Inghams Enterprises Pty Ltd v Stanhope - [2012] NSWWCCPD 32

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Inghams Enterprises Pty Ltd v Stanhope [2012] NSWWCCPD 32
APPELLANT:		Inghams Enterprises Pty Ltd
RESPONDENT:		Glenn Stanhope
INSURER:		Self-insured
FILE NUMBER:		A1-5540/11
ARBITRATOR:	Ms D Moore
DATE OF ARBITRATOR’S DECISION:		6 March 2012
DATE OF APPEAL DECISION:		15 June 2012
SUBJECT MATTER OF DECISION:		Section 60(5) of the Workers Compensation Act 1987; employer’s liability for proposed treatment or service; referral by Registrar of dispute concerning proposed treatment or service to an Approved Medical Specialist for assessment; mandatory requirement to refer; consequences of failure to remit matter to Registrar for referral; weight of evidence concerning alleged injury
PRESIDENTIAL MEMBER:		Deputy President Kevin O'Grady
HEARING:		On the papers
REPRESENTATION:		Appellant:	Leigh Virtue & Associates
Respondent:	White Barnes Solicitors
ORDERS MADE ON APPEAL:		1. The findings made by the Senior Arbitrator in paragraph one of her Certificate of Determination dated 6 March 2012 are confirmed. 2. The findings and orders made in paragraphs two, three, four and five of the Certificate of Determination dated 6 March 2012 are revoked. 3. The Certificate of Determination is further amended to provide: “2. The deemed date of injury is 10 February 2010. 3. The matter is remitted to the Registrar for referral to an Approved Medical Specialist in accordance with s 60(5) of the Workers Compensation Act 1987 for the purpose of an assessment under Pt 7 (Medical Assessment) of Ch 7 of the Workplace Injury Management and Workers Compensation Act 1998. 4. The Application is to be relisted before the Senior Arbitrator for determination of outstanding matters following issue of the Approved Medical Specialist’s Medical Assessment Certificate.” 4. No order as to costs of the appeal.

BACKGROUND

Mr Glenn Stanhope has been employed by Inghams Enterprises Pty Ltd (the appellant) for the past 30 years. During that period his duties have varied from time to time. Since approximately 1995 his duties have been those of a maintenance worker on chicken farming properties conducted by the appellant.
It is Mr Stanhope’s allegation that he has suffered injury, being bilateral carpal tunnel syndrome, as a result of the forceful and repetitive use of his arms, hands and wrists in the course of his employment.
Mr Stanhope reported the injury to the appellant in September 2009. He was subsequently advised to undergo surgical treatment. The appellant declined liability for the cost of such treatment. Notice of that declinature was given to Mr Stanhope by letter dated 22 February 2010.
Mr Stanhope’s solicitors requested, in correspondence to the appellant dated 25 May 2011, that the denial of liability be reviewed. The appellant wrote to the solicitors on 24 June 2011 advising that, following review, its earlier decision remained unchanged and that Mr Stanhope’s claim was denied. That correspondence included a statement of matters in dispute and a statement of reasons. Those matters are addressed below.
The dispute between the parties was the subject of an Application to Resolve a Dispute (the Application) filed by Mr Stanhope in July 2011. That Application sought an order “under Section 60(5) of the Workers Compensation Act 1987 for the reasonably necessary cost of bilateral carpal tunnel release surgery and any related medical costs”.
The Application came before Senior Arbitrator Moore for a conciliation and arbitration on 17 February 2012 at which time both parties were represented by counsel. The Senior Arbitrator reserved her decision and a Certificate of Determination accompanied by a Statement of Reasons (Reasons) was issued on 6 March 2012 in which the following findings and orders were made:
“The Commission determines:
1. The applicant sustained an injury within the meaning of section 4(b)(ii) of the Workers Compensation Act 1987, to which his employment was a substantial contributing factor.
2. As a result of that injury, it is reasonably necessary for the applicant to undergo treatment in the form of bilateral median nerve decompression.
3. As there is no dispute concerning that proposed treatment, it is not necessary to refer the matter for assessment in accordance with section 60(5) of the Workers Compensation Act 1987.
4. The respondent is to pay the applicant’s reasonably necessary treatment expenses in accordance with the provisions of section 60.
5. The respondent is to pay the applicant’s costs as agreed or assessed. Certify the matter as complex with a 10 per cent increase in the costs otherwise available to both parties.”

ISSUES IN DISPUTE

The appellant has enumerated five “grounds” of appeal. Those grounds challenge the Arbitrator’s “consideration and assessment of the expert medical evidence” and of “the issue of injury” (grounds “a” and “b”). Neither ground identifies the suggested “error” of fact, law or discretion which, in terms of s 352(5) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), must be established to succeed on appeal from an Arbitrator’s decision.
In ground “c” it is asserted that the Arbitrator failed “to properly consider whether the date of injury relied on (1 September 2009) had been made out”.
The manner in which grounds “a”, “b” and “c” have been stated lacks precision. That absence of precision demonstrates failure by those representing the appellant to comply with the relevant Practice Direction No 6 which requires that such grounds of appeal must state:
“briefly, but specifically, the grounds relied on in support of the appeal. It is not acceptable merely to allege that the Arbitrator erred in law, fact or discretion, or that the decision is against the evidence or the weight of the evidence. The grounds of appeal must identify the respects in which error of law, fact or discretion is alleged to have occurred as well as any material findings it is said the Arbitrator should or should not have made, and any material facts it is said the Arbitrator should not have found.”
Those three “grounds” as stated merely represent generalised complaints concerning the Arbitrator’s reasoning and determination. Suggested errors are not properly identified. Whilst it is provided in s 354(1) of the 1998 Act that proceedings before the Commission are to be conducted with as little formality and technicality as the proper consideration of the matter permits, it remains an obligation upon parties to comply with those procedural requirements laid down by relevant practice notes. Whilst the substance of the appellant’s complaints is revealed in supplementary submissions, the requirement remains that the grounds define the errors alleged. Without compliance with those requirements an appellant risks failing to plainly define the issues on appeal.
The appellant in ground “d” suggests error on the part of the Arbitrator “in purporting to determine a date of injury on a date not relied upon or asserted by [Mr Stanhope]”. That ground seems to assert that the suggested error constitutes “a denial of procedural fairness”.
Ground “e” asserts error on the part of the Arbitrator “in failing to refer the dispute regarding proposed treatment to an Approved Medical Specialist (AMS) in accordance with the requirement of Section 60(5) of the 1987 Act”.

ON THE PAPERS REVIEW

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.”
Mr Stanhope has submitted that the appeal may be heard on the papers without there being any formal hearing or conference. The appellant suggests in submissions that the matter should “be given an oral hearing”. This course is suggested upon the basis that the appeal involves, among other things, “issues relevant to procedural fairness and the consideration of the interpretation of s 60(5)” of the Workers Compensation Act 1987 (the 1987 Act).
The Commission has before it the documentary evidence tendered before the Arbitrator as well as a complete transcript of argument as presented at that hearing. I note that no oral evidence was then presented.
The parties have provided detailed written submissions on this appeal. Those submissions include supplementary submissions put on behalf of the parties which were prepared and filed following receipt of the transcript (T).
Having regard to Practice Directions Nos 1 and 6 and the documents that are before me 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.

THRESHOLD MATTERS

Time

The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with s 352(4) of the 1998 Act.

Monetary threshold

Mr Stanhope submits that the amount of compensation at issue on this appeal does not meet the threshold as prescribed by s 352(3) which provides:
“There is no appeal under this section 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.”
It is argued by Mr Stanhope that, having regard to the evidence of Ms Lyons, practice manager employed by Dr Geoffrey Lyons, the maximum cost of the medical treatment which is the subject of the application is $4,900 and, as such, does not meet the relevant threshold. The appellant, in response to that argument, argues that there is other evidence being that of Dr Bentivoglio which includes an estimate of the cost of the relevant treatment as being $7,000.
The estimate provided by Ms Lyons was given in March 2010. That estimate included notes which suggested that other charges or expenses such as pathology, radiology and pharmacy items are not included. Having regard to the evidence concerning those estimates I am satisfied that, on the probabilities, the cost of the subject medical treatment exceeds the monetary threshold as prescribed in s 352(3). In the circumstances I conclude that the threshold requirements found in the Act concerning quantum have been met.

THE ARBITRAL PROCEEDINGS

Evidence

The documentary evidence tendered before the Arbitrator is summarised at [11] of Reasons. That evidence is comprehensively summarised by the Arbitrator between [15] and [32] of those Reasons.

Mr Stanhope’s evidence

There is a written statement made by Mr Stanhope dated 18 May 2011 in evidence. He states that he has been employed by the appellant for 29 years. He had been working as a maintenance worker, which position he had taken up some five or six years before the making of the statement. Mr Stanhope is engaged full-time and does regular Saturday overtime. He states that he had “noticed some tingling in [his] right hand fingers and to a lesser extent [his] left hand. [He] also had some soreness in [his] right arm”. He reported the injury to his employer in early September 2009 and consulted his general practitioner, Dr McCroary.
Mr Stanhope’s statement includes a detailed summary of his work duties performed over the entire period of his employment all of which involve manual work. He states that “approximately six years ago” he moved from the chook shed to the workshop. Thereafter his duties were varied and required him to operate a mower and whipper snipper and trim trees. His duties also involved shovelling and the maintenance and construction of fencing involving use of a post driver which required considerable manual force involving gripping and pushing as the post hole is being bored. Mr Stanhope describes his duties generally as requiring “repetitive and forceful use” of his hands.
There is in evidence a copy of an employee’s claim for workers compensation form addressed to the appellant dated 10 February 2010. The injury is described as involving “numb fingers pain in wrist - ® Lefs [sic, Left] also feeling numb not as bad. Pain in elbow ®”. Also in evidence is a copy of the “register of injuries” form completed by Mr Stanhope on 1 September 2009 which described the injury as “pins and needles in fingers on right hand”. The description of how the injury happened was “felt pins and needles in right arm and hand after fencing/using sledgehammer”.
The clinical notes of Dr Kenneth McCroary are in evidence. It is recorded that Mr Stanhope consulted Dr McCroary on 1 September 2009 at which time he was suffering right hand numbness involving “mostly 3 lateral fingers”. Dr McCroary has noted “lots of shovelling, hammer, pipes at work and fencing. Also tendonitis medial wrist”. Those notes record that later in that month Mr Stanhope was referred to Dr David Rail for further investigation. Dr McCroary’s notes include notations of the diagnosis of a carpal tunnel syndrome and on 25 November 2009 a notation is made of “bilateral carpal tunnel syndrome”. It was on that day that Mr Stanhope was referred to Dr Geoffrey Lyons, plastic and reconstructive surgeon, hand surgeon, cosmetic surgeon.
A copy of reports of Dr McCroary, dated 19 November 2009 and 18 December 2009, are in evidence. The first report includes diagnosis of bilateral carpal tunnel syndrome and detail of treatment. The latter report attributes the diagnosed condition to “doing repairs on a fence and using a sledge hammer”. Dr McCroary states his view that Mr Stanhope’s employment “is a substantial contributing factor to his injury”.
Mr Stanhope relied upon the evidence of Dr John Bentivoglio, orthopaedic surgeon, found in reports dated 6 May 2010 and 31 May 2010. There are also a number of reports of Dr Lyons in evidence, some of which appear to have been extracted from clinical notes which had been produced to the Commission. The latest report of Dr Lyons is dated 7 October 2011 and is addressed to the solicitors. The medical experts relied upon by Mr Stanhope each have diagnosed a condition of bilateral carpal tunnel syndrome which condition has been, in the view of those practitioners, caused or at least aggravated by the nature and conditions of work duties. Both Dr Lyons and Dr Bentivoglio have expressed the view that Mr Stanhope’s employment has been a substantial contributing factor to his injury. Detail of the histories as recorded by Dr Lyons and Dr Bentivoglio are addressed in the course of discussion below.
Mr Stanhope relies on a number of further documents which have no direct relevance to the matters raised on appeal and thus need not be summarised.

The appellant’s evidence

The appellant relied on a great many of the documents which had been tendered in Mr Stanhope’s case. Two reports from Dr Murray Stapleton, hand, plastic and reconstructive surgeon, dated 10 February 2010 and 21 June 2011, were tendered on behalf of the appellant. In the first of those reports Dr Stapleton notes that “the diagnosis of this man has been clearly made as bilateral carpal tunnel syndrome. That has been confirmed with a nerve conduction study. There is also a suggestion that he had epicondylitis of the elbow joint, but that has settled with physiotherapy”. Dr Stapleton also states in that report that Dr Lyons’ advice to Mr Stanhope that he undergo surgery “on the right hand side” was appropriate. Dr Stapleton also noted “that surgery will be repeated on the left hand side as this condition will get worse with time, whether he works or whether he does not”.
Concerning causation of the condition diagnosed, Dr Stapleton expresses the view in his first report that “this is a degenerative problem the cause of which is unknown. It has long since been established that carpal tunnel syndrome is not caused nor is the pathology aggravated by repetitive or hard work”. Dr Stapleton proceeded to state that “employment is not a substantial contributing factor to the current presentation”.
A copy of correspondence from the appellant to Mr Stanhope dated 22 February 2010 concerning denial of liability is in evidence. That correspondence included the following:
“Liability in this matter has been denied as you did not sustain a work related injury during the course of your employment, your employment with Inghams Enterprises Pty Limited is not considered to be a substantial contributing factor to your injury, you are no longer suffering from a work related injury, you do not require treatment in relation to a work related injury, you are not incapacitated as a result of a work related injury.”
It was also made clear in that correspondence that the appellant disputed “whether treatment provided/proposed is reasonably necessary”.
Correspondence from the appellant to Mr Stanhope’s solicitors dated 24 June 2011 is in evidence. That correspondence concerns a review by the appellant of its earlier denial of liability. The matters in dispute enumerated in that letter are as follows:
“a. Whether your client sustained an injury arising out of or in the course employment [sic] in accordance with Section 4 of the Workers Compensation Act 1987.
b. Whether your client’s employment was a substantial contributing factor to your [sic] injury in accordance with Section 9A of the Workers Compensation Act 1987.
c. Whether your client’s employment was a substantial contributing factor to the contract of a disease by gradual process in accordance with Section 15 of the Workers Compensation Act 1987.
d. Whether your client’s employment was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration of a disease in accordance with Section 16 of the Workers Compensation Act 1987.
e. Whether your client is incapacitated as a result of a work related injury & the extent of any incapacity in accordance with Section 33 of the Workers Compensation Act 1987.
f. Whether treatment provided/proposed is reasonably necessary in accordance with Section 60 of the Workers Compensation Act 1987.”
The “statement of reasons” which appears at page 2 of that correspondence includes the following:
“Based on medical opinion from Dr Stapleton, your client does not require treatment in relation to a work related injury”.
The balance of the documents relied upon by the appellant have no direct relevance to the matters raised on appeal and need not be summarised.

Submissions before the Arbitrator

Appellant’s submissions

Counsel appearing on behalf of the appellant stated that the issues in dispute were as follows:
(a)     injury;
(b)     whether employment was a substantial contributing factor to injury (s 9A of the 1987 Act);
(c)     that the alleged injury, involving a disease, has not had a date of injury “properly established”, and
(d) matters (unspecified) arising under the provisions of s 60(5).
The first submission put by counsel was that “[the Arbitrator] cannot make a finding of injury in this case because there is no date upon which [the Arbitrator] can make such a finding”. It seems to have been argued that the date alleged by Mr Stanhope, being 1 September 2009, was a date on which treatment had been sought by him from his general practitioner. That being so, and having regard to matters stated in Stone v Stannard Brothers Launch Services Pty Ltd [2004] NSWCA 277; 1 DDCR 701 (Stone) counsel submitted that “… the 1 September 2009 date, it is not a date upon which you have jurisdiction then to enter a date of injury”. In response to a question from the Arbitrator, counsel nominated s 16 of the 1987 Act as being the section which had apparently been relied upon by Mr Stanhope.

Counsel proceeded to argue that Mr Stanhope’s “evidence is not sufficient for [the Arbitrator] to find that an injury by way of bilateral carpal tunnel has occurred in the workplace either as a disease or otherwise”. Counsel challenged the evidence of Dr Bentivoglio and Dr Lyons upon the basis that that evidence “suffer[ed] in respect of a Makita v Sprowles type problem in that they do not have the full history that the worker gives you in his statement”. The argument was advanced that the manifestation of symptoms in 2009 does not “equate to injury”.
Argument was advanced that Mr Stanhope’s employment was not a substantial contributing factor to the alleged injury, a matter in respect of which a worker bears the onus of proof. It was argued that the medical experts had failed to explain why Mr Stanhope did not suffer the alleged injury earlier than 2009. The absence of such an explanation, it seems to have been argued, affects the weight of that evidence.
Reliance was placed by the appellant upon the evidence of Dr Stapleton who “does not believe that [medical treatment] is reasonably necessary as a result of injury”. That evidence, it was put, demonstrates that there is a dispute concerning liability in respect of future medical treatment. That dispute must, it was argued, be referred to an AMS for assessment.

Mr Stanhope’s submissions

Reliance was placed upon the expert medical opinions expressed by Dr Bentivoglio, Dr Lyons and Dr Rail. That evidence, it was argued, should be accepted in preference to that of Dr Stapleton concerning the occurrence of injury. Reference was made to the decision of the High Court in Federal Broom Company Pty Ltd v Semlitch [1964] HCA 34; 110 CLR 626 (Semlitch) and it seemed to be argued that if symptoms of a disease are made worse by work that disease has been relevantly aggravated as discussed by the High Court.
Counsel proceeded to address the provisions of s 60(5). It seems to have been argued, having regard to the evidence of Dr Stapleton, that in the event of a finding being made that injury had been received in the course of employment there would be no dispute concerning the need for reasonably necessary treatment. That submission was based upon Dr Stapleton’s evidence that Mr Stanhope “needs surgery on both sides” as found at page 5 of his report dated 10 February 2010.

The Arbitrator’s decision

The Arbitrator, following a thorough summary of the evidence before her, noted that “the diagnosis in this case, namely bilateral carpal tunnel syndrome, is not disputed”. When dealing with the appellant’s dispute concerning injury, the Arbitrator preferred the opinions of Dr Lyons, Dr Bentivoglio and Dr McCroary to that of Dr Stapleton. The appellant’s attack upon the expert evidence relied upon by Mr Stanhope which was founded upon those matters stated in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705 (Makita) was rejected by the Arbitrator. It was further found by the Arbitrator that Dr Stapleton’s evidence did not meet those standards which were discussed in Makita. Reliance was placed by the Arbitrator upon the decision in Semlitch as well as that in Cant v Catholic Schools Office [2000] NSWCC 37; 20 NSWCCR 88. A finding was made that Mr Stanhope had suffered an injury within the meaning of s 4(b)(ii) of the 1987 Act being an aggravation , acceleration, exacerbation or deterioration of a disease namely carpal tunnel syndrome.
The Arbitrator further found that the weight of the evidence supported a finding that Mr Stanhope’s employment with the appellant was a substantial contributing factor to his injury within the meaning of s 9A. That finding was based upon the expert evidence relied upon by Mr Stanhope.
The Arbitrator proceeded to consider the arguments advanced by the appellant concerning the alleged date of injury. The Arbitrator expressed her inability to understand “the relevance of those submissions”. The purpose of s 16 was, the Arbitrator found, “to fix a deemed date of injury for the purposes of determining the liability of an employer”. It was stated (at [48] of Reasons) that “since the claim before me is only in respect of medical expenses, it is not strictly necessary for me to decide anything further since s 60 relates solely to the provision of reasonably necessary treatment ‘as a result of an injury received by a worker’”. The Arbitrator proceeded to state that, if it was necessary for her to find a date of injury “it is arguable that the deemed date of injury should be the date [Mr Stanhope] apparently made a claim for compensation, namely 10 February 2010”. That view was expressed having regard to the decision of the Court of Appeal in Stone.
The Arbitrator proceeded to consider the dispute concerning the claim pursuant to s 60. The appellant’s argument was summarised by the Arbitrator as follows:
“Counsel for [the appellant] submitted that this claim must be referred in accordance with s 60(5) because there remained a dispute on the basis that although Dr Stapleton considered that surgery was necessary, he did not accept that it was as a result of
‘injury’. In other words, there remained a dispute as to liability”.
The Arbitrator expressed the view that, in the circumstances, and in particular having regard to Dr Stapleton’s evidence, there had been a dispute concerning entitlement pursuant to s 60. However, given her finding as to injury, she did not consider that such dispute “still exists”. The Arbitrator had earlier made reference to the decision in Bielecki v Rianthelle Pty Ltd t/as Belfora [2008] NSWWCCPD 53 (Bielecki) a decision of Roche DP. The conclusion reached by the Arbitrator was:
“having determined that [Mr Stanhope] sustained an injury, then in line with Bielecki, I am left with the task of determining whether the relevant treatment or expense was as a result of that injury, and whether the treatment is reasonably necessary.”
The Arbitrator found (at [54]) that there was “no dispute that the treatment (surgery) proposed is reasonably necessary. Dr Stapleton clearly agreed with Dr Lyons, [Mr Stanhope’s] treating specialist on this point.”
The Arbitrator further found that whilst Dr Stapleton disputed that the condition was an “injury” within the meaning of the 1987 Act, her determination that injury had occurred had the result that there was “no longer a dispute within the meaning of s 60(5) requiring referral for medical assessment”. The observation was made by the Arbitrator that any such referral would, in her view, be a waste of the Commission’s time and resources, and that it would be contrary to the objectives of the Commission. A finding was made concerning the appellant’s liability to meet the cost of the proposed treatment by Dr Lyons. The findings and determinations recorded in the Certificate of Determination dated 6 March 2012 are noted at [6] above.

SUBMISSIONS, DISCUSSION AND FINDINGS

It is convenient to first deal with the appellant’s arguments raised in ground “e” which suggests error on the part of the Arbitrator in failing to refer the dispute to an AMS as, it is suggested, is required by the provisions of s 60 of the 1987 Act which provides:
“60    Compensation for cost of medical or hospital treatment and rehabilitation etc
(1) If, as a result of an injury received by a worker, it is reasonably necessary that:
(a)  any medical or related treatment (other than domestic assistance) be given, or
(b)     any hospital treatment be given, or
(c)     any ambulance service be provided, or
(d)     any workplace rehabilitation service be provided,
the worker’s employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).
Note. Compensation for domestic assistance is provided for by section 60AA.
(2) If it is necessary for a worker to travel in order to receive any such treatment or service (except any treatment or service excluded from this subsection by the regulations), the related travel expenses the employer is liable to pay are:
(a) the cost to the worker of any fares, travelling expenses and maintenance necessarily and reasonably incurred by the worker in obtaining the treatment or being provided with the service, and
(b)  if the worker is not reasonably able to travel unescorted—the amount of the fares, travelling expenses and maintenance necessarily and reasonably incurred by an escort provided to enable the worker to be given the treatment or provided with the service.
(3) Payments under this section are to be made as the costs are incurred, but only if properly verified.
(4) The fact that a worker is a contributor to a medical, hospital or other benefit fund, and is therefore entitled to any treatment or service either at some special rate or free or entitled to a refund, does not affect the liability of an employer under this section.
(5) The jurisdiction of the Commission with respect to a dispute about compensation payable under this section extends to a dispute concerning any proposed treatment or service and the compensation that will be payable under this section in respect of any such proposed treatment or service. Any such dispute must be referred by the Registrar for assessment under Part 7 (Medical assessment) of Chapter 7 of the 1998 Act, unless the regulations otherwise provide.”
The appellant submits that:
(a) s 60(5) must be read “in the context of s 60(1)”;
(b)     the Arbitrator has erred in law in “not acknowledging that a ‘dispute’ remained between the parties concerning proposed treatment”;
(c)     that dispute concerned the question as to whether the proposed treatment was “reasonably necessary as a result of injury” (emphasis in original). That dispute remains notwithstanding a finding of injury (reliance is placed upon the decision in Bielecki);
(d)     the evidence of Dr Stapleton that the need for the subject treatment does not arise as a result of an injury is evidence of the existence of a dispute;
(e)     the Commission does not have jurisdiction to “make such a finding [that proposed treatment is reasonably necessary as a result of injury] without first referring such dispute to an AMS”, and
(f)      any such dispute “must” be referred by the Registrar, there being no discretion granted by the provision. Failure to refer constitutes error of law.
It is implicit in these submissions that the error suggested is failure by the Arbitrator to remit the matter to the Registrar for referral as required by s 60(5).
The question raised is what are the consequences, if any, of there having been no referral of the dispute by the Registrar for assessment under Pt 7 (Medical Assessment) of Ch 7 of the 1998 Act? The section requires that such referral “must” take place. The use by the legislature of the word “must” suggests that the requirement is mandatory rather than simply directory. The importance of this distinction is that if, on a proper construction of the subsection, the requirement of referral is determined to be mandatory, its non-performance has the consequence that the findings and orders of the Arbitrator concerning the dispute relating to proposed treatment are null and void having been made without jurisdiction (Minahan v Baldock [1951] HCA 27; 84 CLR 1 per the Court at 11; Hatton v Beaumont (1977) 2 NSWLR 211 (Hatton) per Hope JA at 220).
Statutory requirements that are to be construed as either mandatory or merely directory were the subject of discussion by Giles JA (with whom Sheller JA and Davies AJA agreed) in Baker v Rothmans of Pall Mall (Australia) Ltd [1999] NSWCA 245; 18 NSWCCR 374 (Baker), a case concerning non-compliance by a worker with the provisions of s 106E of the 1987 Act then relevantly in force, where his Honour stated (between [9] and [11]):
“9.     The difficulties in the distinction between mandatory statutory requirements and statutory requirements regarded only as directory have long been recognised. The traditional distinction was between a requirement which must be strictly complied with and a requirement which need only be substantially complied with: Woodward v Sarsons (1875) LR 10 CP 733 at 746 per Lord Coleridge CJ. In more recent times the distinction has been between a requirement noncompliance with which invalidates that which follows and a requirement noncompliance with which does not have that consequence: Clayton v Heffron (1960) 105 CLR 214 at 247 per Dixon CJ, McTiernan, Taylor and Windeyer JJ; Victoria v Commonwealth (1975) 134 CLR 81 at 161-2; Hunter Resources Ltd v Melville (1988) 164 CLR 234 at 248-50 per Dawson J. The question of substantial compliance may still arise on the latter distinction, however, because there may be invalidity in the absence of substantial compliance.
10.    Where there may be validity despite total noncompliance or invalidity despite substantial compliance, the observation of Hope JA in McRae v Coulton (1986) 7 NSWLR 644 at 661 must be endorsed:
‘In Tasker v Fullwood [1978] 1 NSWLR 20 at 23-24, this Court suggested that it could be misleading to seek first to categorise the statutory requirements and then to decide what their effect was. The statute has to be construed and the result of any non-compliance with the statutory requirement determined by reference to that construction. This may result in the requirement falling into either the mandatory or the directory category, but that categorisation is the end of the inquiry and not the beginning.’
11.    In the present case there had been neither strict nor substantial compliance with s 106E, since on no view could service of a medical report some weeks after 6 December 1996 (as occurred) be regarded as, or as completing, due making of a claim for compensation 12 weeks prior to that date. The time default was intractable, and the question was whether on the proper construction of s 106E(1) the noncompliance invalidated the commencement of the proceedings so far as compensation was claimed under s 66 of the Act.”
In Baker the Court held that the requirements of s 106E(1) were mandatory and that a worker cannot commence Court proceedings claiming lump sum compensation until a stated period after a claim for the compensation is duly made. Non-compliance with mandatory requirements, as found, had the consequence that the Judge at first instance was correct to strike out the Application for Determination so far as it claimed lump sums.
The amendment to s 60 which provided for the inclusion of s 60(5) was made by the Workers Compensation Amendment Act 2010 and the subsection commenced operation on 1 February 2010. That amendment was intended by Parliament to extend the jurisdiction of the Commission to permit the making of orders for payment of proposed medical treatment following the decision by Sheahan P in Widdup v Hamilton [2006] NSWWCCPD 258; 5 DDCR 85 (Widdup) in which his Honour found an absence of such jurisdiction.
It is clear that s 60(5) addresses the subject of a medical dispute. A dispute concerning liability for the expenses associated with proposed treatment, in my view, falls within the term “medical dispute” as defined by s 319 of the 1998 Act which, relevantly, provides:
“319   Definitions
In this Act:
…
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 of the injured worker is fully ascertainable.”

Part 7 of Ch 7 of the 1998 Act makes extensive provision for medical assessment in the case of a medical dispute as defined in s 319. That Part includes a provision, s 326, concerning the status of assessments which provides:
“326 Status of medical assessments
(1) An assessment certified in a medical assessment certificate pursuant to a medical assessment under this Part is conclusively presumed to be correct as to the following matters in any proceedings before a court or the Commission with which the certificate is concerned:
(a)the degree of permanent impairment of the worker as a result of an injury,
(b)whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality,
(c)the nature and extent of loss of hearing suffered by a worker,
(d)whether impairment is permanent,
(e)whether the degree of permanent impairment is fully ascertainable.

(2) As to any other matter, the assessment certified is evidence (but not conclusive evidence) in any such proceedings.”

It may be seen that any assessment of a dispute concerning future medical expenses made in accordance with Pt 7 would not be presumed to be correct, but would be evidence (but not conclusive evidence) in proceedings before the Commission (s 326(2)).
It is evident in my view that it was the intention of Parliament that in the case of a medical dispute concerning the cost of proposed treatment the Commission was to have the benefit of that evidence to be found in a Medical Assessment Certificate (MAC) made by an AMS as provided by Pt 7. However, when dealing with the force of a provision expressed in positive terms such as the present, it is not the intention of Parliament that is determinative. As stated by Mahoney JA in Hatton at 226:
“In determining whether a provision is mandatory or directory, the question is not: What did the legislature intend?; it intended that the provision be observed. The relevant question is: What is the consequence if it is not observed: Chadwick v Commissioner of Stamp Duties. That question is to be answered by looking at the subject matter of the legislation and the relation of the particular provision to the general object to be secured by the Act…” (footnotes omitted).
Relevant principles have, since the decisions in Hatton and Baker, been stated by the High Court in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 (per McHugh J, Gummow J, Kirby J and Hayne J at 391) where the terms “mandatory” and “directory” were considered:
“... classifications that have outlived their usefulness because they deflect attention from the real issue which is whether an act done in breach of the legislative provision is valid. The classification of a statutory provision as mandatory or directory records a result which has been reached on other grounds. The classification is the end of the inquiry, not the beginning. That being so, a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales. In determining the question of purpose, regard must be had to ‘the language of the relevant provision and the scope and object of the whole statute’. (footnotes omitted)”
In the present matter I conclude that the Arbitrator’s rejection of Dr Stapleton’s opinion concerning the question of causation of injury did not, as was found by her, have the consequence that the dispute concerning liability for proposed treatment ceased to exist. The liability questions concerning whether such proposed treatment was as a result of injury and whether such was reasonably necessary, matters to be determined by her, remained and may only have been answered following remitter to the Registrar for referral to an AMS as required by the subsection. Failure to so remit had the consequence that the Arbitrator’s findings and orders concerning the proposed treatment are null and void. I conclude that the requirements concerning referral found in s 60(5) are mandatory. Appropriate orders providing for revocation of those findings and orders appear below.

Ground “a”

It is suggested by the appellant that the Arbitrator has erred in law “in failing to apply the principles of Makita to the expert evidence relied upon by [Mr Stanhope]”. I have earlier noted the deficiencies in the manner in which this ground has been expressed. It seems that the error suggested concerns a flawed evaluation by the Arbitrator of the evidence of Dr Bentivoglio and Dr Lyons when the question concerning causation of Mr Stanhope’s condition of bilateral carpal tunnel syndrome was being considered. It seems to be suggested, without being expressly stated, that the Arbitrator’s acceptance of that evidence has given rise to a further error, being one of fact, that the subject injury was causally related to the employment.
The written submissions include a criticism of the history as recorded by Dr Bentivoglio and that as recorded by Dr Lyons. There is no matter of principle identified by the appellant arising from the decision in Makita. It may safely be assumed that the appellant was placing reliance upon those matters discussed in detail by Heydon JA (as he then was) concerning the admissibility of expert evidence. As was pointed out by Beazley JA in Hancock v East Coast Timber Pty Ltd [2011] NSWCA 11; 8 DDCR 399 (at [83]), the Commission is not bound by the rules of evidence, thus:
“In the case of a non-evidence-based jurisdiction such as here, the question of the acceptability of expert evidence will not be one of admissibility but of weight. This was made apparent in Brambles Industries Ltd v Bell (2010) 8 DDCR 111 at [19] per Hodgson JA.”
The Arbitrator addressed the evidence of Dr Bentivoglio at [29] and [30] of her Reasons. The appellant argues that Dr Bentivoglio “does not explain why it is that the respondent only first noticed symptoms in his hands (initially his right hand only) ‘just prior to September 2009’, and not at some other point in time during the 29 years of performing the above activities”. I have reached the view that the appellant’s summary of Dr Bentivoglio’s evidence is misleading. I reject the suggestion made in submissions that Dr Bentivoglio “took an extremely limited history of the work activities of [Mr Stanhope]”. Dr Bentivoglio has recorded, a matter not acknowledged in submissions, that Mr Stanhope “felt that his symptoms came on as a result of his work activities. At the time of the onset of his symptoms he was recycling star posts, using a 1.5 kg hammer”. That history is generally consistent with the evidence of Mr Stanhope as found in his statement. It is significant that the Arbitrator, in the course of her Reasons, rejected the appellant’s criticism concerning the evidence of Dr Bentivoglio (at [37]) and stated immediately thereafter (at [38]):
“[Mr Stanhope’s] statement is detailed and thorough. Although he describes a variety of duties he performed over the years, it is clear that his duties over the past six years, as he described them, involved repetitive and forceful use of his hands, particularly the fencing work. This is consistent with his history to Dr McCroary on his initial visit where he recorded that [Mr Stanhope] performed ‘lots of shovelling, hammer, pipes at work and fencing.’ It is also consistent with the description he gave in his claim form”.
The appellant’s criticism of the evidence of Dr Lyons appears to be founded upon a suggestion that Dr Lyons had placed reliance upon “a different history” to that of Dr Bentivoglio. That suggestion must be rejected. It is clear that Dr Lyons placed particular emphasis upon the history which he took concerning Mr Stanhope’s involvement in “undertaking heavy percussive activity with a large sledgehammer placing star posts in the ground”. Such history is consistent with matters recorded by Dr Bentivoglio and those matters found in the statement made by Mr Stanhope.
The Arbitrator addresses the evidence of Dr Stapleton between [39] and [45] of her Reasons. The appellant complains of error on the part of the Arbitrator “in applying Makita to reduce the value of the opinion of Dr Stapleton”. That argument must be rejected given the clear statement made by the Arbitrator concerning the absence in Dr Stapleton’s evidence of any detail of the “knowledge” concerning carpal tunnel syndrome which he asserts dispels any suggestion of a relationship between the condition diagnosed, work activities and trauma in general. The Arbitrator also highlights an apparent contradiction in Dr Stapleton’s evidence concerning his apparent acceptance of a possible relationship between trauma caused by percussion activities and causation of injury (at [39] and [40] of Reasons).
It was open to the Arbitrator, in my view, to accept the evidence of Dr Lyons and Dr Bentivoglio in preference to that of Dr Stapleton. The Arbitrator has made an evaluation of the weight of the evidence of each of those expert witnesses and has stated her reasons for her preference. In the circumstances I conclude that no relevant error has been demonstrated by those arguments advanced by the appellant and this ground must fail. Notwithstanding the error earlier identified concerning failure to remit the matter to the Registrar for referral, I am of the view that the Arbitrator’s finding concerning the occurrence of injury was properly made and may stand.

Ground “b”

Complaint is made by the appellant that the Arbitrator “failed to consider the fact that [Mr Stanhope’s] initial complaints in September 2009 were confined to his right hand only and that there was no complaint of left hand symptoms to be found in the Register of Injuries dated 11 September 2009”. The state of the evidence is such that, it is argued, an error of fact is demonstrated by the Arbitrator’s conclusion that injury being bilateral carpal tunnel injury had been received.
There can be no doubt that the evidence suggests that Mr Stanhope’s initial complaints to his general practitioner concerned pain and discomfort in his right wrist and that initial treatment was focussed upon pain and disability experienced in his right hand. It is also clear that Mr Stanhope continued to attend work performing his normal duties before being referred to Dr Rail for investigation. That referral occurred on 22 September 2009 at which time Dr McCroary wrote to Dr Rail requesting nerve conduction studies with a diagnosis of “?Bilat CTS”. A similar diagnosis, omitting the question mark, was included in correspondence forwarded by Dr McCroary to a physiotherapist, Mr Chau, on that day. The evidence establishes that the investigations confirmed the existence of bilateral carpal tunnel syndrome.
The Arbitrator acknowledged the appellant’s argument concerning the suggested insufficiency of evidence concerning injury to the left wrist at [43] of Reasons. It is there that reference is made to Mr Stanhope’s claim seeking compensation benefits which I have noted at [25] above. The Arbitrator’s acceptance of the expert evidence concerning the occurrence of bilateral carpal tunnel syndrome was open to her on the evidence. The evidence accepted by the Arbitrator included that of Dr McCroary who initially recorded a confirmed diagnosis of bilateral carpal tunnel syndrome during a consultation occurring on 12 November 2009. The arguments raised by the appellant under ground “b” should be rejected.

Grounds “c” and “d”

The appellant addresses both grounds “c” and “d” jointly without distinguishing, or indeed clearly identifying, the matters complained of in each ground. Both “grounds” are concerned with the Arbitrator’s reasoning concerning the question of “date of injury”.
Ground “c”, as earlier noted, suggests error in failing to “properly consider” whether the date of injury alleged in the application (1 September 2009) “had been made out”.
Ground “d” suggests error in determining a date of injury being one “not relied upon or asserted” by Mr Stanhope.
Before attempting a consideration of matters raised by the appellant it is important, in my view, to note the following matters:
(a) whilst Mr Stanhope alleges that his injury involves the concept of disease as is addressed in s 4 of the 1987 Act, nowhere is it expressly stated, either in the Application, correspondence, evidence or submissions put on his behalf, either before the Arbitrator or on this appeal, which of s 4(b)(i) or s 4(b)(ii) is relied upon;
(b)     the description of injury alleged as it appears at Pt 4 of the Application suggests that Mr Stanhope has suffered an injury being aggravation of an “underlying disease condition”;
(c) an assumption has been made by the appellant that s 16 of the 1987 Act is relevant to the claim (per counsel at T12);
(d)     Mr Stanhope did not challenge that assumption;
(e) the Arbitrator has treated the allegation of injury as being one within the meaning of s 4(b)(ii) (Reasons at [44]);
(f)      the Arbitrator has made no finding as to date of injury (Reasons at [48]), and
(g)     the deemed date of injury as particularised in Mr Stanhope’s Application is 1 September 2009.
The appellant asserts that “the case presented by [Mr Stanhope] in the pleadings and at arbitration was clearly pursuant to s 16”. That statement infers that the injury alleged was one falling within the meaning of s 4(b)(ii). That assumption was made at the hearing and was made by the Arbitrator in the course of her Reasons.
The appellant’s argument seems to suggest that the Arbitrator’s findings “regarding ‘injury’ are contrary to both those pleaded in [the Application] and the submissions by [Mr Stanhope’s] counsel at arbitration”. It is further argued that such findings “amount to a denial of procedural fairness”. Those suggested findings are not identified.
The appellant proceeds to argue that the Arbitrator was bound to “simply [find] that [Mr Stanhope] could not establish an injury on 1 September 2009 as alleged, and enter an award in favour of the employer”.
The appellant in an earlier submission argued that the Arbitrator’s refusal to make a finding “of a date of injury in accordance with s 16(1)” constitutes an error of law. I have some difficulty reconciling these arguments and shall deal with them separately.
Upon an acceptance that the injury alleged was one as defined in s 4(b)(ii), namely the aggravation etc of a disease, a proper determination of the appellant’s liability or otherwise to pay the compensation claimed required the Arbitrator to address all questions “posed by the statute” (per Mahoney A-P in Crisp v Chapman (1994) 10 NSWCCR 492 at 498). Included among those questions was not only whether Mr Stanhope received injury but if so, also, the date of such injury.
I am of the opinion that the Arbitrator’s failure to make a finding as to the date of injury constitutes an error of law. Having accepted the evidence presented by Mr Stanhope concerning the existence of a disease which had been relevantly aggravated by performance of his work duties it was necessary, to ensure that all “questions posed by the statute” were addressed, to consider the relevant facts as found and reach a conclusion as to the date of injury. It is only upon such a finding that a determination of the appellant’s liability, or otherwise, could be made. I reject the suggestion made by the appellant that the Arbitrator was bound to either find injury to have occurred on the date particularised, or otherwise enter an award for the appellant.
Once the finding of injury was made, the task remaining before the Commission was to determine all facts relevant to the question of the date of injury and to apply the provisions of s 16 to ascertain that date. That section provides relevantly:
“16 Aggravation etc of diseases – employer liable, date of injury etc
(1)    If an injury consists in the aggravation, acceleration, exacerbation or deterioration of a disease:
(a)     the injury shall, for the purposes of this Act, be deemed to have happened:
(i)      at the time of the worker’s death or incapacity, or
(ii)  if death or incapacity has not resulted from the injury—at the time the worker makes a claim for compensation with respect to the injury, and
(b)  compensation is payable by the employer who last employed the worker in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration.”
In the present circumstances I consider it appropriate, and in accordance with legislative intent, that a determination of the date of injury be made on this appeal.
The injury has not resulted in death, nor is there any evidence before the Commission of relevant incapacity, that is, there is no evidence that any physical incapacity has resulted in “some loss of wages” as addressed by Hodgson JA in P&O Berkeley Challenge Pty Ltd v Alfonzo [2000] NSWCA 214; 49 NSWLR 481 at 93.
The Arbitrator was correct when the observation was made (at [49] of Reasons) that “it is arguable that the deemed date of injury should be the date [Mr Stanhope] apparently made a claim for compensation”. The evidence establishes, and I find on this appeal, that a claim for compensation with respect to the injury within the meaning of s 16(1)(a)(ii) was made on 10 February 2010. The injury giving rise to that claim has not resulted in death or incapacity, thus the date of injury is to be determined by reference to the provisions of that last mentioned sub-subsection. I find the deemed date of injury to be 10 February 2010.

CONCLUSION

For the reasons outlined above I conclude that the Arbitrator’s determination concerning the occurrence of injury should be confirmed.
Those determinations made by the Arbitrator being that the proposed treatment was as a result of the injury, and that it was reasonably necessary, were made without jurisdiction, were void and of no effect. The relevant findings and orders made in her determination should be revoked.
An order on this appeal should be made remitting the matter to the Registrar to permit appropriate referral to an AMS.
The appeal has been upheld in part. In the circumstances it is appropriate that the costs order made by the Arbitrator be revoked. The question as to Mr Stanhope’s entitlement to costs of the arbitration hearing may be revisited by the Senior Arbitrator following issue of the MAC by an AMS.

ORDERS

The findings made by the Senior Arbitrator in paragraph one of her Certificate of Determination dated 6 March 2012 are confirmed.
The findings and orders made in paragraphs two, three, four and five of the Certificate of Determination dated 6 March 2012 are revoked.
The Certificate of Determination is further amended to provide:
“2. The deemed date of injury is 10 February 2010.
3. The matter is remitted to the Registrar for referral to an Approved Medical Specialist in accordance with s 60(5) of the Workers Compensation Act 1987 for the purpose of an assessment under Pt 7 (Medical Assessment) of Ch 7 of the Workplace Injury Management and Workers Compensation Act 1998.
4. The Application is to be relisted before the Senior Arbitrator for determination of outstanding matters following issue of the Approved Medical Specialist’s Medical Assessment Certificate.

COSTS

No order as to costs of the appeal.

Kevin O'Grady

Deputy President
15 June 2012

I, PENELOPE FLEMING, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O'GRADY, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE