PMP Directories Pty Ltd v Tran - [2012] NSWWCCPD 71

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		PMP Directories Pty Ltd v Tran [2012] NSWWCCPD 71
APPELLANT:		PMP Directories Pty Ltd
RESPONDENT:		Van Sang Tran
INSURER:		CGU Workers Compensation (NSW) Ltd
FILE NUMBER:		A1-2432/12
ARBITRATOR:	Ms E Beilby
DATE OF ARBITRATOR’S DECISION:		27 August 2012
DATE OF APPEAL DECISION:		28 November 2012
SUBJECT MATTER OF DECISION:		Lump sum compensation; multiple injurious events; meaning of “injury”; whether worker suffered the same injury in each event; whether Arbitrator erred in aggregating impairments; effect of Medical Assessment Certificate; s 4 Workers Compensation Act 1987; ss 322, 323 and 326 of the Workplace Injury Management and Workers Compensation Act 1998; failure to comply with Practice Direction No 6
PRESIDENTIAL MEMBER:		Deputy President Bill Roche
HEARING:		On the papers
REPRESENTATION:		Appellant:	Rankin Nathan Lawyers
Respondent:	Ron Kramer Associates
ORDERS MADE ON APPEAL:		The Arbitrator’s determination of 27 August 2012 is confirmed. The appellant employer is to pay the respondent worker’s costs of the appeal, as agreed or assessed.

INTRODUCTION

This appeal concerns the meaning of the word “injury” in the legislation and the circumstances in which the effects of two work incidents may be aggregated.

BACKGROUND

Van Sang Tran injured his cervical spine in two separate incidents while working for the appellant employer, PMP Directories Pty Ltd (the appellant).
The first incident occurred on 8 January 2009 when a bin he was pulling became stuck. While exerting extra pressure to move the bin, Mr Tran felt pain in his left shoulder and upper back. Shortly after the incident, the occurrence of which is not disputed, Mr Tran noticed pain in his neck and numbness down his left arm and in the fourth and fifth fingers of his left hand. A CT scan on 18 February 2009 revealed, among other things, a small left posterolateral disc lesion at C6/7 extending to the left C7 nerve root.
The second incident occurred on 5 May 2009 when Mr Tran was pulling the compression arm of a machine and felt an increase in pain he had been suffering at the side of his neck, upper back and shoulder together with numbness and tingling in the little and ring fingers of his left hand. An MRI scan on 15 June 2009 revealed, among other things, a left posterolateral disc protrusion with impingement of the left sided C7 nerve root.
In a permanent impairment claim dated 31 October 2011, Mr Tran claimed lump sum compensation in respect of a 16 per cent whole person impairment resulting from the incidents (injurious events) on 8 January 2009 and/or 5 May 2009. He supported his claim with a report from Dr Teychenne, neurologist, who assessed him to have a single impairment of 16 per cent (DRE III) as a result of the two incidents.
On 12 January 2012, Mr Tran’s solicitor wrote to the appellant, and its insurer, claiming work injury damages. Under “Particulars of Claim”, it was stated that Mr Tran “suffered injury on 8 January 2009 (which was aggravated at work on 5 May 2009)” and that “impairments arising from the said injury have caused [Mr Tran] to suffer a past and future loss of earnings”. It was asserted that Mr Tran suffered “at least 15% (whole person) permanent impairment and consequent damages”.
By letter dated 7 February 2012, the appellant’s insurer, CGU Workers Compensation (NSW) Ltd (CGU), disputed the claim on the basis of evidence from Dr Kiernan, neurologist, that, from a neurological perspective, there was no evidence of a permanent impairment. Dr Kiernan said that the CT and MRI scans showed only multilevel spondylotic change and joint disease, particularly involving C5/6 and C6/7, but conceded there was also evidence of a disc protrusion at C6/7.
Noting that Mr Tran had identified two separate dates of injury, which had separate claim numbers, CGU advised that whole person impairment assessments were “unable to be combined for injuries that are the subject of different claims, and nor can they be combined in order to reach the threshold which would enable [Mr Tran] to receive compensation for pain and suffering”.
Mr Tran filed an Application to Resolve a Dispute (the Application) in the Commission on 12 March 2012 in which he alleged that he received an injury to his “cervical spine, C6/7 disc protrusion with C7 nerve root impingement/encroachment” on 8 January 2009 and/or 5 May 2009. He claimed lump sum compensation of $24,832.50 in respect of a 16 per cent whole person impairment due to the injury to his cervical spine and $25,000 compensation for pain and suffering.
In its Reply filed on 26 March 2012, the appellant relied on the issues identified in CGU’s letter of 7 February 2012.
On 28 March 2012, Mark Norman, Coordinator Dispute Management as delegate of the Registrar, issued a standard form “Referral For Assessment of Permanent Impairment To Approved Medical Specialist” (the referral) in which he made a medical dispute referral for assessment of the degree of permanent impairment suffered by Mr Tran. The referral recorded that Mr Tran had injured his cervical spine on 8 January 2009 and on 5 May 2009.
Also on 28 March 2012, Mr Norman wrote an email to the parties’ solicitors. So far as is relevant, the email said:
“It is noted that at part 4 of the ARD the claim indicates 2 separate dates of injury and the insurer has noted in correspondence dated 7/2/12 that the claim was made for 2 separate injury dates. As a result the matter has been referred as 2 separate injury dates.
Please see attached Referral For Assessment of Permanent Impairment To Approved Medical Specialist for the assessment of the degree of permanent impairment in the above matter.
Any objection to the referral as framed should be lodged and served within seven days.” (emphasis included in original)
The Approved Medical Specialist (AMS), Dr Robin Fitzsimons, issued a Medical Assessment Certificate (MAC) on 1 June 2012 in which she recounted the matters that had been referred as follows:
“• Date of injury: 8 January 2009
·      Body parts referred: cervical spine
·      Method of assessment: whole person impairment
·      Date of injury: 5 May 2009
·      Body parts referred: cervical spine
·      Method of assessment: whole person impairment” (emphasis included in original)

Dr Fitzsimons assessed Mr Tran to have a 17 per cent whole person impairment as a result of the two incidents. She issued a MAC in which she assessed the whole person impairment from the first incident to be 12 per cent and from the second to be five per cent.
At an arbitration on 3 August 2012, the parties made submissions on whether the impairments found by Dr Fitzsimons could be aggregated.
In a reserved decision delivered on 27 August 2012, the Arbitrator held that Mr Tran suffered an injury to his cervical spine on 9 January 2009 and 5 May 2009 and, as the pathology from the two incidents was the same, namely, a C7 disc protrusion, he was entitled to aggregate his impairments. She assessed his compensation for pain and suffering to be $17,500.
The appellant has challenged the Arbitrator’s determinations.

ON THE PAPERS

Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 1 and 6, the documents that are before me, and the submissions by the appellant 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.

ISSUES IN DISPUTE

The appellant’s counsel, Ms Dulhunty, has not made any attempt to comply with Practice Direction No 6 and has not properly identified any grounds of appeal, but has merely made general complaints of error scattered through her submissions. That was most unsatisfactory.
In the body of her submissions, Ms Dulhunty has alleged that the Arbitrator erred in allowing Mr Tran’s application to aggregate his impairments because she:
(a)     ignored the appellant’s submissions that the MAC was and is binding, and ignored and failed to apply s 121(4) of the 1998 Act (effect of the MAC);
(b)     found that Mr Norman’s email of 28 March 2012 was of no consequence and in her interpretation of the content and effect of the email (email of 28 March 2012);
(c)     found that the letters of 12 January 2012 and 7 February 2012 constituted sufficient notice to the appellant of Mr Tran’s intention to aggregate in circumstances where Mr Tran’s subsequent conduct indicated that he was not seeking aggregation of the injury (notice of intention to seek aggregation);
(d)     allowed Mr Tran’s application to aggregate to proceed in the circumstances where, having not appealed the MAC, she had no jurisdiction to disturb or amend the assessments made by the AMS (jurisdiction);
(e)     disregarded the time limits provided in the 1998 Act for lodging appeals (time limit to appeal);
(f)      did not have jurisdiction to alter the basis of the referral to the AMS, or the assessments made by Dr Fitzsimons, in an attempt to permit Mr Tran to achieve the threshold for a work injury damages claim (work injury damages threshold);
(g) allowed the matter to be heard, and in her application of s 322(2) (s 322);
(h) misapplied s 322 of the 1998 Act because the injuries sustained in the two incidents were not identical (whether the injuries were identical);
(i) did not give any consideration to s 323 of the 1998 Act or the impact that section may have on the assessment of Mr Tran’s whole person impairment (s 323);
(j)      awarded an excessive amount for pain and suffering under s 67 (pain and suffering compensation), and
(k)     showed clear bias towards Mr Tran when she asked the question “Why should not the injuries be aggregated?” and, in asking this question, reversed the onus of proof and asked the wrong question (bias and onus of proof).

SUBMISSIONS, DISCUSSION AND FINDINGS

Effect of the MAC

Ms Dulhunty submitted at the arbitration, at T3.48:
“So now, you know, section 326, the MAC is a binding document, therefore the findings in the MAC are binding and no application having been made to disturb those findings and the way in which the assessment was done as in separate injuries, separate incidents should stand. So they’re my submissions on that part.”

Ms Dulhunty has submitted on appeal that the Arbitrator erred in ignoring this submission and failing to apply s 121(4) of the 1998 Act. The reference to s 121(4) was incorrect. That section only applies to existing claims and has no application to the present matter. I have assumed that Ms Dulhunty intended to refer to s 326 of the 1998 Act, which is in similar terms to s 121(4).
The Arbitrator dealt with the effect of the MAC under the heading “Applying the legislation – the legal entitlement to aggregate”, where, after referring to s 322, she said:
“30. The effect of the legislation is that where a worker has sustained injury which arises from more than one or two events and/or dates, and the injury causes the same pathology the applicant is entitled to aggregate those losses.”
The Arbitrator then referred to and applied Department of Juvenile Justice v Edmed [2008] NSWWCCPD 6; 7 DDCR 288 (Edmed) where it was held that one injury (pathology) could result from more than one incident or injurious event. She then referred to the evidence and concluded that Mr Tran had suffered only one injury (pathology) and that his impairments could be aggregated.
Her reasoning and conclusion make it clear that she implicitly rejected the argument that the MAC determined the liability issue before her. Given the perfunctory way Ms Dulhunty presented the appellant’s case on this point, it is not surprising that the Arbitrator did not deal with this issue in more detail. The Arbitrator’s conclusion was correct.
Ms Dulhunty’s submission has ignored two fundamental points.
First, while it is accepted that the MAC is conclusively presumed to be correct as to the matters identified in s 326 of the 1998 Act, the issuing of a MAC does not equate to the determination of liability by the Commission (Jopa Pty Ltd t/as Tricia’s Clip-n-Snip v Edenden [2004] NSWWCCPD 50; 5 DDCR 321).
It is for the Commission (either an Arbitrator or a Presidential member), not an AMS, who is not a member of the Commission, to determine issues of liability, such as the nature and extent of an injury, and the quantum of compensation payable as a result of that injury (Spicer Axle Pty Ltd v Merza [2007] NSWWCCPD 148; Connor v Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2006] NSWWCCPD 124; 5 DDCR 337).
A MAC is not conclusively presumed to be correct on issues of injury or the question of whether impairments may be aggregated. Those questions require an Arbitrator to assess all the evidence and the legislation.
Second, Ms Dulhunty’s submission has ignored the terms of s 322 of the 1998 Act, which provides:
“322 Assessment of impairment
(1)     The assessment of the degree of permanent impairment of an injured worker for the purposes of the Workers Compensation Acts is to be made in accordance with WorkCover Guidelines (as in force at the time the assessment is made) issued for that purpose.
(2)     Impairments that result from the same injury are to be assessed together to assess the degree of permanent impairment of the injured worker.
(3)     Impairments that result from more than one injury arising out of the same incident are to be assessed together to assess the degree of permanent impairment of the injured worker.
Note: Section 65A of the 1987 Act provides for impairment arising from psychological/psychiatric injuries to be assessed separately from impairment arising from physical injury.
(4)     ...”
The term “injury” is defined in s 4 of the Workers Compensation Act 1987 (the 1987 Act) and in s 4 of the 1998 Act as follows:
“4 Definition of ‘injury’
In this Act:
‘injury’:
(a)     means personal injury arising out of or in the course of employment,
(b)     includes:
(i) a disease which is contracted by a worker in the course of employment and to which the employment was a contributing factor, and
(ii) the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration, and
(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.”
This definition is unhelpful in determining the issue in the present case. In Lyons v Master Builders Association of NSW (2003) 25 NSWCCR 423 (Lyons), Neilson CCJ held that “injury” refers to “both the [injurious] event and the pathology arising from it”. I accept that definition as being appropriate for many (but not all) purposes under the 1987 Act and the 1998 Act.
For many years, the courts have determined “personal injury” in workers’ compensation legislation, both in England and Australia, by reference to whether the worker has suffered a pathological change. The High Court considered the meaning of “injury” in the 1987 Act in Zickar v MGH Plastic Industries Pty Ltd [1996] HCA 31; 187 CLR 310 (Zickar). In that case, a worker collapsed at work after the rupture of a cerebral aneurism and suffered severe brain damage. The aneurism was a congenital weakness.
The High Court held that he had suffered a personal injury in the course of his employment. Kirby J noted (at 347) that for a long time under English legislation, the rupture of an artery has been held to be capable of constituting a “personal injury by accident”. That was because “it had the hallmarks of an ‘injury’, being a sudden or identifiable pathological change” (emphasis added). Referring to this passage, Armitage CCJ held (at [129]) in Castro v State Transit Authority (NSW) [2000] NSWCC 12; 19 NSWCCR 496 that:
“This passage ... makes it clear that what is required for an ‘injury’ within par[a] (a) [of section 4] to occur is a ‘sudden or identifiable pathological change’ in the body, whether internal or external.”
Armitage CCJ then quoted from Willis v Moulded Products (Australia) Ltd [1951] VLR 58 (Willis), a case also cited by Kirby J in Zickar. In Willis, the Full Court of the Supreme Court of Victoria held that the rupture of a cerebral artery constituted an “injury by accident”. Armitage CCJ observed (at [134]) that Willis was “all of a piece with the line of authority ending in Zickar that a sudden pathological change whether internal or external is sufficient to constitute an ‘injury’”.
That the term “injury” means pathology, or pathological change, is acknowledged in s 322(3) of the 1998 Act, where reference is made to “Impairments that result from more than one injury arising out of the same incident...” (emphasis added). This reference to “injury” can only mean the “pathology” that has resulted from the relevant work “incident” or injurious event. For example, if a worker falls and suffers a broken leg and separate and distinct nerve damage in the arm, he or she has suffered more than one “injury” (an injured leg and an injured arm) from the “same incident”. In other words, he or she has suffered more than one pathology (“injury”), as a result of the one incident or injurious event. Those “injuries” (pathologies) are to be assessed together. This interpretation is consistent with s 65(2) of the 1987 Act and is uncontroversial.
In Edmed, I said (at [27]):
“The difficulty arises when a worker suffers one pathology (‘injury’) as a result of several independent ‘incidents’ or injurious events. This situation is partly addressed in section 322(2), which provides that ‘Impairments that result from the same injury are to be assessed together to assess the degree of permanent impairment of the injured worker’ (emphasis added). The reference to ‘the same injury’ in section 322(2) cannot be a reference to ‘the same incident’ because that situation is dealt with in section 322(3). The expression ‘the same injury’ is not defined but it follows that if ‘injury’ in section 322(3) means ‘pathology’ (as it must), then, for the section to be logically consistent, it must mean the same in section 322(2). If ‘injury’ in section 322(2) means ‘pathology’ then, for section 322(2) to be consistent with section 322(3), impairments resulting from the ‘same injury’ (the same pathology) are to be ‘assessed together’ regardless of whether they arise from the same ‘incident’ or separate incidents.”
This interpretation is logical and consistent with the clear intention of the legislation, namely, that impairments from one injury (pathology), or from the same incident, are to be assessed together. It is also consistent with the long line of authority that has defined or determined “injury” in terms of the pathology or “pathological change” that has resulted from the particular work incident (Zickar; Kennedy Cleaning Services Pty Ltd v Petkoska [2000] HCA 45; 200 CLR 286).
That the word “injury” can have different meanings, depending on its context in the legislation, was confirmed by Giles JA (Heydon and Meagher JJA agreeing) in Holdlen Pty Ltd v Walsh [2000] NSWCA 87 at [33] (see also Georgopoulos v Silaforts Painting Pty Ltd [2012] VSCA 179 at [73]).

In light of the above authorities, it cannot seriously be disputed that “injury” can have different meanings depending on its context. Edmed considered the meaning of “injury” in the context of a claim for lump sum compensation. In that case, I also referred (at [40]) to s 323(1) and added that that provision had to be read “subject to” s 322.
In a claim for lump sum compensation, compensation is not paid for the receipt of an injury (and, in this context, whether “injury” is a reference to the injurious event or the pathology resulting from that event, does not matter), but is paid for the impairment or loss that has resulted from the pathology caused by or resulting from the injury.
As observed by Latham CJ in Ward v Corrimal-Balgownie Collieries Ltd (1938) 61 CLR 120 at 129, in workers compensation, the cause of the injury (what I have called the injurious event) is “not the important matter” because compensation is “not paid in respect of the injury” (his Honour added that he was referring to “injury” in the sense in which it was defined in the Workers Compensation Act 1926) but is paid “in respect of death or total or partial incapacity resulting from an injury … not in respect of the injury itself”.
The approach in Edmed is also consistent with the decision of Basten JA (Gyles AJA and Hoeben J agreeing) in Strasburger Enterprises Pty Ltd t/as Quix Food Stores v Serna [2008] NSWCA 354 (Serna). In that case, the question was whether the worker had satisfied the 15 per cent threshold to recover work injury damages in s 151H of the 1987 Act. The worker received a psychological injury as a result of two robberies in the course of her employment: one on 29 May 1999 and the other on 2 July 1999. An AMS assessed the worker to have a 15 per cent whole person impairment as a result of “this injury”. The AMS made no apportionment between the two assaults. The employer argued that the assessment was either invalid or demonstrated on its face that there were two injuries, neither of which, assessed separately, could have reached 15 per cent of permanent impairment, since they only reached that figure in combination (Basten JA at [17]).
Basten JA referred to Woolage v State of New South Wales [2001] NSWCA 256 and Leppinton Pastoral Co Pty Ltd v Juweinat [2002] NSWCA 228 (Juweinat). In Juweinat, the worker had been injured as a result of three separate lifting incidents. The employer argued that, if there were three incidents, there were three causes of action and damages had to be assessed separately in respect of each one. In rejecting that submission, Davies JA (Stein JA and Forster AJA agreeing) said (at [23]) that the worker “was entitled to claim as the injury for which he sought compensation the condition which resulted from the three incidents in the appellant’s employment” (emphasis added).
The employer in Serna challenged the approach in Juweinat on grounds similar to those argued by Ms Dulhunty in the present matter. It argued that, under the 1987 Act, an injury was to be identified by reference to a particular incident and that, at least for the purposes of s 151H of the 1987 Act, an employee could not “accumulate the consequences of separate incidents so as to satisfy the [15 per cent threshold], below which a claim must fail” (Basten JA at [21]). His Honour acknowledged that, if that analysis was to operate, it must do so in some circumstances but not others. His Honour observed (at [22]) that there would “undoubtedly be injuries, falling within the definition of ‘injury’ in s 4 of the [1987] Workers Compensation Act, which do not arise from a specific incident or event”, but may result from exposure to work conditions over time.
His Honour added (at [24]) that the threshold requirement that had to be satisfied before a claim for damages could be made was “identified by reference to the degree of permanent impairment of the injured worker”. The impairment results “from an injury”. After setting out s 151H, his Honour said (at [27]) that “impairment” was “also a state or condition that may result from more than one injury or may itself contain multiple forms”. After setting out ss 322 and 323, and noting that “impairment” was not defined in either the 1987 Act or the 1998 Act, his Honour said (at [29]) that the “statutory scheme is consistent with both an injury and an impairment having multiple causes”.
The principles discussed in Serna are relevant to the present matter. Those principles establish that, consistent with the approach in Edmed, a single injury (pathology) can have multiple causes. It would be illogical and unacceptable for there to be one approach to the threshold for work injury damages in s 151H and a different approach to claims for compensation under s 67.
It follows that the Arbitrator correctly applied the principles in Edmed. As Mr Tran suffered only one injury (pathology) in the two incidents pleaded, the MAC did not prevent the aggregation of the impairments and the assessment of compensation accordingly. Contrary to Ms Dulhunty’s submission, the Arbitrator did not alter the basis of the referral to the AMS or the assessment made by the AMS. She determined the injury issue and applied s 322 to the facts.

Email of 28 March 2012

Before the Arbitrator, Ms Dulhunty submitted the email of 28 March 2012 “put [Mr Tran] on notice that the injuries would be assessed as two separate injuries and gave [Mr Tran] time to object” (T3.17). He having not objected to that referral, and Dr Fitzsimons having done her assessment based on two separate injuries, it was too late for Mr Tran to object.
The Arbitrator did not accept this submission. She said the email simply stated that, consistent with Mr Tran’s case, the application being referred to the AMS had “two separate injury dates” and was not referred as “two separate injuries” ([26]).
Ms Dulhunty submitted on appeal that the Arbitrator erred in finding that the email of 28 March 2012 was of no consequence, and in her interpretation of the content and effect of the email. She said that the MAC was issued on 1 June 2012 and, as Mr Tran did not challenge it under s 327 of the 1998 Act, it was binding under “s 121(4) [sic, s 326]”.
As far as this submission raises the effect of the MAC, I have dealt with it above. Ms Dulhunty has presented no reasoned argument in support of the complaint that the Arbitrator erred in finding that the email was of no effect. The Arbitrator correctly concluded that the email merely referred to two separate injury dates and did not refer two separate injuries. The email was of no consequence.

Notice of intention to seek aggregation

Ms Dulhunty submitted to the Arbitrator that Mr Tran was not entitled to aggregate his impairments because he had not put the appellant on notice of his intention to do so.
The Arbitrator rejected this submission, noting that it was clear from the claim sent to the appellant, and the Application filed (in the Commission), that Mr Tran always sought to aggregate the two losses ([23]). She added that it was “abundantly clear” from CGU’s letter of 7 February 2012 that the appellant was “well aware that [Mr Tran] sought to aggregate the losses though they may not have agreed that [Mr Tran] has a legal entitlement to do so” ([24]).
On appeal, Ms Dulhunty submitted that the Arbitrator erred by finding that the letters of 12 January 2012 and 7 February 2012 constituted sufficient notice to the appellant of Mr Tran’s intention to aggregate in circumstances where Mr Tran’s subsequent conduct clearly indicated that he was not seeking the aggregation of the injuries.
Ms Dulhunty argued that either Mr Tran abandoned the claim to aggregate the injuries or his conduct was an admission that the injuries could not be aggregated. She said that, by his conduct, Mr Tran waived any right he may have had to aggregate the injuries and he was estopped from now trying to aggregate the injuries. In view of Mr Tran’s subsequent conduct, no weight should have been placed on the correspondence of 12 January 2012 and 7 February 2012.
I reject these submissions.
Mr Tran always claimed one lump sum. That is clear from the permanent impairment claim dated 31 October 2011 when he claimed 16 per cent whole person impairment resulting from injurious events with dates of 8 January 2009 and 5 May 2009. That claim was consistent with the report from Dr Teychenne, which was attached to the claim. By its letter of 7 February 2012, CGU joined issue with that claim and asserted that whole person impairments could not be combined. Thus, CGU was clearly on notice that Mr Tran was claiming one impairment from the two incidents.
The submission that Mr Tran abandoned or waived any right to aggregate is incorrect. Mr Tran’s conduct was always consistent with his claim that he suffered a single impairment from two incidents and that the injury (pathology) he suffered was the same in each incident. That conduct was reinforced in the Application filed with the Commission where it was made clear that he alleged he had suffered one injury (pathology) as a result of the two pleaded incidents.
Ms Dulhunty referred to no authority in support of her submission that an estoppel arose from Mr Tran’s conduct. This issue was not raised before the Arbitrator and is without substance.

Jurisdiction

Ms Dulhunty submitted on appeal that the Arbitrator erred in allowing the application to aggregate to proceed “in view of the circumstances of the matter and [Mr Tran’s] conduct as described above”. I assume that the “conduct as described above” was a reference to the history of the claim and Mr Tran’s failure to appeal the MAC under s 327. She added that, as Mr Tran did not appeal the MAC, he was bound by it and the Arbitrator had no jurisdiction to disturb or amend the assessments made or the basis of the referral to the AMS.
I do not accept these submissions.
The extent to which the MAC was conclusively presumed to be correct has been considered above. The issue before the Arbitrator was the nature of the injury (pathology) received by Mr Tran in the two incidents. That was not an issue an AMS has jurisdiction to determine and was not a matter that Mr Tran could appeal under s 327. Appeals under s 327 are restricted to the matters that are conclusively presumed to be correct (s 327(2)), namely:
“(a) the degree of permanent impairment of the worker as a result of an injury,
(b)     whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality,
(c)     the nature and extent of loss of hearing suffered by a worker,
(d)     whether impairment is permanent,
(e)     whether the degree of permanent impairment is fully ascertainable.”

As counsel for Mr Tran, Mr McManamey, submitted, all of these matters presuppose that there has been a separate determination of the injury and the nature of the injury (pathology) following which the AMS can certify what impairment results from that injury. Mr Tran’s failure to appeal under s 327 was therefore of no consequence.
The submission that the Arbitrator lacked jurisdiction was not made at the arbitration and, in any event, is unsustainable. The question before the Arbitrator concerned the nature of the injury or pathology Mr Tran received in the pleaded incidents. That matter was exclusively within the Commission’s jurisdiction.

Time limit to appeal

At the arbitration, Ms Dulhunty submitted that Mr Tran had not appealed against the MAC and that “[t]hose time periods have now well passed” (T3.38). On appeal, she has submitted that the Arbitrator erred in disregarding the time limits provided for lodging appeals (presumably) under s 327.
This submission is linked with the submissions on jurisdiction considered above. As previously stated, there is no appeal against a MAC on the issue of injury and the Arbitrator did not err in not considering this submission.

Work injury damages threshold

Ms Dulhunty submitted that the Arbitrator did not have jurisdiction to alter the basis of the referral to the AMS or the assessments made by Dr Fitzsimons in an attempt to permit Mr Tran to achieve the threshold for a work injury damages claim.
Ms Dulhunty made no submissions to the Arbitrator about the work injury damages threshold and the Arbitrator’s only reference to it was at [21(a)] and [23] of her decision when she was reviewing the evidence on the question of whether Mr Tran had given notice of his intention to seek aggregation.
The Arbitrator was not concerned with the work injury damages threshold and this was not a matter before the Arbitrator. I have earlier rejected the submission that the Arbitrator altered the basis of the referral to the AMS or the assessments made by Dr Fitzsimons (see under Effect of the MAC above).

Section 322

Other than the bald assertion that the Arbitrator erred in her application of s 322(2), Ms Dulhunty made no submissions on this point. For the reasons discussed earlier in this decision, I do not accept that the Arbitrator erred in her application of s 322(2).

Whether the injuries were identical

Ms Dulhunty submitted that the Arbitrator “misapplied [s 322(2)] to this matter as the injuries sustained by [Mr Tran] in the two separate incidents are not identical”. Citing Edmed, and other cases, she said that the “differences in the injuries can be subtle and discreet”. This was the totality of Ms Dulhunty’s submissions on this point. She did not develop her submissions with any reference to the evidence, or point to any part of the Arbitrator’s decision that she alleged to be erroneous.
At the arbitration, Ms Dulhunty submitted that there were “two distinct frank incidents and two distinct injuries” and the injuries were not “ones that can be aggregated under s 322” (T9.27). She then took the Arbitrator to parts of Dr Fitzsimons’s report and submitted that the doctor was “dividing the impairments between the two incidences [sic]” (T9.52) and clearly saw “distinct impairments from the two different incidents” (T10.16).
The Arbitrator considered the evidence on this issue and concluded that Dr Teychenne and Dr Fitzsimons were both of the view that Mr Tran damaged the C7 disc in the first incident. She concluded that she was left “without any reasonable doubt that the pathology between the two injury dates is the same” ([41]) and Mr Tran was entitled to aggregate his impairments.
The Arbitrator’s conclusion was consistent with the evidence and discloses no error.
The evidence from Dr Teychenne in his report of 24 September 2011 was that Mr Tran sustained an injury to the cervical spine resulting in a cervical disc prolapse at C7 extending to the left side compressing the C7 nerve root. He said the “injuries were causally connected to the accident at work on the 8^th January 2009 and the second accident on the 5^th May 2009”. His reference to “injuries” was, in context, clearly a reference to the C7 disc prolapse, which he felt most probably occurred at the time of the first incident on 8 January 2009. He considered the “second incident on 5 May 2009 was a recurrence of the initial injury on 8 January 2009”.
Dr Fitzsimons expressed a similar view, namely, that the C7 disc protrusion “on probability, occurred at the accident of 8/1/2009” and added that osteophytic degenerative changes were “likely to have been reactive to this disc protrusion”. Given that the degenerative changes were reactive to the disc injury, it was not open to argue that they were a different pathology or different injury. They were part of the sequelae that resulted from the disc injury. Dr Fitzsimons assessed a single impairment of 17 per cent based on the finding of radiculopathy with an additional impairment for activities of daily living.
Based on this evidence, it is clear beyond doubt that the injury (pathology) Mr Tran sustained was a C7 disc prolapse. That pathology was mainly caused in the first incident, but partly contributed to by the second incident. As Mr McManamey submitted, Dr Fitzsimons apportioned the impairment between the two incidents on the basis of how much each accident contributed to the pathology responsible for the impairment, not on the basis that the pathology caused by each incident was different.
I reject this ground of appeal.

Section 323

Ms Dulhunty submitted:
“Furthermore, in aggregating the injuries the Arbitrator erred in not giving any consideration to Section 323 of the WIM Act or to the impact that Section 323 of the WIM may have on the assessment of [Mr Tran’s] Whole Person Impairment. Arguably only the AMS can make the deduction under Section 323 of the WIM.
In permitting [Mr Tran] to aggregate his injuries after the assessment by the AMS and the issue of the MAC the Arbitrator has erred by exceeding her jurisdiction and encroaching on the jurisdiction of the AMS.”
To the extent that this point relates to the jurisdiction issue, I have already dealt with it.
Ms Dulhunty made no submissions about s 323 at the arbitration and it is not open to argue on appeal that the Arbitrator erred by not considering an issue never put (Brambles Industries Ltd v Bell [2010] NSWCA 162; 8 DDCR 111). Leaving that to one side, I do not accept Ms Dulhunty’s submission on appeal.
Section 323(1) requires that, in “assessing the degree of permanent impairment resulting from an injury, there is to be a deduction for any proportion of the impairment that is due to any previous injury” or that is due to “any pre-existing condition or abnormality”. As noted at [41] above, Edmed noted that s 323(1) has to be read “subject to” s 322. As there is only one injury in the present case, namely, the C7 disc injury, there is no “proportion of the impairment that is due to any previous injury” that has to be deducted. The impairment has resulted from the one injury to the C7 disc.
It follows that there is no substance to this ground of appeal.

Pain and suffering compensation

Ms Dulhunty submitted that the Arbitrator erred by awarding an excessive amount for pain and suffering under s 67 of the 1987 Act, but made no submissions in support of this assertion.
The Arbitrator awarded Mr Tran $17,500 for pain and suffering, which equals 35 per cent of a most extreme case, Mr McManamey having sought 50 per cent and Ms Dulhunty having submitted that 25 per cent was appropriate.
The Arbitrator said that he suffered a significant injury to his cervical spine, which had been assessed to cause a 17 per cent whole person impairment. She had no hesitation in accepting Mr Tran’s evidence as to the pain, suffering, and distress he experienced. She noted that he was 48 years old and had many years ahead of him and could expect the duration of his pain and suffering to continue. He also experienced anxiety and depression because of concern for his future.
Assessment of compensation for pain and suffering under s 67 of the 1987 Act involves “questions of fact and degree, matters of opinion, impairment, speculation and estimation calling for the exercise of common sense and judgment (Dell v Dalton)” (Galley v Pasminco Mining Limited [1993] NSWCC 11; 9 NSWCCR 288 at 297).
The Arbitrator’s assessment was well within the range of appropriate compensation payable for a 48 year old male who has suffered a significant cervical disc prolapse and suffers continuing pain and significant restrictions as a result.
I reject this ground of appeal.

Bias and onus of proof

Ms Dulhunty submitted that the Arbitrator showed “a clear bias towards [Mr Tran] when she asked the question ‘Why should not the injuries be aggregated?’”. This also had the “effect of appearing to reverse the onus and place the onus on the appellant of proving why the injuries should not be aggregated”. Ms Dulhunty submitted that the Arbitrator asked the wrong question and incorrectly reversed the onus of proof.
I have been unable to find where the Arbitrator asked the question attributed to her by Ms Dulhunty, or anything like it. At the start of the arbitration, the Arbitrator said, at T1.30:
“The question before me is really did these impairments arise from the same pathology and should these impairments, which have been found by the AMS, can they be aggregated? Do you both agree that’s the question for me?”

Both counsel agreed that the Arbitrator posed the correct question (T1.35).
In the course of submissions, the Arbitrator said to Ms Dulhunty “But the question is: is [sic] there two separate injuries that are not the same?” (T7.49) and “Just for the sake of the record, the second part of the dispute is really the aggregation question” (T9.6). After further submissions from both counsel, which included appropriate questions by the Arbitrator seeking clarification, the Arbitrator asked if either counsel wanted to say anything on the “second tranche argument which has been the aggregation of the two impairments” (T18.31). Ms Dulhunty made no further submissions on that issue.
It is unclear if Ms Dulhunty is alleging apprehended bias or actual bias. An allegation of actual bias should not be lightly made and, if it is made, it must be “distinctly made and clearly proved” (Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507 at [69] (Jia Legeng). To establish actual bias, it must be proved that the Arbitrator was “so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented” (Jia Legeng at [71]).
The test for apprehended bias is “whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide” (Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; 86 ALJR 14 at [31]). The test involves two steps: first, “the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits” and, second, “[t]here must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits” (Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 at [8], Gleeson CJ, McHugh, Gummow and Hayne JJ).
An application that a judge disqualify himself or herself for apprehended bias must be raised at the hearing (Vakauta v Kelly [1989] HCA 44; 167 CLR 568).
Ms Dulhunty has not come close to establishing either actual bias or apprehended bias. The Arbitrator did not ask the question Ms Dulhunty has asserted she asked and nothing in her conduct of the arbitration even remotely suggests that she did not bring an impartial mind to the resolution of the matter.
Even assuming that the Arbitrator asked something like the question alleged by Ms Dulhunty, it does not support a complaint of bias. An Arbitrator is entitled to question counsel about his or her case. Moreover, an Arbitrator has never been required to approach a case with a blank mind. As observed by McColl JA “the nature of the jurisdiction the Arbitrator was exercising made it obligatory that he form a view about the issues” (South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16; 4 DDCR 421 at [105]). The forming of a provisional view, if that is what the Arbitrator did, will facilitate an expeditious hearing, but does not demonstrate that the Arbitrator has so prejudged the matter as to be incapable of altering his or her views (Edmonds at [110]).
The allegation of bias was without merit and should not have been made.
The submission that the Arbitrator reversed the onus of proof is equally without merit. None of the exchanges with counsel suggested that the Arbitrator thought the onus lay anywhere other than on Mr Tran. After reviewing the evidence, the parties’ submissions, and referring to several authorities relied on by Ms Dulhunty, the Arbitrator concluded that she was left “without any reasonable doubt” ([41]) that there was only one pathology and that the losses could be aggregated. Nothing in her decision, or her conduct of the arbitration, leaves any doubt that she was well aware that Mr Tran carried the onus of proof. She was satisfied that Mr Tran had discharged a standard of proof much higher than the civil standard.

CONCLUSION

Several features about this appeal require further comment. First, in non-compliance with Practice Direction No 6, the notice of appeal failed to identify the grounds of appeal or make submissions in support of those grounds. Second, the submissions filed were, in many instances, merely a discursive collection of alleged errors without any reasoned submissions in support. Third, several of the issues raised on appeal had not been argued before the Arbitrator. Fourth, to allege bias in the circumstances of this case was unsatisfactory. Last, many of the “grounds of appeal” were without merit and demonstrated a fundamental lack of understanding of the issues involved.
This is not the first case where the Commission has criticised the profession for non-compliance with Practice Direction No 6 (Oracle Corporation Australia Pty Ltd v Ozcelik [2012] NSWWCCPD 58), or for filing substandard written submissions (Krstevska v Fast & Fluid Management Australia Pty Ltd [2012] NSWWCCPD 69). The profession is reminded, yet again, that appeals, and submissions in support or opposition, must comply with Practice Direction No 6 and with the basic legal principles that govern appeals restricted to the correction of error (Raulston v Toll Pty Ltd [2011] NSWWCCPD 25).

DECISION

The Arbitrator’s determination of 27 August 2012 is confirmed.

COSTS

The appellant employer is to pay the respondent worker’s costs of the appeal, as agreed or assessed.

Bill Roche

Deputy President
28 November 2012

I, MARGOT UNDERCLIFFE, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE