Mitchell v Fox Studios Australia Pty Limited
[2006] NSWWCCPD 142
•7 July 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Mitchell v Fox Studios Australia Pty Limited [2006] NSWWCCPD 142
APPELLANT: Donald Barry Mitchell
RESPONDENT: Fox Studios Australia Pty Limited
INSURER:QBE Workers Compensation ( NSW) Limited
FILE NUMBER: WCC16424-04
DATE OF ARBITRATOR’S DECISION: 26 July 2005
DATE OF APPEAL DECISION: 7 July 2006
SUBJECT MATTER OF DECISION: Whether individual impairments/losses can be aggregated to permit an entitlement to benefits pursuant to section 67 of the Workers Compensation Act 1987.
PRESIDENTIAL MEMBER: Acting Deputy President Deborah Moore
HEARING:On the papers
REPRESENTATION: Appellant: Proctor Willaws
Respondent: McCulloch & Buggy
ORDERS MADE ON APPEAL: 1. The decision of the Arbitrator dated 26 July 2005 is revoked and the following decision made in its place:
(a) The Respondent pay to the Applicant as lump sum compensation under section 66 of the Workers Compensation Act 1987, $21,250.00 in respect of permanent loss of efficient use or impairment in respect of the date of injury of 25 July 2001, as set out in the ‘Medical Assessment Certificate’ of Dr James G
Bodel (‘AMS’) issued by the Commission, as follows:
·Neck 0% $NIL
·Back 10% $6000.00
·Right arm at or above the elbow 5% $4000.00
·Left arm at or above the elbow 10% $7500.00
·Right leg at or above the knee 5% $3750.00
·Left leg at or above the knee 0% $NIL
(b) That the Respondent pay to the Applicant as lump sum compensation pursuant to section 67 of the Workers Compensation Act 1987 the sum of $11,250.00
(c) That the Respondent pay the Applicant’s costs as agreed or assessed.
Fox Studios is to pay the costs of the appeal.
BACKGROUND TO THE APPEAL
Donald Barry Mitchell (‘Mr Mitchell’) was employed by Fox Studios Australia Pty Limited (‘Fox Studios’) as a hydraulic technician. On 25 July 2001 whilst at work, he tripped on some cabling and fell. As a consequence, he claimed he sustained injuries to his neck, back, both legs and both arms.
His claim for permanent impairment/pain and suffering compensation pursuant to sections 66 and 67 of the Workers Compensation Act 1987 (‘the 1987 Act’) was referred to an ‘Approved Medical Specialist’, Dr Bodel, who issued a ‘Medical Assessment Certificate’ (‘MAC’) after examining Mr Mitchell on 30 March 2005. Dr Bodel certified Mr Mitchell as having the following losses/impairments as a result of the injury on 25 July 2001:
·Neck 0%
·Back 10%
·Right arm at or above the elbow 5%
·Left arm at or above the elbow 10%
·Right leg at or above the knee 5%
·Left leg at or above the knee 0%
No proportion of those losses or impairments was attributed to any pre-existing injury, abnormality or condition.
On 8 July 2005, the parties attended a conciliation/arbitration hearing. The principle issue in dispute was whether or not Mr Mitchell’s degree of permanent impairment/loss as assessed by Dr Bodel satisfied the threshold requirements of section 67 of the 1987 Act such as to entitle him to compensation for pain and suffering.
On 26 July 2005, a ‘Certificate of Determination’ with an accompanying ‘Statement of Reasons’ was issued. The determination of the Commission was as follows:
“1.That the Respondent pay the Applicant as lump sum compensation under section 66 of the Workers Compensation Act 1987 $21,250.00 in respect of permanent loss of efficient use or impairment in respect of the date of injury of 25 July 2001, as set out in the ‘Medical Assessment Certificate’ of Dr James G Bodel (AMS) issued by the Commission, as follows:
· Neck 0% $ NIL
· Back 10% $6000.00
· Right arm at or above the elbow 5% $4000.00
· Left arm at or above the elbow 10% $7500.00
· Right leg at or above the knee 5% $3750.00
· Left let at or above the knee 0% $ NIL
2. That the Respondent pay the Applicant’s costs as agreed or to be assessed”.
Whilst no mention was made by the Arbitrator of the claim pursuant to section 67 of the 1987 Act in his ‘Certificate of Determination’, in his ‘Statement of Reasons’ he stated at paragraph 36: “I find and determine … that the individual impairment /losses cannot be aggregated to bring them above the threshold amount of $10,000.00 for the purpose of … section 67 of the Workers Compensation Act 1987.”
On 24 August 2005, Mr Mitchell filed an ‘Appeal Against Decision of Arbitrator’. In essence, Mr Mitchell submits that the Arbitrator erred in law in his interpretation of section 67 since all the “losses” resulted from the one “injury” on 25 July 2001 and, when aggregated, entitled Mr Mitchell to compensation for pain and suffering.
On 21 September 2005, Fox Studios filed a ‘Notice of Opposition to the Appeal’. Fox Studios submits that leave to appeal should not be granted since Mr Mitchell “… seeks to simply have the issues which were determined by the Arbitrator relitigated” and that Mr Mitchell “… does not identify any error made by the Arbitrator in his findings or reasons”.
LEAVE TO APPEAL
The amount at issue on appeal satisfies the criteria set out in section 352(2) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’). Mr Mitchell had claimed the sum of $40,000.00 for pain and suffering. No compensation was awarded by the Arbitrator such that section 352(2)(b) does not apply. (See Mawson v Fletchers International Exports Pty Limited [2002] NSWWCCPD5).
In its ‘Notice of Opposition to the Appeal’, Fox Studios submits that the appeal was filed out of time and makes lengthy submissions as to why, in the absence of a “valid explanation” for the delay, leave to appeal should not be granted.
On 27 September 2005, Mr Mitchell filed supplementary submissions on the issue of time for filing an appeal. Mr Mitchell makes reference to section 36(1) of the Interpretation Act 1987 which provides as follows:
“(1) If in any Act or instrument a period of time, dating from a given day, act or event, is prescribed or allowed for any purpose, the time shall be reckoned exclusive of that day or of the day of that act or event.”
Mr Mitchell submits that:
“… The provision of a period of ’28 days after the making of a decision’ contained in section 352(4) [of the 1998 Act] and Rule 77(1) [of the Workers Compensation Commission Rules 2003] does not evince a contrary intention with section 36(1) of the Interpretation Act. Use of the term ‘after’ would appear to be consistent with section 36(2).”
The Arbitrator’s determination was made on 26 July 2005. The period in which an ‘Application to Appeal’ might be lodged commenced on 27 July 2005 and expired on 24 August 2005, the date upon which Mr Mitchell’s appeal application was filed.
I therefore determine that the appeal was filed in time, and leave to appeal is granted.
ON THE PAPERS REVIEW
Both parties agree that the appeal can be decided solely on the basis of the written Application and ‘Notice of Opposition’. Having carefully read the Arbitrator’s ‘Statement of Reasons’ the transcript, and both parties’ lengthy submissions on appeal, together with a number of authorities upon which they both rely, I am satisfied that I have sufficient information to proceed ‘on the papers’ and that this is the appropriate course in the circumstances.
THE ISSUES IN DISPUTE
The only issue in dispute as Mr Mitchell points out, is whether “the Arbitrator’s determination proceeded upon an erroneous construction of section 67, which is an error of law.”
Fox Studios’ submission that Mr Mitchell is merely seeking to “relitigate” the claim on the basis that “… the result does not accord with the submissions made by the Appellant” and that he has not pointed to any specific errors in the Arbitrator’s ‘Statement of Reasons’ is erroneous because Mr Mitchell simply claims that the Arbitrator’s interpretation of section 67 was wrong in law.
THE ARBITRATOR’S DETERMINATION
In his ‘Statement of Reasons’ the Arbitrator set out all the documentary evidence before him including the medical reports relied upon by both parties. He also made reference to the ‘MAC’ of Dr Bodel, but with little detail. It is useful at this point to set out Dr Bodel’s opinion. He concluded that:
“This gentleman had a fall at work on 25 July 2001 and as a result of this has suffered rotator cuff pathology in the left shoulder and to a lesser extent on the right hand side, as well as a soft tissue injury to the neck and back and the right knee.”
Dr Bodel noted that “this gentleman’s clinical complaints are consistent with ongoing pathology in the injured areas.” In answer to the question “Is the loss of efficient use or impairment related to the accident or accidents?” Dr Bodel replied: “Yes”.
At paragraph 17 of the ‘Statement of Reasons’ the Arbitrator noted:
“In relation to the issues in dispute, the ‘Medical Assessment Certificate’ is conclusively presumed to be correct, for those matters provided for in section 326 of the 1998 Act, including the degree of permanent impairment of the Applicant worker as a result of an injury.”
He then set out the percentage assessments of Dr Bodel in relation to “… the injury date of 25 July 2001.”
At paragraph 18 of the ‘Statement of Reasons’, the Arbitrator noted that both parties had made written submissions. These he summarised extensively in paragraph 18 over pages 4 – 13 of his ‘Statement of Reasons’.
At paragraphs 20 – 22 of the ‘Statement of Reasons’, the Arbitrator examined the provisions of section 67 and a number of authorities relevant to the factors to be taken into account in determining an appropriate amount under section 67.
At paragraph 26, the Arbitrator noted:
“The issue before the Commission is whether the individual losses can be aggregated to exceed the threshold of $10,000.00 and thus enliven entitlements to section 67 pain and suffering.”
He again made reference to Mr Mitchell’s submissions on this point. At paragraph 28, he stated:
“Clearly Dr Bodel finds the existence of various losses to different body parts albeit resulting from an incident on the same day on 25 July 2001. It is not inconceivable that a single incident can result in multiple injuries and/or multiple losses. Indeed, the emphasis aforementioned in the phrase ‘compensation for the loss or all of those losses’ foreshadows this. There is evidence of multiple injuries and multiple losses here in my view. Dr Bodel has assessed distinct injuries to different and specific body parts which have suffered trauma and has provided loss assessments for each component body part in accordance with the relevant legislation and the WorkCover Guides. Injury is defined as meaning ‘personal injury’ and is distinct from the incident or happening which gave rise to the injury”.
At paragraph 30, the Arbitrator concluded:
“I am satisfied that by virtue of the binding nature of the MAC of the AMS Assessor, there is a permanent loss of efficient use or impairment for each injured body part listed in the table at the end of the MAC, pursuant to the provisions of section 66 of the Act.”
At paragraph 31, he then turned “… to a discussion of the Respondent’s submissions” noting that:
“The Respondent contends that the amount payable for each of the impairments/losses assessed by Dr Bodel is less than $10,000.00 and is consequently insufficient to entitle the Applicant to compensation under section 67… it is noted the soft tissue injury to the neck was not productive of any loss. The soft tissue injury to the back was certified by Dr Bodel as resulting in 10% permanent impairment of the back. The rotator cuff injury to the right arm was certified by Dr Bodel as resulting in 5% loss of use of the right arm and the rotator cuff injury to the left shoulder resulted in loss of use of the left arm at 10%. Finally, Dr Bodel assessed the soft tissue injury to the right knee to result in 5% loss of use of the leg.”
At paragraph 33, the Arbitrator stated:
“The Respondent’s submissions accord with my view that there are multiple, separate, ‘injuries’ to different parts of the body as set out at paragraph 5 of Dr Bodel’s summary of injuries and diagnoses’. Each specific ‘injury’ suffered by the Applicant may or may not have resulted in a loss. Thus, the rotator cuff injury to the left shoulder resulted in a loss of 10% of the use of the left arm. The rotator cuff injury to the left shoulder did not result in any loss of any other part of the body. Accordingly, for this injury, the Applicant has not attained the 10% threshold under section 67.”
At paragraph 36, the Arbitrator concluded: “Having considered the available evidence, the parties’ respective submissions on the case authorities referred to, I am satisfied and find that the Applicant worker sustained more than one injury in the incident of 25 July 2001… I find the amount payable for each of the impairments/losses assessed by Dr Bodel is less than $10,000.00 and consequently, is insufficient to entitle the Applicant to compensation under section 67. I find and determine, for the reasons set out above, that the individual impairment/losses for each injury cannot be aggregated to bring them above the threshold amount of $10,000.00 …”
THE LEGAL ISSUES
Is the Arbitrator’s interpretation of section 67 correct in the context of the facts of this particular case?
Section 67 as it applied at the date of Mr Mitchell’s injury, i.e., 25 July 2001, was in the following terms:
“(1)A worker who has suffered a loss mentioned in the Table to this Division, (or 2 or more of any such losses as a result of the same injury) is entitled to receive from the worker’s employer by way of compensation for pain and suffering resulting from the loss or all those losses, in addition to any other compensation under this Act, an amount not exceeding $50,000.00.
(1A) Because there is a distinction between injury and loss resulting from an injury (and compensation is payable under this section only for pain and suffering resulting from a loss), the pain and suffering for which compensation is payable under this section does not include pain and suffering that results from the injury but not from the loss.
(2) This section does not apply if the compensation paid or payable under section 66 for the loss or all those losses is less than 10 per cent of the maximum amount from time to time referred to in section 66(1).
(3) The maximum amount of compensation under this section is payable only in a most extreme case and the amount payable in any other case shall be reasonably proportionate to that maximum amount having regard to the degree and duration of pain and suffering and the severity of the loss or losses.”
It is clear from the terms of section 67(1) that the legislature contemplated that multiple losses might indeed result from a single injury.
‘Injury’ is defined in section 4(a) of the 1987 Act as “… personal injury arising out of or in the course of employment.” ‘Personal injury’ does not necessarily mean a discreet injury to one part of the body. For example, assume a worker was involved in a fire and suffered burns to several parts of his body, eg, both his arms and legs. His ‘injury’ is not fourfold – his ‘injury’ is more properly described as burns to a number of body parts.
The wording which allows a worker to aggregate losses are the words in parenthesis in section 67(1) “or 2 or more of any such losses as a result of the same injury.” However, section 67(2) provides that: “This section does not apply if the compensation paid or payable under section 66 for the loss or all those losses is less than 10% of the maximum amount from time to time referred to in section 66(1).”
In the present case, Fox Studios submitted to the Arbitrator that each of the “losses” set out by Dr Bodel failed to reach the 10% threshold. The “losses” it submitted, must result from the same injury. Fox Studios gave as an example of this:
“… a worker who has suffered a disc protrusion in the spine. The injury is the disc protrusion; the losses consist of permanent impairment of the back together with loss of use of each of the legs. A similar example applies to a disc protrusion in the cervical spine, which leads to permanent impairment of the neck, together with loss of use of each arm. Thus there is one injury, that being the disc protrusion, with multiple losses. The worker in such circumstances is entitled to aggregate those losses together in order to attain the 10% threshold.”
Reliance was placed by Fox Studios on the provisions of section 65(2) of the 1987 Act. This section was not in force at the time of Mr Mitchell’s injury. It states: “If a worker receives more than one injury arising out of the same incident, those injuries are together to be treated as one injury for the purposes of this Division.”
The distinction, Fox Studios submitted, must be made between ‘injury’ and ‘incident’. The ‘incident’ was the fall on 25 July 2001 which produced several ‘injuries’, none of which, on their own, reached the threshold required for section 67 entitlements. The subsequent amendment contained in section 65(2) Fox Studios submitted, supports its contention that section 67 specifically refers to ‘injury’ and not ‘incident’.
However, this interpretation in my view does not reflect the intention of the legislature. To quote my ‘burns case’ example again: If a worker was found to have for example a 10% loss of efficient use of each arm and each leg as a result of the burns, would he or she be denied compensation for pain and suffering? In my view no, because the “burning” was the injury which resulted in the losses.
The significant words in section 67 are the entitlement to compensation “… for pain and suffering resulting from (my emphasis) the loss or all those losses.” If the worker’s burns, to use my example again, did not result in any loss of use of the arms or legs, then section 67(1A) would operate to preclude any compensation for pain and suffering.
The phrase ‘results from’ was considered by the Court of Appeal in Kooragang Cement Pty Limited v Bates [1994] 10 NSWCCR 796 (‘Bates’ case’) where the Court held that “results from” means “… to arise as a consequence … to end or conclude in a specified manner.”
In the present case, Mr Mitchell’s ‘injury’ was the fall, as a consequence of which he sustained multiple “losses”. True, on one interpretation, the fall could be described as an ‘incident’, much like the fire which led to the burns, to use my example again. However, in my view, it was more properly described as an incident which constituted a ‘personal injury’ within the meaning of section 4 of the 1987 Act.
This issue was discussed by Neilson J in Coleman v Denison Hydraulics Australia Pty Limited (2002) 23 NSWCCR 376 (‘Coleman’s case’). His Honour noted that:
“ … the original formulation of the Workers Compensation Acts was ‘personal injury by accident arising out of and in the course of the employment.’ One had to have ‘an accident’ which resulted in personal injury. When then the words ‘by accident’ were removed, it became less clear whether the word ‘injury’ meant the injurious event or merely the medical condition.”
His Honour made reference to the decision of Gibson J in Bird v Australian Iron & Steel Pty Limited [1979] 53 WCR (NSW) 227 noting that:
“His Honour gave ‘injury’ where first occurring its normal statutory definition and pointed out that ‘injury’ where secondly occurring was used in a gerundial sense of injuring or wounding. In my view, here the word is used in its primary sense in s.4 of the 1998 Act. A ‘personal injury’ is a change in the bodily status of a person whom we refer to as the injured person. It is not an event as such, but rather the medical condition.”
His Honour concluded “the entitling event is the receipt of the injury, that is, the receipt of the pathological change in the person’s mind or body.”
Fox Studios in its submissions quotes from Mills Workers Compensation Service at page 961 in relation to the meaning of ‘personal injury’ as follows:
“It is now necessary to ‘categorise injury as trauma due to one or a series of happenings, or as trauma, aggravating or accelerating a disease ...’ (Commissioner for Railways v Coates [1960] WCR (NSW) 88.”
Fox Studios submits that: “This definition clearly distinguishes between the trauma of the injury as opposed to the ‘happening’ of the injury, or as we have put it, … the ‘incident’”.
However, I consider it trite to suggest that Mr Mitchell’s fall should be described only as a ‘happening’ as opposed to a ‘trauma’ particularly in light of all the medical evidence before the Arbitrator, and in line with the decision of Neilson J in Coleman’s case to which I have referred.
In short, Fox Studios submits that a worker is only entitled to aggregate losses which are ‘the result of the same injury’. The ‘injury’, it is submitted,
“… means personal injury and is distinct from the incident or happening which gave rise to the injury. This is acknowledged in the amendments to section 65 of the Workers Compensation Act and section 322 of the Workplace Injury Management and Workers Compensation Act.”
Mr Mitchell, it submits, received multiple “injuries” in the “incident” of the fall such that his losses cannot be said to “result from” the same injury.
In my view, the more appropriate and commonsense approach however is that described in Bates’ case: What has arisen as a consequence of the fall? Dr Bodel’s “losses” are conclusively presumed to be correct as to “the degree of permanent impairment of the worker as a result of an injury” (section 326 of the 1998 Act). He concluded that Mr Mitchell’s “losses” arose as a consequence of the fall.
Mr Mitchell in his submissions has made reference to a number of authorities on the “threshold” requirements of section 67, vis, Glebe Rowing Club v Pride (NSW CA Unreported 6 December 1995) (‘Pride’s case’); Caulfield v Ward (No.2) (NSWCC, Unreported, Neilson J, 30 August 1996; (‘Caulfield’s case’); NSW Police Service v Hughes (1997) 15 NSWCCR 488 (‘Hughes’ case’); Sidiropoulos v Able Placements Pty Limited (1998) 16 NSWCCR 123 (‘Sidiropoulos’ case’) and Pickles v Staples Waste Removals Pty Limited (2000) 20 NSWCCR 729 (‘Pickles’ case).
Essentially, all these cases involved arguments that an impairment or loss resulted from either multiple injuries on different dates and in the same or different employment, such as to disentitle the worker to section 67 benefits. The facts of each can be distinguished from the present case. In Sidiropoulos’ case, for example, the worker claimed lump sum compensation for 25% impairment of his back and 20% loss of efficient use of his left leg at or above the knee as a result of two separate injuries with two employers. His Honour Judge Neilson determined that: “The cumulative effect of the two injuries … has caused one impairment …” He concluded that it is incorrect to apportion the losses between the two injuries before determining whether a worker is entitled to an award under section 67. His Honour also made extensive reference to Hughes’ case, again distinguishing it from Sidiropoulos, and to the dissenting judgment of Beazley JA who decided that there could be a single loss resulting from more than injury and made reference to Pride’s case. His Honour pointed out that in Hughes’ case “The first thing about the case is this. There is no ratio decidendi.” His Honour then considered the leading decision of Sutherland Shire Council v Baltica General Insurance Co Limited (1996) 39 NSWLR 87, quoting as follows:
“Liability … to pay compensation for death or incapacity is, relevantly, created by ss25 and 36. It arises when incapacity results from an injury or from more than one injury. It is not expressed to arise when incapacity partly results from an injury. Yet s22A(2) speaks of a liability to pay compensation arising from more than one injury and, by virtue of the extent of definition, that must include the situation where incapacity results partly from one, and partly from another injury. In this way the terms of s.22A(2) may be thought to widen the tests in ss25 and 33. I do not think that they do. No amendment was made to either s.25 or s.33. The test of causation ‘results from’ has not been altered in those sections and it is inconceivable that the legislature intended that it be altered. The better view, in my opinion, is that the test of causation remains as it was and s.22(1)A is limited in its operation to the widening of the meaning of the expression ‘results from more than one injury’ where it is found in the Act. Where that expression appears in s.22A(2) it is to be understood in the wider sense so that apportionment may be carried out in cases of deemed incapacity. The subsection does not, however, qualify the test of causation in ss.25 and 33.”
His Honour then concluded “there is no difference in my view between the tests under ss.25 and 33 and the test under s.66 and s.67.” In other words, the proper consideration in each case must be what “results from” or arises “as a consequence” of an injury.
A consideration of Pride’s case is useful at this juncture. In that case, the worker suffered two injuries to her back with two different employers. The trial Judge found she had suffered a 22% impairment of her back and made an award pursuant to section 67. Each employer was found to be liable for half of the section 66 award. The first employer appealed against the section 67 award. The majority of the Court of Appeal held that the Trial Judge erred in making an award under section 67 since the worker suffered two distinct injuries that equally contributed to her impairment such that the threshold amount under section 66, which would have entitled her to compensation under section 67, had not been achieved in respect of either injury.
Rolfe AJA held that, where two separate injuries each gave rise to a compensable loss under section 66, “… the aggregation of the two losses into one loss was not, in my opinion, a permissible exercise. The situation may have been different if the factual findings had been that the first incident did not give rise to a compensable loss.”
Reference is made to both Pride’s case and Sidiropoulos’ case in the Mills Service at page 2009. The commentary reads as follows:
“Glebe Rowing Club Pty Limited v Pride … involved the determination of entitlements under s.67 when a worker suffers two distinct losses not a single loss resulting from multiple injuries. In the former case, the distinct losses are not aggregated to determine the s.67 entitlement: see Sidiropoulos v Able Placements Pty Limited … if distinct losses are suffered as a result of one injury, the losses may be aggregated to determine if the threshold contained in s.67(2) has been exceeded: s.67(1)”.
No reference is made to any authority on this latter point, but it seems to me to simply reflect a normal statutory interpretation of s.67(1). The numerous authorities to which I have referred involved consideration of losses or impairments resulting from different injuries and/or different employers. As Mr Mitchell points out in his submissions “where the entitlement rests on a single injury in single employment, no argument relating to aggregation can arise”. That, I believe, is the appropriate interpretation of section 67(1).
The Arbitrator’s determination that: “In the present matter, the incident was the fall on 25 July 2001. That fall produced several injuries …” was in my view misconceived. The Arbitrator appears to have adopted the terminology of section 65(2) of the 1987 Act and section 322 of the 1998 Act which had no application to the facts and circumstances of Mr Mitchell’s case. It is however worth noting the provisions of section 322(2) and (3) as follows:
“(2) Impairments that result from the same injury are to be assessed together to assess the degree of permanent impairment of the injured worker.
(3) Impairments that result from more than one injury arising out of the same incident are to be assessed together to assess the degree of permanent impairment of the injured worker.:
That is not inconsistent with the terms of section 67(1) as it applied to Mr Mitchell, in that compensation is payable under section 67 for “two or more of any such losses as a result of the same injury”.
The issue really turns on the interpretation of ‘injury’ within the context of section 67. The intention of the legislature was to compensate injured workers for a loss, or losses, that resulted from, or arose as a consequence of, an injury. The ‘injury’ simpliciter in this case was the fall. Even if it were described as an ‘incident’, the result of that fall was that Mr Mitchell sustained a ‘personal injury’, or, as Neilson J put it in Coleman’s case, a pathological change to his body. Various parts of his body sustained “losses” as “… the result of the same injury”. These are precisely the circumstances contemplated by the provisions of section 67(1) as a practical and commonsense reading of the section suggests, such that Mr Mitchell is entitled to an award of compensation for pain and suffering.
Mr Mitchell makes a pertinent submission on this interpretation. In his appeal application, Mr Mitchell submits that:
“… to determine, as the Arbitrator did, that each of the multiple areas of pathology forming part of the same ‘injury’ must result in an impairment or loss with a monetary value … of not less than 10% of the maximum of $50,000.00 to entitle an injured worker to compensation under s.67 would lead to an absurdity. If, for instance, an ‘injury’ involved five areas of pathology, as in the present case, and each resulted in an impairment or loss of not less than 10% of the maximum, there would be, on the logic applied by the Arbitrator, five entitlements to a maximum of $250,000.00. Section 33 of the Interpretation Act would prevent this interpretation of the section. The clear object or purpose of the section was to provide a single amount of not more than $50,000.00 for a loss or losses resulting from the same injury”.
CONCLUSION
The Arbitrator erred in law in his interpretation of the provisions of section 67 as it applied to the facts and circumstances of Mr Mitchell’s case.
Mr Mitchell submits that: “The Arbitrator’s decision should be revoked and an appropriate amount awarded under section 67”. The Arbitrator’s determination dealt only with the entitlements to section 66 and to costs. The parties accepted the assessment of Dr Bodel and an award was entered accordingly. There has simply been no determination in relation to the claim for section 67 benefits.
Section 352(7) of the 1998 Act provides that:
“On appeal, the decision may be confirmed or may be revoked and a new decision made in its place. Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator for determination in accordance with any decision or directions of the Commission.”
The powers of a Presidential Member to revoke a decision pursuant to section 352(7) and to make a new decision in its place are exercisable only where it is demonstrated that the decision of the Arbitrator is affected by some legal, factual or discretionary error. (See Allesch v Maunz [2000] 203 CLR 172).
The Arbitrator’s failure to make an award in respect of the section 67 claim in the ‘Certificate of Determination’ of itself constitutes an error of law such that the decision should be revoked.
Both parties indicated that they were content to have the appeal determined ‘on the papers’. Having determined that Mr Mitchell is entitled to compensation pursuant to section 67, and having read his statement and all the medical evidence before the Arbitrator, I am satisfied that I have sufficient information to make a “new decision” within the meaning of section 352(7).
I have had regard to the provisions of section 67(3) such that the amount payable shall be reasonably proportionate to the maximum amount having regard to the degree and duration of pain and suffering and the severity of the losses. Those losses are in respect of the back, both arms and the right leg only. Mr Mitchell underwent surgery to his left shoulder in February 2003. He is approaching 60 years of age. In all the circumstances, I consider his “pain and suffering” can be fairly described as 22.5% of a most extreme case, such that he is entitled to an award pursuant to section 67 in the sum of $11, 250.00.
DECISION
1. The decision of the Arbitrator dated 26 July 2005 is revoked and the following decision made in its place:
(a) The Respondent pay to the Applicant as lump sum compensation under section 66 of the Workers Compensation Act 1987, $21,250.00 in respect of permanent loss of efficient use or impairment in respect of the date of injury of 25 July 2001, as set out in the ‘Medical Assessment Certificate’ of Dr James G Bodel (‘AMS’) issued by the Commission, as follows:
·Neck 0% $NIL
·Back 10% $6000.00
·Right arm at or above the elbow 5% $4000.00
·Left arm at or above the elbow 10% $7500.00
·Right leg at or above the knee 5% $3750.00
·Left leg at or above the knee 0% $NIL
(b) That the Respondent pay to the Applicant as lump sum compensation pursuant to section 67 of the Workers Compensation Act 1987 the sum of $11,250.00.
(c) That the Respondent pay the Applicant’s costs as agreed or assessed.
COSTS
Fox Studios is to pay the costs of the appeal.
Deborah Moore
Acting Deputy President
7 July 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DEBORAH MOORE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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