NSW Department of Education and Communities v Murray
[2012] NSWWCCPD 76
•13 December 2012
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| CITATION: | NSW Department of Education and Communities v Murray [2012] NSWWCCPD 76 | ||||
| APPELLANT: | NSW Department of Education and Communities | ||||
| RESPONDENT: | Charmaine Susanne Murray | ||||
| INSURER: | Allianz Australia Insurance Ltd | ||||
| FILE NUMBER: | A1-4170/12 | ||||
| ARBITRATOR: | Mr W Dalley | ||||
| DATE OF ARBITRATOR’S DECISION: | 31 August 2012 | ||||
| DATE OF APPEAL DECISION: | 13 December 2012 | ||||
| SUBJECT MATTER OF DECISION: | Claim for lump sum compensation and medical expenses; referral to Approved Medical Specialist; whether insurer disputed injury; meaning and effect of s 74 notice; meaning and effect of Reply; effect of admissions by counsel at arbitration; effect of general order for the payment of hospital and medical expenses; s 60 Workers Compensation Act 1987; s 74 Workplace Injury Management and Workers Compensation Act 1998; non-compliance with Practice Direction No 6 | ||||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | ||||
| HEARING: | On the papers | ||||
| REPRESENTATION: | Appellant: | Sparke Helmore Lawyers | |||
| Respondent: | Slater & Gordon | ||||
ORDERS MADE ON APPEAL: | The Arbitrator’s determination of 31 August 2012 is confirmed. The appellant employer is to pay the respondent worker’s costs of the appeal, as agreed or assessed. | ||||
INTRODUCTION
This appeal concerns whether the insurer disputed that the worker received an injury to her left shoulder in an incident that it agreed occurred at work in 2003. The issue turns on the construction of the pleadings, including the s 74 notice, and the submissions of counsel at the arbitration. If it is found that the insurer did not dispute injury to the left shoulder, an additional issue arises as to the effect of a general order for the payment of hospital and medical expenses.
BACKGROUND
On 24 September 2003, the respondent worker, Charmaine Murray, was forcefully struck on the left side of her upper chest by a soccer ball or basketball in the course of her employment as a teacher with the appellant employer, the NSW Department of Education and Communities. She felt immediate pain in her chest, neck and left shoulder.
The force of the blow knocked Mrs Murray off her feet. Fellow teachers came to her assistance and helped her to the office. Because of her pain, she was taken by ambulance to Mildura Base Hospital where she was observed in the emergency department and discharged home that evening. Though in a lot pain, Mrs Murray said she returned to work the following day because she had committed to working that day.
By letter dated 25 September 2003, the appellant’s insurer, GIO Workers Compensation (GIO), approved the commencement of weekly compensation on the basis of provisional acceptance of liability. The pain in her neck and left shoulder continued.
Due to an increase in pain in her left shoulder while at work in 2006, Mrs Murray submitted an Employee Incident Notification on 22 July 2006 in which she described the body part injured as “left shoulder”. She described the incident as an “aggravation of injury that occurred on 24/9/2003. Original injury due to being hit with a basketball in the play-ground at Buronga Pub [sic]”. She described no new incident in 2006.
Mrs Murray ultimately stopped teaching in August 2009. I assume, though the evidence is unclear, that she submitted a claim for compensation at that time.
In a s 74 notice dated 6 November 2009, GIO disputed liability for weekly compensation and medical expenses. The notice said that the following matters were in issue:
“• That you do not suffer from an injury arising out of or in the course of your employment with the NSW Department of Education and Training pursuant to Section 4 of the Workers Compensation Act 1987 (the 1987 Act).
· That you no longer suffer a work related injury in which your employment with the NSW Department of Education and Training was a substantial contributing factor pursuant to section 9A of the Act.
· That you do not suffer from a work-related incapacity pursuant to section 33 of the Act.
· That your treatment expenses are not reasonable or necessary pursuant to sections 59 and 60 of the Act.”
In disputing liability, GIO relied on a report from Dr Smith, orthopaedic surgeon, dated 19 October 2009 in which he took a history that a soccer ball struck Mrs Murray on the left chest wall and left shoulder at school in September 2003. An ultrasound in September 2006 revealed a small full thickness tear, probably in the supraspinatus, and some fluid in the bursa and impingement of the bursa and the tendon with abduction. Dr Smith thought the investigation was within normal limits for Mrs Murray’s age. On examination, he found nothing objectively wrong with Mrs Murray’s left shoulder. Examination of the cervical spine suggested she had a lot of degenerative disease in that part of her body.
Dr Smith felt that, if Mrs Murray was struck by a soccer ball on the left chest wall, she could have jerked her neck around, as her chiropractor had suggested, and suffered an aggravation to her cervical degenerative disease, which could have produced neck pain, left shoulder pain, pain around the shoulder blades, between the shoulder blades and down the left arm. He felt she would have recovered from that exacerbation fairly quickly. In answer to the question “Does the worker have the injury claimed?”, Dr Smith wrote:
“She is focused on the rotator cuff problem, but in fact her symptoms are emanating from the cervical spine. They are of an intermittent nature.”
In answer to the question “Is the worker still suffering from a work-related injury?”, Dr Smith said:
“She is no longer suffering from a work-related injury. That would have settled down after a few weeks from 24 September 2003.”
On 9 January 2012, Mrs Murray’s solicitor lodged a claim on her behalf for lump sum compensation in respect of a 12 per cent whole person impairment due to injury to her left and right upper extremities in the incident on 24 September 2003.
On 1 May 2012, Mrs Murray lodged with the Commission an Application to Resolve a Dispute (the Application) in which she claimed lump sum compensation as particularised in the letter of 9 January 2012. The Application described the injury as “left shoulder, neck, chest and consequential injury to the right shoulder” due to being knocked to the ground when she was struck with force by a ball on 24 September 2003.
The appellant lodged its Reply on 25 May 2012. Under Part 3 – Matters in Dispute, it marked “yes” to “Confirmed as per dispute notice(s) attached to the Application”. The only dispute notice attached to the Application was the s 74 notice dated 6 November 2009. The Reply added:
“The [appellant] relies upon the annexed section 74 notice and its attachments and in addition or in the alternative relies upon the following:
Injury
1 While it is not disputed the Applicant was involved in an incident on 24 September 2003 whereby she was struck by a ball in the left chest and shoulder thus aggravating her pre-existing degenerative cervical spine condition and reportedly producing pain symptoms in the neck and left shoulder, any work related aggravation has ceased and the Applicant’s employment is no longer a substantial contributing factor to the Applicant’s cervical spine and left shoulder symptoms and alleged injury.
2 The [appellant] disputes the Applicant suffered a work related injury to her right upper extremity and disputes that employment was a substantial contributing factor to the Applicant’s alleged right upper extremity injury.
Sections 66/67
3 …
4 …
5 …
Section 60 expenses
6 That Section 60 expenses are not reasonably necessary or do not relate to the injury relied upon.
7 That any treatment the Applicant requires is not related to a workplace injury sustained by her during the course of her employment with the [appellant], but is the result of age related degenerative changes and/or factors unrelated to her employment with the [appellant].
Disease
8 That the Applicant’s employment was not a substantial contributing factor to a disease contracted by the Applicant, or any aggravation, acceleration, exacerbation or deterioration of a disease as alleged or at all.
9 In the alternative, any aggravation and/or exacerbation of the Applicant’s pre-existing age related degenerative disease caused by the incident on 24 September 2003 or as a result of the nature and conditions of the Applicant’s employment has resolved and any aggravation, exacerbation, acceleration or deterioration now suffered by the Applicant is unrelated to her employment with the [appellant].
10 The [appellant] notes that the Applicant has not worked for the [appellant] since August 2009 and is now 79 years of age.
The [appellant] notes its s 74 notice is dated 6 November 2009 and therefore foreshadows it may seek to rely on an up-to-date medical report from Dr Anthony Smith, who last saw the Applicant on 19 October 2009.
The [appellant] foreshadows it will be seeking leave to issue Directions to Produce documents to the Applicant’s treating medical practitioners and to Mildura Base Hospital.
The [appellant] relies upon medical evidence and relevant legislation.”
At a teleconference on 27 June 2012, the Arbitrator gave leave for the appellant to issue Directions for Production on Mildura Base Hospital and on a number of treating health care professionals, and listed the matter for arbitration on 29 August 2012. At the arbitration, Mr Judd, of counsel, appeared for Mrs Murray and Mr Niven, of counsel, appeared for the appellant.
At the arbitration, Mr Judd withdrew “any claim for the right shoulder” (T1.29). The Arbitrator noted the amendment to the Application and dispensed with the filing of an amended Application. He added, at T1.39:
“The situation, as I understand it, from the telephone conference on the 4th of May was that the injury to the left shoulder was admitted. Is that still the case, Mr Niven?
MR NIVEN: That’s in the Reply.
ARBITRATOR: It’s in the Reply, yes. The - now, in view of that step, Mr Niven would you like a moment to ‑‑
MR NIVEN: Yes.
ARBITRATOR: ‑‑ communicate that to those who instruct you? Very well, I’ll adjourn the matter briefly and Mr Niven can make a phone call.”
The Commission has no record of a teleconference on 4 May 2012 and the parties agreed that the only teleconference in this matter was on 27 June 2012. At the teleconference, Mr Lehmann, solicitor, represented the appellant and said that his client did not dispute that an incident occurred on 24 September 2003, but disputed that Mrs Murray suffered any work related injury or symptoms and said that her symptoms had resolved. While that statement was arguably consistent with the Arbitrator’s understanding that injury had been admitted, in the absence of a transcript of the teleconference I do not intend to determine the case on the basis of the statements allegedly made at that time.
After the adjournment referred to at [15] above, the Arbitrator recorded that the matter could not be resolved and, after noting the documents in evidence, he asked Mr Niven to outline the issues (T3.7). The following exchange then took place, starting at T3.10:
“MR NIVEN: The issues from the Respondent’s point of view are simply this, that whilst it is conceded that an incident occurred on the 24th of September 2003 involving the Applicant and a soccer ball, the medical evidence in the Respondent’s submissions does not support or substantiate an ongoing whole person impairment that resulted there from. And whilst the Respondent understands the legal connection between conceding a, if you like, an incident as opposed to an injury, the Respondent says that the evidence clearly establishes that the Applicant suffered an injury to her left shoulder on the 24th of September 2003. However, despite attending Mildura Base Hospital on the day of her injury, there are no contemporaneous records to show the extent of her left shoulder injury.
ARBITRATOR: Perhaps the issue then is you seek leave to re-argue Haroun and Taree Greater Council v Moore. Is that’s [sic] the position?
MR NIVEN: That would be ‑‑
ARBITRATOR: As I understand the law, the - if there is injury, then I - in the absence of a claim for weekly payments, I have no option but to refer it to an approved medical specialist for assessment as to the question of any continuing impairment or incapacity is not for me to decide, that is what I see is the - now, you say that Greater Taree Council is wrongly - -
MR NIVEN: In accordance with my instructions, that would follow, but I should also add that, in accordance with my instructions, the position so far as the Applicant’s section 60 expenses are at large by virtue of an order that may be made consequent upon you referring the matter to an AMS, my client takes the view that we are entitled to argue the point that despite the fact of an incident, we can argue that on the medical evidence available there is no whole person impairment resultant thereby in accordance with the medical opinion of Dr Smith as has been tendered in the late documents.
I know that there is a view that once conceded, that is an incident as opposed to - or an injury, that that matter can be then determined by the AMS as to whether or not there is a whole person impairment at all, if not to what extent. However, my client is of the view that that issue about whole person impairment is clearly obviated by the fact that the medical evidence would demonstrate, or does demonstrate, that there is no real ongoing aggravation of that incident in 24 September 2003. I might just go through this.
ARBITRATOR: Yes.” (emphasis added)
(Given the importance of the above exchanges, I have listened to the audio recording and can confirm that the transcript is accurate.)
The Arbitrator’s reference to Greater Taree Council was a reference to Greater Taree City Council v Moore [2010] NSWWCCPD 49 (Moore).
The Arbitrator continued, at T4.28:
“ARBITRATOR: Very well, the position is - alright, let’s just sum the position up. There is admitted injury to the left shoulder on the 24th of September 2003. The - I understand that Mr Niven now wants to address on why the Greater Taree Council was wrongly decided, in my view.
MR JUDD: Well, that’s all he can do Mr Arbitrator. If he wants to argue that Deputy President Roche has made an error, then good luck to him.
MR NIVEN: So, I’ll just finish by saying that ‑‑
ARBITRATOR: Well, I want to hear your submissions now on the ‑‑
MR NIVEN: Well, it’s our submission that it’s one thing to argue that the incident occurred. It’s another thing to argue that the - as a result of that incident there was a ‑‑
ARBITRATOR: No, not incident occurred - injury occurred. That’s what’s admitted, an injury occurred. That is that an injurious event giving rise to pathology occurred.
MR NIVEN: Well, if you’re against me on that point then so be it.”
Mr Judd said that, “because of what’s happened” (T5.9), he would be asking for a s 60 order on the left shoulder and neck because “the injury to the neck has been conceded in the Reply” (T5.11). Mr Niven replied that he did not know if that was correct. Mr Judd said he sought a “general order for the neck and the left shoulder” (T5.40), presumably referring to a general order for the payment of hospital and medical expenses under s 60 of the 1987 Act. When the Arbitrator asked Mr Niven if he wanted to be heard on that, Mr Niven said:
“MR NIVEN: Well, that’s in the Reply. I’ve nothing - nothing I can say about that other than I maintain the position that I maintained…
ARBITRATOR: I understand.
MR NIVEN: and you’re against me on that.”
The Arbitrator then referred to evidence from Dr Long to the effect that, as a result of the injury on 24 September 2003, Mrs Murray suffered pathology in her (left) shoulder by way of aggravation of pre-existing degenerative changes and further by way of aggravation of pre-existing degenerative changes in the cervical spine.
The Arbitrator added, at T6.14:
“The finding of injury to the left shoulder and cervical spine follows from the admissions in the Application to Resolve a Dispute [sic, Reply].”
The Arbitrator’s reference to the Application to Resolve a Dispute was a slip, which he corrected at T6.28 to clarify that he meant to say Reply.
Dealing with the appellant’s evidence, the Arbitrator said, to the extent that Dr Smith said there was no injury, he “cannot be heard to say that” (T6.33) and he (the Arbitrator) would ignore that part of his report. The Arbitrator added, at T6.34:
“but what Mr Niven says is quite correct, that Dr Smith is clearly of the view that there is no ongoing impairment arising from the injury to the left shoulder or the cervical spine and he sets out his reasons for so thinking.”
The Arbitrator noted that the question of the degree of permanent impairment, if any, suffered by Mrs Murray was not a matter for him to decide.
As to the claim for a general order for the payment of medical expenses, the Arbitrator said it seemed appropriate in the circumstances that a general order should be made that the appellant pay the reasonable treatment expenses in respect of injury to Mrs Murray’s left shoulder and cervical spine by way of aggravation of pre-existing degenerative changes.
The Commission issued a Certificate of Determination on 31 August 2012 in the following terms:
“The orders made are as follows:
1. The claim in respect of injury to the right upper extremity (right shoulder) being discontinued, the Application to Resolve a Dispute is amended accordingly and leave is granted to dispense with the filing of an amended Application to Resolve a Dispute.
2. The respondent is to pay the applicant’s reasonably necessary treatment expenses pursuant to section 60 of the Workers Compensation Act 1987 in respect of injury to the left shoulder and cervical spine on 24 September 2003.
3. The claim pursuant to section 66 of the Workers Compensation Act 1987 is remitted to the Registrar for referral to an Approved Medical Specialist to assess whole person impairment in respect of injury to the applicant’s left upper extremity (left shoulder), the date of injury being 24 September 2003.
4. Noted that the parties have agreed to request referral to Dr Oates at Dubbo.
5. The material to be supplied to the Approved Medical Specialist should be;
a)Application to Resolve a Dispute and attached documents.
b)Reply and attached documents.
c)The documents attached to the respective applications to admit late documents filed by the parties. (Dr Lovell records and clinical notes, Dr A Smith supplementary report dated 13/7/12 and Mildura Base Hospital records.)
6. The respondent is to pay the applicant's costs as agreed or assessed.
7. I certify this matter as complex for the purposes of Schedule 6, Table 4, Item 4, of the Workers Compensation Regulation 2010; there is to be a 25 per cent increase applied to the costs applicable to each party.”
The Department of Education has appealed the Arbitrator’s determination.
ON THE PAPERS
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 1 and 6, the documents that are before me, the submissions made at the teleconference on 10 December 2012 (considered below), and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
THRESHOLD ISSUE
Interlocutory
Except with leave of the Commission, there is no right of appeal against an interlocutory decision by an Arbitrator, and the Commission is not to grant leave “unless of the opinion that determining the appeal is necessary or desirable for the proper and effective determination of the dispute” (s 352(3A)).
Both parties have assumed that the Arbitrator’s orders were not interlocutory. That is open to doubt. Whether an order is interlocutory depends on the nature of the order made. The test is whether the judgment or order, as made, finally disposes of the rights of the parties (Gibbs J in Licul v Corney [1976] HCA 6; 50 ALJR 439 at 443-444).
In the present matter, the Arbitrator has merely remitted the matter to the Registrar for referral to an Approved Medical Specialist (AMS) to conduct an assessment of whole person impairment. That order has not finally disposed of the parties’ rights.
However, the appeal has challenged the referral to the Registrar and, if successful, it will eliminate the need for a referral to an AMS. In these circumstances, I am of the opinion that determining the appeal is desirable for the proper and effective determination of the dispute.
ISSUES IN DISPUTE
The appellant’s appeal notice and submissions have not complied with Practice Direction No 6 in that they have not identified the grounds of appeal. This was most unsatisfactory and is the subject of further comment below.
The issue in dispute in the appeal is said to be whether the Arbitrator erred in his interpretation and application of Moore in remitting the matter to the Registrar for referral to an AMS in circumstances where:
(a) the appellant had not “conceded injury”, and
(b) the claim was a claim for lump sum compensation and s 60 expenses.
Other issues, included in the body of the submissions in support, include whether the Arbitrator erred:
(a) in making a general order for the payment of s 60 expenses that was not based on an examination of the evidence but on a mistaken application of Moore;
(b) in making a general order for the payment of s 60 expenses in relation to the cervical spine in circumstances where Mrs Murray had not claimed lump sum compensation for any cervical spine injury, and
(c) in effectively restricting the appellant’s capacity to decline liability for s 60 expenses to the issue of whether those expenses were “reasonably necessary”.
SUBMISSIONS
Mr Lehmann, who did not appear at the arbitration, prepared the appellant’s submissions. He submitted that the proper application of Moore compelled the Arbitrator to determine “the causation and liability issues in dispute and it was inappropriate to refer the matter to an AMS and make a general award for [Mrs Murray] in relation to section 60 expenses without proper consideration of the evidence”.
The thrust of his argument may be summarised as follows:
(a) there is nothing in the Reply or the s 74 notice indicating that the appellant conceded injury;
(b) the Arbitrator appears to have relied upon Part 3 of the Reply as an admission of injury;
(c) the statements at Part 3 of the Reply must be read in light of the opening sentence, which stated that the appellant relies upon the s 74 notice “and in addition or in the alternative relies upon the following…”;
(d) the s 74 notice clearly put in issue injury pursuant to s 4 and, as the appellant continued to rely on that notice, injury was in issue;
(e) the words “in addition to or in the alternative” do not mean “instead of”, and
(f) accordingly, the Arbitrator erred in determining that the appellant had conceded injury.
Mr Lehmann submitted that Moore decided that where an employer admits injury, and the only compensation claimed is lump sum compensation, the assessment of the degree of permanent impairment that has resulted from the injury is a matter for an AMS (Moore at [141]). In the present case, however, the appellant did not concede that Mrs Murray received an injury and her claim was not just for lump sum compensation but was for lump sum compensation and for s 60 expenses. Therefore, the Arbitrator erred in remitting the matter to the Registrar for referral to an AMS without first determining whether Mrs Murray received an injury.
In essence, Mr Lehmann argued that, in circumstances where Mrs Murray’s lump sum compensation and s 60 expenses were disputed, the Arbitrator was required to determine liability and causation with respect to both injury and s 60 expenses and he erred in failing to do so.
With regard to the order for the payment of s 60 expenses, Mr Lehmann submitted that the Arbitrator’s determination was not based on an examination or consideration of the evidence but on a mistaken application of Moore. By making a general award for the payment of s 60 expenses, the Arbitrator effectively restricted the appellant’s capacity to decline liability for those expenses to the issue of whether they were “reasonably necessary”, which is prejudicial to the appellant.
Mr Lehmann added that the Arbitrator erred in making an order for payment of necessary treatment expenses in relation to the cervical spine in circumstances where Mrs Murray had not claimed lump sum compensation for that injury.
Mr Lehmann then set out a detailed analysis of the evidence that he submitted justifies an award for the appellant on the merits.
Notwithstanding that counsel represented Mrs Murray at the arbitration, Mrs Murray’s submissions in response on appeal were prepared by her solicitor, Ms Harvey. After referring to several passages in Moore, Ms Harvey submitted that the appellant’s Reply admitted injury to the left chest, shoulder and aggravation of a pre-existing degenerative cervical spine condition reportedly producing pain symptoms in the neck and left shoulder.
With regard to the general order for the payment of s 60 expenses, Ms Harvey submitted that it is open to the appellant to dispute that any treatment expense submitted by Mrs Murray is for treatment that is “reasonable and necessary” as a result of the injury.
With respect to the apparent difference between the admissions in the Reply and the blanket denial in the s 74 notice, Ms Harvey referred to statements in Mateus v Zodune Pty Ltd t/as Tempo Cleaning Services [2007] NSWWCCPD 227; 6 DDCR 488 and Woolworths Ltd v Meake [2011] NSWWCCPD 13 to the effect that a s 74 notice must, in clear and unambiguous language, give the worker notice of the issues genuinely in dispute and the reasons for the dispute.
Ms Harvey submitted that the “reasons for the dispute” were clearly enunciated in the Reply and Mrs Murray was entitled to rely on that admission without qualification. She said that all of the issues in Mr Lehmann’s submissions, which deal with the merits of the claim, were matters for the AMS.
DISCUSSION AND FINDINGS
Did the appellant dispute injury?
The essential issue on appeal is whether the appellant disputed that Mrs Murray had received an injury, that is, whether, in the accepted incident on 24 September 2003, she suffered or received an injury to her left shoulder. The meaning of injury in that sense has been considered in several cases, for the most recent discussion; see PMP Directories Pty Ltd v Tran [2012] NSWWCCPD 71 from [32]. Neither side has addressed on whether the injury to the left shoulder was a personal injury or an aggravation of a disease but, as that makes no difference to the result, it is not necessary to consider that question.
The starting point is the s 74 notice, which was so poorly drafted as to be virtually meaningless. Compensation is payable where a worker has “received an injury” (s 9 of the 1987 Act). The first paragraph of the notice listing the issues in dispute said that liability was disputed because “you do not suffer from an injury”. This wording clearly suggests that the dispute was whether the worker was continuing to “suffer from” the effects of the injury. It did not deny that she had “received an injury”.
This was consistent with the evidence from Dr Smith, the doctor on whom GIO relied in support of its decision to dispute the claim. Dr Smith said that the incident may have jerked Mrs Murray’s neck around and that she could have suffered an aggravation to her cervical degenerative disease, which could have produced neck pain, left shoulder pain, pain around the shoulder blades, between her shoulder blades and down her left arm, but she would have recovered from that exacerbation fairly quickly. In other words, Dr Smith was conceding that Mrs Murray had received an injury that affected her neck and left shoulder, but had recovered from the effects of that injury. That provided no basis for denying that Mrs Murray “received an injury”.
The second “issue” in the s 74 notice is equally unsatisfactory. The assertion that a worker “no longer suffer[s] a work related injury in which [their] employment … was a substantial contributing factor” is bad in law. Employment only has to be a substantial contributing factor to the injury, not the consequences of the injury (Rootsey v Tiger Nominees Pty Ltd (2002) 23 NSWCCR 725 at 733). Once a worker has received an injury to which his or her employment was a substantial contributing factor, s 9A has no more work to do. This part of the notice strongly suggests that, consistent with Dr Smith’s evidence, the insurer really disputed whether effects of the injury were continuing.
The denial of liability under s 60 in the fourth paragraph of the s 74 notice was not on the basis that Mrs Murray had not received an injury, but on the ground that her expenses were not “reasonable or necessary pursuant to sections 59 and 60”. This statement was inconsistent with the legislation. A worker is entitled to recover the cost of hospital and medical expenses if, as a result of an injury received, it was “reasonably necessary” that the medical or related treatment be given, not if the treatment was “reasonable or necessary”.
Thus, the appellant’s reliance on the s 74 notice provides no support for its argument that it always disputed injury.
Turning to the Reply, it is convenient to repeat paragraph one of that document:
“While it is not disputed the Applicant was involved in an accident on 24 September 2003 whereby she was struck by a ball in the left chest and shoulder thus aggravating her pre-existing degenerative cervical spine condition and reportedly producing pain symptoms in the neck and left shoulder, any work related aggravation has ceased and the Applicant’s employment is no longer a substantial contributing factor to the Applicant’s cervical spine and left shoulder symptoms and alleged injury.”
This paragraph clearly conceded that a ball struck Mrs Murray in the left chest and shoulder at work on 24 September 2003 and that, as a result, she suffered an injury to her cervical spine in the nature of an aggravation of degenerative changes.
The situation with the left shoulder is also clear. The reference to “reportedly producing pain symptoms in the neck and left shoulder” was a reference to Mrs Murray’s claim that, as a result of being struck by the ball, she developed symptoms in her left shoulder. Rather than denying that allegation, the paragraph merely states that any work related aggravation has ceased. It said nothing about whether the appellant disputed the injury to the left shoulder.
The reference to employment “no longer” being a substantial contributing factor to Mrs Murray’s cervical spine and left shoulder “symptoms and alleged injury” makes the same error made in the s 74 notice. Employment only has to be a substantial contributing factor to the injury, not the consequences of the injury, such as the symptoms that have resulted from it. Once a worker has received an injury to which employment was a substantial contributing factor, employment does not cease to be a substantial contributing factor to the injury just because the worker has recovered from the effects of the injury.
The wording of the Reply strongly suggests that the appellant did not dispute injury to the left shoulder. The Reply must, however, be read in context. The wording in paragraph one is to be contrasted with the wording in paragraph two, which deals with the alleged injury to the right shoulder. It is convenient to repeat that paragraph:
“The [appellant] disputes the Applicant suffered a work related injury to her right upper extremity and disputes that employment was a substantial contributing factor to the Applicant’s alleged right upper extremity injury.”
While this paragraph should have been split into two, unlike paragraph one, it is tolerably clear that the appellant disputed that Mrs Murray injured her right shoulder and, if she did, that her employment was a substantial contributing factor to that injury. Paragraph two includes the words that are missing from paragraph one, and from the s 74 notice, namely, “the appellant disputes that the worker suffered [received] a work related injury”. Reading paragraph one of the Reply in context reinforces the conclusion that the Reply did not dispute injury.
It follows that I do not accept that either the s 74 notice, or the Reply, or both documents combined, disputed that Mrs Murray received an injury to her left shoulder on 24 September 2003.
That is not, however, the end of the analysis of this issue.
Assuming, contrary to my finding, that the s 74 notice disputed injury to the left shoulder, and assuming that that was not undermined by the Reply, the issues in dispute are ultimately determined by the way the parties present their respective cases. As observed by Isaacs and Rich JJ in Gould v Mount Oxide Mines Ltd [1916] HCA 81; 22 CLR 490 at 517 (applied in CMA Corporation Ltd v SNL Group Ltd [2012] NSWCA 138 at [14] and [15]) “pleadings are only a means to an end” and if, in the running of the case, the parties chose to restrict them, enlarge them, or to disregard them, “it is impossible for either of them to hark back to the pleadings and treat them as governing the area of contest”.
It is therefore necessary to look to how the parties presented the case before the Arbitrator. After noting the evidence, the Arbitrator asked Mr Niven to outline the issues. Not only did Mr Niven not assert that injury to the left shoulder was in issue, he said the opposite, namely, that the appellant “says that the evidence clearly establishes that [Mrs Murray] suffered an injury to her left shoulder on the 24th of September 2003” (T3.18).
If there were any doubt that Mr Niven did not dispute injury to the left shoulder, he added:
(a) that there were no contemporaneous records to show “the extent of [Mrs Murray’s] left shoulder injury” (T3.22);
(b) that his client took the view that it was entitled to argue that, despite the fact of an incident, on the medical evidence, “there is no whole person impairment resultant thereby” (T3.46), and
(c) his client was of the view that the issue about whole person impairment was “clearly obviated by the fact that the medical evidence … demonstrate[s] there is no real ongoing aggravation of that incident in 24 September 2003” (T4.3).
The above references to the “extent of” Mrs Murray’s left shoulder injury and the “ongoing aggravation” confirm that the earlier statement was not a transcription error, or a slip of the tongue, and that Mr Niven meant to say what has been recorded, that is, that Mrs Murray injured her left shoulder and the issue was the extent of that injury and whether any whole person impairment resulted from it. His statements were consistent with the Arbitrator’s conclusion, with which I agree, that the Reply did not dispute injury.
In response to these submissions, the Arbitrator raised the issue of whether Mr Niven wanted to re-argue Moore. Summing up, the Arbitrator then said that there was “admitted injury to the left shoulder on the 24th September 2003” (T4.29). Mr Niven attempted to make a further submission and the Arbitrator reiterated his understanding of the admission, namely, that it was not (just) an admission that an incident occurred, but that an injurious event occurred “giving rise to pathology” (T4.49).
The transcript confirms that the Arbitrator’s understanding of the admission was correct. As a party is bound by the conduct of its counsel (Smits v Roach [2006] HCA 36; 227 CLR 423 at [46]) it is difficult to see how Mr Lehmann can take a different position on appeal.
Mr Lehmann has based his submissions on a letter from Mr Niven dated 7 September 2012 addressed to Sparke Helmore in which he set out a “report as to the conduct” of the arbitration for the purpose of advice to the client on prospects of an appeal. Mr Niven referred to discussions during the conciliation, which have not been recorded and for which there is no transcript, and then set out his instructions.
Mr Niven said that Mr Judd referred the Arbitrator to Moore and submitted that, where injury was conceded, the appropriate course was to refer the matter to an AMS and a general order for s 60 expenses should follow. He said that his submissions in reply were “thwarted on the grounds that the Arbitrator took the view that I was seeking to re-argue Moore as an incorrect application of the law” and this view effectively “curtailed my submission to the effect that admission of the incident of 24 September 2003 was not admission of injury when considered against the background of the report of the [appellant’s] Dr Smith”.
Mr Niven added that his attempt to further his submissions was “checked by the Arbitrator who quoted the [R]eply to me as evincing reference to injury in Prt 3 [sic] Matters in Dispute 1”.
I have set out the relevant passages of the transcript in some detail earlier in this decision (see [15] to [23] above). The transcript demonstrates that Mr Niven’s report is inaccurate. The issue now in dispute did not arise through any submission by Mr Judd. It arose when the Arbitrator asked Mr Niven to identify the issues. In response, Mr Niven admitted that Mrs Murray had received an injury to her cervical spine and left shoulder in the incident on 24 September 2003.
Notwithstanding that the Commission forwarded the transcript to the parties on 16 October 2012, and gave both sides ample time to respond to it, neither party referred to the transcript in their submissions. As a result, I listed the matter for submissions at a teleconference on 10 December 2012 and invited submissions on the content of the transcript and the s 74 notice. Mr Lehmann represented the appellant and, though Mr Niven was present at this teleconference, he took no part in it and made no submissions. Mr Judd and Ms Harvey represented Mrs Murray.
Mr Lehmann said that the transcript did not require further submissions because his client had not conceded injury. He repeated the argument in his written submissions to the effect that the Reply had to be read with the s 74 notice. He did not see how the transcript altered the position. He also repeated the argument outlined in his written submissions about the relevance of the claim for s 60 expenses (this argument is dealt with below).
Mr Lehmann said that the transcript had to be read as a whole and that the conduct of the arbitration was predicated on the (incorrect) basis that injury had been conceded. In support of this submission, he pointed to the Arbitrator’s statement at T1.20 where he said that the case concerned “an injury on the 24th of September 2003 which occurred, it’s admitted, in the course of Mrs Murray’s employment by the Department”.
I have dealt with the arguments advanced in Mr Lehmann’s written submissions and, for the reasons explained above, I do not accept them. The s 74 notice was so badly drafted as to be devoid of any effect and provides no support for the contention that the insurer disputed injury to the left shoulder. Regrettably, Mr Lehmann’s oral submissions simply ignored the clear and unequivocal concession made by Mr Niven at the arbitration.
I do not accept that the Arbitrator conducted the arbitration on the basis that injury had been conceded. While it is correct that the Arbitrator understood from submissions at the teleconference that the appellant had admitted injury to the left shoulder, Mr Niven did not dispute that admission, but merely referred to the unsatisfactory Reply, which also admitted injury. Moreover, if there were any doubt, when asked to identify the issues, Mr Niven admitted injury to the left shoulder.
Having listened to the audio recording of the arbitration, I can confirm that the transcript is accurate and that counsel made the admissions recorded. Those admissions, together with the admissions in the Reply, and the unsatisfactory and defective s 74 notice, comfortably establish that the appellant conceded that Mrs Murray injured her left shoulder on 24 September 2003. It follows that the Arbitrator did not err in concluding that the appellant had not disputed injury to the left shoulder.
The next question is whether the Arbitrator erred in remitting the matter to the Registrar for referral to an AMS in circumstances where Mrs Murray also claimed s 60 expenses.
Relevance of the claim for s 60 expenses
Mr Lehmann submitted that, even if it were found that injury had been conceded, because Mrs Murray also claimed the cost of medical expenses under s 60 it was inappropriate to refer the matter to an AMS without first determining whether the effects of the pleaded injuries had ceased.
This submission might have had some merit if Mrs Murray had sought an order for the payment of a specific medical expense or expenses, but she did not. The nature of the claim ultimately pressed, however, is determined by the conduct of counsel at the hearing. Notwithstanding the pleadings, Mr Judd only sought a “general order” for the payment of hospital and medical expenses.
Before the Arbitrator could make a “general order”, he had to be satisfied that Mrs Murray was a worker under the legislation and that she had received an injury. It was not in issue that Mrs Murray was a worker and, for the reasons explained above, it was admitted that she had received an injury to her neck and left shoulder. For the purpose of making a general order for the payment of s 60 expenses, it was not necessary for the Arbitrator to go further and determine that, as a result of the injury, the relevant treatment was “reasonably necessary” as a result of the injury (Bielecki v Rianthelle Pty Ltd t/as Belfora [2008] NSWWCCPD 53 at [20]).
It follows that, given the way the case unfolded at the arbitration, the fact that the present case included a claim for s 60 expenses did not distinguish it from Moore and did not prevent the Arbitrator remitting the matter for referral to an AMS for assessment of permanent impairment. The Commission has previously held that a “general order” for the payment of s 60 expenses is of “limited efficacy” (Sydney South West Area Health Service v Avery [2007] NSWWCCPD 213 at [55]). The general order in the present matter is of limited, if any, effect and there is nothing in Moore that suggests that such an order cannot be made without first determining if the effect of an accepted injury has ceased.
I do not accept Mr Lehmann’s submission that, by making a general order for the payment of s 60 expenses, the Arbitrator effectively restricted the appellant’s capacity to decline liability for those expenses to the issue of whether they were “reasonably necessary”. The appellant is at liberty to decline liability for any medical expenses submitted by Mrs Murray. Notwithstanding the admission of injury, to recover the cost of her medical and related expenses, Mrs Murray will have to establish that they were “reasonably necessary” and that the need for the treatment resulted from the relevant injury. This will require her to prove that, at the time she received the particular treatment, the effect of the injury was continuing. There is no prejudice to the appellant.
The complaint that the Arbitrator erred in making a general order for s 60 expenses in relation to the cervical spine where Mrs Murray had not claimed lump sum compensation with regard to any cervical spine injury is incorrect. The pleadings made it clear that Mrs Murray alleged, and the appellant accepted, that she injured her cervical spine (neck). Her claim for s 60 expenses for treatment of her neck injury did not depend on Mrs Murray also claiming lump sum compensation for that injury. As noted above, a general order for the payment of s 60 expenses is of limited effect and does not prejudice the appellant’s right to dispute those expenses. The Arbitrator was not required to make a finding that the effect of the neck injury was continuing before he could make a general order for the payment of s 60 expenses.
OTHER MATTERS
As is now common practice in the Commission, counsel appeared at the arbitration, but the parties’ solicitors prepared the written submissions on appeal. Those submissions were unhelpful and required the matter to be listed for teleconference to deal with the issues in the transcript that should have been addressed in the written submissions. The practice of not briefing counsel on appeals is counterproductive and does not advance the proper resolution of appeals or the interests of the parties involved.
As to Practice Direction No 6, the Commission has repeatedly directed the legal profession to the terms of the Practice Direction and to the fact that appeals must clearly and succinctly identify the grounds of appeal and make submissions in support of those grounds. The fact that Mr Lehmann did not do that is unsatisfactory and unacceptable.
CONCLUSION
The Arbitrator did not err in the manner alleged. The appeal was without merit. Once the transcript became available and demonstrated beyond doubt that Mr Niven had admitted injury to the left shoulder, it was more than a little surprising that the appeal was not discontinued.
DECISION
The Arbitrator’s determination of 31 August 2012 is confirmed.
COSTS
The appellant employer is to pay the respondent worker’s costs of the appeal, as agreed or assessed.
Bill Roche
Deputy President
13 December 2012
I, MARGOT UNDERCLIFFE, 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
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