NSW Police Service v Smith

[2006] NSWWCCPD 23

WORKERS COMPENSATION COMMISSION

APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:NSW Police Service v Smith [2006] NSWWCCPD 23

APPELLANT:  NSW Police Service

RESPONDENT:  Michael Smith

INSURER:TMF Workers Compensation

FILE NUMBER:  WCC4417-05

DATE OF ARBITRATOR’S DECISION:          27 July 2005

DATE OF APPEAL DECISION:  21 February 2006

SUBJECT MATTER OF DECISION:                Nature and conditions of work claim, whether injury is a ‘disease’, date of injury, assessment of permanent impairment.

PRESIDENTIAL MEMBER:  Acting Deputy President Robin Handley

HEARING:On the papers

REPRESENTATION:  Appellant: JA O’Brien & Co, Solicitors

Respondent: Sparke Helmore, Lawyers

ORDERS MADE ON APPEAL:  The decision of the Arbitrator dated 27 July 2005 is confirmed.

The Appellant, the NSW Police Service, is to pay the Respondent, Mr Smith’s costs in this appeal.

BACKGROUND TO THE APPEAL

1. On 24 August 2005, the NSW Police Service sought leave in the Workers Compensation Commission (‘the Commission’) to bring an appeal against the decision of an arbitrator dated 27 July 2005. The insurer is TMF Workers Compensation, managed by GIO General Ltd (‘the insurer’).

1. The Respondent to the appeal is Michael Smith. Mr Smith was born on 9 January 1968 and is aged 38. He joined the NSW Police Service in about 1990 and has worked principally as a highway patrol officer since 1994. He began experiencing lower back pain in 1996. On 4 September 2003, Mr Smith notified the Police Service of the injury and made a claim for workers compensation. He attributed the injury to the nature and conditions of his employment between 1 January 1996 and the date of notification and, in particular, to his sitting in a patrol car for lengthy periods aggravated by the need to accomodate a bulky firearm in a holster.

1. On 9 December 2004, Mr Smith’s solicitor wrote to the Police Service’s insurer with details of his claim for compensation for permanent impairment and pain and suffering in respect of the injury to his back. When no response had been received by 21 March 2005, his solicitor lodged Mr Smith’s ‘Application to Resolve a Dispute’ with the Commission, which the Commission registered on 22 March 2005. The Police Service’s ‘Reply’ was lodged on 12 April 2005. The Arbitrator conducted a teleconference with the parties on 6 June 2005, following which the parties agreed that the issue of the deemed date of injury could be determined ‘on the papers’. On 27 July 2005, the Arbitrator made his decision on this issue, set out below.

THE DECISION UNDER REVIEW

1. The Certificate of Determination, dated 27 July 2005, records the Arbitrator’s orders as follows:

“1.     That this matter be referred to an AMS [‘Approved Medical Specialist’].

2.    That in the referral, 2 assessments be sought, the first as at 30 December 2001 reflecting the degree of permanent impairment of the Applicant’s back due to the nature and conditions of his employment up to that date and the second as at 30 September 2003 reflecting the degree of WPI [‘Whole Person Impairment’] of the Applicant due to the nature and conditions of his employment between 1 January 2002 and 30 September 2005 [sic – 2003].

3.    That this matter be referred for another teleconference once the MAC [‘Medical Assessment Certificate’] is to hand.”

1. In the ‘Statement of Reasons’ for his decision, the Arbitrator noted Mr Smith claims to suffer a 15% permanent impairment of his back, and that the stated date of injury is 4 September 2003, the date on which he made his claim for workers compensation. However, Mr Smith could not point to any specific incident or frank injury, and the medical evidence indicates the injury was caused by trauma as a result of the nature and conditions of his employment. The Arbitrator summarised the resolution of issues in dispute as follows:

“• Between 1996 and 4 September 2003, the Applicant received an injury to his    back arising out of or in the course of his employment as a policeman in the NSW Police Service.

• The Applicant’s employment was a substantial contributing factor to his injury.

• That injury resulted from a series of happenings due to the nature and conditions of the Applicant’s employment, resulting in injury prior to 1 January 2002 and injury post 1 January 2002 in accordance with the approach adopted by Acting Deputy President Handley in Overall v Central Area Health Service [2005] NSW WCC PD 44 [‘Overall’].”

ISSUE IN DISPUTE

1. The issue in dispute before the Arbitrator was the date of injury. The Police Service submits the Arbitrator made an error of law in his decision. The parties’ submissions are considered more fully below.

ON THE PAPERS REVIEW

1. Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) states:

“(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. I have had regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions by the parties. The Police Service submits the appeal should not be determined ‘on the papers’ but that the parties should be given the opportunity of presenting oral submissions. Mr Smith’s solicitor submits the matter can be decided ‘on the papers’. Having considered these submissions, and having reviewed the documentary evidence, 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.

1. Neither party sought to adduce fresh evidence.

LEAVE

1. Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act. The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act. With regard to section 352(2), the Police Service states the amount of compensation at issue exceeds $5,000 and constitutes more than 20% of the amount claimed. I am therefore satisfied that the section 352 threshold has been met, and I grant leave to appeal.

EVIDENCE

1. In Mr Smith’s statement dated 18 March 2005, he said: “In 1996 I began to suffer from constant lower back pain with sciatic pain running down the back into the right leg.” He started consulting his general practitioner about back pain from about 1999. In September 2003, after reading an article entitled “Duty belts and overuse injuries” in the NSW Police Association Newsletter, Mr Smith reported a work-related injury. He was placed on restrictive duties after September 2003. The “Workers Compensation Claim Form” completed by Mr Smith on 13 November 2003 details his injury as “disc pain lower back” and “sciatic-nerves right leg” as a result of “repetitive wear of gun belt over past 9 years since 1994 whilst performing duties”.

1. There appears to be no dispute that Mr Smith suffered a compensable injury in the course of his employment with the NSW Police Service. I note the evidence of Dr Kim Ostinga, Orthopaedic Surgeon, in reports dated 16 November 2004 and 4 May 2005. In the earlier report, Dr Ostinga diagnosed a “prolapsed intervertebral disc, ultimately requiring surgery”. Dr Ostinga said Mr Smith “did not suffer any particular injury to his back but around 1996 started to develop back symptoms associated with right leg sciatica”. He developed “very severe pain” in 2002, which eventually resulted in him having a disc excision at L5/S1 on 26 June 2004, with some benefit. However, Mr Smith still experiences sciatic pain in his right leg. With regard to causation, Dr Ostinga said:

“On the balance of probabilities, Mr Smith’s back condition has been caused in part, but significantly, by many years of sitting for long hours and this [sic – was] also possibly aggravated by the need to accomodate a bulky police firearm in a holster.”

1. In his later report, Dr Ostinga assessed Mr Smith’s impairment on the basis that he had “no sciatica before 2002 but had problems with his back”, and “developed very severe pain associated with sciatica after January 2002 which lead him to have surgery on 26.6.04”. Although acknowledging that the condition of Mr Smith’s back before 2002 was “not precisely known”, Dr Ostinga estimated his pre-2002 clinical condition as contributing one tenth of his condition (a 15% permanent impairment of the back) at the time of assessment on 16 November 2004. Thus, Mr Smith’s whole person impairment in respect of the period from 1 January 2002 was 13.5% rounded to 14%.

1. Mr Smith’s solicitor subsequently sought to amend Mr Smith’s ‘Application to Resolve a Dispute’ to include a claim for “14% whole person impairment” from 1 January 2002.

1. Dr Philip Sharp, Surgeon, who assessed Mr Smith for the insurer, in a report dated 13 May 2004, stated:

“[t]here was no particular incident but he first noticed lower back pain in 1996 while working as a highway patrol officer. Soon after this pain began to radiate down to his right heel.”

Dr Sharp listed the clinical investigations carried out – a bone scan dated 25 February 2002, a plain x-ray and a MRI of the lumbo-sacral spine both dated 30 December 2003, a CT lumbar myelogram dated 21 January 2004, and a discogram dated 5 March 2004 – and concluded:

“In essence it would appear that Michael has a mechanical back problem, which, although partially due to congenital abnormalities, including six lumbar vertebrae and fusion of the right L6 transverse process, has been aggravated by the wearing of his police belt and appointments over the years.”

1. The Police Service also tendered a report from Dr Bruce Tevitt, Orthopaedic Surgeon, dated 23 May 2005. It is not clear whether the Arbitrator admitted this late report as he does not refer to it in the list of documents taken into evidence in making his determination and there is no other indication on the file. However, I note Dr Tevitt’s diagnosis is “aggravation of degenerative lumbar disease”.

SUBMISSIONS

1. The Police Service submit the Arbitrator erred in relying on the decision in Overall to find that as a result of the nature and conditions of his employment between 1996 and 30 September 2003, Mr Smith “is entitled to be assessed pursuant to the Table of Maims and under the AMA Guides of Impairment”. The Police Service submitted that the circumstances of Mr Smith’s case are similar to those in Overall where there was no evidence of a frank injury and the worker gradually developed discomfort and pain in her lower back over a number of years due to the nature and conditions of her employment. The Police Service notes that the Workers Compensation Claim Form completed by Mr Smith on 13 November 2003 states that the injury - disc pain in the lower back with sciatica in the right leg - occurred as a result of “repetitive wear of a gun belt over the past 9 years since 1994 whilst performing duties”.

1. Referring to a 2004 arbitrator’s decision, the Police Service submits that because Mr Smith’s is a “nature and conditions of work” claim, his condition should be treated like a disease so that the last date of employment will be the deemed date of injury.

1. Mr Smith’s solicitor submits that pursuant to Part 18C of Schedule 6 of the Workers Compensation Act 1987 (‘the 1987 Act’), injuries received after 1 January 2002 (when the 2001 “lump sum compensation amendments” to the 1987 and 1998 Acts took effect) should be assessed pursuant to section 322 of the 1998 Act, in accordance with WorkCover Guidelines issued for that purpose. Section 323 provides for a deduction for any proportion of the impairment due to any previous injury. Injuries received before 1 January 2002 should be assessed under the provisions in effect before the 2001 amendments took effect (clause 3 of Part 18C of Schedule 6 of the 1987 Act). Mr Smith is, therefore, entitled to compensation for injuries received both before and after 1 January 2002, and his impairment should be separately assessed under the provisions applicable to each period. Thus, there was no error of law by the Arbitrator.

DISCUSSION AND FINDINGS

1. The Police Service referred to my decision in Overall. In that decision, I considered the distinction between the terms ‘injury’ and ‘disease’. The definition of ‘injury’ in section 4 of the 1987 Act states relevantly:

“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; and …”           

1. In Overall, the applicant’s solicitors referred to the distinction between injury and disease drawn by the Privy Council in Slazengers (Aust) Pty Ltd v Burnett [1951] AC 13 (‘Slazengers’) and to the Oxford Concise Medical Dictionary definition of disease which excludes a disorder resulting directly from physical injury. For a condition to constitute a disease, one would expect to see medical evidence to support this. The arbitrator found that there was no frank injury and that the injury arose out of the nature and conditions of the applicant’s employment. However, the arbitrator did not go on to consider whether the applicant’s injury constituted a ‘disease’, and the applicant’s medical evidence did not support a finding that her injury was a ‘disease’ of such a nature as to be contracted by a gradual process. Section 15(1) of the 1987 Act states:

“15(1) If an injury is a disease which is of such a nature as to be contracted by a gradual process:

(a) the injury shall, for the purposes of this Act, be deemed to have happened:

(i) at the time of the worker’s death or incapacity, or

(ii)if death or incapacity has not resulted from the injury – at the time the worker makes a claim for compensation with respect to the injury, …”

Thus, in Overall, section 15(1) did not apply.

1. While in its submissions, the Police Service contends that the facts of this case are similar to those in Overall, the Police Service fails to acknowledge the outcome in Overall, which was that there was no medical evidence to support a finding that the applicant’s injury was a ‘disease’ of such a nature as to be contracted by a gradual process. Instead, the Police Service submits that because Mr Smith’s is a “nature and conditions of work” claim, his condition should be treated like a disease so that the last date of employment will be the deemed date of injury.

2. In Mr Smith’s case, there is no evidence of a frank injury and I am not satisfied on the medical evidence, despite Dr Tevitt’s diagnosis of degenerative lumbar disease, that Mr Smith’s injury constitutes a ‘disease’. It appears Mr Smith has congenital spinal abnormalities that may make him susceptible to back injury. I note, in particular, Dr Sharp’s conclusion quoted at paragraph 15 above, referring to Mr Smith’s back problem being a mechanical one. Thus, in my view, the Arbitrator was correct in finding the injury to Mr Smith’s back “resulted from a series of happenings due to the nature and conditions” of his employment. Essentially, the Arbitrator appears to have characterised Mr Smith’s injury as a personal injury arising from a series of micro traumas in the course of his employment, rather than from a frank or specific incident. (See also the discussion in Lyons v Master Builders Association of NSW Pty Ltd (2003) 25 NSWCCR 422, at paragraphs 21 to 23, and Far West Area Health Service v Colin Robert Radford [2003] NSW WCC PD 10 at paragraph 32.)

1. The issue in dispute is the date of injury and how Mr Smith’s entitlement to compensation for that injury is to be assessed. Mr Smith’s solicitor submits the Arbitrator correctly applied clause 3 of Part 18C of Schedule 6 of the 1987 Act and section 322 of the 1998 Act in seeking two assessments from the AMS: the first in respect of the degree of permanent impairment of Mr Smith’s back due to the nature and conditions of his employment as at 31 December 2001, and the second in respect of the degree of whole person impairment due to the nature and conditions of his employment between 1 January 2002 and 30 September 2005.

1. In my view, Mr Smith’s solicitor’s submissions are correct and the Arbitrator correctly applied the law. Clause 3(1) of Part 18C of Schedule 6 of the 1987 Act states that “[t]he lump sum compensation amendments do not apply in respect of an injury received before the commencement of the amendments”. The amendments took effect on 1 January 2002. Section 15(1) does not apply because although this is a nature and conditions claim, the evidence does not support a finding that Mr Smith’s condition is a ‘disease’, and section 15(1) only applies in respect of an injury that is a disease. The 2001 ‘lump sum compensation amendments’ include Part 7 of the 1998 Act which, in turn, includes sections 322 and 323, the latter requiring a deduction of any proportion of the impairment due to any previous injury. Because section 322 only applies in respect of injuries received after 1 January 2002, the provisions in effect prior to 1 January 2002 must be applied in assessing Mr Smith’s entitlement to compensation for permanent impairment arising from his injury as a result of the nature and conditions of his employment before 1 January 2002.

1. This outcome may seem anomalous. I suspect it may have been intended that section 15(1) of the 1987 Act applied in respect of nature and conditions of employment claims more generally, and it was probably not anticipated that a distinction would be drawn between a condition considered a ‘disease’ and a condition resulting from a series of micro traumas more narrowly defined as a personal injury and not a disease. However, in my view, this is not clear from the legislation, and legislative amendment would be required to permit section 15(1) broader application.

DECISION

1. The decision of the Arbitrator dated 27 July 2005 is confirmed.

COSTS

1. The Appellant, the NSW Police Service, is to pay the Respondent, Mr Smith’s costs in this appeal.

Robin Handley

Acting Deputy President  

21 February 2006

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

ASSOCIATE