Newell v John Bruce t/as Tarawa Rural Partnership
[2006] NSWWCCPD 282
•24 October 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Newell v John Bruce t/as Tarawa Rural Partnership [2006] NSWWCCPD 282
APPELLANT: Benjamin Mark Newell
RESPONDENT: John Bruce t/as Tarawa Rural Partnership
INSURER:QBE Workers Compensation (NSW) Limited
FILE NUMBER: WCC18411-04
DATE OF ARBITRATOR’S DECISION: 10 January 2006
DATE OF APPEAL DECISION: 24 October 2006
SUBJECT MATTER OF DECISION: Medical Assessment Certificate; Obvious error
PRESIDENTIAL MEMBER: Acting Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION: Appellant: Palmers
Respondent: QBE In House Legal Department
ORDERS MADE ON APPEAL: Paragraphs three and four of the Arbitrator’s orders of 10 January 2006 are revoked and the following order made:
“The matter is remitted to a different Arbitrator for determination of all outstanding issues after the Registrar considers and determines pursuant to section 325(3) of the Workplace Injury Management and Workers Compensation Act 1998 whether the Medical Assessment Certificate issued by Dr Porges on 11 April 2005 contains an obvious error.”
Paragraphs one, two and five of the Arbitrator’s orders of 10 January 2006 are confirmed.
No order as to costs of the appeal.
BACKGROUND TO THE APPEAL
On 31 January 2006 Benjamin Mark Newell (‘the Appellant Worker/Mr Newell’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 10 January 2006.
The Respondent to the Appeal is John Bruce t/as Tarawa Rural Partnership (‘the Respondent Employer/Mr Bruce’).
Mr Newell was born on 28 September 1949 and is now 57 years of age. He has worked as a shearer from about 1981. On 17 October 2000 he injured his right arm and neck when he was dragging a sheep in the course of his employment with Mr Bruce.
On 10 November 2004 an Application to Resolve a Dispute (‘the original Application’) was filed in the Commission seeking lump sum compensation in respect of 15% permanent loss of use of the right arm at or above the elbow and 20% permanent impairment of the neck plus $32,500.00 compensation for pain and suffering.
On 24 January 2005 an Amended Application to Resolve a Dispute (‘the Amended Application’) was filed alleging, in addition to the matters raised in the original Application, an injury to his neck and right arm pursuant to the provisions of sections 15 and/or 16 of the Workers Compensation Act 1987 (‘the 1987 Act’) “as a consequence of the nature and conditions of shearing work carried out by the Applicant between 1 July 1987 and about 24 October 2000”. No amendment was made to the quantum of compensation claimed.
The claim was referred to an Approved Medical Specialist (‘AMS’) for assessment and a Medical Assessment Certificate (‘MAC’) was issued on 11 April 2005.
On 26 May 2005 the Registrar issued a Certificate of Determination based on the MAC providing for orders in favour of Mr Newell under section 66 of the 1987 Act but making no order for the payment of compensation under section 67. On 16 August 2005 the solicitor for Mr Newell wrote to the Registrar requesting that the issue of Mr Newell’s entitlement to compensation under section 67 be referred to a Commission Arbitration for determination.
Pursuant to section 350(3) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) the Registrar rescinded the Certificate of Determination of 26 May 2005 and referred the matter to an Arbitrator for determination of the Appellant Worker’s entitlement to compensation for pain and suffering under section 67 of the 1987 Act.
The issue of the Appellant Worker’s entitlement to compensation under section 67 was argued in teleconference on 24 November 2005 and each party subsequently made written submissions. The matter was then determined ‘on the papers’ by the Arbitrator in a reserved decision delivered on 10 January 2006.
The Arbitrator found that Mr Newell had no entitlement to compensation for pain and suffering as the findings set out in the MAC did not satisfy the thresholds in section 67(2) of the 1987 Act.
Mr Newell seeks leave to appeal this decision.
LEAVE TO APPEAL
Monetary Threshold
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The quantum in issue on the appeal is in excess of $5,000.00 and therefore the threshold in section 352(2)(a) of the 1998 Act is satisfied. No award of compensation has been made under section 67 but the Arbitrator’s finding would result in the Respondent Worker receiving no compensation under that section and therefore the second limb of section 352(2) does not apply (see Mawson v Fletchers International Exports Pty Ltd [2002] NSWWCCPD 5).
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
Leave to appeal is granted.
PRELIMINARY MATTERS
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 submissions 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.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 10 January 2006, records the Arbitrator’s orders as follows:
“1.That the Respondent pay the Applicant as lump sum compensation under s66 of the Workers Compensation Act 1987 $4,000.00 in respect of 10% impairment of the neck attributable to the injury period 1 July 1987 to 24 October 2000.
2.That the Respondent pay the Applicant as lump sum compensation under s66 of the Workers Compensation Act 1987 $800.00 in respect of 1% permanent loss of efficient use of the right arm at or above the elbow attributable to injury period 1 July 1987 to 24 October 2000.
3.That the Respondent pay the Applicant as lump sum compensation under s66 of the Workers Compensation Act 1987 $2,000.00 in respect of 5% permanent impairment of the neck attributable to injury on 17 October 2000.
4.That the Respondent pay the Applicant as lump sum compensation under s66 of the Workers Compensation Act 1987 $7,200.00 in respect of 9% permanent loss of efficient use of the right arm at or above the elbow attributable to injury on 17 October 2000.
5.That the Respondent pay the Applicant’s costs as agreed or assessed.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a)characterising the Appellant Worker’s submissions as an ‘appeal’ when his submissions went to the proper construction of the MAC;
(b)misconstruing the MAC and failing to give effect to the ordinary words in it;
(c)failing to correctly construe the MAC when it contained two inconsistent findings;
(d)failing to resolve the inconsistencies in the MAC;
(e)failing to apply the correct principles of construction to the MAC in that he failed to apply or take into account:
· the rule for the resolution of inconsistent clauses in an instrument, or
· the rule that figures are not of the same authority as words in the body of an instrument;
(f)failing to find that the Appellant Worker’s entitlements under section 66 exceeded the threshold in section 67(2);
(g)finding that the Appellant Worker suffered two distinct injuries when there was no proper evidentiary basis for such a finding;
(h)finding the Appellant Worker’s two ‘losses’ (the impairment to his neck and the loss of efficient use of his right arm at or above the elbow) were not the result of one injury, and
(i)in finding that the Appellant Worker had no entitlement to lump sum compensation under section 67.
SUBMISSIONS AND FINDINGS
The Medical Assessment Certificate
The AMS was asked to assess the permanent impairment of the Appellant Worker’s neck and the permanent loss of efficient use of his right arm at or above the elbow under the Table of Disabilities as a result of an injury sustained on 17 October 2000 and as a result of an injury sustained due to the nature and conditions of his employment from 1 July 1987 to 24 October 2000. I express no opinion on whether those questions were correctly formulated or whether in fact Mr Newell sustained two injuries or only one injury. I note that the question of ‘injury’ is always a matter for the Commission to determine, not an AMS.
On 17 October 2000 Mr Newell was dragging a sheep in the course of his work as a shearer for Mr Bruce when he felt a sudden and very severe pain in the right side of his neck and right shoulder. After a short break he was able to continue shearing for the next day and a half when the team ran out of dry sheep to shear. He did no further shearing until 24 October 2000 when he returned to work for Mr Bruce. When he started shearing he experienced pins and needles in his right hand and had difficulty holding the shearing hand piece. As a result he stopped shearing immediately and saw Dr O’Ryan, his general practitioner.
Prior to 17 October 2000 Mr Newell experienced discomfort in his neck from time to time, especially whilst shearing. This discomfort did not stop him from shearing but did prompt him to see Dr O’Ryan a couple of times.
Radiological investigations of Mr Newell’s neck revealed degenerative disc disease associated with spinal and foraminal stenosis (CT scan 1 November 2000). An x ray of the right shoulder revealed a bony spur like process at the inferior glenoid margin which suggested previous injury to the cartilage labrum. The lower part of the acromioclavicular joint was narrowed.
An MRI scan dated 12 January 2001 showed multi level degenerative spondylitic changes, particularly at C5/6, C6/7 and 7/T1. An MRI of the right shoulder on the same date showed some degenerative changes in the distal supraspinatus tendon and a probable small intra substance partial thickness tear of the supraspinatus tendon.
Nerve conduction studies done on 27 September 2002 showed evidence of past chronic denervation with re-enervation of the right supraspinatus and infraspinatus muscles with no denervation at the time of the study.
In summary, the AMS thought that Mr Newell had the following injuries and diagnoses (MAC, page four paragraph five):
· long standing degenerative changes in his neck with aggravation at work on 17 October 2000, and
· a small intrasubstance tear of the right shoulder supraspinatus tendon whilst at work on 17 October 2000;
The AMS stated at page seven of the MAC that:
“The nature and conditions of his work would have contributed very largely to the development of the cervical spine degenerative disease which had been symptomatic prior to the 17/04/00 [sic], requiring visits to his local doctor. In view of this I believe that ½ of his impairment should be correctly apportioned to nature and conditions prior to the episode on 17/04/00” [sic]. (emphasis added)
The reference to “17/04/00” is incorrect and should be 17 October 2000.
The AMS then reviewed the medical reports referred to him and added:
“I note that in Dr Morgan’s report of 10 February 2004, he attributes 15% permanent impairment of his neck to the episode on 17/10/00. I agree that this is a correct assessment of his neck impairment.” (emphasis added)
Given the unambiguous findings by the AMS at page seven of the MAC, the correct percentages in the “Summary Table” on page eight of the MAC should have said that Mr Newell has a 7.5% permanent impairment of his neck as a result of his 17 October 2000 injury and a 7.5% permanent impairment of his neck as a result of his ‘nature and conditions’ injury. This must follow because half of 15 is 7.5.
In fact, the “Summary Table” in the MAC sets out a 5% permanent impairment of Mr Newell’s neck as a result of the 17 October 2000 injury and a 10% permanent impairment of his neck as a result of the ‘nature and conditions’ injury.
The question of the ‘ambiguity’ in the MAC was argued before the Arbitrator who decided at paragraph [46] of his Statement of Reasons for Decision (‘Reasons’) that there was no ambiguity or inconsistency because:
“Simply put the Table gives 10% permanent impairment of the neck due to nature and conditions and 5% permanent impairment of the neck due to frank incident on 17 October 2000. That is in line with the AMS’s fraction of ½ expressed on page 7.2 of the MAC in that 5% is ½ of 10%.”
I do not believe the Arbitrator’s analysis is correct. The AMS did not find the total impairment of Mr Newell’s neck to be 10%. He found it to be 15%, as assessed by Dr Morgan in his report of 10 February 2004. Half of that is 7.5. In my opinion there is, therefore, a clear and obvious error in the MAC but it is an error that is not within my power to correct. The appropriate course was for the Appellant Worker to either appeal to a Medical Appeal Panel under section 327 of the 1998 Act or request the Registrar to issue a replacement certificate under section 325(3) of the 1998 Act on the grounds that the MAC contains an ‘obvious error’.
The term ‘obvious error’ is not defined in the legislation but is discussed in Practice Direction No. 4 issued by Justice Sheehan on 1 July 2003 which states:
“The ‘obvious error’ referred to in sections 294(3) and 325(3) of the Act means a factual error that is apparent on the face of the document. It may be an error that conflicts with the actual decision or assessment that was made or an obvious mis-statement of that decision or assessment. It does not relate to the basis upon which the substantive decision or assessment was made, nor to the substance of any such decision or assessment. The decision of the Registrar as to ‘obvious error’ is made in the context of the contents of the Certificate of Determination, and statement of reasons, if provided.”
In my opinion the error in the MAC falls within the above definition of ‘obvious error’ because it is an error that is apparent on the face of the MAC and one that conflicts with the actual assessment made by the AMS.
It follows that if the correct assessments are made then the Appellant Worker will meet the section 67(2) threshold for the 17 October 2000 injury because the 7.5% permanent impairment of the neck combined with the 9% permanent loss of efficient use of the right dominant arm at or above the elbow gives a total section 66 compensation of $10,200.00. In that event the Appellant Worker will be entitled to compensation for pain and suffering under section 67 of the 1987 Act.
The appropriate step to be taken in the event of an obvious error in a MAC is set out in section 325(3) of the 1998 Act which provides:
“325 Medical assessment certificate
(3) If the Registrar is satisfied that a medical assessment certificate contains an obvious error, the Registrar may issue, or approve of the approved medical specialist issuing, a replacement medical assessment certificate to correct the error.”
So far as I am aware the Registrar has not been requested to consider this question. There is no time limit within which an obvious error can be corrected. An obvious error may be brought to the notice of the Registrar by any party, a representative of a party, a member of the Commission or by an AMS (Practice Direction No. 4). This may be done orally, in writing or by electronic means.
In view of the above Practice Direction I have requested that a copy of this decision be provided to the Registrar so she may consider the appropriate action to be taken under section 325(3).
OTHER GROUNDS OF APPEAL
In view the above analysis it is not necessary for me to determine the remaining grounds of appeal. In the event that the Registrar does not find that the MAC contains an obvious error the parties have liberty to apply for a reconsideration of my decision under section 350(3) of the 1998 Act.
CONCLUSION
It follows that the Arbitrator was in error in making the orders he made in respect of the 17 October 2000 injury and those orders must be revoked. The proper course is for the matter to be remitted to a different Arbitrator for all outstanding matters to be determined after the ‘obvious error’ issue is determined by the Registrar.
DECISION
Paragraphs three and four of the Arbitrator’s orders of 10 January 2006 are revoked and the following order made:
“The matter is remitted to a different Arbitrator for determination of all outstanding issues after the Registrar considers and determines whether the Medical Assessment Certificate issued by Dr Porges on 11 April 2005 contains an obvious error pursuant to section 325(3) of the Workplace Injury Management and Workers Compensation Act 1998.”
Paragraphs one, two and five of the Arbitrator’s orders of 10 January 2006 are confirmed.
COSTS
The issue of an obvious error under section 325(3) could and should have been considered by the parties before lodging the current appeal. In these circumstances the appropriate costs order is: no order as to costs of the appeal.
Bill Roche
Acting Deputy President
24 October 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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