McCarthy v Patrick Stevedores No 1 Pty Limited - [2010] NSWWCCPD 96

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
Status: Confirmed on Appeal – McCarthy v Patrick Stevedores No. 1 Pty Ltd [2011] NSWCA 311
CITATION:		McCarthy v Patrick Stevedores No 1 Pty Limited [2010] NSWWCCPD 96
APPELLANT:		Darren John McCarthy
RESPONDENT:		Patrick Stevedores No 1 Pty Limited
INSURER:		QBE Workers Compensation (NSW) Limited
FILE NUMBER:		A1-002085/10
ARBITRATOR:	Mr R O’Moore
DATE OF ARBITRATOR’S DECISION:		19 May 2010
DATE OF APPEAL DECISION:		8 September 2010
SUBJECT MATTER OF DECISION:		Weekly compensation; failure to consider relevant evidence; failure to refer claim for additional lump sum compensation to Approved Medical Specialist; failure to consider or properly determine claim for medical expenses; forensic medical report; clause 43 of the Workers Compensation Regulation2003; whether a forensic medical report may be tendered for the limited purpose of relying on the history recorded in it
PRESIDENTIAL MEMBER:		Deputy President Bill Roche
HEARING:		On the papers
REPRESENTATION:		Appellant:	Turner Freeman
Respondent:		David Veasey
ORDERS MADE ON APPEAL:		The Arbitrator’s determination of 19 May 2010 is revoked and the following orders made in its place: “1. Award for the respondent employer in respect of the claim for weekly compensation from 1 July 1999. 2. The appellant worker’s claim for additional lump sum compensation in respect of the further 1.25 per cent loss of efficient use of his left leg at or above the knee as a result of his injury on 29 August 1998 is remitted to the Registrar for referral to an Approved Medical Specialist. The assessment is under the Table of Disabilities. The referral is to include all documents in the evidence file, but is not to include the reports from Drs Jones, Bodel and Chapman. 3. The respondent employer is to pay the applicant worker’s hospital and medical expenses under s 60 of the Workers Compensation Act1987. 4. The respondent employer is to pay the appellant worker’s costs, as agreed or assessed.” The respondent employer is to pay one-half of the appellant worker’s costs of the appeal, as agreed or assessed.

BACKGROUND

The appellant worker, Darren McCarthy, started work with the respondent employer, Patrick Stevedores No 1 Pty Limited (Patrick Stevedores), in 1982. On 29 August 1998, he fell onto his buttocks whilst attempting to sit on a swivel chair in the course of his employment. As a result, he injured his back, right leg, left leg and left hip.

Mr McCarthy has given inconsistent evidence about his duties and classification with Patrick Stevedores at the time of his injury.
In his first version, given in 2004, Mr McCarthy said that he was a grade 5 allocations clerk from 1994 until June 1998. Because of industrial action in 1998, Patrick Stevedores stood down a number of employees (including Mr McCarthy) on 7 April 1998. It reinstated Mr McCarthy in June 1998 (two months before his injury) as either a grade 4 allocations clerk or a grade 4 receiving and delivery clerk. On his return to work after his accident, he said that he continued his full-time permanent position as a grade 4 clerk. He said that his duties were only clerical and that he had suffered no economic loss due to his accident, but suffered a loss because of his demotion to a grade 4 allocations clerk. He said nothing about pre-injury duties requiring a lot of walking or climbing stairs.
In his second version, given in 2009, Mr McCarthy said that he was an allocations officer at the time of his accident and that that job involved clerical work and a lot of walking and climbing stairs. He said that Patrick Stevedores downgraded his position from that of an allocations officer to a receiving and delivery clerk in “late 1998 or early 1999”. In contrast to his earlier statement, he said that he had suffered a substantial economic loss because of his inability to work as an allocations officer since 29 August 1998.
In 2002, Mr McCarthy claimed weekly compensation in the former Compensation Court of New South Wales of $1,081 per week from 14 September 1998 to 27 November 1998, and $1,125 per week for one day off work on 9 February 1999. Patrick Stevedores settled that claim on 20 November 2002. Though the same solicitors who are currently acting for him represented him, Mr McCarthy made no allegation in that claim that he had suffered a loss of income due to being unable to work as an allocations clerk.
Mr McCarthy later claimed lump sum compensation in respect of his injury. He settled that claim on or about 14 March 2005 in the following amounts:
(a) $12,000.00 in respect of a 20 per cent permanent impairment of his back,
(b) $3,750.00 in respect of a permanent five per cent loss of efficient use of the right leg at or above the knee, and
(c) $8,437.50 in respect of an 11.25 per cent permanent loss of efficient use of the left leg at or above the knee, and
(d) $15,812.50 in respect of pain and suffering.
By letter dated 19 August 2009, Mr McCarthy’s solicitors claimed weekly compensation in the sum of $300.00 per week from 1 July 1999 to date and continuing under s 40 of the Workers Compensation Act1987 (the 1987 Act), approval for a left hip replacement operation, lump sum compensation in the sum of $937.50 in respect of a 1.25 per cent further permanent loss of efficient use of the left leg at or above the knee under s 66 of the 1987 Act, and a further $1,000 in respect of additional pain and suffering.
Patrick Stevedores’ insurer, QBE Workers Compensation (NSW) Limited (‘QBE’), disputed liability in a section 74 notice dated 6 October 2009, on the grounds that:
(a)Mr McCarthy had recovered from his injury;
(b)Mr McCarthy had not suffered any reduction in his earning capacity since 1 July 1999 as a result of his injury, other than during periods for which he had been paid compensation;
(c)Mr McCarthy had not suffered any loss of wages since 1 July 1999 as a result of his injury, other than during periods for which he had been paid compensation;
(d)the left hip replacement surgery was not a reasonably necessary treatment expense under s 60 of the 1987 Act;
(e)Mr McCarthy had not suffered any further permanent loss of efficient use of his left leg at or above the knee, and
(f)Mr McCarthy had not suffered any further pain and suffering under s 67 of the 1987 Act.
Under “Reasons for Denying Liability”, QBE asserted:

(a)based on evidence from Dr David Maxwell, orthopaedic and spinal surgeon, the aggravating effects of the work injury had ceased and Mr McCarthy was fit for employment without restrictions;

(b)at all times, Mr McCarthy’s employment with Patrick Stevedores had been in a clerical capacity, and that had not altered since the accident;

(c)Mr McCarthy was fit to perform his pre-injury duties and had been certified fit for those duties on 26 November 1998;

(d)while certified fit for suitable duties, such duties were no less onerous than the duties Mr McCarthy performed prior to the accident;

(e)Mr McCarthy’s statement of 3 August 2004 did not demonstrate any loss of earnings or loss of earning capacity as a result of his accident;

(f)the totality of the medical evidence strongly suggested that the need for the left hip replacement operation resulted from osteoarthritis in the left hip, and not from the accident;

(g)the medical evidence did not disclose that Mr McCarthy had an increase in the loss of efficient use of his left leg at or above the knee, and

(h)if there was a further loss of efficient use of the left leg at or above the knee, the medical evidence did not demonstrate that Mr McCarthy had suffered any further pain and suffering as a result of any such further permanent loss of efficient use.

In an Application to Resolve a Dispute (‘the Application’) registered in the Commission on 16 March 2010, Mr McCarthy claimed compensation as per his solicitor’s letter of 19 August 2009. He also claimed hospital and medical expenses in the sum of “at least $1,228.00”, but made no specific claim in respect of the proposed left hip surgery.
In a Reply filed on 6 April 2010, Patrick Stevedores disputed the claim on the grounds set out in the s 74 notice from QBE dated 6 October 2009.
The Commission listed the matter for conciliation and arbitration on 11 May 2010. The Arbitrator heard lengthy submissions, but took no oral evidence. Mr McCarthy’s solicitor, Mr Whiffin, conceded that he had served three forensic medical reports. They were from Drs Jones, Bodel and Evans. Though the Arbitrator did not make any record of it, the parties appear to have agreed that, consistent with cl 43 of the Workers Compensation Regulation2003 (the Regulation), they would only rely upon the reports from Dr Evans (T4.33). Mr Whiffin took no objection to the fact that, on the face of it, Patrick Stevedores was also in breach of cl 43 in that it had attached to its Reply forensic medical reports from Dr Chapman and Dr Maxwell. This matter is dealt with at [26] to [37] below.
In a reserved decision delivered on 19 May 2010, the Arbitrator referred to the inconsistencies in Mr McCarthy’s evidence and said (at [36]) that it would be “unfair to a respondent to find against it on the worker’s evidence as it now stands”. He added (at [37]):
“The Commission cannot discharge its obligation to determine the matter fairly on the evidence for the purpose of making findings of fact when the threshold factual issue of work duties cannot be determined on the evidence. Consequently, the section 40 issues, medical expenses and permanent impairment claims cannot be properly determined.”
The Arbitrator made this finding on the ground that Mr McCarthy had failed to establish “his pre-injury duties, his duties post-injury and the issues going to proof of economic loss” (decision at [38]). In respect of the claim for additional lump sum compensation, the Arbitrator found that the medical evidence did not “find a further loss as claimed”.
The Commission issued a Certificate of Determination on 19 May 2010 in the following terms:
“The Commission determines:
1. Award Respondent on the Applicant`s claims for weekly compensation, medical expenses and permanent impairment.
2. No order as to costs.
Respondent is entitled to an uplift of 20% for complex costs.”
In an appeal filed on 15 June 2010, Mr McCarthy seeks leave to challenge the Arbitrator’s Determination.

LEAVE TO APPEAL

Monetary threshold

Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).

It is not disputed that the monetary thresholds in s 352(2) of the 1998 Act 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.

ON THE PAPERS

Section 354(6) of the 1998 Act provides:

“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”

Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.

ISSUES IN DISPUTE

The issues in dispute in the appeal are whether the Arbitrator erred in:

(a) failing to reach the true and correct answer to the dispute before him;
(b) failing to consider all of the evidence to determine the worker’s pre-injury duties;

(c) failing to properly determine the matters required to decide whether the worker was entitled to weekly compensation;

(d) failing to determine any of the matters relevant to the worker’s claim for medical expenses;

(e) failing to determine any of the matters relevant to the worker’s claim for additional permanent impairment benefits, and

(f) determining the medical dispute about lump sum compensation without first referring that claim for assessment by an Approved Medical Specialist (AMS).

An additional issue concerns the application of cl 43(1) of the Regulation, which provides that, in any proceedings on a claim in relation to an injured worker, only one forensic medical report may be admitted on behalf of a party to proceedings. A forensic medical report is defined in cl 43(4)(a) of the Regulation as a report from a specialist medical practitioner who has not treated the worker and has been obtained for the purpose of proving or disproving an entitlement, or the extent of an entitlement, in respect of a claim or dispute.
At a teleconference held by me on 1 September 2010, Mr Whiffin agreed that, because of cl 43, he could only rely on the reports from Dr Evans. He did not seek to rely on the reports from Drs Jones and Bodel. He conceded that, to the extent that his submissions on appeal referred to the reports from Drs Jones and Bodel, they could be disregarded.

At the arbitration, Patrick Stevedores relied on reports from Drs Chapman and Maxwell. At the teleconference on 1 September 2010, counsel for Patrick Stevedores, Mr Batten, elected to rely on Dr Maxwell’s report. Because the histories recorded by Dr Chapman were said to be helpful to Mr McCarthy, Mr Whiffin sought to rely on Dr Chapman’s reports as witness statements, not as forensic medical reports.
Dr Chapman is a consultant orthopaedic surgeon. He examined Mr McCarthy at the request of QBE on 29 September 1998 and again on 9 February 1999. He prepared three reports: 2 October 1998, 25 November 1998 and 10 February 1999. His reports referred to several documents sent to him by QBE. Those documents included, but were not limited to, the worker’s claim form dated 4 September 1998, certificates from the treating general practitioner and a report from Dr Neil dated 16 September 1998. Dr Chapman provided an opinion on Mr McCarthy’s fitness for work and other matters relating to the claim.
Given the circumstances in which Dr Chapman’s reports came into existence, and given that he did not treat Mr McCarthy, it is clear that QBE obtained them for the purpose of proving or disproving an entitlement in respect of Mr McCarthy’s claim. It follows that Dr Chapman’s reports are forensic medical reports within cl 43(4)(a) of the Regulation and therefore, as Mr McCarthy has tendered Dr Evans’s reports, he is not entitled to rely on a second forensic medical report.
Is Mr McCarthy entitled to rely on Dr Chapman’s reports as witness statements, but not as forensic medical reports? My initial view was that, as the reports are clearly forensic medical reports, and as Mr Whiffin has elected to rely on Dr Evans’s reports, it was not possible to admit them as witness statements.
However, the Commission is not bound by the rules of evidence and may inform itself on any matter in such manner as it thinks fit (s 354(2) of the 1998 Act). It must act according to equity, good conscience and the substantial merits of the case (s 354(3) of the 1998 Act).
In Aluminium Louvres and Ceilings Pty Ltd v Xue Qin Zheng [2004] NSWWCCPD 26, Deputy President Fleming held (at [24]):
“Where the rules of evidence do not apply, the conduct of proceedings will be a matter to be determined according to principles of fairness, taking into account the nature of the proceedings, the legislative requirements and the demands of the instant case. The Commission may have regard to evidence that would not be admissible in a court in accordance with the rules of evidence. Fairness must guide the weight to be given to this evidence.”

McColl JA quoted the above passage with apparent approval in South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16; 4 DDCR 42 at [128]. Naturally, this passage is subject to the Commission’s rules and the Regulation.
Though Dr Chapman’s reports are not admissible as forensic medical reports, the question of whether I should admit them as witness statements raises different questions, namely whether the reports may be admitted for the limited purpose of relying on the histories recorded in them. Two questions arise in determining this issue: is the material relevant to an issue in dispute and will the admission of the reports as witness statements involve any unfairness to Patrick Stevedores.
The following common law principles are relevant, but not decisive. First, if evidence is adduced and admissible for more than one purpose it can be used for any and all of those purposes and the party tendering the evidence cannot restrict the purposes to which the evidence can be put (B v The Queen [1992] HCA 68; 175 CLR 599 per Brennan J at 606–607). Second, if evidence is admissible for one purpose, it cannot be rejected on the ground that it is inadmissible for another purpose (Cross on Evidence, Seventh Australian Edition, Butterworths, J D Heydon, 2004, at [1520] citing Rutherford v Richardson [1923] AC 1). Last, subject to s 60 of the Evidence Act (NSW) 1995, if the evidence, admitted for one purpose is not admissible for another purpose, it cannot be used for that other purpose (B v The Queen).

Dr Chapman first saw Mr McCarthy on 29 September 1998 and reported on 2 October 1998. He therefore took a history, within four weeks of the accident, of Mr McCarthy’s occupation and work duties. He next saw Mr McCarthy on 9 February 1999 and reported on 10 February 1999. He recorded that Mr McCarthy had returned to work and the nature of his duties at that time. His histories are therefore relevant to the issue in dispute, namely, the nature of Mr McCarthy’s pre- and post-accident duties. Further, the history recorded in a medical report is evidence of the fact (Paper Coaters Pty Limited v Jessop [2009] NSWCA 1 (Jessop)).
Mr Batten pointed to no prejudice to his client if I were to admit the reports as witness statements. Given that Patrick Stevedores tendered the reports at the arbitration, there is no unfairness to it if the reports are admitted on appeal as witness statements. As I understand it, if I admit the reports as witness statements, Mr Whiffin does not seek to rely on the doctor’s opinions and conclusions, but merely the histories. Clause 43 would prevent him from relying on the doctor’s opinions in any event.
On condition that Mr Whiffin relies only on Dr Chapman’s histories, but not on his opinions and conclusions, it is appropriate, in the circumstances of this case, to admit Dr Chapman’s reports as witness statements, but not as forensic medical reports. It follows that, as I have admitted the reports for the limited purpose of relying on the histories recorded in them, they cannot be used for another purpose. This approach is both fair and logical. It admits evidence relevant to an issue in dispute, but excludes evidence that would breach cl 43 of the Regulation. It is also consistent with common law authority.

THE EVIDENCE

Mr McCarthy

Mr McCarthy’s evidence is set out in two statements. The first is a 15-page statement signed on 16 October 2004 and the second is a two-page statement signed on 11 November 2009.
In his first statement, Mr McCarthy described his occupation in 2004 as a grade 4 receiving and delivery clerk, a position he had held “since June 1998”. He also set out his work history in that statement and said that he had been a grade 5 allocations clerk from 1994 until June 1998, when he became a grade 4 receiving and delivery clerk. However, at paragraph 24 of his statement, he said that, at the time of his accident on 29 August 1998, he was employed as a grade 5 allocations clerk. In paragraph 27, he described his duties “at [the] time of injury” as follows:
“My position involved clerical duties, data entry, customer service, customer queries, allocating containers for pick-up or delivery to truck drivers.”

He added at paragraph 28:
“NOTE: From 1994 to June 1998 I had been employed by Patrick Stevedores as a Grade 5 Allocation Clerk. The Grade 5 grading had been an issue fought and won by the union. Due to action by Patrick Stevedores on the 7^th April 1998, a number of employees were stood down, eventually being reinstated as a result of industrial action in May 1998. Although the union had indicated that no employee reinstated would be demoted or lose a grading I was reinstated in June 1998 as a Grade 4 Allocation Clerk. I believe this was due, in part, to a public appearance I had made on ‘A Current Affair’ to address the issue of the stand-down. As a result of that appearance, I was the subject of an AVO … I have never been provided with a reason as to why I have been demoted to Grade 4 and I am currently aware that one Grade 5 employee at Patrick Stevedores receives the approximate salary of $78,000 per annum whilst I currently receive the amount of $68,000 per annum as a Grade 4 Receiving and Delivery Clerk. My duties have not differed other than that I am no longer in a supervisory position.”
Mr McCarthy then described his accident. He had taken a telephone call and, when he went to sit on his chair, it had moved, and he fell onto his buttocks. As a result, he experienced pain in his buttocks and low back. He reported the incident to the first aid officer, John Hawkins, and ultimately sought treatment from his general practitioner, Dr Jill McDonell. He remained off work from 30 August 1998 until 1 December 1998. In that period, his main symptoms were in his low back and left hip.
When he initially returned to work, he still experienced a great deal of pain and discomfort. He only worked for two weeks when he required a further two-week break. On his return to work, he continued his full-time permanent position as a grade 4 allocations clerk (paragraph 97 of the first statement). He was never offered light duties, reduced hours or a return to work plan. At paragraph 98, Mr McCarthy said that he had difficulty returning to work, as he had trouble doing the following duties:
“a.Sitting static for any period of time
b.Standing static for any period of time
c.Concentrating, due to the constant pain I was experiencing.”
Mr McCarthy took odd days off after he returned to work, but claimed those days as sick leave. He said that he continued to perform his “required duties”, but still experienced pain and discomfort on a daily basis. He added (at paragraph 100) that he tried to “move around as much as possible” and continued to exercise.
At paragraph 101, Mr McCarthy said:
“I believe that my current position of Receiving and Delivery Clerk Grade 4 is directly related to my speaking out against Patrick Stevedores publicly in relation to the industrial action in 1998, and my claiming of workers compensation for my injury. I am receiving a lesser wage than a Grade 5 Allocation Clerk, I have not been offered any chance at promotion, and I have not been allocated any overtime since returning to work in December 1998. Note: overtime is allocated as time in lieu. I have watched many employees progress and enjoy overtime benefits since my return and cannot help but feel victimised.”
Mr McCarthy consulted a legal representative in 1999 in relation to his injury and said that QBE consistently denied “further liability” for the injury. He approached a solicitor with Turner Freeman in 2003 and pursued a claim for compensation against Patrick Stevedores.
He described his disabilities and restrictions from his injuries from paragraph 108 to paragraph 119. He said the injury had affected his ability to perform household and gardening duties, pool maintenance, and family activities on a consistent basis. He had difficulty with standing or sitting. He said he could “walk and jog to a degree”, but found that he experienced increased pain and discomfort on the occasions that he walked or jogged “for any reasonable distance or for an extended period of time”.
Dealing specifically with his work, Mr McCarthy said (at paragraph 125) that he was “no longer fit to carry out labouring duties on the waterfront”. He added (at paragraph 126):
“I am able to cope with the clerical work so long as I am not required to do too much bending and twisting of the back, lifting of weights heavier than 10 kg or walking for long periods, even on uneven surfaces.”
He continued to have stiffness in his back and restricted movement of his left hip. As long as he took regular breaks, he was able to “work to an acceptable level” (at paragraph 132).
Mr McCarthy said that he had previously injured his left hip in 1988, whilst playing first-grade rugby league. He gave up jogging because of his left hip in or about 1990, but could still walk without pain or incident.
Under “Economic Loss”, he said (at paragraph 146):
“I have not suffered economic loss as a result of my accident but do believe I have suffered economic loss as a result of being demoted to Grade 4 allocations clerk.”
He believed he would be able to continue with “clerical work for the time being” (at paragraph 147).
In his 2009 statement, Mr McCarthy said (at paragraph 5):
“As at 29 August 1998, I was employed by Patrick Stevedores as an allocations officer. My duties in this regard involved data entry, customer service, and other clerical duties, as well as a substantial amount of walking (often on inclines or over uneven ground) and stair climbing, in order to allocate appropriately the human and other resources of Patrick Stevedores.”
He estimated that he spent 60 per cent of his time as an allocations officer performing clerical duties in the office and 40 per cent out of the office “mostly walking and stair climbing” (at paragraph 6). He again described his accident and having had three months off work because of his injuries. He then added (at paragraph 10):
“In late 1998 or early 1999, Patrick Stevedores downgraded me from my position as an allocations officer to a position as a receiving and delivery clerk. I have continued to work for Patrick Stevedores in this capacity since.”

He said that his duties as a receiving and delivery clerk were “purely clerical” and that he rarely needed to leave his office. He was capable of performing those duties. He added:
“12.However, because [of] my accident injuries, I am now unable to perform the duties of an allocations officer for Patrick Stevedores. The constant pain in my back, left hip, and left leg causes me a significant disability in relation to the extensive walking and the excessive climbing of stairs, required to perform those duties.
13.I have suffered a substantial economic loss because of my inability to perform my employment duties as an allocations officer since 29 August 1998. Since that date, my economic loss has also been compounded by my inability to perform as much overtime duties with Patrick Stevedores as I did prior to 29 August 1998. This inability to perform overtime duties is directly related to the pain in my back, left hip, and left leg, as a result of my accident injuries.”
Mr McCarthy then listed his disabilities, which included an inability to walk for long distances and a reduced capacity to traverse steps, stairs, ladders and uneven ground.

Dr Chapman

Dr Chapman reported to QBE on 2 October 1998, having seen Mr McCarthy on 29 September 1998. Under “occupation/work duties”, he recorded:

“Mr McCarthy has been employed as an allocator at Patrick’s for the past five years. His job is now redundant and he is in a multi-skilling group. At the present time his future duties are not clear.”

He saw Mr McCarthy again on 9 February 1999 and reported to QBE on 10 February 1999. He confirmed the previous history with Mr McCarthy. Under “progress since last assessment”, he recorded:

“Mr McCarthy returned to work on 30 November 1998. He is now employed on clerical duties only. On or about 18 January 1999 he went off again for another week because of what he describes as muscle spasms in his lower back extending up to his neck. More physiotherapy was advised and he continues to have this treatment on a daily basis. The physiotherapist is treating his back and neck.”

Under “continuing employment/work duties”, Dr Chapman recorded:

“His work is now entirely clerical. He sits at a desk with a computer terminal to his right and processes the work from incoming trucks. From what he tells me he spends most of his shift sitting down. He finds sitting down in the one position difficult and it also gives rise to aching in his neck.”

Russell Byrne

Mr Byrne is a senior clerk with Patrick Stevedores. He signed a statement on 8 February 2010 in which he said that he worked as an allocations officer for the company for approximately nine or 10 years, starting in 1990. He was aware of Mr McCarthy’s accident on 29 August 1998. He said that Mr McCarthy was an allocations officer at the time of his accident. On average, he estimated that up to 50 per cent of the day would have been spent away from his desk. However, that would vary greatly depending on the needs of the day. An allocation clerk was often required to liaise with operational and mechanical labour face-to-face to confirm availability for rosters. The allocations officers would frequently walk to different parts of the office and move up and down stairs. On some occasions, they would have to board a ship.

Robert Johnson

Mr Johnson is a training officer with Patrick Stevedores. He has been with the company since 1981. He signed a statement on 27 January 2010. He said that he worked as an allocations officer for Patrick Stevedores for a period of 10 years and would have been in that position at the time of Mr McCarthy’s accident. He estimated that 25 to 30 per cent of the day would have been spent away from his desk. An allocations officer often had to speak to employees face-to-face. An allocations officer would “frequently be walking, travelling to different parts of the office, moving up and down stairs”.
Mr Johnson added that the job of an allocations officer had “changed since 1998” and the role had “become increasingly computerised”.

George Inman

Mr Inman is a clerical officer with Patrick Stevedores. He has worked with the company since 1970. He is Mr McCarthy’s uncle. He signed a statement on 2 February 2010.
He was aware of Mr McCarthy’s accident on 29 August 1998. Mr Inman worked as an allocations officer for Patrick Stevedores between 1994 and April 1998. He worked in the same office as Mr McCarthy, though in a different role at the time of the accident. He said that Mr McCarthy was an allocations officer at the time of the accident. He estimated that “up to 50% of the day” would have been spent away from the desk, speaking to employees face-to-face. The allocations officers would frequently be walking, travelling to different parts of the office, and moving up and down stairs. Around 1998, the job “would have required a large amount of stair climbing” to pin up allocations on board ships.
Mr Inman added that the role of an allocations officer had since become “increasingly more computerised”.
Overtime made up a large proportion of his take-home pay around the period of 1998. However, in 1999, there was a pay dispute and a restructuring of allocations officers’ wages. Allocations officers were placed on a salary system and no longer paid overtime.

Joseph Tanti

Mr Tanti is a VBS clerk with Patrick Stevedores. He has worked with the company since 1981. He signed a statement on 29 January 2010. He was aware that Mr McCarthy’s accident occurred on 29 August 1998.
Mr Tanti worked as an allocations officer for Patrick Stevedores since 1981 until 2008. He said that Mr McCarthy also worked as an allocations officer at the time of his accident. He estimated that, on average, up to 50 per cent of the day would have been spent away from his desk, though that would vary greatly, depending on the needs of the day. Allocations officers would “frequently be walking, travelling to different parts of the office, and moving up and down stairs”.

Mark Brian

Mr Brian signed a statement on 29 January 2010. He is a team leader with Patrick Stevedores, having been employed with the company since 1985.
He worked as an allocations officer between 1994 and April 1998. He was aware of the date of Mr McCarthy’s accident. He said that Mr McCarthy “also worked as an Allocations Officer around the same time I was in the role”. He estimated that, on average, up to 20 to 25 per cent of the day as an allocations officer would have been spent away from his desk. An allocations officer would “frequently be walking, travelling to different parts of the office, and moving up and down stairs”. The allocation room in which he was based was at the front of the building and “seemed to be at least 60 metres away from everything”.

James Hannon

Mr Hannon provided a statement on 3 February 2010. He worked as an allocations officer for Patrick Stevedores between 1991 and his retirement in early 1999. He said that he was aware that Mr McCarthy’s accident took place on 29 August 1998. He said that Mr McCarthy worked as an allocations officer “around the same time” that he was in the role. He estimated that up to 30 to 35 per cent of the day would have been spent away from his desk. The allocations officers would “frequently be walking, travelling to different parts of the office, and moving up and down stairs”.
He said that, towards the end of 1998, there was a dispute and a restructuring of the allocations section. He was offered, and accepted, a redundancy in early 1999.

James McGee

Mr McGee signed a statement on 26 January 2010. He is a reefer inspector with Patrick Stevedores. He worked as an allocations officer for the company for approximately eight or nine years, starting in 1991.
Mr McGee was aware that the worker’s accident took place on 29 August 1998. He said that Mr McCarthy worked as an allocations officer at the time of his accident. In 1998, Mr McGee was “moved around a great deal and placed in different departments and sections”. However, he spent “a lot of time in the allocations department”. He estimated that up to 30 per cent of his shift would have been spent away from his desk, though that amount would vary greatly, depending on the needs of the day. The best way to contact staff already working on a shift was to talk to them face-to-face. He said that allocations officers would “frequently be walking, travelling to different parts of the office, and moving up and down stairs”.

Constantine Pellegrini

Mr Pellegrini signed a statement on 25 January 2010. He is an allocations officer with Patrick Stevedores and has worked with the company since 1984. He was aware that Mr McCarthy’s accident occurred on 29 August 1998. He said that, at the time of the accident, Mr McCarthy was working as an allocations officer.
Most of Mr Pellegrini’s time was spent indoors working at his desk. Even though he was an allocations officer, his role was also to oversee the allocations process. Mr McCarthy and the other allocations officers would spend, on average, between 25 and 30 per cent of their time away from their desks. The best way to contact staff already working on site was to talk to them face-to-face.
Due to increased automation and computerisation, Mr Pellegrini is now the only allocations officer.

Medical evidence

Dr Neil, specialist with the Department of Orthopaedic Surgery at St Vincent’s Clinic, reported on 16 September 1998 that Mr McCarthy retired from professional rugby league at the age of 28 because of osteoarthritis in his left hip. He took a history of the work accident in which Mr McCarthy landed on his buttocks and sacrum. At the time of his examination on 14 September 1998, Mr McCarthy complained of pain in the sacroiliac joints in the low back, left hip and groin. He thought Mr McCarthy would be fit for clerical duties in approximately one week.

Dr McDonell reported to QBE on 3 February 1999 that Mr McCarthy’s upper body symptoms had been exaggerated by his work, which required him to sit for long periods with no stretch breaks, and constantly twist to the left to pull paper from a printer. He was under strict instructions to stretch and rest regularly at work. There was marked stiffness in his thoracic spine, with restriction of neck movements with pain. There was a gross limitation of his left hip movements, which the doctor did not expect to improve. The doctor recorded that Mr McCarthy’s normal duties were clerical and, provided he took regular stretch breaks, he would be able to do his normal duties most of the time in the foreseeable future until his hip replacement surgery.

Dr Richard Evans examined and reported on Mr McCarthy for medicolegal purposes on 29 January 2003. He recorded that Mr McCarthy’s work was “partly clerical and partly that of a multi-skilled stevedore”. There was some improvement in his pain during his three months off work. However, his hip pain remained worse than it had been before the accident and he continued to have back pain. He was able to do only clerical work.
Dr Evans stated that, at the time of his examination, Mr McCarthy continued working “normal duties as a clerk”. He could no longer do labouring work because of his hip and back pain. His hip pain became worse if he walked on level ground at a normal pace, though it did not “cause him to stop walking”. It did not hurt on stairs, but it did hurt if he walked on hills or uneven ground. Mr McCarthy felt that his hip pain was about 30 per cent worse at the time he saw Dr Evans than it was prior to the accident in August 1998.
Dr Evans concluded that the worker was no longer fit to carry out labouring work on the waterfront, but was “able to cope with his clerical work”.
Dr McDonell reported to Turner Freeman on 22 June 2004. She recounted Mr McCarthy’s injury and history of problems with his left hip when he played rugby league. She said that, by 16 September 1998, Mr McCarthy’s hip symptoms were improving, but he still complained of a lot of thoracic and neck pain. By 29 October 1998, Mr McCarthy was feeling a lot better, as he had been stretching regularly. By 26 November 1998, Mr McCarthy was allowed to go back to his “previous duties, with the restriction that they not be increased beyond clerical duties”. On 14 January 1999, Mr McCarthy complained of stiffness in his left hip and groin, and pain in his back, especially after prolonged sitting, not getting breaks at work because he was too busy.
Mr McCarthy saw Dr McDonell on several occasions throughout 1999. On 28 July 1999, she recorded that he complained of neck pain, stiffness, headaches and nausea. His groin pain was still present and required him to “regularly stand at work and stretch”. Dr McDonell had not seen Mr McCarthy since his attendance on 28 July 1999 and she assumed he would be fit “only for clerical type duties” and that he would have some symptoms that would need him to “get up and stretch regularly”. She thought he would eventually require a hip replacement as a result of his osteoarthritis caused by his football career.
Dr Evans reviewed Mr McCarthy on 16 November 2004. There had been a mild worsening of Mr McCarthy’s hip and back pain. He continued to work “on normal duties as a clerk”, but could no longer do stevedoring work because of his symptoms. His salary was substantially less than when he “worked as a stevedore”. Mr McCarthy complained that his hip pain was worse if he walked on level ground at a normal pace, though it did not cause him to stop walking. The pain was aggravated by walking on stairs or uneven ground.
On examination, Dr Evans recorded that there was mild wasting of the left thigh and calf. He observed Mr McCarthy to walk with a mild limp. Dr Evans repeated that the worker was no longer fit to carry out labouring work on the waterfront, but was able to “cope with his clerical work”.
Dr Evans reviewed Mr McCarthy again on 1 April 2009. He recorded that the worker’s back and hip pain had both become “moderately worse”. Dr Evans concluded, as he had in his previous reports, that Mr McCarthy was not fit to work as a stevedore, but was able to cope with his clerical work. He was fit for work that did not require much bending or twisting of his back, lifting of weights heavier than 10 kg, or walking for long periods or on uneven surfaces.

QBE arranged for Mr McCarthy to be examined by Dr Maxwell, orthopaedic and spinal surgeon, on 16 June 2008. In his report of 18 June 2008, Dr Maxwell recorded that Mr McCarthy joined Patrick Stevedores after he left school and worked on the wharves. He had always done clerical work, “mainly as an allocator or a time-keeper”. Dr Maxwell recorded that the worker had three months off work after his injury, and that he then “returned to work doing his usual clerical duties”. Dr Maxwell assessed Mr McCarthy to be fit for employment without restrictions. Any temporary work-related aggravation had ceased. He added that Mr McCarthy was fit for his “pre-injury duties which are of a clerical nature”.

Other documents

An incident report dated 3 September 1998 described the circumstances of the fall and listed Mr McCarthy’s occupation as “Allocator Grade 4”.
The employer’s report of injury form to QBE dated 7 September 1998 described Mr McCarthy’s occupation as “Grade 4 Allocator”.

THE ARBITRATOR’S REASONS

After noting that the worker carried the onus of establishing his case, the Arbitrator stated at [30] of his Statement of Reasons (‘Reasons’):
“The proof of the worker’s pre-injury duties is in the worker’s hands, and in my view, even with the lengthy timeframes since 1998, it is far from clear. I am not satisfied that the worker has provided the evidence of his actual duties at injury, clearly established or explained his actual grade or classification at injury by reference to those duties, nor the distinction of his duties as an Allocator or Receiving and Delivery Clerk Grade 4 or Allocator Grade 4.”
The Arbitrator added (at [31]) that the evidence was “simply not there to assist the Commission to make a proper determination”. The evidence did not enable the Arbitrator to decide “with any certainty what job and duties Mr McCarthy was in fact doing at injury, if in fact he was working at a higher grade (or duties) pre-injury and then post-injury was downgraded in duties because he was no longer able to carry on higher duties because of work injury, not earlier industrial action” (Reasons at [33]).
The Arbitrator said that the 2009 statement from Mr McCarthy had not clarified the confusion in the 2004 statement. He said that, even with the witness statements, it would be unfair to the employer to find against it on the worker’s evidence as it stood and, in any event, would be wrong “on an evidentiary basis”.
The Arbitrator concluded (at [37]):
“The Commission cannot discharge its obligation to determine the matter fairly on the evidence for the purpose of making findings of fact when the threshold factual issue of work duties cannot be determined on the evidence. Consequently, the section 40 issues, medical expenses and permanent impairment claims cannot be properly determined.”
The Arbitrator therefore concluded that Mr McCarthy had failed to establish the threshold proof of his pre-injury duties, his duties post-injury and the issues going to proof of economic loss.
On the question of permanent impairment, the Arbitrator said that the medical evidence for the worker did not “find a further loss as claimed”.
The Arbitrator made an award in favour of the respondent employer on all issues.

SUBMISSIONS

Mr McCarthy has argued that the Arbitrator erred by limiting his analysis to the 2004 and 2009 statements and failed to consider the totality of the evidence.
He submitted that, prior to his injury, he was employed as an allocations officer and that that job involved a substantial amount of walking (often over inclines or over uneven ground) and climbing stairs. As a result of his injuries, he was no longer able to perform those duties and, in late 1998 or early 1999, Patrick Stevedores “downgraded [him] to a position as a Receiving and Delivery Clerk”. He has continued to perform the duties of a receiving and delivery clerk at a reduced wage ever since.

Mr McCarthy conceded that, when his two statements were taken together, there was some doubt about his grading at the time of the injury. However, he submitted that most of the evidence in the statements was consistent with him performing the work of an allocations officer as at 29 August 1998. That evidence was consistent with the statements taken from the eight lay witnesses referred to earlier in this decision and with the employer’s report of injury form dated 7 September 1998.
It was also submitted that it was significant that the respondent employer filed no statements or other evidence asserting that the change in Mr McCarthy’s employment from allocations officer to receiving and delivery clerk occurred prior to the injury. It would be expected that Patrick Stevedores would have records that would show precisely when the change occurred and there is no explanation from Patrick Stevedores as to why it has not tendered such evidence.
Therefore, when all the material is considered, it was argued that there is a compelling case that Mr McCarthy was employed as an allocations officer at the time of his injury, though there is some uncertainty as to whether that position was as a grade 4 or grade 5. The wage material filed by Patrick Stevedores prescribes a salary for the single position of an allocator and there is no warrant for differentiating between grade 4 and grade 5.
It was submitted that Dr Chapman’s histories were consistent with Mr McCarthy’s evidence that he had been an allocator at the time of his injury and on his return to work on 30 November 1998, he performed clerical duties only. Therefore, Dr Chapman’s histories were consistent with a conclusion that Mr McCarthy’s duties changed in late 1998, after the injury.
As the Arbitrator failed to determine Mr McCarthy’s current earnings or ability to earn, the appropriate course is for the Commission to remit the matter to another Arbitrator to be determined in accordance with the directions from the Presidential Member.
Last, it was argued that the Arbitrator failed to consider the evidence in respect of the claim for medical expenses or for permanent impairment benefits.
It has been submitted on behalf of Patrick Stevedores that:
(a)     before a Presidential Member conducts a review, an appellant must establish that there has been an error of fact, law or discretion;
(b)     it was open to the Arbitrator to deal with the worker’s pre-injury duties in the manner in which he did. Mr McCarthy’s 2004 statement provided evidence that he held his position as a receiving and delivery clerk since June 1998;
(c)     the worker conceded that his 2004 statement contains inconsistencies. The worker has never provided an explanation for those inconsistencies. Specifically, no explanation has ever been provided with regard to the worker’s statement at paragraph 146 of his 2004 statement, where he said that he suffered no economic loss as a result of his accident, but suffered economic loss as a result of being demoted to a grade 4 allocation clerk;
(d)     the histories recorded by Dr Evans in 2003 and Dr McDonell in 1999 do not confirm that Mr McCarthy was employed as an allocation clerk involved in a lot of walking and climbing at the date of his accident. Dr McDonell’s reports made no reference to Mr McCarthy being required to walk over rough terrain or to engage in climbing;
(e)     it was not until some “considerable time later” that Mr McCarthy has asserted that he was, at the time of his accident, employed as an allocation clerk, performing a lot of walking and climbing activities;
(f)   in relation to the application for increased impairment, there is no evidence of an increased impairment and/or loss, and
(g)     as no grounds of appeal have been identified, the Presidential Member who hears the appeal should not conduct a review of the Arbitrator’s decision. Mr McCarthy has not established that, at the time of his accident, he was employed as an allocation clerk and that, as a result of his accident, he was “demoted” to a receiving and delivery clerk and, as a consequence, suffered a loss of income.
Upon receipt of the transcript of the arbitration proceedings, Mr McCarthy’s solicitors filed further submissions on 19 July 2010 in which it was submitted that it was never put to any of the lay witnesses that their recollections were faulty and, therefore, their evidence should not be discounted on that basis.

DISCUSSION AND FINDINGS

Weekly compensation

Mr McCarthy’s two statements are inconsistent and cannot sit together. That fact seriously undermines the reliability of his claim. His 2004 statement is comprehensive and detailed. It includes 163 paragraphs over 15 pages. It was prepared with obvious attention to detail, both as to the physical and economic consequences of his accident. Mr McCarthy’s statement at paragraph 146 is in clear and unequivocal terms: he said that he had not suffered any economic loss as a result of his accident, but believed he had suffered a loss as a result of being demoted to a grade 4 allocations clerk. He has not suggested that that statement was the result of a misunderstanding or did not accurately reflect what he meant.
Though Mr McCarthy signed his second statement on 11 November 2009 (one month after QBE served the first statement with the s 74 notice on 6 October 2009), he did not suggest that any part of his first statement was inaccurate. The second statement asserted, contrary to the first statement, that Patrick Stevedores downgraded Mr McCarthy from an allocations officer to the position of a receiving and delivery clerk in “late 1998 or early 1999”. Unlike Mr McCarthy’s first statement (where he said he believed he had been downgraded because of his appearance on “A Current Affair”), Mr McCarthy gave no reason in his second statement for the alleged downgrading in late 1998 or early 1999. He did not say that the downgrade occurred because he had been unable to perform his duties as an allocations clerk.
There is no contemporaneous support for the assertion in the second statement, given approximately 11 years after the event, that Mr McCarthy was downgraded in late 1998 or early 1999. More importantly, there is no medical evidence to suggest that, if he was downgraded at that time, the downgrade occurred as a result of the injury. Neither Dr McDonell’s reports nor her certificates referred to Mr McCarthy being unfit to perform work that required him to walk or climb stairs. Dr McDonell certified Mr McCarthy fit for work that required no bending or lifting and allowed frequent breaks from sitting. Her WorkCover certificates made no mention of walking or climbing stairs.
Mr McCarthy’s first statement specifically dealt with the “trouble” he had on his return to work after the accident. His troubles were with “sitting static” for any period, “standing static” for any period, and concentrating. The absence of a complaint about walking or negotiating stairs is not decisive, but suggests that that was not a problem when he returned to work, or at any time up to the date of the first statement on 16 October 2004. This evidence is strongly against a suggestion that the change in duties (whenever it occurred) occurred because the accident prevented Mr McCarthy from performing the walking or stair climbing component of his pre-injury duties.
The assertion in the second statement that Mr McCarthy has suffered a substantial economic loss because of his inability to perform “duties as an allocations officer since 29 August 1998” is inconsistent with his unambiguous assertion in his first statement that he suffered no economic loss as a result of the accident. It is also inconsistent with the medical evidence. In the absence of an explanation for the inconsistency, I do not accept Mr McCarthy’s assertions in his second statement.
Dr Evans, a specialist qualified to provide a medicolegal report in support of a claim for compensation, took no history of Mr McCarthy being unable to perform any part of his pre-injury clerical duties. His evidence was that Mr McCarthy did clerical and labouring work before the accident and was fit for his clerical work after it. Though the history of Mr McCarthy doing labouring work before the accident seems to be incorrect, Dr Evans provides no support for the worker’s assertion in 2009 that, since the accident, he had been unable to work as an allocations officer because of a restricted ability to walk or climb stairs. Dr Evans recorded the opposite, namely, that Mr McCarthy was “able to cope with his clerical work”.
Dr Evans’s history in 2003 that Mr McCarthy’s symptoms did “not cause him to stop walking” and did not hurt if he walked on stairs is also inconsistent with any claim that Mr McCarthy stopped work as an allocations officer because of his injury.
Dr Maxwell’s history – that Mr McCarthy returned to his “usual clerical duties” after three months off – is also inconsistent with the claim that he stopped work as an allocations officer because of his injuries.
The submission in relation to Dr Chapman’s histories has overlooked a critical part of Dr Chapman’s history in his October 1998 report. Whilst he recorded that Mr McCarthy had been an allocator for the previous five years, he added, “[h]is job is now redundant and he is in a multi-skilling group. At the present time his future duties are not clear.” (emphasis added)

Dr Chapman did not record exactly when the worker’s job became redundant. Nor did he record that Mr McCarthy’s duties changed because of the effect of his injury. That Mr McCarthy’s job was redundant on the date of Dr Chapman’s first examination (29 September 1998) does not support Mr McCarthy’s belated assertion in 2009 that Patrick Stevedores downgraded him in late 1998 or early 1999. Significantly, Dr Chapman took no history that, because of the effects of his injury, Patrick Stevedores changed Mr McCarthy’s duties from an allocations officer to a receiving and delivery clerk. His histories are more consistent with the evidence discussed at [121] below, namely, that there was a restructuring of the allocations section in 1998. That restructuring had nothing to do with Mr McCarthy’s injury.
Mr McCarthy has (rightly) complained about the Arbitrator’s failure to consider all the relevant evidence. I agree that the Arbitrator erred in failing to consider the evidence from Mr McCarthy’s eight lay witnesses. However, having considered that evidence in detail, I am not satisfied that it overcomes the significant inconsistencies in Mr McCarthy’s evidence. My reasons are as follows.
First, they provided their statements more than 11 years after the event. Mr McCarthy’s evidence in his first statement is that his role changed in June 1998, just two months before his accident. It is therefore quite possible that the witnesses were honestly mistaken in asserting that Mr McCarthy was an allocations officer at the time of his fall in August 1998. Human memory is fallible and, as observed by McClelland CJ in Eq in Watson v Foxman (1995) 49 NSWLR 315 at 319, fallibility increases with the passage of time. The passage of time between the change of Mr McCarthy’s role and the witnesses’ statements is very lengthy and this weakens the weight I place on their evidence.
Second, their statements were all inconsistent with Mr McCarthy’s first statement (given much closer in time to the relevant events) that his duties changed in June 1998.
Third, the assertion that Mr McCarthy was an allocations clerk at the time of his accident does not establish (on its own) an entitlement to compensation. Mr McCarthy must establish that he has lost income because of a change in duties that resulted from the effects of his injury. None of the lay witnesses addressed that issue. The only witness to address that question directly was Mr McCarthy. He said in 2004 that he did not suffer any economic loss because of his accident, but suffered a loss because Patrick Stevedores downgraded his classification.
Fourth, three of the witnesses (Mr Johnson, Mr Inman and Mr Pellegrini) said that the job of an allocations officer had changed since 1998 and that the role had become increasingly more computerised. This suggests that there is now less walking involved and less demand for allocations officers. Mr Pellegrini’s statement confirms that conclusion. He said that, due to automation and computerisation, he was now the only allocations officer with Patrick Stevedores. Exactly when that change occurred is not known.
Last, at least five of the lay witnesses (Messrs Byrne, Inman, Brian, Hannon and McGee) ceased working as allocation officers in or about 1998 or 1999 (they did not give exact dates). This is consistent with Mr Hannon’s evidence that there was a dispute in 1998 and a restructuring of the allocations section about that time. This raises the possibility that, if Mr McCarthy was downgraded in late 1998 or early 1999, it occurred because of the restructuring rather than because of his injury.
No one factor is decisive. However, taking all these matters together greatly weakens the weight that I attach to the lay witnesses’ statements. Their evidence does not overcome the inconsistencies in Mr McCarthy’s evidence and does not support the allegation that Mr McCarthy has suffered an economic loss as a result of his injury. It is not determinative that the witnesses were not cross-examined. Cross-examination is only allowed in the Commission by leave (Aluminium Louvres & Ceiling Pty Limited v Xue Qin Zheng [2006] NSWCA 34; 4 DDCR 358). The fact that the lay witnesses gave their statements 11 years after the event was not controversial and was not a matter that would have required the granting of leave to cross-examine.
I note that the incident report dated 3 September 1998 and the employer’s report of injury form both refer to Mr McCarthy having been a grade 4 allocator at the time of the accident. However, those documents do not overcome the difficulties in Mr McCarthy’s case outlined above.
Having considered the evidence and Mr McCarthy’s submissions at the arbitration and on appeal, I am not satisfied that, as a result of the effects of his injury on 29 August 1998, his duties changed from an allocations officer to a receiving and delivery clerk. On the contrary, based on Mr McCarthy’s evidence in his first statement, I am satisfied that his duties changed in June 1998. If I am wrong on this issue, and Patrick Stevedores downgraded Mr McCarthy’s duties after 29 August 1998, I am not satisfied that that change came about because of the effects of the injury. In other words, regardless of when the change in duties occurred, I do not accept that Mr McCarthy has suffered an economic loss as a result of his injury.
I have reached this conclusion notwithstanding that Patrick Stevedores has not filed any statements or other evidence asserting that Mr McCarthy’s change in duties occurred before his accident. The adverse inference that arises from that failure does not make up for the lack of probative evidence in the worker’s case. Mr McCarthy carries the onus of proof and he has failed to discharge that onus. His own evidence is strongly against drawing the conclusion he urges in his 2009 statement.

It follows that Mr McCarthy has failed to establish that, as a result of his injury, he has suffered an economic loss since 1 July 1999 and his claim for weekly compensation must fail.

For the sake of completeness, I should also deal with Mr Whiffin’s submissions relating to the histories recorded by Drs Bodel and Jones. Though Mr Whiffin abandoned those submissions when it was apparent that those reports had been tendered in breach of cl 43, the same principle applies to the histories recorded by those doctors as applies to Dr Chapman’s histories.

Mr Whiffin noted that Mr McCarthy had told Dr Jones that he was a timekeeper and allocations officer as at 29 August 1998. He was then downgraded, as his job involved extensive walking up and down stairs, walking and driving to find people, and he was unable to do that amount of walking. Dr Bodel was told in April 2009 that, at the time of the injury, Mr McCarthy was in the allocations department doing rostering and acquisition of labour.

Dr Jones did not record when the downgrade occurred, but the inference from her report is that it occurred after the fall. However, Dr Jones’s history, recorded in 2009, is inconsistent with Mr McCarthy’s 2004 statement and the medical evidence in 1998 and 1999 and I therefore do not accept it as being accurate.
Mr Whiffin has selectively quoted from Dr Bodel’s history. His complete history was that Mr McCarthy was in the allocations department at the time of the injury, but “after the waterfront dispute” (emphasis added), Patrick Stevedores reinstated him but “in a different clerical-based role at a lower pay scale and he continues in that type of role”. This history implied that the downgrade occurred after the accident. Based on Mr McCarthy’s 2004 statement, Dr Bodel’s history was inaccurate on that issue, as Mr McCarthy said that the dispute and downgrading occurred before the injury. Nevertheless, Dr Bodel’s history was consistent with Mr McCarthy’s 2004 statement that the downgrading occurred because of the dispute and not because of the effects of the injury. For these reasons, Dr Bodel’s history does not assist Mr McCarthy. For the reasons stated above, I prefer and accept Mr McCarthy’s evidence in his 2004 statement as to when and why Patrick Stevedores downgraded his duties.

Additional loss compensation

The above finding with respect to Mr McCarthy’s claim for weekly compensation has no relevance to the claim for further permanent loss compensation. The weekly compensation claim turned on whether Mr McCarthy suffered an economic loss as a result of his accepted injuries, not on whether he recovered from the effects of his injury.
The claim for further permanent loss compensation turns on whether, as a result of his injury, Mr McCarthy has suffered a further loss of efficient use of his left leg at or above the knee. The Arbitrator erred in stating that the medical evidence for the worker did not “find a further loss as claimed”.

The respondent employer’s submission that there is no evidence of an increased impairment or loss of use is incorrect. Mr McCarthy has consistently maintained in his histories to Dr Evans that his left hip has deteriorated over time. A history recorded by a medical practitioner is evidence of the fact (Jessop). Based on that history, and his findings on examination, Dr Evans concluded that, as a result of his injury, Mr McCarthy’s loss of efficient use of his left leg at or above the knee in April 2009 was 12.5 per cent, that is, 1.25 per cent greater than he received in the 2005 settlement.
This evidence supports Mr McCarthy’s claim for additional lump sum compensation as a result of his injury. In circumstances where the employer has not disputed injury, the worker has properly particularised his claim (Walker v Roberts [2009] NSWWCCPD 66), and Mr McCarthy has clearly not recovered from the effects of the injury, the claim for additional lump sum compensation must be referred to an AMS for assessment. The Arbitrator erred in not doing so.

Section 60 expenses

The Arbitrator also erred in his approach to the claim for payment of medical expenses. The finding that Mr McCarthy suffered no economic loss as a result of his injury has no bearing on whether he is entitled to a general order for the payment of his incurred medical expenses. Dr Maxwell’s opinion that any “temporary work-related aggravation had ceased” was inconsistent with the payment of lump sum compensation by consent in March 2005 and with Mr McCarthy’s evidence of continuing symptoms. I therefore do not accept Dr Maxwell’s evidence. The effect of the injury is clearly continuing and Mr McCarthy is entitled to the payment of his reasonable medical expenses that have resulted from his injury.

As Mr McCarthy only seeks a “general order” for the payment of s 60 expenses, that is the order that will be made. I make no finding about whether the proposed hip replacement surgery is reasonably necessary as a result of the injury.

CONCLUSION

Having conducted a review on the merits, I have concluded that the Arbitrator erred in failing to consider relevant evidence, namely the evidence from the lay witnesses. However, having considered that evidence and the parties’ submissions, I have concluded that Mr McCarthy has not established that he has suffered any economic loss as a result of his injury.
The Arbitrator also erred in failing to consider the claim for additional lump sum compensation as a result of the further loss of efficient use of the left leg at or above the knee and in failing to make a general order for the payment of s 60 expenses.
Though the appellant worker has partially succeeded on appeal, he has failed on the principle ground of appeal relating to his claim for weekly compensation. He is therefore only entitled to part of his costs of the appeal. I decline to certify the proceedings before the Arbitrator as complex.

DECISION

The Arbitrator’s determination of 19 May 2010 is revoked and the following orders made in its place:

“1.Award for the respondent employer in respect of the claim for weekly compensation from 1 July 1999.
2.The appellant worker’s claim for additional lump sum compensation in respect of the further 1.25 per cent loss of efficient use of his left leg at or above the knee as a result of his injury on 29 August 1998 is remitted to the Registrar for referral to an Approved Medical Specialist. The assessment is under the Table of Disabilities. The referral is to include all documents in the evidence file, but is not to include the reports from Drs Jones, Bodel and Chapman.
3.The respondent employer is to pay the applicant worker’s hospital and medical expenses under section 60 of the Workers Compensation Act1987.
4.The respondent employer is to pay the appellant worker’s costs, as agreed or assessed.”

COSTS

The respondent employer is to pay one-half of the appellant worker’s costs of the appeal, as agreed or assessed.

Bill Roche
Deputy President

8 September 2010

I, PENELOPE FLEMING, 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