Norambuena v Transfield Services (Australia) Pty Ltd

[2009] NSWWCCPD 52

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
STATUS: Reported Decision: Norambuena v Transfield Services (Australia) Pty Ltd (2009) 7 DDCR 355
CITATION:			Norambuena v Transfield Services (Australia) Pty Ltd [2009] NSWWCCPD 52
APPELLANT:			Rolando Norambuena
RESPONDENT:			Transfield Services (Australia) Pty Ltd
INSURER:			Self Insured
FILE NUMBER:			A2-2171/08
ARBITRATOR:			Ms R Gurr
DATE OF ARBITRATOR’S DECISION:			19 December 2008
DATE OF APPEAL HEARING:		12 May 2009
DATE OF APPEAL DECISION:			15 May 2009
SUBJECT MATTER OF DECISION:			Personal injury; sections 4(a) and 40 of the Workers Compensation Act 1987; aggravation of degenerative changes; application of Rail Services Australia v Dimovski and anor [2004] NSWCA 267; (2004) 1 DDCR 648
PRESIDENTIAL MEMBER:			Deputy President Bill Roche
HEARING:			Oral
REPRESENTATION:			Appellant:			Mr Shoebridge, instructed by Taylor & Scott Lawyers
Respondent:			Mr Lichtenberger, instructed by David Allen Legal
ORDERS MADE ON APPEAL:			1. Paragraphs one, two, four and five of the Amended Certificate of Determination dated 19 December 2008 are revoked and the following orders made:
“1. The respondent employer is to pay the applicant worker compensation under section 40 of the Workers Compensation Act 1987 as follows: 21.7.07 to 30.9.07 at $331.16 per week; 1.10.07 to 31.3.08 at $337.10 per week; 1.4.08 to 30.9.08 at $343.67 per week; 1.10.08 to 31.3.08 at $349.63 per week, and 1.4.09 to 7.6.09 at $356.72 per week.
2.   The respondent employer is to pay the applicant worker’s reasonable section 60 expenses as a result of the injury to his low back on 23 February 2007.
3.    The respondent employer is to pay the applicant workers costs, as assessed or agreed.”
2. Paragraphs three and six of the Amended Certificate of Determination are confirmed.
The respondent employer is to pay the appellant worker’s costs of the appeal.

BACKGROUND

1. Mr Norambuena was born in Chile in June 1943 and came to Australia in about 1976.  He is a qualified fitter and welder and has worked in that field for many years.  He started work for the respondent, Transfield Services Australia Pty Ltd (‘Transfield’), as a casual mechanical fitter on a short-term ‘shutdown’ project at Caltex refinery at Kurnell on 8 February 2007.  The project finished in early March 2007.

1. On 23 February 2007, he received an injury when he lifted a valve said to weigh 50 kilograms.  Whilst liability was initially accepted and compensation paid until 20 July 2007, Transfield disputes the precise nature and extent of Mr Norambuena’s injury and whether he continues to be incapacitated after that date as a result of his injury.

1. By an Application to Resolve a Dispute (‘the Application’) registered with the Commission on 26 March 2008, Mr Norambuena alleged that he sustained injury to his “back, neck, left and right shoulder, right arm/elbow, physiological [sic]” as a result of the incident on 23 February 2007 and the nature and conditions of his employment between 8 February 2007 and 23 February 2007. 

1. He claimed weekly compensation from 26 February 2007 to date and continuing, the cost of domestic assistance, medical expenses and lump sum compensation in respect of a 24% whole person impairment together with compensation for pain and suffering.

1. A Commission Arbitrator heard the claim on 2 June 2008.  The Application was amended to amend Mr Norambuena’s date of birth, delete the claim for domestic assistance and the claim alleging injury due to the nature and conditions of employment.  Mr Norambuena gave oral evidence and was cross-examined about his symptoms and incapacity.  In a reserved decision delivered on 10 June 2008, the Arbitrator stated that the respondent did not dispute that Mr Norambuena injured his lumbar spine on 23 February 2007, but disputed that he injured the other body parts pleaded in the Application and disputed incapacity.  Though not referred to in the Arbitrator’s Statement of Reasons for Decision, the transcript records that counsel for Mr Norambuena, Mr Perry, indicated, “disease would not be relied upon in this case” (T14.7, 2 June 2008). 

1. The Arbitrator found in favour of Mr Norambuena on all issues and made an award in his favour for continuing weekly compensation and medical expenses, and referred his claim for lump sum compensation to the Registrar for referral to an Approved Medical Specialist (‘AMS’) for assessment of permanent impairment resulting from injury to the lumbar spine, cervical spine and right upper extremity.  The precise basis of the Arbitrator’s findings was unclear.

1. Transfield successfully appealed the Arbitrator’s determination to Acting Deputy President O’Grady (as he then was) on the ground that the Arbitrator’s finding was founded upon “the disease provisions” and, as that claim had been abandoned, it had been denied procedural fairness and, in addition, the Arbitrator failed to state her reasons for concluding that ‘injury’ had been established (Transfield Sevices (Australia) Pty Ltd v Norambuena [2008] NSWWCCPD 108 (‘Norambuena No 1’) at [83] and [87]).

1. The Acting Deputy President revoked the Arbitrator’s determination.  Apart from the award for the period from 26 February 2007 to 20 July 2007, which the Acting Deputy President amended by consent, he declined to re-determine the matter because:

“…at the very least, the issues raised by the relevance or otherwise of section 4(b)(ii) of the 1987 Act require attention, and, in particular, the Appellant [Transfield] should have the opportunity to advance any available argument which it may be advised is available having regard to the proper application of principle to the relevant facts.” (at [94])

1. The Acting Deputy President also noted (at [86]) that the argument as to entitlement in respect of “personal injury” in circumstances where there has been an “aggravation” of a disease was not raised before the Arbitrator.

1. At the second arbitration on 26 November 2008, Mr Perry again represented Mr Norambuena.  At page 12 line 34, the following exchange occurred:

“ARBITRATOR: Can I just say for the record before we start on this that I understand that it’s agreed that the issue about injury simpliciter versus disease is not now an issue and it is an injury as pleaded.

MR PERRY: Yeah, our case ‑ for the applicant, my case has always been that because Dr Mahony uses on the front page of his report the expression ‘also’ where he talks about, firstly, there being some sort of strain to the cervical and lumbar spines, and then he says also there’s a degenerate spine, both in the cervical and the lumbar regions, it would be open to go either way, but our case has always been injury simpliciter but, if necessary, we would be happy for it ‑ it doesn’t really matter, but I understand that the respondent is happy for it to be dealt with on the basis of injury simpliciter and so are we.”

1. Mr Norambuena again gave oral evidence and was questioned by the Arbitrator, his counsel, and the solicitor for Transfield.  In an Amended Certificate of Determination issued on 19 December 2008, the Arbitrator made the following determination:

“1.The Applicant suffered a work related injury on 23^rd February 2007 as a result of a lifting incident, being a lumbar strain.

2.There is to be an award for the Respondent in relation to claims for injury to other body parts.

3.The matter is to be referred to an AMS for assessment of any permanent impairment to the lumbar spine as a result of the injury occurring on 23^rd February 2007.

4.There is to be an award for the Respondent in relation to the claim for weekly benefits.

5.The Respondent is to pay s.60 medical expenses related to the injury occurring on 23^rd February 2008.

6.The documents to be referred to the AMS will be the Application to Resolve a Dispute, the Reply and all of the documents attached to them, the Workcover Certificate dated 22 April 2008 and the supplementary report of Dr Stephenson dated 31 October 2008.”

1. By an appeal filed on 13 January 2009, Mr Norambuena seeks leave to appeal the Arbitrator’s determination.

LEAVE TO APPEAL

Monetary Threshold

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

1. There is no issue that the monetary thresholds in section 352(2) are satisfied.

Time

1. The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.

1. I grant leave to appeal.

ISSUES IN DISPUTE

1. The issues in dispute in the appeal are whether Mr Norambuena is entitled to rely on additional evidence on appeal (‘fresh evidence’), and whether the Arbitrator erred in:

(a)determining that Mr Norambuena agreed that section 4(b)(ii) was not relevant to the determination of his claim (‘section 4(b)(ii)’);

(b)determining that section 4(b)(ii) was not relevant to the determination of the claim (‘section 4(b)(ii)’);

(c)failing to properly consider Dr Mahony’s evidence (‘Dr Mahony’s evidence’);

(d)making contradictory findings on the question of whether Mr Norambuena continues to suffer from the effects of the lumbar strain suffered on 23 February 2007 (‘contradictory findings’);

(e)taking into account a history allegedly taken by Mr Rombouts in circumstances where Mr Rombouts was not a qualified medical practitioner and it was not put to Mr Norambuena at the hearing that his back troubled him far less than the neck and leg pain (‘Mr Rombouts’ history’);

(f)failing to provide adequate reasons for her finding in relation to whether Mr Norambuena continues to suffer from the effects of the lumbar strain on 23 February 2007 (‘reasons’);

(g)finding that there was no injury to any body part other than the lumbar spine on 23 February 2007, by failing to properly consider and take into account Mr Norambuena’s evidence as to why he did not refer to any body part other than his lower back when he completed the injury report form on 24 February 2007 in circumstances where:

(i)he provided consistent histories that his neck pain came on about a month after the accident on 23 February 2007;

(ii)the report of Mr Rombouts of 10 May 2007 refers to complaints of left leg and neck pain, and

(iii)the report of Dr Stephenson on 14 June 2007 refers to complaints of neck, right calf and left buttock pain. (‘other injuries’)

(h)finding that Mr Norambuena had no incapacity arising from the injury on 23 February 2007 in circumstances where:

(i)Mr Norambuena gave unchallenged evidence that he never had any relevant symptoms prior to the incident on 23 February 2007 and such evidence was not rejected;

(ii)Mr Norambuena gave unchallenged evidence that, since 23 February 2007, his symptoms had not totally left him;

(iii)Dr Mahony’s evidence was not properly considered;

(iv)the Arbitrator failed to properly take into account the principles in Arnotts Snack Products Pty Ltd v Yacob (1985) 155 CLR 171 (‘Yacob’). (‘incapacity’)

FRESH EVIDENCE

1. Fresh evidence or additional evidence on appeal is governed by section 352(6) of the 1998 Act, which provides as follows:

“(6)Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.”

1. Mr Norambuena seeks to rely on a request for particulars from Transfield’s solicitor dated 8 October 2008 and the reply to that letter from his solicitor dated 31 October 2008.  The request sought particulars of the disease Mr Norambuena alleged he suffered, the details of his employers in the 12 months preceding 26 February 2007 (the date on which his incapacity commenced).  The reply provided full particulars.

1. This evidence is said to demonstrate that Mr Norambuena  sought to rely on section 4(b)(ii) at the second arbitration and that the Arbitrator was wrong to determine, as she did at paragraph 51 of her Statement of Reasons for Decision (‘Reasons’), that aggravation of disease was not alleged.  It is submitted that there was no agreement that “the claim was solely based on an injury simpliciter” or that section 4(b)(ii) was not relevant to the determination of the claim.  Notwithstanding the decision in Norambuena No 1, which remitted the matter so that Transfield could advance any argument it may be advised was available in respect of section 4(b)(ii), Transfield expressly declined the opportunity to present any further submissions about the disease provisions.  Mr Perry concedes that he did say the case could be dealt with on the basis of injury simpliciter, but that was not on the basis that any aggravation of disease argument was abandoned.  The context of the comment was merely a reflection on the essence of Dr Mahony’s opinion that Mr Norambuena “was suffering strains and/or a disc lesion at L4/5 and also that the said incident aggravated underlying degenerative changes in the spine.”

1. Transfield objects to the introduction of the fresh evidence on the grounds that:

(a)it was available at the second arbitration;

(b)it does not advance the matter and is irrelevant, and

(c)counsel for Mr Norambuena agreed at the second arbitration to the case being dealt with “on the basis of injury simpliciter” (T12.49 on 26 November 2008).

1. The Commission has a statutory obligation to act according to equity, good conscience and the substantial merits of the case (section 354(3) of the 1998 Act).  In the present case, there is uncertainty as to what Mr Perry meant when he agreed to the case being dealt with on the basis of “injury simpliciter”.  In these circumstances, it is in the interests of justice that the additional evidence be admitted on appeal, as it will help to put Mr Perry’s submissions in context and will not result in any prejudice to Transfield.  I therefore allow the additional material into evidence on appeal. 

THE EVIDENCE

Mr Norambuena’s Evidence

1. Mr Norambuena’s evidence is in his statement of 17 February 2007.  In addition, he gave oral evidence at both arbitrations.  So far as is relevant to the claim, the main features of his statement may be summarised as follows:

(a)on 23 February 2007, he injured his right arm and lower back with pain radiating down his right leg when he attempted to lift a valve weighing approximately 50 kilograms;

(b)he felt immediate pain and reported the incident to the leading hand.  At the end of his shift, he went to see his general practitioner and was certified fit for light duties on reduced hours.  He worked for four hours per day for three days but has not worked since;

(c)about a month after the incident, he noticed that the pain in his right shoulder had extended into his neck and caused him discomfort.  By this time he had pins and needles and numbness in his right arm, right leg and lower back.  He was referred for physiotherapy, which made no significant difference, and

(d)he is restricted in what he can do.  He is unable to bend or use his right arm to lift anything heavy or reach above shoulder height without intense pain.  He struggles to perform his domestic duties.

1. At the first arbitration, Mr Norambuena gave oral evidence that he had never had pain in his back, arm, leg or neck before 23 February 2007 (T3.19) and that those symptoms had never totally left him since then (T3.25).  He was cross-examined by Transfield’s solicitor about a document headed “Employee’s Report of Injury” form (‘the report of injury form’), signed and dated by Mr Norambuena on 24 February 2007, in which the injury is described as follows “while lifting valve twisted and felt lower back lumber [sic] pain”.

1. He was also cross-examined about histories he gave to various doctors.  Mr Norambuena said that his right arm symptoms “become [sic] later on” (T4.46).  He said he did tell the doctors about his leg and arm, but not the neck (T4.51) and that he was very worried about his back, not his legs and arm (T4.58).  Mr Norambuena said he did complain to Dr Lum about the pain in his leg, right arm and neck (T5.8).  He agreed that he told Dr Stephenson that he had the pain in his right arm “over the last few weeks” preceding 14 June 2007 (T7.48).  He strongly disagreed that he was fit for work as a fitter (T8.14) or to go back to his old job (T10.8).  In re-examination, Mr Norambuena said he could not do his old job because his back was hurting (T12.5) and that he had never done anything other than work as a fitter and welder (T12.30).

1. At the second arbitration, the Arbitrator asked Mr Norambuena about the report of injury form.  He agreed that he completed his personal information on that form (T5.9), but Mr Lang, the “overseer” (T7.52)), completed the balance of the form on the basis of what Mr Norambuena told him (T6.50).  Mr Norambuena agreed that he did not mention that he felt pain in parts of his body other than his back (T6.58-7.1).  In response to questions from Mr Perry, Mr Norambuena said that at the time the form was completed he “felt pain in all my body, my legs, my head and my back, but the pain was worse in my back” (T8.38) and that he did mention “all those problems to this person” (T8.42) but “the problem was mainly my back” (T8.44).  After being on medication for a period, Mr Norambuena said he “started feeling pain in my back and my neck and my arm, and my arm was going numb” (T10.20). 

1. It should be noted that the solicitor for Transfield advised the Commission by letter dated 22 February 2009 that the transcript of the second arbitration contains several errors, which he listed together with suggested amendments.  At the appeal, counsel for Mr Norambuena agreed with the suggested amendments and I have amended the transcript accordingly.

1. Mr Norambuena completed a “Worker’s Injury Claim Form” (‘the claim form’) on 8 November 2007 in which he described his injury as “Back, right leg, right arm, neck”.

Mr Norambuena’s Medical Evidence

1. Mr Norambuena’s initial medical certificate was from Dr Huckstepp on 26 February 2007.  Neither this certificate nor the next from this doctor (dated 1 March 2007) are of any assistance on the question of diagnosis, as they merely refer to Mr Norambuena having suffered a “simple lifting injury”.  The certificate of 26 February 2007 described the incident as occurring as follows “lifted a valve onto platform felt something go in back”.  The management plan included physiotherapy and stronger analgesia.

1. On referral from Dr Huckstepp, Mr Norambuena attended for physiotherapy on three occasions, starting on 24 February 2007.  In a report from his physiotherapist, Ms Crossle, dated 27 February 2007, it was noted that he was treated for his “acute back pain”.  His pain was still very strong, but the physiotherapist expected it to settle down over the following six to eight weeks.

1. Mr Norambuena came under the care of Dr Lum in the middle of March 2007.  In his first certificate, dated 11 March 2007, Dr Lum provided no diagnosis.  He then provided seven certificates between 27 March 2007 and 26 June 2007 in which he diagnosed “back injury”.  He recommended a management plan of physiotherapy up until his certificate of 26 June 2007 when he stated that Mr Norambuena was to see an orthopaedic specialist, Dr Mahony.

1. Mr Norambuena was also referred to Mr Rombouts, clinical psychologist, for psychological support and pain management in May 2007.  In his report of 10 May 2007, Mr Rombouts took a history that Mr Norambuena lifted a 40 kilogram valve at work when he “felt a burning sensation in his lower back area”.  Mr Rombouts spoke with the physiotherapist (Simone Mackie) and was apparently informed that the initial assessment was that Mr Norambuena had suffered “inflammation of the soft tissue between and around the vertebrae”, but there was no intervertebral disc tearing or extrusion.  Mr Norambuena’s medication was Tramal (an opiate) once per day and a new generation anti-inflammatory.  Mr Rombouts recorded that Mr Norambuena was experiencing “the most pain in his left leg and in his neck vertebral area”.  It was also noted that Mr Norambuena had become moderately depressed with moderate increases in anxiety, as he had been a robust man who had always been busy and physically active.  Being injured and incapacitated was completely alien to him.  A hand written note at the end of the report stated that a “psych programme was approved by Transfield”.

1. Dr Mahony saw Mr Norambuena on 3 July 2007 and provided a medical certificate on that date declaring the worker unfit for work until 2 August 2007.  He diagnosed Mr Norambuena to have “L4/5 disc lesions”. 

1. On 13 July 2007, Mr Norambuena underwent an MRI scan of his lumbo-sacral spine and a CT scan of his cervical spine.  The MRI scan revealed multilevel degenerative disc and facet joint arthropathy.  The CT scan revealed extensive anterior osteophyte formation from C5 to C7.

1. Dr Mahony repeated the diagnosis of “L4/5 disc lesions” in his certificates of 19 July and 9 August 2007. In his certificate of 13 September 2007, Dr Mahony diagnosed “L4/5 disc lesions, cervical and thoracic strain”.  He continued to certify Mr Norambuena unfit for work until 8 January 2008.

1. In his medicolegal report addressed to Taylor and Scott on 7 August 2007, Dr Mahony recorded a history that Mr Norambuena felt pain in his lower back and right leg when he was lifting a barrel weighing about 40 kilograms on 23 February 2007.  He recorded that Mr Norambuena also noticed some pain in his right arm.  When Mr Norambuena attended on 3 July 2007, he presented with pain in the back of his neck radiating to the occipital area and to the back of his right shoulder, which commenced about one month following the incident on 23 February 2007 though, according to Dr Mahony’s history, the right arm symptoms commenced on the date of the incident.  Mr Norambuena also complained of a feeling of pins and needles in his low back radiating to the right calf and occasional pins and needles and numbness in his right leg.

1. Under “Opinion”, Dr Mahony concluded:

“Mr Norambuena does appear to have developed symptoms referable to a cervical strain with nerve root irritation affecting the right upper limb with nerve root irritation radiating to the left shoulder.

He also has symptoms referable to a thoracic strain and a low lumbar back strain in association with degenerate changes with nerve root irritation affecting the right lower limb and there is evidence of a discogenic lesion at the L4/5 level abutting the thecal sac.

He has symptoms referable to a right ulnar nerve neuritis at the elbow and a right carpal tunnel syndrome.

It is consistent that that incident he described on the 23^rd February 2007 has produced such lesions aggravating a potentially irritable spine.

I would advise him to restrict his future activities to activities not involving significant bending or lifting or significant use of his upper limbs.

I would consider that Mr Norambuena’s condition has reached maximum medical improvement.

I would also consider that he is suffering from a degenerative condition and the nature of his work as a fitter/welder has accelerated the degenerative changes.”

Transfield’s Medical Evidence 

1. Transfield relies on a report from Dr Huckstepp to Dr Lum dated 7 March 2007 and reports from Dr Stephenson, orthopaedic surgeon, dated 15 June 2007, 29 January 2008 and 8 October 2008.

1. Dr Huckstepp’s report purports to reproduce his clinical notes.  In chronological order, those entries read:

“26 Feb 2007
lifted a valve onto platform felt something go in back
now cant [sic] sleep with pain
extn [sic, extension] fine
flexion and lunge › r reprod [sic, reproduce] pain and spasm in r side lumbar muscles
should do well
reflexes =
allergies sulphur/codeine
C NSW WorkCover – initial
Rx: 20 – Tramal (Capsules) 50mg

01 Mar 2007
no better – see letter fr physio
pain relief effect

02 Mar 2007

Absence of leg pain and good extension confirmed by absence [of] disc lesion.

Note arthritis.

bp
commence voltaren 1/52
non smoker
on no mx
Outbox: Referral Letter
Dx: Allegic reaction; drug(s) (A85004) – sulphur
Rx: 50 – Voltaren (Tablets) 50 mg

07 Mar 2007

intolerant voltaren

attending physio closer to home”.

1. Dr Stephenson first saw Mr Norambuena on 14 June 2007 and he reported to Transfield the next day.  He referred to Dr Huckstepp having ordered a CT scan of the lumbar spine on 1 March 2003, which revealed degenerative changes.

1. Under “History of Present Injury”, Dr Stephenson recorded that on 23 February 2007 Mr Norambuena was bending down to lift a heavy valve when his right foot twisted and a co-worker did not lift correctly to assist him and he experienced lumbar pain.  Under “Present Complaints”, the doctor recorded lumbar pain going into the left buttock region and up as far as the neck and discomfort in the right calf muscle at times.  Over the few weeks prior to seeing Dr Stephenson, Mr Norambuena had some pain in his right arm.  He also had a feeling of sleepiness in the ring and little fingers of the right hand and along the ulnar border of the right forearm to the elbow.

1. On examination, Dr Stephenson noted Mr Norambuena to have a full range of motion of the right elbow and wrist and no muscle wasting in the right hand.  He had a good functional range of neck movement and good range of motion of both shoulders with no objective findings of radiculopathy in the upper limbs.  There was no evidence of cervical, thoracic or lumbar spasm.  Forward flexion was to the upper tibia level with extension being satisfactory.  There were no objective findings of radiculopathy in the lower limbs and power and sensation were satisfactory with deep tendon reflexes present and active.  Straight leg raising was performed in both lower limbs to 90°.

1. Dr Stephenson reproduced the contents of the CT report of 1 March 2007.  Relevantly, the radiologist reported, “at the L4/5 level there is generalised posterior prominence of the annulus abutting the thecal sac and there is severe facet joint osteoarthritis”.

1. Under “Diagnosis”, Dr Stephenson stated that the radiological diagnosis was that of chronic lumbar degenerative change.  In respect of the incident on 23 February 2007, he stated that an “episode of lumbar strain, muscular and ligamentous in nature could have occurred as a result of the lifting efforts”.  He felt that the prognosis for such a diagnosis was satisfactory.  He did not think that there had been any aggravation or exacerbation of an underlying pre- existing medical condition and he thought that Mr Norambuena was fit for normal duties as a fitter following the correct industry standard lifting techniques. 

1. Under “Long term Prognosis”, Dr Stephenson stated that “the symptoms of such a condition [acute musculo ligamentous lumbar strain] should be resolving satisfactorily up to about a six-week period following the offending incident”.  He noted, however, the presence of chronic long standing pre-existing degenerative changes in Mr Norambuena’s back and the prognosis for such a condition was that the patient was likely, on occasion, to experience some lumbar pain because of the degenerative changes.

1. Dr Stephenson reviewed the worker on 24 January 2008 and reported again on 29 January 2008. Under “History of Injury”, it is recorded on this occasion that Mr Norambuena “got back pain, also neck pain, right leg pain also right arm pain”.  Precisely when these pains commenced is not stated in the report but the inference is that they allegedly commenced immediately after the lifting incident on 23 February 2007.  Mr Norambuena denied any previous neck, low back, arm or leg pain.

1. Dr Stephenson felt that the MRI scan of 13 July 2007 basically reinforced the previous CT scan of the lumbar spine “in that there was no marked lumbar disc protrusion causing any nerve root compromise but rather there are fairly advanced degenerative changes which are longstanding in the lumbar spine”.  He concluded that there were no findings of an acute neck and back injury following the work related incident.  Essentially, Dr Stephenson repeated the conclusion in his earlier report that there may have been symptoms of an acute lumbar strain as a result of the incident on 23 February 2007, which he expected to resolve satisfactorily over a six-week period.

1. In a supplementary report dated 31 October 2008, Dr Stephenson responded to a letter from Transfield’s solicitor dated 27 October 2008.  Among other things, the letter requested the doctor’s opinion as to whether Mr Norambuena had suffered any aggravation of a disease to which his employment with Transfield had been a substantial contributing factor.  The doctor replied that there had been no such aggravation and that he maintained the opinion he had previously expressed.  The doctor then added that he did not relate Mr Norambuena’s symptoms in his right leg, neck and right arm to the lifting incident of 23 February 2007. 

THE ARBITRATOR’S REASONS

1. The Arbitrator identified (at paragraph 8 of her Reasons) the issues in dispute as being:

(a)what was the nature and extent of the injury on 23 February 2007;

(b)is Mr Norambuena now suffering a work related injury occurring on 23 February 2007, and

(c)is Mr Norambuena incapacitated as a result of the injury and what is the extent of that incapacity.

1. She then made the following findings:

(a)the issue in contention at the time of the appeal to Acting Deputy President O’Grady– whether the case was being pursued on the basis of a disease claim – was not now in contention because the parties agreed that the claim was based on an injury simpliciter on 23 February 2007 (Reasons, paragraph 8);

(b)Mr Norambuena’s statement referred to two matters of which there was no contemporaneous report: leg and arm symptoms at the time of the frank injury.  To the extent that his evidence at the arbitration was in conflict with other more contemporaneous evidence, she did not accept it (Reasons, paragraph 41);

(c)there were other inconsistencies in Mr Norambuena’s evidence.  He is reported to have told Mr Rombouts that he was more concerned about his neck and leg pain than his back pain, yet he said he did not report these to his treating doctors because he was mainly concerned with back pain (Reasons, paragraph 42);

(d)she did not accept that there was pain in other than the lumbar spine immediately following the lifting incident and she could not be satisfied there was any injury to any body part other than the lumbar spine on 23 February 2007 (Reasons, paragraph 45);

(e)Dr Mahony’s account of symptoms arising in other than Mr Norambuena’s lumbar spine on 23 February 2007 is not in accord with more contemporaneous accounts.  Dr Mahony did not explain how the cervical spine injury arose from the lifting incident in circumstances where the pain arose a month later when Mr Norambuena was not working (Hevi Lift (PNG) v Etherington [2005] NSWCA 42; (2005) 2 DDCR 271 (‘Hevi Lift’)) (Reasons, paragraph 46);

(f)Dr Stephenson noted that the CT and MRI scans did not reveal any acute or prominent disc protrusion causing nerve root compromise.  She accepted this evidence in preference to Dr Mahony’s, which did not explain how a single traumatic incident caused the degenerative changes, in the absence of an acute or prominent disc protrusion.  Dr Stephenson’s opinion was in accord with the original report of injury and earlier assessments made by the treating general practitioners (Reasons, 50);

(g)since aggravation etc of disease was not alleged, there were two possiblilites disclosed by the medical evidence in relation to the injury on 23 February 2007 – a lumbar strain and/or the lesions which appear on the scans (Reasons, paragraph 51);

(h)she was more persuaded by Dr Stephenson’s evidence than Dr Mahony’s.  Dr Mahony did not explain, to the Hevi Lift standard, how the physical changes noted on the scans arose from a single incident on 23 February 2007.  The onus was on the worker.  She was unable to find that the spinal changes noted on the scans were caused by the incident on 23 February 2007.  She was not satisfied that Mr Norambuena’s employment was a substantial contributing factor to the condition of a degenerative nature, including the L4/5 lesions, he has (Reasons, paragraph 52);

(i)the injury on 23 February 2007 was a lumbar strain (Reasons, paragraph 54);

(j)she accepted Dr Stephenson’s opinion that the injury would not have prevented Mr Norambuena from returning to his pre injury duties after 20 July 2007 and was not persuaded that Mr Norambuena had an incapacity arising from the injury on 23 February 2007 (Reasons, paragraph 61), and

(k)she made a general order for the payment of hospital and medical expenses under section 60 of the 1987 Act. 

SUBMISSIONS, DISCUSSION AND FINDINGS

Section 4(b)(ii)

1. Mr Norambuena argues that Acting Deputy President O’Grady gave a ruling or direction, within the meaning of section 352(7) of the 1998 Act, that the provisions of section 4(b)(ii) required attention and, in particular, that Transfield should have the opportunity to advance any available argument that it may be advised is available. Therefore, whether or not there was an agreement about whether section 4(b)(ii) was being pressed, the Arbitrator was required to address “the issues raised by the relevance or otherwise” of the aggravation of disease provisions.

1. The Acting Deputy President gave no such ruling or direction.  He merely observed:

(a)that the argument as to the entitlement in respect of “personal injury” in circumstances where there has been an “aggravation” of a disease was not raised before the Arbitrator (Norambuena No 1, at [86]), and

(b)it was inappropriate for him to re-determine the matter on appeal because, “at the very least, the issues raised by the relevance or otherwise of section 4(b)(ii) of the 1987 Act require attention, and, in particular, the Appellant should have the opportunity to advance any available argument which it may be advised is available having regard to the proper application of principle to the relevant facts” (at [94]).

1. In order to meet any allegation of injury under section 4(b)(ii) (aggravation of a disease), Transfield sought further particulars from Mr Norambuena’s solicitors and obtained a further report from Dr Stephenson.  However, at the second arbitration Mr Perry did not put the disease argument alluded to by Acting Deputy President O’Grady.  His submission to the Arbitrator was unambiguous, “our case has always been injury simpliciter but, if necessary, we would be happy for it ‑ it doesn’t really matter, but I understand that the respondent is happy for it to be dealt with on the basis of injury simpliciter and so are we.”  Mr Perry made no submissions suggesting that Mr Norambuena’s “injury simpliciter” resulted in the aggravation of a disease.  In these circumstances, the Arbitrator was correct to state “aggravation etc of disease is not alleged” (Reasons, paragraph 51). 

1. At the oral hearing of the appeal, counsel for Mr Norambuena, Mr Shoebridge, who did not appear at the arbitration, submitted that though there had been no strict reliance on ‘disease’ at the arbitration, it had always been Mr Norambuena’s case that he suffered an insult to his spine in the context of having a weakened spine because of degenerative changes, and that was always relied upon.  He sought to rely on the disease provisions in section 4(b)(ii) of the 1987 Act, which define an injury to include “the aggravation, acceleration, exacerbation or deterioration of any disease, where employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration”.  Ultimately, he submitted that, as a result of the incident at work on 23 February 2007, Mr Norambuena sustained either a disc lesion at the L4/5 level of his lumbar spine, or an aggravation of degenerative changes in his spine. 

1. The short hand reference to ‘injury simpliciter’ (an expression not used in the legislation) appears to have led to some confusion in this matter.  Injury is defined in section 4 of the 1987 Act as follows:

“4 Definition of “injury

In this Act:
"injury":

(a) means personal injury arising out of or in the course of employment,
(b) includes:

(i) a disease which is contracted by a worker in the course of employment and to which the employment was a contributing factor, and

(ii) the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration, and

(c) does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942 , or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”

1. The fact that a worker relies on an event that allegedly caused an aggravation of degenerative changes does not mean that the injury is not a “personal injury” within the terms of section 4(a) of the 1987 Act. Nor does it mean that section 16 of the 1987 Act applies. Section 16 does not determine the injury, but merely the deemed date of injury in aggravation of disease cases.

1. In Australian Conveyor Engineering Pty Ltd v Mecha Engineering Pty Ltd (1998) 45 NSWLR 606 (‘Mecha’) the Court of Appeal considered the nature of an injury in circumstances where the evidence suggested there had been an aggravation of degenerative changes.  In that case the worker was injured in a fall on 11 February 1992 (a ‘frank injury’) in the course of his employment with the first employer.  The nature of the injury was the aggravation of pre-existing degenerative changes in his back (aggravation of a disease).  The worker suffered a further injury to his back with a second employer between 13 November 1995 and 29 April 1996 as a result of the nature and conditions of his employment with that employer (a ‘nature and conditions injury’, which further aggravated his degenerative condition).  The trial judge awarded compensation from 29 April 1996 and apportioned liability between both employers under section 22 of the 1987 Act. 

1. On appeal it was held that though the injury on 11 February 1992 could have satisfied either definition of ‘injury’ in section 4 (either a ‘frank injury’ or ‘injury in the nature of an aggravation of a disease’) the words “injury consists in the aggravation …of a disease” in section 16(1) should be construed as not referring to something which is an injury independently of its aggravating effects on a previously existing disease, but as being confined to what are entirely injuries by aggravation (Sheller JA at 616).  In other words, the ‘frank injury’ and the ‘nature and conditions injury’ were considered to be separate and distinct injuries each giving rise to separate rights and liabilities. 

1. Powell JA said at 619:

“it was open to the trial judge to hold that the worker’s impairments were due to two discrete ‘injuries’ - a simple ‘injury’ in 1992 and an ‘injury’ brought about by the nature and conditions of his employment with the first respondent and that he did not err in doing so. This being so, it seems to me that the case did not call for the application of the provisions of s 16 of the Act.”

1. The question again came before the Court of Appeal in Rail Services Australia v Dimovski and anor [2004] NSWCA 267; (2004) 1 DDCR 648 (‘Dimovski’) where Hodgson JA held (at [68]) that section 16 applies only if the injury “consists in” the aggravation etc of a disease. His Honour added that:

“If there is an event that satisfies paragraph (a) of the definition of injury, and if that is the injury relied on and proved, the circumstance that it aggravated the disease and thus could have supported a case under paragraph (b)(ii) does not mean that this injury ‘consists in’ the aggravation of a disease.  One strange result of the contrary view would be that a frank injury relied on and proved would, if it happened to aggravate a disease, and if incapacity did not commence immediately, be deemed under s.16(1)(a) to have happened at some time other than when it in fact happened.”

1. The “contrary view” alluded to by Hodgson JA found favour with the majority of the Court of Appeal in Colliar & Colliar t/as Mid North Coast Mushrooms v Bulley & another (2000) 19 NSWCCR 302 (‘Colliar’), but in Dimovski the Court expressly preferred and applied the approach in Mecha and declined to follow Colliar.  For a more detailed discussion on this topic, see NSW Police Force v Kearns and Anor [2008] NSWWCCPD 29 at [38] to [59].

1. It follows that, as Mr Norambuena relies on and has established that he sustained a ‘frank injury’ to his back in the course of his employment on 23 February 2007, his injury does not come within the disease provisions of sections 4(b)(ii) and 16 of the 1987 Act and his injury is a personal injury under section 4(a), regardless of whether the injury may have also aggravated any pre-existing degenerative changes.

1. A question arises as to whether Mr Norambuena should be allowed to argue that his injury resulted in an aggravation of degenerative changes when he appears to have abandoned that argument before the arbitration. Transfield argues that he is estopped from presenting such an argument on appeal. That is not correct. The principles of estoppel do not apply in an appeal by way of review under section 352 of the 1998 Act. The correct principle is that, in general, a point cannot be raised for the first time on appeal when it could have been met by calling evidence below (Coulton v Holcombe (1986) 162 CLR 1 at 7; Park v Brothers [2005] HCA 73, (2005) 222 ALR 421 at 435; John Orford v Qi Ying He [2002] NSWCA 152). What is required is a determination of whether a party suffers any prejudice as a result of the opposing party presenting a different argument on appeal to the argument presented at arbitration. Normally, if the new or different point sought to be raised on appeal is restricted to a legal point that does not require the calling of additional evidence there will be no prejudice to the other party and, subject to compliance with the rules of procedural fairness, the argument will be allowed. That is especially so in the Commission, which is bound to act according to equity, good conscience and the substantial merits of the case without regard to technicalities (section 354(3) of the 1998 Act).

1. Counsel for Transfield, Mr Lichtenberger, argues that his client will be prejudiced if Mr Norambuena is permitted to argue that his injury has resulted in the aggravation of degenerative changes because it has been deprived of the opportunity to cross-examine him about his employment in the 12 months prior to 23 February 2007 and from seeking contribution from employers in that period who employed Mr Norambuena in employment that was a substantial contributing factor to the aggravation.  I do not agree.  As the authorities of Dimovski and Mecha demonstrate, no issue of contribution under section 16 arises in a case involving a section 4(a) injury, even if that injury has aggravated degenerative changes and may also have been categorised as a section 4(b)(ii) injury. Transfield has had every opportunity to consider and meet an argument that the injury 23 February 2007 also aggravated degenerative changes in Mr Norambuena’s back and even obtained additional evidence from Dr Stephenson on that point. It follows that Transfield will suffer no prejudice if Mr Norambuena is permitted to argue that his injury on 23 February 2007 also aggravated degenerative changes in his back and he is entitled to press that argument on appeal.

1. The exact nature of Mr Norambuena’s injury is disputed and requires careful consideration of the evidence.

Medical Evidence

1. It is submitted that the Arbitrator wrongly criticised Dr Mahony’s evidence because he declared Mr Norambuena unfit for welding duties and, without explanation, certified him fit for suitable duties in April 2008.  I agree that there is no inconsistency between declaring Mr Norambuena unfit for welding duties and fit for suitable duties.  However, that is not the point on which Transfield relies.  It argues that Mr Norambuena was initially declared fit for suitable duties (by Drs Huckstepp and Lum), but then declared unfit for work when he saw Dr Mahony on 3 July 2007.  Then, for no apparent reason, Dr Mahony declared Mr Norambuena fit for suitable duties on 22 April 2008.  I agree that it would have been helpful if Dr Mahony had explained the reason for that change, but I do not regard that omission as determinative of the issues before me.

1. The Arbitrator erred in stating that Dr Mahony made no recommendations about treatment to assist Mr Norambuena’s rehabilitation, except for regular visits to his general practitioner.  At page three of his report of 7 August 2007, Dr Mahony ordered shortwave ultrasound, cervical and lumbar traction, remedial massage and hydrotherapy.  In his medical certificates, Dr Mahony recommended physiotherapy, hydrotherapy and remedial massage. 

1. The Arbitrator also observed that Dr Mahony did not comment on Dr Stephenson’s reports or explain why his opinion was different.  It is argued that these comments indicate that the Arbitrator erroneously thought that Dr Mahony’s report was entitled to less weight and that these matters influenced the Arbitrator in accepting Dr Stephenson’s opinion in preference to Dr Mahony’s opinion (Reasons, paragraph 61).  There was no basis for the apparent criticism of Dr Mahony for not commenting on Dr Stephenson’s report.  There is no evidence that he was ever given a copy of the report.  The same comment could be made about Dr Stephenson’s report, which contains no explanation as to why his opinion is different from Dr Mahony’s. 

1. The Arbitrator also criticised Dr Mahony’s evidence for not explaining how a single traumatic incident caused the degenerative changes in the absence of an acute or prominent disc protrusion or how he reached the conclusion that there was nerve root compromise when the scan only showed a mild degree of narrowing (Reasons, paragraph 50).  It is correctly submitted that Dr Mahony did not say, “a single traumatic incident has caused the degenerative changes”.  Nor did he suggest there was nerve root compromise.  His evidence is that Mr Norambuena suffered a strain in association with degenerative changes with nerve root irritation and evidence of a discogenic lesion at L4/5 abutting the thecal sac.

1. It is argued that the Arbitrator erred in her analysis of Dr Stephenson’s evidence because, among other reasons, she assumed, without medical evidence, that Dr Stephenson’s opinion, rather than Dr Mahony’s, was more consistent with the findings in the MRI report.  She also erred, it is argued, by assuming that Dr Stephenson’s report was more in accord with the original report of injury and earlier assessments made by the treating general practitioners.  I agree that, in the absence of appropriate expert evidence, there was no basis for assuming that Dr Stephenson’s opinion was more consistent with the findings in the MRI.

1. In response, it is submitted on behalf of Transfield that the Arbitrator gave Dr Mahony’s report due weight in relation to other material, and that Dr Mahony’s opinion is a bare ipse dixit. 

1. Transfield also argues that there are objective inconsistencies in Mr Norambuena’s evidence, and, having seen Mr Norambuena give evidence, the Arbitrator was in a pre-eminent position to assess the nature of his injury.  It relies on the inconsistency in Mr Norambuena’s evidence at T6.55 to T7.1 where he agreed that he had not mentioned pain in parts of his body other than his back when he gave instructions to Mr Lang when Mr Lang was completing the report of injury form.  This is to be contrasted with his evidence at T8.38-44 where he said he felt pain in “all” his body, legs, head and back and that he did tell Mr Lang of those problems. 

1. Whilst I accept that those answers were inconsistent, I do not accept that they so undermine Mr Norambuena’s evidence that his claim in respect of his low back should be rejected.  Nor do I accept that the Arbitrator based her conclusions on her assessment of Mr Norambuena’s credit, or on his demeanour, such that I am not able to assess these issues for myself on review.  Whilst the Arbitrator’s findings are entitled to respect, her conclusions were largely based on her acceptance of Dr Stephenson’s evidence and on an incorrect assessment of Dr Mahony’s evidence.  For the reasons set out in this decision I have formed a different view of the medical evidence and reached different conclusions, at least so far as the low back injury is concerned, to those reached by the Arbitrator. 

1. Mr Norambuena is a man with an outstanding work record.  There is no evidence that he experienced any back symptoms prior to the incident on 23 February 2007 when he lifted a very heavy weight in the course of his employment.  Since that time he has continued to complain of significant back and leg symptoms.  The Arbitrator’s criticisms of Dr Mahony’s evidence, at least so far as Mr Norambuena’s low back is concerned, lack substance and fail to give sufficient weight to the findings on CT scan and Mr Norambuena’s evidence that he was asymptomatic before the injury and has remained symptomatic ever since.  

1. Dr Stephenson’s conclusion, that Mr Norambuena has recovered from his injury, is based on his opinion that the injury was no more than a musculo-ligamentous lumbar strain and that “The symptoms of such a condition should be resolving satisfactorily up to about a six-week period following the offending incident” (emphasis added) (Dr Stephenson’s report 15 June 2007, page six). Leaving aside the diagnosis for the moment, the evidence from Mr Norambuena, which I accept, is that his symptoms are not resolving. Dr Stephenson’s observation that the radiological evidence did not demonstrate any “acute” or “marked” lumbar disc protrusion (Dr Stephenson’s report 29 January 2008, page five) does not exclude the fact that there may be some disc pathology. The CT scan of 1 March 2007 (reproduced by Dr Stephenson and noted at [43] above) confirms the presence of generalised disc bulging abutting the thecal sac at L4/5. This is consistent with Dr Mahony’s opinion that there is evidence of a discogenic lesion at L4/5. These factors significantly undermine Dr Stephenson’s opinion and make Dr Mahony’s evidence the more compelling.

1. It follows that I do not accept Transfield’s submission that Dr Mahony’s opinion, so far as it relates to Mr Norambuena’s lumbar back condition, is a bare ipse dixit entitled to no weight.  His opinion is based on his history, findings on examination, the radiological reports, and his experience, qualifications and training as a Fellow of the Royal College of Surgeons and as a WorkCover Accredited Assessor.  His opinion in respect of Mr Norambuena’s low back injury is entitled to be given appropriate weight, along with all the other evidence, in assessing the issues in dispute.

1. For these reasons I prefer and accept Dr Mahony’s evidence in preference to Dr Stephenson’s evidence on the question of the nature and extent of Mr Norambuena’s lumbar spine injury and, to an extent, on the question of incapacity.  Based on Dr Mahony’s evidence, the radiological findings, and the fact that Mr Norambuena had no back or leg symptoms before his injury, I find that he sustained an L4/5 disc lesion with nerve root irritation affecting the right lower limb as a result of lifting a heavy weight at work on 23 February 2007 and that his injury has aggravated a potentially irritable low back.  Consistent with Dimovski and Mecha, the injury is a ‘personal injury’ under section 4(a) and is not an ‘aggravation injury’ under section 4(b)(ii).

Other Injuries

1. The position concerning Mr Norambuena’s neck and arm symptoms and his upper back is different.  I do not accept that Mr Norambuena injured his neck or upper back on 23 February 2007, or that his neck and arm symptoms or upper back symptoms have resulted from his low back injury.  The evidence is overwhelmingly to the effect, and I find, that he only injured his low back on 23 February 2007.  That evidence is found in his report of injury form dated 24 February 2007, the report from Ms Crossle, physiotherapist, the medical certificates from Drs Huckstepp and Lum, and Dr Huckstepp’s notes, all of which refer to Mr Norambuena having injured his low back only.  To his credit, Mr Norambuena concedes that his neck symptoms did not commence until about one month after the work injury.  There is no evidence explaining how neck symptoms starting one month after a low back injury can be said to have resulted from that injury.  In the absence of an explanation, I do not accept Dr Mahony’s evidence on this issue.

Incapacity

1. It is conceded that Mr Norambuena is only partially incapacitated for work and that his entitlement to weekly compensation must be determined under section 40 of the 1987 Act.

1. Mr Norambuena’s probable earnings but for the injury are determined on the assumption that his job with Transfield would have continued on the same or similar terms (Singh v TAJ (Sydney) Pty Limited [2006] NSWCA 330, (2006) 4 DDCR 551), though in fact it would have come to an end in early March 2007, once the shutdown project at Kurnell was completed. The evidence establishes, and I find, that Mr Norambuena’s income with Transfield was well above the statutory cap in section 40 and the cap therefore sets the figure in step 1 of the five steps required by Mitchell v Central West Area Health Service (1997) 14 NSWCCR 526. As at 21 July 2007 that figure was $1,535.90 per week with regular adjustments every April and October since.

1. Step 2 requires an assessment of Mr Norambuena’s ability to earn in the labour market reasonably assessable to him.  Unfortunately, the evidence as to Mr Norambuena’s work history and incapacity is far from ideal.  His résumé starts in 1986 when he obtained a fitter’s tradesman’s certificate.  Since then he has worked as a fitter welder, an aerospace tradesperson, a tow truck supervisor, a manager for auto wreckers, and a boilermaker.  He was also self-employed in the building industry from 2002 to 2006, when he installed carports and pergolas.  His oral evidence, which I accept, was that he has never been out of work in his 32 years in Australia (T3.10, 2 June 2008).

1. Whilst English is Mr Norambuena’s second language, he is obviously an intelligent and industrious man who has previously worked as a manager and supervisor, though he has no formal qualifications as a manager. His most recent medical certificate (dated 22 April 2008) declared him fit for suitable duties with a lifting limit of two kilograms, but placed no restriction on the hours he is able to work. Whilst I accept that Mr Norambuena is unfit for his pre-injury employment as a fitter and that he is restricted in his ability to bend and lift, I doubt that he is restricted to lifting a maximum of two kilograms. Having regard to the evidence tendered and bearing in mind Mr Norambuena has some experience as a manager and supervisor, I find his ability to earn in some suitable employment that does not require significant bending or lifting as at July 2007 to be $800.00 per week. In order to maintain relativity with the adjusted figures for the section 40 cap, and in order to allow for movements in general wage rates, it is appropriate, in the circumstances of this case, to adjust the figure of $800.00 at the same percentage rate of movement that has been applied to variations in the section 40 cap from July 2007 to date. Making that adjustment gives the following figures for Mr Norambuena’s ability to earn:

(a)21.7.07 to 30.9.07    = $800.00

(b)1.10.07 to 31.3.08      ($800.00 x 1.80%) + $800.00      = $814.40

(c)1.4.08 to 30.9.08        ($814.40 x 1.95%) + $814.40      = $830.28

(d)1.10.08 to 31.3.09       ($830.28 x 1.73%) + $830.28      = $844.64

(e)1.4.09 to 7.6.09          ($844.64 x 2.02%) + $844.64      = $861.70

1. Deducting the figures in [82](a) to [82](e) from the statutory cap in section 40 (step 3) gives the following figures:

(a)21.7.07 to 30.9.07       $1,535.90 less $800.00                = $735.90

(b)1.10.07 to 31.3.08       $1,563.50 less $814.40                = $749.10

(c)1.4.08 to 30.9.08        $1,594.00 less $830.28                = $763.72

(d)1.10.08 to 31.3.09      $1,621.60 less $844.64                = $776.96

(e)1.4.09 to 7.6.09          $1,654.40 less $861.70                = $792.70

1. Step 4 requires that I consider the application of the discretion in section 40(1) to determine the quantum of the reduction in Mr Norambuena’s weekly earnings “as may appear proper in the circumstances of the case”. There are three important factors that require the exercise of the discretion in the present matter.

1. First, Mr Norambuena complains of not insignificant pain and restriction in his neck and right arm, loss of sensation in the fingers in his right hand, and pain in his upper back that are unrelated to his injury.  Those symptoms will have a significant impact on his ability to earn. 

1. Second, his employment with Transfield was only short term and would have ended in the first week in March 2007.  Mr Shoebridge submitted that as Mr Norambuena had been paid a casual loading with Transfield of $256.41 per week, that figure should be reduced from the step 3 figure.  I do not accept that that figure properly reflects the one off nature of the contract with Transfield, which also provided substantial overtime, but only for the short term of the contract.  Whilst I accept that Mr Norambuena would have obtained alternative employment after leaving Transfield, I do not accept it would have been at the same rate of pay. 

1. Last, Mr Norambuena is almost 66 years old and is at an age where his earning capacity in a heavy physical job might be expected to wane in any event. 

1. Taking all these matters into account, I believe that the step 3 figures should be reduced by 55%, that is, between $404.00 per week and $435.00 per week for the periods covered by the award.  Making this reduction gives the following figures, which I find to be the proper reduction in Mr Norambuena’s weekly earning ability as a result of his injury on 23 February 2007:

(a)21.7.07 to 30.9.07           $735.90 reduced by 55%       = $331.16

(b)1.10.07 to 31.3.08           $749.10 reduced by 55%       = $337.10

(c)1.4.08 to 30.9.08             $763.72 reduced by 55%       = $343.67

(d)1.10.08 to 31.3.09           $776.96 reduced by 55%       = $349.63

(e)1.4.09 to 7.6.09               $792.70 reduced by 55%       = $356.72

1. As these figures are below the statutory maximum rate of compensation for a worker with no dependents, Mr Norambuena is entitled to an award in the amounts stated up to the first anniversary of the date on which he reached the age at which he was eligible to receive the age pension under the Social Security Act 1991 (Cth). Mr Norambuena reached that age on 7 June 2008 and his entitlement to weekly compensation therefore ceases on 7 June 2009 (see section 52(2)(a) of the 1987 Act).

CONCLUSION

1. Having conducted a review on the merits (per Spigelman CJ in State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249; (2007) 5 DDCR 287 at [28]), I am of the view that the Arbitrator erred in her assessment of the medical evidence. For the reasons stated above, I find that Mr Norambuena injured his lumbar spine in the course of his employment on 23 February 2007 and that he has been and remains partially incapacitated as a result of that injury. I have determined his entitlement to weekly compensation as set out at [88] above, and there shall be an award in his favour in those amounts. I decline to certify the matter as complex.

DECISION

1. Paragraphs one, two, four and five of the Amended Certificate of Determination dated 19 December 2008 are revoked and the following orders made:

“1.The respondent employer is to pay the applicant worker compensation under section 40 of the Workers Compensation Act 1987 as follows:

21.7.07 to 30.9.07 at $331.16 per week;
1.10.07 to 31.3.08 at $337.10 per week;
1.4.08 to 30.9.08 at $343.67 per week;
1.10.08 to 31.3.08 at $349.63 per week, and
1.4.09 to 7.6.09 at $356.72 per week.

2.The respondent employer is to pay the applicant worker’s reasonable section 60 expenses as a result of the injury to his low back on 23 February 2007.

3.The respondent employer is to pay the applicant workers costs, as assessed or agreed.”

1. Paragraphs three and six of the Amended Certificate of Determination are confirmed. 

COSTS

1. The respondent employer is to pay the appellant worker’s costs of the appeal. 

Bill Roche
Deputy President

15 May 2009

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

ASSOCIATE