Ky v Blue Leaf Food Group Pty Ltd
[2016] NSWWCCPD 55
•15 November 2016
| WORKERS COMPENSATION COMMISSION | ||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||
| CITATION: | Ky v Blue Leaf Food Group Pty Ltd [2016] NSWWCCPD 55 | |
| APPELLANT: | Ly Meng Ky | |
| RESPONDENT: | Blue Leaf Food Group Pty Ltd | |
| INSURER: | QBE Workers Compensation (NSW) Ltd | |
| FILE NUMBER: | A1-440/16 | |
| ARBITRATOR: | Mr W Dalley | |
| DATE OF ARBITRATOR’S DECISION: | 18 May 2016 | |
| DATE OF APPEAL DECISION: | 15 November 2016 | |
| SUBJECT MATTER OF DECISION: | The test to establish ‘injury’ in the primary sense pursuant to the definition in s 4(a) of the Workers Compensation Act 1987 – application of Military Rehabilitation and Compensation Commission v May [2016] HCA 19; ‘injury’ in the primary sense and ‘disease’ injury not mutually exclusive – application of Zickar v MGH Plastic Industries Pty Ltd[1996] HCA 31; 187 CLR 310 | |
| PRESIDENTIAL MEMBER: | Deputy President Michael Snell | |
| HEARING: | On the papers | |
| REPRESENTATION: | Appellant: | Gajic Lawyers |
| Respondent: | Sparke Helmore Lawyers | |
| ORDERS MADE ON APPEAL: | 1. The Certificate of Determination dated 18 May 2016 is revoked. 2. The matter is remitted for re-determination by another Arbitrator. | |
INTRODUCTION
This appeal raises issues going to the characterisation of ‘injury’. There were valid tactical reasons for how the appellant conducted his case, associated with the threshold in s 66(1) of the Workers Compensation Act 1987 (the 1987 Act). On the evidence overall, can the alleged injury resulting from the “nature and conditions” of employment be characterised as a ‘personal injury’ pursuant to the definition in s 4(a) of the 1987 Act, even if it is also a ‘disease injury’ pursuant to the definition in s 4(b) of the 1987 Act? There are issues going to the appropriate test to establish ‘injury’ in the primary sense, pursuant to the definition in s 4(a) of the 1987 Act.
BACKGROUND
Ly Meng Ky (the appellant) was employed by Blue Leaf Food Group Pty Ltd (the respondent) as a picker and packer, and forklift driver, from 1988. The appellant’s employment was terminated on 13 January 2012, when the business closed. He was subsequently employed by TK Pacific Marketing Pty Ltd as a picker and packer, from early 2014 to about March 2015, when he was retrenched.
The appellant was assessed at his solicitors’ request by Dr Dias, an occupational physician, who reported on 6 March 2015. Dr Dias assessed the appellant to have suffered nine per cent whole person impairment in respect of the right upper extremity (shoulder), four per cent in respect of the right lower extremity (knee) and four per cent in respect of the left lower extremity (knee). The appellant, on 9 April 2015, claimed lump sum compensation in respect of 16 per cent whole person impairment, consistent with this assessment (when the figures are combined).
The respondent’s insurer denied liability for the lump sum claim, in a s 74 notice dated 16 June 2015. The notice denied ‘injury’ and that section 9A of the 1987 Act was satisfied, in respect of the appellant’s right shoulder and trigger fingers (the fingers are not relevant for current purposes). It denied the lump sum claim in respect of the right and left knees, on the basis that the claimed impairment in respect of those parts did not meet the threshold of “greater than 10 per cent” in s 66(1) of the 1987 Act.
If the allegation of injury to the right shoulder, in the employ of the respondent, is made out, then providing the assessed impairments in respect of the knees and the right shoulder can be aggregated, the alleged impairment exceeds the threshold in s 66(1) of the 1987 Act, and can be referred to an Approved Medical Specialist (AMS) for assessment.
THE ARBITRAL PROCEEDINGS
The proceedings were commenced by an Application to Resolve a Dispute registered on 29 January 2016 (the Application). The matter was listed for an arbitration hearing on 3 May 2016. Mr Trainor appeared for the appellant, and Mr Baker for the respondent. There were no applications to adduce oral evidence or to cross-examine. The matter proceeded on the documentary material and counsel addressed. The Arbitrator reserved his decision.
The Application described the date of injury as “13 January 2012 (Deemed)”, and said “The deemed injury is the 13th January 2012, the day the Applicant was terminated by the Respondent.” The appellant’s counsel at the arbitration hearing said “the proposition of injury is predicated on a physical injury taking place over the course of his 24 years. It’s a nature and conditions claim” (T9.8–11), and “this case is predicated very firmly on the proposition that it’s a nature and conditions claim, not a disease claim” (T11.5–7). He subsequently stated he relied on a period of “nature and conditions from on or about 1 March 2011 until 13 January 2012” (T65.15–25).
The appellant’s counsel submitted “I’ve been quite specific that we’re proceeding on the basis that this is an injury, and I use that as a term of art, in the sense as distinct from a disease process” (T12.30–3), and “we’re saying it’s a personal injury, it’s a 4(1)(a) [sic]” (T13.7–8). Later he submitted that the “nature and conditions claim” was based on “a series of micro-traumata over a period of time” (T22.21–2). He also submitted that, if injury were found, a deemed date of injury was fixed by s 15 or s 16 of the 1987 Act (T12.3–6, T 34.20–3). He subsequently submitted that:
“… if I’ve abandoned the allegation of disease irretrievably, then it’s got to be the nature and conditions and it’s got to be the nature and conditions over a period of employment with the respondent.” (T35.24–7)
The appellant’s counsel submitted “liability stands or falls solely on the question of whether or not this is a nature and conditions type of injury as opposed to a disease” (T14.14–16). He also referred to Zickar v MGH Plastic Industries Pty Ltd[1996] HCA 31; 187 CLR 310 (Zickar), and submitted:
“… if the applicant propounds a case on an injury, on a personal injury basis it is no answer for a defendant to propound a counter argument it’s a disease case because logically the two are not necessarily neutrally [sic, mutually] exclusive.” (T15.23–27)
The appellant’s counsel also submitted that he did not need to establish a “sudden pathological change” to establish injury pursuant to the definition in s 4(a) of the 1987 Act, it was sufficient if he could establish “injury in the sense of a pathological change” (T22.14–6).
The respondent’s counsel carefully took the Arbitrator through the lay and medical evidence. His ultimate submission was:
“It’s the contemporaneous material from the people that actually saw him at the time that is relevant and the histories they both took of the work causing the symptoms that, in my respectful submission, would convince you that this disorder that he now complains of and seeks compensation for relates to injury in the employ of someone who is not here, TK Products Pty Ltd.” (T61.22–9)
During submissions in reply, the following exchange occurred between the Arbitrator and the respondent’s counsel:
“ARBITRATOR: I think, Mr Baker, to make clear you do, you say it’s a disease process and attract section 15 or 16, probably 16 and that fixes the date as the last at TKL.
MR BAKER: To answer your question, on the authority which I think the most recent one is [Rail Services Australia v Dimovski [2004] NSWCA 267; 1 DDCR 648], pretty clearly this is not a frank injury, this is a claim made over a period of time about the tasks that were required of this applicant and in that sense, it attracts the - whilst it be a personal injury, it attracts the provisions of the 4(b) provisions because it includes a disease or an aggravation of it and it is in that way that I say if you accept that the gentleman has suffered an injury, you would then move to saying well, how and when and the answer to that question you would be compelled to find from the diagnosis that, and the symptomatological [sic] onset of it, that it would’ve had to have been in the employ of the second employer who’s not joined in these proceedings. That’s our case.
ARBITRATOR: But that’s by operation of section 16.
MR BAKER: By dint of it, yes, it’s within the body of the Act, it’s a disease the nature to which either the injury is due - sorry, the nature to which the injury is due or an aggravation, exacerbation or deterioration relevantly in the terms of section 16 and it appears to be the latter to me but that’s just to me.” (T66.18–67.67.11)
THE ARBITRATOR’S DECISION
The Commission issued a Certificate of Determination dated 18 May 2016. There was an award for the respondent on the allegation of injury to the right shoulder “in accordance with section 4(a)” of the 1987 Act. There was an award for the respondent on the claim pursuant to s 66 of the 1987 Act, and also on the claim pursuant to s 60 of the 1987 Act, in respect of injury to the right shoulder. The Certificate of Determination was accompanied by the Arbitrator’s Statement of Reasons.
The Arbitrator noted the issues as:
(a) whether the appellant suffered injury to his right shoulder within the meaning of s 4(a) of the 1987 Act, in the course of his employment, and
(b) if so, whether the appellant was “entitled to found a claim pursuant to section 66 upon that injury?”
The Arbitrator noted that the appellant’s case was presented “on the basis that the aetiology of the pathology in the right shoulder relied on did not constitute a ‘disease’ but rather constituted a series of micro-traumata which ceased when [the appellant] stopped work on
13 January 2012”. The Arbitrator noted a concession by the appellant that, if he was “found to have suffered a ‘disease injury’, then his case against the respondent in respect of the shoulder injury must fail as section 15 or section 16 of the 1987 Act would fix liability on a subsequent employer.”The Arbitrator referred to a number of authorities dealing with ‘injury’ within the meaning of sub-clauses (a) and (b) of the definition in s 4 of the 1987 Act. He referred to the appellant’s statement, claim form and letter of claim in respect of the claim pursuant to s 66 of the 1987 Act. He referred to treating medical evidence from Dr Teng (the general practitioner) and Dr Lee, an orthopaedic surgeon. He referred to a series of reports from Dr Douglas, an orthopaedic surgeon qualified by the respondent’s insurer, and Dr Dias, an occupational physician qualified by the appellant’s solicitors.
The Arbitrator referred to the decision in Kennedy Cleaning v Petkoska [2000] HCA 45; 200 CLR 286; 174 ALR 626; 74 ALJR 1298 (Petkoska). He said he was satisfied that the condition in the appellant’s right shoulder was not a ‘personal injury’, as there was no “sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state”. He said:
“The activities performed by [the appellant] appear to me to constitute a series of actions in which a continuing stress was applied to the shoulder rather than a series of minute traumata.”
The Arbitrator referred to a passage from the judgment of Windeyer J in Commissioner for Railways v Bain [1965] HCA 5; 112 CLR 246 (Bain), in which his Honour said “… the word ‘disease’ seems to me to be apt to describe any abnormal physical or mental condition that is not purely transient”. The Arbitrator, applying Bain, said that he was satisfied that the pathology in the appellant’s right shoulder “constitutes a disease condition”. He was satisfied that the pathology in the appellant’s right shoulder “was of such a nature as to be contracted by a gradual process”. He said it had been conceded by the appellant, through his counsel, that “if the condition of the right shoulder constituted a disease of such a nature as to be contracted by a gradual process, then there would be an award for the respondent”.
The Arbitrator said that in accordance with the concession by the appellant, there must be an award for the respondent on the claim in respect of the right shoulder. It followed, and was “properly conceded”, that without the right shoulder the claim pursuant to s 66 had not been properly made, as the aggregated total impairment for the lower extremities did not reach 10 per cent. The Arbitrator entered an award for the respondent on the claim pursuant to s 66 of the 1987 Act, and on the claim pursuant to s 60 of the 1987 Act in respect of injury to the right shoulder.
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 Nos 1 and 6; the documents that are before me, and the submissions 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.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to quantum, as found in the provisions of s 352(3) of the 1998 Act, have been met.
Time
The respondent raises an issue regarding whether the appeal was made within the time provided pursuant to s 352(4) of the 1998 Act. The appellant, at [2.1] of Part A of his Further Amended Application to Appeal, simply asserts that the Application to Appeal was lodged within 28 days of the Certificate of Determination (that is, within time).
The respondent submits that the appellant lodged Applications to Appeal on 15 June 2016 and 8 July 2016, which were “returned”, with Directions by the Commission going to the lodgement of a “compliant” Application. The appellant ultimately lodged an Application to Appeal “on or around 20 or 21 July 2016”, which was accepted by the Commission. This was “well over a month after time expired”. The respondent submits that the appellant has not put on any evidence or submissions seeking an extension of time, pursuant to Pt 16 r 16.2(12) of the Workers Compensation Commission Rules 2011 (the Rules).
Section 352(4) of the 1998 Act provides:
“An appeal can only be made within 28 days after the making of the decision appealed against.”
The date of making of the decision is the date when the Commission issues a Certificate of Determination: Pt 16 r 16.2(2) of the Rules, s 294(1) of the 1998 Act, Dennis v NSW Fire Brigades [2007] NSWWCCPD 165 (Dennis) at [23].
The Certificate of Determination was dated 18 May 2016. Time runs from 19 May 2016: s 36 of the Interpretation Act 1987, Dennis at [23]. Time expired on 16 June 2016, which was the last day when an appeal could be made within time.
Part 16 r 16.2(11) of the Rules provides:
“For the purposes of section 352 (4) of the 1998 Act, an appeal is made when the application is registered by the Registrar.”
Part 1 r 1.4(2) of the Rules provides:
“A document is registered for the purposes of these rules when it has been accepted by the Registrar.”
Part 2 r 2.5 of the Rules provides:
“2.5 Seal
(1) The Commission is to have a seal.
(2) The seal is to be in such form (including electronic form) as the President may determine from time to time.
(3) The seal is to be affixed to all documents registered by the Commission and to all certificates of decisions and determinations by the Commission and to such other documents as may be prescribed in these rules or as the President may determine from time to time.”
The initial Application to Appeal was received by the Commission on 15 June 2016, within time. The Commission’s seal was affixed to the document, consistent with it being registered. The Commission’s file on the appeal records the date of registration as 16 June 2016. The Commission subsequently issued Directions dated 20 June 2016 and 11 July 2016, essentially requiring compliance with Practice Direction No 6. As a consequence amended Applications to Appeal were received by the Commission on 8 July 2016 and 21 July 2016. However, the original Application was registered by the Registrar on 16 June 2016. The description of the subsequent Applications to Appeal as “amended”, and their acceptance in that form, is consistent with the registration of the appeal on 16 June 2016. It follows that the appeal was made within time, in compliance with s 352(4) of the 1998 Act.
ISSUES IN DISPUTE
The issues raised in the appellant’s Further Amended Application to Appeal are as follows:
(a) whether the Arbitrator erred in concluding that a finding of ‘injury’ required “a sudden and ascertainable or dramatic physiological change or disturbance in the normal physiological stage”;
(b) whether the Arbitrator erred in fact in his consideration of the evidence of Dr Dias;
(c) whether the Arbitrator’s findings “regarding personal injury” were against the evidence or the weight of the evidence;
(d) whether the Arbitrator erred in concluding that there was no evidence that the appellant’s duties involved “a series of micro traumata”, and
(e) whether the Arbitrator erred in finding that the appellant’s claim pursuant to s 66 of the 1987 Act was not valid.
THE DEFINITION
The appellant’s last day of employment with the respondent was 13 January 2012. The amendments effected by the Workers Compensation Legislation Amendment Act 2012 (the 2012 amending Act) to the definition of ‘injury’, in s 4 of the 1987 Act, do not apply to injury prior to19 June 2012: cl 20, Pt 19H Sch 6 of the 1987 Act. The definition in s 4 of the 1987 Act, as at 13 January 2012, relevantly provided:
“In this Act:
injury:
(a) means personal injury arising out of or in the course of employment,
(b) includes:
(i) a disease which is contracted by a worker in the course of employment and to which the employment was a contributing factor, and
(ii) the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration …”
As the relevant date of the alleged injury (under either limb of the definition) predates the relevant commencement of the 2012 amending Act, s 9A of the 1987 Act has application.
SUBMISSIONS, DISCUSSION AND FINDINGS
This appeal is governed by the provisions of s 352 of the 1998 Act. The nature and scope of such an appeal is as provided by s 352(5):
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
The powers of the Commission upon conduct of such an appeal are defined by the provisions of s 352(7):
“On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.”
GROUND NO 1 – THE REQUIREMENTS FOR A FINDING OF ‘INJURY’
The Appellant’s Submissions
The Arbitrator found that the appellant’s right shoulder condition was a disease of such a nature as to be contracted by a gradual process. The appellant submits that the “implication of this finding was that the Arbitrator determined the [appellant] did not suffer personal injury to his right shoulder due to the nature and conditions of his employment”.
The appellant’s submissions state that the Arbitrator based his decision on Petkoska at [39], where Gleeson CJ and Kirby J said:
“If this evidence amounts, relevantly, to something that can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state, it may qualify for characterisation as an ‘injury’ in the primary sense of that word.”
The appellant refers to a passage from the judgment of Gleeson CJ and Kirby J in Petkoska at [34]–[35], where their Honours said:
“34. There are differences in the approaches adopted in the majority comprised of the joint reasons of Toohey, McHugh and Gummow JJ, and the reasons of Kirby J in Zickar. But less important than the differences are the points in common which all members of the majority recognised and emphasised.
35. These included the reminder that a long line of decisions in Australia had recognised that an ‘injury’, being a sudden or identifiable physiological change, could nonetheless qualify within the ordinary application of that expression appearing in workers’ compensation legislation, although the change was internal to the body of the worker.”
The appellant submits that ‘personal injury’ may involve either “sudden physiological change” (for example a stroke), or “identifiable physiological change”. The appellant submits that the Arbitrator erred in relying on the above quoted passage at [39] of Petkoska, as he thereby adopted only one limb of the definition.
The appellant acknowledges that the Arbitrator, at [26] of his reasons, quoted from the decision of Roche DP in Yum Restaurants Australia Pty Ltd t/as Pizza Hut Restaurants v Watters [2010] NSWWCCPD 31 (Watters) at [65], where the Deputy President said:
“Ms Watters argued that the terms personal injury and disease are not mutually exclusive categories and that a sudden or identifiable physiological (pathological) change to the body brought about by an internal or external event can be a personal injury and the fact that the change is connected to an underlying disease process does not prevent the event being a personal injury (Hoani v Chubb Security Australia Pty Ltd(2000) 21 NSWCCR 242). As a statement of principle, this is undoubtedly correct and is consistent with the High Court authorities of [Zickar] and [Petkoska].
The appellant submits that, notwithstanding the acknowledgment by the Arbitrator of this statement of principle, the Arbitrator devoted “a significant part” of his reasons to “the issue of whether the appellant’s right shoulder pathology was a disease”. The appellant submits:
“With great respect, it is difficult to resist the conclusion that despite what was said at [26] of the decision, the Arbitrator effectively sought to negative the allegation of personal injury by finding injury due to a disease of gradual process. If so, it is submitted that the Arbitrator’s reasoning process is, again with great respect, legally flawed.”
The Respondent’s Submissions
The respondent submits that the Arbitrator, at [21]–[27] of his reasons, “correctly summarised the relevant authorities dealing with the distinction between ‘personal injury’ and ‘disease injury’” pursuant to s 4 of the 1987 Act. The respondent refers to the decision of Burke J in Perry v Tanine Pty Ltd t/as Ermington Hotel [1998] NSWCC 14; NSWCCR 253 (Perry), referred to with approval in Fletcher International Exports Pty Ltd v Barrow & Anor [2007] NSWCA 244; 5 DDCR 247.
The respondent then refers to the medical evidence, and the appellant’s claim form and statement. It submits that on the evidence the Arbitrator “had no choice but to find the right shoulder injury was a disease injury”. The respondent submits there is “no evidence of this being any other kind of injury, much less what the appellant’s counsel at trial referred to as a [Strasburger Enterprises Pty Ltd t/as Quix Food Stores v Serna [2008] NSWCA 354] type injury.” It submits the appellant “failed to discharge his evidentiary onus to otherwise prove this was a personal injury”.
The respondent makes a general submission that the appellant’s criticism of the Arbitrator’s approach to Petkoska is “entirely unpersuasive”. It reiterates its submission that, in any event, the evidence did not establish the appellant suffered ‘personal injury’. The appellant submits that the appellant did not prove “either a sudden physiological change or an identifiable physiological change that does not amount to a disease injury”.
Supplementary Submissions
Neither party, in its submissions, referred to the decision of the High Court in Military Rehabilitation and Compensation Commission v May [2016] HCA 19 (May). The Commission issued a Direction to the parties, in the following terms, on 24 October 2016:
“The parties’ attention is directed to the High Court’s decision in Military Rehabilitation and Compensation Commission v May [2016] HCA 19 (May).
On or before 31 October 2016, the appellant is directed to file and serve submissions on the relevance, if any, of the decision in May.
On or before 7 November 2016, the respondent is directed to file and serve submissions in reply.”
The appellant’s supplementary submissions were received on 31 October 2016. The appellant quotes from the decision in May at [47], where it is said that “‘suddenness’ is not necessary for there to be an ‘injury’ in the primary sense”. The appellant submits that May “constitutes further grounds for allowing Ground 1”.
The respondent’s supplementary submissions were received on 7 November 2006. The respondent submits, correctly, that May involves legislation different to the New South Wales legislation. It concedes that “[a]rguably, comments regarding the meaning of ‘injury’ remain relevant”. The respondent argues that while suddenness is not necessary, one must still have regard to the precise evidence about ‘injury’. “‘[S]uddenness’ is often useful where there is a need to distinguish a physiological change from the natural progress of an underlying (and in one sense, closely related) disease”.
Discussion
The appellant’s submissions, going to Ground No 1, effectively raise two separate issues. The first is whether the Arbitrator misstated the test described in Zickar and Petkoska, by quoting and applying the passage at [39] (rather than that at [35]) of Petkoska. The supplementary submissions raise the associated issue of whether the test applied by the Arbitrator was consistent with the approach in May. The second issue raised in Ground No 1 is whether, notwithstanding his reference to Watters, the Arbitrator approached the matter on the basis that a finding of ‘personal injury’ was unavailable, if there was an injury properly characterised as a ‘disease injury’.
Was the Correct Test Applied?
The Arbitrator, at [26] of his reasons, quoted the passage from Watters referred to at [41] above. That passage refers to “a sudden identifiable physiological (pathological) change”. The Arbitrator also referred to a decision of Roche DP in Trustees of the Society of St Vincent de Paul (NSW) v Maxwell James Kear as administrator of the estate of Anthony John Kear [2014] NSWWCCPD 47 (Kear) at [38], in which the Deputy President quoted from the description of the test in Petkoska at [39], and then continued:
“In other words, as stated at [81] in [North Coast Area Health Service v Felstead [2011] NSWWCCPD 51], it is ‘a sudden identifiable pathological change’.”
In making a finding at [63], the Arbitrator said:
“I am satisfied that the condition in the right shoulder is not a ‘personal injury’ in that there is no ‘sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state (Petkoska).”
The appellant correctly refers to some difference between how the test was described by Gleeson CJ and Kirby J in Petkoska, at [35] and [39]. It will be observed that the test was described in slightly varied ways from time to time. The form of the test ultimately applied by the Arbitrator was that in Petkoska, at [39] of that decision. I accept that this differed to some extent from the test as described in Petkoska at [35]. The decision in May was delivered on 11 May 2016. The current matter proceeded to an arbitration hearing before the Arbitrator on 3 May 2016, and the Arbitrator’s decision was dated 18 May 2016. It is understandable that the decision in May was not applied or referred to in the Arbitrator’s decision. However it is necessary to have regard to May, in considering whether the test applied was the correct one.
In May the plurality, at [45], referred to the passage from Petkoska at [39], quoted above. Their Honours at [47]–[48] then said (excluding references):
“47. However, as the Full Court correctly held, ‘suddenness’ is not necessary for there to be an ‘injury’ in the primary sense. A physiological change might be ‘sudden and ascertainable’. A physiological change might be ‘dramatic’. The employee’s condition might be a ‘disturbance of the normal physiological state’. That an ‘injury’ in the primary sense can arise, and can be described, in a variety of ways does not mean that ‘suddenness’ is irrelevant. As the Full Court said, ‘suddenness’ is often useful where there is a need to distinguish a physiological change from the natural progress of an underlying (and in one sense, closely related) disease (as occurred in [Zickar] and [Petkoska]). But it is the physiological change – the nature and incidents of that change – that remains central.
48. That an ‘injury’ in the primary sense can arise, and be described, in a variety of ways was recognised by Gleeson CJ and Kirby J in [Petkoska] when their Honours stated:
‘[C]onsideration [must] be given to the precise evidence, on a fact by fact basis, concerning the nature and incidents of the physiological change accepted at trial. If this evidence amounts, relevantly, to something that can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state, it may qualify for characterisation as an ‘injury’ in the primary sense of that word.’” (emphasis in the original)
In May Gageler J (concurring with the plurality) said at [75] (excluding references):
“More than a century of teasing out the ordinary sense in which injury is used in the context of workers compensation legislation has shown that suffering an injury is not confined to ‘getting hurt’ (an injury might be constituted by nothing more than ‘something going wrong within the human frame itself, such as the straining of a muscle or the breaking of a blood vessel’) but that suffering an injury involves something more than merely ‘becoming sick’. An injury, it has long been repeatedly explained, is some definite or distinct ‘physiological change’ or ‘physiological disturbance’ for the worse which, if not ‘sudden’, is at least ‘identifiable’. The universality of that explanation has been questioned, and the comment has fairly been made that ‘a distinct physiological change is not itself an expression of clear and definite meaning’. The expression has nevertheless been shown by repeated usage to have utility as an exposition of the particular sense in which injury has been used, and continues to be used, in the particular legislative context.”
The plurality in May stated that “suddenness” is not “necessary” for there to be ‘injury’ in the primary sense, although it may be relevant in distinguishing a physiological change from the natural progression of an underlying disease. This differs, for example, from the test stated in Kear, to which the Arbitrator referred. Overall, the test referred to in May differs from that described by Gleeson CJ and Kirby J in Petkoska, in that it makes it clear that “suddenness” is not necessarily required for there to be a finding of ‘injury’ in the primary sense.
The appellant’s further submissions on this appeal, going to May, refer to the fact that May involved different legislation. They submit “the classification of ‘disease’ is different”. They concede that arguably “comments regarding the meaning of ‘injury’ remain relevant”. They do not refer to any specific differences between the definition of ‘injury’ under discussion in May, compared with that in the New South Wales legislation, which are said to deprive the decision in May of force on this issue.
Zickar was a matter involving the definition in s 4 of the 1987 Act, Petkoska involved the definition in the s 7(1) of the Workers Compensation Act 1951 (ACT). Gleeson CJ and Kirby J in Petkoska at [1] described the Full Court of the Federal Court of Australia as “having applied the reasoning of the majority of this Court in [Zickar]. In our view, the Full Court was correct to do so…” May involved the definition of ‘injury’ in s 4(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth), which meant:
“(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.”
The plurality in May at [10] said:
“This appeal concerns the proper construction of the phrase ‘injury (other than a disease)’ in par (b) of the definition of ‘injury’ in s 4(1) of the Act. That question of construction is determined by reference to the text, context and purpose of the Act.”
The discussion in May at [45]–[48], in which the passage quoted at [53] above occurs, is a passage dealing with ‘injury’ “in its primary sense”. It reasons from the decisions in Zickar and Petkoska. The reasoning of the plurality, at [45]–[48], has application in construing the definition of ‘injury’ in its primary sense, in s 4(a) of the 1987 Act. This also is consistent with the judgment of Gageler J, whose reasons on this issue are not based on any specific statutory regime, but on “[m]ore than a century of teasing out the ordinary sense in which injury is used in the context of workers compensation legislation”.
It follows that the Arbitrator, in applying a test different to that described in May at [47], going to the meaning of ‘injury’ in its primary sense, was in error.
The Arbitrator, considering the medical evidence, referred to a report of Dr Lee (a treating orthopaedic surgeon) dated 8 August 2014, which included a history that the appellant “gradually developed pain and stiffness in the right shoulder”. Dr Lee commented that the appellant was “doing a job as a store person and this caused damage to the rotator cuff of the right shoulder” (see the Arbitrator’s reasons at [41]–[42]). The Arbitrator (reasons at [50]) referred to a history taken by Dr Douglas (an orthopaedic surgeon qualified by the respondent) in his report dated 28 May 2015, that the appellant developed right shoulder pain “when he was winding the steering wheel on the forklift in the last couple of years while working at Blueleaf Foods and has been aggravated by his packing work at TK Pacific Marketing”.
The Arbitrator also referred to a history recorded by Dr Dias, an occupational physician qualified by the appellant’s solicitors, in a report dated 6 March 2015. Dr Dias recorded the right shoulder and hands were “painful since approximately 2011”. The history included “he states that the right shoulder injury was as a result of the prolonged tight gripping of the steering wheel, as well as packing duties that he had to do on a daily basis in his previous employment with Blue Leaf Food Group”. Dr Dias’s diagnosis relating to the right shoulder was “chronic right shoulder impingement syndrome, secondary to supraspinatus tendinosis and chronic subacromial /subdeltoid bursitis”.
Overall, at the least the medical evidence is consistent with the proposition that “suddenness” may not have been present. The extent to which any absence of “suddenness” was a factor in the finding on ‘injury’ is not apparent from the Arbitrator’s reasons at [63]. It could not be concluded that the identified error could not possibly have affected the result: Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141 at [9]–[10], Toll Pty Ltd v Morrisey [2008] NSWCA 197; 6 DDCR 561 at [10].
It follows that the first of the arguments raised in Ground No 1 is upheld and involves appealable error.
Was There Error in the Approach to the Availability of a ‘Disease’ Finding?
The second argument pursued under Ground No 1 is whether the Arbitrator approached the matter on the basis that a finding of ‘personal injury’ was unavailable, if there was an injury properly characterised as a ‘disease injury’. In context, the appellant’s reference to ‘personal injury’ is a reference to injury in its primary sense, falling within the definition in s 4(a) of the 1987 Act.
In his review of the relevant authorities, the Arbitrator at [26] of his reasons quoted from the decision in Watters. The quoted passage made reference to the decisions of the High Court in Zickar and Petkoska, specifically referring to them as authority for the proposition that “the terms personal injury and disease are not mutually exclusive”. The Arbitrator’s reasons provided no suggestion that he would do other than apply the authorities he referred to.
The Arbitrator reviewed the evidence, lay and medical, at [29]–[58] of his reasons. At [59] of his reasons the Arbitrator said he was satisfied that the pathology in the appellant’s right shoulder “constitutes a disease condition”. At [60] the Arbitrator referred to Perry, and to s 15 of the 1987 Act, and said “the process by which the pathology arose” appeared similar to that described in Perry. At [63] and [65] of his reasons the Arbitrator said:
“63. I am satisfied that the condition in the right shoulder is not a ‘personal injury’ in that there is no ‘sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state’ (Petkoska). The activities performed by Mr Ky appear to me to constitute a series of actions in which a continuing stress was applied to the shoulder rather than a series of minute traumata. For this reason I find that the condition in the right shoulder constitutes a disease injury of such a nature as to be contracted by a gradual process.”
“65. Accordingly, in accordance with the concession of counsel for the applicant, there must be an award for the respondent in respect of the claims based on an injury to the right shoulder in the course of employment with the respondent and consequentially an award for the respondent pursuant to section 66.”
Paragraph [65] was a reference to a concession referred to at [22] of the reasons:
“The applicant conceded that, if Mr Ky was found to have suffered a ‘disease injury’ then the case against the respondent in respect of the shoulder injury must fail as section 15 or section 16 of the 1987 Act would fix liability on a subsequent employer. Rather than a disease of gradual onset[,] Counsel for the applicant submitted that the applicant had suffered injury due to a series of micro-traumata up to the last day of his employment with the respondent in January 2013.”
I cannot, in the transcript of the arbitration hearing, find any clear concession, either stated by counsel or recorded by the Arbitrator, that the appellant’s case must fail, if there were a finding of a ‘disease’ injury. There was a passage towards the close of the appellant’s submissions-in-chief, which arguably carried that suggestion:
“ARBITRATOR: You see, if you look at the skin cancer cases, cases like one I cited to you, Downer EDI, people have lots of skin cancers over the years but the injury is the damage to the skin and the deemed date of injury is the last employer who exposed them to the sun. They’ve clearly had the condition with earlier employers. See, sometimes you get a situation where quite patently somebody has worked long and hard for many years and probably injured their back, they work for a few weeks with somebody and their back goes but they’re the ones who wear it, aren’t they?
MR TRAINOR: If it is categorised as a disease, only if it is.
ARBITRATOR: Well, so you say it’s not categorised as a disease.
MR TRAINOR: We say it’s a personal injury.” (T34.25–35.9)
A concession of the type referred to at [22] of the reasons would be inconsistent with how the case was run overall, by the appellant at the arbitration hearing. It was repeatedly stated that the appellant’s case was presented on the basis it was injury, not on a ‘disease’ basis, resulting from the “nature and conditions … a series of micro-traumata over a period of time” (T22.21–2). The appellant’s counsel, making submissions in reply, said:
“Now, as I said before, the argument that diseases and injuries are mutually exclusive is wrong in law. So to the extent that my friend has spent a lot of time trying to categorise this as more fitting within section 15 or 16, that is not a matter that you can take cognisance of. The simple fact is we stand or fall on whether or not this man suffered an injury as a result of the nature and conditions of his employment. If we succeed on that the fact that my friend can say this has got indicia consistent with a disease means nothing. That’s the first point.” (T62.29–63.5)
The Arbitrator, at [63] of his reasons, made two distinct findings. These were:
(a) the condition of the appellant’s right shoulder did not constitute ‘personal injury’, applying the test in Petkoska; the appellant’s work activities involved applying continued stress to the shoulder, rather than being “a series of minute traumata”, and
(b) “the condition in the right shoulder constitutes a disease injury of such a nature as to be contracted by a gradual process”.
It was made abundantly clear, in the running of the case, that findings of injury, based on ‘injury’ in the primary sense and injury on the basis of the ‘disease’ provisions, were not mutually exclusive. The Arbitrator, in his reasons, specifically quoted a passage from Watters, including reference to Zickar and Petkoska, as authority for this proposition. The finding at [63] does not indicate that the Arbitrator declined to find ‘injury’ in the primary sense, as a result of his view that injury based on the ‘disease’ provisions could be established. Rather, it was after finding that ‘injury’ in the primary sense could not be established (which was fatal to the appellant’s case) that he proceeded to find that ‘injury’ based on the ‘disease’ provisions could have been established.
The reference in the reasons, to a concession by the appellant’s counsel, is probably a reference to the passage quoted at [69] above. That goes no further than conceding that, if injury based on the ‘disease’ provisions is found, liability for such an injury falls on the last relevant employer (consistent with ss 15 and 16 of the 1987 Act). It is necessary to read the Arbitrator’s reasons as a whole: Beale v Government Insurance Office of NSW (1977) 48 NSWLR 430 at 444. Read in this way, I do not accept that the Arbitrator approached the matter on the basis that a finding of ‘injury’ in the primary sense was unavailable, if there was an injury which could be properly characterised as a ‘disease injury’.
It follows that Ground No 1 is upheld, for the reasons given above going to application of the test to establish ‘injury’ in the primary sense, having regard to the decision of the High Court in May. It is not upheld in respect of the second of the arguments pursued in Ground No 1. It is necessary that the Arbitrator’s findings at [63] and [65] of his reasons be set aside.
For reasons which appear below, I have formed the view that the preferable approach is that the matter be remitted to another Arbitrator for re-determination. It is not, in the circumstances, necessary to deal with the other grounds of appeal.
ORDERS ON THE DISPOSITION OF THE APPEAL
The practical difficulties in formulating the appellant’s lump sum claim, having regard to the threshold in s 66(1) of the 1987 Act, are readily apparent. The appellant’s ability to make a valid claim, satisfying the threshold in s 66(1), is dependent on him being able to aggregate his assessment based on the disputed right shoulder injury (nine per cent) with the assessments in respect of the knees (totalling eight per cent). The allegations going to the knees have been accepted by the respondent with a “deemed injury date” of 13 January 2012 (see the letter of claim dated 9 April 2015).
The Application pleads a “Deemed” date of injury of 13 January 2012 in respect of each of the claimed body parts. Typically, such dates are deemed pursuant to ss 15 and 16 of the 1987 Act. At the arbitration hearing, the appellant sought to argue that, if he succeeded on the basis of ‘injury’ in the primary sense, within the definition in s 4(a) of the 1987 Act, relying on the “nature and conditions” of employment, it would be appropriate to have a deemed date of injury of 13 January 2012 for the right shoulder, pursuant to ss 15 or 16 of the 1987 Act (T11.28–12.7, 13.17–33, 35.20–23, 69.18–71.31). Alternatively, he submitted that the date of injury for the right shoulder would be “due to the nature and conditions between 1 March 2011 up until 13 January 2012” (T70.7–11).
Because of the conclusion which the Arbitrator reached on the ‘injury’ issue, he did not deal with whether s 9A of the 1987 Act was satisfied, nor with the form which any finding on ‘injury’ (and an associated referral to an Approved Medical Specialist) would take, if the appellant succeeded. My initial view is that the opening words of both ss 15 and 16 of the 1987 Act confine the operation of those sections to ‘injury’ falling within the ‘disease’ provisions. However this was not an issue determined by the Arbitrator or the subject of submissions on the appeal, and I express no concluded view. It is appropriate that the outstanding issues be determined by another Arbitrator, on remitter.
DECISION
The Certificate of Determination dated 18 May 2016 is revoked.
The matter is remitted for re-determination by another Arbitrator.
Michael Snell
Deputy President
15 November 2016
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