Griffiths v Secretary, Department of Education
[2022] NSWPIC 220
•17 May 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Griffiths v Secretary, Department of Education [2022] NSWPIC 220 |
| APPLICANT: | Gregory Griffiths |
| RESPONDENT: | Secretary, Department of Education |
| PRINCIPAL MEMBER: | John Harris |
| DATE OF DECISION: | 17 May 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - The applicant sustained cervical spine injuries in 1997 and 2000; these injuries caused radicular type symptoms in the right arm; prior medical assessments for threshold purposes only attributed the entire cervical spine assessment to the 1997 injury and the right arm assessment to the 2000 injury; the claimant brought the present proceedings seeking to aggregate the right arm assessment with the cervical spine assessment for the 1999 injury; Held- common law principles of causation apply to the Workers Compensation Acts: Ozcan v Macarthur Disability Services Ltd and Secretary, Department of Education v Johnson considered; a review of the medical evidence and the medical assessments established that the assessment of the right arm symptoms to an aggravation of the cervical spine surgery which was caused by the 1997 injury; this meant that the assessment of the right upper extremity resulted from the 1997 injury and fell within the second category of State Government Insurance Commission v Oakley; order made for aggregation; observations made that the decision was not an endorsement that a new claim could be brought, or reconsideration sought of prior orders in light of the Court of Appeal’s reasoning in Ozcan. |
| DETERMINATIONS MADE: | The applicant has 16% permanent impairment that results from the injury sustained in the period from 1994 to 14 August 1997. |
STATEMENT OF REASONS
BACKGROUND
These proceedings are brought by Mr Griffiths against the Secretary, Department of Education (the respondent) seeking a determination of the permanent impairment that results from injury, described in the pleading as occurring in the period from “1994 up to and including 14 August 1997” (the 1994 to 1997 injury).
The 1994 to 1997 injury is pleaded as arising from driving significant distances in western New South Wales causing injury to the neck resulting in spinal surgery.
Mr Griffiths underwent surgery to the cervical spine by way of right sided C6/7 foraminotomy on 22 August 1997.[1]
[1] Application, page 95.
Following the surgery, Mr Griffiths returned to his employment with the respondent. On 20 March 2000 Mr Griffiths sustained a further injury when he attempted to stop an altercation between two students in the playground when a third student intervened.
Mr Griffiths brought a number of proceedings before the then Workers Compensation Commission seeking an assessment for the purposes of s 66 of the Workers Compensation Act 1987 (the WC Act) and what is known as a threshold dispute. This course presumably arose because the injuries occurred before 1 January 2002 and the determination of his s 66 entitlements is based on an assessment under the table of disabilities.
An assessment under the table of disabilities involves different concepts from assessments for those injuries received after 1 January 2002. In BP Australia Ltd v Greene[2]. Roche DP referred to the differences in the two assessments when he stated:[3]
“As can be seen from the above summary, the 2001 amendments introduced a completely different scheme for the assessment and compensation of injuries that resulted in a permanent loss or impairment. Prior to 1 January 2002 (but after 1987), compensation for such claims were assessed under the Table entitled “Compensation for permanent injuries”, commonly referred to as the Table of Disabilities or Table of Maims. Under that scheme, workers were compensated for the loss, or partial loss, of a “thing” mentioned in the Table, as assessed by a judge or commissioner of the former Compensation Court of NSW based on the medical and other evidence tendered, and by reference to the percentages in the Table.”
[2] [2013] NSWWCCD 60 (Greene).
[3] Greene at [96].
For injuries received on or after 1 January 2002, the assessment of impairment under s 66 of the WC Act is undertaken in accordance with the fourthedition of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (the Guidelines).[4] The Guidelines adopt the 5th edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 5). Where there is any difference between AMA 5 and the Guidelines, the Guidelines prevail.[5]
[4] The 4th edition guidelines are issued pursuant to s 376 of the 1998 Act.
[5] Clause 1.1 of the fourth edition guidelines.
Due to amendments made in 2001 and by subsequent legislation such as the Workers Compensation Legislation Amendment Act 2012, an entitlement to pursue a remedy for common law damages and/or ongoing statutory benefits are dependent upon exceeding permanent impairment thresholds. The most common examples are the common law threshold (s 151H of the WC Act – 15%) and ongoing medical expenses and weekly compensation (see ss 39, 59A of the WC Act - 20%).
Further, s 322A of the Workplace Injury Management and Workers Compensation Act 1998 (the WIM Act) provides that a worker is only entitled to make one medical assessment of the degree of permanent impairment. It was common ground that the claimant had his one medical assessment for each injury.[6]
[6] A direction was issued following the telephone conference confirming this agreement. This direction was amended by consent to add a further issue. Counsel at the arbitration hearing confirmed the accuracy of the Amended Direction.
In matter number 1743/15, Mr Griffiths brought a claim pursuant to s 66 of the WC Act for the injury sustained on 28 March 2000. The Approved Medical Specialist then assessed the loss under the “Table of Disabilities” as the injury occurred prior to 1 January 2002.[7]
[7] Application, page 51.
Mr Griffiths then commenced proceedings in matter number 718/18 seeking an assessment of permanent impairment for the injury sustained on 28 March 2000. That assessment was referred to an Approved Medical Specialist, Dr Timothy Anderson, who provided the following assessments of permanent impairment:[8]
“Cervical spine - 17% all of which was pre-existing and related to what is described as the 1997 event resulting in 0%; and
Right upper extremity – 8% of which 1/3rd was pre-existing resulting in an assessment of 5%; and
Scarring – 1% all of which was pre-existing resulting in 0%.”
[8] Application, page 60.
Mr Griffiths then commenced further proceedings for the assessment of permanent impairment for the 1994 to 1997 injury in matter number 513/20. That assessment was also referred to Dr Anderson who provided a further certificate dated 19 October 2020 when he assessed the permanent impairment as:
“Cervical spine – 17% less 1/3rd pre-existing condition totalling 12%; and
Scarring – 1%”
This resulted in a combined assessment of 12% permanent impairment.
THE PRESENT APPLICATION
The matter was listed for arbitration hearing on 12 May 2022 when Mr Paul Stockley appeared for the worker and Mr David Baran appeared for the respondent.
The following material was admitted into evidence by consent:[9]
(a) Application to Resolve a Dispute and attachments, and
(b) Reply and attachments.
[9] T, page 1.
There was no objection to any document. There was no request to adduce oral evidence.
The proposed relief was refined at the arbitration hearing when Mr Griffiths sought an order that he had sustained a 16% permanent impairment that results from the 1994 to 1997 injury.
That assessment[10] was said to arise from the following:
(a)that the question of aggregation is a matter for a Member: Ozcan v Macarthur Disability Services Ltd[11], and
(b)the 5% permanent impairment of the right upper extremity from the 2000 injury could be aggregated with the 12% assessment for the 1994 to 1997 injury pursuant to the second principle discussed in State Government Insurance Commission v Oakley.[12]
[10] See AMA 5, page 605 where 12% plus 5% totals 16%.
[11] [2021] NSWCA 56 at [3].
[12] (1990) 10 MVR 570 (Oakley) at 573.
The respondent disputed that the 2000 injury could be aggregated with the 1994 to 1997 injury and submitted that the facts fell within the third Oakley category.
EVIDENCE
Medical assessment certificates of Approved Medical Assessors
The Medical Assessment Certificate dated 19 October 2020 assessed the impairment for the 1994 to 1997 injury.[13] The Approved Medical Specialist assessed the cervical spine at 17% and made a one-third deduction pursuant to s 323 of the WIM Act. He otherwise assessed the surgical scar at 1%.
[13] Application, page 61.
The Medical Assessment Certificate dated 2 May 2018 assessed the degree of impairment from the 2000 injury.[14] The body parts referred for assessment were the right upper extremity, cervical spine and scarring. Dr Anderson assessed the impairment of the cervical spine at 17% and made a 10/10th deduction pursuant to s 323 of the WIM Act. The scarring was assessed at 1% before the same s 323 deduction. In relation to the right upper extremity, the Approved Medical Specialist assessed 8% impairment and made a deduction of one-third pursuant to s 323. This resulted in an assessment of 5% for the 2000 injury.
[14] Application, page 52.
The Approved Medical Specialist made a number of findings with respect to the causes of the impairment following the 2000 injury. In respect of the cervical spine, Dr Anderson stated:
“Following the cervical spine development of 1997, there was a neuro-surgical procedure with a hemi-laminectomy at the C6 level. If this had been assessed using the current WPI technique, the resulting WPI would have been 17%. This is exactly the figure which is identified following the event of 2000. This however relies upon the history of injury and associated surgery conducted in 1997 as opposed to any further injury experienced in 2000. Therefore, the event of 2000 is an aggravation of the previous condition and no further physical findings have been demonstrated…. Exactly the same principle applies to the scarring which arises from the 1997 event as well.”
The findings for the right arm are more significant as it is that assessment that the applicant seeks to have aggregated with the cervical spine assessment for the 1994 to 1997 injury.
The Approved Medical Specialist assessed the right upper extremity based on loss of range of movements[15] which were assessed at 8% impairment. The reasoning of the s 323 deduction and the attributability to the 1994 to 1997 injury were exposed in the following paragraph:[16]
“The Certificiate of Determination of 05/08/15 awarded him a further 9% loss of useful function of the right arm. The previous figure was 4 ½ %. Therefore, it would be reasonable to assume that 1/3 of the WPI for the dysfunction of his right arm would be attributable to the injury of 1997. Therefore, with a reduction of 1/3, the effect on his right upper extremity would be a WPI of 5%.”
[15] Application, page 57.
[16] Application, page 58.
The reference by Dr Anderson to the certificate of determination dated 5 August 2015 is based upon the Medical Assessment of Dr Chris Oates dated 1 July 2015.[17] It appears from the above quoted passage that Dr Anderson has incorporated Dr Oates’ findings into his assessment.
[17] Application, page 43.
Dr Oates noted that there was previous injury in 1998 [sic] “with ongoing symptoms of neck pain and stiffness and tingling affecting the right arm at or above the elbow and including below the elbow, worse with activity”.[18]
[18] Application, page 43.
Later in the reasons, Dr Oates noted that the right arm condition “flows from the neck injury”.[19]
[19] Application, page 50.
Other material referred to by the parties
In a report dated 29 September 1997,[20] Dr McDowell noted that the scan evidence demonstrated a herniated disc at C6/7. The surgery undertaken on 22 August 1997 involved a right C6/7 posterior foraminotomy. The doctor described the disc herniation as “hard and fibrotic” and the removal of disc material was minimally successful. Dr McDowell noted that the brachialgia completely resolved post-surgery and the paraesthesia had diminished. The doctor observed that Mr Griffiths may require an anterior decompression if there was further irritation of the C7 nerve root.
[20] Application, page 97.
Dr McDowell provided a further report dated 16 May 2000 noting that he had previously treated Mr Griffiths for a right sided C7 compressive radiculopathy.[21] The doctor then noted a complete recovery save that sensation in the second and third right fingers had never returned to normal.
[21] Application, page 97.
Dr McDowell referred to the 2000 injury when Mr Griffiths suffered acute severe neck pain and right hand paraesthesia. The doctor opined:[22]
“I suspect that he has disturbed the surgical region and has a degree of root oedema/irritation.”
[22] Application, page 98.
Dr Murray Hyde Page provided a series of reports. In its written and oral submissions, the respondent emphasised the report dated 25 May 2021 which commented on aspects of aggregation.[23]
[23] Reply, page 16.
The report dated 25 May 2021 was described by the doctor as a file review and report on
Mr Griffiths. Dr Page noted the opinions provided by Dr Oates and Dr Anderson and observed that both Approved Medical Specialists were occupational physicians. He considered the opinions of Dr David McDowell and Dr Peter Blum, both neurosurgeons, as the “most reliable and relevant reports”. The doctor otherwise noted that Dr McDowell was the treating neurosurgeon who undertook the surgery and provided reports in 1997 and 2000.Dr Page stated that he relied on the opinions of Dr Blum and Dr McDowell in concluding that the pathology caused by the 1994 to 1997 injury was a right C6/7 disc protrusion and the onset of neck pain in 2000 was cervical disc disease which was “completely different pathology to what [Mr Griffiths] had in 1997.”[24] Dr Page concluded that the pathology arising from the two incidents was “not the same or identical”.
[24] Reply, page 18.
Counsel were advised during the hearing that material not referred to in either the written or oral submissions would be considered.[25]
[25] See Gamestar Pty Ltd v Lockhart (1993) 112 ALR 623 at [8]; Jaffarie v Quality Castings Pty Ltd [2017] NSWWCCPD 2 at [208]; Carter v Star Track Express Pty Ltd [2015] NSWWCCPD 60 at [34].
No other medical reports were referred to in the submissions.
AGGREGATION
Claimant’s submissions
The claimant referred to the findings made by the Approved Medical Specialists over the two medical assessments and submitted that on a plain reading, the 2000 injury involved an exacerbation of restriction of movement in the right upper extremity impairment. This fell within the second Oakley category.
The claimant submitted that the only relevant reports were the assessments provided by the Approved Medical Specialists. To the extent that the Approved Medical Specialist adopted the opinion provided by Dr Oates, that report could be examined. However, other medical opinions were irrelevant to the determination of the aggregation issue including the opinion expressed by Dr Page.
In his reply submissions, the applicant submitted that, in any event, the opinion of
Dr McDowell supported the notion that the right upper extremity impairment from the 2000 injury was causatively related to the 1994 to 1997 injury.
Employer’s submissions
The employer conceded that the assessment of the right upper extremity provided by the Approved Medical Specialist was based on the “Nguyen” principle.
It submitted that the question of aggregation was not limited to the findings of the Approved Medical Specialist and recourse should be made to the entirety of the medical evidence.
The respondent relied on the opinion expressed by Dr Page in his report dated 25 May 2021 and submitted that this opinion was consistent with the opinion provided by the treating neurosurgeon, Dr McDowell.
The respondent submitted that Mr Griffiths sustained a herniated disc at C6/7 in the 1994 to 1997 injury and this was “completely different” to the pathology sustained in the cervical spine in the 2000 injury which was an exacerbation of degenerative changes in the cervical spine.[26] It submitted that the two injuries were independent episodes, and the second injury was unrelated to the first injury. In these circumstances there could be no aggregation of the impairments as the case fell within the third Oakley category.
[26] Respondent’s written submissions, [12].
Reasons
The parties accepted that the issue of aggregation of impairment is a matter for a Member and not a Medical Assessor. This is because s 326 of the WIM Act specifies the circumstances when a medical assessment is conclusive. The section does not bind the parties “as to the way in which the percentages found could or should be aggregated”.[27]
[27] Ozcan at [3].
The parties were at issue on the evidence relevant to the determination of the aggregation issue.
The respondent submitted that the question of relevant evidence required an examination of any opinion and was not restricted to the opinions expressed by the Approved Medical Specialists. The function of aggregating assessments could not be undertaken unless the Commission undertook its own assessment by applying the Oakley test.
The applicant submitted that only the opinions expressed by the Approved Medical Specialists were relevant.
I accept the respondent’s submission that the resolution of the issue is not limited to the opinions expressed by the Approved Medical Specialists. This is in part because the medical assessments are not conclusively presumed to be correct on the issue of aggregation which is to be determined by a Member. In that respect I agree with the respondent’s submission that any evidence can be examined to undertake the analysis required to determine which category of Oakley applies.
However, the Commission is required to address the issue of aggregation of assessments provided by the Approved Medical Specialist. It would be inconsistent with that task to ignore or put to one side, the opinion of the Approved Medical Specialist in circumstances where a determination must be made of whether assessments can be aggregated.
The issue of the aggregation of impairments has been the subject of discussion by two recent Court of Appeal decisions.
In Secretary, Department of Education v Johnson[28] the worker suffered a psychological injury in the employ of the Department and suffered a further psychological injury in the employ of Aboriginal Hostels Pty Ltd, a company insured under the Comcare legislation. The first injury involved a physical and verbal assault by a student. The subsequent injury arose “as a consequence of being exposed to highly traumatic events that comprised aggressive behaviour and threats to her life”.[29]
[28] [2019] NSWCA 321 (Johnson).
[29] Johnson v NSW Workers Compensation Commission [2019] NSWSC 347 at [34], citing [132] of the Medical Appeal Panel decision.
The Medical Appeal Panel found that the worker suffered 19% permanent impairment arising from both injuries and proceeded to “apportion” the figure as to 6% to the first injury and 13% to the later injury. The Supreme Court (Garling J) at first instance held that s 323 did not apply because the section was restricted to “the limited circumstances which that provision contemplates”.[30] His Honour noted that the Panel “did not conclude that the later injury was of a kind or nature that severed the causal chain between the NSW Education injury and the plaintiff’s impairment.”[31] The finding of apportionment by the Panel was set aside.
[30] Johnson (No 1) at [68].
[31] Johnson (No 1) at [66].
The Department’s appeal to the Court of Appeal was dismissed.
In the course of their reasons the Court of Appeal held that the principles in Oakley[32] applied to causation in workers compensation cases. Emmett AJA provided the leading judgment and described the Oakley principles as follows:[33]
“There are three possible categories where an earlier injury is followed by a later injury, as follows:
· Where the later injury results from a subsequent accident that would not have occurred had the victim not been in the physical condition caused by the earlier accident, the second injury should be treated as having a causal connection with the earlier accident.
· Where an earlier injury is exacerbated by a subsequent injury, there will be a causal connection between the original injury and the subsequent damage unless it can be shown that some part of the subsequent damage would have been occasioned even if the original injury had not occurred.
· Where a victim, who had previously suffered an injury, suffers a subsequent injury and the subsequent injury would have occurred whether or not the victim had suffered the original injury and the damage sustained by reason of the subsequent injury includes no element of aggravation of the earlier injury, there will be no causal connection between the original injury and the damage subsequently sustained.”
[32] (1990) 10 MVR 570 at 573.
[33] Johnson (No 2) at [70].
The issue of aggregation again came before the Court of Appeal in Ozcan v Macarthur Disability Services Ltd.[34]
[34] [2021] NSWCA 56.
The worker sustained compensable injuries in three separate work incidents[35] on 14 November 2011, 3 May 2012 and 26 September 2012. The Approved Medical Specialist assessed the impairments as follows:
(a)right shoulder – 3% from injury on 14 November 2011;
(b)thoracic spine – 5% from injuries on 14 November 2011, 3 May 2012 and 26 September 2012;
(c)lumbar spine – 7% from injuries on 14 November 2011, 3 May 2012 and 26 September 2012, and
(d)cervical spine – 0%.
[35] The three incidents occurred in the employ of one employer.
The Approved Medical Specialist then apportioned the impairments in the spine as being one-third from each incident (that is, 4% to each incident). Following the issuing of the Medical Assessment Certificate, the matter returned to an Arbitrator who found 7% permanent impairment for the first incident and 4% each for the second and third incidents.
On appeal, the Deputy President, who, having found error, proceeded to redetermine the issue.[36] The Deputy President found that the lumbar and thoracic spine were injured in the initial incident and the subsequent incidents caused further impairment. This satisfied the second step in Oakley and could be aggregated together. Otherwise, the Commission held that the right shoulder injury did not materially contribute to the subsequent thoracic and lumbar spine injury. A finding was made that the impairments of the thoracic and lumbar spine resulted from the first incident and assessed 12% permanent impairment.
[36] Ozcan v Macarthur Disability Services Ltd [2020] NSWWCCPD 21.
The worker’s appeal to the Court of Appeal was upheld. Relevantly, Macfarlan JA stated:[37]
“This was not however, with respect, the issue that needed to be addressed. The relevant question was whether the later spinal injuries resulted from those suffered on the first date. If they did, s 322(3) of the 1998 Act required them to be assessed with the impairment arising out of the right shoulder injury because the injuries all arose out of the same incident, that is, that of 14 November 2011.”
[37] Ozcan at [16], McCallum JA and Simpson AJA agreeing.
The Court reaffirmed that s 65(2) of the WC Act adopted common law principles of causation as set out in Oakley.[38]
[38] Ozcan at [14].
There are suggestions in the judgment that the decision of Department of Juvenile Justice v Edmed,[39] which has been applied on numerous occasions in the Workers Compensation Commission, does not address the argument, “presumably because none was put to him”,[40] and that case may have been decided differently if it had been argued (and established) that the first injury materially contributed to the second. The Court concluded that s 322(2) of the WIM Act, as interpreted in Edmed, does not limit the operation of s 65(2) of the WC Act and
s 322(3) of the WIM Act.[39] [2008] NSWWCCPD 6 (Edmed).
[40] Ozcan (No 2) at [22].
The respondent’s oral and written submissions addressed the differences in the pathology caused by the separate injuries.
The respondent properly conceded that Dr Anderson’s assessment of the right upper extremity was based on the Nguyen principle.
In Nguyen v Motor Accidents Authority of New South Wales[41] the Court held that the impairment of the right shoulder due to pain from the injured cervical spine satisfied the common law test of causation and the statutory formulation of “as a result of injury”.
[41] [2011] NSWSC 351.
The respondent’s concession was properly made. Dr Anderson’s conclusion, read with that part of the report referring to the assessments of Dr Oates, established that he has assessed loss of range of movement of the right arm due to symptoms from the cervical spine.
I accept the respondent’s submissions that the surgery performed in August 1997 was to a herniated disc at C6/7. That conclusion is clear from both Dr Anderson’s conclusion and
Dr McDowell’s observations at surgery.I accept the respondent’s submission that the 1994 to 1997 injury was a herniation of the C6/7 disc.
I do not accept that part of the respondent’s submission that the herniated disc arose from a frank injury in 1997. Dr McDowell observed during surgery that the C6/7 disc herniation was “hard and fibrotic” and the doctor explored the history with Mr Griffiths in more detail and subsequently recorded that symptoms had been present since the late 1980’s. Otherwise
Dr Anderson attributed the condition to the three years of employment and otherwise made a deduction for a pre-existing condition.Accordingly, the C6/7 disc injury was causatively related to employment over a three-year period and also due to pre-existing changes.[42]
[42] Dr Anderson made s 3/10th deduction pursuant to s 323 for the cervical spine impairment. Dr McDowell noted a history of radicular symptoms from the late 1980’s.
The issue is whether the right arm impairment from the 2000 injury can be aggregated with the impairment for the 1994 to 1997 injury. This is because, to satisfy the second Oakley category there must be “a causal connection between the original injury and the subsequent damage”.
In this respect the respondent’s submissions focused on a difference in the cervical spine pathology caused by the two injuries. It submitted that the right arm condition was due to the cervical spine and as there were two pathologies acting within the cervical spine, the C6/7 herniation and generalised degeneration, these were separated causes for the right arm impairment.
It also appeared to initially submit, relying on Dr McDowell’s history, that the 2000 injury was to the back. However, that submission only addressed part of the history recorded by
Dr McDowell and did not otherwise consider the balance of the history where the doctor recorded that the cervical spine was “hyperextended”[43] in the incident. That submission is rejected.[43] Application, page 97.
The respondent’s approach is otherwise misconceived as it focused on a dispute about an aggregation of the cervical spine impairment which was not argued by the claimant. The submission was in part directed to the concept of the “same pathology” which arises from the decision of Edmed. As is clear from the decision of the Court of Appeal in Ozcan, the aggregation issue extends further than the notion of one pathology discussed in Edmed.
To the extent that the medical evidence referred by counsel addressed the argument raised by Mr Griffiths, Dr McDowell opined that the 2000 injury probably “disturbed the surgical region and has a degree of root oedema/irritation”.[44]
[44] Application, page 98.
That opinion relates the exacerbation of right arm symptoms following the 2000 injury to the surgical procedure which is obviously caused by the 1994 to 1997 injury. To the extent that
Dr McDowell addressed the causes of the right arm symptoms following the 2000 injury, he related the ongoing symptoms, and the resulting right arm impairment, to the cervical spine surgery.Dr Anderson supported the applicant’s argument because he concluded that “1/3 of the WPI for the dysfunction of the right arm would be attributable to the injury of 1997”.
These opinions are consistent with the respondent’s acceptance that the impairment of the right arm was based on the Nguyen principle and Dr Oates’ conclusion that the right arm condition “flows from the neck injury”.
The opinion of Dr Page does not particularly assist as it was based on the concept of “one pathology”, an issue not contended by the applicant. The other medical opinion relied upon by the respondent, that expressed by Dr McDowell in his 2000 report, supported the applicant’s contention that the right upper extremity impairment assessed for the 2000 injury results from the 1994 to 1997 injury.
I otherwise do not accept the respondent’s submission that the right upper extremity symptoms completely resolved following the surgery. Dr McDowell did not state that, and the submission is inconsistent with the factual finding made by Dr Anderson that one-third was due to the 1994 to 1997 injury.[45]
[45] Application, page 58.
Based on the above medical evidence of the two Approved Medical Specialists and the opinion expressed by Dr McDowell, I accept the claimant’s submission that the right arm impairment results from the 1994 to 1997 injury within the second category of Oakley. This is because Mr Griffiths had a right upper extremity impairment following the 1994 to 1997 injury which was aggravated by the 2000 injury.
SECOND ISSUE
The Amended Direction was issued following the telephone conference and included a further issue agreed by the parties. The further issue was described as:
“Whether there can be aggregation for the purposes of s 151H even if the issue set out in paragraphs 3 and 4 is determined in the applicant’s favour.”
Counsel for the applicant stated that he did not understand the issue. I share his view.
However, the issue does not arise for determination as the respondent conceded during the arbitration hearing that the claimant was entitled to the order as sought if he was successful on the aggregation issue.
ORDERS
I observe that no Certificate of Determination was issued following the provision of the Medical Assessment Certificate dated 19 October 2020. This meant that it was unnecessary to determine whether any prior Certificate of Determination should be reconsidered.
No submission was made that different proceedings were commenced to obtain relief that should have been sought in the prior proceedings (matter no 513/20). This decision should not be seen as an endorsement that there is an entitlement to bring subsequent proceedings or otherwise revise prior proceedings to seek orders aggregating prior medical assessments given the recent observations by the Court of Appeal in Ozcan. Such a course is arguably contrary to s 66(1A) of the WC Act[46] and inconsistent with the principles of merger in judgment.[47]
[46] I am not suggesting that the present case involves a potential breach of s 66(1A) of the WC Act because this was not a claim for s 66 compensation.
[47] The principles of merger are discussed in Yildiz v Victoria Yeeros Pty Ltd [2016] NSWWCC 108 at [38] – [46].
The applicant is successful on the aggregation issue. Noting the respondent’s concession, Mr Griffiths is entitled to an order that the assessments of 12% and 5% be aggregated as they result from the 1994 to 1997 injury. The order as sought by Mr Griffiths is set out in the Certificate of Determination.
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