Ilic v Aldus Engineering Pty Ltd
[2006] NSWWCCPD 157
•19 July 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Ilic v Aldus Engineering Pty Ltd [2006] NSWWCCPD 157
APPELLANT: Bosco Ilic
RESPONDENT: Aldus Engineering Pty Ltd
INSURER:CGU Workers Compensation (NSW) Ltd
FILE NUMBER: WCC15405-04
DATE OF ARBITRATOR’S DECISION: 8 September 2005
DATE OF APPEAL DECISION: 19 July 2006
SUBJECT MATTER OF DECISION: Section 67 Workers Compensation Act 1987; approach to take with multiple injuries
PRESIDENTIAL MEMBER: Acting Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION: Appellant: Carters Law Firm
Respondent: CGU Workers Compensation (NSW) Ltd
ORDERS MADE ON APPEAL: Paragraphs 1 and 2 of the Arbitrator’s decision of 8 September 2005 are revoked and the following orders made:
“1. Pursuant to section 66 of the Workers Compensation Act 1987 the Respondent is to pay the Applicant the following sums:
(i) in respect of injuries sustained on 31 December 2001:
a. $16,000.00 in respect of a 20 per cent permanent loss of use of the right arm at or above the elbow, and
b. $15,000.00 in respect of a 20 per cent loss of use of the left arm at or above the elbow.
(ii)in respect of injury sustained on 13 February 1989, $12,950.40 in respect of a 38 per cent loss of sight in the Applicant’s left eye, and
(iii)in respect of injury to the Applicant’s right eye on 30 July 2002, $23,000.00 in respect of a 17 per cent whole person impairment.
2. In respect of pain and suffering resulting from the Applicant’s arm injuries and consequential section 66 losses, the Respondent is to pay the Applicant $15,500.00 pursuant to section 67 of the Workers Compensation Act 1987.”
Paragraph 3 of the Arbitrator’s decision of 8 September 2005 is confirmed.
The matter is remitted to a different Arbitrator for the Appellant Worker’s entitlements under section 67 of the Workers Compensation Act 1987 in respect of his losses resulting from injuries on 13 February 1989 and 30 July 2002 to be determined in accordance with the reasons given in this decision.
The Respondent Employer is to pay the Appellant Worker’s costs of the appeal.
BACKGROUND TO THE APPEAL
On 27 September 2005 Bosco Ilic (‘the Appellant Worker/Mr Ilic’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 8 September 2005.
The Respondent to the Appeal is Aldus Engineering Pty Ltd (‘the Respondent Employer’).
Mr Ilic was born on 15 January 1942 and is now 64 years of age. In April 1987 he started work for the Respondent Employer as a warehouse hand where he continued until 22 October 2002. His duties included receiving supplies of spares parts which he had to carry and cut for dispatch. Over his period of employment he sustained three compensable injuries in the course of his work:
· on 13 February 1989 a piece of metal entered his left eye;
· on 30 July 2002 he was shot in his right eye by a nail gum, and
· as a result of the nature and conditions of his employment from 1987 until 31 December 2001 he sustained injury to both arms.
A fourth injury was sustained on 22 June 2001 when a metal object entered his right eye but no claim is pressed on appeal in respect of that injury.
The Appellant Worker filed an Application to Resolve a Dispute (‘the Application’) on 17 September 2004 seeking the following lump sum compensation:
(a)$17,250.00 in respect of 23% loss of use of the left arm at or above the elbow;
(b)$16,000.00 in respect of 20% loss of use of the right arm at or above the elbow;
(c)$12,000.00 in respect of 30% loss of sight in the left eye;
(d)$20,000.00 in respect of 50% loss of sight in the right eye, and
(e)$32,000.00 compensation for pain and suffering.
No Reply has ever been filed by or on behalf of the employer. A teleconference was held on 13 December 2004 and the claims were referred to two different Approved Medical Specialists (‘AMS’) for separate assessment of Mr Ilic’s losses.
The first AMS (Dr Anderson) conducted an examination and assessment of the Appellant Worker’s sight on 8 February 2005 and his Amended Medical Assessment Certificate (‘MAC’) was issued on 18 July 2005 with the following assessments:
· 38% loss of sight in the left eye as a result of the injury to that eye on 13 February 1989;
· nil loss of sight in the right eye as a result of the injury to that eye on 22 June 2001, and
· 17% whole person impairment as a result of loss of sight in the right eye as a result of the injury to that eye on 30 July 2002.
The second AMS (Dr Meakin) conducted an examination and assessment of the Appellant Worker’s arms on 22 March 2005 and his MAC was issued on 10 June 2005 with assessments of 20% loss of use of each arm at or above the elbow.
A further teleconference was held on 2 September 2005 when, for the first time, the Respondent Employer’s representative advised that CGU Workers Compensation (NSW) Ltd (‘CGU’) was not on risk at the time of the 13 February 1989 injury. This was apparently contrary to the information provided in correspondence from the WorkCover Authority of NSW and contrary to the information provided by the Respondent Employer’s representative at the December 2004 teleconference.
The Respondent Employer has still filed no documentation in this case (either in the original claim or on appeal). I note that the appeal documents were served on CGU on 30 September 2005.
The matter was determined by the Arbitrator ‘on the papers’ after the teleconference on 2 September 2005.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 8 September 2005 records the Arbitrator’s orders as follows:
“1.Pursuant to s66 of the Workers Compensation Act 1987 and consistent with the findings set out in the Medical Assessment Certificates of Dr Ian Meakin and Dr Peter Anderson, the Respondent is to pay the Applicant-
(a) $16,000.00 in respect of a 20 per cent loss of use of the right arm at or above the elbow (date of injury: 10 October 2002);
(b) $15,000.00 in respect of a 20 per cent loss of use of the left arm at or above the elbow (date of injury: 10 October 2002);
(c) $12,950.40 in respect of 38 per cent impairment of the left eye (date of injury: 13 February 1998); and
(d) $23,000.00 in respect of whole person impairment assessed at 17.1 per cent arising from an injury to the right eye (date of injury: 30 July 2002).
2.Pursuant to s67 of the 1987 Act, the Respondent is to pay the Applicant $40,500.00 for pain and suffering.
3.The Respondent is to pay the Applicant’s costs as agreed or assessed.”
The allowance of $40,500.00 for section 67 compensation was made up as follows:
· $15,500.00 for pain and suffering resulting from the injury to the Appellant Worker’s arms and representing 31% of a most extreme case, and
· $25,000 for pain and suffering resulting from the compensable eye injuries of February 1989 and July 2002.
The losses in respect of the arm injuries were assessed by the AMS under the Table of Disabilities for injuries received on or before 31 December 2001. Therefore, the Arbitrator should have found injury on 31 December 2001. As no submissions have been made by the Respondent Employer, it seems that no issue is taken on this point. The amounts awarded are consistent with the assessments made by the AMS and it may well be that nothing turns on this error but the record should be corrected.
ISSUE IN DISPUTE
The issue in dispute in the appeal is whether the Arbitrator erred in failing to make two separate assessments for compensation under section 67 in respect of the 13 February 1989 left eye injury and in respect of the 30 July 2002 right eye injury.
LEAVE TO APPEAL
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
The Appellant Worker seeks only a reassessment of his compensation for pain and suffering under section 67 in respect of his eye injuries. He submits that the proper assessment for the left eye injury is $20,000.00 to $25,000.00 (40% to 50% of a most extreme case) and for the right eye injury is $30,000.00 to $35,000.00 (60% to 70% of a most extreme case).
The total compensation sought on appeal is $50,000.00 to $60,000.00 in lieu of the sum awarded of $25,000.00. Therefore, if the Appellant Worker’s argument is accepted, the amount of compensation “at issue” on appeal will exceed the $5,000.00 threshold in section 352(2)(a) and will also satisfy the 20% threshold in section 352(2)(b).
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
I grant leave to appeal.
PRELIMINARY MATTERS
Section 354(6) of the 1998 Act provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the Appellant Worker 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.
SUBMISSIONS AND FINDINGS
The Appellant Worker’s submission is that as he suffered two separate injuries, one to his left eye in February 1989 and one to his right eye in July 2002, and each injury has resulted in a section 66 loss or impairment above the threshold for compensation under section67, he is entitled to two separate awards of compensation for pain and suffering under section 67.
It should firstly be noted that different provisions apply to each injury. In respect of the 1989 injury section 67 provided as follows:
“67(1) A worker who has suffered a loss mentioned in the Table to this Division (or 2 or more of any such losses as the result of the same injury) is entitled to receive from the worker’s employer by way of compensation for pain and suffering resulting from the loss or all losses, in addition to any other compensation under this Act, an amount not exceeding $50,000.”
The section does not apply if the compensation payable under section 66 for the loss “is less than 10 per cent of the maximum amount from time to time referred to in section 66(1)” (section 67(2)). The compensation payable is the amount in force at the date of injury (section 67(6)). As at 13 February 1989 the maximum amount payable under section 66 was $85,200.00 and under section 67 was $42,600.00 (not $50,000.00) (NSW Government Gazette 149 of 30 September 1988).
The Appellant Worker suffered a 38% loss of sight in his left eye as a result of the 13 February 1989 injury. That loss entitled him to section 66 compensation of $12,950.40 which exceeded the 10% threshold to entitle him to compensation for pain and suffering under section 67. As a result Mr Ilic is entitled to receive compensation under section 67 in respect of the February 1989 injury to his left eye. At the teleconference on 2 September 2005 the Appellant Worker claimed separate lump sum compensation in respect of each eye injury. No issue was taken by the Respondent Employer’s representative that the Application only claimed one lump sum ($32,000.00) in respect of all section 66 losses alleged.
In respect of the right eye injury in July 2002 the terms of section 67 are as follows:
“67(1) A worker who receives an injury that results in a degree of permanent impairment of 10% or more is entitled to receive from the worker’s employer as compensation for pain and suffering resulting from the permanent impairment an amount not exceeding $50,000.00. Pain and suffering compensation is in addition to any other compensation under this Act.”
The Appellant Worker suffered a 17% whole person impairment as a result of his right eye injury and, as a result, meets the threshold to entitle him to compensation under section 67 for that injury.
Each injury was a separate and independent event which resulted in a separate loss or impairment. As each such loss or impairment passes the threshold in section 67 as it applied at the date of each injury, the Appellant Worker is entitled to have his compensation under section 67 separately assessed for each loss.
The Arbitrator declined to assess lump sum compensation under section 67 in respect of each eye injury separately on the ground that “it would be artificial” to determine an amount for pain and suffering in respect of Mr Ilic’s impaired vision “by having regard to each eye separately” (Certificate of Determination 8 September 2005 paragraph 18 (‘Reasons’)). The Arbitrator was in error declining to assess compensation in accordance with the terms of the 1987 Act.
Compensation under section 67 is compensation for pain and suffering which is defined in section 67(7) as follows:
“pain and suffering means:
(a) actual pain, or
(b) distress or anxiety,
suffered or likely to be suffered by the injured worker, whether resulting from the permanent impairment concerned or from any necessary treatment.”
This definition was the same in 1989 as in 2002. However, compensation is only payable for the pain that results from “the loss” (for the 1989 injury) or from “the impairment” (for the 2002 injury). This point is clarified in section 67(2) for the 2002 injury and in section 67(1A) for the 1989 injury. Section 67(2) provides:
“(2) Because there is a distinction between injury and impairment resulting from an injury (and compensation is payable under this section only for pain and suffering resulting from impairment), the pain and suffering for which compensation is payable does not include pain and suffering that results from the injury but not from the impairment.”
The only material difference between section 67(2) and 67(1A) is that in the latter provision the term “loss” is used in place of the term “impairment”. Whilst section 67(1A) was only introduced in Act 89 of 1995 (section 3 and Schedule 1), it had retrospective effect from the commencement of the 1987 Act pursuant to Schedule 6 Part 6 Clause 10 of the transitional provisions in that Act.
The Appellant Worker submits that the loss resulting from the 1989 injury was “significant, not only in percentage terms, but in its effects upon the Appellant” (Appellant Worker’s submissions paragraph nine). Reference is made to the MAC from Dr Anderson which noted that Mr Ilic was treated at Sydney Eye Hospital for his first eye injury. He did not undergo surgery. The wound healed itself and he was treated with antibiotics. After the injury Mr Ilic complained of blurring in his left eye. Dr Anderson makes no reference to continuing pain or distress suffered by the Appellant Worker as a result of either eye injury.
The submission is made that “a near 40% loss of vision in one eye must be considered to be a significant loss and one that must impact in a substantial way in nearly every aspect of a person’s daily life” (Appellant Worker’s submissions paragraph nine). This submission may well be correct but the Appellant Worker’s statement mentions none of these things. Dr Delaney, ophthalmic surgeon, in his report of 28 October 2002 noted the Appellant Worker’s history and that he was fit to work as a storeman. He makes no mention of any pain or distress Mr Ilic was experiencing as a result of his eye injuries. Dr Milverton, ophthalmic surgeon, has treated Mr Ilic since 1988. In his report of 20 January 2003 he makes no mention of any pain or distress Mr Ilic was experiencing.
In respect of the claim for the 2002 right eye injury the submission is made that it resulted in similar problems to the left eye injury but with an extended period of eye inflammation and slow healing of the wound. It is further submitted that this injury was more significant than the left eye injury because the Appellant Worker was then 60 years old and had a significant deficit in the vision in his left eye. The 2002 right eye injury left the Appellant Worker with a 17% whole person impairment as a result of impaired vision in that eye. However, the evidence is again totally inadequate to allow a reasonable and fair assessment of the Appellant Worker’s compensation under section 67.
Given the limited evidence presented as to the effect each loss had on Mr Ilic it is not surprising that compensation under section 67 was assessed in the global way that was done by the Arbitrator. I have read and considered all of the material that was before the Arbitrator. That material is so inadequate that it does not enable me to make a fair and reasonable assessment of the Appellant Worker’s compensation for pain and suffering under section 67. The Appellant Worker’s eight paragraph statement dated 19 August 2004 has only two lines about the consequences of his eye injuries. After referring to pain in his “right arm, left arm, shoulders, neck and back”, Mr Ilic states “I also have loss of vision arising from the three injuries to my eyes”. He adds that he continues to “suffer headaches and depression due to my injuries from work” (emphasis added) (Appellant Worker’s statement, paragraph six). It is unclear if the depression is due to the compensable eye injuries, the arm injuries, or both. There is no medical evidence to give assistance in determining the nature and extent of the pain and suffering that the Appellant Worker may experience as a result of his compensable eye injuries.
In this situation I have no alternative but to remit the matter to a different Arbitrator for the Appellant Worker’s compensation under section 67 in respect of his compensable eye injuries to be assessed in accordance with the reasons in this decision. A useful summary of the matters to be taken into account when assessing compensation under section 67 is set out in Tyler v Marsden Industries (2001) 22 NSWCCR 644 where Commissioner Wright said at [14]:
“There are a number of factors and principles to take into account in determining an appropriate amount under s 67-
· Pain and suffering awards under s 67, unlike the objective criteria in s 66 awards for physical loss and impairment, must take into consideration the actual individual experiences of the claimant, as to his or her past and future pain and suffering.
· The measure of the extreme case must be compared with the measure of a most extreme case and does not need to make a comparison with the most extreme case.
· The pain and suffering must result from the loss/impairment and not merely the injury (s 67(1A); Scrimshaw v SAR Wood Pty Ltd (1997) 14 NSWCCR 335).
· Pain may be compensated even if the extent of the loss and its effects are not assessable until a later date (Selimovic v Airfoil Registers Pty Ltd ( 1999) 18 NSWCCR 143).
· Pain and suffering is compensable from the date of the compensable injury and not merely from the date on which the loss/impairment is crystallised (Rico v Roads and Traffic Authority (1992) 8 NSWCCR 515; Corporate Ventures Pty Ltd v Borovac (1995) 12 NSWCCR 84; Bohanna & Appleton t/as Anscot Partnership v Bohanna (1996) NSWCCR 724).
· There is no necessary relationship between the impairment/loss and the intensity and duration of the pain and suffering. If an award is excessive upon a review of all the circumstances, an award may be overturned on the basis of falling outside the range of a sound discretionary judgment (Ainsworth Nominees Pty Ltd v Crouch (1995) 11 NSWCCR 640).
· The age of the claimant is relevant. In Regal Paints Pty Ltd v Wasson (1993) 9 NSWCCR 301, the Court of Appeal observed (Priestley JA at 306C) that the younger a person is at the time of injury (loss) the greater is the chance that the worker would get into an extreme case category, but each case has to be looked at on its own merits due to the potential for the same injury to affect different workers differently. The Court of Appeal reiterated in Ainsworth Nominees Pty Ltd v Crouch (Kirby A-CJ at 652F) that age was a relevant consideration because age at injury had implications for the expected duration of any pain and suffering.
· Distress caused by interference with social activities (Department of School Education v Boyd (1996) 13 NSWCCR 289) or by the effects of the compensable injury on a worker’s relationships including marriage (Pacific Dunlop Ltd v Krivec (1996) 13 NSWCCR 353) can be relevant.
· Objective factors may include the type of surgical procedures undergone, the nature of the convalescent process and any complications flowing therefrom, as well as the need for medication and difficulty with sleeping (Dubbo Base Hospital v Harvey (1996) 13 NSWCCR 545).15. In most instances, the Court has the advantage of hearing from the claimant, and weighing the oral evidence with all its poignancy, emotion, levels of articulateness and other factors that will aid the court in its judgment. Claimants in their self-descriptions may be stoic, laconic, dismissive, histrionic, philosophical, lacking in insight or less than proficient in use of language. All these matters have to be taken into account in assessing the claimant and reaching conclusions about the impact of the loss.”
In addition, the question of which insurer was on risk at the time of the February 1989 injury must be addressed.
DECISION
Paragraphs 1 and 2 of the Arbitrator’s decision of 8 September 2005 are revoked and the following orders made:
“1. Pursuant to section 66 of the Workers Compensation Act 1987 the Respondent pay the Applicant the following sums:
(i) in respect of injuries sustained on 31 December 2001:
(a) $16,000.00 in respect of a 20 per cent permanent loss of use of the right arm at or above the elbow;
(b) $15,000.00 in respect of a 20 per cent loss of use of the left arm at or above the elbow.
(ii) in respect of injury sustained on 13 February 1989, $12,950.40 in respect of a 38 per cent loss of sight in the Applicant’s left eye;
(iii) in respect of injury to the Applicant’s right eye on 30 July 2002, $23,000.00 in respect of a 17 per cent whole person impairment
2. In respect of pain and suffering resulting from the Applicant’s arm injuries and consequential section 66 losses, the Respondent is to pay the Applicant $15,500.00 pursuant to section 67 of the Workers Compensation Act 1987.”
Paragraph 3 of the Arbitrator’s decision of 8 September 2005 is confirmed.
The matter is remitted to a different Arbitrator for the Appellant Worker’s entitlements under section 67 of the Workers Compensation Act 1987 in respect of his losses resulting from injuries on 13 February 1989 and 30 July 2002 to be determined in accordance with the reasons given in this decision.
COSTS
The Respondent Employer is to pay the Appellant Worker’s costs of the appeal.
Bill Roche
Acting Deputy President
19 July 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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