Mayne Group Limited v O'Neill & Anor
[2007] NSWWCCPD 85
•30 March 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Mayne Group Limited v O’Neill & Anor [2007] NSWWCCPD 85
APPELLANT: Mayne Group Limited
FIRST RESPONDENT: Kerrie Ann O’Neill
SECOND RESPONDENT: Affinity Health Limited
FIRST RESPONDENT’S INSURER: Self-insured
SECOND RESPONDENT’S INSURER: QBE Workers Compensation (NSW) Limited
FILE NUMBER: WCC16765-04
DATE OF ARBITRATOR’S DECISION: 2 May 2006
DATE OF APPEAL DECISION: 30 March 2007
SUBJECT MATTER OF DECISION: Injury; disease; adequacy of reasons; apportionment and contribution to award under section 38 of the Workers Compensation Act 1987
PRESIDENTIAL MEMBER: Acting Deputy President Anthony Candy
HEARING:23 February 2007
REPRESENTATION: Appellant: Mr D. Saul instructed by Leigh Virtue and Associates, Solicitors
First Respondent: Mr L. Morgan instructed by Watkins Tapsell, Solicitors and Barristers
Second Respondent: Mr M. Batten instructed by Ms Jeanette Nicholas, Solicitor QBE In-House Legal
ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 2 May 2006 is revoked and the following decision is made in its place:
“1. (a) The respondents are to pay the applicant weekly compensation pursuant to section 38 of the Workers Compensation Act 1987 as follows:
$210.30 per week from 15/03/04-14/09/04, and
$168.24 per week from 15/09/04-14/03/05.
(b) The respondents are to pay the applicant weekly compensation pursuant to section 40 of the Workers Compensation Act 1987 as follows:
$131.22 per week from 15/03/05-01/04/05
Such payments are to be apportioned pursuant to section 22 of the Workers Compensation Act 1987 as follows:
(i)as to the first respondent 30%; and
(ii)as to the second respondent 70%.
2.The first respondent is to pay to the second respondent 80% of the second respondent’s share referred to in subparagraph (ii) above by way of contribution pursuant to section 16 of the Workers Compensation Act 1987.
3.The respondents are to pay the applicant’s section 60 expenses upon production of accounts or receipts in the same proportions as prescribed in paragraphs 1 and 2 in relation to weekly payments.
4.The claim pursuant to section 66 of the Workers Compensation Act 1987 is remitted to a new Arbitrator for referral for a further Medical Assessment Certificate pursuant to section 329(1)(b) of the Workplace Injury Management and Workers Compensation Act 1998, such referral to be in accordance with the reasons and findings in this decision.
5.The respondents are to pay the applicant’s costs as agreed or assessed in the following ratio: first respondent 86%, second respondent 14%.”
Costs of the appeal
The first respondent/worker’s costs of the appeal are to be paid by the appellant/Mayne and the second respondent/Affinity in the same proportions as the weekly compensation; that is, 86% Mayne and 14% Affinity.
BACKGROUND TO THE APPEAL
1. On 2 May 2006 Mayne Group Limited (‘Mayne’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 2 May 2006.
2. The respondents to the Appeal are Kerrie Anne O’Neill, (formerly Brien), (‘the worker’) and Affinity Health Limited (‘Affinity’). Although the second respondent is described in some of the documents as ‘Affinity Health’ this was agreed by counsel for Affinity to be an error and the correct description is as I have indicated.
3. The worker had been employed at St George Private Hospital (‘St George’) since 1998 as an operating theatre nurse on a part-time basis and claimed to have suffered an injury to her back on 31 October 2000 when Mayne conducted the hospital. Documents produced by the worker show that, at that time, she was employed by Mayne Nickless Limited. No point was taken however by Mayne as to this. She did however continue to work, after a short period of time off work. It was disputed by Mayne that a claim for workers compensation was made at this time or that the injury was reported.
4. On 28 November 2003 the ownership of the hospital changed to Affinity which was insured by QBE Workers Compensation (NSW) Limited (‘QBE’).
5. The worker complained during an operating list in February 2004 that her back was aching. The operating surgeon, Dr Kirsh, sent to his rooms for Voltaren which he gave to her. The pain persisted and Dr Kirsh advised her to go to physiotherapy. She saw a physiotherapist, Mr C. Watson on 16 February 2004, who referred her for an X-ray of the lumbar spine the following day. She saw her general practitioner, Dr Cameron on 19 February 2004.
6. The worker telephoned the Workplace Health Co-ordinator at St George, Ms Vicki O’Connor, on 18 February 2004 to start workers compensation proceedings. On 27 February 2004 Ms O’Connor wrote to the worker noting her intention to submit a further workers compensation claim with Mayne based on the injury of 31 October 2000 and suggesting that she give reasons for not making any ongoing claim with Mayne prior to that time.(emphasis added)
7. On 27 February 2004 Affinity wrote to the worker pointing out that the symptoms complained of were directly related to the injury which was lodged through Mayne.
8. Although on 18 March 2004 the worker had made a formal claim for compensation nominating 31 October 2000 as the date of injury, on 16 March 2004 Mayne had written to the worker declining liability on the basis that her condition was a disease unrelated to any injury sustained with Mayne and her employment with Mayne was not a substantial contributing factor to her alleged injury. In declining liability Mayne indicated that it relied, inter alia, on sections 4, 9A, 15 and 16 of the Workers Compensation Act 1987 (‘the 1987 Act’).
9. On 25 March 2004 QBE wrote to the worker declining liability on the basis that it was not the insurer at the time of injury (31 October 2000).
10. A request was made by the worker’s solicitors on 1 April 2004 that Mayne supply medical reports pursuant to section 126 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) together with wage details and a list of payments made. On 16 April 2004 the worker’s solicitors wrote to Mayne advising that her claim related to an injury of 31 October 2000 as well as nature and conditions of her employment with St George. Mayne replied on 20 April 2004 suggesting that any further inquiry be directed to QBE. A further request was made on 7 May 2004 to which Mayne’s solicitors replied on 17 June 2004 again suggesting that any further enquiries be directed to QBE. It is not clear what documents, if any, were produced in response to the request made.
11. On 30 July 2004 the worker’s solicitors wrote to Mayne’s solicitors and QBE making a claim for lump sum compensation in respect of the worker’s back and legs, as well as a sum under section 67. The reports of Drs Patrick and Kwok were enclosed. Dr Patrick, an orthopaedic surgeon, had seen the worker at the request of her solicitors on 19 May 2004 and Dr Kwok, a neurosurgeon, had seen her on 13 April 2004 as a result of referral by Dr Cameron. A claim was also made for weekly compensation pursuant to section 38 of the 1987 Act.
12. Initially, Dr Cameron certified her unfit for work from 16 February 2004 to 27 February 2004. That doctor continued to certify her unfit until 9 March 2004 when he gave her a certificate for suitable duties, namely four hours work per day, one day per week with lifting restricted and no bending, with a break every 30 minutes. The same doctor then certified her unfit from 22 March 2004 onwards.
13. An ‘Application to Resolve a Dispute’ (‘the Application’) was lodged with the Commission by the worker on 11 October 2004 naming two respondents: Mayne and Affinity. Against both respondents the particulars were the same, namely: date of injury “31 October 2000 and nature and conditions of employment”; date of notice of injury “18 March 2004” and date of compensation claim “30 July 2004”. The injury was described as “orthopaedic injuries to back and left and right legs”. The claim for compensation was weekly compensation from 15 March 2004 at $210.30 per week together with lump sum compensation in respect of impairment of back and the right and left arms at or above the elbow. [The reference to the arms is obviously in error as is the pleading of the same claims against both employers.]
14. An amended form of Application was lodged with the Commission on 27 June 2005 which corrected some of the errors which I have indicated, although once again it pleads the same injuries against both respondents. A further paragraph was added to the injury description relying on a “disease of gradual onset due to employment with St George”. The claim in respect of lump sum compensation has been amended to add a claim for whole person impairment if a finding of disease were made. So far as I can see this amended Application was never formally substituted by direction of the Arbitrator who determined the matter.
15. On 18 February 2005 the question of permanent impairment was referred to an Approved Medical Specialist (‘AMS’) who furnished a Medical Assessment Certificate (‘MAC’) in respect of an examination of 27 July 2005. The worker and Mayne appealed against the medical assessment. The Medical Appeal Panel issued a MAC on 22 February 2006. I will deal with this more fully later.
16. A conciliation/arbitration hearing was held on 26 April 2006 the worker gave brief evidence and submissions were made on behalf of the parties. At the conclusion of these, the Arbitrator gave an ex tempore decision. The Arbitrator found in favour of the worker and it is against that decision that Mayne now seeks leave to appeal.
THE DECISION UNDER REVIEW
17. The ‘Certificate of Determination’ (‘COD’), dated 2 May 2006 records the Arbitrator’s orders as follows:
“1.Respondents to pay the Applicant weekly compensation pursuant to s.38 and s.40 apportioned on a time on risk basis, the sums as follows:
a) $210.30/week from 15.03.04-14.09.04;
b) $168.24/week from 15.09.04-14.03.05;
c) $210.30/week from 15.03.05-1.04.05.
2.Respondents to pay the Applicant’s s.60 medical expenses apportioned on a time on risk basis upon production of accounts and/or receipts.
3.2nd Respondent to pay Applicant its proportion of the WPI in accordance with the MAC as confirmed by the Appeal Panel dated 22.02.06 in relation to injury sustained after 1.01.02.
4.Respondents to pay Applicant’s Costs as agreed or assessed on a time on risk basis.
Notation: In respect of injury sustained before 1.01.02, 1st Respondent to pay the amounts as set out in the Appeal Panel MAC dated 22.02.06 and confirmed in the Applicant’s submission. It is noted by the 1st Respondent that the Arbitrator cannot make orders in respect of lump sum compensation.
It is further noted at the request of the parties that the liability for lump sum compensation is to be apportioned on a time on risk basis as to 70% to frank injury of 30.10.00 and 30% as to nature and conditions of employment up to 12.02.04.”
ISSUES IN DISPUTE
18. The issues in dispute on the appeal were:
(a)whether the reasons given by the Arbitrator were sufficient to support the orders made;
(b)whether the worker had proved that she had suffered an injury in October 2000 and had given notice of it and made a claim for compensation within the prescribed time;
(c)whether any incapacity the worker had was related to the injury in October 2000, if there had been any such injury;
(d)whether a liability for weekly payments of compensation pursuant to section 38 of the 1987 Act could be apportioned under section 22 of that Act and whether contribution could be ordered under section 16 in respect of such payments;
(e)whether the claim fell to be considered under the disease provisions of the 1987 Act(sections 4, 15 and 16), and
(f)whether it was possible to have a notional date of injury of 31 December 2001 for a claim based on nature and conditions of employment.
ON THE PAPERS REVIEW
19. On 2 May 2006 Mayne lodged an ‘Application to Appeal Against Decision of Arbitrator’. In it there are no fewer than twenty grounds of appeal. Mayne also reserved its right to make further submissions because it did not have the transcript of the proceedings, the Arbitrator’s reasons or the information requested from the Commission. Mayne submitted that the matter required an appointment of a hearing before a Presidential member.
20. On 1 June 2006 the Commission advised that the appeal had been referred to the President and that the appeal may be determined on the written application and any written notice of opposition. Mayne’s solicitor replied on 21 June 2006 that he required the appointment of a hearing before a Presidential member to address submissions which had been filed. If consideration was given to proceeding without the appointment of a hearing, he stated that he would require notice of this so that he would have an opportunity of addressing the matters to which he referred.
21. Section 354(6) of the 1998 Act provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with the proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
22. It is not appropriate for a party to an appeal to ‘require’ a hearing before a Presidential member. Written submissions should be made in as complete and full a form as is possible so that the appeal may be determined ‘on the papers’ if that course is found to be appropriate.
23. In this case the submissions on behalf of the appellant were inadequate and, rather than make a direction that there be further written submissions, I elected, as the most expeditious course, to give the parties an opportunity at a telephone conference to make such submissions as they wished. This telephone conference was held on 23 February 2007 and further submissions from counsel for all of the parties were received. This course may not have been required had proper written submissions been made on behalf of Mayne. It is appropriate, I think, to bear this in mind when considering the costs of the appeal.
LEAVE
24. Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
25. The amount of compensation at issue on the appeal exceeds $5,000.00 and that entire sum is at issue on the appeal. Section 352(2) of the 1998 Act is accordingly satisfied.
26. The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
27. Leave to appeal is accordingly granted.
REASONS FOR THE DECISION OF THE ARBITRATOR
28. At the conciliation/arbitration on 26 April 2006 the Arbitrator announced that at the conclusion of evidence and addresses, she would take a brief adjournment, draft ex tempore orders and present them on the return of the parties. Such expressed intention would suggest that the Arbitrator had to some extent an indication of the appropriate findings and orders that would be made. While the giving of an ex tempore decision is commendable, it ought not be undertaken unless the Arbitrator is satisfied that sufficient clarity has been reached in his or her thinking as to the findings to be made and the appropriate orders which follow those findings. Regrettably, this is a case in which, in my opinion, the Arbitrator embarked on an ex tempore decision with no clear idea of the orders which would finally be made.
29. The reasons begin at page 41 of the transcript of 26 April 2006. The Arbitrator firstly dealt with the pleadings which had been filed by the parties. She did not advert to the ‘Amended Application to Resolve a Dispute’ to which I have earlier referred. She noted the submissions made by the parties. Mayne submitted that there was no evidence of injury with it on 31 October 2000, nor was there any claim for compensation made in respect of that injury. Mayne submitted that the ‘injury’ to the worker was in the nature of a disease rather than anything else. It was further submitted there was no evidence of incapacity. If there was it could only been as a consequence of injury sustained with Affinity. Affinity submitted that there was already a finding of injury as set out in the referral to the AMS. Affinity adopted the written submissions of the worker and submitted that the cause of the applicant’s incapacity for work was the frank injury which occurred on 31 October 2000.
30. The worker sought $5,400.00 in respect of 9% permanent loss of efficient use of her back [sic] and $3,150.00 being 4.5% permanent loss of efficient use of her left leg as a result of the injury of 31 October 2000 and nature and conditions of employment between October 2000 and 31 December 2001. In respect of whole person impairment in respect of nature and conditions of employment between 1 January 2002 and February 2004, the sum of $2,500.00 representing 2% whole person impairment was sought.
31. Both the worker and Affinity submitted that disease was not pleaded in Mayne’s Reply and that is indeed the case. That document in Part 3 under the heading “Dispute Details” states the following:
“ALL ISSUES IN DISPUTE FOR THE REASONS DISCLOSED IN DOCUMENTS AND EVIDENCE.”
Nothing is specifically raised. The documents attached to the reply are a surveillance report of 18 September 2004, a report of Dr Hughes, an orthopaedic surgeon, of 23 September 2004, and a print-out of an e-mail message from one Ms Jennie Breeze to Ms O’Connor. I will deal with these in due course.
32. Reliance was placed by the worker and Affinity on what was said by Deputy President Fleming in Fishburn v Integral Energy Australia [2005] NSWWCCPD 53. That decision dealt with the completion of Part 4.2 of the Reply which refers to “Documents and information you intend to use but do not yet have”. The same defect as was found by the Deputy President in that case also obtains in this case. The responses made in relation to Part 4.2 are identical. The Deputy President did not, however, refer to the ‘Dispute Details’ to which I have referred in the preceding paragraph. However the same criticism as was there made that “the information provided is so general as to be meaningless” is equally applicable here. It will also be appropriate to bear this in mind when considering the costs of the appeal.
33. The worker relied on the decision of the Court of Appeal in Rail Services Australia v Dimovski (2004) 1 DDCR 648 (‘Dimovski’) as well as Australian Conveyor Engineering Pty Ltd v Mecha Engineering Pty Ltd (1998) 45 NSWLR 606 (‘Mecha’). The worker also relied on the decision of Neilson J in Lyons v Master Builders Association of New South Wales Pty Ltd (2003) 25 NSWCCR 442. These decisions support the proposition that an apportionment pursuant to section 22 of the 1987 Act may be made between a ‘frank injury’ and an injury by way of disease or aggravation of disease.
34. On page 46 of the transcript the Arbirator said that she found for the worker. She then sets out the worker’s evidence in relation to the injury of 31 October 2000. The Arbitrator also referred to what had been said by the worker during the conciliation phase. (The reference by the Arbitrator to this causes me some concern to which I will return later). The worker was said to be adamant that there was no specific additional injury on 12 February 2004 and accordingly this was accepted by the Arbitrator. The Arbitrator also noted Mayne’s submission that there was no contemporaneous evidence from any doctor for a period of about three years that any injury to the back occurred at all. However, the Arbitrator accepted the worker’s evidence as to the injury in October 2000 and said that she accepted that the worker was self-motivated and self-treated and was able to continue working, although with discomfort for that period without a specific consultation for her back.
35. In respect of Mayne’s submissions that there was no notification of injury, the Arbitrator accepted the worker’s statement of 20 May 2004 and also her written response to Ms O’Connor. The Arbitrator also referred to an incident report in which the worker said she had reported the injury of 31 October 2000. The Arbitrator accepted the worker’s submissions and those of Affinity that the incident report was evidence that the frank injury of 31 October 2000 did occur. She also noted that in a facsimile letter to QBE of 22 March 2004 Ms O’Connor stated that a claim was submitted to Mayne , however, it had been declined in view of the fact that extreme pain, forcing the worker to cease work, commenced on 12 February 2004. The Arbitrator accepted that the incident report attached to the letter of 22 March 2004 was a document of Mayne and constituted a source of knowledge of the injury at or about the time when the injury occurred.
Incident report
36. It may be appropriate to deal with that incident report at this stage. It shows evidence of having been faxed on 22 March 2004 with the letter referred to above. The letter says in part “As you can see by Kerrie’s attached letter she originally claimed her back condition related back to an incident on 31/10/2000 (see attached incident report)”.
37. The incident report has been partially obliterated in either photocopying or in the facsimile process. However, the words at the top of the page are as follows:
“This report is to be completed within 24 hours for all incidents/injuries involving MNL employees and contractors (see back of this page with definitions).”
38. I take MNL to be a reference to Mayne Nickless Limited.
39. It refers to the injured person as being Kerrie Brien who was an enrolled nurse working on a part-time basis. The incident is described as follows:
“Surgeon required operating theatre table to be changed. Kerrie helped move the table with at least one other person. Patient not on table but unknown as to whether brake was on/off at time of move. Kerrie felt initial discomfort in lower back not relieved by hot bath or wheat pack at home. Pain worsened during the night at 1105 hours (1/11/00) pain was radiating to hips.”
The business name is said to be St George Private Hospital. The date of the incident is given as 31/10/00, the place as operating theatre seven, and the time reported 1105 a.m. on 1/11/00. This document is completed by one A.M Lawther and dated 2/11/00. Mayne’s solicitor did not concede that the document was his client’s.
40. The Arbitrator noted the submission by the worker that the issue of disease should have been determined before the referral to an AMS. As the matter had already been referred to an AMS, it was said, Mayne should be barred from pursuing determination as to whether the condition was deemed a disease.
Medical Appeal Panel
41. It is appropriate at this stage to deal with what happened in relation to the referral to an AMS and the subsequent Medical Appeal Panel.
42. On 18 February 2005 a request for a medical assessment by an AMS was made by the Arbitrator. This specified that the dates of injury were 31/10/2000, 12/2/2004 and nature and conditions from 31/10/2000 to 18/3/2004. The parts of the body claimed were left leg at or above the knee, right leg at or above the knee and the lower back. The terms of referral are as follows:
“AMS TO DETERMINE % OF PERMANENT IMPAIRMENT OF EACH BODY PART AS A RESULT OF INJURY OF 31/10/2000, 12/2/04 AND AS A RESULT OF NATURE AND CONDITIONS OF EMPLOYMENT AND APPORTION % OF IMPAIRMENT ATTRIBUTABLE TO EACH INJURY AND TO NATURE AND CONDITIONS ON A WHOLE PERSON IMPAIRMENT BASIS.
AMS to determine whether there were any pre-existing conditions and/or abnormalities and determine the % attributable to same for each body part over the two injuries and nature and conditions of employment.
It is noted that the 2nd Respondent requested a recording of his objection to the inclusion of the date 12.02.04 as an injury on the basis that it was not included on the original application. Objection was overruled on the grounds that this was an oversight and that the date was included in the medical reports contained in the file (- eg Dr Patrick’s report).”
43. Following this the AMS examined the worker on 27 July 2005 and a Medical Assessment Certificate (‘MAC’) was issued which appears undated but which was referred to by the Medical Appeal Panel as having been made on 5 August 2005. There were two Tables of assessment, the first being for injuries received before 1 January 2002 and the second in respect of injuries received after 1 January 2002. It is not necessary, I think, to set these out in full. It is sufficient I think to say that the date of injury in the first Table in respect of injuries received before 1 January 2002 is as follows:
“31/10/00 and nature and conditions of employment up to 1/01/02.”
44. There was found to be no loss of use of the right leg, however, there was found to be a 10% impairment of the back and a 5% loss of use of the left leg. The AMS found the proportion of permanent loss or impairment due to pre-existing abnormality (section 68A of the 1987 Act) as being half in respect of the back but three-fifths in respect of the left leg. Accordingly, there was a total compensable loss of impairment of the back of 5% and loss of efficient use of the left leg of 2%.
45. The second Table in relation to whole person impairment for injury received on or after 1 January 2002 found that the percentage whole person impairment was 7% with a deduction of five-sevenths for pre-existing injury, condition or abnormality. Accordingly, there was a nett figure of 2% whole person impairment in respect of injuries received on or after 1 January 2002.
46. On 22 February 2006 the Medical Appeal Panel substituted a different MAC in respect of injuries received before 1 January 2002. The Panel stated it was determining an appeal lodged by the worker. There is no reference made to any appeal lodged by Mayne. Although it is not part of my function to deal with perceived inadequacies of any Medical Appeal Panel decision the statements of the Panel in relation to a further report of Dr Patrick dated 1 September 2005 are contradictory. In paragraph 10 the Panel said that it has determined that the report of 1 September 2005 should not be received in the appeal and in the next paragraph the Panel said that it has determined that fresh evidence should be received in the appeal because the report of Dr Patrick was not fresh evidence but a further opinion in response to the report of the AMS. The Panel stated that it was for the Registrar to determine whether an error existed and that the Panel did not carry out this function – its task was to carry out a review de novo. The Panel noted that the loss of use of the left leg was as a consequence of the back injury. Accordingly there was a secondary loss within the meaning of section 68A(3) of the 1987 Act and there should be the same deductible proportion of both back and left leg. Having regard to the AMS’s note that the worker was pain free prior to 31 October 2000, the Panel considered that the deductible proportion pursuant to section 68A(6) should be 10%. Thus, after this deduction, the assessment in relation to the back was 9% and in relation to the left leg 4.5%. The Medical Appeal Panel did however continue, what in my view was the error of the AMS in considering the date of injury as being nature and conditions up to 31 December 2001 as well as the injury of 31 October 2000. The second Table in relation to whole person impairment on or after 1 January 2002 remained unchanged.
47. It should be noted that Mayne’s solicitor wrote to the Commission on 4 May 2005 referring to the examination by the AMS and seeking confirmation that certain records sent to the Commission with letters of 20 December 2004 and 12 January 2005, had been provided to the AMS. The following statement is also made at the conclusion of that letter: “We also note, incidentally, that the questions which appear to have been directed to the Approved Medical Specialist appear to be correct”. I was told by counsel for Mayne that the copy of this letter which he had, was corrected so as to deny that the questions which had been directed to the AMS were correct. Indeed, having regard to the attitude which had been taken by Mayne that there was no injury on 31 October 2000, it is difficult to see how it would have agreed to the question of impairment and loss of use from that injury being referred to an AMS. Nonetheless the letter of 4 May 2005 is quite misleading. It should also be noted that the AMS has not noted that the records referred to by Mayne were in fact received by him.
Arbitrator’s award
48. At page 49 the Arbitrator made this finding (at line 21):
“I further accept the submissions of the Applicant and the Second Respondent [Affinity] that in relation to economic incapacity, the incident of 30/10/00 is the cause.”
49. The Arbitrator accepted that the worker had complied with every subsection of section 38 of the 1987 Act and, puzzlingly, that according to the process outlined in Mitchell (Mitchell v Central WestArea Health Service (1997) 14 NSWCCR 527) her earnings should not be reduced from $210.00 per week pursuant to section 40. The Arbitrator then accepted the worker’s submissions that the amounts to be paid pursuant to section 38 should be apportioned on a time on risk basis between Mayne and Affinity. The figures for which the award was entered were given to the Arbitrator by counsel for the worker and the solicitor for Mayne indicated that he did not agree with those figures. So far as section 60 expenses were concerned, the Arbitrator ordered that they be paid on a time on risk basis. The time on risk was expressed by the Arbitrator, after prompting from counsel, to be, in respect of Mayne from 30 October 2000 [sic] to 28 November 2003 and in respect of Affinity from 29 November 2003 to 14 March 2004. There were three periods for which weekly compensation were awarded:
15 March 2004 to 14 September 2004;
15 September 2004 to 14 March 2005; and
15 March 2005 to 1 April 2005.
There appears to be some confusion as to the last period which was said to be under section 38(3).
50. After the Arbitrator had finished giving reasons, the question of the worker’s section 66 entitlement was raised, to which the Arbitrator said:
“I was just going to say whatever the MAC is. I mean, did you want me to make that an order?”
51. Mayne’s solicitor indicated that an award could not be made under section 66 on the basis of the findings which the Arbitrator had made which did not accord with the MAC. The Arbitrator then ordered Affinity to pay its proportion of the whole person impairment in accordance with the findings of the Medical Appeal Panel. In respect of the injury sustained before 1 January 2002 Mayne was to pay the amount set out in the worker’s submissions. It was then pointed out by counsel for Affinity that, in relation to weekly compensation, there was no apportionment reflecting the significance of the frank injury on 30 October 2000 [sic]. Counsel then addressed the Arbitrator on the need to apportion liability under section 22 of the 1987 Act between the injury of 31 October 2000 and the nature and conditions of employment. The worker’s counsel suggested that the frank incident might be responsible for say 50% with the remainder being caused by nature and conditions. The Arbitrator, at page 64, after considerable discussion, said this:
“And so, so far as I am aware, – it is more clear to the parties if I actually apportion liability as to 50 percent of the frank injury which occurred on 30 October 2000 and the remaining 50 percent to be nature and conditions of employment for the period of four years?”
To this the solicitor for Mayne objected. There were then submissions as to costs.
EVIDENCE
The Worker’s Evidence
52. The worker, in a statement taken by an investigator instructed by QBE and dated 20 May 2004, said that she had been employed at St George as an enrolled nurse. She did not have a regular medical practitioner but saw doctors at work about her health problems. She had been at the hospital for about six years. She had no back pain before October 2000. At one stage she was only working 8 hours a week but this had then changed to working 24 hours one week and 12 hours the following week on a regular basis – she had been doing that for several years. Her duties in that latter period were as a scrub scout involved in assisting anaesthetists. Her duties involved setting up instruments which could, for some orthopaedic surgery, require a number of trays weighing 11kgs or more to be transferred from one trolley to another. She knew she had had a back injury in October 2000 and had since found out that it was on 31/10/00 when she would have been working for Dr Kirsh. She was required to move an operating table and as she did so she said she felt a pull in her lower back. The next morning she woke, could not move and therefore telephoned her mother to organise her children for school. She then rang the hospital and spoke to the floor manager, identified as either Janice or Alex. She said her mother took her to see Dr Wilcox who did not prescribe any medication but offered to rub cream on her back. He did not send her for an X-ray but only sent her to physiotherapy. She said she had a week off work and went to physiotherapy for a week. She returned on light duties and then went back to normal duties but her back never fully recovered. If she sneezed or coughed it would cause her back to flare-up. She said she self-managed, would rest, take Celebrex and would obtain scripts from doctors at work. Sometimes she would spend a day or morning in bed. When the flare-ups occurred it would take a couple of days for them to settle back down again to normal.
53. In February 2004 she was doing a list in Dr Kirsh’s theatre and her back was aching. As the day progressed this became worse. She told Dr Kirsh who sent for Voltaren which she was given. The next day she was terrible and was in bed all day. On Saturday she rang Dr Kirsh and asked him what to do. He recommended physiotherapy which she attended on Monday. The physiotherapist wrote out an X-ray referral and the X-ray was done. She saw Dr Cameron who certified her unfit for work from 16 February 2004 to 9 March 2004. She then went back to work on suitable duties which were organised by Ms O’Connor. She sat at theatre reception, answered the phone but could not sit for ten minutes and was uncomfortable. She said that it was unbearable on her back. The Director of Nursing found her other work which was ‘audits’ involving more standing than sitting. She was on suitable duties for two weeks and had been off work ever since.
54. She had an MRI on 4 April 2004 and saw a neurosurgeon, Dr Kwok, who had advised her that she would never be able to nurse again and could not do any bending or lifting. An operation was out of the question because there were three discs involved.
55. The worker gave evidence on 26 April 2006 at which time she had returned to work as a sleep apnoea nurse with Soul Pattinson Chemist. She had obtained a job by looking in the local paper. In the preceding ten months or so she had been looking for work but had been unable to obtain it. She said she was working 18 hours a week and was coping.
The Medical Evidence
56. There were x-rays of 17 February 2004 which were reported by Dr Spiegel as follows:
“There is a very slight right convex lumbar scoliosis. The L4/5 and L5/S1 discs are relatively narrow. The L4/5 disc certainly appears abnormal, has degenerative narrowing and there is some early spondylotic change. I also suspect lumbosacral disc pathology with a little reverse lipping of L5 on the sacrum. …”
57. The MRI of 4 April 2004 is reported by Dr Masters as follows:
“There is a loss of disc height and hydration at L4/5 and reactive end plate signal change particularly to the right of midline.
The L3/4 and L4/5 intervertebral discs are also desiccated.
At L3/4 there is a disc bulge and tiny central annular tear. There is however, no central stenosis or nerve root compressive lesion.
At L4/5 there is a shallow central disc protrusion which produces mild flattening of the ventral aspect of the thecal sac but no significant central stenosis and no nerve root compressive lesion.
At L5/S1 there is also a disc bulge and central annular tear which contacts but does not significantly deform the ventral aspect of the thecal sac.
There is early lower lumbar facet joint arthropathy.
The conus is normal in position and signal intensity. The roots of the cauda equina are normal in appearance.”
58. Dr Kwok saw her at the request of Dr Cameron on 13 April 2004. She gave him a history of moving an operating table on 30 October 2000 and had severe back pain the following day. She took a week off, received physiotherapy and was able to get back to light duties. On 15 February 2004 she said the pain had got so severe she could not finish the operating list and had since received three sessions of physiotherapy per week with excellent relief in the preceding week. There was intermittent left-sided leg pain and occasional right leg pain. He reviewed the radiological investigations and concluded that the worker had low back pain related to multi-level disc degeneration. He recommended against her returning to theatre work.
59. Dr Patrick saw the worker at the request of her solicitors on 19 May 2004 and furnished three reports dated 20 July 2004. In two short reports he made assessments of impairment of the back and loss of use of the left and right legs as well as an assessment of whole person impairment. In Dr Patrick’s principal report he obtained a history of the worker being injured on 30 or 31 October 2000. The other date of injury he has noted is “1998-2004”. She told him she had been moving a heavy operating table on her own and developed a niggling pain in her low back region which had become more severe the following morning. The history she gave to Dr Patrick was in accordance with the statement to which I have earlier referred. He thought she had sustained a significant work-related low back injury as a result of the injury of 30 or 31 October 2000 as well as nature and conditions of her work subsequent to 1998. She was incapacitated for the full range of her pre-injury duties as an orthopaedic theatre sister.
60. Dr Patrick on 30 May 2005 reported, having perused a further MRI Report of 17 March 2005, and noted that this was very similar to that of 4 April 2004 in that it demonstrated significant pathology. He did however revise the assessment of her impairment of the back to 28% from which he thought a deduction of 10% was reasonable, leaving, he said, a work-related impairment of 25%. He apportioned the assessments of lump sum compensation in the ratio of 2:1 – pre:post 28 November 2003.
61. The records of the physiotherapist, Mr C. Watson, were relied on by Mayne. He said he first saw her on 16 February 2004 following a work-related injury to her back. In the typed report of Mr Watson dated 15 May 2004 there is no mention of the injury of 31 October 2000. However, in his handwritten notes of the consultation of 16 February 2004 he referred to an increase in pain four days before. The past history was of three years before moving an operating theatre table with a ‘pulling’. The next day she was unable to move. There is then a reference to one week which is unclear and, what I take to be, a reference to pain being episodic.
62. The notes of Dr Cameron were also relied on by Mayne. These showed attendances on 28 February 2000 and 17 December 2001 for unrelated conditions. They also showed that on 19 February 2004 the worker had attended the doctor complaining of lumbar pain four years before. She said she had attended Dr Wilcox with recurrences ever since. The date of injury was stated to have been 31 October 2000. She continued to see Dr Cameron and it is not necessary, I think, to deal with subsequent consultations.
63. Mayne in its Reply relied on the report of Dr Lloyd Hughes, orthopaedic surgeon, dated 23 September 2004. He obtained a history that she had first experienced pain in her lower back when she awoke in bed on 1 November 2000. She attributed this to pushing an operating theatre table at work the previous day. She had been off work for about one week. Since that time she had intermittent episodes of pain in her lower back and had a few days off here and there. In February 2004 she experienced a further episode of low back pain while at work but with no specific incident on that occasion. She was off work again and had more physiotherapy treatment. That doctor’s opinion was that she suffered from degenerative disc disease in her lumbar spine which was the cause of any back pain she was experiencing. The onset of symptoms four years before he thought was spontaneous and not caused by any accident or injury. He thought there was no clinical evidence of any disability and she was fit for her work and all the normal day activities without restriction but should be careful when lifting and avoid any heavy lifting. She could resume work as a theatre nurse.
64. Subsequently Mayne sought to rely on a number of reports of Professor Ehrlich dated 23 November 2004. His area of specialty is said on his letterhead to be “Orthopaedic Rehabilitation”. In two supplementary reports he found that the whole person impairment in her lower back pathology was in the order of 6% and this was due to a spontaneously progressive degenerative disc disease. He also considered that the impairment of her back was of the order of 5% of a worst case which should not be attributed to injury or nature and conditions of employment but due to spontaneously progressive disc degenerative changes. He did not think there was any permanent loss of use of either leg at or above the knee. In that doctor’s principal report he obtained a consistent history of the events of October 2000 the intervening period and February 2004. The doctor concluded that the worker had disc degenerative disease which could be a source of low back discomfort from time to time. He did not think there was any indication that injury in any way was responsible for her problem. The incident of October 2000 he thought should be considered as little other than representing the appearance of some pain from her degenerative disc disease. He did not think that her account of moving an operating table could be associated with anything “even resembling a catastrophic event”. He thought there was no significant objective abnormality demonstrable other than radiological evidence of degenerative disease. He did not think there was any significant injury in the course of her employment nor should the nature and conditions of her job be considered a factor in creating her disc problems.
65. On 20 December 2004 Mayne sought to rely upon three reports dated 26 November 2004 of Dr Robert D. Smith, who is described as a “Consultant Surgeon”. In the principal report the doctor obtained a consistent history of injury in October 2000. That doctor’s opinion was that in respect of the “alleged episode” of more than four years ago the worker was within normal limits. He could find nothing wrong with her back and she had no complaints regarding her legs. He noted inconsistency with straight leg raising which he thought cast doubt on the accuracy of any leg problem secondary to any possible back problem. He said that if there had been any real discomfort experienced by her in October 2000 that discomfort had long since ceased. He thought any discomfort could be explained quite easily by her rather mild chronic intrinsic degenerative changes that were very common in the general population of the worker’s age. She was fit for employment in general, including her usual employment as a nurse. In separate reports that doctor found no permanent whole person impairment and also found no permanent impairment to the back or loss of use of either leg.
66. Mayne relied on documents produced by Dr Wilcox. This was a single sheet of medical notes with two pathology reports attached. The doctor’s note relates to a consultation on 6 February 2001 for unrelated matters. There is also a note of a phone call on 7 February [presumably 2001].
67. Affinity relied on a report of Dr Richard Powell, orthopaedic surgeon, dated 28 May 2004. He obtained a history of injury on 31 April 2000 [this date is obviously incorrect]. Otherwise the worker’s account of what happened following is consistent with her statement and what she had told other doctors. That doctor found no suggestion of overreaction or exaggeration by the worker, unlike Dr Smith. Dr Powell thought that the injury of April 2000 [sic] represented a musculo-ligamentous injury of the lumbosacral spine. As a result of this she suffered from intermittent symptoms over the ensuing years. He thought she had evidence of degenerative changes affecting her lumbosacral spine. There was no definite evidence of radiculopathy but she was not fit to resume her pre-injury duties as a theatre nurse which involved prolonged periods of standing as well as occasional heavy lifting. She would however be fit to resume work of an office and administrative nature. She should however avoid periods of prolonged standing or sitting. Dr Powell thought that the injury in 2000 was responsible for her current symptoms. Her employment at that stage represented a substantial contributing factor to her condition. The worker told the doctor that she had suffered no further precipitating events as from 1 December 2003. [This date appears to have been considered at one stage to be the date when she became employed by Affinity rather than 28 November 2003 which was the date agreed at the hearing of the appeal.]
68. The AMS, Dr Pillemer, who saw her on 27 July 2005 concluded that the worker had widespread degenerative changes in her lumbar region without any evidence of neurological involvement. In his opinion the nature and conditions of her work as a theatre nurse over the preceding eight years at St George had aggravated her underlying degenerative condition and was in his opinion a substantial contributing factor to her ongoing symptoms. Dr Pillemer did not make a separate assessment as to the effect of the injury in October 2000 apart from the nature and conditions claim up to 1 January 2002. I already referred to the referral for assessment of the Arbitrator which specified nature and conditions from 31 October 2000 to 18 March 2004 only. Dr Pillemer has taken into account, it seems, all of the worker’s employment at St George Hospital.
Other Evidence
69. Mayne relied on a surveillance report dated 18 September 2004. The worker’s activities were observed on Saturday 4 September 2004 and Monday 6 September 2004. The worker was seen to drive a car and walk around a shopping centre. She was said to walk in a fluent manner. She did some shopping. On Monday 6 September 2004 washing was noted to be on the clothes line.
70. Mayne also relied on an e-mail from Ms O’Connor dated 24 February 2004, the relevant part of which is:
“Does anyone know anything about what is happening with this lady? She claims she has been off work and receiving treatment for sometime on and off for a back injury. Claims she cannot even drive.
Claims this injury relates back to one in 2001. The claim she submitted at that time was very simple and straightforward and was closed within a month with a return to pre-injury duties. I have not heard anything since until I received the phone call on Friday.”
71. Certain records of Affinity were forwarded to the Commission by Mayne’s solicitor by letter dated 20 December 2004 “by way of lodgement in accordance with the Rules”. These consist of two workers compensation claim documents, brief details of employment, letter of 16 March 2004 from Mayne to the worker , authority to release medical information addressed to Affinity, an undated e-mail which relates to the worker coming to work on Tuesday and Thursday of the next week for 4 hours each day doing audits of the Ward areas, a memorandum from Ms O’Connor to the worker of 17 March 2004 enclosing a QBE workers compensation form and a completed workers compensation form signed by Ms O’Connor dated 22 March 2004. This is headed “Employees Report of Injury”, however it has not been completed by the worker. The time lost particulars refer to ceasing work on 16 February 2004 and resuming work on 9 March 2004. In other documents of Affinity there are further details of employment, details of sick leave from 11 August 1999 to 17 May 2004 and a wage printout from 9 July 2000 to 13 May 2001. The documents of particular relevance appear to be the workers compensation claim documents headed “Mayne Nickless Limited and HCoA (Health Care of Australia)”. The first document is headed “Workers Compensation Claim Request for Closure”. The business unit is described as St George Private Hospital, the claim number is 271974 and the employee is Kerrie Brien. A number of boxes have been ticked in that document and it is dated 22 February 2001 and signed by Ms O’Connor. What is significant in that document is that it says that the employee has resumed full duties and worked without reporting difficulty for at least one month, a final clearance medical certificate was issued on 14/11/00, all treatment has ceased, all treatment accounts have been forwarded to Workers Compensation Services, payments for periods of incapacity had been made and payment details submitted to HCoA Workers Compensation Services. The second workers compensation document is also completed by Ms O’Connor and dated 20 December 2000. Once again the heading at the top of the sheet is “Mayne Nickless Limited and HCoA”. This document is headed “New Workers Compensation Claim Check List”. The business unit is as before, injury date is 31/10/00 and the employee is Kerrie Brien. Again a number of boxes have been ticked and I will summarise these: the worker has lost time, the worker has returned to work on 14 November 2000, her current duties were normal, the hours were pre-injury and treatment was not continuing. Treatment details are recorded as follows: “Kerrie did not feel further treatment required”. The status of the injury was said to be that it was being monitored
72. The Summary of Employment shows that she was employed on 30 November 1998 and her current weekly wage was $294.67 per week, an average of 20.07 hours per week. The workers compensation claim completed by Ms O’Connor, stated that her hours were 35.5 hours per fortnight at $18.66 per hour pursuant to the PHI Nurses State Award. Further details of employment give her current weekly wage rate at $346.90 per week at an average of 23.17 hours per week. In the sick leave records there is reference to sick leave from 1 November to 10 November 2000, being 36 hours. In the pay records for the fortnight ended 29 October 2000 the worker’s normal pay was $660.11, however, for the fortnight ended 12 November 2000 the worker’s normal pay was $122.81 with an additional $552.65 under the heading “Annual- $, Hours, LSL – Lve - $, Hours”.
SUBMISSIONS, DISCUSSION AND FINDINGS
73. The first submission made by counsel for Mayne was that the Arbitrator’s award and decision are “all over the place” and the decision does not bear much relationship with the ex tempore judgment which the Arbitrator gave. I am in agreement with this submission. It is difficult, in my view, to reconcile the Arbitrator’s reasons with the orders stated in the COD.
74. Taking the award of weekly payments of compensation, both Mayne and Affinity are to pay this apportionment on a time on risk basis. Yet in her reasons at page 49 the Arbitrator found that in relation to economic incapacity the incident of 30/10/00 [sic] was the cause. At page 64 of the transcript the Arbitrator said that she apportioned liability as to 50% of the frank injury which occurred on 30 October 2000 and the remaining 50% to nature and conditions of employment for the period of four years. This would appear to relate to the award of weekly compensation following counsel for Affinity seeking an order reflecting the significance of the frank injury. This apportionment is not, however stated in the COD dated 2 May 2006 to which I have referred at [17].
75. In relation to lump sum compensation, the Arbitrator ordered that Affinity pay its proportion of the WPI in accordance with the MAC as confirmed by the appeal panel in relation to injury sustained after 1 January 2002. In a notation to the COD the Arbitrator noted that Mayne was to pay the amount set out in the Appeal Panel MAC dated 22 February 2006. The Arbitrator noted the objection by Mayne that she could not make orders in respect of lump sum compensation because the MAC, as varied on appeal, did not accord with the findings made by the Arbitrator. The Arbitrator then went on to apportion the liability for lump sum compensation on a time on risk basis as to 70% frank injury of 30 October 2000 and 30% as to nature and conditions up to 12 February 2004. It seems to me that to be consistent, the Arbitrator was required to apportion the liability for the appropriate lump sum compensation payable in respect of injuries received before 1 January 2002 and then apportion liability for compensation payable in respect of injuries received on or after that date.
76. There are, in my opinion, a number of other deficiencies in the hearing and the referral to the AMS which may be shortly stated as follows
· the Arbitrator did not list what evidence was before her.
·the Arbitrator did not deal with the admission of documents later sought to be relied on.
·the Arbitrator referred to statements made by the worker in the conciliation phase which are not recorded.
· the Arbitrator failed to refer to all of the medical evidence.
·the Arbitrator failed to determine the question of injury prior to referral to an AMS.
77. For these reasons alone, which are sufficient to constitute errors of law, I am obliged to revoke the award of the Arbitrator of 2 May 2006 and will determine the matter so far as I can myself. I will however first refer to those other grounds of appeal which have some bearing on the decision which I will make.
Injury of October 2000
78. It was submitted on behalf of Mayne that there was no contemporaneous reporting of this injury to any doctor. It was said that there was no mention made by the worker to Dr Wilcox, Dr Cameron or Mr Watson. I drew counsel’s attention to the reference in the physiotherapist’s notes of 16 February 2004, when he first saw her, to an incident three years before. I then brought to the attention of counsel the documents from Affinity to which I have referred at [71] and upon which his solicitor sought to rely on 20 December 2004. Counsel’s response to these was to ask whether these were in evidence. Despite my giving counsel the claim number and the clear reference to an injury of 31 October 2000, he persisted in his submissions that there was no evidence of a report of injury or a claim for workers compensation. Counsel instead sought to rely upon documents in relation to an injury on 8 August 2000. It may be that the documents on which Mayne’s solicitor intended to rely related to this injury however no such documents are with the papers lodged with the Commission. The fact that Mayne’s solicitor had forwarded the documents in question for the Commission was said to be “neither here nor there”. I then brought to counsel’s attention the incident report form on which the Arbitrator relied. It is doubtful whether the Arbitrator had the other contemporaneous claims documents to which I have referred.
79. This aspect of the case has caused me considerable concern. I am satisfied that the injury of 31 October 2000 did occur. There is sufficient contemporaneous material available to demonstrate this. The absence of medical notes at the time is puzzling but not, I think, fatal to the worker’s claim in this regard. I consider that upon my bringing to the attention of counsel the relevant claim number, enquiries should have been made to confirm that in fact there was such a claim or, if not, what the explanation was. However, I was offered no explanation of this. Similarly, the solicitor for Mayne who forwarded the documents to the Commission ought to have been aware of their contents and this ought to have alerted him to the fact that there had or may have been a claim. I reject the submissions that there was no evidence of notice of injury or of a workers compensation claim having been made. It is disturbing that Mayne, having apparently by mistake sought to have the documents pointing to there having been a claim admitted into evidence, would now seek to have them excluded from consideration because they disprove Mayne’s claim that there was no notice of injury and no claim for compensation. Mayne may say that its position was not that there was no injury or claim but rather that the worker had not proved these matters. I do not think that an employer should put a worker to proof of such issues when it has available to it records which demonstrate that they are not genuinely in issue. Nor should an employer, in those circumstances, raise such matters in seeking to resist the claim made in later proceedings. It is rare, in my experience, for workers to retain copies of workers compensation claim documents which they submit to employers or insurers and they must rely on the insurer or self-insurer to supply these documents when they are sought. A Direction for Production of relevant documents was issued directed to Mayne, however, it is not clear whether it was served or whether any documents were supplied.
80. The failure of the Arbitrator to identify what documents were and were not in evidence has given rise, in part, to the present situation where counsel for Mayne was able to submit that the documents on which his client had sought to rely were not in evidence.
Nature and Conditions
81. Counsel for Mayne then addressed as to the strenuous and arduous nature of the work being done by her as evidenced by, it seems, the claim made in August 2000. It was submitted that there was no connection between whatever happened in October 2000 and incapacity in 2004.
Section 38
82. Insofar as the award was made under section 38, it was submitted that such liability could not be apportioned relying upon the decision of the Court of Appeal in Morris v George [1977] 2 NSWLR 552 (‘Morris’). Reference was also made to Sutherland Shire Council v Baltica General Insurance Co. Ltd (1996) 39 NSWLR 87, 12 NSWCCR 716 (‘Baltica’).
Disease
83. It was submitted on behalf of Mayne this was a disease case and the matter had been referred to the AMS without the question of injury having been determined. I have already referred to Mayne’s solicitors’ letter of 4 May 2005 regarding this. Counsel for the worker submitted that the question of disease had not been raised by Mayne in the Reply filed. At the telephone hearing I pointed out to Counsel for the Worker that his solicitor had sought to rely in the alternative upon a disease claim in the amended Application to which I have referred at [14].
Nature and Conditions up to 1 January 2002 as a Separate Injury
84. It was submitted on behalf of Mayne that there was no legal basis for finding that there had been a separate injury by way of nature and conditions up to this date. No counsel was able to refer me to authority on this.
REDETERMINATION OF THE CLAIM
85. I have already indicated that the Arbitrator’s reasons and Certificate of Determination was so unsatisfactory as to amount to errors of law such that they ought to be revoked and the matter determined afresh. It was submitted on behalf of Mayne that the matter should be referred to another Arbitrator in order to do so. I have read all of the material which is before me which I consider to be in evidence and to which I have referred and consider that I am in a position to determine the matter myself. I propose to do so. There is an obvious problem in relation to the lump sum compensation that will have to be referred to an AMS for determination in accordance with the findings which I make.
Injury
86. I am satisfied that an injury did occur to the worker’s back on 31 October 2000 in the manner which she has described in her statement and to doctors. I have noted Mayne’s submission as to the absence of contemporaneous medical reports in relation to this. However, I do not regard this as being significant for the reasons which the worker gave; namely, that, being a part-time employee with access to orthopaedic surgeons she did not need to consult a general practitioner about those problems. I am satisfied that in respect of that injury she did receive physiotherapy treatment and did see a doctor, although the identity of that doctor is unclear. The documents produced by Affinity clearly show this to be the case. It is not to the point that Mayne now seeks to say that those documents were forwarded to the Commission inadvertently instead of other documents relating to an alleged injury on 8 August 2000.
87. I also find that the worker suffered further injury by way of aggravation of pre-existing degenerative changes by reason of the nature of her work with both Mayne and Affinity. This work goes back to 1998, however, for some reason, a lesser period has been relied on by the worker’s solicitors. I consider that, in relation to the nature and conditions claim, this is more properly to be considered as an aggravation of disease under section 16 of the 1987 Act. This is consistent with what was said by Windeyer J in Commissioner for Railways v Bain (1965) 112 CLR 246 at 272:
“I cannot see that, for the purposes of the New South Wales Act, any abnormal physical condition well recognised in medical science that, like beat hand or beat knee, is the result of repeated pressure or, like boilermaker’s disease, of repeated concussion by noise is any the less a disease than is an abnormal physical condition caused by a germ or by the repeated absorption through the nose or skin of some deleterious substance.”
88. Burke J in Perry v Tanine Pty Ltd (1998) 16 NSWCCR 253 at 256 cited the passage of Windeyer J to which I have above referred. In that case he found that carpal tunnel syndrome was classically a disease process.
89. Neilson J in Mirkovic v Davids Holdings Pty Ltd (1995) 11 NSWCCR 656 at 667 said:
“… The phrase ‘nature and conditions of employment’ is not a term of art, although many who practise in this jurisdiction seem to think so. One Judge of Appeal recently referred to it as ‘quaint’. My colleague Burke J has repeatedly referred to it as a ‘meaningless concept’. It is used in this place as a shorthand way of alleging that, although no frank incident is relied upon, there was some aspect of the work carried out by a worker over a period of time, e.g. repeated lifting or bending, which caused some pathological condition or acted upon some underlying pathological condition to cause incapacity. Some classify such a period of work as a series of traumata or microtraumata, others classify as causing a disease of gradual process within section 15 of the Act (where the pathology was caused by such work) or as the aggravation, acceleration, exacerbation or a deterioration of a disease within section 16. …”
90. I have come to the view that insofar as there is a ‘nature and conditions of employment’ claim it ought be considered as being an aggravation of a disease within the meaning of section 16 of the 1987 Act.
Incapacity
91. I accept the opinions of Drs Pillemer, Powell, Patrick and Kwok that the worker has an incapacity for her work as an orthopaedic theatre sister as a result of work related injuries. I do not accept the opinions of Drs Hughes and Smith. Dr Hughes’ opinion that the worker could resume her former work appears inconsistent with the other opinions which he expressed. Dr Smith found inconsistencies on examination which were not found by other doctors. Professor Ehrlich does, I think, give the worker some support in her claim for partial incapacity.
Section 9A of the 1987 Act
92. This was not addressed in submissions, however I am satisfied, having regard to the provisions of that section, that the worker’s employment was a substantial contributing factor to such injuries as I have found. I have taken into account the time and place of injury and the nature of the work performed. I have also taken into account the worker’s state of health before injury.
Weekly Payments
93. The Arbitrator made awards under sections 38 and 40 of the 1987 Act for a period of just over one year. Counsel for Affinity did not dispute the worker’s entitlement to such payments and on all the evidence I think that attitude was justified. The quantum of weekly payments was based on the previous year’s tax return rather than, it seems, the assessment of the worker’s current weekly wage rate. Since the parties, apart from Mayne, are content with the lower figure, I intend to retain it. For the period 15 March 2004 to 14 March 2005 the awards will be as found by the Arbitrator under section 38 of the 1987 Act, namely $210.30 per week for the first 26 weeks and 80% thereof, namely $168.24 per week for the second period of 26 weeks. The final period from 15 March 2005 to 1 April 2005 has caused me some concern. It will be apparent that in respect of this period the Arbitrator made a greater award than for the preceding 26 weeks; that is, the worker was being compensated more for being partially incapacitated than she was in respect of deemed total incapacity. This would appear to run foul of the provisions of section 40(5) of the 1987 Act which is as follows:
“The weekly payment of compensation to an injured worker in respect of any period of partial incapacity for work is not to exceed the weekly payment that would be payable to the worker if it were a period of total incapacity for work.”
94. A complaint was made by Mayne that the Arbitrator had not applied the Mitchell formula in coming to the award which was entered in the sum of $210.30 for the period 15 March to 1 April 2005. From the employer’s claim form, the worker’s fortnightly earnings at the time of injury were $331.22 per week. It was said by Mayne that she would be able to earn that amount in some suitable employment and therefore there was no entitlement to compensation. It is necessary, I think, to have regard to the amount she would have been able to earn in part-time employment with the hours being similar to those which she was working at St George. The sort of work that she would be able to do, in my view, would be less well remunerated than the work she was doing as an operating theatre nurse. Doing the best I can, having regard to the age of the worker (47) and her prior work experience which was predominantly in nursing, I estimate that she would have been able to earn in suitable part-time employment approximately $200.00 per week. Deducting the average weekly amount which the worker would be able to earn in suitable employment from amount for which she would probably have been earning but for injury in the same or some comparable employment gives a resultant figure of $131.22 per week. There will be an award in respect of last period in that sum. There is no reason to reduce this amount in the exercise of the discretion which is conferred by section 40.
95. Having found that this is a case to which the provisions of section 16 of the 1987 Act apply, the primary liability to pay compensation falls on Affinity as the last employer. Prima facie, however, it is entitled to contribution from Mayne under section 16 of the 1987 Act. Mayne was an employer in the twelve months preceding the worker’s incapacity and is thus, subject to what I will say later, obliged to contribute on a pro-rata basis to the amounts to be paid by Affinity. Such contribution was opposed by Mayne on the basis that there was no evidence of a failure to agree as to contribution, there had been no formal claim for contribution made and an analysis of the precise days and hours worked would be required. I reject those submissions which are contrary to the legislative intent expressed in section 16 to provide a simple, if somewhat, arbitrary means to assign liability in the case of an injury which is in the nature of aggravation of disease. On my calculations, Affinity employed the worker for a period of 76 days from 28 November 2003 to 12 February 2004 [12 February 2004 was urged by counsel for Mayne as being the relevant date of injury and I accept that]. The period for which Mayne employed her in the twelve months preceding 12 February 2004 was 289 days. There is thus very close to a ratio of 4:1 in relation to the periods of employment by Mayne and Affinity.
96. It is also necessary, in my view, to apportion the compensation payable pursuant to section 22 of the 1987 Act. It was urged on behalf of Mayne that this could not be done relying on Morris and Baltica. The short point was that in respect of deemed total incapacity, or compensation as though totally incapacitated, this was a notional state the liability for which devolved upon the last employer and no contribution was possible. The cases relied on by Mayne do not support the argument advanced by it. There is however High Court authority, namely National & General Insurance Co Ltd v South British Insurance Co Ltd & Ors (1982) 149 CLR 327. The headnote of that case is in part as follows:
“… The liability under s.11(2) to pay compensation in respect of notional total incapacity was properly to be seen as flowing from the occurrence of the last of the four injuries and as having arisen at the time of that injury; and, accordingly, that the insurer at risk at the time of that injury was alone bound to indemnify the council in respect of its liability under the award, and was not entitled to contribution from the other insurers.”
97. It should be noted that section 11(2) of the 1926 Act was the forerunner of the present section 38 of the 1987 Act. In Baltica the Court of Appeal considered the power of apportionment in section 22 of the 1987 Act. There had been numerous amendments to the section aimed at overcoming the difficulties which had been seen by the Court in relation to its operation. The history of this litigation and the corresponding legislative amendments is set out at length by Clarke JA in that case. At 725 his Honour reserved the question whether section 22(2)(d) overcame the problem previously encountered in seeking to provide the power of apportionment in respect of a liability to compensate under section 38 of the 1987 Act. His Honour considered the approach in Morris at 731 and said that that reflected the search for a proximate or direct cause which should no longer be regarded as sound.
98. The explanatory note to the Workers Compensation Legislation Amendment Act 1995, which further amended section 22 and added sections 22A, 22B and 22C, is set out by Clarke JA at 723. After referring inter alia to the difficulty in relation to apportionment of liability to compensate a partially incapacitated worker at the special notional (‘deemed’) total incapacity rate applicable where the worker was not provided with suitable duties, the amendment was said to make the following changes: “Liability can be apportioned on the employers even in a case of deemed total incapacity arising from the failure of one of the employers to provide suitable employment”.
99. The relevant subsection of section 22A of the 1987 Act is as follows:
“(2) If a worker’s partially incapacity for work results from more than one injury to the worker and consequently more than one person would be liable to pay compensation in respect of that incapacity were the worker not entitled to compensation under section 38 of this Act or section 11(2) of the former Act (as applied by Schedule 6 to this Act), those persons are nevertheless liable for the compensation so payable and accordingly that liability may be apportioned under section 22.”
100. Section 22(1A) is as follows:
“Death, incapacity, loss or liability that results partly from one injury and partly from one or more other injuries is taken to have resulted from more than one injury.”
Section 22(2)(d) provides:
“Liability to pay compensation under this Act includes:
…in the case of a worker who is partially incapacitated for work, a liability that arises because the worker is entitled to be compensated under this Act as if totally incapacitated”.
101. As Clarke JA said in Baltica at 726:
“It is clear to me that for the purpose of section (1A) was to widen the meaning of the expression ‘results from more than one injury’, at least in section 22 and the other sections added in September 1995. …”
102. His Honour in the same case refers with approval to the comprehensive review of authorities and legislation undertaken by Burke J in Wilson v Blayney Abattoir County Council & Ors (1995) 12 NSWCCR 509.
103. Therefore Mayne’s arguments in relation to apportionment and contribution fail.
104. It was submitted on behalf of Mayne that the injury of 31 October 2000, if it occurred at all, was not causative of any incapacity in the worker or any need for treatment. This submission was based on the fact that the worker had returned to work, assuming contrary to Mayne’s submissions, that she had been off work at any time. Mayne relied on the absence of treatment until ceasing work on 12 February 2004. The worker has explained how it was that she was able to work and she has made consistent complaint of continuing symptoms from the date of the injury in October 2000. I have no hesitation in accepting her evidence in relation to this.
105. I find that the incapacity of the worker results partly from the injury of 31 October 2000 and partly from aggravation of degenerative changes in the worker’s lower back by reason of her employment up to 12 February 2004. I find that pursuant to section 22 of the 1987 Act her incapacity results from both injuries so found.
106. Although I was not addressed on this point, the argument could be made that the injury of 31 October 2000 was subsumed by reason of section 16 of the 1987 Act into the concept of ‘aggravation of injury’ and was not capable of being considered a separate injury (see MLC Insurance Ltd v Pinto (1994) 10 NSWCCR 101(‘ Pinto’)).
107. Pinto held that section 16 was a special code which excluded the general provision for apportionment in section 22. The Court of Appeal considered a similar question in Mecha. In that case the majority, Sheller and Powell JJA, held that section 16 of the 1987 Act did not apply to a personal injury within the definition of section 4(a) of the 1987 Act which also aggravates a pre-existing disease. Sheller JA held that section 16 was confined to what were entirely aggravation injuries. Powell JA held that it was open to the trial judge to hold that the worker’s impairments were due to discrete injuries; one being injury simpliciter and the other being an injury brought about by the nature and conditions of his employment. The result was in part it seems, as a result of the decision of the High Court in Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310.
108. The Court of Appeal again by majority came to a different decision in Colliar v Bulley (2000) 19 NSWCCR 302.
109. Both cases were considered by the Court of Appeal in Dimovski. The Court of Appeal decided that the decision in Mecha was to be preferred and as Hodgson JA said at [68]:
“… Section 16 applies only if the injury ‘consists in’ the aggravation etc of a disease. If there is an event that satisfies paragraph (a) of the definition of injury, and if that is the injury relied on and proved, the circumstances that it aggravated the disease and thus could have supported a case under paragraph (b)(ii) does not mean that this injury ‘consists in’ the aggravation of a disease. One strange result of the contrary review would be that a frank injury relied on and proved would, if it happened to aggravate a disease, and if incapacity did not commence immediately, be deemed under s16(1)(a) to have happened at sometime other than when it in fact happened.”
110. Accordingly there are in my opinion two distinct injuries: one being the aggravation of disease by the employment and the second being the injury of 31 October 2000. In my view it is permissible, pursuant to section 22, to apportion between those two injuries.
111. The question remains what is to be the apportionment between the frank injury and the disease injury. If the worker’s evidence is to be believed, and I see no reason not to, she was symptom-free prior to the injury of 31 October 2000. Following that she had complaints which are described as “niggling”. It is difficult to say what precise abnormality, if any, shown on the radiological investigations was caused by the incident of 31 October 2000. I note Mayne’s submission that there was a claim made in respect of the injury of 8 August 2000, however, there is no documentation relating to this in the Commission file. If Mayne’s solicitor intended to rely on it, then it seems no steps have been taken to do so. I note also that, at the hearing before the Arbitrator, Mayne’s solicitor did not advert to this matter and it is only now raised in submissions on the appeal. I accordingly disregard it. The apportionment in this case is necessarily a matter of some difficulty and no mathematical precision is possible. The injury of 31 October 2000 did, it seems, render symptomatic a previously asymptomatic degenerative disease of the worker’s spine. Doing the best I can, I think that liability under section 22 ought to be apportioned 30% as to the injury of October 2000 and the remaining 70% to the aggravation of disease.
112. That does not conclude the question of apportionment or contribution. Under section 16 there is, as I’ve said, a provision for contribution. The calculation which I have earlier done as to this results in a contribution of 80% from Mayne to Affinity in respect of Affinty’s liability under section 16. This liability is, pursuant to the apportionment which I have already made under section 22, 70%. Accordingly, Affinity is ultimately obliged to pay 14% (20% of 70%) of the total weekly compensation and Mayne is liable to pay 86% (30% plus 80% of 70%). This apportionment and contribution relates also to section 60 expenses since I see no rational consideration which would require that they be treated differently.
113. The question of lump sum compensation is however another matter. The MAC as varied by the Medical Appeal Panel does not accord with the findings as to injury which I have made so that there is no binding determination as to the worker’s entitlements under section 66 of the 1987 Act. This will need to be referred to another AMS in accordance with the findings which I have made as to injury. The Arbitrator to whom the matter will be referred may be required to determine the worker’s entitlement under section 67 of the 1987 Act if the appropriate threshold is met.
DECISION
114. For the reasons given, I revoke the award of the Arbitrator dated 2 May 2006 and substitute the following award and the following decision is made in its place:
“1.(a) The respondents are to pay the applicant weekly compensation pursuant to section 38 of the Workers Compensation Act 1987 as follows:
$210.30 per week from 15/03/04-14/09/04, and
$168.24 per week from 15/09/04-14/03/05.
(b) The respondents are to pay the applicant weekly compensation pursuant to section 40 of the Workers Compensation Act 1987 as follows:
$131.22 per week from 15/03/05-01/04/05
Such payments are to be apportioned pursuant to section 22 of the Workers Compensation Act 1987 as follows:
(i)as to the first respondent 30%; and
(ii)as to the second respondent 70%.
2.The first respondent is to pay to the second respondent 80% of the second respondent’s share referred to in subparagraph (ii) above by way of contribution pursuant to section 16 of the Workers Compensation Act 1987.
3.The respondents are to pay the applicant’s section 60 expenses upon production of accounts or receipts in the same proportions as prescribed in paragraphs 1 and 2 in relation to weekly payments.
4.The claim pursuant to section 66 of the Workers Compensation Act 1987 is remitted to a new arbitrator for referral for a further Medical Assessment Certificate pursuant to section 329(1)(b) of the Workplace Injury Management and Workers Compensation Act 1998, such referral to be in accordance with the reasons and findings in this decision.
5.The respondents are to pay the applicant’s costs as agreed or assessed in the following ratio: first respondent 86%, second respondent 14%.”
COSTS
115. Although Mayne has technically succeeded on the appeal, and although the decision of the Arbitrator was in many ways unsatisfactory, I am not convinced that Mayne has in any way greatly improved its position. There is no reason why the worker ought pay the costs of any party to the appeal nor is there any reason why the worker’s costs ought not be paid. I consider that the appropriate order for costs is that the workers’s costs of the appeal be paid in the same proportions as the weekly compensation; that is, 86% Mayne and 14% Affinity. In making such order I have had regard to the conduct of Mayne, both in the proceedings before the Arbitrator and on this appeal, to which I have elsewhere referred.
Anthony Candy
Acting Deputy President
30 March 2007
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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