New South Wales Police Service v Westling - [2008] NSWWCCPD 99

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		New South Wales Police Service v Westling [2008] NSWWCCPD 99
APPELLANT:		New South Wales Police Service
RESPONDENT:		Judd David Westling
INSURER:		Allianz Australia Insurance Limited as agent for TMF
FILE NUMBER:		WCC1230-08
DATE OF ARBITRATOR’S DECISION:		9 May 2008
DATE OF APPEAL DECISION:		17 September 2008
SUBJECT MATTER OF DECISION:		Award for pain and suffering pursuant to section 67 of the Workers Compensation Act 1987.
PRESIDENTIAL MEMBER:		Acting Deputy President Anthony Candy
HEARING:		On the papers
REPRESENTATION:		Appellant:	Sparke Helmore Lawyers
Respondent:	Turnbull Hill Lawyers
ORDERS MADE ON APPEAL:		Paragraph 1 of the decision of the Arbitrator dated 9 May 2008 is revoked and the following decision is made in its place: “1. The respondent is to pay the applicant compensation pursuant to section 67 in respect of pain and suffering in the sum of $12,500.00, being one-quarter of a most extreme case.”
Each party is to bear its or his own costs of the appeal.

BACKGROUND TO THE APPEAL

An award was made in these proceedings in favour of Judd David Westling (‘the worker’) for pain and suffering pursuant to section 67 of the Workers Compensation Act 1987 (‘the 1987 Act’) against his employer, the New South Wales Police Service. This body is referred to as the New South Wales Police Force by the worker’s solicitors; however I have adopted the former term since it is used by the employer’s solicitors in documents filed. It is not suggested that anything turns on any such misdescription, if that be the case.
The Certificate of Determination dated 9 May 2008 is as follows:
“1.The Respondent is to pay the Applicant compensation pursuant to Section 67 in respect of pain and suffering in the sum of $16,667.00 being 33.33% of a most extreme case.
2. No order as to costs.”
The worker who was a policeman stationed at Broken Hill was attending a training course at the Goulburn Police Academy in October 2005. On 12 October he became ill and was sent to Goulburn Hospital for treatment. He was complaining of vomiting, dehydration and leg pain. He did not continue with the course and eventually returned to Broken Hill where he saw his general practitioner, Dr John Rolleston, who recommended that he see an orthopaedic specialist in Newcastle, Dr James O’Sullivan.
Dr O’Sullivan’s opinion was that the worker had chronic compartment syndrome of his legs. The worker told him that it came on with exercise and settled with rest. On 7 November 2005 Dr O’Sullivan performed a right and left chronic compartment pressure release operation which involved bilateral incisions to each of the worker’s legs. A claim for compensation was made pursuant to the workers compensation legislation and liability was accepted.
The worker made a claim for compensation pursuant to sections 66 and 67 of the 1987 Act in proceedings WCC 7920-07. The extent of the worker’s permanent impairment was assessed by an Approved Medical Specialist (‘AMS’), Dr Mastroianni, at 10%. On 19 February 2008 an order was made for the payment of this compensation ($12,500) by the employer to the worker. The section 67 claim however could not be pursued because the employer successfully objected to the late service of a statement by the worker which dealt with this issue. It was for that reason that the present proceedings, WCC1230-08, were issued on 21 February 2008. It should also be noted that no order for costs in the present proceedings was made because the Arbitrator considered that the worker’s solicitors ought to have been in a position to proceed with the section 67 claim in the prior proceedings.
By application filed on 2 June 2008 the employer seeks leave to appeal against the Arbitrator’s determination.

ON THE PAPERS REVIEW

Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.

LEAVE TO APPEAL

Monetary Threshold

There is no dispute between the parties that the monetary thresholds specified in section 352(2) of the 1998 Act are satisfied.

Time

The appeal was filed within twenty-eight (28) days of the Arbitrator’s decision in accordance with section 352(4) of the 1998 Act.
Accordingly, leave to appeal is granted.

ISSUES IN DISPUTE

The issues in dispute in this appeal are whether the Arbitrator erred in:
(a) not exercising common sense and judgment in awarding the sum under section 67;
(b)awarding the worker such sum as was not reasonably proportionate to the maximum amount having regard to the degree and duration of pain and suffering and the severity of permanent impairment pursuant to section 67(3) of the 1987 Act;
(c)failing to apply the principle that pain and suffering of a quadriplegic is considered to be a most extreme case;
(d)failing to limit the compensation awarded to “actual pain, distress or anxiety” resulting from the worker’s diminished abilities.

REVIEW

By section 352(5) of the 1998 Act an appeal to a Presidential member is to be “by way of review of the decision appealed against”.
Initially the view was taken in the Commission (see Mayne Health Group v Sarah Sandford [2002] NSWWCCPD 6) that a Presidential member was limited in an appeal under section 352 to dealing with errors of fact, law and discretion relying on the decision of the High Court in Allesch v Maunz (2000) 203 CLR 172. The Court of Appeal has however cast some doubt on the correctness of this and Deputy President Roche has collected and summarised the authorities in his decision in Ranvet Pty Ltd v Vasilevski [2008] NSWWCCPD 81. I gratefully adopt that summary which appears at [55] of that decision:
“(a)a review is not a hearing de novo (per Clarke JA in Atamian [Cockatoo Dockyard Pty Limited v Atamian (1995) 12 NSWCCR 114] at 124 and Gleeson CJ (Handley JA agreeing) in Litynski v Albion Steel Pty Limited (1994) 10 NSWCCR 287 at 292F);
(b)a party seeking a review under section 352 must set out the grounds on which the Presidential member will be asked to review the Arbitrator’s decision (per Clarke JA in Davies [State Rail Authority of NSW v Davies (1995) 11 NSWCCR 314] at 323A), and must demonstrate ‘some proper basis for disturbing the decision under challenge’ (per Kirby P in Watson [Watson v Hanimex Colour Services Pty Ltd (1991) 8 NSWCCR 190] at 205D) before a Presidential member will disturb an order made by an Arbitrator;
(c)a review on the merits is a different process to an appeal and the matters which may be considered and the manner in which they are considered are somewhat wider and a matter for the discretion of the Presidential member (per Bryson JA in Zheng [Aluminium Louvres & Ceilings Pty Limited v Zheng [2006] NSWCA 34; (2006) 4 DDCR 358] at [38]), but the powers on review are not so wide as to treat the primary decision as if it did not exist (per Meagher JA in Samuels [Australian Gas Light Co v Samuels (1993) 9 NSWCCR 616] at 625E);
(d)a Presidential member conducting a review under section 352 must decide whether the original decision is wrong, or must decide what is the true and correct view (per Spigelman CJ in Chemler [State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249; (2007) 5 DDCR 287] at [30]);
(e)it is not open on review for a Presidential member to disregard an Arbitrator’s credit based findings, where those findings are based on oral evidence (per Handley and Meagher JJA in Samuels; Clarke JA (Meagher and Handley JJA agreeing) in Davies at 322D and Clarke JA in Atamian at 127D), but such findings are not immune from challenge (Fox [Fox v Percy [2003] HCA 22; (2003) 214 CLR 118] at [28] and [29] and Whisprun [Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 200 ALR 447; (2003) 77 ALJR 1598] at [98] and [99]);
(f)subject to the nature of the grounds relied on by the parties seeking a review and subject to the question of credit based findings where oral evidence has been given, it is open to a Presidential member to form his or her opinion on the questions submitted for consideration (per Clarke JA (Meagher and Handley JJA agreeing) in Davies at 322D: Clarke in Atamian at 127G);
(g)if the Presidential member considers that the Arbitrator’s decision is correct, the Arbitrator’s decision will be confirmed (per Clarke JA in Atamian at 124 and Spigelman CJ in Chemler at [30]);
(h)if the Presidential member considers the decision is ‘wrong’ (per Spigelman J in Chemler at [30]), the decision will be revoked and will either be re-determined by the Presidential member or remitted for re-determination by the same or a different Arbitrator, in the Presidential member’s discretion according to the circumstances of the case (per Santow JA in Chubb Security Australia Pty Ltd v Trevarrow [2004] NSWCA 344 at [28]), and
(i)if the decision is ‘marred by one or more errors’ the Presidential member will, depending on the nature of the error, and his or her view of what the correct decision should be, either confirm or revoke the order made and make an appropriate order in its place (per Clarke JA in Atamian at 124).”
Since the date of that decision, 31 July 2008, the Court of Appeal has delivered a judgment which also deals with this question. This is the matter of Tan v National Australia Bank Ltd [2008] NSWCA 198. In that case Basten JA (with whom Bell JA agreed) said this in relation to the question of a review at [9] to [12]:
“9     A primary feature of the appeal provided by s352 is the degree of control placed in the presidential member with respect to both the availability of the appeal and the manner in which it is to be conducted. Thus the appeal only lies with leave of a presidential member: s352(1). Leave may not be granted where the amount in issue is less than $5,000 and the proportion of the award in issue is less than 20%: s352(2). Once those factors are established, there is no express guidance in the statute as to what other matters might affect the grant of leave and in the present case, subject to questions of timely filing of documents, leave appears to have been granted to both parties as a matter of course.   The appeal is described as being ‘by way of review’: sub-s(5). The section further provides that other ‘evidence’ may not be given on the appeal except with leave of the Commission: sub-s(6). The reference to ‘evidence’ is to be understood in a broad sense, as the Commission is not bound by the rules of evidence and may inform itself in such manner as it thinks appropriate: s354(2). Finally, the powers of the Deputy President on appeal permit the confirmation, revocation and remittal of the decision of the arbitrator and the making of a new decision in its place: s352(7).
10     Where an appellate tribunal has power to hear further evidence, the appeal will commonly be one by way of rehearing, which requires determination of the appeal in accordance with the facts and law as they appear to the appellate tribunal. If the facts presented, or law applicable, on the appeal differ from those considered at the first hearing, it may seem inappropriate to say that the original decision-maker has erred; rather, it may be preferable to describe the decision as erroneous. An example may be found in Western Australia v Ward [2000] HCA 28; 213 CLR 1 where a particular ‘error’ arose from statutory amendments which came into effect after the judgment was delivered; see [65]-[71].
11     Where the statute refers to an ‘appeal’, as opposed to a review, it may be intended that the appellate tribunal could vary or discharge the decision below only if satisfied that it was affected by a relevant error. However, the concept of an ‘appeal’ does not necessarily invoke the precondition of a finding of error: an appeal may be by way of hearing de novo, where ‘the matter is heard afresh and a decision is given on the evidence presented at that hearing’: Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; 203 CLR 194 at [13]. Furthermore, as noted in McKee v Allianz Australia Insurance Ltd [2008] NSWCA 163 at [64], the term ‘review’ may connote a fresh consideration of a matter, without the need to find error before setting aside or varying the decision below. But even in a hearing de novo the appellate tribunal will not necessarily disregard conclusions reached by the original decision-maker. Constraints may arise at various stages. First, in deciding the primary facts, the appellate tribunal may defer to findings made by a decision-maker who has resolved conflicts in the course of hearing and assessing oral testimony. In such a case, the appellate tribunal which does not hear the witnesses, will be constrained to approach the findings in a matter similar to that described in Fox v Percy [2003] HCA 22; 214 CLR 118. Secondly, the appellate tribunal may be constrained in drawing inferences, not having seen the witnesses, but to a lesser extent for reasons analogous to those identified in Warren v Coombes [1979] HCA 9; 142 CLR 531 at 551, despite there being no need to find error. Thirdly, a similar constraint may arise in relation to the exercise of a discretionary power, again recognising that the appellate tribunal may not be required to find error: cf House v The King [1936] HCA 40; 55 CLR 499 at 505.
12     The fact that the term ‘appeal’ may refer to a hearing de novo, the fact that the appeal is described as one ‘by way of review’, together with the largely unlimited discretion conferred on the Deputy President as to the manner in which the appeal will be conducted and the broad powers, including the power to make a ‘new decision’ in place of that subject to appeal, all tend to confirm that the Deputy President may conduct a fresh hearing and is not constrained to intervene only if satisfied that the decision of the arbitrator was affected by identifiable error. There is no need to consider the constraints on the Deputy President which may arise from the circumstance that the arbitrator made findings based on credit in respect of oral testimony, where witnesses were not recalled on appeal.”
In the same case Young CJ in Eq. took a somewhat different view of an appeal pursuant to section 352 of the 1998 Act. He said this:
“60 Both parties appealed the determination of the arbitrator under s352 of the WIM Act. In an appeal to the Commission constituted by a presidential member from an arbitrator’s decision, the question to ask is whether the arbitrator erred, either by way of law, fact or discretion: see Allesch v Maunz (2000) 203 CLR 172 at 180. If such an error is established, and it is such that, but for it, a different decision would have been made, the presidential member determining the appeal may revoke the arbitrator’s decision and substitute a different reason for it, or may remit the matter to the arbitrator concerned or a different arbitrator for determination in accordance with any decision or directions of the Commission: see s352 (7) of the WIM Act.”
The decision of the Court of Appeal referred to above and the summary by Deputy President Roche in Ranvet are relevant to the determination of this appeal.

EVIDENCE

Before dealing with the Arbitrator’s reasons for decision it is necessary to set out briefly the evidence which was before him. This consisted mainly of medical reports with some additional documents and a statement from the worker. The worker did not give evidence at the hearing before the Arbitrator nor is it apparent from the transcript that the Arbitrator viewed the worker’s scarring. There were however some photographs to which I will later refer.
Dr O’Sullivan, to whom I have earlier referred, saw the worker on 31 October 2005. The worker’s complaints were that he was getting pain in the deep posterior compartment in the area of the medial tibia of each leg. He said his training and work was being compromised because of his ongoing pain. He was at risk of losing his position in the elite squad to which he belonged and he was worried about that. The doctor found tightness of the worker’s hamstring and calf muscles and carried out surgical release of all compartments of both legs. The doctor reviewed the worker post-operatively on 23 November 2005 and found that he had quite a deal of pain which he thought was consistent with the operation. He removed the clips from the wounds which had healed except for the left leg medial wound. On 17 January 2006 Dr O’Sullivan again reported saying that the worker’s left leg was doing well but his right leg was weak and uncomfortable about the ankle. He was happy for the worker to return to work on restricted duties initially and then to full duties with time.
Professor Ghabrial, orthopaedic and spinal surgeon, was asked to examine the worker by his solicitors and did so on 20 July 2007. The worker told this doctor that his symptoms had improved following surgery but he continued with residual symptoms in the form of ache and some weakness in both legs. He was managing his work but performing office duties rather than his pre-injury duties in the special service squad. Professor Ghabrial found that the worker had normal extension to the right ankle but poor flexion in each ankle. There were sensory changes around the scars on both legs as well as sensory changes in the left foot consistent with the sural nerve as well as the common peroneal nerve. There was absent sensation on the dorsum of the right foot consistent with the sural nerve and common peroneal nerve. In a separate report Professor Ghabrial made an assessment of whole person impairment.
Dr Hunter JH Fry, a plastic, reconstructive and hand surgeon saw the worker on 25 July 2007. Dr Fry obtained a history that the worker had joined the New South Wales Police Force five years before and that he was a keen sportsman having played as a professional footballer (rugby league) as well as water skiing, jogging and bike riding. The worker told the doctor he had represented the police in Australia in these competitive activities. The worker had returned to police work some four months after the operation but had to transfer to a different unit which was not so vigorous. The worker’s complaints were of pain and swelling of the legs with activity; he said he used to run 15 kilometres per day but now he could barely run two kilometres. The worker said he wore skins which exerted a little external pressure on the legs. Basically the worker said he was not able to do things which were at all vigorous. He was embarrassed about his scarring and did not wear shorts. Dr Fry’s particular interest was in the scarring which the worker had. He noted on the left side there was a 10 cm fine scar on the outer side and a 12 cm scar which had spread to a maximum of 5 mm on the inner side. On the right side there was a 14 cm scar which was depressed and slightly adherent and spread to a maximum of 3 mm and on the inner side a 10.5 cm scar which was faint and also spread to a maximum of 3 mm. This was said to be slightly depressed and non-tender. Dr Fry described the four scars as being of good quality and depicted in clinical photographs attached to his report which were not, however, in evidence in these proceedings although they were in the earlier proceedings. There are in the current proceedings 39 photographs some of which were apparently taken shortly after the surgery was performed showing the incisions secured by a surgical staples and some later showing dressed wounds on the worker’s legs. It is unclear why the six photographs of the worker’s residual scarring referred to by Dr Fry were not relied on in these proceedings. Dr Fry also made an assessment of whole person impairment relative to his specialty and described the scars as follows:
“The scarring is incorporated into body image. The scarring, itself, is not particularly obvious. The scarring has significance for him.
It may be seen at close quarters if it is exposed, for instance wearing shorts or swim wear, but would not normally be seen with long trousers. It is not particularly eye catching. The scarring is for the most part faint, slightly depressed along their lengths, only one scar shows any tendency for adherence and the contrast is in general low with the surrounding skin.
The scars are not symptomatic and not associated with the functional loss from the scars per se.
It is doubtful however whether the reasonable person would regard the scarring as being truly disfiguring. However this may not be an absolute judgment.”

The AMS examined the worker on 14 December 2007. Under the heading “Social Activities/ADL” of his Medical Assessment Certificate of 24 December 2007, that doctor has recorded:
“He recently separated and has a six year old child. He has moved back with his parents, and lives in a granny flat. His mother helps with general domestic activities. He is independent in self-care.
Prior to his injury he says he was a very active sportsman. He played league and represented Australia in the Police League. He enjoyed cycling, water skiing, golf, swimming and running. He says that prior to his injury he used to run 10 kilometres every day.”
That doctor’s findings on physical examination were as follows:
“He walks with a normal gait. He can walk on his toes but on heel walking he is a bit unsteady saying his legs are weak. He squats normally but gives the impression to struggle when returning to the erect position. He is unable to do so without support.
Examination of the legs reveals scarring consistent with fasciotomies. Both legs have scars medially and laterally. The medial scars on both legs measure 12 cm and the lateral scars 14 cm. In the left leg the medial scar is slightly depressed and spread 1 cm. The lateral scar is a fine linear scar and not as noticeable.
On the right leg the scars are slightly spread with no keloid formation and no significant colour contrast to the surrounding skin.
The calf muscles bilaterally were supple with discomfort on firm palpation. The right calf was slightly smaller than the left in the order of 1 cm. There was no obvious muscle wasting in either calf. Knee movements were normal bilaterally as were the ankle movements. There is altered sensation over the anterolateral aspect of both legs, the right greater than the left. There is Grade 4 weakness in plantar flexion in the right foot and Grade 5 power in the left foot.”
The AMS additionally noted that the worker continued to take medication for pain relief as well as sleeping tablets and antidepressants. The worker complained of depression and said he had a lot of cramping. He complained also of weakness and numbness in his legs. He attended physiotherapy once or twice a week.
In a statement of the worker dated 15 October 2007 he said that he was born on 20 September 1973 being then 34 years of age. In addition to general duties work in the police force he was also part of the State Protection Support Unit. After dealing with the circumstances of the injury the worker described the pain after surgery as being so severe as to be unbearable on some days. He was in hospital for two weeks and then commenced a rehabilitation program, including physiotherapy, hydrotherapy and acupuncture. He said that any activities such as running, standing or sitting for long periods would cause a return of symptoms. At the time of his injury he had also been employed casually by the New South Wales Fire Brigade and had not been able to return to that employment. He said he was transferred to Sydney to a different unit where the work was not so vigorous and intense becoming an instructor for the State Protection Unit. He said he was not operational and never would be. He was unable to perform the normal duties of a police officer and would be unable to pursue an offender if required. He had been attending sports focus physiotherapy since 18 May 2006. In August 2006 while involved in the training of new recruits at Goulburn his legs started to cramp and cause him pain and discomfort because of the low temperature there and he was required to purchase protective skins for his legs. In 2004 he had been named in a country team for the Australian Police Rugby League Championships and at that competition a side was named to play international matches in Argentina in which he was included. Since his injury he had been unable to return to rugby league and had not played again professionally or socially. He said he had also enjoyed water skiing, jogging and bike riding. He had not been able to water ski since the injury but could jog a maximum of 2 kilometres before pain returned.
He said that he continued to suffer the following symptoms and disabilities:

“• Constant pain and swelling in both legs

• Intense cramping

• Numbness and pins and needles

• Pain in my Achilles tendon

• Restricted movement and tenderness

• Inability to stand for lengthy periods of time

• Inability to sit for lengthy periods of time

•Significant scarring to both legs which causes embarrassment only do [sic] I have trouble wearing shorts, I am self-conscious and now have tattoos on my legs to hide the scars

•Numbness and pain around the scar area including discolouration

•Inability to participate pre-injury social and recreational activities including rugby league, running, water skiing

•Depression

•Separation from his [sic] wife due to depression/stress and inability to cope with injuries and effects injury had on life

•Difficulties running around and playing games with daughter

•Difficulties with sexual intercourse – suffer from severe cramps

•Difficulties sleeping and on occasions require sleeping tablets to assist.

•Inability to return to pre-injury employment. Had aspirations to progress further within the New South Wales Police Service and now only able to perform general office duties.

•Loss of motivation

•Inability to mow lawns and perform some general maintenance around the home.

•Feelings of worthlessness

•Constantly frustrated, angry and generally dissatisfied with direction my life has now taken since the injuries.”

The employer relied on two medical reports. The first was that of Dr James Bodel, an orthopaedic surgeon, who examined the worker on 4 October 2007. The worker told Dr Bodel that he had been transferred to Sydney where he became an instructor with the State Protection Support Unit. He said he was not however operational. He was later transferred to work as a weapons trainer. He was able to do this work but said he could not do the work of the State Protection Support Unit nor general duties policing if he had to pursue an offender. He said he could run for about two or three kilometres maximum without causing a return of his symptoms. His complaints were of pain in the anterolateral aspect of both shins. Prolonged standing or walking or running more than 3 kilometres aggravated the pain. He said he used to enjoy waterskiing and golf but had not returned to those activities. He was also involved in playing rugby league for the Australian Police side and also played touch football.
On examination of the worker he was seen to stand erect and walk without any evidence of a limp. There was no wasting or deformity. The doctor thought the scars were well-healed and barely perceptible. He noted there was some altered sensation over the anterolateral aspect of both legs, the right a little worse than the left in the distribution of the common peroneal nerve. There was clinical evidence of grade IV weakness in the right leg in ankle plantar flexion but all other movements were of normal strength. There was no demonstrable weakness in the left lower extremity. The sensory loss he thought was in the distribution of the common peroneal nerve which was grade IV sensory loss.
An Adelaide orthopaedic surgeon, Mr Munyard, examined the worker at the request of the employer while he was still stationed at Broken Hill on 21 December 2005. He told Dr Munyard that since his discharge from hospital his legs were gradually improving. He was due to see his general practitioner the following day and the planned date of return to work was 22 January 2006. His legs had improved, although he still took Panadeine Forte, Mobic, Naprosyn and sometimes Endone. He said he was running in the pool and rode his bicycle every day but had not started running or jogging.

ARBITRATOR’S STATEMENT OF REASONS FOR DECISION

The relevant part of these reasons is quite short and, accordingly, I will set it out in full:
“25.In respect of the photograph depicting the condition of the Applicant’s legs post surgery I agree that they are helpful in endeavouring to assess the extent of the Applicant’s pain and suffering post surgery. I also accept that the Applicant said at paragraph 13 of his statement of 15^th October 2007 that he remained in hospital for two weeks instead of the scheduled three days and that the pain was so severe on some days it was unbearable.
26.I also accept the Applicant was a man who took pride in his physical fitness and who was justifiably proud of the achievements he had made in representing the Australian Police in Rugby League. I am satisfied that his current impairments prevent him from following those activities which is a significant loss as is his ability to undertake water skiing, jogging and bike riding.
27.I also accept that these restrictions in turn would cause distress and anxiety pursuant to section 67(7), as they arise from the permanent impairment and they also take into account his ongoing need to take pain killers, antidepressants and sleeping tablets as being necessary treatment. This is likely to be ongoing and it conforms to the definition of pain and suffering under section 67(7).
28.I agree with Counsel for the Respondent that although the Applicant has undoubtedly separated from his wife, there is not sufficient material before me to determine whether or not there is a causative relationship as asserted by the Applicant ‘due to depression, stress and inability to cope with injuries and effects of injury had on life’.
29.In any event it appears to me that even if such a causative link were found the Applicant’s problems ‘due to depression, stress and inability to cope with injuries and effects of injury had on life’ are not matters which resulted from impairment as required by Section 67(2).
30.I find that the Applicant is self-conscious about his scarring, which is significant, to such an extent that he has had areas of the scarring tattooed in an attempt to disguise it.
31.The Applicant undoubtedly has had significant pain and suffering initially leading to serious operations and a very painful stay in hospital. It has totally changed his self-image as a fit, physical man and he continues to have significant physical problems which will be ongoing for the rest of his life. The impairment from which hew [sic] now suffers has clearly caused him distress and anxiety.
32.Under all the circumstances it appears to me that an Award of one-third of a most extreme case for pain and suffering is appropriate under the circumstances.”

SECTION 67 GENERALLY

The concept of compensation for pain and suffering was introduced into workers compensation legislation by the 1987 Act. As a trade-off for the loss of a worker’s common law remedies against his employer, increased benefits for losses were provided by section 66 of the 1987 Act compared to those in section 16 of the 1926 Workers’ Compensation Act and, in addition, section 67 provided for compensation for pain and suffering. The history of this is set out in the judgment of Kirby P (as he then was) in Jones Bros Bus Co Pty Ltd v Baker (1992) 26 NSWLR 322; 8 NSWCCR 30 (‘Jones Bros’). Section 67 as originally enacted was in the following terms:
“67.(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 $40,000.
(2) This section does not apply if the compensation paid or payable under section 66 for the loss or all of those losses is less than 10 percent of the maximum amount from time to time referred to in that section.
(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.
(4) The amount of compensation payable under this section in any particular case shall, in default of agreement, be determined by a commissioner.
(5) Compensation under this section is not payable after the death of the worker concerned.
(6) Where by the operation of Division 6 the amount of $40,000 is adjusted, the compensation payable under this section shall be calculated by reference to the amount in force at the date of injury.
(7) In this section –
‘pain and suffering’ means –
(a) actual pain; or
(b)distress or anxiety,
suffered or likely to be suffered by the injured worker, whether resulting from the loss concerned or from any necessary treatment.”
Section 67 has given rise to considerable judicial comment. Mahoney JA ( as he then was) said the following concerning section 67 in Alvorac General Engineering Pty Ltd v Arlotta (1993) 9 NSWCCR 177 at184 (‘Alvorac’) :
“Section 67(7) says that ‘pain and suffering’ ‘means’ ‘actual pain’ or ‘distress or anxiety, suffered or likely to be suffered …’. The use of ‘means’ indicates, in my opinion, that the definition is an exhaustive definition unless the context otherwise requires; Interpretation Act 1987, section 6.
That definition, if construed literally, would not comprehend all of the matters conventionally included in an award of general damages in common law proceedings. Thus, so construed, it would not comprehend damages awarded for loss of amenities in the sense of, e.g., loss of the enjoyment of playing sport, pursuing a hobby, listening to music or conversation or the like. It would be possible, by giving a broad meaning to ‘suffering’ or ‘anxiety’, to include most if not all of these matters. But the use of an exhaustive definition and the limited terms of that definition suggest that the compensation to be awarded under section 67 was intended by the Legislature to be narrower than those deficits for which general damages are conventionally awarded. The exact scope of the definition will require consideration in subsequent cases.”
The requirement in section 67 that compensable pain and suffering should be limited to that resulting from the loss or losses has attracted particular judicial attention. Mahoney J in Glennos Constructions Pty Limited v Beccari (CA 40561/91, 1 October 1993 unreported) (‘Glennos’) made the following further statement in relation to section 67:
“The damages which may be granted under s67 of the Workers Compensation Act 1987 are limited. Damages may be given only for ‘pain and suffering resulting from the loss’ there referred to, namely, ‘a loss mentioned in the Table to’ the relevant part of the Act. If a worker has pain and suffering resulting partly from a Table loss or partly from a loss not referred to in the Table, there must in principle be a dissection; he can be given damages for the former but not for the latter. This was referred to in Concrete Constructions Group Pty Ltd v Nelson (Court of Appeal, 5 April 1993 unreported [(1993)9 NSWCCR 213]).
The distinction may be artificial but it is obviously the result of a policy decision to limit the operation of s67. I see no alternative, consistent with the terms of the Act, to the dissection of the pain and suffering in this way. In some cases, the dissection may be so artificial as to make the process seem lacking in credibility. If the policy of limiting s67 in this way is to be maintained, it would, I think, be appropriate for the Act to be amended to enable a result more functionally satisfactory to be achieved.”
Although this section has been amended to some extent since its original enactment, it would appear that the amendments made do not address the comments made by Mahoney JA in Glennos.

Burke J in Cooper v Gollel Holdings Pty Ltd (1990) 6 NSWCCR 54 (‘Cooper’) considered that the words “resulting from the loss” in section 67 should be read as meaning “resulting from (the injury resulting in) the loss” and gave examples of extraordinary and incongruous results if it were otherwise. The Court of Appeal (Mahoney, Clarke and Meagher JJA) in Borovac v Corporate Ventures Pty Ltd (1995) 12 NSWCCR 84 adopted a view of section 67 which was more favourable to the worker than the trial judge, McGrath CJ, had taken. His Honour had awarded a lesser sum for pain and suffering resulting from the loss than he would have awarded for the total pain and suffering resulting from the injury. Clarke JA said at 95 that “The fact that it was not possible to measure the extent of the permanent impairment prior to the operation presents no reason for denying compensation for pain and suffering at an earlier time.” Mahoney and Meagher JJA agreed. This decision went some way to meeting the concerns earlier raised by Mahoney JA. However, after this case was decided on 8 August 1995, the legislature amended section 67 to add a new subsection (1A) which is substantially reproduced in subsection (2) of the current legislation. Following this amendment, Armitage J in Selimovic v Airfoil Registers (Sales) Pty Ltd (1999) 18 NSWCCR 143 held, relying on what had been said by the Minister in his Second Reading Speech, that the amendment merely reinforced the existing law rather than reversing it. I do not share his Honour’s view of the legislative intent.

There are no fewer than three references to “pain and suffering resulting from the permanent impairment” in Section 67; in subsections (1), (2) and (7). The question arises whether pain and suffering resulting from necessary treatment, referred to in subsection (7), must also result from the permanent impairment in order to be compensable by reason of the terms of subsections (1) and (2).

The section presently provides:
“67(1) 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 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.
NOTE: Section 65A provides that pain and suffering compensation for permanent impairment arising from psychological injury is not payable unless the injury is a primary psychological injury (as defined in that section) and the degree of permanent impairment arising from the injury is 15% or more.
(2) Because there is a distinction between injury and impairment resulting from an injury (and compensation is payable under this section only for pain and suffering resulting from impairment), the pain and suffering for which compensation is payable does not include pain and suffering that results from the injury but not from the impairment.
(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 permanent impairment.
(4) The amount of compensation payable under this section in any particular case shall, in default of agreement, be determined by the Commission.
(5) Compensation under this section is not payable after the death of the worker concerned.
(6) If an amount mentioned in this section at any time after commencement of this Act;
(a)       is adjusted by the operation of Division 6; or
(b)       is adjusted by any amendment of this section,
the compensation payable under this section is to be calculated by reference to the amount in force at the date of injury.
(7) In this section –
pain and suffering means –
(a)       actual pain; or
(b)       distress or anxiety,
suffered or likely to be suffered by the injured worker, whether resulting from the permanent impairment concerned or from any necessary treatment.”

Commissioner Wright summarised factors and principles to take into account in determining a section 67 award in Tyler v Marsden Industries (2001) 22 NSWCCR 644 at 650. I note that the President of the Commission, Judge Keating, has referred to this summary with approval in NSW Police Service v Snape [2008] NSWWCC PD 89 as has Acting Deputy President Roche (as he then was) in Ilic v Aldus Engineering Pty Ltd [2006] NSWWCCPD 157. The passage in question is as follows:
“14.There are a number of factors and principles to take into account in determining an appropriate amount under s67:
¨Pain and suffering awards under s67, unlike the objective criteria in s66 awards for physical loss impairment, must take into consideration the actual individual experiences of the claimant, as to his or her past and future pain and suffering.
¨The measure of the most extreme case must be compared with the measure of a most extreme case and does not need to make a comparison with the most extreme case.
¨The pain and suffering must result from the loss or impairment not merely the injury (s67(1A)): see Scrimshaw v SAR Wood Pty Ltd (1997) 14 NSWCCR 335.
¨Pain may be compensated even if the extent of the loss and its effects are not assessable until a later date; see Selimovic v Airfoil Registers Pty Ltd (1999) 18 NSWCCR 143.
¨Pain and suffering is compensable from the date of the compensable injury and not merely from the date on which the loss or impairment is crystallised: see Rico Pty Ltd v Road Traffic Authority (1992) 8 NSWCCR 515; Corporate Ventures Pty Ltd v Borovac (1995) 12 NSWCCR 84; Bohanna & Appleton v Bohanna (1996) 13 NSWCCR 724.
¨There is no necessary relationship between the loss or impairment and the intensity and duration of the pain and suffering. If an award is excessive upon a review of all the circumstances, an award may be overturned on the basis of falling outside the range of a sound discretionary judgment: see Ainsworth Nominees Pty Ltd v Crouch (1995) 11 NSWCCR 640.
¨The age of the claimant is relevant. In Regal Paints Pty Ltd v Wasson (1993) 9 NSWCCR 301, the Court of Appeal observed (Priestley JA at 306C) that the younger a person is at time of injury (loss) the greater is the chance that the worker would get into an extreme case category but each case has to be looked at on its own merits due to the potential for the same injury to affect different workers differently. The Court of Appeal reiterated in Ainsworth Nominees Pty Ltd v Crouch (Kirby A–CJ at 652F) that age was a relevant consideration because age at injury had implications for the expected duration of any pain and suffering.
¨Distress caused by interference with social activities (Department of School Education v Boyd (1996) 13 NSWCCR 289) or by the effects of the compensable injury on a worker’s relationships including marriage (Pacific Dunlop Ltd v Krivec (1996) 13 NSWCCR 353) can be relevant.
¨Objective factors may include the type of surgical procedures undergone, the nature of the convalescent process and any complications flowing there from as well as the need for medication and difficulty with sleeping (Dubbo Base Hospital v Harvey (1996) 13 NSWCCR 545).”
While the decision by Wright C does provide a very useful starting point in considering what is a proper award under section 67, I would not wish to be understood as agreeing with every proposition stated. In particular, the Court of Appeal in Harvey, (Beazley JA, Handley and Sheller JJA agreeing) referred to the worker’s being on a regimen of strong medication, inter alia, as an objective factor to be considered in the assessment of a proper figure under section 66 for the impairment of the worker’s back, which had at that time to be decided by a judge of the Compensation Court, rather than being relevant to an assessment under section 67. Of course the need for pain relief by way of medication does point to there being pain. Apart from this, unless there is some evidence that need for or the administration of medication causes pain, distress or anxiety, I do not think that it is proper to have regard to it when considering section 67. The reference in section 67(7) to “necessary treatment” is in the context of pain, distress or anxiety suffered or likely to be suffered resulting from such treatment. I now turn to the submissions made in respect of the grounds of appeal.

SUBMISSIONS, DISCUSSION AND FINDINGS

The employer’s submissions deal with the first three grounds together. Essentially, it is said that the award was excessive. Relying upon the decision of the Compensation Court in Galley v Pasminco Mining Limited (1993) 9 NSWCCR 288 at 97 it is said that the Arbitrator did not exercise common sense and judgment. The particular statement relied on appears at page 297 of the judgment of Johns J and it is as follows:
“In my view, when assessing pain and suffering pursuant to the provisions of section 67, the same approach to the assessment of damages for personal injury is to be applied in that its resolution involves questions of fact and degree, matters of opinion, impression, speculation and estimation calling for the exercise of commonsense and judgment (Dell v Dalton [(1991) 23 NSWLR 528]).”
It is hardly necessary to cite authority in support of this proposition.
It is further submitted that the worker’s treatment and symptoms are minor compared to those of a quadriplegic and that the sum awarded is not reasonably proportionate to the maximum amount having regard to “the degree and duration of pain and suffering and the severity of permanent impairment” (section 67(3)). The submission is made that an award of one-third of the maximum sum under section 67 is excessive given that the worker only received 10% permanent impairment which is the minimum assessment pursuant to section 66 entitling him to compensation for pain and suffering. It is pointed out that the worker was able to return to full-time work, was able to ride his bike and perform exercise in the pool shortly after the operation and was still able to run two to three kilometres per day. It is said that the worker only became symptomatic after prolonged activity and his scars were non-symptomatic. The employer relies on the finding by the Arbitrator at paragraphs 26 and 27 of his reasons that the worker was unable to undertake water-skiing, jogging and bike riding whereas Mr Munyard had obtained a history on 21 December 2005 that the worker began bike riding shortly after his operation and a number of doctors had recorded that the worker still ran up to three kilometres per day.
Government Supply Department v Abbott (1993) 9 NSWCCR 276 (‘Abbott’) was a decision of the Court of Appeal in which Meagher JA gave the judgment with which Mahoney and Sheller JJA agreed. The trial judge had awarded a sum under section 16 representing half of the maximum available. On appeal, his Honour took the view that a quadriplegic was a most extreme case and, comparing the worker in that case with a quadriplegic, the pain and suffering must have been much less than one-half. The Court of Appeal substituted a figure of $10,000 representing one-quarter of the maximum available. Subsection (3) uses the indefinite article before the words “most extreme case” rather than the definite article. There is a class of “most extreme” cases to which a quadriplegic belongs. It is not necessary to be a quadriplegic in order to obtain the maximum sum under section 67 nor is that the sole point of reference by which other entitlements are measured.
The worker relies on the complaints made by him in his statement as to the symptoms which he suffered. Accordingly, it is said that the award made by the Arbitrator was consistent with sound discretionary judgment. The worker says that he has significant scarring to both legs which causes him embarrassment and also suffers numbness, discolouration and pain around the scar areas. The worker is severely restricted in his pre-injury activities, although not totally restricted. Attention is drawn to the worker’s age and life expectancy and it is said that, once the threshold contained in section 67(2) has been reached, a determination of the award under section 67 is completely independent of the assessment made under section 66. The worker relies on the authorities of Staker v North Broken Hill Pty Ltd (1992) 8 NSWCCR 332 and Jones Bros as authority for the proposition that there is no necessary proportion between awards under section 66 for permanent impairment or loss and under section 67 for pain and suffering
In Staker McGrath CJ held that section 67 was completely free of section 66 once the relevant threshold has been reached. In Jones Bros Kirby P said the following at 46:
“There is no necessary proportion, or even relationship between awards for permanent impairment or loss (on the one hand) and for pain and suffering (on the other). It is by no means unusual for a high percentage impairment or loss of a limb to have consequences for pain and suffering which are less significant; and vice versa.”
Section 67(3) does provide for regard to be had to “the severity of the permanent impairment” as well as “the degree and duration of the pain and suffering” and I do not think that the former words can be ignored. My view is that there is no automatic correlation between the impairment found in relation to section 66 and the proportion of the maximum sum awarded under section 67 but, as was pointed out by Burke J, in Cooper at 66: “The more severe the loss the more the worker is likely to suffer, the more there will be interference with his day-to-day living; the more frustration and distress he will experience. The severity of the loss is patently a factor to be used as a guide in making an assessment under the provision.” Thus, it is, I think, proper to have regard to the assessment of the permanent impairment while regard must be had to the subjective pain, distress or anxiety suffered and to be suffered by the particular injured worker in awarding a sum under section 67. I take the reference by Kirby P in Jones Bros to “pain and suffering” to be, predominantly, actual pain as opposed to distress or anxiety experienced by a worker as a result of his loss or impairment. Abbott does also lend some support to my view, in that quadriplegia, a case of maximum loss or impairment, is taken to be a “most extreme case” so far as section 67 is concerned although there may be little actual sensation of pain but a maximum of frustration, distress and anxiety by reason of the impairment.
It seems to me that the question to be asked in connection with the first three grounds of appeal is whether the award under section 67 is outside the proper range on the facts of the case and in accordance with the legislation and the authorities. In relation to awards under section 67, there is room for the exercise of a degree of discretion in the amount awarded. This should be contrasted with the position regarding section 66 where there is a definite figure for impairment which, in default of agreement, is arrived at by the AMS appointed to do so.
The Court of Appeal has shown a reluctance to interfere with awards under section 67 in general, relying upon the approach taken by it to reviews of awards of damages at common law and having regard to its decision in Moran v McMahon (1985) 3 NSWLR 700 (‘Moran’). Mahoney JA in Alvorac at 189 said this:
“I do not think that the principles for the review of a common law judgment are congruent with those governing a review of an award under section 67 but assistance may be gained from what the Court said in Moran v McMahon.”
Kirby A-CJ in Ainsworth Nominees Pty Ltd v Crouch (1995) 11 NSWCCR 640, at 650, said the following:
“This Court must be extremely cautious in interfering with assessments of this kind [section 66]. This is because of the quasi-discretionary nature of such assessments. See Moran v McMahon (1985) 3 NSWLR 700 at 707. It is out of respect for the primacy of the trial judge and the experience which judges of the Compensation Court derive from determining many more of these cases than this Court does. Allowing a large leeway to judges of the Compensation Court in such matters involves not only the application of general principles of appellate restraint but a recognition of the inherently nebulous and indeterminate nature of the task involved in assigning a case to a point on a scale which, to some extent at least, is arbitrary.”
That case was concerned with the assessment of impairment of a back which had been reached by a trial judge. This was a similar exercise to the determination of an appropriate figure under section 67 for pain and suffering. In Moran Kirby P, at 707, put forward a number of arguments in support of a particular appellate approach to general damages. The argument which appears appropriate in assessing section 67 is as follows:
“Thirdly, attempts to derive a norm may founder upon the ultimate necessity in damages assessments of reaching a judgment which is not susceptible to hard and fast rules. The boundaries between a reasonable and unreasonable verdict are indeterminate. They are not subject to clear delineation, however much lawyers might like to have rules reduced to precision. Because of the large element of evaluation and the necessary latitude for human reaction to the assessment of money damages for the imponderables compensated by an award of general damages, appeal courts should acknowledge the very large scope that must be left by the law to the trial judge. As in other discretionary decisions, appeal courts should be extremely cautious before interfering in this, precisely because of a recognition of the inevitably unscientific nature of the task committed to the trial judge …”
The award under section 67 in this case represented one-third of the maximum sum. The question I must ask is whether on the facts of the case this falls outside the limits of sound discretionary judgment. The worker is a 34-year old policeman who suffered injury to the lower part of his legs which has substantially interfered with his sporting and other activities. The worker’s statement of 15 October 2007 lists at paragraph 26 a number of symptoms and disabilities. The disabilities themselves are relevant to the section 66 assessment of permanent impairment which has already been made. However, the worker is entitled to compensation under section 67 for his embarrassment, distress, anxiety and actual pain and suffering arising from his impairment. The scarring on his legs he describes as significant while Dr Fry refers to it as “not particularly eye catching” and “non-symptomatic not associated with functional loss from the scars per se”. It is submitted on behalf of the worker that because he was not required for cross-examination his complaints should be accepted. I do not think this is the correct legal position. The Arbitrator was free to disregard, as he did, certain parts of the worker’s evidence, particularly the suggestion that the worker had separated from his wife due to depression, stress and anxiety. The onus is on the worker to establish the pain and suffering as defined by the Act which he claims.
Just as the assessment of compensation under section 67 is very much a matter for the discretion of the Arbitrator, so it appears to me is the determination of an appeal against such award. Taking, as I am bidden by the Court of Appeal to do, the view that the powers of a Presidential member conducting an appeal by way of review are wide and bearing in mind the restraint called for when dealing with any quasi-discretionary decision, I have come to the conclusion that the award in this case is outside the proper range and not reasonably proportionate to the maximum amount having regard to the degree and duration of pain and suffering and the severity of the permanent impairment. I have before me and have read the evidence which was before the Arbitrator and a transcript of counsel’s addresses. I consider that I am in as good a position to determine the section 67 award as was the Arbitrator. Accordingly, I intend to re-determine, pursuant to section 352(7) of the 1998 Act, this award. There does remain, however, one further ground of appeal with which I will also deal.
This ground concerns the Arbitrator’s statement that his restrictions in activities would cause distress and anxiety when the worker makes no such claim. It is true that there is no specific statement by the worker to the effect that he suffered distress and anxiety by reason of his restrictions. I do, however, agree with the Arbitrator that it can reasonably be inferred from the worker’s statement that he has feelings of worthlessness and is constantly frustrated, angry and generally dissatisfied that there is such distress and anxiety. I do not think that the appeal succeeds on this ground alone.

RE-DETERMINATION

It is not necessary to repeat the evidence which is elsewhere set out quite fully. I accept generally the Arbitrator’s findings in respect of the worker’s complaints. However, his reference to the worker’s inability to undertake jogging and bike riding is overstated. I accept that the worker had severe pain following the surgery and still has some symptoms in his lower legs. I differ from the Arbitrator as to his view that the need to take pain killers is within the definition of pain and suffering, except to the limited extent which I have earlier indicated. The worker does however continue to take medication and attend physiotherapy. I accept Dr Fry’s opinion that the scarring is of significance to the worker although not such as a reasonable person would regard as truly disfiguring. I accept that the worker is embarrassed by the scarring. I have taken account of the worker’s age and his previous sporting achievements and fitness. I note the assessment of his permanent impairment by the AMS is 10% and I have taken this into account as I think I am obliged to do by the terms of section 67.
In this case I think that the appropriate award under section 67 in respect of pain and suffering, as defined, is a sum of $12,500.00 representing one-quarter of a most extreme case.

DECISION

Paragraph 1 of the decision of the Arbitrator dated 9 May 2008 is revoked and the following decision is made in its place:
“1.The respondent is to pay the applicant compensation pursuant to section 67 in respect of pain and suffering in the sum of $12,500.00, being one-quarter of a most extreme case.”

COSTS

No submissions have been made regarding costs, however, had the employer sought costs against the worker I do not think that it would have been appropriate in this case to have made such order. Accordingly, each party is to bear its or his own costs of the appeal.

Anthony Candy
Acting Deputy President
17 September 2008

I, MARIE JOHNS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ANTHONY CANDY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE