Manpower Pty Ltd v Harris
[2011] NSWWCCPD 10
•25 February 2011
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| CITATION: | Manpower Pty Ltd v Harris [2011] NSWWCCPD 10 | ||||
| APPELLANT: | Manpower Pty Ltd | ||||
| RESPONDENT: | Jeffrey Richard Harris | ||||
| INSURER: | GIO General Limited | ||||
| FILE NUMBER: | A1-4718/10 | ||||
| ARBITRATOR: | Mr B Batchelor | ||||
| DATE OF ARBITRATOR’S DECISION: DATE OF APPEAL HEARING: | 6 October 2010 18 February 2011 | ||||
| DATE OF APPEAL DECISION: | 25 February 2011 | ||||
| SUBJECT MATTER OF DECISION: | Doctrine of res judicata; effect of prior consent orders for continuing weekly compensation; relevance of words “without admission of liability” in consent orders; application to call oral evidence from expert witness; refusal to admit unserved clinical notes; refusal of adjournment; injury; substantial contributing factor; partial incapacity; assessment of weekly compensation under s 40 Workers Compensation Act 1987 | ||||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | ||||
| HEARING: | Oral | ||||
| REPRESENTATION: | Appellant: | Mr D Saul, instructed by Leigh Virtue & Associates | |||
| Respondent: | Mr B McManamey, instructed by Taylor & Scott Lawyers | ||||
ORDERS MADE ON APPEAL: | For the reasons given in this decision, the Arbitrator’s determination of 6 October 2010 is confirmed. The appellant employer is to pay the respondent worker’s costs of the appeal, assessed at $2,200 plus GST. | ||||
BACKGROUND
The respondent worker, Mr Harris, is an electrician. The appellant employer, Manpower Pty Ltd (Manpower), is a labour hire company. Manpower supplied workers to United Rail Pty Ltd (United Rail), a company that builds railway carriages at Broadmeadow in NSW. In August 2005, Manpower arranged for Mr Harris to work at United Rail’s premises. His work involved wiring modifications to trains.
On 19 May 2008, Mr Harris was working under a train at United Rail’s premises, attempting to undo bolts. The force required to undo the bolts varied from medium to extreme. One of the bolts was difficult to undo and Mr Harris braced his right leg on the train’s underfloor for leverage and felt a stabbing pain in his right groin. He had previously suffered a hernia (that required surgery) while working for a different employer in 1972.
In a claim form completed on 29 May 2008, Mr Harris said he first stopped work because of his injury at 12.30 pm on Monday 26 May 2008 and that he reported the injury on Tuesday 27 May 2008, finally ceasing work on the morning of 28 May 2008. He described his “injury/condition” as “PAIN IN R.H.S GROIN”. He has not returned to work since 28 May 2008.
Mr Harris commenced proceedings for compensation in the Commission in 2009 in matter No 1945 of 2009 (the first proceedings). The Commission referred the following issues to an Approved Medical Specialist (AMS), Dr Khan, for assessment:
(a) the relationship of employment to [the] injury (agreed to be inguinal neuralgia);
(b) Mr Harris’s capacity for work, and
(c) Mr Harris’s prognosis.
Dr Khan examined Mr Harris on 28 May 2009 and issued a non-binding Medical Assessment Certificate (MAC) on 11 June 2009, in which he concluded that Mr Harris’s employment, including the work-related injury on 19 May 2008, appeared to be a substantial contributing factor to the inguinal neuralgia. He thought that Mr Harris was partially incapacitated for work and would benefit from a referral to a pain management specialist.
After a teleconference before a Commission arbitrator on 14 August 2009, the Commission issued a “Certificate of Determination – Consent Orders” (the consent orders) in the following terms.
“In this matter a teleconference was held where the parties were assisted by me, acting as an Arbitrator, to come to an agreed resolution of the issues in dispute. By reason of their agreement, and in accordance with Rule 15.9(1) of the Workers Compensation Commission Rules 2006, the determination of the Commission in this matter is as follows:
Without admission of liability
1.Amend Part 4 of the Application to resolve Dispute under the heading ‘Injury Description’ to delete ‘hernia’ and insert ‘inguinal neuralgia’.
2.Respondent to pay the Applicant weekly compensation pursuant to section 40 of the Act at the full statutory rate for a single worker with no dependants as adjusted for the period 28 July 2008 to date and continuing.
3.Respondent pay the Applicant section 60 expenses up to $500 on production of accounts or receipts.
4.Respondent pay the Applicant`s costs as agreed or assessed.
Costs for both parties justify an uplift of 10% due to the liability issue, medical resolution of body part injury and definition (inguinal neuralgia), GMD referral.”
In a s 74 notice dated 31 March 2010, Manpower’s insurer, GIO General Limited (GIO), said that, having undertaken an “internal review”, it had decided to decline liability in respect of Mr Harris’s inguinal neuralgia condition. The “Statement of Matters in Dispute” listed the following as being in dispute:
“- Whether you are suffering from the effects of any work injury.
- Whether any medical condition from which you suffer is related to or caused by your employment or incident in your employment.
- Whether your employment is a substantial contributing factor to any alleged injury.
- Whether any medical treatment required by you is as a consequence of any work injury and/or is reasonably necessary.
- Whether you are incapacitated for work or in the alternative whether any incapacity for work is a result of any injury.”
The insurer relied on reports from Associate Professor Myers and Dr Edwards “to the effect that you do not have a work-related injury and in particular that your inguinal neuralgia condition is not related to any injury or incident on 19 May 2008”. GIO stopped weekly compensation payments on 11 May 2010.
In an Application to Resolve a Dispute (the Application) registered in the Commission on 11 June 2010, Mr Harris sought weekly compensation in the sum of $1,276 from 12 May 2010 to date and continuing. It described the injury as “inguinal neuralgia and/or Right sided groin disruption injury”. The injury was described as having occurred “Whilst attempting to undo bolts felt stabbing pain in right groin”.
Manpower filed a Reply on 2 July 2010 in which it confirmed the matters in dispute to be those in the dispute notice (the s 74 notice) attached to the Application.
The Commission listed the matter for conciliation and arbitration on 13 September 2010. After refusing Manpower’s application for an adjournment to call oral evidence from Associate Professor Myers, admitting into evidence late documents on behalf of Mr Harris, refusing to admit late documents on behalf of Manpower, and refusing a further application for adjournment by Manpower, the matter proceeded with submissions from both sides. Counsel for Manpower, Mr Saul, made no application to cross-examine Mr Harris.
Counsel for Mr Harris, Mr McManamey, submitted that the consent orders created an estoppel and that Manpower was prevented from denying:
(a) injury to Mr Harris arising out of or in the course of his employment with Manpower;
(b) that employment was a substantial contributing factor to the injury, and
(c) incapacity.
Mr Saul submitted that the consent orders created no estoppel and that the matter had to be determined on its merits.
In a reserved decision delivered on 6 October 2010, the Arbitrator found that the consent orders created an estoppel that prevented Manpower from disputing injury, the fact that employment was a substantial contributing factor to the injury, and incapacity up to the date of the s 74 notice. In the event that he was wrong on the estoppel issue, the Arbitrator found in favour of Mr Harris on all issues on the merits in any event.
The Commission issued a Certificate of Determination on 6 October 2010 in the following terms:
“The Commission determines:
1.The applicant sustained injury to his right groin on 19 May 2008 arising out of or in the course of her [sic] employment with the respondent.
2.The applicant’s employment with the respondent is a substantial contributing factor to the injury.
3.The respondent to pay the applicant compensation of $403.70 per week from 12 May 2010 to date and continuing at the maximum statutory as adjusted for a worker with no Dependants pursuant to section 40 of the Workers Compensation Act 1987 (“the 1987 Act”).
4.The respondent to pay the applicant’s reasonably incurred medical, hospital and rehabilitation expenses pursuant to Section 60 of the 1987 Act.
5.The respondent to pay the applicant’s costs as agreed or assessed.
For the purposes of Order 3, certify the matter as ‘complex’ and allow a 10 per cent uplift of costs applicable to both the applicant and the respondent.”
In an appeal filed on 1 November 2010, Manpower seeks leave to appeal the Arbitrator’s determination.
LEAVE
Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of s 352 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
Monetary threshold
It is not disputed that the monetary thresholds in s 354(2) are satisfied.
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with s 352(4) of the 1998 Act.
I grant leave to appeal.
EVIDENCE
Lay evidence
Mr Harris’s evidence is set out in an undated one-page handwritten statement that appears to have been prepared without legal assistance or advice. It is most unsatisfactory that Mr Harris’s solicitors presented his evidence in that way. Solicitors are reminded (yet again) that they have an obligation to properly prepare evidence attached to applications filed in the Commission. It is unacceptable for solicitors to delegate the preparation of critical evidence to the worker. Solicitors who are not prepared to undertake basic preparation should not practise in the jurisdiction.
Mr Harris said that the accident happened on a cold morning at approximately 7.00 am on 19 May 2008 while was attempting to undo bolts on an “inter car connecting box”. The job required him to lie on his back under a train. One hand held a socket on the nut and the other held a spanner on the bolt and, with some force (sometimes medium, sometimes extreme), he would “crack the bolt”. One of the bolts was tough and he braced his right leg on the under floor of the train “for leverage”. As he did so, he “felt a stabbing pain in [his] right groin”.
Prior to his accident, Mr Harris had been a “once a week golfer” and “at least” a “twice a week fisherman”. However, “since then due to the pain level and lack of energy neither can be done anymore”. Because of pain tablets, lack of sleep, constipation and a “low feeling” from staying at home, the effect on his personal life had been “terrible”. The injury also affected his personal life and resulted in the end of a relationship with his “lady friend” because of his “moodiness” and unwillingness to go out at night because of “lack of energy”.
Manpower relies on several lay witness statements dated 1 July 2008.
Mr Trpenovski, a supervisor with United Rail, said that Mr Harris had a poor attendance record and that he always complained of stomach problems. In the middle of May 2008, Mr Trpenovski called Mr Harris into his office and told him that the job he was on was finishing in a week and that he had a week’s notice. Mr Harris asked if there was any work “on locos”, to which Mr Trpenovski replied “no, there is nothing for you”. Mr Harris said “there are blokes who have been here for 3 weeks and I have been here for 3 years why do they get put before me?”. Mr Trpenovski did not respond. Mr Harris then said, “I think I’ve got a hernia and I’m seeing a doctor”. He added, “The heavy lifting work on the bogies is what has caused my hernia”. Mr Harris left work early on the day of the conversation and worked part of the next day, but again left early on that day and has not returned to work since.
Darren Milbourn, a leading hand with Manpower, said that Mr Harris did not report a work-related injury until after he received his notice of termination. He added:
“On Monday the 26th May 2008 Jeff had a sick day and on about Tuesday the 27th May I spoke to Jeff who said ‘I hurt myself’ I said did you report it? He said No, I am going to the medical center [sic].
Jeff did not say anything to me about a hernia or strain or pain from lifting.
I said just do light duties.
He said ‘I will mate, I’ll look after myself’.
About the next day he said ‘why do they keep all these other blokes when I am a good electrician’. I said ‘I don’t know mate’.
The last time I saw him was Weds 28th May 2008 when he said it is too painful I’m going home.”
Neil Morris is employed by Manpower as an electrician. He worked with Mr Harris at the Broadmeadow site. The work involved “using hand tools to rework passenger cars and run wiring modifications”. The hardest work was climbing under the train, climbing ladders in and out of trains and squatting. He said that the reels of cable were heavy, he estimated that they weighed up to 20 kg. Mr Harris seemed to cope with the work and looked fit and worked well. He did not “complain of any pain or injury until he said he had pain in his groin about a week before he got laid off”. As far as he recalled, it was early in the week. Mr Harris said, “I was under the train to change numbers on plugs and my groin is sore”. Mr Morris remembered the job, but not the date when Mr Harris told him about his groin pain.
Mr Morris said the hard part about the job was climbing under the carriage underframe. It was necessary to lie on your side in a cramped position. The “plugs” could be hard to “get on and off”. After Mr Harris mentioned his groin pain, he looked normal and kept working, though he “still complained about the pain in the groin”. He did not say what caused the pain. Mr Harris had the next Monday off. When he arrived at work on Tuesday, Mr Morris said, “you look crook”. Mr Harris replied, “yesterday I got no sleep for nearly two days with the pain. I will see some doctors on Monday it could be cancer”. About 30 minutes after this conversation, Mr Harris was laid off. Mr Morris could not recall exactly, but thought Mr Harris said that he reported the groin pain after he said he had been put off, though it was after he saw the doctor on the Monday that he took time off.
Kevin Morris, an electrician with United Rail, also worked with Mr Harris at Broadmeadow. He said the heaviest thing lifted was cable rolls and cable rollers. The maximum weight lifted was between 10 and 20 kg. He recalls that Mr Harris complained about pain, but he did not take much notice of it because it was a passing comment when he came to get something. He was not certain that it was his groin. He recalls that it was the week before Mr Harris was laid off, but he was not sure of the work Mr Harris was doing because they were not working together at that time.
Medical evidence
Mr Harris saw Dr Soh, his general practitioner, on Monday 26 May 2008. He saw Dr McDonald, general practitioner at Lingard Private Hospital, at 10.15 am on Wednesday 28 May 2008. Dr McDonald took a history that, from “about Tuesday 20 May 2008, he noticed twinges of discomfort in the right groin” that got progressively worse to be a “very sharp disabling pain over the weekend and the last couple of days”. Mr Harris said that, on his arrival at work on 28 May 2008, the pain was unbearable and he requested referral for more urgent attention. Mr Harris had a hernia in about 1972 and had had no problems since then. On examination, there was no obvious hernia recurrence. However, “palpation of the spermatic cord at the external ring revealed some very sharp tenderness”. Under “Assessment”, Dr McDonald wrote:
“1. Jeff has right inguinal neuralgia/?? Recurrent hernia.
2. As such is unfit for any sort of meaningful work.”
Dr McDonald issued a WorkCover certificate certifying Mr Harris unfit and arranged for an urgent ultrasound. He was aware that Mr Harris’s employment was to be terminated on Friday 30 May 2008.
An ultrasound on 28 May 2008 revealed no abnormalities in Mr Harris’s right inguinal region.
Dr McDonald saw Mr Harris at 3.00 pm on 29 May 2008, when the pain was “a little improved”. Mr Harris described the pain as a “constant dull ache, rather than the sharp pains”. Mr Harris took Panadeine Forte for the pain. Dr McDonald concluded that the worker had “some right inguinal neuralgia, but without recurrent hernia”. The doctor considered him fit for suitable duties. He recommended “clerical duties only” and issued a certificate to that effect. He counselled the worker to “take it easy and to work within his limitations”.
Dr McDonald reviewed Mr Harris on 12 June 2008. The worker said that his left inguinal neuralgia persisted. The pain was eased by lying flat and made worse by standing, walking or any straining. Panadeine Forte was helpful, but Mr Harris had trouble with constipation. On examination, there was mild tenderness in the groin. Dr McDonald repeated his previous diagnosis and opinion on fitness for work.
Mr Harris saw Associate Professor Myers at the request of GIO on 13 June 2008. He took the following history:
“He stated that he was working on a box beneath a train which needed to have multiple locks or bolts unlatched or undone. He said that in doing this, he noted slight discomfort in the right groin. He said following this, he got up onto a train which required some climbing and noticed a small twinge in the right groin.
The next day and on subsequent days, in the first few hours of each day, he noticed a twinge in the groin which he describes as small but intense.
He also describes an ‘annoying pain’ in the right groin which has persisted.
On 26 May 2008, one week following the stated incident, he drove to his local medical officer, Dr Linus So [sic], who practices at the Wyoming Medical Centre. He said that Dr So [sic] has been his local medical officer for many years in Newcastle before Dr So’s [sic] move to Wyoming on the Central Coast, hence Mr Harris has continued to use him as his local doctor.
He said that Dr So [sic] thought he may have had a hernia recurrence and ordered an ultrasound.
The following day (Tuesday) he worked until midday and then felt that he had to go home because of pain in his groin.
He said the next day (Wednesday), whilst at work, he felt that the pain worsened. He visited his works’ medical centre and requested a referral. He was sent to see the doctors at Lingard Hospital who sent him for an ultrasound which he said noted that he had no hernia.
He said his symptoms are relieved by Panadeine Forte and he is now taking about four of those tablets daily.
He said his symptoms in general remain and increase throughout each day. He said that by the end of the day, he feels the need to sit with the knee and hip flexed to obtain relief.
His work at Goninan’s [United Rail] finished on 28 May 2008, as he said there was no work available for him. He has not worked since.”
On examination, there was no evidence of a recurrence of Mr Harris’s previous hernia. Mr Harris claimed tenderness when Associate Professor Myers palpated the tissues at the right superficial inguinal ring. There were no complaints of dysaesthesia or numbness.
Associate Professor Myers concluded that there was “no specific diagnosis to be made with this injury” and that work was not a substantial contributing factor to Mr Harris’s complaints. There was no reason to suppose that Mr Harris suffered from entrapment neuropathy. Mr Harris did not have “classical entrapment syndrome as would be consistent with an ilioinguinal nerve entrapment following inguinal hernia repair”.
In answer to the question “Could the injury have occurred as stated?”, Associate Professor Myers said that “As there is no evidence of a significant injury, this question is, in my opinion, not specifically relevant”. He thought that Mr Harris was not suffering from a work-related injury and there was no “specific medical reason why Mr Harris is not able to perform his tasks as an electrician”.
GIO forwarded the report from Associate Professor Myers to Dr McDonald for comment. Dr McDonald replied on 25 June 2008 that Mr Harris’s employment was a substantial contributing factor to his “current condition”. His work required him to be in awkward positions, including crawling beneath railway carriages. Dr McDonald felt that such awkward manoeuvres were consistent with a strain of the ligaments in the region of his inguinal hernia repair. Prior to the awkward manoeuvres, Mr Harris had no neuralgic symptoms. Notwithstanding the opinion from Associate Professor Myers that Mr Harris did not have classical entrapment syndrome symptoms, Dr McDonald felt that the worker’s history was consistent with “hernia inguinal and/or genitor femoral irritation”. Dr McDonald felt that there were “three groups of substantial contributing factors” to Mr Harris’s injury:
(a) Mr Harris had previous inguinal hernia surgery, such as may produce scarring in the area;
(b) Mr Harris’s age, and
(c) the nature of Mr Harris’s employment which required awkward positions, including crawling and squatting.
Dr McDonald concluded:
“I note Associate Professor Paul Myers Medical Report. Clearly I disagree with him. Mr Harris has significant ongoing pain as a result of his work (amongst other factors) and deserves to be cared for.”
Dr McDonald next saw Mr Harris on 19 July 2008. He reported that the worker’s right inguinal hernia remained much the same. Mr Harris complained of a “dull constant ache in the morning and a very occasional sharp severe catching pain”. The sharp pain, which was short-lived, caused him to double up and stopped him from walking. Palpation again revealed “reduced tenderness in the right groin”, but there was no hernia. Dr McDonald concluded that Mr Harris had ongoing symptoms of right inguinal neuralgia and that he was fit for suitable duties, as currently documented.
Mr Harris saw Dr McDonald again on 21 August 2008. His right inguinal neuralgia persisted. The pain was worse in the morning. He tried to put off taking Panadeine Forte by resting with his hip slightly flexed. Panadeine Forte provided good relief of his discomfort. He rated his pain a 6 or 7 (presumably, out of 10) at its worst and between 1 and 2 (presumably out of 10) at its best. Mr Harris said that GIO had denied his claim.
At review on 18 September 2008, Mr Harris told Dr McDonald that his pain persisted. It was worse in the morning. He said he had to go to bed at about 7.00 pm because of increased pain in his groin and because of fatigue. He could not sleep past about 4.30 am because of the pain. Dr McDonald again stated that Mr Harris had symptoms of right inguinal neuropathy and remained fit for suitable duties. He referred the worker to Dr Tame, consultant in pain medicine, for consideration of an injection of long-acting local anaesthetic, as discussed by Associate Professor Myers.
Associate Professor Myers provided a supplementary report on 30 October 2008, in which he reviewed Dr McDonald’s reports and the ultrasound report of 28 May 2008. His opinion remained as before, namely that there was no evidence that would be consistent with Mr Harris “having a neuralgia”. It was his opinion that Mr Harris did not have a neuralgia, “an exposed nerve” or any entrapment syndrome related to his right inguinal hernia repair performed well over 30 years ago. He added that the injury claimed by Mr Harris was “not a work related injury” and that there was no evidence of significant injury with relation to the groin.
Dr McDonald saw Mr Harris on 13 September 2008 and reported that his right groin pain remained unchanged. He tried to stop taking pain relief but found it intolerable. He continued to take four Panadeine Forte a day. Dr McDonald’s opinion on diagnosis and fitness for work remained the same.
Dr Collins, physician, examined Mr Harris for medicolegal purposes on 24 November 2008. He took a history that Mr Harris was working in an awkward position endeavouring to disconnect electrical equipment. He felt a little sharp pain in the right groin. He moved to another job where he was stooping and, when he stood up, he “felt a short sharp considerable pain in the right groin”. He had similar pains later in the week when he was bending forward. A few days later, he had very severe pain in the right groin, so he saw his personal doctor at the Wyoming Medical Centre. He ordered x-rays and an ultrasound. While he was waiting to have it done, he went back to work, but he found the pain was too severe for him to continue. The ultrasound did not reveal a hernia.
Mr Harris told Dr Collins that he had intermittent sharp pain in the region of the right groin. Sometimes, it was instantaneous and sharp, and, at other times, it was dull but lasted longer. It might stop and he might walk a short distance and then the pain might hit him again. He had it daily. Though it was not as bad as it was five months earlier, it was still troublesome. He was not working and was on sickness benefits.
On examination, Dr Collins found no hernia impulse. There was tenderness over the inguinal canal, particularly in the region of its mid point over the femoral artery. He diagnosed right inguinal neuralgia as a result of straining the inguinal region from working in awkward postures at work. Mr Harris was not fit for his pre-injury occupation or for any manual occupation. He suggested further medical reviews, particularly in regard to treatment with long-acting anaesthetic. Without a definitive treatment, the problem would remain unresolved.
Dr McDonald reviewed Mr Harris on 14 January 2009. His opinion remained essentially unchanged.
Associate Professor Myers provided a supplementary report to Manpower’s solicitor on 31 March 2009, in which he confirmed that there was no injury to be found. He added that ultrasounds were often “poorly sensitive”. However, if an ultrasound reported there was no hernia, it was unlikely that a hernia existed.
Acting as an AMS, Dr Khan, consultant surgeon, examined Mr Harris on 28 May 2009. He noted the 1972 surgery and that Mr Harris made a satisfactory recovery and was able to resume his normal pre-injury duties. He had no groin symptoms prior to 19 May 2008. On that day, Mr Harris was working under a railway carriage undoing bolts. One of the bolts was stuck and he pushed his right foot against a bar of the carriage to get leverage. As he undid the bolt, he felt a sudden sharp pain in the right groin. He rested for a while and then worked on a job inside the carriage. The pain eased, but he felt it again that afternoon when he tried to stand up after squatting for a long period. He got intermittent pains and therefore he thought the pain would go away.
He saw Dr Soh on the Monday and was referred for an ultrasound. He worked on the Tuesday, but the pain got worse and he had to stop. He went to the work medical centre and was referred to Lingard Private Hospital, where he saw Dr McDonald. Mr Harris had been cleared for clerical work, but he said he was incapable of doing that work “as he has worked as an electrician all his life”.
Mr Harris told Dr Khan that he had persistent pain in his right groin, which was a little better (10–20 per cent) since the initial injury. He had two types of pain. One was a low-grade dull pain on top of the hernia scar, which was set off by physical activity. The second was a sharp stabbing type of pain, which occurred in the right groin. Any physical activity made the stabbing pain worse. Resting eased the symptoms. He avoided heavy lifting. He was able to do his household chores, though he took his time to do them. He sometimes did lawn mowing, but had to take Panadeine Forte due to pain after that activity. He did not do any gardening. He had not been able to go beach fishing since his injury.
On examination, Dr Khan found no evidence of abnormal illness behaviour. Mr Harris had taken two Panadeine Forte and therefore his pain at the examination was much less. He walked normally. The scar from his previous operation was non-tender and there was no evidence of a recurrence of the hernia. Mr Harris pointed to a region at the top of the operation scar as the site of a dull throbbing pain and to an area just below the superficial inguinal ring as the site of intermittent stabbing pains. Sensation was preserved over the right inguinal region and over the front and medial aspect of the right thigh. The ultrasound dated 28 May 2008 was normal.
Under “summary”, Dr Khan repeated the description of the incident on 19 May 2008 and stated:
“The mechanism of this incident appears to have led to a soft tissue injury in the right groin, which has led to ongoing symptoms of pain in the right groin which is suggestive of inguinal nerve neuralgia.”
He added that Associate Professor Myers had seen Mr Harris and could not identify a cause for the ongoing pains in terms of recurrence of hernia, or any typical clinical evidence of inguinal nerve neuralgia. He then noted that it had “subsequently been agreed upon that the symptoms of chronic groin pain that Mr Harris is suffering are from inguinal nerve neuralgia”. He then said:
“The question arises as to whether this pain or inguinal nerve neuralgia has occurred as a consequence of the incident of 19.5.2008 at work.”
After referring to the medical history and to the “investigatory reports”, which included Mr Neil Morris’s evidence (see [27] above), Dr Khan noted that there was no discrepancy in Mr Harris’s account of developing pain on 19 May 2008 and its deterioration over the ensuing days. There did not appear to be any other alternative activities or incidents outside work that may have affected Mr Harris’s right groin or caused an aggravation or injury.
Dr Khan concluded (at page 6) of his report:
“On the balance of probabilities, rather than possibilities it is therefore my opinion that Mr Harris does appear to have sustained an injury to his right groin on the alleged date of incident, namely 19.5.2008. The groin symptoms have persisted thereafter although there is [a] paucity of objective evidence to support the claims of persistent severe pain in that region.”
He thought that Mr Harris was fit for “selective duties”, which did not involve lifting more than 10 kg and did not require prolonged squatting, stooping, crouching or repetitive straining or pushing activities. Dr Khan found no inconsistencies on examination.
Dr Khan referred to reports from Associate Professor Myers dated 13 June 2008, 30 October 2008 and 31 March 2009. Whilst he agreed that there was no evidence of entrapment syndrome arising from entrapment of the ilioinguinal nerve, the neuralgia appeared to have occurred as a “post-traumatic event following injury, causing irritation of the ilio-inguinal nerve, rather than entrapment of the nerve from the old operation”. This may have occurred due to irritation of the nerve following trauma to the right groin soft tissues. Dr Khan did not agree with the opinions expressed by Associate Professor Myers because “the pains appear to have occurred soon after the incident on 19.5.2008 and would therefore be directly arising from that incident, as Mr Harris denied any previous symptoms in the right groin prior to the incident”.
Though Dr Khan agreed that it was not a “typical entrapment syndrome”, he added that there was a well-documented history of an injury to the right groin that led to the development of a pain syndrome, which could “only be attributed to neuralgia of the ilio-inguinal nerve”. He agreed with the opinion of Dr Collins.
Dr Garvey, general and diagnostic surgeon, reported on 25 August 2009. He took a consistent history of the incident on 19 May 2008 and that Mr Harris’s symptoms got progressively worse. On examination, there was no evidence of peripheral neuralgia, but all the nerves tested were “hypersensitive”. He diagnosed a “right groin disruption injury”. The worker’s history and examination were consistent with his presentation. He agreed with Dr Khan that Mr Harris could undertake modified work with a 10 kg lifting limit. Dr Garvey recommended a groin ultrasound to determine the “components of his injury”.
Dr Tame saw Mr Harris in October 2009. In his report to Dr McDonald dated 23 October 2009, he recorded that Mr Harris had a sudden onset of right groin pain while straining to undo some difficult bolts on 19 May 2008. The pain has remained and he complained of a “dull ache background pain” accompanied by frequent sharp shooting pains felt in the area. He experienced the shooting pains on multiple occasions every day. They could be spontaneous or evoked. Though there was no complaint of burning or itching, there was some numbness in the area.
On examination, Dr Tame found a small area of reduced sensation over the superficial inguinal ring. Mr Harris also had “deep mechanical allodynia in the area and punctate allodynia in a small area surrounding the area of the superficial inguinal ring”. He had an “exquisitely tender pubic symphysis and adductor tendon”. Dr Tame suspected that Mr Harris had developed a secondary condition of osteitis pubis and adductor tendonitis from his altered gait as a result of the primary pain problem in the groin.
Under “diagnosis”, Dr Tame said that Mr Harris had right groin pain “which may be being contributing [sic] to by a small hernia that Dr Garvie [sic] is searching for, an irritation of the ilio-inguinal nerve which could be secondary to a small hernia or a primary occurrence”. He thought that Mr Harris also had a significant psychological reaction to his chronic pain problem. He proposed a trial of Lyrica and possibly other anti-neuropathic pain medications.
On 13 January 2010, Dr Tame reported that Mr Harris had a three-week elimination of pain with the “pulsed radiofrequency treatment and injection”. Though that was not the duration of benefit he had hoped for, it indicated “we were in the right spot in terms of the origin of his pain”. Dr Tame thought that peripheral nerve stimulation had the ability to completely control Mr Harris’s pain long term.
Associate Professor Myers reported again on 25 February 2010, after having read the reports from Drs Tame and Khan. He essentially repeated his previous conclusions, namely that:
(a) it may well be that on 19 May 2008 Mr Harris suffered “some strain of the muscles in the right groin”. However, any such strain would have “long ago settled”;
(b) there was no specific distribution of either the iliohypogastric or ilioinguinal nerve of Mr Harris’s symptoms. Therefore, he had generalised pain in the region;
(c) pain can neither be proved nor denied, as it is not able to be objectively proved or measured;
(d) there was no evidence that Mr Harris has inguinal nerve neuralgia;
(e) there was not sufficient evidence that Mr Harris should undergo further surgical exploration of the groin;
(f) there was no good evidence that a nerve stimulator was likely to be of specific benefit;
(g) there was no objective reason why Mr Harris could not return to full-time normal duties;
(h) there was no objective evidence of Mr Harris’s complaint of pain in the right inguinal region, and
(i) there was no convincing evidence that Mr Harris had any specific form of neuralgia or that his symptoms were related to any incident in May 2008.
Dr Garvey provided a supplementary report on 3 May 2010, in which he confirmed his opinion that, in line with Dr McDonald, he diagnosed a “right sided groin disruption injury” following the acute incident on 19 May 2008. He added that the tenderness found by Associate Professor Myers in his report of 13 June 2008 was consistent with this diagnosis. He disagreed with the assertion by Associate Professor Myers that there was no objective evidence of an injury. Dr Garvey’s examination on 25 August 2009 was consistent with groin disruption injury, a condition common in workers who work in confined spaces. He confirmed that ultrasounds on 28 May 2008 and 1 March 2010 showed no abnormality in the right groin. However, as they were “general ultrasounds” they “would not be expected to detect the subtleties of groin disruption injury”. He added that groin disruption injury was a poorly recognised cause of chronic pain in injured workers.
After reviewing Dr Garvey’s reports (and several other documents), Associate Professor Myers reported again on 30 June 2010. He said “[t]he concept of ‘groin disruption injury’ is not one which is generally accepted” and that much of the literature on the topic was “speculative”. There was no “consensus as to what specifically constitutes this diagnosis”. He did not think the diagnosis of groin disruption injury was “sustainable” on the basis of a complaint of pain and some tenderness over the medial aspect of the inguinal ligament. He concluded that he remained of the opinion that Mr Harris “does not have a work related injury and that work has not substantially contributed to his complaint of groin pain”. He felt the safest course was to describe Mr Harris’s condition as a “complaint of groin pain with no specific diagnosis able to be made”.
Dr Collins re-examined Mr Harris on 6 September 2010. Mr Harris continued to get considerable pain in the groin. There was considerable tenderness over the inguinal canal, particularly the midpoint. Dr Collins diagnosed “right inguinal canal” (sic). He thought the condition was a direct result of straining the right inguinal region from working in awkward positions. Mr Harris was not fit for his pre-injury occupation or for any manual occupation because of his right inguinal pain. Under “further treatment needs”, Dr Collins noted that Mr Harris had already had a diagnostic injection into the ilioinguinal canal, which provided relief of pain. That confirmed the diagnosis of ilioinguinal neuralgia. Dr Collins felt that the next step was to have surgical interruption of the nerve and he was at a loss to understand why that simple procedure, which should provide complete relief of Mr Harris’s condition, has not been done. Unless he has some definitive treatment, the problem would remain unresolved.
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a) finding that Manpower was estopped from disputing injury or disputing that employment was a substantial contributing factor to the injury (estoppel);
(b) refusing Manpower’s application for an adjournment to call oral evidence from Associate Professor Myers (adjournment to call Associate Professor Myers);
(c) refusing to admit into evidence documents produced under direction from Idameneo (123) Ltd, being documents from Mr Harris’s treating general practitioner, Dr Soh, and refusing Manpower’s application for an adjournment to allow the documents from Dr Soh to be tendered (Dr Soh’s notes and second adjournment application);
(d) finding that the incident on 19 May 2008 resulted in a condition that amounted to an “injury” within the meaning of ss 4 and 9A of the Workers Compensation Act 1987 (the 1987 Act) (injury), and
(e) finding that such injury caused Mr Harris ongoing incapacity and the need for ongoing s 60 expenses (incapacity and s 60 expenses).
SUBMISSIONS, DISCUSSION AND FINDINGS
Estoppel
The Arbitrator found, on the basis of the consent orders, that Manpower was estopped from disputing injury to Mr Harris arising out of or in the course of his employment, that that injury was inguinal neuralgia, that the worker’s employment was a substantial contributing factor to such injury, and that Mr Harris was incapacitated for work up until the date of issue of the s 74 notice on 31 March 2010 (Reasons at [67]).
The Arbitrator relied on two cases to support his finding that the consent orders gave rise to estoppels: Rail Services Australia v Dimovski [2004] NSWCA 267; 1 DDCR 648 and W E Bromley Pty Ltd v Coggins [2006] NSWWCCPD 128 (Coggins).
In Coggins, there had been an award entered by consent in the former Compensation Court of NSW for the employer on a claim for weekly compensation, but an award in favour of the worker for lump sum compensation. In a later claim for weekly compensation from the date of the consent award, the employer argued that the worker was not entitled to claim weekly compensation because of an estoppel that arose from the earlier consent award. In holding that the worker was not estopped, I said (at [27]):
“In the present case the only estoppels that arise from the Consent Award are that the Appellant Employer is estopped from denying that as a result of an injury sustained with it in or about February 1999 the Respondent Worker has, as at 22 October 2002, a 20% impairment to his back and a 5% loss of use of his left leg at or above the knee. The Respondent Worker is estopped from claiming weekly compensation or medical expenses for any period up to 22 October 2002. In respect of any claim after 22 October 2002 the Commission was and is entitled to consider the evidence on its merits and make a determination based on that evidence unrestrained by the Consent Award made by the Court.”
The Arbitrator considered the situation in Coggins to be very similar to Mr Harris’s case. He thought that the consent orders were “more than an agreement by the respondent [Manpower] to make voluntary payments of weekly compensation” (Reasons at [59]), and, if Manpower was going to challenge its liability to pay compensation to Mr Harris on the basis of the evidence from Associate Professor Myers, it should have done so in the first proceedings (Reasons at [65]).
Mr Saul submitted that no estoppel arises from the consent orders because there was no hearing and the orders were “without admission of liability”. He submitted that the orders were an expeditious manner of dealing with the parties’ agreement and the “specification that the orders were ‘without admission of liability’ was an unequivocal statement that neither party was compromising any part of his or her position in the litigation”.
Mr Saul drew a distinction between issue estoppel and other res judicata estoppels, “such as where a litigant attempts to revisit the actual liability that has been determined”. He conceded that the consent orders may well give rise to a res judicata that prevents the employer from re-litigating the question of whether the employer was obliged to pay weekly compensation for as long as the orders were in force and no dispute was raised. However, that was different, so he submitted, from saying that an issue estoppel arises preventing the employer from re-litigating any issues of fact or law that led to that conclusion.
Save for the concession as to the effect of res judicata estoppels, I do not accept Mr Saul’s submissions.
For the reasons set out below, the consent orders give rise to a res judicata estoppel that binds the parties, and GIO was not entitled to stop payments to Mr Harris and not entitled to dispute liability in the second proceedings. The words “without admission of liability” are of no effect (Ashenden v Stewarts & Lloyds (Australia) Ltd [1972] 2 NSWLR 484 (Ashenden).
Ashenden concerned a claim for lump sum compensation for industrial deafness under s 16 of the Workers’ Compensation Act 1926 (the 1926 Act). The employer disputed liability, but the parties later settled the claim. They handed up terms of settlement, expressed to be without admission of liability, and asked the Commission to make an order in the terms of their agreement. The trial judge refused to do so, substantially on the ground that he was not satisfied on the evidence that the worker was getting the compensation to which he was entitled. The employer appealed by way of a stated case.
Taylor AJA said (at 492E):
“In accordance with general principles, parties who are sui juris may, if there is a dispute between them as to their respective rights and liabilities, settle their dispute by agreement, and, if it is so agreed, have the terms of their agreement made an order of the court.”
His Honour added (at 493G-494A) that the terms of settlement, when read in conjunction with the application for determination and the answer, were evidence by way of admission of facts sufficient to found the court’s jurisdiction. The terms clearly imposed a liability on the employer. With respect to the words “without admission of liability”, his Honour said (at 494B):
“I do not see how, on the one hand, he can say ‘I agree to become liable for the amount stated in the terms of settlement’ and at the same time assert that he makes no admission of liability. This seems to me to be just as illogical as the course that was taken in Haynes v Hirst [(1927) 27 SR (NSW) 480] where the purchaser, there being a defect in title, required the vendor to remove the objection thereby electing to treat the contract as subsisting, and sought to avoid the consequences of such election by a prefatory statement that his requirement was ‘without prejudice’ to his right to repudiate the contract’. The late Mr Justice Long Innes said [at 489] this could not be effectively done: ‘In plain language a man can only elect once, and once he has elected he is bound by his election and cannot again avail himself of his former option, merely because he claimed in the first instance to exercise his election without prejudice. A man, having eaten his cake, does not still have it, even though he professed to eat it without prejudice’.
This defendant [sic, respondent] agreed that he was liable and he agreed that his liability should be the subject of an award of the Commission. He cannot, in my opinion, do this and at the same time say ‘I am not admitting I am liable’, since he clearly does admit his liability when he agrees to an award. This, in my view, renders the words ‘without admission of liability’ devoid of any effect whatsoever.”
Hardie AJA observed (at 497C) that the parties had not been prepared to disclose to the Commission “any information relevant to matters arising in the proceedings, other than the Terms of Settlement”. There was no indication of why the worker had agreed to accept a settlement substantially less than his claim. As a result, the trial judge said that he was left without any belief in the probability that the compensation he was asked to award was what the Act said the worker shall receive and declined to find it. His Honour added (at 498C) that s 51 of the 1926 Act “expressly contemplated and provided for the parties negotiating and, if possible, reaching agreement”.
As a result, the Court held that the trial judge had erred in declining to make the award the parties sought.
On the relevance of the words “[b]y consent and without admission of liability”, his Honour said (at 498F):
“I am disposed to the view that in a settlement such as this there is in law and of necessity an admission of liability, that the words quoted are repugnant to the rest of the document and that accordingly the Commission should require those words to be eliminated from its award. This point, however, was apparently not raised by or before the Commission and no reference to it appears either in the stated case or in the annexed reasons. However, I do not wish to be understood as taking the view that those words are proper to be used in terms of settlement providing for the making of an award in favour of the worker or in the award in fact made.”
In a dissenting judgment, Jacobs JA said (at 488D) that, since the parties had declined to admit between themselves the facts necessary to jurisdiction by prefacing the agreement between them with the words “without admission of liability”, the jurisdiction of the Commission “as an inferior court did not appear and the Commission was therefore entitled to take the view that its jurisdiction should not be exercised on the material before it”.
Given that Ashenden concerned an appeal from consent orders in the previous Workers Compensation Commission, I am bound to apply the clear statements of principle that the words “without admission of liability” are, in the circumstances of the present case, “devoid of any effect whatsoever” and “are repugnant to the rest of the document”.
Dealing with res judicata, McColl JA (Giles and Campbell JJA agreeing) said (at [73]) in Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 (Habib):
“The doctrine of res judicata properly so-called (the first principle referred to in Dow Jones) applies where a plaintiff establishes his cause of action so that, upon judgment, the cause of action and any matters which were necessarily established as its legal foundation or as the justification for its conclusion, or were legally indispensable to the conclusion merge in the judgment, and no longer have an independent existence and cannot be re-litigated in subsequent proceedings between the parties of their privies: Blair v Curran [1939] HCA 23; (1939) 62 CLR 464 (at 531–532) per Dixon J; Anshun (at 597) per Gibbs CJ, Mason and Aickin JJ; Chamberlain v Deputy Commissioner of Taxation (ACT) [1988] HCA 21; (1988) 164 CLR 502 (at 508) per Deane, Toohey and Gaudron JJ; James Hardie and Co v Seltsam Pty Ltd [1998] HCA 78; 196 CLR 53 (at [40]) per Gaudron and Gummow JJ.” (emphasis added)
In respect of consent orders, her Honour said (at [186]):
“Orders made by consent may create an estoppel as between parties, (and, no doubt may be considered for the purpose of determining whether subsequent proceedings would lead to conflicting judgments), however they do so ‘only as to those matters which are necessarily decided’, to ascertain which ‘the court will closely examine all such evidence, if any, as is available and admissible, and, by the aid of such materials, will ascertain whether any and what adjudication of matters in dispute was expressed, or necessarily involved, in the actual decision assented to’: Isaacs v Ocean Accident and Guarantee Corporation Ltd (1957) 58 SR (NSW) 69 (at 75), per Street CJ and Roper CJ in Eq; see generally the helpful discussion of the issue by Barrett J in Land Enviro Corp Pty Ltd v HTT Huntley Heritage Pty Ltd [2008] NSWSC 185; (2008) 72 NSWLR 160 (at [63] – [65]); Abigroup Contractors Pty Ltd (at [146]).” (emphasis added)
McColl JA again considered the effect of consent judgments in Nau v Kemp & Associates [2010] NSWCA 164 (Nau) and said (at [64]):
“Consent judgments attract the operation of the doctrine of res judicata, however ‘[t]he fact that a judgment is entered by consent may on occasion make it hard to say what was necessarily decided by the judgment, especially where it is the defendant who wishes to bring action at a later date’: Chamberlain v Deputy Commissioner of Taxation (ACT) [1988] HCA 21; (1988) 164 CLR 502 (at 508) per Deane, Toohey and Gaudron JJ; see also (at 505) per Brennan J; (at 512) per Dawson J; see also Spencer Bower and Handley, Res Judicata, 4th ed (2009) LexisNexis at ([2.16]ff).”
Her Honour added (at [65] to [68]):
“65 The observation in Chamberlain referred to in the previous paragraph gave, as an illustration, Isaacs v Ocean Accident & Guarantee Corporation Ltd (1958) 58 SR (NSW) 69. In that case, Street CJ and Roper CJ in Eq held (at 75) that orders made by consent create an estoppel as between parties ‘only as to those matters which are necessarily decided’, to ascertain which:
‘...the court will closely examine all such evidence, if any, as is available and admissible, and, by the aid of such materials, will ascertain whether any and what adjudication of matters in dispute was expressed, or necessarily involved, in the actual decision assented to.’
66 In Isaacs, a consent judgment for Winslett was entered against Isaacs in an action in which Winslett claimed damages for personal injuries sustained through allegedly negligent driving by Isaacs’ servant or agent. The consent judgment was entered pursuant to terms of settlement which required that ‘without admission of liability verdict to be entered in favour of the plaintiff’. The trial judge entered a verdict for Winslett for £4500 and directed that judgment be entered. Judgment was entered in accordance with the Rules of Court – it contained no reference to the terms of settlement. Isaacs subsequently sought to claim damages from Winslett for the latter’s allegedly negligent driving in the same accident.
67 Street CJ and Roper CJ in Eq (Owen J dissenting) held (at 75–76) that the fact the parties had by express agreement removed from the court’s consideration any question of Isaacs’ liability to Winslett, meant that no estoppel adverse to Isaacs arose on the issue of liability. Accordingly as the parties’ intention that ‘the judgment, when entered, was not to be taken as establishing that [Isaacs] was in fact liable to [Winslett]’ appeared in the court record, their Honours found it could not conclude the issue of liability had been determined adversely to Isaacs: Isaacs (at 76). This conclusion was described as correct in principle in Mitsubishi Motors Australia Ltd v Harbord (1997) 69 SASR 75 (at 90–91) per Doyle CJ (with whom Matheson and Olsson JJ agreed). The learned Chief Justice also observed that Isaacs was referred to in Chamberlain in the context of res judicata, in a manner which, in his view, did not limit the High Court’s apparent approval of the decision to such estoppels.”
Isaacs v Ocean Accident & Guarantee Corporation Ltd (1958) 58 SR (NSW) 69 is clearly distinguishable as it concerned the settlement of a claim for common law damages and a subsequent claim for damages by the original defendant against the original plaintiff. That is not the situation in the present matter.
The Commission is a statutory tribunal and has only those powers conferred on it by the relevant Workers Compensation Acts (the 1987 Act and the 1998 Act) and the Workers Compensation Commission Rules 2010 (the Rules) (Raniere Nominees Pty Ltd (t/as Horizon Motor Lodge) v Daley [2006] NSWCA 235; 5 DDCR 61). The right to compensation under the 1987 Act only arises if a “worker” has received “an injury” (s 9 of the 1987 Act) arising out of or in the course of his or her employment (s 4 of the 1987 Act) and to which employment was a substantial contributing factor (s 9A of the 1987 Act). The right to weekly compensation only arises if incapacity for work (total or partial) results from the injury (s 33 of the 1987 Act). The Commission has no jurisdiction to order the payment of compensation unless it makes a finding on each of these matters, or the employer expressly or impliedly admits them.
Once it is accepted that the words “without admission of liability” are of no effect (Ashenden), the consent orders “necessarily involved” the admission by Manpower that Mr Harris was a “worker” employed by it, that he received an “injury” in the course of or arising out of his employment, that his employment was a substantial contributing factor to that injury, and that he was incapacitated as a result of that injury. Those admissions follow from the face of the consent orders and the history of the matter. That history includes the fact that Manpower originally disputed the claim and then, after receipt of Dr Khan’s report, consented to the Commission making the orders for the payment of weekly compensation at the maximum statutory rate for a single worker with no dependants, as adjusted, under s 40 of the 1987 Act from 28 July 2008 to date and continuing and for the payment of s 60 expenses up to $500.
The restriction on the quantum of the s 60 expenses payable in the consent orders is of no consequence. At the time of the consent orders, s 60 was an indemnity provision and liability only arose when the expense was incurred (NSW Sugar Milling Co-operative Ltd v Manning [1998] NSWCC 33; 16 NSWCCR 606; 44 NSWLR 442; Widdup v Hamilton [2006] NSWWCCPD 258; 5 DDCR 85 – see now the amendments to s 60 in the Workers Compensation Legislation Amendment Act 2010). Unless the Commission had ordered the payment of a specific account, an employer would be entitled to dispute liability for treatment, even if it had consented to orders for the payment of weekly compensation, if it considered that the treatment was not reasonably necessary as a result of the injury (s 60(1)).
This leaves the consent orders to take effect according to their terms as formal orders of the Commission under Pt 15 r 9 of the Rules. That the Commission made the orders with the consent of the parties does not diminish their legal effect. They were and are as effective as any decision of the Commission made after a contested hearing. Such orders were and are binding on the parties unless and until revoked or varied on appeal or by further order of the Commission. As long as the orders remained on foot, the insurer had no right to stop payments and Mr Harris could have recovered any unpaid weekly compensation under s 362 of the 1998 Act. There is (arguably) an exception to the rule that an insurer may not stop payments contrary to an order of the Commission when an insurer stops payments on one or more of the grounds in s 52A of the 1987 Act (Sippel v Carey’s (Tamworth) Pty Ltd [2000] NSWCC 4; 19 NSWCCR 275; PCR Plaster Setting Pty Ltd v De Brito [2007] NSWWCCPD 159). The insurer has not relied on s 52A.
Mr Saul submitted that the orders do not have the same effect as if the Commission was a court. That is incorrect. The procedure for recovering an amount ordered to be paid by the Commission is that the Registrar must certify the amount. That certificate, once filed in a court having jurisdiction to give judgment for a debt of the same amount as the amount stated in the certificate, operates as a judgment (s 362). Substantially the same procedure applied for the enforcement of orders in the Compensation Court (s 23 of the Compensation Court Act 1984).
Mr Saul also submitted that the worker’s case had “changed significantly” since the consent orders and that his condition had “evolved into so many different diagnoses that the current ‘claim’ is different to the claim that was the subject of the previous proceedings”. Mr Saul submitted that Manpower’s case was that the consent orders were based on Dr Khan’s evidence and that, since then, the worker’s case has “changed in character”. He referred to Dr Garvey’s evidence that he never thought that Mr Harris had inguinal neuralgia.
I do not accept these submissions.
Under “Injury Description” in the current claim, Mr Harris alleged ‘“inguinal neuralgia’ and/or right sided groin disruption injury”. The injury alleged in the previous claim was “hernia” (see paragraph 1 of the consent orders). The evidence is clear that the incident on 19 May 2008 did not cause a hernia. Dr Khan stated that the injury was a “soft tissue injury in the right groin” which led to pain in the groin that was suggestive of inguinal nerve neuralgia. The consent orders amended Part 4 of the first Application to Resolve a Dispute to delete “hernia” and to insert “inguinal neuralgia”. Inguinal neuralgia is arguably not a personal injury under s 4 of the 1987 Act, but is a “severe, sharp, stabbing, paroxysmal pain along the course of a nerve” (Blakiston’s Gould Medical Dictionary). However, the concession in the consent orders was consistent with Dr Khan’s evidence and sufficient to support the award. That Dr Garvey later suggested a different diagnosis for the worker’s condition (right groin disruption injury) is of no consequence and does not suggest that the claim has changed in any material way. He took the same history of Mr Harris developing pain in his right groin whilst straining at work on 19 May 2008, but merely had a different diagnosis for the condition that subsequently developed.
That another doctor has a different opinion or “label” for the worker’s condition is of no consequence. Consistent with the evidence from Drs McDonald, Collins and Khan, Dr Garvey stated that Mr Harris’s condition had resulted from the incident at work on 19 May 2008. That did not involve a “change in character” in the case. It is not essential for the Commission to put a “label” on the worker’s condition or be concerned because witnesses have labelled it differently. In Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; 110 CLR 626 (Semlitch), Windeyer J said (at 639) “[b]ut I can see no need for the Court to put a label upon the applicant’s illness, or to be concerned because witnesses labelled it differently”. What is necessary is that the worker received a personal injury. The fact that Mr Harris received a personal injury was conceded by Manpower in the consent orders and it is of no consequence that doctors who saw him after 14 August 2009 (the date of the consent orders) put a different label on his condition.
In the alternative, Mr Saul submitted that:
(a) the Arbitrator should have assessed incapacity on the basis that Mr Harris was able to perform clerical work for a 40-hour week, as per the evidence from Dr McDonald;
(b) though Dr Khan restricted Mr Harris to jobs that did not involve lifting more than 10 kg, crouching, stooping or working awkwardly under carriages, he never suggested that Mr Harris could not work a full week;
(c) the Arbitrator pointed to no evidence to support his conclusion that Mr Harris’s capacity should be assessed on the basis of alternative work for 28 hours per week;
(d) though the Arbitrator accepted that Mr Harris was not (physically) incapacitated for clerical work, he found clerical work was not suitable solely on the basis that Mr Harris had never previously performed such work. Clerical work is not work for which training or expertise is necessary;
(e) there was no basis for the Arbitrator’s finding that Mr Harris would find it difficult if not impossible to obtain clerical work, and
(f) Mr Harris adduced no evidence of what he would be able to earn if he performed clerical work, and, therefore, he failed to prove that he would earn any less performing clerical work than he would have earned in his pre-injury employment as an electrician.
Whilst Drs McDonald, Collins and Khan both placed restrictions on the duties Mr Harris could perform, they did not say that he could only perform those duties for restricted hours. There is no evidence that Mr Harris was or is only fit for suitable work for 28 hours per week, as the Arbitrator found. I therefore accept that the Arbitrator erred in making that finding. However, for the following reasons, I do not believe that that error makes any difference to the outcome.
Mr Harris left school at the age of 16 and then completed a four-year apprenticeship as an electrician (see Dr Khan’s history). He has worked in that field ever since. He is currently 57 years old. He has no transferable skills and he has never worked in a clerical job. It follows that he will have difficulty finding and retaining suitable alternative employment as a clerk without retraining. There is no evidence that Manpower has offered any retraining or any rehabilitation to assist Mr Harris return to work in some area other than as an electrician.
The submission that Mr Harris has adduced no evidence of what he would be able to earn if he worked as a clerk has ignored the fact that the Commission is a specialist tribunal and is entitled to draw on its expertise in assessing the labour market and wage levels to make assessments of a worker’s ability to earn (J & H Timbers Pty Ltd v Nelson [1972] HCA 12; 126 CLR 625 at 632–3; Akawa Aust Pty Ltd v Cassells (1995) 25 NSWCCR 385 at 392; ICI Australia Operations Pty Ltd v WorkCover Authority of New South Wales [2004] NSWCA 55; 60 NSWLR 18; 1 DDCR 259; Australian Iron & Steel Pty Ltd v Elliott (1966) 67 SR (NSW) 87 at 94; 84 WN (Pt 2) (NSW) 45). It also ignores the fact that the Commission is not bound by the rules of evidence, but may inform itself in such manner as it thinks appropriate and as the proper consideration of the matter permits (s 354(2) of the 1987 Act).
In assessing Mr Harris’s ability to earn, I must take into account “the practical realities of the worker, in his or her injured condition and with his or her actual age, abilities, limitations and circumstances in life, being able to get and keep employment” (Ric Developments Pty Ltd t/as Lane Cove Poolmart v Muir [2008] NSWCA 155; 6 DDCR 339 at [50]).
Mr Harris’s handwritten statement clearly demonstrates that he has limited writing skills. Given that he has no other skills or training, and given that he has only worked as an electrician and has had no rehabilitation training, it is difficult to imagine him obtaining anything other than the most basic clerical job or, perhaps, some light electrical repair work that does not involve lifting over 10 kg or working in confined spaces. Because of his injury, skills, work experience, education, and lack of rehabilitation training, work of that kind will be difficult for him to obtain and retain.
On the issue of Mr Harris’s ability to earn, I informed the parties at the appeal hearing that I intended to refer to What Jobs Pay 10th ed 2009–2010, Yorkcross Pty Ltd, by Rodney Stinson. That publication reveals that general clerical workers aged between 15 and 19 earn $485 per week and those over 45 earn $902 per week. The average for all ages is $844 per week. Given Mr Harris’s experience and age, I believe it would be unrealistic to assess his ability to earn by reference to earnings for a full-time clerk over 45, as Mr Saul urged. The more rational assessment is that Mr Harris will, for the reasons I have outlined, have difficulty obtaining and retaining suitable employment, either as a clerk or doing light electrical repairs. Allowing for that fact and taking into account the matters in s 43A, in particular the lack of any rehabilitation training from the insurer, I assess his ability to earn in some suitable employment to be $693 per week, which is the average of the earnings payable to junior clerks and senior clerks.
Deducting $693 per week from his agreed probable earnings but for injury of $1,276 gives a difference of $583. There are no reasons to reduce that figure in the exercise of the discretion under s 40(1) of the 1987 Act. In respect of Mr Harris’s heart condition, the evidence is that he had a heart attack in 2002 and had a stent fitted. Dr Khan recorded, and I accept, that the worker’s “cardiac condition has remained satisfactory thereafter”. This statement is consistent with Mr Harris having continued full-time employment as an electrician until he injured his groin in May 2008.
Mr Saul submitted that Dr Soh’s notes provide evidence that Mr Harris is depressed because of his dealings with the insurance company and that condition is not compensable. Even if Dr Soh’s notes had been admitted, they provide no basis for the exercise of the discretion. They provide no support for the proposition that Mr Harris’s incapacity has resulted from an unrelated depressive condition. If it is thought that Mr Harris does have a psychological reaction, Dr Tame’s evidence is that it has resulted from his chronic pain due to his injury. I am satisfied that Mr Harris’s incapacity has resulted from the injury to his right groin on 19 May 2008 and the resulting pain. I am satisfied that there are no grounds for exercising the s 40(1) discretion.
As the figure of $583 is above the maximum statutory rate of weekly compensation for a worker with no dependants, the Arbitrator correctly determined that Mr Harris was and is entitled to a full continuing award under s 40.
Mr Saul relied on the submissions noted above in support of his position that Mr Harris has no entitlement to ongoing s 60 expenses. As I have rejected those submissions, it follows that Mr Harris is entitled to a general order for the payment of his hospital and medical expenses.
CONCLUSION
Manpower has failed on all issues. The question arises as to what orders the Commission should make. On one view, consistent with my findings on appeal, the consent orders take effect according to their terms and there is no need for any further order. However, this would effectively amount to a declaration as to the validity of the consent orders and the Commission has no general power to make declaratory orders of that kind.
I think the better approach is that, given the history of the matter and the way Mr Harris has particularised his claim, and given that the Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal form (s 354(3) of the 1998 Act), it is appropriate that the Commission make orders disposing of the issues in dispute as presented in the Application. This will avoid any potential confusion about the Commission’s findings and orders. That is what the Arbitrator did and, though at the oral hearing I considered the possibility of merely confirming the consent orders, I have concluded that the better course is that, for the reasons in this decision, the Commission should confirm the orders made by the Arbitrator.
Whichever orders are made, there is no doubt about the result: Mr Harris has succeeded with his claim and is entitled to a full continuing award under s 40 of the 1987 Act and a general order for the payment of his s 60 expenses.
DECISION
For the reasons given in this decision, the Arbitrator’s determination of 6 October 2010 is confirmed.
COSTS
The appellant employer is to pay the respondent worker’s costs of the appeal, assessed at $2,200 plus GST.
Bill Roche
Deputy President
25 February 2011
I, MARGOT UNDERCLIFFE, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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