations suggested an L5/S1 disc protrusion. He believed that Ms Moore’s condition had stabilised, and he assessed her as having a 22 per cent whole person impairment.

The Council’s solicitors arranged for Dr Matheson, consultant neurosurgeon, to examine Ms Moore on 12 March 2008. Dr Matheson found it difficult to get a history from Ms Moore, and he thought she was a “prevaricating historian”. He recorded that she experienced sharp low back pain as she moved a pot plant across a floor in September 2004. She said that it slowly worsened and that she went on to get some dysaesthesia (pins and needles) in the left leg from the knee down. She said that she worked on, but saw Dr Arnold two weeks later. In respect of her past history of back pain, Ms Moore said that she had only had “occasional episodes of tiredness in the back and no pain”. Dr Matheson concluded that Ms Moore had a “longstanding disc lesion” and that there was no reason why pushing a pot across a floor “should have caused it or made it any worse”. When Dr Matheson “confronted” Ms Moore with the history of left leg sciatica in January 2004, she said that she thought she had sciatica a few times over the previous 10 to 15 years. Dr Matheson felt that that history was quite telling, as it indicated that she had a “well-established back problem of long standing”. In respect of Ms Moore having moved house in October 2004, she said that she used removalists and did not have to do any of the work herself. Dr Matheson did not believe that any of Ms Moore’s symptoms were work-related. He diagnosed lumbosacral disc degeneration and added that “clearly” there was no “work-related injury”.

Dr Breit, orthopaedic surgeon, examined Ms Moore at the request of the Council’s solicitors on 25 March 2008. He took a history that Ms Moore felt a sudden sharp pain in her lower back while dragging a large pot across a granite floor in the course of her employment as an executive secretary to the Council’s manager. She stood up and waited for a minute, and the pain settled. She started to get an aching over the subsequent days and weeks, which deteriorated, and she started to get pain in her left hip and leg. Ms Moore said that she had suffered “sciatica” several times before, but the pain was different. The pain she experienced in September 2004 felt like it was “inside the leg”, whereas her previous pain had been “in the buttock region, radiating down to the back of the calf” and would tend to settle rapidly with a few exercises. Ms Moore denied aggravating her back when she moved house. Dr Breit diagnosed “lumbar spondylosis”, but expressed no opinion on causation.

Dr Breit provided a supplementary report on 22 August 2008, in which he commented on the clinical notes referred to at [35] above. He said that it was apparent from those records that there were significant pre-existing complaints of back pain with radicular symptoms before September 2004. He added that the “history of the alleged injury is in itself doubtful as you have indicated in the covering letter”. He referred to Dr Arnold’s notes of 12 November 2004 as revealing “a two-week history of leg and back pain with no mention of it being work-related”. He also observed that it was not until the fourth “post-injury” consultation with Dr Arnold in January 2005 that the alleged work incident was recorded. He felt it was “of some concern” that Ms Moore was on leave and moved house between 11 and 15 October 2004, and that she did not see a medical practitioner between 16 September 2004 and 11 October 2004. That Ms Moore was able to move house was, in the doctor’s opinion, an extremely strong argument against any significant injury having occurred on 16 September 2004. He concluded that, given the further information in the clinical notes, this was “not a work-related injury, but rather a constitutional phenomenon, almost certainly aggravated by moving house, not a pot plant”.

Dr Matheson provided a supplementary report on 30 August 2008, in which he also reviewed the clinical records relating to Ms Moore’s pre-September 2004 complaints. He concluded that those records showed that Ms Moore’s history was not correct, and that the incident of 16 September 2004 was “irrelevant in the progression of this back disorder”. He confirmed his previous view that “this was clearly not a work-related injury”. In his opinion, the event on 16 September 2004 was an “incidental incident in a long history of a progressive back disorder”.

Ms Moore relied on an undated and unsigned report from Dr Arnold, prepared in response to her solicitor’s letters of 1 and 10 July 2008. Dr Arnold reviewed his clinical notes and confirmed that he saw Ms Moore on 12 November 2004, when she gave a history of “2 weeks of increasing left leg and low back pain, not relieved with anti-inflammatory [medication] and Tramal”. He had no record of his examination findings or history of injury on that date. He saw Ms Moore again on 29 January 2004, when she reported ongoing left leg pain, and pins and needles. He next saw Ms Moore on 28 January 2005, when he took a history of the September 2004 work incident causing sudden pain, followed by a “further exacerbation of symptoms after moving house”.

Dr Arnold stated that he was initially uncertain as to which event was “aetiologically more important”. He subsequently formed the belief that the work injury was “a substantial contributing factor but perhaps not the only contributing factor”. After referring to his findings on examination in January 2004, Dr Arnold stated that the symptoms present on that occasion probably resulted from disc disruption at the L4/5 segment. He added, significantly, that her symptoms at that time were mentioned as only one of three other problems. Ms Moore did not require any investigations or take any time off work. She did not present in relation to low back pain or sciatica between January and November 2004. He concluded that dragging a heavy pot plant in September 2004 resulted in an annular tear in the L5/S1 disc and subsequent disc protrusion. Given the clinical findings and general lack of recurrent complaints from Ms Moore prior to November 2004, Dr Arnold found it hard to believe that the dramatic L5/S1 disc protrusion and sequestration existed prior to September 2004. Her symptoms in January 2004 appeared to have been of a “transient relatively minor nature”.

Dr Arnold noted that the biomechanics involved in pulling/dragging a heavy object (such as a pot plant) would involve flexion and lifting. Such activities should be avoided, as they increase the shearing forces in the lumbar discs. Dr Arnold found the “bias displayed” in the language used by Dr Matheson to be “staggering”. He thought Dr Matheson’s “fundamental premise” that “pushing a pot” could not have caused Ms Moore’s condition was flawed. Ms Moore had been pulling a pot, not pushing it. Dr Matheson’s opinion flew “in the face of conventional wisdom” regarding those activities that should be avoided in the workplace to reduce the risk of back injury. Dr Matheson failed to acknowledge that pulling/dragging pot plants was not a normal clerical duty.

Lay Evidence

Though I have read and considered all of the evidence tendered, I will restrict my review of it to those statements that are relevant to the issues in dispute.

Ms Moore

Ms Moore’s evidence is set out in her statement dated 30 March 2007, to which she has attached a further document headed “HISTORY”. She also gave lengthy oral evidence at the arbitration and tendered an undated document headed “Supplementary Statement” attached to an Application to Admit Late Documents dated 28 August 2008

On 16 September 2004, Ms Moore dragged a heavy palm pot plant across the tiled foyer area of the Council Chambers. As she did so, she “felt a severe, sharp pain in [her] lower back, waited a few seconds, and then slowly stood up”. She “seemed to be all right”, but immediately mentioned the incident to the general manager. She said that she had a few days off work, lying flat on the floor, but went to her general practitioner when her back pain did not improve. She also had severe pain in her left buttock, hip and down her left leg, with constant pins and needles in the left leg. Physiotherapy provided no relief and, in January 2005, she underwent a CT scan.

After receiving the CT scan, Ms Moore submitted a claim form on 28 January 2005. There is some uncertainty about who completed the claim form, and that is considered further below. The document has the answer “no” to the question “have you previously suffered any similar injury or condition?”.

At some stage in 2005, Ms Moore took seven weeks leave to exercise, in an attempt to avoid surgery. Her back pain improved, but her hip and thigh pain remained “debilitating” and sitting was “unbearable”. She underwent a laminectomy/discectomy at the hands of Professor Ghabrial on 29 June 2005. She returned to part-time duties in October 2005. Though her hip pain increased with sitting, she had a gradual improvement in her hip and leg pain over the next few months.

Her back pain steadily increased during 2006 as her work hours increased. Her hip and leg symptoms returned “full-time” over Easter 2006, and steadily worsened. After further investigations, Professor Ghabrial fused her lower lumbar spine on 15 May 2007.

In a letter dated 15 November 2007, the Council’s solicitors sought particulars of whether Ms Moore had suffered any injury or disability apart from the injuries on 16 September 2004, and whether she had suffered any back injuries or episodes of back pain other than the pain she experienced on 16 September 2004. In a reply dated 21 December 2007, Ms Moore’s previous solicitors responded that she had not suffered any other injury or disability, apart from the injuries resulting from the incident on 16 September 2004, and that she had experienced “one or two short episodes or [sic, of] sciatica”, but she could not recall the dates of those episodes. The particulars described the episodes as “pain in [the] buttock” and denied that Ms Moore had ever had symptoms “significant enough to require time off work”. It was admitted that Ms Moore had seen Dr Arnold, her general practitioner, but she could not recall the date.

Her evidence in her “Supplementary Statement” may be summarised as follows:

(a) she had always said that she occasionally suffered from sciatica in her left leg prior to her work injury. She did not deny that she had also suffered “some backache” after performing heavy duties, such as gardening, but she could not recall more than two such episodes;
(b) neither her sciatica nor the fact that she moved house had been a secret. It had been her understanding that the insurer knew “from the outset” about both her pre-existing sciatica and her moving house;

(c) she admitted that she had answered “no” to questions about whether she had ever lodged a claim for back or leg injuries, or had ever suffered any previous injuries. Whilst she has had previous symptoms, she has not had any accidents that have caused those symptoms, apart from the September 2004 work injury;

(d) Professor Ghabrial informed her that her scans revealed degenerative changes, which may not have been solely due to her work. She never believed that, by suffering degenerative changes, she had “suffered a previous injury”, and

(e) she agreed that she suffered an increase in her symptoms after moving house, but said that she did not perform any heavy or significant lifting in the course of that move. She did move clothes; however, such activities would not have caused her any concern if she had not “had the [work] injury”.

At the arbitration, the Arbitrator questioned Ms Moore and Mr Underwood then cross-examined her at length. The following evidence appears at T57-58:

“ARBITRATOR: Q. You said to Dr Ghabrial and you said to other doctors ‑ and it’s consistent with what you said to a number of doctors ‑ that you had no previous back problems. That’s not true, is it?
A. I had no previous back pain, and I didn’t associate the pain that I had experienced in my backside and the back of my leg as being a back problem. I thought it was a muscular problem across my backside and down my back leg.
Q. So you thought it was muscular in your back leg and ‑‑
A. And ‑‑
Q. ‑‑ your buttock?
A. And I jokingly always called it bumbago. It came from my backside and down my back leg. Until I had the scans done in December 05 I didn’t know I had ‑ and I saw Professor Ghabrial ‑ sorry, December 04, and I saw Professor Ghabrial in early 05, I didn’t appreciate I even had disc degeneration. I'd just never heard of it.
Q. No, I appreciate that you wouldn’t have known you had disc degeneration, but ‑‑
A. So when I had what was called in January 04 by Dr Arnold ‑ when I mentioned it to him in January 04, I didn’t specifically go with it, I went with a number of things to see him in 04, and I said, ‘I’m having another attack of this pain, of bumbago,’ and he said, ‘It’s sciatica.’
Q. When did he say that?
A. In January 04.
Q. So you knew in January 04 that you had sciatica?
A. No. That’s what he told me, and he said it would resolve with exercise.”

Ms Moore added that Dr Arnold did not refer her to anyone in January 2004, but she saw a chiropractor who gave her some exercises “which stretched the muscle” (at T58.30). She added that she “had never had a sharp pain or injury or a pain in [her] back” (T58.31). The pain was in her buttocks and down the back of her leg.

The Arbitrator questioned Ms Moore about her attendance at the Wynter Street Medical Centre in 2001 for shingles. She said that, as a result of the shingles, her back was painful from a rash. Her doctor provided her with medication for shingles. She added (at T59.2):

“The only pain or injury I’ve ever had to my back was in September as I did the pot plant pulling, and I continued working until April of the next – of the next year. It was difficult, but I continued working on, seven weeks sick leave off on my own leave to purely exercise to see if I could resolve any problem through exercise, but Professor Ghabrial said, because fragments of disc had snapped off and lodged against the sciatic nerve, the pain would never go away, and it didn’t. I just spent seven weeks purely exercising all day. I was a pallbearer for my father’s funeral in June 04.”

The Council’s solicitor suggested that Ms Moore had complained to the Taree Chiropractic and Osteopathic Clinic on 9 October 2001 of low back and left leg pain, with pins and needles. Ms Moore responded that she had a rash on her back at that time, and shingles down her leg and across her back (T61.2).

In response to the suggestion that Ms Moore attended the Taree Chiropractic and Osteopathic Clinic on 28 January 2004 complaining of pain across her lower back and down her left leg to her toes, Ms Moore replied that she did not remember the back pain, but did remember the buttock pain and the pain down the back of her leg (T62.29). She did not dispute the accuracy of the clinical notes, but added, “it didn’t preclude me from doing anything” (T62.34). She conceded that she could have been tender in her low back when pressed and massaged.

When questioned about pain she had over seven months 10 years prior to January 2004, Ms Moore said that the pain was in her backside and down the back of her leg. However, she did not see a doctor because the pain was not strong enough, and she did not “run to doctors all the time” (T63.14), as she was not a “doctor person”. She added that she played A-grade tennis all of her life, and it was not unusual for her to be “a bit uncomfortable with a muscle problem” (T63.31). She did not recall having back pain as such, but said that her main problem was in her backside and down her leg. It did not stop her from doing her work or activities (T63.44).

Ms Moore stated that she did not know that sciatica was the description of nerve-related pain through the leg from the back (T64.55 – 65.2). She believed that it was a muscle.

In respect of the suggestion that she complained to the Taree Chiropractic and Osteopathic Clinic about sciatica in February 2004, Ms Moore said that she had spent the whole day gardening and that, to her, “it wasn’t a back injury” (T65.29).

It was suggested to Ms Moore that the pain she complained about in November 2004 was “very similar” to the pain she complained about in January and February 2004. Ms Moore responded that the pains in early 2004 resolved (T66.43) and that it was not the same type of pain (T66.55). She added (at T66.58 – 67.3):

“Well, I had back pain the second – after ‘04 I had back pain as well as what is now sciatic pain, constant back pain, it just didn’t go away. It just didn’t go away. It just got worse.”

Ms Moore was then asked the following questions (at T67.5):

“Q. So it worsened from the time you made this comp claim? Is that what you’re saying?
A. I had a very, very severe pain as I went to drag because I bent over. I went to drag the pot plant, and then I was too frightened to move for a few minutes. And then I gradually stood up, and from then on it just got worse and worse.
Q. So you had very, very severe pain?
A. It was a ‑‑
Q. And it got worse from being very, very severe? Is that right?
A. Well, I stood up and I was okay. I could move and I could walk, but I went in and I did immediately report it to my general manager.
Q. But it was very, very severe and it got worse from there? Is that right?
A. Well, I ‑ the pain didn’t stay severe, sorry. It was a very severe pain. It lasted for only a few seconds, and then I stood up, and I felt okay, but from then on it just got worse and worse and worse.
Q. So you had a very, very severe pain ‑‑
A. Yeah.
Q. ‑‑ which got okay ‑ well, that day ‑ it got better that day, back to where it was before you had the very, very severe pain?
A. Yeah. I could stand up. I was too frightened to move initially, but it did ‑ and it was painful but it wasn’t debilitatingly painful, but it did become debilitatingly painful.”

Ms Moore did not agree that, because she did not see a doctor straight away in September 2004, the incident at that time was not as bad as the incidents in January and February 2004 (T68.30). She said that she had been given exercises earlier in 2004 and she thought that she would do exercises to resolve the September 2004 pain. She did not know that she had “done any serious damage” (T69.40). She was “used to having pain there” (in her buttock and left leg) which resolved, but her symptoms after September 2004 got worse (T69.45).

When someone asked her if she had hurt herself, she said the only time she experienced pain in her back was “pulling a pot plant” (T69.54). This evidence was clearly a reference to the incident at work on 16 September 2004. She denied having had any pain before moving the pot plant (T70.51), the symptoms from January and February 2004 having resolved.

Ms Moore agreed that, if the notes from Taree Chiropractic and Osteopathic Clinic recorded her to have complained of back and leg symptoms on 16 March 2004, then she would accept that, but she could not remember it (T71.50).

In respect of clinical notes from Physiotherapy Network dated 16 November 2004, Ms Moore accepted that the notes recorded she had had chronic low back pain since January of 2004. She added, however, that the pain was not significant and the sciatic pain had “resolved” (T72.54) and “did not impair [her] in any way with [her] work or [her] life, so it wasn’t significant” (T73.3).

When questioned as to why, over 11 consultations at Physiotherapy Network between 16 November and 22 December 2004, she had not mentioned the work incident of 16 September 2004, Ms Moore replied that she expected she would “get better” (T76.53) because she had always recovered in the past (T77.11).

Ms Moore said that Scott Webster, a co-worker with the Council, filled out her claim form, he having encouraged her to submit the form (T85.54). In respect of the answer “no” to whether she had previously suffered any similar injury or condition, Ms Moore said that she did not associate her sciatica – something that had resolved – as being a “similar injury” (T86.46). She made the same response in respect of the assertion in her statement of 30 March 2007 that she had not had any prior back problems. She reiterated (at T91.10) that she did not associate her previous sciatica with being a “back condition”. She had assumed it was “muscle spasm”. In any event, it was not disabling and she never had a day off work with it (T92.22).

When questioned about the history recorded by Professor Ghabrial, Ms Moore said that she could not remember, but added that she always said that she had previously experienced pain in her buttock and left leg (T93.50). She agreed that she answered whatever questions Dr Matheson put to her. She had no idea of the dates when she experienced her previous sciatica (T95.48).

When questioned about moving house in October 2004, Ms Moore stated that she had not carried or packed anything, but had lifted clothes on hangers (T96.11), and done some lighter lifting (T96.22).

Ms Moore denied having told Dr Arnold on 12 November 2004 that she experienced “a two-week increase in left leg and low back pain” (T96.34) and said, “it would have been two months” (T96.39). When pressed about whether she could say with confidence that she said two weeks or two months to Dr Arnold, she replied that she could because she hurt herself in September 2004 (T96.1).

In re-examination, Ms Moore described the pain she experienced on 16 September 2004 as a “sharp, very sharp, severe pain” in her back, which she had never experienced before (T103.1). The pain was in her lower back and down the outside of her left leg, with pins and needles in the whole leg to the point of “not being able to walk for a few days” (T103.7). The weakness in her left leg improved, but her symptoms generally did not resolve (T103.51), and progressively got worse and not better (T104.2). She struggled at work after the September 2004 incident. She reiterated that, before September 2004, her back and left leg and buttock were “perfectly fine” (T107.22).

Thomas Moore

Mr Moore was married to Ms Moore from 1973 until their divorce in 1991. They remained in close contact since 1991. He confirmed that Ms Moore had been an A-grade tennis player. He stated that he had not been aware of her experiencing any “pre-existing leg or back problem”. Since her accident, however, it had been impossible for Ms Moore to lead a “normal life”. As the worker’s pharmacist for 38 years, he stated that her only relevant injuries were “minor muscular and ligament damage to the knees and ankles due to sporting activities”. After September 2004, he counselled her on pain control.

Ian Angus

Mr Angus worked with the Council from January 1995 until August 2003. He found Ms Moore’s honesty to be beyond reproach. He was aware that she often played tennis mid-week before work. He recalled seeing her “struggling to move some planters” that decorated the foyer outside the Council Chambers and executive offices. At no time was he aware that she suffered from any physical disability until after he retired and visited the Council’s offices, and found that she had sustained a back injury.

Greg Trevaskis

Mr Trevaskis was the Council’s general manager between January 1999 and January 2002. He found Ms Moore to be an honest, professional and diligent person. She led a completely normal life prior to her injury in September 2004.

James Boyce

Mr Boyce started work with the Council in August 1991, and has known Ms Moore since that time. He found her professional credibility to be beyond reproach. He developed a personal relationship with Ms Moore in 1998 and lived with her from 2001 until late 2004. He recalled that she had “perhaps” two bouts of sciatica in the time that he knew her. They were not major issues and did not adversely affect their social and recreational activities. He was not aware of any “pre-existing back or leg problem”. When she did experience sciatica, he assisted her with special exercises given to her by a chiropractor to stretch the muscles across the buttock, and the problem resolved.

Mr Boyce recalled Ms Moore developing a rash on her leg and back after returning from a trip to the United Kingdom and Ireland in 2001. She attended on Dr Munnings, who prescribed appropriate medication for shingles. He distinctly recalled Ms Moore telling him “she had something happen in her back whilst moving a large pot plant outside the Council Chambers, which she had immediately reported to the General Manager”. It frightened her because it had caused severe pain in her back at the time. He confirmed that Ms Moore often had to move heavy furniture and stack chairs for meetings and functions in the course of her employment. He once assisted her to move furniture. He also assisted her to carry numerous cartons of wine and beer from the bottle shop to the boot of her car, and then unload them and carry them to the committee room bar.

Following the worker’s injury, her whole personality and lifestyle changed. She seemed to be in constant pain, and their social and recreational life suffered accordingly.

Philip Pinyon

Mr Pinyon worked for the Council from June 2002 until January 2007. At the time of the incident in 2006, he was the Council’s general manager, and Ms Moore was his executive assistant. He confirmed that the worker reported to him that she had experienced back pain after moving a pot plant while setting up for a civic function. He said that the pots were large and looked heavy. He said that she told him “in a casual manner that she had hurt herself” and that he did not take it to be “an official report of injury”. He recalled that she complained of low back pain and had strained her back shifting a pot. He was not aware of Ms Moore having experienced any previous back pain or injury. He had no doubt about Ms Moore’s integrity prior to her injury. However, after she went off work, some issues arose that caused him to question her motivations. Those issues related to Ms Moore’s return to work on alternative duties, and the question of job-sharing.

Scott Webster

Mr Webster was the occupational health and safety and rehabilitation co-ordinator with the Council. Mr Webster wrote an email to June Khaw on 31 January 2005 relating to the worker’s workers compensation claim. He stated:

“When completing [the] employee claim form, Ms Moore reported that she had experienced sciatic pain for some years prior to [the] injury, but felt that this was a different injury.
[She] says that she is now experiencing pain and ‘pins & needles’ in her left leg and foot.
I have no doubt as to the incident occurring as described.
However, I am wondering if the previous condition is responsible for her ongoing symptoms, more so than this incident???”

In his statement dated 16 January 2008, Mr Webster said he was first informed that Ms Moore had injured her back in December 2004. He added:

“Kay mentioned to me that she had a sore back. She said she could not remember what she did – she thought she had hurt it a few months prior.”

After that conversation, Mr Webster “initiated” Ms Moore completing an incident report and claim. He did the incident report with her. She told him the only incident she could think of that could have caused the injury was when she moved a pot plant in September 2004.

THE ARBITRATOR’S REASONS

In his Statement of Reasons (‘Reasons’) delivered on 7 October 2008, the Arbitrator made the following findings:

“64.I therefore cannot accept the Applicant as an accurate historian as to her symptoms and where there is a dispute between what she says in her statements and other records, I accept the other records. I refer also to the submissions of the Respondent in particular paragraphs 6.6 and following that go to the inconsistencies in the Applicant’s evidence.

65.I accept therefore that when the Applicant went to see her doctor some two months after the accident is was because of two weeks of increasing pain. That is what is recorded. There is nothing in the notes of this consultation nor any consultation until January 2005 that identified the incident of 16 September 2004 as a precipitating factor in that pain.

66.The Applicant neither in her statement or in evidence gave any satisfactory explanation of her failure to offer to the doctor a history of the work injury.

67.I also find that she did not have any time off work after the incident on 16 September 2004 as this is consistent with the records of the Respondent and those records were not put in issue.

68.I find that the Applicant began to suffer more chronic pain in her back not after the accident but about two weeks before she saw her doctor on 12 November 2004.

69.I find that the pain that she suffered on 16^th September 2004 was real and may have been temporarily severe but it was not physically debilitating and that she was able to continue to work for 2 months after this incident, without apparent discomfort. If she had been suffering discomfort for 2 months after that incident, she would surely have told her doctors of that significant health impact. She did not. Her colleagues appear not to have known or observed if this is the case.

70.I find that the incident of 16 September 2004 was no more significant than that of February 2004, or when she saw her doctor in January 2004, or in February 2004 when she hurt her back “pulling a pot plant” at home.

71.It follows that the Applicant’s significant disc pathology did not occur on 16^th September 2004.

72.I find that the Applicant suffered a strain that caused a temporary aggravation to her pathology on 16^th September 2004. The strain however was not the first time she suffered those symptoms so that it did not render an otherwise asymptomatic condition symptomatic.

73.I find that the Applicant did not suffer any further damage or rupture to her disc on 16^th September 2006 than already existed at that time. If such further damage had occurred there is little doubt, given the Applicants predisposition, that she would have suffered immediate, significant and long lasting pain. I have found that she did not.

74.I find that the symptoms may have been temporarily significant but within one or two weeks the Applicant’s condition and symptoms returned to that which she experienced before the incident of 16^th September 2004, which may or may not have involved some ongoing pain in the back or left leg.”

ISSUES IN DISPUTE

The issues in dispute are whether the Arbitrator erred:

(a) in remitting the matter to the Registrar for referral to an AMS for assessment of whole person impairment as a result of the injury on 16 September 2004 and in failing to enter an award for the Council in respect of the claims for compensation under sections 66 and 67 in circumstances where the Arbitrator’s findings amounted to a determination of the causation dispute in favour of the Council;
(b) in the reconsideration application, in failing to revoke his order directing the Registrar to refer the worker to an AMS for assessment of whole person impairment, and failing to enter an award for the Council in respect of the claims for compensation under sections 66 and 67, and

(c) in making a finding that Ms Moore’s injury was only a strain that resolved in one or two weeks.

SUBMISSIONS, DISCUSSION AND FINDINGS

Did the Arbitrator err in remitting the matter to the Registrar for referral to an AMS?

The Council has submitted:

(a) the Arbitrator’s finding on causation resolved the question of whether there was any permanent impairment resulting from the employment injury. Therefore, there was no dispute to be referred to an AMS;
(b) reliance was placed on Peric v Chul Lee Hyuang Ho Shin Jong Lee & Mi Ran t/as Pure and Delicious Healthy and anor [2009] NSWWCCPD 47 (‘Peric’) where it was held (at [77]) that a question of whether an injury has caused ongoing disability or had a pathological effect limited to a particular period of time was a legal question of causation which remained exclusively within the jurisdiction of the Commission;

(c) orders 4 and 5 of the Determination of 7 October 2008 should be revoked and an award made in favour of the Council in respect of the claims for lump sum compensation under sections 66 and 67;

(d) reliance was placed on Waretini.

Ms Moore has submitted:

(a) the Arbitrator had no jurisdiction to make any factual findings. To the extent that he did so, those findings were irrelevant so far as the AMS and Appeal Panel were concerned;
(b) the Arbitrator erred in stating (at[76] of his Reasons) that any referral to an AMS was made “on the basis of these findings”, as that statement breached the principles identified in Haroun. This error did not vitiate the determination, as the AMS and the Appeal Panel each made their own assessments, as they were bound to do if they came to a different conclusion to that reached by the Arbitrator;

(c) Peric can be distinguished on two grounds. First, the dispute in that case concerned weekly compensation, medical expenses and lump sum entitlements. It therefore included factual and legal matters incapable of determination by an AMS. In Ms Moore’s Application, the only dispute requiring determination was the extent of the lump sum entitlement and any deduction under section 323 for a previous injury or a pre-existing condition or abnormality, both matters within the exclusive jurisdiction of an AMS. In Peric, the section 74 notice disputed injury and, as a result, the Arbitrator had jurisdiction to entertain the application, and factual determinations were required. In the present case, however, the Council has not disputed injury, and the parameters of the dispute invited no factual determination other than the determination of lump sum compensation;

(d) there is no issue in the present case that an injurious event occurred in the course of Ms Moore’s employment, or that pathology resulted from that injury. The issue in dispute is whether any impairment resulted from that injury. That was a matter for the exclusive consideration and determination of an AMS. In these circumstances, the Arbitrator had no jurisdiction to make any factual finding.

In response to the submissions filed on behalf of Ms Moore, Mr Underwood filed further submissions on 5 March 2010. Essentially, he argued that the position in the present case was “exactly the same as applied in Waretini”. The Arbitrator’s finding on causation, namely, that the effects of the work injury had ceased within about two weeks, resolved the dispute in relation to the section 66 claim, and there was no dispute remaining to be referred to an AMS. He referred to the various parts of the section 74 notice dated 19 June 2008 that asserted Ms Moore had only suffered a minor soft tissue injury and that any incapacity for work had resulted from non-work injuries. He submitted that the section 74 notice clearly raised disputes as to causation and the pathological consequences of the work injury. Therefore, it was not correct to suggest that there was no factual determination required by the Arbitrator. A determination of a “causation issue” determined the section 66 dispute, and the matter should not have been referred to an AMS.

The Council’s submissions fail to acknowledge the significant factual differences between Peric and Waretini and the present matter. Those differences are critical to the outcome in the present case.

In Peric, the insurer had squarely raised in its section 74 notice the issue of injury, namely, whether an injurious event occurred. The section 74 notice in the present case did not dispute injury, but disputed incapacity and whether the effect of the injury had resolved. The reference to incapacity was irrelevant, as Ms Moore made no claim for weekly compensation. Had Ms Moore claimed weekly compensation, it would have been necessary for the Commission to determine her entitlement to that compensation, and to determine whether the effect of the injury was continuing. In those circumstances, such an issue would have been exclusively within the jurisdiction of the Commission.

However, the critical (and only) issue in dispute in the present case was whether, as a result of her admitted injury, Ms Moore had an entitlement to lump sum compensation and, if so, the extent of that entitlement. The jurisdiction to determine the extent of a whole person impairment as a result of an injury rests with an AMS and his or her MAC is conclusively presumed to be correct on the issue of the degree of permanent impairment and whether any proportion of the impairment is due to any previous injury or pre-existing condition or abnormality (section 326 of the 1998 Act).

This construction is consistent with Haroun, where it was held (at [20]) that “[i]f there is a medical dispute of a kind defined in s 326(1) of the 1998 Act, an Arbitrator has no jurisdiction to decide it, but ‘may refer it for assessment’ by an AMS: s 321(1)”. The Court (Handley AJA, McColl JA and McDougall J agreeing) went on to observe that, since the Arbitrator had no jurisdiction to decide the medical dispute, namely, the extent of whole person impairment, he had no jurisdiction to make findings that were binding on an AMS or an Appeal Panel. That the parties agreed that the effects of an injury were continuing did not prevent an AMS from finding that no impairment resulted from that injury. Thus, in the present case, the Arbitrator’s finding that Ms Moore suffered only a temporary strain did not bind the AMS in making his finding as to the degree of permanent impairment as a result of the injury.

This analysis is not inconsistent with Waretini. In that case, the dispute concerned a claim for lump sum compensation and weekly compensation. The Arbitrator determined, as he was required to do in order to determine the claim for weekly compensation, that the effect of the injury had ceased, and there was an award for the respondent in respect of the claim for weekly compensation. Notwithstanding that finding, he referred the assessment of lump sum compensation to the Registrar for referral to an AMS. On appeal, Acting Deputy President Snell held (at [40]) that once “the finding on causation was made, there was no ‘dispute’ to be referred to an AMS” because “[t]he ‘dispute’ had been resolved by the finding on causation”.

The Council’s submission that the Arbitrator’s finding in the present matter was the same as the finding in Waretini fails to acknowledge that the claim in that case was not restricted to lump sum compensation, as it is in the present matter, but included a claim for weekly compensation. It does not matter that StateCover’s section 74 notice alleged that any incapacity beyond a few days from the date of injury had resulted from causes other than the incident. Incapacity was not the subject of the claim by Ms Moore and was not the subject of the dispute the Commission was required to determine.

Had incapacity been an issue in dispute, the Commission would have been required to determine that matter. Had it determined that the effect of the injury had ceased, there would then have been no medical dispute for referral to an AMS (Peric at [80]) and the decision would have created an estoppel (WorkCover New South Wales v Evans [2009] NSWWCCPD 95 (‘Evans’)) preventing an AMS from making a finding inconsistent with the Commission’s determination. However, since incapacity was never an issue in dispute in the present matter, the principles discussed in Peric, Waretini and Evans do not arise.

In a claim restricted to lump sum compensation only, the Commission has jurisdiction to determine if the worker received an injury. However, rather than disputing injury, StateCover conceded that Ms Moore injured her back on 16 September 2004 and only disputed quantum. In these circumstances, an AMS had to determine the degree of permanent impairment that resulted from that injury. Had the employer disputed injury, the Commission would have determined that dispute. Given the nature of the dispute (quantum) and the nature of the compensation claimed (lump sum compensation only), it follows that the Arbitrator did not err in remitting the matter to the Registrar for referral to an AMS and not making an award for the respondent.

Did the Arbitrator err in his reconsideration determination?

It follows from the above analysis that the Arbitrator did not err in his reconsideration determination of 11 May 2009. Both parties sought a reconsideration in order to obtain orders or directions more favourable to their respective positions. Both parties have misunderstood the nature of the reconsideration power in section 350(3) of the 1998 Act.

Parties usually rely on the reconsideration power to have the Commission reconsider a matter because of fresh evidence that, with reasonable diligence, was not available at the first hearing. They may also use it to correct obvious errors. In the present case, however, the proper course to be followed, if it was alleged that an Arbitrator had erred, was to seek leave to appeal to a presidential member. It was not appropriate for the parties to seek to cavil with the Arbitrator’s decision in order to obtain a more favourable outcome. Further, it was not appropriate for the parties to file eight separate submissions with respect to the reconsideration applications. The proper course to be followed is set out in the Registrar’s Guideline dated 22 October 2007.

Did the Arbitrator err in finding that Ms Moore’s injury was only a strain that resolved in one or two weeks?

Though it is not essential for the determination of the appeal, it is appropriate that I consider it because of the inconsistent determinations on 7 October 2008 and 4 November 2009, which cannot sit together. I will first consider this question by reference only to the material before the Arbitrator and without reference to the evidence from Dr Hyde Page and the Appeal Panel.

The Council’s position is that the Arbitrator’s findings were correct and should not be disturbed. Its submissions, which will not be repeated because of their length, were, in essence, that the clinical notes at [35] above and the evidence from Drs Breit and Matheson support the Arbitrator’s conclusion and establish that Ms Moore only suffered a strain on 16 September 2004 and that she recovered from that strain within one or two weeks. This position is further supported, so it is argued, by the fact that Ms Moore did not mention her back injury to Dr Arnold until January 2005.

I do not accept the Council’s submissions. I find that the Arbitrator erred in finding that Ms Moore suffered only a strain on 16 September 2004 and that she recovered from that strain within a few weeks. My reasons are as follows.

While moving the large pot plant on 16 September 2004, Ms Moore experienced sudden severe pain of a type that she had not experienced before. The lengthy cross-examination did not undermine her evidence on that point and I accept it.

Though it is certainly relevant, especially to assessment of her lump sum compensation, it is not determinative that she experienced previous back and leg symptoms. Her evidence, which I accept, is that her previous symptoms settled with exercise and that she had no back symptoms immediately before 16 September 2004. That evidence was supported by the absence of medical treatment in the months leading up to September 2004 and the fact that she continued her normal duties, which, from time to time, required her to engage in heavy physical activities preparing the Council’s premises for functions.

Unlike her condition in early 2004 (and before), which resolved (T66.43), the evidence was that Ms Moore’s condition “just got worse” (T66.58-67.3; T69.45) after the September 2004 incident and that the pain was not the same type of pain as she had experienced before.

Though the history recorded by Professor Ghabrial was less than perfect, it did refer to previous left buttock pain and to marked disc degeneration. In other words, Professor Ghabrial was well aware that Ms Moore had a pre-existing condition in her spine. In these circumstances, and given that Ms Moore continued to work without restriction or difficulty until the September incident, I accept that Professor Ghabrial’s history provided a fair climate for the acceptance of his opinion on causation (Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 at 509-510; (1985) 59 ALJR 844; [1985] HCA 58 (‘Paric’)) and I reject the Council’s submission that the report should have been either excluded or given no weight.

The clinical records on which the Council placed so much weight are of limited assistance. They merely confirm that Ms Moore had pre-existing degenerative changes in her lumbar spine that were, from time to time, symptomatic. That fact was not disputed, but, in any event, was relevant only to the extent of the section 323 deduction, a matter for the AMS. What was more significant was that Ms Moore’s symptoms in early 2004 resolved. That was confirmed by her evidence, extensively tested in cross-examination, and by Dr Arnold’s evidence that the back pain in January 2004 was of a “transient, relatively minor nature”. That she saw a chiropractor in February and March 2004 does not detract from that conclusion.

I do not accept the Council’s submission that Ms Moore suffered a “significant non-work injury in about February 2004” when she pulled a pot plant. This submission ignores the evidence, independently corroborated, that Ms Moore recovered from the symptoms she experienced in early 2004 and continued with her normal duties without time off, medical treatment, or restriction.

It is improbable in the extreme and, given Ms Moore’s evidence as to her activities and lack of symptoms in the several months up to September 2004, I do not accept, that the “dramatic L5/S1 disc protrusion and sequestration” revealed in investigations in late 2004 and early 2005 had been present since early 2004.

The Arbitrator’s finding that Ms Moore suffered a strain that resolved in a few weeks was unsupported by any persuasive evidence. The evidence from Drs Breit and Matheson was that she suffered no injury. That was of limited relevance in circumstances where the Council conceded injury. In any event, the positive slump test and reduced left straight leg raising found by Dr Arnold on 29 November 2004 could not have been caused by a strain.

The Arbitrator did not err in admitting Dr Arnold’s undated and unsigned report. Though it was not signed, its contents unequivocally confirmed that Dr Arnold was the author. The report dealt with the relevance of his clinical notes and responded to the evidence from Drs Breit and Matheson. It was clearly in the interests of justice that it be admitted. Its admission involved no prejudice to the Council. The Council was not entitled to an adjournment to meet Dr Arnold’s evidence, even though it was served late. His opinion that Ms Moore suffered a disc injury on 16 September 2004 was not new, but was consistent with Professor Gabrial’s evidence, which the Council had in 2005 and 2006. The Council had every opportunity to meet that case. It did so by qualifying Drs Breit and Matheson, who were both adamant that Ms Moore had not received any injury. The admission of Dr Arnold’s report involved no unfairness to the Council.

Dr Arnold’s evidence in his undated report, which the Arbitrator did not consider, was entitled to significant weight because he examined Ms Moore before and after 16 September 2004. His opinion that the L5/S1 discopathy appeared to have occurred as a result of the September 2004 incident was logical and consistent with the worker’s clinical presentation and the radiological investigations. That Ms Moore may have had pins and needles in her foot in early 2004 was not determinative of whether she received an injury on 16 September 2004. I have found Dr Arnold’s evidence to be compelling and persuasive. Even if I had excluded Professor Gabrial’s evidence, I would have been comfortably satisfied that Ms Moore had established her case on the basis of Dr Arnold’s evidence.

Though lifting heavy objects while moving house can certainly cause a low back injury, Mr Underwood cross-examined Ms Moore extensively about her house move and I accept her evidence that she did not lift any heavy items at that time. It was never seriously suggested, and there is no persuasive evidence, that her injury occurred at that time, as opposed to on 16 September 2004. At its highest, Dr Breit suggested the condition was a “constitutional phenomenon, almost certainly aggravated by moving house, not a pot plant”. In light of Ms Moore’s evidence in cross-examination, I do not accept Dr Breit’s conclusion. Even if the limited activities Ms Moore performed when she moved house exacerbated her symptoms that does detract from the significance of the September 2004 incident.

As Dr Arnold observed, the biomechanics involved in pulling/dragging a heavy pot plant would involve flexion and lifting, that is, activities that should be avoided, as they increase the shearing forces within the disc. This fact, together with Ms Moore’s history of experiencing sharp pain at that time, make it more probable than not that she injured her low back in the manner she alleges on 16 September 2004.

I do not accept Dr Matheson’s conclusions. He appears to have totally rejected the worker’s (undisputed) history of symptoms while pulling a pot plant and wrongly recorded that she had been pushing a pot plant. His assertion that none of her symptoms were work related, because she was simply doing a clerical job, was inconsistent with Council’s concession on injury and with the facts.

I do not accept Dr Breit’s conclusions because he has failed to give any, or any sufficient, weight to Ms Moore’s evidence, corroborated by Mr Boyce, that she felt severe pain on 16 September 2004 and that her condition did not resolve, but deteriorated.

Though the Council has referred to Fox v Percy [2003] HCA 22; 214 CLR 118, the Arbitrator did not base his decision on Ms Moore’s credit or demeanour, but relied on his analysis of the medical evidence. In any event, I am satisfied that the incontrovertible evidence and the overwhelming inference from the evidence is that Ms Moore suffered a disc injury on 16 September 2004.

To the extent that Mr Underwood challenged Ms Moore’s credit in cross-examination, I do not accept that it was undermined or diminished. Ms Moore made admissions where appropriate, but maintained that, with exercises, she had recovered from the symptoms she experienced in early 2004 and that her symptoms on 16 September 2004, and subsequently, were different to her previous symptoms. She also gave a plausible explanation, which I accept, for why she did not mention the September incident to Dr Arnold when she saw him in November 2004. She expected that, as before, her symptoms would resolve with exercise. They did not resolve, but deteriorated.

That Ms Moore was untroubled by back pain in the months leading up to September 2004 is confirmed by the statement from her former partner, Mr Boyce, which the Arbitrator allowed into evidence over objection. Mr Underwood renewed that objection on appeal. The Council suffered no prejudice as a result of the admission of Mr Boyce’s statement. It had ample time to prepare its case, and did so by obtaining statements from several lay witnesses about Ms Moore’s pre- and post-accident condition. It advanced no basis that would have justified allowing Mr Boyce to be cross-examined.

Mr Boyce’s evidence was strongly corroborative of Ms Moore’s evidence that she did not have significant back problems or restrictions before September 2004 and that the previous episodes of sciatica were not “major issues” and did not adversely affect their social and recreational activities. Consistent with Ms Moore’s evidence, he stated that the previous sciatica resolved with exercises. He also corroborated Ms Moore’s evidence that the pain she experienced on 16 September 2004 was severe and that, following her work injury, her personality and lifestyle changed.

Mr Trevaskis also corroborated Ms Moore’s evidence that she had no major health issues or physical restrictions before September 2004. For the reasons given in relation to Mr Boyce’s statement, I do not accept that the Arbitrator erred in allowing his statement into evidence.

Whilst I do not accept that Ms Moore had time off work immediately after 16 September 2004, that is not decisive and does not rule out the possibility that she may have spent the weekend of 18 and 19 September resting. What is of more significance is that her condition did not resolve, but got worse.

The reference to back pain on 9 October 2001 is of little significance. I accept that a few days later she saw her general practitioner and that he diagnosed shingles. The probability is that her back symptoms at that time related to the shingles.

Contrary to the Arbitrator’s finding, Ms Moore’s evidence that she had persistent pain from 16 September 2004 was not inconsistent with Dr Arnold’s entry in his notes on 12 November 2004 of “two week increase (L) leg and LBP”. Dr Arnold referred to that entry in his undated report where he said, “she gave a history of 2 weeks of increasing left leg and low back pain not relieved with anti-inflammatory [sic] and Tramal”. That does not mean that the pain started two weeks before the attendance on 12 November 2004, but merely that it had been increasing in that two-week period. It is not suggested that a specific event caused that increase in symptoms. For the reasons noted above, I do not accept that the increase resulted from the house move in October.

I do not accept that the absence of a reference to the work injury in the notes from the Taree Physiotherapy Network is decisive. It was when Ms Moore’s physiotherapist questioned her that she appreciated she may have done significant damage at work in September 2004 (T74.25).

Ms Moore’s failure to seek medical treatment for two months after September 2004 is not critical. Her evidence that she was not a “doctor person” (T104.36) is plausible and consistent with the absence of attendances on Dr Arnold between January 2004 and November 2004. When she saw Dr Arnold in January 2004, she mentioned her back symptoms as “only one of three other problems”. The evidence suggested that, apart from the onset of shingles, Ms Moore never saw a doctor before September 2004 for back pain on its own. She saw a chiropractor for minor aches and pains. That is consistent with the chiropractor’s records in March 2004, which recorded Ms Moore attended because of a hamstring problem, and in 2001 when she attended for a very tight neck.

The Arbitrator erred in finding that Ms Moore’s symptoms returned to their pre-injury state within one or two weeks of the incident on 16 September 2004. The evidence was that her symptoms did not settle, but got worse.

At its highest, the Council’s case was that Ms Moore had a vulnerable back before September 2004. That was undoubtedly true, and that was most relevant to any deduction under section 323 for a pre-existing condition, but that does not mean that she did not receive an injury on 16 September 2004. Employers must take their workers as they find them.

Ms Moore’s oral evidence – that she considered her previous condition to be predominantly in her buttocks and leg – explains the evidence in her supplementary statement that she had no prior back problems. For a layperson, such an explanation is plausible and I accept it. This evidence is also consistent with her evidence that she did not know that sciatica was the description of nerve-related pain and that she believed it was a muscle. Ms Moore has consistently conceded having experienced prior buttock and leg symptoms. The objective evidence supports her assertion that those symptoms were not disabling and resolved well before September 2004.

I accept that Ms Moore gave an incomplete account of her prior history of back and leg symptoms to several medical specialists, but, having considered the full history, and Ms Moore’s explanation in her lengthy oral evidence, I do not accept that those shortcomings make any difference to the outcome.

I have not based my conclusion on the reports of Drs Spittaler, Hopcroft, Bookallil, Straughan, or Barrett, but on the opinions of Dr Arnold and Professor Ghabrial.

The submission that Dr Arnold is a general practitioner and therefore he is “less qualified” and his opinion is “less acceptable” than the opinions of Drs Breit and Matheson is unpersuasive. As Dr Arnold treated Ms Moore before and after the work injury, his opinion is entitled to considerable weight, especially when the issue of Ms Moore’s pre-September symptoms was of such importance. That he was uncertain, in his first WorkCover certificates, if employment was a substantial contributing factor to the injury is not determinative, but indicates he had an open mind to the issue of causation. This enhances rather than undermines the weight I attach to his evidence. He considered the issue of causation in his undated report and comprehensively dealt with that issue in a manner favourable to Ms Moore. His evidence was logical, probative and consistent with the objective facts. Given Ms Moore’s evidence that she recovered from the February and March 2004 symptoms, it is of no consequence that he did not know of the chiropractic treatment at that time or of the history to the physiotherapist in November 2004. His history provided a fair climate for the acceptance of his conclusions (Paric).

The MAC and the Appeal Panel decision also support the above conclusion. Dr Hyde Page found that the incident on 16 September 2004 caused a sequestration of the L5/S1 disc. That finding is consistent with the conclusion I have independently reached after an analysis of the medical and lay evidence. In supplementary submissions filed on 21 April 2010, Mr Underwood has challenged the MAC on the ground that Dr Hyde Page relied on Dr Arnold’s reports and made “demonstrable errors” in “terms of overlooking and not referring to relevant histories in the clinical notes”. He challenged these “errors” at length before the Appeal Panel, which confirmed the original MAC. I have no jurisdiction to review a validly issued MAC (Morris v University of NSW [2008] NSWWCCPD 31 at [33]) and Mr Underwood’s submissions were misguided. In any event, the Dr Hyde Page’s conclusions accord with the conclusion I have reached after a detailed review of the evidence that was before the Arbitrator.

Once a MAC is issued under Part 7, it is conclusively presumed to be correct as to the degree of permanent impairment of the worker as a result of the injury (section 326 of the 1998 Act). It is true that a MAC that does not comply with section 325(1) and (2) may well be invalid and a Certificate of Determination based on such a MAC may also be invalid (Jopa Pty Ltd t/as Tricia’s Clip-n-Snip v Edenden [2004] NSWWCCPD 50; (2004) 5 DDCR 321 at [38] (‘Jopa’)). In Jopa, the MAC under challenge was held to be invalid because the AMS based his opinion on a “condition subsequent” that was never met. That being so, he had not been fully informed of the facts on which his assessment was based and his MAC did not comply with section 325(1) and (2). As a result, his assessment was invalid. No such error has been or could be alleged against the MAC in the present matter.

The Council’s submission that “the sole jurisdiction to determine causation issues rests with the Arbitrator” and “the AMS’s and the medical appeal panel’s conclusions on causation to the contrary ought to be revoked” ignores the fact that it never disputed injury in its section 74 notices and the only compensation claimed was lump sum compensation. Had the worker claimed weekly compensation and been unsuccessful (because the Arbitrator found that the effect of the injury had ceased), it would then have been arguable that the Arbitrator’s decision created an estoppel that would have prevented the matter being referred to an AMS (Evans and Waretini). In the alternative, had the Council disputed injury and, consistent with the evidence from Drs Breit and Matheson, the Arbitrator had found that Ms Moore suffered no injury on 16 September 2004, there would have been no basis for referring the matter to an AMS. However, neither of those situations arose in the present matter. As I have earlier observed, where an employer admits that a worker received an injury and the only compensation claimed is lump sum compensation, the assessment of the degree of permanent impairment is a matter for an AMS. That is what occurred in the present matter.

CONCLUSION

Having conducted a review on the merits, I have determined that, given the nature of the compensation claimed (lump sum compensation) and the issue in dispute (quantum), the Arbitrator did not err in referring the question of assessment of whole person impairment to an AMS. For the same reasons, he did not err in refusing to revoke that order on reconsideration. Further, or in the alternative, the Arbitrator erred in finding that Ms Moore suffered only a strain on 16 September 2004 and I find that she suffered an injury to her L5/S1 disc on that day. So that the determinations of 7 October 2008 and 4 November 2009 are consistent, and to avoid any possible future dispute as to the nature of the Commission’s determination, paragraphs two and three of the determination of 7 October 2008 must be revoked.

DECISION

Paragraphs 2 and 3 of the determination of 7 October 2008 are revoked. All other orders in the determination of 7 October 2008, and the determinations of 11 May 2009 and 4 November 2009, are confirmed.

COSTS

The appellant employer is to pay the respondent worker’s costs of the appeal, as agreed or assessed.

Bill Roche
Deputy President

5 May 2010

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

Actions

Download as PDF Download as Word Document

Citations

Greater Taree City Council v Moore [2010] NSWWCCPD 49

Most Recent Citation

Ugarte- Veliz v Secretary, Department of Communities and Justice [2021] NSWPIC 137

Cases Citing This Decision

20

Trustees of the Roman Catholic Church for the Diocese of Parramatta v Barnes [2015] NSWWCCPD 35

Galluzzo v Commonwealth Bank of Australia [2014] NSWWCCPD 82

Jaffarie v Quality Castings Pty Ltd [2014] NSWWCCPD 79

Cases Cited

15

Statutory Material Cited

0

Haroun v Rail Corporation New South Wales [2008] NSWCA 192

Moore v Greater Taree City Council [2009] NSWWCCPD 17

Willis v SPL Group Ltd [2007] NSWWCCPD 32