Leeton Shire Council v Newman
[2006] NSWWCCPD 215
•1 September 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Leeton Shire Council v Newman [2006] NSWWCCPD 215
APPELLANT: Leeton Shire Council
RESPONDENT: Leslie Keith Newman
INSURER:GIO Workers Compensation (NSW) Limited
FILE NUMBER: WCC18361-04
DATE OF ARBITRATOR’S DECISION: 24 June 2005
DATE OF APPEAL DECISION: 1 September 2006
SUBJECT MATTER OF DECISION: Back impairment: section 66, section 68A and Schedule 6, Part 6, clause 6 of the Workers Compensation Act 1987; deduction for earlier injury.
PRESIDENTIAL MEMBER: Acting Deputy President Anthony Candy
HEARING:On the papers.
REPRESENTATION: Appellant: Abbott Tout, Lawyers
Respondent: Commins Hendriks, Solicitors
ORDERS MADE ON APPEAL: 1. The decision of the Arbitrator dated 24 June 2005 is revoked and the following decision is made in its place:
1.The Respondent Employer, Leeton Shire Council to pay $6,000.00 in respect of a 10% permanent impairment of the back pursuant to section 66 of the Workers Compensation Act 1987.
2.The Respondent Employer, Leeton Shire Council to pay the worker’s costs as agreed or assessed.
2. No order as to costs of the appeal.
BACKGROUND TO THE APPEAL
On 21 July 2005 Leeton Shire Council (‘the appellant employer’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 24 June 2005.
The respondent to the Appeal is Leslie Keith Newman (‘the respondent worker’).
The worker was a carpenter employed by the appellant from 1970 to 1992. During the course of his employment he had a number of injuries to his back and submitted claims in respect of them to his employer. It appears that these were paid and relatively short periods of time were involved.
On 23 February 2004 the solicitors for the worker wrote to the employer making a claim under section 66 in respect of 25% permanent impairment of the back, namely $15,000.00, together with a sum under section 67. In the letter of claim the nature and conditions of employment were relied on from 1970 to 1992, together with six specific incidents from 8 December 1986 to 6 July 1989.
On 10 November 2004 an Application to Resolve a Dispute was registered in the Commission and the employer’s solicitors lodged a reply to it on 1 December 2004. The employer requested a referral to an Approved Medical Specialist and in due course Dr Alan Nicholls, orthopaedic surgeon of Wagga Wagga, saw the worker on 10 February 2005. In the subsequent Medical Assessment Certificate which is undated, Dr Nicholls refers to having had medical reports as follows before him:
(a) Dr R. Brooder 21.01.04;
(b) Dr G. Birbara [this appears to be a certificate and not a report] 14.07.89; and
(c) Dr W. Huntsdale 25.07.89.
The Medical Assessment Certificate is in the form approved by the Registrar and contains eleven specific headings, together with a summary table. The doctor obtained a history from the worker that on 8 December 1986 while lifting a heavy Victa-Vac from ground level onto a utility, he experienced low back pain. He finished the shift but was in a good deal of pain and attended his general practitioner who put him off work for a week. Although he had returned to work after that incident he attended a chiropractor on a regular basis for treatment and was never free of pain following that original incident. Dr Nicholls considered that the worker had 20% loss of efficient use of the back compared to the most extreme case. He considered that the incident in 1986 was a major factor in the development of the back problem. Of the 20% impairment he thought that on the history given, it was reasonable to apportion the impairment equally as a result of a single lifting incident in 1986 and the heavy nature of the work subsequently.
The summary table to the Certificate is as follows:
Body Part
(The body part must be described as per Table of Disabilities) e.g. right leg at or above the knee etcDate/s of Injury
If it claimed that there is more than one accident to a body part please apportion any loss between the accidents.Total Amount of
Percentage of Permanent Loss of Efficient Use or ImpairmentProportion of Permanent Loss or Impairment Due to Pre-Existing Injury, Abnormality or Condition (s68A)
Express as a fraction.Total % of Permanent Loss of Efficient Use or Impairment Attributable to this Injury (after deduction of any pre-existing impairment in column 4) Lumbar spine 01.12.1992 (deemed date of injury)
Nature of work 1986-199220% Nil 20%
On 31 March 2005 the Registrar wrote to Dr Nicholls as follows:
“In regard to the above matter number, Arbitrator Garry Bryant requests the following information from your records:
‘Having regard to the % of permanent impairment (20%) certified in the summary table to the MAC:
a)What proportion of the same is attributable to both the frank injury suffered by the applicant on 8 December 1986 and the nature and conditions of his employment up to 30 June 1987; and
b)What proportion is attributable to the nature and conditions of his employment from 1 July 1987 to the deemed date of 1.12.1992.”
Dr Nicholls replied by letter of 2 May 2005:
“a)There is no history of injury and there were no back or leg symptoms prior to the work incident in December 1986. I feel that the permanent impairment is due in equal proportion to the injury on the 8th December 1986 and the nature and conditions of his employment up until the 1st December 1992. I don’t believe that one could attribute any significant or major component of the disability to the short period from the time of injury up to 30 June 1987.
b)I consider that 50% of the impairment as of 1st December 1992 was due to the nature of Mr Newman’s work up until that date, commencing on 30th June 1987.”
There was a hearing before another Arbitrator on 9 June 2005 and on 24 June 2005 the Certificate of Determination was issued. It is against that determination of the Arbitrator that the employer now seeks leave to appeal.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 24 June 2005 records the Arbitrator’s orders as follows:
“1.The Respondent to pay $12,000.00 in respect of a 20% permanent impairment of the back pursuant to section 66.
2.The Respondent to pay $10,000.00 for pain and suffering pursuant to section 67.
3.The Respondent to pay the Applicant’s costs as agreed or assessed.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are:
(a)Whether there was evidence to support the Arbitrator’s finding that the whole of the worker’s back impairment resulted from injuries suffered subsequent to 30 June 1987.
(b)Whether there was evidence that could lead to the conclusion that no part of the current impairment was due to the 1986 injury.
(c)What effect should be given to Schedule 6, Part 6, clause 6(2) of the Workers Compensation Act 1987 (‘the 1987 Act’)?
(d)What effect should be given to the Medical Assessment Certificate and the letter by the Approved Medical Specialist of 2 May 2005?
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 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 worker that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act. The amount at issue on the appeal is $16,000.00, which is almost 73% of the total amount awarded in the decision appealed against.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
Leave to appeal is granted.
EVIDENCE AND SUBMISSIONS
There was no real factual dispute since the employer did not put on any evidence at all. Attached to the Application to Resolve a Dispute are, among other things, a statement from the worker, a number of claim forms and medical certificates, together with medical reports from Drs Brooder and Huntsdale, which as I have indicated were referred to the AMS. There is also a Schedule of Out-of-Pocket Expenses claimed.
In a statement of the worker dated 26 October 2004 he refers to the first incident. On 8 December 1986 he says he was lifting a Victa-Vac at the Leeton Swimming Pool. He said he saw his general practitioner, Dr Birbara of Leeton, on that occasion and had no specific investigations or treatments. He refers to an incident about 30 March 1988 when he went to a college to collect seating. He was required to lift toilets and seating that had been used for a festival and experienced pain in his back. On this occasion he was off work from 30 March 1988 to 9 May 1988 and when he returned to work he was placed on light duties. On 10 August 1988 he was using a jackhammer to break up concrete steps at Yanco Swimming Pool and felt back pain. He was off work on this occasion until approximately 15 August 1988. On 17 April 1989 he said he was again breaking up concrete with a sledge hammer and lifting concrete at Yanco Swimming Pool when he felt pain in his lower back. On 17 May 1989 he was erecting playground equipment at Yanco Park, Yanco. He was also required to do concrete work. He said he noticed a strain in his lower back following this incident and was off work until approximately 8 June 1989. On or about 6 July 1989 he experienced an aggravation of symptoms unrelated to any incident which he could recall. He was off work until 17 July 1989 on this occasion. He says he was referred to Dr Huntsdale, an orthopaedic surgeon of Wagga Wagga, by his general practitioner. He ceased work in May 1992 as he was unable to do the work. He has been in receipt of a disability pension since that time.
A report of Dr Warwick Huntsdale, orthopaedic surgeon of Wagga Wagga, dated 25 July 1989 was attached to the Application as I have indicated. He obtained a history that the worker dated his complaints of a sore back to when he lifted a Victa-Vac onto the back of a ute. He was told that since that time the worker had had low back pain, headaches and a sore neck. Dr Huntsdale thought that physiotherapy would be appropriate for the worker’s condition. The doctor does not appear to make a diagnosis in relation to the worker’s back on this occasion.
Dr Brooder, a consultant neurologist of Albury, saw the worker at the request of his solicitors on 10 November 2003 and reported on 21 January 2004. The history given to that doctor was that on 8 December 1986, in the course of his employment, the worker had been lifting a leaf vacuum onto the rear of a utility vehicle. As he was lifting the vacuum he developed a sudden onset of severe low back pain. He attended his local practitioner, Dr Birbara. As low back pain persisted the worker then underwent chiropractic treatment with a Mr M. Carter. Despite chiropractic treatment, the worker had remained aware of constant aching low back pain associated with intermittent throbbing and aching low back pain (sic). Dr Brooder records that over subsequent years the worker had sustained multiple episodes of increased low back pain related to activities undertaken during the course of employment. Under the heading “Additional Comments” Dr Brooder says the following:
“I would consider it likely that as a result of the initial work-related injury that occurred on 8 December 1986 Mr Newman sustained an injury to his L5-S1 intervertebral disc. He may have sustained an annular tear associated with a diffuse intervertebral disc protrusion. Subsequently, there had occurred multiple incidents, which were associated with aggravation to the initial L5-S1 intervertebral disc injury. It is likely that as a result of the ongoing aggravations and the further passage of time he has developed degenerative changes involving his L5-S1 intervertebral disc and the adjacent facet joints.”
In the worker’s claim form dated 15 December 1986 the injury is described. Relevantly he states that he saw a Mark G. Carter of 56 Kurrajong Avenue, Leeton on 9 December 1986 (it appears that this is the chiropractor referred to by Dr Huntsdale). The next claim for compensation by the worker is dated 4 April 1988 and refers to an incident of 30 March 1988. In that claim for compensation the worker describes the injured part of his body as being normal before the accident. However, under the heading “Details of previous injuries to the same part of the body” he says he had an injury to the same part of his body, and the continuing symptoms were “pain in the lower back and neck”. It is not necessary, I think, to deal with the other claims for compensation since it is the injury of 8 December 1986 which is of special significance, together with the claim he made on the next occasion in respect of injury to his back.
In the Schedule of Out-of-Pocket Expenses which is attached to the Application, there is a list of attendances on Mr Carter from 3 December 1985 to 26 August 1988. These are 26 visits in all and seven are before the injury of 8 December 1986. Following that injury there were two attendances on 11 and 12 December 1986, together with a further visit on 2 September 1987. There is a claim in respect of a visit to a physiotherapist on 25 November 1985.
There were other medical reports before the Arbitrator, however these do not, in my opinion, bear upon the matters the subject of this appeal.
I have already referred in some detail to the contents of the MAC and the subsequent correspondence in relation to it.
Before considering the submissions made by the parties on the appeal, it is necessary in my view to set out briefly the conclusions reached by the Arbitrator. The Arbitrator took the view that the reasons contained in the MAC were separate from the certification of the relevant matters which appear in the table to the Certificate. The Arbitrator took the view that only the matters contained in that table were conclusively presumed by section 326 of the 1998 to be correct as to the following matters:
“(a) the degree of permanent impairment of the worker as a result of an injury,
(b)whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality,
(c) the nature and extent of loss of hearing suffered by a worker,
(d) whether impairment is permanent, and
(e) whether the degree of permanent impairment is fully ascertainable.”
The Arbitrator took the view that he was bound to conclude that the worker had a 20% permanent impairment of his back and that no part of the loss was due to a pre-existing injury, abnormality or condition.
The Arbitrator then considered the operation of section 68A of the 1987 Act. That section was, in part, as follows:
“68A(1) In determining the compensation payable under this Division for a loss, there is to be deduction for any proportion of the loss that is due to any previous injury (whether or not it is an injury for which compensation has been paid or is payable under this Division) or that is due to any pre-existing condition or abnormality.”
The Arbitrator was of the view that an injury which formed part of a series of injuries resulting in a single impairment was not a previous injury for the purposes of section 68A and he expressed the view that to the extent that certain decisions of the Compensation Court, namely Brenton v A P Hunter Engineering Pty Ltd (1997) 14 NSWCCR 349 (‘Brenton’) and Brown v Barnard & Brown Pty Ltd (1998-1999) 17 NSWCCR 275 (‘Brown’) held to the contrary, it was his view that those cases were wrongly decided. He thought however that the cases may be distinguished because of the factual conclusions reached in those cases.
The Arbitrator next considered the operation of Schedule 6, Part 6, clause 6 of the 1987 Act. I will set out that clause in full as it currently is in the 1987 Act. It is as follows:
“6(1) If a loss mentioned in the Table to Division 4 of Part 3 of this Act resulted both from an injury received before the commencement of that Division and an injury received after that commencement, the loss shall, for the purposes of determining the amount of compensation payable in accordance with this Part and this Schedule, be treated as having resulted from the injury received after that commencement.
(2) However, no compensation is payable in accordance with this Part and this Schedule for the part of the loss resulting from the injury received before that commencement whether or not compensation has been paid or is payable under section 16 of the former Act for that part of the loss.
(2A) The amendment made to sub-clauses (2) by the WorkCover Legislation Amendment Act 1995 is made to avoid doubt and, accordingly, is taken to have applied from the commencement of Division 4 of Part 3 of this Act. The amendment extends to court proceedings commenced but not finally determined before the commencement of the amendment but does not affect any award of compensation made before that commencement or any compensation that a worker has received or agreed to receive before that commencement.
(3) Sub-clause (2) is enacted to avoid doubt and, accordingly, is taken to have applied from the commencement of Division 4 of Part 3 of this Act. However, sub-clause (2) does not affect any court proceedings determined or commenced before the date of assent to the Workers Compensation Legislation Amendment Act 1995.”
The Arbitrator took the view that clause 6(2) had only been applied in cases where the court was able to identify a specific loss that was due to an earlier injury. He was further of the view that clause 6(1) must also be given some work to do. The Arbitrator was of the opinion that the purpose of clause 6(2) was to prevent double compensation for pre-existing losses.
The Arbitrator went on to consider the evidence of the worker in relation to the incident of 1986. He noted that the worker went back to heavy work and he noted that the worker’s statement was silent as to whether he suffered pain continuously since 1986. He drew the inference that the 1986 injury was minor only involving seven days off work. He says that Dr Brooder was given a similar history and the histories given to doctors years later must be treated with some care.
The Arbitrator next referred to the claim form for the back injury of 30 March 1988, wherein the worker said that his back was normal before the 1988 injury. The Arbitrator drew the conclusion that the worker’s continuing back pain did not commence until after March 1988. The Arbitrator said that he did not agree with the non-binding opinion of the AMS. He discounted the reasons section of the MAC and Dr Nicholls’ subsequent letter of 2 May 2005 as being based on an incorrect history.
It is clear that an injury prior to 30 June 1987 did not give rise to an entitlement to lump sum compensation in respect of impairment of back, neck or pelvis since these items did not appear in section 16 of the 1926 Act.
DISCUSSION AND FINDINGS
Submissions re Evidence
The employer submits that there was no evidence to support the Arbitrator’s finding that the whole of the worker’s back impairment resulted from injury suffered subsequent to 30 June 1987 and there was no logical and probative evidence to challenge the opinion of the AMS. In response to this, the worker submits that the Arbitrator had before him Dr Brooder’s opinion regarding the worker returning to heavy work after December 1986 and also the claim form of March 1988 indicating that the worker’s back was normal prior to that time.
While the Arbitrator may have had some justification for treating the histories given to doctors at a much later date with some caution, no attention was given to the history given to Dr Huntsdale in July 1989 approximately 2 ½ years after the injury in December 1986; namely that since the worker had lifted a Victa-Vac onto the back of a ute, he had had low back pain, headaches and a sore neck. The Arbitrator similarly disregarded the claim made in the Schedule of Out-of-Pocket Expenses for attendances upon the chiropractor both prior to and subsequent to the injury of 8 December 1986. Additionally, the claim form completed by the worker in 1988 should be considered in its entirety and not merely the answer to the question “Was injured part of body normal before accident?”. As I have indicated, the answer to the following question in the claim form indicates that the worker had continuing symptoms, namely pain in the lower back since the prior injury which he lists in a schedule. It is worthy of note that that claim form refers to a prior back strain when Mercantile Mutual was the insurer of the employer. This may perhaps account for the attendances upon the chiropractor prior to 8 December 1986. I am of opinion that this ground of appeal has been made out by the employer.
Schedule 6, Part 6, Clause 6
The employer makes the point that the Arbitrator considered that clause 6(2) was enacted to prevent double compensation thus ignoring the words “whether or not compensation has been paid or is payable under section 16 of the former Act for that part of the loss” which appears in clause 6(2).
The worker’s submissions in relation to this refer to section 68A as well as clause 6(2). Reference is made to the decision of the Court of Appeal in Employers Mutual Indemnity v Mansell (1996-1997) 14 NSWCCR 718 at 731 (‘EMI’) and also D’Aleo v Ambulance Service (NSW) (1996-1997) 14 NSWCCR 139 (‘D’Aleo’) and Government Cleaning Services v Ellul (1996) 13 NSWCCR 344 (‘Ellul’). It is submitted that section 68A does not by its own terms exclude pre-1987 Act injuries. The Arbitrator referred to two cases: Clutha Ltd v Danswan (1993) 9 NSWCCR 225 (‘Clutha’) and NSW TAFE v Pitt (1993) 9 NSWCCR 309 (‘Pitt’).
It is convenient to deal with section 68A and Schedule 6 Part 6, clause 6 together. Section 68A was originally inserted in the workers compensation legislation by Act No. 89 of 1995. The history of section 68A and 68B is traced with great care by Neilson J in Brown. From 1 January 2002 section 68A was repealed and section 323 of the 1998 Act it appears was intended to do the work formerly done by section 68A. It should be noted that section 323 of the 1998 Act is not in identical terms to section 68A. The Arbitrator considered that section 68A was the relevant provision and I will deal with the matter accordingly.
I ought in fairness deal with the cases relied on by the worker’s solicitors. The first of these is Ellul. That was a decision of the Court of Appeal. The appeal was brought on the basis that the trial judge erred in not attributing 50% of low back impairment to degenerative changes in the worker’s spine. The trial judge, it appears, applied the statutory 10% provided for in section 68A(8). The Court of Appeal held that the judge had not erred in doing so. As the Court of Appeal noted, the only evidence which touched upon the deductible portion of loss due to a pre-existing condition stated that that was 50% of the impairment of the back. The Court of Appeal took the view that there was no available evidence of the proportion of loss which was solely due to a pre-existing condition, the point being that some of the pre-existing condition may have been caused by the nature and conditions of the work performed. (It should be noted that section 68A considered by the Court of Appeal in that case was in somewhat different terms from 68A as it was prior to its repeal).
The next case relied on by the worker’s solicitors is D’Aleo. The judgment of the Court of Appeal was delivered by Cole JA with whom Handley JA and Cohen A-JA agreed. That was an appeal from a decision of Armitage J. His Honour had reduced the sum awarded under section 66 in respect of the impairment to the back by 10% applying the provisions of section 68A(8). The worker appealed on the basis that it was said that there was no evidence of back impairment prior to work injuries relied on which were between 1987 and 1995. Once again, the version of section 68A which was under consideration differs from that which appeared in the Workers Compensation Act prior to its repeal. As Cole JA noted at 144, the decisions of the court in Pitt and J A Crockett Pty Ltd v Cox (1994) 10 NSWCCR 622 did not accord with the legislature’s intention. Accordingly, he noted that by the WorkCover Legislation Amendment Act 1995 the parliament repealed Note (g) of the Table to section 66 and introduced section 68A. He further noted that by the terms of section 68A(1)(b) prior non-compensable injuries, pre-existing conditions or abnormalities required a deductible proportion being determined for which the employer, otherwise liable, is not to be responsible. His Honour referred to a passage of the judgment of Beazley JA in Ellul which states in part:
“It is clear from the terms of section 68A(1) that the sub-section is not concerned with any pre-existing condition or abnormality which is not causing any permanent impairment.”
His Honour thought that the last sentence which I have quoted was taken out of context and from the whole paragraph it was clear that her Honour was clearly stating that unless a pre-existing condition was a contributing factor causing permanent impairment then section 68A(1)(b) had no application. The appeal in that case was dismissed.
The third case relied on by the worker’s solicitors is the decision of the Court of Appeal in EMI. The decision of the Court of Appeal was given in that case by Beazley JA with whom Meagher JA and Grove A-JA agreed. That case was an appeal from Geraghty J. His Honour had awarded weekly compensation to a worker and also made awards under sections 66 and 67 of the 1987 Act. There were three insurers and appeals were brought by the post-1987 insurer, as well as by the pre-1987 employers. The worker had worked as a timber-hand at various sawmills. There had been an injury to the worker’s back in August 1977 from which time he had suffered dull aches and sometimes sharp pains. He had another injury in 1979 with increased backache. He had suffered further injuries in 1988 and 1989. The trial judge rejected the submission that it was a disease of gradual onset and held that the worker’s condition was due to four frank injuries, as well as nature and conditions of employment. Her Honour, Beazley JA, traces the amendments to the workers compensation legislation in respect of Schedule 6, Part 6, clause 6. The Court of Appeal had to consider the effect of the amendments brought about by Act No. 89 of 1995, the WorkCover Legislation Amendment Act. The question was whether the amendments introduced by that Act had the effect that the worker was not entitled to compensation under section 66 for that part of the loss resulting from the pre-1987 Act injuries. There was an apparent conflict between the provisions of Schedule 6, Part 6, clause 6(2A) and (3). Both sub-clauses (2A) and (3) make provision for the application of the amended sub-clause (2). The appeal held that sub-clause (3) saved cases commenced before 19 June 1995 which included the case under appeal. There was no deduction pursuant to Schedule 6 Part 6 clause 6 because (under the provisions of clause 6(2), as it applied) the worker had not received compensation under section 16 of the 1926 Act. It was also submitted that section 68A required a deduction to be made. Consideration was given to what was meant by “previous injury” or “any pre-existing condition or abnormality”. Her Honour held this did not encompass a work-related injury prior to the commencement of the 1987 Act. She cited the decisions Ellul and D’Aleo. She considered that s68A did not by its terms exclude pre-1987 Act injuries. She considered that if that was the case, Schedule 6, Part 6, especially clause 6(1), would have no effect or operation. Beazley JA in EMI summarised the effect of the two cases referred to by the Arbitrator, Clutha and Pitt as follows:
“The meaning of clause 6 in its original form was considered by this court in Clutha Ltd v Danswan (1993) 9 NSWCCR 225 and NSW TAFE v Pitt (1993) 9 NSWCCR 309. In each case, the Court held that for the purpose of determining the compensation payable under section 66 in respect of impairment to the back, neck or pelvis, which was due in part to an injury which occurred before and in part the one which was sustained after the commencement of the 1987 Act, the entire loss suffered by the worker was to be treated as having resulted from the injury received after the 1987 Act.”
As Beazley JA noted in EMI at 725, clause 6 was amended by the Workers Compensation Legislation (Miscellaneous Amendments) Act 1994. The effect of this amendment was that compensation paid under section 16 of the former Act was to be deducted from the amount of compensation payable in accordance with the 1987 Act. There were further amendments to clause 6. The current form of Schedule 6 Part 6, clause 6(2) is as a result of Act No. 89 of 1995 and this has retrospective effect.
It is reasonably clear that Schedule 6, Part 6, clause 6(1) is subject to Schedule 6, Part 6, clause 6(2). This I think follows from the legislative history indicating the intention of the legislature that there should be a deduction in respect of injuries prior to the commencement of the 1987 Act. The Arbitrator has said that there was no assessment of the impairment resulting from the 1986 injury. That is certainly true but I do not think that Schedule 6 Part 6, clause 6(2) requires this and subsequent cases referred to by the Arbitrator, to which I will next turn, support the view which I have taken. I note that the Arbitrator considered that these decisions were wrongly decided if they were inconsistent with the conclusion to which he came. I am not of that view.
In Brenton, Armitage J considered a case of injury to the worker’s right leg; some of the injuries being prior to 30 June 1987 and others subsequently. Part of the headnote of that case is as follows:
“(2) The combined effect of the new section 68A of the Act and Schedule 6 Part 6 clause 6(2) and (3) of the Act is that, if a loss is due partly to an injury received before the commencement of the Act and partly from an injury received after that commencement, compensation is only payable under section 66 of the Act for that portion of the loss due to the latter injury. The proportion of the loss due to the former injury is compensated under the Act in an amount calculated in accordance with section 16 of the Workers Compensation Act 1926 in its continued operation.”
His Honour found that there was a 30% loss of use of the leg and he also found that two-thirds of this was due to injuries received prior to 30 June 1987 and one-third thereafter. It does not appear that there was any separate assessment made as to loss of use of the leg as at 30 June 1987.
It appears that his Honour took the same view of Schedule 6 Part 6, clause 6(2) as do I.
In Brown Neilson J dealt with the case of a worker who was claiming impairment of his back and neck and loss of use of his legs. Three injuries were relied on prior to 30 June 1987 and two thereafter, together with the nature of work from 1976 to 1992. There was a claim against a second respondent in which the only injuries relied on were post-1987. His Honour found that total impairment of the back was 40% of which he considered half was due to the effects of work done before 30 June 1987 and thus the worker obtained an award for 20% impairment of the back. Again in this case it appears that no assessment as to impairment was done except in relation to the total impairment as a result of all injuries. I respectfully considered this case also is correctly decided and, insofar as the Arbitrator has differed, I consider that he has erred.
Neilson J in Brown considered the judgment of the Court of Appeal in EMI. He said the following:
“That interpretation of the original section 68A binds me, but the section has now been repealed. I believe the following criticisms should be recorded:
(i) Her Honour relied on an obiter dictum without considering its accuracy;
(ii)Her Honour did not attend to the point that the word ‘injury’ used in the Act must be given its prescribed meaning as laid down in section 4;
(iii)Her Honour did not refer to the fact that Schedule 6 Part 6, clause 6(1) (to which she was obviously referring in the last quoted passage) relates to all items in the Table, whilst the original s68A referred specifically to impairment of the back, neck and pelvis; her Honour appears to have applied a principle of specialia generalibus non derogant, but the proper principle of interpretation is generalia specialibus non derogant; Schedule 6 Part 6, clause 6(1) still has work to do for all other items in the Table.”
The authorities relied on by the worker do not, in my opinion, assist in the determination of this appeal. Schedule 6, Part 6, clause 6(2) must be given effect to and this is to be done in my opinion despite the terms of Schedule 6, Part 6, clause 6(1). As I have earlier indicated, sub-clause (2) provides that no compensation is payable for the part of the loss resulting from an injury received before the commencement of the Act whether or not compensation has been paid or is payable under section 16 of the former Act. As I have also indicated, no compensation would be payable under the former Act in respect of impairment of the back. If I understand the Arbitrator’s reasons correctly, he has considered that no deduction ought be made from the compensation otherwise payable because the injury of December 1986 is relied on by the worker in his Application for Compensation. In my opinion, the Arbitrator has erred in his interpretation of section 68A and Schedule 6 Part 6, clause 6(2).
The Effect of the MAC
The employer submits that some weight must be given to the opinion of the AMS whether that opinion is binding or simply persuasive. The Arbitrator discounted the opinion of the AMS as being based on an incorrect history. When one looks at more contemporaneous medical records of complaints, it is obvious that this conclusion by the Arbitrator was incorrect.
As I have earlier indicated, a MAC pursuant to section 326 of the 1998 Act is conclusively presumed to be correct as to, inter alia, the degree of permanent impairment of the worker as the result of an injury and whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality. These were matters which the AMS sought to address in his Certificate and in his subsequent letter in response to a request by the Registrar for clarification. It is clear that in the opinion of the AMS, the proportion of permanent impairment due to previous injury (December 1986) is 50%. The Arbitrator has stated that the only binding part of the MAC is the Table at its conclusion. I can see nothing in the statutory provisions which leads to this result. Insofar as the letter of the AMS dated 2 May 2005 clarifies what the AMS has recorded in column 2 of the Table, I consider that that ought be incorporated in the Table. I am nonetheless of the view that the opinion of AMS on the matters referred to in section 326 is binding wherever those opinions might be found within the Medical Certificate, whether in the concluding Table or not. If it were correct to take a narrow view of the matter, namely that only those matters in the Summary Table represented the conclusively correct opinions of the AMS, then that Table in this case would not support the award of compensation made because the AMS refers to the body part as being the “lumbar spine”. It hardly needs to be said that there was not ever any such item in the Table to section 66.
DECISION
Given the errors identified in this Determination, I am of the view that the decision of the Arbitrator should be revoked and another order substituted. I consider that the award under section 66 should be for 10% permanent impairment of the back.
The decision of the Arbitrator dated 24 June 2005 is revoked and the following decision is made in its place:
1.The Respondent Employer, Leeton Shire Council to pay $6,000.00 in respect of a 10% permanent impairment of the back pursuant to section 66 of the Workers Compensation Act 1987.
2.The Respondent Employer, Leeton Shire Council to pay the Applicant’s worker’s costs as agreed or assessed.
COSTS
Although the appeal by the employer has been successful, it is not in my view appropriate to make an order that the worker pay the employer’s costs of the appeal. Accordingly, I make no order as to the costs of the appeal.
Anthony Candy
Acting Deputy President
1 September 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ANTHONY CANDY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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