North Sydney & Central Coast Area Health Service v Fitzpatrick

[2007] NSWWCCPD 155

WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:North Sydney & Central Coast Area Health Service v Fitzpatrick [2007] NSWWCCPD 155

APPELLANT:  North Sydney & Central Coast Area Health Service

RESPONDENT:  Susanne Fitzpatrick

INSURER:GIO General Limited

FILE NUMBER:  WCC15560-06

DATE OF ARBITRATOR’S DECISION:          8 January 2007

DATE OF APPEAL DECISION:  12 July 2007

SUBJECT MATTER OF DECISION: Error of law; Section 60 of the Workers Compensation Act 1987; aggravation of underlying degenerative condition.

PRESIDENTIAL MEMBER:  Deputy President Gary Byron

HEARING:On the papers

REPRESENTATION:  Appellant:      Hunt & Hunt Lawyers

Respondent:   Leitch Hasson Dent Solicitors

ORDERS MADE ON APPEAL:  The decision of the Arbitrator dated 8 January 2007 is confirmed.

The Appellant Employer is to pay the Respondent Worker’s costs of the appeal.

BACKGROUND TO THE APPEAL

1. Ms Susanne Fitzpatrick, the Respondent Worker, was born on 9 February 1962.  She commenced employment as a dental nurse with the Ryde Macquarie Dental Clinic, North Sydney & Central Area Health Service (‘the Health Service’), the Appellant Employer, in 1995. 

1. GIO General Limited (‘GIO’) was the Health Service’s insurer at all relevant times.

1. On 27 May 2003 Ms Fitzpatrick suffered an injury to her right leg when she slipped and fell while checking a letterbox in the course of her employment.  She attended her general practitioner, Dr Ramrakha and was referred to Dr Strokon, orthopaedic surgeon, who carried out an urgent arthroscopy on 31 May 2003.  Ms Fitzpatrick alleges that after the fall in May 2003, she continued to experience ongoing symptoms in her right knee and eventually underwent a total knee replacement on 31 May 2006, returning to full duties with the Health Service on 31 July 2006.

1. On 29 May 2003 GIO commenced payment of weekly compensation and reasonable and necessary medical expenses up to a statutory limit of $5,000, on the basis of provisional acceptance of liability.  Following a review of her claim GIO accepted liability on 19 August 2003 and agreed to pay weekly compensation and reasonable and necessary medical expenses. 

1. In July 2006 GIO subsequently declined liability for the payment of Ms Fitzpatrick’s knee replacement.  According to a letter on file, dated 4 July 2006, from Ms Fitzpatrick’s solicitors to GIO General Limited, the basis for this was a “report of Dr Ronald Thompson, indicating that the cause of Ms Fitzpatrick’s knee problems were attributable to her motor vehicle accident in 1980, which required three stitches for a gash in our client’s knee.”  Ms Fitzpatrick had apparently alerted her solicitors to the existence of the report. However, there is no report of a Dr Ronald Thompson in evidence or otherwise on the Commission file.  There is a report of Dr Neal Thomson, orthopaedic specialist, dated 2 May, 2006.  That report does not contain a statement in or to the effect that Ms Fitzpatrick’s knee problems were attributable to a motor vehicle accident in 1980.  Clearly, this is not the report referred to in the letter of 4 July 2006.  Dr Neal Thomson’s report is referred to in the transcript of the proceedings before the Arbitrator.

1. An ‘Application to Resolve a Dispute’ (‘the Application’) was registered with the Commission on 3 October 2006 seeking weekly compensation from 7 April 2006 to 8 August 2006, together with a general order for the payment of hospital and medical expenses.

1. In its Reply to Ms Fitzpatrick’s Application, filed on 24 October 2006, the Health Service submitted:

1.        that Ms Fitzpatrick was not injured as alleged or at all;

2.        that if Ms Fitzpatrick has a work-related injury, which is denied, her

employment was not a substantial contributing factor to the injury;

3.that Ms Fitzpatrick was not incapacitated as alleged or at all;

4.that any incapacity from which Ms Fitzpatrick may have suffered is unrelated to her employment with the Health Service;

5.that Ms Fitzpatrick’s average weekly earnings were not as alleged;

6.that Ms Fitzpatrick’s probable weekly earnings are not as alleged;

7.that Ms Fitzpatrick’s actual earnings are not as alleged;

8.that Ms Fitzpatrick’s ability to earn is not as alleged;

9.that the expenses claimed under section 60 of the Workers Compensation Act 1987 (‘the 1987 Act’) were not incurred by way of medical and hospital treatment reasonably necessary as a result of the injury alleged, and

10.that any payments were made without admission of liability by the Health Service.

1. A teleconference was held on 12 December 2006 and the claim was listed for conciliation/arbitration hearing before a Commission Arbitrator on 8 January 2007, at which time the Arbitrator gave an ex tempore decision. The Arbitrator found in favour of Ms Fitzpatrick on the issue of weekly compensation pursuant to section 36 of the 1987 Act and medical expenses pursuant to section 60 of the 1987 Act.

1. On 6 February 2007, the Health Service lodged with the Commission an ‘Application to Appeal Against Decision of Arbitrator’ (‘the appeal’).

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. The Health Service submits that the value of the Arbitrator’s determination equals $40,658.78. The amount at issue on appeal is in excess of $5,000.00, and consequently, the threshold in section 352(2)(a) of the 1998 Act is satisfied. The requirement of section 352(2)(b) is also satisfied, as the whole of the amount of compensation awarded, is in issue on appeal.

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. On 14 February 2007 the Health Service filed a ‘Certificate of Service’ with the Commission stating that the appeal had been served on Ms Fitzpatrick on 12 February 2007.  The Commission wrote to Ms Fitzpatrick’s solicitors (cc: to the Health Service) on 6 March 2007 noting that the Registrar’s Direction, directing the parties to serve their various documents on each other and to provide certificates of service, dated 8 February 2007, had incorrectly referred to Ms Fitzpatrick as the Appellant, and that the Direction had been suitably amended.  The Registrar requested that the parties proceed and comply with, the amended direction. 

1. On 11 April 2007 the Commission wrote to the Health Service stating that the Certificate of Service filed on 14 February 2007 did not indicate service of the Direction and that “the appeal would not proceed until you provide certification of service in accordance with the Direction.”

1. The Health Service filed an Amended Certificate of Service in the Commission on 17 April 2007, which certified that both the Application and the Direction were served on Ms Fitzpatrick on 12 February 2007.  The letter also stated that:

“We note your correspondence dated 6 March 2007 amending the direction issued by the Registrar on 8 February 2007 and advise we have not served this correspondence on Ms Fitzpatrick’s solicitors as this correspondence was directed to them and only carbon copied to us.”

1. On 3 May 2007 Ms Fitzpatrick filed submissions in Reply in the Commission, which did not comply with Rule 16.2(7) of the Workers Compensation Commission Rules 2006 (‘the Rules’), which requires a ‘Notice of Opposition’ to be lodged and served upon the other parties within 28 days of being served with the [appeal] application. The submissions in Reply also did not comply with Rule 16.2(8)(b) and (d). Rule 16.2(9) requires that the party opposing the application must lodge a certificate of service within 7 days of the date of service, certifying service of the notice of opposition on the other parties. While Ms Fitzpatrick’s solicitors failed to lodge a certificate of service, the covering letter indicated that a copy of the submissions was sent to the Health Service, direct. There is no indication that this is not the case.

1. No reasons were given for non-compliance with Rule 16.2(7) and the Registrar’s Direction, and no explanation was given for the lengthy delay in lodging the submissions. In addition no request or submissions were made to the Commission, seeking relief from compliance with the Rules, pursuant to Rule 1.6.

1. On 5 May 2007 the Health Service’s solicitors wrote to the Commission objecting to Ms Fitzpatrick’s late Reply, which it submits was in breach of the Commission’s direction dated 8 February 2007, and stated:

“We advise that we object to the Worker attempting to file any submissions in this matter or a Form 9A in breach of the direction of the Commission dated 8 February 2007.  Any such Notice of Opposition should have been lodged by the Commission and serve [sic] by 22 March 2007 and additionally object as the submissions are not in the required Form 9A.

We look forward to your advice as regards the acceptance of the submissions of the worker and reserve the right to prepare submissions in reply if the respondent’s submissions are accepted.”

1. A perusal of the Commission file reveals that there was no response to the Health Service’s letter. 

1. Rule 16.2(11) provides for an extension of time in respect of the right to seek leave to appeal. It does not deal with the lodgement of a Notice of Opposition to that Appeal. However Rule 3.2 provides that the Commission “... may by order extend or abridge any time fixed by these rules...” and may do so of its own motion. Furthermore, Rule 1.6 (2) enables the Commission, if it thinks fit, to dispense with any of the requirements of the Rules.

1. The discretion to extend time is given for the sole purpose of enabling a court [or tribunal] to do justice between the parties (Gallo; Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262). In Gallo, McHugh J said that this means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the Rules will work an injustice upon the applicant; in order to determine whether the Rules will work an injustice it is necessary to have regard to:

• the nature of the litigation;
• the history of the proceedings;
• the conduct of the parties;
• the consequences for the parties of the grant or refusal of the application for extension of time;
• the prospects of the applicant succeeding in the appeal, and
• upon expiry of the time for appealing, the respondent has a vested right to retain the judgment unless the application for extension of time is granted.

1. No explanation has been offered by Ms Fitzpatrick’s solicitors for the failure to lodge a reply within the prescribed time frame or file a certificate of service. The delay was considerable and some explanation for failure to comply with the relevant Rules was obviously required.

1. Ms Fitzpatrick’s interests in this matter, potentially at least, are not advanced by the omission by her legal representatives, and their failure to provide any sort of an explanation for their undue delay and non compliance with the Rules. However, because this appeal is unsuccessful for reasons other than those raised in Ms Fitzpatrick’s late submissions, there can be no suggestion of prejudice or injustice by reason of their exclusion.

1. Accordingly, Ms Fitzpatrick’s late submissions are not taken into account in these proceedings.

1. Leave to appeal is granted.

REVIEW ‘ON THE PAPERS’

1. 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.”

1. The Health Service submits that the appeal can proceed ‘on the papers’ while Ms Fitzpatrick is silent on this issue.  Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, 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

1. The ‘Certificate of Determination’, dated 8 January 2007, records the Arbitrator’s orders as follows:

“1.That leave is given to amend Part 4.1 of the Application to read 7 April 2006 to 5 August 2006.

2.That the Respondent pay the Applicant’s claim in respect of weekly benefits compensation under section 36 of the Workers Compensation Act 1987 at the rate of $864.44 per week, from 7 April 2006 to 5 August 2006.

3.That the Respondent pay the Applicant’s section 60 of the Workers Compensation Act 1987 expenses upon production of accounts or receipts.

4.That the Respondent pay the Applicant’s costs as agreed or assessed.”

ISSUE IN DISPUTE

1. The issue in dispute in the appeal is whether the Arbitrator made an error of law in finding the Health Service liable to pay Ms Fitzpatrick’s weekly benefits and medical expenses.  Notwithstanding that the Health Service appeals the decision of the Arbitrator “in its entirety”, it submits that the error of law alleged arose specifically by reason that the Arbitrator’s decision was not consistent with his findings.  The Health Service submits:

“The applicant employer submits that the Arbitrator erred in law in finding the applicant employer liable for the costs of the total knee replacement carried out in May 2006 as it was found that the work injury to the right knee which occurred in May 2003 was a retinacula tear and a temporary aggravation to the right knee.”

1. Reliance is placed on the decision in Lilly v Tomago Aluminium Company Limited [2004] NSWWCCPD 62 (‘Lilly’).

1. While the Health Service provides an outline of the history and the medical evidence in the matter, it puts forward no ground of appeal, and no assertion of, or reason for, error on the part of the Arbitrator, other than the alleged inconsistency between his findings and the decision made.  This is the only issue on appeal. 

APPEAL TO A PRESIDENTIAL MEMBER

1. A Presidential member has a specific and limited role in the review of a decision of an Arbitrator. The review is not a rehearing. The Presidential member is not dealing with the matter de novo and is not arriving at fresh decision based on all of the evidence available at a later time (Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616).

1. The powers of a Presidential member to revoke the decision pursuant to section 352(7) of the 1998 Act and to substitute a new decision in its place, or to remit to the same Arbitrator or a different Arbitrator, for determination in accordance with a decision of, or directions by, a Presidential member, are exercisable only where it is demonstrated that the decision is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172; Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSWWCCPD 6). The general principle was highlighted by Gleeson CJ in Swain v Waverley Municipal Council (2005) 79 ALJR 249; 213 ALR 249. His Honour said: “The question for an appellate court is whether it was reasonably open to the jury to make an assessment unfavourable to the respondent, not whether the appellate court agrees with it.” Moreover, the position must be such that but for the error, a different decision would have been made in its place (YG & GG v Minister for Community Services [2002] NSWCA 247).

EVIDENCE AND SUBMISSIONS

1. The Health Service submits that the evidence before the Arbitrator was as follows:

·     Ms Fitzpatrick’s statement dated 28 September 2006 confirmed that she suffered an injury to the right knee on 19 April 1980 and following the development of pain, swelling and stiffness in her right knee on 25 May 1998, Dr Strokon, orthopaedic surgeon, performed an arthroscopy on her right knee on 20 July 1998;

·     Ms Fitzpatrick experienced no improvement in her knee and Dr Strokon performed a high tibial osteotomy on 26 May 1999;

·     following the fall at work on 27 May 2003 Ms Fitzpatrick experienced ongoing symptoms and eventually underwent a total knee reconstruction on 31 May 2006, performed by Dr Strokon;

·     Ms Fitzpatrick relies on the medical opinion of Dr Bentivoglio, orthopaedic surgeon, who in his report dated 25 August 2006, formed the view that x-rays taken of her knee in May 2003 revealed evidence of medial compartment degenerative osteoarthritis and found that Ms Fitzpatrick had significant degenerative osteoarthritis present in her right knee prior to the fall, requiring significant treatment;

·     Ms Fitzpatrick also relies on the medical opinion of Dr Strokon, who in his reports dated 29 July 1998, 29 May 2003 and 11 June 2003, observed that in July 1998 she had significant degenerative changes in the medial compartment of the joint.  In his report of 29 May 2003 Dr Strokon considered Ms Fitzpatrick to have had an impaction injury as a result of her fall at work on 26 May 2003 and noted that the “x-rays show no recent changes.  It is not clear whether there has been a chondrial or meniscal injury to the interior of the joint but I think she warrants an anthroscopy to define the injury”;

·     in defence of this claim the Health Service relies upon the medical opinions of Dr Thomson and Dr Arudpragasam.  In his report of 2 May 2006, Dr Thomson considered that Ms Fitzpatrick’s injury of 27 May 2003 caused her to suffer a haemarthrosis of the right knee, which required arthroscopic inspection and accepted that she recovered from that procedure, and was able to return to work.  He considered that her ongoing problems related to the osteoarthritis of the right leg joint which was pre-existing;

·     in his report of 22 May 2006 Dr Arudpragasam considered that the compartment osteoarthritis and symptoms were due to Ms Fitzpatrick’s constitutional problems and did not accept that her further symptoms were due to her work.  He considered that the worsening of her osteoarthritis would have occurred in the natural course of her illness, and

·     in a final report of 3 July 2006 Dr Arudpragasam considered that, as a result of her fall in May 2003 Ms Fitzpatrick developed a temporary aggravation of her medial compartment osteoarthritis and he posited that her present symptoms were due to the natural history of the injury, which occurred in 1980.

1. The Health Service submits that “the Arbitrator erred in law in finding the applicant employer liable for the costs of the total knee replacement carried out in May 2006 as it was found that the work injury to the right knee occurred in May 2003 was a retinacular tear and a temporary aggravation to the right knee”.  The Health Service relies on the decision of Deputy President Fleming, as she then was, in Lilly, a case with similar factual circumstances, in which the Deputy President found:

“To be entitled to compensation for the costs of medical or related expenses under section 60 of the 1987 Act, a worker must demonstrate that these expenses are reasonably necessary ‘as a result of an injury received by the worker’ being the ‘injury’ as defined in section 4 of the 1987 Act.”

1. The Health Service submits that DP Fleming found in Lilly that the respondent employer was not liable to pay the worker for medical expenses (total knee replacement) pursuant to section 60, as it was found that the weight of the medical evidence supported the conclusion that the work injury, which lead to an aggravation of a significant underlying degenerative condition of the right knee, had ceased.

1. In other words, the Health Service submits that DP Fleming found that the weight of the medical evidence supported the conclusion that the work injury was an aggravation of an underlying degenerative condition of the worker’s right knee, but that the aggravation ceased because the aggravation sustained was of a temporary nature.

1. The Health Service submits that the Arbitrator in the instant matter made similar findings to those made by the Deputy President in Lilly, but he then erred insofar as he proceeded to make an award in favour of Ms Fitzpatrick, which was inconsistent with those findings.     

1. As indicated above, Ms Fitzpatrick’s submissions in this appeal are not taken into account. 

DISCUSSION AND FINDINGS

1. The term ‘injury’ is defined in section 4 of the 1987 Act and the 1998 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

   … .”

2. In considering the meaning of ‘aggravation, acceleration, exacerbation or deterioration’ of any disease’ it is important to note the words of Moffitt J in the Full Court of the Supreme Court of New South Wales, which were cited with approval by Justice Kitto in Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626:

“There is an exacerbation of a disease where the experience of the disease by the patient is increased or intensified by an increase or intensifying of symptoms. The word is directed to the individual and the effect of the disease upon him rather than being concerned with the underlying mechanism.”

1. The documentary evidence before the Arbitrator included a statement from Ms Fitzpatrick dated 28 September 2006 together with the medical evidence including reports from Dr Strokon and Dr Bentivoglio, orthopaedic surgeons, on behalf of Ms Fitzpatrick and Dr Arudpragasam and Dr Thomson, on behalf of the Health Service.  The Arbitrator refers favourably (page 22 of the Commission Transcript) to the report of Dr Bentivoglio dated 25 August 2006, in respect of the issue of ‘aggravation’, in which Dr Bentivoglio states:

“This lady would have aggravated significant pre-existing degenerative osteoarthritic changes involving her right knee as a result of the incident in May 2003 which she described.  Unfortunately, as a result of the injury she has had to have a total knee joint replacement earlier than would have been necessary if she had not had this injury, and I consider that the treatment she has received has been appropriate.”

1. Dr Strokon in his report of 24 May 2006 opines:

“Although it is clear that she had osteoarthritis in this knee well before the work incident, the fall that she had did contribute an element of aggravation.  There has been a progressive deterioration in her knee ever since and has now reached a stage where she requires a total knee replacement. …I would attribute the underlying osteoarthritis to be initiated by the motor accident that she described many years ago.  Some further aggravation of this degenerative process has taken place as a result of the incident in 2003 and, on the basis of her deterioration, it would seem to have an ongoing effect.  How long this knee may have survived without the incident in 2003 is impossible to estimate.”

1. The Arbitrator duly notes (at page 23 of the Commission transcript) that the view of Dr Bentivoglio as to the fact of aggravation is supported by Dr Arudpragasam, in his report dated 3 July 2006, but where Dr Arudpragasam refers to a temporary aggravation:

“I would be of the opinion that as a result of a work-related fall this lady sustained a temporary aggravation of her medial compartment osteoarthritis of her right knee.”

1. In his report dated 2 May 2006 Dr Thomson notes that “Ms Fitzpatrick was a poor historian” and states:

“Ms Fitzpatrick did have a work injury on 27.5.03 when she suffered a haemarthrosis of the right knee and required arthroscopic inspection of the right knee.

She did recover from that procedure and was able to return to work.  Her ongoing problems are related to the osteoarthritis of the right knee joint, which was pre-existing.

…

I cannot determine whether the pre-existing osteoarthritis is work related.  It would appear that the injury when she twisted her knee on 27.05.03 did settle down initially and now her continuing problems are due to osteoarthritis of the right knee joint.”

1. The Arbitrator also had before him the statement of Ms Fitzpatrick dated 28 September 2006 in which she states:

“However since the arthroscopy that was performed on 29 May 2003 after my fall at work I continued to experience ongoing symptoms.  On 14 March 2006 I consulted Dr Ramrakha as [sic] symptoms had become so bad that I could no longer work.  I was referred back to Dr Strokon and I underwent a total knee reconstruction on 31 May 2006.  This improved my symptoms dramatically so much that I was able to return to work on full duties on 31 July 2006.  I continue to experience symptoms in my knee despite the fact that I have been significantly more comfortable following my knee replacement.”

1. Notwithstanding the foregoing, the critical submission made by the Health Service on appeal is that the Arbitrator, having found that the aggravation of the pre-existing osteoarthritis was temporary, erred in law in finding that the Health Service was liable to pay weekly benefits and the medical expenses for the total knee replacement surgery.  The Health Service specifically states on page 4 of its appeal submissions, under the heading ‘Findings’, the following:

“The arbitrator also found that the applicant would have aggravated

‘significant pre-existing degenerative osteoarthritic changes involving her right knee as a result of the incident in May 2003’”

1. However, this is incorrect.  It is not a finding made by the Arbitrator.  This is a direct quote, out of context, from Dr Bentivoglio’s report of 25 August 2006 that the Arbitrator was reading.

1. The Health Service also submits:

“The arbitrator then concluded that

‘As a result of a work-related fall this lady sustained temporary aggravation of her medial compartment osteoarthritis of her right leg.’ ” (Emphasis added).

1. Once again, this is not a finding or an opinion of the Arbitrator but a direct quote taken from the report of Dr Arudpragasam dated 3 July 2006.  The Arbitrator in fact did not make a finding that the aggravation was only temporary but was simply reading from and discussing a part of the medical evidence.

1. The Arbitrator, in his ex tempore decision (P23, L11of the Commission transcript) states:

“I think there’s no dispute, and clearly the medical evidence sets out that there is pre-existing degenerative osteoarthritis, dating back to 1980, aggravated by the earlier incidents of ’98 and ’99 and continuing on with worsening osteoarthritic changes of that right knee.  But, significantly, the material point is that, as set out by at least two doctors, as a result of the work-related fall she sustained an aggravation of her medial compartment osteoarthritic knee, although temporary as Arutpragasam [sic] refers to it, and an aggravation, as referred to by Dr Bentivoglio.”

1. The Arbitrator (P24, L10 of the Commission transcript) concludes:

“Now, I’m satisfied that the worker has suffered a personal injury that satisfies section 4 of the Act.  It arose out of or in the course of employment.  That was the meniscal tear.  I’m satisfied that as a result of the comments relating to the aggravation and acceleration that there’s a nexus with that injury of May 2003, there’s a nexus between that and the osteoarthritic changes to the right knee, which at least resulted in the bringing forward of surgery required to alleviate the pain and symptoms that the applicant was experiencing, and clearly from her own statement that I’ve had a chance to consider and also from the submissions made by the parties, that was of clear benefit to the worker.  In fact, in respect of that there is a case also cited in the Practice where it says:

‘Medical and related treatment is reasonably necessary if it maintains the worker’s health or slows or prevents its deterioration.’

And clearly there has been a benefit to the worker in respect of the receipt of the total knee replacement.

So on that basis I’m satisfied that the worker is entitled to reasonable and necessary expenses resulting from the surgery that was required earlier than would otherwise have been required.  Although the extent of that acceleration is something that can’t be clearly determined, I’m satisfied that there was an acceleration and an aggravation requiring surgery earlier than would otherwise have been necessary as referred to on that first paragraph at page 3 of Dr Bentivoglio’s report and by others.”

1. Attached to the Health Service’s appeal application is a document referred to as annexure C, which is titled ‘Transcript’.  This document appears to have been prepared for or by the Health Service’s solicitors.  In that document, the statements referred to above at paragraphs 47 and 49 have been incorrectly attributed to the Arbitrator as his findings.  They are not his comments or findings.  They are merely parts of the contents of medical reports from which he was quoting when canvassing the evidence that was before him.  They appear at page 16 of the Health Service’s ‘Transcript’.  However, that document does not distinguish between the Arbitrator’s own comments, and the quotes from the medical reports to which he was alluding.  These are represented accurately in the Commission’s transcript.  The ‘Transcript’ relied upon by the Health Service is not a Commission transcript, and is clearly wrong and misleading.

1. A perusal of the Commission file reveals that a copy of the Commission’s transcript of proceedings was sent to both parties on 19 February 2007.  The Commission’s covering letter included the following standard statement:

“If you have indicated in your submissions on appeal that you have been unable to complete your grounds of and/or submissions on appeal for the reason that the transcript of proceedings had not been received by you at the date of lodgement, you are required to complete and lodge in the Commission, your final grounds and/or submissions on appeal and serve on all other parties to the appeal in accordance with Practice Direction No 6.”

1. However, the Health Service’s appeal was lodged in the Commission by facsimile transmission on 6 February 2007. There is no suggestion that its submissions could not be completed because a copy of the Commission transcript had not been received.  It seems that the Health Service’s legal representatives were misled when in preparing this appeal they relied upon the ‘Transcript’, which contained the inaccuracies outlined above.  This document was not the transcript that was provided to them by the Commission on 19 February 2007.

1. It is clear that the Arbitrator did not fall into error as alleged.  He did not make the findings as alleged.  The words attributed to him were not his.  His decision was consistent with the findings that he did make.  In the circumstances, the ground of appeal is not made out.  As no other error of fact, law or discretion has been alleged and no other substantive grounds of appeal have been put, the appeal must fail.

1. Ultimately it is a question of fact for the Arbitrator whether the ‘injury consists in the aggravation, acceleration, exacerbation or deterioration’ of a ‘disease’. (J Robins & Sons Group Limited v Ly [2006] NSWWCCPD 162). The Arbitrator appears to have canvassed the evidence adequately and arrived at his decision based upon the evidence, and the weight that he applied to it. However, I am not required to make a determination on this issue.

DECISION

1. The appeal is unsuccessful.  The Arbitrator’s decision dated 7 January 2007 is confirmed.

COSTS

1. The Appellant Employer is to pay the Respondent Worker’s costs of the appeal.

Gary Byron

Deputy President  

12 July 2007

I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF GARY BYRON, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE