Lagana v Australian Retirement Partners Realty Pty Ltd - [2015] NSWWCCPD 55

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Lagana v Australian Retirement Partners Realty Pty Ltd [2015] NSWWCCPD 55
APPELLANT:	Rowena Lagana
RESPONDENT:	Australian Retirement Partners Realty Pty Ltd
INSURER:	QBE Workers Compensation (NSW) Ltd
FILE NUMBER:	A1-6115/14
ARBITRATOR:	Ms K Haddock
DATE OF ARBITRATOR’S DECISION:	19 June 2015
DATE OF APPEAL DECISION:	17 September 2015
SUBJECT MATTER OF DECISION:	Claim for permanent impairment compensation; injury; whether worker suffered an injury as defined or merely a consequential condition; Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796 discussed; s 4 of the Workers Compensation Act 1987; role of Commission and Approved Medical Specialist in assessing permanent impairment as a result of injury
PRESIDENTIAL MEMBER:	Deputy President Bill Roche
HEARING:	On the papers
REPRESENTATION:	Appellant:	Shine Lawyers
Respondent:	Gillis Delaney Lawyers
ORDERS MADE ON APPEAL:	1. Paragraph one of the Arbitrator’s determination of 19 June 2015 is revoked and the following orders made in its place: 1. The applicant worker injured her back when she fell at work on 23 October 2012. 2. The claim for permanent impairment compensation is remitted to the Registrar for referral to an Approved Medical Specialist pursuant to Pt 7 of Ch 7 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment of any whole person impairment resulting from the injury to the applicant worker’s back (lumbar spine) on 23 October 2012. The whole of the Commission’s file is to be made available to the Approved Medical Specialist for consideration.
2. Paragraph two of the Arbitrator’s determination of 19 June 2015 is confirmed.

BACKGROUND

The appellant worker, Rowena Lagana, worked for the respondent employer, Australian Retirement Partners Realty Pty Ltd, as a personal care assistant at the Grange Retirement Village at Waitara.
On 28 December 2010, she injured her back while pulling a fold-up bed up a step (the 2010 injury). The respondent’s insurer, QBE Workers Compensation (NSW) Ltd (QBE), accepted liability for that injury and paid compensation.
On 17 February 2011, an MRI scan revealed a focal right paracentral disc herniation lodged over the S1 nerve root.
As a result of the 2010 injury, Ms Lagana underwent an L5/S1 discectomy and S1 nerve root rhizolysis on 2 May 2011. She made a good recovery from surgery and returned to work with the respondent, initially on light duties and then on her normal duties.
On 30 July 2012, Ms Lagana claimed lump sum compensation under s 66 of the Workers Compensation Act 1987 (the 1987 Act) in respect of a 16 per cent whole person impairment and, under s 67, compensation for pain and suffering.
On 23 October 2012, an Approved Medical Specialist (AMS) assessed Ms Lagana to have a 14 per cent whole person impairment as a result of the 2010 injury.
Also on 23 October 2012, at about 8 pm, Ms Lagana slipped and fell while carrying two bags of garbage down stairs in the course of her employment with the respondent (the 2012 fall). Her evidence was that she “miscalculated the ground as [she] had been experiencing numbness / a loss of feeling in [her] right heel” because of her 2010 injury.
Ms Lagana completed an accident/injury/ incident form the next day and the respondent’s manager signed it the same day. Under “Injury – Describe the type of the injury and the location of the injury: (eg, cut leg, burnt arm, etc)”, she wrote “Fell down stairs – bumped (L) elbow (L) toe (R) ankle-strain (R) wrist – twist [sic] lower back”. Under “Describe what task you were undertaking at the time and, in detail, how and what happened”, Ms Lagana wrote “Bring [sic] down garbage from upstairs flat bin”.
On 25 October 2012, Ms Lagana saw a Dr Hakewill, a doctor who visited the retirement village.
On 18 December 2012, Ms Lagana saw Dr Davor Saravanja, orthopaedic surgeon, who had treated her for her 2010 injury. Dr Saravanja took a history that Ms Lagana had left foot numbness and left buttock pain, which had come on over the previous three months.
On 5 February 2013, Dr Saravanja reported to Dr Hakewill that Ms Lagana had two level spondylolisthesis at L4/5 and L3/4 and a large synovial cyst at L3/4 causing direct compression of the traversing nerve roots. He said that this “sits quite well with her symptoms and the fact that she had the slip on the stairs at work around three months ago”.
Dr Saravanja recorded that Ms Lagana had complained that her symptoms had worsened since the slip on the stairs, which she put down to the progressive numbness in her left leg. While the L3/4 changes were degenerative in nature, it was Dr Saravanja’s opinion that they had been worsened by the “work related trip and injury”. He recommended cortisone injections.
On 18 April 2013, Dr Saravanja reported that the cortisone injections gave symptomatic relief, but only for three or four weeks. He was concerned that Ms Lagana was developing neuropathic pain and nerve root damage. He recommended a decompression and fusion at the L3/4 level.
On 27 May 2013, Ms Lagana underwent an L3/4 laminectomy and fusion.
On 6 June 2013, Ms Lagana settled her claim for lump sum compensation for her 2010 injury for 14 per cent whole person impairment plus $16,000 for pain and suffering.
On 8 August 2014, Ms Lagana claimed lump sum compensation for a 32 per cent whole person impairment in respect of the 2010 injury. QBE disputed liability. It asserted that Ms Lagana had made one claim for permanent impairment compensation and was not permitted to make another (s 66(1A) of the 1987 Act).
On 13 November 2014, Ms Lagana filed an Application to Resolve a Dispute in the Commission claiming permanent impairment compensation in respect of a 32 per cent whole person impairment and compensation for hospital and medical expenses. This claim alleged that Ms Lagana injured her back in 2010 and in the 2012 fall. However, it alleged that the 2012 fall was “as a result of the original” 2010 injury.
In an Amended Application to Resolve a Dispute (the Amended Application) attached to an Application to Admit Late Documents dated 2 April 2015, Ms Lagana deleted reliance on the 2010 injury and alleged that she injured her back when she fell down the stairs at work on 23 October 2012. She claimed lump sum compensation in respect of a whole person impairment of 23 per cent and hospital and medical expenses of $7,501.
The Arbitrator identified the issues to be whether the permanent impairment in respect of which Ms Lagana claimed compensation was the result of a consequential condition that resulted from the 2010 injury, or was “the result of a frank injury on 23 October 2012”. If the former, then the issue was whether s 66(1A) prevented her from making a further claim for permanent impairment compensation.
After reviewing the evidence, the Arbitrator said she needed to consider “whether the permanent impairment that [Ms Lagana] now claims to have sustained results from the injury on 23 October 2012, or whether it results from the injury on 28 December 2010” ([96]). The Arbitrator concluded that Ms Lagana fell down the stairs in 2012 because of numbness in her right heel, which numbness had resulted from her first operation.
After quoting from Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796 (Kooragang), and noting several decisions by the Commission dealing with consequential losses, the Arbitrator held that, applying the commonsense test of causation, the fall in 2012 resulted from the injury in 2010. As Ms Lagana had already made one claim for permanent impairment compensation in respect of the 2010 injury, s 66(1A) precluded her from making “a further claim for permanent impairment compensation that results from that injury” ([112]).
For reasons not relevant to the appeal, the Arbitrator declined to make any order with respect to the claim for hospital and medical expenses.
The Commission issued a Certificate of Determination on 19 June 2015 in the following terms:
“1.That there is an award for the respondent in respect of the claim pursuant to section 66 of the Workers Compensation Act 1987.
2.That there is no order with respect to the claim pursuant to section 60 of the Workers Compensation Act 1987.”
Ms Lagana has appealed the Arbitrator’s first order. For the reasons explained below, the appeal is successful and the Arbitrator’s determination is revoked.

ON THE PAPERS

Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
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.

ISSUES IN DISPUTE

The issues in dispute in the appeal are whether the Arbitrator erred in:
(a) failing to consider whether Ms Lagana sustained an injury, as pleaded, within the meaning of s 4 of the 1987 Act;
(b) failing to consider whether the injury pleaded was a personal injury for the purposes of s 4 of the 1987 Act;
(c) failing to consider whether, under s 9A of the 1987 Act, Ms Lagana’s employment was a substantial contributing factor to the pleaded injury;
(d)     failing to consider the nature of the work performed at the time of injury or the particular tasks of that work;
(e) treating as decisive, without referring to the elements of ss 4 and 9A, Ms Lagana’s pre-existing right heel numbness;
(f)      failing to give sufficient weight to Ms Lagana’s short supplementary statement or to Dr Endrey-Walder’s history, which both referred to the duties performed at the time of the 2012 fall;
(g) if she found that Ms Lagana suffered an injury on 23 October 2012, determining the degree of permanent impairment otherwise than in accordance with Ch 7 of the 1998 Act and failing to remit the dispute to the Registrar for referral to an AMS;
(h)     proceeding on the basis that two injuries had been pleaded;
(i)      taking into account and treating as relevant Ms Lagana’s potential compensation entitlements for the 2010 injury, and
(j)      misstating and misapplying the applicable law relating to the causal link between injury and benefits.

SUBMISSIONS, DISCUSSIONS AND FINDINGS

The Arbitrator’s decision cannot stand.
In opposition to the appeal, counsel for the respondent, Ms Goodman, submitted that the issue before the Arbitrator was not whether Ms Lagana had suffered an injury on 23 October 2012, but whether the fall on that day was a consequence of the 2010 injury. That submission is incorrect.
At [19], the Arbitrator identified the issue as follows:
“19.The issues for determination are whether the permanent impairment in respect of which [Ms Lagana] claims is a result of a consequential condition that results from the injury on 28 December 2010, or whether it is the result of a frank injury on 23 October 2012. If the former is the case, the issue is whether [Ms Lagana] is prevented by the provisions of section 66(1A) of the 1987 Act from making a further claim for permanent impairment.” (emphasis added)
As it was not for the Arbitrator to determine if the permanent impairment resulted from the alleged injury, this was not an accurate statement of the issues for the Arbitrator to determine. The Arbitrator appears to have based her statement on the submissions made by counsel for the respondent at the arbitration, Mr Newton, who said, at T2.12, that the issues were:
“If indeed the event that took place on 23 October 2012 was a consequential condition relative to that injury that I just referred to, 28/12/10, on the law as it currently stands on section 66(1)(a) [sic s 66(1A)], [Ms Lagana] fails. If however, if your determination, Arbitrator, is that the events [sic, event] that took place on 23 October 2012 was an injury simpliciter, it would be appropriate then for this matter to be remitted to the registrar for referral to an AMS.” (emphasis added)
Mr Newton relied on QBE’s s 74 notice dated 21 May 2015, which denied liability because the 2012 fall was a consequence of the original injury on 28 December 2010 and, as Ms Lagana had already received compensation for permanent impairment for that injury, s 66(1A) prevented a further payment of permanent impairment compensation. It did not accept that the injury on 23 October 2012 was “a fresh injury or an injury unrelated to the original injury on 28 December 2010”. In other words, though it did not clearly say so, the notice disputed whether Ms Lagana had received a s 4 injury on 23 October 2012.
Counsel for Ms Lagana, Mr Moffet, conceded that the claim had originally been pleaded as “consequential condition” (T11.1), but his argument was that there could be more than one cause of Ms Lagana’s condition and that the Arbitrator had to look at “what is pleaded” (T11.28). What Ms Lagana pleaded and relied on, as the cause of her whole person impairment, was the fall on 23 October 2012. Therefore, Mr Moffet contended that even if the 2010 injury played a role in causing the fall, that was not a “knockout blow” (T12.7).
Mr Moffet said that the Arbitrator should treat the 2010 injury in the same way she would treat a non-work related injury and that the respondent had to take Ms Lagana as they found her. Though he conceded that, as a result of the 2010 injury, Ms Lagana had right-sided radiculopathy and numbness in her right heel, he submitted that “we are dealing with the argument about injury simpliciter” (T17.31). That is, whether Ms Lagana suffered a personal injury on 23 October 2012.
Mr Moffet then took the Arbitrator to the accident/injury/incident form, which recorded what happened in the fall on the night of 23 October 2012, namely that Ms Lagana fell down stairs, bumped her left elbow and left toe, strained her right ankle and right wrist, and twisted her back. He also relied on Ms Lagana’s evidence.
In her statement of 29 January 2015, Ms Lagana said:
“On 23 October 2012, I fell down stairs whilst at work when I miscalculated the ground. I miscalculated the ground as I had been experiencing numbness / a loss of feeling in my right heel (as a result of the initial injury on 28 December 2010) which sometimes caused me to miscalculate where the ground is.”
In an undated statement attached to an Application to Admit Late Documents filed on 15 May 2015, Ms Lagana said:
“On 23 October 2012 at the time of my injury I was preforming [sic] my normal work. I was carrying a bag of rubbish in each hand as I descended a steep and narrow set of stairs.”
In a report dated 22 July 2014, Dr Endrey-Walder, general and trauma surgeon qualified by Ms Lagana’s solicitors, took the following history from Ms Lagana:
“You may recall from my previous report that in January 2012 [Ms Lagana] had a fall at work, hurting her hand, ‘miscalculating the ground’ on account of the residual right heel numbness following her discectomy operation in May 2011.
On 23 October 2012 she had yet another fall down a number of stairs at the workplace. Once again, she fell because of sensory deficit at her right heel. ‘I was carrying two bags of garbage, clipped my right heel on the fourth step from the bottom and fell. Carrying the bags I couldn’t save myself’, greatly aggravating her lower back.” (emphasis included in original)
After summarising the evidence and the parties’ submissions, the Arbitrator said:
“94.The question, then, is whether the permanent impairment compensation that [Ms Lagana] claimed by letter dated 8 August 2014 results from the injury on 28 December 2010, thereby precluding her from making a further claim for that compensation; or whether it results from the injury on 23 October 2012, as claimed in [the Amended] Application.
95.Having initially claimed that the fall down stairs that occurred on 23 October 2012 was a consequence of the injury of 28 December 2010, because she had numbness or loss of feeling in her right heel and miscalculated where the ground was, [Ms Lagana] now claims that the fall was an injury simpliciter; and she is therefore entitled to make her ‘one claim’ for permanent impairment compensation as a result of that injury.
96.It seems to me that I need to consider, therefore, whether the permanent impairment that [Ms Lagana] now claims to have sustained results from the injury on 23 October 2012, or whether it results from the injury on 28 December 2010.”
The Arbitrator then referred to several authorities dealing with consequential loss claims and to Kooragang. She concluded (at [110]), applying commonsense to the “causal chain”, that Ms Lagana had numbness in her right heel as a result of the 2011 surgery for the 2010 injury, that that numbness caused her to “miscalculate” where the ground was and caused her to fall on 23 October 2012.
Dealing with Dr Endrey-Walder’s history, that Ms Lagana was carrying a bag of garbage in each hand and could not save herself, the Arbitrator said (at [111]) that it was not carrying the garbage in each hand that caused the fall, it was the numbness and loss of feeling in her right heel. The Arbitrator therefore concluded that the fall resulted from the 2010 injury and, as Ms Lagana had already made one claim for permanent impairment compensation in respect of permanent impairment that resulted from that injury, she was not entitled to make a second claim for such compensation (s 66(1A)).
Ms Goodman submitted that the Arbitrator’s approach and conclusion was open on the evidence. She contended that it was not relevant that the Arbitrator did not make a finding of injury on 23 October 2012. That was because the Arbitrator found that Ms Lagana’s fall resulted from the 2010 injury.
The Arbitrator erred in her approach and conclusion.
The Arbitrator’s statement at [96] (reproduced at [39] above) involves a misstatement of an Arbitrator’s role in a claim for permanent impairment compensation. It was not for the Arbitrator to determine whether the permanent impairment for which Ms Lagana has claimed compensation resulted from the 2012 fall or from the 2010 injury. An AMS must determine that question and an AMS’s assessment will be conclusively presumed to be correct as to the degree of permanent impairment of the worker as a result of an injury (s 326(1) of the 1998 Act). The Arbitrator’s role was to determine if, in the 2012 fall, the worker received an injury within the meaning of s 4 of the 1987 Act.
The Arbitrator did not consider that question. In the context of having stated (at [96]) that the issue for her to determine was whether the permanent impairment resulted from the 2010 injury or the 2012 fall, the Arbitrator focused entirely on whether the 2012 fall “resulted from” the 2010 injury.
On any view of the evidence, Ms Lagana suffered a personal injury in the course of her employment with the respondent in the 2012 fall and the Arbitrator erred in not making that finding. It does not matter that the numbness in Ms Lagana’s right heel played a role, even a substantial role, in causing Ms Lagana to fall. Nor does it matter that she had fallen in January 2012 because of the numbness in her right heel. It is trite law that an injury can have multiple causes (Migge v Wormald Bros Industries Ltd (1973) 47 ALJR 236; Pyrmont Publishing Co Pty Ltd v Peters (1972) 46 WCR 27; Cluff v Dorahy Bros (Wholesale) Pty Ltd (1979) 53 WCR 167; Calman v Commissioner of Police [1999] HCA 60, 19 NSWCCR 40; ACQ Pty Ltd v Cook [2009] HCA 28; 237 CLR 656 at [25] and [27]).

Ms Lagana fell at work on 23 October 2012 while doing her normal work duties and sustained injury to her back and other parts of her body. She fell partly because of the numbness in her heel, which contributed to her clipping her heel on the stairs, and partly because she was carrying two bags of garbage (one in each hand) and could not save herself from falling, and because of the general circumstances of her duties, which required her to carry garbage down steep, narrow stairs. That is undoubtedly a s 4 injury that was received in the course of her employment.
Similarly, there can be no doubt that Ms Lagana’s employment was a substantial contributing factor to her 2012 injury. That follows from the time and place of the injury (at work during work hours), the nature of the work performed and the particular tasks of that work (work as a personal care assistant), and the absence of a probability that the injury would have happened anyway, at about the same time, had Ms Lagana not been at work. The contribution Ms Lagana’s employment made to the 2012 injury was “real and of substance” (Dayton v Coles Supermarkets Pty Ltd [2001] NSWCA 153; 22 NSWCCR 46; Badawi v Nexon Asia Pacific Pty Ltd t/as Commander Australia Pty Ltd [2009] NSWCA 324; 7 DDCR 75; 75 NSWLR 503).
A work injury is still a s 4 injury though a previous work injury may have contributed to the particular injurious event (in this case, the fall down stairs) for which compensation is claimed. Employers take their employees as they find them (per Spigelman CJ in State Transit Authority of NSW v Fritzi Chemler [2007] NSWCA 249; 5 DDCR 286 at [40]). It therefore makes no difference that Ms Lagana’s 2010 injury played a part in her 2012 fall. If the two events had occurred with different employers, there may have been arguments about apportionment of liability for the compensation payable, but it could not be seriously argued that Ms Lagana did not suffer a s 4 injury when she fell at work in 2012.
The contention that Ms Lagana could not succeed because the 2012 fall resulted from the 2010 injury misconceives the principles involved. It is correct that, as explained in Kooragang (at 462):
“an injury can set in train a series of events. If the [causal] chain is unbroken and provides the relevant causative explanation of the incapacity or death [or impairment or need for medical treatment] from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.”
As noted by the Arbitrator, the Commission has applied the above principles in several cases (Cadbury Schweppes Pty Ltd v Davis [2011] NSWWCCPD 4; Vivaldo v Uniting Church in Australia t/as Lucan Care [2010] NSWWCCPD 41; Moon v Conmah Pty Ltd [2009] NSWWCCPD 134; Australian Traineeship System v Turner [2012] NSWWCCPD 4; Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8 (Kumar)). However, none of these cases concerned a situation like Ms Lagana’s claim. That is, none concerned a second s 4 injury with the same employer.
The distinction is well illustrated by the facts in Kumar. That case concerned a claim for compensation for a shoulder condition caused when the worker lifted himself in bed (at home) while recuperating from a s 4 injury to his back. The shoulder condition having occurred at home, it could not be argued, and was not argued, that it was an injury as defined. However, applying Kooragang, it was held that compensation was payable because the shoulder condition resulted from the accepted s 4 injury to the back. Substantially the same issue arose in each of the other cases mentioned in the preceding paragraph.
The consequential loss cases referred to at [51] above would be relevant if Ms Lagana had fallen in non-compensable circumstances at her home. If, in those circumstances, it were established that, as a matter of commonsense, such a fall resulted from the 2010 injury, it would be arguable, depending on the evidence, that any further injury received in that fall would be compensable as having resulted from the 2010 injury. However, that does not mean that the 2012 fall, which occurred at work while performing her normal duties, is not a s 4 injury. Having “received an injury” in that fall, Ms Lagana is entitled to compensation from the respondent in accordance with the 1987 Act (s 9 of the 1987 Act).
As QBE disputes the degree of permanent impairment that has resulted from that injury, the Commission may not award permanent impairment compensation unless an AMS has assessed the degree of permanent impairment (s 65(3) of the 1987 Act). Thus, the matter must be referred to an AMS for that assessment. In assessing the degree of permanent impairment that has resulted from the injury, the AMS will also assess if there is to be a deduction for any proportion of the impairment that is due to any previous injury or that is due to any pre-existing condition or abnormality (s 323(1) of the 1998 Act).

CONCLUSION

Ms Lagana suffered a s 4 injury when she fell at work on 23 October 2012 and she is entitled to make a claim for permanent impairment compensation as a result of that injury, noting that her previous claim was for the 2010 injury.

DECISION

Paragraph one of the Arbitrator’s determination of 19 June 2015 is revoked and the following orders made in its place:
1. The applicant worker injured her back when she fell at work on 23 October 2012.
2. The claim for permanent impairment compensation is remitted to the Registrar for referral to an Approved Medical Specialist pursuant to Pt 7 of Ch 7 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment of any whole person impairment resulting from the injury to the applicant worker’s back (lumbar spine) on 23 October 2012. The whole of the Commission’s file is to be made available to the Approved Medical Specialist for consideration.
Paragraph two of the Arbitrator’s determination of 19 June 2015 is confirmed.

Bill Roche
Deputy President

17 September 2015

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

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