New South Wales Fire Brigades v Turton
[2008] NSWWCCPD 66
•27 June 2008
| WORKERS COMPENSATION COMMISSION | ||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||||
| CITATION: | New South Wales Fire Brigades v Turton [2008] NSWWCCPD 66 | |||||
| APPELLANT: | New South Wales Fire Brigades | |||||
| RESPONDENT: | Glen Turton | |||||
| INSURER: | Allianz Australia Insurance Limited Treasury Managed Fund No 1 | |||||
| FILE NUMBER: | WCC1104-07 | |||||
| DATE OF ARBITRATOR’S DECISION: | 7 February 2008 | |||||
| DATE OF APPEAL DECISION: | 27 June 2008 | |||||
| SUBJECT MATTER OF DECISION: | Extension of time to appeal – ‘exceptional circumstances’; combining impairment assessments for purpose of section 67(1) of the Workers Compensation Act 1987; operation of section 322 of the Workplace Injury Management and Workers Compensation Act 1998; application of Department of Juvenile Justice v Edmed [2008] NSWWCCPD 6. | |||||
| PRESIDENTIAL MEMBER: | Acting Deputy President Snell | |||||
| HEARING: | On the papers | |||||
| REPRESENTATION: | Appellant: | Hicksons | ||||
| Respondent: | Steve Masselos & Co | |||||
| ORDERS MADE ON APPEAL: | 1. Time to appeal the arbitrator’s decision dated 7 February 2008 is extended until 7 March 2008. | |||||
| 2. Paragraphs [1] and [2] of the arbitrator’s decision dated 7 February 2008 are revoked and the following paragraph inserted: “Award for the Applicant pursuant to section 66 of the 1987 Act in the sum of $7,875 in respect 6% whole person impairment of the lumbar spine and the sum of $5,000 in respect 4% whole person impairment of the right lower extremity.” | ||||||
| 3. The decision is otherwise confirmed. | ||||||
| 4. No order as to costs of the appeal. | ||||||
BACKGROUND TO THE APPEAL
On 7 March 2008 New South Wales Fire Brigades (‘the Appellant Employer’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 7 February 2008.
The Respondent to the Appeal is Glen Turton (‘the Respondent Worker’).
The Respondent Worker is a married man, now sixty-one years of age, who was employed by the Appellant Employer from June 1973, as a fireman. He has effectively been off work since an injury on 24 February 2006. One document states he worked on until 1 March 2006. He was medically retired from 14 September 2006. The compensation at issue was medical expenses, together with lump sums pursuant to sections 66 and 67 of the Workers Compensation Act 1987 (‘the 1987 Act’).
The Respondent Worker’s claim for lump sum compensation was by letter dated 21 December 2006. It claimed a section 66 benefit based upon twenty per cent whole person impairment, and in support of this claim attached two medical reports of Dr Dixon dated 20 December 2006. It also claimed a sum pursuant to section 67. Dr Dixon’s report contained a history of the Respondent Worker stumbling and falling whilst jogging on 4 February 2006 (this should be 24 February 2006), at which he felt a loud clicking sound in his back, followed by significant pain in the lower back, and right sciatica. The Respondent Worker said he was unable to return to work thereafter. There was also a history of “treatment for plantar fasciitis of the right foot which followed an injury in 1999 when he had been fire fighting using new boots”. In a shorter report dated 20 December 2006 Dr Dixon assessed 13% whole person impairment associated with the impairment of the lumbar spine and associated radiculopathy, reduced to 12% to take account of a pre-existing condition. He assessed 9% whole person impairment in respect of “plantar fasciitis and achilles tendonitis where he has stiffness of the right ankle”. This gave a “combined values chart of 20% whole person impairment”.
There were two allegations of injury, set out in ‘Annexure A’ to the Application to Resolve a Dispute (‘ARD’) registered on 21 February 2007. The first was that from 1 March 1999 to 24 February 2006, due to the nature and conditions of employment wearing ill-fitting boots, the Respondent Worker suffered plantar fasciitis. The second was that on 24 February 2006, at an exercise ground, the Respondent Worker stumbled whilst running in an exercise program at work, suffering lower back injury. The ex tempore reasons for decision of the arbitrator, delivered on 4 February 2008, indicate there was never any “formal amendment” of these allegations (T22.55).
Part 5 of the ARD set out the permanent impairment claim. The first item claimed was in respect of 15% loss of efficient use of the right leg below the knee, with a date of injury of “4 March to May 1999”. This claim is based upon the Table formerly appearing at section 73 of the 1987 Act, repealed by the Workers Compensation Legislation Amendment Act 2001. The Table has continuing operation where a worker’s loss or impairment results from injury prior to 1 January 2002. The medical evidence attached to the ARD in support of this claim was a short report of Dr Dixon dated 21 December 2006, which stated:
“This patient’s disability for his right foot and ankle is 15% loss of efficient use of the right lower limb below the knee for his workplace injury in 1999 and the nature and conditions of his employment until January 1, 2002.”
Ultimately the claim in respect of loss of use of the right leg below the knee, based upon this opinion, was not pressed, and the Consent Orders and Referral to an AMS proceeded on the basis injury occurred after 1 January 2002.
The balance of the permanent impairment claim was set out as follows:
Date of Injury Body Parts/Systems Claimed Percentage Amount
Claimed
24/2/2006 (deemed) Lower extremity (right foot) 9% $11,200
24/2/2006Lumbar spine 12% $15,500
Pain and Suffering 80% $40,000
The Reply lodged by the Appellant Employer put ‘injury’ in issue, although the way paragraphs [1] to [3] of the ‘Matters in Dispute’ is expressed, indicates it was the foot injury allegedly resulting from the ‘nature and conditions of employment’, rather than the injury of 24 February 2006, that was disputed. The Reply also put in issue entitlement to medical expenses, whether there was an entitlement to lump sums pursuant to sections 66 and 67, and ‘quantum’.
A telephone conference involving an arbitrator (different to the arbitrator who ultimately determined the matter) and the parties’ legal representatives was held on 28 March 2007, with the following consent orders, contained in a Certificate of Determination dated 28 March 2007 (‘the consent orders’), being made:
1.That by consent the Respondent amends its Reply by deleting paragraphs 1,2 and 3 of Part 3 – Matters in Dispute and concedes that there are no threshold issues precluding the Application being referred to an Approved Medical Specialist.
2.That the Application is referred to the Registrar for referral to an AMS for an injury to the lumbar spine on the 24th February 2006 and an injury the lumbar spine and the right lower extremity for a nature and conditions claim for the period 1st March 1999 to the 24th February 2006 with a deemed date of 24th February 2006.
Thus the consent orders did not properly reflect the allegations of injury in the ARD, set out at [5] above.
As the arbitrator ultimately placed some reliance upon it, it is appropriate I set out relevant aspects of the “Referral for Assessment of Permanent Impairment to Approved Specialist” dated 28 March 2007. It attached a copy of the Certificate of Determination dated 28 March 2007. Excluding formal parts, it set out the following information:
“Date of Injury 1. 24 FEBRUARY 2006
2. 24 FEBRUARY 2006 (NATURE AND CONDITIONS 1 MARCH 1999 TO 24 FEBRUARY 2006)
Body Part/s Referred 1. LUMBAR SPINE
2. LUMBAR SPINE & RIGHT LOWER EXTREMITY
Method of Assessment WHOLE PERSON IMPAIRMENT
Issues Determined by Arbitrator:
28/3/07 DATE OF INJURY AND BODY SYSTEMS DETERMINED AS ABOVE”
The Respondent Worker was examined by an AMS, Dr Pillemer, on 27 April 2007, and he issued a medical assessment certificate (‘MAC’) dated 1 May 2007. He recorded a history of the incident of 24 February 2006, with “significant ongoing problems with his low back since then and ongoing discomfort into his right lower limb which is intermittent”. He recorded an additional history of discomfort in the right heel and foot commencing in April 2006 (after the Respondent Worker ceased employment duties). The AMS concluded the Respondent Worker’s back condition, including the “referred pain he gets into his right lower extremity”, placed him in DRE Category II, resulting in whole person impairment of 7%, which he reduced to 6% (after rounding), to take account of a pre-existing condition. He described this figure as taking “in to account the nature and conditions of his employment from 1 March 1999 to 24 February 2006”, and including “the injury on 24 February 2006”. He concluded the “problems with his feet are unrelated to the nature and conditions of his work, symptoms having come on with the right foot some six weeks after he stopped work and in his left foot more recently”.
The AMS recorded that the referral to him, by the delegate for the Registrar, for assessment, related to injuries on “24 February 2006”, and “24 February 2006 (nature and conditions 1 March 1999 to 24 February 2006)”. He said “As required, I have included these two dates in Table 2, and have simply suggested that for the first date of injury that there was no assessable impairment, as this has been included in the second date of injury, which includes the nature and conditions of employment. To do otherwise, in my opinion, would simply cause confusion.” Thus the only work related impairment, found by the AMS, related to the back injury. This he attributed, by way of causation, at least in part, to an occurrence not alleged, in the ARD, to have caused back injury. Whilst it is to some extent conjecture, the AMS did not overall, according to the reasoning in the MAC, turn his mind in any detail to whether the impairment of the lumbar spine resulted from the incident of 24 February 2006, as opposed to the ‘nature and conditions’ from 1 March 1999 to 24 February 2006. His discussion at ‘Reasons for Assessment’ indicated that the assessed impairment “takes into account” both the ‘nature and conditions’, and the incident of 24 February 2006. His reasons certainly do not indicate he regarded any particular part of the assessed impairment as resulting from the ‘nature and conditions’ allegation.
The Respondent Worker appealed against the medical assessment pursuant to section 327 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’). The Appeal Panel, in a Statement of Reasons for its decision dated 13 November 2008, noted “the AMS assessment concerning Mr Turton’s lumbar spine was not the subject of this appeal or submission by either party. The Panel is satisfied the AMS properly recorded his findings and made an appropriate whole person impairment assessment concerning Mr Turton’s lumbar spine.” (at [11]).
The Reasons of the Appeal Panel noted the Certificate of Determination dated 28 March 2007 (set out at [10] above), and dealt with its significance as follows:
“The Panel is satisfied the AMS was bound by the determination made by the Arbitrator consistent with agreement of the parties that Mr Turton sustained an injury to his right lower extremity that arose out of or in the course of his employment with the Respondent and for which employment was a substantial contributing factor. This fact formed the basis of the referral to the AMS and by which the AMS was bound. The Panel is also satisfied such a finding is available and consistent with the clinical findings and history obtained by Dr Rosenthal.”
The Appeal Panel went on to assess 4% whole person impairment resulting from the injury to the Respondent Worker’s right lower extremity. The ‘report of examination’ of Dr Rosenthal (the Medical Appeal Panel member who examined the Respondent Worker), at [25] and [26] of the Panel’s Statement of Reasons, clearly indicates the 4% impairment related to right foot complaints, rather than any radiating or referred symptoms from the lumbar spine. The Appeal Panel revoked the MAC dated 1 May 2007, and issued a new MAC dated 13 November 2007, certifying 10% whole person impairment (6% relating to the lumbar spine, and 4% relating to the right lower extremity). The “Date of Injury” is described as “Nature and conditions 1/3/99 to 24/2/06” for the right lower extremity, and “24/2/06 Nature & conditions 1/3/99 to 24/2/06” (emphasis added) for the lumbar spine.
The matter proceeded to an arbitration hearing on 4 February 2007. Both parties were legally represented. No oral evidence was adduced, both parties addressed. The primary issue between the parties was whether the impairments should be properly treated as a single impairment of 10%, or as two separate impairments of 6% and 4%. This governed the availability of lump sum compensation for pain and suffering. Section 67(1) of the 1987 Act provides:
“A worker who receives an injury that results in a degree of permanent impairment of 10% or more is entitled to receive from the worker’s employer as compensation for pain and suffering resulting from the permanent impairment an amount not exceeding $50,000. Pain and suffering compensation is in addition to any other compensation under this Act.”
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 7 February 2008 records the Arbitrator’s orders as follows:
1.In accordance with the decision of the Medical Appeal Panel of 13 November 2007 and in accordance with my reasons for this decision given orally at the arbitration the Applicant has permanent impairment totalling 10% Whole Person Impairment, being a combination of 6% WPI in respect of the lumbar spine and 4% in respect of the right lower extremity. This impairment results from the injury on 24 February 2006 and the deemed injury on 24 February 2006 (by way of nature and conditions of his employment from 1 March 1999 and 24 February 2006). As a consequence the Respondent is to pay the Applicant compensation pursuant to section 66 of the 1987 Act of $12,875 in respect of 10% WPI.
2.The Respondent is to pay the Applicant compensation pursuant to section 67 of the 1987 Act of $12,500.00 for pain and suffering.
3.The Respondent is to pay the Applicant’s past section 60 expenses in the amount of $491.10, being $161.10 arising from the Medicare Notice of Charge (not disputed) and $330.00 for physiotherapy treatment expenses from Morisset Physiotherapy, which I have found to be reasonably necessary for the purposes of section 60 of the 1987 Act.
4.The respondent is to pay the Applicant’s costs as agreed or assessed. For the purposes of Schedule 6 Table 4 Item 4 of the Workers Compensation Regulation 2003 I certify this matter as complex with a 10% increase in the costs otherwise available to both the parties.
The arbitrator’s detailed reasons were given orally, and appear at pages 20 to 39 of the transcript. They are interspersed from time to time with further submissions.
The arbitrator referred to the decision of Roche DP in Department of Juvenile Justice v Edmed [2008] NSWWCCPD 6 (‘Edmed’), and said the current matter was “really very different from the case in Edmed” (T21.45). She distinguished Edmed from the current matter, saying “the pathway of the case in coming to me has been very different, and I place significant weight on that pathway because its part of the important procedures in this Commission” (T22.25). She noted the allegations of injury in the ARD had not been formally amended, but went on to say “the combination of the Certificate of Determination and the consent orders and the medical assessment referral…was, in effect, an agreed-to amendment by the parties”. She said as a result of this, what was referred to the AMS was “two separate injuries”. The first was the “injury of 24 February 2006 to the lumbar spine”, and the second was “an injury of 24 February 2006 (nature and conditions 1 March ’99 until 24 February 2006’ and the body parts referred for that are the lumbar spine and the right lower extremity” (T22.55 to 23.10). She described “two documents”, the consent orders and, I infer, the Referral for Assessment of the same date, as combining “to form an agreement between the parties from which they can’t now resile” (T24.5).
The arbitrator went on “it seems to me, putting it very simply, it’s too late to argue those matters, and that’s essentially the applicant’s submission”. This was because the consent orders reflected an agreement between the parties. The arbitrator noted there was a distinction to be drawn between “the frank injury to the back on 24 February 2006, which, just coincidentally, bears the same date as the deemed date of injury, or the notional date of injury, whichever way it’s described – it was suggested that it’s effectively by way of almost a disease case, but, at any rate, it’s described as “nature and conditions”, and the agreed date of injury is 24 February 2006, and the period is identified.” (T24.15)
The arbitrator’s identification of the basis of the different injury dates in the Referral for Assessment is appropriate. The consent orders, and the ensuing Referral for Assessment, referred to two injurious events. The first was the event of 24 February 2006 in which the Respondent Worker injured his lumbar spine. The second was the ‘nature and conditions’ of employment from 1 March 1999 to 24 February 2006. I accept the arbitrator’s observation the date “24 February 2006” was set out separately, in the description of the second of these events, on the basis it reflected agreement by the parties that date represented the appropriate deemed date of injury, if the ‘disease provisions’ in sections 15 and 16 of the 1987 Act had application.
I should note, it is apparent the AMS did not interpret the referral in this way, when he dealt with the question of which of the dates of injury, in the Referral for Assessment, caused the impairment that he found. This is clear from the passage under ‘Reasons for Assessment’ at page 6 of the MAC. By responding as he did, he expressed a view which assumed the second of the injury dates included impairment resulting from both the ‘nature and conditions’ of employment, and the injurious event of 24 February 2006.
The arbitrator said the Appellant Employer had not raised concerns about the wording of the consent orders and Referral for Assessment, nor sought a determination, if necessary, by the original arbitrator regarding “the nature of the nature and conditions injury” (T24.35). She said it was open to the Appellant Employer to have sought referral of three potential injuries, being impairment to the lumbar spine resulting from the incident of 24 February 2006, impairment to the lumbar spine resulting from the ‘nature and conditions’ of employment, and impairment of the right lower extremity. She described the Appellant Employer’s acquiescence in the Consent Orders as creating “a kind of an estoppel”, and referred to Rail Services Australia v Dimovski & Anor [2004] NSWCA 267 (T24.50).
The arbitrator observed the approach of the AMS to the two injuries he was requested to assess, and noted the original MAC had been “overturned”, and the binding document with which she was left to deal was the certificate of the appeal panel dated 13 November 2007 (T25.15). She discussed the approach of the AMS, and the way he had combined impairment of the lumbar spine resulting from the incident of 24 February 2006 with that resulting from the ‘nature and conditions’ of employment. She accurately observed “I suspect that in doing that he has caused some confusion” (T26.40). She went on to note the Appellant Employer had not appealed to the Medical Appeal Panel regarding the treatment by the AMS of the lumbar spine impairment, and its causes.
The arbitrator went on to say:
“In my view, the Medical Appeal Panel has quite correctly accepted that as a result of the nature and conditions the referral was this: as a result of the nature and conditions injury the applicant has sustained injury to two different body parts, being the lumbar spine and to the right leg, both resulting from nature and conditions between those dates, 1 March ’99 until 24 February 2006. In my view, the submissions of the applicant are correct: that the injury before them was, in fact, one injury arising from the same circumstances.” (T27.50 to 28.5)
And:
“They (the consent orders) confirm that what the parties agreed to on that day was an injury to the lumbar spine on 24 February 2006 and an injury to the lumbar spine and right lower extremity for a nature and conditions claim for the period specified.
That, in my view, was referred – that, in my view, was agreed to by the parties as one injury. All of that is, in my view, consistent, and because of that background it’s substantially different from the situation in Edmed. There were no consent orders in that case. It was a referral by the Registrar to an AMS and then it came back to an Arbitrator for determination. In my view, that pathway is entirely different from these circumstances, and I take it no further, although I accepted the suggestion before that in those circumstances at least the combined percentage was not binding on the Arbitrator. In my case I believe it is, but it’s not just because of the Medical Appeal Panel decision; it’s because of the way in which that matter was referred, the agreements made by the parties, the Certificate of Determination and the decision of this Commission on 28 March 2007, by which, in my view, the nature of the injury was determined and agreed to by the parties and then referred to the AMS and then, after that appeal, to the Medical Appeal Panel. (T28.45 to 29.15)
On this point the arbitrator concluded:
“I’m left with the pathway that I’ve got in front of me and the documentation that I’ve got in front of me, and, for those reasons, I’m satisfied that the applicant has got an entitlement under section 67 because he has a 10 per cent whole person impairment as a result of the combination, and I suppose just for the – the only – that’s for the reasons I’ve outlined, and the only one within that that really goes to the medical issues in the case, if you like, is in respect of the frank injury, where I think – but both for the reasons I’ve already stated, in that particular instance, the pathologies, at any rate, are the same, and that’s absolutely clear from the decisions of both Dr Pillemer – the assessments, sorry, of Dr Pillemer and then the Medical Appeal Panel. Beyond that, I’m not going to look at the pathology in the case because I don’t need to. It’s not the question before me because, unlike the situation in Edmed, this case has already been determined and the nature of the injury has already been determined by the Commission.” (T29.25 to 29.45)
The arbitrator then went on to deal with quantum of the award pursuant to section 67, and the claim for section 60 expenses. These aspects of her decision are not challenged in this appeal.
ISSUES IN DISPUTE
Essentially there is a single issue raised in this appeal, which is whether the threshold in section 67(1) of the 1987 Act is crossed, permitting the award pursuant to section 67. The Appellant Employer does not actually challenge the quantum of the award made (Part B (3) of its submissions), but rather whether such an award could be made at all, in the circumstances. The Application for Leave to Appeal identifies the following grounds:
(i)The arbitrator erred in determining the Consent Orders and Referral for Assessment to an AMS, both dated 28 March 2007, constituted concession or agreement by the Appellant Employer, that the lumbar spine injury and right lower extremity injury, should be considered as a single injury.
(ii)The arbitrator erred in regarding herself as bound, by the terms of the Consent Orders and Referral, to make a combined assessment encompassing both the lumbar spine and right upper extremity injuries.
(iii)The arbitrator erred in failing to give adequate consideration to the way in which the matter was pleaded in the ARD, and the medical evidence as a whole, in considering whether the lumbar spine injury and right lower extremity injury, should be treated as separate injuries.
ON THE PAPERS REVIEW
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 both 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.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The Respondent Worker properly accepts the monetary thresholds in section 352(2) of the 1998 Act are met.
The Certificate of Determination is dated 7 February 2008. The Application to Appeal was lodged on 7 March 2008. The Appellant Employer accepts the appeal was lodged one day out of time. This is consistent with the decision in Dennis v NSW Fire Brigades [2007] NSWWCCPD 165.
Rule 16.2(11) of the Workers Compensation Commission Rules 2006 (‘the Rules’) provides a discretion to extend time, in the following terms:
“(11) The Commission constituted by a Presidential member may, if the party satisfies the Presidential member, in exceptional circumstances, that to lose the right to seek leave to appeal would work demonstrable and substantial injustice, by order extend the time for making an appeal.”
In considering such applications, Presidential decisions in the Commission have frequently been guided by the following passage from McHugh J in Gallo v Dawson (1990) 93 ALR 479:
“The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194-5; 70 ALR 185. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871 at 872; Hughes at 263-4, Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has “a vested right to retain the judgment” unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201.” (at 480)
The Appellant Employer in its submissions on this point (the factual scenario has not been challenged) states the Application for Leave to Appeal was “finalised and signed on 6 March 2008” (the last day for filing within time). It says the document was given to the firm’s service centre to be filed on that day, and an unsealed copy was served upon the solicitors for the Respondent Worker on that day. However it was “inadvertently not filed on that day” as the solicitors’ regular filing clerk was absent from work, and when a clerk attended the Commission later that day, the office where the document was to be lodged was closed. Thus it was filed on the subsequent day (accompanied by submissions going to the extension of time), one day out of time.
The Respondent Worker opposes the extension of time, on the basis the above does not constitute “exceptional circumstances”. It is also submitted the Respondent Worker would be prejudiced if the appeal succeeded, and he lost the benefit of the section 67 award in his favour. This does not constitute ‘prejudice’ in the relevant sense.
In Department of Education and Training v Mekhail [2006] NSWWCCPD 1 Handley ADP dealt with an appeal filed a few days out of time, when appeal documents were given to the filing section of the appellant’s solicitors, but not filed for some days due to “unforeseen error”. Handley ADP said the appeal was filed out of time due to “administrative error”, which did not constitute “exceptional circumstances” so as to enliven the discretion in rule 16.2(11). In Department of Corrective Services v Buxton [2007] NSWWCCPD 55 I dealt with an appeal lodged approximately one week out of time, after the appellant’s solicitors miscalculated the time within which an appeal could be brought. I formed the view a simple error in calculating the time within which an appeal could be brought did not constitute “exceptional circumstances”. In Roads & Traffic Authority of NSW v Cormick [2007] NSWWCCPD 220 (‘Cormick’) I found special circumstances to exist, where an appeal was initially filed within time, and rejected due to minor technical deficiencies, in part contrary to the experience of the appellant’s solicitors in other matters. I referred in that decision to the judgment of Campbell JA in Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290 (‘Yacoub’), dealing with the phrase “exceptional circumstances” in the Uniform Civil Procedure Rules 2005:
“66. Another question of construction concerned “exceptional circumstances” in rule 31.18(4). In San v Rumble (No 2) (2007) NSWCA 259 at [59]- [69], I gave consideration to the expression “exceptional circumstances” in a different statutory context to the present. Without repeating that discussion in full, I shall state such of the conclusions as seem to me applicable in the construction of rule 31.18(4).
(a) Exceptional circumstances are out of the ordinary course or unusual, or special, or uncommon. They need not be unique, or unprecedented, or very rare, but they cannot be circumstances that are regularly, routinely or normally encountered: R v Kelly (Edward) [2000] 1 QB 198 (at 208).
(b) Exceptional circumstances can exist not only by reference to quantitative matters concerning relative frequency of occurrence, but also by reference to qualitative factors: R v Buckland [2000] 1 WLR 1262; [2000] 1 All ER 907 (at 1268; 912-913).
(c) Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional: Ho v Professional Services Review Committee No 295 [2007] FCA 388 (at [26]).
(d) In deciding whether circumstances are exceptional within the meaning of a particular statutory provision, one must keep in mind the rationale of that particular statutory provision: R v Buckland (at 1268; 912-913).
(e) Beyond these general guidelines, whether exceptional circumstances exist depends upon a careful consideration of the facts of the individual case: Awa v Independent News Auckland [1996] 2 NZLR 184 (at 186).67. In the context of rule 31.18(4) UCP Rules, any decision about whether there are exceptional circumstances would need to bear in mind the explicit statement of objectives of a court in the management of litigation contained in sections 56-59 Civil Procedure Act2005.”
In Cormick I expressed the view, consistent with what is said at [67] of Yacoub, that it is appropriate to have regard to sections 3 and 354 of the 1998 Act, in applying the concept of ‘exceptional circumstances’ in the Commission.
Each case depends upon its own facts. There have been a number of instances where administrative misadventures of different sorts have resulted in appeals being filed a little out of time, and time has been extended. In Coles Myer Logistics Pty Limited v Lee [2008] NSWWCCPD 141 an appeal initially filed in time was rejected by the Registry due to a minor defect, then re-filed out of time. A similar situation existed in Khouri v Pacific National (NSW) Pty Ltd [2008] NSWWCCPD 23. In Bielecki v Rianthelle Pty Ltd t/as Belfora [2008] NSWWCCPD 53 an appeal was filed one day out of time, Christmas and New Year having fallen during the available twenty-eight days. In Northern Co-operative Meat Company Limited v Bennett [2008] NSWWCCPD 34 an appeal was initially filed one day out of time due to an error in computerised electronic technology, then rejected and re-filed a little more out of time. In these various examples, exceptional circumstances were held to exist such that extension was available.
In support of its application to extend time the Appellant Employer also relies upon the following points:
(i)There is nothing unusual about the history of the proceedings that would militate against the extension of time.
(ii)The conduct of the Appellant Employer was satisfactory, in readying the documentation for filing within the twenty-eight day period, attempting to file within time, and serving an unsealed copy within time.
(iii)The issue on the appeal is an important one, on which Presidential determination may be helpful to the Profession.
(iv)The appeal is strongly arguable.
(v)Refusal would deprive the Appellant Employer of its appeal rights, leaving it liable for payment of the disputed award pursuant to section 67.
I regard the current matter as finely balanced, regarding whether it is appropriate to find the existence of exceptional circumstances. I have ultimately concluded exceptional circumstances do exist, and time should be extended, having particular regard to the following:
(i)The failure to file the document on the twenty-eighth day resulted from the absence from work of the Appellant Employer’s solicitors’ regular filing clerk, I infer an unusual circumstance.
(ii)Attempts had been made to ensure the document was filed within time, by preparing and signing it on the twenty-eighth day, and giving it to the “firm’s service centre” on that day for filing.
(iii)A clerk attended the Commission on the twenty-eighth day, in an attempt to file the appeal, to find that he or she was too late, and the office was closed.
(iv)An unsealed copy of the document was served on the Respondent Worker’s solicitors on the twenty-eighth day.
(v)The appeal was ultimately filed only one day out of time.
(vi)The Respondent Worker is not prejudiced in his conduct of the defence of the appeal, by its filing one day out of time.
(vii)The appeal, in the view I have ultimately formed, is strongly arguable.
Accordingly the time for filing the appeal is extended to 7 March 2008. I grant leave to appeal.
NATURE OF THE REVIEW PROCESS
The nature of a review has been considered on a number of occasions by the Court of Appeal. In Aluminium Louvres & Ceilings Pty Limited v Zheng [2006] NSWCA 34 Bryson JA said:
“A Presidential Member on appeal has a specific and limited role in the review of a decision of an Arbitrator. The review is not a rehearing. The Presidential member is not dealing with the matter de novo and is not arriving at a fresh decision based on all of the evidence available at a later time (Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616). The powers of the Presidential Member to revoke the decision pursuant to section 352(7) of the 1998 Act and to substitute 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 (Allesch v Maunz (2000) 203 CLR 172). Alternatively, the Presidential Member may remit the matter back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions made.” (at [19])
This passage was quoted with approval by McColl JA in South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16, at [34]. In that decision her Honour also described a statement by a Presidential member that “the relative weight and relevance of expert evidence was “a discretionary decision which could only be disturbed on House v The King principles” as “an over-generalisation” (at [133]).
In State Transit Authority of New South Wales v Chemler [2007] NSWCA 249 (‘Chemler’) Spigelman CJ said:
“22. The scope of an internal merits review by a Presidential member is an important safeguard for the proper operation of the legislative scheme. Arbitrators’ decisions, particularly on issues of credit, are entitled to respect. That does not, however, mean that such a merits review process should operate on the basis of some kind of presumption that the first instance decision-maker should redetermine the matter.
23. In s4 of the Act is a statement of objectives of the workers compensation system which concludes with the objective:
“4(f) to deliver the above objectives efficiently and effectively.”
24. It is inconsistent with this objective to confine the discretion of the Presidential member to make a “new decision” in the manner proposed.
25. Furthermore, a specific power, designed to serve objective 4(f), to hold what has been called a “paper hearing” is found in s354(6):
“354(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.”
26. This power may be exercised by a Presidential member conducting a review. The existence of such a broadly expressed discretion is itself inconsistent with the Appellant’s contention that the power to review a decision is constrained.
27. I note that the Acting Deputy President determined to proceed without a formal hearing. No challenge has been made to his ‘satisfaction’ that he had “sufficient information”.
28. The concept of a review on the merits is wider than the concept of an appeal in a judicial context. There is a well established line of authority on the use of the terminology of “review” instead of “appeal” with respect to the workers compensation system in this State which establishes the breadth of a review on the merits.
29. That line of authority is also inconsistent with the kind of restriction on the powers of a Presidential member for which the Appellant contends. (See Mansini v Director General of Education (1990) 6 NSWCCR 1 at pp4-20; Watson v Hanimex Colour Services Pty Limited (1992) 8 NSWCCR 190 at 199-206; Boston Clothing Co v Margaronis (1992) 27 NSWLR 580 at 584-585; Litynski v Albion Steel Pty Limited (1994) 10 NSWCCR 287 at 295-297, c/f 298-300; Aluminium Louvres & Ceilings Pty Limited v Zheng [2006] NSWCA 34 at [38]; South Western Area Health Service v Edmonds [2007] NSWCA 16 at [133]-[134].)
30. A Presidential member exercising a power to review a decision must decide whether the original decision is wrong or, as it is often put in the context of administrative appeals on merits, must decide what is the true and correct view. If s/he does so decide then s/he should substitute his or her own views, unless it is an appropriate case to remit. The power to remit is not constrained in the manner for which the Appellant contends.”
The decision in Chemler was considered in Duinker v St Vincent de Paul Society Aged and Special Services Limited (Lewisham Nursing Home) [2008] NSWCA 127, where Hodgson JA said:
“31. These passages in Chemler raise but do not clearly resolve two questions relevant to the present case:
(1) Does the Presidential member have to identify an error before intervening?
(2) Is the Presidential member bound to apply the Abalos principle?
32. As regards the first question, it is generally the case that an appeal court, dealing with an appeal from a first instance judge, will not intervene on a question of fact unless it is affirmatively satisfied that the decision of the first instance judge is wrong. This is particularly significant in relation to matters on which minds may reasonably differ, such as an assessment of what reasonable care requires. In relation to such matters, an appeal court recognises that minds may reasonably differ, and even if its own view, if it were approaching the matter de novo, would be different from that of the primary judge, it will not substitute its own view unless it is satisfied that the primary judge’s view is wrong, in the sense of being one not reasonably available or vitiated by some error. A question whether this approach applies in the case of a review under s 353 of the WIM Act could be significant, particularly in relation to a question whether a worker’s employment was a “substantial contributing factor” to an injury, within s 9A of the Workers Compensation Act 1987. The discussion by Basten JA at par [63]-[66] in Chemler suggests that this approach would not apply, so that it would be open to a Presidential member carrying out a review under s 353 of the WIM Act to substitute his or her own preferred view on such a question, even if he or she was not affirmatively satisfied that the Arbitrator’s view was wrong. Paragraph [29] in the judgment of Spigelman CJ in Chemler also tends to support that view.
33. As regards the second question, it is clear that the Presidential member conducting such a review must apply substantive rules of law and must accord procedural fairness; but it is doubtful whether s 354 is consistent with an obligation on a Presidential member, as a matter of law, to apply the principle of Abalos. Again, the discussion in Chemler seems to suggest that it is not.
34. For reasons I will give, in my opinion the Presidential member did not commit any error of law in this case, even if she was obliged to identify an error before intervening, and even if the Abalos principle applies. Accordingly it is not necessary to come to a final view on the two questions I identified.”
I propose applying the above principles in the review before me. The questions, not finally answered, identified by Hodgson JA in Duinker are not questions requiring consideration in this review.
EVIDENCE AND SUBMISSIONS
The Appellant Employer makes the following submissions:
(i)The ARD claimed two separate injuries. The first was plantar fasciitis, with a date of injury of 24 February 2006, at various sites, resulting from nature and conditions of employment wearing ill-fitting boots. The second was lower back injury on 24 February 2006, when the Respondent Worker stumbled while running at an exercise ground.
(ii)The ARD, in its claim for permanent impairment compensation, made separate claims in respect of the right leg and the lumbar spine.
(iii)The consent orders demonstrated the Appellant Employer’s consent to impairment, resulting from the lumbar spine injury, “being assessed on a nature and conditions basis”, in addition to “being assessed in respect of the frank injury on 24 February 2006”. It did not indicate the Appellant Employer consented to permanent impairment being “determined as one injury”.
(iv)The consent orders do not indicate any determination by the original arbitrator “that the conditions of the lumbar spine and right lower extremity be assessed as a combined single injury producing a combined single impairment”.
(v)The form of certificate issued by the Medical Appeal Panel, adding the two figures together, “does not mean that it is conclusive that there was one injury for the one impairment”. The issue regarding whether the impairments should be combined “is outside the exclusive domain of the AMS or Medical Appeal Panel”. Reference is made to a number of Presidential decisions, including Joppa Pty Limited t/as Tricia’s Clip-n-Snip v Edenden [2004] NSWWCCPD 50 (‘Joppa’), and Connor v Trustees of the Roman Catholic Church of the Archdiocese of Sydney [2006] NSWWCCPD 124 (‘Connor’).
(vi)The evidence as a whole clearly demonstrates “the injury and consequent impairment to the lumbar spine” is separate from the “injury and impairment to the right lower extremity”.
The Respondent Worker submits:
(i)The consent orders, properly read, indicate the permanent impairment was to be dealt with as one injury. It was “agreed that the injury to the lumbar spine was also to be assessed on a nature and conditions basis”.
(ii)The arbitrator correctly held the consent orders and associated referral reflected “an agreement between the parties from which they cannot now resile”.
(iii)The arbitrator properly distinguished the decision in Edmed.
(iv)The arbitrator correctly regarded herself as being bound by the certificate issued by the Medical Appeal Panel, which combined the two assessments into one figure.
(v)There was no error in the arbitrator’s consideration of the way in which the claim was pleaded in the ARD.
DISCUSSION AND FINDINGS
Relevant Legislative Provisions
Section 65 of the 1987 provides:
“65 Determination of degree of permanent impairment
(1) For the purposes of this Division, the degree of permanent impairment that results from an injury is to be assessed as provided by this section and Part 7 (Medical assessment) of Chapter 7 of the 1998 Act.
(2) 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.
Note. The injuries are to be compensated together, not as separate injuries. Section 322 of the 1998 Act requires the impairments that result from those injuries to be assessed together. Physical injuries and psychological/psychiatric injuries are not assessed together. See section 65A.
(3) If there is a dispute about the degree of permanent impairment of an injured worker, the Commission may not award permanent impairment compensation or pain and suffering compensation unless the degree of permanent impairment has been assessed by an approved medical specialist.”
Section 322 of the 1998 Act provides:
“322 Assessment of impairment
(1) The assessment of the degree of permanent impairment of an injured worker for the purposes of the Workers Compensation Acts is to be made in accordance with WorkCover Guidelines (as in force at the time the assessment is made) issued for that purpose.
(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.
Note. Section 65A of the 1987 Act provides for impairment arising from psychological/psychiatric injuries to be assessed separately from impairment arising from physical injury.
(4) An approved medical specialist may decline to make an assessment of the degree of permanent impairment of an injured worker until the approved medical specialist is satisfied that the impairment is permanent and that the degree of permanent impairment is fully ascertainable. Proceedings before a court or the Commission may be adjourned until the assessment is made.”
Section 326 of the 1998 Act provides:
“326 Status of medical assessments
(1) An assessment certified in a medical assessment certificate pursuant to a medical assessment under this Part is conclusively presumed to be correct as to the following matters in any proceedings before a court or the Commission with which the certificate is concerned:
(a) the degree of permanent impairment of the worker as a result of an injury,
(b) whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality,
(c) the nature and extent of loss of hearing suffered by a worker,
(d) whether impairment is permanent,
(e) whether the degree of permanent impairment is fully ascertainable.
(2) As to any other matter, the assessment certified is evidence (but not conclusive evidence) in any such proceedings.”
Thus there are two circumstances where it is appropriate to combine impairment assessments, to ascertain whether a worker has exceeded the threshold in section 67(1). The first is where a worker receives more than one injury arising out of the same incident (section 65(2) of the 1987 Act and section 322(3) of the 1998 Act). The second is where multiple impairments result from the same injury (section 322(2) of the 1998 Act).
In Edmed Roche DP dealt with a matter where the worker had sustained injury to his right wrist in two incidents. A MAC certified as to 9% impairment resulting from the first incident, and 4% from the second. The section 67(1) threshold was crossed if the impairments could be combined, but not otherwise. After a careful analysis of the legislative provisions, Roche DP concluded:
“26. This definition (section 4 of the 1987 Act) is unhelpful in determining the issue before me. In Lyons, Judge Neilson held that “injury” refers to “both the [injurious] event and the pathology arising from it”. I accept that definition as being appropriate for many purposes under the 1987 Act and the 1998 Act. That the term “injury” can have two different meanings is acknowledged in section 322(3) of the 1998 Act where reference is made to “Impairments that result from more than one injury arising out of the same incident...” (emphasis added). This reference to “injury” can only mean the ‘pathology’ that has resulted from the relevant work “incident” or injurious event. For example, if a worker falls and suffers a broken leg and separate and distinct nerve damage in the arm, he or she has suffered more than one “injury” (an injured leg and an injured arm) within the terms of section 322(3) resulting from the one “incident”. In other words, he or she has suffered more than one pathology (“injury”) as a result of the one incident or injurious event. Those “injuries” are to be assessed together. This interpretation is consistent with section 65(2) of the 1987 Act and is uncontroversial.
27. The difficulty arises when a worker suffers one pathology (“injury”) as a result of several independent “incidents” or injurious events. This situation is partly addressed in section 322(2), which provides that “Impairments that result from the same injury are to be assessed together to assess the degree of permanent impairment of the injured worker” (emphasis added). The reference to “the same injury” in section 322(2) cannot be a reference to “the same incident” because that situation is dealt with in section 322(3). The expression “the same injury” is not defined but it follows that if “injury” in section 322(3) means ‘pathology’ (as it must), then, for the section to be logically consistent, it must mean the same in section 322(2). If “injury” in section 322(2) means ‘pathology’ then, for section 322(2) to be consistent with section 322(3), impairments resulting from the “same injury” (the same pathology) are to be “assessed together” regardless of whether they arise from the same “incident” or separate incidents.”
And, after quoting from The Macquarie Dictionary:
“29. Applying this definition, the “same” means “identical”.
30. The question therefore arises: did Mr Edmed suffer the “same” injury (pathology) in each incident?”
Roche DP concluded, on the facts of the particular case, that pathology resulting from the two incidents was not identical, and accordingly section 322(2) did not lead to the impairments being assessed together. The threshold in section 67(1) was not crossed.
The Form of the Consent Orders and Referral for Assessment
The arbitrator placed considerable reliance upon the consent orders and associated referral. The Appellant Employer’s agreement to the consent orders was variously described as “a kind of an estoppel” (T24.50), and “an agreement between the parties from which they can’t now resile” (T24.5). In my view the consent orders and referral are not appropriately interpreted in this way.
The consent orders did not involve any determination by the original arbitrator of any issue going to injury, on its merits. The ARD (of which amendment was not sought) pleaded two separate injurious events. The first was an allegation that the ‘nature and conditions’ of the Respondent Worker’s employment over a period from 1 March 1999 to 24 February 2006 led to the injury of plantar fasciitis. The second was that, in a specific incident on 24 February 2006, the Respondent Worker stumbled whilst running, injuring his lower back. The whole person impairment claims detailed in Part 5 of the ARD make specific claims for each of these injuries, 9% impairment for the “lower extremity (right foot)”, and 12% impairment for the “lumbar spine”. The Appellant Employer, by amending its Reply (see [1] of the consent orders), was in a position where it did not dispute either of the pleaded injuries. It follows that appropriate consent orders, consistent with the pleadings, would have required assessment of the impairment resulting from the right foot injury caused by the nature and conditions of employment, and also the impairment resulting from the injury to the lumbar spine in the incident of 24 February 2006.
However the referral related to impairment for the lumbar spine injury of 24 February 2006, and also for lumbar spine and right lower extremity injury resulting from the period of ‘nature and conditions’. The way in which the orders were framed left open the possibility the lumbar spine impairment would be found to result from the ‘nature and conditions’ of employment, rather than the incident of 24 February 2006, which was the only lumbar spine injury pleaded.
I accept the Appellant Employer’s submission that, in consenting to these orders, it could not be taken to have conceded the injuries to the lumbar spine and right lower extremity should be considered as one injury. It would have been virtually impossible for the Appellant Employer to complain a finding of injury to the lumbar spine, resulting from the ‘nature and conditions’ of employment, was outside the pleadings. The Appellant Employer has not taken this point.
A number of factual alternatives were available from the referral and consent orders. One was that there was impairment resulting from lumbar spine injury on 24 February 2006, and also an impairment resulting from plantar fasciitis, occasioned by ‘nature and conditions’. Had the MAC been to this effect, it would have been consistent with the pleadings and referral, yet it could hardly be argued such a result would lead to combining the impairments, to cross the section 67(1) threshold. There was nothing in the consent orders and referral, which inherently led to the impairments being combined. The form of the consent orders does not lead to the conclusion the Appellant Employer consented to the proposition the impairments should be combined, nor does it lead to a concession the impairments resulted from the same injury, or that there were two injuries arising out of the same incident.
The form of the consent orders did leave open the possibility a MAC would certify there were two impairments resulting from the ‘nature and conditions’ of employment. In my view the Appellant Employer’s acquiescence in these orders did not amount to an agreement regarding the question of ‘injury’ from which it cannot resile. Nor did it lead to a kind of estoppel, preventing it from arguing the impairments should be regarded as separate for the purposes of section 67(1) of the 1987 Act. There is nothing in the consent orders that amounts to a concession the two impairments (if found) necessarily resulted from the ‘nature and conditions’ of employment, nor that they resulted from the same injury.
It follows that, in my view, the question cannot be resolved on the basis the Appellant Employer, either because of some agreement, or because of estoppel, was taken to have conceded combining of the impairments was appropriate. The question rather is whether combining the impairments is appropriate, having regard to the statutory provisions.
Section 322(2) - Were there Two Impairments Resulting From the Same Injury?
I gratefully adopt the careful consideration of the construction of section 322(2) of the 1998 Act, by Roche DP, in Edmed. For this sub-section to have application, it would be necessary that the two impairments result from the same pathology. Clearly they do not. Some of the medical evidence (see for example Dr Bodel’s report dated 29 March 2007) deals with radicular symptoms in the right leg, secondary to the injury to the lumbar spine. However the radicular symptoms were considered by the various medical practitioners in their assessments of the lumbar spine, consistent with AMA5. Dr Dixon’s diagnosis for the lumbar spine was “low back injury with residual right lumbo sacral facet arthralgia and lumbar stiffness”. There was also S1 radiculopathy in the right leg with sciatica with compressive features, and irritative sciatica on the left lower limb (pages 2.9 to 3.1 of the longer report dated 20 December 2006). Dr Dixon’s shorter report of 20 December 2006 indicates he took the radiculopathy into account, in assessing12% impairment in respect of the lumbar spine injury. That report clearly indicates the 9% impairment Dr Dixon assessed, for the Respondent Worker’s right lower extremity, resulted from plantar fasciitis and Achilles tendonitis.
In the Appellant Employer’s case, Dr Bodel in his report dated 29 March 2007, diagnosed “a disc injury at the lumbosacral junction with associated right-sided sciatica”, together with “plantar fasciitis in the right heel and chronic Achilles tendonitis in the right heel”.
The original AMS report made a diagnosis for the lumbar spine at page 5 (‘summary of injuries and diagnoses). Dr Pillemer noted “his investigations show advanced and long standing degenerative changes, particularly at the lumbosacral level of his back”, and “he does have a mechanical problem at the lumbosacral level of his low back in particular, which I would suggest would account for the majority of his symptoms in this region”. The AMS noted “The referred pain he gets into his right lower extremity is included within the DRE Category” (page 6.8).
The examinations of the Respondent Worker’s right lower extremity by Dr Rosenthal, set out at [25] to [26] of the Statement of Reasons of the Appeal Panel dated 13 November 2007, make it clear he was examining the Respondent Worker to assess impairment associated with symptoms in the Respondent Worker’s right foot, rather than radicular symptoms. It was in respect of these foot symptoms the Appeal Panel certified 4% impairment resulting from injury to the right lower extremity. On the evidence overall, it is clear there are two separate pathologies. There is a disc injury at the lumbosacral level, causing back symptoms and associated sciatica. There are also symptoms in the right foot resulting from plantar fasciitis and Achilles tendonitis.
It follows that section 322(2) of the 1998 Act (as explained in Edmed) does not apply. There were not two impairments resulting from the same injury.
Section 322(3) – Were There Two Impairments Resulting From More Than One Injury Arising Out of the Same Incident?
This issue is complicated by the original expression of opinion of the AMS, regarding the cause of the lumbar spine impairment that he found to exist. The passage at page 7.2 of the MAC makes it clear he attributed the impairment to “24 February 2006 (nature and conditions 1 March 1999 to 24 February 2006”, on the basis he took this to encompass both the incident of 24 February 2006, and the ‘nature and conditions’. Reading this MAC as a whole, the AMS expresses an opinion the impairment resulted from both the incident of 24 February 2006, and the ‘nature and conditions’ of employment. It does not apportion between these.
The MAC was the subject of successful appeal by the Respondent Worker, the Appeal Panel revoked the original MAC, and issued its certificate dated 13 November 2007. The assessment in the original MAC, of lumbar spine impairment, was not the subject of appeal, and at [38] of its Statement of Reasons the Appeal Panel said:
“The Panel has considered matters raised in the MAC and other medical reports. The Panel reviewed the findings and calculations made by the AMS with respect to the Applicant’s lumbar spine and is of the view that the AMS correctly applied the Workcover Guides for the Evaluation of Permanent Impairment in arriving at the assessed whole person impairment of 6% concerning this body part.”
Notwithstanding how the referral was framed, it is tolerably clear the Appeal Panel drew a distinction between the ‘incident’ that resulted in the right foot injury, and that which resulted in the lumbar spine injury. In the MAC attached to its reasons, the date of injury for the “Right lower extremity” is described as “Nature and conditions 1/3/99 to 24/2/06”, for the “Lumbar spine” the date of injury is “24/2/06 Nature and conditions 1/3/99 to 24/2/06”
Thus the position remained, that in respect of the lumbar spine, there was a finding of 6% impairment, resulting from a combination of the incident of 24 February 2006 and the ‘nature and conditions’ of employment, with apportionment between these being unspecified.
In considering whether the two assessed impairments should be combined, the arbitrator described herself as being bound by the combined percentage in the MAC (T29.5). This requires some consideration of the status of the MAC (in its final form), in determining the issue of causation, of impairment resulting from injury to the lumbar spine.
There have been a number of Presidential decisions dealing with the scope of a binding MAC. I reviewed a number of these in Ooi v NEC Business Solutions Limited [2006] NSWWCCPD 131 (‘Ooi’) at [36] to [40]. The Appellant Employer in its submissions has referred to two of those decisions, Joppa Pty Ltd t/as Tricia’s Clip-n-Snip v Edenden [2004] NSWWCCPD 50, and Connor v Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2006] NSWWCCPD 125 (‘Connor’). For present purposes, it is probably sufficient to quote from the decision of Roche ADP (as he then was) in Connor:
“Therefore the determination of the issue of ‘injury’ requires not only an examination of whether the ‘injurious event’ occurred in compensable circumstances but also whether the pathology found to exist (if any) has been caused by the work event. These are both threshold liability issues to be decided by the Commission not by an AMS or an Appeal Panel. Employment must be a substantial contributing factor to the work event and to the pathology found before liability arises under the legislation. The determination of these issues requires a consideration of all of the factual and legal issues in the case. It is not simply a medical question.” (at [48])
I adopted a similar approach in Ooi. For reasons more fully set out in that decision, questions such as ‘injury’ and ‘causation’ are matters that fall to be determined by the arbitrator. The question of whether the incident of 24 February 2006, and/or the nature and conditions of employment from 1 March 1999 to 24 February 2006, caused injury to the Respondent Worker’s lumbar spine, was a question for determination by the arbitrator. It was not simply an issue to be decided by a MAC.
This could, in some circumstances, lead to a need to refer the matter back for re-determination, to have this question of injury decided. However, given the limited nature of the issues agitated on this appeal, it is possible that I, in reviewing the decision, can deal relatively simply with this causation issue, at least sufficiently to dispose of the issue raised by the appeal.
I have already found that section 322(2) does not assist the Respondent Worker in combining the assessments, as the impairments do not result from the same injury, in the relevant sense. The other potential basis on which the assessments could be combined, for the Respondent Worker to cross the threshold in section 67(1), is if section 322(3) had application. Application of that sub-section would require more than one injury (as exists here) arising out of the same incident.
On the medical evidence overall, including that of the MAC, it is clear the injuries result from two incidents, the nature and conditions of employment from 1 March 1999 to 24 February 2006, and the incident of 24 February 2006, when the Respondent Worker stumbled whilst running in an exercise program.
The medical evidence, including the MAC issued by the Appeal Panel, clearly supports the proposition, which I accept, that the condition of plantar fasciitis and Achilles tendonitis results from the nature and conditions of employment as pleaded.
As regards the back injury, Dr Dixon says the incident of 24 February 2006 “aggravated a lumbo sacral disc lesion and (he) has disc lesions at L3/4 and L4/5 following this fall” (page 2.6). Dr Dixon thought the L5/S1 disc degenerated prior to that (page 3.2), which would not
be inconsistent with the proposition it could previously have been injured by the nature and conditions of employment, although Dr Dixon does not venture an opinion regarding whether, in his view, work prior to 24 February 2006 was also productive of injury to the lumbar spine.
Dr Bodel considered the Respondent Worker had “a disc injury at the lumbosacral junction with associated right sided sciatica (page 5.6). Dr Bodel said “He also has some pre-existing pathology in the lower part of the back although he has worked in the Fire Brigades since 1973 and it is likely that the pre-existing pathology has arisen as a result of the nature and conditions of his work in the Fire Brigades in general.” (page 6.4). Reading Dr Bodel’s report as a whole, his view is that that pathology in the lumbar spine that pre-dated 24 February 2006 resulted from the nature and conditions of the Respondent Worker’s employment, and the Respondent Worker then suffered injury to the lumbosacral disc on 24 February 2006.
The contents of the MACs, relevant to causation of injury to the lumbar spine, have already been set out above. They are consistent with the proposition the Respondent Worker suffered injury to his lumbar spine, resulting from both the nature and conditions of his employment, and the incident of 24 February 2006. On the medical evidence overall, it is clear the lumbar spine injury results from these two incidents. I make such a finding. It flows from this, that section 322(3) does not apply, as the injuries do not arise out of the same incident. There are two causative incidents. It is unnecessary that I attempt any further apportionment of the cause of the lumbar spine pathology.
Consequently, it was inappropriate that the two impairments, of 6% and 4%, be added together, to permit the Respondent Worker to cross the threshold in section 67(1), allowing the award pursuant to section 67.
DECISION
Paragraphs [1] and [2] of the arbitrator’s decision dated 7 February 2008 are revoked and the following paragraph inserted:
“Award for the Applicant pursuant to section 66 of the 1987 Act in the sum of $7,875 in respect 6% whole person impairment of the lumbar spine and in the sum of $5,000 in respect 4% whole person impairment of the right lower extremity.”
The decision is otherwise confirmed.
COSTS
I make no order as to costs of the appeal.
Michael Snell
Acting Deputy President
27 June 2008
I, EMMA LETHBRIDGE-GILL, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF MICHAEL SNELL, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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