Kempsey Shire Council v Kirkman - [2010] NSWWCCPD 104

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Kempsey Shire Council v Kirkman [2010] NSWWCCPD 104
APPELLANT:		Kempsey Shire Council
RESPONDENT:		Anthony Paul Kirkman
INSURER:		StateCover Mutual Limited
FILE NUMBER:		A1-1961/10
ARBITRATOR:	Mr P Theobald
DATE OF ARBITRATOR’S DECISION:		15 June 2010
DATE OF APPEAL DECISION:		28 September 2010
SUBJECT MATTER OF DECISION:		Issues in dispute; whether notice under s 74 of the Workplace Injury Management and Workers Compensation Act 1998 disputed injury; relevance of prior symptoms; nature of the injury; causation; worker’s condition exacerbated by surgery for suspected hernia; no hernia found at surgery; application of principles in Mahony v J Kruschich (Demolitions) Pty Ltd [1985] HCA 37; 156 CLR 522; weekly compensation; exercise of discretion; s 40(1) of the Workers Compensation Act 1987
PRESIDENTIAL MEMBER:		Deputy President Bill Roche
HEARING:		On the papers
REPRESENTATION:		Appellant:	Hicksons
Respondent:		White Barnes
ORDERS MADE ON APPEAL:		Paragraphs 1, 2, 3, 4, 5, 6, 8, 9 and 10 of the Certificate of Determination of 15 June 2010 are confirmed. Paragraph 7 is revoked and the following order made in its place: “7. That the respondent pay the applicant’s hospital and medical expenses under s 60 of the Workers Compensation Act 1987, upon production of accounts or receipts.”
The appellant employer is to pay the respondent worker’s costs of the appeal, as agreed or assessed.

BACKGROUND

The respondent worker, Mr Kirkman, started work with the appellant employer, Kempsey Shire Council (the Council), in March 2001. He alleges that he injured his groin or lower abdomen whilst lifting or dragging a concrete manhole cover with a co-worker on 20 June 2006. He remained at work until 27 June 2006, when he saw a locum at his local general practitioner’s practice who certified him unfit for work.
An ultrasound revealed a small, right-sided, inguinal hernia.
After having various periods either off work or on suitable duties, Mr Kirkman underwent surgery for his condition on 12 March 2007. He ultimately returned to suitable duties in May 2007, but continued to have pain, and ceased work again in June 2007.
Mr Kirkman returned to work on suitable duties between July 2007 and January 2008, when he was ultimately certified fit for work without restriction. The Council made his position redundant on 26 February 2008.
Though it is unclear from the evidence, it seems that the Council’s insurer, StateCover Mutual Limited (StateCover), initially accepted Mr Kirkman’s claim and paid for Mr Kirkman’s time off work and hospital and medical expenses until it denied liability in a s 74 notice dated 29 September 2008. StateCover disputed liability on the following grounds:
“ – We do not believe your ongoing right-sided groin symptoms are work-related.
– We do not believe your current right-sided groin symptoms/injury is related to your employment with Kempsey Council.
– We do not believe the proposed medical treatment by Dr Russo is considered reasonably necessary medical treatment.”
Mr Kirkman’s symptoms continued and, on 14 October 2009, he claimed lump sum compensation in respect of a five per cent whole person impairment as a result of injury. StateCover disputed liability for that claim in a s 74 notice dated 11 February 2010 in the same terms as the earlier notice dated 29 September 2008.
In an Application to Resolve a Dispute (the Application) registered in the Commission on 11 March 2010, Mr Kirkman claimed weekly compensation from 26 February 2008 to date and continuing, hospital and medical expenses, and lump sum compensation in respect of a five per cent whole person impairment. The Council disputed liability on the grounds set out in its s 74 notice dated 29 September 2008.
The Commission listed the matter for conciliation and arbitration on 31 May 2010. On that day, each of the parties was legally represented. The matter proceeded with lengthy submissions, but the Arbitrator heard no oral evidence.
In a reserved decision delivered on 15 June 2010, the Arbitrator found that Mr Kirkman received an injury in the course of his employment on 20 June 2006 and that he was unfit for his pre-injury employment. The Commission issued a Certificate of Determination on 15 June 2010 in the following terms:

“The Commission determines:
1. That the respondent pay the applicant weekly compensation at the rate of $367.70 from 26 February 2008 to 31 March 2008 under s40 of the Workers Compensation Act 1987.
2. That the respondent pay the applicant weekly compensation at the rate of $374.90 from 1 April 2008 to 30 September 2008 under s40 of the Workers Compensation Act 1987.
3. That the respondent pay the applicant weekly compensation at the rate of $381.40 from 1 October 2008 to 31 March 2009 under s40 of the Workers Compensation31 March 2009 Act 1987.
4. That the respondent pay the applicant weekly compensation at the rate of $389.10 from 1 April 2009 to 30 September 2009 under s40 of the Workers Compensation Act 1987.
5. That the respondent pay the applicant weekly compensation at the rate of $396.10 from 1 October 2009 to 31 March 2010 under s40 of the Workers Compensation Act 1987.
6. That the respondent pay the applicant weekly compensation at the rate of $403.70 from 1 April 2010 to date and continuing under s40 of the Workers Compensation Act 1987.
7. That the respondent pay the applicant’s expenses under section 60 of the Workers Compensation Act 1987 for treatment proposed by Dr Russo in his report of 9 April 2008 on production of accounts or receipts.
8. That the application for lump sum compensation for whole person impairment be dismissed with liberty to apply again upon completion of treatment proposed by Dr Russo or evidence of condition being stable.
9. That the costs of both the applicant and respondent be subject to an uplift of 20% for complexity.
10.That the respondent pay the applicant’s costs as agreed or assessed.”

In an appeal filed on 13 July 2010, the Council seeks leave to challenge the Arbitrator’s determination.

LEAVE TO APPEAL

Monetary threshold

Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of s 352 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).

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

Time

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

I grant leave to appeal.

ON THE PAPERS

Section 354(6) of the 1998 Act provides:

“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”

Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.

THE EVIDENCE

Mr Kirkman

Mr Kirkman’s evidence, set out in six separate statements, may be summarised as follows:
(a)     he started work with the Council as a casual water and sewer attendant in March 2001. Some time later, he became permanent. Prior to June 2006, he had no problems with his lower abdomen and was “functioning perfectly normally”;
(b)     on Wednesday 20 June 2006, he lifted a heavy concrete manhole cover with a co-worker and, about half-an-hour later, on his way home, he started to suffer from pain in his lower abdomen. He performed light work the next day and did not work on the Friday because it was a rostered day off. His pain continued over the weekend. He was able to cope with his duties on the following Monday and Tuesday, as they were not hard. However, his work on Wednesday 27 June 2006 was “heavy” and he “suffered a great deal of difficulty doing work and simply could not do it”. He told his ganger and saw a locum at his general practitioner’s practice. He was referred to hospital for an injection and certified unfit for the balance of the week;
(c)     the following week, his regular general practitioner, Dr Appleton, referred him for an ultrasound, which revealed a right-sided inguinal hernia. He was then referred to Dr Llewellyn, another general practitioner;
(d)     Mr Kirkman ultimately returned to work on suitable duties in October 2006 and continued those duties until he stopped work on 27 December 2006 because of (unrelated) stress;
(e)     he returned to work on suitable duties on 5 January 2007 and remained on those duties until Dr Hodge operated on his right groin on 12 March 2007. Following surgery, he remained off work until he returned to work on light duties on 18 May 2007. Those duties included painting guideposts and putting up signs. He had “further problems” and went off work on 25 June 2007 with a recurrence of pain;
(f)   he returned to work on suitable duties on 24 July 2007, initially working in the library for four hours per day three days per week for approximately three to four months, and then counting traffic and painting asbestos pipes;
(g)     Dr Uddin, general practitioner, certified Mr Kirkman fit for his pre-injury duties on 22 November 2007, but with a lifting restriction of 20 kg. As a result of being “pressured” by the worker, Dr Uddin lifted that restriction on 23 January 2008 “somewhat reluctantly” because the worker was worried about losing his job;
(h)     on 26 February 2008, the worker was “made redundant”;
(i)   in the period from 23 January 2008 until 26 February 2008, Mr Kirkman did “civic maintenance work”, which was the same work he had done whilst “on restrictions”. He had discussed returning to heavier work (such as concreting), but that never happened, and
(j)   since leaving the Council, Mr Kirkman has worked intermittently doing “wheelbarrow work” for Grant Snowden, for which he was paid $525 for 2.5 days work in July 2008. He has also worked as a “concreter carpenter” for two days for Thomas McKernan, for which he was paid $300. He said in his statement of 4 June 2009 that he was “too sore to continue” that work. He also performed further work for Grant Snowden for about six weeks in the 12 months up to June 2009, for which he was paid $150 per day. In August 2009, he drove a truck for 2–2.5 weeks, and was paid “about $2,500”. He continues to suffer from a “dull pain” in his right testis, which increases with activity.

Medical evidence

Mr Kirkman underwent an abdominal and groin ultrasound on 3 July 2006, which revealed a small defect of approximately 6 mm “in the abdominal wall at the proximal aspect of the right inguinal canal”.
On referral from his general practitioner, Mr Kirkman saw Dr Hodge, general and colorectal surgeon, on 15 August 2006. Dr Hodge took a history that Mr Kirkman felt discomfort in his right groin whilst lifting at work on 20 June 2006. He had further pain the following day and worked on light duties for several days with minor discomfort. He then had several days off, but, on returning to work, had continued tenderness in his right groin region. Mr Kirkman described “minor discomfort” and a feeling as if “his right side is falling out”. He felt constantly uncomfortable in that region and had pain with movement and coughing.
An ultrasound “demonstrated a small defect consistent with a very small inguinal hernia”, which Dr Hodge added was “really only evident on Valsalva and could well be a non-significant finding”.
On examination, Mr Kirkman constantly held his right side above the inguinal canal. His abdomen was soft and non-tender. Examination of the inguinal region did not reveal any cough impulses or lumps. Whilst Dr Hodge conceded that the ultrasound was “suggestive of a very small hernia”, he noted that Mr Kirkman’s symptoms were “far greater than one would expect with an ultrasound and diagnosis in this circumstance”. He concluded:
“I injected the ileoinguinal [sic] nerve with some local anaesthetic and steroid as he undoubtedly has some form of strain in the groin region. I am going to see him again in two weeks to see if this helps settle his symptoms down.”
At review on 29 August 2006, Mr Kirkman was “somewhat better” after the injection, which “would be consistent with a strain in his groin”. However, Mr Kirkman still had symptoms and was “unable to work adequately”. Dr Hodge therefore suggested a further injection of steroid, but Mr Kirkman declined because of the discomfort of the injection. Dr Hodge prescribed Brufen.
After Mr Kirkman’s return to work in October 2006, Dr Hodge reviewed him on 23 October 2006. The worker said he had trouble getting in and out of a car multiple times each day because of pain in his right groin. Mr Kirkman had been feeling generally better and played touch football on two occasions in the previous week. He was slightly tender after the match, but generally not too bad. He found that rest made him feel better, but he still had a “continuing low grade discomfort”. Dr Hodge was unable to identify any obvious hernia in the right groin.
Dr Llewellyn, a general practitioner to whom the Council referred Mr Kirkman, reported to Dr Hodge on 30 October 2006 that Mr Kirkman had had an increase in pain, resulting in the need for restricted duties. Though he felt that the ultrasound was “more impressive than the clinical signs”, he felt that the worker would “require repair in the short term”.
Dr Hodge reviewed the worker on 12 December 2006 and noted that he was “essentially getting a lot better”. Mr Kirkman still had discomfort, but described “episodes of sharp pain lasting only a few seconds which may occur several times a day”, but, on some days, he had no pain at all and he was coping with his “current work schedule”. He had not returned to his sport. At work, he spent a lot of time getting in and out of plant equipment and Dr Hodge could see no problem with him continuing that type of work. On examination, there was mild tenderness in the inguinal region, but nothing to suggest a “hernia development”.
A further ultrasound on 24 January 2007 failed to demonstrate a hernia, but there were multiple small lymph nodes in the groin.
In response to a letter from StateCover dated 1 February 2007 requesting a diagnosis following the ultrasound, Dr Llewellyn replied that the diagnosis was “regional lymphopathy [sic]”, which was not work-related. He added that it was “not uncommon” for one ultrasound to show a hernia and for a subsequent scan to be clear. He still felt that Mr Kirkman’s “symptoms reflect [an] inguinal hernia”.
Dr Hodge reviewed Mr Kirkman on 8 February 2007 and reported to Dr Llewellyn on that day. The worker’s symptoms appeared to “continue unchanged”. With rest, he was a lot better, but his pain recurred with work. On examination, Dr Hodge noted:
“a tender area over Hasselback’s [sic, Hesselbach’s] triangle on the right side. There is certainly a more pronounced bulge in this region on the right than the left, consistent with certainly some weakness at the point of the direct hernia, but certainly no absolute hernia has developed at this point.”
In terms of future treatment, Dr Hodge noted that (a group of) patients with Mr Kirkman’s symptoms benefited from “reinforcement of the canal with mesh to alleviate the symptoms”. However, there was no guarantee that such a process would resolve Mr Kirkman’s pain, but there was a “reasonable chance” that it would be effective. Injections and rest had been unsuccessful.
Dr Hodge performed a right inguinal hernia repair on 12 March 2007. There was no hernia sac revealed at surgery and a “tensionless repair was performed”.
Dr Hodge reviewed the worker on 19 April 2007. Mr Kirkman still had some pain and there was a tender area around his pubic tubercle, but he generally had a lot less pain than prior to the surgery.
Dr Llewellyn stated in a handwritten note to StateCover on 3 May 2007 that there had been “gradual improvement” and reducing right groin pain.
StateCover wrote to Dr Llewellyn on 16 May 2007, stating that Mr Kirkman described a “burning sensation” and continuing pain. It asked the doctor if those symptoms continued to be “related to the hernia injury”. The doctor replied that “[t]his is related to the surgical repair”. Dr Llewellyn expected a full recovery, with a gradual return to work.
Dr Hodge reported on 14 June 2007 that Mr Kirkman had persisting inguinal pain. He suggested acupuncture and referred him to Mr Alan Tarlinton for that treatment.
A CT scan of the abdomen and pelvis on 26 July 2007 failed to reveal any recurrent hernia.
On 7 August 2007, StateCover asked Dr Llewellyn to specify “the cause of Mr Kirkman’s ongoing pain”. The doctor replied:
“Groin pain. Neuralgic component.
Diagnosis is uncertain.”
Dr Llewellyn recommended a review by Dr Hodge. That review took place on 23 August 2007, when Dr Hodge stated that various treatment methods had failed to relieve Mr Kirkman’s pain. He referred him to the Hunter Pain Clinic and gave him a trial of Epilim.
Dr Uddin referred the worker to Dr Russo at the Hunter Pain Clinic on 22 February 2008. The referral letter stated that the worker had a long history of pain in the right lower abdomen and, on and off, in the right testis, following a right-sided inguinal hernia repair.
Dr Russo reported to Dr Uddin on 8 April 2008 that the worker had a “work-related accident in July 2006 when he lifted a heavy cement lid off the ground and developed a bulge present over the right inguinal region”. The bulge was painful and worse with exertion. After his operation, the worker noticed a new pain in the right testis, that is, a “right-sided orchialgia”. He described the new pain as a “constant, dull, aching pain” that was hypersensitive to touch. He had also noticed a loss of early morning erections since the initial injury in July 2006.
Psychometric testing revealed “fear avoidance thought processing and catastrophising [sic] in the presence of an underlying depression”. On examination, Mr Kirkman was tender to palpation over the exit point of the ilioinguinal nerve from the abdominal wall, as well as over the deep inguinal ring. He was also markedly tender to palpation of the testis, with “brush allodynia and punctate mechanical hyperalgesia being present”.
Dr Russo concluded that the worker presented with a combination of “inguinodynia and orchialgia which [was] most likely neuropathic in nature”.
Dr Russo reported to StateCover on 4 June 2008 that inguinodynia was Latin for pain in the groin and was “a description of a symptom as opposed to documentation of a pathological process”. He believed that the cause of the inguinodynia was “neuropathic pain involving the ilioinguinal nerve” and that the worker had “ilioinguinal neuralgia which occurred related to a lifting injury prior to his surgery specifically”. He said that orchialgia was pain in the testis and was a “description of a symptom rather than a description of a pathological process”. He believed that the orchialgia was a “referred pain arising from the ilioinguinal nerve”. On the question of causation, Dr Russo said:
“The initial work-related episode was lifting a heavy manual lid which led to a tear in the abdominal wall and development of an inguinal hernia. Unfortunately, not only can a hernia develop but the tear can involve disruption of blood supply to the inguinal nerve and even a traction injury to the inguinal nerve producing neuropathic pain arising from the inguinal nerve which then causes groin pain and/or testicular pain.”

Dr Russo also confirmed that the worker had developed a “reactive depression secondary to his persistent pain”. He felt it likely that he would need ongoing antidepressant medication for as long as his pain remained under “poor control”. He recommended pulsed radiofrequency neurotomy of the ilioinguinal nerve with local anaesthetic and steroid injection.
On 14 July 2008, Dr John O’Neill, consultant neurologist, examined Mr Kirkman on behalf of StateCover. In his report of 15 July 2008, Dr O’Neill took a history that the worker lifted a heavy manhole lid on or about 20 June 2006 and noticed “soreness” localised in his right groin region about an hour later. Mr Kirkman was adamant that the localised pain in his right groin was soon followed by an “ache” in his right testicle, with tenderness on palpation of the right testicle. He was adamant that this symptom developed before his surgery. He added that he got no benefit whatsoever from the operation. He said that he had been keen to get back to work but, when he goaded his doctor to give him a clearance, the Council retrenched him. He did a couple of days concreting for a friend, but the pain “was always worse the following day”.
On examination, Mr Kirkman walked with a slight limp, favouring his right leg, because of his pain. He was able to stand fully on the balls of both feet and heels. Low back movements were full and painless. Lower limb bulk, power and reflexes were normal, with both plantar responses flexor.
Dr O’Neill concluded:
“As far as I am concerned, there has been no demonstrable physical cause for Mr Kirkman’s continuing complaints. He never had clinical or clear radiological evidence of a hernia. Rightly or wrongly, the decision was made to proceed to right inguinal hernia surgery which appeared to have been uncomplicated and, in particular, at the time of surgery the right ilio-inguinal nerve was preserved.
Ilio-inguinal neuropathies are rare. Most patients complain of burning pain and numbness in the groin that may extend into the lower abdomen, upper thigh, symphysis pubis or scrotum. Symptoms may worsen on extension of the hip so that patients keep the hip flexed for comfort.
I do not believe that Mr Kirkman has any clinical evidence of an ilio-inguinal neuropathy. He does not complain of sensory symptoms and he has rather unusual and episodic pain. I would strongly disagree with Dr Russo that the pain is ‘most likely neuropathic in origin’.”
Dr O’Neill found no physical explanation for the continuing symptoms.
Because of acute pain in the left groin, Mr Kirkman underwent an ultrasound on 15 July 2008, which failed to reveal any direct or indirect inguinal hernia. With Valsalva manoeuvre, there was a small reducible left femoral hernia.
Dr Edwards, surgeon, examined and reported on Mr Kirkman at the request of StateCover on 28 August 2008. He took a history that the worker “felt a little twinge” in his right inguinal region as he and another worker dragged a manhole cover six metres at work on 20 June 2006. He said that it did not worry him at the time, but, when he was driving home 30 minutes later, he noticed “some soreness and stiffness” in the right inguinal region. Whilst he returned to work the following day, he only did paperwork. He thought he had suffered a groin strain, something he had suffered before whilst playing touch football. The pain increased the following week and he saw a doctor for treatment.
Mr Kirkman told Dr Edwards that his symptoms in late 2006 were “blunt pain” in the right inguinal region, as well as a “burn” which went to the base of the penis and to the right testicle. Getting in and out of a truck 20 times a day aggravated his pain. The “twisting, turning, bending” also caused him problems. Contrary to the history recorded by Dr Hodge, Mr Kirkman said that he had not played touch football since June 2006. He smoked 20 cigarettes a day and drank 15–20 schooners each day. He complained to Dr Edwards of a “blunt pain” in his right groin that was constant and varied in severity. It increased with movement, for example, getting out of a chair. He also complained of an ache in the right testicle. He said that he was depressed and that, 15 months previously, Dr Llewellyn had referred him to a mental health clinic. He was not happy with the interview process and had not returned. Acupuncture had not helped his symptoms. He said that he could not do much because, every time he started to do something, it started hurting.
On examination, Mr Kirkman walked with a limp, favouring his right leg, and held his right groin with his right hand and grunted. Both hands showed marked callus formation and skin thickening, consistent with “considerable recent manual work”. Mr Kirkman complained of general tenderness over the inguinal canal, but there was no tenderness at the pubic tubercle. The tenderness was not present when the worker’s attention was distracted. Coughing did not cause any discomfort. When attempting to sit up with his hands behind his head, Mr Kirkman complained of pain at the internal inguinal ring region. He was able to straight leg raise without difficulty, but complained of discomfort at the extreme of straight leg raising on the right.
Dr Edwards concluded that the incident at work on 20 June 2006 did not appear to have been of great significance and was “unlikely to have caused his current complaints”. It did not appear that Mr Kirkman had suffered an inguinal hernia. Mr Kirkman’s assertion that he had not worked since February 2008 was inconsistent with the callus formation and skin thickening on his hands. The worker’s presentation suggested “exaggeration or fabrication”, and Dr Edwards was not convinced that his disability was as great as he attempted to indicate. There was no convincing evidence of any organic condition on examination. The question of post-operative nerve entrapment did not arise because Mr Kirkman did not have any sensory deficit or hyperaesthesia in the distribution of the relevant nerve.
The worker’s complaint of tenderness on palpation over the deep inguinal ring region was inconsistent and not present when his attention was distracted. The worker’s symptoms and physical signs were not “convincing enough to diagnose an ilioinguinal neuropathy”. Dr Edwards did not believe that employment with the Council was a substantial contributing factor to the worker’s “initial complaint”, and nor was it a “contributing factor to his current complaints”. The doctor felt that there may have been “motivational factors” involved, but that should be assessed by a psychiatrist. Mr Kirkman’s complaints were not related to the “mesh repair carried out by Dr Hodge”. The complaints were present prior to the operation and were unchanged after it. In view of the complaints of depression, an assessment by a psychiatrist may be indicated.
Dr O’Neill provided a supplementary report on 23 September 2008 in which he stated that Mr Kirkman’s employment had not been a substantial contributing factor to the initial injury and was not a contributing factor to any incapacity.
After a fall from a motor bike in November 2008, Mr Kirkman underwent an abdominal ultrasound on 13 November 2008 because of pain in his left lower chest wall. The scan revealed a small bony defect over the ninth rib that may have represented a fracture.
An ultrasound of both groins on 14 January 2009 confirmed the previous hernia repair on the right side, but no evidence of any recurrent hernia on that side and no evidence of any hernia on the left side. The previously identified small hernia on the left side was not visualised.
Dr Russo saw the worker again on 20 May 2009 and reported to Dr Uddin on that date. A trial of Norspan with Epilim gave no appreciable relief of the worker’s symptoms and Dr Russo stopped that medication. He concluded that the worker’s pain was a “direct causal outcome from his hernia surgery which itself was an accepted condition via StateCover”.
At the request of the worker’s solicitor, Dr O’Sullivan, neurologist, examined the worker on 30 September 2009. In his report of 6 October 2009, Dr O’Sullivan recorded that, before his injury, Mr Kirkman had been in excellent health, working as a construction worker doing pipe-laying and concreting, and also played touch football twice per week. He had no previous illnesses or injuries. Since leaving school at the age of 15, Mr Kirkman had worked as a builder’s labourer, bricklayer, sheet metal worker and tradesman’s assistant. He initially worked as a concreter for the Council and then as a water and sewerage attendant in the construction team, which involved heavy work.
In respect of the injury on 20 June 2006, Dr O’Sullivan recorded that the worker felt a pain or twinge in his right groin and in the inner thigh whilst dragging a manhole lid across the ground with a co-worker. About half-an-hour later, when driving back to the yard, he felt stiffness in his right groin. After setting out the further history of the worker’s treatment, Dr O’Sullivan noted that the worker had not been able to work full-time since his injury. If he walked 100 metres, he developed severe pain in the right groin and testicle, and then developed a limp. He had been able to work for a few hours on occasions. Coughing and straining made his symptoms worse. Those symptoms were pain in the right groin, which was, at times, quite severe. He also had a constant gnawing ache in the right testicle. He complained of an impaired sexual function.
On examination, Dr O’Sullivan noted that there was no sensory loss. The worker was very tender over the right inguinal region, as well as the right scrotal region. He walked with a slight limp. Dr O’Sullivan made no specific neurological diagnosis and did not believe the worker was suffering from neuropathic pain. He suspected that the worker had sustained a “mild right groin strain initially” and that his ongoing symptoms were probably related to “the persistence of that right groin strain, rather than to any other neuropathic or neurological problem”. He felt that there was no doubt that the worker’s persistent symptoms were disabling and it appeared that he developed his right groin pain “secondary to working for Kempsey Shire Council”, as there did not appear to be any other history to indicate any other cause. He did not think the worker was fit for heavy manual work, but, with a rehabilitation and retraining program, he might become suitable for other, more sedentary, occupations. The prognosis was guarded because it was three years since the original injury and the worker still had persistent symptoms. Because of his injury, the worker had a five per cent whole person impairment.
In a supplementary report dated 26 October 2009, Dr O’Sullivan stated that the worker’s complaint that he had pain as soon as he started any form of exercise, be it at work or otherwise, and that the pain continued to increase as long as he continued doing any form of exercise, was consistent with the right groin strain that he had sustained.
StateCover wrote to Dr O’Sullivan on 27 October 2009 with a series of questions. The doctor responded on 9 November 2009 as follows:
(a)     in his expertise as a neurologist, he would only be able to diagnose a groin strain and not a palpable hernia. After reviewing Dr Hodge’s reports, he stated that it was clear that the worker had only suffered a groin strain and that his ongoing symptoms were “not work-related”;
(b)     he could find no neurological abnormality in Mr Kirkman;
(c)     on reviewing Dr Hodge’s reports, it was clear that Mr Kirkman never had a hernia and his employment with the Council was not a “substantial contributing factor to Mr Kirkman’s ongoing alleged symptoms, current and ongoing incapacity”. He concluded that there had to be some “psychological factors contributing to his ongoing alleged symptoms”, and
(d)     he agreed with the conclusions in Dr Edwards’s report of 28 August 2008. He emphasised that employment with the Council was not a contributing factor to the worker’s current complaints.
Dr Russo reported to White Barnes on 21 January 2010 that Mr Kirkman was suffering from “ongoing pain in the right groin and right testicle” which seemed “neuropathic in nature”. Whether or not Mr Kirkman suffered from an inguinal hernia, he had surgery for that condition and “surgery in the area subsequently led to his current pain problem”. Therefore, Dr Russo found it hard to see the relevance of whether or not Mr Kirkman initially suffered from an inguinal hernia. On the question of fitness for work, the doctor said that the worker was “still struggling with pain” and was still “unable to work secondary to pain”. He recommended the treatment that he originally prescribed, namely, pulsed radiofrequency and injection of the ilioinguinal nerve and, possibly, other treatments, depending on the success of the initial therapy. In respect of Dr O’Neill’s report, Dr Russo was astonished that Dr O’Neill did not perform a sensory examination of the area. A sensory examination was crucial in establishing the likelihood or otherwise of neuropathic pain. Such pain in the groin region following hernia surgery was something that he saw a lot of.
Dr O’Neill reviewed the worker on 29 March 2010 and reported to StateCover on 30 March 2010. In addition to the symptoms he complained of in July 2008, Mr Kirkman said that, on two or three occasions each day, without provocation, he could experience “a burn down the right side of the (groin) scar into the testicle liking slipping a strand of hot copper wire down the nerve”. The burning sensation could last for as long as 15 to 20 minutes. The worker added that the symptoms he described to Dr O’Neill in July 2008 could be provoked by attempting physical exercise, though he had not attempted paid physical work for at least 15 months. In respect of Dr Russo’s criticism, he said that Mr Kirkman made no complaint of any sensory symptoms in July 2008 and that that remained the case in March 2010. At examination on this occasion, Mr Kirkman said that his sensation was equal over both groins, both testes and both upper medial thighs. Dr O’Neill concluded:
(a)     the worker had not demonstrated inconsistencies in presentation on the two occasions that he saw him;
(b)     the worker never had a right inguinal hernia and it could be argued that surgery for a purported right inguinal hernia should never have taken place. He (Dr O’Neill) was no expert in pain complaints following inguinal hernia surgery, but he knew doctors often surmised that continuing pain might relate to injury to the nerves, such as the ilioinguinal nerve, and that was Dr Russo’s argument. His understanding of ilioinguinal neuropathy was that symptoms should be persistent, rather than intermittent, and he would certainly not label Mr Kirkman’s pain as neuropathic. He did not know the mechanism for the continuing intermittent pain;
(c)     the worker’s employment “was a substantial contributing factor to the original right groin pain”;
(d)     as he did not know the mechanism for the worker’s continuing pain complaints, he could not give an answer as to whether employment was a continuing factor to the continuing incapacity. It was true, however, that the worker’s current complaints dated from around the time of the right inguinal surgery and that, rightly or wrongly, the right inguinal surgery was undertaken for the original work-related right groin pain;
(e)     he could not exclude the possibility that psychological factors might be contributing to the worker’s pain complaints, and
(f)   without a precise diagnosis as to the mechanism for continuing symptoms, he could not give a sensible answer to the worker’s capacity and fitness for pre-injury or suitable duties.
Dr Russo reported again on 13 May 2010 that:
(a)     the worker’s condition was one of ilioinguinal neuropathy, despite the symptoms not being persistent;
(b)     the treatment he proposed and the incapacity for employment related to the original injury and medical treatment undertaken as a result since that time;
(c)     his proposed further treatment had a “better than 50% success rate”, and
(d)     it was highly unlikely that the worker’s condition would be worsened by the proposed treatment.

THE ARBITRATOR’S REASONS

In a Statement of Reasons (Reasons) delivered on 15 June 2010, the Arbitrator stated:
(a)     the parties agreed that the issues in dispute were liability (s 4), weekly compensation (s 40), and liability for medical expenses (s 60);
(b)     there was no issue that Mr Kirkman had received an injury on 20 June 2006 (Reasons at [17]);
(c)     Mr Kirkman was asymptomatic in the groin area prior to the injury and he suffered pain in that area following the injury. As Mr Kirkman continued to suffer pain which could be “traced back to either the injury or to the treatment received for the injury”, the Arbitrator found that the worker had been injured in the course of his employment and that his employment had been a substantial contributing factor to the injury (Reasons at [30]);
(d)     based on the reports from Drs Hodge, Russo, O’Sullivan and O’Neill as to the consistency of his presentation, Mr Kirkman was a person of credit;
(e)     whilst working for Mr Snowden during March, April and May 2009, Mr Kirkman earned $1,540 or approximately $130 per week;
(f)   Mr Kirkman was not able to work unrestricted for a full week. Intermittency of employment would be a significant feature in the worker’s ability to engage in suitable work. The worker’s age (47) was a hindrance when competing with people much younger. The worker’s current condition adversely affected his ability to obtain suitable work;
(g)     he accepted the submission that there was no evidence to find that Mr Kirkman was working “to his full capacity but rather he was supplementing his benefit payments”;
(h)     he was satisfied that Mr Kirkman would be able to work for 20 hours per week and earn, in the labour market reasonably accessible to him, $250 per week;
(i)   probable earnings but for the injury were $730 per week;
(j) the difference between probable earnings and Mr Kirkman’s ability to earn was $480 per week. There was no basis upon which to reduce that amount in the exercise of the discretion in s 40(1) of the Workers Compensation Act 1987 (the 1987 Act);
(k)     on the balance of probabilities, it was better for Mr Kirkman to have the treatment recommended by Dr Russo, rather than not to have it. The Arbitrator therefore intended to make a general order with respect to medical expenses, and
(l)   as Mr Kirkman required further treatment, the Arbitrator was not satisfied that his condition had stabilised, and he therefore dismissed the claim for whole person impairment.

ISSUES IN DISPUTE ON APPEAL

The issues in dispute in the appeal are whether the Arbitrator erred in:

(a) misdirecting himself that there was no issue that the worker had sustained an injury on 20 June 2006 (issues in dispute);
(b) misdirecting himself that the worker was asymptomatic prior to the injury (prior symptoms);

(c) ignoring the history of previous symptoms (prior symptoms);

(d) failing to determine the nature of the injury found to have occurred on 20 June 2006 (nature of the injury);

(e) failing to address the question as to whether or not the worker had sustained injury in the course of Dr Hodge’s surgery on 12 March 2006, notwithstanding that this was the thesis of Dr Russo (the surgery);

(f) failing to address evidence, including evidence of the expert qualified by the worker, that employment was not a contributing factor to the worker’s current complaints (causation);

(g) failing to observe the very different symptoms complained of in 2008 and in 2009 with those in 2006 (causation);

(h) resolving the causation issue by finding that the worker continued to suffer pain that could be “traced back” to either the injury at work or the treatment received for that injury when the pain could not be “traced back” and, even if it could, the Arbitrator fell into the error “post hoc, ergo proctor hoc”, which is a fallacy (causation);

(i) his findings as to the worker’s entitlement to weekly compensation (weekly compensation), and

(j) ordering the Council to pay for medical expenses not yet incurred (medical expenses).

SUMISSIONS, DISCUSSION AND FINDINGS

Issues in dispute

It was submitted on behalf of the Council that the Arbitrator erred in stating that there was no issue that Mr Kirkman received an injury on 20 June 2006. It was submitted that there was a “grave issue” as to whether Mr Kirkman received an injury on 20 June 2006. The Council relied upon the worker’s statement that his symptoms first appeared whilst he was on his way home from work, and that those symptoms were right-sided.
The Council also referred to Dr Hodge’s history on 23 August 2007 that the worker presented with a one-year history of pain in his left inguinal region, which followed a period of lifting a water meter whilst working for the Council. It was submitted that the reference to left-sided symptoms was not a mistake by Dr Hodge because the worker had an ultrasound of his left groin. The Arbitrator ignored all of this evidence.
I do not accept the Council’s submissions.
First, the s 74 notice did not dispute injury, but disputed whether the ongoing right-sided groin symptoms were work-related. That was consistent with the opinions from Drs O’Neill and Edwards, upon whom StateCover relied to dispute the claim. Both doctors accepted that an injury had occurred, but concluded that it was only a strain from which Mr Kirkman had recovered. The reference in the s 74 notice to “current right-sided groin symptoms/injury” was ambiguous. However, it did not suggest that no injurious event occurred. The reference to the “current … injury” demonstrated a fundamental misunderstanding of the legislation. Once a worker has received an injury, the next question is not whether the injury is “current”, but whether the effect of the injury is continuing and whether the incapacity, impairment or relevant treatment has resulted from that injury. If StateCover intended to dispute the occurrence of the injury, it should have said so. It didn’t.
Second, the insurer accepted liability and paid voluntary compensation for the injury until the s 74 notice issued on 29 September 2008. It made those payments after the receipt of appropriate medical evidence. The voluntary payment of compensation is a rebuttable admission (Begnell v Super Start Batteries Pty Ltd [2009] NSWWCCPD 19 at [77] to [105]) and an insurer will often be entitled to dispute injury notwithstanding the earlier acceptance of a claim and payment of compensation. However, if an insurer does wish to dispute injury, it must use clear and unambiguous language.
Third, at the arbitration, the parties made submissions on the nature of the issues in dispute. Counsel for the appellant employer said (at T3.8):
“I must say in relation to the injury that I find it difficult to say or submit that the Applicant didn’t sustain a right-sided groin strain in the course of his employment. Even though the 74 Notice puts in issue groin strain as arising in the course of employment, I have no evidence to contradict that and I’m just checking the Reply.
I think the proper issue for you is whether, even though there was an initial groin strain, that as and from the denial of liability, that work was no longer – or the current symptoms as in ’08 were not related to – to employment back in ’06.”
Counsel’s submission that the s 74 notice put in issue whether Mr Kirkman had suffered a groin strain in the course of his employment was incorrect. However, his error was of no consequence because his next statement made it clear that (correctly) the “proper issue” was whether the worker’s current symptoms were related to (resulted from) the work injury in 2006.
In addition, counsel properly submitted (at T11.10) that he was “happy to accept that the gentleman was injured”. He added (at T11.13) that he accepted “there was an injury in the terms of a strain”. In these circumstances, it follows that, regardless of the interpretation of the s 74 notice, the Arbitrator did not err in stating that there was no issue that Mr Kirkman received an injury on 20 June 2006. The Council’s attempt to argue this issue on appeal is more than a little surprising and unsatisfactory.
Fourth, Dr Hodge’s reference to “left inguinal region” in his report of 23 August 2007 was clearly a mistake. The ultrasound the Council referred to was not done until 15 July 2008 and was done on referral from Dr Uddin, not Dr Hodge. All of Mr Kirkman’s symptoms up to 2008 were right sided. Dr Hodge’s report of 23 June 2007 does not undermine the Arbitrator’s finding on injury.
Last, if I am wrong in my interpretation of the s 74 notice, and even if the Council had not conceded injury at the arbitration, I would have no hesitation in finding that Mr Kirkman received an injury to his right groin whilst dragging a concrete lid with a co-worker in the course of his employment on 20 June 2006. I do not regard it as decisive that Mr Kirkman stated that his symptoms commenced a short time after the lifting incident. There is no suggestion of any other incident occurring at or about the time that he developed pain in his lower abdomen and the compelling conclusion is that that pain resulted from the lifting incident at work. It was no doubt on that basis that the insurer initially accepted liability. It was right to do so.
The real issue in this case is whether Mr Kirkman has the symptoms of which he complains and whether those symptoms have resulted from the injury on 20 June 2006 and/or treatment provided for that injury. That is a causation issue which requires the application of the commonsense test of causation discussed in Kooragang Cement Pty Ltd v Bates (1994) 25 NSWLR 452 and is discussed at [91] to [102] below.

Prior symptoms

Apart from referring to the history recorded by Dr Edwards to the effect that the worker had suffered a previous groin strain whilst playing touch football, the Council has made no relevant submissions on this issue.
Mr Kirkman has not disputed the accuracy of the history recorded by Dr Edwards. However, that is not determinative. Dr Edwards did not record when the previous groin strain occurred, whether it was incapacitating, or whether it required any treatment. Mr Kirkman’s evidence was that, prior to June 2006, he had no problems with his lower abdomen and he was functioning perfectly normally. Given that Mr Kirkman was performing his normal work for the Council up to and including 20 June 2006, I have no hesitation in concluding that, in the period immediately leading up to 20 June 2006, he had no relevant problems or symptoms with his lower abdomen and that he was fully fit and was performing his heavy duties without restriction.
The only evidence of Mr Kirkman suffering relevant previous symptoms is in the history recorded by Dr Edwards. That history, on its own, is of limited, if any, probative value. I accept Mr Kirkman’s evidence that he had no problems with his lower abdomen and was functioning normally in the relevant period up to and including 20 June 2006. There is no evidence to suggest that Mr Kirkman’s previous symptoms, whatever they were, have played any role in the cause or perpetuation of his current symptoms.

Nature of the injury

The Council has advanced no submissions or authority in support of this alleged error. Though it will often be preferable, it is not essential, as a matter of law, that the Commission determines the precise nature of the injury received by a worker. What is required is a finding that the worker received an injury arising out of, or in the course of, his or her employment, and that employment was a substantial contributing factor to that injury. Based on the worker’s evidence and the evidence from Drs Hodge and Russo, I am comfortably satisfied, as was the Arbitrator, that Mr Kirkman injured his groin/abdominal area in the course of employment for the Council on 20 June 2006.

The surgery

There is a very good reason why the Arbitrator did not address the question of whether Mr Kirkman “sustained injury in the course of Dr Hodge’s surgery on 12 March 2006”. The appellant employer never argued this issue at the arbitration. Counsel submitted (quite properly) (at T5.4):
“[A]s long as you find that the surgery related to the injury then I’m stuck with the consequences of that. I have to accept that as a matter of law.”
Though counsel at the arbitration referred to Dr O’Neill’s evidence that the surgery should not have been performed, he stopped well short of submitting that the need for the surgery had not resulted from the injury. Thus, his proper concession that, if the Arbitrator found that the surgery related to (resulted from) the injury, then his client was “stuck with the consequences of that … as a matter of law”.
The Council’s submission on appeal is misconceived and, again, more than a little surprising. If Mr Kirkman developed additional symptoms after his surgery, that does not mean he sustained injury in the course of that surgery. The proper question is, “Was the surgery reasonably necessary as a result of the injury on 20 June 2006?” The answer to that question is unequivocally “yes”. Mr Kirkman had consistent and significant right groin symptoms from the time of his injury. As a result, he was referred for ultrasound and treatment from a specialist. The ultrasound revealed a small defect consistent with a small inguinal hernia, though clinical examination failed to identify any obvious hernia. Conservative treatment failed to relieve Mr Kirkman’s symptoms.
Dr Hodge conceded that he was loathe to suggest surgical intervention in the absence of a “documented hernia”, but noted that, in some cases, surgical intervention “certainly does make a difference”. He expressed that opinion in October 2006 and Mr Kirkman persevered, both with his selected duties and with conservative treatment, for a further five months. In that period, Dr Llewellyn, a general practitioner selected by the Council, stated that surgical repair seemed “likely”.
Though the second ultrasound (performed in January 2007) did not confirm the finding of a hernia shown in the first ultrasound, Dr Llewellyn considered that such a finding was “not uncommon” and he still felt that the worker’s symptoms reflected or related to an inguinal hernia. It is not to the point that he added that the findings in the second ultrasound of multiple small lymph nodes were not work-related. There is no evidence that the worker’s symptoms have resulted from the multiple small lymph nodes revealed in the second ultrasound.
Dr Hodge carefully considered the history and lack of improvement despite an extensive period of rest and conservative treatment, and ultimately suggested that surgical exploration “may be an appropriate way to go”. The worker accepted that advice, but with the caveat that there was no guarantee of success.
There is no evidence to suggest that Dr Hodge’s advice to proceed to surgery was unreasonable. Nor is there any evidence that Dr Hodge performed the surgery negligently. Even if he had, the employer would still be liable for the consequences of the surgery, unless the treatment provided was so inexcusably bad as to become a novus actus (Mahony v J Kruschich (Demolitions) Pty Ltd [1985] HCA 37; 156 CLR 522 at 529–530 (Kruschich)). As observed by the High Court in Kruschich, with specific reference to workers compensation cases:
“the total condition of a worker whose compensable injury is exacerbated by medical treatment, reasonably undertaken to alleviate that injury, is to be attributed to the accident: see Lindeman Ltd v Colvin [1946] HCA 35; (1946) 74 CLR 313, per Dixon J at p 321; Migge v Wormald Bros Industries Ltd (1972) 2 NSWLR 29, per Mason JA at p 48; on appeal (1973) 47 ALJR 236, although some medical negligence or inefficiency can be held to amount to a new cause of incapacity in some circumstances: Rothwell v Caverswall Stone Co (1944) 2 All ER 350, at p 365; Hogan v Bentinck Collieries (1949) 1 All ER 588, p 592.”
I am satisfied that Mr Kirkman acted reasonably in undergoing the surgery recommended by Dr Hodge and that any additional symptoms that he developed after the surgery have resulted from the surgery and, therefore, from the injury.

Causation

The Council submitted that the Arbitrator failed to consider the evidence and failed to determine whether the evidence was persuasive. It was argued that the Arbitrator’s finding – that Mr Kirkman continued to suffer pain that could be “traced back” either to the injury or to the treatment received for the injury – was erroneous. This was so because, on the worker’s account to Dr Russo, the symptoms before the surgery were radically different to the symptoms after the surgery.
It was further submitted that Dr Russo’s conclusion – that the worker had inguinodynia and orchialgia, which were most likely neuropathic in nature – was contrary to the evidence from both Drs O’Sullivan and O’Neill. The Arbitrator made no reference to the fact that Dr Russo offered an “unqualified opinion” which was rejected by two neurologists.

The Council submitted that the Arbitrator was required to consider the evidence and determine whether it was persuasive and whether, for example, the evidence that the worker was suffering from neuropathic pain was qualified, bearing in mind that “unqualified opinions are unacceptable” (Pt 15 r 15.2(d) of the Workers Compensation Commission Rules 2006 (the Rules)). It was submitted that the Arbitrator’s “findings and reasons” were “lamentable”.
Based on the worker’s account to Dr Russo, it was submitted that the symptoms before the surgery were “radically different” to the symptoms subsequent to the surgery. Drs O’Sullivan and O’Neill roundly rejected Dr Russo’s thesis, namely that the worker’s symptoms were most likely neuropathic in nature. The Arbitrator made no reference to the fact that Dr Russo’s evidence was an “unqualified opinion” which was rejected by two neurologists.

I agree that the Arbitrator did not provide a detailed analysis of the opinions expressed by Drs O’Neill and O’Sullivan on the one hand compared to the evidence of Dr Russo on the other. However, given that the Arbitrator clearly accepted that Mr Kirkman’s symptoms had resulted from the accepted injury and the necessary medical treatment (including the surgery) that resulted from that injury, such an analysis was not strictly necessary.
In any event, I do not accept the submission that Dr Russo’s evidence was an “unqualified opinion”. Dr Russo is a specialist in pain medicine. He took a detailed history of the injury and the subsequent treatment Mr Kirkman received, all of which failed to relieve his symptoms. Not only did it fail to relieve his symptoms, but he also developed additional symptoms after the surgery. Based on the evidence from Dr Russo and Mr Kirkman, I am satisfied that those additional symptoms resulted from the original injury.
Whether those symptoms resulted from a neurological condition or whether they resulted from a strain is of no consequence. The question is whether the symptoms have, as a matter of commonsense, resulted from the injury and/or the treatment for that injury. It follows that, as Dr Russo observed, whether or not Mr Kirkman originally had an inguinal hernia is irrelevant. The surgery was reasonably undertaken for a suspected inguinal hernia and “surgery in the area subsequently led to his current pain problem”. That conclusion is compelling, logical and consistent with the relevant chronology of events.

The Council’s case is further weakened because Dr O’Sullivan incorrectly stated the legal test of causation. He said that Mr Kirkman’s employment was not a substantial contributing factor to his ongoing symptoms or incapacity. Employment does not have to be a substantial contributing factor to ongoing symptoms or incapacity; it only has to be a substantial contributing factor to the injury. Once that test is satisfied, the next question is whether the relevant symptoms and/or incapacity have resulted from the found injury.

The Council’s case rests on the assumption that, because there is no “demonstrable physical cause” for Mr Kirkman’s continuing complaints and because he “never had clinical or clear radiological evidence of a hernia”, his complaints of pain and, therefore, his case, must be rejected. That does not follow as a matter of logic or law.
Mr Kirkman has consistently complained of groin symptoms since his injury on 20 June 2006 and has undergone extensive conservative and invasive treatment for those symptoms. I do not accept that he would have done so if he were feigning. Given Mr Kirkman’s consistent complaints, I accept that he has significant continuing symptoms and that those symptoms restrict his ability to perform heavy manual work full time.

For the reasons given above, I prefer and accept Dr Russo’s conclusions to those expressed by the doctors relied upon by the appellant employer. As Dr O’Sullivan observed, there is no doubt that Mr Kirkman’s groin symptoms occurred as a result of his work with the Council and, in my view, there is equally no doubt that his continuing symptoms have resulted from his initial injury and/or his treatment for that injury.

It follows that I am comfortably satisfied that Mr Kirkman’s continuing symptoms and incapacity have resulted from his injury.

Weekly compensation

The Council referred to five medical certificates from 5 October 2007 to 21 January 2008, which, it submitted, certified Mr Kirkman to be fit for pre-injury duties. In respect of the worker’s evidence that he had pressured Dr Uddin to give him the final certificate dated 21 January 2008, the Council submitted that there was no evidence from Dr Uddin that he “expressed a false opinion” (about the worker’s fitness) in that certificate.
In November 2008, Mr Kirkman fell from a motorbike and it was suspected that he had injured his spleen. It was suggested that the Arbitrator gave no indication that he considered whether the worker’s incapacity following the motorbike accident might have resulted from it.
The Council submitted that there was no evidence from any other medical practitioner to suggest that the worker’s earning capacity had diminished and the Arbitrator failed to consider if his incapacity might have resulted from the fall.

The Council further submitted that it was outside “any reasonable range” to assert that the effect of the work injury reduced Mr Kirkman’s earning capacity from $731 per week to $250 per week. The finding by the Arbitrator that Mr Kirkman could only earn $250 per week for a 20-hour week equated to a finding of $12.50 per hour, a figure less than the average wage. The effect of the injury must, it was submitted, be assessed in light of the following:
(a)     the change in the worker’s symptoms after the surgery;
(b)     the existence of a condition unrelated to work;
(c)     the subsequent fall from a motorbike, and
(d)     the five unchallenged opinions by the general practitioner that Mr Kirkman was “fit for pre-injury duties”.

The Council submitted that this evidence provided a sound basis for a finding that, under s 40(1), “there would be a NIL wage loss which would bear such relation to the amount of that reduction as may appear proper in the circumstances of the case” (emphasis included in original).

I do not accept the Council’s submissions.
First, the submissions about the five medical certificates noted at [103] above are inaccurate. The certificate for 5 October 2007 purported to certify Mr Kirkman fit for pre-injury duties, but only for 4 days per week 3 hours a day and with a lifting restriction of 5 kgs. The certificate of 15 October 2007 certified Mr Kirkman fit for full-time “suitable duties from 23/10/07 to 22/11/07” with a lifting restriction of “up to 10 kgs – 15 kgs”. The certificates for 22 November 2007 and 21 December 2007 certified Mr Kirkman fit for his pre-injury duties for standard hours but with a lifting restriction of 20 kgs. In other words, none of these certificates declared Mr Kirkman to be fit without restriction. Once his employment with the Council ceased, it was necessary for the Arbitrator to assess his earning capacity in the labour market reasonably accessible to him having regard to the factors in s 43A of the 1987 Act. That is what he did and I agree with his approach and conclusions.

Second, the certificate dated 21 January 2008 certified Mr Kirkman fit for his pre-injury duties (but for normal hours only) without restriction from 23 January 2008. Mr Kirkman’s evidence is that Dr Uddin provided that certificate “somewhat reluctantly” because he said he was worried about losing his job and he “pressured” the doctor to give him a “clearance”. Dr Uddin’s notes for 21 January 2008 record:
“Pt wants to try the Concreting section to work with
Needs to be full [sic] fit.
Pt happy to go back to normal duties.
c/o dull ache in right tstis [sic] and right lower tummy
But want [sic] to go back to concreting section.
c/o erection problem
Gave uo [sic] pot smoking
Still no better.
Management:
Pre-injury duties”
These notes confirm that, notwithstanding having continuing symptoms, Mr Kirkman requested a certificate for full duties. Whether he “pressured” the doctor into providing that certificate is unclear from the notes. The notes make no mention of the worker being concerned about losing his job. However, it is not disputed that the Council made Mr Kirkman redundant on 26 February 2008.
Given the content of Dr Uddin’s notes and the chronology of events, I accept Mr Kirkman’s evidence that it was because of his concern about his job that he requested the doctor to provide a fit for work certificate. I also accept that, given Mr Kirkman’s complaints of pain recorded by the doctor, he was not symptom free at that time. Further, I accept his evidence that between 23 January 2008 and 26 February 2008 he only did “civic maintenance work”, which was the same work he did while on “restrictions” and that, though he had discussions with Peter Garvan at the Council about doing heavier work, he never did the heavier work. Though a report from Dr Uddin would have provided relevant information, the absence of a report is not determinative in circumstances where I accept the worker’s evidence. There is no suggestion that Mr Kirkman’s solicitors have claimed privilege on any report from Dr Uddin. In these circumstances, I draw no inference from the absence of a report from the doctor.

Third, it is not clear what point the Council makes about the fall from a motorbike, which occurred in October 2008, not November 2008. Dr Uddin’s notes for 28 October 2008 refer to Mr Kirkman having had a “bike accident” the previous Sunday and having been seen at Kempsey District Hospital. The notes added, “laceration and bruises all over – skin graze from bottom”. Apart from a reference to a “discharge from wound” on 6 November 2008, the notes made no other reference to that incident.

The ultrasound report on 13 November 2008 merely stated “? splenic injury”. Mr Kirkman was tender over the ninth rib but the ultrasound detected no other abnormality. I am satisfied that the injuries received in the motorbike accident were no more than soft injuries from which Mr Kirkman recovered. Whether and, if so, to what extent the fall incapacitated Mr Kirkman is not dealt with in the evidence in any meaningful way. I do not accept that the motorbike accident was of any relevance to the determination of the worker’s entitlement to weekly compensation. More importantly, as counsel for the appellant employer at the arbitration (quite rightly) made no submissions about the relevance of the motorbike accident on the claim for weekly compensation, it is hardly surprising that the Arbitrator did not refer to it in his decision.
Fourth, the submission that there is no evidence from any other medical practitioner that suggests a diminution of Mr Kirkman’s earning capacity is incorrect. Dr O’Sullivan stated in his report of 6 October 2009 that he did not believe Mr Kirkman was “fit for heavy manual work due to his persistent symptoms”. Though in his report of 9 November 2009 Dr O’Sullivan changed his opinion on causation, he did not change his opinion on Mr Kirkman’s fitness for work, which essentially depended on an acceptance of Mr Kirkman’s symptoms. I accept, as did the Arbitrator, that Mr Kirkman continues to have significant symptoms as a result of his injury and the treatment undertaken for that injury, and that those symptoms prevent him from engaging in heavy work. Dr Russo’s evidence, which I accept, also provides strong support for this conclusion. In his report of 21 January 2010, he said that Mr Kirkman was “still unable to work secondary to pain”.
Dr O’Neill’s evidence on this issue does not assist either side. He said that, without a “precise diagnosis”, he could not give a sensible answer about Mr Kirkman’s capacity and fitness for work. The insurer never asked Dr Edwards to express an opinion on fitness for work and he did not do so. However, based on his opinion that Mr Kirkman was either exaggerating or fabricating his presentation, I infer that he thought the worker was fit for work. As I accept the worker’s complaints of continuing symptoms, I prefer the evidence from Drs Russo and O’Sullivan on the issue of fitness for work. I do not accept that Mr Kirkman has either exaggerated or fabricated his symptoms.
Last, the Council referred to the s 40(1) discretion. Dealing with each point on this issue (see [106] above), I find:
(a)     as noted earlier in this decision, the different symptoms after the surgery have resulted from the surgery and, therefore, have resulted from the injury. They do not support the exercise of the discretion to reduce the award payable;
(b)     the “condition unrelated to work” is a reference to the finding at the ultrasound on 24 January 2007 of multiple small lymph nodes and Dr Llewellyn’s hand written note on 1 February 2007 which stated that that condition was not work related. Dr Llewellyn did not suggest that Mr Kirkman’s symptoms resulted from his lymph nodes and the submission that that finding should be taken into account in the exercise of the discretion is unsustainable, and
(c)     I have already dealt with the fall from the motorbike and the five medical certificates that certified the worker “fit for pre-injury duties”.

Medical expenses

The Arbitrator ordered the Council to pay Mr Kirkman’s s 60 expenses “for treatment proposed by Dr Russo”. The Council challenged that order on the ground that an order for the payment of future medical expenses is not within the Commission’s jurisdiction (Widdup v Hamilton [2006] NSWWCCPD 258 (Widdup)). Mr Kirkman submitted that the Arbitrator only made a “general order under section 60”, which he was entitled to make.

Section 60 is an indemnity provision (NSW Sugar Milling Co-Operative v Manning (1998) 44 NSWLR 442). Widdup held that the Commission has no jurisdiction to make an order for the payment of hospital and/or medical expenses that have not been incurred. Mr Kirkman has not had the treatment proposed by Dr Russo and the Commission has no power to make any order for its payment.
Though the worker claimed “$1,000 approximately”, under medical, hospital and rehabilitation expenses under Part 5.3 of the Application, those expenses were not particularised or identified. Therefore, the proper order is, as counsel for the Council submitted at the arbitration (T7.16), a general order for the payment of hospital and medical expenses under s 60 and that is the order the Arbitrator should have made.

CONCLUSION

Having conducted a review on the merits, I have determined that, subject to a variation of the order for the payment of s 60 expenses, the Arbitrator’s determination is true and correct (The State Transit Authority of NSW v Fritzi Chemler [2007] NSWCA 249; 5 DDCR 286). As neither party has challenged the Arbitrator’s order dismissing the current claim for lump sum compensation that order stands, but does not prevent Mr Kirkman from making a further application once his condition is stable.

DECISION

Paragraphs 1, 2, 3, 4, 5, 6, 8, 9 and 10 of the Certificate of Determination of 15 June 2010 are confirmed. Paragraph 7 is revoked and the following order made in its place:
“7.That the respondent pay the applicant’s hospital and medical expenses under s 60 of the Workers Compensation Act 1987, upon production of accounts or receipts.”

COSTS

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

Bill Roche
Deputy President

28 September 2010

I, PENEPLOPE FLEMING, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE