Patterson v Secretary, Department of Planning, Industry and Environment
[2022] NSWPICPD 11
•25 March 2022
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER | |
| CITATION: | Patterson v Secretary, Department of Planning, Industry and Environment [2022] NSWPICPD 11 |
| APPELLANT: | Suzanne Patterson |
| FIRSTRESPONDENT: | Secretary, Department of Planning, Industry and Environment |
| FIRST RESPONDENT’S INSURER: | Allianz - As Agent for the NSW Self Insurance Corporation |
| SECOND RESPONDENT: | Secretary, Department of Customer Service |
| SECOND RESPONDENT’S INSURER: | Allianz - As Agent for the NSW Self Insurance Corporation |
| FILE NUMBER: | A1-W503/21 |
| PRESIDENTIAL MEMBER: | Deputy President Elizabeth Wood |
| DATE OF APPEAL DECISION: | 25 March 2022 |
ORDERS MADE ON APPEAL: | 1. The Certificate of Determination dated 25 June 2021 is revoked. 2. The matter is remitted to another member for re-determination. |
| CATCHWORDS: | WORKERS COMPENSATION – Sections 15 and 16 of the Workers Compensation Act 1987 – deemed date of injury – Alto Ford Pty Ltd v Antaw [1999] NSWCA 234, Stone v Stannard Bros Launch Services Pty Ltd [2004] NSWCA 277 discussed |
| HEARING: | On the papers |
| REPRESENTATION: | Appellant: |
| Mr R Goodridge, counsel | |
| Firths – The Compensation Lawyers | |
| Respondents: | |
| Mr F Doak, counsel | |
| HWL Ebsworth Lawyers | |
| DECISION UNDER APPEAL | |
| MEMBER: | Ms D Moore |
| DATE OF MEMBER’S DECISION: | 25 June 2021 |
INTRODUCTION AND BACKGROUND
Ms Suzanne Patterson (the appellant) was employed as a cartographer, working in various New South Wales Government entities over many years until 1988, when she took time away from paid employment to start a family and take care of her young children. In 1993, the appellant returned to the workforce as a cartographer with the Central Mapping Authority, initially on a part-time basis. In 1999 she became a permanent full-time employee of the Central Mapping Authority. During her employment, the organisation in which the appellant worked underwent several name changes and was attached to various New South Wales Government departments.
On or about 1 April 2009, the appellant lodged a claim for weekly payments and treatment expenses in respect of symptoms arising in her right shoulder and neck which she attributed to repetitive work in the nature of manually plotting and updating mapping software from old maps and plans. The claim for compensation was accepted, and the appellant was paid weekly compensation for a short period, after which she returned to her normal duties. She continued to receive treatment for symptomatic relief.
On 6 August 2018, the appellant lodged a further claim for weekly payments following a significant worsening of her symptoms. The claim was accepted, but weekly compensation was paid at the rate applicable to the earlier deemed date of injury, 1 April 2009. On 20 August 2020, the appellant made a lump sum claim pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) in respect of 29% whole person impairment. The respondents’ insurer accepted the assessment of 29% whole person impairment but calculated the compensation entitlement on the basis of a deemed date of injury of 1 April 2009.
The appellant commenced proceedings in the Commission against the Secretary, Department of Planning, Industry and Environment (her employer at the time of the 2009 injury). She claimed an increase in the weekly payments and in the lump sum entitlement on the basis that those entitlements should have been calculated in accordance with a deemed date of injury of 6 August 2018. The dispute was listed for arbitration before a non-presidential member, at which time the first respondent’s counsel advised that, as at 6 August 2018, the appellant’s employer was the Secretary, Department of Customer Service.
The Member directed the parties to file written submissions in relation to the identity of the appellant’s employer and in relation to the substantive issues in the matter. She issued a Certificate of Determination in which she amended the pleadings to add the Secretary, Department of Customer Service as a second respondent and determined that the correct date of injury for both the weekly payments and the lump sum claim was 1 April 2009. The appellant appeals that decision.
ON THE PAPERS
Section 52(3) of the Personal Injury Commission Act 2020 provides:
“(3) 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 and enabling legislation without holding any conference or formal hearing.”
Each of the parties have indicated that the appeal can be determined on the basis of the documents before the Commission.
I have had regard to Procedural Directions PIC2 and WC3, the documents that are before me, 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 MATTERS
There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) have been met.
There is no issue raised that the decision of the Member is interlocutory in nature, thus leave to appeal is not required.
THE EVIDENCE
The appellant’s statement
The appellant made a statement dated 4 May 2020.[1] She provided details of her career path leading to employment with the respondents. She described the work with the first respondent that led to the onset of neck and right shoulder pain which continued over a period of months and prompted her claim for compensation on 1 April 2009. She said:
“That injury was caused by inappropriate set up of my workstation from an ergonomic perspective where I was required to do repetitive work by taking old maps and plans and using them to manually plot and update a data base to be survey accurately in a more modern mapping software [sic].
This involved hours of repetitive work with a mouse and data entry in a hunched over position.”[2]
[1] Application to Resolve a Dispute (ARD), pp 1–5.
[2] Appellant’s statement, [16]–[17].
The appellant reported that she consulted her general practitioner, Dr Catherine Stewart, and was prescribed anti-inflammatory medication and physiotherapy. She said she was off work for “a few days.” The appellant said that she returned to her normal duties, but nothing had changed and so she continued over the years to seek treatment in the form of physiotherapy, remedial massage and acupuncture.
The appellant stated that, in 2014, she was moved from the modified work station that she had been provided with in 2009 to a different work station, where she was required to do the same type of work without the work area being ergonomically assessed. She said she developed a sharp increase in her symptoms and her condition began to rapidly deteriorate, causing the need to seek additional treatment, including cortisone injections. The symptoms prompted her to make a further claim for compensation in March 2015. The appellant said that she did not receive a response to that claim and eventually requested and was granted a transfer into a section where her duties would be different. The appellant stated that she continued to experience increased symptoms. She said that in 2018 there was an increase in her workload and the use of the mouse and data entry, which caused further deterioration in her condition. She described her symptoms at that stage as severe. She reported that she was referred to Dr Raoul Pope, neurosurgeon, who ultimately performed a spinal fusion in September 2019.
The appellant indicated that she returned to work on restricted duties on 6 January 2020, working two hours per day, 2 days per week, which she said was the limit of her capacity. She referred to the respondents’ calculation of her entitlements based on the injury in 2009, which she asserted was incorrect because she had suffered a deterioration in her condition which was a further injury caused by the work she was doing.
The appellant made observations about her entitlement to weekly compensation and the legislative context, and asserted that the payments were, in her view, incorrect.
The medical evidence
Mr John Roberts, Musculo-skeletal physiotherapist
Mr Roberts provided a short report dated 20 February 2015.[3] He confirmed that the appellant had been attending the practice since 2008, mainly in respect of cervical spine symptoms. He recorded her symptoms as predominantly right sided with occasional radiation into the right arm. He noted that the appellant had recently experienced more frequent attacks of pain. Mr Roberts discussed the treatment provided to the appellant as well as the exercise regimes she was performing. He advised that the appellant also complained of low back and hip symptoms and suffered from widespread osteoarthritis.
[3] ARD, p 53.
Mr Roberts provided a further report dated 5 February 2016.[4] He advised that the appellant had consulted him on many occasions over the previous two to three years, seeking treatment for cervical and cervico-thoracic spinal pain. He said that she complained of radicular symptoms and headaches. He attributed the symptoms to the appellant’s posture at work and the ergonomics of her workplace. Mr Roberts advised that the appellant’s treatment regime included a home-based exercise program, but despite their combined best efforts, the appellant’s plotting activities at work appeared to aggravate her symptoms.
[4] ARD, p 55.
Mr Roberts provided further reports on 16 November 2018,[5] 15 March 2019[6] and 27 July 2019.[7] Those reports do not provide additional relevant evidence.
[5] ARD, p 62.
[6] ARD, p 65.
[7] ARD, pp 73–74.
Dr Andreas Loefler, spinal surgeon
The appellant was referred by Dr R Wilson, general practitioner, to Dr Andreas Loefler, spinal surgeon. Dr Loefler reported to the appellant’s general practitioner on 18 June 2015.[8] He recorded the appellant’s symptoms as neck pain and stiffness with intermittent paraesthesia in her right arm that had been present for seven years but had been gradually increasing. He examined the appellant and reviewed an MRI scan. He noted the scan showed degenerative changes at the C5/C6 level of the cervical spine with small osteophytes and a “prominent” disc. He added that there was narrowing of the exit foramen, particularly on the right side. He recommended against surgical intervention.
[8] ARD, p 54.
Dr Raoul Pope, neurosurgeon
Dr Pavan Phanindra, general practitioner, referred the appellant to Dr Raoul Pope. Dr Pope reported to Dr Phanindra on 16 October 2018.[9] He noted that the appellant complained of neck pain, right arm weakness, pins and needles and numbness, which had been present for eight years. He further noted that the appellant had suffered an injury in 2009 but that her symptoms had deteriorated in the last few years.
[9] ARD, pp 57–58.
Dr Pope observed that the injury was a repetitive strain type injury caused by looking at two monitors and plotting with a mouse for seven hours per day while keeping her neck rigid. Dr Pope said that the symptoms came on gradually in the cervicothoracic area, with neck pain and bilateral pain across the shoulders. He said that this was accompanied by radicular pain into the arm extending to the forearm and there was altered sensation and weakness in the hand which was consistent with pathology at the C7 level of the spine. He noted that the left arm was normal.
Dr Pope referred to the appellant’s treatment and her functional limitations, noting that the appellant had been off work for two months. He examined the appellant and reviewed the radiological investigations. He concluded that the appellant had suffered a repetitive strain type injury causing neck pain which was work related. He opined that she suffered from degenerative inflammatory arthropathy with disc bulging and foraminal stenosis. He considered that the worst symptoms were those emanating from the facet joints. He recommended referral to a pain specialist and possible radio frequency ablation therapy, but if that treatment failed, consideration should be given to performing a cervical discectomy and fusion.
Dr Pope reviewed the appellant again on 19 June 2019.[10] He recorded the appellant’s previous complaints. He noted that the appellant had undergone radio frequency ablation therapy administered by Dr Alan Nazha, pain management specialist, which provided excellent relief of her symptoms, but the symptoms re-presented and the appellant was now “struggling.” He recommended surgery in the form of a double fusion at C5/6 and C6/7 levels, provided that all other nonsurgical options had failed. He advised that the appellant was to discuss her options with Dr Nazha.
[10] ARD, pp 69–70.
On 23 July 2019, Dr Pope reported to Dr Phanindra that the appellant had decided to proceed with the proposed surgery and that Dr Nazha had agreed that the proposed surgery was reasonable, as all other treatment had failed. Dr Pope believed that the surgery would not only help with the appellant’s symptoms but also prevent further deterioration.[11]
[11] ARD, pp 71–72.
Dr Pope reviewed the appellant on 17 September 2019, two weeks after the surgery was performed. He noted some relief in her neck and arm symptoms, which he expected would improve.[12] On 23 October 2019, he again reviewed the appellant, noting further improvement. He recommended a gradual return to work.[13]
[12] ARD, pp 75–76.
[13] ARD, pp 77–78.
Dr Alan Nazha, pain management specialist
The appellant was referred to Dr Alan Nazha by Dr Pope. Dr Nazha reviewed the appellant and reported to Dr Pope on 25 October 2018.[14] Dr Nazha referred to the history of injury in 2009. He noted that the appellant had undergone a number of injections into the C5/6 facet joints which provided transient relief, and had trialled physiotherapy, acupuncture, massage and osteopathy. He further noted that the appellant had been off work for two months as a result of cervical pain. He proposed to administer diagnostic blocks to the cervical spine and, if the response was positive, then he would proceed with thermal radiofrequency ablation.
[14] ARD, pp 59–61.
Dr Nazha reviewed the appellant and reported to Dr Phanindra on 25 February 2019,[15] 20 May 2019,[16] and 15 May 2020.[17] He advised that the appellant had noted improvement in her pain following the thermal radiofrequency ablation and the surgery performed by Dr Pope in September 2019.
[15] ARD, pp 63–64.
[16] ARD, p 68.
[17] ARD, p 80.
Dr John Sheehy, neurosurgeon
Dr John Sheehy was asked by the first respondent to examine the appellant and provide an opinion. He provided a report dated 13 September 2020.[18] He noted the past history of injury to the neck in 2009 and the appellant’s return to pre-injury duties on 27 July 2009. Dr Sheehy recorded that between 2009 and 2013, the appellant managed her symptoms of neck pain, intermittent headache and pins and needles with various conservative treatment regimes, with a recurrence of pain in 2013 and worsening neck pain and pins and needles in 2018. He noted that the appellant was off work from July 2018 to December 2018 and ultimately underwent a C5/6 and C6/7 cervical fusion on 5 September 2019 which alleviated the pins and needles, but the appellant continued to experience significant neck pain.
[18] ARD, pp 81–86.
Dr Sheehy reviewed an MRI scan undertaken on 4 June 2019. He observed that there was disc degeneration and an annular disc osteophyte encroaching at the C5/6 level and at the C6/7 level. There was also osteophytic narrowing due to degenerative disease from C3 level to C7.
Dr Sheehy diagnosed degenerative cervical spondylosis at the C5/6 and C6/7 level. He opined that there were “no factors outside [of] work”[19] which contributed to the diagnosis and her employment was the main contributing factor to the aggravation of her condition. He added that there had been “multiple injuries to her neck over the years which have exacerbated these degenerative changes.”[20] He considered that the appellant would be unable to work significantly more than the three hours, two days per week she was currently working.
[19] ARD, p 84.
[20] ARD, p 85.
Dr Uthum K Dias, occupational physician
The appellant’s legal representatives arranged for the appellant to be assessed by Dr Uthum Dias. Dr Dias provided a report dated 13 July 2020.[21] He reviewed the documentary material provided to him, which included MRI scans of the cervical spine dated 12 February 2015, 27 September 2018, and 4 June 2019. He took a detailed account of the appellant’s employment history, noting that her work over the years became increasingly more digitalised, with 95% of her work being computer based, involving intensive keyboarding and use of the mouse for several hours in the day.
[21] ARD, pp 34–52.
Dr Dias took the history of the onset of the appellant’s symptoms of pain, stiffness and discomfort in the neck radiating into the right shoulder and arm, which worsened in April 2009. He said that the appellant attributed the symptoms to the computer work she was performing daily and lodged a notice of injury with her employer. Dr Dias noted further exacerbation of the appellant’s symptoms of neck pain, headaches and radicular pain into the right arm between 2011 and 2015 and that by January 2015, the appellant had sought further regular treatment from her physiotherapist. Dr Dias further noted that the appellant lodged a recurrence of injury form with her employer, which was rejected.
Dr Dias recorded the further history provided by the appellant that between 2015 and 2018, she experienced worsening symptoms in her neck and right arm radiculopathy, for which she sought extensive treatment and as a result of which she ceased work on 6 August 2018. Dr Dias reviewed the appellant’s ongoing treatment from both Dr Nazha and Dr Pope, including the cervical spine fusion performed by Dr Pope in September 2019. Dr Dias noted that the appellant experienced only a mild improvement in her symptoms following the surgery. He recorded the appellant’s complaint of symptoms at the time of consultation and her current activities, and he performed a physical examination.
Dr Dias concluded that the appellant suffered from symptomatic degenerative cervical spondylosis with associated disc degeneration at the C5/6 and C6/7 levels of the cervical spine. He confirmed that the appellant had no capacity for work from 6 August 2018 to January 2020, and thereafter remained partially fit for restricted work. He was of the opinion that the symptomatic degenerative cervical spondylosis was caused by the nature and conditions of the appellant’s employment over a period of 30 years, but significantly from the period in the late 2000’s and until August 2018. Dr Dias added that in his view, the appellant suffered a disease of gradual process, that is, a progression and aggravation of her condition, and that the appellant’s employment was the main contributing factor to the degenerative condition between at least April 2009 and 6 August 2018. He concluded that, on the basis of the appellant’s long-term employment, the deemed date of injury was 6 August 2018, which date had been suggested to him by the appellant’s legal representatives. Dr Dias proceeded to address the appellant’s whole person impairment, which he assessed to be 29%.
Dr Azhar Khan, occupational physician
The appellant was referred to Dr Azhar Khan by Dr Nazha. Dr Khan reported to Dr Nazha on 29 May 2019.[22] He described the appellant’s condition as chronic neck pain which had been present since 2009 and discussed the treatment provided to the appellant from that time. Dr Khan considered that the appellant’s pain was located at the cervico-thoracic spine junction and was accompanied by pins and needles in the right arm which was consistent with a C8 level distribution. Dr Khan agreed with Dr Pope’s opinion that the neck pain was most likely due to facet joint arthropathy. He considered an assessment of the appellant’s ability to return to work should be delayed until further assessment by Dr Pope. He recommended a focus on vocational and psychological rehabilitation and a potential referral to a pain psychologist.
[22] Reply to Application to Resolve a Dispute, pp 2–3.
Other documentation
The first respondent’s list of compensation payments discloses that the appellant was paid weekly payments of compensation in the amount of $67.20 on 12 May 2009, 15 May 2009, 20 May 2009 and 21 May 2009, based on a weekly rate of $1,344.34. The appellant did not receive any further payments until 30 September 2018, when she was paid a total of eight weeks (including arrears) of weekly payments at the rate of $1,444.00 per week, and at various rates thereafter.[23]
[23] ARD, p 31.
THE MEMBER’S REASONS
The Member noted that there was no issue in respect of the facts of the case and the only issue for determination was the correct date of injury, which would determine the correct rate of weekly payments and lump sum entitlements. She referred to the appellant’s description of the issue, which was expressed in terms of “Does the incapacity arise out of the 2009 injury or subsequent injury or injuries?”[24]
[24] Patterson v Secretary, Department of Planning, Industry and Environment [2021] NSWPIC 212 (reasons), [17].
The Member quoted ss 4, 15 and 16 of the 1987 Act. She summarised the appellant’s statement evidence.
The Member turned to the medical evidence. She pointed to the evidence of Dr Pope, who referred to the injury in 2009 and observed that the appellant’s condition had deteriorated in the “last few years.” The Member quoted from the evidence of Dr Nahza, who referred to long standing neck pain, a previous injury in 2009 and a further period off work due to her pain. She noted the evidence from Dr Khan, who, she said, described the appellant’s symptoms as chronic neck pain since 2009.
The Member provided detailed extracts from the opinions provided by Dr Sheehy and Dr Dias. The Member also summarised in detail the submissions of the parties, including the submission that the appellant’s incapacity from 2018 was not caused by the injury in 2009, and that the degenerative condition had worsened between 2009 and 2018. She referred to the authorities cited by the appellant as to the operation of ss 15 and 16 of the 1987 Act. The Member noted that the respondent relied on the opinions of Dr Pope and Dr Khan as support for the assertion that the entitlements to compensation were due to the effects of the 2009 injury. She also noted that the respondent submitted that Dr Dias’s opinion was not properly reasoned when he expressed the view that the degenerative condition was “caused and aggravated” by the appellant’s work and that the opinion did not provide a proper evidentiary basis for that conclusion.
The Member considered that the appellant’s case had been “carefully constructed” to support a finding of a disease, and that comments made in her statement about her condition were not what could be expected from a lay person.[25] The Member concluded that, as a consequence, she ought to afford less weight to that evidence.
[25] Reasons, [39].
The Member observed that she found the opinions of Drs Pope, Nazha and Khan, the treating specialists, particularly persuasive. She said that they all referred to an injury in 2009 with ongoing fluctuating symptoms. The Member referred to the responses provided by Dr Dias to questions posed to him, particularly the question “Is it your opinion that the deemed date of injury is 6 August 2018?” She said that, to describe the question as leading was an understatement. She added that in her view, the opinion of Dr Dias was misleading and inconsistent, pointing out that he referred to continuing symptoms, which persisted and tended to be exacerbated by her computer-based activities in her long-term employment. The Member further referred to Dr Dias’s opinion that the symptomatic degenerative spondylosis was caused by the nature of the work the appellant performed over 30 years, but the doctor then went on to opine that the work between 2009 and August 2018 caused a disease of gradual process, which was the progression of the condition.
The Member accepted the respondent’s submission that Dr Dias failed to explain how the work between 2009 and 2018 caused the condition when he had “expressly acknowledged” that the injury in 2009 was the onset of symptoms of the condition. The Member further accepted the respondent’s submissions that there was no other evidence that the appellant’s symptoms tended to be exacerbated by computer work. She observed that none of the treating specialists, general practitioners or other treatment providers recorded such a history.
The Member concluded that the only evidence supporting a disease injury with a deemed date of 18 August 2018 was that of Dr Dias, whose opinion was flawed. She added that Dr Sheehy’s report must be read in context. She referred to his opinion that the symptoms were caused by the degenerative disease which affected the C5/6 and C6/7 levels of the cervical spine and that there had been multiple injuries over the years which exacerbated the changes. The Member observed that Dr Sheehy did not identify those injuries and said that there was no other evidence of the occurrence of such injuries. She added that his conclusion that the appellant’s employment was the main contributing factor to the aggravation of the pre-existing condition was not evidence which would support a finding that the aggravation occurred after 2009. The Member pointed out that no history was provided to any of the treating doctors that the appellant’s workload and use of the mouse had increased in 2018, which resulted in injury.
The Member accepted the respondents’ submissions that the appellant had failed to establish injury as a result of her employment between April 2009 and August 2018 in accordance with either s 4(b)(i) or s 4(b)(ii) of the 1987 Act. The Member concluded that:
“The proper interpretation of all the evidence in my view is that the applicant suffered an injury in the course of her employment on and prior to 1 April 2009 which was further exacerbated over the years up to August 2018.
Accordingly, there will be an award for the respondent in respect of the allegation of a deemed date of injury of 6 August 2018.
The applicant is entitled to weekly compensation from 6 August 2018 at the rate applicable to the injury on 1 April 2009.”[26]
[26] Reasons, [60]–[62].
The Certificate of Determination issued on 25 June 2021 records:
“The Commission determines:
1. Amend the name of the respondent as per the headnote above.
2. Award for the respondents in respect of the allegation of a deemed date of injury of 6 August 2018.
3. Award for the applicant in respect of the claim for weekly compensation from 6 August 2018 at the rates applicable to an injury on 1 April 2009.
4. Credit to the respondents in respect of any payments made since 6 August 2018.
5. The permanent impairment dispute in respect of the cervical spine and scarring (TEMSKI) resulting from the injury on 1 April 2009 is remitted to the President for referral to a Medical Assessor (MA) for assessment of whole person impairment.
6. The documents to be sent to the MA are the Application to Resolve a Dispute and the Reply.”
GROUNDS OF APPEAL
The appellant brings eight grounds of appeal, expressed as follows:
(a) Ground One: The Member erred in failing to find that the appellant suffered an aggravation of an injury which was of such a nature as to be contracted by a gradual process and, by reason of s 16 of the 1987 Act, was deemed to have occurred at the time of incapacity commencing 6 August 2018;
(b) Ground Two: Alternatively, the Member erred in failing to find that the appellant suffered an injury which was of such a nature as to be contracted by a gradual process and, by reason of s 15 of the 1987 Act, was deemed to have occurred at the time of incapacity commencing 6 August 2018;
(c) Ground Three: The Member erred in finding the opinions of treating specialists Dr Pope, Dr Nahza and Dr Khan “particularly persuasive” in their opinions that the appellant had or had not suffered an aggravation of an injury which was of such a nature as to be contracted by a gradual process, when the doctors did not provide such opinions;
(d) Ground Four: The Member erred in affording Dr Dias’s opinion no weight when he was asked a “leading question”;
(e) Ground Five: The Member erred in characterising and finding that the opinion of Dr Dias was “misleading and inconsistent”;
(f) Ground Six: The Member erred in finding that the only support for a finding of disease type injury with a deemed date in 2018 was the opinion of Dr Dias;
(g) Ground Seven: The Member erred in failing to find that the deemed date of injury for lump sum and weekly claims are differently determined by reference to the type of compensation claimed, and
(h) Ground Eight: The Member erred by inconsistently finding that the appellant worked for the first and second respondents and the first respondent changed its name to the second respondent.
LEGISLATION
Section 4 of the 1987 Act defines injury as follows:
“4 Definition of ‘injury’
In this Act—
injury—
(a) means personal injury arising out of or in the course of employment,
(b) includes a disease injury, which means:
(i)a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii)the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c) does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
Sections 15 and 16 of the 1987 Act relevantly provide:
“15 Diseases of gradual process—employer liable, date of injury etc …
(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, and
(b)compensation is payable by the employer who last employed the worker in employment to the nature of which the disease was due.
…
(4) In this section, a reference to an injury includes a reference to a permanent impairment for which compensation is payable under Division 4 of Part 3.”
“16 Aggravation etc of diseases—employer liable, date of injury etc …
(1) If an injury consists in the aggravation, acceleration, exacerbation or deterioration of a disease:
(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, and
(b)compensation is payable by the employer who last employed the worker in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration.
…
(3) In this section, a reference to an injury includes a reference to a permanent impairment for which compensation is payable under Division 4 of Part 3.”
SUBMISSIONS
In the light of my findings in relation to Grounds One, Two, Seven and Eight, it is not necessary to summarise or discuss the parties’ submissions in respect of Grounds Three to Six, which concern the Member’s rejection of the medical opinion of Dr Dias and the Member’s conclusions about the other medical opinions.
In respect of Grounds One and Two, the appellant did not provide separate submissions addressing the individual grounds, as required by the Commission’s Procedural Direction WC3. The submissions provided dealt with both grounds of appeal together, as did the respondents’ submissions. Accordingly, the submissions are summarised in the same manner.
Grounds One and Two
The appellant’s submissions
The appellant says that she had only a short period of incapacity in 2009, following which she had intermittent symptoms but no further incapacity until 2018. The appellant refers to her evidence that her workload had increased, she was required to perform extensive computer work using a mouse, and her seating arrangements were inadequate. The appellant submits that that evidence was not challenged by cross-examination or contrary evidence.
The appellant points out that she commenced a further period of incapacity on 6 August 2018 and underwent a cervical fusion in September 2019. The appellant refers to s 4 of the 1987 Act in a confusing submission, asserting that “the two sub-sections within s 4(a) are not mutually exclusive.” Subsection 4(a) does not comprise of two subsections. The appellant submits that a disease may be contracted in the course of employment and/or a disease may be aggravated, accelerated, exacerbated, or there may be a deterioration of a disease in the course of employment. It is probable that the appellant’s submission is a reference to s 4(b)(i) and 4(b)(ii) of the 1987 Act and not s 4(a).
The appellant further refers to ss 15 and 16 of the 1987 Act and submits that those sections make provision for the manner in which the “deemed date of injury” is to be determined where the injury is the cause or aggravation of a disease of gradual process. The appellant says that the deemed date of injury will operate to calculate the amount of compensation payable in respect of the appellant’s weekly payments and lump sum entitlements.
The appellant asserts that her incapacity arising in 2018 was not caused by her injury in 2009. The appellant cites the authorities of GIO Workers Compensation (NSW) Ltd v GIO General Ltd[27] and P & O Berkeley Challenge Pty Ltd v Alfonzo,[28] and quotes from Sheller JA’s observations in Alto Ford Pty Ltd v Antaw.[29]
[27] (1995) 12 NSWCCR 187.
[28] [2000] NSWCA 214.
[29] [1999] NSWCA 234 (Antaw), [15].
The appellant submits that in Antaw, Sheller JA said that s 15(1)(a) of the 1987 Act speaks of the incapacity resulting from the injury, where the “injury referred to is the condition which makes the subsection applicable.”[30]
[30] Antaw, [18].
The respondents’ submissions
The respondents submit that Grounds One and Two of the appeal should be rejected on the basis that the submissions do not disclose any error of law on the part of the Member, which, the respondents say, is required in order to have the determination set aside. The respondents assert that the appellant is simply seeking to re-argue the case she put to the Member.
Ground Seven
The appellant’s submissions
The appellant submits that the Member, by conflating the dates of injury for the weekly payments and the lump sum claim, failed to deal with the different methods for ascertaining the deemed date of injury for each of those claims. The appellant submits that the deemed date of injury is determined by reference to the type of compensation claimed. The appellant points out that s 15(1)(a)(i) and s 16(1)(a)(i) of the 1987 Act only relate to a claim for weekly payments and the reference to “incapacity” is “a reference to the incapacity for which compensation is claimed.”[31] The appellant refers to Antaw and Stone v Stannard Bros Launch Services Pty Ltd[32] as authorities for that proposition and for the proposition that the deemed date of injury for a permanent impairment claim can be the date the lump sum claim is made.
[31] Appellant’s submissions, [31].
[32] [2004] NSWCA 277 (Stone).
The respondents’ submissions
The respondents assert that the appellant has failed to identify error on the part of the Member. The respondents say that the appellant is seeking to challenge the Member’s finding in respect of the date of injury without identifying a proper basis upon which the Member has fallen into error.
Ground Eight
The appellant’s submissions
The appellant submits that the Member determined that the appellant worked for two different employers and amended the pleadings to nominate the later employer as a second respondent, but subsequently determined that the employer had simply changed its name. The appellant asserts that those findings were inconsistent. The appellant says that the findings ought to either have been that the respondents are different entities or that there is a single respondent “formerly known as.” The appellant adds that there is a further inconsistency between the orders made by the Member in her Certificate of Determination at [4], in which she made an order giving credit to “the respondents” for payments made and at [61], and where she entered an award for “the respondent” in respect of the allegation of a deemed date of injury of 6 August 2018. The appellant submits that if the position was that there was simply a change of the respondent’s name, the Member should not have added a second respondent and should have amended the name of the respondent to read “Secretary, Department of Customer Service formerly known as Secretary, Department of Planning, Industry and Environment.”
The respondents’ submissions
The respondents assert that the error was not material to the proceedings, and the error identified should have been cured by making application to the Member to amend the orders under the “slip rule” because the amendment does not affect the appellant’s entitlements to compensation.
THE RELIEF SOUGHT
The appellant seeks to have the Certificate of Determination dated 25 June 2021 set aside. The appellant also seeks to have:
(a) the name of the respondent amended to read “Secretary, Department of Customer Service formerly known as Secretary, Department of Planning, Industry and Environment”;
(b) an award entered in her favour that the deemed date of injury in respect of the weekly compensation claim is 6 August 2018, and the rates of weekly compensation to be adjusted accordingly, and
(c) the permanent impairment claim remitted to the President for referral to a Medical Assessor on the basis of a deemed date of injury of 10 August 2020.
The respondents submit that the Member’s Certificate of Determination should be confirmed.
DISCUSSION AND CONSIDERATION
For the reasons set out below, it is not necessary to consider Grounds Three, Four, Five and Six of this appeal.
Grounds One and Two
In essence, Grounds One and Two of the appeal assert error on the part of the Member in that she failed to find that the appellant suffered an injury within the meaning of s 4(b)(i) or s 4(b)(ii) of the 1987 Act and, by application of ss 15 or 16 of that Act, the injury was deemed to have occurred on 6 August 2018, which was the date of the relevant incapacity. In her submissions to the Member, the appellant submitted that once the question of what has caused the appellant’s incapacity is resolved, then s 15 and s 16 of the 1987 Act apply to a determination of the deemed date of injury. The appellant referred to various authorities that dealt with how to ascertain the deemed date of injury and quoted from Sheller JA’s observations in Antaw, reproduced at [71] below. Curiously, the appellant did not press the Member to determine that the deemed date of injury in respect of the claim for permanent impairment should have been the date of that claim, which was 10 August 2020. The appellant relied upon the same date of injury for both claims, namely 6 August 2018.
Apart from a brief reference to ss 15 and 16 under the heading “applicable principles,” the respondents made no submission as to how those sections were to be applied. Their submissions centred around issues of the acceptance or rejection of evidence and the weight to be afforded to the evidence.
The Member identified the issue for determination as follows:
“The only issue for determination is the correct date of injury for the purposes of the claim, or as the applicant put it, ‘Does the incapacity arise out of the 2009 injury or subsequent injury or injuries?’
Resolution of that dispute requires consideration of the law as it applies to the facts of this case.”[33]
[33] Reasons, [17]–[18].
The Member also identified and reproduced the “Legislative Framework” relevant to the issue. She acknowledged the appellant’s submissions, which included those in relation to the application of ss 15 and 16 and the observations made by Sheller JA in Antaw. The Member proceeded to assess the factual and medical evidence. She concluded that she was not satisfied that the appellant had suffered a disease injury as a result of the nature of the work between April 2009 and August 2018. She added that it was her view that the evidence supported the conclusion that the appellant suffered a work related injury on and prior to 1 April 2009, “which was further exacerbated … up to August 2018.” The apparent inconsistency between those two conclusions was not explained but the latter conclusion would indicate that s 4(b)(ii) of the 1987 Act applied and the appellant had suffered further injury up to August 2018. In any event, having determined the question of injury pursuant to s 4, the Member failed to take the necessary further step of ascertaining the deemed date of injury for the purposes of a claim for incapacity and permanent impairment entitlements in accordance with s 15 and/or s 16 and applying the relevant authorities dealing with those sections. The medical evidence discloses that the appellant’s condition was that of a disease and the parties proceeded on the basis that ss 15 and 16 of the 1987 Act applied. The Member thus fell into error.
Ground Seven
In Ground Seven of the appeal, the appellant asserts that the Member failed to deal with the differing methods of determining the deemed date of injury where the claims are for weekly payments on the one hand and permanent impairment entitlements on the other. The appellant submits that the deemed date in respect of a weekly payments claim is fixed by reference to the incapacity, whereas in a claim made for permanent impairment pursuant to s 66 of the 1987 Act, the deemed date is the date of the claim for the lump sum. The appellant relies on the authorities of Antaw and Stone.
In Antaw, the applicant suffered a frank injury to his eye, for which he made a claim for a lump sum pursuant to s 16 of the Workers’ Compensation Act 1926. The applicant continued to work for that employer for a number of years and subsequently for different employers. From April 1996 to October 1996, he undertook causal work but thereafter was unable to find further work. The applicant filed proceedings in the Compensation Court. He was awarded weekly compensation from 10 August 1993, a lump sum pursuant to s 66 of the 1987 Act in respect of a 40 per cent further loss of sight of the left eye, treatment expenses and an amount for pain and suffering pursuant to the former s 67 of the 1987 Act. The appellant (Alto Ford Pty Ltd) appealed, nominating three grounds of appeal. Relevantly, the appellant alleged error on the part of the trial Judge in finding that incapacity arose in January 1992, which was the deemed date of injury pursuant to s 15(1)(a)(i) but finding the deemed date of injury for the purpose of s 66 to be 29 July 1996.
The Court concluded that the trial Judge was not in error in respect of those findings. Sheller JA made the following observations:
“Subsection (4) provides that in s 15 a reference to an injury includes a reference to a loss or impairment for which compensation is payable … The respondent suffered an injury within the meaning of s 15, namely, loss of vision which was a disease which was of such a nature as to be contracted by a gradual process. Accordingly, the injury is, for the purposes of the Act, if incapacity has resulted, and since the respondent is alive, deemed to have happened at the time of incapacity; s 15(1)(a)(i). Her Honour found that this incapacity occurred, other than for the purpose of s 66, in 1992 and for the purpose of s 66 in 1996.”[34]
And:
“Section 15(1)(a) speaks of incapacity that has resulted from the injury, that is to say the injury referred to in the condition which makes the subsection applicable. Thus, if the injury is loss of vision measured by Dr Higgins in September 1991, and the incapacity is that described by Dr Higgins in March 1992 when he said that the respondent found himself unable to work on motor vehicles, then that is the incapacity which determined fictionally when the injury happened.”[35]
[34] Antaw, [15].
[35] Antaw, [18].
The Court of Appeal considered the decision of Antaw in Stone and said that Antaw was authority for the proposition that s 16 of the 1987 Act may fix different dates for incapacity and permanent impairment injuries.[36] Those cases have been consistently applied in the former Workers Compensation Commission and are equally applicable to the matters within the Workers Compensation Division of the Personal Injury Commission.
[36] Stone, per Handley JA, [8].
In this appeal, the appellant proposes, for the first time, that the deemed date of injury for the permanent impairment claim should be 10 August 2020, that is, the date the claim for s 66 entitlements was made. That was not a date proposed in the proceedings before the Member. Nonetheless, the Member simply identified the issue before her as requiring a consideration of whether the appellant’s incapacity arose as a result of the injury on 1 April 2009 or “subsequent injury or injuries.” In doing so, the Member failed to acknowledge and apply the different methods of ascertaining the deemed date in respect of the claims for weekly payments and the permanent impairment claim prescribed in ss 15 and 16 of the 1987 Act and considered in Antaw and Stone. I mention that the Member was not well assisted by the parties’ submissions, but she was appraised of the legislation and those authorities. She was required to determine the deemed date of injury in respect of the permanent impairment claim, which she did not do in the manner required by ss 15 and/or 16 and the authorities discussed. The Member thus fell into error.
Ground Eight
It is also necessary to consider Ground Eight of the appeal, in which the appellant asserts error on the part of the Member by inconsistently finding that the appellant worked for both respondents and then finding that the first respondent changed its name to the second respondent.
It appears that at the time of the appellant’s first period of incapacity, the Central Mapping Authority (or its successor) operated under the umbrella of the Secretary, Department of Planning, Industry and Environment (the first respondent). The first respondent was the only respondent nominated by the appellant in these proceedings. At the arbitration hearing, the first respondent indicated that there was an issue as to the correct identity of the appellant’s employer in relation to the two different dates of injury pleaded. The Member directed the parties to file written submissions, including submissions addressing that issue.
The respondent submitted that it was instructed that the pleaded employer, Secretary, Department of Planning, Industry and Environment was the employer at the time of the deemed date of injury on 1 April 2009 but that, as the alleged deemed date of injury was claimed to be 6 August 2018, the correct employer was the Secretary, Department of Customer Service. The respondent submitted that it did “not oppose any application made by the [appellant] to amend the ARD to substitute those employers as at the relevant dates of injury.”[37] The appellant submitted that “the name of the respondent is not a substantive issue,” that leave to raise the issue had not been granted, but if it were, the appellant would seek to amend the pleadings in accordance with the respondents’ instructions.[38]
[37] Respondent’s submissions dated 3 June 2021, [9].
[38] Appellant’s submissions dated 9 June 2021, [3].
In her Certificate of Determination, the Member, relying on the information from the respondents’ representative, observed that the appellant was employed by the first respondent (Secretary, Department of Planning, Industry and Environment) “until the name of her employer changed”[39] to that of the second respondent (Secretary, Department of Customer Service). She amended the pleadings accordingly to add the second respondent.
[39] Reasons, [2].
The respondents’ instruction that the correct employer in respect of the alleged deemed date of injury was the Secretary, Department of Customer Service was patently incorrect. The Department of Customer Service was not established until 1 July 2019.[40] The named entity is also inconsistent with the appellant’s many payment summaries and payslips annexed to the ARD, which name the employer as Department of Finance, Services and Innovation during the period from 1 July 2012 to 27 June 2019 and only thereafter as Department of Customer Service. Those documents, together with the contemporaneous references in various medical reports and certificates of capacity to the appellant’s employer being “Department of Finance,” were in the possession of both parties and in evidence. Additionally, the appellant’s letter dated 10 August 2020 claiming s 66 lump sum entitlements with an alleged deemed date of 6 August 2018 was directed to Department of Finance, Services and Innovation.[41]
[40] Administrative Arrangements (Administrative Changes–Public Services Agencies) Order 2019.
[41] ARD, p 28.
With due care and proper attention to the matter, the parties could have, and should have, accurately identified the correct employer. The Member, who relied upon the misinformation provided to her by the first respondent, was unfortunately in error in amending the pleadings to add as a second respondent the Secretary, Department of Customer Service. While the appellant raises an allegation of error on the part of the Member in so amending the pleadings, the submissions assert a different basis upon which that error occurred. The appellant contends that there should be one respondent, and that that entity simply changed its name. That submission is not correct. In April 2009, the appellant’s employer was the Secretary, Department of Planning, Industry and Environment. In 2018, her employer was the Secretary, Department of Finance, Services and Innovation. Those departments are separate entities established by the relevant NSW Government’s administration orders.
Nonetheless, there was no basis upon which to join the Secretary, Department of Customer Service to these proceedings and the Member’s determination to amend the pleadings to include the nominated second respondent is erroneous.
CONCLUSION
The errors on the part of the Member identified in respect of Grounds One, Two and Seven of the appeal materially affect the outcome of this case. In addition, the correct respondent was not a party to the proceedings below and has not had the opportunity to present its case. In a “disease case” ss 15 and 16 of the 1987 Act require the identification of the last employer who employed the worker in employment to the nature of which the disease is due (s 15(1)(b)) or the employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease (s 16(1)(b)). The errors identified in Grounds One, Two, Seven and Eight of the appeal require that the Certificate of Determination issued by the Member be revoked, including the amendment to the pleadings in which the Member added the Secretary, Department of Customer Service as a second respondent. It is not necessary nor appropriate to consider the grounds of appeal complaining of error in the Member’s evaluation of the medical evidence and opinions, given the matter requires re-determination.
Subsection 352(6A) of the 1998 Act provides that, on appeal, the Member’s decision may be confirmed or may be revoked, and a new decision made in its place. Subsection 352(7) provides that, in the alternative, the matter can be remitted to a non-presidential member for re-determination. The correct respondent was not a party to the original proceedings and is not yet joined. The pleadings require amendment and the additional respondent ought to have the opportunity to put its case, which may or may not be the case put forward by the first respondent in the original proceedings. It is therefore not appropriate to re-determine the matter on the appeal and the matter is remitted to another member for re-determination.
Joinder of the proper respondent
The pleadings will require amendment to add the Secretary, Department of Finance, Services and Innovation as a second respondent and the relevant agent of the Nominal Insurer needs to be identified. It will also be necessary to effect proper service of the amended Application on the Secretary, Department of Finance, Services and Innovation.
DECISION
The Certificate of Determination dated 25 June 2021 is revoked.
The matter is remitted to another member for re-determination.
Elizabeth Wood
DEPUTY PRESIDENT
25 March 2022
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