Humphreys v Plaspak Closures Pty Ltd
[2006] NSWWCCPD 98
•24 May 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Humphreys v Plaspak Closures Pty Ltd [2006] NSWWCCPD 98
APPELLANT: Adrian Troy Humphreys
RESPONDENT: Plaspak Closures Pty Ltd
INSURERS:CGU Workers Compensation (NSW) Limited
GIO Workers Compensation
FILE NUMBER: WCC15641-04
DATE OF ARBITRATOR’S DECISION: 3 March 2005
DATE OF APPEAL DECISION: 24 May 2006
SUBJECT MATTER OF DECISION: Leave to Appeal; Estoppel; Effect of estoppel on assessment of permanent impairment by an Approved Medical Specialist; ‘injury’ section 4 of the Workers Compensation Act 1987.
PRESIDENTIAL MEMBER: Dr Gabriel Fleming, Deputy President
HEARING:On the papers
REPRESENTATION: Appellant: P K Simpson & Co, Solicitors
Respondents: Turks Legal for GIO
Bartier Perry Solicitors for
CGU
ORDERS MADE ON APPEAL: The time for making an appeal in this matter is extended to 8 April 2005.
Leave to Appeal is granted.
The decision of the Arbitrator, dated 3 March 2005 was made up of five orders. Orders 1, 2, 3 and 4 are revoked and the following decision is made in their place:
1. Award in favour of the Respondent in respect of Mr Humphreys’ claim for lump sum compensation for permanent impairment under section 66 of the Workers Compensation Act 1987 for injury to his back, neck, sexual organs and left arm.
2. Mr Humphreys’ injury to his right knee and right shoulder arising out of the nature and conditions of his work with Plaspak from 12 April 2002 to 11 December 2002 should be referred to an Approved Medical Specialist for an assessment of the degree of permanent impairment arising from that injury.
The Respondent is to pay the costs of the appeal
BACKGROUND TO THE APPEAL
Adrian Humphreys worked for Plaspak Closures Pty Ltd (‘Plaspak’) as a Machine Operator. He claims to have suffered, at different times between December 1997 and December 2002, injuries arising out of his employment. Mr Humphreys has claimed workers compensation benefits by way of weekly payments, a lump sum for permanent impairment and reasonable medical expenses.
Plaspak held workers compensation insurance with CGU Workers Compensation (NSW) Limited (‘CGU’) (the period 30 June 1992 to 30 June 2000) and GIO Workers Compensation (‘GIO’)(the period 1 July 2000 and continuing). Both Insurers have disputed Mr Humphreys’ claim. CGU and GIO acted for and on behalf of the employer in the Commission proceedings in relation to their respective periods of being ‘on risk’.
Mr Humphreys brought the dispute to the Workers Compensation Commission and on 3 March 2005 an Arbitrator issued the following determination:
“The determination of the Commission in this matter is as follows:
1.That the relevant compensable injuries for the Application are the two frank injuries of 11.12.1997 (right knee) and 25.8.1999 (right shoulder).
2.That the Applicant in the Application is estopped from claiming compensation benefits per s66 and 67, for injuries to his right knee, right shoulder, back, neck and sexual organs.
3.The injury to the Applicant’s head is not a valid injury for the purpose of the Application.
4. No order as to costs (costs on a complex basis).
5.In relation to the outstanding claims under s60, workplace injury threshold and weekly benefits, the parties are to have a telephone conference at an early date. Registrar to advise of time and date within the next 21 days.”
Attached to the Certificate of Determination was a brief statement of reasons, as required by Rule 73 of the Workers Compensation Commission Rules 2003.
The effect of the Arbitrator’s determination is that no compensation is payable to Mr Humphreys.
On 22 April 2005 Mr Humphreys lodged an ‘Application to Appeal Against Decision of Arbitrator’. The Respondent to the Appeal is Plaspak. On appeal Mr Humphreys seeks to have the Arbitrator’s decision revoked and a new decision made in its place. Alternatively, he asks that the dispute be referred to another Arbitrator for determination afresh.
CGU lodged a Notice of Opposition to the Appeal on 9 May 2005. GIO lodged a Notice of Opposition to the Appeal on 24 May 2005. Both CGU and GIO submit that the Arbitrator’s decision should be confirmed.
ISSUES IN DISPUTE
The issues in dispute in the appeal are:
·Should leave to appeal be granted?
·Did the Arbitrator err in failing to consider whether Mr Humphreys’ right leg had deteriorated by 12% further permanent loss and his right arm had deteriorated by 8% further permanent loss since he received a previous award (‘The Right Leg and Right Arm Error’)?
·Did the Arbitrator err in finding, against the weight of the evidence, that Mr Humphreys did not suffer an injury due to the nature and conditions of his employment with Plaspak from 12 April 2002 to 11 December 2002 (‘The ‘Nature and Conditions’ Error’)?
·Did the Arbitrator err in finding that Mr Humphreys was estopped from claiming lump sum compensation for permanent impairment to his right knee, right arm, back, neck and sexual organs as a result of the Consent Award entered into in the Compensation Court of NSW on 12 April 2002 (‘The Estoppel Error’)?
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Mr Humphreys and GIO both submit that the appeal may be decided on the papers. CGU submit that the matter should be determined by way of an oral hearing.
I have before me all of the documents that were before the Arbitrator, the reasons for decision and written submissions by the parties on appeal. The parties do not seek to rely on fresh evidence in the appeal. I do not have a copy of the transcript of the arbitration before me, however I am satisfied that, although this is a ‘serious shortcoming’, in the circumstances of this particular appeal nothing turns on this (Aluminum Louvres & Ceilings Pty Limited v Xue Qin Zheng [2006] NSWCA 34).
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by Mr Humphreys and GIO that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
LEAVE
As indicated above, one of the issue on appeal is whether the application meets the requirements of section 352 of the 1998 Act, which provides:
“352 Appeal against decision of Commission constituted by Arbitrator
(1)A party to a dispute in connection with a claim for compensation may, with leave of the Commission constituted by a Presidential member, appeal to the Commission as so constituted against a decision in respect of the dispute by the Commission constituted by an Arbitrator.
(2)The Commission is not to grant leave to appeal unless the amount of compensation at issue on the appeal is both:
(a)at least $5,000 (or such other amount as may be prescribed by the regulations), and
(b)at least 20% of the amount awarded in the decision appealed against.
(3)If the Commission refuses to grant leave to appeal, the Commission must state reasons for the refusal in writing to the parties.
(4)An appeal can only be made within 28 days after the making of the decision appealed against.
(5)An appeal under this section is to be by way of review of the decision appealed against.
(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.
(7)On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.
(8)In this section, decision includes an award, interim award, order, determination, ruling and direction.”
The appeal was out of time as it was not lodged within 28 days of the Arbitrator’s decision (Section 352(4) of the 1998 Act and Rule 77(1)).
It is clear from the Commission file that the first appeal lodged on 30 March 2005 was defective because insufficient copies were filed and no submissions on threshold issues were made. The appeal therefore did not address the matters required by Practice Direction 6 and it was rejected. Mr Humphreys’ solicitor purportedly re-filed the appeal, with additional material, on 8 April 2005, some seven days out of time. The Commission misfiled this application (it appears on the ‘rejected and closed’ file) and the solicitor for Mr Humphreys re-filed a copy when, on 22 April 2005, the appeal was re-filed a third time.
Mr Humphreys’ solicitor has made submissions on why leave to appeal should be extended. The first submission is:
“[I]t is arguable given the appeal was filed initially on time that the appeal is in fact not out of time although there is nothing in the legislation which sheds any light on this particular circumstance.”
This is a curious submission as the requirements of Rule 77 in relation to the filing of an appeal are clear, and should be well known to a solicitor appearing frequently in the Commission. An appeal is not competently filed unless it has attached the documentation required by Rule 77(3). Rule 16(5) provides that the Registrar may refuse to accept any document that is not in the required form. Practice Direction 6 reinforces this point clearly and repeats the documentation that should accompany an appeal. The conclusion in this matter is inescapable. The appeal was re-filed on 8 April 2005 and it was therefore out of time.
Mr Humphreys’ solicitor also submits “the appeal is only 3 days out of time and given the Respondent has responded to the appeal no prejudice is suffered by the Respondent”. The appeal, filed on 8 April 2005, is seven days out of time, not three.
GIO and CGU make no submissions on this issue.
A Presidential Member may, by order, extend the time for making of an appeal if “in exceptional circumstances” to lose the right of appeal “would work demonstrable and substantial injustice” (Rule 77(8)).
In exercising this discretion I have taken into account the gravity of the worker’s claim, the strength of the arguments on appeal and the fact that the effect of the Arbitrator’s decision is to deny him any compensation. I have also taken into account the short length of the delay in filing the appeal. I am satisfied that GIO and CGU suffer no disadvantage in the delay in filing the appeal on time. In the circumstances of this matter I am of the view that to lose the right of appeal would cause Mr Humphreys a substantial injustice.
I order that the time for making an appeal in this matter is extended to 8 April 2005.
Leave to appeal is granted.
THE CLAIM
Background to the Claim
Mr Humphreys worked for Plaspak from May 1993 until he was made redundant on 11 December 2002. He has not worked in any employment since. He claims to have suffered a number of injuries at work. The first, on 11 December 1997, “as a result of tripping and falling whilst stepping over a shrink wrapping machine” (Application to Resolve a Dispute, p4). The second injury at work, on 25 August 1999, “as a result of lifting, carrying and throwing rolls of cell-o-seal” (Application to Resolve a Dispute, p4). He had surgery to his right knee in September 2001 and surgery to his right shoulder in October 2001. Mr Humphreys also claims to have suffered injury over the period 11 December 1997 to 11 December 2002 due to the ‘nature and conditions’ of his employment.
Mr Humphreys received compensation in relation to some of his claimed injuries in Compensation Court of NSW proceedings finalised by way of a consent award of that Court on 12 April 2002. The nature and terms of this award are an important consideration in relation to the determination of his entitlement to compensation in the proceedings before the Commission.
The 2002 Compensation Court Proceedings
A copy of the ‘Third Amended Application for Determination’ and the ‘Consent Award’ in the Compensation Court proceedings were attached to the original ‘Application to Resolve a Dispute’. In the Compensation Court proceedings Mr Humphreys claimed lump sum compensation for:
1. 25% permanent impairment of his back.
2. 22% permanent impairment of his neck.
3. 30% permanent loss of the efficient use of sexual organs.
4. 18% permanent loss of efficient use of right leg at or above the knee.
5.20% permanent loss of the efficient use of the right arm at or above the elbow.
6.60% of the maximum allowed for pain and suffering pursuant to section 67 of the 1987 Act ($30,000.00).
7.Section 60 expenses.
The ‘Particulars’ of the injury set out in the application before the Compensation Court are as follows:
1.Injury on 11 December 1997 - “Whilst the applicant was walking over a ‘shrink wrapping machine’ he tripped and fell to the ground, injuring his right knee”.
2.Injury on 25 August 1999 at 2.05pm – “Whilst the applicant was putting away material above shoulder height he injured his right arm”.
3.From 11 December to date (4 April 2002) and continuing “periods of total and partial incapacity” injury to right arm and leg.
The Consent Award of the Compensation Court, issued on 12 April 2002, in proceedings between Mr Humphreys (Applicant) and Plaspak (Respondent), was:
1.That the Respondent pay the applicant as lump sum compensation under section 66:
(i)$8,000 in respect of 10% permanent loss of use of the applicant’s right arm at or above the elbow.
(ii)$3750 in respect of 5% permanent loss of use of the applicant’s right leg at or above the knee.
2.That in respect of the above losses the respondent pay the Applicant, as lump sum compensation under section 67, $ 8250 in respect of pain and suffering; such sum to be apportion as to $2000 in respect of past pain and suffering and as to $6250 in respect of future pain and suffering.
3. That the Applicant’s claim for interest be dismissed.
4.That the respondent pay the applicant’s costs (including qualifying fees, fee for counsel for advice on evidence forthwith after they have been agreed of taxed, including 2nd conference fee for Counsel at $150.
5. Award in favour of the Respondent in respect of:
(a)The Applicant’s claim pursuant to s 66 for permanent impairment of the back.
(b)The Applicant’s claim pursuant to s 66 for permanent impairment of the neck.
(c)The Applicant’s claim pursuant to s66 for permanent loss of sexual organs.
6. Other orders and notations:
(a)Note that no interest ins payable on the above lump sum if payment is made within 28 days of the Award, date of DSS clearance or receipt of certificate from HIC, whichever is the latter.
3.Amend paragraph 1 of the Application to add nature and conditions of the Applicant’s employment with the Respondent together with injuries on or about 13.5.97, 22.8.00, 25.8.99 and 10.12.93.
4.Amend paragraph 2 of the Application for Determination to include ‘Injury to neck, whole of spine, back, loss of sexual function’.
5.The Applicant acknowledges that the Section 66 loss represents the full extent of his loss to date.
The Further Claim Made in 2004
On 17 May 2004 Mr Humphreys’ solicitor made the following claim on Plaspak and advised GIO and CGU:
1. Weekly Benefits at the rate of $800.00 p.w. from 11 December 2002 to date and continuing.
2. Lump Sum compensation pursuant to section 66 of the Workers Compensation Act 1987 (‘the 1987 Act’) as follows:
a. 16% permanent impairment of the back.
b. 12% permanent impairment of the neck.c.12% permanent loss of the efficient use of the right leg at or above the knee.
d.1% permanent loss of the efficient use of the left arm at or above the elbow.
e.8% permanent loss of the efficient use of the right arm at or above the elbow.
f. 29% permanent loss of the efficient use of the sexual organs.
3. Pain and suffering compensation pursuant to section 67 of the 1987 Act at 60% of the maximum allowable ($30,000.00).
And/or in the alternative
4. 14% whole person impairment in relation to back and right shoulder and pain and suffering compensation (as in 3 above).
5. Medical and related expenses incurred in relation to the above injuries.
The claim identified the date of injury as “Industrial Accident: 11 December 1997, 25 August 1999 and 11 December 1997 to 11 December 2002”. Eleven December 2002 was, as noted above, Mr Humphreys’ last day of employment with Plaspak.
Both CGU and GIO denied liability for the claim on the ground that Mr Humphreys had failed to make the claim within the time required by the workers compensation legislation (section 261 of the 1998 Act). The claim was also denied, in part, on the ground that Mr Humphreys was estopped from bringing the claim (in whole or in part) because of the ‘Consent Award’ entered into on 12 April 2002 in the Compensation Court of NSW.
The Dispute Before the Arbitrator
Before the Arbitrator, Mr Humphreys’ claim was presented as one for further loss of use of the right arm and right leg and for additional body parts namely the back, neck, left arm and sexual organs, weekly payments and medical expenses. It was submitted that the body parts already compensated in the Compensation Court claim (right arm, right leg) had deteriorated due to the nature and conditions of employment and the additional body parts had arisen from the nature and conditions of employment.
The Arbitrator noted that the 11 December 1997 injury (right knee) and the 25 August 1999 injury (right shoulder) were not in issue. In issue were the injuries to his neck and back alleged to have been caused by the nature and conditions of his employment from 11 December 1997 to 11 December 2002. The other injuries claimed were secondary to the alleged primary injuries to the back and neck. The secondary injuries were also in issue. In the event that the Arbitrator determined that there were injuries to the neck and back, it was agreed that the assessment of the degree of permanent impairment/loss of use would be referred to an Approved Medical Specialist.
The Arbitrator found that an alleged injury to the head (which was a secondary injury) was not validly made as it was not part of the original claim.
Given the Consent Award in the Compensation Court, the Arbitrator found he was confined to the eight-month period from 12 April 2002 until 11 December 2002 with respect to the ‘nature and conditions’ claim. He concluded that Mr Humphreys did not suffer an injury to his neck and back by reason of the nature and conditions of his employment; as a consequence, the secondary injuries were not valid compensable injuries.
CONSIDERATION OF THE ISSUES
Given the nature of the issues in dispute I propose to deal with the issue of ‘estoppel’ before considering the questions that concern the weight of evidence and the failure to consider the ‘nature and conditions’ claim. The finding in relation to the estoppel will set the parameters of the remainder of the claim.
The Estoppel Error
The Arbitrator found that:
“The Consent award due to its specific terms (referred earlier) operates, in my opinion, to preclude a claim in the Application for workers compensation benefits for injuries to his head, back, neck, sexual organs, right arm, right leg for the period prior to 12.4.2002 under sections 66 and 67”(at paragraph 37 of the reasons).
And further:
“The Consent Award entered into on 12.4.2002 between the Applicant and Respondent in settlement of the Compensation Court proceedings (No. 47315 of 2000) was in respect to the above two frank injuries of 11.12.1997 and 25.8.1999 for which the Respondent agreed to pay lump sum compensation under s66. That a Consent Award in favour of the Respondent was entered into in respect to claims under s66 for injuries to the Applicant’s back, neck and sexual organs. That the Applicant acknowledged that the s66 loss represented the full extent of his loss to date (12.4.2002)” (at paragraph 48 of the reasons).
And he decided:
“2. That the Applicant in the Application is estopped from claiming compensation benefits per Sections 66 and 67 for injuries to his right knee, right shoulder, back, neck and sexual organs” (at paragraph 61 of the reasons).
Mr Humphreys argues that the Arbitrator erred in finding that he was estopped from claiming lump sum compensation for permanent impairment to his right knee, right shoulder, back, neck and sexual organs as a result of the Consent Award entered into in the Compensation Court of NSW on 12 April 2002. He submits that the Arbitrator:
“has failed to understand that a consent award is binding on the Applicant up until the time the award was made and does not preclude the Applicant claiming for a subsequent deterioration of those injuries. The Applicant’s initial submissions referred the Arbitrator to Rail Services Australia v Dimovski & Anor (2004) NSW Court of Appeal case yet this case does not feature in the Arbitrator’s decision at all.”
In response GIO submit that there is no basis for this ground of appeal.
CGU submit that Mr Humphreys:
“… is estopped from claiming any entitlement to compensation in respect of any injuries to the back, neck or sexual organs by virtue of the previous settlement and the applicant [Mr Humphreys] is prevented from claiming any increase in respect of loss of use of the right arm or the loss of use of the right leg unless the applicant is able to provide substantial evidence suggesting there was increase in his disabilities. However the arbitrator has found the applicant has no increase in his disabilities due to the right arm or the right leg.
Further, CGU submits that if it is found that there was any increase in the disabilities to the right leg and the right arm and/or any injuries to the back, neck, sexual organs and the left leg, CGU submits that it is probably due to the nature and conditions of employment until 11 December 2002.”This ground of appeal essentially asserts the Arbitrator did not understand that a claim could be brought for a subsequent deterioration of injuries the subject of the consent orders. However the Arbitrator went on to consider if there was a further injury to Mr Humphrey’s right arm or right leg.
The application of the principles of estoppel in Commission proceedings was carefully considered by Acting Deputy President Lansdowne in Quarmby v Motor Traders Association of NSW Group Apprenticeship Scheme [2005] NSW WCC PD 43, where she said:
“24. The authorities establish that there are three types of instances in which a party may be estopped from raising an issue, claim or defence in subsequent proceedings because, in broad terms, of the principle of res judicata. These are as follows:
(1) Cause of action estoppel (res judicata in the narrow sense)
(2) Issue estoppel
(3) Anshun estoppel25. The difference between res judicata and issue estoppel was expressed as follows by Dixon J. in Blair v Curran (1939) 62 CLR 464 (as quoted by Priestley J.A. in Lambidis v Commissioner of Police (1995) 12 NSWCCR 225 at 240):
“The distinction between res judicata and issue-estoppel is that in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order.”
26. The Anshun estoppel is different from both cause of action and issue estoppel. It relates not to what was determined by the previous proceedings, but what could have been. The principle was discussed by the High Court in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589. It arises where a party seeks in subsequent proceedings to raise a defence (and possibly a claim) that could have been raised in earlier proceedings between the same parties, but was not. In certain circumstances, the party may be estopped from raising that defence or claim in later proceedings.”
Mr Humphreys refers to the decision of Rail Services Australia v Dimovski & Anor [2004] NSWCA 267 to support his argument that the Compensation Court award does not preclude a claim for ‘subsequent deterioration’ as a result of his earlier injuries. In that case Mr Dimovski had settled his compensation claim by way of a consent award in the Compensation Court, on the basis of a 25% loss of the use of his left leg at or above the knee and a lump sum for pain and suffering. Following a further injury to his right knee he made an application for compensation that was denied by the employer. On application to the Compensation Court, Ashford CCJ made an award of 10% loss of the use of the right leg at or above the knee and a further award for pain and suffering. The employer appealed on the issue of apportionment of liability (section 16 and section 22 of the 1987 Act). In the course of the reasoning Ashford CCJ found that there was no increase in the impairment to the left leg, i.e. it remained at 25%, although there was a finding of further injuries. It was argued on appeal that she had “failed to give effect to the estoppel created by the consent award”. On this issue Handley JA said:
“The argument based on issue estoppel involved two propositions. The first was that the consent award conclusively determined that as at 16 October 1996 the worker had a permanent impairment of his left leg at or above the knee of 25% which was the result of an injury or injuries sustained in the employment of the second respondent. This is correct. The second was that he suffered two further injuries to his left leg in the employment of the appellant, one from the nature and conditions of his work, and the other the frank injury on 25 May 1998. This is also correct.
If these further injuries caused other than temporary aggravations of the worker’s condition they must have increased the impairment in his left leg. The Judge did not find that they only caused temporary aggravations, but nevertheless found no increased impairment. Accordingly it was submitted that she had disregarded the estoppel . . .
These submissions must be rejected because they are contrary to the principles established in O’Donel v Commissioner for Road Transport (1938) 59 CLR 744…
[The Judge’s] task was to assess the extent of the worker’s current impairment following the later injuries without legal constraints flowing from the earlier award. Having made her assessment she was not obliged to find an explanation for the discrepancy. There were a number of possible explanations and her tentative speculation about one [i.e. that the consent award was ‘possibly not reflective of an accurate assessment’] was simply irrelevant.”
It is clear law that, in certain circumstances, an award of the Compensation Court will create an issue estoppel in subsequent proceedings, i.e. where the same question has been decided; the decision was final and the parties are the same (Kuligowski v Metrobus [2004] 220 CLR 363). There is no question in this matter that the proceedings in the Compensation Court were determined by an Award of the Court, not simply by an agreement by the parties in dispute (cf. Coles v Baytech Industrial Pty Limited [2005] NSW WCC PD 70), that they were between the same parties and that the Court’s award was final and binding.
The Arbitrator did not err in finding that an estoppel arose as a result of the proceedings in the Compensation Court. However his reasons lacked clarity as to the extent of the estoppel and the manner in which the issues not governed by the estoppel should be decided. The effect of the estoppel is that Mr Humphreys is not entitled to claim compensation for injuries to his back, neck, and loss of sexual organs arising from the personal injury on 11 December 1997, the personal injury on 25 August 1999 and the ‘nature and conditions’ injury from 11 December 2002 to 12 April 2002. This claim has been finally determined by the Court’s order in favour of Plaspak on 12 April 2002. The claim in relation to the back, neck and sexual organs can only be made in relation to a fresh injury, occurring after 12 April 2002.
The Commission is also bound to accept that the Compensation Court Award conclusively determined that, at the date of the award, Mr Humphreys suffered a 10% permanent loss of use of his right arm at or above the elbow and a 5% permanent loss of use of his right leg at or above the knee.
Significantly, the Compensation Court award does not preclude Mr Humphreys from making a claim of further injury to the same or different body parts if the injury occurred after 12 April 2002.
In relation to the purported claim of injury to the ‘head’, this was, as noted by the Arbitrator, not particularised in the claim nor is there any possible claim in relation simply to “the head” in the Table of Disabilities. In my view this claim was not part of the dispute before the Arbitrator. I also note that the claim for ‘anxiety/depression’ was not in the original claim, nor pressed before the Arbitrator nor specified in the Appeal submissions as part of Mr Humphreys’ claim. The claim for in relation to anxiety/depression is therefore also not part of this dispute. The Arbitrator variously refers to a claim in relation to the ‘left leg’. This does not form part of Mr Humphreys’ claim made on the employer in 2004 nor does it appear when the claim is restated on appeal. I am left to assume that this claim, if it is made, is not part of these proceedings.
What remains of Mr Humphreys’ claim is compensation for:
1.injury, by way of aggravation of the earlier injury to his right leg and right arm, caused by the nature and conditions of his employment from 12 April 2002 until he left Plaspak on 11 December 2002, and
2.injury to the back, neck, left arm, and sexual organs as a result of the nature and conditions of work during the same period, i.e. 12 April 2002 to 11 December 2002.
If the Arbitrator made a finding of ‘injury’ it was for him to then to refer the assessment of permanent impairment arising from that injury to an Approved Medical Specialist (‘AMS’).
Estoppel and the Assessment of Permanent Impairment by an Approved Medical Specialist
The introduction of reforms to the workers compensation legislation in 2002 that saw the assessment of the degree of permanent impairment of a worker vested in Approved Medical Specialists marked a significant shift in the way in which an entitlement to lump sum compensation must be established. Previously, Judges of the Compensation Court determined the degree of permanent impairment or loss having regard to the expert evidence before them. They would also make an assessment of the proportion of permanent impairment or loss attributable to a previous injury or pre-existing condition, by weighing the evidence before them. In the implementation of the new statutory scheme for the assessment of permanent impairment some unexpected issues have arisen.
Section 319 of the 1998 Act defines a ‘medical dispute’ as follows:
“medical dispute means a dispute between a claimant and the person on whom a claim is made about any of the following matters or a question about any of the following matters in connection with a claim:
(a)the worker’s condition (including the worker’s prognosis, the aetiology of the condition, and the treatment proposed or provided),
(b)the worker’s fitness for employment,
(c)the degree of permanent impairment of the worker as a result of an injury,
(d)whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion,
(e)the nature and extent of loss of hearing suffered by a worker,
(f)whether impairment is permanent,
(g)whether the degree of permanent impairment is fully ascertainable.”
An AMS assessment is “conclusively presumed to be correct” on matters set out in (c) to (g) above (section 326(1) of the 1998 Act).
The Registrar or the Commission must refer a ‘medical dispute’ to an AMS for assessment prior to issuing a determination of the dispute (sections 293 and 321 of the 1998 Act; as to the nature of that referral see Jopa Pty Limited t/as Tricia's Clip-n-Snip v Edenden [2004] NSW WCC PD 50 (11 August 2004)).
Section 323(1) of the 1998 Act provides that in assessing the degree of permanent impairment that arises as a result of an injury, there is to be a deduction for any proportion of the impairment that is due to a previous injury or that is due to any pre-existing condition or abnormality. It is clear from section 323(3) of the 1998 Act that it is the AMS who is required to make that deduction.
In this matter an estoppel arises from a previous award of the Compensation Court of NSW. It is the particular nature of workers compensation matters that one award or determination is not the end of a dispute between the same parties. They may return to the Commission (and in the past the Compensation Court) in relation to a dispute over further claimed losses following an award. The question for the Commission in subsequent proceedings is, what is the effect of the estoppel on the subsequent assessment of lump sum compensation for permanent impairment? This is not an issue that is confined to previous awards of the Compensation Court. It is foreseeable that the issue of whether an estoppel arises as a result of the assessment given by an AMS (issued in a Medical Assessment Certificate (section 325 of the 1998 Act) and subject to appeal to a Medical Appeal Panel (section 327 of the 1998 Act)) will in future be argued according to the same legal principles. In my view such a determination will also give rise to an estoppel on the issue of the earlier assessment of permanent impairment. Two questions must be answered:
· What is the effect of an estoppel on the determination of a ‘medical dispute’?
· How is an AMS to make an assessment of permanent impairment as a result of an injury where an estoppel arises in relation to an earlier injury?
Estoppel and a ‘Medical Dispute’
An issue not expressly dealt with in the statutory scheme is the effect of an estoppel, in relation to the proportion of the degree of permanent impairment of the worker as a result of a previous injury. As discussed above, an estoppel will arise where a Court or the Commission has previously determined injury and degree of permanent impairment, as in this case. In my view the estoppel operates to prevent a claim that this matter is within the terms of the ‘medical dispute’ in the particular case.
Not all of the matters listed in the definition of a ‘medical dispute’ in section 319 of the 1998 Act, will in fact be in dispute between the parties on any particular claim. Where an estoppel arises as to the degree of permanent impairment from a previous injury, then the parties cannot claim that issue to be in dispute. It is not for the Arbitrator or the AMS to revisit the Court’s award as to the degree of permanent impairment at that time (Cole v Baytech Industrial Pty Limited [2005] NSW WCC PD 70). The estoppel operates to conclusively determine that issue, i.e. the degree of permanent impairment arising from that injury sustained in that employment (Rail Services Australia v Dimovski & Anor [2004] NSWCA 267). It therefore will not be a matter that may be referred to an AMS for assessment (section 321 of the 1998 Act) and will not be a matter upon which the AMS is empowered to give a binding assessment (section 326 of the 1998 Act).
The parties cannot, by operation of the estoppel, claim the earlier assessment to be part of a ‘medical dispute’ and the “proportion of permanent impairment due to the previous injury” that is taken to be determined by the estoppel cannot therefore be referred to the AMS by the Registrar for assessment (section 321 of the 1998 Act). As to the effect of an estoppel in civil proceedings Justice Kirby said, in Lambidis v Commissioner of Police (1995) 37 NSWLR 320 at 324 (see also EGRI v DRG Australia (1988) 19 NSWLR 600 at 603 and 607):
“… In such cases such parties are bound to accept as correct a final decision on the essential ingredients of a question between them determined in a judicial manner by a body which, by law, has the authority to make such a decision. At stake is not simply the interest of the parties to avoid vexation. There is also the interest of the community to avoid the unnecessary, repeated burden on its formal decision-making institutions.”
Where an estoppel arises on this issue the degree of permanent impairment from the previous injury is an agreed fact that is before the AMS. It is not a matter for the AMS to assess. The fact of the previous assessment, whether evidenced by way of the award of the Court (or the Medical Assessment Certificate, or the Medical Appeal Panel decision and freshly issued Medical Assessment Certificate) should be included in the evidence that forms part of the referral to the AMS pursuant to section 321 of the 1998 Act.
The determination of whether an estoppel arises in proceedings in the Commission is a legal issue that, if in dispute, should be determined by an Arbitrator prior to referral to the AMS. Where the estoppel is established, as in this case, the question of “whether any proportion of permanent impairment is due to any previous injury”, in relation to an injury that is caught by an estoppel, cannot form part of the referral of the ‘medical dispute’ to the AMS as a matter upon which the AMS is to make an assessment. If there are other ‘previous injuries’ or ‘pre-existing conditions or abnormalities’ then these matters should be part of the referral.
The AMS Assessment
The wording of section 319(c) and (d) of the 1998 Act creates a conceptual difficulty. If an assessment is made of permanent impairment of the worker as a result of ‘an’ injury (section 319(c)) then it is not possible to deduct a proportion for ‘previous injury’ as the first assessment is already exclusive and confined to ‘an’ injury. In effect the assessment task in section 319(d) is generally subsumed in the assessment task of section 319(c). The purpose of sub-sections (c) and (d) is to facilitate an AMS firstly, making an overall assessment of the degree of permanent impairment of the worker, and secondly, to the AMS making an assessment of whether any proportion of that assessed impairment is due to any previous injury or to a pre-existing condition or abnormality. The contribution of previous injuries, conditions or abnormalities must be expressly quantified in order that the deduction required by section 323 of the 1998 Act transparently occurs. This is how, practically, an AMS approaches the assessment of permanent impairment and is consistent with a purposive approach to the interpretation of the section (Almario v Allianz Australia Workers Compensation (NSW) Insurance Limited [2005] NSWCA 19).
This also raises a number of issues as to how an AMS is to approach an assessment where an issue estoppel arises on a prior assessment of permanent impairment/loss of use. The estoppel binds the parties and the Commission to the issues previously determined. This is not to say that the AMS is bound, in his or her assessment of permanent impairment arising from a later injury, to make that assessment on the basis that there must be an increase on the earlier assessment. The permanent impairment arising from the second or subsequent injury/injuries must be separately and distinctly assessed. If the AMS, exercising his or her clinical judgement, comes to the view that the worker suffers a lesser degree of impairment at a later date, then so be it. The AMS’s task is “to assess the extent of the worker’s current impairment following the later injuries without legal constraints flowing from the earlier award” (Rail Services Australia v Dimovski & Anor [2004] NSWCA 267 at paragraph 15). If that assessment is of a lesser ‘degree of permanent impairment’ then it may appear to be inconsistent with the assessment that is the subject of the estoppel. However, there may be many reasons for this. The effects of a worker’s injury may, although assessed as ‘permanent’ at an earlier time, fluctuate with the passage of time, newly found medical treatments or the ‘vicissitudes of life’. It may also be that the AMS takes a more critical and robust approach to the assessment when compared to the evidence of the expert medical witnesses whose opinion the court relied upon. Theoretically, with the anticipated greater objectivity and consistency of assessments made under the ‘Whole Person Impairment’ method, wide variations in assessments are unlikely to occur in most cases. The effect of a finding that, although there has been a second/further injury, the degree of permanent impairment is less at the later date is that the worker has not established a further entitlement under section 66 of the 1987 Act.
Not only has the adjudication process changed since 2002, the method of assessment of permanent impairment has also changed (from the ‘Table of Disabilities’ to ‘Whole Person Impairment’). In those cases where the entirety of the assessment is either made under the Table of Disabilities or the Whole Person Impairment method, then the deduction that is to be made as a result of an estoppel is not problematic. However an award of the Court may creates an estoppel where the terms of the award are based on an assessment according to the ‘Table of Disabilities’, whereas the further injury falls to be assessed according to ‘Whole Person Impairment’. This particular class of cases creates a further issue for an AMS who is directed to accept this assessment as the relevant ‘proportion of permanent impairment due to a previous injury’. Neither the Act nor the Regulations and Guidelines made pursuant to it give any guidance on how to address this issue. It is a matter that not infrequently arises and upon which Arbitrators and AMSs should have some guidance.
Ultimately it must fall to either an AMS or an Arbitrator to decide the amount of the deduction for any proportion of permanent impairment attributable to an injury that is the subject of an earlier award, and in relation to which therefore an estoppel arises. Difficulties arise in according either the AMS or the Arbitrator this role under the statutory scheme. In my view a workable approach, which is consistent with the legislative purpose of medical decision-making on medical issues, relies upon the AMS giving meaning to the amount of the earlier award. Where an estoppel arises the notional deduction of a ‘Table of Disabilities’ assessment from a ‘Whole Person Impairment’ assessment does not permit, nor require, a ‘fresh assessment’. It requires a judgement by an AMS on the degree of permanent impairment the earlier award represents so that a deduction may be made.
Depending upon the nature of the injury that is the subject of the earlier award this deduction may be a simple or complex matter to determine. In the case of an injury to the arms or legs, for example, the method of calculating ‘Whole Person Impairment’ may facilitate a relatively straightforward comparison between the degree of permanent impairment arising from the earlier and later injuries. However the exercise may be more difficult in relation to the calculation of impairment to the spine and other parts of the body.
An Arbitrator does not have the expert knowledge to make this assessment, nor is it consistent with the statutory framework of medical assessments that an Arbitrator does so. Section 323 of the 1998 Act requires that this deduction be made “in assessing the degree of permanent impairment resulting from an injury” and it is the AMS who has this statutory task. In cases where no estoppel arises as to the amount of the deduction to be made by a previous injury the AMS makes this assessment. To request the AMS to use his or her clinical knowledge and understanding of both the ‘Table of Disabilities’ and ‘Whole Person Impairment’ methods of assessment, in order to give meaning to the amount of the previous award, does not offend the operation of the estoppel as to the matters determined by that earlier award. It simply allows those matters to be given effect to, in assessing the permanent impairment arising from the further injury.
The effect of this reasoning in this case is that, if Mr Humphreys establishes a ‘further injury’ (which must be specified as discussed below) then the ‘medical dispute’ in relation to that further ‘injury’ should be referred to an AMS for assessment. The referral should ask the AMS to assess the matter as follows:
·Assess the degree of permanent impairment arising only from the ‘further injury’ (section 319(c) of the 1998 Act).
·It is not disputed that the degree of loss or permanent impairment resulting from the previous injury that is the subject of the earlier award of the Compensation Court, is the amount specified in that award. This amount is not in dispute (section 319(d) of the 1998 Act) and therefore a fresh assessment of this amount is not required.
·Calculate the deduction to be made for the injury that is the subject of the earlier award in accordance with the proportion of loss or permanent impairment determined by that award.
·Assess the ‘degree of permanent impairment’ due to any ‘other’ previous injury, not being the subject of an award, or ‘any pre-existing condition or abnormality’.
·In making the assessment of permanent impairment resulting from the ‘further injury’ deduct the proportion that reflects the earlier Compensation Court award, the amount arising from any other previous injury and the amount arising from any pre-existing condition or abnormality (section 323(1) of the 1998 Act).
This assessment is clearly not an exact science and the AMS should give reasons for his or her assessment in order that the fairness and transparency of the assessment is demonstrated. Ultimately the difficulties that are highlighted by this case do not lend themselves to a clear resolution and attention should be given to providing greater certainty by way of legislation, guidelines or regulation.
The Right Leg and Right Arm Error
The Arbitrator found that Mr Humphreys’ compensable injuries for the purposes of the Application were the injury to the right knee (11 December 1997) and right shoulder (25 August 1999). He then went on to state:
“The evidence is insufficient to enable me to be satisfied that the Applicant suffered further frank injuries with the Respondent during the relevant period of eight months. That some of the Applicant’s symptoms relating to the earlier two frank injuries may have manifested themselves during the relevant period does not, in itself, constitute a fresh, frank injury or a deterioration (of a disease) that would otherwise be compensable under the 1987 Act. The report of Dr Stenning of 26 March 2004 assessing the Applicant’s permanent loss of right leg at or above the knee at 19% and right arm at or above the elbow at 18% (compared to the Consent Award figures of 10% and 5% respectively) does not adequately prove the occurrence of fresh frank injuries to the Applicant over the relevant period.”
Mr Humphreys argues that the Arbitrator erred in failing to consider whether the injury to his right leg had deteriorated by 12% further permanent loss and his right arm had deteriorated by 8% further permanent loss since he received a previous award. In particular, he argues that the Arbitrator:
“. . . has not considered whether or not the Applicant’s [Mr Humphreys’] right leg and right arm (the subject of a previous award) has deteriorated notwithstanding the Applicant’s letter of claim dated 17 May 2004 claimed 12% further permanent loss of the right leg and 8% further permanent loss of the right arm.
It is submitted that even if the Arbitrator found no injury to the neck and back and no referred injury to the left arm, left leg and sexual organs from nature and conditions the Applicant is still entitled to have the extent of his impairment to his right leg and right arm assessed by an AMS”.
In response to this ground of appeal, GIO submit that although the Arbitrator did not specifically address the question of whether there may have been some deterioration there was, by inference, insufficient evidence for him to be satisfied that there had been a deterioration that had resulted in further loss.
CGU submit that there was no evidence to suggest that Mr Humphreys’ right leg and right arm injuries caused by the 11 December 1997 and 25 August 1999 work incidents have deteriorated over the years.
Before the Arbitrator GIO filed a copy of the report of ‘MEND-Injury Management for the Construction Industry”, dated 24 May 2002. This report documents the establishment of a ‘Return to Work’ plan with the goal of return to full duties by the end of June 2002.
The Arbitrator erred in finding that Mr Humphreys “was estopped from claiming compensation benefits per s 66 and 67 for injuries to his right knee [and] right shoulder” (Arbitrator’s order). Mr Humphreys filed the reports of Drs Horsley, Stenning, Lowy and Kalnins, which are discussed in more detail below. While these reports are not persuasive on the alleged injuries to the back, neck, left arm and sexual organs, they document increased levels of permanent impairment to Mr Humphreys’ right arm and right leg. The latter were accepted injuries compensated pursuant to the consent award in the Compensation Court. As discussed above, this award raises issue estoppel in relation to these injuries.
The previous award, the medical evidence reporting deterioration, Mr Humphreys’ statement and the report that he returned to his pre-injury duties are sufficient to establish a further injury, being an aggravation of his previous injury to his right leg (11 December 1997) and right shoulder (25 August 1999) due to the nature and conditions of his employment with Plaspak from 12 April 2002 to 11 December 2002. This injury should be referred to an Approved Medical Specialist for assessment of permanent impairment as discussed above. Whether or not he suffered any further permanent impairment as a result of this further injury is a matter to be assessed by an AMS. GIO is on risk for the period of the further injury.
The Nature and Conditions Error
In addition to the ‘nature and conditions’ claim in relation to the right arm and right leg Mr Humphreys also claims that the ‘nature and conditions’ of his work as a machine operator resulted in deterioration of his 1997 and 1999 injuries and additional injuries to his neck, back, left arm and sexual organs. It was submitted that of these additional injuries, the injuries to the neck and back were primary injuries with the other injuries being referred or secondary injuries. Pursuant to the findings on estoppel the ‘nature and conditions’ claim is limited to the period 12 April 2002 to 11 December 2002.
In determining whether or not Mr Humphreys had suffered an injury to his back, neck, left arm and sexual organs due to the nature and conditions of his employment from April to December 2002 it was incumbent upon the Arbitrator to consider the duties that this employment involved and to review the medical evidence. The Arbitrator reviewed Mr Humphreys’ statement of 24 May 2004 and concluded that it provided “very little assistance. He merely states that he has been employed as a machine operator and ‘I have given statements to all doctors and specialists that I have attended in relation to my injuries and any sequela resulting from my injuries sustained during the course of my employment with the Respondent’. The Applicant says nothing about what his precise duties and how he carried them out (mechanical function) and their effects on his various body parts from 12.4.2002 to 11/12/2002” (sic).
The Arbitrator then reviewed the medical evidence. He examines the medical evidence of Dr Horsley, Dr Stenning, Dr Silvas, Dr Chapman, Dr Gibson, Dr Katerlaris and Dr Kalnins. The Arbitrator concludes that Mr Humphreys has been unsuccessful in his claims based on the nature and conditions of employment over the period 12 April 2002 to 11 December 2002. However at the conclusion of this review he went on to discuss the concept of ‘disease’ in section 4 of the 1987 Act. His finding was that Mr Humphreys did not suffer an injury by way of a ‘disease’ or ‘aggravation, acceleration, exacerbation or deterioration’ of a disease in relation to his alleged injuries to his back, neck or sexual organs. He confined his consideration to the relevant period of 12 April 2002 to 11 December 2002.
Mr Humphreys argues that the Arbitrator erred in finding, against the weight of the evidence, that he did not suffer an injury due to the nature and conditions of his employment with Plaspak from 12 April 2002 to 11 December 2002. He argues that the Arbitrator erred because:
(i)He failed to consider the evidence of WorkCover medical certificates signed by his General Practitioners Drs Chan and Melek, dated 7 January 2002, 18 February 2002, 7 and 21 March 2002, 13 June 2002, 13 and 18 December 2002 recording “cervical and lumbar problems and unfitness for work”.
(ii)He failed to give proper weight to the report of Dr Horsley, dated 16 July 2004, which was comprehensive and “makes clear that the injuries emanate from the role as a machine operator”.
(iii)He failed to understand the nature of Mr Humphreys’ employment, in particular the duties of a machine operator and thus could not properly conclude whether or not Mr Humphreys sustained an injury from the nature and conditions of his employment. The Arbitrator failed to go beyond Mr Humphreys’ statement to inquire as to his precise duties.
In response to this ground of appeal, GIO submit that:
·The Arbitrator is not obliged to refer to every piece of evidence admitted and it is supposition to suggest that he failed to consider the WorkCover certificates.
·The reporting of symptoms is not necessarily sufficient to support a finding of injury.
·The report of Dr Horsley, is of limited assistance as it does not contain a description of the nature and type of duties performed and does not address the nature and conditions allegation.
·Mr Humphreys had the evidential burden to produce evidence in support of his claim and had ample opportunity to do so therefore no lack of procedural fairness could be said to arise.
Similarly, CGU submit that the obligation is on Mr Humphreys to bring sufficient evidence in support of a claim and he failed to make his claim appropriately.
With respect to the challenge concerning the WorkCover certificates, I note that at paragraph 11 of the Determination the Arbitrator indicates that a copy of the Commission file was before him and the Application registered on 29 September 2004 contained copies of the WorkCover certificates up to 21 March 2002. If further WorkCover Certificates were available it was for Mr Humphreys to put them before the Arbitrator.
In my view the Arbitrator erred in his consideration Mr Humphreys’ claim to have suffered an injury to his back, neck, left arm and sexual organs during the relevant period. I agree with Mr Humphreys’ submission that the Arbitrator did not give sufficient weight to the evidence before him in relation to the nature and conditions of his employment. I do not have a copy of the transcript of arbitration before me however I accept Mr Humphreys’ submission that there was opportunity for the Arbitrator to obtain evidence of Mr Humphreys’ duties during the arbitration. While it was for Mr Humphreys to prove the claim, and to put all relevant evidence before the Arbitrator, it was at the same time not fair and reasonable for the Arbitrator to conclude the arbitration, having heard directly from the worker, and to then deny the claim on the basis that this critical evidence was not presented. Such an approach is inconsistent with the Commission’s objectives and the informal, inquisitorial nature of the proceedings. Ultimately, however, I am satisfied that, even if it is accepted the nature and conditions of Mr Humphreys’ work could have caused the injuries he claims to his back, neck, left arm and sexual organs, the medical evidence does not support a conclusion that it did so.
The Arbitrator purported to consider “what does the relevant evidence disclose in relation to an alleged nature and conditions-based injury for the eight months period 12.4.2002 to 11.12.2002?” (Paragraph 38 of the reasons). However what then follows is mostly a detailed discussion of the medical reports that relate to the proceedings before the Compensation Court up to April 2002.
Mr Humphreys relies upon the reports of Drs Horsley and Stenning and on WorkCover certificates from January to December 2002 from Doctors Chan and Melek, General Practitioners. Many of the medical reports filed by Mr Humphreys were not relevant because they related to the period prior to April to December 2002. However to the extent that Mr Humphreys relies upon them to detail the nature of his work I accept they are relevant. Dr Horsley, Occupational Physician, describes Mr Humphreys’ duties in some detail in his report of 5 October 2001 as follows:
“He works as a machine operator, the company deals with plastic closures for pharmaceutical products. It is in the food and packaging industry. His machine is a lining machine. It lines up the interior of caps. The machine that he uses also attaches the seal. The product is moulded elsewhere. He retrieves the job card and then sets up the machine for the particular cap size. The cap sizes vary between 28 mm and 48 mm. He has to fill the hopper after the setting has been put in place. The material comes in cartons which weighs between 4kg and 16kg. The 28 mm caps require up to 32 cartons per day and the 48 mm caps require 18-20 cartons per day. He starts the machine and the machine produces between 30,000 and 400,000 caps per run. 30,000 caps takes approximately half a day and 400,000 caps is over a three day period. His job role then involves sitting on a bar stool and inspecting the caps for dust and particles. He has been working in this job role for the last eight year period.”
There was no evidence filed by CGU or GIO to suggest that his duties during the relevant period were different to his pre-injury duties and the report of rehabilitation report of MEND, discussed above, suggests that Mr Humphreys had returned to his work as a machine operator following April 2002. The report refers to WorkCover Certificates repeatedly lodged attesting to the need for restricted duties for neck and low back pain.
In July 2004 Dr Horsley made a report based on his understanding that since December 2001 Mr Humphreys was “working full hours back on his original machine” as a machine operator. However, Dr Horsely’s report does not address the question of whether Mr Humphreys’ work during the relevant time caused his injury to his neck, back, right knee and right shoulder. It makes no mention of sexual function and no mention of the left arm. I agree with the Arbitrator’s view that the report is of limited assistance (paragraph 41 of the reasons). He issued separate, one line reports as to the degree of permanent impairment, which he found was 12% for the back, 14% for the neck, 5% for the left arm (note again this is not mentioned in his main report), 5% for the right leg; 18% for the right arm and 10% for loss of use of sexual organs.
Dr Lowy, Sexual Health Physician, reported on 22 July 2004 in relation to the claimed loss of the use of sexual organs. His report does not address Mr Humphreys’ period of employment from April to December 2002 and is of little probative value. No physical pathology was evident in the sexual organs. Dr Lowy described a ‘chronic pain condition’ and quantified loss of the use of sexual organs as “remains at 30%”. I assume this is a reference to his previous report in connection to the Compensation Court proceedings.
Dr Stenning, ‘Practitioner in Musculoskeletal Medicine’, reported in March 2004. His report makes no reference to Mr Humphreys’ duties at the relevant time nor does it refer to the nature and conditions of his employment. He gave assessments for permanent impairment assessed according to the ‘Table of Disabilities’ for the back, cervical spine, right leg, right arm left arm and sexual organs. He also made a ‘Whole Person Assessment’ of 14%. I find the report of Dr Stenning to lack probative value. It is not directed to the relevant time, it does not give sufficient detail of the relationship between work and Mr Humphreys’ injuries and the findings on ‘Physical Examination’ are minimal, in contrast to the degree of impairment assessed.
Dr Kalnins, Orthopaedic Surgeon, reported in November 2004. He reported that he had viewed a CT scan of Mr Humphreys’ lumbo-sacral and cervical spine which were both normal. Radiology of his right shoulder and right knee reflected the earlier injuries and treatment. I find his report of limited value. It does not detail the relationship between Mr Humphreys’ duties and his claimed injuries at the relevant time or to the effect of his previous injuries.
CGU did not file up to date medical reports, all being prior to April 2002.
GIO filed a report of Dr Silva, Consultant Orthopaedic Surgeon, dated 21 October 2004. This report addressed only the complaints of neck and back pain from 2000 to the date of the report. He reported that the X-rays, CT Scans and MRI of the lumbar and cervical spine were normal. He also reported that “clinically as seen today there is full mobility in the cervical and lumbar spines and full straight leg raising and no neurological deficit”. Dr Silva reports some loss of use of the lumbar spine and neck when assessed according to the Table of Disabilities, but does not relate this loss in any way to the relevant period or Mr Humphreys’ duties during that period. Nor does he take into account whether or not this loss is due to a previous injury.
I have considered the evidence in relation to Mr Humphreys’ claim that he suffered an injury to his back, neck, left arm and sexual organs as a result of the nature and conditions of his employment with Plaspak from 12 April 2002 to 11 December 2002. I am not satisfied that Mr Humphreys has proven, on the balance of probabilities, that he suffered such an injury. Mr Humphreys’ statement gives little more than a broad claim to injury. I accept the account of his duties reported by Dr Horsley. I do not have the transcript of his oral evidence before me, however I am of the view that his own evidence of the injury could not overcome the lack of probative and relevant medical evidence to support his claim. My views of the medical evidence are set out above. For the reasons set out above the reports of Drs Horsley, Stenning, Lowy and Kalnins are not of probative value on this issue.
Mr Humphreys’ claim to have suffered an injury to his neck, back, left arm and sexual organs arising out of his employment with Plaspak from 12 April 2002 to 11 December 2002 is not made out.
DECISION
In summary I find that:
·The Arbitrator did not err in finding that an estoppel arose as a result of the Compensation Court award of 12 April 2002.
·The Arbitrator erred in finding that Mr Humphreys “was estopped from claiming compensation benefits per s 66 and 67 for injuries to his right knee [and] right shoulder”. Mr Humphreys suffered an injury to his right knee and right shoulder arising out of the nature and conditions of his work with Plaskpak from 12 April 2002 to 11 December 2002. This matter should be referred to an Approved Medical Specialist for an assessment of the degree of permanent impairment as a result of this injury.
·The Arbitrator did not err in finding that the claim for lump sum compensation for an injury to the head was not properly made
·The claim for lump sum compensation for an injury, being anxiety and depression is not properly made.
The decision of the Arbitrator, dated 3 March 2005 was made up of five orders. Orders 1, 2, 3 and 4 are revoked and the following decision is made in their place:
1.Award in favour of the Respondent in respect of Mr Humphreys’ claim for lump sum compensation for permanent impairment under section 66 of the Workers Compensation Act 1987 for injury to his back, neck, sexual organs and left arm.
2.Mr Humphreys’ injury to his right knee and right shoulder arising out of the nature and conditions of his work with Plaspak from 12 April 2002 to 11 December 2002 should be referred to an Approved Medical Specialist for an assessment of the degree of permanent impairment arising from that injury.
COSTS
The award of costs of an appeal is governed by section 245 of the 1998 Act. Mr Humphreys has been partly successful on the appeal. The appropriate order is that the Respondent pay the costs of the appeal.
Dr Gabriel Fleming
Deputy President
24 May 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DR GABRIEL FLEMING, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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