O'Neill v Star City Pty Ltd
[2006] NSWWCCPD 259
•4 October 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:O’Neill v Star City Pty Ltd [2006] NSWWCCPD 259
APPELLANT: Terrence O’Neill
RESPONDENT: Star City Pty Ltd
INSURER:Self Insured
FILE NUMBER: WCC3746-05
DATE OF ARBITRATOR’S DECISION: 7 March 2006
DATE OF APPEAL DECISION: 4 October 2006
SUBJECT MATTER OF DECISION: Procedural fairness; compensation for pain and suffering under section 67 Workers Compensation Act 1987
PRESIDENTIAL MEMBER: Acting Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION: Appellant: Jones Staff & Co
Respondent: Cutler Hughes & Harris
ORDERS MADE ON APPEAL: Paragraph one of the Arbitrator’s decision of 7 March 2006 is revoked and the following order made:
“1.The Respondent is to pay the Applicant compensation in the sum of $12,500.00 in respect of pain and suffering pursuant to section 67 of the Workers Compensation Act 1987, representing 25% of a most extreme case.”
Paragraph two of the Arbitrator’s decision of 7 March 2006 is confirmed.
The Respondent Employer is to pay the Appellant Worker’s costs of the appeal.
BACKGROUND TO THE APPEAL
On 4 April 2006 Terrence O’Neill (‘the Appellant Worker/Mr O’Neill’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 7 March 2006.
The Respondent to the Appeal is Star City Pty Ltd (‘the Respondent Employer/Star City’).
Mr O’Neill was born on 12 September 1944 and is now 62 years old. He started work with Star City as a part time floor attendant in about June 2000. On 13 September 2001 he fell down some stairs at work and injured his left shoulder/arm and his left knee/leg.
His Application to Resolve a Dispute (‘the Application’) was registered with the Commission on 10 March 2005. In it he claimed lump sum compensation in respect of a permanent loss of efficient use of his left non dominant arm at or above elbow and his left leg at or above the knee. He also claimed compensation in the sum of $25,000.00 for pain and suffering under section 67 of the Workers Compensation Act 1987 (‘the 1987 Act’).
His claim was referred to an Approved Medical Specialist (‘AMS’) for assessment under the Table of Disabilities applicable for injuries received before 1 January 2002. That assessment took place on 11 July 2005 and a Medical Assessment Certificate (‘MAC’) was issued on 19 July 2005 assessing Mr O’Neill to have a 10% permanent loss of efficient use of his left arm at or above the elbow and a 10% permanent loss of efficient use of his left leg at or above the knee as a result of his injury on 13 September 2001.
Star City unsuccessfully attempted to appeal against the MAC’s findings, but ultimately agreed to pay the section 66 compensation in the amounts certified by the AMS.
The matter was listed for teleconference on 6 February 2006 when negotiations took place in an attempt to resolve the Appellant Worker’s outstanding claim for compensation under section 67. Those negotiations were unsuccessful and it was agreed that that issue would be determined by the Arbitrator without the need to hold a conciliation/arbitration hearing.
At the teleconference the Arbitrator directed the parties to file and serve written submissions dealing with the appropriate quantum of compensation under section 67. The Respondent Employer’s submissions were filed on 10 February 2006 and the Appellant Worker’s on 28 February 2006.
The Arbitrator delivered a reserved decision on 7 March 2006 in which she awarded Mr O’Neill the sum of $7,500.00 in respect of pain and suffering under section 67. Mr O’Neill seeks leave to appeal the quantum of that compensation.
LEAVE TO APPEAL
Monetary Threshold
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’). That section provides:
“352 Appeal against decision of Commission constituted by Arbitrator
(1)A party to a dispute in connection with a claim for compensation may, with leave of the Commission constituted by a Presidential member, appeal to the Commission as so constituted against a decision in respect of the dispute by the Commission constituted by an Arbitrator.
(2)The Commission is not to grant leave to appeal unless the amount of compensation at issue on the appeal is both:
(a)at least $5,000 (or such other amount as may be prescribed by the regulations), and
(b) at least 20% of the amount awarded in the decision appealed against.
(3)If the Commission refuses to grant leave to appeal, the Commission must state reasons for the refusal in writing to the parties.
(4)An appeal can only be made within 28 days after the making of the decision appealed against.
(5)An appeal under this section is to be by way of review of the decision appealed against.
(6)Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.
(7)On appeal, the decision may be confirmed or may be revoked and a new decision made in its place. Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.
(8)In this section, decision includes an award, interim award, order, determination, ruling and direction.”
It is necessary that “the amount of compensation at issue on the appeal” is both “at least $5,000.00” and “at least 20% of the amount awarded in the decision appealed against”. The amount of compensation at issue on the appeal must be determined by reference to the amount of compensation at issue in the proceedings before the Arbitrator at first instance. In Grimson v Integral Energy [2003] NSWWCCPD 29 at [30] Deputy President Fleming held:
“The preferred interpretation, in my view, is that the Commission, constituted by a Presidential Member, may grant leave only to appeal against a decision of an Arbitrator where there is an amount of compensation at issue on the appeal that is (a) at least $5,000, and, if a monetary award has been made, (b) at least 20% of that award. The ‘. . . amount of compensation at issue on the appeal’ is determined by reference to the amount of any monetary award made by the Arbitrator or, where no monetary award is made, the amount of the claim as particularized by the Applicant.”
In Fletchers International Exports Pty Limited v Regan [2004] NSWWCCPD 7 it was held at [27] that:
“The decision must have a real capacity to put the amount of compensation, determined by reference to the decision or the claim (Sheridan v Coles Supermarkets Australia Pty Limited [2003] NSWWCC PD 3), in issue in the appeal (as in the case of the filing of a ‘Reply’ (ADCO Constructions Pty Ltd v Ferguson [2003] NSWWCC PD21)).”
In the Application Mr O’Neill claimed compensation under section 67 in the sum of $25,000.00, but the amount claimed on appeal is $15,000.00. This amount exceeds the sum awarded by the Arbitrator by more than $5,000.00 and the whole of that amount is “at issue” on appeal. Therefore, I find that the thresholds in section 352(2)(a) and (b) are satisfied.
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
I grant leave to appeal.
PRELIMINARY MATTERS
Section 354(6) of the 1998 Act provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions by the parties, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 7 March 2006, records the Arbitrator’s orders as follows:
“1.The first [sic] respondent is to pay the Applicant the sum of
·$7,500.00
2.The respondent is to pay the applicant’s costs as agreed or assessed.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a)failing to meet her obligation to act according to equity, good conscience and the substantial merits of the case pursuant to section 354(3) of the 1998 Act (‘equity and good conscience’);
(b)determining the matter on the basis of the terms of section 67 as amended by the Workers Compensation Legislation Amendment Act 2001 (‘the amending Act’) as opposed to the terms of section 67 as it was at the date of injury (‘wrong legislation’);
(c)the exercise of her discretion by making a determination that is unreasonable or plainly unjust (‘unreasonable and unjust’); and
(d)failing to take into account relevant considerations (‘relevant considerations’).
FRESH EVIDENCE
‘Fresh evidence’ on appeal is governed by section 352(6) of the 1998 Act, which provides as follows:
“(6) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.”
Practice Direction No. 6 sets out the process for seeking leave of the Commission to give ‘new evidence’ on appeal. It provides as follows:
“New Evidence
Where a party seeks leave to give new evidence in relation to the decision appealed against, that party must serve a copy of the new evidence on the other parties to the dispute when serving the Application or Opposition.
In general, the Commission will allow new evidence to be introduced only where it can be demonstrated that the new evidence could not reasonably have been obtained by the party and tendered in proceedings before the Arbitrator and that failure to allow the new evidence would cause a substantial injustice in the circumstances of the individual case.”
Practice Direction No. 6 also provides that if new evidence is sought to be relied upon, the Application or Opposition to the Appeal must contain:
“ -a schedule of the new evidence,
-a copy of the new evidence,
-a brief outline of the new evidence and the reasons why it was not given in the
proceedings before the Arbitrator, and
-submissions why the new evidence should be admitted.”
The Appellant Worker seeks to rely on the following new evidence on appeal:
(a)a statement from Richard Brennan, the Appellant Worker’s solicitor, dated 4 April 2006 setting out the negotiations that took place at the teleconference on 6 February 2006;
(b)a letter from Jones Staff & Co dated 17 March 2006 addressed to the Commission seeking a reconsideration of the Arbitrator’s decision pursuant to section 350(3) of the 1998 Act;
(c)a letter from the Commission dated 23 March 2006 to Jones Staff & Co declining to reconsider the matter; and
(d)a statement from Mr O’Neill dated 4 April 2006 setting out the instructions he gave to his solicitor at the teleconference on 6 February 2006 and why he gave those instructions.
The Respondent Employer objects to the introduction of new evidence on appeal on the grounds that the material sought to be relied on is not relevant because comments made by the Arbitrator at a teleconference are not part of the evidence in the proceedings and, as such, the Arbitrator is not entitled to take them into account in making a determination.
The material sought to be relied on is not ‘new evidence’ in the usual sense in that it is not additional material going to the merits of the substantive claim, but is material setting out the negotiations that took place at the teleconference on 6 February 2006. The Appellant Worker submits that those exchanges led him to take a certain course with his claim and the statements and letters sought to be tendered merely set out what happened and what was said.
Proceedings at teleconferences are not always transcribed and there is no transcript of the teleconference of 6 February 2006. In these circumstances it is appropriate, if a matter of controversy arises, for a summary of the proceedings at the teleconference to be prepared. That is what is set out in the four documents listed above. The Respondent Employer does not challenge the accuracy of the documents but says they are not ‘new evidence’ going to the issue in the case, namely, the quantum of Mr O’Neill’s compensation under section 67. In the absence of a challenge to the accuracy of the documents, I intend to allow them into evidence on appeal but not as evidence going to the merits of the case but only as evidence of the proceedings at the teleconference on 6 February 2006.
SUBMISSIONS AND FINDINGS
Equity and Good Conscience
The Appellant Worker accepts that proceedings in the Commission are conducted with as little formality and technicality as the proper consideration of the matter permits (Mayne Health Group v Sandford [2002] NSWWCCPD 6) but submits that the capacity of the Commission to act with informality cannot override the obligation to act according to equity and good conscience (Appellant Worker’s submissions, paragraph nine). The reference to equity and good conscience is a reference to section 354 of the 1998 Act which provides:
“354 Procedure before Commission
(1) Proceedings in any matter before the Commission are to be conducted with as little formality and technicality as the proper consideration of the matter permits.
(2) The Commission is not bound by the rules of evidence but may inform itself on any matter in such manner as the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits.
(3) The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.
(4) Proceedings need not be conducted by formal hearing and may be conducted by way of a conference between the parties, including a conference at which the parties (or some of them) participate by telephone, closed-circuit television or other means.
(5) Subject to any general directions of the President, the Commission may hold a conference with all relevant parties in attendance and with relevant experts in attendance, or a separate conference in private with any of them.
(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.
(7) An assessment or determination is to be made by the Commission having regard to such information as is conveniently available to the Commission, even if one or more of the parties to the assessment or determination proceedings does not co-operate or ceases to co-operate.
(8) In proceedings before a court with respect to a claim for work injury damages (other than proceedings under section 235A or 235C or under the Crimes Act 1900 with respect to fraud), evidence of a statement made in proceedings before the Commission is not admissible unless the person who made the statement agrees to the evidence being admitted.”
It is submitted that the Arbitrator said to the parties at the teleconference on 6 February 2006 that “the range for pain and suffering in this case is $10,000 to $15,000” (see statement from Richard Brennan dated 4 April 2006, paragraph four). In the light of this statement Mr Brennan obtained instructions from Mr O’Neill to make a final offer of $12,500.00 in response to the Respondent Employer’s offer of $10,000.00. Given this history of the negotiations and the active role the Arbitrator played in them, it is submitted that for the Arbitrator to then make an award in the sum of $7,500.00 involves misleading conduct which has caused an injustice to Mr O’Neill.
In the absence of evidence or submissions to the contrary, I accept that Mr Brennan’s statement of 4 April 2006 represents a fair and accurate summary of the proceedings at the teleconference on 6 February 2006.
The duty of an Arbitrator at a conciliation conference (or a teleconference) is set out in the WorkCover Guideline for the Practice of the Conciliation/Arbitration Process (revised in October 2005) (‘the Guidelines’) which provides at page five:
“Assist discussions about resolution
The Arbitrator will use some or all the following ways to assist discussions:
·Review any agreements reached and/or negotiations undertaken prior to the conference.
· Establish whether there is a statement of agreed facts and issues.
· Identify issues and differences between the parties in relation to each.
·Encourage parties to review the strengths and weaknesses of their positions based on the evidence.
· Identify barriers to agreement and explore how these might be overcome.
· Identify ‘practical’ solutions.
· Facilitate realistic settlement offers and bona fide consideration of offers.
·Identify the advantages of early settlement and the risks of leaving the matter for determination by a third party.
·Identify likely best and worst case outcomes for parties based on the material lodged.”
The above Guidelines make clear that an Arbitrator is entitled and expected to take an active role in the negotiations between the parties and is entitled to identify the “best and worst case outcomes for parties based on the material lodged”. However, where no additional evidence is lodged after the teleconference, the parties are entitled to expect that the Arbitrator will adhere to the ‘best and worst’ figures identified at the conference. In the present case no additional evidence was lodged after the teleconference but written submissions were filed by each side.
The fact that an Arbitrator takes an active role in the conciliation conference (teleconference) does not disqualify the Arbitrator from then hearing and determining the case in Arbitration (section 355(2) of the 1998 Act). Nevertheless an Arbitrator has an obligation to comply with the sprit and terms of section 354(3) and to observe the rules of procedural fairness (Inghams Enterprises Pty Limited v Michelle Zarb [2003] NSWWCCPD 15). That obligation extends not only to the Arbitration hearing, but to the whole of the conciliation/arbitration process.
In Kioa v West (1985) 159 CLR 550 Mason J (as he then was) said at [31]:
“31. The law has now developed to a point where it may be accepted that there
is a common law duty to act fairly, in the sense of according procedural
fairness, in the making of administrative decisions which affect rights,
interests and legitimate expectations, subject only to the clear manifestationof a contrary statutory intention.” (emphasis added)
In In Re Minister for Immigration & Multicultural Affairs; ex parte Lam (2003) 214 CLR 1 the High Court discussed the manner in which procedural fairness cases are approached by the courts, and Gleeson CJ said (at 14, [37]):
“Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.”
In Muin v Refugee Tribunal [2002] HCA 30 Justice McHugh stated the requirement as follows at [123]:
“Natural justice requires that a person whose interests are likely to be affected by an exercise of power be given an opportunity to deal with matters adverse to his or her interests that the repository of the power proposes to take into account in exercising the power.” (emphasis added)
In considering the application of the rules of procedural fairness to the Commission the NSW Court of Appeal held in Aluminium Louvres & Ceilings Pty Limited v Xue Qin Zheng [2006] NSWCA 34 at [20] that:
“As ever when a claim is made that Natural Justice has not been accorded, regard must be paid to the legal context in which the decision-maker operates and to the law regulating the conduct of the proceedings.”
The judgment by Gibbs CJ in National Companies and Securities Commission vNews Corporation Limited (1984) 156 CLR 296 at 312 is also instructive:
“In Russell v. The Duke of Norfolk (1949) 1 All ER 109 Tucker L.J. said, at p 118: ‘The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with, and so forth.’ The passage has frequently been approved - for example, by this Court in Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546, at p 552. The authorities show that natural justice does not require the inflexible application of a fixed body of rules; it requires fairness in all the circumstances, which include the nature of the jurisdiction or power exercised and the statutory provisions governing its exercise.”
In the present case the Appellant Worker had a ‘legitimate expectation’ that, having regard to the Arbitrator’s comments at the teleconference, he would recover section 67 compensation of at least $10,000.00. If that was not to be the case because certain material caused the Arbitrator to change her mind, that material and the change of mind should have been brought to the attention of the parties and they should have been given the opportunity to make further submissions on those matters, or further explore settlement.
The situation is analogous to that in Stead v State Government Insurance Commission (1986) 161 CLR 141. In that case the trial judge, during final addresses, stopped counsel for the plaintiff addressing further on his client’s credit, but in his reserved judgment found against the plaintiff on that issue. The High Court ordered a new trial because there had been a denial of natural justice affecting the entitlement of a party to make submissions on an issue of fact. In the present case the Arbitrator gave a clear indication of the range of compensation Mr O’Neill could expect to recover under section 67 and then, in a reserved decision, gave a result 25% under the bottom figure in that range without giving the parties any further opportunity to be heard.
Whilst it is perfectly appropriate and proper for an Arbitrator to indicate his or her view of the best and worst case outcomes, it is a breach of section 345(3) and of the rules of procedural fairness for the Arbitrator to then give a figure below the bottom figure (or above the top figure) without first notifying the parties that his or her previously expressed view is no longer held and further submissions are invited.
The Respondent Employer submits that the obligations under section 354(3) do not apply when the Arbitrator is acting as conciliator. I do not agree that the rules of procedural fairness and the obligations under section 354(3) are restricted to the Arbitration stage of the proceedings. Because of the informal nature of proceedings in the Commission there is an even greater need for Arbitrators to exercise care to ensure that the rules of procedural fairness are followed at all stages of the proceedings. Only by complying with those rules will ‘practical injustice’ be avoided in the final outcome.
The Respondent Employer also relies on section 355(2). This subsection prevents objection being taken to an Arbitrator making an award or determination on the ground that the Arbitrator previously used her or her best endeavours to bring the parties to a settlement. The subsection does modify the rules of procedural fairness in that, having attempted to effect a settlement in the matter, that fact in itself does not disqualify the Arbitrator from then determining the matter. However, the subsection does not exclude all the principles of procedural fairness, or the statutory requirement to act in good conscience. In the circumstances of this case those principles required that the Arbitrator, if she changed her mind about the appropriate range of compensation under section 67, give the parties the opportunity to either make further submissions, or further explore settlement. That opportunity was not given and involves an error.
It is also submitted that the Appellant Worker has not shown how he would have conducted his case differently or how he was deprived an opportunity to present his case by the Arbitrator’s conduct. A denial of procedural fairness is a matter going to jurisdictional error (Kopuz v District Court of New South Wales (1992) 28 NSWLR 232 at 245). It is sufficient to demonstrate that a denial of procedural fairness deprived a person of “the possibility of a successful outcome” (Pfizer Ltd v Birkett (2001) 112 FCR 305). In the present case the Appellant Worker was been deprived of the opportunity to settle his case on terms more favourable than the determination made by the Arbitrator, and was deprived of the opportunity to make further submissions after the Arbitrator changed her mind.
It follows that the Arbitrator’s decision must be set aside and a fresh determination made. As there is no issue as to the Appellant Worker’s credit, I am in as good a position to make that reassessment as the Arbitrator and, so as to save time and costs, that is the course I propose to adopt.
Wrong Legislation; Unreasonable and Unjust; Relevant Considerations
In view of the finding I have made on the first ground of appeal it is unnecessary to for me to determine the remaining grounds of appeal.
Reassessment
In his statement of 25 February 2005, Mr O’Neill makes the following relevant comments about his injury and its consequences:
·his ongoing symptoms and disabilities are outlined in the reports of Dr Hasn dated 25 November 2003 and 19 November 2004;
·he underwent surgery to his left shoulder on 14 August 2002 and to his left knee on 19 May 2004;
·he has had to work under medical restrictions and is limited to four hours per day, five days per week;
·on a scale of nought to ten he rates the pain in his shoulder at “about three” and the pain in his left thigh and knee at “about five”;
·because of the effects of his injury on his lifestyle and employment capacity he has consulted his general practitioner (Dr Lim) for treatment for distress and anxiety;
·he has gained weight and been unable to exercise properly;
·he has been unable to pursue recreational activities such as aerobic exercise, bush walking, tennis and dancing; and
·he has been prescribed medication (effexor and mirtazon) for his distress and anxiety.
Dr Hasn, orthopaedic surgeon, first saw Mr O’Neill on 27 November 2001. He took a history of the fall at work on 13 September 2001 and of continuing pain and swelling in Mr O’Neill’s left knee. An MRI scan showed “patella tendonitis and oedema which corresponded to the area of discomfort”. There was also chondral damage to the lateral facet of the patella. Dr Hasn injected the area on several occasions with some improvement in the symptoms. At the examination on 25 January 2002 Dr Hasn noted there was residual quadriceps weakness and anterior discomfort.
At review on 7 July 2002 Mr O’Neill complained to Dr Hasn that his shoulder had become more problematic and a small full thickness rotator cuff tear was found with inflammation and impingement. Injections were given but they did not provide any long term solution. Ultimately, Mr O’Neill underwent surgery to his left shoulder in August 2002. At surgery a full thickness tear of the rotator cuff was confirmed and an arthroscopic acromioplasty was performed.
Mr O’Neill made a good recovery from the surgery but at review on 13 September 2002 Dr Hasn noted that he was developing signs of a frozen shoulder. Further improvement in his shoulder was noted at the review on 1 November 2002 but his left knee was a continuing problem. The left shoulder showed further improvement at the review with Dr Hasn on 28 November 2003 but still had some restriction on internal and external rotation.
Mr O’Neill’s left knee continued to be painful with most difficulty experienced going up and down stairs and walking on uneven ground. He also had difficulty playing with his grandchildren due to discomfort and had not resumed running, aerobics or bushwalking. On examination there was found to be two centimetres of wasting of the left quadriceps with medial retro patellar tenderness.
Dr Hasn next examined Mr O’Neill on 30 March 2004 (see report 19 November 2004). He took a history that Mr O’Neill was still having significant difficulty with patellofemoral pain which had been worsening since the previous review. Surgery was performed on the left knee on 19 May 2004. The surgery revealed grade two chondral damage to the superior pole patella and to the lateral femoral condyle. At review on 13 August 2004 there had been improvement in his knee symptoms with less pain though he still had difficulty with certain activities of daily living.
The AMS (Dr Bodel) examined Mr O’Neill on 11 July 2005. The following points are noted from his MAC:
· Mr O’Neill took panadeine forte and celebrex from time to time for his symptoms;
· Mr O’Neill continued to complain of pain and stiffness in the left shoulder and mild pain and instability in the left knee;
· any attempt to kneel, squat or go down stairs or ladders or slopes caused problems with the left knee;
· any pushing, pulling or lifting activities with the left upper limb overhead aggravated his symptoms; and
· Mr O’Neill had difficulty with household maintenance and cleaning activities, particularly the gardening.
The Appellant Worker also relies on a report from Dr Chee dated 29 July 2005 in which it is noted that Mr O’Neill has been treated for anxiety and depression since March 2002 and has been on anti depressant medication throughout that period. The report refers to Mr O’Neill’s depression as being a recurrence which is “attributable in large part to his injury sustained in his fall at work”.
Mr O’Neill has seen three doctors for Star City; Dr Miniter, Dr Connolly and Dr Wijetunga. In his report of 2 December 2002 Dr Miniter recorded that most of Mr O’Neill’s pre-operative shoulder pain had resolved but there was a slight restriction in range of motion.
Dr Connolly noted in his 1 January 2004 report that Mr O’Neill’s shoulder pain was largely better though he still got slight pain at the extremes of motions. Dr Connolly also noted the continuing left knee problems and problems with ladders.
Dr Wijetunga reported on Mr O’Neill on 15 October 2004. He states that Mr O’Neill’s knee symptoms improved after surgery and that he had minimal pain on movement though still noticed periods of instability. He also recorded Mr O’Neill did not experience any constant left shoulder pain but did get pain at the extremities of movement. Overall his condition had improved 90%.
In addition to reading and considering all of the evidence in this matter, I have also read the written submissions by the parties on appeal and before the Arbitrator. I am mindful that compensation under section 67 is compensation for pain and suffering resulting from the loss or losses. The expression ‘pain and suffering’ is defined in section 67(7) of the 1987 Act, as it applied to injuries sustained before 1 January 2002, to mean:
“(a)actual pain; or
(b)distress or anxiety,
suffered or likely to be suffered by the injured worker, whether resulting from the loss concerned or from any necessary treatment.”
I note the Respondent Employer’s submission in its solicitor’s letter of 9 February 2006 that the AMS has taken into account Mr O’Neil’s pain and suffering in assessing his section 66 entitlement in respect of his left leg. I do not accept that submission. The AMS’s assessments under section 66 were based on the “clinical findings” he made on examination (see MAC, page nine). The submission in paragraph 11 of the 9 February 2006 letter seems to attempt to link the compensation payable under section 67 to the quantum of the assessments found by the AMS under section 66. Once the section 67 threshold has been reached, there is no such link and compensation for pain and suffering is completely independent of the section 66 assessment (Staker v North Broken Hill Pty Ltd (1992) 8 NSWCCR 332).
In the Appellant Worker’s written submissions before the Arbitrator dated 17 February 2006 it was argued that the proper range of compensation under section 67 was $12,500.00 to $17,500.00.
I accept Mr O’Neill’s evidence of continuing pain and suffering as set out in his statement of 25 February 2005 and as corroborated by the history taken by the AMS. I accept that his losses have resulted in continuing pain, and distress and anxiety, though the exact extent of the latter is hard to judge given the limited details provided by Dr Chee in his report of 29 July 2005. I also note that there were inconsistencies in the medical histories relating to the impact the injury has had on Mr O’Neill’s ability to engage in recreational and sporting activities. Notwithstanding those inconsistencies Mr O’Neill sustained a significant injury to his left knee and left shoulder and continues to experience pain and anxiety as a result.
Taking into account all the evidence and the submissions from the parties I assess the Appellant Worker’s pain and suffering under section 67 to be 25% of a most extreme case, or $12,500.00.
DECISION
Paragraph one of the Arbitrator’s decision of 7 March 2006 is revoked and the following order made:
“1.The Respondent is to pay the Applicant compensation in the sum of $12,500.00 in respect of pain and suffering pursuant to section 67 of the Workers Compensation Act 1987, representing 25% of a most extreme case.”
Paragraph two of the Arbitrator’s decision of 7 March 2006 is confirmed.
COSTS
The Respondent Employer is to pay the Appellant Worker’s costs of the appeal.
Bill Roche
Acting Deputy President
4 October 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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