Rafoo v Rafinc Pty Ltd
[2010] NSWWCCPD 42
•21 April 2010
| WORKERS COMPENSATION COMMISSION | ||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||||
| CITATION: | Rafoo v Rafinc Pty Ltd [2010] NSWWCCPD 42 | |||||
| APPELLANT: | John Rafoo | |||||
| RESPONDENT: | Rafinc Pty Ltd | |||||
| INSURER: | QBE Workers Compensation (NSW) Ltd | |||||
| FILE NUMBER: | A1-4014/09 | |||||
| ARBITRATOR: | Ms A Nicholl | |||||
| DATE OF ARBITRATOR’S DECISION: | 20 October 2009 | |||||
| DATE OF APPEAL DECISION: | 21 April 2010 | |||||
| SUBJECT MATTER OF DECISION: | Nature and extent of an aggravation of a pre-existing injury; weekly benefits and lump sum compensation. | |||||
| PRESIDENTIAL MEMBER: | Acting Deputy President Deborah Moore | |||||
| HEARING: | On the papers | |||||
| REPRESENTATION: | Appellant: | Higgins & Higgins Lawyers | ||||
| Respondent: | Sparke Helmore Lawyers | |||||
| ORDERS MADE ON APPEAL: | The decision of the Arbitrator dated 20 October 2009 is confirmed. | |||||
| No order as to costs of the appeal. | ||||||
BACKGROUND TO THE APPEAL
The Appellant, John Rafoo, commenced employment with the Respondent, Rafinc Pty Ltd, as a Service Station Manager / Console Operator at its Mobil Smithfield Road service station in June 1999.
Mr Rafoo came to Australia from Iraq in July 1980. After some initial employment as a process worker, he obtained employment again as a process worker at AWA Thorn Pty Ltd in about 1981 but ceased work in 1983 when he developed back pain. He brought a claim for compensation which was settled in 1985 “for $29,000.00.”
He subsequently obtained work at a 7/11 store in Fairfield for about three months in 1985 before travelling to America for about eight months. He returned to Australia in 1986 and worked for about three years under a franchise agreement with the 7/11 store in Caringbah. He then returned to Iraq where he was married, and returned to Australia in 1990. He was unemployed until late 1991 when he obtained a job as a console operator at the Mobil service station in Rocky Point Road for four months. Following a further period of unemployment, he commenced as a console operator at Shell in Ramsgate in 1992 where he remained until 1995.
In about February 1995 he commenced work at Mobil Smithfield Road, and has worked for a “Mobil franchisee” ever since. In June 1999 Mobil Oil Australia changed its name to Rafinc Pty Ltd, and Mr Rafoo signed a new contract and became a permanent employee.
On 12 December 1998 Mr Rafoo was involved in a car accident on his way to work and again injured his back. He said that he made a third-party motor vehicle claim which was settled “for $84,000.00 in my hand in June 2001.”
In October 2001 he again injured his back at work when he struck the edge of an open cupboard. He did not seek treatment, and remained at work until 8 October 2003. On that occasion, he said that he injured his back lifting boxes of soft drinks.
At the hearing before the Arbitrator, Mr Rafoo sought leave, which was granted, to amend his claim to plead a further injury to his back by way of aggravation on 9 October 2003 when he said that he was again required to lift boxes of soft drink. He ceased work after that and left on pre-arranged holidays on 11 October 2003. He said that his back deteriorated and he eventually sought treatment on 17 October 2003. He has not resumed work since.
His claim was initially accepted by the Respondent’s insurer, QBE Workers Compensation (NSW) Ltd (‘QBE’), and weekly payments and medical expenses paid up to 19 March 2004 Liability was declined beyond that date in a section 54 Notice sent to Mr Rafoo on 5 March 2004.
In earlier proceedings, WCC 1856-2005, an Arbitrator referred Mr Rafoo’s claim for permanent impairment of the back and both legs as a consequence of the injuries in October 2001 and 8 October 2003 to an Approved Medical Specialist (‘AMS’), Dr Khan. He issued a Medical Assessment Certificate (‘MAC’) on 1 August 2005. He assessed nil impairment as a consequence of those injuries. His assessment was the subject of appeal by Mr Rafoo, but the decision issued by the Commission on 21 October 2005 confirmed that at least one of the grounds of appeal listed in section 327 of the 1998 Act did not exist, and it was dismissed.
By an ‘Application to Resolve a Dispute’ (‘the Application’) registered in the Commission on 25 May 2009, Mr Rafoo sought weekly benefits from 20 March 2004, medical expenses, and lump sum compensation.
The parties attended a conciliation/arbitration hearing on 17 August 2009 which was resumed on 27 August 2009. The Respondent did not challenge the factual circumstances surrounding the injury in October 2001 but disputed that it was of any real consequence. The Respondent challenged both the occurrence and consequences of the incidents in October 2003. In a reserved decision delivered on 20 October 2009, the Arbitrator accepted the occurrence of the injuries in October 2003 but found that there were no continuing effects from those injuries beyond 1 August 2005, and declined to refer the claim for lump sum compensation for assessment by an AMS.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’ with an accompanying ‘Statement of Reasons’ (‘Reasons’) records her formal orders as follows:
“Findings
1.In October 2001, and on 8 and 9 October 2003, the Applicant suffered injury to his back that arose out of or in the course of his employment with the Respondent.
2.The Applicant’s employment with the Respondent was a substantial contributing factor to those injuries as required by section 9A of the 1987 Act.
3.From 20 March 2004 until 1 August 2005 the Applicant was partially incapacitated for work.
Orders
1.The Respondent is to pay the Applicant weekly benefits compensation at the rate of $151.00 per week pursuant to section 40 of the 1987 Act from 20 March 2004 to 1 August 2005. Thereafter there is an award for the Respondent in respect of the Applicant’s claim for weekly benefits compensation.
2.The Respondent is to pay the Applicant’s section reasonably necessary section 60 expenses resulting from the injury to the back on 8 and 9 October 2003 incurred up to 1 August 2005. Thereafter there is an award for the Respondent in respect of the Applicant’s claim for section 60 expenses.
3.The Respondent is to pay the Applicant’s costs as agreed or assessed. For the purposes of Schedule 6 Table 4 Item 4 of the Workers Compensation Regulation 2003 I certify this matter as complex with 25% increase in the costs otherwise available to both parties.”
It is from this decision that Mr Rafoo seeks leave to appeal.
ON THE PAPERS REVIEW
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 Numbers 1 and 6, the documents that are before me, and the submission by both 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.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act. The amount at issue on appeal satisfies the threshold requirements of section 352(2).
Leave to appeal is granted.
OTHER PRELIMINARY MATTERS
On receipt of the Commission’s files in this matter, it became apparent that only the proceedings on 17 August 2009 had been transcribed. Arrangements were made for a transcript of the proceedings on 27 August 2009 to be made, and a copy was sent to the parties on 3 February 2010 with a Direction that any further submissions be filed by 31 March 2010.
The parties have complied with that Direction, and I have taken into account their supplementary submissions in my review of the Arbitrator’s decision.
THE ISSUES IN DISPUTE
Mr Rafoo claims that the Arbitrator erred in three respects. Firstly, in determining that the effects of his injuries with the Respondent ceased on 1 August 2005, secondly, in awarding him only $151.00 per week and not the maximum statutory rate on an ongoing basis, and thirdly, in failing to refer his claim for permanent impairment of his back to an AMS for assessment.
Most of Mr Rafoo’s submissions merely reiterate his arguments put before the Arbitrator. In Mr Rafoo’s submission, the evidence, particularly that of Dr Ellis, was to the effect that his condition markedly deteriorated following his work injuries and supports a finding of an “ongoing aggravation and not a self limiting aggravation as found by the Arbitrator”.
The Respondent submits that there was “an abundance of evidence” in support of the Arbitrator’s findings, and that her decision should stand.
It should be pointed out that at [13] of her Reasons, the Arbitrator said:
“The Applicant accepted the work injury in October 2001 was not very serious and that some of the evidence suggests its effects were self-limiting. While arguing that injury nonetheless continued to contribute to both incapacity and permanent impairment, the Applicant conceded that if I determined there were no continuing effects flowing from that injury (or the other two injuries), then on the decision in Peric [Peric v Chul Lee Hyuang Ho Shin Jong Lee & Mi Ran t/as Pure andDelicious Healthy & Anor [2009] NSWWCCPD 47] there would be nothing to refer to the AMS. In that circumstance it was accepted that in respect of the first and second injuries the assessment by the previous AMS would be binding.”
In short, as both parties agree, the critical issue for me to consider is whether the injuries relied upon were, as the Arbitrator found at [45], “of a limited and temporary nature” or resulted in an ongoing aggravation.
THE ARBITRATOR’S FINDINGS AND REASONS
After setting out the background to the claim, the nature and extent of the dispute between the parties, and all the evidence before her, the Arbitrator turned to consider the issue of ‘injury’ and sections 4 and 9A of the 1987 Act. Her consideration of the medical and other evidence commenced at [15] of her Reasons. She concluded at [33-35]:
“33. On the balance of the evidence I am prepared to accept the Applicant sustained an aggravation injury in October 2001 when he sat hard on the corner of a cabinet door and hurt his low back. I accept that amounted to an injury within the meaning of section 4 of the 1987 Act to which his employment was a substantial contributing factor... However in my view the evidence does not suggest the injury in October 2001 was very serious. On the history taken by Dr Ellis the Applicant did not go off work as a consequence, but did light duty office work and console work from that time. Dr Williams does not say much about that injury, focussing on the effects from the October 2003 injury. Dr Khan was of the opinion that this first injury was a soft tissue contusion and a mild musculo-ligamentous strain of the lumbar spine, being a temporary aggravation that would have lasted only a few months and I accept that is the case.
34. I therefore accept the Respondent’s submission that any effects from the injury in October 2001 were relatively short-lived. I find such effects had ceased at some time before March 2004 so that they no longer contributed to the Applicant’s incapacity for work or permanent impairment. That conclusion is supported by the MAC of Dr Khan and by the reports of Dr Bodel.
35. Having found there are no continuing effects from the first injury in October 2001 I accept the Applicant’s clear concession, with which the Respondent agreed, that in those circumstances there is nothing to refer to the AMS. While I am not entirely sure that the decision in Peric reaches so far as to have that legal effect, I nonetheless accept that position is arguable and that it is open to the Applicant to make the concession he has in that regard.”
The Arbitrator then turned to consider the factual evidence in relation to the alleged incidents on 8 and 9 October 2003. She concluded at [42] that, on balance, she was satisfied that the injuries occurred, that they represented “an aggravation of his serious, underlying, and longstanding pathology in his lumbar spine” and at [44] that employment was a substantial contributing factor to those injuries.
At [45-47] she concluded:
“45. However in the end I am persuaded that the injury by way of aggravation was of a limited and temporary nature. On balance I accept the diagnosis and explanation offered by Dr Khan as AMS, which is not dissimilar to that of Dr Bodel. I accept that as a result of the injury or injuries on 8 and 9 October 2003 the Applicant suffered a relatively significant musculo-ligamentous strain of the lumbar spine, causing a further but temporary aggravation of his pre-existing degenerative back condition. I accept Dr Khan’s opinion, with which Dr Bodel agrees in substance, that subsequent radiology did not reveal any new or acute bone, joint or disc injury. I accept also Dr Khan’s opinion that, in addition to the pre-existing stenosis in the back, the injury in 1983 as well as the MVA in 1998 were both significant injuries causing additional pathology in the back.
46. Dr Khan concludes that the temporary aggravation would have lasted for a period of, at most, some months. That opinion is again not inconsistent wit [sic] Dr Bodel’s. That opinion suggests the effects from the work-related aggravation on 8 and 9 October 2003 would have resolved by early to mid-2004. By the date of his second report on 23 January 2004 Dr Bodel was of the view that aggravation should have already settled. Dr Khan did not assess the Applicant until June 2005 and his MAC was issued on 1 August 2005. Allowing the benefit of the doubt to the Applicant I am prepared to accept that as from the date of Dr Khan’s MAC the aggravation caused by the work injuries on 8 and 9 October 2003 had clearly ceased. I find that from that date the Applicant was no longer suffering from any continuing effects of those injuries and that they have not contributed since that date to any incapacity for work or any permanent impairment.
47. Having found there are no continuing effects from these injuries on 8 and 9 October 2003, and for the reasons outlined at paragraph 35 above in respect of the first injury, I accept the Applicant’s clear concession that as a consequence the matter is not to be referred to an Approved Medical Specialist for an assessment of permanent impairment.”
At [48] the Arbitrator commenced her consideration of the issue of incapacity. She concluded that Mr Rafoo was partially incapacitated during the period 20 March 2004 to 1 August 2005, and that he was capable of working up to 25 hours per week in suitable work within his restrictions earning $20 per hour. Probable earnings had been agreed at $701.00 per week. The mathematical difference was $201.00 per week. At [63] she said:
“It was not disputed that in the present case there are particular circumstances that warrant the exercise of my discretion to lower that amount. Having considered all the evidence I accept that is the case. It is apparent from the evidence that the Applicant suffers from a serious pre-existing disease in the back as well as from the effects of the significant injuries in 1983 and 1998. However I am of the view that in the relevant closed period until August 2005 the work-related injuries of October 2003 impacted in a substantial way on his incapacity for work. In all the circumstances I am satisfied it is appropriate to lower the mathematical difference by $50.00 per week in the exercise of my discretion under section 40(1) of the 1987 Act.”
THE EVIDENCE AND SUBMISSIONS
Given the Arbitrator’s findings at [13] of her Reasons, I think it is appropriate to consider at the outset some of the observations made by O’Grady DP in Peric. In that case, the Arbitrator concluded that the worker suffered a minor injury to her neck in the incident pleaded. Thus he found that the provisions of sections 4 and 9A of the 1987 Act were satisfied. He then found that she had recovered from the effects of that injury, that she was not suffering from any permanent impairment as a consequence, and that there was therefore no basis upon which to refer the matter to an AMS for assessment.
The worker appealed, submitting that an Arbitrator’s task, when determining a dispute in respect of a worker’s entitlement to compensation for permanent impairment resulting from injury, is limited to resolving and determining questions as to liability. Once the issues of injury and causation are determined, section 319(c) of the 1998 Act requires the claim to be referred to an AMS for assessment.
In considering these submissions, O’Grady DP said:
“65. Compliance by an arbitrator with the provisions of section 321(3) requires, in an appropriate case, that the matter be remitted to the Registrar for referral to an AMS to determine the degree of permanent impairment of the worker and whether any proportion of permanent impairment is due to any previous injury or pre existing condition or abnormality (section 326(a) and (b) of the 1998 Act).
66. There will only be such a referral by the Registrar in circumstances where an arbitrator has made a determination as to liability (section 321(4)(a)) and complied with Practice Direction No. 11. That Practice Direction stipulates, “... any dispute in respect of liability in relation to a claim for permanent impairment must be resolved or determined by the Commission constituted by an arbitrator, prior to the Registrar referring the dispute in relation to degree of permanent impairment for medical assessment.
67. The term “liability” is not defined in the Acts. It was observed by Roche ADP (as he then was) in Connor v Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2006] NSWWCCPD 124 (‘Connor’) that:
“... To decide liability the Commission must decide, among other things:
(a) whether the worker sustained an ‘injury’ within the meaning of section 4 of the 1987 and 1998 Acts;
(b) does the injury satisfy the conditions in section 9A of the 1987 Act, andwhat are the consequences of the injury, that is, what pathology is said to result from the injury.”
68. The Commission, in Connor, proceeded to consider the meaning of “injury” and reference was made to the definition of that term as contained in the 1987 and the 1998 Acts. Reference was then made to the decision of Neilson J in Lyons v Master Builders Association of NSW (2003) 25 NSWCCR 423 [sic – Lyons v Master Builders Association of NSW Pty Ltd (2003) 25 NSWCCR 422] (‘Lyons’). Having regard to the matters stated in Lyons the following observation was made at [48]:
“... the determination of the issue of ‘injury’ requires not only an assessment of whether the ‘injurious event’ occurred in compensable circumstances but also whether the pathology found to exist (if any) has been caused by the work event. These are both threshold liability issues to be decided by the Commission not by an AMS or an Appeal Panel. Employment must be a substantial contributing factor to the work event and to the pathology found before liability arises under the legislation. The determination of these issues requires a consideration of all of the factual and legal issues in the case. It is not simply a medical question.”
69. In the present case the Arbitrator has, properly in my view, addressed the fundamental matters in dispute between the parties, namely, the occurrence and nature of the injurious event sustained by the Appellant and the nature of any resultant pathology…”
At [77] he concluded:
“I am of the opinion that a question as [to] whether an injury proven in proceedings before the Commission has caused ongoing disability or whether such injury has had a pathological effect limited to a particular period of time is a legal question (namely one of causation), which remains within the exclusive jurisdiction of the Commission (an arbitrator) to decide. Such questions arise for determination in various circumstances on a regular basis before the Commission (for example whether aggravation of a disease is permanent or otherwise; whether incapacity results from one or more identified injuries; whether apportionment among employers pursuant to section 22 of the 1987 Act is appropriate in case of multiple proven injuries). The fact that a claim may involve a question of the degree of permanent impairment as a result of an injury in terms of section 319 does not, in my view, deprive an arbitrator of jurisdiction to determine questions as to the duration of pathological consequences of an injury.”
In short, an Arbitrator is required to determine what the consequences of an injury are for the purposes of determining liability to pay compensation.
In WorkCover New South Wales v Evans [2009] NSWWCCPD 95 (‘Evans’) Snell ADP agreed with the observations of O’Grady DP in Peric and added at [59]:
“There can be no room for the suggestion, in such circumstances, that an Arbitrator does not have jurisdiction to determine questions such as causation. The Arbitrator clearly had jurisdiction to do this, pursuant to section 105(1) of the 1998 Act. It was necessary that an Arbitrator determine causation, amongst other issues, for the purpose of determining the claims for weekly compensation and medical expenses. Having decided, as part of this fact finding exercise, that the effects of injury subsisted for a closed period only, such finding also disposed of the dispute between the parties regarding whether there was a permanent impairment resulting from the injury. There could not be, consistent with the finding on causation. The finding created an issue estoppel that bound the parties. The result was that there could no longer be a dispute, about the degree of permanent impairment resulting from the injury, to be referred to an AMS.”
My task in this matter then is to examine whether the Arbitrator’s conclusion that the injuries pleaded were “of a limited and temporary nature” was correct. This requires careful consideration of all the evidence.
The Medical Evidence
The medical evidence was extensive, and included material in relation to Mr Rafoo’s earlier injuries and the proceedings related thereto. The Arbitrator considered this at [21] of her Reasons, noting that there was a difference of opinion as to the impact of the motor vehicle accident on Mr Rafoo’s condition. I do not propose to canvass this material in detail. Mr Rafoo concedes that he had pre-existing injuries, and indeed a congenital condition in his spine. It is the impact of the “aggravations” in 2001 and 2003 that is the crux of this dispute.
At the outset, it is clear that Mr Rafoo has a serious condition affecting his lower thoracic and the whole of his lumbar spine. In his report of 4 June 2006, Dr Ellis, to whom Mr Rafoo was referred by his solicitor, made the following diagnosis:
“1. A congenital condition of narrowing of the spinal canal (spinal stenosis).
2. Multiple disc lesions. The lowest two thoracic and all the lumbar discs are narrowed and degenerate and dehydrated. There is a right foraminal disc protrusion at L3-4. There is thickening of the facets in the neural laminae and adhesion of the intradural nerve roots at L5-S1 level to the thecal sac have been suggested. The patient has a painful back and weak legs with signs of neurological compromise (radiculopathy).The congenital condition has been aggravated by the multiple disc bulges and protrusions and the thickening of the laminae and the facet joints.”
At page 5 of that report, Dr Ellis summarised all the radiological investigations before him. He noted that a CT Scan of the lumbar spine taken on 17 October 2003 showed:
“There is a degree of narrowing of the AP diameter of the spinal canal at L3-4 and L4-5 levels suggesting mild changes of spinal canal stenosis. The canal appears of normal dimensions at the L5-S1 level.
Some postero-central disc bulging is present at the L3-4 and L4-5 levels and the combination of these changes with the narrowed spinal canal may be associated with nerve root impingement as the nerves exit the neural foramina.
No significant findings are identified at the L5-S1 level.
These appearances appear similar to that described in the previous study of March 1999.”
An MRI of the lumbar spine taken on 8 December 2003 showed similar changes to those recorded in the CT Scan to which I have referred, and concluded: “Congenitally narrowed lumbar spinal canal. Small focal disc protrusions noted at T12-L1 and L3-4 levels posteriorly (abutting?) thecal sac.” An MRI of 1 November 2005 noted: “Findings: All the lumbar discs show varying degrees of dehydration / degeneration” and was in virtually identical terms to that taken on 8 December 2003.
Dr Ellis added:
“He does need a fairly extensive decompression of the stenotic spine to relieve the affects of the congenital and traumatic damage to the cauda equina, the nerve roots in the canal.The important administrative decision [is] as to how much was due to his congenital condition, how much was due to traumatic damage (wear and tear changes) of his spine and how much to the individual episodes of physical stress. It is not possible to be precise in these assessments. Probably if he had not had the aggravations caused by the disc lesions he would not have the clinical signs and symptoms which make him at present unfit for work.
To apportion impairment between the congenital condition of his spine since he arrived in Australia in 1980, the motor vehicle accident of 12.12.98 and his work with Mobil Australia and Rafinc between 1995 to 2003 including the incidents of physical stress in October 2001 and 6.10.03, 7.10.03 and 8.10.03 [sic] cannot be made precisely…
We are left with three causes each of which is considered to be material…
1. the congenital condition;
2. the wear and tear changes up to 1995;
3. the wear and tear changes after 1995 up to 2003 and the latter to include the motor vehicle accident.”
In his subsequent report of 2 July 2008, Dr Ellis corrected the dates of the various injuries referred to earlier and commented as follows:
“On 17.05.2006 [the date of his previous consultation] his chief complaint was a constant burning low back pain which extended down his legs to his feet. He still had urinary troubles with much frequency. His control of bowel action was poor…
On 25.06.2008, 25 months after the first consultation, he states that he was worse than he had been two years ago.”
Dr Ellis then set out the results of a CT Scan and MRI of the lumbosacral spine taken on 20 May 2008. The MRI, essentially confirming the findings on the CT Scan, reported:
“At L5/S1 there is a mild degree of posterior annular bulging of the disc…
At L4/5 the pedicles are congenitally short. There is posterior annular bulging of the disc with facet joint flaval ligament hypertrophy. This has resulted in a severe central canal stenosis…
At L3/4 the pedicles are congenitally short. There is generalised posterior annular bulging of the disc with more focal right lateral protrusion. Facet joint and flaval ligament hypertrophy is noted. This has caused an extreme canal stenosis at this level. There is also disc encroachment into the left neural foramina causing probable compression at the right L3 nerve.
At L2/3 the pedicles are congenitally short. There is posterior annular bulging of the disc with facet joint flaval ligament hypertrophy. This has resulted in a severe central canal stenosis. The neural foramina are preserved.
At T12/L1 there is a left paracentral disc protrusion. Some facet joint hypertrophy is also noted at this level. This has caused narrowing of the left side of the spinal canal and some disc encroachment into the left neural foramina…
Comment: The CT and MRI demonstrate an extensive multilevel canal stenoses.”
Dr Ellis added:
“This patient is suffering from spinal stenosis of the whole of the lumbar spine and the lower 2 thoracic levels…
Decompression has been strongly advised two years ago, and is more strongly advised now…
The spinal stenosis is partly due to congenital narrowing of the canal but this has been aggravated materially by bulging discs, facet joint hypertrophy and ligamentum flavum hypertrophy…
It is very probable that had the patient not had the wear and tear of his back involved in his work as a Service Station manager which involves hands-on work lifting boxes of soft drink, he [sic] condition would not be as severe as it is at present.”
Dr Ellis conceded that it was not possible to precisely apportion impairment between the congenital condition, the wear and tear changes up to 1995, and those thereafter, including the specific events relied upon by Mr Rafoo.
Dr Williams first saw Mr Rafoo on 17 October 2003. In a report dated 6 November 2005 he concluded:
“It is my opinion that Mr Rafoo’s lumbar injury in October 2001 and on 8 October 2003 caused aggravation of his existing lumbar degeneration and sustained a L3/4 and L4-5 disc injury. Mr Rafoo’s L3/4 disc proplapse and right L3 nerve root entrapment has not improved but deteriorated and remains symptomatic.
From reading the AMS report I would not be confident that the correct conclusions were made. I find the neurological clinical examination to be inconsistent with my findings, [my medical file] was not mentioned by Dr Khan despite it being forwarded to [the Commission]…The treating specialist opinion was not mentioned. No explanation was given for these documents being absence [sic]. The right L3/4 and L4-5 disc injuries were not listed as pre-existing nor was the foraminal disc protrusion with L3 nerve root entrapment listed as pre-existing. The radiologist’s CT Scan report on 17 October 2003 documenting the L3-4 and L4-5 disc lesions is not accurately recorded in Dr Khan’s report. The MRI scan of the lumbar spine performed on 1 November 2005 was not available to Dr Khan and would be considered fresh evidence supporting Mr Rafoo’s case for a deterioration of the L3-4 disc prolapse and refutes the opinion that his injury has stabilised.
Mr Rafoo has maintained that he has not recovered nor has he returned to pre-injury work. This is in keeping with his history of injury, the clinical findings and MRI findings.”
The MRI of 1 November 2005, although more detailed in comment than the earlier one of 8 December 2003, was to my reading virtually identical to the earlier scan. Both noted, inter alia, a disc protrusion at the L3/4 level, although the later scan referred to “entrapment of the L3 nerve root as it exits.” Both scans referred to “developmental shortening of the lumbar pedicles.” Both recorded changes at the same levels.
Mr Rafoo was also seen by Dr James van Gelder at the request of Dr Williams. In a report dated 17 April 2008, Dr van Gelder confirmed that he had seen Mr Rafoo previously in November 2005 and May 2007. He noted that his original diagnosis was of “spinal canal stenosis.” He was symptomatically worse when seen in May 2007 and again in April 2008. Dr van Gelder advised surgical decompression as a public patient “since his compensation claim has been declined.”
Dr Berry saw Mr Rafoo at the request of his previous solicitors in May 2004. In a report dated 21 May 2004, he concluded:
“His x-rays from 1999 show that he already had congenital narrowing of the spine with some changes at L3/4 and his most recent x-rays show that those changes have been excentuated [sic].
I would be of the opinion that as a result of the injury in 2001 and the injury in 2003 the patient has aggravated pre-existing degenerative changes in his lumbar spine resulting in referred pain to both legs…”
Dr Berry’s report was prepared for the purposes of the earlier proceedings for lump sum compensation.
The basis of the Arbitrator’s findings that the effects of the injuries in October 2001 and October 2003 were “of a limited and temporary nature” was primarily the radiological evidence, and the similar opinions of Drs Khan and Bodel.
The Arbitrator’s analysis of the earlier radiological reports was set out at [30-31] as follows:
“30. A CT scan of the lumbar spine of 19 March 1999 demonstrated generalised bulging of the L3/4 intervertebral disc, with slight hypertrophy of the ligamentum flavum. It also evidenced some gas at L4/5 within the degenerate intervertebral disc and a slight compression of the thecal sac. At L5/S1 a left paracentral bulge to the intervertebral disc was noted, which abuts the left S1 nerve root. An MRI of the lumbar spine of 18 July 2000 showed an annular tear and disc bulging at T12/L1, minor disc bulging at L2/3 with some narrowing of the canal and similar (but less marked) changes at L3/4. That MRI indicated there was no disc protrusion at that time and no root compression. It appears these early radiological investigations were not before many of the recent assessing doctors (such as Dr Williams, Dr Ellis and Dr Bodel). However Dr Khan comments in his MAC that Dr Ian Macdonald, Radiologist, compared the CT scan of 17 October 2003 with the previous study in March 1999 and was of the opinion the appearances were similar. I find that observation of some significance in considering the consequences of the injuries in October 2003.
31. Reports of later post-injury radiological investigations were considered in the many medical reports before me. I accept that the radiology after the injuries (especially that of May 2008) evidences bulging at multiple levels (L3/4 and L4/5) with nerve root compression and annular bulging at L5/S1. However the radiology as far back as 1999 also indicated significant pathology, some disc bulging at various levels, and a slight compression of the thecal sac at L4/5.”
Dr Bodel first saw Mr Rafoo at the request of QBE on 21 January 2004. In a report of the same date, he took a history of the motor vehicle accident in 1998 noting Mr Rafoo’s comment that it took about three years for his symptoms to resolve before he eventually “completely recovered.” He obtained a history of a “minor episode” in October 2001, and the two incidents in October 2003. He noted that “in spite of his severe pain” he did not see his doctor until 17 October 2003. He concluded that in the October 2003 incidents, Mr Rafoo had aggravated long standing, pre-existing pathology “which is probably predominantly due to congenital short pedicles at the L3/4 level and acquired vertebral canal stenosis.” He added:
“It appears unlikely that any additional structural damage has occurred as a result of these specific incidents…although he does have a very vulnerable spine because of the long standing pathology…”
In a subsequent report dated 23 January 2004, after having been provided with a copy of a factual report wherein it was disputed that Mr Rafoo was either required to or did in fact lift boxes on both occasions in 2003, he added:
“I also note that it is alleged by those who terminated his employment that no mention was made of his back pain at the termination on 9 October 2003. I also note that he then went away on a pre-arranged trip…and did not see his doctor until a week later.
The pathology seen here is predominantly a congenital abnormality with short pedicles. He has had a history of recurring problems with the back and this additional information leads me to conclude that it it unlikely that any additional structural damage occurred…
For this reason therefore it is likely now that this gentleman’s possible work related aggravation of pre-existing pathology should have settled and I am at a loss to understand his apparent level of complaint. There does appear to be medical inconsistency between the history and the clinical findings that he gives and the other available information.”
In his reports of 13 November 2007, Dr Bodel reached a similar conclusion. On this occasion he had the benefit of the CT Scan of 17 October 2003, and the MRI scans of 8 December 2003 and 1 November 2005. He was also provided with other documentation such as surveillance reports. Dr Bodel added:
“ On 24 December 2005 he was seen to walk briskly when at a service station.
The [MAC] prepared by Dr Khan on 23 June 2005 is noted. He confirms that this gentleman has significant levels of impairment and loss but he discounted the assessments totally for pre-existing pathology.
An assessment by the late Dr Roebuck on 10 November 1999…He also reported that he had a lot of difficulty walking and he at that stage diagnosed ‘spinal claudication’ and I agree with that. Dr Roebuck was of the view that there was an aggravation of pre-existing pathology and I agree with that as well…
An assessment by Dr Stephenson on 20 August 2004 confirms that this gentleman does have significant vertebral canal stenosis with ‘mild distal bulging’ and that is still the case…
An assessment by Dr Ellis dated 4 June 2006 is noted…he also concluded that he has ‘a congenital condition of narrowing in the spinal canal’…”
Dr Bodel concluded:
“This gentleman’s ongoing incapacity is due to constitutional factors which are very long standing and unrelated to the nature and conditions of work in general or any specific event that occurred at work. That is to say that he would have had the same level of pathology at about the same time had it not been for work in general or any specific event at work. That includes the motor vehicle accident in 1998.”
In his most recent report of 16 June 2009, Dr Bodel commented on the recent radiological investigations of 20 May 2008. He was also provided with the reports from Dr Williams and Dr van Gelder, and the more recent reports from Dr Ellis. He confirmed his earlier opinion that Mr Rafoo’s condition is primarily a constitutional ailment with associated degenerative change, and that none of this material caused him to alter that view.
Dr Khan’s MAC of 1 August 2005 was considered and succinctly summarised by the Arbitrator commencing at [27]. She said:
“27. A Medical Assessment Certificate by Dr Sikander Khan, AMS, was issued on 1 August 2005. Dr Khan was first asked to assess the degree of permanent impairment in respect of the back and both legs as a result of the injury at work in October 2001 under the Table of Disabilities. He assessed an initial 20% permanent impairment of the back and 5% permanent loss in respect of both legs, but deducted 100% from those assessments on the basis that all that impairment related to the pre-existing condition and previous injuries. Similarly in respect of the injury to the back on 8 October 2003 the AMS initially assessed 7% WPI for the lumbar spine, but deducted 100% for the pre-existing condition and previous injuries. I agree with Dr Williams that there may be some legitimate criticisms of Dr Khan’s report, including the fact he was not apparently sent all the treating doctors’ clinical notes. I accept there was no prior determination of injury by an Arbitrator, but the referral was made by an Arbitrator indicating some agreement was reached between the parties as to the matters to be referred. The AMS was also asked by that referral to undertake a General Medical Assessment. While the MAC in respect of the degree of permanent impairment was the subject of an appeal by the Applicant, that appeal did not pass the threshold and was not permitted to proceed. In the end the assessment by Dr Khan stands and in [my] view represents an objective medical opinion about the nature and extent of the Applicant’s back problems as at 1 August 2005.
28. Dr Khan took a history of the previous injuries in 1983 and 1998, and like Dr Bodel noted it took the Applicant 2-3 years to recover from the MVA in 1998. He records the injury in October 2001, noting he had no time off work at the time… Dr Khan also noted the clear evidence of the pre-existing multi-level degenerative condition of the lumbar spine, causing a degree of spinal canal stenosis.
29. Dr Khan was of the opinion that the 1983 injury to the lumbar spine was significant, with possible disc trauma and significant time off work. He says that injury would have led to a degree of acceleration of the degenerative condition in the lumbar spine and exacerbation of developmental narrowing of his spinal canal, as noted on the scans. He says he would have been left with a disability in his back. Dr Khan described the 1998 MVA as a further aggravation of his pre-existing back condition. In his opinion the Applicant suffered a soft tissue contusion and a mild musculo-ligamentous strain of the lumbar spine as a result of the work-related incident in October 2001. He described that injury as a temporary aggravation and exacerbation of the pre-existing back condition. He considers the effects of that temporary aggravation would have lasted no more than a few months, and would have thereafter been resolved. In Dr Khan’s opinion as a result of the incident at work on 8 October 2003 the Applicant would have sustained a musculo-ligamentous strain of the lumbar spine, again causing a temporary aggravation of his pre-existing degenerative back condition. Dr Khan comments that subsequent radiology did not reveal any new or acute bone, joint or disc injury. While Dr Williams is critical of that conclusion, I think it is essentially correct. Dr Khan concludes that this temporary aggravation would have lasted for a period of, at most, some months and resolved thereafter.”
Although Dr Khan did not have the medical records of Dr Williams, it is clear that he was provided with extensive material, including some medical certificates from Dr Williams. He concluded, on the basis of his clinical examination and all the material before him, that the incidents relied upon by Mr Rafoo represented temporary aggravations of his underlying condition.
Other Evidence
Mr Rafoo made a number of statements. In the first dated 12 January 2004, he confirmed his personal and employment history and gave some details of his prior injuries. After his car accident, he said: “The back pain did not go away completely.” He provided details of the incidents pleaded and then said:
“My family and I went to Port Stephens for holidays on Saturday 11 October 2003…I drove…I did not injure my back there or when driving.”
In a subsequent statement dated 9 August 2004, Mr Rafoo confirmed that he had received a final written warning from the Respondent on 25 August 2003 involving “non-compliance with cleaning and stock taking procedures.” He said that on 9 October 2003 at around 11:00 am, he was spoken to by Ms Tracey Turner over that matter and asked to leave. He said:
“Before leaving the site I said to Tracey words to the effect ‘My back is killing me and you are sacking me?’ I also mentioned the accident…in October 2001 and the motor vehicle accident.”
He set out details of his symptoms, restrictions and disabilities. In a subsequent statement dated 25 August 2008, he confirmed that his condition was deteriorating.
The Respondent relied on a surveillance report dated 11 January 2006 by C & A Insurance Support Services Pty Limited in respect of surveillance over three days in December 2005. This was considered by the Arbitrator at [32] where she said:
“From the photographs attached to the report the Applicant is observed carrying shopping bags and other objects to his car. He is said to have been walking briskly. That surveillance report is before me, having been part of earlier proceedings in the Commission. It was provided to the Applicant. However the Respondent did not file the video recording that formed the basis of that report, and had not done so after the hearing in August 2009. As indicated at hearing I am of the view that the video recording would provide the best evidence of the Applicant’s activities, and I therefore do not place significant weight on the surveillance report itself. However I accept that at times the Applicant does the family shopping and carries bags. He told Dr Ellis that he does some household duties”
.
In its “Notice of Opposition to the Appeal” the Respondent points out that its records confirm that:
“…in accordance with the Arbitrator’s request a copy of the surveillance footage (DVD recording) was forwarded to the Commission on 2 occasions being 7 September and 15 September 2009. It appears that the Arbitrator did not have the benefit of this footage.”
I have been unable to locate the surveillance footage in the Commission’s files, but for reasons that will become apparent, I do not consider that it is material in my review of the Arbitrator’s determination.
DISCUSSION
Was the Arbitrator’s decision correct having regard to all of the evidence?
Mr Rafoo submits:
“Dr Ellis in his report of 4 June 2006 at page 5 has the most accurate history and complete record of investigations and his opinions should therefore be preferred. In his report of 2 July 2008 Dr Ellis found the previous disc ‘protrusions’ had deteriorated to ‘lesions’ as a consequence of the work injuries with a marked deterioration in the Applicant eg, documented incontinence…the very marked deterioration in the Applicant’s condition proves and [sic] ongoing aggravation and not a self limiting aggravation as found by the Arbitrator. It has rendered the Applicant permanently incapacitated.”
The reports of the CT Scan and MRI of 20 May 2008 (and of Dr Ellis of 2 July 2008) do suggest that there may have been some deterioration in Mr Rafoo’s condition since 2006. What is not clear is the precise cause of this. In my view, Dr Ellis’ opinion is insufficient to support Mr Rafoo’s contention that it is indicative of an ongoing aggravation of his injuries in October 2001 and October 2003. It must be remembered that the findings described on the CT Scan taken on 17 October 2003, shortly after the incidents on 8 and 9 October 2003, were reported to be “very similar” to those shown on an earlier scan taken in March 1999. What is significant is Dr Ellis’ reliance on the whole of Mr Rafoo’s work as a service station manager since 1995, including the motor vehicle accident, as one of the three factors materially causative of his condition. That was not the subject of Mr Rafoo’s claim. In addition, it is noted that Mr Rafoo had documented urinary and bowel problems at his initial consultation with Dr Ellis in 2006. Dr Ellis’ reports do not support Mr Rafoo’s argument that “the previous disc protrusions had deteriorated to lesions” as demonstrated by “documented incontinence.”
There is no basis for concluding that because Dr Ellis had “the most accurate history” his opinion should be preferred. Dr Bodel also had a “complete record of the investigations.” The Arbitrator acknowledged at [15] that Dr Ellis’ “medical explanation is fairly clear and he took a detailed history.” The Arbitrator also acknowledged that Dr Ellis had the benefit of the May 2008 radiological investigations, and accepted that:
“I accept Dr Ellis also refers more generally to the wear and tear on the Applicant’s back due to the work he did as a Service Station manager operator from 1995 to 2003. There is no claim before me of injury due to the nature and conditions of work but in my view it is apparent that Dr Ellis considers the three incidents claimed as the main source of the work-related aggravation.”
At [16] she added:
“Dr Ellis essentially accepts the three work incidents with the Respondent occurred as claimed by the Applicant and does not really distinguish between the effects flowing from each of them.”
Both Dr Ellis and Dr Bodel had similar histories and radiological investigations, however, they reached different conclusions as to the cause of the changes in pathology over time. Dr Ellis (and Dr Williams) considered that the work incidents played a part in the deterioration of Mr Rafoo’s condition, and contributed to his current level of permanent impairment. On the other hand, Dr Bodel concluded that any effects from those incidents were short lived, and the present degree of lumbar pathology was all related to the underlying stenosis and pre-existing degenerative condition.
In these circumstances, where there are two valid but opposing views, I must consider, on balance, which opinion is preferable after careful analysis of the reports and any other evidence.
In this case, I am persuaded that the Arbitrator’s acceptance of the opinions of Drs Khan and Bodel was correct. Like the Arbitrator, I regard the similarity in the radiological investigations prior to and post the injuries relied upon as significant and compelling in the circumstances of this particular case. I also regard the fact that Mr Rafoo went on holidays two days after the last incident in October 2003 and did not consult a doctor until 17 October 2003 as significant in terms of the nature and extent of the effects of the pleaded injuries. It seems odd that, in the face of his assertion that his back was “killing” him, he did not seek medical treatment for over a week.
There is simply insufficient evidence to conclude that the demonstrated pathology resulted from the work events. Dr Khan’s assessment, as the Arbitrator pointed out at [27] represented “an objective medical opinion about the nature and extent of the Applicant’s back problems as at 1 August 2005.” Dr Khan had available to him reports from both Dr Ellis and Dr Bodel, together with the radiological material. Dr Bodel essentially concurred with his opinion. In those circumstances, the weight of evidence supported the Arbitrator’s conclusions.
Having determined that the Arbitrator was entitled, on the evidence, to make a finding that the pleaded injuries were “of a limited and temporary nature,” such finding, as Snell ADP said in Evans, “also disposed of the dispute between the parties regarding whether there was a permanent impairment resulting from the injury” such that there was no basis upon which to refer the matter to an AMS for assessment. As Mr Rafoo conceded in his subsequent submissions filed on 18 March 2010:
“The Appellant does not withdraw its [sic] concession that if the Commission finds no ongoing injury then the Commission should not refer the question of impairment to an AMS.”
I should point out that the facts and circumstances of this case are clearly distinguishable from those in Superior Formwork Pty Ltd vLivaja [2009] NSWWCCPD 158 where Roche DP confirmed that, if no Certificate of Determination is issued because proceedings are discontinued, a MAC may be tendered in subsequent proceedings but is not conclusively presumed to be correct in the later proceedings because they are not the proceedings “with which the certificate is concerned.”
Turning to the issue of the weekly payments award, it is clear that the Arbitrator’s determination of this issue was based primarily on Mr Rafoo’s own evidence, in particular, the certificates of his treating doctor, Dr Williams, who certified him fit for suitable duties five hours per day, five days per week. She also had regard to the opinion of Dr Khan (who had been asked to undertake a “General Medical Assessment”) noting at [55]:
“In his MAC issued in August 2005 Dr Khan was of the opinion that following the incident on 8 October 2008 the Applicant would have been partially incapacitated for jobs requiring prolonged standing, stooping, twisting and lifting more than 10kgms. I accept the Applicant was subject to those restrictions and limitations for the period of his partial incapacity as I have found it, being somewhat longer than the period suggested by Dr Khan. Dr Khan adds that any further restriction and partial incapacity the Applicant had at the time of his examination or in the future would relate to the pre-existing condition in the lumbar spine and not to the work injuries, and in respect of the period after his assessment I have accepted that is the case.”
That is an accurate summary of the opinion of Dr Khan. Dr Bodel considered that, even with the underlying pathology, Mr Rafoo was fit for some light work with restrictions.
At [59-61] the Arbitrator concluded:
“59. Having considered the evidence I am satisfied the Applicant’s capacity to compete in the labour market reasonably accessible to him was limited over the period of his entitlement from 20 March 2004 to 1 August 2005 because of the effects from the work injuries in October 2003. In the pre-injury period he worked as service station manager and console operator, often suggested to be an appropriate job for a partially incapacitated worker. The Applicant is now almost 50 years of age but the possibility of his being retrained does not seem promising. He has now been out of the workforce since October 2003.
60. Given the nature of the Applicant’s overall pathology in his back as well as the effects from the injuries, I am satisfied the Applicant would have been capable of doing only light to moderate work on a part-time or casual basis over the relevant period. In light of those factors and the length of time he has been out of the workforce I am not satisfied the Applicant could do such work within his restrictions on a full-time basis. Moreover I accept that over this period ‘intermittency of employment’ may also have been a feature of his ability to earn (see Duncan v Roads & Traffic Authority of NSW & Anor [2007] NSWWCCPD 113 (15 May 2007)) and Clarence River Fisherman’s Co-operative v Swain [sic - [2008] NSWWCCPD 2].
60. Having considered all the evidence I am of the view that as relevant from 20 March 2004 to 1 August 2005 the Applicant was capable of working up to 25 hours per week (on average) in suitable work within his restrictions. In my view such casual, part-time or intermittent work is likely to attract an hourly rate of no more than $20.00 per hour. On that basis I conclude that working in employment in the labour market reasonably accessible to him the Applicant would be able to earn no more than $500.00 per week, and I accept that as the correct amount for the purposes of section 40(2)(b) of the 1987 Act.”
In my view, the Arbitrator’s findings on this issue were both thorough and well reasoned. Taking into account the totality of the evidence, both lay and medical, there was insufficient evidence to conclude, as Mr Rafoo submits, “that he was totally incapacitated for the period and indeed remains [so] into the future.”
CONCLUSION
Having conducted a review on the merits (per Spigelman CJ in State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249) I have concluded that the Arbitrator’s findings as to the duration of the pathological consequences of the injuries pleaded were correct, and consistent with the weight of evidence. Her findings on the issue of incapacity and its duration were in my view similarly correct for the reasons stated.
DECISION
The decision of the Arbitrator dated 20 October 2009 is confirmed.
COSTS
I make no order as to costs of the appeal.
Deborah Moore
Acting Deputy President
21 April 2010
I, RAMON LOYOLA, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DEBORAH MOORE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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